Hickman, Williams & Co.

National Labor Relations Board - Board Decisions

Jan 24, 1979

240 N.L.R.B. 81 (N.L.R.B. 1979)

HICKMAN, WILLIAMS COMPANY 81
Hickman, Williams & Company, Detroit Processing
Division and Local 247, International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and
Helpers of America and Thomas S. Toth. Cases 7-
CA-14012, 7-RC-14161, and 7-CA-14004
January 24, 1979
DECISION, ORDER, AND DIRECTION
BY CHAIRMAN FANNING AND MEMBERS JENKINS
AND MURPHY
On October 23, 1978, Administrative Law Judge
Thomas A. Ricci issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief, the Charging Party filed an
answering brief.
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 at-
tached 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 Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the Respondent, Hickman, Williams &
Company, Detroit Processing Division, River Rouge,
Michigan, its officers, agents, successors, and assigns,
shall take the action set forth in the said recom-
mended Order, except that the attached notice is sub-
stituted for that of the Administrative Law Judge.
DIRECTION
It is hereby directed that, as part of the investiga-
tion to ascertain a representative for the purposes of
collective bargaining with the Employer, the Region-
al Director for Region 7, pursuant to the Board's
Respondent has made, inter alia, a general exception to the adverse
credibility findings of the Administrative Law Judge. This exception is ap-
parently based on the fact that the Administrative Law Judge who wrote the
Decision did not preside at the hearing. We find this exception to be totally
without merit. The few credibility findings made by the Administrative Law
Judge are grounded upon consistency with testimony and records of Re-
spondent's witnesses and are fully supported by the record, We find no
basis, nor has Respondent put forth any specific basis, for reversing his
findings.
240 NLRB No. 7
Rules and Regulations, Series 8, as amended, within
10 days from the date of this Decision, Order, and
Direction, shall open and count the ballot of Timo-
thy Starr and thereafter prepare and cause to be
served on the parties a revised tally of ballots, includ-
ing therein the count of said ballot, upon the basis of
which the Regional Director shall issue the appropri-
ate certification.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discourage membership in Local
247, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of
America, or in any other labor organization of
our employees by discharging any of our em-
ployees because of their membership in, support
of, or activities in favor of the above-named or
any other labor organization.
WE WILL NOT question our employees concern-
ing their union activities or sympathies.
WE WILL NOT invite direct dealings between
individual employees and ourselves as a method
of inducing our employees to abandon concert-
ed activities.
WE WILL NOT tell our employees that we will
refuse to bargain with any union majority repre-
sentative they might choose.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of the rights guaranteed them by Sec-
tion 7 of the Act.
WE WILL make whole Timothy Starr for any
loss of earnings he may have suffered as a result
of our discrimination against him, plus interest.
HICKMAN. WILLIAMS & COMPANY. DETROIT
PROCESSING DIVISION
DECISION
STATEMENT OF THE CASE
THOMAS A. Riccl. Administrative Law Judge: This Deci-
sion is an integral part of the consolidated stage of three
cases, one a representation proceeding and the others com-
plaint cases. In Case 7-RC-14161, Local 247, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, here called the Union, filed a
petition for an election among the production and mainte-
nance employees of Hickman, Williams & Company, De-
HICKMAN, WILLIAMS & COMPANY
82 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
troit Processing Division, here called the Employer and
Respondent. The results of the election were inconclusive
because of a challenged ballot. The Union also filed objec-
tions charging improper interference by the Employer such
as to affect the results adversely to the Union. Upon inves-
tigation the Regional Director ordered a hearing on the
objections. As will be explained below the hearing was also
concerned with the challenge involved.
In case 7 CA 14004 Thomas A. Toth, an individual,
filed a charge against Respondent on April 29, 1977, and
on May 5, 1977, in Case 7-CA 14012, the Union filed a
charge also. Again upon investigation, on June 9, 1977, the
Regional Director issued a complaint based upon both of
those charges. Accordingly, a hearing was held on Septem-
ber 26, 27, and 28 and on October 19 and 20, 1977, in
Detroit, Michigan.' The issues presented are whether Re-
spondent violated Section 8(a)( 3) in the discharge of one
employee and in the change of work assignment to anoth-
er, and whether agents of Respondent violated Section
8(a)(1). Briefs were filed, after the close of the hearing, by
the General Counsel, Respondent, and the Union.
Upon the entire record I make the following:
FINDINGS OF FACT
I THE BUSINESS OF THE RESPONDENT
Respondent does business in a number of States, one
location being Zug Island in River Rouge, Michigan,
where it is engaged in the business of trucking, sizing, and
nonretail sale of bituminous coke. This is the only one of
its installations involved in this proceeding. During the
year ending December 31, 1976, a representative period, at
this location it manufactured, sold, and distributed prod-
ucts valued in excess of $50,000 which were shipped direct-
ly to locations outside the State. I find that Respondent is
engaged in commerce within the meaning of the Act.
II THE LABOR ORGANIZATION INVO.VED
I find that Local 247, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of
America, is a labor organization within the meaning of
Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A Picture of the Case
Respondent's Zug Island location is run by Manager
Sheldon Allen, assisted by James Buchanan, a supervisor
under him. At the time of the events there were five rank-
and-file employees-Dennis Feichtinger, Robert Loftice,
Rickie Mills, Timothy Starr, and Thomas Toth. Late in
February 1977, some of these signed membership-authori-
The hearing was held before Anne S. Schlezinger, Administrative Law
Judge; she died before issuing a decision. On October 5, 1978, the Board's
Chief Administrative Law Judge ordered that I be substituted for Adminis-
trative I.aw Judge Schlezinger for purposes of issuing a Decision on the
existing record.
zation cards in favor of Teamsters Local 247, and on Feb-
ruary 28 the Union filed a petition for an NLRB election.
At a scheduled Labor Board hearing before a Hearing Of-
ficer, on March 22, 1977, the parties signed a stipulation
for consent election. They also signed that day a formal
stipulation as to voting eligibility in the anticipated election
and agreed thereby that each of the five employees named
above were eligible. The next day Respondent discharged
Starr, who had been present the day before on behalf of the
Union at the Labor Board hearing. On a number of occa-
sions between March 3, when the Company first learned of
the filing of the petition, on March 22, both Allen and
Buchanan interrogated the employees concerning their
union activities, and Allen voiced to them his opposition to
the idea of collective bargaining through the Union. On
March 26 Allen told another employee, Toth, that thereaf-
ter while doing his regular labtechnician work on Sundays,
he was to discontinue a side aspect of his work-something
called dispatching trucks and monitoring the operations of
the plant machinery.
The election took place on April 21, 1977. The results
were 2 for and 2 against the Union. Starr, the fifth man,
attempted to vote but Respondent challenged his ballot on
the ground he was no longer an employee. Thereafter the
Union filed both objections to conduct affecting the results
of the election and an unfair labor practice charge. Toth
also filed an unfair labor practice charge. After investigat-
ing the objections, the challenge and the two charges, the
Regional Director ordered a hearing on the objections and
the challenge and issued a complaint. He then consolidated
the cases for a single hearing on all questions.
The issues presented by all three aspects of the consoli-
dated cases are intimately related. The complaint alleges
that Manager Allen, speaking for Respondent, illegally in-
terrogated the employees, impressed upon them the futility
of continuing their union campaign or activities, and
threatened them with economic retaliation, all in violation
of Section 8(a)(1) of the Act. It also alleges that by dis-
charging Starr, and by changing the work assignment to
Toth, Respondent discriminated against each of them and
thereby violated Section 8(a)(3). These are essentially the
same charges leveled against the Company in the Union's
objections. As to the merits of the challenge to Starr's bal-
lot, it stands or falls depending upon whether the discharge
was lawful or not. In its answer Respondent denies that
Allen said anything to employees that violated the statute.
While admitting that Toth's work duties were altered and
that Starr was fired, Respondent denies any illegal motive.
It contends, affirmatively, the first man gave just cause for
the change, and the second was only a temporary employee
whose work just happened to finish on that exact day.
Clarifications
Throughout this unduly extended record of testimony
there runs repeated general discussion, by both employee
witnesses and the manager himself, about conditions of
employment and what kind of work goes on in this busi-
ness operation, now and long in the past. The rambling
comments of one witness after another-covering hun-
dreds of pages-includes a great deal of argument, general-
HICKMAN, WILLIAMS &r COMPANY 83
ity, unintelligible jargon about plant operations, and all
sorts of justifications for this old act or that. Indeed, it is
not possible, even after careful study of every word of the
record, to state precisely what kind of work the people do
here with their hands. But with respect to the questions
that have to be decided, some things are definitively shown
by the total record; out of the mass of wordage there do
emerge those facts that have a true relationship to the very
simple and clear issues.
1. There are no fixed, predictable hours of work sched-
uled. Rather, there is an unusual looseness in the privilege
of employees to work longer or shorter hours from day-to-
day. In part this is because of the nature of their responsi-
bilities-varying as the needs of the customers keep chang-
ing, and in part it is because consideration is given employ-
ees who sometimes are students elsewhere. In contrast to
the shifting oral testimony of the witnesses, there were
placed in evidence the weekly timecards of all five of the
rank-and-file employees covering a 22-week period-from
January 6 through June 2, 1977. Why other records were
not offered-although witnesses also talked of what hap-
pened a year and even 2 years before the events-I do not
know. But it does not matter. The plant operates 24 hours
a day and 7 days a week. Not one of the cards shows a man
having worked regular hours for 5 consecutive days. In
some instances a man did 8 hours a day, or 10 hours a day,
maybe 3, maybe 4 days, in a single week. But in the great-
est number of cases, daily, or weekly, hours worked, kept
constantly changing.
2. Again and again Toth was called a part-time employ-
ee; in fact he gave himself the same label. I do not under-
stand why this phrase was stressed so. At one point the
General Counsel contended on the record that the man
was deprived of about 2 hours of work every Sunday, start-
ing with the week of March 26. If the phrase "part time"
were used here in its ordinary English meaning, and if Toth
were in truth a part-timer-working, say, only 4 hours a
day while the rest were doing 8-deprivation of 2 hours of
work would be an understandable fact. The reality, in-
stead, is that Toth was never a part-timer, and that the use
of that phrase-against the objective facts in evidence-
was pure fiction. I do not know how many hours a day, or
week, he worked before January 1977, or has worked since
June-he is still employed-but I do know that during the
22 weeks covered by the evidentiary timecards, he aver-
aged over 40 hours per week. He was in no sense a part-
time employee.
3. Starr was called a "temporary" employee throughout
the record. He too agreed to this label. Like the case of the
so-called "part-timer" Toth, I do not comprehend how this
adjective, too, could conceivably be attached to Starr.
Maybe it was because the Company paid him and Toth
something less than it did the others in fringe benefits;
maybe the two men were satisfied with the economic ar-
rangement as well as the odd hours because as students
they enjoyed the privilege of shifting their hours of work at
will. But whatever the case, the label temporary was just
wrong. Starr worked for 3 years-from 1971 to 1974-con-
tinuously. He left to go to school and returned in October
1975. Now he worked without interruption through March
23, 1977. He was a regular and permanent employee just
like all the rest if ever there was one. Respondent's reliance
upon this artificial word "temporary" in justification for
the man's later discharge will be considered below.
8(a)( I) violations
Manager Allen learned of the filing of the Union's elec-
tion petition on March 3, 1977. Toth and Starr testified
about being called individually into Allen's office on more
than one occasion during the following days, where they
were interrogated by the manager about their union activ-
ites and sympathies, and told things that were coercive
upon them. Entirely apart from their testimony, however,
the following facts are established on the basis of testimony
given by Allen himself, and his assistant, Buchanan, and
by contemporaneous notes made in Allen's own handwrit-
ing and received in evidence.
Immediately upon learning fo the union activity, on
March 3, Buchanan questioned all the employees and tried
to talk them out of it. The next day he was in Allen's office
to report what he had learned and to answer questions. At
the start of his story Buchanan tried to create the impres-
sion the men had volunteered information, and that he
knew what he knew becuase he "felt" it. "Q: I get the
feeling, Mr. Buchanan, you were questioning the employ-
ees in order to determine these things. Would my feeling be
correct? A: I may have." By the time he was through, the
witness stopped equivocating. "I was trying to talk to these
fellows, point out some of the advantage they already had,
and he probably wouldn't even talk to me, wouldn't talk
about it." "I probably discussed it with them, yes, very
much."
In the manager's office on March 4 Buchanan was asked
by Allen "how different employees felt towards the union."
The first thing he answered was that the employees had
been holding union meetings in the evenings for a week or
10 days, and named both Starr and Toth as among them.
Among the things Buchanan reported was that Starr "was
one of the ringleaders of the union movement." Asked to
state the manager's response to that phrase, Buchanan
quoted Allen as follows: "He felt we would get, we might
get an unfair labor practice if we discharged him [Starr]."
In his notes of that March 4 conversation Allen wrote: "I
advised [Buchanan] we could expect unfair practice charge
from NLRB when he's discharged." Another note Allen
made to himself then was that Toth was "definitely union."
Later that same afternoon Allen talked twice with Starr.
The first time he asked was it true the employees had "peti-
tioned for a union?," and Starr said yes. The second time it
was a personal conversation in the office. Now Allen said
to Starr he was "surprised . . . I always had an open door
policy here, anyone can come in with their problems."
Here Starr's response was that while Allen's door was
open, his mind was closed.
The next day-this would be March 5-Allen had an-
other employee-Loftice-in his office and discussed the
union campaign with him. Here he found occasion to say
he was opposed to having Local 247 in the shop because of
its past picketing, or strike activity. He called the Union
"totally irresponsible."
On March 7 Allen called Toth to his office and again
HICKMAN, WILLIAMS & COMPANY
84 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
spoke of the Union. He told Toth "how badly" he felt
about the petition, that there was no need for an "outsider"
here, listed some of the benefits the employees already en-
joyed, and again stressed his willingness to listen to the
employees directly.
All of this thus far from Respondent's agents and from
the manager's notes; there is no question of credibility at
all here. If the record showed nothing else-leaving the
testimony of the employees entirely aside-it proves direct-
ly Allen unlawfully interrogated the employees in the pri-
vacy of his office, made clear his antagonism to the entire
idea of union activities, and not very obliquely invited di-
rect dealings with himself as inducement for abandonment
of the union campaign.
More important, with this much conceded by Respon-
dent's witnesses, the versions of the employees must be
believed for they are consistent with Allen's evidence. Starr
said that the first time Allen spoke to him on March 4 it
was to ask, "Is it true that the men signed for the Union?,"
and when he said yes, the manager said he was "amazed."
In the second talk that same day, still according to Starr,
Allen asked "what I thought there was to be gained by a
union." When Starr answered "due process," Allen contin-
ued with "his door was always open, and he was always
ready to listen to, you know, complaints." Starr also testi-
fied to an interview on March 8, in which he quoted Allen
as explaining he was opposed to Local 247 because of "the
past history of their dealings with the union," adding that
"he thought the union immoral and simply was not going
to deal with them, and they would fight this thing to the
end." In the course of his comments Allen also asked Starr
why he had signed the union card, but the employee re-
mained silent.
Before the conversation was over, Allen told Starr "ev-
erybody there seemed to have a place but me; Bud Loftice
was in charge and Rickie Mills was his helper; that Jim
Buchanan was in charge of the paperwork and the dis-
patching and that Dennis was his helper; and that Tom
Toth was the lab technician; and that there weren't any-
more special projects, so that I would be laid off effective
the end of the week .... " Starr said at the hearing that
this was the first time the manager said anything to him
about layoff or discharge.
With the workweek ending on Friday, 2 days later, on
Thursday night, Starr called Allen on the phone to ask was
he supposed to report for work on Friday, but Allen an-
swered "no, not to worry about that, I was just to continue
working."
As to his March interview in the office, also recorded in
the manager's notes, Toth testified that Allen started by
telling him there was to be an election, and then asked:
"Why do you want a union?... If you have any griev-
ances my door is opened, always you can come in and talk
to me about it . . . I can't understand why you want a
union . .. .If it's a question of money, we have lots of
money . .. .We review our wages of our personnel every
six months." Toth continued to testify that Allen then said
"he particularly disapproved of the local union we had
chosen and that they were animals, and that he had some
trouble with them before, and he wouldn't let them in the
company, and he wouldn't bargain with them." When Toth
answered by saying it was not a personal thing, but rather
an attempt to reserve rights in case any other manager ever
came, Allen said: "Well, maybe I've been too easy on you
guys."
I credit Starr and Toth as to these conversations. I find
that through its manager, Allen, Respondent violated Sec-
tion 8(a)(1) of the Act by interrogating employees concern-
ing their union activities, by inviting direct dealings in
place of collective bargaining, and by telling them Respon-
dent would in no event bargain with the Union.
Toth
Alleged 8(a)(3) violation
I think the complaint allegation that Toth suffered a dis-
crimination in employment in violation of Section 8(a)(3)
must be dismissed, for two reasons. He has always been,
and still is a lab technician; mostly in the office, and some-
times in operational areas of the plant, he tests the coke
and other materials processed by the Company, and types
up written reports showing results. Because he is privileged
to come to work when his school classroom schedule al-
lows, he usually works a full day on Sunday, doing the
same kind of work. The record shows clearly both that this
testing of materials and documenting of results is not a
continuous, steady flow of work for Toth and that when it
does reach him he is free to let it wait awhile-either be-
cause he has to go to school right now or because there
may be something else more pressing at that particular mo-
ment.
During the winter months towards the end of 1976 Allen
asked Toth to answer the phone, but only on Sundays, and
to dispatch truckdrivers. Drivers, employees of other com-
panies and not of Respondent, regularly gather and wait
assignments in the same trailer office where Toth does his
regular lab work. Frequently they themselves answer the
phone to receive precise and quick assignments for their
next truck delivery. Allen also told Toth, during the same
period, to check the plant operations from time to time,
again only on Sundays, because of the increasing problems
due to the colder weather. Toth did this apace with keeping
up his lab work.
There came a time when Allen received complaints
about how Toth was doing this "monitoring" of the plant
and about this bickering with the drivers over what the
correct next delivery assignment should be. It was for this
reason that Allen then first told Toth to stop monitoring
the plant and then also to leave all the dispatching to
others. At least this is Allen's testimony. Allen ended by
saying, at the hearing, that he clarified and repeated these
instructions to Toth on March 26. It is important to note
that Toth only did these side or partial aspects of his work
whenever he chose to come to work on Sundays. If he
chose not to come on Sunday he did nothing at all, of
course.
In his ever changing and sometimes incomprehensible
testimony, Toth at times contradicted Allen and at times
agreed with him. Considering his eventual admission that
he did make errors and was so told by the manager, I
cannot accept his version about the alleged discrimination
HICKMAN, WILLIAMS COMPANY 85
against him. As to the General Counsel's assertions about
what happened, I cannot reconcile his contentions with the
objective facts of record.
Toth's first statement is that Allen told him on March 26
"that I wouldn't be working on Sundays any more start-
ing-commencing the following Sunday, the next day."
During the immediately preceding 5 weeks Toth had
worked 12 hours, or slightly more, every Sunday. He said
that his first response to Allen was: "You're cutting my
hours by twelve .... How am I going to make up my full
time job?," and that Allen then said, "Well, you'll make it
up with your laboratory work." And this is exactly what
happened. During the next 5 weeks, immediately following
the one during which the change of assignment talk took
place, Toth again worked just about 12 hours every Sun-
day-8, 12-1/4 (plus 8 hours pay because it was a holi-
day!), 12, 12-1/2, and 12. When Toth said, at the hearing,
Allen told him he could no longer work on Sundays, he
was misquoting the man. His work never stopped, he never
lost any time, in fact nothing happened that could be
called curtailment of his employment or earnings opportu-
nity. All that changed was that he spent all day Sunday
doing his regular lab work, without distraction by other
duties. As his testimony continued, and as the Company's
payroll records came into view, Toth started changing his
story, and finally admitted he was criticized for the quality
of his dispatching work, and even told, on March 26, he
was no longer to do any dispatching.
As to his mistakes, or failings in work other than as a lab
technician, I therefore credit the testimony .of Ronald
Clayton, a truckdriver, who said that he complained to Al-
len of mistakes made by Toth maybe three times. Toth said
he got into a quarrel with Clayton only once, that Allen
criticized him for that, that he admitted having been
wrong, and even that he apologized to the manager for his
mistake. But that Toth had problems in his job is estab-
lished by another final admission on his own part. Called
in rebuttal, and asked on cross-examination could he ade-
quately do both the plant and lab work on Sundays, he
said: "I wasn't able to do it in a scientific manner. I wasn't
able to guarantee the results, reliability of the results of the
tests."
Whatever may be questionable about Manager Allen's
reliability as a witness on the issue of the discharge of em-
ployee Starr, discussed below, on the point here involved-
whether there were complaints about Toth's dispatching
and plant work-I do believe him. He had reason to keep
the man on his regular work, and this is in fact what he told
him. Can it be said nevertheless that his hidden motive was
to punish the man for his prounion sympathies, of which
the manager was in fact informed? Absent affirmative evi-
dence to that effect, I think not.
Toth did have a reason for resenting Allen's changed
instructions to him, one which I think explains why he filed
a charge with the Labor Board. This business of dispatch-
ing drivers and monitoring the plant smacks of managerial
authority; in fact much of it was done by Buchanan,
Allen's supervisory assistant. Between the day-March
22-of the consent agreement to hold the election and the
time of the balloting on April 21. Toth proposed to Allen
that his job, Toth's, be changed to a supervisory position,
salaried, and with a higher pay, in which case, as he ex-
plained to the manager, Toth could not vote for the Union
and the Company would save considerable money by not
having to pay into the Teamsters welfare and pension fund
for Toth. He found Allen in a restaurant one day, sat with
him, and handed him two handwritten sheets detailing the
suggested new arrangement. Allen brought these papers to
the hearing and they were received in evidence. Toth insist-
ed he gave Allen only one of them that day, but Allen said
it was both. Asked how the manager could otherwise possi-
bly have come into possession of the second, Toth said
maybe the manager searched the employee's desk, a very
unlikely explanation. The exhibits are revealing docu-
ments. One item reads: "Abstain from voting because no
longer qualified to vote." Another: "Save $37 week fee to
Teamsters Union welfare and pension fund." Another
phrase emphasizes that this last item amounted to "Savings
to Company $1924 per year." There is also the following
statement in Toth's handwriting: "In the event my promo-
tion within the company this leaves the lab technicians sal-
ary open not frozen as it would be if it became a union job
classification."
Maybe there is a question whether or not Toth put the
second document into Allen's hands, but there certainly is
no question that he wrote both himself. It matters not,
therefore, whether he put one or two papers in Allen's
hands that day, for clearly the two together reflect his
thinking at the time-obviously an intent to abandon the
union movement and side with management. Allen would
have none of it and turned him down. But what more than
anything proves Toth was not reliable on this matter of
discrimination against him is his attempt to explain away
the contents of his own documents by attributing to them a
meaning totally at variance from the literal wording. Asked
was his proposal to sell out the union movement then and
there, he said not at all. All he meant was that at some
future election, possibly years later if there should ever be
another, whoever the incument of the newly created job
might be would be affected by the terms he so painstaking-
ly detailed here. This, despite the further words he wrote
on one of the sheets: "Effective Ist of April 1977." The
election was scheduled for April 21, 1977.
I shall recommend dismissal of the complaint allegation
that Section 8(a)(3) was violated with respect to Toth.
And if all of the foregoing were not sufficient reason to
dismiss this allegation, I would dismiss it because it is not
true Respondent "discriminated" against Toth in his con-
ditions of employment in any way. His apparent desire for
managerial responsibility apart, there is no contention that
by telling him to discontinue dispatching drivers or looking
after the plant machinery now and then, Respondent hurt
or prejudiced him in any way in his employment. At the
close of the hearing the General Counsel merely stated that
after Allen spoke to Toth on March 26 there was a "24
percent decline" in the man's Sunday hours of work. The
record shows otherwise, and this is proven directly by the
man's work record, whether it be looked at in terms of
hours worked per week of hours worked per Sunday.
Toth worked a little over 12 hours during every one of
the eight Sundays preceding March 26. He did not work on
Sunday of the March 26 week. During the following weeks
HICKMAN, WILLIAMS & COMPANY
86 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
he did over 12 hours of work during each of the next 5
consecutive Sundays. He gave ambiguous explanations of
why he did not come in at all that one Sunday during the
week of March 26. There is no question but that Allen did
not tell him he could not come in to work that day to do his
regular lab technician testing, as he always did. Why did he
not come in on that day? Maybe he had to do his home-
work; after all, he was free to set his own hours, and he
probably did the same that day. That this is all that hap-
pened is strongly indicated by another significant and very
relevant and indisputable fact. Over the 22-week period
covered by the records received in evidence Toth averaged
slightly over 40 hours of work per week. During the week
in question March 26-he did 51-3/4 hours, one of his
highest throughout the entire period. The explanation is
obvious. He chose to work the other 6 days this time, and
not at all on Sunday. Another thing is also shown: The
Company found no fault with him for doing 10 hours more
that week than he ordinarily did. Is this attitude by man-
agement one that can be fairly called a will to discriminate
against a man, for any reason? In his post-hearing brief the
General Counsel hints at all sorts of mistreatment of Toth
by management long after the events, but the complaint is
literally limited to that one March 26 conversation. It will
not due to argue a totally different case, not even litigated,
to bolster an unproved allegation.
Discharge of Starr
8(a)(3) violation
The discharge of Starr presents the now classic question
considered by the Board in past decisions without number.
Was he fired because his work, as distinguished from the
work performed by others, just happened to be finished
that day-as Manager Allen told the employee at the dis-
missal conversation and as he repeated at the hearing? Or
did Allen get rid of the man because he was the union
ringleader, to weaken the Union's chances in the coming
election, as the complaint alleges? The burden to prove
illegal motive rests upon the General Counsel, of always.
But the question remains one of inference: Does the record
in its entirety support the conclusion set out in the com-
plaint that Allen's true motive was to implement an antiun-
ion animus, and not an economic consideration? As has
often been held, proof that an employer's action was dis-
criminatorily motivated is rarely direct, and is often proved
by circumstantial evidence. N.L.R.B v. West Point Mfg.
Co., 245 F.2d 783 (5th Cir. 1964); McGraw-Edison Compa-
ny v. N.L.R.B., 419 F.2d 67 (8th Cir. 1969). 1 find on the
totality of the evidence that Respondent discharged Starr
because of his union activities and thereby violated Section
8(a)(l) and (3) of the Act.
The evidence starts with the manager's instantaneous
reaction, upon learning, on March 3 from his supervisor,
Buchanan, that Starr was the ringleader of the union move-
ment. He said, and wrote down-"We could expect unfair
labor practice charge from NLRB when he's discharged."
Speech being no more than articulation of ideas, a reason-
able reading of his words indicates, at least, that Allen's
thinking was he would discharge the man and, because his
motive was illegal-aimed at curbing the union activity,
which he resented-there would be a Labor Board charge
against him. The idea of the NLRB was in his mind at that
moment because he had just heard of the filing of the
NLRB petition. At the hearing Allen attempted to obliter-
ate his use of the word "discharge" at that critical moment
by saying he was really thinking of "layoff" instead. He
said he did not "comprehend discharged as fired," but
"just employment is severed." This play on words served
only to start discrediting him as a witness. Spoken words
could be in error, for there is such a thing as a slip of the
tongue. But when the words which reflect the thought in
mind are written-a slower and more studied recording of
ideas-they cannot be changed after rethinking. In his
mind at that moment Allen joined the discharge to the
union activity.
In every case where questionable motivation is appraised
a very pertinent factor is the matter of timing. The closer
the discriminatory action is tied to the union activity-or
the employer's learning of such activity -the more persua-
sive the inference the two facts bear a causal relationship.
Although Starr's uninterrupted work over an 18-month pe-
riod belies the fact, he was frequently referred to as a tem-
porary employee, and there was mention of that descriptive
phrase at times in the past. But he was never told his work
was ended, or he should just stay home, until on March 8,
when Allen called him to the office to interrogate him
about his union activities and to try to dissuade him. Starr
instead told the manager his, the manager's, mind was
closed. With this Allen for the first time told him he was
"laid off effective the end of the week." Surprised because
this was the first time anything like this had ever been said
to him, Starr called on the phone the next day, uncertain
whether to report on Friday or not. Now Allen switched
and said "Not to worry about that . ..just to continue
working . . "
Starr continued to work, doing, as he had always done,
all kinds of work as the varying needs arose, but also con-
tinuing his prounion activities. On March 22 he showed up
at the Labor Board hearing on the Union's petition. Allen
was present with his lawyer, and they agreed, again in writ-
ing, that five employees were eligible to vote-including
Timothy Starr by name. The next day, in the middle of the
workweek, Allen told him there was no more work for him
to do and that he was dismissed "effective that night." One
asks: What are the chances a man who has worked a year
and a half without the slightest curtailment or interruption
in work assignment, would be summarily dismissed at the
very moment he flauts his adherence to his union in defi-
ance of the employer's revealed opposition? Would not an
employer who now professes great affection and admira-
tion for the employee-even saying, as did Allen at the
hearing, the man could do any job give him "with one
hand tied behind his back"-at least give him until the end
of the week, or maybe 2 weeks' notice of discharge?
Allen's answer to these questions cannot be stated coher-
ently. He spoke of Starr being hired to work on a special
project, or on special projects, and then added that the one
he worked on last ended on March 23. Asked why did he
agree the day before that the man would be eligible to vote
on April 21, he just said he did not know, on the 22d, that
HICKMAN, WILLIAMS COMPANY 87
that particular project would end the next day. From a
man in charge of only five rank-and-file employees it was a
very implausible assertion.
At one point in his testimony, Allen said Starr was hired
in October 1975 because there was a special project for him
to do, and that this is the reason why he became only a
temporary employee. But with the record showing that
Starr then worked on one project, or problem, after anoth-
er, month after month, Allen's story as a whole became
that Starr was hired to do special projects, in the plural.
and not only one. He had to change his story, if only be-
cause the clearest thing shown on this record, too often to
require repetition here, is that between special work this
company contracts to do for its customers, Starr did all
kinds of other work, at times for a number of continuous
weeks. But with this, even assuming one problem or anoth-
er had been completed or abandoned sometime in March,
Starr's regular employment arrangement called for him to
continue on as before. There was no reason for discharging
him just at that time because of anything connected with
his work duties. And this, of course, explains why on the
22d Allen could say the man was eligible to vote in the
union election almost a month later. Absent the disturbing
union activities, he always knew Starr would continue as a
regular employee.
The truth of the matter is that there was work for Starr
to do, that he had always done every conceivable kind of
work in this place, and that the affirmative defense conten-
tion that he was not hired to do what the rest of the men
were doing is not supported by the evidence. Indeed, this
determinative reality is even seen by admissions on the part
of management. Twice, during his tenure, Starr substituted
for Buchanan while the man was out sick, once for 2 or 3
weeks in a row. On March 18, 3 days before the discharge,
Buchanan was again taken to the hospital unexpectedly.
When Allen told Starr, with no advance warning, that he
was being summarily dismissed, the employee stood mute,
because, as he said, he was amazed. Why was he amazed?
Because he expected for the least he would again be doing
Buchanan's work. Instead Allen asked another man, poor-
ly qualified, to do part of Buchanan's work. Starr testified,
and he was not contradicted, that in addition to what at
times was deemed special work, he did bookkeeping, dis-
patching, minor plant maintenance, plant monitoring, etc.
Starr had recently won a degree as Master of Business
Administration. Allen said he was "overqualified" for the
job he was holding, and that the Company thought of
bringing him to its Cincinnati central office for a more
important position. As support for the new assertion that
the decision to discharge Starr was of long standing, Re-
spondent offered evidence showing that it tried to find him
another job-one more in keeping with his high education,
indeed, that the man himself at times aspired to a better
position. The manager and the president of the Company
talked to him more than once about this, even asking him
to prepare and submit a resume of his education and expe-
rience. Starr neglected these things, and just kept on work-
ing. The argument here is that this proves the Company
always deemed him a temporary man, and also that ev-
erybody knew the work he had been hired to do at the Zug
Island location was limited and about to finish. It is not a
persuasive argument, for it does not even begin to explain
away the totally inconsistent behavior of management in
retaining him to do all kinds of work, never saying to him
he was finished here. If anything, Respondent's readiness
to move him to its central office shows all the more how
valuable they deemed him on any job. The talk about pro-
motion took place in 1976, and, perhaps, again in January
and February 1977. If it shows a then intention to let him
go, how explain Manager Allen's statement on March 8
that Starr was through that week, only to take his words
back the next day? In February 1977 Toth asked Allen
whether Starr was going to continue on with the Company,
hoping even then to progress to a higher job. His testimony
is that the manager answered: "Tim is my first assistant,
my right hand man, he's be here for quite some time [sic]."
In the light of the rest of the record I have no reason not to
believe this.
Lee Allen said Starr was the Company's most educated
man. Asked was there not work for him to do on March 23,
he answered: "There is no work we care to employ him for.
There is always work available." With work always avail-
able, for a long time Respondent "cared" to give it to Starr.
The only thing that changed at the critical time that made
it different was Starr's union activity. One more reference
to Allen's testimony will be enough. Some kind of a "proj-
ect" ended in January or February 1976. What did Starr do
then? "A: There was a period of about a month or six
weeks that he was involving in various minor-pardon the
expression-a little make work projects, hoping that he
would get established and find more suitable employment.
I did not--l was reluctant to discharge him. I could benefit
by his advice and by his work as an hourly rated employ-
ee."
This was the nature of Starr's employment. He was com-
petent in all things, he did every kind of work throughout
his 18 months of employment, he was greatly liked and
wanted by Respondent-i.e., until he started to push the
union campaign. All things considered, there is no escaping
the conclusion he was fired because of his union activity
and for no other reason.
iv THE REMEDY
Respondent must be ordered to undo the effects of its
unfair labor practices. It must be ordered to cease and de-
sist from further violations of Section 8(a)(1) and (3); it
must be ordered to post appropriate notices; and it must be
ordered to make Starr whole for any earnings he lost in
consequence of the illegal discrimination against him. He
returned to work in June 1977 and in August of that year
voluntarily left the Company. There is therefore no occa-
sion for reinstatement here.
The Challenge
As stated above Respondent challenged Starr's ballot at
the union election, claiming he was no longer an employee
and therefore ineligible. Now that it has been found that
Starr was unlawfully discharged. it follows he never lost his
employee status, was eligible to vote, and that the chal-
lenge to his ballot must be overruled. I so recommend.
HICKMAN, WILLIAMS & COMPANY
88 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Union's Objections
As also set out above, the Union filed objections to cer-
tain conduct charged to the employer as having improperly
affected the results of the election. One of the objections
was the asserted illegal discharge of Starr before the elec-
tion. It now having been found that Respondent in fact
committed an unfair labor practice in discharging Starr the
month before the election, it follows that the objections
must be upheld for this if for no other reason. I so find.
There is another contention stated in the Union's objec-
tions, but no evidence on that point was offered at the
hearing and therefore there is no occasion to comment
upon it at all.
This matter of the objections may be mooted. In the
event Starr's ballot turns out to have been cast in favor of
the Union, the Union must be certified as exclusive bar-
gaining agent by the Board. In that event there will be no
occasion to consider the objections by the Board.
IV. THE EFFECTS OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of Respondent set out in section III,
above, occurring in connection with the operations of Re-
spondent described in section 1, have a close, intimate, and
substantial relationship to trade, traffic, and commerce
among the several States and tend to lead to labor disputes
burdening and obstructing commerce and the free flow of
commerce.
CONCLUSIONS OF LAW
1. By discharging Timothy Starr, Respondent has en-
gaged in and is engaging in unfair labor practices within
the meaning of Section 8(a)(3) of the Act.
2. By the foregoing conduct and by questioning its em-
ployees concerning their union activities, by inviting direct
dealings with management to induce them to abandon
their union activities, and by giving them to understand
that it would refuse to bargain with the Union in the event
it should be chosen by a majority, Respondent has engaged
in and is engaging in unfair labor practices within the
meaning of Section 8(a)(1) of the Act.
3. The aforesaid unfair labor practices are unfair labor
practices within the meaning of Section 2(6) and (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:
ORDER 2
The Respondent, Hickman, Williams & Company, De-
troit Processing Division, River Rouge, Michigan, its offi-
cer, agents, successors, and assigns, shall:
I. Cease and desist from:
(a) Discouraging membership in Local 247, Internation-
al Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, or any other labor organization of
its employees, by discharging employees or otherwise dis-
criminating against them in their employment conditions
because of their membership in or activities on behalf of
the above-named or any other labor organization.
(b) Questioning its employees concerning their union
activities, inviting direct dealings with management to in-
duce employees to abandon their union activities, or telling
its employees that it would refuse to bargain with the
Union in the event it were chosen as majority representa-
tive of the employees involved.
(c) In any other manner interfering with, restraining, or
coercing employees in the exercise of the rights to self-
organization, to form, join, or assist the above-named labor
organization, or any other labor organization, to bargain
collectively through representatives of their own choosing,
and to engage in other concerted activities for the purpose
of collective bargaining or other mutual aid or protection,
or to refrain from any and all such activities.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act:
(a) Make Timothy Starr whole for any loss of pay or
any benefits he may have suffered by reason of Respon-
dent's discrimination against him, with interest thereon to
be computed in the manner prescribed in F. W. Woolworth
Company, 90 NLRB 289 (1950), and Florida Steel Corpora-
tion, 231 NLRB 651 (1977). 3
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records neces-
sary to analyze the amount of backpay due under the terms
of this Order.
(c) Post at its River Rouge, Michigan, 4plant, copies of
the attached notice marked "Appendix." Copies of said
notices, on forms provided by the Regional Director for
Region 7, after being duly signed by its representatives,
shall be posted by Respondent immediately upon receipt
thereof, and be maintained by it for 60 consecutive days
thereafter, in conspicuous places, including all places
where notices to employees are customarily posted. Rea-
sonable steps shall be taken by it to insure that said notices
are not altered, defaced, or covered by any other material.
(d) Notify the Regional Director for Region 7, in writ-
ing, within 20 days from the date of this Order, what steps
the Respondent has taken to comply herewith.
2 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.
3See, generally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962).
4 In the event that this Order is enforced by ajudgment 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 Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
HICKMAN, WILLIAMS & COMPANY 89
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board having found, after a
hearing, that we violated the Federal law by discharging an
employee because he engaged in union activities:
WE WILL NOT discourage membership in Local 247,
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, or in any
other labor organization of our employees by dis-
charging any of our employees because of their mem-
bership in, support of or activities in favor of the
above-named or any other labor organization.
WE WILL NOT question our employees concerning
their union activities or sympathies.
WE WILL NOT invite direct dealings between individ-
ual employees and ourselves as a method for inducing
our employees to abandon concerted activities.
WE WILL NOT tell our employees that we will refuse
to bargain with any union majority representative they
might choose.
WE WILL make whole Timothy Starr for any loss of
earnings he may have suffered as a result of our dis-
crimination against him, plus interest.
HICKMAN. WILLIAMS & COMPANY, DETROIT
PROCESSING DIVISION