Hoover, Inc.

National Labor Relations Board - Board Decisions

Feb 3, 1970

180 N.L.R.B. 1069 (N.L.R.B. 1970)

HOOVER, INC.
Hoover , Inc. and International Union of Operating
Engineers, Local 369. Case 26-CA-33 16
February 3, 1970
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND JENKINS
On September 30, 1969, Trial Examiner Herbert
Silberman issued his Decision in the above-entitled
proceeding, recommending that the complaint be
dismissed, as set forth in the attached Trial
Examiner's Decision. Thereafter, the General
Counsel filed exceptions to the Decision, together
with a supporting brief, and the Respondent filed an
answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a
three-member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and
the entire record in this case, and adopts the
findings, conclusions, and recommendations of the
Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby adopts as its Order the
Recommended Order of the Trial Examiner, and
orders that the complaint be, and it hereby is,
dismissed in its entirety.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
HERBERT SILBERMAN , Trial Examiner: Upon a charge
and an amended charge, respectively, filed on March 19
and April 24, 1969, by International Union of Operating
Engineers, Local 369, herein called the Union, a
complaint, dated May 1, 1969, was issued alleging that
the Respondent, Hoover, Inc., herein sometimes called the
Company, has engaged in and is engaging in unfair labor
practices proscribed by Section 8(a)(I) and (3) of the
National Labor Relations Act, as amended. The
complaint, as amended at the hearing, in substance,
alleges that: (a) On March II, 1969, the Company
discharged two employees, both of whom worked on its
night shift, and on March 14, 1969, the Company
discharged 10 additional employees, constituting the
balance of its night shift, because said employees joined or
assisted the Union; and (b) by reason of such conduct and
by reason of alleged interrogation of employees by Robert
Lamb, a supervisor and agent of Respondent, the
1069
Company has interfered with, restrained, and coerced
employees in the exercise of their rights guaranteed by
Section 7 of the Act. Respondent by its answer denied
that it had engaged in any conduct constituting an unfair
labor practice. A hearing in this proceeding was held in
Nashville, Tennessee, on June 25 and August 12, 1969.
Thereafter, briefs were filed on behalf of the General
Counsel and the Respondent which have been carefully
considered.
Upon the entire record in this case, I make the
following.
Findings of Fact
1. THE BUSINESS OF THE RESPONDENT
Respondent, a Tennessee corporation, maintains its
principal office and place of business in Nashville,
Tennessee, and also operates in other locations in the
States of Tennessee and Kentucky. Respondent is engaged
in quarrying, processing, distributing, and selling crushed
stone. During the 12 months preceding the issuance of the
complaint, Respondent sold stone totaling in excess of
$50,000 to customers located in the State of Tennessee
and also totaling in excess of $50,000 to customers located
in the State of Kentucky, all of whom in turn were
engaged in interstate business activities the individual
dollar volume of which exceeded $50,000 annually.
Respondent admits, and I find, that it is engaged in
commerce within the meaning of Section 2(6) and (7) of
the Act
11. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning
of Section 2(5) of the Act.
111. THE ALLEGED UNFAIR LABOR PRACTICES
A drive to organize Respondent's employees at its
Nashville, Tennessee, quarry began about March 8, 1969,
following a meeting among Grover Smith, assistant
business agent of the Union, and Respondent's employees
David DeLozier, William S. Key, and Clark Goodman.
DeLozier took the initiative in arranging the meeting. The
three employees who met with Smith worked on the night
shift and the record indicates that the organizational
activities at Respondent's Nashville quarry was
concentrated among the night-shift employees.
David DeLozier and William S. Key were discharged
on March It, 1969. The complaint alleges that they were
discharged for their union activities. However, there is
insufficient competent evidence in the record to establish a
prima facie case that their terminations were
discriminatory. Accordingly, I shall recommend that the
complaint be dismissed insofar as it alleges that the
Respondent violated the Act by reason of the discharges
of DeLozier and Key
On March 14, 1969, Respondent closed down the night
shift at its Nashville quarry and discharged all the
employees then working on the shift. General Counsel
contends that the night shift was terminated because of
the union activities of the employees who were working on
that shift and therefore the 10 other employees named in
the complaint, all of whom then worked on the night shift,
were unlawfully discharged on March 14, 1969.
According to Carl Mackay, secretary-treasurer of
Respondent, the night shift at Respondent's Nashville
180 NLRB No. 170
1070 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
quarry is only temporary and is activated whenever it is
necessary for the Company to build up its stockpile of
crushed stone. Thus, according to Mackay, there was no
night shift in 1966 or in 1967. In 1968 a night shift was
inaugurated on three different occasions. Two of the times
the night shift lasted for only 3 weeks each and in the
third instance the night shift lasted for 5 weeks. In 1969
the night shift was begun about January 1 and continued
in operation until March 14, 1969. Bobby Lamb, foreman
of the night shift, testified that all the employees who
worked on the shift understood that the night shift was
temporary. Jerome Jenkins, Respondent's vice president
and in charge of production, testified that he closed down
the night shift on March 14 because the stockpile was so
high that it was not feasible to add to it. He further
testified that at the time the night shift was shut down
none of the employees then working on the night shift
were offered other employment with the Company because
there were no other jobs then available. The evidence
shows that Elmer Patrick, one of the night-shift employees
who was discharged on March 14, 1969, was rehired by
the Company on March 24, 1969. There is no
contradiction in the record of Respondent's explanation
for the termination of the night shift. I find that Lamb,
Mackay, and Jenkins were truthful witnesses and I credit
their testimony. Accordingly, I find, contrary to General
Counsel, that the night shift at Respondent's Nashville
quarry was terminated on March 14 for legitimate
economic reasons uninfluenced by the union activities of
the employees.
On the night of March 14, 1969, prior to the time that
the night-shift employees were given their layoff notices,
Bobby Lamb asked Elmer Patrick how many men on the
night shift had signed up for the Union. Patrick replied
that he did not know but that he (Patrick) had signed a
union card . Lamb explained that he had heard from
conversation at the quarry about the Union's
organizational effort and he asked Elmer Patrick, whom
he described as an oldtimer, about the extent of the union
activity only out of curiosity. Lamb testified that no one
on behalf of management asked him to make any such
inquiry and there is no evidence that Lamb reported what
he had been told by Patrick to any other member of
management.
I find that General Counsel has failed to prove by a
preponderance of the evidence that the night shift was
terminated by Respondent on March 14, 1969, for reasons
that would constitute a violation of the Act. Furthermore,
I find that the single instance of interrogation of Patrick
by Foreman Lamb, in the circumstances, was not
coercive.
CONCLUSIONS OF LAW
Respondent has not violated Section 8(a)(1) and (3) of
the Act as alleged in the complaint.
RECOMMENDED ORDER
On the basis of the foregoing findings of fact and
conclusions of law and upon the entire record in the case,
I recommend that the complaint in this case be dismissed
in its entirety.