Streis Industries, Inc.

National Labor Relations Board - Board Decisions

Feb 16, 1977

228 N.L.R.B. 249 (N.L.R.B. 1977)

STREIS INDUSTRIES, INC. 249
Streis Industries , Inc. and Fredrick M . Bentley. Case
9-CA-9716
February 16, 1977
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS
JENKINS AND WALTHER
On October 28, 1976, Administrative Law Judge
David S. Davidson issued the attached Decision in
this proceeding. Thereafter, the General Counsel filed
exceptions and a supporting brief, and the Respon-
dent filed a brief in support of the Decision of the
Administrative Law Judge.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated' its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
concerted activity, thereby violating Section 8(a)(1) of the
Act.
A hearing on the consolidated complaint was com-
menced on August 11, 1976, at Louisville, Kentucky. At the
hearing the parties agreed to settle all issues other than that
pertaining to the discharge of Bentley. With the agreement
of the parties, the cases were severed, and Case 9-CA-9820
was continued indefinitely pending notification of compli-
ance with the settlement agreement entered into in that
case . The hearing then proceeded to conclusion with
respect to the issue raised by Bentley's discharge. The
parties waived oral argument and have filed briefs.
Upon the entire record in this case including my
observation of the witnesses and their demeanor, I make
the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Respondent, a Kentucky corporation, is engaged in the
processing of snack food items at its plant at Jeffersonville,
Kentucky. As Respondent has an annual direct outflow in
excess of $50,000, I find that Respondent is an employer
engaged in commerce within the meaning of the Act and
that it will effectuate the policies of the Act to assert
jurisdiction herein.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the complaint be, and it hereby is,
dismissed in its entirety.
I The General Counsel has excepted to certain credibility findings made
by the Administrative Law Judge . It is the Board's established policy not to
overrule an Administrative Law Judge's resolutions with respect to credibili-
ty unless the clear preponderance of all of the relevant evidence convinces us
that the resolutions are incorrect. Standard Dry Wall Products, Inc., 91
NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have carefully
examined the record and find no basis for reversing his findings.
DECISION
STATEMENT OF THE CASE
DAVID S. DAVIDSON, Administrative Law Judge: The
charge in the above-captioned case was filed on October 14,
1975. On November 26, 1975, it was consolidated with the
charge in Case 9-CA-9820, and a consolidated complaint
issued, which was later amended. It alleged that on October
6, 1975, Respondent's employees engaged in a lawful
economic strike and that Respondent unlawfully dis-
charged seven named employees because they struck. The
complaint further alleged that Respondent discharged
Supervisor Fredrick Bentley as part of a pattern of conduct
aimed at penalizing its employees for engaging in protected
I In the light of the testimony of Bentley , Conway, and employee Thomas
Moore, as well as the affidavits of Bentley and Moore , I have credited
228 NLRB No. 37
II. THE ALLEGED UNFAIR LAB01t PRACTICES
A. The Facts
Respondent went into business in 1974 and, by the fall of
1975, had from 12 to 14 employees. Its general manager was
Eugene Reis and its plant supervisor was Joseph Conway.
When production started Fredrick Bentley, whose alleged
discharge is at issue , was hired as a machine operator and
about a month later was promoted to a supervisory
position.
In May 1975 a representation election was held at the
plant, which resulted in a vote against union representation.
Following the election, Reis met with the employees and
suggested that they could attempt to settle any grievances
internally and that they could have monthly meetings with
him if they desired to discuss their problems. Reis also told
the employees that Respondent was not making money at
that time, but that as soon as possible it would give the
employees a raise.
By early October 1975, no meetings had been held
between management and the employees, and there was
employee dissatisfaction, although insofar as the record
shows it had not been communicated to Reis. On October 1
and 2 Fredrick Bentley asked Conway to arrange a meeting
between him and Reis because he wanted a raise.'
Conway discussed the matter with Reis who told Conway
that he could not give Bentley more money and that there
was no need for a meeting if a raise for Bentley was its
purpose. On Friday, October 3, about 3 or 3:15 in the
afternoon, shortly before quitting time, Bentley again asked
Conway as to what Bentley told him was the purpose for which he wanted to
meet with Reis.
250 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Conway about the meeting . Conway replied that Reis
would not give Bentley a raise and that he saw no point in
setting up the meeting . Bentley told Conway that he might
as well quit, and Conway responded that it was entirely up
to Bentley. Bentley had previously threatened to quit if he
did not receive a raise by October.
About 3:30 that afternoon , Bentley turned over to
Conway the tools which he used in his work .2 Bentley did
not leave the plant immediately at 3:30 but remained in the
plant cafeteria with two other employees playing cards for
15 or 20 minutes . According to Bentley, thereafter as he was
leaving the plant , Conway called him into his office and
asked Bentley to reconsider his decision to quit . Bentley
testified that he told Conway he would think about it over
the weekend and would give him an answer on Monday at
noon . Conway denied that this conversation took place.
Although testimony by Maintenance Supervisor David
Graham that he saw Bentley in Conway's office as he was
leaving the plant between 3:45 and 4 p .m. raises some
doubt as to Conway 's denial that the conversation took
place, for reasons set forth below I have credited Conway's
further testimony that, 2 days later on a Sunday, Bentley
apologized for what had happened on Friday and asked for
an opportunity to reconsider his decision. Had the Friday
afternoon conversation occurred as Bentley testified, there
would have been no occasion for Bentley's apology and
request on Sunday . Furthermore , as appears below, I have
credited testimony that on Friday afternoon after Bentley
left the plant he told others he had quit . Accordingly, I
credit Conway that he did not ask Bentley to reconsider his
decision on Friday afternoon.
After leaving work that afternoon employees Thomas
Moore and Jesse Johnson stopped at the Maple Inn along
with Maintenance Supervisor David Graham . Moore was
aware of Respondent 's denial of Bentley's request for a
meeting and in discussing the matter with Johnson they
decided that they should try to induce the other employees
to walk out in order to get a meeting with Reis to discuss
their working conditions and pay . Moore and Johnson
decided to call Bentley to get a list of employee names and
telephone numbers so that they could call the employees to
organize a work stoppage for the following Monday
morning . Bentley came to the Maple Inn with the list and
remained there with the others for a while.
There is divergent testimony as to what was said about
Bentley's quitting while Bentley and the others were at the
Maple Inn. Graham testified that while there Bentley said
that he had quit . Bentley testified that he told the others
that he had not quit as of then and would give his answer to
Conway on Monday . Moore conceded that before he left
the plant that day he believed Bentley had quit and so
informed Graham . Moore testified that at the Maple Inn
Bentley said he had not quit and would come to work late
on Monday . He then testified that even before leaving the
plant when Bentley stayed to play cards in the cafeteria at
the plant he took it for granted that Bentley had not quit.
Finally, he testified that Bentley told him he had not quit
while they were playing cards . Although Graham appeared
to be nervous at the thought of testifying to anything
harmful to his employer 's interest and some of his testimo-
ny appeared to lack candor , I find his version more
believable than that of Bentley or Moore . Moore's testimo-
ny is both inconsistent with Bentley's and is internally
inconsistent . Moreover , employee James Augustus testified
that on the following Monday morning he was told by an
unidentified employee among those who gathered at the
plant parking lot that Bentley had quit . I conclude that
when Bentley came to the Maple Inn and last spoke to any
employees before the next Monday morning when they
gathered at the plant , Bentley told Moore , Johnson, and
Graham that he had quit.
On the following Sunday afternoon Bentley stopped at
Conway's home for a while to visit with him . There is
further conflict in the testimony as to what they talked
about at that time.
According to Bentley , they discussed several matters,
including a suggestion by Bentley for improving the
processing of Respondent's products . Bentley testified that,
as he was about to leave , Conway asked him if he was
coming to work on Monday, and Bentley replied that he
would be in around noon on Monday to tell Conway
whether or not he would be back . Bentley testified that
Conway said that was good enough , and Bentley left.
Conway testified that when Bentley arrived at his home, he
told Conway that he would like to apologize for what had
happened on Friday and that Conway accepted his apology
and told Bentley he was sorry about it . According to
Conway, Bentley also told him that if the financing for the
purchase of a new truck went through he was going to go on
the road driving, but that if the loan was not approved he
would like to reconsider coming back to work for the
Respondent . Conway testified that he told Bentley that he
did not talk about business in his home , whereupon Bentley
asked if he could come by the plant on Monday to discuss
the matter. According to Conway , he replied that Bentley
could stop by on Monday if there was anything he wanted
to discuss, and Bentley said that he would come in at noon
or in the afternoon to talk with him as he had a medical
appointment in the morning.
For reasons already indicated, I have not credited
Bentley that Conway had previously asked him to reconsid-
er his decision to quit and do not credit Bentley's testimony
that it was Conway who raised the subject again on Sunday.
In this connection , I note Moore's testimony that on the
next morning when he went in the plant and told Conway
that the employees were not going to work until they had a
meeting with Reis because of what had happened to
Bentley, Conway responded that Bentley had come to his
house on Sunday , had apologized to him, and would be in
later in the day . I find that Conway's statement to Moore,
made before the walkout occurred , when Conway had no
reason to conceal any desire he might have for Bentley to
reconsider his action, corroborates Conway's version of his
Sunday conversation with Bentley, and I have credited
Conway as to who raised the subject of Bentley 's possible
return and what Bentley said about it. However, I am not
persuaded by Conway's testimony that he refused to talk
about the matter at his home and simply deferred all
2 That afternoon Bentley loaned his plant key to another employee who
did not return it, but Bentley later saw it on Conway 's desk and did not seek
to reclaim it
STREIS INDUSTRIES, INC. 251
discussion of the matter until Monday. Conway's testimony
both on direct and cross-examination as to his practice with
respect to talking about business at home does not ring
true. Moreover, in this respect Reis' testimony as to what
Conway told him on Monday morning about Bentley's visit
is more consistent with Bentley's version of this portion of
the conversation than with Conway's. In these circumstanc-
es and in the absence of any arrangement having been
made to replace Bentley as of Sunday, I conclude that
following Bentley's statement, Conway replied, as Bentley
testified, to indicate that it would be satisfactory for Bentley
to come in on Monday to tell him whether or not he wanted
to come back.
On Monday morning Moore arrived at the plant about
6:30 in the morning and waited outside the plant for others
to arrive. He urged them not to go in to work until they had
a meeting with Reis. After several employees had gathered
outside the plant, they decided that Moore should go in and
tell Conway what was happening. Moore entered the plant
and told Conway that the employees were not going to
work until they had a meeting with Reis because of what
had happened to Bentley. Conway told Moore of Bentley's
visit to his home on the previous day, as set forth above,
and stated that there was no reason to put anyone's job on
the line for one man and that if the employees wanted a
meeting they could have it.
Moore rejoined the other employees outside the plant
and told them what Conway had said. They agreed that the
promise of a meeting was not enough and that they would
not go to work until they had actually met with Reis, who
had not yet arrived at the plant. The employees then left the
parking lot and went to a nearby restaurant from which
they called Bentley at his home. Bentley came to the
restaurant and joined the employees. In conversation
Bentley expressed his disagreement with their decision to
stop work.
While the employees were at the restaurant, Reis arrived
at the plant and discussed the situation with Conway. At
that time Conway told Reis that Bentley had quit on the
previous Friday and had come by his home on Sunday to
apologize and say that he had reconsidered and would let
Conway know sometime on Monday whether he wanted to
return to work.
Sometime thereafter the employees returned to the plant
looking for Reis. They went to the office and told the
receptionist that they wanted to see Reis. After calling Reis,
she told them that Reis would see one of the employees.
Johnson and Moore suggested that Bentley serve as the
employees' spokesman, and Bentley proceeded to Reis'
office alone.
Reis asked Bentley what was going on, and Bentley
replied that the employees wanted a meeting and that he
guessed that that was the only way they were going to get it.
3 Although only Bentley testified to this portion of their conversation,
Reis did not deny making the remark about a knife at his throat and it is
consistent with the action taken by Reis at that time.
4 Both Reis and Bentley testified that Reis raised the question of Bentley's
quitting at this point . Reis testified that Bentley replied as found above.
Bentley testified that he said that he had not quit, that he had told Conway
on Friday that he would let him know on Monday whether he would quit,
and that he was not quitting . I have elsewhere rejected Bentley 's version of
his Friday conversation with Conway on which Bentley's version of this
conversation rests. Accordingly, I have credited Reis.
Reis responded that there would be no meeting as long as
the employees were holding a knife at his throat. Bentley
said that he did not think that was the way the people felt .3
At that point Reis said that he understood from Conway
that Bentley had quit on Friday and asked how he could be
representing the people as an employee if he had quit.
Bentley said he had quit but that he had told Conway that
he wanted to reconsider and would let Conway know some
time that day whether he was through.4 Reis told Bentley
that Conway had told him Bentley had quit and that as far
as he was concerned that was it. Bentley again said that the
employees wanted a meeting and would go to work if Reis
would meet with them. Reis responded that he felt they
were past the point of having a meeting right then. Reis told
Bentley to tell the employees to go home and that
Respondent would call them when they were needed.
Bentley then left and told the employees what Reis had
said, whereupon they left.
After Bentley's visit to the office, Reis told Conway that
as far as he was concerned Bentley had quit on Friday and
he would not consider rehiring him at that time. Reis
instructed Conway to prepare to replace Bentley . During
that day Jesse Johnson was given Bentley's job.
Later that afternoon, Bentley returned to the plant to
speak to Conway. Bentley told Conway that over the
weekend he had discussed the matter with his family who
did not want him to go back on the road as a driver and that
he would like Conway to take him back to work. Conway
replied that Bentley had quit on Friday, that they had to
keep operating, and that he had already given his job to
another employee.5
B. Concluding Findings
The General Counsel contends that Bentley was still in
Respondent's employ at the time of the work stoppage on
Monday, October 6, and that he was discharged by
Respondent in furtherance of and as an integral part of the
pattern of conduct aimed at penalizing Respondent's
employees for engaging in protected concerted activity.
Respondent admits that employees engaged in protected
concerted activity on October 6 and that employees were
unlawfully terminated or suspended by Respondent on that
date for engaging in such activity. However, Respondent
contends that Bentley had voluntarily resigned on the
previous Friday and was not employed on the day of the
work stoppage. Respondent contends further that in any
event it did not violate the Act as Bentley was a supervisor
when he was employed.
Even Bentley's testimony leaves little doubt that, when
Conway told him Reis would not meet with him and would
not give him a raise, Bentley meant to quit and did so. He
so informed Conway and consistent with what he said
turned in company property in his possession. Although the
5 Conway so testified . According to Bentley , Conway asked him if he was
throwing in with the rest of the employees and that if so he was in the same
boat they were . However, Bentley also testified that , when he told Conway he
wanted to stay with Respondent , Conway told him he would talk to Reis and
see what he could do but that as of then he was in the same boat as the others.
As Reis had told Conway after Bentley had come to his office that he saw no
reason to rehire Bentley and as Johnson had been given Bentley'sjob, I have
credited Conway's version.
252 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
General Counsel contends that the effect of these actions
was quickly nullified by Bentley's agreement at Conway's
request to consider further over the weekend whether he
would quit, the findings do not support that contention. I
have found that reconsideration was raised not by Conway
on Friday, but by Bentley on Sunday and that what Bentley
sought at that time was an opportunity to change his mind
about quitting on the following day. Bentley gave no
indication on Sunday that he had made a decision to seek
to continue working for Respondent and in fact gave no
indication of that decision until Monday afternoon after
Reis had told him in effect that he considered Bentley's
quitting as final.
In these cirqumstances, I conclude that Bentley had
severed his employment with Respondent on Friday, and
did not become reemployed by Respondent before Conway
denied his request to have his job back on Monday
afternoon.
To be sure, the facts as found above raise a substantial
question as to the reason Respondent refused to rehire
Bentley. I have found that on Sunday afternoon Conway
told Bentley that it would be satisfactory for Bentley to let
him know on Monday afternoon whether he wanted to
come back to his job and, when Conway first told Reis of
his Sunday conversation with Bentley, Reis took no
position as to Bentley's return . Only after Bentley came to
Reis' office as spokesman for the employees did he tell
Bentley that his quitting was final, and thereafter he told
Conway the same thing . Although I viewed Reis' testimony
as to events and their timing as commendably candid, there
is nonetheless reason to be skeptical that his explanation of
his decision not to consider taking Bentley back disclosed
the most significant reason. Nonetheless, the complaint
does not allege that Respondent unlawfully refused to
rehire Bentley because of protected employee activities, and
the General Counsel has not contended in the alternative
that, even if Bentley had quit, a refusal to rehire him as a
supervisor because of his involvement in employee concert-
ed activity would violate the Act.
Accordingly, I find that the General Counsel has failed to
establish that Respondent discharged Bentley in violation
of the Act and I will recommend that the complaint be
dismissed.
CONCLUSIONS OF LAW
1. Streis Industries, Inc., is an employer engaged in
commerce within the meaning of the Act.
2. The General Counsel has failed to establish that
Respondent has engaged in unfair labor practices as alleged
in the complaint.
Upon the basis of the above findings of fact and
conclusions of law and the entire record in this case and
pursuant to Section 10(c) of the National Labor Relations
Act, as amended, I hereby issue the following recommend-
ed:
ORDER6
The complaint is dismissed in its entirety.
6 In the event no exceptions are filed as provided by Sec. 102.46 of the of the Rules and Regulations, be adopted by the Board and becomes its
Rules and Regulations of the National Labor Relations Board , the findings , findings, conclusions , and Order, and all objections thereto shall be deemed
conclusions , and recommended Order herein shall, as provided in Sec . 102.48 waived for all purposes.