Streis Industries, Inc.

STREIS INDUSTRIES, INC. 249 Streis Industries, Inc. and Fredrick M. Bentley. Case 9-CA-9716 February 16, 1977 DECISION AND ORDER BY CHAIRMAN MURPHY AND MEMBERS JENKINS AND WALTHER On October 28, 1976, Administrative Law Judge David S. Davidson issued the attached Decision in this proceeding. Thereafter, the General Counsel filed exceptions and a supporting brief, and the Respon- dent filed a brief in support of the Decision of the Administrative Law Judge. 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. concerted activity, thereby violating Section 8(a)(1) of the Act. A hearing on the consolidated complaint was com- menced on August 11, 1976, at Louisville, Kentucky. At the hearing the parties agreed to settle all issues other than that pertaining to the discharge of Bentley. With the agreement of the parties, the cases were severed, and Case 9-CA-9820 was continued indefinitely pending notification of compli- ance with the settlement agreement entered into in that case. The hearing then proceeded to conclusion with respect to the issue raised by Bentley's discharge. The parties waived oral argument and have filed briefs. Upon the entire record in this case including my observation of the witnesses and their demeanor, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Respondent, a Kentucky corporation, is engaged in the processing of snack food items at its plant at Jeffersonville, Kentucky. As Respondent has an annual direct outflow in excess of $50,000, I find that Respondent is an employer engaged in commerce within the meaning of the Act and that it will effectuate the policies of the Act to assert jurisdiction herein. 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 the complaint be, and it hereby is, dismissed in its entirety. I The General Counsel 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 credibili- ty 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 (1950), 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 DAVID S. DAVIDSON, Administrative Law Judge: The charge in the above-captioned case was filed on October 14, 1975. On November 26, 1975, it was consolidated with the charge in Case 9-CA-9820, and a consolidated complaint issued, which was later amended. It alleged that on October 6, 1975, Respondent's employees engaged in a lawful economic strike and that Respondent unlawfully dis- charged seven named employees because they struck. The complaint further alleged that Respondent discharged Supervisor Fredrick Bentley as part of a pattern of conduct aimed at penalizing its employees for engaging in protected I In the light of the testimony of Bentley , Conway, and employee Thomas Moore, as well as the affidavits of Bentley and Moore , I have credited 228 NLRB No. 37 II. THE ALLEGED UNFAIR LAB01t PRACTICES A. The Facts Respondent went into business in 1974 and, by the fall of 1975, had from 12 to 14 employees. Its general manager was Eugene Reis and its plant supervisor was Joseph Conway. When production started Fredrick Bentley, whose alleged discharge is at issue, was hired as a machine operator and about a month later was promoted to a supervisory position. In May 1975 a representation election was held at the plant, which resulted in a vote against union representation. Following the election, Reis met with the employees and suggested that they could attempt to settle any grievances internally and that they could have monthly meetings with him if they desired to discuss their problems. Reis also told the employees that Respondent was not making money at that time, but that as soon as possible it would give the employees a raise. By early October 1975, no meetings had been held between management and the employees, and there was employee dissatisfaction, although insofar as the record shows it had not been communicated to Reis. On October 1 and 2 Fredrick Bentley asked Conway to arrange a meeting between him and Reis because he wanted a raise.' Conway discussed the matter with Reis who told Conway that he could not give Bentley more money and that there was no need for a meeting if a raise for Bentley was its purpose. On Friday, October 3, about 3 or 3:15 in the afternoon, shortly before quitting time, Bentley again asked Conway as to what Bentley told him was the purpose for which he wanted to meet with Reis. 250 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Conway about the meeting . Conway replied that Reis would not give Bentley a raise and that he saw no point in setting up the meeting. Bentley told Conway that he might as well quit, and Conway responded that it was entirely up to Bentley. Bentley had previously threatened to quit if he did not receive a raise by October. About 3:30 that afternoon, Bentley turned over to Conway the tools which he used in his work.2 Bentley did not leave the plant immediately at 3:30 but remained in the plant cafeteria with two other employees playing cards for 15 or 20 minutes. According to Bentley, thereafter as he was leaving the plant, Conway called him into his office and asked Bentley to reconsider his decision to quit . Bentley testified that he told Conway he would think about it over the weekend and would give him an answer on Monday at noon. Conway denied that this conversation took place. Although testimony by Maintenance Supervisor David Graham that he saw Bentley in Conway's office as he was leaving the plant between 3:45 and 4 p.m. raises some doubt as to Conway's denial that the conversation took place, for reasons set forth below I have credited Conway's further testimony that, 2 days later on a Sunday, Bentley apologized for what had happened on Friday and asked for an opportunity to reconsider his decision. Had the Friday afternoon conversation occurred as Bentley testified, there would have been no occasion for Bentley's apology and request on Sunday. Furthermore, as appears below, I have credited testimony that on Friday afternoon after Bentley left the plant he told others he had quit . Accordingly, I credit Conway that he did not ask Bentley to reconsider his decision on Friday afternoon. After leaving work that afternoon employees Thomas Moore and Jesse Johnson stopped at the Maple Inn along with Maintenance Supervisor David Graham . Moore was aware of Respondent's denial of Bentley's request for a meeting and in discussing the matter with Johnson they decided that they should try to induce the other employees to walk out in order to get a meeting with Reis to discuss their working conditions and pay . Moore and Johnson decided to call Bentley to get a list of employee names and telephone numbers so that they could call the employees to organize a work stoppage for the following Monday morning. Bentley came to the Maple Inn with the list and remained there with the others for a while. There is divergent testimony as to what was said about Bentley's quitting while Bentley and the others were at the Maple Inn. Graham testified that while there Bentley said that he had quit. Bentley testified that he told the others that he had not quit as of then and would give his answer to Conway on Monday. Moore conceded that before he left the plant that day he believed Bentley had quit and so informed Graham. Moore testified that at the Maple Inn Bentley said he had not quit and would come to work late on Monday. He then testified that even before leaving the plant when Bentley stayed to play cards in the cafeteria at the plant he took it for granted that Bentley had not quit. Finally, he testified that Bentley told him he had not quit while they were playing cards . Although Graham appeared to be nervous at the thought of testifying to anything harmful to his employer's interest and some of his testimo- ny appeared to lack candor, I find his version more believable than that of Bentley or Moore . Moore's testimo- ny is both inconsistent with Bentley's and is internally inconsistent. Moreover, employee James Augustus testified that on the following Monday morning he was told by an unidentified employee among those who gathered at the plant parking lot that Bentley had quit . I conclude that when Bentley came to the Maple Inn and last spoke to any employees before the next Monday morning when they gathered at the plant, Bentley told Moore, Johnson, and Graham that he had quit. On the following Sunday afternoon Bentley stopped at Conway's home for a while to visit with him . There is further conflict in the testimony as to what they talked about at that time. According to Bentley, they discussed several matters, including a suggestion by Bentley for improving the processing of Respondent's products . Bentley testified that, as he was about to leave, Conway asked him if he was coming to work on Monday, and Bentley replied that he would be in around noon on Monday to tell Conway whether or not he would be back. Bentley testified that Conway said that was good enough , and Bentley left. Conway testified that when Bentley arrived at his home, he told Conway that he would like to apologize for what had happened on Friday and that Conway accepted his apology and told Bentley he was sorry about it . According to Conway, Bentley also told him that if the financing for the purchase of a new truck went through he was going to go on the road driving, but that if the loan was not approved he would like to reconsider coming back to work for the Respondent. Conway testified that he told Bentley that he did not talk about business in his home , whereupon Bentley asked if he could come by the plant on Monday to discuss the matter. According to Conway, he replied that Bentley could stop by on Monday if there was anything he wanted to discuss, and Bentley said that he would come in at noon or in the afternoon to talk with him as he had a medical appointment in the morning. For reasons already indicated, I have not credited Bentley that Conway had previously asked him to reconsid- er his decision to quit and do not credit Bentley's testimony that it was Conway who raised the subject again on Sunday. In this connection, I note Moore's testimony that on the next morning when he went in the plant and told Conway that the employees were not going to work until they had a meeting with Reis because of what had happened to Bentley, Conway responded that Bentley had come to his house on Sunday, had apologized to him, and would be in later in the day. I find that Conway's statement to Moore, made before the walkout occurred, when Conway had no reason to conceal any desire he might have for Bentley to reconsider his action, corroborates Conway's version of his Sunday conversation with Bentley, and I have credited Conway as to who raised the subject of Bentley's possible return and what Bentley said about it. However, I am not persuaded by Conway's testimony that he refused to talk about the matter at his home and simply deferred all 2 That afternoon Bentley loaned his plant key to another employee who did not return it, but Bentley later saw it on Conway 's desk and did not seek to reclaim it STREIS INDUSTRIES, INC. 251 discussion of the matter until Monday. Conway's testimony both on direct and cross-examination as to his practice with respect to talking about business at home does not ring true. Moreover, in this respect Reis' testimony as to what Conway told him on Monday morning about Bentley's visit is more consistent with Bentley's version of this portion of the conversation than with Conway's. In these circumstanc- es and in the absence of any arrangement having been made to replace Bentley as of Sunday, I conclude that following Bentley's statement, Conway replied, as Bentley testified, to indicate that it would be satisfactory for Bentley to come in on Monday to tell him whether or not he wanted to come back. On Monday morning Moore arrived at the plant about 6:30 in the morning and waited outside the plant for others to arrive. He urged them not to go in to work until they had a meeting with Reis. After several employees had gathered outside the plant, they decided that Moore should go in and tell Conway what was happening. Moore entered the plant and told Conway that the employees were not going to work until they had a meeting with Reis because of what had happened to Bentley. Conway told Moore of Bentley's visit to his home on the previous day, as set forth above, and stated that there was no reason to put anyone's job on the line for one man and that if the employees wanted a meeting they could have it. Moore rejoined the other employees outside the plant and told them what Conway had said. They agreed that the promise of a meeting was not enough and that they would not go to work until they had actually met with Reis, who had not yet arrived at the plant. The employees then left the parking lot and went to a nearby restaurant from which they called Bentley at his home. Bentley came to the restaurant and joined the employees. In conversation Bentley expressed his disagreement with their decision to stop work. While the employees were at the restaurant, Reis arrived at the plant and discussed the situation with Conway. At that time Conway told Reis that Bentley had quit on the previous Friday and had come by his home on Sunday to apologize and say that he had reconsidered and would let Conway know sometime on Monday whether he wanted to return to work. Sometime thereafter the employees returned to the plant looking for Reis. They went to the office and told the receptionist that they wanted to see Reis. After calling Reis, she told them that Reis would see one of the employees. Johnson and Moore suggested that Bentley serve as the employees' spokesman, and Bentley proceeded to Reis' office alone. Reis asked Bentley what was going on, and Bentley replied that the employees wanted a meeting and that he guessed that that was the only way they were going to get it. 3 Although only Bentley testified to this portion of their conversation, Reis did not deny making the remark about a knife at his throat and it is consistent with the action taken by Reis at that time. 4 Both Reis and Bentley testified that Reis raised the question of Bentley's quitting at this point. Reis testified that Bentley replied as found above. Bentley testified that he said that he had not quit, that he had told Conway on Friday that he would let him know on Monday whether he would quit, and that he was not quitting . I have elsewhere rejected Bentley's version of his Friday conversation with Conway on which Bentley's version of this conversation rests. Accordingly, I have credited Reis. Reis responded that there would be no meeting as long as the employees were holding a knife at his throat. Bentley said that he did not think that was the way the people felt .3 At that point Reis said that he understood from Conway that Bentley had quit on Friday and asked how he could be representing the people as an employee if he had quit. Bentley said he had quit but that he had told Conway that he wanted to reconsider and would let Conway know some time that day whether he was through.4 Reis told Bentley that Conway had told him Bentley had quit and that as far as he was concerned that was it. Bentley again said that the employees wanted a meeting and would go to work if Reis would meet with them. Reis responded that he felt they were past the point of having a meeting right then. Reis told Bentley to tell the employees to go home and that Respondent would call them when they were needed. Bentley then left and told the employees what Reis had said, whereupon they left. After Bentley's visit to the office, Reis told Conway that as far as he was concerned Bentley had quit on Friday and he would not consider rehiring him at that time. Reis instructed Conway to prepare to replace Bentley . During that day Jesse Johnson was given Bentley's job. Later that afternoon, Bentley returned to the plant to speak to Conway. Bentley told Conway that over the weekend he had discussed the matter with his family who did not want him to go back on the road as a driver and that he would like Conway to take him back to work. Conway replied that Bentley had quit on Friday, that they had to keep operating, and that he had already given his job to another employee.5 B. Concluding Findings The General Counsel contends that Bentley was still in Respondent's employ at the time of the work stoppage on Monday, October 6, and that he was discharged by Respondent in furtherance of and as an integral part of the pattern of conduct aimed at penalizing Respondent's employees for engaging in protected concerted activity. Respondent admits that employees engaged in protected concerted activity on October 6 and that employees were unlawfully terminated or suspended by Respondent on that date for engaging in such activity. However, Respondent contends that Bentley had voluntarily resigned on the previous Friday and was not employed on the day of the work stoppage. Respondent contends further that in any event it did not violate the Act as Bentley was a supervisor when he was employed. Even Bentley's testimony leaves little doubt that, when Conway told him Reis would not meet with him and would not give him a raise, Bentley meant to quit and did so. He so informed Conway and consistent with what he said turned in company property in his possession. Although the 5 Conway so testified. According to Bentley, Conway asked him if he was throwing in with the rest of the employees and that if so he was in the same boat they were. However, Bentley also testified that, when he told Conway he wanted to stay with Respondent, Conway told him he would talk to Reis and see what he could do but that as of then he was in the same boat as the others. As Reis had told Conway after Bentley had come to his office that he saw no reason to rehire Bentley and as Johnson had been given Bentley'sjob, I have credited Conway's version. 252 DECISIONS OF NATIONAL LABOR RELATIONS BOARD General Counsel contends that the effect of these actions was quickly nullified by Bentley's agreement at Conway's request to consider further over the weekend whether he would quit, the findings do not support that contention. I have found that reconsideration was raised not by Conway on Friday, but by Bentley on Sunday and that what Bentley sought at that time was an opportunity to change his mind about quitting on the following day. Bentley gave no indication on Sunday that he had made a decision to seek to continue working for Respondent and in fact gave no indication of that decision until Monday afternoon after Reis had told him in effect that he considered Bentley's quitting as final. In these cirqumstances, I conclude that Bentley had severed his employment with Respondent on Friday, and did not become reemployed by Respondent before Conway denied his request to have his job back on Monday afternoon. To be sure, the facts as found above raise a substantial question as to the reason Respondent refused to rehire Bentley. I have found that on Sunday afternoon Conway told Bentley that it would be satisfactory for Bentley to let him know on Monday afternoon whether he wanted to come back to his job and, when Conway first told Reis of his Sunday conversation with Bentley, Reis took no position as to Bentley's return. Only after Bentley came to Reis' office as spokesman for the employees did he tell Bentley that his quitting was final, and thereafter he told Conway the same thing . Although I viewed Reis' testimony as to events and their timing as commendably candid, there is nonetheless reason to be skeptical that his explanation of his decision not to consider taking Bentley back disclosed the most significant reason. Nonetheless, the complaint does not allege that Respondent unlawfully refused to rehire Bentley because of protected employee activities, and the General Counsel has not contended in the alternative that, even if Bentley had quit, a refusal to rehire him as a supervisor because of his involvement in employee concert- ed activity would violate the Act. Accordingly, I find that the General Counsel has failed to establish that Respondent discharged Bentley in violation of the Act and I will recommend that the complaint be dismissed. CONCLUSIONS OF LAW 1. Streis Industries, Inc., is an employer engaged in commerce within the meaning of the Act. 2. The General Counsel has failed to establish that Respondent has engaged in unfair labor practices as alleged in the complaint. Upon the basis of the above findings of fact and conclusions of law and the entire record in this case and pursuant to Section 10(c) of the National Labor Relations Act, as amended, I hereby issue the following recommend- ed: ORDER6 The complaint is dismissed in its entirety. 6 In the event no exceptions are filed as provided by Sec. 102.46 of the of the Rules and Regulations, be adopted by the Board and becomes its Rules and Regulations of the National Labor Relations Board, the findings, findings, conclusions, and Order, and all objections thereto shall be deemed conclusions, and recommended Order herein shall, as provided in Sec. 102.48 waived for all purposes.