Herb Stein, Inc.

National Labor Relations Board - Board Decisions

Jun 4, 1965

152 N.L.R.B. 1196 (N.L.R.B. 1965)

1196 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Herb Stein , Inc. and Frank J. Ralofsky. Case No. 8-CA-3518.
June 4,1965
DECISION AND ORDER
On March 12, 1965, Trial Examiner Harold X. Summers issued his.
Decision in the above-entitled proceeding, finding that the 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 Deci-
sion . He also found that the Respondent had not engaged in other
unfair labor practices and recommended that the complaint be dis-
missed as to them. Thereafter, the Respondent filed exceptions to the-
Trial Examiner's Decision and a supporting brief.'
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Brown and Jenkins].
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, and recommen-
dations of the Trial Examiner.2
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the National Labor Relations Board adopts as its Order the
Order recommended by the Trial Examiner and orders that the
Respondent, Herb Stein, Inc., its officers, agents, successors, and
assigns, shall take the action set forth in the Trial Examiner's Rec-
ommended Order.
'The Respondent 's request for oral argument is hereby denied as the record , includ-
ing the exceptions and brief, adequately sets forth the issues and the position of the parties
ewe hereby correct the following inadvertent errors in the Trial Examiner 's Decision:
Jones & Laughlin ' s two electric furnaces went back into operation on January 1, 1964,
not January 1, 1965, and Ralofsky was discharged on March 26 , 1964, not on May 26, as
stated at one place in the Trial Examiner ' s Decision.
TRIAL EXAMINER'S DECISION
This case was heard upon the complaint 1 of the General Counsel of the National
Labor Relations Board, herein called the Board , alleging that Herb Stein , Inc., herein
called Respondent , had engaged in and was engaging in unfair labor practices within
the meaning of Section 8(a)(1) and (3) of the National Labor Relations Act, as
amended, herein called the Act. Respondent 's answer to the complaint, as amended
at the hearing, admitted some of its allegations and denied others; in effect, it denied
the commission of any unfair labor practices . Pursuant to notice , a hearing was held
I The complaint was issued July 16, 1964 . The charge initiating the proceeding was
filed May 26, 1964.
152 NLRB No. 121.
HERB STEIN, INC. 1197
before Trial Examiner Harold X. Summers at Cleveland, Ohio, on September 21 and
22, 1964. All parties were afforded full opportunity to examine and cross- examine
witnesses, to argue orally, and to submit briefs. A brief filed by the General Counsel
and a brief and "answering brief" 2 filed by Respondent have been fully considered.
Upon the entire record of the case, including my evaluation of the witnesses based
upon the evidence and my observation of their demeanor, I make the following:
FINDINGS OF FACT
1. COMMERCE
Respondent, an Ohio corporation, at all times material herein has maintained a
field office and jobsite at the Cleveland, Ohio, premises of the Jones and Laughlin
Corporation (sometimes here referred to as J & L), where it has been engaged in the
hauling and processing of slag as a subcontractor for Columbia Iron and Metal
Company. In the course and conduct of its operations at the Jones and Laughlin
site, Respondent annually performs services for Columbia Iron and Metal Company
(which itself annually ships goods and materials valued at in excess of $50,000
directly to points outside the State of Ohio) valued at in excess of $50,000.
On these facts, I find Respondent to be an employer engaged in commerce within
the meaning of the Act .3
H. THE UNIONS
Excavating, Building Material Construction Drivers' and Race Track Employees'
Local Union No. 436, affiliated with the International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, hereinafter called Local 436, is
an organization composed of approximately 5,000 members on whose behalf it deals
or seeks to deal with their employers concerning hours, wages, and other working
conditions. In connection therewith, it is a party to collective-bargaining agreements
with approximately 600 employers. On these facts, I find Local 436 to be a labor
organization within the meaning of the Act.
Local 18 (which term includes Locals 18A, I8B, and 18C) of the International
Union of Operating Engineers, AFL-CIO, hereinafter called Local 18, represents
employees of Respondent for collective-bargaining purposes. I find Local 18 to be a
labor organization within the meaning of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background and setting
J & L, at the site in question, is engaged in the business of producing steel. Respond-
ent's primary function is the reclamation, for J & L, of metallics from slag, rubble,
junk, and other cleanup materials; it receives or itself picks up such materials from
J & L's various operations and, after breaking and crushing them, extracts the metal-
lics, basically by a magnetic process; and, thereafter, it makes an appropriate disposi-
tion of the metallics and the residue. In the performance of its task, Respondent
employs operators of processing machinery, other operational employees, mainte-
nance men, and operators of material-transport machinery (the latter herein called
truckdrivers).
In 1958 or 1959, at or about the time Respondent took over this operation, there
was a meeting at the offices of Local 18, in the course of which the future collective-
bargaining relations of Respondent were discussed .4 Present were representatives of
Respondent, of Local 18, and of Local 436. At that meeting, Respondent's repre-
sentatives announced that, while they were willing to negotiate a collective-bargaining
agreement, they were unwilling to deal with two unions; specifically, they said, they
would not do business with Local 436, giving as a reason that some of its officers were
the subject of "adverse publicity" at the time. After two more meetings, it was
decided that Respondent would execute a contract with Local 18 only and that all
subsequent contacts with Local 436 would be maintained through or in the presence
2In view of the reasons given in justification therefor, the answering brief was ac-
cepted ; the General Counsel did not avail himself of the opportunity afforded him to file
a reply thereto.
3 Siemons Mailing Service, 122 NLRB 81, 85.
* The record contains a reference to the fact that this meeting was held in consequence
of "a petition for the purpose of negotiating an agreement for the employees." The record
does not reveal-and it is unnecessary here to decide-whether the recognition which
resulted from the meeting grew out of a Board proceeding
1198 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of Local 18 officials.5 Since that time, Local 18 has, for all formal purposes, acted as
exclusive bargaining agent of Respondent's nonsupervisory, nonclerical employees at
the J & L site. The last collective-bargaining agreements covering the working
conditions of these employees was effective, by its terms, from August 1, 1962, until
midnight July 31, 1964, and, in the absence of stipulated advance notice of a desire
to change or to terminate, from year to year thereafter.?
Although, as indicated, the truckdrivers constituted a part of the bargaining unit
covered by the collective-bargaining contract between Respondent and Local 18,
Local 436 did not step out of the picture. In effect, by informal agreement between
the locals, Local 436 has acted on behalf of the truckdrivers during the entire period
of Respondent's operation at the J & L site. The arrangement was never formalized
by Respondent's recognition of Local 436 as bargaining agent for its truckdrivers, but
officials of Respondent-always insisting, however, on the presence of a Local 18
official-have discussed matters concerning its truckdrivers, including asserted griev-
ances, with a representative of Local 436. In fact, the union-security provision of the
last contract, which, by its terms, called for membership in Local 18 as a condition of
employment after 31 days of employment, seems to have been interpreted by the
parties as permitting truckdrivers to join Local 436 instead of Local 18; at any rate, at
various periods in the past, Respondent has recruited needed truckdrivers from Local
436, either directly or through Local 18, Respondent has referred truckdrivers who
had completed their probationary period to Local 436 to be solicited for membership,
and (insofar as this record reveals) truckdrivers of Respondent have become mem-
bers of Local 436 rather than of Local 18.8
Since it was not a part of the contract between Respondent and Local 18, one of
the working conditions not available to Respondent's truckdrivers was participation
in a health, welfare, and pension plan sponsored by Local 436's International. Late
in 1962 or early in 1963, a representative of Local 436-in the presence of a Local 18
representative-had discussed the plan with a representative of Respondent, but there
had been no agreement to incorporate it as a working condition of the truckdrivers.
And in June or July 1963, a number of Respondent's truckdrivers met with Joseph
Morrow, Local 436 representative, at which time they discussed the possibility of
"getting under" the health, welfare, and pension plan, but no implementing steps
were taken at that time.
Again, in January 1964, a number of the truckdrivers-7 out of Respondent's 11-
met with Morrow; again, they sought "their own" health, welfare, and pension fund.
He told them that a petition could be filed with the Board to determine if they could
have "their own" contract, a course of action which would require signed authoriza-
tions. (As has been noted, Respondent's truckdrivers, over the past few years, had
joined Local 436-insofar as the record reveals, all were members at the time of this
meeting-but, for the purposes of this "campaign," it was felt necessary to procure
new bargaining-authorizations.) Thereafter, during the next several months, signa-
tures of truckdrivers were procured on cards authorizing Local 436 to act as their
bargaining agent .9
5 This finding is based on the credited, uncontradieted testimony of Joseph Morrow,
business representative of Local 436 Russell Stein, Sr, an officer of and superintendent
for Respondent and a participant at these meetings, did not testify.
6 Parties to the contract were, on the one hand, Local 18 and, on the other, "Herb
Stein, Inc , and Feas, Inc " It was stipulated, for the purposes of this proceeding, that
Herb Stein, Inc., and Feas, Inc , also an Ohio corporation, may be considered one and the
same. (In even less detail, there was reference in this record to "another arm on the
J & L job," the H A. Stein Company.)
7 Subsequent to the immediate events with which this case is concerned, appropriate
notices were exchanged, and the contract expired July 31, 1964 ; and a new contract had
not been executed as of the date of this hearing. (This finding, based on a stipulation
of the parties, is at variance with an assertion made in Respondent's brief, but, for pur-
poses of this proceeding, the variance is immaterial.)
8 Local 436 regards its union-security arrangement with Respondent as an "informal,
pent''man's agreement," its only complaint being that, occasionally, Respondent notified
Loci 436 of the hiring of a truckdriver long after his probationary period had ended.
Pei-,ondent frankly stated at the hearing that it did not know to what extent the union-
security provision of its contract with Local 18 was being enforced. (There has never
been a request to discharge a truckdriver pursuant to the provision.)
9 Subsequent to the immediate events with which this case is concerned, Local 436 filed
with the Board a petition for certification as the truckdrivers' bargaining agent (Case
No. 8-RC-5569). The petition was filed on May 5, 1964; a hearing was held on May 26,
Local 18 having filed a disclaimer of interest ; and on June 16 the Board's Regional
Director notified the parties that the petition had been withdrawn.
HERB STEIN, INC. 1199
B. Independent interference , restraint , or coercion
The complaint herein cites , as independent acts of interference with, or restraint
or coercion of, employees in their exercise of rights guaranteed them by Section 7 of
the Act, two items both involving Russell Stein 111, assistant superintendent of
Respondent . ( 1) on or about February 27, 1964, interrogation by him of employees
concerning their union membership , activities , sympathies , and affiliation ; and (2) on
or about March 1, 1964, his threatening employees with discharge or other reprisals
because of their union membership , activities, sympathies , and affiliation . The answer
denies that either event occurred or that there was any interference with, or restraint
or coercion of, employees in their exercise of Section 7 rights.10
(1) At the hearing , the General Counsel made it clear that the first item was in
reference to an alleged conversation between Stein and truckdriver Frank Ralofsky.
On the testimony thereon, I make the following findings . On the morning of February
27, 1964, Russell Stein III (sometimes herein called Stein, Junior , to distinguish him
from his father ), assistant superintendent for Respondent on the J & L job,11
approached Ralofsky when the latter reported for work He said that James Hudnall,
another of Respondent 's truckdrivers , had told him about being asked to sign a union
card by Ralofsky on the previous day, and he asked if this were true . When Ralofsky
conceded that it was, Stein said he had no right to talk to anyone about joining unions.
Ralofsky said that this was a matter between the drivers themselves and none of his
concern , to which Stein retorted, "Everything that goes on here-around here-
concerns me. I want to know what 's going on and I also want to be told about it
first." 12
As a matter of fact, Ralofsky had, the previous day, solicited Hudnall's signature on
a card authorizing Local 436 to act as bargaining representative for Respondent's
truckdrivers; he told Hudnall that, as far as he knew, all other truckdrivers had signed
cards, their purpose being to get Local 436 as their agent so that they would be
"properly" represented . Hudnall refused to sign a card , saying he had belonged to
several unions,13 was acquainted with a number of "high " union officials , and "knew
how unions were run." Ralofsky suggested that he take the card and give the matter
further consideration , but Hudnall refused to accept the card.14
Under all the circumstances , I find that Hudnall had told Stein, Junior , about the
solicitation on the day it occurred.15
The solicitation took place on the J & L premises ; this record does not reveal
whether it was done on working time . There is no claim, however, that Ralofsky was
acting in violation of any company rules. On the contrary ( I find, in accordance with
a contention of Respondent ), Respondent had no existing rule which would prohibit
the circulation of union cards on company time or property.
10 After searching the record , my notes, and my recollection , I find no warrant for the
assertion-made in Respondent 's reply brief-that the General Counsel abandoned its
contention that Respondent had interrogated employees in violation of Section 8(a) (1)
of the Act
11 Stein , Junior , is a supervisor for and agent of Respondent within the meaning of
the Act. For the purposes of this case, he assumed his present post on or about
January 1, 1964
'a This finding accords with the credited testimony of Ralofsky Stein , Junior, asked
about the conversation , testified that he did tell Ralofsky that , as supervisor on the job,
he "had the right to know what was going on"; otherwise , his and Ralofsky 's versions
bear no resemblance Testifying originally , and once again , that he never spoke to
Ralofsky about union cards, Stein later testified ( being confronted with a pretrial state-
ment ) that , although he had told a Board agent that he "probably " had had a conversation
with Ralofsky about union cards, he had since assured himself , " in his mind," that
Ralofsky was not among those with whom he spoke about union cards ; and, finally, he
testified that he had spoken to no other drivers about union cards The nature of Stein's
testimony on this point convinces me that Ralofsky was the more credible witness.
13 Although Ralofsky was unaware of it, Hudnall was a member of Local 436 at that
very time , having joined on February 10, 1964.
14 This finding is based on the credited testimony of Ralofsky , uncontradicted by
Hudnall.
15 Hudnall , called as a witness by Respondent , did not testify about this . Stein , Junior,
testified that he "believed" Hudnall had identified Ralofsky as the one who asked hint to
sign a card ; at one point , that he did not know when Hudnall told him, and at another,
that Hudnall told him this after Ralofsky 's discharge ( 1 month later ). I do not credit
him in the latter respect, choosing to rely instead on the surrounding circumstances
herein related
1200 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The General Counsel denominates Stein's remarks as coercive interrogation. I
agree. Clearly, Stein was seeking information as to an employee's union activities.
That this was not idle curiosity is displayed by his reaction to the employee's an-
swer-his telling Ralofsky he had no right to talk to anyone about joining unions
Attributing rationality to Stein, he could only have been intending to inhibit Ralofsky
in the exercise of his self-organizational rights.
(2) The second allegation arises out of a conversation between Stein, Junior, and
truckdriver Danny Karras.16
Leaving aside for the moment the actual dates thereof, there was some discussion
among a number of truckdrivers, and between one or more of the truckdrivers and
Milan Kajganovich, a clerk for Respondent,17 as to the reason why some of the
drivers were working "short" weeks. In an evening telephone conversation during
this period, truckdriver Danny Karras expressed the opinion to truckdriver Joe
Vargo that the current oganizing drive had something to do with it.
Early next morning, Vargo asked Stein, Senior, if the reason for the 4-day week
was the fact that cards were being circulated. "What cards?" Stein asked, "I don't
know anything about that," and he walked away. When Stein, Junior, reported for
work that morning, his father told him of the incident, and Stein, Junior, anxious to
get to the bottom of the matter, hailed Vargo about 7 a.m. Vargo repeated the ques-
tion he had asked earlier. Stein, Junior denied that the circulation of cards had
anything to do with the 4-day week-the varying lengths of the workweek were the
result of trying to equalize the work given to the men. He asked Vargo the source of
the rumor. When Vargo displayed some reluctance in answering, Stein pressed him;
finally, Vargo named Karras.18
Thereupon, the same morning, Stein, Junior, spoke to Karras, whose night shift
had not yet ended. He told Karras that Vargo had identified him as Vargo's source
of a report that drivers' 4-day weeks were related to the current circulation of union
cards After a few minutes in which Karras disclaimed knowledge of what Stein,
Junior, was speaking-he asserted he did not know what kind of union cards were
being referred to-he finally conceded that Vargo had told the truth. Stein asked the
basis for his belief, and Karras said he had heard it from another driver; but although
Stein pressed-vigorously-for the driver's name, Karras refused to give it to him.
Thereupon, Stein said that it (the "explanation") was a lie and, as he walked away,
"When I get to the bottom of this, someone's fanny will be in a sling." 19
(As a matter of fact, the person whom Karras regarded as the source of the "rumor"
was Kajganovich, the clerk referred to earlier; he had so interpreted a remark made
by Kajganovich. And now, Stein, Junior, by a process of elimination, decided that
the clerk was the nub of the problem; subsequently, there was a confrontation in
which the clerk conceded to Stein that a remark of his may have been the basis for the
rumor making the rounds.)
I have specifically reserved my findings as to the date of the conversation between
Stein, Junior, and Karras. Karras testified that it took place in March (1964)-"It
had to be in the first 2 weeks in March, I imagine." Vargo-a witness called by
18 Although Respondent denied that this conversation occurred as alleged in the com-
plaint, it conceded that a conversation along the lines indicated by General Counsel's
witness did take place; there are differences however, as to the date, the words used, and
the significance-differences which I resolve as hereinafter indicated.
17 Although Kajganovich was sometimes called a "foreman," this record does not sup-
port a finding that he is a supervisor.
18 My findings as to this conversation are a distillate of the testimony of Vargo and
of Stein, Junior, who did not substantially differ on meaningful detail. I have omitted, as
irrelevant, the fact that, at one point, Vargo explained that his interest in the union cards
centered on the health, welfare, and pension plan, and that Stein, Junior, said he could
not blame Vargo for that. I do not credit Vargo's additional testimony-because of its
lack of plausibility-that Stein mentioned that Karras had told three drivers that, if
they did not sign union cards, they would be out of a job when he became steward. And
I have made no finding based on Vargo's testimony that he thought Stein asked him if
he was circulating cards, because of its vagueness.
19 The findings in this paragraph are based primarily on Stein Junior's credited testi-
mony. Karras, on many details, was in agreement ; on others, he varied to a greater
or lesser degree For example, he testified that, in this conversation; he offered his own
basis for the rumor he had passed to Vargo-"When your time is cut here, there's a
reason for it-somebody's mad at somebody" ; and a slightly different version of Stein's
exit comment-"When I get to the bottom of this, somebody won't be around" Karras'
testimony is not free of self-contradiction, and, in explanation of an apparent difficulty
of recollection, he said, "It's been quite a while ago."
HERB STEIN, INC. 1201
Respondent-placed it as "sometime in March " Stein, Junior, testified that it took
place on Tuesday, February 18. Confronted with his pretrial statement that the
conversations (with Vargo and Karras) took place "early in March," Stein, Junior,
now explained that he was mistaken at the time he made the statement and that sub-
sequent resort to company records had convinced him that February 18 was the
applicable date: the only week Vargo and Karras were on a 4-day week at that time
was the one from February 17 through 23 and (in view of his attendance habits) the
only mornings on which his father could have engaged in conversations with employ-
ees would have been on a Tuesday, Wednesday, or Thursday. Obviously, Stein's
present testimony as to the date was not a product of recollection; it was constructed
from records. (Moreover, he displayed a carelessness in reference to dates; at one
point in his testimony, he said, ". . . in an operation such as this, so much happens
in one week that it's very conceivable to lose a week's time. One week makes no
difference one way or the other.") I have examined the records, which were received
in evidence While it is true that both Vargo and Karras were scheduled to work
and did work but 4 days during the week ending February 23, this does not demon-
strate that the conversation necessarily took place that week; the most one can infer
is that this short week was a source of unhappiness which may well have been a sub-
ject of discussion for some time to come. (Kept alive, indeed, by the facts that Vargo
was scheduled to work only 4 days in the weeks ending March 8 and April 12 and 26,
and Karras was scheduled to work only 4 days in the weeks ending March 15 and
April 12 and 26.) Moreover, it should be noted that Karras had just finished working
a night shift on the morning of the conversation in question; yet he did not work the
night shift on February 17.20 I find, for whatever significance it may have, that the
conversation between Stein, Junior, and Karras took place sometime in March 1964.
But I cannot accept the General Counsel's characterization of the conversation-
that Stein was telling Karras that when he found out who was responsible for the
union card the employment of such employee would be terminated. I agree, rather,
with Respondent. Assuming without finding, that Stein said, or could reasonably be
understood to have said, that, when he got to the bottom (that is, the source of the
rumor Karras was spreading), someone would be discharged, he was referring (I
find) to the fact that the person or persons responsible for spreading this "false"
rumor, not those responsible for circulating union cards, would be punished.
Whether or not the rumor was true-and this record contains no basis for a finding
thereon-the total effect of Stein's action in denying the rumor and in seeking to stop
its spread, far from inhibiting the circulation of cards, was to disabuse anyone of the
impression that card circulation would lead to a short workweek
In short, I find the General Counsel's allegation of an unlawful threat in the form
of this conversation to lack support in the proffered evidence.
C. Ralofsky's discharge
Frank Ralofsky was hired as a truckdriver for Respondent at the J & L site on
March 5, 1963.
A member of Local 436 since during or about 1946, Ralofsky attended the mid-
1963 and the January 1964 meetings above referred to. Subsequent to the latter
meeting-in February-he signed a card authorizing Local 436 to act as his bargain-
ing agent at the behest of fellow employee Robert Angersola. At the same time, he
accepted a blank authorization card from Angersola and agreed to approach their
fellow truckdriver, James Hudnall, to procure his signature thereon. As detailed
earlier herein, he did solicit Hudnall's signature and, next day (February 27), Stein,
Junior, demonstrating his awareness of the solicitation, coercively asked him about
it and directed him to refrain from "talking union."
Ralofsky's last day of work for Respondent was March 20, 1964. On Thursday
or Friday, March 19 or 20, Respondent, as was its custom, posted the drivers' work
schedule for the following week. Ralofsky was listed as on "will-call" status-mean-
ing that there would be no work for him during the following week unless he was
specifically called in. On Thursday, March 26, he went to Respondent's office at the
J & L site for his paycheck Stein, Senior, to whom he spoke, told him his check was
in the mail. When Ralofsky asked Stein, Senior, why this unusual course of conduct
was being followed, Stein said that it was in accordance with past practice. Ralofsky
20According to company records received in evidence, the only mornings on which
Vargo could have been at work while Karras finished a night shift were January 28, 29,
and 31, February 1 and 10, March 30 and 31, and April 1, 2, 3, and 4.
789-730-66-vol. 152-77
1202 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
took another tack ; he asked when he should report during the following week. Stein
told him there would be no work for him next week either . ( In point of fact, the
schedule for the following week, posted on that or the next day, failed to list him,
even on a will-call basis.) Ralofsky then asked why he was being dropped from the
payroll when Hudnall, hired long afterward, was being kept on; Stein's reply- "Don't
you know when a brick wall falls on you?" Ralofsky protested the unfairness of the
action, and Stein retorted that he could hire and fire at will, and, "Furthermore," he
said, "I'm not going to have anybody tell me what I should or shouldn't do " Next
day, Ralofsky received his paycheck and a termination slip citing, as the reason for
termination, "Lack of work." 21
It is the contention of the General Counsel that Ralofsky's layoff 22 was motivated
by a desire on the part of Respondent to retaliate against him for his union or other
concerted activities and was designed to nip Local 436's organizing campaign in the
bud. Respondent denies that, in laying off Ralofsky, it was acting in accordance with
the motivation and design attributed to it; contrariwise, it argues that, due to eco-
nomic conditions, there was a decline in available work for employees during the
latter part of February 1964; that, as a result, layoffs were dictated on or about
March 1; and that Ralofsky and one other were selected for layoff at or about this
time for reasons unconnected with unions, unionism, or concerted activities.
(1) Ralofsky, in his testimony, stated that, following the February 27 conversation
between Stein, Junior, and him, Stein, persistently and without provocation. "accused"
him; i e., criticized his work. In support thereof, he cited a number of instances or
areas of criticism- (a) He testified that, although his truck encountered no mechanical
difficulties, Stein constantly told him not to burn out clutches; that, although he did
not know whether there were burnt-out clutches on the job-lie had never burnt one
out-under conditions at the S & L site, clutches could burn out unless adjusted prop-
erly; that he has complained, in driver's reports, about the operation of his truck, one
result of such complaints being Stein Junior's countercomplaint that he, Ralofsky,
was burning clutches and his adjuration to avoid it (b) He testified that, a few days
after the February 27 conversation, Stein complained of his taking too much time
delivering a load from the "New Plant" to the ore dock, although it actually took him
between 15 and 20 minutes, the normal time. (In the past, he said, he-as well as
other drivers-had occasionally taken a longer time, for which, he conceded, there
had been criticism ) (c) Stein, Junior, also criticized him (Ralofsky further testi-
fied) for fueling his truck at the "wrong" time, on February 28, Stein told him that,
rather than fuel at that time, he should do so while the plant was "down," whereas,
no more than a day or so earlier, he had told Ralofsky to fuel his truck while the
plant was "going." (d) Finally (Ralofsky testified), on a date uncertain, but between
the "Hudnall" conversation and the layoff, Stein, Junior, voiced the complaint that
Ralofsky was not interested in working an extra day-an illusion which Ralofsky was
unable to understand. Although the criticism, Ralofsky testfiied, was a daily occur-
rence following February 27, he neither expressed denials, offered excuses, nor other-
wise reacted, because, "You can't deny anything. You can't speak up for [sic- tog] him
I mean. for your own right, because he would accuse you of an argument if you did "
In direct response to the foregoing testimony, Stein, Junior, conceding that he had
criticized Ralofsky's work, testified that he did so both before and after February 27,
and that the criticisms before that date were no less frequent and no less justified than
those which followed. In addition to testifying about his appraisal of Ralofsky's
overall work record (of which, more later, with my findings thereon), he credibly
testified about individual incidents in which he voiced criticisms to Ralofsky.
My evaluation of the testimony on the point, viewed in the light of that which
most comports with plausibility,23 convinces me, and I find, that the criticisms, such as
there were, were not confined to the period between the conversation of February 27
and Ralofsky's last day of work, March 20; I find that they both preceded and fol-
lowed such conversation. Perhaps the conversation itself, taking the form which I
have earlier found, made Ralofsky more acutely sensitive to any subsequent criticism,
21 The findings in this paragraph are based on the uneon tradicted testimony of Ralofsky.
Stein, Senior, did not testify.
22 The date of the layoff, according to Ralofsky's termination slip, was March 26, and
this is the date adopted by the General Counsel in the complaint. Counsel for the Gen-
eral Counsel does not attack the imposition of the "will-call" week beginning on March 23
as an unlawful act.
28 And making due allowance for Stein's apparent unreliability as to dates, heretofore
commented upon.
HERB STEIN, INC. 1203
but while may serve to explain his testimony on the point, it does not help to establish
its objective validity.24
(2) We now proceed to one of the issues specifically framed by the pleading and
arguments-whether economic circumstances dictated that there be layoffs.
J & L, at this site, operates three major steel producing "units." One of the units,
two electric furnaces, is considered to be an auxiliary one, to be used only when other
units, either because of lack of capacity or temporary disability, are unable to keep
up with production needs. As a result, the operation of the electric furnaces has been
spasmodic. The evidence in this record indicates (and I find) that the electric fur-
naces were in operation during a period during 1963 until on or about September 30;
that they were "down" during October, November, and December, 1963; that they
went back into operation on or about January 1, 1965, remaining in operation until
February 11; and that, having again resumed operations on or about June 30, 1964,
they were still operating as of the second day of this hearing. There is also credible
evidence (in accordance with which I find) that during the periods in which the elec-
tric furnaces were being used, the extent of such use would vary from full capacity-
each 21 "turns" per week-to considerably less than capacity; e g., each 8 turns per
week-depending upon repair or replacement requirements and production needs.
As noted, the electric furnaces were shut down on February 11, 1964,25 at 11 p.m.
For the week in question, that ending February 16 (the schedule for which had been
posted in or about February 6), four truckdrivers-Hudnall, Papa, Vargo, and Hall-
were scheduled to put in full time (less their days off) in servicing the electric fur-
naces. The change in J & L's plans, of which Respondent was given no more than 2
days' notice, called for an immediate change of the posted work schedule. Changes
were effected, at least temporarily without cutting down work available to its trm-K-
drivers in view of the fact that, fortuitously and without prior notice, Respondent
was asked to haul "minus 3/s-inch" steel, a task which, apparently, temporarily took
up at least part of the slack. The latter job lasted until February 29.
It is Respondent's position, as brought out by the testimony of Stein, Junior, that,
by the end of the 2-week period beginning on or about February 13, it had lost work
which would have occupied four truck shifts per day-the equivalent of full-time work
for four truckdrivers; that it was not then anticipated, either by J & L or by Respond-
ent, when, if at all, the operation of the electric furnaces would be resumed; and that
the hauling of minus 3/sanch steel only temporarily obviated the necessity of deciding
whether to meet the situation by cutting workweeks or cutting the work force. On
or about March 1-Stein, Junior, further testified-he and his father arrived at a deci-
sion to lay off two truckdrivers
The first to be laid off in effectuation of this alleged decision was a truckdriver
named Misenko, on the work schedule for the week ending March 15, posted on or
about March 5, he was listed as on will-call status, his last day of work was March 8,
and he was not listed as an employee on any subsequent work schedule. In view of
the peculiar facts surrounding Misenko, and in view of the lack of controversy as to
his termination, it seems appropriate here to reassess the basic issue between the par-
ties, insofar as it is affected by Misenko's layoff. Misenko's "regular" occupation
was that of a machinist, employed at the Cleveland ore docks. Because of his lack
of seniority in such employment, work at the docks was available to him only from
approximately April 15 to November 30 of each year; during the winter months he
had to seek employment elsewhere. Since the winter months were the busiest for
Respondent and since Misenko was able to perform truckdrivers' duties, Respondent
had been able to use him some or all of these 3 plus months per year.26 At any rate,
24 In passing, it should be noted that the position of the General Counsel is unclear on
this issue The complaint does not allege it-i e , a period of undue criticism-as an
unfair labor practice ; on the other hand, counsel for the General Counsel introduced the
testimony, presumably as ielevant to show motivation In the General Counsel's brief,
the testimony on the subject is merely recited, with no attempt to persuade me of its
truth.
s The finding of this as the date is based on the credited testimony of an assistant
superintendent of J & L as well as that of Stein, Junior. The General Counsel, in
effect, questioned as accuracy of Stein on this point, bringing out that in a prehearing
statement, he had placed the event as having occurred on or about March 1. Stein's
explanation-which I accept-was that this recollection when he gave the statement was
faulty, pointing out that records-which he had since examined-were not available at
the time and place of the giving of the statement. The General Counsel offered no
affirmative testimony on the point.
20 According to records introduced into evidence, he was hired by Respondent for the
latest winter season on or about January 6, 1964 The record here does not reveal how
many winter seasons he had worked for Respondent, but it was quite apparent, from
related testimony, that the 1964-65 season was not the first
1204 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
it was known, on March 1, 1964, that he would be leaving Respondent in a matter of
30 to 45 days. His layoff, then, amounted to an advancement of the date of his
departure. The General Counsel does not contend, and, on this record, I have no
reason to believe, that, had Misenko been permitted to work until he voluntarily left
for the docks, he would have been replaced by a new man; a fortiori, in view of a
falloff of available work prior to his normal date of leaving (discussed in detail
infra ), I have no reason to believe that the acceleration of his leaving resulted from
anything other than such falloff. The question remains-and thus the basic issue is
more narrowly redefined-would anyone else have been laid of} at or about this time
for reasons connected with a decline of available work?
As indicated , Respondent gives an affirmative answer to this question . Stein,
Junior, testified with respect to the factors management took into consideration in
deciding whether to cut hours or to make layoffs. In effect, he explained that, in an
operation in which, as here, the amount of available work fluctuates up and down,
any decline of work calls for a choice to be made either in the direction of spreading
work by cutting hours to maintain a stable work force or in the direction of cutting
the force in order to keep the remaining employees happy by giving them the oppor-
tunity to have adequate earnings . In the instant case, he said , the latter choice was
made.
I would not, if I could, "second -guess" management with respect to the administra-
tive correctness of such a decision or the business validity of the criteria used in its
adoption . But it is my duty to examine all the facts to the extent they may cast light
upon the truth or falsity of the reasons assigned for the action taken.
Introduced into evidence-by one party or another-were Respondent 's records
of truckdrivers employed and truckdriver hours of work for which drivers were paid.
I here reproduce, as of March 1, 1964-the date the layoff decision was allegedly
made-the picture painted by the figures for the past 5 months. (One factor, the
average hours of pay received by each driver, is the result of my calculations.) 27
Week ending Truckdrivers Pd hours of Av pd hrs
- -
employed work per driver
- -- - - - - - - - - - - - - - - - - - - - -
Oct 6 , 1963---------------------------------------------
- -
9 314 34 9
Oct 13-------------------------------------------------- 9 316% 35 1
Oct 20-------------------------------------------------- 9 312% 34 7
Oct 2Z_________________------------------ ------------ -------------------- 9 296 32 9
Nov 3 ----- ------------------------------ 9
314 34 9
Nov 10----------------------------------------------- 9 314 34 9
Nov 17-------------------------- ------- 9 299 33 2
Nov 24-------------------------------- ------- 9 295 32 8
Dec 1--------------------------------- ------- 9 312 34 7
Dec 8------------------------------------------------- 9 325% 36 1
Dec 15------------------------------------------------- 9 317 35 2
Dec 22------------------------------------------------- 9 289% 32 1
Dec 29----------------- ------ -------
*9 277 #34 6
Jan 5 , 1964--------------------------------------------- **9 499i #62 5
Jan 12-------------------------------------------------- **10 544 #60 4
-Jan 19---------------------------- ----- **10 530% #58 9
Jan 26------------------------------------------------- 11 725%
66
Feb 2---------------------------- ------ 11 457%
41 5
Feb 9--------------------------------- ------ 11 557%
50 6
Feb 16--------------------------- ------ 11 517%
47
Feb 23------------------------------------------------ 11
464% 42 2
Mar 1------------------------------------------------- 11 528% 48
*Includes one driver on will-call status
**Includes one driver on sick leave.
#For those drivers on active duty
n This chart differs from those appearing in the General Counsel ' s and in Respond-
ent's briefs purporting to cover some or all of the same periods The variance appears
to be due to their efforts, by a process of deduction , to reduce the hours for which pay
was given to the actual hours worked ; I e , making allowance for the payment of overtime
pay. (Significantly , their deductions do not always result in identical figures ) In
this Decision , I use the figures as they appear in records received in evidence-the num-
ber of paid hours of work. At any rate , in passing upon the validity of a test suggested
by Respondent-the "happiness " of the drivers as a product of their earnings -I regard
.the hours for which pay was received as more significant than those which were worked.
HERB STEIN, INC. 1205
Certainly, if these figures demonstrate nothing else, they show that, if Respondent
indeed decided, as of March 1, that it would make layoffs instead of cutting weeks, it
was departing from its past thinking as to what constituted a "happy" employee. Over
long periods of time, it had maintained work forces whose truckdrivers averaged
less than 35 paid hours of work per week. I find Respondent's decision of March 1,
if there was one, to have been a reversal of past company policy, despite Stein
Junior's denial that there was any such reversal 28
Not that this is dispositive of the issue. For the general impression created is that
Stein, Junior, was specifically assigned to the J & L job as a "new broom"-to seek out
and eliminate any problems. Conceivably, a reversal of a past policy-as to work
week cuts versus work force cuts-might be in line with changes instituted by him
But, in the first place, no such claim is made by Respondent. And, in the second place,
on Stein, Junior's own testimony, Stein, Senior, seems to have played a major part in
this decision, at least.29 So we have here a distinct departure from the established
normal.
But let us assume, without finding, that the decision of March 1 was a tentative
one-that it was couched in terms of action to be taken only if necessuly, 30 and let
us take into consideration my prior finding that there was nothing untoward in the
layoff of Misenko. We now examine Respondent's work experience between March 1
and 26, the date of the effectuation of a second layoff:
Week ending Truckdnvers
employed
I'd hours
of dock
Av pd lirs
per driver
Mar 8, 1964------------------------------------------- ii 510
46 4
Mar 15---------------------------------------------- *11
419 #41 9
Mar `'2------------------------------------------ 10 440%
44
Mar 29----------------------------------------------- **to 457Y2 #50 8
*Includes Misenko on will-call status
-Includes Ralofsky on will-call status
#For those drivers on active duty
Thus, the paid hours of work per man still were well in excess of 40 per week, indeed,
for the week ending March 29, had Ralofsky not been placed on will-call status, the
10 drivers would each have been paid for 45.7 hours. Moreover, during the 3 weeks
ending in Ralofsky's layoff on May 26 the average paid hours of work available for
each driver successively increased.
28 Although he issued this denial in the course of his testimony, he also gave testimony
tending to show he was unaware of the past practices of Respondent Pointing out that
his experience on the J & L job had covered only the immediately past 2 months, lie dis-
claimed knowledge, as of the time the decision was made, of the record of operations of
electric furnaces during 1963 and of past practices of Respondent when the furnaces
were shut down, and he said there was no discussion of past practices in arriving at the-
decision. In view of the fact that the decision was supposed to have been made jointly
by him and his father, whose presence at this job long predated his, my ciedulity is
strained by this phase of Stein, Junior's testimony.
29 In at least three aspects-noted hereinbelow-the father overruled the son
30 In response to my query, Respondent's counsel did state that the placement of-
Ralofsky on will-call during the week beginning -larch 23 constituted a tentative deter-
mination to lay him off but also kept the door a little bit ajar in case work did increase
1206 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Finally to complete the picture-although , obviously, hindsight has less probative
value-I set down comparable figures for a period following Ralofsky 's layoff.
Week ending
Truckdnvers
eniplo} ed
1'd hours
of work
Av pd lire
per driver
Av pd nrs
if Ralofskv
not laid oil
Apr 5, 1964 ---------------------------- 9 463 51 6 46 3
A pr 12--- ------------------ 9 437 48 6 43 7
A pr 19--------------------------------- 9 395% 43 9 39 5
A pr 26--------------------------------- 9 449 49 9 44 9
May 3--------------------------------- 9 513% 57 51 3
May 10-------------------------------- 9 545% 60 6 54 5
May 17-------------------------------- 9 5273 58 6 52 7
May 24------------------------------- 9 436 48 4 43 6
Ma} 31------------------------------- 9 420 46 7 42
June 7 --------------------------------- 9 469% 52 1 46 9
June 14------------------------------- 9 420 46 7 42
Duly discounting the 3 "high" weeks in May, during which , Respondent explains, it
was performing a nonrecurring excavating job for J & L, the picture remains
unchanged in terms of past company experience, the available work did not dictate
or justify the layoff of the 10th man.
Thus far, our concentration has been focused upon Respondent's work record as
it bears upon the happiness of its truckdrivers, measured in terms of available work.
But we cannot ignore-and Respondent does not claim to ignore-its continuing
need for a stable work force capable of meeting tasks assigned to Respondent.
Respondent 's work, entirely dependent upon the demands of J & L, fluctuated widely
on short notice ; unexpected overtime , including Saturday or Sunday work, was an
everpresent possibility . This serves to explain why , prior to the layoff of Ralofsky,
Respondent sought to maintain a constant work force , even though this meant, at
times, a minimum of work for the truckdrivers ( as low as 32.1 paid hours per week
per man ), and, over a period of time, a wide variation in the length of available
workweeks (from 32.1 to 66 paid hours per man ), and it serves to explain why, in the
past, Respondent had resorted to scheduling 4-day or shorter weeks and, occasionally,
will-call weeks rather than laying off men Considering its past experience and mak-
ing due allowance for the fact that Respondent might adjust for "peak" loads by
increasing the hours assigned to each driver ( with resultant premium pay ), it seems to
me, and I find, that during the period following the layoff of Misenko, for the amount
of work available and reasonably to be anticipated , Respondent ( absent other motiva-
tions ) considered 10 truckdrivers to be the proper work force.
Indeed, Respondent itself conceded that, even applying the test of "happiness"
which it was urging, there was a point at which truckdrivers would have too much
work for their own happiness-if they worked too long hours for too long a period,
it would become advisable to add new men to spread the workload , for the health
of the men and for all-around efficiency , if for nothing else. It was on this basis,
assignedly , that five new truckdrivers (not including Ralofsky ) were hired, beginning
on or about June 20, 1964. ( Of the five, three or four were still employed at the
time of this hearing. ) Respondent, through Stein , denies that the addition of the
new men constituted a reversal of company policy as manifested in Misenko's and
Ralofsky's layoffs ; rather, it is urged, the expansion was dictated by increased work
requirements However, the latter contention lies unsupported by any probative
evidence in this record.31
I have indicated , at several places , that I do not regard various items of evidence
in this record as supporting the proposition that Respondent , on or about March 1,
1964 , or during any time between that date and March 26, regarded its economic
position as one which called for the layoff of any truckdriver other than Misenko. On
the contrary , on the basis of the above -described evidence taken as a whole, I find that
Respondent was not motivated by economic circumstances in effectuating a second
layoff; I find that the reason assigned, under all the circumstances , lacks plausibility
and is, in fact , pretextual.
(3) I have found that Respondent , in cutting its work force by more than one
truckdriver , was not motivated by economic considerations . But assuming , without
'i Company records similar to those above referred to, for experience postdating June 14,
1964 , were not offered in evidence
HERB STEIN, INC. 1207
deciding, that it was so motivated, would Ralofsky have been one of the two selected
for layoff? Respondent answers the question in the affirmative, General Counsel in
the negative.
Stein, Junior, testified that, if he had had his way, Ralofsky would have been the
fist man laid off, however, he said, he was overruled by his father. In view of the
fact that Ralofsky was a permanent full-time employee while Misenko was a tempo-
rary full-time employee, he noted that laying off the former before the latter "would
not be quite fair." At any rate, as above noted, Misenko was laid off first.
Stein, Junior's second preference was to lay off Ralofsky at the same time as
Misenko. Here again, he was overruled, Stein, Senioi, more experienced, said, "Hang
on to one [man] because if things do change around and the mill changes pioduction,
you don't want to chance losing someone or having to worry about calling someone
back."
Finally, under the circumstances detailed supia, Ralofsky was laid off. First-and
this was Stein Senior's decision-he was put on a will-call status after March 20 and
his layoff was effectuated on March 26.
Seniority played no part in Ralofsky's selection. (Among the drivers employed
when he was laid off, Hopkins had been hired within days after Ralofsky was, and
Hudnall had been made a truckdriver in January 1964.) Consideration of seniority
in making layoffs were not required by the contract, and-as far as Stein, Junior,
knew-it had not been an element influencing Respondent's personnel actions in the
past. He conceded, however, that, "in his personal opinion," it would be the dia-
positive factor if all other things were equal.
Respondent contends that Ralofsky was selected for layoff (and at the same time
designated not suitable for rehire) because of his work record. In Stein, Junior's
words he "was the least desirable of the drivers that we had from the standpoint of
having to check on him. His ability to do [the job] and such"; and much of Stein's
testimony was devoted to annotating the basis for this evaluation.
Stein set the stage for the "undesirability" testimony by a reminder that when he
took over at the J & L site on January 1, 1964, Respondent was having problems there,
it was his job, among other things, to solve these problems.
(a) As early as January 7, he ran into Ralofsky in J & L's so-called Basic Oxygen
Furnace building, at the canteen on an upper floor, in violation of Respondent's rule
against a truckdriver's being more than 50 feet from his truck while on duty.
Although Stein reprimanded him, Ralofsky repeated the offense next day. Accord-
ingly, as of Monday, the 13th, Stein transferred Ralofsky and Robert Angersola,
another driver, to duties based at J & L's new plant, which was nearer to Respondent's
crushing operation and, presumably, at which their work could be watched more
closely.
(b) For 6 or 7 weeks beginning on January 13, Ralofsky, at his own request, was
the principal driver of Respondent's Euclid (truck) No. 29. On the 16th he reported
that its clutch was slipping, and an adjustment was made the following day. A similar
report and adjustment were made in the first week of February. On February 9, a
new clutch was installed in No. 29, a routine adjustment being made 1 week later.
During this period, on more than one occasion, Stein, Junior, reminded Ralofsky that
he would have no trouble with the clutch if he did not "ride" it; he did this, he
"assumed," when Ralofsky would report clutch trouble, and he also did this, he said,
when he smelled a burning clutch.
(c) There were occasions when, on an emergency basis, J & L would voice an
immediate need for one or two trucks to help clean out the pit at the Basic Oxygen
Furnace; on such occasions, Respondent would temporarily pull the required number
of trucks off their regular duties elsewhere. Late in January or early in February,
when such a call came, Respondent sent Ralofsky and Angersola with their trucks.
As Ralofsky came to the crushing plant with a load from the Basic Oxygen Furnace,
Stein, Junior, noted that Angersola was also approaching with a partial load, a signal
to Stein that the emergency job was completed He called this to the attention of
Ralofsky, who said he was not keeping track of Angersola and did not "give a damn"
what Angersola was hauling. When Stein pointed out that he was merely trying to
ascertain when the emergency job would be completed without having to go to the
Basic Oxygen Furnace himself and that Ralofsky, in addition to driving a truck, was
expected to know what the job was all about, Ralofsky snapped, "Hell, if you want to
find out, get in the truck and find out yourself." At this, Stein, Junior-with admirable
self-restraint, I find-told Ralofsky that if this happened again, if he ever "dressed me
[Stein] down" again, he would be "through."
(d) Prior to February 5, drivers, in all instances, kept trip reports noting departure
and arrival times. On February 4, several drivers having questioned the necessity
for this, Stein, Junior, changed the rule: thereafter, with respect to trips between the
New Plant and the ore docks, it would be unnecessary to note the times. Thereafter,
1208 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
because it appeared to him that trips took longer than necessary, he himself kept track
of his watch.32 There were occasions on which he warned drivers, including Ralof-
sky, that if the "long" trips persisted, Respondent would reinstitute its requirement of
maintaining written records.
(e) In 1963-before Stein, Junior, took over-Ralofsky was involved in an acci-
dent in which his truck struck a truck stopped in front of him. Stein did not know
whether Ralofsky was disciplined at the time.
(f) (At this point in his testimony, Stein, Junior, said that Respondent had had
no difficulties with Ralofsky other than what has been detailed above. Thereupon,
in response to leading questions permitted for the purpose of refreshing his recollec-
tion, he commented on Ralofsky's failure to cooperate ) Ralofsky, as distinguished
from some of the other drivers, was not an "early bird." (In fact, on his first day at
the new plant-January 13-he had reported 41 minutes late without having called
in ) One day in January or early February, when he complained to Stein, Jumoi,
about his lack of overtime, Stein pointed out that that very morning, Angersola-l 1/4
hours early in reporting-had been sent onto an emergency (overtime) job lie
pointed out that the early bird gets the worm, to which Ralofsky replied, "I'm not
fishing."
(g) Summarizing, Stein, Junior, testified that he had most of his "trouble" with
Ralofsky in January or early February; there was "nothing out of the ordinary" in
March-he would not say he reprimanded Ralofsky in March although he did point
out mistakes to other drivers as well as to Ralofsky.
Stein, Junior's testimony, purporting to furnish a bill of particulars as to Ralofsky's
work-performance, must be examined in the light of all the evidence in the record.
Thus, with respect to Ralofsky's visits to the Basic Oxygen Furnace canteen, I find
that other drivers left their trucks to get coffee at the canteen-and that Stein, Junior,
was aware of this fact; indeed, at the request of J & L foremen, under whom they
worked when at the Basic Oxygen Furnace, Respondent's drivers often went to the
canteen to get coffee for the foremen. Also, the' "clutch" problem appears to be
blown up out of all proportion the nature of the job lent itself to the deterioration of
clutches, particularly where, as on Ralofsky's job, gears were shifted frequently. As
for the reference to Ralofsky's accident in 1963, I find that seven other drivers, not
laid off, had at least 10 accidents between them, 33 moreover, in view of Stein, Junior's
incredible failure to recollect even approximately when he checked Ralofsky's acci-
dent record-remember, he himself was not on the job in 1963-I find that the check
was made after the layoff.
Indeed, the impression one draws from the testimony in this area is that there is a
desperate grasping at straws in an attempt to rationalize the selection of Ralofsky for
layoff.34 Whereas one or two items might have some validity, e g , Ralofsky's talking
back to Stein, Junior, in late January or early February-additional ingredients were
inexorably spooned into this broth until, by their very number, the taste of the whole
was spoiled. We find a valuable clue, I believe, in Stein, Senior's reply to Ralofsky's
request for an explanation when he was told his employment was being terminated-
"Don't you know when a brick wall falls on you?" If there were so many valid
reasons, what reason was there to withhold them?
In summary, I find that the reasons assigned for the selection of Ralofsky for layoff
generally lack validity or were unknown to Respondent at the time of the selection;
in short, that they were not the reasons for his selection; and that, absent some other
motivation, Ralofsky would not have been selected for layoff even though one were
dictated at or about the time of his layoff.
33 His estimate of the necessary time-27 minutes. Note Ralofsky's estimate-supra-
of 15 to 20 minutes.
331 must discount Respondent's observation, made in its brief, that Ralofsky's was the
only accident involving moving a truck forward into a stationary object, in view of the
fact that I regard moving a truck backward into a stationary object (this was done by
Hudnall and Hopkins, both junior to Ralofsky) as no less blameworthy. Finally, in
weighing the effect of past accidents, I note that one of the truckdrivers-not Ralofsky-
had been deprived of a week's work as a result of one of his accidents, whereas there has
been no showing that Ralofsky was disciplined at the time of his accident
34 For example, a witness was called by Respondent to testify that Ralofsky, among
other truckdrivers but to a greater degree than the others, balked at following instruc-
tions in connection with one phase of the job. This testimony lost all probative value
when it developed that the balkiness-whether his or that of the other drivers-was not
reported to management Yet, the testimony was introduced with a view, I assume, to
persuade me that Ralofsky was selected for layoff because of his poor work performance
HERB STEIN, INC. 1209
(4) The fact, as found by me, that Respondent was not motivated, either in
effectuating a layoff (other than Misenko's) or in selecting Ralofsky as the person so
to be laid off, by the reasons which it assigns for the actions, is not of course, disposi-
tive of this matter. As Respondent quite properly points out, the General Counsel
has the burden of proving that Respondent's conduct was discriminatorily motivated,
within the meaning of the Act.
For some time, as I have pointed out earlier, Respondent's truckdrivers, had been
"represented" by Local 436 to limited degree. Although they were all members of
Local 436, that organization dealt with Respondent on their behalf only by sufferance,
and the extent of these dealings were severely circumscribed. There was no con-
tractual relationship between Respondent and Local 436; Respondent would not meet
with Local 436 representatives except in the presence of representatives of the
formally recognized bargaining agent, another labor organization, and Respondent
felt no obligation-indeed, it was under no obligation-to alter working conditions of
drivers in accordance with Local 436's "requests " For example, in 1963 and perhaps
as early as 1962, the health, welfare, and pension plan of Local 436's International
had been discussed with Respondent, with a view toward adopting it as applicable to
its truckdrivers, but, although Stein, Senior, Respondent's representative in the discus-
sions, expressed surprise that its benefits were so "great" and said he would consider
the matter, he never did adopt the plan as a working condition of Respondent's drivers.
For the term of the 1962-64 collective-bargaining agreement between Respondent
and Local 18, the problem lay dormant; for example, the mid-1963 meeting of
Respondent's truckdrivers, at which they discussed "getting under" the health, wel-
fare, and pension plan, brought no action at that time.
The collective-bargaining agreement was scheduled to expire on July 31, 1964. In
January 1964, Respondent's truckdrivers, and Local 436, made their move As
related above, following a meeting of the drivers, a campaign to install Local 436 as
their bargaining agent was launched, and, thereafter, signatures on authorization
cards were solicited.
I find-as urged by Respondent-that Ralofsky's part in this campaign was a
limited one. The available evidence indicates that he was not the most active among
the truckdrivers. But, on the evidence, we do know, and I find, this: he was asked,
and he agreed, to solicit the signature of James Hudnall on an authorization card; he
did so; and Hudnall not only refused to sign or to consider signing, but reported the
incident to management.
On the testimony of Stein, Junior, Respondent became aware of the campaign in
the early part of February. There is, however, no evidence that it was aware of the
part being played by any individual in the campaign except for the solicitation of
Hudnall by Ralofsky. Stein, Junior's reaction is clearly displayed in his February 27
conversation with Ralofsky, related supra.
The parties have devoted extended argument with respect to the existence or
absence of union animus on the part of Respondent. The argument loses meaning if
made in the context of the run-of-the-mill situation in which a union seeks to organize
the employees of an unorganized installation. Here, obviously, Respondent had no
animus in the usual sense of the word, for some time, it had dealt with a union and,
as far as this record reveals, it had no quarrel with that union Nor do I find signifi-
cant Respondent's refusal, some years earlier, to deal with two unions-nor, indeed,
its specific refusal then to deal with Local 436; the reasons, on their face, were good
and sufficient, and besides, this is ancient history.
On the other hand, a particular kind of animus was displayed by Stein, Junior's
remarks to Ralofsky on February 27. Having been told by Hudnall that Ralofsky
had solicited his signature on a Local 436 authorization card the previous day, he
coercively questioned Ralofsky about the incident and, ascertaining that it had
occurred, informed Ralofsky that he had no right to talk to anyone about joining
unions. The clear meaning was that Respondent, as represented by him, was satisfied
with the status quo and wanted no change.35 Although Respondent may have had
35Respondent points to two factors as negating the existence of any animus-the
absence of a rule against the circulation of union cards and the fact that, on at least
two occasions, company officials had demonstrated that they believed that Local 430's
health, welfare, and pension plan was of benefit to employees Respondent's reliance on
these two factors is misplaced The absence of a rule against circulating union cards
is of little significance (1) where, in view of an established bargaining relationship, there
would normally be no circulation of cards and, therefore, no reason for a rule, and (2)
where, the first occasion on which management had specific knowledge of the circulation
of a card, it issued an instruction to the individual involved that he not solicit for
union membership As for the health, welfare, and pension plan, to extol it is not to be
equated with being willing to help finance it.
1210 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
no animus against unions generally, nor objected to the fact that its drivers were
members of Local 436, I am satisfied that it resented their collective goal of achieving
separate representation by Local 436 and benefits such as that organization's health,
welfare, and pension plan.31
Now, Stein, Senior's remark ("Don't you know when a brick wall falls on you?")
takes on new meaning. The cryptic vehemence of the remark is explained, not by the
existence of valid reasons which Stein was unwilling to specify, but by the existence
of an unlawful reason which Stein, as a rational man, was unable openly to reveal.
Upon the entire record, and on what I am convinced is a fair preponderance of the
credible evidence (giving full consideration to the implausibility of the reasons for
action assigned by Respondent; Local 436's campaign, Ralofsky's part in it, and
Respondent's awareness thereof; Respondent's animus: and the timing of the relevant
events), I conclude and find that Respondent laid off Ralofsky (and thereafter failed
and refused to call him back) because of his activities on behalf of Local 436, thereby
discouraging membership in a union and interfering with, restraining, and coercing
employees in the exercise of their self-organizational rights, in violation of Section
8(a)(3) and (1) of the Act.
IV THE REMEDY
Having found that Respondent has engaged in certain unfair labor practices, I shall
recommend that it be ordered to cease and desist therefrom and to take certain
affirmative action in order to effectuate the policies of the Act.
Having found that Respondent discriminated with respect to the hire and tenure of
employment of Frank Ralofsky, I shall recommend appropriate action. I shall
recommend that Respondent offer him full and immediate reinstatement to his former
or substantially equivalent position, without prejudice to his seniority or other rights
and privileges, and make him whole for any loss of earnings suffered by him because
of the discrimination, by payment to him of a sum of money equal to the amount he
would have earned from the date of his discharge to the date of Respondent's offer of
reinstatement, less his net earnings during said period. Backpay shall be computed
on a quarterly basis in the manner prescribed by the Board in F W. Woo4worth
Company, 90 NLRB 289, with interest at the rate of 6 percent per annum computed
quarterly.
As the unfair labor practices committed by Respondent are of a character striking
at the roots of employee rights safeguarded by the Act, it will also be recommended
that Respondent cease and desist from infringing in any manner upon the rights
guaranteed in Section 7 of the Act.
Upon the foregoing factual findings, and upon the entire record in the case, I come
to the following:
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. Local 436 is a labor organization within the meaning of Section 2(5) of the Act.
3. By discriminating in regard to the hire and tenure of Frank Ralofsky his employ-
ment on March 26, 1964, and failing and refusing to reinstate him thereafter, because
of his interest in and activities on behalf of a union, Respondent has engaged in and
is engaging in unfair labor practices within the meaning of Section 8(a)(1) and (3)
of the Act.
4. By the foregoing conduct and by interrogating employees as to their union
activities, Respondent has interfered with, restrained, and coerced employees in the
exercise of rights guaranteed them in Section 7 of the Act, in violation of Section
8(a)(1) thereof.
5. The aforesaid unfair labor practices are unfair labor practices within the mean-
ing of Section 2(6) and (7) of the Act.
6. Except for the above, Respondent has not engaged in unfair labor practices as
alleged in the complaint herein.
RECOMMENDED ORDER
Upon the basis of the foregoing findines of fact and conclusions of law and the
entire record in the case, and pursuant to Section 10(c) of the National Labor Rela-
tions Act, as amended, I hereby recommend that the Respondent, Herb Stein, Inc , of
Cleveland, Ohio, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in any labor organization by discriminating in
regard to hire, tenure, or other conditions of employment.
11 See Cletus H. Patterson & Sons, Inc, 149 NLRB 59.
HERB STEIN, INC. 1211
(b) Interrogating employees as to their activities on behalf of a union.
(c) In any other manner interfering with, restraining, or coercing its employees
in the exercise of their right to self-organization, to form labor organizations, to
join or assist any labor organization, to bargain collectively through representatives
of their own choosing, to engage in concerted activities for the purpose of collec-
tive bargaining or other mutual aid or protection, and to refrain from any and all
such activities except to the extent that any such right may be affected by an agree-
ment requiring membership in a labor organization as a condition of employment,
as authorized in Section 8(a) (3) of the Act.
2. Take the following affirmative action which I find will effectuate the policies of
the Act:
(a) Offer Frank Ralofsky reinstatement to his former position even though this
may necessitate displacement of a present incumbent (or, if his former position no
longer exists, to a substantially equivalent position), without prejudice to his seniority
or other rights and privileges.
(b) Make Frank Ralofsky whole for any loss of earnings suffered by reason of
the discrimination against him in the manner set forth in the section above entitled
"The Remedy."
(c) Notify the above-named employee if presently serving in the Armed Forces
of the United States of his right to full reinstatement upon application in accordance
with the Selective Service Act and the Universal Military Training and Service Act
of 1948, as amended, after discharge from the Armed Forces.
(d) Preserve and, upon request, make available to the Board or its agents, for
examination and copying, all payroll records, social security payment records, time-
cards, personnel records and reports, and all other records necessary to analyze the
amount of backpay due and the right of reinstatement.
(e) Post at its place of business at Cleveland, Ohio, copies of the attached notice
marked "Appendix." 37 Copies of such notice, to be furnished by the Regional
Director for Region 8, shall, after being duly signed by an authorized representa-
tive of Respondent, be posted immediately upon receipt thereof, and be maintained
by if 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 such notices are not altered, defaced,
or covered by any other material.
(f) Notify the Regional Director for Region 8, in writing, within 20 days from
the date of the receipt of this Decision, what steps the Respondent has taken to
comply herewith.38
It is further recommended that the complaint be dismissed insofar as it alleges
violations of the Act by Respondent not heretofore remedied in this Recommended
Order.
17 If this Recommended Order Is adopted by the Board, the words "a Decision and
Order" shall be substituted for the words "the Recommended Order of a Trial Examines"
in the notice. If the Board's Order is enforced by a decree of a United States Court
of Appeals, the notice will be further amended by the substitution of the words "a
Decree of the United States Court of Appeals, Enforcing an Order" for the words "a
Decision and Order "
as If this Recommended Order Is adopted by the Board, this provision shall be modified
to read: "Notify the Regional Director for Region 8, in writing, within 10 days from
the date of this Order, what steps the Respondent has taken to comply herei%ith "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, we notify our employees that:
WE WILL NOT discourage membership in Excavating Building Material Con-
struction Drivers' and Race Track Employees' Local Union No 436. or any
other labor organization, by discrimination as to the hire, tenure, or any other
term or condition of employment of any of our employees.
WE WILL NOT ask employees about their union activities.
WE WILL NOT in any other manner interfere with, restrain, or coerce our
employees in the exercise of their right to organize, to bargain collectively
through a bargaining agent chosen by themselves, to engage in other concerted'
1212 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
activities for the purpose of collective bargaining or other mutual aid or pro-
tection, or to refrain from any or all such activities (except to the extent that
the right to refrain is limited to the lawful enforcement of a lawful union-
security requirement).
WE WILL offer Frank Ralofsky his former or substantially equivalent job
(without prejudice to seniority or other employment rights and privileges), and
WE WILL pay him for any loss suffered because of our discrimination against
him.
All our employees are free to become or remain members of any labor
organization.
HERB STEIN, INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
NOTE.-We will notify the above-named employee if serving in the Armed Forces
of the United States of his right to full reinstatement upon application in accord-
ance with the Selective Service Act, and the Universal Military Training and Service
Act of 1948, as amended, after discharge from the Armed Forces.
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.
Employees may communicate directly with the Board's Regional Office, 720 Bulk-
ley Building, 1501 Euclid Avenue, Cleveland, Ohio, Telephone No. Main 1-4465,
if they have any questions concerning this notice or compliance with its provisions.
Pharmaseal Laboratories , Inc. and United Metaltronics , Ceramics,
Technicians and Helpers , International Union of United Brick
& Clay Workers of America , AFL-CIO . Cases Nos. 21-CA-5728
and 21-CA-5851. June 7,1965
DECISION AND ORDER
On January 4, 1965, Trial Examiner James R. Webster issued his
Decision in the above-entitled case, finding that the Respondent had
engaged in and was engaging in certain unfair labor practices viola-
tive of Section 8 (a) (1) of the Act, and recommending that it cease and
desist therefrom and take certain affirmative action, as set forth in the
attached Trial Examiner's Decision. With respect to certain other
unfair labor practice allegations, he recommended that they be dis-
missed. Respondent filed exceptions to the Decision and a supporting
brief.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the Board has delegated its powers in con-
nection with this case to a three-member panel [Chairman McCulloch
and Members Brown and Jenkins].
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
152 NLRB No. 124.