H. O. Seiffert Co.

National Labor Relations Board - Board Decisions

Oct 24, 1972

199 N.L.R.B. 960 (N.L.R.B. 1972)

960 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
H. O. Seiffert Company and James T. Hain. Case
19-CA-5643
October 24, 1972
DECISION AND ORDER
BY MEMBERS JENKINS, KENNEDY, AND PENELLO
On July 19, 1972, Administrative Law Judge'
Jerrold H. Shapiro issued the attached Decision in
this proceeding. Thereafter, Respondent filed excep-
tions and a supporting brief, and the General Counsel
filed an answering brief to the Respondent's excep-
tions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended
Order of the Administrative Law Judge and ' hereby
orders that Respondent, H. O. Seiffert Company, Ev-
erett, Washington, its officers , agents , successors, and
assigns, shall take the action set forth in the said rec-
ommended Order.
i The title of "Trial Examiner" was changed to "Administrative Law
Judge" effective August 19, 1972
2 The Respondent has excepted to certain credibility findings made by the
Administrative Law Judge It is the Board's established policy not to overrule
an Administrative Law Judge '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.
In the last sentence of the 12th paragraph of sec III, B, of the Adminis-
trative Law Judge 's Decision , the names of Hain and Michel are inadvert-
ently transposed.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
JERROLD H. SHAPIRO, Trial Examiner: Upon a charge
filed on February 10, 1972, by James T. Hain (Hain), the
General Counsel of the National Labor Relations Board
(Board), by the Regional Director of Region 19, issued a
complaint dated April 21, 1972, against H. O. Seiffert Com-
pany (Respondent), alleging that Respondent had engaged
in unfair labor practices within the meaning of Section
8(a)(1) and (3) of the National Labor Relations Act (Act).
Respondent filed an answer denying the commission of the
alleged unfair labor practices. A hearing was held on June
13, 1972.
Upon the entire record in the case and from my obser-
vation of the demeanor of the witnesses' and having con-
sidered the posthearing briefs, I make the following:
FINDINGS OF FACT
I THE BUSINESS OF RESPONDENT
Respondent, a corporation with its place of business
located in Everett, Washington, sells building materials and
other related products for which it annually receives gross
receipts in excess of $500,000 and annually purchases and
receives goods valued in excess of $50,000 from firms locat-
ed outside the State of Washington. Respondent is engaged
in commerce within the meaning of Section 2(6) and (7) of
the Act.
II THE LABOR ORGANIZATION INVOLVED
Local Union No. 38, affiliated with the International
Brotherhood of Teamsters , Chauffeurs, Warehousemen and
Helpers of America (Union) is a labor organization within
the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Background and Issues
Respondent sells building materials on a tract of land
the size of about 4 city blocks. It employs sales clerks,
warehousemen, and drivers.
For the past several years, Respondent has been party
to successive collective-bargaining agreements with the Un-
ion. The agreement (union contract) in effect during 1971
was effective from December 1, 1968, to December 1, 1971.
Article I, among other things, provided for recognition of
the Union as the exclusive agent "for all employees within
the jurisdiction of this agreement," and that employees after
working for 30 days shall join the Union as a condition of
employment. The "jurisdiction of this agreement" is not
specifically defined. The portion of the union contract deal-
ing with wage rates, however, in substance, covers the fol-
lowing job classification: drivers, warehousemen, and
forklift operators. Undisputed is the fact that the operation
of the Company's equipment namely trucks and forklifts is
unit work covered by the union contract. But, not so clear
is the relationship between the store or salesclerks not cov-
ered by the union contract, and the warehousemen covered
by the contract. As Respondent's secretary-treasurer, James
Michel explained.... a teamster is the bargaining unit and
he is a warehouseman and a warehouseman ... is the man
who handles bulk material or equipment and he bungs it in
i Except for James Michel, all witnesses impressed me as reliable and
forthright , making a conscientious effort to tell the truth . Michel's demeanor
was generally unimpressive . I have rejected his testimony where it conflicts
with the testimony of others
199 NLRB No. 172
H. O. SEIFFERT COMPANY 961
as bulk material, but he is not a pricer, he is not a straighten-
er or any of these things, just a clerk. He does not sell
customers. Normally we all sell it to him, you know what
I mean, he is not a man that is going to give the real sales
pitch to see that he buys this three by four as opposed to that
one. After that is done, he will give them the bulk material.
None of this is clear in the contract ....
The Charging Party, Hain, a warehouseman, on a num-
ber of occasions during the course of approximately 2-1/2
years complained to Michel that Respondent was violating
the union contract by allowing nonunit employees, in most
cases clerks, to perform unit work. He made such a com-
plaint on November 2, 1971, and was discharged later the
same day. General Counsel contends that in discharging
Hain, Respondent was motivated by his complaints to Re-
spondent that it was violating the union contract. Respon-
dent in its answer to the complaint admitted, "Hain often
complained to Respondent about alleged breaches of the
[union contract]"; that "on November 2, 1971, Hain, with
no justification, complained to the Respondent of an alleg-
ed failure to abide by the [union contract]"; and that "Hain
was discharged because of the intemperate, contumacious,
corrosive, insubordinate and disrespectful manner in which
he made his complaint on November 2, 1971, and several
of his previous complaints."
B. The Events Leading Up
to the Discharge of Hain
Hain was employed as a warehouseman from Feb-
ruary 1959 until his discharge November 2, 1971. He was
one of approximately 12 employees working in the unit
covered by the union contract. The Union did not designate
an employee as shop steward. The unit employees, however,
considered Hain as the union steward and consulted with
him if they had work-related grievances.
In about January 1969, Michel became manager of the
Company's retail operation. He also assumed responsibility
for the operation of the warehouse operation and yard
where the employees covered by the union contract worked.
During the years 1969 and 1970, Hain complained and ex-
pressed his concern to Michel and Supervisor Delabarr that
store clerks were doing the work of warehousemen and in
particular were operating the forklifts. Michel at times
pleaded ignorance, explaining to Hain that he had told the
store clerks to stay off the forklifts. At other times, Michel
and Delabarr told Hain that the Company was in a tran-
sition period (changing its operation from predominantly
wholesale to retail) necessitating the use of store clerks to
perform this type of work. And, on at least one occasion in
December 1970 when Hain complained that James Wo-
mack, classified at that time as a store clerk not covered by
the union contract, was driving a forklift, Michel stated he
had to have the material moved quickly so used Womack.
Regarding the complaints' during the first 2 years
(1969-70), Michel testified that Hain seemed to be always
complaining about something "in conflict with the con-
tract" and that in about 75 percent of the cases Michel
"went along" with Hain's complaints.
In 1970, the Company, because of adverse economic
conditions, suffered a loss of business and was forced to lay
off employees. In the latter part of December 1970, Michel,
for economic reasons, determined that another man had to
be laid off and selected Hain. Michel testified that he select-
ed Hain for layoff primarily for the reason that Hain's
department (masonry) was "almost completely dead," but
also in part because of Hain's complaints to Michel about
the violation of the union contract. To quote Michel,
... for the year and a half or whatever it was that I had
been dealing with [Hain] ... he was constantly badger-
ing me on all these different things and by this time I
must admit I had a little bit of ill feeling toward [Hain]
because I felt so much of these things he was bringing
up were not justified. They were taking up time when
he had many more important things to worry about. I
will admit that at this time this was another factor that
came into my mind.
Michel did not lay off Hain but rather gave him the oppor-
tunity to continue working as a store clerk, a nonunit job,
which paid substantially less than Hain's warehouse job.
Hain reluctantly accepted and worked for 1 week at this job:
At the end of the week, Michel offered him the opportunity
to work on Saturday doing bargaining unit work at the
union contract's overtime rate of pay. Ham declined, stating
he did not want to work Saturdays. Michel at this time told
him he was laid off because of his attitude and because he
was not doing a good job in the store.
At about the time Hain was laid off-1 or 2 days lat-
er-the Union by letter complained to Respondent about its
use of nonunion employees. The Union told the Company
that in certain areas it should employ union employees and
stated in essence that the Respondent in certain situations
was breaching its union contract by employing nonunion
employees.
Twice, apparently late in January 1971 and early Feb-
ruary 1971, Hain spoke to Michel about being recalled from
layoff. In their first conversation, Michel, in refusing to
reemploy Hain, told him that business, especially in Hain's
department, was still down and, to quote Michel, "the sec-
ond thing I said that was bothering me was that I did not
feel that he felt he could work with us. I felt he was con-
stantly so negative towards us that he would not listen or
even try to discuss anything on any type of basis where we
developed some problems. I felt that anything he said, he
felt that somehow we were trying to get him, somehow we
were lying, and he was not going to listen." In their second
conversation, Michel told Hain he would see if he could
persuade the other owners of the company to agree to his
reemployment. Hain was subsequently reinstated in Feb-
ruary or early March 1971 at which time to quote Michel:
I told him to at least take us at face value and try to
accept what we said with some credibility because I
said we would never be able to work together if we
didn't do that. I told him we had not been doing that
before because no matter what I said he would never
believe me.
Michel was then asked, "When you told [Hain] that, what
did he say in response" and answered:
The substance was that he felt that we could work
things out. I forget at this time if this was when we
found that one of the major problems areas we had,
Hain was always saying the contract says you can't do
'962 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that . There were things that we had problems on. Hain
wanted to nit pick constantly at these things . I said for
us to try and get some agreement because we are con-
stantly getting into problems . The contract doesn't say
a damn thing other than generalities and you are con-
stantly nit picking on the particulars . Let's try to come
to some agreement . I know this was part of our feelings
that we try and solve some of that.
Hain, apparently in response to Michel's plea to "let's try
to come to some agreement ", suggested that they reduce
such an agreement to writing . Michel agreed and told Hain,
"You make a listing and we will go over them and see as
management what I think ." Thereafter in the spring or sum-
mer of 1971 , Hain drew up such an agreement which was
entitled "the use of non-Union yard help by the [Respon-
dent]." In substance the "agreement " defined in detail what
was considered work covered by the union contract . Michel
read it and marked "ok" along side of the sections that he
had no problem with and gave the document back to Hain.
The "agreement" in Michel 's eyes was not meant to be a
formal contract with the Union. As put by Michel, " It was
meant to show he would try and operate in that manner. I
told him I would not sign anything like this in a formal
way." In describing his reasons for drafting the agreement,
Hain credibly testified that he could see the "gradual ero-
sion of teamsters' jobs in the yard and these jobs being taken
over by nonunion help." He was not getting "much help"
from the Union so he decided to try and hold the status quo,
and drew up the agreement which was a statement of condi-
tions as they existed at Respondent 's yard in the summer of
1970. He asked Michel and Delabarr to , as put by Hain, to
"join me in a gentlemen 's agreement" that these conditions
would remain and there would be no variations within rea-
son.
Within 3 days of the "gentlemen's agreement," Hain
informed Michel that he had breached the agreement, stat-
ing that some of the "kids" were operating the forklifts,
unloading merchandise . Michel investigated and found that
in fact certain employees not covered by the union contract
were operating the forklifts . He apologized to Hain , explain-
ing that he could not be in the yard every minute constantly
watching the employees to see that they did the "right
thing." This was not the only time during the summer of
1971 that Hain observed nonunion employees doing work
which he believed was covered by the union contract. On
a number of occasions , he observed store clerks storing
various materials which had always in the past been stored
by employees who were members of the Union and covered
by the union contract . Hain complained about this to Mi-
chel stating that it had always been "teamster" work and
that now the clerks were doing it. Michel 's answer was that
under the Respondent's program of transition from a pre-
dominantly wholesale to a retail operation that the ware-
house would probably become one big store and the store
clerks would be doing this work and that they would do it
during the transition period .2 Also during this period, Hain
2 Respondent was in the process of switching its operation from predomi-
nantly wholesale to retail which required the movement of all its stock, the
tearing down of a large percentage of the warehouse area, the construction
of a new retail store, and the use of a temporary retail store
complained to Supervisor Delabarr that Tommy Robinson,
a yardman who had for the past 3 years been helping out
on the forklift , was not a member of the Union . Then in
October 1971 , Hain complained to Michel about John Ros-
coe, a store clerk who had been employed in warehouse 3
for about 6 months. Hain observed Roscoe in the warehouse
putting away finished lumber and wooden molding in the
storage racks . Hain felt this work was covered by the union
contract , and told Michel that he had observed Roscoe
doing "teamster" work , not only waiting on customers but
putting materials away and doing general teamster's work
in the warehouse . In response , Michel said that Roscoe was
just doing clerk's work in the warehouse , that the operation
of the Company had been changed , that Hain had to realize
there had to be some flexibility because of this, that Roscoe
was not a "teamster" and had never been told to put away
bulk lumber , but admitted that (as Hain contended ) Roscoe
could have unloaded bulk lumber and put it on the racks,
because , as explained by Michel at the hearing, "we were
trying to survive, we were trying to run a program to com-
pletely turn the company around . I could not be down there
every day to watch what [Roscoe] was doing , he had been
instructed to never get on a piece of equipment, he had been
instructed that he was a clerk and supposed to serve custom-
ers."
Not satisfied with Michel 's answer , Hain discussed the
matter of Roscoe with some of the yard employees and then
in late October 1971 telephoned Union Business Represent-
ative Elmer Davidson . Hain credibly testified he told
Davidson that Roscoe was doing union work in warehouse
3 and that Hain was of the opinion that he should be forced
to join the Union and asked Davidson if he would contact
Respondent and negotiate with Respondent to get Roscoe
into the Union.
In the meantime , a regular union meeting was held on
October 26 , 1971, attended by employees of Respondent
covered by the union contract , as well as by those employed
by other employers who were also covered by the union
contract . Hain addressed the meeting , stating that the team-
ster employees employed by Respondent would have to
stand up and fight for their contract and maintain the job
situation, explaining that the bargaining unit jobs were
being eroded and that the teamsters "were going downhill
all the time."
On Friday, October 29 , Union Representatives Frank
Donovan and Elmer Davidson met with Michel and John
Sievers (one of Respondent's owners) and told them that the
question had been raised at a Union meeting by Hain that
the company was using nonunion employees in union posi-
tions in the yard and that employees Robinson and Roscoe
and two other yardmen had been named . Michel informed
the union representative that the Company could not afford
any problems and would have to go along with the Union
if the Union "forced Respondent ." The union representa-
tives told Michel that either the named nonunion employees
be placed in the Union or Respondent would have to get rid
of them . That same day, October 29 , Michel laid off the four
employees . As put by Michel , "Either we go to the extra
expense [referring to the fact that rates of pay under the
Union Contract are substantially higher than the hourly
H. O. SEIFFERT COMPANY 963
rate received by the nonunit employees] or we had to lay
them off."
Later that day (October 29), Hain approached Michel
with employee Robinson (one of the laid-off employees)
and stated to Michel, "I want you to explain to Robinson
what is happening, why is this happening." Michel told
Hain that he did not want to talk to him stating, "You know
the reasons for it, you tell Robinson." In describing his state
of mind when Hain spoke to him, Michel testified: " .. .
inside I was just furious because I thought, . . . what a
hypocrite. He created the situation. He instigated it as far
as actions and again I don't know how much or what part,
and then he comes over and asked me why these people had
been put in the position they had, so I kept my cool I don't
get mad often but I was dust furious inside."
Hain, later that afternoon, as Michel testified, ap-
proached him and using "a very sharp voice" declared, "I
want to talk to you about this thing again." Michel said he
-did not want to talk about it right then and, according to
Michel, "Then [Ham] said something to this day I can not
remember" but "I blew." Michel told Hain he did not want
to hear another word out of him and that all he wanted was
Hain to show him he was as good as any two of the men that
had been laid off, as Hain had once claimed. Hain, upset
by Michel, left the area and in leaving bumped into one of
the other employees and used the word "dam" in the pres-
ence of this employee.
On Monday, November 1, Respondent called a meet-
ing of all employees covered by the union contract. Michel
informed them that he had laid off the four employees
because the Company felt that they could not afford to pay
them the union scale and that the Company could have used
these four employees because they were in a building phase.
He informed the employees that with the new building
phase he expected that there would be a number of prob-
lems and that he felt such problems should be settled be-
tween the Company and the employees, and that the
employees should talk over their problems with the Compa-
ny before going to the Union. Michel told the employees he
felt that neither the Company, the employees, or the Union
wanted to have happen what took place Friday, warning
that it could jeopardize the Company's existence and its
working relationship with the employees.3
Following this meeting, the employees by themselves
met on the Company's premises, at which time they dis-
cussed the general work problems which existed in the yard
because of the Company's program of reorganization; they
expressed sympathy for the Company's economic problems
and expressed sympathy for the laid-off employees. The
consensus among them was that they had not wanted the
Union to get all four employees laid off, but their intent had
been to get the warehouseman (Roscoe) to be a unionman.
Hain at the meeting stated that his intention had been to see
that the warehouse job held by Roscoe stayed a union job
and stated he would be glad to speak to the union represent-
atives and to ask them to "back up" on their requirement
that the other three employees become unionmen.
3 The findings set out in the foregoing paragraph are based on the compos-
ite testimony of employees Womack , McKeehan , and Michel
C. Hain's Discharge
Hain was discharged on Tuesday, November 2, in mid-
morning. Due to Roscoe's layoff on November 2, in addi-
tion to his usual work, Hain was performing Roscoe's duties
as clerk. Customers who had already been sold materials at
the retail store were sent to warehouse 3 with the sales
invoice which they gave to Hain who would get the material.
On November 2, as Hain credibly testified, one of the cus-
tomers he waited on at warehouse 3 had purchased some
lumber which was stored in the lumberyard. Hain and the
customer left the warehouse and walked over to the lumber-
yard located a short distance in the yard from the ware-
house, where he gave the customer the lumber. He then
proceeded to walk back to the warehouse to wait on another
customer who had been there when he left for the lumber-
yard. On his way back, he observed a large truck and trailer,
herein called the Air-Mac truck, being unloaded by one of
Respondent's forklifts which was being operated by a
nonemployee, apparently the driver of the Air-Mac truck.
At this time, Hain also observed Michel standing near the
entrance to warehouse 3 and, as Hain approached Michel,
he engaged him in a brief conversation. It is undisputed that
it lasted less than 1 minute, and that Hain neither gestured
nor used any type of profanity. But, because of the yard
noise and the fact that he first spoke to Michel when he was
approaching him from a distance, Hain spoke, as he testi-
fied, in a tone of voice above normal. To quote Michel,
Hain said, "What is going on here? Is this what your words
mean? This is a breach of the contract. What are you going
to do about it?" Michel asked, "What is happening?" and
Hain pointed to the forklift stating, "That is not one of our
people." Michel acknowledge this and told Hain to go wait
on his customer, that he wished Hain would worry about
that as much as he worried about "these other matters," and
that he would take care of it. Michel then immediately
pulled the man off from the forklift and in about 20 minutes
replaced him with Womack, an employee of Respondent
covered by the union contract.
Later that morning, Michel, in talking to the president
of Respondent, Ray Sievers, referred to the fact that he had
to replace the nonemployee forklift operator unloading the
Air-Mac truck with employee Womack because Hain had
complained it was "a breach of the contract." Sievers in-
formed Michel that the Respondent had every right to have
that man unload the truck because, although not employed
by Respondent, he was a member of the Teamsters Union
and had shown Sievers his union card. Sievers further ex-
plained to Michel that he (Sievers) had asked this man, the
driver of the Air-Mac truck, to unload the truck only after
he had determined that no one employed by the Company
was available for the job. When Michel heard this, he went
back to his office and, to quote Michel:
[I] sat down and tried to calm down and research the
thing out and get my feelings on it, again determined
that this just was the last straw. We'd been on a long,
long road with Jim Hain for three years, and I felt that
we'd given him every opportunity to try to-I didn't
want a yes man. I just wanted a working relationship,
dust some way that at least we could talk, and the way
it was we could not talk. Our words meant nothing, and
964 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
therefore , I said [to Ray and John Sievers] with all the
troubles it was causing with the expense it was causing
that I recommended we terminate Hain.
Respondent 's other two owners agreed and President Siev-
ers signed a termination letter prepared by Michel , which he
handed to Hain that same morning . The letter informed
Hain of his termination, and then stated:
... it has become clear that a reasonable working
relationship does not now exist and has little hope of
being achieved in the future.
The most recent examples of re-occurring problem
areas which dictate this action are:
(a) interference in company management;
(b) inattention to customer needs and lack of cus-
tomer service;
(c) an attitude which has created serous morale
problems.
Upon notice many attempts have been made in the past
to solve these problems-these have always failed. We
therefore believe there is no alternative to our present
action.
After notifying Hain of his discharge , Michel the same
day informed employee Womack , "He had to let Hain go
because he stopped unloading that Air-Mac truck and he
did not have any right -to stop" the unloading.
D. Respondent 's Justification
for the Discharge of Hain
Before looking at the reasons advanced by Michel at
the hearing to justify his decision to discharge Hain, I am
constrained to comment on the fact that Michel did not
impress me as either a trustworthy or reliable witness. His
demeanor was generally unimpressive . His habit of answer-
ing questions not with a responsive answer but with ajustifi-
cation for his conduct gave me the distinct impression he
was more concerned with establishing his defense than in
accurately recalling the events which had taken place. I was
unimpressed with Michel's attempts to make it appear that
Hain was trying to "nit pick [him] to death ," at one point
even testifying "there were a million times" when Hain
should not have been bothering him . In this regard , Michel
also testified to the effect that Hain "buttonholed" him
every time he came into the yard . But, when questioned
about the matter , admitted that , in fact, Hain only com-
plained to him when he was in the portion of the yard where
Hain worked . When asked how many times during the
course of the day he went into Hain's area , he testified
"maybe once, twice." Also, totally unconvincing is Michel's
testimony that , based upon the look on Hain's face and
Hain's words , he concluded that Hain was out to get the
Company. When Hain , on November 2, accused Michel of
breaching the contract because a nonemployee was operat-
ing the forklift , Hain , to quote Michel , "had a look-like an
animal at prey . He had a glow. I almost hate to say it but
I think he had a smile on his face as he was coming across
there ... I was just completely shocked . I was completely
revolted by it . . . ." And , further , testified that he decided
it would be useless to try and work with Hain "because of
the vindictiveness or something , the way he threw that at me
and the look on his face of `Boy I 've caught them again' or
`We're really going to have one."' Michel , so he testified,
concluded that Hain was calling him a liar and further
testified , "I got tired of hearing it from him ." I am con-
vinced that this testimony is completely unreliable, and I
find Hain neither by word nor looks did what Michel claims
he did. Nor, as Michel testified , did Hain "[wrap] himself
in the cloak of unionism he wrapped himself in the cloak
constantly ... anything he did was always for the Union."
In the same view , Michel testified that Hain's work was not
really satisfactory "but we were afraid to call him on it and
again because of the Union veil that he kept around him."
There is not one iota of evidence that at any time during his
employment that Hain either directly or indirectly tried to
save his job or protect his job or prevent the Respondent
from disciplining him by using his union activity as either
a ;cloak" or a "veil" or a "shield ." In short, I am convinced
and I find that Michel's testimony concerning the quantity
and quality of Hain's complaints and the manner in which
Hain made them is incredible.
Regarding the three alleged "problem areas" set out in
Hain 's termination letter which allegedly "dictated" the dis-
charge , Michel testified as follows.
1. Interference in company management
Michel testified that Hain was "constantly introducing
himself into areas that just should not concern him or times
when it was not proper"-"this would include the time
when I 'm walking on my normal rounds with some business
at hand"-"there were a million times when he should not
have been involved with me at that time interfering again
with my management tasks or interference with the truck
[referring to the November 2 complaint], that was just an-
other example of the type of things he was constantly look-
mg into which he really shouldn 't have ." And, further
testified , "[Hain] wanted me to account to him constantly
for almost everything that went on in the yard ." This gener-
alized testimony about Hain interfering with Michel's man-
agement tasks a million times and constantly asking Michel
to account for almost everything that went on in the yard
is characterized by a total absence of any details and I do
not credit it. What the detailed testimony does establish, as
set out above, is that on a number of occasions Hain com-
plained to Michel that Respondent was violating the union
contract by its use of nonunion employees to perform work
which Hain believed was covered by the union contract.
The sole evidence of complaints not directly concerned
with an alleged violation of the union contract are limited
to two , namely his two conversations with Michel on Octo-
ber 29 after he had learned that the yardmen had been laid
off. As described in detail above, Hain asked Michel for an
explanation . Without deciding whether these conversations
were part of the res gestae of Hain's original efforts to pro-
tect the bargaining unit from being eroded , it is plain that,
as described in detail above , Michel was mad not because
Hain in speaking to him during working time was interfer-
ing with his management tasks , but rather , as Michel testi-
fied, "Inside I was just furious because I thought Hain had
instigated the situation causing the layoffs ." Later during
his testimony , Michel however , stated that his anger result-
ed from "the tone of Hain 's voice and the whole thing," that
H. O. SEIFFERT COMPANY 965
he got the impression Hain was commanding him. As in the
case of Michel's other impressions , namely , Hain's nit pick-
ing, Hain's protecting himself in the cloak of unionism, and
Hain calling Michel a liar, I do not credit Michel.
Finally , in support of this portion of the termination
letter , Michel testified that Hain had told a new store man-
ager "how he did not like the management of the company"
and further testified , "That does hurt us , and that is interfer-
ence , I feel . That has nothing to do with the union." The
record is barren of any details as to this occurrence, when
it took place , and what was said . Respondent 's attorney did
not bring the matter up. It was brought out after Respon-
dent had rested its case and Michel was recalled by the Trial
Examiner to answer a question . That this is an afterthought
which had no bearing on the Respondent 's decision to dis-
charge Hain is also demonstrated by the fact that Respon-
dent in its affirmative defense admits that Hain was
discharged because of the manner in which he complained
that Respondent was violating the union contract. Under
the circumstances , I find that Michel's testimony that in
part his decision to discharge Hain was motivated by Hain's
derogatory remarks about the management to the new man-
ager is not credible and I further find that this testimony was
advanced by Michel as an afterthought designed to cover up
the real reason for the discharge.
2. Inattention to customer needs and lack
of customer service
Regarding this portion of the termination letter, Mi-
chel testified that, when complaining , Hain was "not mind-
ing his business," that Michel "constantly warned him that
he should worry more about the company and less about
these things .... I also warned him when we brought him
back [referring to the layoff]. I said Hain we got to think
about the company and survival and the teamwork it's
going to take to get us out of here rather than always trying
to find a million ways to disrupt this . . . ." And , further
testified that on November 2, "there were customers, one
customer in particular , in the yard in his area , that wasn't
being taken care of and had been there a long time."
Other than Michel's generalized testimony set out
above there is not one bit of evidence that at any time
during his 3 years that Michel ever reprimanded Hain for
complaining to Michel during working time or specifically
for not waiting on customers . I am convinced and find that
the record as a whole shows that Michel 's concern over
Hain's conduct was not over customer service , but rather
the fear Hain might force the Respondent to employ more
expensive labor or restrict Respondent in its flexibility in
using store clerks to do warehouse work by successfully
pressing his complaints that Respondent was violating the
union contract . Regarding Michel's reference to the fact
that Hain on November 2 had a customer waiting in the
warehouse , Hain's conversation with Michel took less than
1 minute and Hain credibly testified he did not go out of his
way to talk with Michel on his way to the warehouse to wait
on this customer . It is plain from Michel's testimony, that
the decision to discharge had nothing to do with any possi-
ble delay by Hain in waiting on this customer . Thus , Michel
initially believed Hain 's complaint was meritorious and ac-
ceded to his request that a unit employee drive the forklift
which was unloading the Air-Mac truck . Michel at that time
did not threaten Hain with disciplinary action for not wait-
ing on the customer . It was only after the president of Re-
spondent, Sievers , told Michel that Hain was wrong about
the violation of the contract that Michel decided to dis-
charge him . The record contains additional persuasive evi-
dence that Hain 's use of working time was not the
motivating reason for his discharge . At no time did Michel
complain to Hain , or any other person , or the Union, that
Hain's activities during working hours were grounds for
discipline or discharge . The record is replete with evidence
of conversations of Hain with Michel concerning violations
of the union contract . In none of these conversations did
Michel warn Hain that his activities were grounds for disci-
pline because he was engaging in them during working time.
Under the circumstances , I am convinced and find that the
alleged inattention to customers or the use of working time
when complaining about alleged contract -violations played
no part in Michel's decision to discharge Hain.
3. An attitude which has created
serious morale problems
Michel 's testimony concerning this portion of the dis-
charge letter is set out in its entirety:
... when you have a man that is constantly picking on
every little thing, and you have a man that is talking to
your new people like Jim Neal [the new manager] and
saying he doesn't like management ... when you have
a man that 's causing situations where four people are
dropped off , constant questioning , constant disruption
like this incident out in the yard , challenging us and the
truck , we spent the whole morning trying to undo
something that never should have been done. When
you add those up for a three-year period, I don't see
how it can do anything but hurt morale at a time when
we could ill afford to have anyone that's on our side
against us. We needed all of our people working for us,
and we had enough people outside trying to kill us off.
We did not need any more arrows in our own back
I don 't care if a man comes up and has a legitimate
gripe to the Union because no one else is going to stand
up for that man...but you could go beyond that too,
and I think Hain went way beyond it.
For the reason set out earlier , I find that Michel's ref-
erence to Hain's alleged conversation with the new manager
is an afterthought having nothing to do with his decision to
fire Hain . Regarding the rest of the reasons set out above,
which allegedly created a "serious ' morale problem," it is
clear and I find that they all directly concern Hain's com-
plaints to Michel and the Union that Respondent was vio-
lating the contract by using nonunion employees to perform
work covered by the union contract. I further find that
Michel's generalization that Hain by his conduct had "cre-
ated serious morale problems" is not supported by any evi-
dence and is completely lacking in substance.
E. Concluding Findings
Here,, there is no dispute that Hain 's complaints that
966 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Company was not employing union employees to per-
form certain work were an attempt to enforce a contractual
provision relating to the scope of the bargaining unit. Re-
spondent at all times regarded these complaints as an effort
by Hain to enforce the union contract. If Hain was correct,
Respondent's conduct constituted an erosion of the con-
tractual bargaining unit affecting the employment of all of
the unit employees, and was a matter of concern to all of
these employees.
Section 7 of the Act guarantees employees the right to
engage in "concerted activities for the purpose of collective
bargaining or other mutual aid or protection." Where em-
ployees have obtained a collective-bargaining agreement,
conduct which implements the rights declared therein is, in
effect, an extension of the concerted activity which gave rise
to the agreement. For this reason, the effort of a single
employee "to enforce the provisions of a collective bargain-
ing agreement may be deemed for concerted purposes even
in the absence of such interest by fellow employees." N.L.R.
B. v. Interboro Contractors, Inc., 388 F.2d 495, 500 (C.A. 2);
H. C. Smith Construction Co., 174 NLRB 1173, enfd. 439
F.2d 1064 (C.A. 9).
It seems to me that the circumstances leading up to and
surrounding Hain's discharge support the conclusion that
he was discharged as a deliberate step to relieve Hain's
pressure on the Company to abide by the union contract.
Respondent was suffering serious economic problems and,
in an effort to survive, was in the process of changing from
a predominantly wholesale to a retail operation. As put by
Michel, "We were trying to survive, we were trying to run
a program to completely turn the company around." Hain's
complaints that the Company was not employing bargain-
ing unit employees to perform certain warehouse and yard
work did not fit into the Company's survival program. That
Michel resented Ham for complaining about violations of
the union contract is shown by his admission that, in select-
ing Hain for layoff in December 1970, one of the factors he
considered was Hain's complaints. To quote Michel, "I
must admit I had a little bit of ill-feeling toward [Hain]
because I felt so much of these things he was bringing up
were not justified. They were taking up time when we had
so many more important things to worry about. I will admit
that at this time this was another factor which came into
mind." To put an end to Hain's complaints about alleged
contract violations Michel, when he recalled Hain from
layoff in March 1971, warned Hain , "Jim, we got to think
about the company and survival and the teamwork it's
going to take to get us out of here, rather than always trying
to find a million ways to disrupt this." Nevertheless, Hain
continued to complain whenever he had reason to believe
Respondent was not honoring the union contract. This cul-
minated in October 1971 when he grieved to the Union that
store clerk Roscoe was doing bargaining unit work and
spoke out at a union meeting, warning the unit employees
that the Respondent was eroding the bargaining unit. As a
result, representatives of the Union met with Michel. Rather
than, as the Union requested, apply the union contract and
pay the contractual wage rates , Michel laid off four employ-
ees who the Union claimed were doing unit work. This
action hurt Respondent because the laid-off employees
were needed to assist in its program of reorganization. And,
Michel was mad at Hain. He believed that Hain, because of
his complaint to the Union and his speech at the union
meeting, was responsible for the layoff. To quote Michel, "I
won't say that when I heard that Hain was one of the people
that were involved in it that I was not upset at him because
I'm upset at anything that hurts the business ...." It was
in this context that Michel on November 1 met with the unit
employees and explained about the layoffs, pleaded with
the employees for unity, told them that what happened
"Friday" (the day of the layoffs) could jeopardize the
Company's existence and asked that they bring their prob-
lems to, management before going with them to the Union.
Despite Michel's plea for unity, Hain the next day (Novem-
ber 2), as set out in detail above, complained to Michel that
the Company was breaching the union contract by allowing
a nonemployee to operate the forklift which was unloading
the Air-Mac truck. Michel instructed the nonemployee to
stop operating the forklift and replaced him with a unit
employee. Within hours, Hain was discharged, with Michel
explaining to employee Womack that the reason for the
discharge was because Hain, without any right, had stopped
the unloading of a truck.
Based on the foregoing, I find that a preponderance of
the evidence demonstrates that the Respondent, in dis-
charging Hain, was motivated in substantial part by his
union and concerted activities. Indeed, Respondent in its
answer to the complaint admits that Hain, on November 2
and on other occasions, complained to Respondent about
alleged breaches of the union contract and that, "Hain was
discharged because of the intemperate, contumacious, cor-
rosive, insubordinate and disrespectful manner in which he
made his complaint on November 2, 1971, and several of his
previous complaints." As indicated above, I find Michel's
contentions regarding the manner in which Hain made his
complaints to be totally lacking in substance, that Michel's
asserted reasons for the discharge were an afterthought and
a pretext, and further find that the underlying and motivat-
ing reason for Hain's termination was his union and protect-
ed concerted activities. I find, in short, that it was not the
manner in which Ham made his complaints which was ob-
jectionable to Respondent, but that Respondent, desiring to
eliminate a thorn in its side, discharged Hain because of his
union and protected concerted activities in violation of Sec-
tion 8(a)(3) and (1) of the Act.
Even if, as Respondent contends, its motive was pure,
Hain was discharged solely because of the manner in which
he made the breach of contract complaints, I find that his
conduct was within the protection of Section 7 of the Act,
and that in these circumstances, even absent an unlawful
motive, the Respondent in discharging him violated Section
8(a)(1) of the Act .4
It is well settled that employees must be granted con-
siderable latitude about the way in which they engage in
concerted activities, if the guarantees of the Act are to have
4 It does not matter that Respondent may not have been motivated by a
conscious purpose to defeat union or protected concerted activities in dis-
charging Hain The law has long been settled that once it is established that
an employee's statutorily protected rights have been trenched upon by a
discharge , it is immaterial to a finding that the law has been violated that the
discharge was not motivated by union hostility or ill intentions . E.g. Crown
Central Petroleum Corporation, 177 NLRB 322, 323, and cases cited therein
H. 0. SEIFFERT COMPANY
a substantial practical effect. Otherwise, employees might
avoid exercising their statutory rights for fear of reprisal by
their employer at the first misstep. Accordingly, employees,
when engaged in concerted activity under the Act, are insu-
lated from punishment for conduct which in a different
context might properly be regarded as grounds for dis-
charge. E.G. Flacon Plastics v. N.L.R.B., 397 F.2d 965, 967
(C.A. 9); N.L.R.B. v. Thor Power Tool Co., 351 F.2d 584, 587
(C.A. 7); Morrison-Knudsen Co., Inc. v. N.L.R.B., 358 F.2d
411, 414, 415 (C.A. 9). In the instant case, Hain was com-
plaining about company conduct which he believed to be
contrary to the existing union contract. The law is settled
that employees "do not forfeit the protection of the Act if,
in voicing their dissatisfaction with matters of common con-
cern, they give currency to inaccurate information, provid-
ed that it is not deliberately or maliciously false." Walls
Mfg. Co., 137 NLRB 1317, 1319. And, more specifically that
an employee does not lose the protection of the Act because
a complaint which he bases on a contract provision turns
out to be incorrect. N.L.R.B. v. H. C. Smith Construction
Co., supra. Here there is no credible evidence that Hain
acted out of malice or was not acting in good faith. To the
contrary, Respondent in a substantial number of instances
agreed to remedy Hain's complaints and the Union on two
occasions, including its October 1971 meeting with Michel,
actively supported Hain's complaints. It seems to me, and
I find, that Hain's belief Respondent was violating the un-
ion contract was under all of the circumstances a reasonable
belief.
Nor does the evidence show that Hain's behavior dur-
ing the course of his protected activity rises to the level of
seriousness sufficient to forfeit the Act's protection. In this
regard, there has been general recognition that an employer
may not sit in absolute judgment on the propriety of con-
duct engaged in by his employees in the course of protected
activity. If such were the case, an employee would hesitate
to play a leading role in union activity-particularly so
abrasive an activity as the presentation of grievances-since
he would be "wholly at the mercy of the varied under-
standings of his hearers and consequently, of whatever in-
ference may be drawn as to his intent and meaning."
Thomas v. Collins, 323 U.S. 516, 536. Accord: N.L.R.B. v.
Burnip & Sims, Inc., 379 U.S. 21. Thus, where improper
conduct is intertwined with protected activity, there must be
"some leeway for impulsive behavior," and the protection
is not lost unless the impropriety is egregious . N.L.R.B. v.
Thor Power Tool Co., 351 F.2d 584, 587 (C.A. 7). Here I find
that Hain's conduct in presenting his complaints to Michel,
particularly the November 2 complaint, was not sufficiently
serious to forfeit the Act's protection. At no time did Hain
swear at Michel, he said nothing which could be deemed
disparaging or disrespectful either to Michel or to the Com-
pany. Nor is there any evidence of disobedience or chal-
lenge to Michel's authority. Finally, there is no evidence
that other employees were witnesses to the conversations.
Hain simply informed Michel that in his opinion the Com-
pany was in breach of contract, explained his reasons, re-
quested that Michel remedy the alleged contractual
violations , and on one occasion (November 2) raised his
voice. Regarding the November 2 complaint, Michel, when
the complaint was made , gave no indication that the inci-
I
967
dent called for disciplinary action of any kind. It was only
after he was told by the Company's president that Hain's
interpretation of the union contract was wrong that Michel
decided to terminate him. Of course, an "employee does not
lose the protection of the Act as a matter of law simply
because his understanding of the contract turns out to be
mistaken." N.L.R.B. v. H. C. Smith Construction Co., supra.
This is expecially true where, as here, Hain's complaint of
a contract violation was not unreasonable.
I find, in short, that Hain was engaging in union and
concerted activities within the protection of Section 7 of the
Act when he complained to the Respondent that it was
breaching its union contract and that for discharging him
for this reason Respondent violated Section 8(a)(1).
CONCLUSIONS OF LAW
Upon the basis of the foregoing findings of fact and
the entire record, I make the following conclusions of law:
1. H. O. Seiffert Company is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of the
Act.
2. Local Union No. 38, affiliated with the International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, is a labor organization within the
meaning of Section 2(5) of the Act.
3. By discharging James Hain , Respondent engaged in
an unfair labor practice within the meaning of Section
8(a)(1) and (3) of the Act.
4. The aforesaid unfair labor practice affects commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in an
unfair labor practice violative of Section 8(a)(1) and (3) of
the Act, I shall recommend that the Respondent offer James
Hain immediate and full reinstatement to his former job or,
if that job no longer exists, to a substantially equivalent
position, without prejudice to his seniority and other rights
and privileges, and make him whole for any loss of earnings
he may have suffered by reason of such discrimination, by
payment of a sum of money equal to that which he normally
would have earned as wages from the date of discharge to
the date of said offer of reinstatement, less his net earnings
during such period, with backpay computed on a quarterly
basis in the manner established by the Board in F. W. Wool-
worth Company, 90 NLRB 289, and with interest thereon as
prescribed by the Board in Isis Plumbing & Heating Co., 138
NLRB 716.
As the unfair labor practice committed by the Respon-
dent is of a character which goes to the very heart of the Act,
I shall recommend an Order requiring the Respondent to
cease and desist therefrom and to cease and desist from
infringing in any other manner upon the rights of employees
guaranteed by Section 7 of the Act.
Upon the foregoing findings of fact, conclusions of
law, and the entire record, and pursuant to Section 10(c) of
the Act, I hereby issue the following recommended:
968 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDERS
Respondent, H. O. Seiffert Company, Everett, Wash-
ington , its officers , agents , successors , and assigns, shall:
1. Cease and desist from:
(a) Discharging or otherwise discriminating against
employees because of their union activities or because of
their protected concerted activities.
(b) In any other manner, interfering with, restraining,
or coercing its employees in the exercise of their rights guar-
anteed under Section 7 of the Act.
2. Take the following affirmative action which is neces-
sary to effectuate the policies of the Act:
(a) Offer James Hain immediate and full reinstatement
to his former position or, if that position no longer exists,
to a substantially equivalent position, without prejudice to
seniority or other rights and privileges.
(b) Notify the above-named employee, if presently
serving in the Armed Forces of the United States, of the
right to full reinstatement, upon application after discharge
from the Armed Forces, in accordance with the Selective
Service Act and Universal Military Training and Service
Act.
(c) Make James Ham whole for any loss of earnings
suffered by reason of the discrimination against him, in the
manner set forth in the section herein entitled "The Reme-
dy."
(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, person-
nel records and reports, and all other records necessary to
analyze the amount of backpay due and the right of rein-
statement under the terms of this Order.
(e) Post at its place of business at Everett, Washington,
copies of the attached notice marked "Appendix."6 Copies
of said notice, on forms provided by the Regional Director
for Region 19, after being duly signed by Respondent's
representative, shall be posted by Respondent immediately
upon receipt thereof, and be maintained by it for 60 consec-
utive 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.
(f) Notify the Regional Director for Region 19, in writ-
ing, within 20 days from the receipt of this Decision, what
steps Respondent has taken to comply herewith?
5 In the event no exceptions are filed as provided by Sec 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions and recommended Order herein shall , as provided in Sec 102 48
of the Rules and Regulations, be adopted by the Board and become its
findings , conclusions , and Order , and all objections thereto shall be deemed
waived for all purposes
6 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 read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Realtions Board."
7 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 19, 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
After a trial in which all sides had the opportunity to
present their evidence , the National Labor Relations Board
has found that we , H. O. Seiffert Company , have violated
the law and has ordered us to post this notice.
The National Labor Relations Act gives all employees
these rights:
To engage in self-organization;
To form , join or help unions;
To bargain collectively through a representative
of their own choosing;
To act together for collective bargaining or oth-
er mutual aid or protection;
To refrain from any or all of these things except
to the extent that membership in a union may be
required pursuant to a lawful union security clause.
WE WILL NOT do anything that restrains or coerces
employees with respect to these rights . More specifical-
ly,
WE WILL NOT discharge or otherwise discriminate
against you because you complain to either the Compa-
ny or Teamsters Local Union No. 38 about what you
believe is a violation of the terms of the collective-
bargaining contract which we have with Teamsters Lo-
cal Union No. 38.
WE WILL NOT in any other way punish you for exer-
cising the rights guaranteed you by Section 7 of the
National Labor Relations Act.
Since the National Labor Relations Board has
found that we violated the law by discharging employ-
ee James Hain, WE WILL offer him his job back and WE
WILL reimburse him for any loss of pay he may have
suffered because we discharged him, together with in-
terest as provided by the Board 's Order.
H. O. SEIFFERT COMPANY
(Employer)
Dated By
(Representative) (Title)
We will notify immediately the above-named individual, if
presently serving in the Armed Forces of the United States,
of the right to full reinstatement, upon application after
discharge from the Armed Forces, in accordance with the
Selective Service Act and the Universal Military Training
and Service Act.
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 direct-
ed to the Board4s Office, 10th Floor, Republic Building,
1511 Third Avenue, Seattle, Washington 98101, Telephone
206-442-5692.