Frazier, Inc.

National Labor Relations Board - Board Decisions

Jun 19, 1967

165 N.L.R.B. 528 (N.L.R.B. 1967)

528 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Frazier , Inc. and General Drivers and Helpers
Union Local 554, affiliated with Interna-
tional Brotherhood of Teamsters , Chauf-
feurs, Warehousemen and Helpers of
America . Case 17-CA-3010
June 19,1967
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND ZAGORIA
On April 5, 1967, Trial Examiner Jerry B. Stone
issued his Decision in the above-entitled proceeding,
finding that the Respondent had engaged 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, the 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 Respondent's exceptions
and brief, and the entire record in the case, and
hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner, as modified
below.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner and
hereby orders that the Respondent, Frazier, Inc.,
Omaha, Nebraska, its officers, agents, successors,
and assigns, shall take the action set forth in the
Trial Examiner's Recommended Order, as herein
modified:
1. Add the numeral "1." before the words "Cease
and desist from" in the Recommended Order of the
Trial Examiner's Decision.
2. Delete from paragraph 1(b) of the
Recommended Order of the Trial Examiner's De-
cision the words "in their job assignments or."
3. Delete from the fourth indented paragraph of
the notice the words, "when we changed the work
assignment of Richard Gary Osborne and"; and
"changed work assignment and."
agree . Without passing on the Trial Examiner's credibility
determination concerning the testimony of Dean Frazier as to the
reason for Osborne's work transfer , we are unable to conclude
from the record as a whole that the General Counsel has sustained
his burden of proving by a preponderance of the evidence that the
transfer was discnminatorily motivated and that Respondent's
economic defense is pretextuous . Accordingly , we shall dismiss
that allegation of the complaint
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
JERRY B. STONE, Trial Examiner: Upon a charge, an
amended charge, and a second amended charge filed
(respectively on September 1, October 12, and
November 7, 1966) by General Drivers and Helpers Union
Local 554, affiliated with International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of
America (herein sometimes called the Union or Charging
Party), the General Counsel of the National Labor
Relations Board, by the Regional Director for Region 17
(Kansas City, Missouri), issued a complaint dated
November 29, 1966, against Frazier, Inc. (herein
sometimes called the Respondent, Employer, or
Company), alleging violations of Section 8(a)(1), (3), and (4)
of the Act. The Respondent's duly filed answer admitted
some of the facts but denied the commission of unfair
labor practices.
Pursuant to appropriate notice, a hearing was held
before me at Omaha, Nebraska, on January 4 and 5, 1967.
All parties were represented at the hearing, participated
therein, and were afforded the right to present evidence, to
examine and cross-examine witnesses, to offer oral
argument, and to file briefs. Briefs have been filed by the
General Counsel and Respondent's counsel and have been
considered.
At the hearing the General Counsel was allowed to
amend his complaint to allege an additional contention of
violation of Section 8(a)(1) of the Act. The Respondent, at
the hearing, was allowed to amend his answer so as to
deny the additional allegation of violation of Section
8(a)(1) of the Act.
The issues in this case are whether or not Respondent
(1) has promised employees benefits if they abandon the
Union (in violation of Section 8(a)(1) of the Act), (2) has
threatened its employees with discharge should the Union
not win a representation election (in violation of Section
8(a)(1) of the Act), (3) discriminatorily discontinued
payment for benefits for an employee into a health and
welfare fund (in violation of Section 8(a)(1) of the Act),
(4) discriminatorily changed the work assignments of
Richard G. Osborne on September 8, 1966 (in violation of
Section 8(a)(3) and (4) of the Act), and (5) discriminatorily
discharged Richard Osborne on October 7, 1966 (in
violation of Section 8(a)(3) and (4) of the Act).
Upon the entire record in this case and from my
observation of the witnesses, the following findings of fact,
conclusions of law, and recommendations are made.'
i The Trial Examiner found, inter alto , that Respondent i All credibility resolutions made herein are based on a
violated Section 8(a)(1), (3 ), and (4) of the Act by virtue of a composite evaluation of the demeanor of the witnesses and the
discriminatory change in the work assignment of employee probabilities of the evidence as a whole
Richard Osborne on or about September 8, 1966. We do not
165 NLRB No. 75
FRAZIER, INC.
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYER INVOLVED
The facts pertaining to the business of the Employer
involved are based upon stipulations by the parties.
Frazier, Inc., is a Nebraska corporation engaged in the
installation and servicing of residential and commercial air
conditioning, heating, plumbing, and sheetmetal work.
During the fiscal year preceding January 4, 1967, the
Employer (1) purchased materials and supplies valued in
excess of $50,000 directly from sources located outside the
State of Nebraska, and (2) sold materials and supplies
valued in excess of $50,000 directly to customers located
outside the State of Nebraska. The Respondent is a
member of the Omaha-Council Bluffs Sheetmetal
Contractors Association and the Omaha Plumbing,
Heating, Cooling Contractors Association, which
association is engaged in collective bargaining. The
Respondent has annual sales of at least $500,000.
Based upon the foregoing, it is concluded and found that
the 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.
H. THE LABOR ORGANIZATION INVOLVED
General Drivers and Helpers Union, Local 554, affiliated
with International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, is an
organization open to membership by employees, and deals
with employers concerning wages, hours, working
conditions, and grievances on behalf of employees
represented by it.
Considering the foregoing, it is concluded and found
that General Drivers and Helpers Union, Local 554,
affiliated with International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, is,
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
A. Promise of Benefits2
Sometime in May or June 1966 employee Richard G.
Osborne spoke to Respondent 's Vice President Dean R.
Frazier about the chances for a vacation and a possible
raise. Dean R . Frazier told Osborne that he did not know
about this at the time. Osborne told Dean R . Frazier that
he had heard that Pioneer Pipe had "gone union" and that
he would like to have some of the benefits that "they had."
Later Osborne secured some union authorization cards
and thereafter secured several employees ' signatures
thereto and sent the cards in to the Union.
Later during the same period of time, May or June 1966,
Osborne spoke to Dean Frazier and told Frazier that he
had secured union cards, had them signed by certain
employees , and had sent them in to the Teamsters . Frazier
told Osborne that he believed that Osborne was "covered
by the Laborers Union," and that he wished that Osborne
3 The facts are based on a composite of the credited testimony
of Osborne and Dean Frazier
3 The employees were Osborne, Allen, and Tilton
' The facts are based on a composite of the credited testimony
of Osborne and Dean R. Frazier.
' There is no evidence as to what Frazier said in answer to
Osborne's query.
529
would hold off for a while because the Company was
thinking "then" of a pension plan for the three who
worked in the stockroom .' Osborne told Frazier that he
would call the Union (the Teamsters ) and tell them to hold
off on the processing of the union cards.
Considering the foregoing , I conclude and find that the
Respondent , by Dean Frazier , made an implied promise of
benefits to employees with such promise being designed to
encourage the employees to refrain from union activities.
Such conduct is conduct violative of Section 8(a)(1) of the
Act. I so conclude and find.
B. Other Events Leading to Representation Hearing"
Approximately 2 months later, Osborne approached
Frazier again and asked if he could meet with him and
talk. Frazier told Osborne that they could meet and talk.
However, no definite date was set for such a meeting.
Dean R. Frazier went on vacation the following week.
Thereupon, Osborne called Thompson (for the Teamsters)
and told him to proceed with whatever proceedings he had
to.
Apparently during the next week or two Osborne
approached Frazier at work. Osborne asked Frazier if he
could come over to his house to see him. Frazier and
Osborne agreed on a time to do so and Frazier told
Osborne to bring his wife over and they would have some
coffee and ice cream. Osborne and his wife thereafter
visited the Fraziers. Osborne and Frazier talked about the
Teamsters Union and the fact that Osborne had made
application for membership in the Union. Osborne asked
Frazier how he felt about the matter." Osborne also asked
why Bill Allen had received a raise and he had not.
Osborne asked Frazier if there were a chance for him to
ever get a paid vacation. Frazier told Osborne that the
reason Bill Allen had received a raise was that Allen had
come to him and complained that Osborne was overpaid as
far as he (Allen) was concerned. Frazier also told Osborne
that he did not know whether Osborne stood a chance of
getting a paid vacation. Osborne asked Frazier about the
status of the pension plan idea. Frazier told Osborne that
he had been busy, work had slacked off, and he had more
or less forgotten about it. Osborne asked Frazier if they got
a pension plan would it be that when the Company was
busy, they would "give" it to the employees, and when
they were not busy, they would take it away from the
employees. Frazier did not reply to Osborne's remarks.
The Representation Petition and Hearing a
On July 21, 1966, the Union filed a petition for
representation (Case 17-RC-5141) for a unit of certain
employees of Respondent.7 Thereafter, a hearing in the
matter was held on August 17, 1966.
In the foregoing case and at the hearing, it was the
petitioner's position that it represented the majority of
Respondent 's employees in an appropriate bargaining unit
of drivers and warehousemen, and that the employees in
such unit were Allen, Tilton, and Osborne. The
Respondent contended that the unit sought was
6 The facts are based upon the exhibits in the record and the
excerpts in the record from the transcript of the August 17, 1966,
representation hearing
r Such petition is designed to set in process an investigation (by
informal investigation and by formal hearing if necessary) and an
election if necessary to determine the representation status of the
union.
530 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
inappropriate, Allen and Tilton were part of a sheetmetal
workers unit,8 and Osborne was "de facto" represented by
the Laborer' s union.9
The Regional Director's Decision and Direction of
Election in Case 17-RC-5141 was issued on
September 13, 1966. The Regional Director's Decision set
forth that the Respondent classified William A. Allen and
Emmet E. Tilton as sheetmetal worker apprentices, and
classified Richard Gary Osborne and Donald Schumacher
as laborers. The Regional Director's Decision set forth the
Parties' contentions as indicated before in this Decision
and set forth that neither party expressly took a position
with respect to Schumacher.
The Regional Director's Decision revealed that both
Sheet Metal Workers International Association, Local
No. 3, AFL-CIO, and United Association of Journeymen
and Apprentices of the Plumbing and Pipe Fitting
Industry of the United States and Canada, AFL-CIO,
Local No. 16, appeared at the hearing and claimed
contractual interests in the representation for purposes of
collective bargaining of certain employees of the
Respondent. The referred-to organizations , however, did
not affirmatively or by implication assert that any of the
three employees (Allen, Tilton, or Osborne) were covered
by their respective contracts or were in their respective
units. Neither organization expressed interest in or
attempted to intervene in the proceeding. Laborers
International Union of North America, AFL-CIO, was
served with notice of the August 17, 1966, proceeding but
made no appearance.
The Regional Director's Decision further set forth as
follows:
Osborne and Allen are primarily concerned with the
supply of materials to the Employer's plumbers and
sheet metal workers, respectively. They are stationed
in the stock room and receive instructions from
several supervisors. Tilton apparently also works out
of the stock room but spends most of his time making
deliveries of materials and supplies. All three also
perform miscellaneous tasks at the Employer's place
of business such as making minor repairs , servicing
the Employer's vehicles, keeping the work area clean,
and of course, loading and unloading trucks. Osborne
occasionally makes deliveries of materials to job sites,
but Allen does not. Tilton occasionally helps the sheet
metal workers as requested. All three employees
assist each other in the performance of their
respective duties, but there is no interchange
between them on the one hand and the Employer's
sheet metal workers or plumbers on the other. While
Allen some six to seven years ago was a sheet metal
worker apprentice trainee, he thereafter spent some
four years in the Employer's office and was then
assigned to his present duties . The Employer has
been making contributions for Allen to a health and
welfare fund sponsored by Sheet Metal Workers, but
it has not been doing so with regard to Tilton. Neither
of them received pay increases when sheet metal
worker employees received them on about June 1,
1966. The record also indicates that the Employer has
been making contributions on behalf of Osborne to
another health and welfare fund sponsored by the
Teamsters and Laborers Unions. Neither Tilton nor
" Represented by Sheet Metal Workers International
Association, Local No. 3, AFL-CIO.
Allen considers himself a sheet metal worker
apprentice trainee. While the Employer testified that
Osborne's duties include the digging of ditches,
Osborne himself testified that he has not performed
any such work for the last five years.
Schumacher is classified as a laborer. The record
shows that he digs ditches, and that the Employer
makes contributions on his behalf to the same health
and welfare fund to which it makes contributions for
Osborne. According to testimony adduced by the
Employer, Schumacher also cleans the shop and
grounds, helps unload materials, and generally
performs the same duties as Osborne. Osborne
testified that Schumacher is a laborer, that he "works
out of the shop," and that he does not do the same
work as he (Osborne). When asked to tell the
difference, as far as he knew, between his type of
work and that performed by Schumacher, Osborne
testified that Schumacher "digs ditches and I do
not dig ditches," and that Schumacher is away from
the plant "99 percent of the time." In view of my con-
clusion stated below, I see no necessity to resolve
the credibility issue raised by the conflicting testi-
mony recited just above.
In view of the foregoing, I conclude and find that
none of the four employees here involved (Osborne,
Allen, Tilton and Schumacher) is in fact represented
for purposes of collective bargaining by any labor
organization . That the Employer has been making, or
is going to make, contributions to various health and
welfare funds on behalf of any or all of them does not
amount to actual representation. Moreover, none of
the respective labor organizations concerned (Sheet
Metal Workers, Plumbers, and Laborers) has
indicated in any manner that it claims to represent
these employees or any of them. On the contrary,
under the circumstances here present, their lack of
interest in such representation amounts to be
disavowal of any representation claim . Further, since
these four individuals are the only production and
maintenance employees of the Employer who are not
represented for purposes of collective bargaining, I
find and conclude that they constitute a residual unit,
which is appropriate for the purposes of collective
bargaining , and I shall direct an election in that unit.
As indicated, Richard G. Osborne appeared and
testified as a witness in the August 17, 1966, hearing.
Excerpts from the transcript record of that hearing reveal
that Osborne appeared as a witness on behalf of the
Petitioner (the Union), he appeared as a subpenaed
witness, he testified with respect to his duties as an
employee, he testified that he had done some " digging"
when first hired but that such had ceased in 1961, worked
in the supply room as a plumbing stock clerk, ordered
material through the purchasing agent , checked the jobs to
see what plumbing material belonged on the job for the
plumbers, and took care of the plumbing trucks as far as
materials went , did some delivering, did not perform work
classified as sheet metal fabrication, did not perform
plumbing work away from the plant , and was not an
apprentice and had not heard of a classification of
"apprentice trainee."
Osborne further testified in the representation hearing
that the Respondent had never told him that he was
B With reference to Laborers International Union of North
America, AFL-CIO, Local 1140.
FRAZIER, INC.
covered by the "Laborers Health and Welfare Fund," he
had never received any communication from the
Contractors, Laborers and Teamsters Health and Welfare
Fund concerning eligibility to such fund, and since
February 1966 had not received a policy of insurance as
regards such fund. 10
Osborne also testified in the representation hearing to a
comparison of his duties with those of Schumacher.
Osborne testified to the effect that Schumacher was a
laborer and worked out of the shop, the differences in
duties were that Schumacher dug ditches and he did
not, and Schumacher was away from the plant 99 percent
of the time.
As revealed by the excerpts from the Regional
Director's Decision previously set out, the Regional
Director found it unnecessary to resolve the credibility
question raised by the conflicting testimony relating to the
alleged differences between Schumacher's and Osborne's
duties. The Regional Director's Decision revealed a
rejection of the Respondent's contentions that Allen,
Tilton, and Osborne were represented by the organizations
referred to (Sheet Metal Workers, Plumbers, and Laborers
Union) and found that a question concerning
representation existed in an appropriate unit as follows:
All supply room employees, truckdrivers, and laborers
at the Omaha, Nebraska, facility of Frazier, Inc.,
excluding office clerical employees, salesmen,
professional employees, guards and supervisors within the
meaning of the Act, and, all other employees.
The Regional Director found that employees Allen,
Tilton, Schumacher, and Osborne were the employees
composing the appropriate unit found.
Background and Events; Circa September 5, 196611
The evidence reveals that the Respondent made
contributions to health and welfare funds for virtually all of
its employees. Thus contributions were made for
employees who worked in the sheetmetal workers unit into
a health and welfare fund for sheetmetal employees.
Contributions were also made into this fund for employee
Allen. Contributions were not made into this fund for
Tilton because he had now worked for Respondent for a
period of 6 months' duration.t Contributions were made
for employees who worked in the "plumbers" unit.
Contributions were also made to a Contractors, Laborers,
and Teamsters health and welfare fund for employees
classified as "laborers." Thus in 1966 contributions to the
latter fund were made on behalf of employees Bisanz,
Schumacher, Osborne, and Spicer. There was no
contribution made into this fund on behalf of one
employee, classified as a laborer, named Ross Sacca.
Dean Frazier credibly testified to the effect that payments
were not made on Sacca's behalf because he was a
temporary employee-a college student working in the
summer.
531
C. Discriminatory Assignment of Work to Osborne
Around September 1, 1966, the Respondent's business
and planned business had decreased." About this time
Dean Frazier gave Osborne a work ticket for a "Salvation
Army" job. The "Salvation Army" job was a job which
involved the doing of certain work connected with the
remodeling of the "old" Kellogg Building.14 Frazier told
Osborne that there was digging to be done and Osborne
should not come into the shop but was to report to a
certain job from then on.
As has been noted previously, Osborne after being hired
in 1961, initially performed digging duties but had not
performed any digging since the latter part of 1961. As also
previously indicated, Osborne had testified to facts in
conflict with Respondent's contentions that Osborne was a
laborer.
Osborne, after the instruction from Frazier, reported to
work on the "Salvation Army" job and engaged in
"digging" and miscellaneous work. At the time that
Osborne reported to work on the "Salvation Army" job
there were three men, classified as laborers, working on
the job. These men were Schumacher, Spicer, and
Sacca.1i Leroy Alexander, an apprentice trainee for the
plumbers, took over most of the duties previously
performed by Osborne in the supply room.
The General Counsel contends in effect that the
Respondent on or about September 8, 1966, discriminated
against Osborne by changing his work assignment. There
is no question but that Osborne's work assignment
changed around this time. Nor is there any question but
that the facts overwhelmingly reveal that Osborne
received less overtime and less overall pay than what he
had previously been receiving.
The facts are clear that the Respondent knew that
Osborne was the principal moving factor in the union
campaign, the Respondent had initially attempted to
dissuade Osborne from acting for the Union by promising
certain benefits,1" and Osborne's testimony at the
representation hearing was contradictory to Respondent's
position that he was a laborer.
The facts as hereinafter set out also reveal that the
Respondent was discriminatorily motivated against
Osborne. Thus (1) the Respondent, around the time of the
change of duties for Osborne, eliminated payment into the
Teamsters-Laborers health and welfare fund on behalf of
Osborne but continued making payments on behalf of
Schumacher, a laborer. And (2) Dean Frazier, later in
September 1966, told Osborne that due to the confusion
Osborne had caused, he did not see how he could keep
him on, and later told Osborne, around September 23,
1966, that if the Union lost the election, the Respondent
could not keep him on.
From the foregoing, I conclude and find that the General
Counsel has established a strong prima facie case that the
Respondent discriminated in the job assignments to
Osborne on or around September 8, 1966.
10 Osborne had quit work in December 1965 but had returned
to Respondent 's employment in February 1966
11 The facts are based on a composite of the credited testimony
of Dean Frazier , Sorensen , Schurkamp , and exhibits regarding
health and welfare payments
12 Apparently the qualifying requirements included that the
employees have worked for at least 6 months for the employer
10 The facts are based on the credited testimony of Robert
Frazier and exhibits in the record
1' The facts relating to Osborne's assignment to the "Salvation
Army" job are based on the credited testimony of Osborne and
Frazier To the extent that Frazier 's testimony is inconsistent with
the facts found, it is discredited as indicated hereinafter
15 Osborne testified to the effect that Schumacher, Spicer, and
Sacca were working on the job Dean Frazier testified to the effect
that Spicer and Sacca had been terminated prior to Osborne's
direction to report to work on the job I am convinced that Frazier
was confused in this testimony I credit Osborne's testimony as
indicated.
16 Concerning a pension plan for the employees involved
i
532 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Respondent's main defense is that it was
economically motivated in its decision to make such job
assignment changes. The facts are clear that
Respondent's business declined during said period and
resulted in less overall pay for regular and overtime work.
Dean Frazier, however, appeared confused in his
testimony as to the basic reason for Osborne's
reassignment . Thus Frazier testified to the effect that
Spicer and Sacca had been terminated prior to the
assignment of Osborne to the "digging" work at the
"Salvation Army" job. The credited facts reveal that
Spicer and Sacca were not terminated until after the
assignment of Osborne to said job. Considering the overall
evidence and the implausible reasoning advanced by
Respondent witnesses as to the reason for eliminating
payment into the health and welfare fund for Osborne, I
am convinced that Dean Frazier's testimony as to the
reason he assigned Osborne to work "digging" on the
"Salvation Army" job is not reliable and is not to be
credited. I have considered the fact that Osborne was
classified as a "laborer" and that a "plumbing apprentice
trainee" took over his prior duties. The Respondent's
actions with regards to the elimination of payments into
the health and welfare fund, however, is contradictory to a
belief that Osborne was a laborer. Such contradictory
action casts great suspicion on Respondent's motivation.
Thus I am convinced that the totality of the evidence
reveals that the Respondent was discriminatorily
motivated in the assignment of "digging" work to Osborne
on and around September 8, 1966, because of its
knowledge of Osborne's union activity and because of its
displeasure with his testimony in the representation
hearing on August 17, 1966. Such discriminatory
assignment of work under such circumstances constitutes
a violation of Section 8(a)(1), (3), and (4) of the Act. I so find
and conclude.
D. Events; Circa September 22, 1966; " Discriminatory
Cessation of Health and Welfare Payments
Subsequent to Osborne's rehiring by the Respondent in
February and through June 19, 1966, the Respondent
processed payments to the Contractors, Laborers, and
Teamsters health and welfare fund on behalf of Richard
Gary Osborne. On September 22, 1966, the Respondent
forwarded to said fund payment on behalf of certain
employees classified as "laborers" but such payments did
not include payment on behalf of Osborne.
The facts are clear that the Respondent, excepting for
this incident relating to Osborne, paid similar payments on
behalf of all regular employees into such type funds. There
were several employees (Tilton and Sacca) for whom
11 The facts are based upon the exhibits in the record
pertaining to the health and welfare fund payments and upon the
credited aspects of the testimony of Dean Frazier, Schurkamp,
and Sorensen
is The facts are based on Dean Frazier's and Osborne's
credited testimony The testimony reveals that this must have
occurred subsequent to September 13, 1966, the date of the
Regional Director's Decision and Direction of Election in Case
17-RC-5141, and that it occurred on a Friday. Considering the
timing of necessary events and based on a fair inference thereto, I
find that the event occurred on September 23, 1966 A different
payments were not made because such employees had not
worked the qualifying time to be considered regular
employees.
Considering the foregoing alone, the facts reveal an act
of discrimination. By this act the Respondent
discriminated against Osborne by making him the only
regular employee not receiving such benefits. The facts
are further clear that at the time of this discriminatory act,
the Respondent was utilizing Osborne in "laborer" type
work, and on September 22, 1966, the Respondent
continued making payment for other employees contended
by Respondent as being laborers. Sorensen, Respondent's
office manager, testified to the effect that when it came to
the attention of Dean Frazier that Osborne was not a
member of the Union, Frazier directed him to delete
Osborne from inclusion in such payments. Schurkamp,
Respondent's secretary-treasurer, testified in effect that
he was knowledgeable as to the health and welfare
funds and knew that the policy of the Company was not to
limit payments into such funds on behalf of union
members only.
Considering all of the foregoing, Osborne's union
activity on behalf of the Teamsters, and Respondent's
knowledge of such activities, it is clear and I conclude and
find that the Respondent discriminated against Osborne
on September 22, 1966, by eliminating payments on his
behalf to a health and welfare fund. I conclude and find
that by such conduct the Respondent violated Section
8(a)(1) of the Act as alleged.
E. Events; Circa September 23, 1966; 18 Threats
On Friday, September 23, 1966, Dean Frazier visited the
"Salvation Army" jobsite in order to pay the mechanics
and Osborne. At the time Frazier asked Osborne for
certain keys for the shop and the main gate in order to give
the same to Schumacher because the latter was starting to
work at an earlier time than the others. During the
conversation Osborne told Frazier that he had heard that a
definite date had been set for the representation election.
Frazier told Osborne that he knew about the setting of the
election date and, due to all the confusion Osborne had
caused, he did not see how the Respondent could keep,
Osborne on.19
Later, apparently in the same conversation, Frazier told
Osborne that if the Union lost, the Respondent could not
keep him (Osborne) on.
Considering all of the foregoing, it is clear, and I
conclude and find that the Respondent, by Dean Frazier,
threatened Osborne that his job was endangered because
he had engaged in union activity. Such conduct is violative
of Section 8(a)(1) of the Act. I so conclude and find.20
finding as to the specific date, however, would not affect the
overall results herein
19 As to these events Osborne testified fully, frankly, and in a
forthright manner; Dean Frazier's testimony did not appear as
frank or forthright I found Osborne to be a more reliable
appearing witness I discredit Frazier's testimony to the extent
that it may be construed as a denial that he threatened Osborne
with loss of job opportunity because of Osborne's union activity.
10 Even if on a later date than September 23, 1966, Frazier told
Osborne that if the Union lost, the Respondent could not keep him
on, the evidence warrants this finding.
FRAZIER, INC. 533
F. Events; Circa September 28, 19662'
Around September 28, 1966, Osborne while working on
the Salvation Army job, went back to the shop to pick up
some materials for said job. Dean Frazier saw Osborne at
the galvanized and block pipe rack located behind the
shop. Frazier asked Osborne what he was doing there.
Apparently Osborne told Frazier that he was picking up
material for the Salvation Army job. Frazier told Osborne
in effect that he did not want him coming into the shop for
anything and he should tell Bob Ray, the plumbing
foreman at the Salvation Army job, about this. When
Osborne returned to the Salvation Army jobsite, he
reported to Ray what Frazier had said.
Events; Circa October 4, 1966 22
Osborne continued to work at the Salvation Army
jobsite. Around October 4, 1966, Osborne called'' Dean
Frazier and apparently related that he had everything done
except the paving (of cement) for some ditches in the
basement. Osborne told Frazier that before he could do
anything else, he would need some help. Dean Frazier told
Osborne to come back into the shop. Osborne returned to
work at the Respondent's shop on Wednesday, October 5,
1966.
G. The Election 24 October 6, 1966
On October 6, 1966, the National Labor Relations Board
conducted the representation election in Case
17-RC-5141 at the Respondent's plant. The election was
held between 2 and 2:15 p.m. After the election was over
and the ballots had been counted, Todd Tilton, the Union's
observer at the election, notified Osborne that the Union
lost the election.
Osborne continued to work for a while and then decided
to telephone his wife. Osborne and his wife discussed the
election results and how Mrs. Osborne felt. Mrs. Osborne
told Osborne that she was feeling all right. It is noted that
at the time involved Mrs. Osborne was pregnant. Although
Mrs. Osborne related that she was feeling all right,
Osborne "had a feeling" that Mrs. Osborne did not feel
well.
Osborne went up to the front office to locate one of the
Fraziers to tell them that he was leaving. Osborne did not
see the Fraziers but noted that the conference room door
was shut. Osborne returned to where Art Peterson, the
shop foreman for the sheetmetal workers, was and told
Peterson that he was going home to see how his wife was
and he would probably finish watching the world series on
television. Peterson told Osborne that he hoped everything
was all right and he would see Osborne in the morning.
Peterson asked Osborne if the Fraziers had said anything.
Osborne told him that they had not said anything. Osborne
thereupon went home for the day.
H. The Termination of Osborne
Sometime, apparently shortly after 3 p.m., Dean Frazier
had occasion to want to see Osborne to talk to him. Frazier
went out to the supply room.2`1 Frazier looked for Osborne
but did not see him. Frazier thereupon spoke to William
Allen.26 Allen told Frazier that Osborne had quit. Frazier
asked Allen in effect if he were sure of what he was saying
and what was the basis of his statement that Osborne had
quit. Allen told Frazier that the reason he said Osborne
had quit was that Osborne had said he was going home to
watch television and he had left around 2:30 p.m.
Dean Frazier returned to the conference room and told
his lawyer, his brother, and Schurkamp that Osborne had
quit, that he had questioned Allen about the matter, and
that Allen had said that he knew Osborne had quit
because Osborne had said that he was going home to
watch television and had then left aroti id :30 p.m. to go
home.27 Dean Frazier then related to the others that he
had told Osborne during the preelection campaign period
that because of the confusion Osborne had caused, he did
not see how the Respondent could keep Osborne. Dean
Frazier asked the others what they should do now.
Frazier's lawyer stated that the Respondent did not have
to do anything; if Osborne had quit, he had quit.
Schurkamp told the others that tomorrow was payday, and
that he (Dean Frazier) should tell John Sorensen to get
Osborne's time ready so that Osborne could be paid up to
date and they could be done with the whole matter.
Frazier thereupon went to see the paymaster and told
him (John Sorensen) to get Osborne's time made up
because Osborne had quit. Sorensen informed Frazier that
the normal payroll for the week (ending on Wednesday)
had already gone to the computer service and the time for
the day Thursday, October 6, 1966) would normally be
paid the following week. Frazier told Sorensen to make a
special check to give Osborne for the hours turned in that
day and to give him this when he came in for his other
check (the normal weekly check).
Todd Tilton Quits2s
Before the 2 p.m. representation election, Emmet
"Todd" Tilton told Sheetmetal Foreman Arthur Peterson
in effect that if the Union did not win the election he was
going to quit. After the representation election, apparently
around 4 p.m., Tilton told Peterson that he was quitting
"tomorrow," he was turning his time in, and Peterson
could let "them" know. Peterson asked Tilton if he wanted
him to let "them" know or was he going to tell them
himself. Tilton told Peterson to tell the Respondent.
Around 4:15 p.m., Peterson went to where Robert and
Dean Frazier were and informed them of Tilton's
"quitting." Dean Frazier told Peterson that if this was the
way Tilton felt about it and if Tilton wanted to quit, Tilton
could quit that day. Apparently, Peterson relayed the
21 The facts are based on the credited testimony of Osborne
Considering the timing of other events, the election date, and
Osborne's credited testimony , I fix the timing of this event as
being around September 28, 1966.
22 The facts are based on Osborne's credited testimony.
23 Apparently Osborne used the telephone and called Dean
Frazier.
24 The facts are undisputed regarding the election and time
thereof. The facts relating to the events surrounding Osborne's
activities on October 6, 1966, are based on a composite of the
credited testimony of Osborne and Peterson Peterson , from his
testimony, revealed that he paid little attention to the event To the
extent that his testimony is not as complete as Osborne's, I am
convinced it is because he did not pay great attention to the
incident.
25 The facts are based on Dean Frazier 's testimony as credited
2e Allen and Osborne worked in the same supply room area.
27 The facts are based on a composite of the credited testimony
of Dean Frazier, Schurkamp, and Robert Frazier and a fair
inference from all of the facts
28 The facts are based on the credited testimony of Peterson
299-352 0-70-35
534 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
message to Tilton and Tilton quit as of the end of the day
on October 6, 1966.
Events of October 7, 1966
On October 7, 1966, Osborne reported to work at his
regular reporting time.29 Osborne arrived at work around
7:45 a.m. Around 8 a.m. Dean Frazier was in the process
of making job assignments. Osborne waited for his
assignment and asked Frazier if he were in or out. Frazier
told Osborne to fill out his time for October 6, 1966, and
that he could pick up his check at noon. Osborne did so.
The testimony of Respondent's witnesses is confusing
as to when Tilton received his pay. Sorensen attempted to
explain the difference in treatment as to final pay for
Tilton30 and Osborne by saying that Tilton had indicated
that he would not be back on October 7, 1966, for his
check and therefore the check for the October 6, 1966,
hours went through the computer service resulting in a
check on October 14, 1966. Schurkamp attempted to
explain the difference between the way Tilton and
Osborne received their final pay by stating that it was
because the Respondent learned too late that Tilton had
quit on October 6, 1966, to process a check in the same
manner as they did in Osborne's case, and that when
Tilton came in on October 7, 1966, he had said to mail the
difference in pay (for hours on October 6, 1966) to him.
The General Counsel contends that the totality of the
evidence reveals that the Respondent was discriminatorily
motivated in the termination of Osborne's employment
status on October 6, 1966. The General Counsel contends,
in part, that the difference in the way that Tilton and
Osborne received their final pay constitutes evidence of
discriminatory motivation.
The Respondent contends that it was not
discriminatorily motivated in its actions toward Osborne
and that Osborne quit and was not fired.
As to Respondent's contention that Osborne quit, I
conclude and find from all of the evidence that Osborne
did not quit on October 6, 1966. Osborne credibly testified
to the effect that he did not quit. In my opinion, as to this
point, the credited testimony of Peterson constitutes
evidence that Osborne did not quit. Peterson credibly
testified that Osborne told him that he was going to go
home and watch television, he filled out his timecard,
went up toward and into the office and returned, he
(Peterson) did not recall saying anything to Osborne, and
at the time that he (Peterson) didn't feel there was any more
to it than that. If Osborne had actually quit on October 6,
1966, I am convinced that he would have exhibited by
word and deed to Peterson, on the occasion of his leaving,
that he was quitting. Peterson's testimony reveals that
Osborne's leaving was not indicative to him that Osborne
was quitting.
21 The facts are based on a , omposite of the credited testimony
of Osborne and Dean Frazier
30 Who was paid by checks through the computer service
'i Sorensen testified in effect that "normally," if an employer
left the shop for matters other than business, the employee
reported to his immediate supervisor. Sorensen also testified that
if the immediate supervisor was not available, that since he
(Sorensen) "normally" was in the office, the employee reported to
him I am not persuaded that Sorensen's testimony reveals a firm
and fixed policy as regards to reporting to the immediate
supervisor or Sorensen Sorensen's use of the term "normally" is
Some contention has been made with respect to whether
Osborne followed normal procedure in leaving on
October 6, 1966. The answer to this is that there is no
contention that Osborne was fired for leaving the job
without permission on October 6, 1966. Moreover,
Osborne credibly testified that the rule for him, Bill Allen,
and Peterson was that "if we went off the job we was to
leave a note to tell a foreman supervisor where we were
going." Osborne also credibly testified that on one of two
occasions he had asked permission to be off in the past, he
had asked Dean Frazier, and on the other occasion he had
told Milt Saxton, the office secretary.-;'
The facts persuade that there was a difference in
treatment of Osborne and Tilton as to their final pay. I am
convinced that if the Respondent had been motivated by
nondiscriminatory reasons, Tilton and Osborne would
have received their final pay in a similar fashion. Both
Robert Frazier and Dean Frazier knew by the end of the
workday on October 6, 1966, that a "special check" had to
be made to pay Osborne for his hours October 6. Both
Robert and Dean Frazier knew that by the end of the
workday on October 6, 1966, that Tilton had "quit" that
day. The facts clearly reveal that Osborne's check would
be signed by noon. I find no logical basis for distinction
between the handling of Tilton and Osborne as to their last
pay. Even assuming that Tilton was not coming in to get
his October 7, 1966, check, it is clear that a "special
check" could have been issued and the two checks mailed
to Tilton simultaneously.
As indicated previously, the facts reveal that Osborne
did not quit on October 6, 1966, and Osborne's status had
ceased being that of an employee because of Respondent's
action. This action of the Respondent was thus tantamount
to the action of discharging Osborne. That the Respondent
did not consider Osborne as being a simple "quit" is
revealed by Dean Frazier's action in asking other officials
what they would do about it. If Dean Frazier had thought
that Osborne's action was a simple "quit," there was no
basis for concern. The answer to this would have been
simple, that Osborne had quit. Dean Frazier's concern
clearly reveals that he believed that Osborne was reacting
to his (Frazier's) statement that due to the confusion
caused by Osborne,32 that if the Union lost the election,
Respondent could no longer use Osborne.
Considering all of the foregoing, including Respondent's
propensity to discriminate against Osborne because of his
union activity and testimony in the representation hearing
as revealed by the handling of the health and welfare fund
payments, and considering Dean Frazier's statement to
Osborne as to Respondent's not having use for him if the
Union lost the election, I conclude and find that the facts
preponderate for a finding that the Respondent
discriminatorily terminated Osborne on October 6, 1966,
indicative that there were exceptions to the testified method
Considering that Allen, Peterson, and Osborne worked in the
shop and supply area, I find Osborne's testimony more reliable as
to the scope of the rule as to who to report to
32 Under the circumstances (as Dean Frazier admittedly knew
that Osborne's wife was pregnant, and Allen, who related the
facts as to Osborne's leaving, was antagonistic toward Osborne),
it is hard to believe, absent discriminatory motivation, that Dean
Frazier would not have checked into the circumstances of
Osborne's leaving more carefully than he did
FRAZIER, INC.
but on the pretextuous basis that Osborne had quit.33 By
such action the Respondent discriminatorily terminated
the employment of Osborne on October 6, 1966, in
violation of Section 8(a)(1), (3), and (4), I so conclude and
find.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of the Respondent set forth in section III,
above, occurring in connection with the 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 certain unfair
labor practices, it is recommended that it cease and desist
therefrom and that it take certain affirmative action of the
type which is conventionally ordered in such cases, as
provided in the Recommended Order below, which is
found necessary to remedy and to remove the effects of
the unfair labor practices and to effectuate the policies of
the Act.34
Having found that Respondent violated Section 8(a)(4),
(3), and (1) of the Act by discriminatory work assignment to
Richard Gary Osborne around September 8, 1966, and by
the discriminatory discharge of Richard Gary Osborne on
October 6, 1966, it is recommended that Respondent offer
him immediate and full reinstatement to his former
position, or to a substantially equivalent position, without
prejudice to his seniority and other rights and privileges,
and make said Osborne whole for any loss of pay suffered
by reason of the discrimination against him, by payment to
him of a sum of money equal to the difference, if any,
between the wages he would have earned, absent the
discrimination against him , and the amount actually
earned, from the date of the commencement of
discrimination around September 8, 1966, to the date of
Respondent's offer of reinstatement to Osborne, as
recommended herein. Such backpay shall be computed on
a quarterly basis, and in the manner established by the
Board in F. W. Woolworth Company, 90 NLRB 289,
291-294, and with interest thereon as prescribed by the
Board in Isis Plumbing & Heating Co., 138 NLRB 716.
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. General Drivers and Helpers Union, Local 554,
affiliated with International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, is
now, and has been at all times material herein, a labor
organization within the meaning of Section 2(5) of the Act.
2. The Respondent is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
3. By interfering with, restraining, and coercing
employees in the exercise of their rights guaranteed in
Section 7 of the Act, the Respondent has engaged in and is
as The totality of the facts further reveals that the Respondent
specially handled the method of "final" pay to Osborne because it
had compelling reasons to get rid of Osborne
" The General Counsel requested and submitted a simplified
535
engaging in unfair labor practices within the meaning of
Section 8 (a)(1) of the Act.
4. By discriminating in regard to the hire and tenure of
employment of employees thereby discouraging
membership in or activities on behalf of a labor
organization , Respondent engaged in unfair labor
practices within the meaning of Section 8 (a)(3) of the Act.
5. By discriminating against an employee because he
had testified in a Board representation proceeding, the
Respondent engaged in unfair labor practices within the
meaning of Section 8(a)(4) of the Act.
6. The aforesaid unfair unfair labor practices are unfair
labor practices affecting commerce within the meaning of
Section 2 (6) and (7) of the Act
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and
conclusions of law and the entire record in this case, it is
recommended that Respondent, its officers, agents,
successors, and assigns , shall:
Cease and desist from:
(a) Discouraging membership in or activities on behalf
of General Drivers and Helpers Union, Local 554,
affiliated with International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, or
any other labor organization of its employees, by
discharging, laying off, or otherwise discriminating in
regard to the hire or tenure of employment or any term or
condition of employment of its employees.
(b) Discharging or discriminating against employees in
their job assignments or as to their health and welfare
contributions as a reprisal because they have given or give
testimony in a National Labor Relations Board proceeding
or because of their union activity.
(c) Promising employees benefits as an inducement to
cause employees to refrain from engaging in union
activities or support of the Union.
(d) Threatening employees with loss of jobs or other
reprisals if they engaged in union activity.
(e) In any other manner interfering with, restraining, or
coercing its employees in the exercise of their right to self-
organization to form, join , or assist any labor organization,
to bargain collectively through representatives of their
own choosing, and to engage in concerted activities for the
purpose of collective bargaining or other mutual aid or
protection as guaranteed by Section 7 of the Act, and to
refrain from any and all such activities.
2. Take the following affirmative action designed to
effectuate the policies of the Act:
(a) Offer Richard Gary Osborne immediate and full
reinstatement to his former position, or to a substantially
equivalent position, without prejudice to his seniority or
other rights and privileges.
(b) Notify Richard Gary Osborne 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) Make whole Richard Gary Osborne for any loss of
pay suffered by reason of the discrimination against him in
proposed notice for posting In accordance with Board policy as
set forth in Bilyeu Motor Corp , 161 NLRB 982, the remedial
notice has been drafted in simple language
536 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the manner set forth in the section of this Decision entitled
"The Remedy."
(d) 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.
(e) Post at its premises, in Omaha, Nebraska, copies of
the attached notice marked "Appendix."35 Copies of said
notice, to be furnished by the Regional Director for
Region 17, after being duly signed by the Respondent's
representative, shall be posted by Respondent
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
the Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(f) Notify the Regional Director for Region 17, in
writing, within 20 days from the receipt of this Decision,
what steps have been taken to comply herewith.36
35 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 "
36 In the event that this Recommended Order is adopted by the
Board , this provision shall be modified to read . "Notify said
Regional Director, in writing , within 10 days from the date of this
Order, what steps Respondent has taken to comply herewith "
APPENDIX
NOTICE TO ALL EMPLOYEES
effectuate the policies of the National Labor Relations
Act, as amended, we hereby notify you that:
WE WILL NOT promise you benefits in order to get
you to keep from engaging in union activities or
support of the Union.
WE WILL NOT threaten to fire you over the Union.
WE WILL NOT discharge you or otherwise
discriminate against you because you give testimony
in a proceeding under the National Labor Relations
Act.
WE WILL NOT discriminate against any employee
for engaging in union activity. Since it has been found
that we did so when we changed the work assignment
of Richard Gary Osborne and when we fired Richard
Gary Osborne, WE WILL offer Richard Gary Osborne
full reinstatement to his old fob, and we will pay him
for his loss in pay and similar benefits that he suffered
because of his changed work assignment and
discharge. If he is presently in the Armed Forces of
the United States, we will notify him of his right to full
reinstatement upon application after discharge from
the Armed Forces.
WE WILL NOT discourage union activity or
membership in General Drivers and Helpers Union
Local 554, affiliated with International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers
of America , or any other labor organization, by
discharging , or discriminating against you if you
choose to engage in union activity or join Local
Union 554, or any other union.
You and all of our employees are free to become, or to
refrain from becoming members of any labor organization.
FRAZIER, INC.
(Employer)
Dated By
(Representative ) (Title)
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board, and after
a trial in which all parties had the opportunity to present
their evidence and from which it has been found that we
have violated the National Labor Relations Act (Law) and
it has been required that we post this notice and abide by
what we say we will do in this notice, and in order to
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, 610 Federal
Building, 601 East 12th Street, Kansas City, Missouri,
Telephone FR 4-5282.