Monark Boat Co.

National Labor Relations Board - Board Decisions

Dec 4, 1969

179 N.L.R.B. 872 (N.L.R.B. 1969)

872 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Monark Boat ;Company and International Union,
United Automobile, Aerospace and Agricultural
Implement Workers of America (UAW). Case
26-CA-3310
December 4, 1969
DECISION AND ORDER
BY MEMBERS FANNING, BROWN, AND JENKINS
On September 16, 1969, Trial Examiner Benjamin
K. Blackburn, issued his Decision in the
above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in
certain unfair labor practices and recommending
that it cease ,and desist therefrom and take certain
affirmative action, as set forth in the attached Trial
Examiner's Decision. Thereafter, the Respondent
filed exceptions to the Trial Examiner's Decision
and a supporting brief and the General Counsel filed
cross-exceptions to the Trial Examiner's Decision
and a brief in support thereof.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a
three-member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and
the entire record in this case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby adopts as its Order the
Recommended Order of the Trial Examiner and
orders that the Respondent, Monark Boat
Company, Monticello, Arkansas, 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
BENJAMIN K. BLACKBURN, Trial Examiner: This case
arose on March 12, 1969,' when International Union,
United Automobile, Aerospace and Agricultural
Implement Workers of America (UAW), referred to
herein as the Union or the Charging Party, filed an unfair
labor practice charge against Monark Boat Company,
referred to herein as Respondent. On April 30 the General
Counsel of the National Labor Relations Board, by the
Regional Director for Region 26 (Memphis, Tenn.), issued
complaint. It alleged that Respondent violated Section
8(a)(l) and (3) of the Act by discharging Thomas Frank
Burris on March 10. Respondent's answer, duly filed on
May 5, admitted certain allegations of the complaint but
denied the commission of any unfair labor practice.
Pursuant to due notice, a hearing was held before me in
Monticello, Arkansas, on July 8 at which the only issue
litigated was Respondent's motive for discharging Burris.
All parties appeared and were given full opportunity to
participate, to adduce relevant evidence, to examine and
cross-examine witnesses, to argue orally, and to file briefs.
Upon the entire record, including briefs filed by
Respondent and the General Counsel, and from my
observation of the demeanor of the witnesses while
testifying under oath, I make the following:
FINDINGS OF FACT
1 THE BUSINESS OF RESPONDENT
Respondent, an Arkansas corporation, manufactures
aluminum houseboats and runabouts at its plant in
Monticello During the year just prior to issuance of the
complaint, it received goods worth more than $50,000
which were shipped directly to Monticello from points
outside the State of Arkansas and shipped finished
products worth more than $50,000 directly to customers
outside the State of Arkansas. On the basis of these
admitted facts, I find that Respondent is engaged in
commerce within the meaning of Section 2(6) and (7) of
the Act.
II. THE LABOR ORGANIZATION INVOLVED
The complaint alleges, the answer admits, and I find
that the Charging Party is a labor organization within the
meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICE
A. Facts
Thomas Frank Burris first went to work for
Respondent in August 1968 at $1 . 60 an hour . He worked
as an electrician , installing electrical circuits in
houseboats . In September he "quit" during a dispute with
Harold L. Powell , Jr., superintendent of the plant in
which he worked . However, a conference with Ron
Echols, plant manager and Powell ' s superior , resulted in
Burris' return to work the next day with no real break in
service . Burris' quit in December 1968 to take a better job
elsewhere . At the time his rate was $1.90 an hour He had
reached that level as the result of several raises given him
by Powell. He gave Respondent no notice when he quit
Powell turned the set of electrician ' s tools which Burris
had been using over to James Vance, another employee
Burris applied for rehire in early January. Despite
Respondent ' s policy not to rehire former employees who
leave without giving notice, Powell took Burris back
because Burris had been such a good worker. Burris
returned to work for Respondent on January 6 at $1.90 an
hour. Powell told Burris that Respondent had no
electrician 's tools for him. They agreed that Burris would
use his own tools temporarily and that Powell would order
a set for him . Powell ordered the tools without delay.
However , they had not yet been received when Burris was
discharged by Powell on March 10 . Vance's rate of pay
when Burris was rehired was $2 an hour.
'All dates are 1969, unless otherwise specified
179 NLRB No. 150
MONARK BOAT COMPANY 873
In January , within ,-the first,. 3 weeks after his return to
work , Burris- was accused of failing to wire a houseboat
properly.' A dome light in the overhang of a porch on the
particular houseboat involved is connected to the main
circuit in the wall from which the overhang projects by a
wire which is hidden behind the metal surface or "skin" of
the overhang. The connection is made by a simple splice.
When properly done, the wire is run and the splice made
before the skin is installed . On this occasion , Vance and
Burris were wiring - the houseboat together . One was
pulling wire and the other was making connections. Which
man was doing which job is now uncertain . The one who
was pulling wire should have made the splice. After the
skin of the overhang had been installed , Vance and Henry
Mays, a carpenter , started to install the dome light in the
overhang . Mays tugged on the wire. It came out in his
hand. Mays sent Vance for Powell. When the skin was
removed from the overhang, it was discovered that the
wire had not been spliced into the main circuit as it should
have been. Vance told Powell that Burris had failed to
make the splice. Burris denied that the fault was his.
Burris got the blame . The mistake was not an insignificant
one since setting the matter right forced the skinner to
undo and redo the work already completed on the
overhang.
About 3 weeks after his return Burris stopped bringing
his tools to work. He -told Powell that he did not think it
was fair that he should be paid only $1.90 an hour and
furnish his own tools while Vance was getting $2 and
using Respondent's. tools. When Powell told him that he
could not have a raise Burris took the position that he
would no longer supply his own tools. Thereafter Burris
shared Vance's tools when he-did electrical work. He also
worked at nonelectrician 's chores. Sometime in February
Powell reprimanded Burris for installing a shower wall in
a houseboat 2-1/2 inches out of plumb
Around the first of • March Burris and his brother
Lawrence, who also worked for Respondent at the time,
discussed organizing Respondent ' s employees . Lawrence
obtained authorization cards from a labor organization,
presumably the Charging Party. On Tuesday evening,
March 4, Frank ;and Lawrence each signed a card at
Lawrence's home. However, Lawrence declined an active
role in circulating the cards , Frank took a supply into the
plant the next. day and clandestinely obtained the
signatures of several other employees. He solicited
signatures again on March 6, after the employees ' meeting
with Powell next related. The total result of Frank Burris'
organizing efforts was 14 signed authorization cards.
There is no indication in the record of what became of
these cards or what use, if any, they were ever put to.,
On Wednesday, March 5, Echols critized Powell for the
way in, which he was running his shop. Consequently, at 7
a.m. the next day, as the men were reporting for work,
ilhere is remarkably little dispute,m the record about the material facts
in this case . However-the testimony of all witnesses on events which took
place prior to March 6 is extremely vague as to timing . Consequently, my
findings as to the sequence in which these various events took place is
based on thq record as a whole As to this episode , for example, Powell
placed it in February 'Howdver; he and Burris are in general agreement
that their dispute over tools 'first cropped up about 3 weeks after Burris
returned to work , And Powell placed this loose wire incident before that
conversation Thus my finding that the loose wire incident was the first
significant event in the series that culminated ' in Burris' discharge
'I take official notice that Board records indicate no cases other than
this one, whether they be representation petitions or unfair labor practice
charges, involving Respondent and the Charging Party or any other labor
organization
Powell met them at the timeclock and told them-to
assemble for a meeting." At the meeting Powell undertook
to set forth rules which he expected the men to live up to
For example, he relayed to them Echols' criticism that
they were opening new boxes of materials before the old
ones were used up and that they were leaving the shop in
a messy state at the end of the day He outlined a
procedure under which the last few minutes of the
workday would be devoted to straightening up and putting
away. Powell's intention was to lay down the law to the
men, then give them an opportunity to ask questions when
he was finished However, Burris continually interrupted
him during his presentation as well as during the question
and answer period to the point where Powell became
irritated. It is impossible to recreate the exact order or the
context in which various subjects came up. However, there
is no dispute that, in the course of their exchanges, Burris
asked Powell why there was no cold drinking water in the
shop for the men; Burris asked Powell why the latrine in
the shop was so dirty; Burris asked Powell why there were
no first aid supplies; Powell said that, even though the
timeclock was inaccurate, the men should clock in and out
by it since the error at the end of the day would cancel
out the error at the beginning, to which Burris replied that
he had no intention of clocking in or out by the timeclock
but would continue to follow his own watch instead; and
Burris told Powell he was a company man who did not
give a damn about the men. As the meeting was breaking
up Burris went up to Powell and asked him what Powell
was going to do about various things, including the raise
Burris thought he was entitled to. Powell said he did not
know anything more the company could do about them.
Burris said he was going to do something about them, he
was going to organize a union Powell replied that it was
his privilege and he was welcome to start one as long as
he did not do it on company time
Later in the day the words "Go Union" appeared on
some written material which Powell had posted in the
shop, and Powell twice had to tell groups of men which
included Burris to break up their bull sessions and get
back to work.
On Friday evening, March 7, Mays, the carpenter,
visited Powell at his home.' Mays told Powell that some
of the men thought that Powell's authority had been
undermined when he let Burris get away with talking to
him as he had at the March 6 meeting. Mays said some of
the men thought that anybody who talked to a boss the
way Burris had should be fired.
'My findings on what took place at the March 6 meeting are a synthesis
of the testimony of Powell, Burris, Mays, Vance, Jack Allen, and Virgil
Grant The testimony of four other employees paraded to the stand by
Respondent to testify only about this meeting, namely, John Heckford,
Donald W Hunter, Ardell Williams , and Louis Webb, was so vague and
lacking in detail that I have ignored it The only material point in the
entire record as to which there is a conflict in the evidence is whether, as
Powell claims, Burris called him a "God damn company man " Burris
testified he accused Powell of being a company man and "not giving a
damn about the men " Only Mays and Allen of all the other witnesses to
the meeting were asked specifically what words Burris used in this
connection Allen said he did not hear "God damn " Mays said he heard
no cursing at all and stated explicitly that Burris called Powell a company
man, not a God damn company man. Therefore , I have credited Burris
over Powell I do not, however, consider the point significant I would
decide this case as I have even if my finding on this point were to the
contrary
'Powell places this conversation on Thursday evening In view of the fact
that Powell did not discharge Burris until Monday morning , March 10, I
find Mays' testimony that he went on Friday evening more credible
874 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
When Burris reported for work on Monday morning,
March 10, Powell met him and took him to the office
Powell told Burris he had been causing a lot of trouble
and bugging him lately, especially about a raise." Powell
told Burris he was being discharged on three grounds, (1)
reneging on their deal to use his own tools until Powell
got him a set, (2) doing, sloppy work, citing the loose wire
and the shower wall incidents, and (3) undermining
Powell's authority by his belligerency at the March 6
meeting. Powell also told Burris that he did not appreciate
Burris' writing "Go Union" on signs he had posted in the
plant. Powell'then brought Jack Allen into the office and,
while Burris was still there, discharged him for violating
one of the rules laid down at the meeting, i.e., not calling
in when he was going to be absent from work. There is no
contention by either the General Counsel or the Union
that the discharge of Allen in any way violated the Act
B. Conclusions
That Burris' discharge violated Section 8(a)(1) of the
Act is a conclusion fairly easy to reach. Respondent
admits that he was tired, at least in part, for his conduct
at the March 6 meeting. As a matter of fact, I am
convinced that he was fired solely for that reason and that
reneging on the tools deal and sloppy work were simply
makeweights thrown in by Powell at the discharge
interview to cloak his chagrin at reacting so belatedly to
the insults he had endured at Burris' hands 4 days before.
I rely for this conclusion on the demeanor of Powell at
the hearing as well as the fact that the tools situation
arose and the allegedly sloppy work was performed so
long before the decision to discharge Burris. Be that as it
may, insofar as Section 8(a)(I) of the Act alone is
concerned, the decision must turn on whether Burris was
engaging in a protected, concerted activity when he spoke
as he did to Powell on March 6. I conclude that he was.
It is clear that the March 6 meeting was not originally
planned by Powell as a grievance meeting. However, it is
equally clear that the meeting turned into a grievance
session soon `after it began. Burris spoke up boldly on
behalf of all the men when he complained about various
unsatisfactory conditions in the shop and demanded to
know what Respondent was going to do about remedying
them. He indicated his disdain for Powell as a
representative of management as he undertook to be the
spokesman for labor in the shop While the words he
spoke were personally insulting to Powell, they did not go
beyond the bounds permissible in the free and open
discussion between management and labor as equals
contemplated by the Act in the collective-bargaining
process. His "misconduct," if such it was, was not
"flagrant, violent, serious,. or extreme as to render him
unfit for further service." Socony Mobil Oil Company,
Inc., 153 NLRB 1244. 1 find, therefore, that Respondent
discharged Burris for engaging in a protected, concerted
activity and thereby violated Section 8(a)(1) of the Act.
Crown Central Petroleum Corporation, 177 NLRB No.
29, and cases cited therein, especially Bettcher
Manufacturing Corporation, 76 NLRB 526.
Whether the discharge of Burris also violated Section
8(a)(3) presents a more difficult problem. Certainly all the
'Again , the only dispute about the discharge interview is over a word
Burris, corroborated by Jack Allen, testified that Powell used the word
"agitate" while Powell said the word he used was "aggravate." I credit
classic elements necessary for such a finding are present
here. Powell did not discharge Burris until immediately
after he learned Burris planned to engage in union
activities because he was dissatisfied with the way Powell
had treated him since his return to work. Two of the three
ostensible reasons given by Powell in the discharge
interview are weak in the extreme. With respect to the
tools, Powell knew more than a month before the
discharge that Burris had reneged on the agreement to use
his own until Powell could get him a set, yet he did
nothing During this entire period Burris' work was
generally satisfactory, with the possible exception of the
shower wall that Burris installed out of plumb, despite the
lack of tools Insofar as Burris' allegedly sloppy work was
concerned, both incidents cited by Powell in the discharge
interview took place long before The shower wall incident
was trivial. The loose wire incident was serious, but the
blame was placed on Burris rather than Vance merely on
Vance's unsupported word. I am not convinced from the
record before me that Burris rather than Vance was in
fact the culprit who failed to make the splice Moreover,
Respondent's defense is further weakened by its reliance
at the hearing on the bull sessions Burris engaged in as an
additional ground for discharging him, a ground not
stated at the discharge interview. Finally, there is Burris'
admitted good record, a record sufficiently outstanding to
get him rehired despite Respondent's policy to the
contrary when he sought to return after once quitting
without notice
Despite all this evidence, I cannot conclude that Powell
was motivated by his knowledge of Burris' union
activities. I credit Powell's denial to that effect. On the
threshold question of Powell's knowledge, I find that it
began only with Burris' remarks at the end of the March
6 meeting. I reject the General Counsel's argument that
specific knowledge Burris had circulated authorization
cards in the plant should be inferred on the basis of the
record as a whole. I am persuaded to this conclusion by
the testimony of Burris that his activities were unobserved
and the complete lack of any other evidence that Powell
was told what Burris was up to by the men he
approached. Therefore, while the element of company
knowledge is supplied here by the words Burris spoke to
Powell at the end of the meeting, I find that Powell did
not know specifically how much Burris had done to carry
out his threat when he fired Burris on March 10. In
crediting Powell's denial of any antiunion motivation, I
rely on his admittedly noncommittal response to Burris on
March 6 when Burris threatened to organize the plant. I
rely on the absence of any other evidence of an antiunion
attitude on the part of Powell in particular or Respondent
generally. I rely especially on the fact that, except for the
testimony of Burris that he signed up 14 employees on
March 5 and 6, there is no evidence in this record of any
campaign by the Charging Party or any other labor
organization to organize Respondent's employees. As
indicated above, I am convinced that Powell was
motivated to discharge Burris solely by Burris' conduct at
the March 6 meeting. Since, therefore, the General
Counsel has failed to establish by a preponderance of the
evidence that Respondent discharged Burris on March 10
in order "to encourage or discourage membership in any
labor organization," I find that Respondent did not
thereby violate Section 8(a)(3) of the Act.
Upon the foregoing findings of fact, and on the entire
record in this case, I make the following-
Burris and Allen over Powell Once again, however , I do not consider the
distinction significant
MONARK BOAT COMPANY 875
CONCLUSIONS OF LAW
1. Monark Boat Company is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of
the Act.
2. International Union, United Automobile, Aerospace
and Agricultural Implement Workers of America (UAW)
is a labor organization within the meaning of Section 2(5)
of the Act.
3. By discharging Thomas Frank Burris on March 10,
1969, because he engaged in a protected, concerted
activity Respondent has interfered with, restrained, and
coerced its- employees in the exercise of the rights
guaranteed, to them by Section 7 of the Act and thereby
has violated Section 8(a)(I) of the Act.
4. The aforesaid unfair labor practice is an unfair labor
practice within the meaning of Section 2(6) and (7) of the
Act.
5. The allegation of the complaint that Respondent
violated Section 8(a)(3) of the Act by discharging Thomas
Frank Burris on March 10, 1969, has not been sustained.
THE REMEDY
Having found that Respondent has engaged in an unfair
labor practice, I will recommend that it cease and desist
therefrom and take certain affirmative action which will
effectuate the policies of the Act.
I have found that Respondent has violated Section
8(a)(1) of the Act by discharging Thomas Frank Burris.
Therefore, I will recommend that Respondent offer him
immediate and full reinstatement to his former or
substantially equivalent position without prejudice to any
seniority or other rights and privileges previously enjoyed
and make him whole for any loss of earning he may have
suffered as a result of his discharge by paying to him a
sum of money equal to that which he normally would
have earned as wages from the date of his discharge until
the date of Respondent's offer of reinstatement, less his
net earnings during such period, with backpay and interest
thereon to be computed in the manner prescribed in F. W
Woolworth Company, 90 NLRB 289, and Isis Plumbing
& Heating Co., 138 NLRB 716
Upon the basis of the above findings of fact,
conclusions of law, and the entire record in the case, and
pursuant to Section 10(c) of the National Labor Relations
Act, as amended, I hereby issue the following
(b) Notify Thomas Frank Burris it presently serving in
the Armed Forces of the United States of his right to full
reinstatement upon application in accordance with the
Selective Service Act and the Universal Military Training
and Service Act, as amended , after discharge from the
Armed Forces.
(c) 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.
(d) Post at its plant in Monticello , Arkansas , copies of
the attached notice marked "Appendix ."' Copies of said
notice, on forms provided by the Regional Director for
Region 26 , after being duly signed by Respondent's
representative , shall be posted by it 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 26, in
writing, within 20 days from the receipt of this Decision,
what steps have been taken to comply herewith.'
I FURTHER RECOMMEND that the complaint be dismissed
insofar as it alleges that Respondent violated Section
8(a)(3) of the Act by discharging Thomas Frank Burris on
March 10, 1969.
'In the event that the Recommended Order is adopted by the Board, the
words "This notice is posted by order of the National Labor Relations
Board after a trial at which all sides had the chance to give evidence, the
National Labor Relations Board found that we, Monark Boat Company,
violated the National Labor Relations Act, and Ordered us to post this
Notice," shall be substituted for the words "pursuant to the Recommended
Order of a Trial Examiner of the National Labor Relations Board and in
Order to effectuate the policies of the National Labor Relations Act, as
amended, we hereby notify our employees that," in the notice In the
further event that the Board 's Order is enforced by a decree of the United
States Court of Appeals, the words "this notice is posted by order of the
United States Court of Appeals" shall be substituted for the words "this
notice is posted by order of the National Labor Relations Board"
'In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read "Notify the Regional Director for
Region 26, in writing , within 10 days from the date of this Order, what
steps Respondent has taken to comply herewith "
RECOMMENDED ORDER
Monark Boat Company, its officers, agents, successors,
and assigns, shall:
1. Cease and desist from:
(a) Discharging its employees for engaging in protected,
concerted activities.
(b) In any like or related manner interfering with,
restraining, and coercing employees in the exercise of
rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Offer to Thomas Frank Burris immediate and full
reinstatement to his former or substantially equivalent
position without prejudice to any seniority or other rights
and privileges previously enjoyed and make him whole for
any loss of pay suffered as a result of his discharge by
Respondent in the manner set forth above under the
section entitled "The Remedy."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our
employees that:
The Act gives all employees these rights: to engage
in self-organization; to form, join, or help unions; to
bargain collectively through a representative of their
own choosing; to act together for collective bargaining
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
or other aid or protection ; to refrain from any or all of
these things,
WE WILL NOT fire you if you take part in protected,
concerted activities.
WE WILL immediately offer to reinstate Thomas
Frank Burris to his former or substantially equivalent
job without any change in the seniority or other
privileges he enjoyed before we fired him and we will
pay to him any money lost as a result of his discharge
with interest at 6 percent.
WE WILL notify Thomas Frank Burris if presently
serving in the Armed Forces of the United States of his
right to full reinstatement upon application in
accordance with the Selective Service Act and the
875a
Universal Military Training and Service Act, as
amended , after discharge from the Armed Forces.
MONARK BOAT COMPANY
(Employer)
Dated By
(Representative ) (Title)
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.
If employees have any question concerning this notice
or compliance with its provisions , they may communicate
directly with the Board ' s Regional Office, 746 Federal
Office Building , 167 North Main Street , Memphis,
Tennessee 38103, Telephone 901-534-3161.