Mechanics Laundry and Supply, Inc.

National Labor Relations Board - Board Decisions

Jan 26, 1979

240 N.L.R.B. 302 (N.L.R.B. 1979)

302 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Mechanics Laundry and Supply, Inc. of Indiana and
Laundry and Dry Cleaning Local Union 3017,
AFL-CIO. Case 25-CA-9261
January 26, 1979
DECISION AND ORDER
BY MEMBERS PENELLO, MURPHY. AND TRUESDALE
On February 7, 1978, Administrative Law Judge
Norman Zankel issued the attached Decision in this
proceeding. Thereafter, the General Counsel and
Charging Party filed exceptions and supporting
briefs, and Respondent filed a brief in response to
General Counsel and Charging Party's exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge only to
the extent consistent herewith.
The Administrative Law Judge found that the
General Counsel had failed to establish that Respon-
dent refused to authorize overtime work for employ-
ee Donald Munden, Sr., on and after March 23,
1977, because of Munden's union activities. Accord-
ingly, the Administrative Law Judge recommended
dismissal of the complaint. In finding no violation,
the Administrative Law Judge concluded that the
General Counsel had produced no evidence showing
that Respondent had engaged in any improper con-
duct in the 6-month 10(b) limitations period preced-
ing the filing of the charge on September 14, 1977.
Rather, the Administrative Law Judge found that
Respondent's denial of overtime to Munden during
the 10(b) period was the direct result of Munden's
November 1976 transfer to the body shop and that
the legality of that transfer was no longer subject to
Board scrutiny as it had occurred outside the 10(b)
period. The Administrative Law Judge further con-
cluded that the only possible evidence of union ani-
mus offered in support of the complaint also had oc-
curred in November 1976, and therefore was also
outside the scope of Board inquiry, citing Local
Lodge No. 1424, International Association of Machin-
ists, AFL-CIO, et al. [Bryan Manufacturing Compa-
ny] v. N.L.R.B., 362 U.S. 411 (1960), in support of
these conclusions. Additionally, the Administrative
Law Judge found that certain comments made by
Respondent's Garage Superintendent Kersey in No-
vember 1976 could not be used as an indicator of the
240 NLRB No. 40
reasons for Respondent's denial of overtime to Mun-
den because Kersey had retired as Respondent's ga-
rage superintendent when overtime was denied to
Munden. Finally, the Administrative Law Judge
found no affirmative evidence to rebut Respondent's
argument that Munden's loss of overtime was a di-
rect result of his job reassignment. We disagree with
the Administrative Law Judge's conclusions for the
reasons explained below, and accordingly we reverse
and find the violation alleged.
Respondent is engaged in the business of provid-
ing commercial laundry services. To service its fleet
of trucks and autos, it operates a garage where it
maintains and services approximately 80 vehicles,
some of which are owned by other corporations. The
garage is divided into two separate work areas-a
mechanical area and a body shop. Until November
1976, there was only one job classification in the ga-
rage, that of "garage employee." There were six non-
supervisory "garage employees" and two supervisors
in the garage.
Donald Munden was hired by Respondent in May
1969 and, during all relevant times, was Respon-
dent's senior garage employee. Munden had also
been a member of Charging Party since his hire.
Charging Party had represented Respondent's laun-
dr' and garage employees for many years preceding
the instant proceeding. Munden became active in the
Union's affairs in September 1976 when he spear-
headed a campaign to oust the business agent then
servicing Respondent's garage employees. In No-
vember 1976, Munden was elected by the garage em-
ployees as the sole representative on the Union's ne-
gotiating committee.
At various times during November 1976, the ga-
rage employees discussed the possibility that Re-
spondent's truckdrivers, who were represented by a
Teamsters local, might engage in a strike and talked
about what effect that might have on unit employees.
During one of these discussions, Munden comment-
ed that he would not honor a Teamsters picket line
as the Teamsters had crossed Charging Party's picket
line during a previous strike.' Garage employee De-
maree then stated to Munden that if the laundry and
garage employees went out on strike, he would cross
the picket line. Munden replied that if Demaree did,
Munden would break Demaree's "God damn jaw."
The Administrative Law Judge credited Plant Man-
ager Denton that because of this and other like inci-
dents of profanity and physical threats, Denton de-
cided to suspend Munden for 3 days and to change
his job classification to "body shop man" exclusively,
I In his recitation of the facts. the Administrative an Judge attributed
this comment to garage employee Kevin )emaree. Examination of the rec-
ord. however, indicates that NMunden. not Demaree. made this statement.
MECHANICS LAUNDRY AND SUPPLY 303
thereby restricting Munden's work solely to the body
shop. Prior to this time. Munden had worked as both
a mechanic and a bodyman but he now became the
sole employee assigned to the body shop. Pertinently,
when Denton notified Munden of his job change, he
also complained that Munden had "got all this crap
started up about the Union again."
Thereafter, then-Garage Superintendent Kersey
notified Munden of his 3-day suspension. Kersey
told Munden that he wanted him to keep his mouth
shut, and that he "got all this stuff started over the
Union again." Kersey then asked Munden whether
he was working for the Union or for him and told
Munden that he would close the body shop and send
all the work out, and that he would get rid of Mun-
den "one way or the other." Kersey also said that he
had been trying to eliminate the Union for 5 or 6
years in order to obtain greater benefits for the em-
ployees and that Munden had "messed up ev-
erything."
Notwithstanding his assignment to the body shop,
during the months of November 1976 to March 1977,
Munden was called upon to perform mechanical
work outside the body shop on both a regular and an
overtime basis. Respondent contends that the me-
chanical work performed by Munden during this pe-
riod was solely emergency service caused by severe
winter conditions.2 During this period, Munden
worked a total of 34-1/2 hours of overtime.3
Also during this period, contract negotiations com-
menced between Charging Party and Respondent
and bargaining sessions were held throughout Janu-
ary March 1977. Munden attended every session.
Negotiations stalled and, on March 10, 1977, Charg-
ing Party struck Respondent. The strike lasted until
March 23, and Munden, who served as a picket cap-
tain, was the sole garage employee to remain on
strike for its duration.
The gravamen of the complaint is that after
Munden's return from the strike. Respondent denied
him available overtime for proscribed reasons. Over-
time was authorized for the garage employees in June
1977. The work involved mechanical work and Mun-
den asked to be allowed to perform some of it. Re-
spondent refused because it contended that Munden
was assigned strictly to the body shop and he would
be asked to do overtime work there only. With re-
gard to the body shop, Munden was first offered
overtime there in September 1977, after the instant
charge was filed. He never did perform any mechani-
cal overtime work.
2 For purposes of this decision, we assume that Munden's work was of an
emergency nature although General Counsel argues otherwise.
tpon examination of the record, we find that the Administrative Lasw
Judge erroneously concluded that Munden did not perform overtime work
during he penodl covering November 1976 March 1977.
Citing Bryan Manufacturing, supra, the Adminis-
trative Law Judge found that Respondent's refusal to
authorize overtime for Munden was the direct result
of his November 1976 transfer to the body shop,
which transfer occurred outside the 10(b) period and
the legality of which could not be challenged in this
proceeding. We agree that the legality of that transfer
cannot be litigated here. The Administrative Law
Judge also concluded that, based on Bryan Manufac-
turing, there was "a failure of necessary proof to wit:
the ingredient of union hostility" in the record. We
disagree with this latter conclusion.
In Bryan Manufacturing, the employer and union
entered into a collective-bargaining agreement at a
time when the union did not enjoy majority status.
Approximately I year after the execution of the
agreement, unfair labor practice charges were filed,
alleging that continued adherence to the contract
was unlawful because the union lacked majority sup-
port when the contract was consummated. The Su-
preme Court found that inasmuch as the question of
the union's status at the time of the execution of the
contract was critical to the finding of a violation, and
as that event had occurred outside the 10(b) limita-
tions period so that the Board could not pass on the
alleged illegality of that underlying event, the com-
plaint could not stand. Accordingly, the Court or-
dered that the complaint be dismissed. In so doing,
however, the Court held that evidence of conduct oc-
curring more than 6 months before charges are filed
could be relied upon as background evidence to shed
light on allegedly unlawful conduct occurring during
the 10(b) period. It is this second portion of Bryan
Manufacturing that the Administrative Law Judge
misconstrued in concluding that there was no evi-
dence of "union hostility" in the record.
Unlike the Administrative Law Judge, we rely on
the November 1976 antiunion comments by Denton
and Kersey as background evidence to shed light on
Respondent's conduct during the 10(b) period in re-
fusing to authorize overtime for Munden after the
termination of the strike. Thus, Munden was the only
employee who supported the strike to the end by re-
maining out of work for its duration. He also was the
only employee to whom overtime work was not as-
signed, although he was the only employee who regu-
larly requested it. Viewed in the light of Respon-
dent's past expressed hostility to Munden's union
activities, as reflected in those comments, we con-
clude, for reasons fully explicated below, that Re-
spondent's refusal to authorize overtime for Munden
was based on his union activities; namely, supporting
the strike, which occurred within the 10(b) period.
Denton's and Kersey's comments to Munden
clearly evidenced that Respondent was hostile to his
304 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
union activities. Munden's unrefuted testimony dem-
onstrates that Kersey threatened to discharge him
because his activities on behalf of the Charging
Party had interfered with Kersey's attempts to elimi-
nate the Charging Party from the facility. Denton's
comments, uttered a few days earlier, revealed simi-
lar resentment toward Munden's union activities. We
find these statements to be clear and unequivocal ev-
idence of union animus which must be borne in mind
when considering Respondent's treatment of Mun-
den regarding overtime following his participation in
the March strike. It is clear from such statements that
Respondent had disdain for Munden's union activi-
ties and that in the future it would not look kindly on
Munden's engaging in such activities. In refusing to
put any reliance on those comments, the Administra-
tive Law Judge not only relied on his erroneous view
of Bryan Manufacturing, but also noted with regard
to Kersey that he had retired and thus had "ceased
his supervisory functions" on January 1, 1977, some-
time before Respondent's refusal to permit Munden
to perform overtime work. We reject the Administra-
tive Law Judge's finding that Kersey's comments
could not be relied on as background evidence of
union animus as the pivotal question here concerns
Kersey's status at the time he allegedly made the re-
marks; any subsequent change in his status would
not affect that determination. As Kersey was admit-
tedly a supervisor at the time in question, his com-
ments are properly attributable to Respondent as
showing background animus.5
During the winter of 1976-77, subsequent to
Munden's assignment to the body shop, he per-
formed mechanical work on what Respondent called
an "emergency" basis. This included overtime work.
However, when, in June 1977, Respondent was con-
fronted with an additional 40 trucka for service and
maintenance and attempted to meet its need for in-
creased man-hours by authorizing virtually unlimited
overtime for all garage employees, it denied
Munden's request for this type of overtime while
conceding that he was a qualified mechanic who was
more than capable of performing the required me-
chanical work. Respondent's only reason for denying
this request for mechanical overtime was Munden's
assignment to the body shop. Contrary to Respon-
dent, we are unable to discern any distinction be-
tween the "emergency" conditions occurring during
the winter of 1976-77, when Munden performed
overtime though assigned to the body shop, and con-
4 In this regard, we further note that while Kersey ceased performing
supervisory duties as of January 1, 1977, he nonetheless was retained by
Respondent in an undefined capacity after that date.
Moreover, we note that Denton, who expressed similar antiunion senti-
ments in his November 1976 conversation with Munden, was admittedly a
supervisor during all the events giving rise to this proceeding.
ditions in June 1977 which would justify
Respondent's decision to permit Munden to perform
mechanical work, on both a regular and an overtime
basis, during the former and not during the latter
period. Consequently, we conclude that
Respondent's stated reason for denying Munden
overtime outside the body shop is without merit. The
only apparent remaining basis for Respondent's shift
of position regarding the authorization of mechanical
overtime work for Munden, therefore, is Munden's
participation in an intervening event;6 i.e., the March
1977 strike. Thus, as noted previously unlike the
other employees, Munden supported the strike to the
end and thereafter only he among them was denied
overtime.
Furthermore, with respect to overtime in the body
shop itself, we note that an agent of Respondent, in
response to a question of whether overtime existed in
the body shop after March 1977, testified that there
had always been plenty of work available there. This
same witness could offer no explanation why, if such
work was available, Munden was not offered the op-
portunity to perform it.
Under all these circumstances, we reject
Respondent's defense that the refusal to authorize
overtime for Munden was based solely on his No-
vember 1976 assignment to the body shop in view of
the facts (I) that he had been permitted to perform
mechanical overtime work during the months pre-
ceding the strike, while assigned to the body shop;
and (2) that body shop overtime work had always
been available. Accordingly, since Respondent's
openly expressed animus toward Munden for his
union activities provides the only plausible reason for
its refusal to afford him the opportunity to work
overtime, we find that the disparate treatment ac-
corded Munden in denying him the opportunity to
work overtime as alleged in the complaint was the
direct result of his union activity during the 10(b)
period-i.e., his participation in the March 1977
strike-and therefore was in violation of Section
8(a)(3) and (1) of the Act.7
CONCLUSIONS OF LAW
1. Mechanics Laundry and Supply, Inc. of Indi-
ana, 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. Laundry and Dry Cleaning Local Union 3017,
AFL-CIO is, and at all times material herein has
been, a labor organization within the meaning of
Section 2(5) of the Act.
6See N.L.R.B, v. Melrose Processing Co., 351 F.2d 693, 698-699 (8th Cir.
1965).
7See, e.g.. N.L.R.B. v. Melrose Processing Co., supra
MECHANICS LAUNDRY AND SUPPLY 305
3. By denying Donald Munden, Sr., the opportu-
nity to work overtime in order to discourage mem-
bership in Laundry and Dry Cleaning Local Union
3017, AFL-CIO, Respondent has engaged, and is en-
gaging, in unfair labor practices within the meaning
of Section 8(a)(3) and (1) of the Act.
4. The aforesaid unfair labor practices affect com-
merce within the meaning of Section 2(6) and (7) of
the Act.
THE REMEDY
Having found that Respondent has violated Sec-
tion 8(a)(3) and (1) of the Act by denying Donald
Munden. Sr., the opportunity to perform overtime
work because of his union activities, we shall order
Respondent to cease and desist therefrom and to
take certain affirmative action that will effectuate the
policies of the Act. In this regard. we shall order that
Respondent make Munden whole for any losses he
may have suffered by reason of the discrimination
practiced against him; backpay shall be computed in
the manner set forth in F. W. Woolworth Company,
90 NLRB 289 (1950), with interest in accordance
with Florida Steel Corporation, 231 NLRB 651
(1977).8
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that the Respondent,
Mechanics Laundry and Supply, Inc. of Indiana, In-
dianapolis, Indiana, its officers, agents, successors,
and assigns, shall:
I. Cease and desist from:
(a) Denying Donald Munden, Sr., the opportunity
to work overtime in order to discourage membership
in Laundry and Dry Cleaning Local Union 3017,
AFL-CIO.
(b) In any other manner interfering with, restrain-
ing, or coercing employees in the exercise of their
Section 7 rights.
2. Take the following affirmative action which, it
is found, will effectuate the policies of the National
Labor Relations Act, as amended:
(a) Make Donald Munden, Sr., whole for any loss
of pay he may have suffered by reason of the dis-
crimination practiced against him.
(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 Order.
(c) Post at its place of business in Indianapolis,
Indiana, copies of the attached notice marked "Ap-
pendix." Copies of said notice, on forms provided
by the Regional Director for Region 25, after being
duly signed by an authorized representative of Re-
spondent, shall be posted by Respondent immedi-
ately upon receipt thereof, and be maintained by it
for 60 consecutive days thereafter, in conspicuous
places. including all places where notices to employ-
ees are customarily posted. Reasonable steps shall be
taken by Respondent to insure that said notices are
not altered, defaced, or covered by any other mate-
rial.
(d) Notify the Regional Director for Region 25. in
writing, within 20 days from the date of this Order,
what steps Respondent has taken to comply here-
with.
See. generally. Ist Plunihing & Heating (Co, 138 NLRB 716 (1962).
In the event that this Order is enforced by ajudgment of a U nited States
Court of Appeals, the words in the notice reading "Posted B Order of the
National Labor Relations Board" shall read "Posted Pursuant to a Judg-
ment of the nited 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
WE WILL NOT deny Donald Munden. Sr., the
opportunity to work overtime in order to dis-
courage membership in Laundry and Dry
Cleaning Local Union 3017, AFL-CIO.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of their rights under Section 7 of the
Act.
WE WIl. make Donald Munden, Sr., whole
for any loss of pay which he may have suffered
by reason of our discrimination against him,
with interest.
MECHANICS LAUNDRY AND SUPPLY, INC. OF
INDIANA
DECISION
STATEMENT OF THE CASE
NORMAN ZANKEL. Administrative Law Judge: This case
was heard before me on December 5 and 6, 1977 ,' at India-
napolis, Indiana.
Upon a charge filed by Laundry and Dry Cleaning Lo-
cal Union 3017, AFL-CIO (hereinafter the Union) on Sep-
All dates are in 1977 unless otherwise stated.
306 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tember 14, against Mechanics Laundry and Supply, Inc.,
(hereinafter the Respondent) a complaint and notice of
hearing was issued on October 31 by the Regional Director
for Region 25 of the National Labor Relations Board
(hereinafter the Board).
In substance, the complaint alleges that Respondent dis-
criminated against employees and interfered with, re-
strained, and coerced them in violation of Section 8 (a)(3)
and (I) of the National Labor Relations Act, as amended
(hereinafter the Act, by providing Donald E. Munden, Sr.,
its employee, with less employment than he normally
would have received since on or about March 23. Specifi-
cally, Respondent is alleged to have declined to afford
Munden the opportunity to work overtime because he en-
gaged in activities on behalf of the Union.
Respondent's timely answer to the complaint, while ad-
mitting certain allegations, denies the commission of any
unfair labor practice.
All issues were fully litigated at the hearing; all parties
were represented by counsel and were afforded full oppor-
tunity to examine and cross-examine witnesses, to intro-
duce evidence pertinent to the issues, and to engage in oral
argument. Timely post-hearing briefs were received from
the Board's General Counsel and from counsel for Respon-
dent on January 9, 1978, and have been carefully consid-
ered.
Upon the entire record, and from my observation of the
witnesses and their demeanor in the witness chair, I make
the following:
FINDINGS AND CON(CI SIONS
1. JURISI)ICTION
The Respondent, an Indiana corporation with its princi-
pal office and place of business in Indianapolis, Indiana, is
and at all times material herein has been engaged in the
business of providing commercial laundry services. In the
regular course and conduct of its business, Respondent,
during the year immediately preceding the issuance of the
complaint (a representative period), had a gross volume of
business in excess of $500,000. During that time period,
Respondent purchased and received goods valued in excess
of $50,000 at its Indianapolis location directly from points
outside the State of Indiana.
All parties agree, and I find, that Respondent is en-
gaged in commerce within the meaning of Section 2(2), (6).
and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Respondent admits, the record reflects, and I find that
Laundry and Dry Cleaning Local Union 3017, AFL CIO,
is and at all times material herein has been a labor organi-
zation within the meaning of Section 2(5) of the Act.
111. TIlE ALLE(GED UNFAIR LABOR PRACTICES
A. Contentions of the Parties
The General Counsel contends that Respondent denied
overtime opportunities to Munden since March 24 while,
at the same time, other employees had been requested to
perform such work. Conceding that she adduced no direct
evidence of Respondent's unlawful motivation, the Coun-
sel for the General Counsel urges that that motive "must
be inferred . . . from the record as a whole." Thus, the
General Counsel submits that the following factors form
the predicate of discriminatory motivation: (I) Respondent
demonstrated hostility toward Munden's union activity in
November, 1976, on a date or dates which precede the
filing of the instant Charge by more than 6 months; (2) the
denials of overtime opportunities should be considered in
the light of their timing, having begun immediately after
Munden participated in a strike (which ended March 23)
against Respondent; and (3) Respondent's asserted reasons
for the overtime denial are patently false.
The Respondent admits that it did not assign Munden
overtime for several months subsequent to the strike but
attributes that failure to a change in Munden's regular job
assignment; it maintains that the record is devoid of evi-
dence of any discriminatory act within the statutory period
of limitation and that, in any event, Munden's previous
overtime work record belies any contention that Munden
was assigned less overtime during the relevant period than
he had previously been assigned and worked.
B. Background and Relevant Scenario of Events
Respondent is principally engaged in the rental of indus-
trial uniforms. As part of its operations, Respondent oper-
ates a garage servicing approximately 80 motor vehicles,
some of which are owned by corporations other than Re-
spondent. The garage is physically separated from
Respondent's administrative, clerical, and production
functions. The garage itself contains two sections: (1) an
area where mechanical work is performed upon the vehi-
cles, and an area for what is called the paint and body shop
(hereinafter the body shop). The mechanical area is sepa-
rated from the body shop by a fire wall which includes a
door permitting passage between the two areas.
Respondent's supervisory hierarchy, at times material
herein, consisted of Daryl French, owner, vice president,
and general manager; Carl Denton, plant manager; James
Butler, garage superintendent. 2 and Frank Trowbridge, ga-
rage supervisor.
The employee complement in the garage, at all times
material herein, was comprised of the superintendent, the
supervisor, five mechanics, and one paint and body man.
The normal working hours for the nonsupervisory garage
employees are from 8 a.m. to 5 p.m., Monday through Fri-
day. The need for overtime is normally determined on a
weekly basis. All hours worked in excess of 40 per week are
considered overtime. Overtime work is voluntary and the
2 Butler assumed this position on J anuar I Previ ,us to hat date, Jim
Kersey was garage superintendent.
Respondent admitted that DenIon, Butler. and Kersey are supervisors
within the meaning of the Act. and I so find. For purposes of this Decision,
it is irrelevant to determine the supervisors status of rench and Frow-
bridge.
MECHANICS LAUNDRY AND SUPPLY 307
record reflects that employees are only sporadically re-
quested to perform such work.
Munden has been employed by Respondent since May
26, 1969. During all relevant times he was the most senior
garage employee. It is undisputed that, prior to November
1976, Munden performed both mechanical and paint and
body work. Respondent admits he was at all times fully
qualified as a mechanic. The majority of his working time
was devoted to paint and body work. Nonetheless, Mun-
den also tuned up engines, pulled transmissions, did brake
work, and performed miscellaneous other mechanical
functions. Until November 1976, Munden freely inter-
changed his work location between the mechanical work
area and the body shop.
In September 1976 Munden, who had been a member
of the Union since he was hired b Respondent, became
active in union affairs. He was instrumental in circulating a
petition among the garage employees to remove their busi-
ness agent from office. (The Union had been the contractu-
al collective-bargaining representative of Respondent's
laundry and garage employees since 1958. Respondent's
drivers were represented for collective-bargaining purposes
by Teamsters Local 135.) On November 10 or 11. 1976.
Munden was elected the sole employee representative from
among the garage employees to serve upon the Union's
bargaining committee during forthcoming collective-bar-
gaining negotiations scheduled for January and February
1977.
In November 1976, there existed a possibility that
Respondent's drivers would engage in a strike for a new
contract. The five nonsuperviaory garage employees (in-
cluding Munden) discussed this possibility among them-
selves. During one of these conversations, garage employee
Kevin Demaree told the other employees that if the Team-
sters established a picket line he would cross it. Munden
admitted that when he heard this, he remarked to Demaree
and the other garage employees that if Demaree in fact
crossed the Teamsters picket line he "would break his [De-
maree's] G-d d n jaw."
Denton credibly testified that later that day (on or about
November 17, 1976) Munden's threat was reported by the
other garage employees to him. According to Denton,
those garage employees told him that they would refuse to
work with Munden.4
Denton further testified, without contradiction, that on
the same day a supervisor of female employees in one of
Respondent's production areas had complained that Mun-
den spoke to them in profane terms and threatened them
with bodily harm. Munden was not asked to deny this as-
pect of Denton's testimony. Accordingly, I credit Denton's
version.
Denton testified that, based upon the above-described
reports of Munden's activities, he decided to change
Munden's job assignment and impose a 3-day suspension
upon him. The job change consisted of requiring Munden
to perform all his work for Respondent within the body
shop from that time forward. Munden's job title was
changed from garageman to body shop man. According to
4 None of the other garage emplo.ees appeared ias witnesses at the heal-
ing In the view of thi.. and Munden's adilssilOn that he uttered the threat.
I credit I)enton in this connection.
Denton, he made this decision in order to reduce the possi-
bility of further friction between Munden and any other
emplcyee. Denton testified that he discussed his decision
with French, who concurred in it.
On November 18 or 19, 1976, Denton advised Munden
in Butler's presence that thereafter he would have to per-
form his work alone, in the body shop, and that he could
not leave the body shop without "written permission" from
Butler. Munden testified that he was so advised and that
Denton told him that he (Munden) "got all this crap start-
ed up about the Union again," and that he was going
around threatening employees and creating a disturbance
and telling everybody that he was "going to knock their
G-d d-n head off." 5
The next day, then-Garage Superintendent Kersey told
Munden of his 3-day suspension. According to Munden,6
Kersey said "he wanted me (Munden) to keep my big G-d
d-n mouth shut, that I got all this stuff started over the
Union again." Munden testified that Kersey wanted to
know whether he was going to work for the Union or for
him, and then said "I'll close this G- d-n body shop and
send all this work out. I'm going to get rid of you (Mun-
den) one way or the other." Murden testified that Kersey
then said he had been trying for 5 or 6 years to eliminate
the Union from the garage so that he could obtain greater
benefits for the employees but that Munden "messed up
everything." Although Kersey retired from his position as
garage superintendent on January 1, the record reflects
that he continued to perform services for Respondent from
time to time up to and including the hearing date. Thus,
Kersey was available as a witness, though not strictly with-
in Respondent's control. In view of Kersey's potential ac-
cessibility to the parties as a witness, his failure to appear
as a witness at the hearing, and Munden's forthright testi-
mony as to what occurred between Kersey and him, I find
that Kersey made the comments ascribed to him. Until the
time this suspension was imposed, Munden had suffered
no discipline whatever throughout his entire employment
history with Respondent. Munden filed a grievance over
the suspension.
With respect to the implementation of the job change
which required Munden to perform his work only in
the body shop, the composite testimony of Munden and
Butler reveals that Munden performed mechanical work
outside the body shop for some period of time between the
date of the job change and the strike which began in ap-
proximately the middle of March 1977. Thus, Munden tes-
tified that between November 1976 and March 1977 he
pulled motors, repaired and replaced water pumps, and
tuned engines. He claimed that some of this work was per-
formed in the body shop, but most of it was outside of that
area. Butler admitted that Munden performed mechanical
work outside of the body shop during that period of time,
that the mechanical work outside that area consisted of
starting motor vehicles, and that Munden performed other
mechanical work within the body shop upon vehicles
which had been brought there for body work. According to
Butler, the assignment of Munden to mechanical work at
Inasmuch as Denton was nol asked to dens he uttered the quoted phras-
es. I credit Munden's version of what Denton said.
"Kersey did not appear as a witness at the hearing
308 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that time was an emergency measure necessitated by the
severity of cold weather conditions and was limited to a
brief period of approximately 5-6 weeks. Documentary ev-
idence (G.C. Exh. 4) consisting of Munden's daily work-
sheets confirms Munden's description of the nature of the
mechanical work he engaged in. Those documents also re-
veal that he performed brake service. Although those docu-
ments depict Munden's work from January 3 through No-
vember 25, 1977 (except for February and March), they
demonstrate that Munden performed mechanical work
only during the month of January. Unfortunately, these
records do not reveal whether Munden's mechanical work
was accomplished within or outside of the body shop.
Hence, the record does not permit me to resolve the dis-
crepancy between Butler and Munden in the latter regard.
Despite this impediment, I conclude there is no material
difference on relevant matters between the testimony of
Munden and Butler. Accordingly, I find that between No-
vember 1976 and March 1977, Munden was in fact called
upon to perform mechanical work and that some of it was
performed outside the body shop. Additionally, based
upon Butler's uncontradicted testimony, I find such work
was completed during regular working hours, and Munden
was not asked to perform any of it on an overtime basis.
Several joint bargaining sessions were held between the
Respondent and Union between January 20 and March 23.
Munden participated in each of those negotiating sessions
without disparagement from any Employer representative,
and no evidence of any untoward incident during those
negotiations appears in the record.
Munden served as picket captain during the strike of the
employees represented by the Union which began approxi-
mately March 10. The strike continued for approximately 2
weeks, and Munden was the only garage employee who
remained on strike for its entire duration. The other garage
employees crossed the picket line and returned to work
after the end of the strike's first week.
It is conceded that Munden was offered no overtime
whatever from the time that he returned to work after the
strike until approximately September 1977. Thereafter,
Munden was on three occasions offered overtime work, to
be performed in the body shop. Munden accepted such
overtime work once and declined the remaining two oppor-
tunities.
As already observed, the General Counsel asserts that
since the March strike Munden has been treated in a dispa-
rate manner regarding overtime. The record reveals that
in June 1977 Respondent discovered a need to perform
excessive service functions upon the motor vehicles. Overtime
was then authorized for the garage employees who normally
performed mechanical operations on a voluntary basis. There
is no evidence to contradict Respondent's contention that the
work entailed no operations common to or in conjunction
with the paint and body shop operations. Therefore, Respon-
dent contends, Munden was not offered these overtime op-
portunities. When Munden observed the other garage em-
ployees working overtime in June he confronted Butler with
a request to participate in it. Butler responded that Munden
could not share in the overtime because he was strictly
assigned to perform body shop work. Also, Munden testified
that he had requested of Denton to be assigned the overtime,
but that Denton advised him that the only overtime Munden
would be asked to perform would be that which might be
needed in the body shop. Denton did not recall Munden's
request but did confirm that Munden and he conversed
sometime during the summer, during which conversation
Munden threatened to file a charge with the Board. I credit
both M unden's and Butler's versions, and conclude that when
Denton informed Munden he could not perform the mechani-
cal-type overtime, Munden announced his intention to pur-
sue the matter before the Board. Finally, it is unrefuted that
no overtime whatever was authorized to be performed in the
body shop and none of the garage employees performed any
paint and body-type overtime from the time that Munden's
job change was effectuated until September 1977 when Mun-
den himself was asked to, and did, work overtime in the body
shop.
The General Counsel argues that the evidence reveals
Munden worked less overtime after the strike than he had
during a comparable period of the prior calendar year,
while the other garage employees were offered overtime
opportunities, and that this demonstrates disparate treat-
ment toward Munden. Respondent counters, steadfastly
claiming that the failure to provide overtime work to Mun-
den in 1977 was a direct result of, and consistent with, the
November 1976 change in Munden's job. Both the General
Counsel and Respondent have cited overtime summaries in
evidence as G.C. Exh. 3 to demonstrate their respective
contentions relative to the claimed reduction in overtime
worked by Munden. Based upon my examination of these
overtime summaries, I find that Munden did work less
overtime between March and November 1977 than during
the same period in 1976. I also find that, of the three full-
time mechanics who performed overtime in both years, two
of them worked considerably less overtime in 1977 than
1976 while the third enjoyed an increase of overtime. Addi-
tionally, the total overtime performed in 1976 by Munden
and the other three employees equalled 964 hours; and in
1977 these same four employees worked a total of 994-1/2
hours of overtime. The record contains no explanation for
the need to perform 30-1/2 hours of additional overtime
work in 1977 and I do not find this matter significant.
Munden's 1976 overtime total was 92-1/2 hours, compared
with 5 overtime hours in 1977. I find these statistics rele-
vant to indicate, as they do, the accuracy of Munden's
testimony and Respondent's concession that Munden
worked considerably less overtime during the first 9
months of 1977 than he did during the same time period in
1976.
C. Analysis
The single issue presented by the pleadings requires a
determination that the reduced overtime opportunities
hereinabove found to have existed for Munden are related
to the November 1976 references to Munden's union activ-
ity by Denton and Kersey and to the anti-union expres-
sions contained therein. As acknowledged by the General
Counsel, such a determination requires the drawing of an
inference of unlawful motivation.
It is crucially significant that Munden's exile to the body
MECHANICS LAUNDRY AND SUPPLY 309
shop is not in issue before me. Also noteworthy is the ab-
sence of independent 8(a)(1) allegations derived from
either or both of Denton's and Kersey's November 1976
comments. Rather, those remarks are proffered by the
General Counsel as elements of background upon which
the required inference must be based. Indeed, inasmuch as
the instant charge was filed on September 14, 1977, none of
Respondent's activities which preceded March 14, 1977, is
an appropriate predicate for an alleged violation of the
Act. Such allegations are time-barred by Section 10(b) of
the Act. There is before me no evidence of independent
violations of the Act engaged in since March 14, 1977 by
Respondent.
It is true (as the General Counsel urges) that evidence of
actions occurring outside the statutory period of limitation
are properly considered as background elements to explain
what occurred within the 6 months immediately preceding
the filing of a charge (Local Lodge No. 1424, International
Association of Machinists, AFL-CIO, et al. [Bryan Manufac-
turing Company] v. N.L.R.B., 362 U.S. 411 (1960)). Yet I
conclude that the General Counsel's reliance upon the
principle enunciated by the Supreme Court in that case is
misplaced herein. The Court sanctioned the use of explana-
tory evidence in situations where there exist activities with-
in the 6-month period which themselvea might comprise
unfair labor practices. In those situations, the pre-6-month
period evidence may be utilized in order to give them the
requisite unlawful character (316 U.S. 416-417). It is clear
that the Court did not approve a practice by which conduct
occurring within the limitations period can be considered
to be an unfair labor practice where doing so necessarily
relies upon earlier unfair labor practices. Thus, even as-
suming that Butler's and Kersey's references to the Union
and his change of job in November 1976 were violations of
the Act, I conclude that in the circumstances herein I am
precluded from utilizing those events as a foundation for a
finding that the 1977 denial of overtime is discriminatory.
This is so because there is absolutely no evidence in the
record of any conduct Respondent engaged in within the 6
months immediately preceding the filing of the charge to
which the November 1976 change can be connected.7 In
short, I find the essential element of anti-union motivation
absent from the instant record. 8
Yet another reason exists upon which I do not draw the
necessary inference of unlawful motivation requested by
the General Counsel. It is quite apparent that the union
animosity expressed by Kersey, and his personal threat of
discharge to Munden, were no more than an expression of
Kersey's own feelings. Had the loss of overtime opportuni-
7The General Counsel offered as evidence of union hostility a consoli-
dated complaint issued May 31. 1977. by the Regional Director for Region
25 against Respondent. While that complaint alleges a variety of conduct by
which Respondent is supposed to have refused to bargain with the Union,
the General Counsel orally advised me at the hearing that no trial had been
held in that matter. In these circumstances, I find that the complaint, in
isolation, is not probative for the purpose offered. See Hochsteiler & Sons,
Ini 224 NLRB 39, fn. 3 (1976).
have considered the testimony of employee Horseley produced by the
General Counsel on this issue and conclude that whatever probative value it
contains is vitiated by Sec. I(b), all of it relating to events that occurred
considerably more than 6 months before the instant charge was filed.
ties to Munden occurred at a time when Kersey retained
his position as garage superintendent, it might be possible
to make the inference requested by the General Counsel.
This is so because Kersey's admitted supervisory status
would bind Respondent. However, not only does the rec-
ord reveal that Kersey ceased his supervisory functions on
January 1, 1977, but also no evidence exists that his feel-
ings were conveyed to any superior supervisory authority.
In fact, Munden was permitted to perform his duties as a
member of the Union's negotiating committee without in-
terference from or criticism by Respondent. It would be a
blatant injustice, and possibly error, to hold that the com-
plaint allegations have been sustained by reference to any
of the evidence implicating Kersey.
In essence, I am asked to declare that the reason asserted
by Respondent for Munden's reduced overtime is pretex-
tual and a subterfuge to disguise its unlawful character. A
fair assessment of Respondent's basic defense persuades
me that it does withstand scrutiny. The simplicity of this
defense is impressive. No effort was made throughout these
proceedings to create a variety of possible circumstances
upon which Respondent could extricate itself from the
complaint allegations. Respondent consistently readily ad-
mitted that it had not offered Munden overtime opportuni-
ties between March and September 1977. This condition,
Respondent has persistently claimed, emanates directly
from Munden's November 1976 assignment to the body
shop. As noted above in discussing the impact of the Bryan
Manufacturing case, I am precluded from consideration of
the legality of that job change. For relevant purposes
herein, it is sufficient to observe that there is no dispute
that Munden's job actually was changed as described by
Respondent. Clearly, the job change severely limited
Munden's geographic work station. In this context, it is
plausible that job opportunities also would be curtailed. I
find nothing on the state of this record by which it could
feasibly be concluded that all work opportunities, both reg-
ular time and overtime, would not be limited to the body
shop. I place no significance upon the fact that Munden
performed mechanical work during January 1977 because
there is no evidence to refute Respondent's assertion that
that particular work arose from emergency conditions. In
examining Respondent's defense, I have also considered
the undisputed evidence to the effect that no body shop
overtime was performed by any employee between March
and September. I deem this latter fact to demonstrate an
absence of evidence herein which might be considered in-
dicative of an effort by Respondent to divert work oppor-
tunities from Munden to some other employee, and further
evidence of Respondent's consistent application of its de-
termination to keep Munden, insofar as possible, working
in the body shop. In this connection, it is significant that
when body shop overtime was available in September that
work was offered to Munden. No adverse inference against
Respondent is drawn from the fact that the body shop
overtime was offered at the same time as the charge was
filed. Without stronger evidence upon which to base an
inference of illegality, such an inference cannot be made
upon the timing of this event alone. Therefore, I find that
the demonstrated reduction in overtime hours worked by
Munden in 1977 was due to his job change in November
310 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1976 and Respondent's subsequent easonable implementa-
tion of that change.
1977 was due to his job change in November 1976 and
Respondent's subsequent reasonable implementation of
that change.
Even assuming that my conclusion that Respondent's
defense is valid is imprudent, that alone would not dimin-
ish the impact and effect of the Bryan Manufacturing rule.
Based upon that precedent, I have concluded there is a
failure of necessary proof; to wit, the ingredient of union
hostility. The burden of adducing such proof is upon the
General Counsel. The absence of such evidence results in
dismissal of allegations. See Bartlett-Collins Company, 110
NLRB 395, 398, and cases cited at fn. 8 (1954).
Upon all the foregoing, I find that the record does not
establish, by a preponderance of the evidence, that over-
time opportunities were discriminatorily withheld from
Munden. Accordingly, I shall recommend that the com-
plaint be dismissed.
Upon the basis of the foregoing findings of fact and the
entire record in this proceeding, I make the following:
CONCILUSIONS OF: LAW
I. Mechanics Laundry and Supply, Inc., is and at all
times material herein has been an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7)
of the Act.
2. Laundry and Dry Cleaning Local Union 3017, 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. The Respondent has not committed any of the unfair
labor practices alleged in the complaint.
[Recommended Order for dismissal omitted from publi-
cation.]