S. W. Noggle Co.

S. W. NOGGLE COMPANY S. W. Noggle Company and Mike Masonbrink. Case 17-CA-5050 October 10, 1972 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND PENELLO On June 7, 1972, Administrative Law Judge I Paul E. Weil issued the attached Decision in this pro- ceeding. Thereafter, Respondent filed exceptions and a supporting brief, and the General Counsel filed a brief in support of the Decision. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and briefs, and has decided to affirm the rulings, findings, and conclusions 2 of the Administrative Law Judge and to adopt his recommended Order.' ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that Respondent, S. W. Noggle Company, Kansas City, Missouri, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. I The title of "Trial Examiner" was changed to "Administrative Law Judge" effective August 19, 1972. 2 The Respondent has excepted to certain credibility findings made by the Administrative Law Judge . It is the Board's established policy not to overrule an Administrative Law Judge resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions were incorrect . Standard Dry Wall Products, Inc, 91 NLRB 544, enfd. 188 F.2d 362 (CA. 3). We have carefully examined the record and find no basis for reversing his findings. 3In affirming the Administrative Law Judge 's Decision that employee Mike Masonbrink's discharge was discriminatorily motivated, and hence, violated Section ,8(a)(3) of the Act, we rely, specifically, on the fact that the Respondent became alarmed because Masonbrink was attempting to stir up the employees to strike, and, accordingly, that this protected activity provid- ed the proximate cause of his discharge. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE PAUL E. WEIL, Trial Examiner: On March 2, 1972, Mike Masonbrink filed a charge with the Regional Director for Region 17 of the National Relations Board, hereinafter called the Board, alleging that S. W. Noggle Company, 609 hereinafter called Respondent, discharged Masonbrink on account of his union activity. On March 29, 1972, the said Regional Director issued a complaint and notice of hearing alleging that Respondent threatened to terminate and ter- minated Masonbrink because of his union activities in vio- lation of Section 8(a)(1) and (3) of the Act. By its duly filed answer Respondent admitted the jurisdictional allegations of the complaint, but denied the commission of any unfair labor practice. The matter came on for hearing before me on May 11, 1972. All parties were present or represented by counsel, and had an opportunity to call and examine or cross-examine witnesses and to adduce relevant material evidence to argue orally on the record and to file briefs. The parties waived oral argument. Briefs have been received from Respondent and the General Counsel. On the record as a whole, and in contemplation of the briefs, I make the following: FINDINGS OF FACT 1. BUSINESS OF RESPONDENT Respondent is a Missouri corporation engaged in Kan- sas City, Missouri, in business as a wholesale bakery sup- plier. Respondent annually sells and distributes products in excess of $50,000 directly to customers located outside the State of Missouri . Respondent is an employer engaged in commerce and in an industry affecting commerce within the meaning of Section 2(6) and (7) of the Act. II THE LABOR ORGANIZATION INVOLVED Department Store, Package, Grocery, Paperhouse, Li- quor and Meat Drivers, Helpers and Warehousemen Local No. 955, affiliated with International Brotherhood of Team- sters, Chauffeurs, Warehousemen of America, hereinafter called the Union, is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES Respondent is a small operation having several ware- housemen and a truckdriver. Masonbrink, the Charging Party, was employed as a part-time driver-warehouseman from October 1969 to May 1970, at which time he went into the Coast Guard. After his discharge from the Coast Guard in June 1971 Masonbrink returned as a full-time local truck- driver in July 1971. At his request he was reassigned in November 1971 to a job in the warehouse of Respondent. The Union represented a unit consisting of the truck- driver and the warehousemen, and has represented the unit for 30 years. Their contract expired October 1, 1971. In the middle of November I the three employees-two ware- housemen and one truckdriver-from Respondent went to the union hall to ascertain the status of the negotiations. Apparently at the meeting Masonbrink was vociferous in his demand that the Union strike because of the failure of the Employer to agree to a contract . The Union's business agent reminded him that if he went on strike the Company I All dates hereinafter are in the year 1971. 199 NLRB No. 107 610 DECISIONS OF NATIONAL LABOR RELATIONS BOARD could hire somebody to do his job, to which Masonbrink answered that he would not just stand and let someone take his job, that he would not let them cross the line. The busi- ness agent told him that if he did anything wrong, like hitting someone on the picket line, the Teamsters would not back him. Apparently Masonbrink at this point answered in vulgar terms expressing his dissatisfaction with the Union and said no more at the meeting. As a result of the meeting, the employees decided to give the Respondent more time before striking, which Masonbrink concluded was 2 weeks. After the union meeting Williard Bramer, who was the lead- man at a union meeting, told the manager, Thomas Turner, that Masonbrink was talking to the men about going out on strike, and that he had brought it up at a union meeting.2 Masonbrink had originally been hired at the request of his sister, Vickie Harrison. When he returned from the service she spoke to Turner, who thereupon called Mason- brink and told him that his job was still open. About No- vember 29, Turner stopped Vickie in the hall between the office and the warehouse and told her that Respondent would have to do something about her brother because he had the men upset about going on strike. She answered that she knew that he was upset because the Employer had not negotiated a contract or assigned one, to which Turner an- swered that he could not help that, he still had to get his orders out. Shortly after this incident Vickie mentioned to Mason- brink what Turner had said to her. On December 1, while Masonbrink was working on an order in the warehouse, Turner entered the warehouse. Masonbrink called him by name and said, "I have got something to talk to you about." Turner stopped and Masonbrink went up and said to him, "I heard, you know, you saying something to my sister. From now on, if you have something to say to me, say it to me and not to her." At this point the stories of Masonbrink, Turner, and other witnesses diverge. According to Mason- brink, Turner said that Masonbrink was not doing his work, and Masonbrink answered that he did as much work as anyone else around. Turner then said, "If you don't like it, why don't you quit." Masonbrink said, "If you are not satisfied with my work, you can fire me." Turner again suggested Masonbrink quit, and Masonbrink refused to do so, whereupon Turner discharged him. According to Turner's version, he went into the ware- house when he ran into Masonbrink. Masonbrink said, "Why don't you talk to me instead of my sister," to which Turner answered, "I have some rush orders here which must be out." Masonbrink answered that he was working on an order, and Turner told him that the orders that he had brought out must go out. To this Masonbrink answered, "In that case, why don't you fill them yourself?" Turner said, "Mike, I don't believe you like me." Turner continued, "Why don't you quit?" Mike said, "I don't want to quit. Why don't you fire me?" Turner answered, "I don't fire 2 Turner at first denied being told this by Bramer. However , on being confronted with his affidavit, he recalled this incident and recalled stating in the affidavit that he was bothered to hear that talk because there had been very few union problems over the years at the Company many people." Masonbrink answered, "I want to be fired." Whereupon Turner fired him. Ralph Roberts, who has been employed by Respon- dent for 25 years, and became leadman when Bramer left Respondent's employ sometime early in 1972, testified that he was in the middle of the warehouse and overheard the conversation between Turner and Mike. According to his testimony, Masonbrink started the conversation saying, "Mr. Turner, if you have anything to say to me, say it to me and not my little sister," to which Turner answered, "I want you to fill this order." Masonbrink answered, " I am working on an order." Turner replied, "We have to get these country orders out." Masonbrink said, "I am working on them as fast as I can, and if you can get them out faster, do it yourself." At this point, according to Roberts, Masonbrink said, "Mr. Turner, I don't believe you like me." Turner answered, "If you are unhappy with your job, why don't you quit." Masonbrink said, "If you don't like my work, fire me." This is repeated two or three times and finally Turner said, "I don't want to fire you, but if you insist, you are fired." Orville Johnson, who had been employed for 13 years by Respondent as a maintenance man, testified that he overheard part of the conversation, that he heard Mason- brink tell Turner that if he didn't like what he was doing, he should fire him. Turner answered that he did not want to fire him. Masonbrink repeated that if Turner did not like what he was doing, he would have to fire him, and Turner said, "If that is what you want, that is what we will do." I do not credit Turner. In several instances his testimo- ny before me was different from his testimony in an affida- vit taken March 9. Before me Turner stated that he had orders in his hand that he was anxious for Masonbrink to fill promptly. In his affidavit he stated that he went back to the warehouse area to ask Masonbrink to do something, but did not recall what it was. In a discharge letter which he wrote on March 21, he stated, "I requested him to fill an order." In his direct testimony Turner did not mention the conversation with Vickie. Asked on cross-examination whether it was true that he told her that he was going to have to do something about Masonbrink talking to the men, about going on strike, he answered, "I told Vickie I think she should talk to Mike and settle him down." However, in his affidavit on March 9, Turner stated, "I spoke to Masonbrink's sister Vickie only after I fired him, and then only to tell her what had happened." I mentioned above that Turner first denied that Bramer had talked to him about attending the union meeting and stated that he did not recall either that Bramer had told him that Masonbrink had been talking to the employees about going out on strike or that Bramer said that Masonbrink had brought the matter up at a union meeting. However, when confronted with his affidavit he admitted this matter. While he testified with regard to the argument at which he discharged Masonbrink, as though it were clear in his mind, I have no reason to believe it was any more clear in his mind than these other incidents. Whether he was deliberately shaping his testimo- ny to support what he believes to be the case or whether his problem is one of memory, I have no need to determine. I S. W. NOGGLE COMPANY 611 do not credit his accounts of the argument with Mason- brink. I conclude that the argument took place substantially as reported by Masonbrink, and that it had nothing to do with any present demands by Turner that Masonbrink fill any rush orders which he had taken out there. I believe that this element was consciously or unconsciously interpolated into the story as justification for the intemperate action of Turner's discharging Masonbrink. Respondent argues that Masonbrink, who admitted that he had stated in the shop on more than one occasion that he would never quit, but that he would not mind being 'fired because the "rocking chair money" he would then have a right to, would be almost as much as he was making, deliberately goaded Turner into discharging him so that he could "draw rocking chair money." Masonbrink testified that indeed he has not, up to the time of the trial, drawn any unemployment compensation. I believe that Masonbrink did not deliberately goad Turner into discharging him in an attempt to be fired, but I do not believe that he cared whether he was fired or not. I think that Turner, who had put up with quite a bit frpm Masonbrink, who was far from being a model employee, was prepared to ride along with him, probably because of his sister, until he found that Masonbrink was stirring the employees up to strike, in the situation where an employer might very well expect that a strike would ensue 6 weeks after the expiration of the con- tract. I believe that this entered, at least in part, into Turner's decision to discharge Masonbrink, and it is his realization of that fact that has caused him to shape his testimony defensively as I found above. If the decision of Respondent to any extent resulted from the union activities of Masonbrink, it violates Section 8(a)(3).3 I so find in this case, and I also find that Turner's statement to Vickie con- stituted a violation of Section 8(a)(1) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with the Respondent's oper- ations described in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States , and tend to lead to labor disputes burdening and obstructing commerce and the free flow thereof. desist therefrom and take affirmative action designed to effectuate the policies of the Act. It has been found that Respondent unlawfully discharged Buddy Mike Mason- brink. It will be recommended that Respondent offer him immediate and full reinstatement to his former position or, in the event this position is no longer available, to a substan- tially equivalent position, without prejudice to his seniority or other rights and privileges, and make him whole for any loss of earnings suffered by him as a result of the unlawful discharge by payment to him of a sum of money equal to that which he would normally have earned from the date of his discharge to the date of Respondent's offer of rein- statement, less net earnings during said period with backpay computed on a quarterly basis in the manner established by the Board in F. W. Woolworth Company, 90 NLRB 289. Backpay shall carry interest at a rate of 6 percent per annum as set forth in Isis Plumbing & Heating Co., 138 NLRB 716. Upon the foregoing findings and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Respondent is 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. By discriminatorily discharging Buddy Mike Mason- brink, thereby discouraging membership in the Union, Re- spondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(3) of the Act. 4. By the threat to take action against Masonbrink because of his union activity, and by discharging him, Re- spondent has restrained and coerced employees in the exer- cise of the rights protected to them by Section 7 of the Act, and has engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. Upon the foregoing findings of fact, conclusions of law, and the entire record in this case, and pursuant to Section 10(c) of the Act, I hereby issue the following recom- mended. V THE REMEDY Having found that Respondent engaged in certain unfair labor practices I shall recommend that it cease and 3 Respondent argues on the authority of N L.RB. v. Billen Shoe Co, 397 F.2d 801 (C.A. 1, 1968), and N.L R.B. v Lowell Sun Publishing Co, 320 F.2d 835 (CA. 1, 1968), and other similar decisions, that where there are more than one permissible motive for discharge it is for the Board to determine why the company rejected the permissible motive and acted on the basis of impermissible motives. As I see the situation herein, these cases miss the point. As Respondent pointed out in its brief and at the trial , the record of Masonbrink's insubordinate attitude was a long one , and the incident that allegedly gave rise to the discharge was somewhat less than the most drastic, yet these considerations did not motivate Respondent to discharge Mason- brink until Turner was alarmed at the fact that Masonbrink was attempting to stir the men up to strike . Accordingly the protected activity provided the proximate cause of the discharge. ORDER4 Respondent, S. W. Noggle Company, Kansas City, Missouri, its officers, agents, successors and assigns, shall: 1. Cease and desist from: (a) Discharging employees or otherwise discriminating in any manner with respect to their tenure of employment or any other term or condition of employment because they engaged in concerted activity, or any activity on behalf of a labor organization. (b) Threatening that employees would be disciplined because they engaged in concerted or union activities. 4In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec . 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. 612 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (c) In any like or related manner interfering with, re- straining, or coercing its employees in the exercise of their rights to self-organization, to form labor organizations, to join or assist any labor organization, to bargain collectively through representatives of their own choosing , or to engage in any other concerted activity for the purposes of collective bargaining or other mutual aid or protection , or to refrain from any or all such activities, except to the extent that such rights might be affected by an agreement to require mem- bership in a labor organization as a condition of employ- ment as authorized in Section 8(a)(3) of the Act as modified by the Labor-Management Reporting and Disclosure Act of 1959. 2. Take the following affirmative action designed to effectuate the policies of the Act. (a) Offer to Buddy Mike Masonbrink immediate and full reinstatement to his former job or, if this job no longer exists, to a substantially equivalent job, without prejudice to his seniority or other rights and privileges previously en- joyed by him, and make him whole for any loss of pay he may have suffered by reason of Respondent's discrimina- tion against him, with interest at the rate of 6 percent, as provided in the section above entitled "The Remedy." (b) Post at its plant in Kansas City, Missouri, copies of the attached notice marked "Appendix." 5 Copies of said notice, on forms provided by the Regional Director for Region 17, after being duly signed by Respondent's author- ized representative, shall be posted immediately upon re- ceipt thereof, and be maintained for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to ensure that said no- tices are not altered, defaced, or covered by any other mate- rial. (c) Notify the Regional Director for Region 17, in writ- ing, within 20 days from the date of the receipt of this Decision, what steps the Respondent has taken to comply herewith.6 3 In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall be changed to read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." 6 In the event that this recommended Order is adopted by the Board after exceptions have been filed, this provision shall be modified to read : "Notify the Regional Director for Region 17, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith." APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a trial at which all sides had a chance to give evidence, the National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post this notice and we intend to carry out the Order of the Board and abide by the following: The Act gives all employees these rights: To engage in self-organization To form, join, or help unions To bargain collectively through representatives of their choosing To act together for collective bargaining or oth- er mutual aid or protection To refrain from any or all of these things. WE WILL NOT do anything that interferes with or restrains or coerces employees with respect to these rights. WE WILL NOT discriminate against our employees for engaging in activities on behalf of the Union or on their own behalf. WE WILL NOT threaten to discipline employees for engaging in union activities. WE WILL reinstate Mike Masonbrink to his former job or, if that job no longer exists, to a substantially equivalent job, and make him whole for any pay he lost because of our discrimination against him. S. W. NOGGLE COMPANY (Employer) Dated By (Representative) (Title) This is an official notice and must not be defaced by anyone This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compliance with its provisions may be direct- ed to the Board's Office, 610 Federal Building, 601 East 12th Street, Kansas City, Missouri 64106, Telephone 816- 374-5181.