Bay Standard Products Mfg. Co.

National Labor Relations Board - Board Decisions

Aug 14, 1969

178 N.L.R.B. 79 (N.L.R.B. 1969)

BAY STANDARD PRODUCTS MFG. CO.
Gerhard Landgraf and Peter Landgraf , d/b/a Bay
Standard Products Mfg. Co . and International
Association of Machinists and Aerospace Workers,
AFL-CIO, District Lodge No . 115, Local Lodge
No. 824. Case 20-CA-4146
August 14, 1969
SUPPLEMENTAL DECISION
BY CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND ZAGORIA
On September 6, 1967, the National Labor
Relations Board issued a Decision and Order in the
above-entitled proceeding,' finding that the
Respondent had violated Section 8(a)(1), (3), and (5)
of the National Labor Relations Act, as amended,
and ordering it to cease and desist therefrom and
take certain affirmative action. Thereafter, upon its
own motion, the Board decided to reconsider its
finding that the Respondent violated Section 8(a)(3)
and (1) by discriminatorily discharging Raymond
Lackey because of his union activities.' We have
again reviewed the entire record, and, having
reconsidered the matter, we affirm our original
finding, for the reasons stated below.
Raymond Lackey was hired on April 1, 1966, at
$2. 10 an hour. He was placed in charge of the
packing and shipping department of the
Respondent's plant about April 15, 1966, and was
discharged on June 30. At that time, he was earning
$2.30 an hour. The Respondent contends that
Lackey was discharged for errors in packing orders
for shipment, and that the Respondent was unaware
of his union activities.
On June 28, 1966, Lackey told his supervisor,
Peter Landgraf, that his wife was ill and he had to
take her to a doctor. He in fact left the plant to
contact the Union. Lackey testified that he did not
disclose the real reason for leaving the plant because
he did not want to lose his job. However, he did tell
employee Nick McLain the purpose of his leaving
the plant. Lackey then left the plant and contacted
Union representative Sam Swisher. He told Swisher
that the Respondent's employees were about ready
to go on strike because an employee had been
injured-while working, and they felt it would be
advisable to have a representative "lead them."
Swisher advised Lackey that he could arrange to
meet with the employees the following evening.
Lackey returned to the plant and reported his
conversation with Swisher to Nick McLain, who
subsequently was made a supervisor. Employees
Ronald Gates and Harold Lee Henry also discussed
the Union in the plant that day, and Gates told
McLain he was going to attend a union meeting at
Ray Lackey's house after work to discuss the
'167 NLRB No. 44.
'Pursuant to the provisions of Sec. 3(b) of the Act, the Board has
delegated its powers in connection with this case to a three-member panel.
79
Union.
Upon leaving the plant that day, the employees
held their first organizational meeting at Lackey's
house which is located near, and can be seen from,
the plant. The employees went directly from the
plant to Lackey's home, and their parked
automobiles were in full view from the plant.
Ronald Gates testified that, while the men were
congregating outside Lackey's home, Peter Landgraf
drove up, asked what was going on, and asked
Lackey to go with him "someplace." Lackey
testified that one of the employees present told
Landgraf they were collecting money for the
employee who had been injured on the job.
Landgraf then asked Lackey to accompany him
back to the plant to finish packing and loading the
truck. Lackey went with Landgraf, worked for
about 30 minutes, and then returned to the meeting.
He told the employees of his conversation with
Swisher and the proposed meeting for the following
evening, and the employees elected Lackey union
steward.
On June 29, the scheduled meeting was held, at
which 14 employees signed union authorization
cards. Swisher gave additional cards to Lackey for
distribution to employees not attending the meeting.
The next day, Lackey gave the cards to employees
at the plant, including Nelson, Henry, and Beard,
who signed them and returned them to Lackey.
On June 30, after working hours, Gerhard
Landgraf, co-owner of the Respondent Company,
came to Lackey's home, and, without first knocking,
entered and told Lackey he was fired because of
numerous customer complaints. Employee Wayne
Roberts, who was present, testified that Landgraf
told Lackey he had received another letter from his
customers complaining of parts missing in the
surfboard carriers which they had received from the
Respondent, and that Landgraf pulled a letter out of
his pocket and was going to show it to Lackey, but
the latter said he did not want, to see it. Lackey
testified that Landgraf said he had received another
complaint that there were parts missing from the
shipments, but that he did not recall whether
Landgraf had a letter with him.
Lackey admitted that Landgraf had spoken to
him about customer complaints on three occasions
during his 3 months of employment. The
Respondent claims that some 50 customer
complaints were received during this period.
Gerhard Landgraf testified that he had some of
these complaint letters in the hearing room, but he
did not remember whether any of them were
received on the day he discharged Lackey. As the
letters were neither offered nor placed in evidence,
there is nothing in the record that would indicate
whether any of them concerned shipments packed by
Lackey.'
'We do not rely on the Trial Examiner 's statement that the Respondent's
failure to produce these letters warrants an inference that there were no
such letters in existence.
178 NLRB No. 7
80 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It is undisputed that Gerhard Landgraf spent at
least two-thirds of his time in the plant during the
period in question. Landgraf testified that during
1966, prior to June 30, he did the packing himself
approximately 40 to 50 times, that his son Peter did
some packing, and that employee Crawford and an
employee called "Bob" also did some packing.
Landgraf further testified that he did not know the
number or name of customers or the type of product
involved, or when the shipment was packed or
shipped or received by the customer; that the
mistakes could have been made by persons other
than Lackey, including himself, his son, and
employee Crawford. Landgraf further testified that
the complaints concerned defective as well as
missing parts. As neither Lackey nor anyone else
inspected the packages before they were shipped, it
would not have been reasonable for Respondent to
assume that Lackey was responsible for defective
parts, or for missing parts that other packers,
including the Landgrafs themselves, had failed to
include in the shipment.
Mrs. Waller, who was Gerhard Landgraf's
secretary, spoke to Lackey about a customer
complaint letter on the day of his discharge. She
testified, however, that she did not know the date
the order was shipped or whether the complaint was
sent upon receipt of the order. Thus, the record does
not disclose the identity of any customer who
complained or the shipment involved, or the identity
of the individual responsible for the errors in
packing. Lackey insisted he was blameless. Lackey
testified that on June 28, 2 days before his
discharge, there were several packers preparing
orders for shipment to customers. On that same day
Lackey was absent from the plant for a time when
he left to contact the union representative.
It is undisputed that the Respondent's asserted
reason for the discharge of Lackey, errors in
packing, had existed long before the employees
engaged in union activities. It is also clear that the
Respondent considered Lackey a satisfactory
employee prior to the time he engaged in union
activities. Peter Landgraf testified, "We were very
happy with him during the time that he had worked
there." Admittedly, he was placed in charge of
shipping because the Respondent found him to be a
competent worker. The above facts reveal that
Lackey's discharge followed closely the beginning of
the Union's organizational campaign, of which
Lackey was the leader. Lackey's alleged errors in
packing not only were condoned prior to his union
activities, but he was given two wage increases
during his 3 months of employment, one of which
was given only a week before his discharge. As we
have found, the Respondent in other respects used
coercive means to discourage unionization of its
employees. These circumstances, including the
precipitate and unprecedented manner in which the
Respondent discharged Lackey, indicate that the
reason asserted for Lackey's discharge was used by
the Respondent as a pretext to rid itself of the union
leader.
We find no merit in the Respondent's contention
that it was unaware of Lackey's union activities.
The record shows that the Respondent was well
aware that Lackey was the leader of the union
movement. Thus, Gerhard Landgraf, while denying
any knowledge of Lackey's union activities, did not
deny that he told the employees that employee
Wallace had reported to him the union activities of
the employees, including the first meeting held at
Lackey's home. In fact, Landgraf admitted to
various employees that he knew all about their
union activities before the strike on July 1, and he
told Lackey on the picket line he "knew all along"
that Lackey had started the union activity and
therefore would not be reemployed. The Respondent
also revealed its knowledge of employees' union
activities when, on June 29, Gerhard Landgraf came
to employee Robert Nelson while he was working at
the plant and asked him whether he had attended
the union meeting which was held that evening.
In view of all the circumstances, therefore,
including Respondent's violations of Section 8(a)(1)
and (5), the timing and precipitate nature of
Lackey's discharge, as well as his extensive union
activities, we reaffirm our finding that the
Respondent seized upon customer complaints about
errors in shipments to conceal its determination to
rid itself of an admittedly satisfactory employee
because of his union activities, in violation of
Section 8(a)(3) and (1) of the Act."
Accordingly, we hereby reaffirm our Decision and
Order heretofore issued in this case.
'Levinson 's Owl Rexall Drugs, Inc., 161 NLRB 1531, enfd 405 F 2d 494
(C A.9)