Miller Block Co.

National Labor Relations Board - Board Decisions

Sep 16, 1976

225 N.L.R.B. 1347 (N.L.R.B. 1976)

MILLER BLOCK CO. 1347
Miller Block Co. and Richard A. Smay. Case 6-CA-
8820
September 16, 1976
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS JENKINS
AND WALTHER
its employees Richard A. Smay and Barry Smay because
they engaged in activities protected by the Act. A hearing
in this proceeding was held in Johnstown, Pennsylvania, on
April 20, 1976. Following the close of the hearing the par-
ties filed briefs with the Administrative Law Judge.
Upon the entire record in the case, and from my obser-
vation of the witnesses and their demeanor, I make the
following.
FINDINGS OF FACT
On June 8, 1976, Administrative Law Judge Her-
bert Silberman issued the attached Decision in this
proceeding. Thereafter, the General Counsel filed ex-
ceptions and a supporting brief, the Charging Party
filed an exception, and the Respondent filed a brief
in opposition to the General Counsel'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 and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the complaint be, and it hereby is, dis-
missed in its entirety.
1 The General Counsel has excepted to certain credibility findings made
by the Administrative Law Judge It is the Board's established policy not to
overrule an Administrative Law Judge's resolutions with respect to credibili-
ty unless the clear preponderance of all of the relevant evidence convinces
us that the resolutions are incorrect Standard Dry Wall Products, Inc, 91
NLRB 544 (1950), enfd 188 F 2d 362 (C A 3, 1951) We have carefully
examined the record and find no basis for reversing his findings
DECISION
STATEMENT OF THE CASE
HERBERT SILBERMAN, Administrative Law Judge: Upon a
charge filed on December 2, 1975, by Richard A. Smay, an
individual, a complaint dated January 30, 1976, was issued
alleging that the Respondent, Miller Block Co., herein
called the Company, has engaged in and is engaging in
unfair labor practices within the meaning of Section 8(a)(1)
and (3) of the National Labor Relations Act, as amended.
In substance, the complaint, as amended at the hearing,
alleges that Respondent on October 17, 1975, discharged
1. THE BUSINESS OF RESPONDENT
Respondent, a Pennsylvania corporation, is engaged in
the manufacture of cement products at its premises located
in Windber, Pennsylvania. During the calendar year 1975
the Company purchased and received goods and materials
valued in excess of $50,000 which were shipped to its
Windber plant through channels of interstate commerce
directly from points located outside the Commonwealth of
Pennsylvania Respondent admits, and I find, that it is an
employer within the meaning of Section 2(2) engaged in
commerce within the meaning of Section 2(6) and (7) of
the Act.
II. THE LABOR ORGANIZATION INVOLVED
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, Local Union No.
110, herein referred to as the Union, is a labor organization
within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
The Company manufactures concrete block at its plant
in Wmdber, Pennsylvania. It employs approximately 12 to
15 people of whom 3 are truckdrivers. The principals of the
Company are its president, Dean Miller, and its secretary-
treasurer, Fred Miller. The only other supervisory person
employed by the Company is William Metsky, who has the
title of foreman but is in charge of the maintenance of the
trucks and the equipment and individually performs most
of the maintenance work.
For more than 10 years the Company has recognized the
Union as the representative of its truckdrivers. Its dealings
with the Union have been harmonious; only one formal
grievance was filed during that period of time, until the
events discussed below occurred, and that grievance was
resolved in favor of the Company. All other employee
complaints were amicably adjusted. During the past 3
years, the union shop steward has been Richard A. Smay.
Relevant to this proceeding are the following provisions
of the current collective-bargaining agreement between the
Company and the Union which is effective from April 1,
1975, through April 1, 1978. Article XV provides that the
employer shall recognize the right of the Union to desig-
nate shop stewards who shall have authority to investigate
and present grievances. The grievance procedure is set
225 NLRB No. 200
1348 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
forth in article XVI and article XVII, which is concerned
with discharges, provides:
(a) The Employer retains the right to discharge any
employee, but upon the request of the Union, they
shall agree to show cause for such discharge. If sat-
isfactory cause cannot be shown, the discharged
employee shall be reinstated and shall be paid for
all time lost at his regular rate of pay... .
(b) The employee, upon being discharged, must notify
the Union that he requests a hearing at least seven-
ty-two (72) hours after being discharged, or he shall
be definitely considered discharged by the Union.
Although Richard Smay was the shop steward and con-
tends that he and his son, Barry Smay, were unlawfully
discharged on October 17, 1975, he did not request a hear-
ing as provided by the collective-bargaining agreement.'
Many times during the year 1975 Richard Smay made
remarks to employees of the Company and to the union
representative that he intended to quit his job with the
Company. Thus, Florence Rose, the Company's secretary
and bookkeeper, testified that on numerous occasions
Richard Smay said to her that he was quitting. Likewise,
William Metsky testified that he heard Smay threaten to
quit his job with the Company many times. The Union's
business representative, Elwood Harbaugh, testified that
on two different occasions Richard Smay told him that
Smay was trying to get a job with Tony Joseph, a coal
hauling contractor. Similarly, Fred Miller testified that
usually on Monday mornings when Richard Smay appar-
ently was recovering from a weekend of drinking he would
come to the Company's office with many complaints and
would threaten to quit his job. On one such occasion Rich-
ard Smay said that if he had received a telephone call from
Tony Joseph during the weekend he would not have been
there that morning. Dean Miller testified that during the
summer of 1975 he received numerous reports that Richard
Smay had been talking about quitting his job with the
Company. Dean Miller further testified that on one occa-
sion he had a conversation with Smay about the subject.
Smay was adamant that he intended to leave and explained
that he had nothing personal against the Company but that
he wanted to leave because his relationships with William
Metsky were bad.2
i Richard Smay testified that he did not know that he had any such right,
although he testified that he understood that he had a right to file a griev-
ance with respect to his discharge, which he did not do
2 Richard Smay testified that sometime during the spring of 1975 he men-
tioned to Fred Miller that he was thinking about going to work for Tony
Joseph because the latter paid its drivers twice as much as the Company did
He further testified that at no other time did he speak to any management
representative concerning the possibility of changing jobs
In this and in other instances, the testimony of Richard Smay conflicts
with the testimony of other witnesses Richard Smay's recollection of the
subjects about which he was questioned was uncertain and in various re-
spects his testimony lacks coherence it is improbable that some of the
events occurred as he described them In addition, while I do not believe
that Richard Smay was consciously untruthful, I am of the opinion that
much of his testimony reflects a selective recollection of what occurred
which tended to distort the facts On the whole, I am of the opinion that
Richard Smay was an unreliable witness whose uncorroborated testimony
cannot be credited
B. The Grievances
The position of General Counsel is that Respondent was
annoyed by the numerous complaints filed by Richard
Smay with respect to allegedly defective equipment and
finally decided to discharge him when, on October 16,
1975, he complained about Foreman William Metsky using
a truck to move into bins material that had been dumped
in the Company's yard.
The drivers are instructed that whenever they observe
any defect in the equipment they should make a notation
of the defect on a pad which is kept in the Company's
office for that purpose and turn in the report. According to
Dean Miller each driver should submit the report of de-
fects personally. Defects which affect the safe operation of
equipment are fixed immediately and other defects are re-
paired when it is convenient to do so. Richard Smay testi-
fied that while he was employed by the Company "there
were some problems with [the equipment] but nothing
overwhelmingly, nothing that wasn't normal with the ma-
chinery, nothing that was abnormal " He further testified
that he understood that equipment defects were to be re-
ported to William Metsky, who had charge of mainte-
nance, and also that a written note of the defects was sup-
posed to be made and turned into the office. Further,
according to Smay, he not only submitted written reports
about defects in the equipment which he operated but he
also submitted written reports with respect to defects re-
ported to him by his son Barry, who also was employed by
the Company as a truckdriver, and by Donald Walker, the
third driver Further, Smay testified that it was his practice
to prepare these reports in duplicate and to retain a copy
for himself.
Richard Smay testified that during the last 6 months of
his employment he turned in more reports concerning
equipment defects than previously. General Counsel's Ex-
hibit 2 consists of 12 equipment defect reports which Rich-
ard Smay turned in between May 13, 1975, and October
10, 1975 Smay testified that these 12 reports were not nec-
essarily all the reports he turned in during the last 6 months
of his employment because "probably half of them are
lost " Examination of this exhibit shows that four reports
were submitted for the period between May 13 and the end
of that month, one report was turned in for the entire
month of June, two reports were turned in for the month
of July; three reports were turned in for the month of Au-
gust; none for September, one report was turned in for the
month of October until the date of Richard Smay's termi-
nation, and one report is undated. Richard Smay testified
that he turned in such reports "I imagine on the average of
three a week . . for the last 3 months anyhow." Even if it
is assumed that the number of reports turned in by Smay
were twice the number contained in General Counsel's Ex-
hibit 2, his testimony that during the last 3 months he sub-
mitted on the average of three reports per week was a gross
exaggeration.3
J According to Richard Smay, the reports he turned in reflected not only
problems which he discovered but also defects uncovered by Barry Smay
and Donald Walker Dean Miller testified that the practice on the part of
Richard Smay to turn in defect reports for the other two drivers was not in
accordance with the Company's established procedures According to Dean
MILLER BLOCK CO. 1349
Dean Miller testified that prior to Richard Smay 's termi-
nation antagonism had developed between Richard Smay
and William Metsky. As a consequence, Richard Smay
constantly complained that Metsky did not make proper
repairs to equipment . On several occasions after a truck
had been repaired by Metsky because Richard Smay com-
plained that the truck still was defective, Dean Miller took
the vehicle to a local repair agency to ascertain whether or
not the truck had been properly repaired and in each case
he learned that it was in satisfactory condition.
On Thursday, October 16, when Richai d Smay returned
to the Company's premises from his last delivery he ob-
served William Metsky using a truck to haul materials
which had been deposited in the yard. Richard Smay testi-
fied that this was an unusual situation . Because a slag
strike was anticipated the Company had been storing ma-
terials to use should the strike occur . These materials had
been deposited in the Company's yard and Metsky was
hauling the slag into bins. After work that evening Richard
Smay met Donald Walker in a nearby tavern. They dis-
cussed the incident and were of the opinion that Metsky,
who was not a member of the Union, should not have been
driving the truck and that they should register a complaint
about the matter. Accordingly, Richard Smay and Donald
Walker returned to the plant where they had a conversa-
tion with Fred Miller about the subject. According to
Richard Smay, Fred Miller agreed that they were right and
said that the matter could be straightened out without a
grievance.' The matter was resolved on Monday, October
20, by the Company giving Richard Smay 1 hour's pay.5
Although neither Dean Miller nor Fred Miller made any
issue concerning the complaint about Metsky driving the
truck, it is General Counsel's position that this incident
triggered the decision to terminate Richard Smay.
C. The Terminations
The employment of Richard Smay, who had worked for
the Company for approximately 13 years, was terminated
on Friday, October 17, 1975. There is sharp conflict in the
testimony of the various witnesses concerning the event.
Richard Smay testified as follows. About 7 a.m. on Oc-
tober 17, as he was about to drive his truck out of the
company yard to make a delivery, he was intercepted by
Dean Miller, who told him it was too wet to deliver blocks
and that Smay should back up the truck and park it. Then,
according to Smay, "When I come back down, Dean says,
now, when you leave here you're leaving on your own, he
Miller, -[[It was for the driver to know what condition his truck was in It's
not a grievance , it's not a union grievance , it's a truck condition report
which we require daily "
Fred Miller testified that in response to the complaint from Richard
Smay and Donald Walker he said, "I would check into it and make it right "
5 Union Business Representative Elwood Harbaugh testified that three
grievances had been filed with respect to the one instance where William
Metsky had driven a truck for I hour He informed the grievants that only
one man would get paid and that would be the senior man , who was Rich-
ard Smay Dean Miller testified that because the truck Metsky was driving
did not leave the Company 's premises it was uncertain that any violation of
the collective -bargaining agreement had occurred However, as only I
hour's pay was involved, the Company decided to settle the matter by mak-
ing the payment
says you are refusing work. I told him no, I'm not refusing
work, I'm here and available for work, if you want the
blocks delivered I'll go get the truck and deliver.... He
says no, you're not driving that truck in that frame of
mind, that was his exact words." Upon further examina-
tion, Smay testified that Dean Miller also said something
"about those little slips that I write for the trucks. He said
that's all he could spend his time anymore , is reading those
little slips I turned in." Also, according to Richard Smay,
Dean Miller mentioned that he had heard that Smay plan-
ned to leave the Company's employ and work for Tony
Joseph and Smay replied that he intended to do that when
he was called by Joseph but he would give the Company 2
weeks' notice before he left . Finally, according to Richard
Smay, Dean Miller made a statement to the effect that he
was paying his drivers more than he was earning and asked
about the previous night's incident. Smay told him that
William Metsky had no business driving a truck. The con-
versation concluded with Richard Smay informing Dean
Miller that Smay was "going to the Union hall to straight-
en things out." 6 Richard Smay also testified that he was
not told that he was discharged.'
Fred Miller testified that on the morning of October 17
when Richard Smay came into the office to get his delivery
ticket Smay told Fred Miller that he had another job and
he was quitting. Fred Miller mentioned this to his brother
when the latter came into the office
Dean Miller testified that Richard Smay, who had
worked for the Company longer than 12 years, was a good
employee. On the morning of October 17 his brother Fred
informed him of the complaint registered by Richard Smay
and Donald Walker the previous evening concerning Met-
sky driving a truck and also that Richard Smay had said
that he had another job and "as soon as they call him you
can stick this place up your ass." Then, according to Dean
Miller, when Richard Smay came to the office, "I ap-
proached him and asked him what it was that he told Fred
last night about that he had another Job. He said yes, that's
right, I have another job as soon as they call me you can
stick this up your . . . I said, if you feel that way you may
as well park your truck now, he said, no, I'll work until
they call me. I said well, I don't want you working under
those conditions, you can quit now if you've got another
job, park the truck up there. So he went out of the office
and parked the truck." 8 Dean Miller explained that the
Company could not operate effectively with the threat by a
driver that the driver was going to quit. Dean Miller ex-
plained that the Company employs only three boom truck
drivers, that it requires special training to operate such a
vehicle, and that the Company is unable to hire drivers "off
the street ." Dean Miller further explained that during the
previous 3 or 4 months there had been constant threats
about quitting to get jobs elsewhere at higher pay "[s]o
finally it got to the point we felt that we should let them
6 Ithis not clear from Richard Smay's testimony what it was that he wished
to straighten out
7 Richard Smay testified that Dean Miller refused to let him work It
would appear from Richard Smay 's testimony that the reason was that it
was then too wet to make deliveries of concrete blocks
s Fred Miller corroborated Dean Miller and testified that in the conversa-
tion between the two Richard Smay had said. "[H]e had another lob and as
soon as he was called , we could stick this job "
1350 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
quit and we'll hire people. We were really in a jam for a
couple of weeks afterwards, we couldn't deliver, we only
had one truck. It took us two or three weeks to break an-
other driver in." Dean Miller denied that there was any
discussion between himself and Richard Smay about not
delivering a load of concrete blocks because it was too wet.
Barry Smay, Richard Smay' s son, who worked for the
company for 6 years, the last 3 as a truckdriver, was also
terminated on October 17, 1975. There is substantial con-
flict as to what occurred.
Barry Smay testified that on the morning of October 17,
as he was about to leave the office to make a delivery,
Dean Miller called him and asked if he knew that his fa-
ther had quit. Barry said that he did not. Then, according
to Barry Smay, Dean Miller said, "[H]e was tired of me
turning in slips of paper on the trucks, he also brought up
three incidents that had happened in the past to trucks I
was driving." 9 The incidents to which Dean Miller referred
were: (1) an occasion when Barry Smay drove into a fire
hydrant; (2) an instance when Barry Smay drove the truck
off the road into a ditch and had to be towed out of the
ditch; and (3) an instance in which a dumptruck Barry
Smay was driving became stuck and in attempting to move
it he rocked the truck back and forth which caused sub-
stantial damage to the rear end. Barry Smay further testi-
fied that Dean Miller said that he "did them all wasting
time and . . . did them on purpose." Barry Smay denied
that the incidents had been purposeful and asserted that
they had been accidental. Then, according to Barry Smay,
Dean Miller asked if he had applied for a job with Tony
Joseph and Barry Smay answered that he had. Dean Miller
then "said he didn't want me working for him anymore."
Dean Miller testified that he informed Barry Smay that
his father had quit and then said, "from now on around
here we're going to have a little different policy and we're
taking better care of the trucks." He then reminded Barry
Smay about the three incidents where there had been con-
siderable damage. Dean Miller pointed out that the dam-
age to the fire hydrant had cost the Company more than
$300. Barry Smay responded that "I did that rear end de-
liberate,10 but if you think that I did that on that fire plug
e I credit Dean Miller's denial that there was discussion about equipment
defects Both Richard Smay and Barry Smay testified that Barry Smay did
not file equipment defect reports but that his father filed such reports on his
behalf
10 Presumably, Barry Smay meant that he deliberately rocked the truck
back and forth in an effort to get it out of the ditch and the rocking caused
the damage to the rear end of the truck, and did not mean that he planned
to cause the damage
deliberate, you're full of so and so," and "[h]e got mad and
walked out the door and said I quit and he almost slammed
the door off the hinges." According to Dean Miller, Barry
Smay drove his truck back to the shop but did not leave the
premises. Dean Miller went to see what Smay was doing.
As Dean Miller approached Barry Smay, the latter came
running to him, pointing his finger at him and saying that
if Dean Miller thought that "he did that deliberate, well, I
was full of so and so. I said, well, I do know I got all the
pieces laying here for the rear end and I know you ripped
it out because the other driver told me that you did it delib-
erate and he said well, I might have did that deliberate and
I said well then, you get the hell out of here and stay out of
here and that's the last conversation I had with him." 11
I credit the testimony of Dean Miller rather than the
testimony of Richard Smay and Barry Smay concerning
their discussion with Dean Miller on October 17, 1975. I
find that General Counsel has not proved by a preponder-
ance of the evidence that Richard Smay and Barry Smay
were discharged because Richard Smay had filed what the
Company considered an excessive number of reports con-
cerning defective equipment and had grieved concerning
William Metsky driving a truck on October 16. According-
ly, I shall recommend that the complaint be dismissed in its
entirety. 12
CONCLUSION OF LAW
Respondent has not engaged in the violations of the Act
alleged in the complaint.
Upon the foregoing findings of fact, conclusion of law,
and the entire record in this proceeding, and pursuant to
Section 10(c) of the Act, I hereby issue the following rec-
ommended.
ORDER-13
The complaint herein is dismissed in its entirety.
11 Fred Miller generally corroborated Dean Miller regarding the latter's
conversation with Barry Smay
2 1 do not credit the testimony of Richard Smay that when he visited the
offices of the Company on October 25 to get his last paycheck he overheard
Fred Miller say in a telephone conversation that "he had to let him go
because he had turned strictly union "
U In the event no exceptions are filed as provided by Sec 102 46 of the
Rules and Regulations of the National Labor Relations Board, the findings.
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