Gilbert-Robinson, Inc.

National Labor Relations Board - Board Decisions

Sep 21, 1971

193 N.L.R.B. 279 (N.L.R.B. 1971)

GILBERT-ROBINSON, INC. 279
Gilbert-Robinson, Inc. and International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, Warehouse, Mail Order, Ice,
Cold Storage, Soft Drink, Waste Paper , Distribu-
tion Workers , Egg Breakers, Candlers, Miscellane-
ous Drivers and Helpers , KCMO, KCK and
Vicinities, Local No. 838 and Local Joint Executive
Board of the Hotel and Restaurant Employees and
Bartenders International Union , AFL-CIO and its
Constituent Members, Parties to the Contract.
Case 17-CA-4489
September 21, 1971
DECISION AND ORDER
By CHAIRMAN MILLER AND MEMBERS JENKINS
AND KENNEDY
On May 7, 1971, Trial Examiner John P. von Rohr
issued his Decision in the above-entitled proceeding,
finding that Respondent had engaged in and was
engaging in certain unfair labor practices and
recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the
attached Trial Examiner's Decision. Thereafter,
Respondent filed exceptions to the Trial Examiner's
Decision and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-member
panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and brief, and
the entire record in the case, and hereby adopts the
findings,' conclusions,2 and recommendations of the
Trial Examiner.3
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Trial Examiner and hereby orders that
Respondent, Gilbert-Robinson, Inc., its officers,
agents, successors, and assigns, shall take the action
set forth in the Trial Examiner's recommended Order.
MEMBER JENKINS, concurring:
I agree with my colleagues that Respondent violated
Section 8(a)(1), (2), and (3) of the Act. However, in
finding a violation of Section 8(a)(2), I rely solely on
those facts showing that when Respondent's supervi-
sors informed the employees that they would have to
join the Bartenders Union that day or lose their jobs,
the supervisors required the employees to sign a
combination card which included a dues deduction
authorization for the Bartenders Union. Although the
card contained an inconspicuous provision which the
employee could initial, if he noted it, cancelling the
checkoff authorization, Respondent did not advise its
employees of their right to do so. I find Respondent's
conduct constituted an unlawful requirement of dues
deduction authorizations from its employees as a
condition of employment and thus violative of
Section 8(a)(2) and (1) of the Act.
In view of my conclusions herein, I find it
unnecessary to determine whether the Respondent
violated Section 8(a)(2) by its unilateral enforcement
of the lawful union-security provisions in its collec-
tive-bargaining agreement with the Bartenders Un-
ion.
i The Respondent has excepted to certain credibility findings made by
the Trial Examiner. It is the Board 's established policy not to overrule a
Trial Examiner's resolutions with respect to credibility unless the clear
preponderance of all of the relevant evidence convinces us that the
resolutions were incorrect. Standard Dry Wall Products, Inc, 91 NLRB 544,
enfd 188 F.2d 362 (C.A. 3). We have carefully examined the record and
find no basis for reversing his findings.
2 We agree with the Trial Examiner's finding that Respondent's
discharge of employee Nunnink on November 11, 1970, violated Section
8(a)(l) and (3) of the Act in that Respondent discharged Nunmnk for his
Teamsters activity among Respondent 's employees However, we do not
rely on the Trial Examiner's finding that Danny Pate was permitted to
remain in Respondent's employ despite a more serious offense
3 The word "not" was inadvertently omitted by the Trial Examiner from
the phrase "I do regard " in In . II of his Decision.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
JOHN P. VON ROHR, Trial Examiner: Upon a charge filed
on November 12, 1970, and an amended charge filed on
January 28, 1971, the General Counsel of the National
Labor Relations Board for the Regional Director of Region
17 (Kansas City, Missouri) issued a complaint on February
3, 1971, against Gilbert-Robinson, Inc., herein called the
Respondent or the Company, alleging that it had engaged
in unfair labor practices within the meaning of Section
8(a)(1), (2), and (3) of the National Labor Relations Act, as
amended, herein called the Act. The Respondent filed an
answer denying the allegations of unlawful conduct alleged
in the complaint.
Pursuant to notice, a hearing was held before Trial
Examiner John P. von Rohr in Kansas City, Missouri, on
March 31, 1971. All parties were represented by counsel
and were afforded opportunity to adduce evidence, to
examine and cross-examine witnesses , and to file briefs. In
lieu of filing briefs, the General Counsel and the
193 NLRB No. 39
280 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent engaged in oral argument at the close of the
hearing.'
Upon the entire record in this case, and from my
observation of the witnesses, I hereby make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent , a corporation with its principal place of
business in Kansas City, Missouri , is engaged principally in
the business of food service and catering . The only facility
involved in this case is its airline catering service at the St.
Louis, Missouri , airport . During the calendar year 1970, the
Respondent sold goods and services valued in excess of
$50,000 from its Kansas City, Missouri , facility to
enterprises which are directly engaged in interstate
commerce . During the same period , Respondent purchased
goods valued in excess of $50,000 from points and places
outside the State of Missouri . Respondent 's annual gross
volume of business exceeds $500,000 . The Respondent
concedes , and I find , that it is engaged in commerce within
the meaning of the Act.
11. THE LABOR ORGANIZATIONS INVOLVED
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America , Warehouse, Mail
Order , Ice, Cold Storage, Soft Drink , Waste Paper,
Distribution Workers, Egg Breakers , Candlers, Miscellane-
ous Drivers and Helpers , KCMO , KCK and Vicinities,
Local No. 838 and Local Joint Executive Board of the
Hotel and Restaurant Employees and Bartenders Interna-
tional Union , AFL-CIO, and its constituent members are
labor organizations within the meaning of Section 2(5) of
the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Issues
The issues in this case are (1) whether Respondent gave
unlawful assistance to the incumbent union in violation of
Section 8(a)(2) of the Act; (2) whether Respondent's
discharge of employee Thomas Nunnink on November 11,
1970, and its termination of employee James Michaels on
November 12, 1970, were in violation of Section 8(a)(3) of
the Act; and (3) whether Respondent engaged in other
conduct independently violative of Section 8(a)(1) of the
Act.
B. The Facts
Respondent owns a facility at the Kansas City, Missouri,
airport , the only facility involved herein, known as the Joe
Gilbert Restaurant . Aside from an airport restaurant, this
facility operates as the food and beverage caterer to the
various airlines operating in and out of the airport.
i The Respondent subsequently submitted a legal citation, which I have
considered
2 The record does not reflect if a later contract was executed
3 The former is the contract terminology The employees who testified
simply described their lobs as being that of a "service man and caterer "
4 The credited and unrefuted testimony of Wood The further testimony
At all times material hereto Respondent Joe Gilbert's
employees have been represented by the Local Joint
Executive Board of the Hotel and Restaurant Employees
and Bartenders International Union, AFL-CIO, and its
constituent members, hereinafter called the Hotel and
Bartenders Union or the incumbent union. The latest
collective-bargaining agreement between the parties was
effective from March 18, 1968, to January 15, 1971.2 It is
relevant to note here that this agreement contained a valid
union-security clause.
The category of employees involved in the instant dispute
(and these are covered by the foregoing contract) are
classified as plant service attendants. They are also known
as servicemen and caterers .3 These employees are primarily
engaged in the loading of airplanes with food and
beverages, although their duties also include such miscella-
neous tasks as dumping garbage, cleaning the ramp area,
and washing service vehicles.
As will be dealt with more fully hereinafter, Thomas
Nunnink, one of the alleged discriminatees herein, was
instrumental in undertaking an organizational campaign on
behalf of Teamsters, et al, Local No. 838, the Charging
Party herein and hereinafter called the Teamsters Union.
This activity was touched off with the holding of a union
meeting at Nunnink's apartment on October 30, 1970. As
also will appear hereinafter, the evidence establishes that
Respondent had knowledge of this meeting. However,
relevant to the complaint's allegation that Respondent
rendered unlawful assistance to the Hotel and Bartenders
Union in violation of Section 8(a)(2) of the Act, I set forth
first the evidence pertaining to the enforcement (or lack
thereof), of the union-security clause prior to the advent of
the Teamster activities.
Terry Wood has been a service employee of the
Respondent since May 24, 1970. At or about the time of his
hire he was told by Earl Strickland, concededly a supervisor
within the meaning of the Act, that the Company had a
union, but that it was not a "strong union."4 Notwithstand-
ing the union-security provision in the aforenoted current
collective-bargaining agreement , Wood was not asked to
become a member of the Hotel and Bartenders Union until
the first part of November 1970. Wood testified that at this
time he was called into the general supervisor's office where
Sheffield had union cards, which cards were a combination
of membership application-dues deduction authorization
cards for the Hotel and Bartenders Union. Sheffield told
him that he would have to sign one and he did so. At the
same time James Michaels, one of the alleged discrimina-
tees herein, also signed a membership-dues card for the
incumbent union when requested to do so by Sheffield.
Within a day or so after having signed the cards, Wood and
Michaels went to the office of Mr. Dewey, Respondent's
catering manager, to see whether they would be required to
remain members of the incumbent union.5 It is undisputed
that Dewey advised these employees that they did not have
to belong to the incumbent Union, that he thereupon
of Wood, as hereinafter set forth , is also uncontroverted
S Michaels testified without contradiction that on the day after he
signed the card he was told by Bill Maddox , his supervisor , that he would
not have to belong to the incumbent union Further, he credibly testified
that at the time mentioned above Maddox accompanied him when he went
to see Dewey Although Michaels did not mention that Wood
GILBERT-ROBINSON, INC. 281
produced their signed membership-dues cards which he
had retained in his office, and that these employees
thereupon tore up the cards.
Danny Pate was employed as a service man since August
24, 1970. In or about the middle of October 1970 another
employee handed him a Hotel and Bartenders membership-
dues card, stating that a supervisor told him that the
employees were supposed to sign them.6 Not being
desirious of joining the Union, Pate signed his name but
wrote on the card that he did not wish to join the Union. He
did not, in fact, become a member of the incumbent union
at this time.
Thomas Brand, employed as a service man since about the
middle of August 1970, was advised by Supervisor Steve
Sheffield about the middle of October 1970 that he would
be required to join the Hotel and Bartenders Union. Brand
replied that he would like some time to think about it. At
this time no further steps were taken to have Brandjoin the
incumbent union and he did not do so.
Thomas Nunnink became a member of the Hotel and
Bartenders Union approximately 8 months subsequent to
his being hired in 1967. A month later he resigned by
signing a withdrawal card. He did not thereafter become a
member of the incumbent union at any time prior to his
discharge on November 11, 1970.
Turning now to the Teamster organizational activity,
Nunnink first contacted Harry Kress, a representative of
the Teamster Union, about the middle of October 1970.
The first meeting was held at Nunnink's apartment on
October 30,1970,at 12:30 a.m., the latter hour being chosen
to enable the service employees of all three shifts to be
present. Practically all of the service employees, these
numbering approximately 20, attended this meeting.
Employee James Michaels, who was present, testified that
all the employees who attended the meeting signed
Teamster authorization cards.
Ed Llaflet is a shift supervisor and his jurisdiction
includes the supervision of Danny Pate. Pate was one of the
employees who attended the above organizational meeting
on October 30. According to the undenied and credited
testimony of Pate, Llaflet came up to him at the dispatching
desk 3 or 4 days after the meeting and spoke to him as
follows:
He approached me and he sort of leaned down toward
me and he said, "What about the union meeting?" I
said, "What meeting is that?" He said, "You know what
union meetings, the Teamsters." I said, "How did you
know about it?" He said, "I know." I said, "Well, I will
probably get it next week." He said he was all for the
union.
It is undisputed that on November 12 (which was the day
after Nunnink's discharge), Supervisor Earl Strickland
accompanied them to Dewey's office, it is clear from Wood's testimony
that he and Michaels were present with Dewey at the same time
6 Pate testified that Thomas Nunnink was the employee who gave him
the card at this time While no doubt there is some plausible explanation,
this seems strange in view of the fact, as hereinafter noted, that Nunnink
had withdrawn from the Hotel and Bartenders Union and apparently was
not a member of that labor organiza tion at this time. Nunnink was not
asked to testify about the matter This and certain other annoying gaps in
the testimony , while not in themselves dispositive of the issues herein,
properly should have been brought out or clarified by the General Counsel
in the direct testimony of these witnesses
called a number of employees into his office , including
employees Terry Wood, Thomas Brand , Danny Pate, and
Fred Winegrad . At this time Strickland handed these
employees membership-dues cards for the Hotel and
Bartenders union and told them they would have to sign
them by the end of the day or punch out .7 Faced with this
alternative , it is undisputed that these employees signed the
cards before the end of the day .8 James Michaels also was
called into Stnckland 's office on November 12. According
to Michaels ' undenied testimony , Strickland told him that
he would be required to join the incumbent union . When he
replied that he did not want to join the Union because he
was contemplating reentering the military service in about 2
weeks. Strickland rejoined, "If you want to work the rest of
the day you have to join the union ."9 It is undisputed that
Michaels thereupon punched out and has not since been
employed by the Respondent.
In further chronological recitation of the facts , it may be
noted here that a second Teamster organizational meeting
was held on November 12 or 13, this apparently also at
Nunnink's apartment . i° Employee Terry Wood testified
without contradiction that about a week after this meeting
Supervisor Strickland approached him about acting as a
weekend supervisor . Strickland then brought up the subject
of the Union , stating that he knew that Craig Stack, a
service employee , had attended the Teamster Union
meeting. According to Wood , Strickland at this time also
told him "we would be the ones hurt because the Teamsters
don't let anyone go to school and we were just too small to
fool with." Also about a week or so after the November 12
Teamster meeting , employee Thomas Brand was called into
the office of Supervisor Sheffield . Brand said that at this
time he was angry over the fact that he had recently been
assigned to the "porter's" job of sweeping the floor, this not
being the type of work for which he had been hired. Upon
being called into the office, Sheffield instructed Brand to
make pop setups, whereupon Brand stated , "OK, at least
that is a little bit better than sweeping floors." It was
Brand's undenied testimony that Sheffield thereupon
stated, "If you don 't like it , you ought to get your union
steward Tom Nunnink and the Teamsters to do something
about it."
C. Conclusions as to the Section 8(a)(2) Allegations
and as to the Termination of James E. Michaels
In light of the facts above set forth, I think it crystal clear
that Respondent violated Section 8(a)(2) of the Act by
rendering unlawful assistance to the Hotel and Bartenders
Union. Thus, to briefly recapitulate, the undisputed
evidence reveals that prior to the advent of the Teamster
organizational campaign not only was there a failure to
r Unrefuted and substantially corroborative testimony of Brand, Pate,
and Wood
8 Brand, Pate, and Wood testified that they signed the cards on
November 12 Although Winegrad did not testify, in view of what
happened to Michaels, as hereinafter noted, it is reasonable to infer that he
also did so
9 Credited and unrefuted testimony of Michaels Michaels said that
Supervisor Dewey was also present during this conversation
is Although there is no doubt that this meeting in fact took place, the
record is hazy as to details
282 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
enforce the contract's union-security provision requiring
membership in the incumbent union, but rather Respon-
dent went so far as to permit several employees to withdraw
and destroy their union membership-dues cards, which
signed cards Respondent had retained in its possession.
That Respondent became aware of the Teamster activities
among its employees is clearly established by Supervisor's
Llaflet's conversation with employee Pate in early Novem-
ber wherein Llaflet told Pate, inter alia, that he had
knowledge of the recently held Teamster organizational
meeting. It was not long after that, on November 12, when
Supervisor Strickland called a group of employees into his
office and gave them the alternative of either signing
membership applications for the incumbent union before
the end of the day or else punching out. Respondent offered
no explanation whatever for its unusual and precipitate
action in thus pressurizing its employees into joining the
incumbent union.ti Significantly, Thomas Nunnink, who
except for a brief break was employed by Respondent since
November 2, 1967, testified that through this entire period
he never knew of any grievance being filed nor within his
knowledge were there any union stewards on the job.12 In
my opinion this inactivity by the incumbent union
undoubtedly serves as some explanation for Respondent's
entire course of conduct herein. In any event, and in light of
all the foregoing, I find that Respondent's conduct in
soliciting employees to join the incumbent union on
November 12, 1970, was violative of Section 8(a)(2) of the
Act. Since this solicitation was accompanied by a threat of
discharge if the employees did not acquiesce, I find, under
the circumstances of this case, that Respondent thereby
interfered with, restrained, and coerced employees in the
exercise of the rights guaranteed in Section 7 of the Act and
that Respondent thereby violated Section 8(a)(1) of the Act.
Further, I find that employee James E. Michaels was
constructively discharged when he refused to sign a
membership card for the incumbent union but instead
chose the only other alternative which Respondent gave
him, which was to punch out. Accordingly, I find that by
this conduct Respondent violated Section 8(a)(3) and (1) of
the Act.
D. The Discharge of Thomas Nunnink
Nunnink was hired by Respondent as a ramp service man
on November 2, 1967. He quit this employment on June 2,
1970, but returned to work for the Company on July 8,
1970. His subsequent discharge on November 11, 1970, is
here at issue.
As previously indicated, Nunnink Joined the Hotel and
Bartenders Union about 8 months after his hire in 1967.
However, he withdrew his membership from the incumbent
union about 1 month later and has never since renewed his
membership. As also previously noted, Nunnink was
instrumental in contacting the Teamsters Union in the
11 Brand testified that on November 12 Supervisor Strickland stated
that the incumbent union "was on his back " and that this was the reason
he was requiring the employees to join the incumbent union . However,
Respondent offered no testimony to this effect and I do regard Brand's
testimony as legally sufficient to establish that the incumbent union, in
fact, had requested Respondent 's assistance in enforcing the union -security
clause in the contract
middle of October 1970. Subsequently, on October 30,
1970, a Teamster organizational meeting was held in his
apartment with approximately all 20 of the Respondent's
service employees to attendance.
Nunnink worked under the supervision of Bill Maddox, a
ramp supervisor, and his hours were from 5:30 a.m. to 7:30
p.m. Maddox, however, was discharged on November 10
and Steven Sheffield assumed supervision of the day-shift
employees on November 11.13 At or about 11 a.m. on this
date Sheffield came to the loading dock and asked Nunnink
to sweep the ramp area and to wash a service van. Nunnink
replied that he was in the process of preparing for a flight
that was coming in, but that he would comply with
Sheffield's request before he went home. It is undisputed
that at this time Nunnink was engaged in his regular
catering duties. According to Nunnink, he continued in
these duties until the flight departed, which was about
12:45 p.m. He said he thereupon took a 45-minute lunch
period, following which he started sweeping up the ramp.
He testified that while he was so doing Sheffield came out,
at which time Mike Mize, another employee, stated in
Sheffield's presence that he would wash the aforementioned
van. Mize, in fact, at this point did wash the vehicle.
Nunnink said he thereupon completed sweeping the area,
as instructed. At or about 2:15 p.m., as Nunnink was
studying the posted flight schedule, Sheffield came up and
said he would like to see him before he went home.
Nunnink replied that he had time "right now" and they
went to the office. Nunnink testified that the ensuing
conversation was brief. According to Nunnink, Sheffield
stated "that he had just got chewed out by his superior
because the truck wasn't washed and the ramp wasn't
swept." Nunnink said, "I'm sorry," whereupon Sheffield
stated, "Somebody is going to have to pay for it, so as far as
I'm concerned you're fired." Nunnink thereupon obtained
his pay and departed.
There is not much difference in Sheffield's account
concerning the events of November 11. Sheffield testified
that about 10:30 a.m. he asked Nunnink and Mize to wash
the service van. When Nunnink replied that he was busy
preparing for the next flight, Sheffield said he told him he
should "at least get a bucket and have it filled with water
and soap and have it ready." Sheffield testified that at this
point Mize proceeded to wash the van. He gave no further
testimony concerning the incident. Sheffield further
testified that around 11:30 a.m. he again spoke to Nunnink
and this time told him that he expected him to sweep the
ramp before he finished his shift. Continuing, Sheffield
testified that "later on that day" he observed that Nunnink
"hadn't made an attempt yet," whereupon he told Nunnink
that he expected this work to be completed by 2:30 p.m.
Sheffield further testified that around 2:10 or 2:15 p.m. he
observed that Nunnink had not swept the entire ramp area,
but had just swept around the lift.14 He found Nunnink
upstairs, as Nunnink testified, and they thereupon went to
11 This is consistent with Supervisor Strickland 's statement to employee
Terry Wood, as aforenoted , that the Company had a union but that it was
not a "strong union."
13 Sheffield concededly was a supervisor at all times material hereto,
although he appears to have held several different supervisory positions
14 Sheffield testified that the lift area is that part of the ramp area where
GILBERT-ROBINSON, INC.
the office. Sheffield testified that at this point, "I told him
that I was dissatisfied with his work today and why and told
him that I thought he should be terminated, and he was
terminated." Shortly after Nunnink was terminated
Sheffield wrote out a handwritten memo, subsequently
typed and placed in Nunnink's personnel file, which stated
as follows:
Was released for the following reasons: Failed to wash
the van when asked to, and after I asked him to sweep
and wash the ramp he also failed to do so. I feel this is
adequate reason for terminating Tommy Nunnink.
Steve Sheffield
E. Conclusions as to Nunnink
The record in this case leaves me no hesitation in finding
that Nunnink was not discharged for the reason or reasons
given by Sheffield. Starting with the reasons as expressed in
the memo set forth above, Sheffield states that one of the
reasons for Nunnink's discharge was that he "failed to wash
the van when asked to." Suffice it to say that this obviously
is a false reason. Nunnink was engaged in preparing for a
flight when this request was made of him and he so
explained to Sheffield. Sheffield's own testimony reveals
that he accepted this reason, that employee Mize thereupon
washed the van, and that nothing further was said about the
matter.15 As to the second reason mentioned in the memo,
it is first noted that neither Nunnink or Sheffield testified,
as the memo states , that Nunnink was asked to wash the
ramp as well as sweep it. This statement in the memo
therefore also is not true. But with reference to the sweeping
of the ramp area, there is some difference in the testimony
in that Nunnink claims to have swept the entire area
whereas Sheffield asserts that he swept only the lift part of
that area. While I think it likely that both Nunnink and
Sheffield exaggerated their testimony on this particular
point, for decisional purpose I shall assume that Nunnink
did not complete sweeping the entire ramp area. Even so, I
find it incredible to believe that he would be so summarily
discharged for this reason. Thus, the record establishes
Nunnink to have been one of Respondent's most experi-
enced and best qualified service employees. In January
1970, he was made a ramp supervisor and served in this
position for about 6 months.18 On November 3, 1969, Joe
Gilbert, whom it appears is Respondent's president, wrote
Nunnink a letter in which he expressed "appreciation" for
Nunnink's having served 2 years with the Company, and
wherein he also stated, "You have been a loyal, faithful
employee and Bill and myself wish to thank you for your
fine attitude, wonderful spirit and hard work." In about
March or April 1970, Nunnink received another letter from
Gilbert, this one notifying him: "Congratulations on being
named `the employee of the year'-I agree and am very
proud of you."
In view of all the foregoing, it is indeed difficult to believe
that Nunnink would be discharged for the reasons asserted
by Sheffield. And although Respondent's counsel at the
carts of food are brought to load the lift truck . He said that the entire ramp
area is approximately 40' by 35', of which the lift area comprises 12' by 10'
iS Indeed , by his own testimony , Sheffield did not mention this to
Nunnink at the time of his discharge.
16 As indicated earlier, Nunnink quit Respondent 's employ June 2,
283
hearing asserted that Nunnink was discharged for insubor-
dination, clearly this was not a fact. Even if Nunnink did
not sweep the ramp to Sheffield's satisfaction, there is no
indication that he insubordinately refused to accept this job
assignment. Moreover, if Sheffield was so seriously
concerned that the job was not performed properly, I think
it peculiar that he did not give this experienced employee
some warning (the shift had not yet ended) before resorting
to the extreme penalty of discharge. Indeed, the record
reflects that employee Danny Pate, employed only since
May 24, 1970, was issued a warning notice, but was still
permitted to remain in Respondent's employ, for the more
serious offense of allegedly taking goods that did not
belong to him. Finally, and further reflecting upon
Respondent's motives herein, it is significant that the
sweeping of the ramp was not one of Nunnink's regular
duties. Maddox, Nunnink's supervisor until the day before
his discharge, testified that although Nunnink was assigned
to take out trash each day, he (Maddox) had never assigned
Nunnink to the sweeping job. Indeed, Maddox testified
without contradiction that prior to his termination he had
posted a sweeping schedule and that this schedule, which
was only changed twice a year, was still in effect at the time
he left. This schedule designated certain named employees
who were to perform these duties at the times and dates
reflected thereon. Suffice it to note that Nunnink was not
one of the employees who was listed on the schedule to do
this work and Sheffield offered no explanation for assigning
Nunnink to the job on November 12 instead of following
the schedule.
Some further facts are here in order. Sheffield testified
that he reported his discharge of Nunnink to Art Main, the
director of in-flight services, later in the day. Still later that
day Main entered a handwritten report in Nunnink's
personnel file which stated, "Due to Tom's past record and
this incident of direct insubordination I feel that it is of the
best interest of the company to let Tom go." With respect to
the so-called "past record" Respondent asserts it took into
account that on 9-4 Nunnink was 15 minutes late, on 10-27
he was 17 minutes late, and on 10-29 he was 4 hours late.17
However, as to the latter date Respondent's record reflects
that Nunnink in fact called in at 0735 to explain that he was
having car trouble and therefore would be late. Additional-
ly, Respondent points out that Nunnink had three truck
accidents in 1970 and that on September 9, 1970, as a result
of the third such accident, he was given a 2-day suspension
with the warning that the next accident would result in his
suspension. If Nunnink's discharge was indeed related to
his accident record, this normally would be considered as
strong evidence that the action was not discriminatorily
motivated. However, since Sheffield did not cite Nunnink's
accident record, either in his memo or in his testimony at
the hearing, as a reason for deciding to discharge this
employee, I am convinced and find that the accident
record, as well as the flimsy matter of tardiness, was utilized
by Respondent as an afterthought in an attempt to conceal
its true motives. Indeed, there is direct that this was so.
1970 At this time he was a supervisor . When rehired about a week later, he
came back as an employee.
17 The document reflecting the above dates does not name the year. I
shall assume it refers to 1970
284 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Thus, it was the undenied testimony of employee Thomas
Brand that about 2 or 3 days after Nunnink's discharge he
overheard a conversation between Supervisors Sheffield,
Strickland and Dewey concerning "what they would say
about Mr. Nunnink's being fired." Dewey ended the
conversation by stating, "We have enough on record, that's
all we have to say." This conversation, it may be noted,
coincided with the filing of the unfair labor practice charge
herein, which included the naming of Nunnink as an
alleged discriminatee.18
By reason of all the foregoing, and no less particularly in
light of the related fact of Respondent's unlawful assistance
to the Hotel and Bartenders Union on the day after
Nunnink's discharge, I conclude and find that Nunnink
was discharged because of his efforts to bring in the
Teamsters Union. Respondent thereby violated Section
8(a)(3) and (1) of the Act. In making this finding, I reject
Respondent's contention that the evidence does not
establish company knowledge. Thus, as previously noted,
the undisputed evidence reflects that within 3 or 4 days
after the first Teamster organizational meeting at Nun-
nink's apartment, Supervisor Llaflet told employee Pate
that he knew about the Teamster meeting. Since Llaflet
somehow obtained knowledge of this meeting, (which is not
surprising since all 20 service employees were in attend-
ance) it is reasonable to assume that he also learned where
this meeting was held.
As to further alleged violations, and in connection with
the heretofore related conversation which Llaflet had with
Pate, it will be recalled that about a week after the second
Teamster Union meeting, which was held in Nunnink's
apartment on November 12, Supervisor Strickland told
employee Wood that he knew that Craig Stack, a service
man, was at that meeting. Since this was the second
incident of the same nature, this matter cannot be
considered as isolated. Accordingly, and as alleged in the
complaint, I find that Respondent, through the statements
of Llaflet and Strickland, violated Section 8(a)(1) of the Act
by creating the impression among employees that their
union activities were being kept under surveillance.19
Finally, the evidence is undisputed that on March 18,
1971 (5 days prior to the hearing herein), employee Danny
Pate spoke to Supervisor Strickland to arrange getting time
off for employee Terry Wood so that Wood could testify at
the instant hearing in response to a subpoena. During the
conversation Pate stated that he also had received a
subpoena and that he had already arranged to have his
work days changed so that he could testify. Upon being so
apprized, Strickland told Pate, "If you can't see the chances
you're taking, that's pretty stupid." I conclude and find that
the foregoing statement to Pate contained an implied threat
of reprisal in the event of his testifying and that Respondent
thereby further violated Section 8(a)(1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent set forth in Section III,
18 The charge was filed on November 12 and served on Respondent on
November 13, 1970
19 I find nothing coercive in the heretofore related conversation which
employee Thomas Brand had with Sheffield about a week after the
above, occurring in connection with the operations of
Respondent set forth in Section I, above, have a close,
intimate, and substantial relation to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow thereof.
V. THE REMEDY
Having found that Respondent has engaged in unfair
labor practices in violation of Section 8(a)(1), (2), and (3) of
the Act, I will recommend that it cease and desist therefrom
and take certain affirmative action designed to effectuate
the policies of the Act.
I have found that Respondent discriminatonly dis-
charged Thomas Nunnink and James Michaels. I will
therefore recommend that Respondent offer them immedi-
ate and full reinstatement to their former or substantially
equivalent positions and make them whole, for any loss of
pay they may have suffered by reason of the discrimination
practiced against them, by payment to them of a sum equal
to that which they normally would have earned from the
date of their discrimination to the date of reinstatement,
less net earnings during said period, if any. The backpay
provided herein shall be computed in accordance with the
Board's formula set forth in F. W. Woolworth Co., 90 NLRB
289, with interest thereon at the rate of 6 percent per annum
computed in a manner described in Isis Plumbing &
Heating Co., 138 NLRB 716.
Because the discriminatory discharges go to the very
heart of the Act, and in view of Respondent's other unfair
labor practices, I shall recommend a broad cease-and-desist
order, which, in the circumstances of this case, I deem
necessary and appropriate to protect employee rights and
to effectuate the purpose of the Act.
CONCLUSIONS OF LAW
1. Respondent is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. By giving employees the impression that their union
activities were being kept under surveillance, by threaten-
ing employees with discharge if they did not sign
membership application-dues deduction authorization
cards for the Hotel and Bartenders union, and by
threatening employees with reprisals if they testified
pursuant to a government subpoena, the Respondent has
engaged in and is engaging in unfair labor practices within
the meaning of Section 8(a)(1) of the Act.
4. By unlawfully soliciting membership-dues applica-
tions on behalf of the Hotel and Bartenders Union, the
Respondent has engaged and is engaging in unfair labor
practices within the meaning of Section 8(a)(2) of the Act.
5. By discriminating in regard to the hire and tenure of
employment of Thomas Nunnink and James Michaels,
thereby discouraging membership in the Teamsters Union,
November 12 union meeting . If this was intended to relate to any
independent Section 8(a)(1) allegation in the complaint, I recommend it be
dismissed
GILBERT-ROBINSON , INC. 285
the Respondent has engaged in and is engaging in unfair
labor practices within the meaning of Section 8(a)(3) of the
Act.
6. The aforesaid unfair labor practices are unfair labor
practices within the meaning of Section 2(6) and (7) of the
Act.
Upon the basis of the foregoing findings of fact and
conclusions of law and upon the entire record in this case,
and pursuant to Section 10(c) of the Act, I hereby make the
following recommended: 20
ORDER
Respondent Gilbert-Robinson, Inc., its officers, agents,
successors , and assigns, shall:
1. Cease and desist from:
(a) Giving employees the impression that their union
activities are being kept under surveillance; threatening
employees if they do not sign membership application-dues
deduction authorization cards for the Hotel and Bartenders
Union, and threatening employees with reprisals if they
testify pursuant to a government subpoena.
(b) Unlawfully giving assistance to the Hotel and
Bartenders Union, or to any other labor organization, by
improperly soliciting membership-dues deduction authori-
zation cards, or in any other manner proscribed by Section
8(a)(2) of the Act.
(c) Discouraging membership in the International
Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, Warehouse, Mail Order, Ice, Cold
Storage, Soft Drink, Waste Paper, Distribution Workers,
Egg Breakers , Candlers, Miscellaneous Drivers and Help-
ers, KCMO, KCK and Vicinities, Local No. 838 and Local
Joint Executive Board of the Hotel and Restaurant
Employees and Bartenders International Union,
AFL-CIO, and its constituent members, or in any other
labor organization, by discharging employees or otherwise
discriminating in respect to their hire or tenure of
employment.
(d) In any other manner interfering with, restraining, or
coercing employees in the exercise of their rights to self-
organization, to form labor organizations, to join or assist
the above-named Teamster's Union, or any other labor
organization , to bargain collectively through representa-
tives of their own choosing, and to engage in concerted
activities for the purposes of collective bargaining or other
mutual aid or protection, or to refrain from any or all such
activities.
2. Take the following affirmative action which I find is
necessary to effectuate the policies of the Act:
(a) Offer to Thomas Nunnink and James Michaels
immediate and full reinstatement to their former jobs, or if
those jobs no longer exist, to substantially equivalent
positions and make them whole for any loss of pay they
may have suffered as a result of the discrimination
practiced against them , in the manner set forth in the
section of this decision entitled "The Remedy."
(b) Notify the above-named employees, if presently
serving in the Armed Forces of the United States, of their
right to full reinstatement upon application in accordance
with the Selective Service Act and the Universal Military
Training and Service Act, as amended, after discharge from
the Armed Forces.
(c) Preserve and, upon request, make available to the
Board or its agents, for examining and copying, all payroll
records, social security payment records, timecards,
personnel records and reports, and all other records
necessary to ascertain any backpay due under the terms of
this recommended Order.
(d) Post at its facilities at the Kansas City airport copies
of the attached notice marked "Appendix." 21 Copies of
said notice, to be furnished by the Regional Director for
Region 17, shall, after being duly signed by a representative
of Respondent, be posted by it immediately upon receipt
thereof and maintained by it for a period of 60 consecutive
days thereafter, in conspicuous places, including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by Respondent to insure
that said notices are not altered, defaced, or covered by any
other material.
(e) Notify the Regional Director for Region 17, in
writing, what steps Respondent has taken to comply
herewith.22
It is also recommended that the complaint be dismissed
insofar as it alleges violations of the Act not herein
specifically found.
20 In the event no exceptions are filed as provided in Section 102 46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions , recommendations , and recommended Order herein
shall, as provided in Section 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.
21 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall be changed to read
"Posted Pursuant to a Judgment of the United States Court of Appeals
Enforcing an Order of the National Labor Relations Board."
22 In the event that this recommended Order is adopted by the Board
after exceptions have been filed, this provision shall be modified to read.
"Notify the Regional Director for Region 17, in writing, within 20 days
from the date of this Order, what steps the Respondent has taken to
comply herewith "
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discourage membership in Internation-
al Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, Warehouse, Mail Order,
Ice, Cold Storage, Soft Drink, Waste Paper, Distribu-
tion Workers, Egg Breakers, Candlers, Miscellaneous
Drivers and Helpers, KCMO, KCK and vicinities,
Local No. 838, or in any other labor organization, by
discharging or otherwise discriminating against our
employees because of their union activities.
WE WILL NOT threaten our employees with discharge
if they refuse to sign membership application-dues
deduction authorization cards for Local Joint Executive
Board of the Hotel and Restaurant Employees and
Bartenders International Union, AFL-CIO, and its
constitutent members.
286 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT create the impression of surveillance or
impliedly threaten our employees with reprisals if they
testify pursuant to a government subpoena.
WE WILL NOT give assistance to Local Joint Executive
Board of the Hotel and Restaurant Employees and
Bartenders International Union, AFL-CIO, and its
constituent members , or any other labor organization,
by improperly soliciting membership application-dues
deduction authorization cards or in any other manner
prohibited by the Act.
WE WILL offer Thomas Nunnink and James
Michaels immediate and full reinstatement to their
former jobs or, if those jobs no longer exist, to
substantially equivalent positions , without prejudice to
their seniority or other rights and privileges , and make
them whole for any loss of pay suffered as a result of the
discrimination against them.
WE WILL NOT in any other manner interfere with,
restrain , or coerce our employees in the exercise of their
right to self-organization , to form, join, or assist the
above-named Teamsters Union, or any other union, to
bargain collectively through representatives of their
own choosing , and to engage in concerted activities for
the purposes of collective bargaining or other mutual
aid or protection as guaranteed in Section 7 of the Act,
and to refrain from any or all such activities , except to
the extent that such right may be affected by an
agreement requiring membership in a labor organiza-
tion as a condition of employment as authorized in
Section 8(a)(b) of the Act.
Dated By
GILBERT-ROBINSON, INC.
(Employer)
(Representative ) (Title)
This is an official notice and must not be defaced by
anyone.
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.
Any questions concerning this notice or compliance with
its provisions, may be directed to the Board's Office, 610
Federal Building, 601 East Twelfth Street, Kansas City,
Missouri 64106 , Telephone 816-374-5181.