Breidner Bros. Garage

500 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Lebud Garage, Inc., d/b/a Breidner Bros. Garage and King Harper. Case 2-CA-13007 FINDINGS OF FACT I. JURISDICTION AND LABOR ORGANIZATION January 18, 1974 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS On September 18, 1973, Administrative Law Judge Benjamin B. Lipton issued the attached Decision in this proceeding. Thereafter, Respondent filed excep- tions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings,' and conclusions 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 Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge and hereby orders that Respondent, Lebud Garage, Inc., d/b/a Breidner Bros. Garage, New York, New York, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. 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's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect Standard Dry Wall Products, Inc, 91 NLRB 544, enfd 188 F 2d 362 (C A 3, 1951 ) We have carefully examined the record and find no basis for reversing his findings DECISION STATEMENT OF THE CASE' BENJAMIN B. LIPTON, Administrative Law Judge: A hearing in this case was held on August 21, 1973,2 in New York, New York, upon a complaint by the General Counsel3 alleging violations of Section 8(a)(1) and (3) of the National Labor Relations Act, as amended. The parties argued orally on the record and waived the filing of briefs. Upon the entire record, and from my observation of the demeanor of the witnesses, I make the following: I Rejan appeared as an officer of the corporation He testified that he is "the owner" of Respondent A law firm which had represented Respondent withdrew by mutual consent prior to this hearing An answer to the instant complaint filed by the law firm was adopted by Rejan at the hearing Respondent operates a garage in the Borough of Bronx, New York City, where it is engaged in vehicle storage, parking, and related services, such as vehicle cleaning and incidental sale of gasoline to the general public. At all times material , Respondent has been a member of the Bronx County Garage Owners Association , herein called the Association , which has members consisting of employ- ers in New York City who are engaged in the same business as Respondent. On behalf of its employer-mem- bers, the Association negotiates and executes collective- bargaining agreements with labor organizations , including Local 272, Garage Employees Union International Broth- erhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, herein called Local 272 or the Union. During the year preceding issuance of the complaint, the employer-members of the Association derived gross in- comes from their respective operations valued in excess of $500,000, and purchased products in excess of $10,000 directly in interstate commerce or directly from firms in New York State which receive such products directly in interstate commerce . Respondent admits, and I find , that it is engaged in commerce, and that Local 272 is a labor organization, within the meaning of the Act. II. THE UNFAIR LABOR PRACTICES A. The Issues As alleged and litigated, the essential question is whether Respondent discharged King Harper because he engaged in the concerted activity of seeking to enforce the collective-bargaining contract in the protection of his rights, or more specifically, because he complained to the Union that Respondent sought to terminate him while retaining in its employ certain nonunion employees. Respondent contends that Harper was discharged for certain misconduct in the performance of his job, and that the Union sanctioned such discharge. B. The Contract Respondent is bound by an existing collective-bargain- ing agreement between the Association and Local 272. The agreement contains, inter aka, a typical 30-day union-shop provision requiring union membership by the covered employees (art. V); a hiring hall operated exclusively by the Union (art. VII); and seniority standards with preference accorded to senior employees in the event of layoffs or reductions in force (art. VIII). In addition, under "Discharges and Suspension" (art. XXIII), no employee may be laid off or discharged except forjust cause, listing certain categories of cause. And it further provides that- 3. (A) In all cases involving the discharge of an Employee, the Employer must immediately notify the 2 All dates are in 1973, except as specifically noted 3 The charge by King Harper was filed on June 12 and served on June 13, the complaint issued on July 31 208 NLRB No. 77 BREMNER BROS. GARAGE Union, in writing of his discharge and the reason therefor, and mail notice thereof to the Union. (B) With respect to discharge for cause . . . the Employer or ts Association shall give the Union at least one (1) warning notice of the specific complaint against the Employee. A notice or warning shall not be deemed compliance with this section, and no Employee shall be deemed discharged, unless such notice has been given to the Union. (C) The discharged Employee must notify the Union in writing within two (2) working days after such discharge, of his desire to appeal. Notice of appeal from discharge must be made to the Employer and the Union in writing within five (5) days of the date of notice of discharge. If the Union and the Employer are unable to agree to the settlement of any disputed discharge or layoff, the question may be referred to specified procedures for final and binding arbitration. C. The Pertinent Evidence From January 1 until his discharge on June 9, Harper worked for Respcndent as a garage attendant on night duty. He was a member of Local 272. On May 1, Gilbert Rejan for Respondent sent a letter to Howard Blatmck, business agent of the Union. The letter stated, in substance, that "due to severe loss of business I am forced to terminate the services of Mr. King Harper as of May 11." On May 11 or 14, Rejan informed Harper he was going to be laid off, with a week's notice. On May 17, Rejan told Harper that Friday, May 18, would be his last day of work. During the morning of May 18, Harper visited the Union's office. He told Blatnick he was being laid off while Respondent retained nonunion men, whom he specified as Pete Fulgoni and one Francisco (surname not supplied). Blatnick assured Harper that he would stay on the job if Respondent employed nonuinon men. Blatnick then telephoned Rejan in Harper's presence. Rejan denied that Fulgoni was still employed. As to Francisco, Rejan said it will be taken care of and attempted to explain that this man worked part time as a relief for Harper. Blatmck told Rejan that he could not lay off Harper. After the phone call, he asked Harper to do "a little spying for him" to see if there were any nonunion men on the job. Harper later reported that a nonunion man named Trotter was employed. On May 18, when Harper returned to work, Rejan approached and told him, "you ratted on me . . . . You went down to the hall and told him I had non-union men . . . . I could get you in trouble." On request of George Scheps, president of the Associa- tion, a "hardship" meeting with the Union's executive board was held on Monday, May 21. relating to Respon- dent's May I letter, supra, as a basis for laying off Harper. Nothing was raised by Respondent concerning Harper's alleged misconduct. As a result of this meeting, Harper's schedule was changed from 5 days to 4 days a week, 4 Blatnick indicated that, under the hinng hall, the Union does not refer part-time employees, except in special hardship cases. 5 From Rejan's testimony. Bruce's statement related to his observing the 501 presumably with a commensurate reduction in pay. On the same day, May 21, Blatnick called in Rejan and told him that the shop had to be kept clean of nonunion men regardless of economic reasons, that union men came first, and that he could hire nonunion men, but they have to be in the Union in 30 days. Shortly after Blatnick assumed his position with the Union in January, he and two other business agents made personal surveys of the shops covered by the union contract, among other things, to "pick up" nonunion men. He learned that Fulgoni, formerly a regular employee, was working for Respondent (2 days a week) as a "retired pensioner." Although Rejan claimed that a previous business agent of the Union had authorized the employ- ment of such a pensioner, Blatnick first obtained a "ruling" from the Union 4 and then advised Rejan that the pensioner, and all nonunion men, "had to be off the job." Blatnick testified that Rejan assured him the shop would be "cleaned up" within a period of time, by February or March, and he assumed this to be the fact. In May, he received information from Harper that Fulgoni, Francisco, and Trotter were employed as nonunion men. Respondent did not carry or report the nonunion employees on its payroll records. Rejan testified that Trotter was a customer and not an employee; that Fulgoni and Francisco were removed about the time of the "hardship" meeting on May 21, but he was not sure. About May 22, bearing this date, Blatnick received a registered letter from Rejan stating: Dear Sir: This is to inform you that I must discharge an employee, King Harper, for the following reasons: 1. Attitude towards customers with surly and rude behavior and discourteous treatment. 2. Dishonesty-failure on his part to charge cus- tomers for washing. He has repeatedly washed cars without writing up sales tickets, making his own deals with customers. This has led to strained relations. Many customers have complained to me and have stopped buying gasoline and threatened to leave the garage unless this man is removed ... . Early in June, Rejan handed Harper a copy of the above letter. He had not spoken to Harper concerning his work, at least since May 21. Harper's discharge was effected on or about June 9, following two meetings conducted by the Union regarding Rejan's letter. These meetings were attended by Blatnick, the executive board, Scheps of the Association, and Rejan. It does not appear that Harper was present. Rejan presented his charges, but had no direct knowledge of the alleged misconduct. At the second meeting, Marion Bruce, a garage employee, was brought in by Rejan to give a statement.5 At the instant hearing, in Respondent's defense, Rejan testified himself, was permitted to recall Blatnick and Harper, but offered no other witnesses. Harper firmly denied the assertions of misconduct contained and implied in Rejan's questions. Rejan testified that he received cars of customers which were dirty when parked and, at a subsequent time. appeared to have been washed 502 DECISIONS OF NATIONAL LABOR RELATIONS BOARD numerous complaints concerning Harper from customers in April and May and continuing to the time of the discharge. He saw customers' cars which were clean in the morning and which had been dirty when parked the night before, with no charge tickets made out by Harper. Several of the customers told him Harper had washed their cars. In Rejan's affidavit given to a Board agent on July 2, he averred that "The customers had denied having Harper wash the cars." Regan could give no satisfactory explana- tion for this direct conflict. In other respects, Rejan distinctly impressed me as untrustworthy and is generally not credited. D. Conclusions As of May 1, Respondent notified the Union of its intent to terminate Harper for economic reasons and, on May 17, it informed Harper of his discharge effective May 18. Harper made his appeal to the Union complaining that nonunion men were retained by Respondent. Pursuant to the contract, Harper apparently had retention rights with respect to a layoff as against nonunion employees, whether on the basis of seniority or the Union's previous and renewed requests under the union-security clause that Respondent remove such nonunion employees. In any case, Harper was engaging in a protected concerted activity and pursuing his rights under the contract .6 The Act is violated if an employee is discharged for misconduct arising out of a protected activity when it is shown, as it has been here, that the misconduct never occurred.? Indeed, the evidence reflects no reasonable basis for an honest belief by Respondent that Harper engaged in any conduct warranting discharge. On May 21, Harper's appeal was upheld by the Union. The very next day, Respondent persisted in its attempt to discharge Harper by asserting grounds of misconduct which it forwarded to the Union. Also on May 22, Respondent impliedly threatened that it would get Harper into trouble because he had "ratted" to the Union concerning the nonunion employees. I find that Harper's "ratting" or complaining to the Union on May 18 constituted a substantial motivating factor in Respondent's decision to discharge him on or about June 9, and that the alleged misconduct was dredged up as a pretext. It is no defense that the Union made no objection to such discharge. Thus, it is found that Harper was discriminatori- ly terminated because he engaged in a protected concerted activity. Accordingly, for the foregoing reasons, I conclude that Respondent violated Section 8(a)(1) and (3) of the Act, as alleged. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, I shall recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. 6 E.g, Bunney Bros Construction Co, 139 NLRB 1516 7 N L.R B v Burnup and Sims, Inc, 379 U S. 21 (1964) 8 In 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, It has been found that Respondent discharged King Harper in violation of Section 8(a)(1) and (3) of the Act. It will therefore- be recommended that Respondent offer Harper immediate and full reinstatement to his former job or, if such job no longer exists, to a substantially equivalent job, without prejudice to his seniority and other rights and privileges, and make him whole for any loss of earnings suffered by reason of the discrimination against him, by payment to him of a sum of money equal to that which he normally would have earned, absent the discrimination, less net earnings during such period, with backpay computed on a quarterly basis in the manner established in F. W. Woolworth Company, 90 NLRB 289. Backpay shall carry interest at the rate of 6 percent per annum, as set forth in Isis Plumbing & Heating Co., 138 NLRB 716. It will be further recommended that Respondent preserve and, upon request, make available to the Board, all payroll records, social security payment records, timecards, per- sonnel records and reports, and all other records necessary and useful to determine the amounts of backpay due and the rights of reinstatement under the terms of these recommendations. Upon the foregoing findings of fact, and upon the entire record, 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 discharging King Harper for engaging in protect- ed concerted activities within the meaning of Section 7 of the Act, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act. 4. By threatening reprisal against Harper for engaging in protected concerted activities, Respondent has re- strained and coerced employees in the exercise of the rights guaranteed in Section 7 of the Act, and has thereby engaged in and is engaging 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 above findings of fact, conclusions of law, and the entire record in the case, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDERS Respondent, Lebud Garage, Inc., d/b/a Breidner Bros. Garage, New York, New York, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Threatening employees with reprisal for complaining to the Union or otherwise seeking to enforce their rights 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 BREMNER BROS . GARAGE under the existing collective-bargaining agreement, or engaging in other protected concerted activities. (b) Discharging employees for engaging in protected concerted activities, as described in the foregoing para- graph, or in any other manner discriminating in regard to hire or tenure of employment, or any term or condition of employment. (c) In any like or related manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed in Section 7 of the Act, except to the extent that such rights may be affected by an agreement in conformity with Section 8(a)(3) of the Act. 2. Take the following affirmative action which is designed to effectuate the policies of the Act: (a) Offer King Harper immediate and full reinstatement to his former job or, if such job no longer exists, to a substantially equivalent job, without prejudice to his seniority or other rights and privileges, and make him whole for any loss of earnings, in the manner set forth in "The Remedy" section of the Administrative Law Judge's Decision. (b) Preserve and, upon request, make available to the Board or its agents all payroll and other records, as set forth in "The Remedy" section of this Decision. (c) Post at its garage and office in New York, New York, copies of the attached notice marked "Appendix." 9 Copies of said notice, on forms provided by the Regional Director for Region 2, shall, after being duly signed by Respondent, be posted immediately upon receipt thereof, in conspicu- ous places, and be maintained for 60 consecutive days. Reasonable steps shall be taken to ensure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director of Region 2, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. 9 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 read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a trial in which both sides had the opportunity to 503 present their evidence, the National Labor Relations Board has found that we violated the law and has ordered us to post this notice; and we intend to carry out the Order of the Board, and abide by the following: WE WILL NOT threaten you with reprisal or punish- ment of any kind because you have complained to the Union or have otherwise acted to protect your rights under the contract with the Union. WE WILL NOT discharge or lay off employees because they have complained to the Union to defend their rights under our contract with the Union, and will not discriminate against them in any manner regarding their tenure, or terms or conditions of employment, because they engage in activities which are protected under the National Labor Relations Act. WE WILL NOT in any similar manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed employees in the National Labor Relations Act, except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in Section 8(a)(3) of the Act. WE WILL offer King Harper immediate and full reinstatement to his former job or, if such job no longer exists, to a substantially equivalent job, without prejudice to his seniority or other rights and privileges, and we will pay King Harper for the earnings he lost because of the discrimination against him, with 6- percent interest. Dated By LEBUD GARAGE, INC., D/B/A BREMNER BROS. GARAGE (Employer) (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 concern- ing this notice or compliance with its provisions may be directed to the Board's Office, 36th Floor, Federal Building, 26 Federal Plaza, New York, New York 10007, Telephone 212-264-0306.