Oberle-Jordre Co.

National Labor Relations Board - Board Decisions

Aug 14, 1984

271 N.L.R.B. 985 (N.L.R.B. 1984)

OBERLE-JORDRE CO.
Oberle-Jordre Company, Division of the Bishopric
Products Company and Chauffeurs, Teamsters,
Warehousemen and Helpers of America, Local
135. Case 25-CA-15539
14 August 1984
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
ZIMMERMAN AND HUNTER
On 18 April 1984 Administrative Law Judge
William F. Jacobs issued the attached decision. The
Respondent filed exceptions and a supporting brief,
and the General Counsel filed a brief in limited
support of the judge's decision.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings,' and
conclusions and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Oberle-
Jordre Company, Division of the Bishopric Prod-
ucts Company, New Paris, Ohio, its officers,
agents, successors, and assigns, shall take the action
set forth in the Order.
I In discussing par. 6(b) of the complaint concerning Nickell's dis-
charge, the judge stated that the Respondent advised the Union 23 Sep-
tember 1982 that "it was no longer in need of a Union." The record
shows, consistent with the judge's earlier description of the Respondent's
letter in the background section of his decision, that the Respondent in-
formed the Union that it was "not in need of an agreement with you at
this time,"
The judge found that 14 February 1982 was Nickell's last day of work
and that he was effectively terminated as of the next day. The Respond-
ent introduced into evidence a summary of its payroll record which indi-
cates Nickell worked 2 hours 23 February 1982. This entry for 23 Febru-
ary is not however, substantiated by the actual payroll records which
also were introduced into evidence. This discrepancy does not affect our
adoption of the judge's finding that Nickell was discharged 15 February
1983, and any question of Nickell's subsequent earnings can be resolved
in the compliance stage of the proceeding.
DECISION
STATEMENT OF THE CASE
WILLIAM F. JACOBS, Administrative Law Judge. This
case was tried before me on August 24 and October 24
and 25, 1983,' at Richmond, Indiana. The charge was
filed on May 20 by Chauffeurs, Teamsters, Warehouse-
men and Helpers of America, Local 135 (the Union).
The original and amended complaints issued July I and
July 15, respectively. The amended complaint was fur-
ther amended on August 5, 15, and 31. In its final form
the complaint alleges that Oberle-Jordre Company, Divi-
sion of The Bishopric Products Company (Respondent),
violated Section 8(a)(1), (3), and (5) of the National
Labor Relations Act (the Act). More particularly the
complaint alleges that Respondent violated Section
8(a)(1) by threatening its employees with discharge be-
cause they supported or assisted the Union and by inter-
rogating them regarding their union membership, activi-
ties and sympathies; violated Section 8(a)(1) and (3) by
reducing the hours of employment of Robert Nickell and
thereafter discharging him for discriminatory reasons;
and violated Section 8(a)(1) and (5) and Section 8(d) by
unilaterally subcontracting bargaining unit work, with-
drawing recognition from the Union, and failing and re-
fusing to bargain with the Union as the exclusive collec-
tive-bargaining representative of its employees. Respond-
ent filed timely answers to the complaints and amend-
ments in which it denied the commission of any unfair
labor practices. The allegations and answers frame the
issues.
The General Counsel, Charging Party, and Respond-
ent were all represented at the hearing and were afford-
ed full opportunity to be heard and to present evidence
and argument. The General Counsel and Respondent
filed briefs. 2 On the entire record, my observation of the
demeanor of the witnesses and after giving due consider-
ation to the briefs, I make the following
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
Respondent, an Ohio corporation, maintains its princi-
pal offices and places of business in Cincinnati and New
Paris, Ohio, and is and has been at all material times, en-
gaged in the business of general construction contracting
and related services. During the 12-month period ending
August 5, 1983, a representative period, Respondent, in
the course and conduct of its business operations at its
New Paris, Ohio facility, purchased and received goods
and materials valued in excess of $50,000 which were
shipped to the Respondent at its New Paris, Ohio facility
directly from points outside of the State of Ohio. The
complaint alleges, the answer admits, and I find that Re-
spondent is an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
I All dates are in 1983 unless otherwise indicated.
2 Respondent also filed a motion to correct transcript and the General
Counsel filed a response in opposition. I find the requested corrections
warranted and the motion is granted.
271 NLRB No. 156
985
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning
of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
1. Business of Respondent between 1947 and March
1, 1982
The Respondent, between 1947 and March 1, 1982,
was primarily engaged in the business of installing boil-
ers, turbines, and other equipment at power plants and
other construction sites throughout the United States. In
Richmond, Indiana it maintained a large facility where it
fabricated tools and equipment to service its operations
at the construction sites and stored a very extensive in-
ventory of tools, parts, and other equipment.
In order to ship the various boilers, turbines, and other
equipment to the construction sites, Respondent also
maintained a fleet of trucks which were loaded at the
Richmond facility by means of overhead monorails. A
large machine shop was housed at the Richmond plant
which was used to machine and repair tools as well as a
garage where its vehicles were maintained and repaired.
Employees working at the Richmond facility included
driver-mechanics, pipefitters, ironworkers, operating en-
gineers, and millwrights, all represented by labor organi-
zations. Each craft was responsible for its own type of
work although occasionally a driver might be required
to do work at a jobsite which was regarded as within the
jurisdiction of one of the other trades. On these occa-
sions the driver would receive the contractual hourly
wage of the craft whose work he performed. The use of
forklifts both at the construction sites and at the Rich-
mond facility to load and unload equipment was exten-
sive and although the operation of the lifts was work
claimed by the operating engineers, in practice all crafts
were engaged in their operation. Similarly, any employ-
ees regardless of craft, might be used to pick up supplies
and carry them to Richmond or the construction sites.
Due to the nature of the work performed and the dis-
tances to be covered, Respondent's fleet of vehicles was
large and varied. Besides the aforementioned forklifts,
Respondent's fleet also included tractors and trailers for
the over-the-road hauling of equipment, pickup trucks
which were assigned to foremen for use in traveling be-
tween jobsites and for the use of employees to run er-
rands and pick up supplies and company officials' auto-
mobiles for business use.
The employees classified as driver-mechanics were
covered by a collective-bargaining agreement with the
Teamsters. They were assigned the job of driving the
over-the-road trucks, hauling equipment to and from the
jobsites. Likewise, the same employees were responsible
for the maintenance and repair of the fleet. In fact, about
75 percent of the automobile mechanic work done in
Richmond and at the construction sites was done by em-
ployees of Respondent in the Teamsters' unit. The rest
was done by subcontractors.
Insamuch as Respondent did not have an Interstate
Commerce Commission permit, its drivers could only
haul its own equipment on interstate trips where a par-
ticular job required the hauling of equipment belonging
to another company, the job had to be subcontracted to
another carrier, one owning such a permit.
Although the primary business of Respondent was the
servicing and tooling of construction sites, particularly
power plants, it was also engaged, to a minor degree, in
the moving and installing of customers' equipment in the
Richmond area. When necessary, the Respondent some-
times warehoused customers' equipment at its Richmond
facility prior to installing it at its new location. This local
business, however, was merely incidental and the profits
therefrom were considered as just an offset to the over-
head of maintaining the facility, the main purpose of
which was to support the construction business.
In connection with this local work, the Respondent's
truck driver-mechanics hauled customers' equipment be-
tween the local sites and to and from the Richmond
warehouse. In order to engage in this activity, it was
necessary for Respondent to acquire a permit from the
Indiana Public Service Commission. As for the loading
and unloading of the equipment on these local jobs, all of
the employees, regardless of craft, participated in this
work on an as-needed basis. Similarly, any employee
might be called upon to pick up and deliver supplies to
the local sites. Actual installation of equipment, rigging,
and setting up were performed by members of each craft
according to the jobs' requirements. Only occasionally
did driver-mechanics engage in this work and then only
if the work load demanded it. On these occasions the
truck driver-mechanics were paid at the contract rate of
the craft whose work he was doing.
Respondent, at various points in time, here under dis-
cussion, recognized and signed labor agreements with the
various craft unions representing their employees includ-
ing the Teamsters. The most recent collective-bargaining
agreement with Teamsters Local 135 was effective for
the period May 9, 1980, to February 28, 1983, and cov-
ered a unit of warehouse foremen, mechanics, mechanic
helpers, greasers, lowboy drivers, and light, heavy, and
over-the-road truck drivers.
2. March 1, 1982, to the present
On March 1, 1982, Bishopric Products Company of
Cincinnati acquired certain of Respondent's operations
and assets. With the acquisition, it was intended that the
purchased equipment be moved to Cincinnati along with
the remote construction operation. The local industrial
work was to be abandoned and the Richmond facility
closed down. In furtherance of this plan, the parent com-
pany ordered that all of the employees at the Richmond
facility be laid off since there was no longer any work to
be done at that location. However, several employees,3
including truckdriver-mechanic Darrell Nickell, request-
ed that they be kept on to work on an as-needed basis,
rather than be laid off, and agreed to waive call-in pay if,
when they reported in, there was no work available.
' Besides Nickell, these included Lester Philback, ironworker; Bob
Dillman, millwright; Charlie Dunham, operating engineer; and Steve
Smallwood, operating engineer.
986
OBERLE-JORDRE CO.
In June 1982 Bishopric changed its plan and deter-
mined that whereas before it had decided to transfer its
remote construction business to Cincinnati and dissolve
its local business, it would now follow through on the
Cincinnati transfer, but would continue its local industri-
al operation by reorganizing it and moving it to a small-
er, compact facility. In keeping with the change in plans
Bishopric closed down its servicing and tooling of
remote construction sites from Richmond, as well as its
fabrication and machine shop which supported that oper-
ation, and removed it to Cincinnati. It also reorganized
its local installation work by eliminating the warehousing
aspect of it and emphasizing the direct hauling of equip-
ment from one site to another. The effect of this change
was expected to be the discontinuance of some local
hauling to and from the warehouse and the elimination
of a good deal of loading and unloading at the ware-
house.
The new and smaller facility eventually decided upon
turned out to be a small facility leased in New Paris,
Ohio, and the actual move took place August 20, 1982.
The new facility was about one-eighth the size of the
Richmond facility, incapable of storing customers' equip-
ment and without machine and fabrication shops. Unlike
the Richmond facility, New Paris had no railroad access
and its outside area was only about 5 percent of that at
the Richmond facility.
As a consequence of the changes resulting from the
March acquisition and the June operational decision,
available truck driver-mechanic work was drastically re-
duced. Thus, the need for servicing and tooling of
remote construction sites was eliminated as was the driv-
ing connected therewith. The need for the machine shop
and garage to service the over-the-road vehicles was
similarly obviated by the move of the over-the-road op-
eration to Cincinnati. Similarly, the elimination of the ne-
cessity of hauling customers' machinery to and from the
Richmond warehouse, in connection with the storage
part of the local industrial business, has resulted in a de-
crease in drivers' work, both in driving time and in load-
ing and unloading time. With the elimination of the ne-
cessity of employing drivers to do intrastate hauling, Re-
spondent determined that it did not need to renew its In-
diana Public Service Commission permit and therefore
let it lapse.
Following the decision in June to open up the smaller
operation in New Paris, what vehicle maintenance was
required for the few trucks retained at New Paris was
contracted out to local garages. Such work as the chang-
ing of tires, lubrication, installing of spark plugs, etc.,
amounted to less than 8 hours per week. It was therefore
considered more economic to have it done by outsiders
than to retain driver-mechanic employees to do it.
Following the establishment of the New Paris facility,
the truck driver-mechanics' hauling and maintenance
work were eliminated. The interstate hauling of custom-
ers' equipment continued to be subcontracted out just as
before. Supplies continued to be picked up by all em-
ployees still on an as-needed basis. Forklift work was
done by operating engineers who continued to claim ju-
risdiction over the work.
As far as available work was concerned, in March, fol-
lowing the termination of most of the employees, truck-
driver-mechanic duties were extremely limited and, what
little work there was, was given to Nickell except for a
very few scattered hours worked by one other driver.
Nickell, from March 1982 until February 28, 1983, when
he was eventually laid off, worked a little over a thou-
sand hours of truckdriver-mechanic related work.
Ninety-nine of these hours were related to the move to
New Paris and were temporary in nature. Subtracting
the move-related work from his regular duties, it is clear
that Nickell averaged less than 20 hours of truckdriver-
mechanic 4 work per week during his last year of work
and performed no such work at all on about 40 percent
of the regular workdays. He worked full 40-percent
workweeks on only six occasions. In January and Febru-
ary 1983 Nickell averaged less than 10 hours of truck-
driver-mechanic work. It is quite apparent from testimo-
ny and from company records that after March 1, 1982,
there was insufficient truckdriver-mechanic work avail-
able to employ one truck driver-mechanic full time.
3. Withdrawal of recognition
With the expiration dates of Respondent's collective-
bargaining agreement approaching, the Union, on August
27, 1982, sent notice to Respondent at its Richmond ad-
dress that it desired to meet to negotiate a new contract.
On September 23, 1982, A. V. Lang, president of Re-
spondent, responded in writing, advising the Union that
it was no longer operating a facility at Richmond and
was therefore no longer in need of a labor agreement
with the Union. Lang concluded his letter with a notice
that the agreement between the Union and the Respond-
ent was terminated. Lang testified that he sent the letter
because there was only one truckdriver-mechanic left
working for Respondent, namely, Robert Nickell, and he
was only working part time. That being the case, it was
Lang's understanding that there was no longer any obli-
gation to retain a bargaining relationship with the Union.
The Union made no reply to Lang's letter but on Feb-
ruary 24 sent contract proposals to the Richmond facility
along with a request to meet to negotiate. The cover
letter accompanying the contract proposals was ad-
dressed to Paul Oberle Sr. and was signed by Business
Representative Arthur Hicks. Oberle replied that follow-
ing day, calling Hicks' attention to Lang's previous
letter, and enclosing a copy. He advised Hicks that he,
Oberle, would have to abide by Lang's decision, and that
if there were to be any renegotiation of the contract, it
would be Lang who had to be contacted. Oberle then
added that it was his understanding that Nickell had
signed up for unemployment compensation on February
15, although he had not been given a layoff slip. He ad-
vised Hicks finally that Nickell would be terminated as
of February 28.
On March 9, Hicks wrote Lang, again requesting ne-
gotiations and suggesting several dates. He added that he
4 Nickell did some work belonging to the crafts also and "as compen-
sated at the higher rate of pay
' February 28. 1983
~~~ _~ ~
987
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
would also like to meet with Lang to discuss a grievance
filed by him of behalf of Nickell. Lang replied to this
letter on March 29 reiterating that Respondent no longer
had facilities in Richmond nor a bargaining unit for
which the Union could be the collective-bargaining
agent. He repeated that he had already given notice of
the termination of the 1980-1983 agreement and reiterat-
ed that there was no basis for further contract negotia-
tions. With regard to the Nickell grievance, Lang stated
that the agreement had expired as of midnight February
27 and, since the event which gave rise to the grievance
occurred on February 28, namely, his termination, there
was no agreement in effect which could have been vio-
lated.s He offered to meet and discuss the matter if
Hicks chose to do so.
4. The termination of Nickell and the alleged 8(a)(1)
incidents
In July 1982, Paul Oberle Sr. advised Robert Nickell
that Respondent was moving across the state line and
would not have to take the Teamsters with it. He told
Nickell that he wanted him to go to the union hall and
take out a withdrawal.7 Nickell replied that he would
"check on it." The following day Nickell went to the
union hall and told Hicks that Oberle had told him to
take a withdrawal. Hicks got angry and declared that
Oberle had acted illegally. The next day Nickell reported
to Oberle that he had told Hicks about their earlier con-
versation. Oberle then got angry and told Nickell that he
should not have told Hicks that he, Oberle, had sent him
to the union hall to get the withdrawal.
Between July and December 1982 Nickell was ap-
proached several times by Ron Sprenkle and asked if he
had yet decided whether or not he was going to with-
draw from the Union. On the first occasion Sprenkle
told him that if he withdrew from the Union and stayed
with the Respondent, he would receive $6 per hour in
wages and no benefits. 8 In a second conversation Spren-
kle told Nickell that if he would withdraw from the
Union and stay with the Respondent he would receive
$8 per hour and some insurance.9 At the time Nickell
was receiving the contractual $11.20 per hour in wages.
In November 1982, in a third conversation, Sprenkle
asked Nickell what he had decided concerning with-
drawing from the Union. ° Nickell replied that he could
not decide.
One day, the following January, while Nickell was in
Sprenkle's office, Sprenkle told him that he had a small
press that he wanted to move the following day. He
asked Nickell to take fellow employee Mark Spille with
him and show him how to drive the semi. Nickell replied
that Spille was already doing all of his work and that the
only thing Spille was not doing was driving the semi.
Nickell asked, "If you were me, would you show him
I By letter dated April 19 Lang offered to settled the grievance. The
Union did not accept the offer but subsequently filed the charge in the
instant case.
I This incident is not alleged as a violation inasmuch as it is barred by
Sec. 10(b). It was offered as background.
8 Ibid.
9 Ibid.
1o Ibid.
how to drive a semi?" Sprenkle did not reply but Paul
Oberle Sr., who had been standing outside Sprenkle's
office, came in, went face-to-face with Nickell and said,
"I'll fire your f-ing ass."
With regard to Nickell's layoff on February 28 Paul
Oberle Sr. testified as follows:
Q. When was the decision made to lay off Mr.
Nickell?
A. It was . . . when . . . we were notified that
we had to renegotiate the contract.
Oberle explained that he was abiding by Lang's letter to
the Union, dated September 23, 1982, wherein he gave
notice of the termination of the contract. As noted earli-
er, on February 25 Oberle wrote a letter to Hicks in
which he acknowledged receiving the Union's contract
proposals dated February 24, and wrote:
I will have to abide by the letter that was written
September 23, 1982. It is my understanding Mr.
Robert D. Nickell did sign up for unemployment
February 15, 1983, and we had not given him a lay-
off slip. As of Monday, February 28, we will termi-
nate Mr. Nickell.
On February 28 Sprenkle and Oberle's son visited
Nickell's home. Sprenkle handed Nickell a discharge slip
which stated that the reason for Nickell's discharge was,
"Lack of work. Teamsters service not required." Spren-
kle asked Nickell once again whether he had decided
what he was going to do about taking a withdrawal.
Nickell replied, "It don't really mattei. You're not going
to work me anyway, are you?" Sprenkle replied, 'No."
Analysis
The 8(a)(1) Allegations
Paragraph 5(a) of the complaint alleges that the above-
described January threat by Paul Oberle Sr. to fire
Robert Nickell was violative of Section 8(a)(1) of the
Act. I find, however, that the threat of discharge was
made because Nickell refused a direct order to teach a
fellow employee how to drive the semi. I find no viola-
tion here.
Paragraph 5(b) alleges that the February 28 interroga-
tion of Nickell by Sprenkle wherein he asked Nickell
whether he had decided what he was going to do about
withdrawing from the Union, was in violation of Section
8(a)(1) of the Act. In this case I agree with the General
Counsel. Sprenkle's question concerning Nickell's with-
drawal from the Union can not be considered in a
vacuum. The February 28 interrogation followed a series
of similar questions over a period of several months,
each instance of interrogation accompanied by an offer
of employment dependent on Nickell's agreeing to with-
draw. The February 28 interrogation occurred immedi-
ately following Sprenkle's handing of the discharge slip
to Nickell and must be considered in the context of the
discharge or threatened discharge. Thus, it is evident
that Sprenkle and Oberle Jr. traveled to Nickell's home
for the purpose of discussing his withdrawal from the
Union. Neither had ever visited Nickell's home before
988
OBERLE-JORDRE CO.
and, if the purpose had been merely to discharge him,
the discharge slip could have been more easily dropped
in the mail. Instead, Sprenkle personally handed the dis-
charge slip to Nickell and asked him pointedly whether
he had decided about withdrawing from the Union. The
question was, in effect, a last, clear chance to avoid ter-
mination. If this were not its purpose, that is, if the dis-
charge were final and irrevocable, the question concern-
ing his withdrawal would be meaningless. So, when
Nickell hedged on his answer and refused to indicate
that he had decided to withdraw from the Union, Spren-
kle allowed the discharge to stand. The interrogation
was thus not a matter of innocent inquisitiveness, but was
a serious attempt at determining Nickell's union status
before renewing Respondent's previously made offer of
employment dependent on such withdrawal. I find the
interrogation clearly violative of Section 8(a)(l) as it
contained within it the threat of discharge, dependent on
Nickell's reply.
The 8(a)(3) Allegations
Paragraph 6(a) of the complaint alleges that from
about November 20, 1982, and continuing to about Feb-
ruary 28, 1983, Respondent reduced the hours of em-
ployment of Robert Nickell because of his union activity.
However, the testimony and record evidence supports
Respondent's contention that with the sale of certain
equipment by Oberle-Jordre to Bishopric and the reorga-
nization in March 1982, most of the operations at Rich-
mond were moved to Cincinnati or closed down com-
pletely with the concurrent layoff of all but five employ-
ees due to the change in operations. These five employ-
ees continued to be employed at their own request to
perform the limited amount of work available on an as-
needed basis. Thus, these people waived call-in pay and
agreed to work for Respondent despite the fact that full-
time work was available only sporadically. Nickell,
known to be a member of the Union, was granted his re-
quest to be employed on this basis. Thus, there appears
to be no antiunion motivation in the cutting of Nickell's
hours in March 1982, because if there were, Respondent
would not have continued to employ him but would
have terminated him with the rest of the employees in
the unit. Moreover, Respondent's credited records indi-
cate that from March to June 1982 Nickell was the only
employee in the Teamsters unit regularly employed
whereas his fellow unit members and members of all
other crafts had their own hours drastically cut during
this period. Neither grievances nor charges were filed
during this period. This fact supports Respondent's posi-
tion that the reduction in available work was due to eco-
nomic circumstances and not to motivations discrimina-
tory in nature.
In June, with Respondent's change in plans to remove
to New Paris, Nickell's work hours increased substantial-
ly over April and May whereas other employees' hours
were sometimes increased, sometimes decreased. Addi-
tional ironworkers were hired about this time but their
need, according to company records, proved somewhat
temporary. In July Nickell worked less than an average
of 20 hours per week but, then again, only one employee
worked as much as two full 40-hour weeks during that
month. The Union did not file either a grievance or a
charge claiming Nickell's shortage of hours was motivat-
ed by discriminatory considerations. Indeed, the records
indicate that the problem was clearly economic in
nature.
With August came the move to New Paris and the
preparations for the move. In that month, Nickell aver-
aged better than 37 hours per week and worked a full 40
hours or more on three occasions. Much of this work,
however, was nonunit work, classified as millwright's or
operating engineer's work, for which Nickell received a
higher wage scale. Several new employees were hired
during this period, presumably to help with the move.
None of the new employees were classified as Teamsters
or truckdriver-mechanics.
In September, Nickell worked two of four weeks full-
time and averaged better than 35 hours per week, but
again much of the work was that of other crafts. Other
employees worked comparable hours.
In October, Nickell worked 3 of 4 weeks full-time and
averaged 44 hours per week including, again, substantial
work belonging to the ironworkers and operating engi-
neers. Once again, other employees worked similar
hours.
In November Nickell averaged better than 38 hours
per week including 16 hours of ironworkers' work
during the week ending November 2. Although the com-
plaint alleges that the alleged discriminatory reduction in
hours began about November 20, Respondent's records
indicate that Nickell worked 43-3/4 hours during the
week ending November 23 and worked 34-1/2 hours in-
cluding 20 hours of operating engineers' work during the
week ending November 30. Of the 10 employees on the
payroll as of November 30, only 2 of the 10 worked a
full 40-hour week and 6 out of 10 received a reduction in
hours. Nickell's 34-1/2 hours was the third highest
worked that week. If, as the General Counsel alleges,
Respondent sought to discriminatorily reduce Nickell's
hours, about November 20, it was supremely inept at
doing so.
The question which comes to mind is why the General
Counsel alleged November 20 as the date when the al-
leged discriminatory reduction in wages occurred when,
in fact, there is no evidence to support such a charge.
The original charge was filed on May 20, and counting
back an exact 6 months (for 10(b) purposes) would give
the earliest possible date usable for purposes of alleging
any violation. That is the answer to the question.
In December Nickell worked, on the average, a little
over 31 hours per week. Sixteen other employees were
on the payroll at one time or another in December, and
only two of them worked more hours than Nickell. Of
13 employees on the payroll in both November and De-
cember, all but one" had fewer total hours in December
than in November. They also had, as well, a shorter av-
erage hourly workweek in December than they did in
November. I am convinced by this evidence that the re-
duction in Nickell's hours of employment was motivated,
I" An ironworker.
989
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
as were the reduction of hours of employment of the
entire work staff, by economic considerations.
In January Nickell worked, on the average, a little
over 25 hours per week, approximately 9 hours per week
performing work ordinarily classified as belonging to op-
erating engineers and millwrights. Nine other employees
were on the payroll in January. Five of them averaged
more hours than Nickell. However, two of the five were
operating engineers and one was a millwright. None of
these three worked a full 40-hour week, yet Nickell was
given 36 hours of their work. The fourth employee
working more hours than Nickell was an ironworker and
the fifth was Mark Spille, an employee listed by Re-
spondent as having no occupation. Spille will be dis-
cussed infra. None of the employees who worked in Jan-
uary were listed in the company records as performing
Teamster unit work. Of the 10 employees on the payroll
in both December and January, 6 of them had fewer
hours and 3 of them had more hours of employment in
January than they did in December. As far as January is
concerned, the drop in hours appears economic. More-
over, I cannot see how Respondent can be accused of
discriminatorily reducing Nickell's hours of employment
when it freely assigned him hours of work in other crafts
at a higher hourly rate of pay when, as far a the record
indicates, there was no compulsion for it to do so. Far
from treating Nickell in a discriminatory fashion, I am
satisfied that Respondent treated Nickell with ultimate
fairness through January 1983.
The first week in February Nickell worked 20-1/2
hours of which was operating engineers' work. There
were, at the time, II employees on the payroll. Of the 11
employees, 8 worked more hours than Nickell. Of the 10
employees who were on the payroll both during the pay
period ending January 25 and the pay period ending
February 1, 6 employees had increases in hours during
the pay period ending February I over the previous pay
period, 2 worked identical numbers of hours while only
Nickell and I other employee had a decrease in the num-
bers of hours worked.
During the payroll period ending February 8 Nickell
worked just 7 hours, the smallest number of hours since
the previous June. Of the other 10 employees still on
that payroll, only I worked fewer hours than Nickell.
However, of the 11, 6 including Nickell had a decrease
in hours while the other 5 worked the same number of
hours as the week before.
During the week ending February 15 Nickell worked
12 hours including 8 as a millwright. Of the other 10 em-
ployees still on the payroll, 3 worked fewer hours than
Nickell while 7 worked more. Of the 11 employees on
the payroll both during the weeks ending February 8
and 15, however, only 4 including Nickell enjoyed an in-
crease in hours while 2 suffered a loss in hours and 5
worked the same number of hours.
During the week ending February 22 Nickell did not
work at all. No other employee who had worked the
previous week was laid off along with Nickell. Of the 10
employees on the payroll during the week of February
22 all had their hours increased or else had the same
hours as the week before.
In summarizing the number of hours worked by Nick-
ell vis-a-vis other employees between the months of
March 1982 through January 1983, it would appear that,
for the most part, when the total hours of available work
increased, Nickell's hours also increased and that when
the total hours of available work decreased, Nickell's
hours of employment decreased. This fact would indicate
that Nickell was not discriminated against insofar as the
number of his hours of employment was concerned as
compared to that of other employees. Moreover, Nickell
was frequently assigned the work of other crafts so that,
if anything, he was treated better than other employees,
not discriminatorily. During the first 2 weeks of Febru-
ary 1983, the pattern changed, but not to such an extent
that I should conclude that the reasons for Nickell's de-
crease in hours was discriminatorily motivated, for there
may or may not have been other reasons for the decline
in the number of hours assigned to him, not apparent
from the record. The last day that Nickell worked was
February 14. The last incident that might have triggered
a shortening of his hours occurred on February 15 when
he filed an unemployment compensation claim. Oberle's
letter of February 25 notes both that Nickell had filed an
unemployment compensation claim on February 15 at a
time when he had not been given a layoff slip and that
he was going to be terminated on February 28. 1 con-
clude that Nickell did not work the last 2 weeks in Feb-
ruary because Respondent intended to terminate him on
February 28 anyway and, since he had already filed for
unemployment compensation, it was decided that it was
easier, under the circumstances, not to call him back at
all than to call him back to work the last 2 weeks in Feb-
ruary. In other words, but for Respondent's intention of
laying Nickell off on February 28, he would, more prob-
ably than not, have been given some work during the
last 2 weeks in February.' 2 To that extent, I conclude
that Respondent in a way, reduced Nickell's hours of
employment and likewise conclude that if his termination
is violative, so also was the reduction in hours of em-
ployment just before his final termination. Inasmuch as I
shall find, infra, that the termination of Nickell on Febru-
ary 28 was discriminatorily motivated, I shall likewise
find that the reduction of his employment hours in late
February, occasioned by his planned termination, was
likewise violative. However, since Nickell did not work
at all in late February, for all intents and purposes, he
was not so much reduced in hours as, in effect, terminat-
ed as of February 15. I so find.
The General Counsel contends that one employee,
Mark Spille, worked as a de facto member of the Team-
sters bargaining unit and, while Nickell's hours were
being substantially reduced, Spille's hours remained con-
stant at 40 hours per week. The General Counsel con-
cludes that Spille "was hired to replace Nickell to per-
form Teamsters unit work at cut rate wages of $6.25 per
hour as compared to the contract rate of $11.20 which
was paid to Nickell." The record indicates, however,
12 Note that I do not find that Nickell was denied employment be-
cause he filed an unemployment compensation claim but rather that the
planned February 28 termination was moved up to February 15 for the
convenience of the Respondent.
990
OBERLE-JORDRE CO.
that Mark Spille was hired in September 1982 as a
clerical/warehouse employee and timekeeper. As far as
Respondent's records are concerned, there is no indica-
tion that he was intended to take the place of Nickell.
Indeed, during October, the first month during which
Spille was on the payroll, both he and Nickell worked a
full 40 hours each week and, as noted above, Nickell's
hours thereafter, through January fluctuated consistently
with the hours of other employees engaged in the actual
construction end of the business.
Spille, who is the only employee on the payroll who
worked a regular 40-hour week throughout the period
October-January was, for the most part, engaged in cleri-
cal type work. According to his credited testimony he
spent 80 percent of his time doing clerical work and
project managing. Ten percent of his time was spent
helping Sprenkle and Paul Oberle Jr. by making phone
calls for them and 10 percent was spent making pur-
chases.
Despite the fact that most of Spille's work was of a
clerical nature, he also did some work which was also of
the type done by Nickell and some other employees.
Thus in the area of purchasing, after ordering a piece of
equipment or supplies, Spille would drive a pickup or
one-ton truck to the place to pick up the order, then
drive it back to the warehouse or to the project site
where he would unload or help other employees unload
it and, at the warehouse, put it away. He would also oc-
casionally deliver supplies from the warehouse to the
projects and vice versa. This type of work had historical-
ly been done by the other employees, members of the
various crafts, including Nickell, on the basis of conven-
ience. It was not considered as Teamsters unit work
alone and no grievances were ever filed over such work
assignments. Five to ten percent of Spille's time was used
in performing such driver related duties.
In addition to picking up supplies, Spille also swept
out the warehouse, painted equipment, washed and
waxed trucks, changed oil in trucks and tuned them up.
The duties connected with the maintenance of the trucks
and equipment was basic mechanics' work previously
done by Teamsters unit employees such as Nickell. How-
ever, Spille only performed these duties occasionally.
Thus, he testified that he only changed oil 10 to 15 times
since he was hired and not at all after March 1983. He
tuned up only four or five vehicles and washed only five
or six during this period and has not washed a truck
since October or November 1982. Again, though Nickell
was the union steward and was aware of Spille perform-
ing these duties since he was hired, he never filed a
grievance. Indeed, on two occasions Nickell and Spille
worked together on over-the-road hauling jobs which
was clearly unit work and the Union raised no objection.
These trips were, however, isolated incidents and in any
case did not cut into Nickell's hours because they were
necessarily two-man jobs and Nickell was one of them.
Nickell testified that, prior to March 1982, 80 percent
of his work was truckdriving while 20 percent of his
duties consisted of sweeping the warehouse, painting
equipment, repairing trucks, moving machinery in and
out of the warehouse and from place to place within the
warehouse, and working with employees in other crafts.
Since Nickell's termination, Spille has done no over-
the-road driving. Rather, he spends 6 to 8 hours per day
performing timekeeper's duties and continues to pick up
and deliver supplies from time to time, particularly at the
Belden site in connection with his duties as project man-
ager. Spille no longer works in the warehouse. Accord-
ing to Paul Oberle Sr., no one works in the warehouse
anymore and the repair of trucks and other equipment is
contracted out.
I find from the above evidence that the General Coun-
sel has failed to prove by a preponderance of the evi-
dence that Nickell's hours of employment were reduced
and Spille's were increased because of Nickell's member-
ship in and activities on behalf of the Union. I arrive at
this conclusion based on the fact that, as noted above,
Nickell's hours of employment were not reduced, rela-
tive to those of other employees until mid-February; that
the number of hours he worked were increased by the
assignment to him of work within the classification of
other crafts at a higher rate of pay, a practice clearly in-
consistent with a discriminatory motivation to reduce
hours of employment; that most of the work performed
by Spille was of a clerical nature, not Teamsters unit
work; that other work performed by both Spille and
Nickell, i.e., truckdriving in connection with picking up
and delivering equipment in small trucks was historically
never considered exclusively Teamsters unit work; and
that the mechanical work performed by Spille, which
had been clearly unit work, was an extremely small per-
centage of his total hours.
Paragraph 6(b) of the complaint alleges that Respond-
ent discharged Nickell because of Nickell's Teamsters af-
filiation. Respondent contends that Nickell's termination
was due to a lack of truckdriver-mechanic work occa-
sioned by the change in location and in the nature of its
operations.
In connection with this allegation I note that, as early
as July 1982, Paul Oberle Sr. advised Nickell that Re-
spondent was moving across the state line and would not
have to take the Teamsters with it. He told Nickell that
he wanted him to go to the union hall and take out a
withdrawal. Nickell did not do so.
Sometime between July and December Sprenkle told
Nickell that if he withdrew from the Union and stayed
with Respondent he would receive $6 per hour in wages
and no benefits. Subsequently, he offered Nickell S8 per
hour and some insurance if he would withdraw from the
Union but stay in the employ of Respondent. In Novem-
ber Nickell was asked what he had decided about with-
drawing from the Union.
Meanwhile on September 23, 1982, Respondent ad-
vised the Union that it was no longer in need of a Union
and that the agreement between them was terminated.
Disregarding Respondent's September 23, 1982 letter, the
Union, on February 24, 1983, sent contract proposals to
Respondent along with a request to negotiate. The fol-
lowing day Respondent sent the Union another copy of
its September 23 letter, thus reiterating its position and
stating that Nickell, the sole member of the Teamsters
still in the employ of Respondent, would be terminated
on February 28. True to its word, Respondent's agents,
991
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Sprenkle and Paul Oberle Jr. visited Nickell at his home,
gave him the discharge slip which stated "Teamsters
service not required," and asked him once again whether
he had decided what he was going to do about taking a
withdrawal. When asked when the decision was made to
terminate Nickell, Paul Oberle Sr. testified, "It was . . .
when . . . we were notified that we had to renegotiate
the contract."
Thus, it is quite clear that Respondent considered
Nickell a good and valuable employee who could not
only drive Respondent's vehicles but could perform
many duties outside his own occupation-ironworkers',
millwrights' and operating engineers' duties as well as
general duties. Valuing Nickell's work as it did, but rec-
ognizing that there was insufficient Teamsters unit work
to employ him full-time as a Teamsters unit member, and
consistent with its intention of withdrawing recognition
from the Teamsters Union, Respondent several times of-
fered Nickell employment at New Paris provided he
withdraw from the Union. The last such offer was made
on February 28, on the day of Nickell's termination, in
the form of the question as to whether he had decided
what he was going to do about taking a withdrawal. It is
obvious that the question was asked for a purpose. That
purpose, on this occasion, was to offer employment to
Nickell provided he withdraw from the Union, just as he
had been offered employment on previous occasions
with the same proviso. When Nickell obliquely admitted
that he had not decided to withdraw from the Union,
Respondent determined to permit the termination to
stand.
It seems quite evident that Respondent truly desired to
keep Nickell as an employee because of his demonstrated
value and experience. It is equally clear, however, that
Respondent believed that since it had so little actual
Teamsters unit work and did not intend to deal with the
Teamsters in the future, it had no intention of paying the
Union's new wage scale'3 for the general duties to be
performed by Nickell. Therefore, it insisted that Nickell
withdraw from the Union before being employed by Re-
spondent at New Paris after the contract expired. When
Nickell refused to withdraw from the Union, Respondent
decided to terminate him. It is a clear violation of Sec-
tion 8(a)(1) and (3) of the National Labor Relations Act
for a company, under the circumstances present here, to
refuse employment to an employee because of his union
affiliation, and I so find.
The 8(a)(5) Allegations
The record clearly supports the General Counsel's al-
legations that the Union represented an appropriate unit
of Respondent's employees prior to March 1982, that the
last collective-bargaining agreement between Respondent
and the Union expired February 28, 1983, that the Union
13 The previous scale was $11.20 per hour. It is irrelevant that, as
found infra, Respondent would not be obligated to bargain a new con-
tract for the one man unit or to pay a negotiated wage. Quite obviously,
Respondent was under the impression that if it kept Nickell in its employ,
it would somehow be obligated to pay him the going Teamsters wage.
Expecting such a demand from both the Union and from Nickell, it de-
termined that the course of least resistence would be to simply terminate
him.
requested negotiation toward a new contract in August
1982 and again on February 24, but that on September
23, and again on February 25, Respondent refused to ne-
gotiate a new contract on grounds that the unit was
down to one man, and Respondent was not obligated to
negotiate a labor agreement covering a one-man unit.
With regard to Respondent's contention that there was
insufficient Teamsters unit work to provide employment
for more than one Teamsters unit member, the record is
clear that in February 1982 Respondent employed four
Teamsters employees in the truckdriver-mechanic unit
and that in March 1982 three of them were terminated.
The Union was aware at the time that their unit employ-
ees were cut down below one full-time employee, not
only because Nickell, the union steward, was still on the
job to report events, but because the amount of fringe
deductions sent to the Union by Respondent indicated a
drastic decrease in claimed unit work being performed. If
the Union believed that the driving performed by non-
unit personnel picking up and delivering supplies and
similar duties was actually Teamsters unit work, it
should have filed its charge in March 1982, not more
than a year later. Moreover, the mere fact that Nickell
was kept on the payroll does not prove that everything
he did was necessarily unit work. Indeed, many of the
jobs he performed were also historically performed by
other trades in conjunction with their own duties, e.g.,
pickup and delivery of materials. Likewise, many of
Nickell's jobs were actually the work claimed by other
trades.
In June and July when Nickell's hours decreased sub-
stantially, no grievance or charge was filed. The Union's
failure to file a grievance or charge at the time indicates
that the Union accepted the decrease as economically
motivated. In August, when additional employees were
hired, no claim was made that they were doing Team-
sters unit work. Thereafter, until February 1983 as the
work available fluctuated, the employees continued to do
some share of the work which they had done historical-
ly, such as the picking up and delivering of supplies,
without any claim being filed by the Union that this type
of driving was Teamsters unit work. I find that the
Union, by tacitly accepting this situation over the years,
acknowledged that such duties were never considered
unit work and that its belated claim that it was, indeed,
unit work is without merit.
As far as Spille is concerned, the record indicates that,
for the most part, he did clerical work rather than any
work even mistakenly and belatedly claimed by the
Union. As for his picking up and delivering supplies or
driving a truck to run errands, Spille was treated no dif-
ferently than any other employees including Nickell.
This work was never considered exclusively Teamsters
unit work and was performed by all crafts on an as-
needed basis. The mechanical work performed by Spille,
on the other hand, was considered Teamsters unit work
and arguably should have been performed by Nickell or
another Teamsters unit employee. However, such work
was done by Spille only sporadically and neither Nickell
nor the Union ever filed a grievance concerning Spille's
992
OBERLE-JORDRE CO.
performance of these duties, even though he had done so
since his being hired the previous October.
The General Counsel contends that on September 23
there were two Teamsters unit employees on the payroll,
Nickell and Daniel Norris, not just one as claimed by
Respondent. The record, however, indicates that Daniel
Norris was laid off in March 1982 along with the other
employees and that, although he returned thereafter
every few weeks seeking employment, he was never re-
hired.' 4 I conclude, in agreement with Respondent, that
when it refused to negotiate with the Union on Septem-
ber 23 and thereafter, there was only one member of the
Teamsters then employed and not enough unit work
available to keep one employee busy. Respondent was
therefore within the law when it refused to renegotiate
the contract to cover the one-man unit and did not, by
its refusal, violate Section 8(a)(5)i5 as alleged in para-
graph 7(f) of the complaint.
Paragraphs 7(g) and 7(h) allege that Respondent has,
since November 20, 1982, unilaterally subcontracted bar-
gaining unit work. I find, however, that the record fully
substantiates Respondent's position that its predecessor,
Oberle-Jordre, had always subcontracted out a large por-
tion of its truckdriver-mechanic related unit work with-
out objection from the Union, though the contract spe-
cifically provided for a grievance procedure to resolve
any questions arising concerning its right to do so. I find
no merit to this allegation.
CONCLUSIONS OF LAW
I. The Employer is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. By interrogating Robert Nickell concerning his
withdrawal from the Union Respondent violated Section
8(a)(1) of the Act.
4. By terminating employee Robert Nickell because he
refused to withdraw from the Union, Respondent violat-
ed Section 8(a)(l) and (3) of the Act.
5. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I shall recommend that it be or-
dered to cease and desist therefrom and to take certain
affirmative action designed to effectuate the policies of
the Act.
Having found that Robert Nickell was discriminatorily
discharged, I shall recommend that Respondent be re-
quired to offer him full and immediate reinstatement,
with backpay and interest thereon to be computed in the
manner prescribed in F. W. Woolworth Co., 90 NLRB
14 Though Norris was offered work for $4 or $5 per hour repairing
blocks after hours or on Saturdays, he refused this offer. He testified that
prior thereto he had performed this type of work but there is nothing in
the contract to indicate that this work was exclusively Teamsters unit
work and, in any case, no grievance or charge was filed at the time to
indicate that the Union claimed this work was exclusively its o, n.
15 Chemetron Corp., 268 NLRB 335 (1984).
289 (1950), and Florida Steel Corp., 231 NLRB 651
(1977).16
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed17
ORDER
The Respondent, Oberle-Jordre Company, Division of
The Bishopric Products Company, New Paris, Ohio, its
officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Coercively interrogationg any employee about
union support or union activities.
(b) Discharging or otherwise discriminating against
any employee for supporting Chauffeurs, Teamsters.
Warehousemen and Helpers of America, Local 135 or
any other union.
(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action which is
deemed necessary to effectuate the policies of the Act.
(a) Offer Robert Nickell immediate and full reinstate-
ment to his former job or, if that job no longer exists, to
a substantially equivalent position, without prejudice to
seniority or any other rights or privileges previously en-
joyed, and make him whole for any loss of earnings and
other benefits suffered as a result of the discrimination
against him in the manner set forth in the remedy section
of the decision.
(b) Remove from its files any reference to the unlawful
discharge and notify the employee in writing that this
has been done and that the discharge will not be used
against him in any way.
(c) Preserve and, on request, make available to the
Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records nec-
essary to analyze the amount of backpay due under the
terms of this Order.
(d) Post at its location at New Paris, Ohio copies of
the attached notice marked "Appendix."' 8 Copies of the
notice, on forms provided by the Regional Director for
Region 25, after being signed by the Respondent's au-
thorized representative, shall be posted by the Respond-
ent immediately upon receipt and maintained for 60 con-
secutive days in conspicuous places including all places
where notices to employees are customarily posted. Rea-
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by
any other material.
is See generally lis Plumbing Co., 138 NLRB 716 (1962).
7 If no exceptions are filed as provided by Sec. 102.46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
18 If this Order is enforced by a Judgment of a United States Court of
Appeals, the words in the notice reading "Posted by Order of the Na-
tional Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board."
993
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(e) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representa-
tives of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT discharge or otherwise discriminate
against any of you for supporting Chauffeurs, Teamsters,
Warehousemen and Helpers of America, Local 135 or
any other union.
WE WILL NOT coercively question you about your
union support or activities.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL offer Robert Nickell immediate and full rein-
statement to his former job or, if that job no longer
exists, to a substantially equivalent position, without prej-
udice to his seniority or any other rights or privileges
previously enjoyed and WE WILL make him whole for
any loss of earnings and other benefits resulting from his
discharge, less any net interim earnings, plus interest.
WE WILL notify him that we have removed from our
files any reference to his discharge and that the dis-
charge will not be used against him in any way.
All our employees are free to become or remain, or re-
frain from becoming or remaining, members of a labor
organization.
OBERLE-JORDRE COMPANY, DIVISION OF
THE BISHOPRIC PRODUCTS COMPANY
994