Judd Valve Co.

National Labor Relations Board - Board Decisions

Jul 8, 1980

250 N.L.R.B. 472 (N.L.R.B. 1980)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Judd Valve Company and International Association
of Machinists and Aerospace Workers, AFL-
CIO. Case 17-CA-9203
July 8, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBIRS
JENKINS AND TRUE SDAI.E
On April 29, 1980, Administrative Law Judge
Russell L. Stevens issued the attached Decision in
this proceeding. Thereafter, Respondent filed ex-
ceptions and a supporting 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 brief
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, Judd Valve
Company, Caney, Kansas, its officers, agents, suc-
cessors, and assigns, shall take the action set forth
in the said recommended Order, except that the at-
tached notice is substituted for that of the Adminis-
trative Law Judge.
i Respondent has excepted to certain credibility findings made by the
Administrative L aw Judge. It is the Board's established policy not to
overrule an administrative law judge's resolutions with respect to credi-
bility unless the clear preponderance of all of the relevant evidence con-
vinces us that the resolutions are incorrect. Standard Dry Wall Products.
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir 1951). We have
carefully examined the record and find no basis for reversing his findings
Although not relevant to the resolution of the issues herein, we note
that the Administrative Law Judge erroneously found that the Union's
organizational effort was successful. In fact, the Union lost the July 18,
1979, election and does not represent Respondent's employees
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which both sides had an oppor-
tunity to present evidence and state their positions,
the National Labor Relations Board has found that
we have violated the National Labor Relations
Act, as amended, and has ordered us to post this
250 NLRB No. 73
notice. We intend to carry out the Order of the
Board.
WE WII.I. NOT interfere with, restrain, or
coerce employees in the exercise of the rights
guaranteed them in Section 7 of the Act, in
violation of Section 8(a)(l) of the Act, or dis-
criminate against them in violation of Section
8(a)(3) of the Act, by withholding from them
payment for funeral leave because of their
union or other protected activity.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employ-
ees in the exercise of their rights to self-organi-
zation, to form, join, or assist labor organiza-
tions, to bargain collectively through repre-
sentatives of their own choosing, and to
engage in concerted activities for the purposes
of collective bargaining or other mutual aid or
protection as guaranteed by Section 7 of the
Act, or to refrain from any or all such activi-
ties.
WE WILL. make Joe Leahew whole for his
loss of earnings occasioned by our discrimina-
tion against him, with interest thereon.
JUDD VAI.VE COMPANY
DECISION
STATEMEN r OF THE CASE
RUSSEl.i. L. STEVENS, Administrative Law Judge: This
case was heard in Coffeyville, Kansas, on March 13,
1980.' The complaint, issued October 23, is based upon a
charge filed September 20 by International Association
of Machinists and Aerospace Workers, AFL-CIO,
herein the Union. The complaint alleges that Judd Valve
Company, herein Respondent, violated Section 8(a)(1)
and (3) of the National Labor Relations Act, as amend-
ed.
All parties were given full opportunity to participate,
to introduce relevant evidence, to examine and cross-ex-
amine witnesses, to argue orally, and to file briefs. Briefs,
which have been carefully considered, were filed on
behalf of the General Counsel and Respondent.
Upon the record of the case, and from my observation
of the witnesses and their demeanor, I make the follow-
ing:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent, an Oklahoma corporation, is engaged in
the manufacture of check valves at Industrial Park,
Caney, Kansas. In the course and conduct of its business
operations within the State of Kansas, Respondent annu-
ally purchases goods and services valued in excess of
I All dates hereinafter are 1979. unless stated to be otherwuise
472
JUDD XVALVE COMPANY
$50,000, directly from sources located outside the State
of Kansas, and sells goods and services valued in excess
of $50,000 directly to customers located outside the State
of Kansas.
I find that Respondent is an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of
the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Union is now, and at times material herein has
been, a labor organization within the meaning of Section
2(5) of the Act.
Ill. THE ALLEGED UNFAIR LABOR PRACTICE
A. Background
The facts of this case for the most part are not in dis-
pute.
Respondent's Caney, Kansas, facility commenced op-
erations in June 1978 and at all times relevant herein em-
ployed approximately 21 employees working on two
shifts. Day-shift employees were supervised by General
Foreman Frank Wise.2 Respondent's president is Jack
Judd; its vice president and general manager is Al Nitz.
Joe Leahew, the alleged discriminatee, was a principal
force behind the union movement at Respondent's Caney
plant. Leahew obtained blank authorization cards from
the Union, solicited signatures and turned the cards over
to the Union, was elected as a union committeeman, and
was the union observer at the election held July 18. The
organizational effort was successful and the Union now
represents Respondent's employees.
Respondent had knowledge of Leahew's active sup-
port for the Union.3 During the morning break on May
25, Leahew and several other employees went into
Wise's office, where Leahew acted as spokesman.
Leahew displayed his volunteer organizer's card and told
Wise there was union activity in the plant. Wise turned
his head, said he was not supposed to look at the card,
and told the employees not to discuss union activity on
company time.
Leahew's sister was killed in an accident on August
26. That evening he called Nitz on the telephone, told
him about the accident, and said he was going to need 3
days off for the funeral. Leahew then asked if Respond-
ent paid employees for funeral leave. Nitz replied that he
would check with Judd.
Nitz checked with Judd, who denied the funeral leave
requested by Leahew.
Leahew did not work August 27, 28, and 29 in order
to arrange for and attend his sister's funeral. When he re-
turned to work on August 30, Leahew asked Wise if he
was going to be paid for the 3 days off, and Wise told
him no. 4 Leahew never was paid for the 3 days he was
off.
2 Individuals are referred to herein by their last names
a Counsel stipulated that Respondent had knowledge of L.eahev's
union activities since May 25, and further. Nitz acknosuledged that he
knew in June and July that Leaheyw was one of the principle organizers
and advocates of the Union
4 Nitz testified that he personally told l.eaheu that futneral lease
would not be paid to him
On April 16, employee Jake Wade's mother died and
Wade took that \week off from work. When Wade re-
turned to work on April 23 Nitz told him that he would
receive 24 hours of paid funeral leave. Wade later re-
ceived that payment.
B. Contentions of the Parties
The General Counsel contends that Leahew was treat-
ed disparately from Wade, to his detriment, solely be-
cause of Leahew's union activity.
Respondent contends that denial of leave for Leahew
was due to Judd's good-faith belief that he could not
change company policy or fringe benefits while a dispute
was pending relative to a challenged union election
vote. 5
C. Respondent's Moriive
Leahew testified concerning his telephone call to Nitz:
He said that they have the option of paying it,
but with the confusion in the shop at the time that
his hands were tied and that he would have to talk
with Mr. Judd and see what he wanted to do.
Nitz testified somewhat differently from Leahew on this
point, but he was not asked if he denied what Leahew
said, nor did he voluntarily deny Leahew's testimony.
Leahew was a convincing witness and is credited on this
point.
Leahew testified that, on August 31, he asked Nitz if
he was going to be paid for his 3 days off and Nitz re-
plied "No." Leahew further testified:
And I asked him why he would pay Jake Wade
and not myself. And he said that in the case of Jake
Wade, that it had happened before the confusion in
the shop began and with the union activity his
hands were tied and he no longer had some of the
options available to him. He then said that-I asked
him-no, he then said that with the union activity
in the area that he couldn't pay, you know, his
hands were tied and he no longer had his options.
And then he said, "You're the main reason for that
union activity." And then he pointed his finger at
me and then said that I wasn't the only one in the
shop that wanted the union, the whole day shift did
and that I was just leading the effort. He said, "You
can't say that you didn't have anything to do with
it.' And I said, "No, I won't say that because I did
have something to do with it." And he then said
that if this-if a matter like this came up again that
Mr. Judd would have the option of paying the man,
if he so desires. And I then asked him if he didn't
think that wasn't discrimination. And he said, "No,
it was just one of their options."
Nitz did not deny Leahew's foregoing testimony, but
said he recalled stating to Leahew that Respondent
could not make policy changes "with the pending labor
' The fact that ilch ai dispute "sas pending Ahen the funeral lease was
denied to I ealhe is showsn bs the record alnd ia, not In dispute
473
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
negotiations." Leahew's testimony on this point is cred-
ited.
Respondent's defense relative to motive is not persua-
sive. Regardless of whether or not Judd believed that he
could not "change policy" during a ballot challenge, and
whether or not Judd was mistaken concerning the law,
Nitz was a high-level supervisor, and Nitz made it clear
to Leahew that he knew of, and was opposed to, Lea-
hew's union activity, and that such activity was tied di-
rectly to denial of the funeral leave. His recitation to
Leahew was in response to the latter's request concern-
ing the leave and clearly when talking about the leave
his principle thought was Leahew's union activity, not a
"policy change." Under such circumstances, Judd's moti-
vation is beside the point. Nitz is the manager who, in
effect, told Leahew that he would not be paid leave be-
cause of his union activity.
D. Disparate Treatment
The fact of disparate treatment is not in dispute.
During the short time that Respondent has been in oper-
ation, funerals involving employees' leave have occurred
on only two occasions-those involving Wade and
Leahew. Respondent voluntarily gave Wade leave yet,
approximately 4 months later, denied leave for Leahew.
Wade was not involved in union activities when he was
given leave. Leahew was so involved when his leave
was denied. Thus, Respondent changed what it previous-
ly had done relative to leave. The only reason given at
the hearing was Judd's contention that he believed he
could not create a policy during a ballot challenge. That
explanation is not convincing. Leahew's receipt of leave
would not be the creation of a policy-one such leave
already had been given to Wade. The only apparent dif-
ference between Wade was Leahew is the fact that
Leahew was engaged in union activity and Wade was
not at the times of the two funerals. If Leahew had been
paid in the same manner as Wade there would not have
been a change of an existing policy. It may well be that
Wade's leave was a single prior instance, and that Re-
spondent had no formal policy expressed in writing, but
to withdraw its practice, even only once exercised, was
to create a suspicion. That suspicion becomes a conclu-
sion when Nitz' conversations with Leahew are consid-
ered. The "option" to which Nitz referred, left it up to
Respondent to grant or withhold leave for any reason,
including employee activity protected by the Act. Re-
spondent's exercise of that option in the case of Leahew
was clearly discriminatory and in violation of the Act.
Respondent had an obligation to act toward Leahew in a
manner consistent with its actions prior to the institution
of union activity. That obligation was not met.6 The alle-
gations of the complaint are supported by the record.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICE
UPON COMMERCE
The activities of Respondent, set forth in section III,
above, occurring in connection with its operations de-
' Ann Lee Sportswear, Inc., 220 NLRB 982 (1975); General Motor .4c-
ceptance Corporation, 196 NLRB 137 (1972); The Guate Rubber Comnpany.
182 NLRB 95 (1970).
scribed in section 1, above, have a close, intimate, and
substantial relation to trade, traffic, and commerce
among the several States, and tend to lead to labor dis-
putes burdening and obstructing commerce and the free
flow of commerce.
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, in violation of Section 8(a)(I) and
(3) of the Act, I shall recommend that it be ordered to
cease and desist therefrom, and take certain affirmative
actions designed to effectuate the policies of the Act.
It has been found that Respondent unlawfully with-
held 3 days' funeral leave from Joe Leahew. I will,
therefore, recommend that Respondent make Leahew
whole for losses he sustained as a result of Respondent's
discrimination against him by payment to him for 3 days'
funeral leave, with interest thereon to be computed in
the manner prescribed in F. W. Woolworth Company, 90
NLRB 289 (1950), plus interest as set forth in Isis Plumb-
ing & Heating Co., 138 NLRB 716 (1962), and Florida
Steel Corporation, 231 NLRB 651 (1977). It will be fur-
ther recommended that Respondent preserve and make
available to the Board, upon request, all payroll records,
social security payment records, timecards, personnel
records and reports, and all other records necessary and
useful to determine the amounts of backpay due and the
rights of reinstatement under the terms of these recom-
mendations.
Upon the basis of the foregoing findings of fact, and
upon the entire record, I hereby make the following:
CONCLUSIONS OF LAW
1. Judd Valve Company is, and at all times material
herein has been, an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. International Association of Machinists and Aero-
space Workers, AFL-CIO, is, and at all times material
herein has been, a labor organization within the meaning
of Section 2(5) of the Act.
3. Respondent violated Section 8(a)(1) and (3) of the
Act by withholding from Joe Leahew payment for 3
days' funeral leave.
4. The aforesaid unfair labor practices affect commerce
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 recommended:
ORDER 7
The Respondent, Judd Valve Company, Caney,
Kansas, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Withholding from its employees pay for funeral
leave because of its employees' union activity.
7 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 find-
ings, 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 he deemed waived for all purposes
474
JUDD VALVE COMPANY
(b) In any like or related manner interfering with, re-
straining, or coercing its employees in the exercise of
their right to self-organization, to form, join, or assist
labor organizations, to bargain collectively through rep-
resentatives of their own choosing, and to engage in con-
certed activities for the purposes of collective bargaining
or other mutual aid or protection as guaranteed by Sec-
tion 7 of the Act, or to refrain from any or all such ac-
tivities.
2. Take the following affirmative action which is nec-
essary to effectuate the policies of the Act:
(a) Make whole Joe Leahew for his loss of earnings, in
the manner set forth in the section of this Decision enti-
tled "The Remedy."
(b) 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 rec-
ords necessary to analyze the amount of backpay due
under the terms of this Order.
(c) Post at its Caney, Kansas, worksite, copies of the
attached notice marked "Appendix."8 Copies of said
8 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by
notice, on forms provided by the Regional Director for
Region 17, after being duly signed by Respondent's rep-
resentative, shall be posted by it immediately upon re-
ceipt thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respondent to
insure that said notices employees are not altered, de-
faced, or covered by any other material.
(d) Notify the Regional Director for Region 17, in
writing, within 20 days from the date of this Order, what
steps the Respondent has taken to comply herewith.
Order of the National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
475