North Electric Co.

National Labor Relations Board - Board Decisions

Dec 7, 1977

233 N.L.R.B. 1017 (N.L.R.B. 1977)

NORTH ELECTRIC COMPANY
North Electric Company and Robert R. Edelstein.
Case 32-CA-94 (formerly 20-CA-11630)
December 7, 1977
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
PENELLO AND MURPHY
On August 11, 1977, Administrative Law Judge
Richard D. Taplitz issued the attached Decision in
this proceeding. Thereafter, the General Counsel
filed exceptions and a supporting brief, 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
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,' and conclusions of the Administrative Law
Judge and to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the complaint be, and it hereby is,
dismissed in its entirety.
I 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
credibility 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
RICHARD D. TAPLITZ, Administrative Law Judge: This
case came to hearing at San Jose, California, on April 21,
1977. The charge was filed on June 24, 1976,1 by Robert R.
Edelstein, an individual. The complaint issued on Novem-
ber 18, 1976, alleging that North Electric Company, herein
t On September 8, 1976, the Regional Director for Region 20 dismissed
the charge and on November 2, 1976, the Regional Director vacated that
dismissal. Counsel for the Respondent argues that the complaint is not
based on a valid charge because a timely appeal was not filed by the
Charging Party from the Regional Director's dismissal. The appeal was due
at the General Counsel's office of appeals on September 21, 1976. By letter
dated September 17, 1976, counsel for the Charging Party notified the office
of appeals that she had been contacted about an appeal by the Charging
Party on September 15, 1976, and that she was requesting an extension of
the time to appeal. That letter was not received by the office of appeals until
September 23, 1976. Nonetheless, an extension of the time to appeal was
233 NLRB No. 153
called the Company, violated Section 8(a)(3) and (1) of the
National Labor Relations Act, as amended.
Issues
The sole issue is whether the Company discharged
Edelstein either because of his union activity or because he
sought wage increases for the Company's employees.
All parties were given full opportunity to participate, to
produce relevant evidence, to examine and cross-examine
witnesses, to argue orally, and to file briefs. Briefs, which
have been carefully considered, were filed on behalf of the
General Counsel and the Company.
Upon the entire record of the case and from my
observation of the witnesses and their demeanor, I make
the following:
FINDINGo OF FACT
1. THE BUSINESS OF THE COMPANY
The Company has offices and places of business at
various locations in the United States, including one in
Santa Clara, California, where it is engaged in the
operation of a warehouse for the distribution of telephones
and telephone parts. During the past calendar year, in the
course of its business operations in California, the Compa-
ny purchased and received goods valued in excess of
$50,000 directly from suppliers located outside California.
The Company is an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
II1. THE LABOR ORGANIZATION INVOLVED
Sales Delivery Drivers, Warehousemen, and Helpers
Union, Local No. 296, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of
America, herein called Local 2%, is a labor organization
within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAR LABOR PRACTICES
A. The Sequence of Events
The Company operates seven warehouses in various
parts of the United States in which it receives and stores
telephones and telephone parts which it ships to indepen-
dent telephone companies and to its own enterprise,
United Telephone Company. The warehouses all operate
under a standard procedure and all use a central computer.
The computer is utilized to develop orders and keep up
inventory.
One of the Company's warehouses is located in Santa
Clara, California. The Company employed four people at
granted, and an appeal was filed within the extended time period. Sec.
102.19(a) of the Board's Rules and Regulations provides that consideration
of an appeal untimely filed is within the discretion of the General Counsel
upon good cause shown. There is no basis for finding that the General
Counsel abused his discretion in extending the time to appeal. It is noted
that on November 2, 1976, when the dismissal of the charge was vacated, 6
months had not yet passed from June II, 1976, the date of the alleged unfair
labor practice, and therefore even if the reinstituted charge were considered
a new charge as of November 2, 1976, it would have been timely under Sec.
10(b) of the Act.
1017
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that warehouse during the times relevant herein. They were
Warehouse Manager Julian Gonzalez, 2 warehouse secre-
tary or clerk Lynn DeLisle, and warehousemen Henry
Zender and Robert R. Edelstein. The warehousemen
received telephone parts, stocked them in the warehouse,
packaged them, and shipped them. They were paid a
monthly salary and their work hours were from 8 a.m. to
4:30 p.m., with two 15-minute breaks and a half hour
lunch. Under outstanding company policy new employees
were subject to a 90-day probationary period.
Edelstein was hired on March 15, 1976. He was
discharged on June 11, 1976, which was the end of the last
pay period3 before the expiration of his probationary
period. The reason for his discharge is in dispute.
About the end of April or beginning of May 1976
Edelstein and Zender had a conversation in which they
discussed their dissatisfaction with their wages and hours.
In mid-May 1976 Edelstein and Zender went into Supervi-
sor Gonzalez' office and asked to speak to him. Edelstein
was the spokesman for both employees. Edelstein said that
he was not being compensated fairly for his job and that
the Company should either increase his wages or give him
time off. As the employees were paid a monthly salary, the
time off would be the equivalent of a raise in an hourly
rate. Gonzalez said that he would talk to the people in the
home office and see what he could do. Shortly thereafter,
Gonzalez told Edelstein that they would try a system under
which the employees, on a rotating basis, would leave
before the ordinary 4:30 quitting time if all the work had
been completed. That policy was instituted on a trial basis
and Edelstein, Zender, and DeLisle rotated in leaving
early. When it was Edelstein's turn he left up to 3-1/2
hours early. The other two employees took less time off.
During the time the early time-off system was in effect,
Gonzalez found that he could not tell from hour to hour
what the workload would be, because truckloads and rush
orders could come in that required the services of two men.
He also found that he was spending most of his time in the
warehouse making sure that the company procedures were
being followed. On or about June 1, 1976, Gonzalez told
the employees that the early time-off system would no
longer be followed, that they would have to work the
regularly scheduled work hours from 8 to 4:30 and that
they could not leave without his permission. When
Gonzalez told Edelstein that the early time-off system was
ending, Edelstein replied that he did not want to cause any
trouble, but he had taken some labor courses in college and
he knew he could bring in a union. Gonzalez said that that
was his prerogative. 4
Edelstein testified that some time prior to the institution
of the free time-off policy he had a conversation with
Gonzalez in which Gonzalez said that one of the regional
2 The complaint alleges, the answer admits, and I find that Gonzalez is a
supervisor within the meaning of the Act.
3 Paydays were every other Friday.
4 These findings are based on the testimony of Gonzalez. Much of it was
corroborated by the testimony of Edelstein. However. Edelstein denied that
Gonzalez made any response when he (Edelstein) mentioned a union.
Gonzalez impressed me as a guileless, candid witness who was fully credible.
Edelstein was extremely vague concerning the circumstances surrounding
some of the conversations to which he testified. His demeanor on the
witness stand did not inspire confidence. As between Gonzalez and
Edelstein I credit Gonzalez.
warehouses was unionized, that it had the poorest perfor-
mance of any of the warehouses, and that the executives
would have liked to close down the warehouse for a year to
get rid of the union, but that it was not economically
feasible because that warehouse was located close to a
telephone manufacturing plant. Edelstein testified that he
did not recall who brought up the subject of the Union and
that he had no idea of the context in which the
conversation came about. He was also unsure of when the
conversation took place. Gonzalez testified that he had two
conversations with Edelstein in which the Union was
mentioned. One, as discussed above, was on June I when
the early time-off period ended. Gonzalez averred that the
only other conversation was before the time-off period
began. According to Gonzalez, he had received a ware-
house appraisal form which he showed to Edelstein;
Edelstein saw that the Mansfield warehouse was at the
bottom of the list; and Gonzalez said that they were having
some problems and that it was a union warehouse.
Gonzalez specifically denied that he said anything about
closing the Mansfield warehouse for a year to get rid of the
union. I credit Gonzalez and do not credit Edelstein.5
On June 10, 1976, Edelstein was sick and did not report
for work. In the late afternoon of that day he called Hank
De Diago, a representative of Local 296, about the
possibility of obtaining union representation at the ware-
house. De Diago told him the process for gaining
representation. That evening Edelstein called Zender on
the telephone and told him about his conversation with the
union representative. Zender said that he would be willing
to sign a card to have an election. The same evening
Edelstein called DeLisle on the telephone and repeated
what he had told Zender. DeLisle said that she did not
think she was willing to sign a union card. There is no
evidence in the record to establish or to base an inference
that the Company obtained knowledge of Edelstein's
telephone conversations with De Diago, Zender, or
DeLisle. 6 Gonzalez credibly testified that he had no
knowledge of those conversations.
At the end of the workday on June 11, 1976, Gonzalez
discharged Edelstein. Gonzalez told Edelstein that he was
fired for insubordination. As this was happening, Zender
walked into the office and Edelstein told him that he
(Edelstein) had been fired. When Zender asked the reason,
Edelstein said that Gonzalez had told him that he was fired
for trying to run the place by himself, trying to do things
his own way, and being insubordinate. Edelstein asked
Gonzalez whether Zender was also being fired. Gonzalez
5 Edelstein also testified that at the end of April or beginning of May he
told Gonzalez that a lot of the warehouses in the area were unionized and
that they as employees had that alternative. At another point in his
testimony he averred that he never had a conversation with Gonzalez on the
subject of unions prior to the mid-May conversation in which he expressed
his dissatisfaction with wages. As indicated above, Gonzalez averred that
there were only two conversations in which a union was mentioned. I do not
credit Edelstein with regard to the alleged third conversation.
6 It is noted that counsel for the General Counsel does not contend in her
brief that the Company obtained such knowledge.
1018
NORTH ELECTRIC COMPANY
replied that Zender was not going to be fired but that he
was going to be on probation for a couple of weeks.7
The complaint does not allege that Zender's suspension
violated the Act. Gonzalez credibly testified that Zender
had been an outstanding employee before Edelstein was
hired and that he (Gonzalez) thought Edelstein had been a
negative influence on Zender. He credibly averred that on
or about June 1, 1976, he told Zender that he thought
Zender was not performing as well as he had in the past,
and that on June II he put Zender on probation to let
Zender know that he was not working up to his potential.
On June 14, 1976, Edelstein called Company Executive
John Hartling in Kansas City and asked about the
discharge. Hartling told him that Gonzalez had reported
that Edelstein had been discharged for insubordination.
The Company's records also show that the discharge was
for insubordination.
On June 21, 1976, Gonzalez signed a statement relating
to Edelstein's unemployment compensation claim. In the
part of the form that said, "If this person quit or was fired,
explain in detail," Gonzalez wrote, "Insubordination and
unwilling to submit to company policy. The claimant
believed he should be able to leave the job when he thought
he had done 8 hours work even if the workday had not
finished. He also believed he was under-paid. Wanted
compensation beyond my control." Gonzalez credibly
testified that his remark, to the effect that Edelstein wanted
compensation beyond Gonzalez' control and that Edelstein
believed he was underpaid, had nothing to do with the
reason for the termination. He also credibly averred that he
thought those remarks might explain some of the insubor-
dination.
B. The Reasons Advanced by the Company for the
Discharge
Edelstein was aware of the fact that the Company had a
number of warehouses and that it was essential that
everyone follow prescribed procedures because the work
had to be coordinated with the procedures at the other
warehouses.
Gonzalez credibly testified that Edelstein was a good
worker for the first month of his employment but that after
that he continually questioned company procedures and
failed to properly follow them. When Gonzalez corrected
Edelstein, Edelstein did the work properly for several days
and then went back doing it his own way. Gonzalez had to
constantly supervise Edelstein to make sure that Edelstein
was doing things correctly. The problem arose in a number
7 These findings are based on the credited testimony of Gonzalez and
Zender. Edelstein testified that when he was discharged Gonzalez told him
that he (Gonzalez) did not like the atmosphere that existed with Edelstein
there. I do not credit Edelstein.
s Edelstein testified that on several occasions Gonzalez told him that he
(Edelstein) was doing too much of the workload and that he should slow
down and let Zender do more. Gonzalez, in his testimony, acknowledged
that he told Edelstein he was working too fast. However, Gonzalez also
averred that it occurred during the early time-off period and that Edelstein
was working fast and recklessly so that he could leave early.
9 These findings are based on the testimony of Gonzalez. Edelstein in his
testimony denied that he ever sought to leave work early after the early time-
off period was terminated and also denied that he talked to Gonzalez about
such a matter. He averred that dunng the early time-off period one of the
employees sought to leave early and that Gonzalez asked to be notified
of different contexts. Company procedure requires that top
priority be given to receiving merchandise. Employees were
supposed to stop whatever they were doing when merchan-
dise came in so that the new merchandise could be entered
in the computer. Edelstein questioned that procedure,
saying that he did not feel he should stop what he was
doing to follow a procedure that had been set down by the
Company in Kansas. The company procedure calls for the
rotation of stock so that items in the warehouse longest
were the first shipped out. The newly received stock had to
be physically placed in back of the older stock. Edelstein
told Gonzalez that the rotation took too much time.
Gonzalez often observed Edelstein failing to rotate the
stock and repeatedly told him to correct the situation.
Company procedures require that orders be segregated to
avoid shipping errors. Separate orders were to be separate-
ly stacked rather than being placed on top of each other.
On several occasions Edelstein stacked different orders on
top of each other and argued with Gonzalez when
Gonzalez corrected him. Edelstein often worked through
his breaks and then asked to go home early because his
part of the work for the day had been completed. On a
number of occasions Gonzalez told Edelstein that he was
supposed to take his breaks like all the other employees
and be there from 8 to 4:30.8
The above findings are based on the credited testimony
of Gonzalez. Zender, who had been assigned to train
Edelstein, testified to a number of incidents involving
Edelstein which indicated the same type of attitude and
conduct by Edelstein as had been described by Gonzalez.
Those incidents were not reported to Gonzalez, so they
may not be considered in evaluating the Company's
motivation for the discharge. However, Zender's testimony
does support the conclusion that Gonzalez accurately
evaluated the work and attitude of Edelstein.
The early time-off period ended on June 1, 1976. On
June 4, Gonzalez observed Edelstein leaving 10 or 15
minutes before the 4:30 quitting time. He asked where
Edelstein was going and Edelstein replied that he was
going home. Edelstein also said that he had worked
through his break and that he should be able to go home.
Gonzalez replied that Edelstein was supposed to take his
breaks and go home at 4:30 just like the other employees.
They continued to discuss the matter until 4:30 when
Edelstein left.9
Gonzalez credibly testified that on June 4, 1976, after
Edelstein tried to leave early, he decided that he would
terminate Edelstein. He also decided to make the termina-
tion effective on Friday, June 1 , which was the end of that
when someone was leaving early. He also averred that the employees agreed
to notify Gonzalez. Gonzalez, in his testimony, denied that any such
conversation took place and averred that it was the established procedure,
even during the early time-off period, for employees to check with him
before they left. Zender testified that sometime after the early time-off
period ended he saw Edelstein trying to leave about 10 minutes before
quitting time and he heard Gonzalez tell Edelstein that he could not leave
before quitting time. In an affidavit he gave to the General Counsel. Zender
averred that he thought the incident occurred during the early time-off
period. However, in his testimony at the hearing he averred that the incident
had to be after the early time-off period because otherwise there would not
have been an argument about Edelstein's leaving 10 minutes early. During
the early time-off period Edelstein had been leaving as much as 3-1/2 hours
early. I credit Gonzalez and Zender's testimony. I do not credit Edelstein.
1019
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
payroll period and the end of the last payroll period before
the expiration of Edelstein's 90-day probationary period.
Gonzalez credibly testified that he thought Edelstein
would take too much supervision and that he was not the
type of employee that they needed on that type of a job.10
He further credibly testified that his conversations con-
cerning unions with Edelstein, and Edelstein's efforts at
seeking additional compensation, had nothing to do with
the termination.
C. Analysis and Conclusions
In mid-May 1976 Edelstein asked Supervisor Gonzalez
for a raise. He did it in the presence of Zender after
discussing the matter with Zender. It is reasonable to
believe that the request for a raise was on behalf of both
and that it was therefore a concerted activity. There is no
evidence that the Company was hostile toward employees
who asked for raises.
On June 1, when Gonzalez informed Edelstein that a
paid time-off policy would no longer be in effect, Edelstein
replied that he could bring in a labor union. His right to
bring in a labor union was protected by the Act. The
credited evidence does not establish that the Company
knew of any other protected activity that Edelstein engaged
in.l l Sometime before June 1976 Supervisor Gonzalez told
Edelstein that the Company was having problems with its
Mansfield warehouse and that that warehouse was union-
ized. The remark was made in the context of a discussion
relating to the position of the Mansfield warehouse on a
warehouse appraisal form. That remark was not of such a
nature as to indicate that Gonzalez harbored the type of
animosity against union activity that would make it
reasonable to believe that he was motivated to discharge an
employee because that employee spoke about bringing in a
union. There is no other credited evidence indicating that
the Company harbored any union animus.
1' Gonzalez credibly testified that another employee, Edward Roth, was
terminated for failing to follow proper warehouse procedures.
i" Edelstein was discharged the day after he had a telephone conversa-
tion with a union representative and two telephone conversations with other
employees about the Union. While the timing of the discharge raises
suspicions, there is insufficient evidence to establish that the Company knew
of those conversations. Those conversations did not take place on company
premises, and there were no circumstances present that would make it
Gonzalez credibly testified in substance that he was
dissatisfied both with Edelstein's failure to follow company
procedures and with Edelstein's attitude towards supervi-
sion. He further credibly testified that he decided to
discharge Edelstein on June 4 after he saw Edelstein
attempting to leave work early. Edelstein was discharged
on June 11, which was the last day of the payroll period
and shortly before Edelstein's 3-month probationary
period ended.
Edelstein's protected activity was limited, the Company
was not shown to harbor the type of animosity against such
activity that would give it a motive to discharge Edelstein
because of that activity, and the Company has established
by credible evidence that it had legitimate business reasons
for the discharge. I find that the General Counsel has failed
to establish by a preponderance of the credible evidence
that there was a causal connection between Edelstein's
union or other protected activity and his discharge. I shall
therefore recommend that the complaint be dismissed in its
entirety.
CONCLUSIONS OF LAW
I. The Company is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. Local 296 is a labor organization within the meaning
of Section 2(5) of the Act.
3. The Company did not violate the Act as alleged in
the complaint.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER 12
It is hereby ordered that the complaint is dismissed in its
entirety.
reasonable to believe that the Company obtained knowledge of them. Cf.
Samsonite Corp., 206 NLRB 343, 349 (1973).
12 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.
1020