R. J. Lison Co., Inc.

National Labor Relations Board - Board Decisions

Mar 29, 1966

157 N.L.R.B. 1175 (N.L.R.B. 1966)

R. J. LISON COMPANY, INC. 1175
R. J. Lison Company, Inc. and Teamsters Automotive Workers,
Local 495, International Brotherhood of Teamsters, Chauffeurs,
Warehousemen & Helpers of America. Case No. 31-CA-39
(formerly 21-CA-6446). March 29,1966
DECISION AND ORDER
On December 29, 1965, Trial Examiner Howard Myers issued his
Decision in the above-entitled proceeding, finding that the Respondent
had engaged in and was engaging in certain unfair labor practices
within the meaning of the National Labor Relations Act, as amended,
and recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial Examiner's Deci-
sion. Thereafter, the Respondent filed exceptions to the Trial Exam-
iner's Decision and a supporting brief.
Pursuant to the provisions of Section 3(b) of the Act, the National
Labor Relations Board has delegated its powers in connection with
this case to a three-member panel [Members Fanning, Brown, and
Zagoria].
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 brief, and the entire record
in the case, and hereby adopts the findings,' conclusions, and recom-
mendations of the Trial Examiner, with the following modifications.
We agree with the Trial Examiner's finding that Respondent violated
Section 8(a) (1) and (3) of the Act by discharging employees Curtis
Reed and Stewart Taber. However, contrary to the Trial Examiner,
we find that the evidence in the record is insufficient to support his
finding that Respondent discriminatorily eliminated employee Taber's
overtime work because there is nothing to show that Respondent had
any knowledge of Taber's union activity prior to the elimination of
the overtime work. Accordingly, we will dismiss this allegation of
the complaint.
[The Board adopted the Trial Examiner's Recommended Order,
with the following modifications :
[1. Substitute the following for paragraph 1(a) of the Trial Exam-
iner's Recommended Order :
["(a) In any other manner interfering with, restraining, or coerc-
ing its employees in the exercise of the right to self-organization, to
form, join, or assist Teamsters Automotive Workers, Local 495, Inter-
1 The election was held on November 4, 1964. The Trial Examiner inadvertently stated
in footnote 12 of his Decision that the election was held on November 14, 1964.
157 NLRB No. 101.
1176 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
national Brotherhood of Teamsters, Chauffeurs, Warehousemen &
Helpers of America, or any other labor organization of its employees,
to bargain collectively through representatives of their own choosing,
and to engage in concerted protected activities for the purpose of
collective bargaining or other mutual aid or protection, or to refrain
from any and all such activities, except to the extent that such right
may be affected by an agreement requiring membership in a labor
organization as a condition of employment, as authorized in Section
8(a) (3) of the Act, as modified by the Labor-Management Reporting
and Disclosure Act of 1959."
[2. Substitute the following paragraph for 2 (b) :
[" (b) Make whole Curtis Reed and Stewart A. Taber for any loss
of wages they may have suffered because of Respondent's discrimina-
tion against them, in the manner and to the degree set forth in the
section above entitled `The Remedy,' except as modified herein." 2
[3. Substitute the following for the first indented paragraph in
the notice attached to the Trial Examiner's Decision to read :
WE WILL NOT in any other manner interfere with, restrain,
or coerce our employees in the exercise of the right to self-
organization, to form, join, or assist Teamsters Automotive Work-
ers, Local 495, International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen & Helpers of America, or any other labor
organization of our employees, to bargain collectively through rep-
resentatives of their own choosing, and to engage in concerted
protected activities for the purpose of collective bargaining or
other mutual aid or protection, or to refrain from any and all
such activities, except to the extent that such right may be affected
by an agreement requiring membership in a labor organization as
a condition of employment, as authorized in Section 8(a) (3) of
the Act, as modified by the Labor-Management Reporting and Dis-
closure Act of 1959.
[The Board dismissed the complaint insofar as it alleges violations
of the Act not found herein.]
2 Insofar as the Trial Examiner 's "remedy" ( footnote 16) provides for backpay for the
loss of overtime work, we do not adopt this recommendation.
TRIAL EXAMINER'S DECISION
STATEMENT OP THE CASE
This proceeding , with all parties represented by counsel , was heard before Trial
Examiner Howard Myers at Los Angeles, California , on a complaint of the General
Counsel of the National Labor Relations Board , herein called the General Counsel 1
and the Board , dated July 16, 1965, and the answer of R. J . Lison Company, Inc.,
herein called Respondent, dated August 10, 1965 . The complaint, based upon a
charge duly filed on February 2, 1965, by Teamsters Automotive Workers, Local
I This term specifically includes counsel for the General Counsel appearing at the hearing.
R. J. LISON COMPANY, INC. 1177
495, International Brotherhood-of Teamsters, Chauffeurs, Warehousemen & Help-
ers of America, herein called the Union, alleged, in substance, that Respondent vio-
lated Section 8(a)(1) and (3) of the National Labor Relations Act, as amended,
from time to time, herein called the Act.
Upon the entire record in the case and from my observation of the witnesses, I
make the following:
FINDINGS OF FACT
1. RESPONDENT 'S BUSINESS OPERATIONS
Respondent is, and at all times material has been, a California corporation with its
offices and place of business in Burbank, California, where it is engaged in the sale
and the servicing of Wayne Power Sweepers= Over 50 percent of its service busi-
ness is with industrial firms 3 and the balance is fairly equally divided between Cali-
fornia municipalities and contract sweepers. As part of its service business Respond-
ent provides maintenance service 4 to over 1,000 customers, including Prudential
Insurance Company.
In the course and conduct of its business operations, Respondent annually per-
forms services valued in excess of $50,000 for firms which, in turn, annually purchase
goods valued in excess of $50,000 directly from firms located outside the State of
California.
Upon the basis of-the foregoing undisputed facts, I find, in line with established
Board authority, that Respondent is engaged in, and during all times material has
been engaged in, a business affecting commerce within the meaning of Section 2(6)
and (7) of the Act and that its operations meet the standards fixed by the Board for
the assertion of jurisdiction.
II. THE LABOR ORGANIZATION INVOLVED
Teamsters Automotive Workers, Local 495, International Brotherhood of Team-
sters, Chauffeurs, Warehousemen & Helpers of America is a labor organization
admitting to membership employees of Respondent.
III. THE UNFAIR LABOR PRACTICES
A. Interference, restraint, and coercion; the discharges of Curtis Reed
and Stewart Taber
1. The pertinent facts 5
On August 13, 1964, the Union filed a petition 6 seeking to be certified as the
collective-bargaining representative of Respondent 's production and maintenance
employees, including all parts service mechanics, helpers, and truckdrivers.
On October 26 the Regional Director for Region 21 approved the consent-election
agreement which Respondent and the Union had executed.
On October 30 Respondent posted in its plant the usual notices of an election which
was to be held under the auspices of the aforementioned Regional Director. Each
of the six eligible voters cast his vote for the Union.
On November 13 the Union was certified as the statutory collective-bargaining
representative of the employees in the agreed-to appropriate unit.
3 Respondent is a franchise dealer of Wayne Sweeping Equipment.
3 Such as General Motors Corporation and Ford Motor Company.
4 This service consists of lubricating the sweepers which Respondent either rents or
sells, changing oil, motor tuneup, aligning , and tightening belts and chains.
6In the light of my observation of the conduct and deportment at the hearing of all
the persons who testified herein, and after very careful scrutiny of the entire record, all
of which has been carefully read and parts of which have been reread and rechecked sev-
eral times , and being mindful of the contentions of the parties with respect to the credibility
problems here involved , of the fact that in many instances testimony was given regarding
events which took place months prior to the opening of the hearing, and of the fact that
very strong feelings have been generated by the circumstances of this case, coupled with
the fact that it would unnecessarily protract this Decision to summarize all the testimony
or to spell out fully the confusion and inconsistencies therein, the following is a com-
posite picture of all the factual issues involved and the conclusions based thereon. The
parties may be assured that in reaching all resolutions, findings, and conclusions herein,
the record as a whole has been carefully considered ; relevant cases have been studied ;
and each contention advanced has been weighed, even though not specifically discussed.
6 Case No. 21-RC-9241.
1178 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On December 21 Richard Lee, a union organizer , called at Respondent 's offices
and conferred with Robert J. Lison, his wife Helen, and Peter McGrath, Respond-
ent's general manager. After some pleasantries had been had, Lee handed them a
proposed collective -bargaining agreement . The parties discussed , in general terms,
the various clauses of the proposed contract, but no agreement was reached as to
any of them.
During the course of the conference referred to immediately above, Lison 7
turned to McGrath and said, to quote from Lee's testimony, "If Curt Reed and Stew-
art Taber hadn't been around why, there wouldn't be any union . If it wasn't for
them, why, [we] wouldn't be sitting here today." 8
Curtis Reed was first employed as a mechanic in August 1963 at $2.25 per hour.
During the course of his employment with Respondent he received three wage in-
creases of 10 cents per hour each. At the time of his discharge on December 31,
1964, Reed was earning $2.55 per hour.
Reed was the oldest mechanic, in point of service, at the time of his discharge.
In addition to his regular job of rebuilding sweepers, as did other mechanics, he also
rebuilt sweeper motors. The other mechanics also had been assigned, from time to
time, to rebuild sweeper motors but they were unable to do the work properly and
Reed was called upon to finish the jobs properly.
The credited evidence discloses Reed was never advised by any supervisory per-
sonnel that his workmanship was below par and needed to be improved nor was he
ever reprimanded for turning out poor work. In fact, according to Lee's credible
testimony, Lison stated at the December 21, 1964, bargaining session, which was
attended by Mr. and Mrs. Lison, McGrath, and Lee, "The people he had working for
him he didn't consider as really full-fledged mechanics because one of them ... had
come from a pet shop, another one was having financial troubles, and that they had
been having to help them out, and that Curt Reed was probably their only qualified
mechanic."
At or about 3:30 p.m. on December 31, 1964,9 Dick Sheldrick, plant service
manager and Reed's immediate supervisor, handed Reed his paycheck, and then
remarked, to quote from Reed's credited testimony, "This is either good news or bad
7 For the purposes of brevity, Robert J. Lison will be referred to herein as Lison
8 Lison denied making the above-quoted statement. Upon the entire record in the case
and from my observation of Lee and Lison, while each was testifying, I find Lee's version
of what Lison said on that occasion regarding Reed and Taber to be substantially in ac-
cord with the facts. This finding is based mainly, but not entirely, on the fact that Lison
gave me the impression that he was studiously attempting to conform his testimony to
what he thought was to the best interest of Respondent. On the other hand, Lee im-
pressed me as being a person who is careful with the truth and meticulous in not enlarg-
ing his testimony beyond his memory of what was actually said on that occasion. This
is not to say that Lee was not confused on certain matters or that there were no varia-
tions in his objectivity and convincingness. But it should be noted that the candor with
which Lee admitted that he could not be certain as to the exact words used, only serves
to add credence to what a careful study of this testimony shows what he honestly be-
lieved to be the facts. Regarding the aforesaid meeting, McGrath's entire testimony with
respect thereto is as follows:
Q. (By Mr. DIEDERICH ) [ Respondent's counsel]. Now, after the election, did
you have some bargaining sessions with the union 9
A. After the election?
Q. Yes.
A. Yes.
Q. And how many sessions did you have, approximately?
A. Five or six.
Q. During the course of those, and when was the first one held , approximately?
A. Middle of December , I believe.
Q. And during the course of those sessions, and first of all, who conducted the
negotiations on behalf of the union?
A. Dick Lee.
Q. And who participated in the negotiations on behalf of the company?
A. I was in the room , however, Mr. Lison did the bulk of the talking , and Mrs.
Lison was occasionally present.
Q. How long did these sessions last?
A. One to two hours.
This was approximately quitting time.
R. J. LISON COMPANY, INC. 1179
news; however [sic] I wanted to take it, but this was my last check from this com-
pany"; and that when he asked Sheldrick why he was being discharged, Sheldrick
said he reported for work "late too many times."
Shortly after being discharged, Reed met McGrath in the plant parking lot. Reed
testified, and I find, that the following then ensued between McGrath and him:
Q. Would you explain what was said or discussed in your conversation?
A. I asked him [McGrath] why I was being fired, and he said it was inability
to do what-to do the work. So I asked him for a written statement to this
fact, and we were-we went to the office to get the statement where he said he
would type it up. So I returned to the shop to load my tools, and I had Stu
Taber help me. Then Mr. McGrath came back to the parking lot, where I was
loading my tools, and he told me that he had talked-
TRIAL EXAMINER: Who talked?
The WITNESS: Pete McGrath told me that he had talked to Mr. Lison, that
Mr. Lison said that he would not give me a written statement of why I was fired.
On January 4, 1965, Lee telephoned McGrath and asked the reason for Reed's
discharge. McGrath replied that Reed was discharged because he had been caught
shaving in the plant during working hours. After Lee had remarked that Reed had
been referred to by Lison at the December 21 negotiation meeting as being one of
the Company's best mechanics and that Reed had been with the Company for a
"fairly lengthy time" and "seeing as this was probably one of his first infractions,"
Lee asked if McGrath would not reinstate Reed, McGrath replied in the negative.10
Sheldrick testified that in the latter part of November 1964 it became apparent to
him that "work was falling off," and he suggested to McGrath that Reed be laid off;
that he based his recommendations to terminate Reed on the fact that (1) he had
received complaints from some 30 or 35 customers about Reed's poor workmanship
and/or the fact that on some occasions Reed would go to a customer's establishment
and merely "stand around and stay there ten minutes, possibly, and leave"; that of
the said 30 or 35 customers who complained about Reed, he could recall only that
(a) early in 1964 Prudential Insurance Company requested that Reed not be dis-
patched to its establishment because Reed "didn't do any work," (b) that Simi Drive-In
complained, during the forepart of the summer of 1964, that Reed came to its place
of business, had the regular monthly service slip signed and then left without doing
any work, (c) that the firm of Turner, Webster & Johnson complained, during the
forepart of the summer of 1964, that Reed did not do any work when he came to its
establishment, and (d) that Safeco complained that Reed stopped at its place of busi-
ness, slept for 2 hours, and then left; and (2) that during the summer of 1964, he
found Reed asleep on two separate occasions in the plant during working hours
With respect to the Prudential complaint, Sheldrick testified that he "reprimanded"
Reed but could not recall whether he had dispatched another employee to Prudential
to do the work Reed purportedly 'had failed to do properly; he could not recall ever
informing McGrath about Prudential's complaint against Reed; he could not recall
whether he had ever dispatched Reed to Prudential after the early 1964 Prudential
complaint; he could not recall ever talking to Reed about the Simi complaint; he
talked to Reed about the Safeco complaint, but Reed denied the accusation made
against him; and he could not recall talking to Reed about the Turner, Webster &
Johnson complaint.
With respect to finding Reed asleep in the plant on two separate occasions during
the summer of 1964, Sheldrick testified that each time he awakened Reed; he merely
said to Reed, to quote from Sheldrick's testimony, "If he wanted to sleep, to punch
out and go home"; and he never reported the two plant sleeping incidents to either
Lison or McGrath.
Sheldrick also testified that Reed's frequent lateness for work was also a factor
which he considered when he decided to recommend Reed for discharge, but that
Reed's "unionism or union activity " was not a contributing factor.
McGrath testified that: During the summer of 1964 La Marche, who has been
in Respondent's employ since 1961 as a salesman, asked him several times not to
assign Reed to him when he was making a sales call because Reed "had a surly inso-
lent attitude and was ... uncooperative"; about a month after Reed had been dis-
charged he tried to collect for the service work Reed had performed for Beck's
10 McGrath testified that in response to Lee's inquiry as to why Reed was discharged,
he replied , "Because we felt that he was the -least efficient , and we had more complaints
about him ." Upon the basis of the entire record in the case and from my observation of
McGrath and Lee while each was on the witness stand, I find Lee's version of what was
said during the above telephone conversation to be substantially In accord with the facts.
1180 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Trailer Park in August or September 1964; Beck's refused to pay "because [it] felt
that the man who had been on the job had not done it properly, or the sweeper was
not functioning properly"; early in December 1964 Sheldrick and he came to the
conclusion that, because business was falling off, an additional employee should be
laid off; 11 he thereupon conveyed this decision to Lison; Lison said, to quote Mc-
Grath, "He did not want to lay off this close to Christmas, and we would [sic] wait
until immediately after the Christmas holidays"; he told Sheldrick of Lison's decision
not to fire anyone prior to Christmas; and when he asked Sheldrick who should be
selected for layoff, Sheldrick replied, "Curtis Reed, because we had complaints about
his work."
Stewart A. Taber was first hired by Respondent as a stockboy on January 11, 1963.
During his employment with Respondent, Taber received five pay increases; three
of 10 cents per hour each; one of 5 cents per hour; and the final one of 25 cents per
hour.
Taber, with Reed's assistance, spearheaded the Union's organizational drive in
Respondent's plant.12 He was the one who first contacted the Union, secured union
authorization cards, and solicited his fellow workers to sign them, and held about six
union meetings at his home prior to his discharge on January 22, 1965.
During the course of Taber's employment his duties became greatly increased as
did his salary. His latest assignment was the taking over of the inventory control
system in June 1964, with a 25-cent-per-hour wage boost, at the time Respondent
dispensed with the services of its bookkeeper.
At the time of this new assignment, Taber told McGrath that he would have to
be relieved of his shop duties, such as assembling flaps and chains, because the newly
assigned duties consisted mainly of handling paperwork whereas his shop duties
brought him frequently in contact with grease. McGrath agreed to assign someone
else to Taber's shop duties.
About 3 weeks after assuming the inventory control job, Taber reminded McGrath
that since "paper work and grease did not mix" he would like to be relieved of his
shop duties. McGrath said that as soon as the plant and service facilities were moved
to the newly acquired building, Taber's shop duties would be given to one of the
shop men.
In July 1964 the parts, service, and certain other facilities were moved to the new
building at which time Taber was given certain additional jobs. These additional
jobs, for which Taber was to be paid at overtime rates, were to be performed by him
before or after his regular scheduled hours of work. One of these added jobs was to
water the newly planted landscaping. This watering job took about 21 hours a week.
The other added job was performed in the parts department.
In or about September 1964 Taber again asked McGrath to be relieved of the shop
duties. McGrath promised to do so, but did not.
In October 1964 Taber asked McGrath for a helper to aid him in setting up the
inventory bins and carts in order to take care of the three new dealerships which
Respondent had acquired that month. McGrath agreed that Taber needed a man to
help him and promised to speak to Lison about the matter; but no helper was assigned
to Taber.
In October 1964 Taber told Sheldrick that he could not keep proper inventory
records because the mechanics came into the parts department when it was unat-
tended and took various parts without permission and that he would have "to chase
these guys down to get the parts" back. He also told Sheldrick that it was difficult
enough to keep proper records without having the mechanics taking unauthorized
parts.
n Holeman Cluck, a truckdriver , was laid off about mid -November 1964.
22 The fact that Respondent knew prior to their respective discharges that Taber and
Reed actively supported the Union is not open to question . This finding is buttressed by
the fact that at the November 14 Board-conducted election Taber and Reed and the four
other eligible voters all cast their ballots for the Union ; at the December 21 bargaining
meeting between Lee, Lison , Helen Lison , and McGrath , at which time Robert Lison
remarked , "If Curt Reed and Stewart Taber hadn't been around, why, there wouldn't be
any union . If it wasn't for them, why, [we] wouldn 't be sitting here today " ; Sheldrick's
remark to Reed made about 3 days after the aforementioned Board -conducted election, in
Taber's presence , that the employees "should get the right colored picket signs, so it [sic]
wouldn't clash with the building" ; and Reed's statement to his coworkers around the
end of November 1964, in Sheldrick 's presence , that a union meeting was scheduled for
that evening after work at Taber's house.
R. J. LISON COMPANY, INC. 1181
On one or more occasions Taber told Sheldrick about the mechanics taking parts
without his knowledge or permission. Each time Sheldrick agreed that the situation
was intolerable but did nothing about it.
On October 30 McGrath, in Lison's presence, told Taber that there was no further
need for him to water the landscape, adding that Taber would not receive any further
overtime. McGrath then requested Taber to give him the keys to the plant which
had been given to Taber because he worked before and after the other employees'
normal work schedules. Taber handed over the keys. Thereupon, the notices
announcing the forthcoming Board election were posted in the plant.
Because of the failure to eliminate his shop duties, coupled with the fact that no
helper was assigned to him and that he was not permitted to work overtime, plus the
added duties occasioned by the acquisition of three new dealerships, Taber fell behind
in his inventory control work. This fact that Taber was falling behind in this job
was well known to McGrath because on many occasions Taber told McGrath of his
inability to keep abreast of the inventory and each time McGrath promised to do
something about it but never did.
On January 22, 1965, Lee visited the shop about 9 a.m. and spoke to Taber. Shel-
drick, who was standing about 8 or 10 feet away, saw Lee talking to Taber. After
Lee had concluded his conversation with Taber he left the plant and proceeded to
Respondent's office.13 Upon arriving at the office, Lee saw Sheldrick sitting at the
receptionist's desk. Lee then informed the receptionist that he would like to see
McGrath. Upon being announced, Lee was asked into McGrath's office. During
the course of the conversation which ensued between McGrath and Lee, the latter
mentioned, to quote from Lee's credited testimony, "The boys were real anxious to
get a contract, and that they were thinking seriously of a strike situation if we couldn't
get together and negotiate a contract."
About 30 or 45 minutes after Lee had left Taber, McGrath went to the parts depart-
ment and asked Taber if he had been keeping accurate inventory control records.
When Taber replied that he had not, that he had told McGrath a long time ago that
he could not keep accurate records without a helper, McGrath took the inventory
control cards saying that they would be handled in the office.
About 2:30 that afternoon, January 22, McGrath and Lison entered the parts
department. What then transpired, Taber credibly testified as follows:
Q. All right, now. Tell us to the best of your recollection what the people
in this conversation said, including yourself.
A. Yes.
Mr. Lison, Mr. McGrath-they walked into the parts department, and Mr.
Lison handed me my check, and he says to me, "This is your final check. We
don't need your assistance any longer."
I asked him why. Mr. Lison replies that I hadn't been keeping proper rec-
ords of inventory control.
At that time, I pointed at Mr. McGrath, and I asked him, "Didn't I ask you
for an assistant to give me a hand with inventory control, or give me a hand in
the parts department, generally?"
And he said, "Yes, you did." Mr. McGrath continued on telling me, "You
have had plenty of time in the last few months to catch all this back inventory
control up."
Q. Continue.
Anything else said?
A. Yes, Mr. Lison said, "Pack your personal belongings and get out, and
never come back on the premises again."
On January 29, 1964, Respondent hired Gary M. Bachle on a full-time basis. Bachle
introduced a new type of inventory control system which was not put into effect until
March 29. In short, Respondent "kept no bookkeeping system as far as inventory
was concerned" from January 22 through March 29, 1965.
Concluding Findings
This case presents the comparatively rare situation where the recitation of the
facts leading up to the discharges vividly reveals their discriminatory character.14
Is The two locations are a block apart.
14 Compare the oft-quoted observation of Chief Judge Parker In Hartsell Mills Company
v. N.L.R.B., 111 F. 2d 291, 293 (C.A. 4). '. . . direct evidence of a purpose to violate
the statute is rarely obtainable." Accord: NL.R.B. v. Bird Machine Company, 161 F. 2d
589, 592 (CA. 1) ; N.L.R.B. v. Dan River Mills, Incorporated, Alabama Division, 274 F.
2d 381 (C.A. 5) ; Northern Virginia Steel Corp. v. N.L.R.B., 300 F. 2d 168 (C.A. 4).
1182 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In support of its contention , expressed at the hearing and in its brief, that Reed's
union activities played no part in its decision to discharge him, Respondent advanced
various and sundry reasons for the discharge. Respondent first took the position
that Reed was discharged because of his poor attendance record. It then took the
position that Reed was discharged because of his inability to do the work. It then
took the position that Reed was discharged because he had been caught shaving in
the plant during working hours. It then took the position that Reed was discharged
for economic reasons. It then took the position that Reed was discharged because
of customer complaints and for sleeping on the job.
The shifting and unsupported grounds assigned by Respondent for terminating
the employment of Reed are persuasive indications that antiunion reasons, rather
than the reasons advanced by Respondent, accounted for the action taken against
him.h
The record is abundantly clear, and I so find, that the reasons advanced by Respond-
ent for Taber's discharge are pretextuous. Respondent seized upon the fact that the
inventory control system was not up to date as an excuse to rid the plant of another
union leader. Taber's purported unsatisfactory work became insurmountable in
Respondent's eyes when Lee mentioned to McGrath that the employees were think-
ing about striking the plant.
Upon the entire record in the case, I find that Respondent discharged Reed and
Taber, and thereafter refused to reinstate them, because each had engaged in pro-
tected union activities. By so doing, Respondent violated Section 8(a)(3) of the
Act and since such conduct necessarily interfered with, restrained, and coerced
Reed and Taber and their coworkers in the exercise of the rights guaranteed in Sec-
tion 7 of the Act, Respondent also violated Section 8(a)(1) thereof. I further find
that the elimination of Taber's overtime work at premium pay on and after Octo-
ber 30, 1964, was also violative of Section 8(a)(3) and (1) of the Act.
I recommend that the complaint be dismissed insofar as it alleges unfair labor
practices not specifically found herein.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent set forth in section III, above, occurring in connec-
tion with the operations of Respondent as described in section I, above, have a close,
intimate, and substantial relation to trade, traffic, and commerce among the several
States and such of them as have been found to constitute unfair labor practices, tend
to lead to labor disputes burdening and obstructing commerce and the free flow of
commerce.
V. THE REMEDY
Having found that Respondent has engaged in unfair labor practices violative of
Section 8(a) (1) and (3) of the Act, it is recommended that it cease and desist there-
from and take certain affirmative action designed to effectuate the policies of the
Act.
"The courts have frequently recognized that shifting explanations by an employer for
the discharge of an employee may warrant an inference that the true reason was the em-
ployer's hostility to the union . See N.L.R B. v . International Furniture Company, 199
F. 2d 648 (C.A. 5) ; N.L.R.B. v. Crystal Spring Finishing Company, 116 F. 2d 669
(C.A. 1) ; N.L.R.B. v. Yale & Towne Manufacturing Company, 114 F. 2d 376 (C.A. 2) ;
N.L.R.B. v. Condenser Corporation of America, 128 F. 2d 67 (C.A. 3) ; N L.R.B. v. Eclipse
Moulded Products Company, 126 F. 2d 576 (C.A. 7). And this is so even where the em-
ployer had "plausible grounds" for the discharge . United Biscuit Company of America
v. N.L.R.B., 128 F. 2d 771 (C.A. 7). See also N.L.R.B. v. C. W. Radcliffe, et al., d/b/a
Homedale Tractor & Equipment Company, 211 F. 2d 309 ( C A. 9), which holds that the
giving of implausible , inconsistent, or contrary explanations of a discharge may be con-
sidered in determining the motive therefor ; it is, as here , a circumstance indicative of
antiunion motivation.
Of course , disbelief of the reasons advanced by Respondent does not in itself make out
a violation . Unquestionably , as Respondent 's counsel points out in his brief , the burden
Is on the General Counsel to establish discriminatory motive, not on Respondent to dis-
prove it. Miller Electric Manufacturing Co. v. N.L.R.B., 265 F. 2d 225 (C.A. 7) ; N.L.R.B.
v. Rockwell Manufacturing Company ( DuBois Division), 271 F. 2d 109 (C.A. 3 ) ; NL.R.B.
v. Minnotte Manufacturing Corp., 299 F . 2d 690 ( C.A. 3) ; see also The Stayer Company,
Incorporated, 154 NLRB 1289; Da-late Screen Company, Inc., 154 NLRB 926. Here the
General Counsel has more than met that burden. -
R. J. LISON COMPANY, INC. 1183
Having found that Respondent has discriminated in regard to the hire and tenure
of employment, and the terms and conditions of employment of Reed and Taber, it is
recommended that Respondent offer them immediate and full reinstatement to their
former or substantially equivalent positions, without prejudice to their seniority or
other rights and privileges. It is also recommended that Respondent make Reed and
Taber whole for any loss of pay each of them may have suffered by reason of
Respondent's discrimination against them, by payment to each of a sum of money
equal to the amount each normally would have earned as wages from the date of his
discharge to the date of Respondent's offer of reinstatement, less his net earnings dur-
ing that period?o Backpay and interest thereon at the rate of 6 percent per annum
are to be computed and paid in accordance with and in the manner set forth in F. W.
Woolworth Company, 90 NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB
716.
The unfair labor practices found to have been engaged in by Respondent are of
such a character and scope that in order to insure Respondent's employees of their
full rights guaranteed them by the Act, it will be recommended that Respondent cease
and desist in any manner from interfering with, restraining, and coercing its employ-
ees in their exercise of the rights to self-organization.
Upon the basis of the foregoing findings of fact and upon the record as a whole, I
make the following:
CONCLUSIONS OF LAW
1. Respondent is, and during all times material was, an employer engaged in com-
merce and in a business affecting commerce within the meaning of Section 2(6)
and (7) of the Act.
2. The Union is, and during all times material was, a labor organization within
the meaning of Section 2(5) of the Act.
3. By discriminating in regard to the hire and tenure of employment and the
terms and conditions of employment of Reed and Taber, thereby discouraging mem-
bership in the Union, Respondent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8(a)(3) of the Act.
4. By discriminatorily discontinuing Taber's overtime work at premium pay, Re-
spondent engaged in and is engaging in unfair labor practices within the meaning
of Section 8(a)(3) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices within the mean-
ing of Section 2(6) and (7) of the Act.
6. Respondent has not engaged in other violations of the Act alleged in the
complaint.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, and upon
the record as a whole, it is recommended that R. J. Lison Company, Inc., Burbank,
California, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) In any manner interfering with, restraining, or coercing its employees in the
exercise of the right to self-organization, to form, join, or assist the Union or any
other labor organization of its employees, to bargain collectively through represen-
tatives of their own choosing, and to engage in concerted protected activities for the
purpose of collective bargaining or other mutual aid or protection, and to refrain
from any and all such activities.
(b) Discouraging membership in the Union, or in any other labor organization
of its employees, by discriminatorily discharging or refusing to reinstate its employ-
ees, or by discriminating in any other manner in regard to their hire and tenure of
employment or any term or condition of employment.
2. Take the following affirmative action which it is found will effectuate the poli-
cies of the Act:
(a) Reinstate Curtis Reed and Stewart A. Taber to their former or equivalent
positions without prejudice to their seniority and other rights and privileges.
(b) Make whole Curtis Reed and Stewart A. Taber for any loss of wages they may
have suffered because of Respondent's discrimination against them, in the manner
and to the degree set forth in the section above entitled "The Remedy."
19 Respondent should also be ordered to make Taber whole for any loss of overtime
premium pay he suffered as a result of Respondent 's discriminatorily eliminating his
overtime.
1184 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(c) Preserve and, upon request, make available to the National Labor Relations
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 for the determination of amounts of pay due under these recommendations.
(d) Notify Curtis Reed and Stewart A. Taber if presently serving in the Armed
Forces of the United States of their 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.
(e) Post at its establishment in Burbank, California, copies of the attached notice
marked "Appendix." 17 Copies of said notice, to be furnished by the Regional Direc-
tor for Region 31, shall, after being duly signed by Respondent's representative, be
posted 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 such notices are not altered, defaced, or covered by any
other material.
(f) Notify the Regional Director for Region 31, in writing, within 20 days from
the receipt of this Decision, what steps Respondent has taken to comply herewith 18
It is further recommended that unless on or before 20 days from the receipt of
this Decision, Respondent notifies the said Regional Director that it will comply with
the foregoing recommendations, the National Labor Relations Board issue an order
requiring said Respondent to take the action aforesaid.
It is also recommended that the complaint be dismissed insofar as it alleges unfair
labor practices not specifically found herein.
17 In the event that this Recommended Order be adopted by the Board, the words "a
Decision and Order" shall be substituted for the words "the Recommended Order of a
Trial Examiner" In the notice. In the further event that the Board's Order be enforced
by a decree of a United States Court of Appeals, the words "a Decree of the United States
Court of Appeals, Enforcing an Order" shall be substituted for the words "a Decision
and Order."
>e In the event that this Recommended Order be adopted by the Board, this provision
shall be modified to read: "Notify said Regional Director, in writing, within 10 days from
the date of this Order, what steps the Respondent has taken to compy herewith."
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 Rela-
tions Act, as amended, we hereby notify our employees that:
WE WILL NOT in any manner interfere with, restrain, or coerce our employ-
ees in the exercise of their right to self-organization, to form labor organizations,
to join or assist Teamsters Automotive Workers, Local 495, International Broth-
erhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, or
any other labor organization of our employees, to bargain collectively through
representatives of their own choosing, and to engage in concerted activities for
the purpose of collective bargaining or other mutual aid or protection, or to
refrain from any and all of such activities.
WE WILL offer to Curtis Reed and Stewart A. Taber immediate and full rein-
statement to their former or substantially equivalent positions without prejudice
to any seniority or other rights and privileges previously enjoyed.
WE WILL make Curtis Reed and Stewart A. Taber whole for any loss of pay
they may have suffered by reason of our discrimination against them.
All our employees are free to become or remain members of the above-named
Union or any other labor organization. We will not discriminate in regard to hire or
tenure of employment or any term or condition of employment against any employee
because of membership in or activity on behalf of any such labor organization.
R. J. LISON COMPANY, INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
NoTE.-We will notify the above employees if presently serving in the Armed
Forces of the United States of their 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.
OVERNITE TRANSPORTATION COMPANY, INC. 1185
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 pro-
visions, they may communicate directly with the Board 's Regional Office, U.S. Post
Office and Court House , 312 North Spring Street , Los Angeles , California , Telephone
No. 688-5840.
Overnite Transportation Company, Inc. and Chauffeurs, Team-
sters and Helpers Local No . 171, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of America.
Case No. 5-CA-3029. March 29,1966
DECISION AND ORDER
On December 23, 1965, Trial Examiner Alba B. Martin issued his
Decision in the above-entitled proceeding, finding that the Respond-
ent had engaged in and was engaging in certain unfair labor practices
within the meaning of the National Labor Relations Act, as amended,
and recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial Examiner's Deci-
sion. Thereafter, the Respondent filed exceptions to the Decision and
a supporting brief. The Charging Party filed cross-exceptions, sup-
porting brief, and an answering brief to Respondent'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 powers in connection with this case to a three-member
panel [Members Fanning, Brown, and Zagoria].
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, cross-exceptions, briefs, and the
entire record in the case,' and hereby adopts the findings, conclusions,
and recommendations of the Trial Examiner.2
1 The Respondent 's exceptions to the Trial Examiner's Decision and supporting brief are
directed in large part to the credibility resolutions of the Trial Examiner , alleging that
he was biased and prejudiced . We find these allegations without merit . Our review of
the entire record in this case leads us to the conclusion that the Trial Examiner's
credibility findings are not contrary to the clear preponderance of all the relevant evidence ;
and, accordingly , we find no basis for disturbing them. Standard Dry Wall Products,
Inc., 91 NLRB 544, enfd. 188 F. 2d 362 (C.A. 3).
'We find no merit in Respondent 's exceptions to the Trial Examiner's rejection of cer-
tain of its exhibits . Contrary to the contention of the Respondent , the record shows
that either the Union and/or the General Counsel objected to the admission of each of
the exhibits in question.
Respondent also contends that we are bound by an order of the Interstate Commerce
Commission in Overnite Transportation Company-Purchaser-Rutherford Freight Lines, 97
M.C.C. 568, which recites certain wages, hours, and other conditions of employment which
the purchaser intended to adopt. However , in its decision , of which we take official
notice, that Commission specifically made no findings or recommendations concerning the
labor relations matters involved in the instant case , supra, at 574, 576 , 577. Further-
157 NLRB No. 103.