Adam Loos Boiler Works Co.

National Labor Relations Board - Board Decisions

Jun 24, 1969

176 N.L.R.B. 949 (N.L.R.B. 1969)

ADAM LOOS BOILER WORKS
Adam Loos Boiler Works Co. and International
Brotherhood of Boilermakers, Iron Shipbuilders,
Blacksmiths , Forgers and Helpers , Local No. 85,
AFL-CIO. Case 8-CA-5254
June 24, 1969
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
JENKINS AND ZAGORIA
On April 16, 1969, Trial Examiner Paul E. Weil,
issued his Decision in the above-entitled proceeding,
finding that the Respondent had engaged in and was
engaging in certain unfair labor practices, and
recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in
the attached Trial Examiner's Decision. Thereafter,
Respondent filed exceptions to the Trial Examiner's
Decision 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
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 brief, and
the entire record in this case, and hereby adopts the
Trial Examiner's findings,' conclusions, and
recommendations.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended , the National Labor
Relations Board hereby adopts as its Order the
Recommended Order of the Trial Examiner, and
orders that the Respondent , Adam Loos Boiler
Works Co., Toledo, Ohio, its officers , agents,
successors , and assigns , shall take the action set
forth in the Trial Examiner ' s Recommended Order.
The Respondent ' s exceptions to the Trial Examiner's Decision are in
large part directed to his credibility resolutions. We will not overrule the
Trial Examiner 's resolutions as to credibility unless a clear preponderance
of all relevant evidence convinces us that they are incorrect. Such a
conclusion is not warranted here . Standard Dry Wall Products, 91 NLRB
544, enfd . 188 F.2d 362 (C.A. 3).
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
PAUL E. WEIL, Trial Examiner : Pursuant to a charge
filed by International Brotherhood of Boilermakers, Iron
Shipbuilders , Blacksmiths, Forgers and Helpers, Local
No. 85 , AFL-CIO, herein called the Union , against Adam
Loos Boiler Works Co., herein called the Respondent, the
General Counsel, by the Regional Director for Region 8,
949
issued the complaint herein on January 9 , 1969, alleging
that Respondent had engaged in unfair labor practices
within the meaning of Section 8(a)(3) and (1) and Section
2(6) and (7) of the Act by discharging and refusing to
reinstate Union Steward Nick Toth because he engaged in
union and other concerted activities. By its duly filed
answer Respondent admitted various jurisdictional facts
and admitted that it discharged Nick Toth but denied that
the discharge was due in any respect to his activities as a
union steward or other concerted activities, alleging that
the discharge resulted from Toth's "inefficient and
unworkmanlike performance" on a specific job at
Lakewood Greenhouse in Toledo, Ohio. Further,
Respondent stated that Toth during the year preceding his
discharge performed his work in an inefficient,
unworkmanlike , careless and negligent manner , expressed
a marked dissatisfaction with his job, and continually
complained. Respondent denies the commission of any
unfair labor practice.
The case was heard on February 26, 1969, at Toledo,
Ohio. All parties were represented by counsel and were
afforded full opportunity to participate, examine
witnesses , and adduce relevant evidence. All parties
waived the filing of briefs and each party made oral
argument at the close of the hearing.
Upon the entire record in this proceeding including the
arguments of the parties made at the hearing I make the
following:
Findings of Fact
1. JURISDICTION
Respondent is, and at all times material hereto, has
been an Ohio corporation operating an industrial boiler
repairing and steel fabrication business at Toledo, Ohio.
Respondent in the past calendar year manufactured and
distributed products and services valued in excess of
$100,000 of which products and services valued in excess
of $50,000 were furnished to enterprises located within the
State of Ohio, which enterprises annually produce and
ship goods valued in excess of $50,000 directly to points
located outside the State of Ohio.
Respondent is now and has been at all times material
herein an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
II, THE LABOR ORGANIZATION INVOLVED
The Union is now and has been at all times material
herein a labor organization within the meaning of Section
2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
The Issue
The sole issue herein is whether or not Union Steward
Nick Toth was discharged because of his union and
concerted activities.
Findings and Conclusions
Respondent is a family -owned business presently
operated by the third generation of the Loos family with
A. Carlton Loos functioning as president and general
manager. His brother John is vice president and takes
176 NLRB No. 131
950 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
some part in the direction of the business although he is
normally engaged in the real estate business. Margaret
Woodyard, sister to Carlton and John Loos, works part
time as the firm' s sole bookkeeper. Steve Loos, nephew of
Carlton, is employed by the firm as an apprentice
boilermaker.
Carlton Loos testified that he has been engaged in the
business for some 35 years, that the Company has been a
union shop with its employees represented by the Union
since about 1937, and that the shop normally employed
four or five employees.
Nick Toth was employed in 1954 and worked
continuously for the firm until his discharge on November
11, 1968.
On November 7, 1968, Ronald Kothe, an apprentice
who has been employed by Respondent for something
over 3 years, telephoned Carlton Loos at his home at 6:20
a.m. and told him that he had to go to Cleveland to make
arrangements and attend the funeral of an uncle who had
died and that he would be away Thursday and Friday,
November 7 and 8. Loos who had been awakened by the
telephone call responded, "This is ridiculous" and Kothe
responded, "Never mind, I will be in" and hung up. When
Carlton Loos got to the plant at 5 minutes before the
normal starting time of 8 o'clock he found that Kothe had
already been there and had left. The following Sunday
evening , November 10, Loos testified that after attempting
to reach Kothe by telephone, he went to his home and
told Kothe not to come to work the next day. Loos
testified that "I figured if he could take a couple of days
off, he might as well have another day off" and explained
that he was provoked because Kothe had said he would be
in and did not wait for him on Thursday morning. On
cross-examination Loos testified that he was not angry
and that on thinking it over he thought it was all right
that Kothe took off 2 days to go to the funeral. He
testified that he did not lay Kothe off because of flack f
work.
After Kothe's interview with Loos on Sunday evening
Kothe called Nick Toth in his capacity as shop steward
and asked him what to do. Toth advised him that
inasmuch as he lived near the plant he should come in on
Monday morning and they would find out what the
trouble was.
On Monday morning all of the employees gathered at
the shop about 7:40. When Carlton Loos arrived and saw
Kothe, he became angry and told him he was not
working. Toth asked why Kothe was not working if Steve
Loos was working since Steve Loos had less seniority than
Kothe. Carlton Loos answered, "That has nothing to do
with it. I told him he is not working and he is not working
and that is it!" The employees decided among themselves
not to clock in at 8 o'clock. Carlton Loos came back out
of his office and said , "It's time to go to work, it's 8
o'clock." The employees told him that they didn't ring in
whereupon Loos turned to another employee, Dick
Koester, and asked him what he was doing there and said
that he had been laid off.
Koester responded that he had not been told that he
was laid off and Loos admitted that he had neglected to
tell him that he was laid off and said, "As long as you are
here for today you can work today but you're still laid
off." He then walked out of the shop again. The
employees decided they wouldn't work until they had
called the union hall, whereupon Toth walked through the
shop to the telephone and called the business agent,
Russell Woods. Loos came out of his office and asked
whether the employees were going on strike and Toth
answered, "No, we're not going to strike. All I'm going to
do is call Russell Woods to straighten this out." Woods
came to the shop in a short time and after talking with
the employees was closeted with Loos. He returned to the
employees and told them that Loos was not going to let
Kothe work that day whereupon all the employees decided
that they were "sick" and went home.
The same evening about 6:30 Carl' Loos telephoned
Toth at his home and said, "This is Carl. Nick, you are
discharged." Toth asked why and Loos answered, "You
are just discharged. That is it." A few days later the
business" agent and assistant business agent of the Union
together with Toth met with Carl and John Loos at the
Union's office. At this time Carlton Loos said that he
fired Toth because of the Lakewood Greenhouse job
because it took too long to do the work that was done on
the job. He also mentioned in this meeting an occasion
when a machine was damaged by Toth some 2 years
before and a job in Sandusky, Ohio, during the preceding
winter with which he was dissatisfied. John Loos
commented in the meeting that there was a lot of tension
between the men in the Company and everything seemed
to be deteriorating and that in the last year Carl Loos and
Nick Toth seemed not to hit it off together. Toth said that
was because he was the shop steward and Loos said that
Toth was disagreeing all the time about this and that and
griping every day. Apparently nothing came of the
meeting whereupon the charges in the instant case were
filed by the Union.
Nick Toth testified that he first became shop steward in
1964. He testified that in the 2 years preceding his
discharge he had made a number of complaints to the
employer about employees being shorted on their pay and
overtime not being split according to a gentlemen's
agreement as well as about an occasion or occasions when
employees learned that nonemployees had been doing
work in the plant on weekends. He testified that Loos
reacted angrily to his complaints. Loos on the other hand
testified that no grievances had ever been filed by the
Union prior to Toth's discharge. Thereafter grievances
were filed by the Union with regard to a dispute on
overtime pay as well as the layoff of Ron Kothe. Neither
of these grievances had been discussed between the Union
and the employer up to the time of the hearing. It became
apparent through the hearing and through the testimony
of Carl Loos that he was referring only to written
grievances. Grievances brought to him verbally by Toth
were, in his mind, complaints and griping. Mrs.
Woodyard testified, for example, that she occasionally
made mistakes in the payroll and that Toth would come
in, as the steward, and speak for the employees with
respect to such matters and that she would attempt to
straighten them out. Carlton Loos also testified that Toth
made complaints many times but that he was not aware of
any grievances.
The Alleged Reason for the Discharge
Carlton Loos testified that when the employees walked
out on November 11 he decided to use the time to catch
up with his book work in the company office. During the
morning he went over the billings for several jobs and
came upon the timesheet for the Lakewood Greenhouse
job which showed a total of 152 hours spent retubing a
boiler. He testified that he believed the job should not
' Carlton Loos is apparently usually called Carl.
ADAM LOOS BOILER WORKS 951
have taken more than 75 to 85 hours and decided that he
should discharge Toth who had been in charge of the
retubing. He testified that he had been present on the job
almost every day and that he had never complained to the
.employees that they were working too slowly although
complaints had been made to him by the owner to that
effect. He also testified that he did not break down the
timesheet on the job to ascertain how many of the 152
hours were attributable to Toth's work on the job.'
Although employee Koester worked on the job with Toth
he did not discipline him for his part in the job. Loos
testified that he was not aware of any special problems on
the job and knew of no reason why it should have taken
so long other than that Toth did not work efficiently. On
cross-examination he admitted that his firm had never had
a retubing job on a boiler such as that at the greenhouse
and that it required a somewhat different procedure than
the retubing jobs normally done. He admitted also that he
had had to furnish a special impact wrench and air
compressor to remove the plugs which held the tubes in
place in the boiler and that a tube spreader taken out to
the job was found not to be usable and had to be replaced
by another one which he ordered for the purpose. He
testified that the boiler was in good condition because it
was quite new and accordingly there could have been no
problem due to rust or scale but admitted that he had not-
been inside the boiler to determine this fact. Loos also
testified that his nephew, Steve, had worked 1 day on the
job and did not deny Toth's testimony that Toth told him
that he had no use for Steve on the job and there was
nothing for him to do. He admitted that he could not
point to any specific part of the job that took too long
and that he didn't think much about the progress about
the job until it was finished, although he was on the job
almost every day.
Toth testified that there were a number of
circumstances on the greenhouse job that required an
unusual expenditure of time. For instance normally they
would have broken out a wall of firebrick but in this case
they took the bricks out separately because they were of a
special nature and piled them carefully so that they could
be used over again . He testified that qme 14 to 17 of the
plugs were so situated that the impact wrench could not
be used and a crescent wrench was used which took about
10 times longer. He said that a considerable amount of
time was expended unnecessarily , for instance by the
assignment of Steve Loos for a day, by sending a
truckload of tubes to the job at a time when they could
not be used and had to be sent back, and by the fact that
some 20 or 25 of the plugs broke when they were being
removed.
Discussion and Conclusions
The real issue is whether or not Toth was discharged
because of his union activity. It is no part of my function
to determine whether the employer was justified in
discharging him because of the greenhouse job; if he was
discharged for that reason no violation is made out
whether or not his discharge is just . It is relevant however
to determine if possible whether the reason given for the
discharge by Respondent is pretextual, that is to say,
whether under normal circumstances an employee would
have been discharged for the reason given. If I were to
find that the alleged reason is pretextual it would lend
corroboration to General Counsel's theory.
'In fact Toth appears to have worked 65 1/2 hours
Respondent contends that it has had a long, peaceful
existence with the Union and has never made any attempt
to dislodge it as the representative of Respondent's
employees. It points to the fact that no antiunion animus,
as the phrase is normally understood, is shown in the
instant case. Respondent's attempt to substantiate this
position is based to some extent upon its argument that no
grievances were ever filed prior to Toth's discharge.
However Respondent can argue this position only by
ignoring the fact that most grievances, by its own
testimony, were resolved prior to a point in time where
they would normally have been filed in writing.
The grievance provision of the contract does not require
that any grievance shall be written, or follow any specific
format. Toth frequently voiced grievances that were not
put in writing. To the extent that such grievances resulted
from failure of the employer to pay wages in accordance
with the contract, it appears that they were normally
remedied by Mrs. Woodyard without further ado. That no
formal procedure had to be invoked scarcely proves that
no grievances were stated. Toth complained about
working conditions and contract breaches on various
occasions both to Mrs. Woodyard and to Carl Loos. Carl
Loos considered that Toth's "complaints" constitute
nothing more than complaining and griping and he did not
dignify them in his mind to the extent of admitting that
they were contractual grievances. As a result he
formulated a dislike for Toth and, as he told employee
Koester, intended to fire Toth whenever he felt that he
had grounds that would stand up.
Employee Kothe testified that Loos had told him that
he would sure love to get rid of Nick Toth but Nick was a
good worker and had so many years that he couldn't do
so but that he didn't especially care for Nick.'
Respondent admitted in its answer that Nick Toth is
qualified and competent but contends that he performed
his work in an inefficient, unworkmanlike, careless, and
negligent manner , he has expressed a marked
dissatisfaction with his job, and he continually
complained. It appears therefore that Respondent's
dissatisfaction with Nick Toth did not result from his
incompetence . On the contrary he was a competent and
efficient workman. It appears also that Respondent was
looking for an opportunity to discharge him and the
evidence predominates that its dissatisfaction resulted
from Toth's activities as shop steward. Given this
situation, under the circumstance of the strike that took
place on the morning of November 11, it is quite clear
that Respondent determined to discharge Toth as the
leader of the strike and because of his actions as shop
steward, relying on the alleged excess expenditure of time
on the greenhouse job. Admittedly, until the strike took
place,4 Respondent had no intention of discharging Toth.
Respondent points to the intervening circumstance of
Loos' working on the timesheets of the greenhouse job.
However I cannot accept Respondent's conclusion that
this was the real cause for the discharge in view of the
fact that although Loos was in constant touch with the job
he at no time noticed or determined that it was not
progressing satisfactorily. As he did not break down the
timesheet, he was not then or at any time since aware of
'Although Carlton Loos appeared on the witness stand he did not
contradict the testimony of either Kothe or Koester . Accordingly I credit
their accounts of the statements they attribute to him.
'There can be no doubt that the work stoppage was a strike although the
employees for reasons known only to them chose to testify that they were
sick This is incomprehensible in view of the fact that there is no no-strike
clause in the contract.
952 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the portion of the job attributable to Toth' s work. I
believe that Carlton Loos, faced by a walkout of all of his
employees (including his nephew Steve Loos) attributed it,
probably correctly, to Toth. When this factor conjoined
with his review of the worksheet for the greenhouse job I
believe that he felt that he could successfully defend the
discharge of Toth and determined then and there to
effectuate it. But for Toth' s activities as a shop steward in.
the past and the strike on that occasion I do not believe
that he would have been discharged . Accordingly I believe
that he was discharged because of his union and concerted
activities and that his discharge violated Section 8(aX3)
and (1) of the Act. I shall recommend therefore that an
appropriate order be issued.'
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
The activities of Respondent set forth in section III,
above, occurring in connection with Respondent's
operations 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 of commerce.
V. THE REMEDY
Having found that Respondent engaged in an unfair
labor practice by the discharge of Nick Toth I shall
recommend that it cease and desist therefrom and that it
take certain affirmative action which I find necessary to
remedy and remove the effects of the unfair labor practice
and to effectuate the policies of the Act. I recommend
that Respondent offer Nick Toth immediate and full
reinstatement to his former or substantially equivalent
position , without prejudice to his seniority or other rights
and privileges , and make him whole for any loss of pay he
may have suffered as a result of the discrimination against
him by payment to him of a sum of money equal to that
he would have earned as wages during the period from
November 11, 1968, to the date on which Respondent
offers reinstatement as aforesaid , less his net earnings, if
any, during the same period . The loss of pay under the
order recommended shall be computed in the manner set
forth in F. W. Woolworth Company, 90 NLRB 289, and
Isis Plumbing & Heating Co., 138 NLRB 716.
CONCLUSIONS OF LAW
1. By discharging Nick Toth because of his union and
concerted activities Respondent did discriminate and is
discriminating in regard to hire or tenure or terms or
conditions of employment of employees, thereby
discouraging membership in the Union thereby engaging
in unfair labor practices within the meaning of Section
8(aX3) and (1) of the Act.
2. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
It is recommended that Adam Loos Boiler Works Co.,
its officers , agents, successors , and assigns , shall:
1. Cease and desist from:
(a) Discouraging membership in the Union or any other
labor organization by discriminatorily discharging or
refusing to reinstate employees because they engaged in
lawful concerted activity or union activity or in any other
manner discriminating in regard to hire to tenure of
employment or any term or condition of employment.
(b) In any like or related manner interfering with,
restraining , or coercing its employees in the exercise of
their rights under Section 7 of the Act.
2. Take the following affirmative action designed to
effectuate the policies of the Act:
(a) Offer to Nick Toth immediate and full
reinstatement to his former or substantially equivalent
position and make him whole for any loss of pay he may
have suffered because of the discrimination against him in
the manner set forth in the section entitled "The
Remedy."
(b) Notify Nick Toth if presently serving in the Armed
Forces of the United States of his right to full
reinstatement upon application in accordance with the
Selective Service Act and the Universal Military Training
and Service Act, as amended , after discharge from the
Armed Forces.
(c) Preserve and, upon request make available to the
Board or its agents , for examination and copying, all
payroll records , social security payment records,
timecards , personnel records and reports , and all other
records necessary to analyze the amount of backpay due
under the terms of this Recommended Order.
(d) Post at its Toledo, Ohio, plant copies of the
attached notice marked "Appendix ." ' Copies of said
notice, on forms provided by the Regional Director for
Region 8, after being duly signed by Respondent's
representative, shall be posted by it immediately upon
receipt thereof , and be maintained by it 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 insure
that said notices are not altered , defaced , or covered by
any other material.
(e) Notify the Regional Director for Region 8, in
writing , within 20 days from the receipt of this Decision,
what steps have been taken to comply herewith.'
'Respondent adduced evidence that Toth had worked improperly and
inefficiently in a job in Monroe , Michigan , shortly prior to his discharge.
The evidence adduced by Respondent together with the testimony of Toth
and other employees reveals that the alleged inefficiency was attributable
to circumstances beyond Toth 's control but that he was never asked about
it. Respondent was not even aware of the fact that a problem existed at the
time of Toth 's discharge . Presumably Respondent adduced the evidence in
an effort to support its position that Toth was working inefficiently,
carelessly , and negligently at the time of his discharge . I consider that the
incident adds no support to Respondent 's defense in any regard.
'In the event that this Recommended Order is adopted by the Board, the
words "a Decision and Order" shall be substituted for the words "the
Recommended Order of a Trial Examiner" in the notice. In the further
event that the Board 's Order is enforced by a decree of a United States
Court of Appeals, the words, "a Decree of the United States Court of
Appeals Enforcing an Order" shall be substituted for the words "a
Decision and Order."
'In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read: "Notify the Regional Director for
Region 8 , in writing , within 10 days from the date of this Order, what
steps Respondent has taken to comply herewith "
ADAM LOOS BOILER WORKS 953
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act, as amended , we hereby notify our
employees that:
WE WILL NOT discourage membership in
International Brotherhood of Boilermakers, Iron
Shipbuilders , Blacksmiths , Forgers and Helpers, Local
No. 85, AFL-CIO , or any other labor organization by
discharging or refusing to reinstate employees or in any
other manner discriminating in regard to hire or tenure
of employment or any other terms or conditions of
employment.
WE WILL NOT in any like or related manner interfere
with, restrain , or coerce employees in the exercise of
their guaranteed statutory rights.
WE WILL offer to Nick Toth immediate and full
reinstatement in his old job or to a substantially
equivalent job and make him whole for any loss of
earnings he may have suffered by reason of the
discrimination against him.
WE WILL notify Nick Toth if presently serving in the
Armed Forces of the United States of his right to full
reinstatement upon application in accordance with the
Selective Service Act and the Universal Military
Training and Service Act, as amended , after discharge
from the Armed Forces.
All our employees have the right to form, join , or assist
labor organizations or to refrain therefrom.
Dated By
ADAM Loos BOILER
WORKS CO.
(Employer)
(Representative) (Title)
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.
If employees have any question concerning this notice
or compliance with its provisions , they may communicate
directly with the Board ' s Regional Office, 1695 Federal
Office Building , 1240 East Ninth Street , Cleveland, Ohio
44199, Telephone 216-522-3715.