Frazier, Inc.

National Labor Relations Board - Board Decisions

Oct 30, 1969

179 N.L.R.B. 444 (N.L.R.B. 1969)

444 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Frazier , Inc. and General Drivers and Helpers Union
Local 544, affiliated with International
Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America. Case
17-CA-3010
October 30, 1969
SUPPLEMENTAL DECISION AND
ORDER
BY MEMBERS FANNING, JENKINS, AND ZAGORIA
On June 19, 1967, the Board issued its Decision
and Order in this proceeding,' finding that
Respondent violated Section 8(a)(1), (3), and (4) of
the National Labor Relations Act, as amended. It
further found that Respondent had not engaged in
certain other unfair labor practices, and dismissed
the allegations of the complaint pertaining thereto.
The Board' ordered Respondent to cease and desist
from the unfair labor practices found, and to take
certain affirmative action necessary to effectuate the
purposes of the Act.
On June 5, 1969, the United States Court of
Appeals for the Eighth Circuit issued its decision' in
which the court: (1) affirmed the Board's finding
that Respondent violated Section 8(a)(1) of the Act
by promising Osborne pension benefits if he would
abandon his activities on behalf of the Union, (2)
reversed the Board's finding that Respondent
violated Section 8(a)(1) of the Act by discontinuing
payments on Osborne's behalf to the health and
welfare fund, and (3) found that the question
whether Respondent violated Section 8(a)(3) and (4)
of the Act by threatening to fire Osborne for union
activities, and subsequently doing so, must be
remanded to the Board with instructions to
reexamine the record and determine whether, absent
Respondent's "admission,"4 the General Counsel
sustained his burden of proof on this issue The
court further found that the Trial Examiner did not
err in crediting Osborne's testimony, or in reaching
conclusions from the credited testimony, and that,
while he committed one material error (referred to
above), it was not due to bias on his part.
1165 NLRB No 75
'Pursuant to the provisions of Section 3(b) of the Act, the National
Labor Relations Board has delegated its powers in connection with this
case to a three - member panel
'NLRB v Frazier . Inc , 411 F 2d 1161 (C A 8)
'The court found that the Trial Examiner, in a finding adopted by the
Board , erroneously attributed a statement (discussed herein below) to Dean
Frazier, Respondent 's vice president
In accord with the instructions of the court, the
Board has reexamined the entire record in this case
with regard to the allegation that Respondent
violated Section 8(a)(3) and (4) of the Act by
threatening to fire employee Osborne for his union
activities, and by subsequently discharging him
because of those activities, and because he testified
at a Board hearing. After a careful reconsideration
of the record we affirm our earlier finding.
The Trial Examiner found that Respondent
unlawfully discharged employee Osborne. In
reaching his conclusion, the Trial Examiner relied
upon statements made by Dean Frazier to Osborne
(1) that due to the confusion Osborne had caused
that he did not see how he could keep him on, and
(2) that if the Union lost the election that
Respondent could not keep him on The Trial
Examiner further found that Dean Frazier told other
officers of the company. "[I] told Osborne during
the pre-election campaign period that because of the
confusion [he] caused that [I] did not see how
Frazier could keep Osborne." As the court pointed
out, the record does not support a finding that Dean
Frazier made any such statement to the officers of
the company.
To what extent the Trial Examiner relied upon
this erroneous finding is not clear, but even
eliminating this finding, the record nevertheless
shows that statements to the same effect were made
by Frazier to Osborne Osborne's testimony was
credited by the Trial Examiner The Board adopted
these credibility findings and the court affirmed the
Board's reliance upon such evidence. Moreover, as
suggested by the court, Respondent's discontinuance
of Osborne's health and welfare payment, while not
violative of Section 8(a)(1),s is relevant in
determining the motivation for his discharge.
Accordingly, based upon the foregoing evidence, we
conclude that Respondent did, in fact, discharge
Osborne because of his union activities and because
he testified at a Board hearing, all in violation of
Section 8(a)(1), (3), and (4) of the Act.
Therefore, we adhere to our original Order (165
NLRB No. 75) except that, in order to conform
with the court's reversal of our findings with regard
to health and welfare payments, paragraph 1(b) of
that Order is hereby deleted, and the following
substituted:
"(b) Discharging employees as a reprisal because
they have given or give testimony in a National
Labor Relations Board proceeding or because of
their union activity "
'The Board accepts this finding as the law of the case
179 NLRB No. 73