Fikse Bros., Inc.

National Labor Relations Board - Board Decisions

Oct 15, 1975

220 N.L.R.B. 1301 (N.L.R.B. 1975)

FIKSE BROS, INC
Fikse Bros, Inc and Arthur N Stephenson Case
21-CA-12694
October 15, 1975
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS FANNING AND
PENELLO
On December 4, 1974, Administrative Law Judge
Martin S Bennett issued the attached Decision in
this proceeding Thereafter, the General Counsel
filed exceptions and a supporting brief
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel
The Board has considered the record and the at-
tached 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
However, in deferring to the arbitral forum and in
dismissing the complaint herein, we find it unneces-
sary to rely on Electronic Reproduction Service Corpo-
ration,' as did the Administrative Law Judge 2
The General Counsel's case, indeed the complaint
itself, is very narrowly drawn The sole basis on
which the General Counsel alleges that the Spielberg
standard I has not been met is the claimed inadequa-
cy of the lump-sum payment awarded by the griev-
ance panel to employee Stephenson in lieu of back-
pay, not with the panel's failure to consider fairly any
statutory question which may have arisen because
the Respondent sought to discharge Stephenson We
do not believe that it would effectuate the policies of
the Act for the Board to enter such a controversy
solely for the object of reassessing and, perhaps, ad-
justing the amount of a monetary award
In these limited circumstances, we shall dismiss the
complaint herein
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the complaint herein be, and it hereby is,
dismissed in its entirety
i 213 NLRB 758 (1974)
2 Member Penello while adhering to the principles set forth in Electronic
Reproduction Service supra finds it unnecessary to rely on that case in de
ciding the issues herein presented
3 Spielberg Manufacturing Company 112 NLRB 1080 (1955)
1301
MEMBER FANNING, dissenting
The Administrative Law Judge, who is affirmed by
the majority, dismisses the complaint in this case on
the authority of Electronic Reproduction Service Cor-
poration, 213 NLRB 758 (1974) There a Board ma-
jority, over the dissenting opinion of Member Jen-
kins and me, insisted on deferring to an arbitrator's
award despite the fact that the award did not purport
to resolve the question of unlawful discrimination
Since then the Court of Appeals for the District of
Columbia has specifically rejected that extraordinary
application of the Spielberg and Collyer line of cases
In Banyard [McLean Trucking Co ] v N L R B , 505
F 2d 342 at 348 (1974), the court held that its "ap-
proval of the Board's deferral under Spielberg of stat-
utory issues to arbitral resolution along with contrac-
tual issues is conditioned upon the resolution by the
arbitral tribunal of congruent statutory and contrac-
tual issues " Where the Board insists on deferring to
arbitration even though a question of unlawful dis-
crimination has not been resolved the "Board's ab-
stention goes beyond deferral and approaches abdi-
cation " Ibid
Although the majority insists that it does not rely
on Electronic Reproductions, its deferral to arbitration
in this case applies that discredited doctrine As indi-
cated above, the court in McLean specifically with-
held its approval of the Board's deferral policy and
labeled it a virtual abdication of the Board's statuto-
ry responsibility where, as here, the arbitral tribunal
had not resolved the congruent statutory and con-
tractual issues Contrary to the majority, the critical
issue is not the simplistic one of "adjusting the
amount of a monetary award " The Respondent had
been charged with committing a serious unfair labor
practice The arbitral tribunal and now the Board
majority refuse to resolve that issue, contrary to the
explicit direction of the McLean court
Moreover, apart from the majority's continued
adherence to the Electronic Reproductions rule, to
hold, as they do, that this Act is effectuated where a
discriminatee is awarded about one-sixth the back-
pay due him is, in my opinion, a further abdication
of the Board's responsibility under Section 10(c) of
the Act The right of an employee discharged unlaw-
fully under Section 8(a)(3) and (1) to be made whole
for his economic losses and be offered reinstatement
is not a matter to be treated cavalierly Contrary to
the majority, it is a matter of the utmost importance
in the effectuation of this statute and has always
been so regarded by the Board and the courts If
employee Stephenson was unlawfully discharged by
Respondent, as I find he was, he must now be of-
fered unconditional reinstatement and all the wages
220 NLRB No 199
1302 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
he has lost as a consequence of Respondent's unfair
labor practice. This is required so that he will know
and Respondent will know and all of Respondent's
employees will know that an employer cannot violate
this Act and escape with a slap on the wrist. Any
other decision is, as the General Counsel asserts, re-
pugnant to the policies of the Act.
With respect to the merits of the complaint, the
record is clear that a contract between Respondent
and Teamsters Local 692 at all times covered all me-
chanics, including Stephenson, employed by Respon-
dent. That contract contained a union-security
clause , provided for notification to the Union of new
hires, bargaining with respect to new jobs or classifi-
cations, and specific wage rates for mechanics. Un-
der the contract Stephenson, when hired in July
1973, would have been entitled to $5.07 per hour.
Instead, he was hired by Respondent at $3.50 per
hour and paid only that amount until the day of his
final discharge on February 15, 1974. Respondent
simply ignored the existence of the contract so far as
its mechanics were concerned. However, Stephenson
himself contacted the Union the following October
and requested a transfer into Local 692. Apparently,
for the first time, the Local's business agent learned
that Stephenson had been employed by Respondent
for some months. On December 12, 1973, the busi-
ness agent agreed to sign him and a fellow mechanic
into the Union the next day. Up to that point Re-
spondent had found no serious complaint with
Stephenson's work. He had never been warned that
he was on the verge of discharge, nor had he been
told that he was an incompetent mechanic. On the
morning of December 13, however, he was met by
Supervisor Bahre who discharged him because of in-
ferior workmanship. Although Bahre denied that the
Union had anything to do with Stephenson's dis-
charge on that day, the latter's testimony, which
stands uncontradicted on the record, is that Bahre
told him: "No, I told you when I hired you that there
was no union in this shop, never had been, and there
never would be."
Stephenson's discharge was rescinded by Bahre at
the insistence of the Local's business agent who
signed up Stephenson and a fellow mechanic as
planned. Thereafter, Stephenson was not permitted
to drink coffee while working, free coveralls were no
longer supplied to him, and Respondent's president,
Fikse, directed Bahre to keep daily records on
Stephenson's work performance.
On February 7, 1974, Stephenson was given a
warning notice because of his failure to report an
industrial accident immediately. On February 12 he
was given another warning notice to the effect that
he had not provided details or information of the
industrial accident. This notice was also marked
"DISCHARGE." On February 13 a third notice car-
ries the remark "Refused to sign warning report or
discharge." Contrary to the Administrative Law
Judge, none of the warning notices mentions that
Stephenson was being suspended because he insisted
on keeping an appointment during working hours
with the Local's new business agent. No warning or
discharge notice exists recording that Stephenson
was discharged on February 15 because he was
smoking near a flammable solvent.
There is unresolved testimony in the record that
Fikse told Stephenson on February 14 that Fikse in-
tended to discharge Stephenson for incompetence.
Nevertheless, Stephenson reported for work the
morning of February 15. Stephenson's testimony, de-
nied by Fikse, is to the effect that at that time Fikse
told Stephenson that Fikse had no use for Ste-
phenson because the latter had gone behind Fikse's
back and contacted the Union. However, Stephenson
further testified, and this testimony was not contra-
dicted by Bahre, that Bahre joined the conversation
and told Stephenson that if Bahre had known that
Stephenson wanted to join the Union, Bahre would
never have hired Stephenson.
Respondent defends on the ground that on Febru-
ary 15 when Stephenson reported for work he lit and
smoked a cigarette near a flammable solvent, which
Stephenson admitted. Respondent asserts that Ste-
phenson was discharged for this reason.
In my opinion, the evidence set forth above and
the reasonable inferences to be drawn therefrom pre-
ponderate in favor of a finding that Stephenson was
discharged on December 13 and again on February
15 because he contacted and attempted to join the
Union and secure the benefits of the existing con-
tract, which Respondent had denied him. According-
ly, I would find Respondent in violation of Section
8(a)(3) and (1) of the Act, and I would provide an
appropriate remedy.
DECISION
STATEMENT OF THE CASE
MARTIN S. BENNETT, Administrative Law Judge: This
matter was heard at Los Angeles, California, on October
17, 1974. The complaint, issued September 12 and based
upon a charged filed May 20, 1974, by Arthur N. Ste-
phenson, an individual, alleges that Respondent, Fikse
Bros., Inc., has engaged in unfair labor practices within the
meaning of Section 8(a)(3) and (1) of the Act. Briefs have
been submitted by the parties.
Upon the entire record in the case, and from my obser-
vation of the witnesses, I make the following:
FIKSE BROS., INC.
FINDINGS OF FACT
I. JURISDICTIONAL FINDINGS
Fikse Bros., Inc., a California corporation, maintains its
principal office and place of business at Cerritos, Califor-
nia, where it is engaged in the business of hauling and
delivering bulk cement by truck. It enjoys annual revenues
in excess of $50,000 from the transportation of same across
state lines. I find that the operations of Respondent affect
commerce within the meaning of Section 2(6) and (7) of
the Act.
11. THE LABOR ORGANIZATION INVOLVED
General Truck Drivers, Chauffeurs and Helpers, Local
692, International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, herein the Union,
is a labor organization within the meaning of Section 2(5)
of the Act.
111. THE ALLEGED UNFAIR LABOR PRACTICES
A. Introduction; The Issue
Respondent discharged the Charging Party, Stephenson,
who was hired in July 1973, on February 15, 1974, alleged-
ly for union activities , according to the General Counsel,
and for ample cause, according to Respondent. On or
about April 15, 1974, after an arbitration hearing, Respon-
dent agreed to reinstate him, provided that he accept $250
as full settlement of any backpay liability. This offer was
rejected on the basis that this was less than Stephenson
would have earned during these 2 months, although he did
accept the payment. The General Counsel specifically does
not make any claim that he was entitled to a higher rate of
pay prior to his discharge on February 15. He similarly
does not claim any backpay after April 15, except to the
extent that it may accrue should Respondent refuse to rein-
state him. Stephenson, after the arbitration hearing, which
awarded him reinstatement and $250, did not apply for
reinstatement.
B. Sequence of Events
Arthur Stephenson entered the employ of Respondent
on July 5, 1973, as a diesel repair mechanic at $3.50 per
hour. The truckdrivers and mechanics of Respondent at all
times material herein were covered by a contract with the
Union. Although the contract sets forth wage rates for
drivers and mechanics, it appears that no mechanics were
subjected to it or required to become members of the
Union, as provided therein.
In October of 1973, desirous of joining the Union, Ste-
phenson contacted Business Agent Frank Crowley and ad-
vised him that he had been a member of a sister local;
Stephenson duly filled out some forms given him by Crow-
ley. On or about November 15, Crowley wrote Stephenson
that he did not have a valid withdrawal card from the sister
labor organization and that he would have to pay an initia-
tion fee, a transfer fee, and dues in arrears.
1303
In December, some days prior to December 13, Crowley
advised Stephenson that he and the other mechanic in the
shop, known herein only as "C. B.," could join the Union
if they paid a fee of $25. Crowley also told Stephenson that
he would appear at the shop on December 13 to sign up the
two mechanics.
Stephenson duly reported for work on December 13 and
was approached by Lead Mechanic Marvin Bahre . There is
evidence that Bahre qualifies as a supervisor within the
meaning of Section 2(11) of the Act. Stephenson claimed
that Bahre stated that he was discharging him because his
work was slow and that too much of his work had to be
redone. Stephenson asked if his termination was related to
the impending visit to the shop by Crowley that day to sign
up the two mechanics.' Bahre allegedly responded that it
did not and that he had told Stephenson when hired that
"there would never be" a union "in this shop." Stephenson
picked up his tools and left.' Stephenson ascertained from
the Union that Crowley would be at the shop at 2 p.m. that
day, returned at that hour, and met with Crowley and Bah-
re in the office of the latter. According to Stephenson,
Crowley informed Bahre that the discharge of Stephenson
for slowness and inefficiency would violate the contract
due to Stephenson's tenure and that Respondent would
have to return him to work. Bahre reluctantly agreed to do
so.
Stephenson and C. B. were thereafter signed up that day
by Crowley into union membership. Crowley also in-
formed Bahre on this occasion that Stephenson was to be
paid at a rate of $5.07 an hour as a Class 2 mechanic and
that C. B. could be paid at a rate of $4.87 an hour as a tire
and grease man. According to Stephenson, he noticed a
cooling in Respondent's attitude to him thereafter, includ-
ing his right to drink coffee at work from his thermos and
the discontinuance of company provided coveralls.
At lunch on February 11, Stephenson telephoned the
Union and requested an appointment with one Payne, who
had replaced Crowley. He was advised that Payne wished
to see him at 2 p.m. Stephenson next told Bahre that he
had to visit the Union at 2 p.m. After a brief interval,
Bahre responded that President Fikse had stated he could
not leave. Fikse came upon the scene and allegedly asked
Stephenson, according to the latter, why he had to leave
and why Stephenson could not discuss union matters with
him. Fikse allegedly stated that he had no regard for a
person who went to the Union behind his back and cost
him money. Bahre joined in and said that he would not
have hired Stephenson if he knew that Stephenson wished
to join the Union.
Fikse next forbade Stephenson to leave. Stephenson
opined, as he testified, "union matters come ahead of shop
matters." Fikse warned him that if he left he would run the
risk of suspension. Stephenson then declared that he would
assume that risk and departed for his 2 p.m. meeting, after
1 Neither Crowley nor C . B. testified herein.
2 According to Bahre , he discharged Stephenson on this occasion for the
assigned reasons, after conferring with President Henry Fikse of Respon-
dent. Bahre, a member of the Union, testified that he had no knowledge of
Stephenson 's involvement with the Union and that Stephenson 's reference
thereto was his first knowledge thereof.
1304 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Fikse gave him a warning notice that he was suspended.
The warning notice, in essence , reflects what had taken
place.
Stephenson proceeded to the office of the Union and
met with Payne, who told him that he should not have left
work under such circumstances. Payne telephoned Fikse
and discussed Stephenson's suspension with him. Payne
next advised Stephenson that he had been given a 3-day
suspension for leaving the plant without permission, but
told him to report for work the next day. Stephenson did so
report the next day, February 12, and was suspended for 3
days for leaving the job without adequate notice.
According to the General Counsel, on this occasion, Fik-
se also raised the problem with Stephenson of his smoking
in the shop, contrary to fire department regulations. Ste-
phenson also claimed that he should be paid at the rate of
$5.07 rather than $3.50 per hour, his going rate of pay.
Stephenson next opined that Respondent owed him ap-
proximately $1,800, this representing the difference in wag-
es paid and what he claimed was owed since his hire. As
noted, the General Counsel does not claim this sum herein
as owing to Stephenson.
After leaving the plant on February 12, Stephenson went
to a local medical center to obtain a release for an injury at
work, this treated after leaving work on February 6. Ste-
phenson appeared at the plant on February 12 and pro-
cured a form to submit to the insurance company of Re-
spondent. He was then proffered some forms by Fikse
relating to warning letters and discharge notices and re-
fused to sign same.
Stephenson did not report for work on February 13. On
February 14, as he testified, he telephoned Fikse, who told
him that he intended to discharge him because he was an
incompetent mechanic. Nevertheless, Stephenson reported
for work on the morning of February 15. Fikse then in-
formed him that he considered him as an incompetent me-
chanic and further, according to Stephenson, that he had
little regard for him because Stephenson had gone behind
his back and contacted the Union.
During this very conversation, Stephenson smoked a cig-
arette near a bucket of solvent, despite the fact that no-
smoking signs were prominently posted. Fikse reminded
Stephenson that he had promised not to smoke in the shop
and Stephenson apologized, extinguishing his cigarette.
There is evidence that the solvent was highly flammable.
Business Representative Payne sent Fikse a letter pro-
testing the warning notices to Stephenson. On April 15, the
grievance of Stephenson was submitted to an arbitration
panel. As heretofore stated, the General Counsel does not
contend that anything is due to Stephenson prior to the
60-day period litigated before the arbitration panel. It is
urged only that Stephenson should have been paid the dif-
ference between the paid rate of $3.50 an hour for the 60-
day period and the contract rate of $5.07 an hour , less the
$250 awarded him by the panel and accepted. From his
testimony, it would seem that Stephenson never applied for
his job again because he felt that he was entitled to $1,800
for the period prior to the 60-day period litigated herein.
C. The Decision of the Grievance Panel
Pursuant to the grievance provisions of the contract, the
discharge of Stephenson was heard before a grievance pan-
el on April 15, 1974, which announced its decision forth-
with. There were three employer and three union represen-
tatives on the panel and Stephenson was represented by
Payne. As noted, Crowley was previously vigilant in per-
sonally representing Stephenson, and there is nothing to
indicate that Payne, Crowley's successor, was in any way
remiss.
The panel unanimously decided that Stephenson would
return to work on April 16; that he would thereafter be
paid at the rate of $5.07 an hour; that he would be awarded
$250 for the period between February 15 and April 15,
exclusive of unemployment compensation; and that Re-
spondent would make the appropriate health and welfare
contributions for the months of February, March, and
April of 1974. Stephenson was tendered the sum of $250,
accepted same, but never returned to work. In part, at
least , he believed that he was entitled to the sum of $1,800,
representing the difference he should have earned for the
period preceding his discharge. As noted, the General
Counsel expressly did not litigate that issue.
D. Analysis and Conclusions
It may well be true that Respondent welcomed the op-
portunity to rid itself of Stephenson. See Silver Eagle Com-
pany, 214 NLRB No. 26 (1974 ). Be that as it may, I deem a
recent decision of the Board to be dispositive of this case.
In Electronic Reproduction Service Corporation, 213 NLRB
758 (1974), a divided board held that it would honor an
arbitration award in a case such as this even though the
award gave no indication that the arbitrator had been pre-
sented with or had considered the unfair labor practice
issue. Although, in the instant case, it would perforce seem
that the issue was duly raised, the Board, in the cited case,
held that it was sufficient that the issue could have been
raised before the arbitrator. In essence, as is apparent, the
Board has expanded its doctrine set forth in Spielberg Man-
ufacturing Company, 112 NLRB 1080 (1955) in an effort to
discourage dual litigation.
There is nothing in the record relating to the grievance
proceedings to indicate in any way that the union was less
than zealous in representing Stephenson. Indeed, the rec-
ord warrants the finding that it represented him strongly
and fairly. I therefore find and conclude that the complaint
should be dismissed in its entirety.3
CONCLUSIONS OF LAW
1. Fikse Bros., Inc., is an employer whose operations af-
fect commerce within the meaning of Section 2(6) and (7)
of the Act.
2. General Truck Drivers, Chauffeurs and Helpers, Lo-
cal 692, International Brotherhood of Teamsters, Chauf-
3 Although, were I to treat with the issue of the discharge , I would con-
clude that Respondent was justified in discharging Stephenson for smoking
on February 15 over a bucket of flammable solvent.
FIKSE BROS, INC
feurs , Warehousemen and Helpers of America , is a labor
organization within the meaning of Section 2 (5) of the Act
3 Respondent has not engaged in unfair labor practices
within the meaning of Section 8(a)(1) and (3) of the Act
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
ORDER4
The complaint is dismissed in its entirety
1305
4 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
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