Lardner Elevator Co.

National Labor Relations Board - Board Decisions

Jun 26, 1972

197 N.L.R.B. 962 (N.L.R.B. 1972)

962 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Lardner Elevator Company and Local 36, Internation-
al Union of Elevator Constructors , AFL-CIO.
Case 7-CA-8961
June 26, 1972
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
PENELLO
On March 9, 1972, Trial Examiner David S.
Davidson issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief, and the Charging Party filed
a brief in support of the Decision.
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 Trial
Examiner's Decision in light of the exceptions and
briefs and has decided to affirm the Trial Examiner's
rulings, findings, and conclusions 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 Trial Examiner and hereby orders
that Respondent, Lardner Elevator Company, De-
troit Michigan, its officers, agents, successors, and
assigns shall take the action set forth in the Trial
Examiner's recommended Order.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
DAVID S. DAVIDSON, Trial Examiner: Pursuant to a
charge filed on September 16, 1971, and thereafter
amended on October 28, 1971, by Local 36, International
Union of Elevator Constructors, AFL-CIO, hereinafter
referred to as the Union, a complaint was issued on
October 29, 1971 The complaint alleges that Respondent
violated Section 8(a)(1) of the Act on June 25 and
September 28, 1971, by threatening employees with loss of
benefits and/or discharge unless they refrained from
engaging in activities on behalf of the Union and from
seeking its intercession with respect to complaints about
terms and conditions of employment. The complaint
further alleges that Respondent violated Section 8(a)(3) of
the Act by discharging Kenneth Cripps on June 25, 1971,
and by demoting and constructively discharging Virgil
Marshall on September 28, 1971, because of their activities
on behalf of the Union. Respondent in its answer denies
the commission of any unfair labor practices.
I All dates set forth h.-rein occurred in 1971 unless otherwise indicated
A hearing was held before me in Detroit, Michigan, on
January 10, 1972. At the conclusion of the hearing, oral
argument was heard and the parties were given leave to file
briefs A brief has been received from Respondent.
Upon the entire record in this case, and from my
observation of the witnesses and their demeanor, I make
the following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE RESPONDENT
Respondent, a Michigan corporation, maintains its office
and place of business in Detroit, Michigan, where it
engages in the installation and maintenance of elevators.
During the calendar year 1970, a representative period,
Respondent performed services valued in excess of
$500,000 and purchased goods and materials valued in
excess of $50,000 which were transported to its place of
business directly from points located outside the State of
Michigan. I find that Respondent is an employer engaged
in commerce within the meaning of the Act and that it will
effectuate the policies of the Act to assert jurisdiction
herein.
II THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of
the Act.
III THE ALLEGED UNFAIR LABOR PRACTICES
A Background
Respondent is a member of the National Elevator
Industry, Inc., an association of employers in the elevator
industry, which bargains on Respondent's behalf and has a
collective-bargaining agreement with the Union. Respon-
dent employs approximately 50 employees of whom
approximately 30 are covered by that agreement. The
agreement contains a union security clause which requires
employees covered by it to become members of the Union
after 30 days of employment. Respondent is permitted to
hire employees from any source, but the Union operates a
referral service, and Respondent has customarily hired its
employees upon referral from the Union.
B. The Alleged Discharge of Kenneth Cripps
1. The facts
Kenneth Cripps and Gordon Drew were referred to
Respondent for employment by the Union in May 1971.1
Cnpps was hired as a helper and Drew as a mechanic to
work as a team. At the time of their hire, Respondent's
President Bruce Lardner told them that he considered
them hired to work for All State Elevator Company, that
All State had some nonunion employees, and that he
wanted them to know of that fact beforehand. He told
them that Union Business Manager Mullett knew about it,
but had signed an agreement with All State the previous
day which would allow All State to hire union members in
197 NLRB No. 145
LARDNER ELEVATOR COMPANY 963
the area. He said that it was his opinion that they were
going to be working for All State and as union members if
they felt they could not work for All State it was up to
them to make the decision.2 During this conversation,
Lardner made some disparaging remarks about the
Union 3
Cripps and Drew were assigned to install a freight
elevator on a job known as the Stephenson Club job. One
morning early in June John Fleclsig, Respondent's
supervisor over construction, visited the job to check on its
progress. On that occasion, Drew told him that he had
called Union Business Manager Mullett to report that
inserts had been installed on the elevator before he arrived
at the jobsite. Flechsig told him that the call to Mullett was
not necessary and that he had enough aggravations Just
putting his jobs in without having any more aggravation
from the Union Flechsig told Drew that any time he
wanted to discuss anything, to discuss it with him and that
if they could not resolve it they should not be working
together. Flechsig later told Mullett what he had told
Drew .4 During this conversation with Drew, Flechsig made
some disparaging remarks about the Union.5
In the latter part of June, Lardner decided to lay off six
or seven employees and instructed Flechsig to notify them
of the layoff. The layoff was caused by a shortage of
materials and Respondent's desire to save the holiday pay
which would otherwise have been due the laid-off
employees for the 4th of July holiday 6 Cripps and Drew
were among the employees to be laid off.
At that time Cripps and Drew were assigned to a job
known as the Medicos Building and were finishing their
first week on that job. On Friday, June 25, between 11:15
and 11:30 a.m. Flechsig arrived at the jobsite to inform
them of the layoff. Flechsig told Cripps and Drew that they
would be laid off at the end of the day and that on July 5
they were to call Respondent's office to sne if there was
work available, explaining that they were not to report to
the shop at that time so as to eliminate any pay for showup
time if there was still no work available Cripps then
walked away from Flechsig and Drew without seeking
permission or indicating his intentions. Flechsig asked
Drew where Cripps was going. Drew said he did not know.
Flechsig continued to talk to Drew about the layoff.
In the meantime Cripps went to the telephone in the
general contractor's construction shack and called Mullett.
He told Mullett that he would be laid off at the end of the
day and asked Mullett to put him on the referral list for a
job if one came up in the meantime Cripps then returned
to the elevator installation site where Flechsig and Drew
were still talking Cripps estimated that he was absent from
that site for 3 or 4 minutes. Flechsig estimated his absence
at 10 minutes.
2 Lardner so testified Cripps' version of Lardner's statements about
working for All State and the employment of nonunion men differed Drew
did not testify Cripps' testimony in this regard appears to be a garbled
version of Lardner's, and I have credited Lardner's version of these
statements as more accurate
3 According to Cripps, Lardner told him that he disliked the Union and
had no use for it Lardner did not deny making these comments, and it is
apparent from Lardner's testimony otherwise and the record as a whole that
the relationship between Respondent and the Union was discordant
4 The findings are based on the testimony of Flechsig
5 Cripps testified that Flechsig said that the Union did not stand behind
Flechsig asked Cnpps where he went and if he called
Mullett Cripps said he had. Flechsig asked why he called
Mullett, and Cripps replied that he wanted to be the first
on the referral list. Flechsig told Cripps, "You are right
now," asked why he left in the middle of the conversation,
and told Cripps that he showed him no respect by leaving.
Cnpps said that he had not intended to show Flechsig any
disrespect, but that he had just wanted to inform Mullett
that he was laid off and wanted work. Flechsig again said
that Cripps had shown him no respect and that he could
send Cripps home right then if he wanted because Cripps
had left the jobsite. Cripps asked if he meant that he
wanted Cripps to leave right then. Flechsig said that he
did, and Cripps left.?
On July 5, Cripps called Flechsig and asked if there was
any work available. Flechsig asked him to wait while he
checked and then returned to the phone to tell Cripps that
there was nothing available. Cripps was not recalled by
Respondent thereafter and had no further contact with
Respondent.
2. Concluding findings
The complaint alleges that on June 25 Respondent
discharged Cripps and refused to reinstate him because of
his union activities. Respondent contends that Cnpps was
sent home because he left the worksite and that in any
event he was not discharged but was merely laid off several
hours earlier than he would have been laid off otherwise.
The evidence supports a finding that Cnpps was sent
home because he left the worksite to call Mullett and not
simply because he left the worksite without regard to the
nature of his mission. There was no rule against leaving the
jobsite to make a telephone call, and Flechsig had never
previously discharged an employee or sent an employee
home for disciplinary reasons. Although Cripps testified
that Mullett told him he could send him home for leaving
the jobsite, he also testified that Flechsig told him that it
was disrespectful for him to call Mullett and tell Mullett he
was laid off because Flechsig had told him to call back
after the 4th of July.
Flechsig's testimony is even, more revealing of his
motivation. On cross-examination, he testified that he told
Cnpps that he should not leave the jobsite to call anyone,
including Mullett, and that he did not need that kind of
agravation When asked why he asked Cnpps if he had
called Mullett, Flechsig testified, "Because I just stated on
the last job I didn't need that kind of aggravation, and now
here we are, from eight to four-thirty, and he walks out in
the middle of the conversation, don't even give me the
courtesy to let me finish the conversation, and just walks
away from me." Thus, Flechsig himself equated Cnpps'
its members and was not really for them Flechsig did deny making these
statements
6 Flechsig testified as to these reasons for the layoff' According to
Cripps, Flechsig only mentioned the desire to save holiday pay when he
notified him of the layoff However, in view of the number to be laid off, the
length of the layoff. and the fact that recall on July 5 was conditioned on
availability of work, I have accepted Flechsig's explanation In any event
the reason for initial decision to layoff these employees is not at issue
r The findings as to what Cripps and Flechsig said are based on a
composite of their testimony which is not in essential conflict
964 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
conduct with the kind of aggravation he had previously
told Drew he did not need. That kind of aggravation was
calling the Union about a problem instead of talking to
Flechsig about it. When Flechsig previously spoke to Drew
about it, he told him that if they could not resolve their
problems they should not be working together. Flechsig's
testimony leaves little doubt that it was the fact that Cripps
left to call Mullett which triggered his reaction, and not
simply the fact that Cripps left.
To be sure, Cripps did not call Mullett to complain
about the layoff and made clear to Flechsig the purpose of
his call. But Flechsig's hostile reaction stemmed from his
feeling that it was aggravation for Cripps to call Mullett.
Assuming that a call to Mullett to gain a place on the
referral list was not in itself union or protected concerted
activity, I cannot separate this incident from Flechsig's
earlier statement to Drew. I find that Flechsig's reaction to
Cripps' call did not stem from its narrow purpose but from
Flechsig's general hostility to calls by employees upon the
Union for help with their problems. Whatever the source of
Flechsig's feeling that resort to the Union was aggravating
to him, and there is indication in the background facts that
Respondent felt it had some legitimate grievances with the
Union,8 Respondent was not entitled to retaliate against
employees for seeking the aid of the Union.9
The question remains whether Cripps was discharged or
merely prematurely laid off. There is evidence in an
affidavit given by Respondent's President Lardner which
can be construed as an admission that Cripps was
discharged. Thus, Lardner stated that he fired Cnpps by
telling Flechsig that he approved the firing of Cripps.
Lardner testified at the hearing that the terminology in the
affidavit was supplied by the Board agent who took the
statement and that he did not object, but that he had no
conversation with Cnpps, merely approved what Flechsig
had done when Flechsig reported to him, and did not see
that it made much difference whether the word "fired" or
"laid off" was used.
The evidence otherwise sheds little direct light upon the
intended duration of Cripps' severance. Flechsig testified
that Cripps was not recalled on July 5 because Respon-
dent's jobs were still tied up for lack of materials, and no
contradictory evidence was offered. Lardner testified that
one of the other employees who was laid off did not return
to work for Respondent, and another did not return until
some time after July 5. The reasons were not explored.
After July 5, Cnpps did not contact Respondent, but
Respondent also did not contact Cripps. Eventually
Respondent hired additional employees, utilizing the
Union's referral service. Richard Egerer was hired in mid-
August as a helper, but the record does not indicate when
other employees were hired. The record also does not
indicate what, it anything, the union contract provided
8 As the charge in this case indicates , Respondent had filed a charge
against the Union which was dismissed
9 In support of its contention as to Flechsig' s motivation , Respondent
points to the fact that Flechsig took no action against Drew when he
complained to Mullett earlier and in fact rescinded the June 25 layoff of
Drew before it took effect upon finding available work for him . However, as
Flechsig testified, he had warned Drew earlier about taking problems to the
Union, and Drew later did nothing to indicate that he, unlike Cripps, had
failed to get the message Respondent also points to the fact that it
continued to use the Union 's referral service as evidence that it had no
with respect to recall of laid-off employees, or what
Respondent's practice may have been in this regard.
While more detailed evidence as to recall practices and
employment after the layoff might have made the matter
more clear, I have concluded that the evidence before me
warrants the inference that Flechsig intended to discharge
Cripps and was sufficient to shift to Respondent the
burden of showing otherwise. In the first place I do not
believe that Lardner's affidavit can be explained away by
the reasons advanced by Lardner in his testimony. Lardner
is president of Respondent and certainly was aware that
the charge was pending when he gave his statement. Even
assuming he attached little importance to the distinction
between the terms discharge and layoff, one would expect
that somewhere in his statement Lardner would have made
clear that Respondent intended to recall Cnpps when work
became available. Lardner' s statement was not placed in
evidence, but from the failure to show any mitigating
portion of the affidavit following Lardner's cross-examina-
tion with respect to it, it is reasonable to infer that the
statement is silent as to any expectation to recall Cripps.
Moreover, in assessing what Flechsig had in mind, one
cannot overlook his statement to Drew that if they could
not resolve problems without resort to the Union, they
should not be working together. As Flechsig equated
Cnpps' conduct on June 25 with the kind of aggravation he
referred to on the earlier occasion, it rray be inferred
Flechsig intended that he and Cnpps should no longer
work together and that Cripps be discharged. Furthermore,
while Flechsig testified that there was no work available for
Cripps on July 5, Cripps' call to Flechsig appears to have
resulted from Flechsig's instructions on June 25 before
Cripps made his call to Mullett, and on July 5 Flechsig said
nothing to Cripps about calling back again and made no
further effort to contact Cripps. Other employees did
return to work, and new employees were hired, including at
least one helper who was hired in mid-August. Finally,
there is also basis in the words used by Flechsig on June 25
to infer that Flechsig intended the severance as permanent.
Thus, when Cripps explained that he had called Mullett to
be first on the referral list, Flechsig said, "you are now,"
indicating that by his conduct Cripps had made himself
available for immediate employment and that Flechsig had
no further interest in him as an employee.
For these reasons, I find that Flechsig discharged Cripps
on June 25 in violation of Section 8(a)(3) and (1) of the
Act.10 I also find that Flechsig's statements to Cripps in the
presence of Drew on June 25 and his statements to Drew
earlier in June threatened employees with reprisal for
seeking the intercession of the Union and violated Section
8(a)(1) of the Act.
hostility to the Union . But its practice may simply reflect that experienced
employees were not otherwise to be found and does not refute the direct
evidence of hostility in Flechsig's testimony
10 This is not to say that Cnpps was entitled to continuous employment
by Respondent from June 25 on. It is clear that Cripps was slated for layoff
that afternoon before Flechsig visited the jobsite , and the only evidence
before me indicates that there was no work available for him on July 5.
When work would have become available for Cnpps absent the discnmina-
tion against him remains open as a question for•deternunation to the
compliance stage of this proceeding
LARDNER ELEVATOR COMPANY 965
C. The Alleged Constructive Discharge of Marshall
1. The facts
a. Respondent's use of temporary mechanics
On elevator installation jobs Respondent's employees
customarily work in teams of two, a mechanic and a
helper. Because of a shortage of licensed mechanics,
helpers at times work as temporary mechanics. Respondent
selects helpers whom it deems qualified and gets permis-
sion from the Union to use them as temporary mechanics.
When carrying a temporary mechanic's card, a helper is
paid a mechanic's rate of pay. To become a mechanic
permanently, a helper must be licensed by the city of
Detroit and pass a test administered by the Union.
Experience working as a temporary mechanic is of
assistance in becoming qualified as a permanent mechanic.
b. The employment of Virgil Marshall
Virgil Marshall started work for Respondent on referral
from the Union in mid-April 1969, as a helper. In February
1970 Marshall was made a temporary mechanic and
worked in that capacity from 4 to 6 months. Marshall was
not a licensed mechanic. During the period that he worked
as a temporary mechanic Marshall was paid mechanic's
wages and worked at various tasks. On a few jobs he
worked for a week or longer in traditional mechanic's
installation work. He was returned to the job of helper
after a disagreement with Respondent's President Lardner
over a problem which developed on a job. Flechsig testified
that during the period in 1970 when Marshall worked as a
temporary mechanic he did good work for his experience,
that his mechanical work was good, but that he made
mistakes in wiring which Respondent had to correct.
In mid-August 1971 Marshall was again made a
temporary mechanic and was assigned with helper Richard
Egerer to install a hydraulic freight elevator on a job
known as Vladimir's Catering.
Lardner testified that Marshall had not previously made
the grade as a temporary mechanic but that he felt that he
possibly could and that he also wanted to prove that
Respondent was an equal opportunity employer by
upgrading Marshall who was Black. Lardner initially
denied that he upgraded Marshall to give him more
experience and responsibility, but then confirmed that in
his affidavit given during the investigation of the case he
stated that he thought Marshall was capable, that he
needed a mechanic on the Vladimirjob, and that he made
him a temporary mechanic to give him more experience
and responsibility.
c. Marshall's and Egerer's complaints about
deficiencies in their pay
When Egerer received his pay for the first week on the
job, he noted that he was not reimbursed for zone expenses
as provided in the union contract . He spoke to Marshall
and later spoke to Mullett about it. When Marshall
submitted his time ticket the next week for the job, he
noted the deficiency in Egerer's pay for the previous week.
Egerer still did not receive his expenses and the following
week, Marshall spoke to Lardner about it. He continued to
note the deficiency on his time tickets through the week
ending September 24.11
When Marshall received his paycheck for the week
ending September 10, he noted that he had been paid at a
helper's rate rather then at the higher mechanic 's rate for
the Labor Day holiday which fell on Monday of that week.
He called Respondent's office and spoke to the timekeeper,
who told Marshall that she had followed her regular
practice in paying him for holidays. Marshall then spoke to
Lardner. Lardner said that if the timekeeper had followed
her regular practice he had no objection and told Marshall
to let him know if Marshall had any further questions
about it. Marshall said he did not approve, and noted the
deficiency on his time ticket for the next week.12
Thereafter, Marshall called Mullett and told him that he
believed he had been improperly paid for the Labor Day
holiday. Mullett told Marshall he was entitled to mechan-
ic's pay for the holiday and that he would speak to Lardner
about it.13 It appears that Marshall raised the matter with
Mullett around September 20.14
Thereafter , Mullett raised the matter with Lardner in a
telephone conversation. Lardner told him that the book-
keeper had interpreted the contract to provide that
Marshall be paid at the helper 's rate and defended her
interpretation, but then agreed to pay Marshall at the
higher mechanic's rate. Mullett asked when he would pay
Marshall , and Lardner said that he would check the facts
to verify what happened when he got around to it and
would correct it.15
11 According to Lardner , he was not aware of any conversation with
Mullett about Egerer's expenses , and Mullett did not testify concerning
Egerer's complaint
12 According to Marshall , he noted the deficiency on his time tickets for
the next 3 weeks, but his time tickets in evidence show that he noted the
deficiency only on the time ticket for the week ending September 17
13 Marshall so testified Mullett testified that he initially told Marshall to
let him know if he did not get paid and that he would contact Lardner
Although Mullett testified that he did not initiate contact with Lardner for
the purpose of discussing this matter until Marshall later told him at a union
meeting that he had not received the pay, he also testified that he raised the
matter with Lardner in the course of an earlier conversation As set forth
below , I do not credit Mullett's testimony as to his alleged second
conversation with Lardner I have credited Marshall's version of his
conversation with Mullett
14 The evidence is not entirely clear as to when the various conversations
involved occurred Marshall testified that he spoke to Mullett after he noted
the deficiency on his time ticket for the second time, but, as set forth, the
time tickets show that he noted it only once on the time ticket for the week
ending September 17 Mullett testified that Marshall first called him on
September 20 Although that date was first mentioned by counsel in his
question , Mullett also testified that it was a Monday, which is the day of the
week on which September 20 fell Lardner's testimony was of little help in
pinpointing the date of Mullett 's call to him in view of the fact that
Marshall noted the deficiency on his time ticket for the week ending
September 17 and spoke to Lardner sometime during that week, I find that
Marshall spoke to Mullett around September 20
15 Lardner so testified Mullett initially testified that he called Lardner
on September 28 between 9 30 and 10 am and raised the matter of
Marshall's holiday pay According to Mullett , Lardner said there must have
been some bookkeeping error, that he did not need that kind of aggravation,
but that he would check on it and see that Marshall got paid Mullett
testified that Lardner also said that if he was going to pay Marshall he
didn't need him as a temporary mechanic any longer, that he had problems
previously, that he didn' t need anyone who was going to be calling the
union hall about his pay According to Mullett, he replied , "Bruce you can
do anything you want with temporary mechanics . It is management's
prerogative whether they stay as temporary mechanics or not It is not mine
(Continued)
966 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
d. The removal of Marshall and Egerer from the
Vladimir job and Marshall's decision to quit
On the morning of September 28 around 8:30 a.m.16 one
of Respondent's truckdrivers came to the Vladimir jobsite
where Marshall and Egerer were working and told them
that Lardner wanted them to load all the unused materials
in the truck, that they were to return to the shop, and that
Lardner had another job for them to do. Marshall and
Egerer drove back to the shop and went to Lardner's
off ice.
Lardner told Marshall that he had given him a big
opportunity, that he had done him a favor by letting him
work as a temporary mechanic, that Marshall did not have
to call the union hall to complain about the deficiency in
his holiday pay, that Marshall had betrayed his trust, and
that Lardner did not know why he did a thing like that.
Lardner told Marshall that he was being restored to
helper's job, that as long as he worked for Respondent he
would never work as a temporary mechanic again, and that
Lardner did not care whether Marshall worked for him or
not. In the course of his remarks, Lardner also said that the
job was a few days behind schedule but that he had left
Marshall on it anyway. Marshall attempted to speak but
was essentially unable to get a word in. At the conclusion
of Lardner's remarks, he told Marshall to go to the shop
and help the shop employees. Marshall went to the shop
where he started to help load a truck.
After Marshall left the office, Lardner told Egerer that
he was going to "goof" himself out of a good job too, that
he would probably like it better working for someone else,
and that he would get his expenses he had not been paid
for his first week on the job. Lardner said that Egerer was
not fired yet and Egerer left to work in the shop.
Marshall worked in the shop for a while and then
decided to make out his time ticket and quit. He took his
time ticket to Lardner's office, and told him he was
quitting. According to Lardner he said he was sorry but
that it was Marshall's choice, and he asked Marshall if he
was sure he wanted to quit. Marshall said yes and left.
Marshall testified that he decided to quit because he had
no chance for advancement and his holiday pay had been
tampered with.
The findings above as to what Lardner said to Marshall
and Egerer are based on a composite of the testimony of
Marshall and Egerer whom I have credited. While there
are some variances in their testimony, they are not
substantial and are of the kind which often occur when two
witnesses to a conversation later attempt to restate it.
Although Respondent contends that there was a material
omission in Marshall's version of Lardner s remarks set
forth in Marshall's affidavit, the statement allegedly
omitted appears at the end of the affidavit, and the
affidavit is consistent with Marshall's testimony.
In assessing the credibility of Marshall and Egerer I
cannot ignore that Flechsig's testimony as to his own
remarks to Cripps, Drew, and Mullett several months
before displayed hostility to any complaints by employees
to the Union and questioned the suitability for employ-
ment of any employee who took his problems to the
Union. In that context the version of Marshall and Egerer
sounds anything but farfetched, and there is little inherent
cause in their testimony to reject it.
While Lardner gave a substantially different version of
what he told Marshall, there are aspects of his testimony
which cast substantial doubt upon its accuracy. Lardner
testified that he called Marshall and Egerer to the office,
"so I could talk to them and find out what was going on"
He testified further that "Through the conversation with
[Marshall] I felt he had too much time on this job, and he
couldn't tell me when it was going to be ready to run. He
indicated he was having problems, but he didn't know
what his problems were, so he couldn't solve them-if he
couldn't solve them, there was no point-I just felt in the
interest of the company in getting the job done, I had to
make this change." Yet nothing in Lardner's version of his
conversation with Marshall on September 28 indicates that
he made any effort to find out what was going on, when
the job was going to be ready, or what Marshall's problems
were. Rather his version, like Marshall's, gives every
indication that he had decided to remove Marshall from
the job before he spoke with him. Moreover, although
Lardner denied that his action was caused by Marshall's
efforts to collect his holiday pay, unaccountably when
asked whether, when Marshall and Egerer were in his
office, he mentioned any telephone calls to Mullett,
Lardner, quickly replied that he did not recall. I am
skeptical that this was a matter Lardner would not recall in
the circumstances of this case. In addition, Lardner
impressed me on several occasions as succumbing to the
temptation of a witness with a strong interest in a case to
argue the case in his testimony and to shape his testimony
to fit his case. This was particularly notable in the
testimony quoted above in this paragraph and in Lardner's
efforts, contrary to his affidavit, to convey that Marshall's
assignment as a temporary mechanic was not for the
purpose of giving him more experience and responsibility
and that he had upgraded Marshall in spite of doubts as to
his qualifications.
If he doesn ' t wish to be a temporary mechanic, that 's fine" Mullett also
testified that he had an earlier brief conversation with Lardner the previous
week in which Lardner did not concede liability and that the second
conversation was prompted by a statement from Marshall at a union
meeting that he had not yet received his pay Although Lardner did not
testify as to the time of his conversation with Mullett , except that it occurred
before Marshall quit , there is substantial reason to doubt Mullett's version
The date of the union meeting was not established , and Marshall did not
testify that he made a further request that Mullett speak with Lardner at
that time Moreover, while in Mullett's version there are echoes of
statements made by Flechsig in his testimony at the hearing and I note that
Mullett testified before Flechsig , I find it highly improbable that Mullett
only 10 days after the charge in this case was filed would have blandly told
Lardner that he had the right to remove Marshall as a temporary mechanic
because he called the Union to complain about his pay Mullett also
strained credulity with his denial that he reviewed his testimony with
anyone before testifying I have not credited Mullett as to his conversation
with Lardner
16 I have accepted this as the time although it was supplied in a question
to Marshall It is consistent with Marshall' s time ticket which shows that he
worked I hour on that day and the indication in Flechsig's testimony that
the workday was from 8 to 4 30 I also note that the replacement for
Marshall on thejob showed 8 hours on thejob that day
LARDNER ELEVATOR COMPANY 967
2. Concluding findings
The General Counsel contends that Marshall was
removed from the Vladimir fob and told he would never
work again as a temporary mechanic because of his
complaint to Mullett about his holiday pay and that these
actions amounted to a constructive discharge of Marshall.
The findings as to Lardner's statements to Marshall on
September 28 support an inference that Marshall's removal
from the Vladimir job was motivated by Lardner's
resentment of his efforts to obtain additional holiday pay
and also that the restriction on Marshall's future prospects
was similarly motivated. Particularly in the light of
Flechsig's testimony as to his statements to Drew, Cripps,
and Mullett, there is sufficient evidence to establish a prima
facie case as to Lardner's motivation and to shift to
Respondent the burden of establishing that Marshall was
removed for other reasons.
Apart from the discredited denials of Lardner as to what
Marshall was told, Respondent defends on the ground that
Marshall was removed because he failed to call Lardner on
July 24 to let him know whether the job was ready for
inspection, because he took longer to complete the job than
Respondent expected, because he did not plan well for his
material needs, and because he had problems with portions
of the job with which he should have been familiar.
The evidence as to the first two of these reasons rests
almost entirely on the testimony of Lardner. Although
Lardner testified that during the previous week he had
instructed Marshall to call him by Friday, July 24, if the
elevator was not ready for inspection, Marshall denied
receiving these instructions. Flechsig, who was supervisor
over construction and visited the job from two to four
times a week testified that when he last visited the jobsite
the previous week, he thought that there was about 2 days'
work left and that it would be finished by Friday.
However, he did not indicate that he was aware that
Marshall was to call Lardner on that day if the elevator
was not ready for inspection.
Lardner also testified that he had expected thejob to be
completed in 3 to 4 weeks. However, Flechsig testified that
he expected the job to take from 5 to 6 weeks. Marshall
testified that he was never told how long the job was
expected to take, and there is no evidence that Lardner or
Flechsig conveyed their expectations to him.
There is no dispute that Marshall encountered some
difficulties with the job, and Flechsig testified that some of
them were understood and tolerated because of Marshall's
limited experience. However, Flechsig testified that other
problems occurred in areas with which Marshall should
have been familiar .. In that category, Flechsig mentioned
piping up the piston, and installing the piston and the
wiring of the elevator. Flechsig and Lardner both testified
that Marshall showed lack of foresight in planning the job
so as to order sufficient material in advance of his needs
and to utilize materials already on the job in crates.
Although Marshall denied that Lardner spoke to Marshall
about planning the job better, Lardner and Flechsig both
testified that they spoke to Marshall about this.
Flechsig impressed me generally as forthright in testify-
ing as to conversations and events, and I have credited him
as to his observations with respect to Marshall's work.
However, while Marshall may not have performed up to
expectations in all respects, I do not credit Lardner that it
was his dissatisfaction with Marshall's work and Marshall's
alleged failure to call him the previous Friday which led
him to remove Marshall from the job. Lardner's estimate
of the time required to complete the job was not supported
by Flechsig, and indeed, Marshall had only just gone
beyond Flechsig's estimate of the time needed for the job.
At the time that Marshall was removed from the job,
neither Lardner nor Flechsig knew how much work
remained and both apparently believed it was virtually
completed.17 Yet before removing Marshall from the job,
Lardner did not send Flechsig to the site and made no
effort to determine its status. Indeed Lardner did not even
consult with Flechsig before deciding to remove Marshall.
Although one would at the least have expected Lardner to
ask Marshall where the job stood before removing him,
and Lardner in testimony quoted above sought to convey
that he called Marshall in for the purpose, even Lardner's
version of the conversation with Marshall on September 28
shows that the decision to remove Marshall was made
before Marshall entered his office. Bearing in mind
Lardner's stated reasons for assigning Marshall as a
temporary mechanic and Marshall's lack of experience on
jobs of the duration and scope of the Vladimir job, it is
difficult to believe that Lardner removed Marshall because
of his alleged shortcomings without first learning the state
of the job or consulting Flechsig, the supervisor who
regularly visited the job and had observed Marshall's work.
Accordingly, I do not credit Lardner as to the reasons
advanced by him for removing Marshall from the Vladimir
job.
In sum, while Marshall's performance may not have
measured up fully to Lardner's and Flechsig's expectations,
he was not a qualified mechanic, his prior experience with
Respondent as a temporary mechanic was limited to jobs
of shorter duration and did not include all aspects of the
Vladimir job, and Lardner removed him from the job
without ascertaining the state of thejob or consulting with
Flechsig who was most familiar with it. I have credited
Marshall and Egerer as to what Lardner said when he
removed them from the job, and I find, as reflected by
Lardner's statements to Marshall on September 28, that he
was removed from his assignment as temporary mechanic
on the Vladimir job because of Lardner's displeasure with
him for having complained to Mullett about his pay after
Lardner had done what he viewed as a favor to Marshall in
making him a temporary mechanic on that job.
I find further that Lardner by his conduct constructively
discharged Marshall. Lardner told Marshall that he would
never again work as a temporary mechanic for Respondent
and also expressed the view that he did not care if Marshall
worked for him or not. The difference in pay between a
helper and mechanic was substantial. By his statements
Lardner not only informed Marshall that his pay with
17 Although it was later discovered that there were mistakes in the wiring Lardner was aware of the mistakes at the time Marshall was removed from
which necessitated rewiring portions of the job, neither Flechsig nor thejob
968 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent in the future would be limited to helper's pay,
but also put him on notice that he would be unable with
Respondent to get the working experience which would
assist him in any future efforts to become a permanent
mechanic. In these circumstances I find that Marshall quit
as a result of the discrimination against him in removing
him from the Vladimir job and the threat of continued
discrimination as long as he worked for Respondent.
Accordingly, I find that Respondent violated Section
8(a)(3) and (1) of the Act by removing Marshall from the
job of temporary mechanic and constructively discharging
Marshall because he sought the assistance of the Union in
pressing his claim for additional holiday pay. I also find
that Lardner's statements to Marshall in his office on
September 28 in the presence of Egerer independently
threatened reprisal for seeking assistance from the Union
and violated Section 8(a)(1) of the Act.i8
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent set forth m'section III,
above, occurring in connection with the operations
described in section I, above, 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.
V. THE REMEDY
Having found that Respondent violated Section 8(a)(1)
and (3) of the Act, I shall recommend that it cease and
desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act.
As I have found that Respondent discriminatorily
discharged Kenneth Cripps on June 25, 1971, and demoted
and constructively discharged Virgil Marshall on Septem-
ber 28, 1971, I shall recommend that Respondent be
ordered to offer them immediate and full reinstatement to
their former jobs or, if those jobs no longer exist, to
substantially equivalent positions without prejudice to their
seniority or other rights and privileges, and to make them
whole for any losses of earnings they may have suffered by
payment to them of the amounts they normally would have
earned as wages from the dates of their discharges to the
dates of offers of reinstatement, less net earnings, to which
shall be added interest at the rate of 6 percent per annum,
in accordance with the formula set forth in F. W
Woolworth Company, 90 NLRB 289, and Isis Plumbing &
Heating Co, 138 NLRB 716.
CONCLUSIONS OF LAW
1. Lardner Elevator Company is an employer engaged
in commerce within the meaning of Section 2(2), (6), and
(7) of the Act.
18 It is not clear whether the General Counsel also contends that
Lardner's separate statements to Egerer on September 28 violated Sec
8(a)(1) of the Act However, there is no evidence that Lardner knew of
Egerer's complaint to Mullett about his expenses, and I find the evidence
insufficient to establish a separate violation in these statements
19 In the event no exceptions are filed as provided by Sec 102 46 of the.
2. Local 36, International Union of Elevator Construc-
tors, AFL-CIO, is a labor organization within the meaning
of Section 2(5) of the Act.
3. By threatening employees with reprisals for seeking
the assistance of their union, and by discharging Kenneth
Cnpps on June 25, 1971, and demoting and constructively
discharging Virgil Marshall on September 28, 1971,
because of their union activities, Respondent has engaged
in and is engaging in unfair labor practices affecting
commerce within the meaning of Sections 8(a)(1) and (3)
and 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: is
ORDER
Respondent Lardner Elevator Company, its officers,
agents, successors , and assigns , shall:
1. Cease and desist from:
(a) Threatening employees with reprisals if they seek
assistance from Local 36, International Union of Elevator
Constructors , AFL-CIO.
(b) Discouraging membership in Local 36, International
Union of Elevator Constructors , AFL-CIO, or any other
labor organization , by discrimination against its employees
in regard to their hire or tenure of employment or any term
or condition of their employment.
(c) In any other manner interfering with , restraining, or
coercing its employees in their rights to self-organization,
to form labor organizations , to join or assist Local 36,
International Union of Elevator Constructors , AFL-CIO,
or any other labor organization, to bargain collectively
through representatives of their own choosing, and to
engage in any other concerted activities for the purpose of
collective bargaining or other mutual aid or protection, or
to refrain from any or all such activities , except to the
extent that such rights may be affected by an agreement
requiring membership in a labor organization as author-
ized by Section 8(a)(3) of the Act.
2 Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Offer Kenneth Cripps and Virgil Marshall immediate
and full reinstatement to their former jobs or, if those jobs
no longer exist, to substantially equivalent positions,
without prejudice to their seniority or other rights or
privileges, and make them whole for any losses of pay that
they may have suffered by reason of the discrimination
against them in the manner set forth in the section of the
Decision above entitled "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 , timecards,
personnel records and reports, and all other records
necessary to analyze the amount of backpay due under the
terms of this recommended Order.
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
LARDNER ELEVATOR COMPANY
(c) Notify immediately the above-named individuals, if
presently serving in the Armed Forces of the United States,
of the right to full reinstatement, upon application after
discharge from the Armed Forces, in accordance with the
Selective Service Act and the Universal Military Training
and Service Act.
(d) Post at its Detroit, Michigan, place of business copies
of the attached notice marked "Appendix." 20 Copies of
said notice, on forms provided by the Regional Director
for Region 7, after being duly signed by Respondent's
authorized representative, shall be posted by the Respon-
dent 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. Reasonable steps shall be taken by
Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(e) Notify the Regional Director for Region 7, in writing,
within 20 days from the date of the receipt of this Decision,
what steps the Respondent has taken to comply herewith.21
20 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 be changed to read
"Posted pursuant to a Judgment of the United States Court of Appeals
enforcing an Order of the National Labor Relations Board "
21 In the event that this recommended Order is adopted by the Board
after exceptions have been filed , this provision shall be modified to read
"Notify the Regional Director for Region 7, in writing , within 20 days from
the date of this Order, what steps the Respondent has taken to comply
herewith "
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT threaten our employees with reprisals
for seeking assistance from Local 36, International
Union of Elevator Constructors, AFL-CIO.
WE WILL NOT discharge, demote, or otherwise
discriminate against employees in order to discourage
membership in Local 36, International Union of
Elevator Constructors, AFL-CIO, or any other labor
organization.
969
WE WILL offer Kenneth Cripps and Virgil Marshall
immediate and full reinstatement to their former jobs
or, if these jobs no longer exist, to substantially
equivalent positions, without loss of seniority or other
rights or privileges, and we will make them whole for
any pay they lost because of the discrimination against
them , with interest.
WE WILL NOT in any other manner interfere with,
restrain, or coerce our employees in the exercise of their
right to self-organization, to form labor organizations,
to join or assist Local 36, International Union of
Elevator Constructors, AFL-CIO, or any other labor
organization, to bargain collectively through represent-
atives 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 or all such activities, except to the
extent that such rights may be affected by an
agreement requiring membership in a labor organiza-
tion as authorized by Section 8(a)(3) of the Act.
Dated By
LARDNER ELEVATOR
COMPANY
(Employer)
(Representative ) (Title)
We will notify immediately the above-named individuals, if
presently serving in the Armed Forces of the United States,
of the right to full reinstatement , upon application after
discharge from the Armed Forces, in accordance with the
Selective Service Act and the Universal Military Training
and Service Act.
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material.
Any questions concerning this notice or compliance with
its provisions may be directed to the Board's Office, 500
Book Building, 1249 Washington Boulevard, Detroit,
Michigan 48226, Telephone 313-226-3200.