Lake Shore, Inc.

598 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Lake Shore, Inc. and Operating Engineers, Local Union No. 3. Cases 27-CA-11089 and 27-RC-4743 February 14, 1975 DECISION, ORIIER, AND DIRECTION BY MEMBERS JENKINS, KENNEDY, AND PENELLO On October 11, 1974, Administrative Law Judge Martin S. Bennett issued the attached Decision in this proceeding. Thereafter, Respondent filed excep- tions and a supporting brief. General Counsel and Charging Party filed answering briefs. 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 briefs 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, Lake Shore, Inc., Salt Lake City, Utah, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. DIRECTION It is hereby directed that, as part of the investiga- tion to ascertain a representative for the purposes of collective bargaining with the Employer, the Region- al Director for Region 27 shall, pursuant to the Board's Rules and Regulations, within 10 days from the date of this Direction, open and count the ballots of John Stocker and Henry Smith, Jr., and, thereaf- ter, prepare and cause to be served on the parties a revised tally of ballots, including therein the count of said ballots, upon the basis of which the Regional Director shall issue the appropriate certification. DECISION STATEMENT OF THE CASE MARTIN S. BENNETT, Administrative Law Judge: This consolidated matter was heard at Salt Lake City, Utah, on September 4 and 5, 1974. The complaint in the unfair labor practice case, issued May 20 and based upon a charge filed March 29, 1974, by Operating Engineers, Local Union No. 3, herein the Union, alleges that Respondent, Lake Shore, Inc., has engaged in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act by discharging John Stocker and Henry Smith, Jr., on March 15, 1974. Consolidated with the foregoing was a hearing in Case 27-RC-4743 on challenges to the ballots of Stocker and Smith in an election conducted on May 9, 1974. Therein, seven votes were cast for the Union and eight against it, with two challenges, namely Stocker and Smith previously terminated, therefore being determinative of the results of the election. Briefs have been submitted by the General Counsel and Respondent. Upon the entire record in the case, and from my observation of the witnesses, I make the following: FINDINGS OF FACT I. JURISDICTIONAL FINDINGS Respondent, Lake Shore, Inc., is a Michigan corpora- tion, which, inter alia, maintains a plant at Salt Lake City, Utah, where it is engaged in the distribution and service of heavy construction equipment. It annually purchases and receives goods and materials valued in excess of $50,000 directly from points outside the State of Utah. I find that the operations of Respondent affect commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED Operating Engineers, Local Union No. 3, is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. Introduction; the Issue The sole unfair labor practice issue herein involves the discharges of John Stocker and Henry Smith, Jr., on March 15, 1974. The General Counsel alleges that this resulted from their union organizational activities . Respon- dent contends that there was a reduction in force because of economic factors and that the two men were chosen because of unsatisfactory performance of their duties and, further, in the case of Stocker, because he had a drinking problem. Initially, it is noted that both were chosen out of seniority. B. Sequence of Events John Stocker entered the employ of Respondent in April 1971, almost 3 years prior to his discharge. His coworkers, being aware of his prior membership in a labor organiza- tion and being dissatisfied with conditions of employment, urged him to contact the Union; according to Wayne Lassiter, business representative of the Union, Stocker telephoned him on Monday, March 11, and asked Lassiter to meet with the employees. Such a meeting was arranged for the evening of Thursday, March 14. Coworker Henry Smith, Jr., according to Lassiter, telephoned Lassiter on March 11 to the same objective. Both Smith and Stocker actively solicited employees to join 216 NLRB No. 105 LAKE SHORE, INC. 599 the Union over the next several days . Indeed, Smith personally arranged carpools to transport workers to the March 14 meeting shortly after the close of work that day. Some 14 of approximately 17 service department employ- ees attended the meeting and all signed cards. Respondent, in its able brief, does not dispute the fact of the union activities of the two alleged discriminatees and indeed concedes the fact. As Stocker testified, he repeated- ly spoke to employees during that week concerning the benefits of unionization. Smith, hired in June 1973, similarly became strongly interested in unionization. As he testified, he had previously been a member of the Union and acted very directly in concert with Stocker in organizing carpools, as stated, to get the employees to the union hall on March 14. According to Smith, and I so find, he and Stocker solicited the interest of three -fourths of the membership in the shop and some were solicited on several occasions during this period of several days. The two men were discharged on the morning of Friday, March 15, without advance notice. Respondent contends that economic conditions dictated a reduction in force and that these two were selected, after they and two others were considered for termination, and that the reason was their lack of competency. As noted, they were chosen out of seniority. For example, Smith, a class A mechanic, as he uncontrovertibly testified, was 9th in seniority out of 17 on such a list posted by Respondent in the plant. As for Stocker, he was 3d in seniority of the total complement of 17 mechanics and, of the 4 who were designated as field servicemen and generally worked in the field , he was 2d in seniority. He had been assigned to work in the field for approximately 1-1/2 years before his discharge. C. Analysis and Conclusions There are a number of factors which lead me to conclude that the evidence preponderates in favor of the position of the General Counsel and against that of Respondent. (1) Respondent has adduced evidence that because of poor profits at its Salt Lake City operation, management decided as early as January 1974 that if sales forecasts were not met, payroll expenses would have to be reduced. Following several terminations in other departments, it was concluded on February 28 that two employees in the service department were to be eliminated . Four were considered and two of these were Stocker and Smith. Service Manager Allen Barney claimed that he advised President Leon Angros on March 7 that Stocker and Smith were the two and formalized this in a -memo to Angros dated March 8. Significantly, this memo stated only that two unnamed were to be terminated on March 15 and did not provide names. (2) Despite all this purported planning and selection of the two men to be terminated, they first learned of this decision on the morning of March 15 and, significantly, were paid off in cash. I find it difficult to believe that an interstate operation of this nature, if the move had been planned so long in advance, would not have paid them off by check. Evidence by Respondent that unexpected quits had been paid off in cash on other occasions does not meet this issue. Respondent's claim that checks would perforce have been delivered one week later, after the close of the payroll period on March 15, is not impressive. (3) As noted, Stocker and Smith were discharged out of seniority on the morning after the union meeting on the evening of March 14, after almost 3 years of employment on the part of Stocker. (4) There is evidence that Respondent learned of the union activities of the men, and particularly those of Stocker, prior to the discharges. I find that Ron Paskett, an employee in the service department, advised Barney that a union organizational meeting had been held or was to be held and that Stocker was involved. Barney, not an impressive witness, vacillated in his testimony and his affidavit between March 14 and 15 as to the date of the conversation, although I believe and find that this took place on March 14. In any event, on the posture most favorable to Respondent, Barney was so advised no later than 7 a.m. on March 15 and the discharges took place at 8:30 a.m. Also relevant herein is the fact, noted above, that Smith organized carpools to transport the employees to the meeting on the evening of March 14. (5) Respondent has adduced evidence that Smith received a reprimand for work on the so-called Wagner repair job in November 1973. Yet he received a pay raise thereafter. Indeed, he was promoted from a grade B mechanic to a grade A mechanic in January 1974, with a commensurate raise in pay. (6) President Angros admitted that on the morning of March 14, the parts department manager, McMaster, advised him that there was union organizational activity going on and "inferred" that Stocker was involved; indeed, Angros next admitted that McMaster named Stocker to his informant, although Angros denied knowing of Smith's involvement until the week after their discharge. (7) There is undisputed evidence that Stocker was seen drinking a beer at lunch on one occasion and that he had an accident while driving his assigned company vehicle after leaving work, with an open can of beer in the vehicle. Barney testified that he told Stocker shortly after January 2 that if there was a subsequent drinking incident, Stocker would be terminated. And there was no such incident thereafter. (8) Stocker made telephone calls to one parts-supplier and on an occasion to Shop Foreman Downard very late at night, seeking parts, which were disapproved of, and he was so told. In the same vein is testimony by Foreman Downard that Stocker arranged his time so as to incur overtime work and premium pay. Yet Downard placed this in the fall of 1973 and did not report it. (9) There is conflicting evidence as to how Stocker performed in a field job shortly before March 11 and as to whether he was reprimanded therefor on that date for not installing a nut on a piece of machinery; according to Stocker, the nut was not available and the machine was made to perform satisfactorily. There is also conflicting evidence as to Stocker's threat to quit, whether he and Barney discussed the length of notice to be given and whether Barney said he wanted 2 weeks' notice or none. In view of the foregoing considerations, I deem this unneces- sary to resolve and there is the additional factor that he did not quit. 600 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (10) Personnel Manager Jay Disnow, stationed at the home office in Michigan, testified that he visited the Salt Lake City installation in February 1974 and that the performance of Stocker was discussed . He advised the local officials that if they wanted to terminate an employee, the complaint should be reduced to writing and placed in the employee's personnel folder. There is no evidence that such action was ever taken with respect to Stocker. (11) What I find of significance herein is the evidence, which is undisputed , concerning a contract with the Terex Division of General Motors Corporation . Vice President Jack Bale of Respondent, stationed at the home office, testified that Respondent entered into an oral agreement with General Motors in 1973 to assemble five large trucks for that company at Salt Lake City, this being a matter of first impression. General Motors employees were to be and were ultimately on the scene . The unassembled parts com- menced to arrive on March 11 , 1974, and the assembly commenced shortly thereafter. General Motors employees were authorized to schedule overtime, this was done, and no new employees were hired to replace Stoc }cer and Smith. Some five trucks were assembled and delivered by the end of July or the first of August. The General Motors representatives ordered considerable overtime on the project with Respondent paying this overtime and being duly reimbursed. Bale conceded that this project constitut- ed a major percentage of their work during this period. To sum up, as of March 11, Respondent knew that it had a considerable reservoir of novel work on a new project, saw fit to terminate two experienced employees out of seniority 4 days later, and then worked considerable overtime with the remaining crew , something it reasonably could have anticipated. I find on a preponderance of the evidence that by discharging Stocker and Smith Respondent has engaged in unfair labor practices within the meaning of Section 8(aX3) and (1) of the Act.' Upon the basis of the foregoing findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Lake Shore, Inc., is an employer within the meaning of Section 2(2) of the Act. 2. Operating Engineers , Local Union No. 3, is a labor organization within the meaning of Section 2(5) of the Act. 3. By discharging John Stocker and Henry Smith, Jr., on March 15, 1974, Respondent has engaged in unfair labor practices within the meaning of Section 8(aX3) and (1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. I There are several other factors which lend support to the position of the General Counsel herein, but I deem thetp to be cumulative and therefore do not set them forth. 2 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, The Remedy Having found Respondent has engaged in 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. I have found that Respondent has violated Section 8(a)(3) and (1) of the Act by discriminatorily discharging John Stocker and Henry Smith, Jr., on March 15, 1974. I shall, therefore, recommend that Respondent offer them immediate and full reinstatement to their former jobs, or, if their jobs no longer exist, to substantially equivalent positions, without prejudice to seniority or other rights and privileges. See The Chase National Bank of the City of New York, San Juan, Puerto Rico Branch, 65 NLRB 827 (1946). I shall further recommend that Respondent make them whole for any loss of pay they may have suffered as the result of their discharge by payment of a sum of money equal to that each normally would have earned from said date to the date of Respondent's offer of reinstatement, less net earnings, with backpay and interest thereon to be computed in the manner prescribed by the Board in F. W. Woolworth Company, 90 NLRB 289 (1950), and Isis Plumbing & Heating Co., 138 NLRB 716 (1962). Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER2 Respondent, Lake Shore, Inc., Salt Lake City, Utah, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discouraging membership in or activity in behalf of Operating Engineers, Local Union No. 3, or any other labor organization of its employees, by discriminating in regard to hire or tenure of employment, or any term or condition thereof. (b) In any like or related manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed under Section 7 of the National Labor Relations Act. 2. Take the following affirmative action which is deemed necessary to effectuate the policies of the Act: (a) Offer John Stocker an4 Henry Smith, Jr., immediate and full reinstatement to their former jobs, or if their jobs no longer exist, to substantially equivalent positions, without prejudice to seniority or other rights and privileges, and make them whole for any loss of pay suffered by reason of the discrimination against them in the manner provided above in the section entitled "The Remedy." (b) Preserve and make available to the National Labor Relations Board and its agents, upon request, for examina- tion and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to determine the amount of backpay due under the terms of this Order. 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. LAKE SHORE, INC. (c) Post at its plant at $alt Lake City, Utah, copies of the attached notice marked "Appendix." 3 Copies of said notice, on forms provided by the Regional Director for Region 27, after being duly signed by Respondent, shall be posted by it immediately upon receipt thereof and maintained for 60 consecutive days thereafter in conspicu- ous places, including all places where notices to employees are customarily posted . Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 27, in writing, within 20 days from the date of this Order, what steps it has taken to comply herewith. IT IS FURTHER RECOMMENDED that the challenges to the ballots of Stocker and Smith in Case 27-RC-4743 be overruled and that their ballots be counted. 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 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 601 WE WILL NOT discourage membership in or activity on behalf of, Operating Engineers, Local Union No. 3, or any other labor organization of our employees, by discriminating in regard to hire or tenure of employ- ment, or any term or condition thereof, WE WILL offer John Stocker and Henry Smith, Jr., immediate and full reinstatement to their former jobs, or if their jobs no longer exist, to substantially equivalent positions, without prejudice to seniority or other rights and privileges, and make them whole for any loss of pay suffered by reason of the discrimination against them in the manner provided for in the section of this Decision entitled "The Remedy." WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of the rights guaranteed under Section 7 of the National Labor Relations Act. All our employees are free to become or remain, or refrain from becoming or remaining, members of the above-named or any other labor organization. LAKE SHORE, INC.