Travel Queen Coaches, Inc.

134 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Travel Queen Coaches, Inc. and Carpenters Union, Local 3193, affiliated with the United Brotherhood of Carpenters & Joiners of America, AFL-CIO. Case 2l-CA-8730 July 20, 1971 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND BROWN On March 18, 1970, Trial Examiner Stanley Gilbert issued his Decision in the above-entitled proceeding, finding that the Respondent had not engaged in certain unfair labor practices and recommending that the complaint be dismissed in its entirety, as set forth in the attached Trial Examiner's Decision. Thereafter, the General Counsel filed exceptions to the Trial Examiner's Decision and a supporting brief. The Respondent filed an answering brief to General Counsel's exceptions and in support of the Trial Examiner's Decision. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recommend- ed Order of the Trial Examiner and hereby orders that the complaint herein be, and it hereby is, dismissed in its entirety. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE STANLEY GILBERT, Trial Examiner : Based on a charge filed August 8, 1969, as amended August 29, 1969, by Carpenters Union, Local 3193, affiliated with the United Brotherhood of Carpenters & Joiners of America, AFL-CIO, hereinafter referred to as the Union, the complaint herein was issued on September 22, 1969. The complaint, as amended during the course of the hearing, alleges that Travel Queen Coaches, Inc., hereinaft- er referred to as the Company or the Respondent , engaged in conduct violative of Section 8(a)(3) and (1) of the Act by its discharge of five employees on June 4, 1969 . Respondent by its answer, as amended during the course of the hearing, denies that it committed the unfair labor practices alleged in the complaint. Pursuant to notice , a hearing was held in San Bernardino, California, on November 4, 5, and 6, 1969, before me. Appearances were entered on behalf of the General Counsel, Charging Party, and Respondent, and briefs were received from the General Counsel and Respondent within the time designated therefor. Upon the entire record in this proceeding and my observation of the witnesses as they testified , I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Respondent is a corporation which maintains a plant in Riverside, California, where it is engaged in the business of manufacturing travel trailers and campers. During the 12 months preceding the issuance of the complaint, which period is representative, Respondent, in the normal course and conduct of its business operations, purchased and caused to be delivered to its aforesaid plant materials valued in excess of $50,000 which were shipped from plants outside the State of California either directly to Respondent or directly to various firms located in the State of California which in turn shipped those same materials to Respondent. During the same period, Respondent, in the normal course and conduct of its business operations, sold products valued in excess of $50,000 directly to firms located outside the State of California. As is admitted by the Respondent, it is, and at all times material has been, an employer engaged in commerce and in a business affecting commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED As is admitted by Respondent, the Union is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES It is alleged in the complaint that Respondent violated Section 8(a)(3) and (1) of the Act by discharging Kevin Akin, Mark Akin, David L. Jenkins, Willie Young, and Ed Brown on or about June 4, 1969. The Respondent, in its answer, denies that the aforesaid individuals were discrimi- natorily discharged and affirmatively alleges that they ..were laid off as result of reduction in the business of 192 NLRB No. 27 TRAVEL QUEEN COACHES, INC. 135 Respondent." The complaint- does not allege that the Respondent engaged in any conduct which constituted an independent violation of Section 8(a)(1) of the Act. There is no contention that the record would support a finding of such conduct, and there is no basis for such a contention. Although during, the course of the hearing the Respon- dent indicated that there- was an issue as to whether K. Akin, M. Akin, Jenkins, and Young were "employees" within the meaning of Section 2(3) of the Act, ostensibly because they were trainees- in a job-training program' under which the Company was compensated for 50 percent of each, trainee's salary, the Respondent makes no mention of,this issue in its brief. It is not clear whether Respondent has abandoned the contention that said individuals were not "employees." In any event, such a contention is without merit, and it is hereby found that the aforesaid four individuals were employees within the meaning of the Act. The fact that they were not "regular" employees would not deprive them of the protection of the Act. The key figures in the Company are Steven DeGennaro, Sr., Respondent's president, who is hereinafter referred to as DeGennaro; 2 DeGennaro's son, Steven DeGennaro, Jr., Respondent''-s, secretary and treasurer, -hereinafter referred to as S. DeGennaro; and Bob, Kent, a foreman and an admitted supervisor. The Company received a letter in the morning mail on June 3 from the Union which advised the ,Company that "many" of its employees, had indicated an interest in being represented by the ,Union-and warned the Company about engaging in any conduct violative of the Act. Gaylord Hanson, who -voluntarily severed his employ- ment with Respondent on-June 12, 19,69, testified3 that about 9 o'clock on, June 3 he had a conversation with DeGennaro in which DeGennaro told him that if he kept up the "good work" and "speeded up a little," he would give him,a 15-cent raise, Hanson further testified that about 11, that morning he had a second conversation with DeGennaro and, his testimony with respect thereto is as follows: A. He came up to me-we were both right next to a coach-L was, next to a coach, and- he came up to me and asked me if I knew anything about a union or if I had heard anything about a union, and I said, no, I hadn't; I didn't know that we had one in the company. - And I_asked him if there was one or,if-there was going to be one, and he said-I believe he gave a negative -response, that there wasn't one. DeGennaro testified that he did have-a conversation with Hanson that, morning about a raise, but categorically denied that he had the- second conversation-, to which Hanson testified. DeGennaro was a convincing witness in denying,, Hanson's,-, above testimony, while, on the; other hand, the Trial Examiner did not have the opportunity of I During the period of April through June 1969, trainees were referred by the Inland Area Urban League and the Mexican-American Foundation with which the Company had agreements. Apparently the Company had no obligation, to retain a trainee for any length of time, and the training period extended for a maximum of 12 weeks. It further appears-that, if the trainee proved -satisfactory to' the Company, his employment might be continued -by the Company beyond his training period . According to credited - testimony, some 100 to 125 individuals were referred and worked for varying lengths- of time, but only 2 were retained beyond their training period. - observing Hanson as he testified. This, in addition to the fact that there is no testimony in the record that DeGennaro, or any other member of management, similarly questioned any other employee, leads the Trial Examiner to the conclusion that this aspect of Hanson's testimony cannot be credited. - Gene Tedrick, a representative of the Union, testified that he and another union representative arrived ' at the plant "approximately 5 or 10 minutes before the shift changed at the plant," to pass out union, literature and authorization cards. It appears that the "shift change" he was referring to was the end of the workday (which is at 4:30). Hanson testified that "some time after 4 o'clock that day," June 3, a foreman by the name of Bob,, ostensibly Kent, spoke to him and two other employees about the activity of the union representatives. His testimony with respect to what Kent stated is as follows: Well, he came up and said to us that there were some union men outside, meaning outside the plant, and he said they were handing out leaflets, and he told us not to take any; and he said we should tell them we didn't want any either. He also testified to further statements by Kent which testimony is as follows: In particular I- can't recall whether it was after the response of Tom or before, but he did say what I just started to say. He said that with unions you didn't get as many. benefits than with the company alone without a union; and he said that after you paid your union dues you wouldn't be making as much money as you could be without paying the union dues and just being a worker. , Although Kent was called as a witness, he was not questioned about this testimony of Hanson. Therefore, Hanson's testimony is credited. -It appears from the record, however, that neither of the DeGennaros learned about the union literature which was being passed out by the two union representatives until after-, 4:30. Therefore, it is concluded that Kent's statements cannot, be- attributed to top management. It is not contended by General Counsel that the above-credited testimony - of Hanson would support a violation of Section 8(aXl) of the Act,4 and, in view of the finding that the statement about not accepting union literature cannot be attributed to top -management, his testimony will not support a finding of unionanimus on the part of management. There is nothing else in the record which would tend to support such a finding. As the employees left the plant at the end of the workday on June 3 the union representatives handed them union literature and authorization cards. S. DeGennaro testified that he observed the distribution of union leaflets and ,cards, and that "everybody was grabbing them." 5 Among 2 It should be noted that he is frequently referred to in therecord as "Pop „ 3 By deposition taken October 2, 1969, before a notary public, at which time he was examined by counsel for the General Counsel and cross- examined by counsel for the Respondent. 4 In any event, no purpose would be served in determining whether Kent's statements were coercive, since not only was there no allegation in the complaint with respect thereto, but also it cannot be said that the incident was fully litigated. - ,5 There is - no allegation of a violation of the Act with--respect to his (Continued) 136 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the employees who received the material from the representatives were the five alleged discriminatees. 6 Near the end of the following workday, June 4, each of the five was given anotice of his termination and his paycheck. - It. is the General Counsel's contention that they- were terminated "because they engaged in union/or protected concerted activity, or because Respondent believed them to be so engaged; or, in the alternative, that Respondent knew of union activity in its plant and discharged these five employees in order to frustrate such activity." General Counsel argues in his brief that his contentions are supported by'the following: "(1) Respondent's knowledge of union -activity at its plant, prior to the decision to discharge these employees; (2) the timing of the discharges; and (3) the inconsistencies in and unbelievability of Respondent's alleged economic reasons for the termina- tions." Respondent's Knowledge of Union Activity K. Akin an taiked to other employees about the desirability of having a union during breaks and at various employees' homes, including their own.`K. Akin testified that the employees engaged in a "debate about the Union" by writing unsigned messages on the bathroom wall for or against the Union. S. DeGennaro testified that he had seen the messages. There is nothing in the record, however, to indicate that management had knowledge of which employees were responsible for such messages. There is nothing in the record to indicate that M. Akin, Young, and Jenkins engaged in any activity with respect to union representation other than testimony about a discussion in which the latter two participated during the lunchbreak on June 3. K. Akin I testified that there was a "meeting" ` at lunchtime in which he participated, along with Brown, Jenkins, Young, and "at least" two other employees at which there was discussion about the Union. Brown testified to a "meeting" at lunchtime on June 3 at which the Union was discussed, but according to him the only other persons present were Young and Jenkins. Young's testimony about a discussion during the lunchbreak on June 3 apparently corroborates that" of Brown in that he states that Jenkins and Brown were present, but makes no mention of K. Akin or any others' being present. On the other hand, Jenkins testified that K. Akin, Young, Brown, and he participated in the discussion during lunch on June 3. The above is a summary of all of the evidence in the record of union activity, or protected, concerted activity, on the part of employees., As above indicated, there is no testimony that M. Akin attended the June 3 "meeting," but observation of the distribution, and the record would not support such a finding. His testimony is credited that-he was working at the time in the loading area. 6 It does not appear that Respondent perceived that there was any notable difference in the conduct of the various employees in receiving the material from the conduct of any of the alleged discriminatees. Although Jenkins testified that he stopped to talk to one of the representatives for 10 to 15 minutes, it is noted that in his pretrial statement he estimated it to be `for a couple of minutes." However, the Trial Examiner does not consider that his conversation with the representative was a factor in his discharge. 7 General Counsel contends that knowledge can be-imputed under the he did testify that he lunched with K. Akin and Brown during his previous period of employment in April. There is nothing in the record which would afford a basis for finding that management hadany specific knowledge of the above outlined activity on the part of any particular employee including the five alleged -discriminatees.7 As-to the contradictions in the testimony of General Counsel's witnesses with respect to the June 3 lunch "meeting," while they raise some doubts as to the credibility of some of said witnesses, it, is concluded that Jenkins and `Young -did engage in a discussion about the Union with-Brown and possibly also K. Akin, but there is no basis for finding-that management had any knowledge of their doing so, or even that they had lunch together. - The Timing of the Discharges At first blush, the number of the discharges and the short term of employment of three of the alleged discriminatees cast some suspicion on the motive of the' discharges. All five of the alleged discrim.inatees were'' discharged on the same day (just 1 day after the union letter had been received and the union representatives had distributed union literature). Furthermore, three of the alleged discriminatees were discharged after only 2 days of employments An examination of the employment records of the Respondent indicates, however, that neither the number of the discharges on June 4 nor the short term of employment of three of the alleged discrimii atees was novel. In addition to the five alleged discriminatees, two others were discharged on the same day. Therefore, there was a total of seven discharged on June 4. This number, however, is =surpassed by the number of discharges on-March 27, 1969. On that day 12 people were discharged. As to the termination of the three alleged discriminatees after only 2 days of employment, it is noted that during the months of March, April, and May, at least seven people were discharged after only 1 to 3 days of employment. K. Akin, as an example, was laid off after only 1 day of employment in March. S. DeGennaro credibly testified that, the Respondent's business was sporadic: This, in addition to the apparent difficulty the Respondent had in finding competent employees among the trainees, would account for the great turnover in the employment. The record contains an exhibit setting forth the employees who were terminated or who quit during the months of March, April, May,'and June.9 This exhibit discloses that, in March, 26 people were either terminated or quit (23 were discharged and 3 quit); in April, 16 were terminated or quit (10 were terminated and 6 quit); in May, 127 were terminated or quit (7 were-terminated and 20 quit); and in June, 26 were terminated or quit (21 were "small plant" doctrine, this contention is considered hereinbelow. 8 Although M. Akin, Jenkins, and Young had started work on June 3 and were discharged on June 4, M. Akin had worked for the Respondent in April. He had quit his job and was rehired on the morning of June 3. The other two were employed on June 2 and reported for their first day of work on June 3. 9 Resp. Exh. 3. It is noted that in some cases the dates in this exhibit do not fall exactly within the month to which they are ascribed , but may extend into either the previous month or into early in the succeeding month. However, these inaccuracies do not affect the validity of the conclusion drawn from said exhibit. TRAVEL QUEEN COACHES, INC. 137 terminated and 5 quit). These figures demonstrate the large amount and great rapidity of the turnover of Respondent's work force. Thus, it is concluded, that no significance can be attributed to the fact that seven people were terminated on June 4 (of which five were the alleged discriminatees) or to the fact that three of the alleged discriminatees were discharged only after 2 days of employment. Reasons for'Discharges Advanced by Respondent It is General Counsel's position, in essence, that the reasons advanced by Respondent for the discharge of the five alleged' discriminatees were pretextual and should not be credited: On the other hand, the Respondent contends, in essence, -that there was a decline in business which motivated- the discharges and that it selected `said employees because of their poor work performance. The issue raised by these -opposing contentions is twofold in nature: first, whether -or not there was a diminution in Respondent's business at the time; and second, whether the selection of the five alleged discriminatees was based on specious reasons. S. DeGennaro testified that on June 2 he told his father that because of the decline in business they would have to lay off 8 to 10 empIoyees.1O He further testified that, on June 2, Respondent received from a dealer, Paul Alexan- der; cancellation of orders for seven or eight trailers (which amounted to about 25 percent of the total production in June). This testimony is credited. The record discloses that there was a considerable downward trend in Respondent's production which was reflected also in a similardownward trend in the number of its employees. A survey of its production records discloses that -Respondent produced 71 units in January, 120 in February, 105 in March, 60 in April, 41 in May, and 32 in June. Although, the summaries of the employment records are not totally .accurate, they are apparently substantially correct", and reflect- the following numbers of employees during the months preceding and following the discharges; in March, there were 69 employees; in April, 76; in May, 55; in June, 41; in July, 31; and in August, 27. Therefore, it is concluded that Respondent's contention that the amount of its business was declining at the time material herein is substantially supported by the evidence. All of the alleged discriminatees were trainees with the exception of Brown. Brown was employed from February 18, 1969, to June 4, 1969. M. Akin was first employed on April 16, but quit on April 25, and was subsequently rehired on June 3. K. Akin was employed for 1 day in the middle of March and was laid off. He was rehired on April 19 and worked until June 4. Both Jenkins and Young were hired on June 2 and worked on June 3 and 4. A considerable amount of testimony was elicited from Respondent's witnesses as to faults in the work perform- ance of the five alleged discriminatees, and, likewise, a considerable amount of testimony was elicited from the alleged discriminatees which, in a large measure, contra- dicts the testimony of Respondent's witnesses. Neither the testimony of all of Respondent's, witnesses nor of all of the five alleged discriminatees can be wholly credited. In view of the large turnover of employees, the Trial Examiner is of the opinion that DeGennaro, his son, and, to a lesser extent, Kent could not have remembered all the details to which they testified of the work performance of the various employees. It is found that their testimony of the work performance of the alleged discriminatees is not wholly accurate and may have been based `on faulty recollection (which is understandable in'the circumstances). On the other hand, the Trial Examiner does credit the testimony of Respondent witnesses John Williams (who testified as to the poor work performance of Young and K. Akin), John Ramboz (who testified as to the poor work performance of Young and K. Akin), Janet Brayer (who testified as to the poor work performance of M. Akin), and Harvey Harrison (who testified as to the poor work performance of M. Akin). These witnesses were convincing, and, as employees who worked alongside the alleged discriminatees they had a better opportunity, than did top management, of observing the -caliber of their work- and remembering the details. - An analysis of the testimony of DeGennaro,-his son, and Kent, as contrasted with the testimony of the alleged discriminatees, leads the Trial Examiner to the conclusion that, while the three members of management may not have observed all of the faults they ascribed' to the alleged discriminatees, the alleged discriminatees were not as guiltless of any faults as their testimony tended to indicate. No purpose would be served in making findings of the details with respect to the testimony as to which faults were or were not observed by management, or reported to them by other employees, inasmuch as the Trial Examiner credits the testimony of the DeGennaros that they selected the five alleged discriminatees for termination at that time because they were aware that they were, or believed them to be, unsatisfactory employees. Following is a discussion of other matters which are raised by General Counsel which he advances as factors which should contribute to arriving at a conclusion that the discharges were discriminatorily motivated. ' Although Brown received -three pay raises between February 18 and May 11, it appears from the credited testimony of DeGennaro that these raises were granted by a former supervisor. It is also noted that Brown and K. Akin were notified by DeGennaro on June 3 that they had been given a raise (which was effective June 2). It appears that they were told of the raises prior to the determination that they would be terminated. It is concluded that the determination was made some time later that day. DeGennaro- credibly testified that raises were given, not only to reward good performance, but also to encourage a poor performer to improve. He also credibly testified that it was not unusual to discharge an employee shortly after giving him a raise. This testimony is corroborated by the records which disclose that employee Jean Gay who commenced work on May 27 received a comparatively large raise of 25 cents per hour on June 2 and was discharged on June 3. Other 10 The record discloses that besides the seven employees who were 11 There are some inaccuracies as to dates, but they do not affect the discharged on June 4, an employee was discharged on June 2, and another correctness of the downward trend illustrated on June 3, making a total of nine. 138 DECISIONS OF NATIONAL LABOR RELATIONS BOARD examples of discharges' shortly after raises (also in the month of June) are the following: Leon Broussard, who commenced his employment on May 26, was discharged on June 12 after receiving a pay raise of 10 cents on June 2; Rowland LaHeist, who commenced his employment on May 29, and was discharged on June 20, also received a pay raise of 10. cents on June 2; and John Gonzales, who commenced-, his employment on May 27 and was dis- charged on June 19, also received a pay raise of 10 cents on June 2. In the circumstances, it does not appear to the Trial Examiner that pay raises by Respondent are a reliable criterion for -a finding that Respondent's employees were awarded them because of good work performance. As to the inconsistencies between the reasons for discharge given to the employees and noted in the records of the Company, it appears that they were the result of carelessness and the loose methods by which such notations were made and cannot be considered as a basis for finding the reason or, reasons given as suspect. Charles Evans, a representative of the'Urban League, testified that DeGennaro told him that Jenkins and Young had voluntarily quit which testimony was denied by DeGennaro. The denial is credited. Evans had no independent recollection, but was,testifying from forms which he had prepared and DeGennaro had signed 12 which indicated that the two had quit. In addition to the fact that Evans had no independent recollection, it is noted that the forms; also indicated that the two were guilty of poor -attendance (although they were only employed 2 days and were at work both days), and that they could not adjust to-training or work: Concluding Findings, , In summary, it has been found hereinabove that there is no basis for concluding that the Respondent harbored any hostility toward the Union; that, of the five alleged discriminatees, only two, Brown and K. Akin, engaged in any prounion, activity; that the Respondent did have an economic reason for the discharges because of the decline in its business; that the reasons advanced by Respondent for selecting the five alleged discriminatees for termination among the nine who were terminated about the same time (one on June 2,, one on June 3, and seven on June 4) were not specious;' that neither the number of discharges at the time nor'the termination of three of the alleged discrimina- tees after only 2 days of employment was unusual 12 It appears that DeGennaro signed the forms without examining them. 13 The citations of the General Counsel are as-follows: `National Paper Co., 102 NLRB 1509,1572-1573 (67 employees). See also, Century Lumber Co., 168 NLRB No 36; Tucker Aluminum Products, Inc., 137 NLRB 1090, according to Respondent's past employment practices; and that there is no specific evidence that Respondent had knowledge of the union activity, or attitude toward the Union, of any of the alleged discriminatees. With respect to the matter of such knowledge, the General Counsel contends that it should be imputed based on the "small plant" doctrine citing several cases.13 The appropriateness of applying said doctrine is generally based on an analysis of the record as a whole. Based on the record as a whole, particularly the findings hereinabove summa- rized, it does not appear appropriate to impute such knowledge to the Respondent 14 Also, there is no basis for finding that Respondent had reasonable cause to believe or suspect that the alleged discriminatees engaged in union or protected, concerted activity. The General Counsel ad- vances as an alternative argument that Respondent, having knowledge of the union activity in its plant, discharged the five employees, in order to "frustrate" union, activity. In view of the above findings, particularly. that in light of the past employment practices of Respondent. there was nothing novel in the number of employees discharged or in the short term of employment of three of the alleged discriminatees, it does not appear that there is any basis for finding that the five (of the nine employees who were discharged on or about the same time) were discharged to frustrate union activity. On the basis of the foregoing facts and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Respondent is an employer, engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. The General Counsel has failed to prove by a preponderance of the evidence that K. Akin,' -M. Akin, David Jenkins, Willie Young, and Ed Brown, or any of them, were discriminatorily, discharged- in violation of Section 8(a)(3) and (1) of the Act. RECOMMENDED ORDER The, complaint should be, and is hereby, dismissed in its entirety. 1095; Wiese Plow Welding Co., Inc, 123 NLRB 616, 618." 14 Cf. Wiese Plow Welding Co., Inc., 123 NLRB 616, 618. It is noted that many of the factors on which the Board relied in imputing knowledge in the cited case are lacking in the instant case.