Lake Shore, Inc.

National Labor Relations Board - Board Decisions

Feb 14, 1975

216 N.L.R.B. 598 (N.L.R.B. 1975)

598 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Lake Shore, Inc. and Operating Engineers, Local
Union No. 3. Cases 27-CA-11089 and 27-RC-4743
February 14, 1975
DECISION, ORIIER, AND DIRECTION
BY MEMBERS JENKINS, KENNEDY, AND
PENELLO
On October 11, 1974, Administrative Law Judge
Martin S . Bennett issued the attached Decision in
this proceeding. Thereafter, Respondent filed excep-
tions and a supporting brief. General Counsel and
Charging Party filed answering briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, findings,
and conclusions of the Administrative Law Judge
and to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended , the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that Respondent , Lake Shore, Inc.,
Salt Lake City, Utah, its officers, agents, successors,
and assigns , shall take the action set forth in the said
recommended Order.
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 27 shall, pursuant to the
Board's Rules and Regulations, within 10 days from
the date of this Direction, open and count the ballots
of John Stocker and Henry Smith, Jr., and, thereaf-
ter, prepare and cause to be served on the parties a
revised tally of ballots, including therein the count of
said ballots, upon the basis of which the Regional
Director shall issue the appropriate certification.
DECISION
STATEMENT OF THE CASE
MARTIN S. BENNETT, Administrative Law Judge: This
consolidated matter was heard at Salt Lake City, Utah, on
September 4 and 5, 1974 . The complaint in the unfair labor
practice case , issued May 20 and based upon a charge filed
March 29, 1974, by Operating Engineers, Local Union No.
3, herein the Union, alleges that Respondent, Lake Shore,
Inc., has engaged in unfair labor practices within the
meaning of Section 8(a)(3) and (1) of the Act by
discharging John Stocker and Henry Smith , Jr., on March
15, 1974.
Consolidated with the foregoing was a hearing in Case
27-RC-4743 on challenges to the ballots of Stocker and
Smith in an election conducted on May 9, 1974. Therein,
seven votes were cast for the Union and eight against it,
with two challenges, namely Stocker and Smith previously
terminated, therefore being determinative of the results of
the election . Briefs have been submitted by the General
Counsel and Respondent.
Upon the entire record in the case , and from my
observation of the witnesses , I make the following:
FINDINGS OF FACT
I. JURISDICTIONAL FINDINGS
Respondent, Lake Shore , Inc., is a Michigan corpora-
tion, which, inter alia, maintains a plant at Salt Lake City,
Utah, where it is engaged in the distribution and service of
heavy construction equipment. It annually purchases and
receives goods and materials valued in excess of $50,000
directly from points outside the State of Utah. I find that
the operations of Respondent affect commerce within the
meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Operating Engineers, Local Union No. 3, is a labor
organization within the meaning of Section 2 (5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Introduction; the Issue
The sole unfair labor practice issue herein involves the
discharges of John Stocker and Henry Smith, Jr., on
March 15, 1974. The General Counsel alleges that this
resulted from their union organizational activities . Respon-
dent contends that there was a reduction in force because
of economic factors and that the two men were chosen
because of unsatisfactory performance of their duties and,
further, in the case of Stocker , because he had a drinking
problem. Initially, it is noted that both were chosen out of
seniority.
B. Sequence of Events
John Stocker entered the employ of Respondent in April
1971, almost 3 years prior to his discharge. His coworkers,
being aware of his prior membership in a labor organiza-
tion and being dissatisfied with conditions of employment,
urged him to contact the Union; according to Wayne
Lassiter, business representative of the Union, Stocker
telephoned him on Monday, March 11, and asked Lassiter
to meet with the employees . Such a meeting was arranged
for the evening of Thursday, March 14.
Coworker Henry Smith, Jr., according to Lassiter,
telephoned Lassiter on March 11 to the same objective.
Both Smith and Stocker actively solicited employees to join
216 NLRB No. 105
LAKE SHORE, INC. 599
the Union over the next several days . Indeed, Smith
personally arranged carpools to transport workers to the
March 14 meeting shortly after the close of work that day.
Some 14 of approximately 17 service department employ-
ees attended the meeting and all signed cards.
Respondent , in its able brief, does not dispute the fact of
the union activities of the two alleged discriminatees and
indeed concedes the fact . As Stocker testified , he repeated-
ly spoke to employees during that week concerning the
benefits of unionization . Smith, hired in June 1973,
similarly became strongly interested in unionization. As he
testified , he had previously been a member of the Union
and acted very directly in concert with Stocker in
organizing carpools, as stated , to get the employees to the
union hall on March 14 . According to Smith, and I so find,
he and Stocker solicited the interest of three -fourths of the
membership in the shop and some were solicited on several
occasions during this period of several days.
The two men were discharged on the morning of Friday,
March 15 , without advance notice . Respondent contends
that economic conditions dictated a reduction in force and
that these two were selected , after they and two others were
considered for termination , and that the reason was their
lack of competency . As noted , they were chosen out of
seniority. For example, Smith , a class A mechanic, as he
uncontrovertibly testified, was 9th in seniority out of 17 on
such a list posted by Respondent in the plant. As for
Stocker, he was 3d in seniority of the total complement of
17 mechanics and, of the 4 who were designated as field
servicemen and generally worked in the field , he was 2d in
seniority. He had been assigned to work in the field for
approximately 1-1/2 years before his discharge.
C. Analysis and Conclusions
There are a number of factors which lead me to conclude
that the evidence preponderates in favor of the position of
the General Counsel and against that of Respondent.
(1) Respondent has adduced evidence that because of
poor profits at its Salt Lake City operation, management
decided as early as January 1974 that if sales forecasts were
not met, payroll expenses would have to be reduced.
Following several terminations in other departments, it was
concluded on February 28 that two employees in the
service department were to be eliminated . Four were
considered and two of these were Stocker and Smith.
Service Manager Allen Barney claimed that he advised
President Leon Angros on March 7 that Stocker and Smith
were the two and formalized this in a - memo to Angros
dated March 8 . Significantly, this memo stated only that
two unnamed were to be terminated on March 15 and did
not provide names.
(2) Despite all this purported planning and selection of
the two men to be terminated , they first learned of this
decision on the morning of March 15 and, significantly,
were paid off in cash. I find it difficult to believe that an
interstate operation of this nature, if the move had been
planned so long in advance, would not have paid them off
by check. Evidence by Respondent that unexpected quits
had been paid off in cash on other occasions does not meet
this issue . Respondent's claim that checks would perforce
have been delivered one week later, after the close of the
payroll period on March 15, is not impressive.
(3) As noted, Stocker and Smith were discharged out of
seniority on the morning after the union meeting on the
evening of March 14, after almost 3 years of employment
on the part of Stocker.
(4) There is evidence that Respondent learned of the
union activities of the men, and particularly those of
Stocker, prior to the discharges. I find that Ron Paskett, an
employee in the service department, advised Barney that a
union organizational meeting had been held or was to be
held and that Stocker was involved. Barney, not an
impressive witness, vacillated in his testimony and his
affidavit between March 14 and 15 as to the date of the
conversation, although I believe and find that this took
place on March 14. In any event, on the posture most
favorable to Respondent, Barney was so advised no later
than 7 a.m. on March 15 and the discharges took place at
8:30 a.m. Also relevant herein is the fact, noted above, that
Smith organized carpools to transport the employees to the
meeting on the evening of March 14.
(5) Respondent has adduced evidence that Smith
received a reprimand for work on the so-called Wagner
repair job in November 1973. Yet he received a pay raise
thereafter. Indeed, he was promoted from a grade B
mechanic to a grade A mechanic in January 1974, with a
commensurate raise in pay.
(6) President Angros admitted that on the morning of
March 14, the parts department manager, McMaster,
advised him that there was union organizational activity
going on and "inferred" that Stocker was involved; indeed,
Angros next admitted that McMaster named Stocker to his
informant, although Angros denied knowing of Smith's
involvement until the week after their discharge.
(7) There is undisputed evidence that Stocker was seen
drinking a beer at lunch on one occasion and that he had
an accident while driving his assigned company vehicle
after leaving work, with an open can of beer in the vehicle.
Barney testified that he told Stocker shortly after January 2
that if there was a subsequent drinking incident, Stocker
would be terminated. And there was no such incident
thereafter.
(8) Stocker made telephone calls to one parts-supplier
and on an occasion to Shop Foreman Downard very late at
night, seeking parts, which were disapproved of, and he
was so told. In the same vein is testimony by Foreman
Downard that Stocker arranged his time so as to incur
overtime work and premium pay. Yet Downard placed this
in the fall of 1973 and did not report it.
(9) There is conflicting evidence as to how Stocker
performed in a field job shortly before March 11 and as to
whether he was reprimanded therefor on that date for not
installing a nut on a piece of machinery; according to
Stocker, the nut was not available and the machine was
made to perform satisfactorily. There is also conflicting
evidence as to Stocker's threat to quit, whether he and
Barney discussed the length of notice to be given and
whether Barney said he wanted 2 weeks' notice or none. In
view of the foregoing considerations, I deem this unneces-
sary to resolve and there is the additional factor that he did
not quit.
600 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(10) Personnel Manager Jay Disnow, stationed at the
home office in Michigan , testified that he visited the Salt
Lake City installation in February 1974 and that the
performance of Stocker was discussed . He advised the
local officials that if they wanted to terminate an
employee , the complaint should be reduced to writing and
placed in the employee 's personnel folder . There is no
evidence that such action was ever taken with respect to
Stocker.
(11) What I find of significance herein is the evidence,
which is undisputed , concerning a contract with the Terex
Division of General Motors Corporation . Vice President
Jack Bale of Respondent , stationed at the home office,
testified that Respondent entered into an oral agreement
with General Motors in 1973 to assemble five large trucks
for that company at Salt Lake City , this being a matter of
first impression.
General Motors employees were to be and were
ultimately on the scene . The unassembled parts com-
menced to arrive on March 11 , 1974, and the assembly
commenced shortly thereafter . General Motors employees
were authorized to schedule overtime , this was done, and
no new employees were hired to replace Stoc }cer and
Smith.
Some five trucks were assembled and delivered by the
end of July or the first of August. The General Motors
representatives ordered considerable overtime on the
project with Respondent paying this overtime and being
duly reimbursed . Bale conceded that this project constitut-
ed a major percentage of their work during this period.
To sum up, as of March 11, Respondent knew that it had
a considerable reservoir of novel work on a new project,
saw fit to terminate two experienced employees out of
seniority 4 days later, and then worked considerable
overtime with the remaining crew , something it reasonably
could have anticipated.
I find on a preponderance of the evidence that by
discharging Stocker and Smith Respondent has engaged in
unfair labor practices within the meaning of Section 8(aX3)
and (1) of the Act.'
Upon the basis of the foregoing findings of fact, and
upon the entire record in the case, I make the following:
CONCLUSIONS OF LAW
1. Lake Shore , Inc., is an employer within the meaning
of Section 2(2) of the Act.
2. Operating Engineers , Local Union No. 3, is a labor
organization within the meaning of Section 2(5) of the Act.
3. By discharging John Stocker and Henry Smith, Jr.,
on March 15, 1974, Respondent has engaged in unfair
labor practices within the meaning of Section 8(aX3) and
(1) of the Act.
4. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
I There are several other factors which lend support to the position of the
General Counsel herein , but I deem thetp to be cumulative and therefore do
not set them forth.
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,
The Remedy
Having found Respondent has engaged in unfair labor
practices, I shall recommend that it cease and desist
therefrom and take certain affirmative action designed to
effectuate the policies of the Act.
I have found that Respondent has violated Section
8(a)(3) and (1) of the Act by discriminatorily discharging
John Stocker and Henry Smith, Jr., on March 15, 1974. I
shall, therefore , recommend that Respondent offer them
immediate and full reinstatement to their former jobs, or, if
their jobs no longer exist, to substantially equivalent
positions , without prejudice to seniority or other rights and
privileges . See The Chase National Bank of the City of New
York, San Juan, Puerto Rico Branch, 65 NLRB 827 (1946).
I shall further recommend that Respondent make them
whole for any loss of pay they may have suffered as the
result of their discharge by payment of a sum of money
equal to that each normally would have earned from said
date to the date of Respondent 's offer of reinstatement,
less net earnings , with backpay and interest thereon to be
computed in the manner prescribed by the Board in F. W.
Woolworth Company, 90 NLRB 289 (1950), and Isis
Plumbing & Heating Co., 138 NLRB 716 (1962).
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:
ORDER2
Respondent, Lake Shore, Inc., Salt Lake City, Utah, its
officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in or activity in behalf of
Operating Engineers , Local Union No. 3, or any other
labor organization of its employees, by discriminating in
regard to hire or tenure of employment , or any term or
condition thereof.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of the
rights guaranteed under Section 7 of the National Labor
Relations Act.
2. Take the following affirmative action which is
deemed necessary to effectuate the policies of the Act:
(a) Offer John Stocker an4 Henry Smith , Jr., immediate
and full reinstatement to their former jobs, or if their jobs
no longer exist , to substantially equivalent positions,
without prejudice to seniority or other rights and privileges,
and make them whole for any loss of pay suffered by
reason of the discrimination against them in the manner
provided above in the section entitled "The Remedy."
(b) Preserve and make available to the National Labor
Relations Board and its agents , upon request, for examina-
tion and copying, all payroll records , social security
payment records, timecards, personnel records and reports,
and all other records necessary to determine the amount of
backpay due under the terms of this Order.
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.
LAKE SHORE, INC.
(c) Post at its plant at $alt Lake City, Utah, copies of the
attached notice marked "Appendix." 3 Copies of said
notice , on forms provided by the Regional Director for
Region 27, after being duly signed by Respondent , shall be
posted by it immediately upon receipt thereof and
maintained for 60 consecutive days thereafter in conspicu-
ous places , including all places where notices to employees
are customarily posted . Reasonable steps shall be taken by
Respondent to insure that said notices are not altered,
defaced , or covered by any other material.
(d) Notify the Regional Director for Region 27, in
writing , within 20 days from the date of this Order, what
steps it has taken to comply herewith.
IT IS FURTHER RECOMMENDED that the challenges to the
ballots of Stocker and Smith in Case 27-RC-4743 be
overruled and that their ballots be counted.
3 In the event that the Board 's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
601
WE WILL NOT discourage membership in or activity
on behalf of, Operating Engineers, Local Union No. 3,
or any other labor organization of our employees, by
discriminating in regard to hire or tenure of employ-
ment, or any term or condition thereof,
WE WILL offer John Stocker and Henry Smith, Jr.,
immediate and full reinstatement to their former jobs,
or if their jobs no longer exist, to substantially
equivalent positions, without prejudice to seniority or
other rights and privileges, and make them whole for
any loss of pay suffered by reason of the discrimination
against them in the manner provided for in the section
of this Decision entitled "The Remedy."
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees in the exercise of the
rights guaranteed under Section 7 of the National
Labor Relations Act.
All our employees are free to become or remain, or
refrain from becoming or remaining, members of the
above-named or any other labor organization.
LAKE SHORE, INC.