Sun Hardware Co., Inc.Download PDFNational Labor Relations Board - Board DecisionsNov 26, 1968173 N.L.R.B. 973 (N.L.R.B. 1968) Copy Citation SUN HARDWARE CO. 973 Sun Hardware Co., Inc. and General Truck Drivers, Chauffeurs, & Helpers, Local 692, International Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America. Case 21-CA- 7909 November 26, 1968 2 In adopting the Trial Examiner 's remedial recommendations, we construe his Decision as incorporating the usual Board provisions as follows ( 1) that the Respondent shall be required to offer full reinstatement only to those employees to whom it has not previously offered reinstatement , (2) that the Respondent is liable for making employees whole only from the date of the discrimination against them to the date of the offer of reinstatement , and (3 ) that the Respondent in carrying out its obligation to reinstate employees to their old or substantially equivalent positions shall, if necessary , discharge em- ployees hired since the date of the discrimination DECISION AND ORDER BY CHAIRMAN MC CULLOCH AND MEMBERS BROWN AND ZAGORIA On July 12, 1968, Trial Examiner Melvin Pollack issued his Decision in the above-entitled proceeding, finding that the Respondent had engaged 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 Decision. He further found that the Respondent had not engaged in certain other unfair labor practices alleged in the complaint and recommended that such allegations be dismissed. Thereafter, the Respondent filed exceptions to the Trial Examiner's Decision and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three- member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and brief, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, with the addition' and modifications noted below.2 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recom- mended Order of the Trial Examiner, and hereby orders that the Respondent, Sun Hardware Co., Inc., Long Beach, California, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order. I We agree with the Trial Examiner that the remark of the Respondent 's president Goodrich, to employee Miller on December 12, to the effect that he did not want a union in the plant, did not violate Section 8 (a)(1) of the Act. However, such comment does show antiunion animosity on the Respondent's part, relevant to a considera- tion of the reason for the discontinuance of the night shift on January 4 and the failure to recall immediately those laid off, night shift employees who had signed union authorization cards TRIAL EXAMINER 'S DECISION STATEMENT OF THE CASE MELVIN POLLACK, Trial Examinee Upon a charge filed on January 19, 1968, and amended on March 7, 1968, the General Counsel issued a complaint on March 14, 1968, against Respondent Sun Hardware Co., Inc. The principal issue presented by the complaint is whether Respondent discharged its night-shift employees on January 4, 1968, in violation of Section 8(a)(1) and (3) of the National Labor Relations Act, as amended. The case was heard in Los Angeles, California, on May 21 and 22, 1968. The General Counsel and Respondent have filed briefs. 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 Respondent, a California corporation, is engaged in the reclaiming of aircraft hardware and related components at its plant in Long Beach, California. It annually performs services valued in excess of $50,000 for Aircraft Division of Douglas Aircraft Company Division of the McDonnell Douglas Corpora- tion in Long Beach, California, whose interstate sales are in excess of $50,000. I find that Respondent is engaged in commerce and in a business affecting commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED General Truck Drivers, Chauffeurs & Helpers, Local 692, International Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America,' herein called the Union, is a labor organization within the meaning of Section 2(5) of the Act III THE UNFAIR LABOR PRACTICES A. Sequence of Events Respondent has been engaged in business at its Long Beach plant for some 10 years. For about a year up to January 4, 1968, it employed 75-100 employees on two shifts, a day shift and a night or swing shift of approximately 25 employees. In late December 1967, night-shift employee Willine Riley called Business Agent Boldt of the Union and told him that the ' The name of William R. Boldt, appearing as business agent for the Union, is incorrectly given as "Bolt" in the transcript of testimony. 173 NLRB No. 143 974 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employees at her plant were interested in obtaining a union contract and that her foreman, Ronald Maloof, would get in touch with him. In a telephone conversation with Maloof, who was in charge of the night shift, Boldt said the Union would handbill the plant and that he would write an introductory letter "explaining our purposes in handbilling the plant." Boldt brought a rough draft of the letter to Maloof's home on January 2 or 3, 1968.2 After Boldt read the letter to Maloof and his wlfe,3 they suggested that he distribute copies at the plant about 4:30 p.m. when the shifts changed. Boldt said he would be there on Friday afternoon, January 5, about 4 p.m. "to catch the second shift coming in ... and also remain there until the first shift let out to handbill the plant." Maloof told "between 17 and 20" night-shift employees on January 3 that the Union "was coming down" on January 5. Meanwhile, on January 2, Respondent posted a notice that in addition to their regular 5-day, 40-hour workweek, all employees would work the Saturdays of January 6 and 13 at regular pay. Pursuant to employee complaints, Business Agent Boldt took the matter up with a representative of the Wage and Hour Division of the Department of Labor. The representative on January 3 advised Respondent's president, Gordon Goodrich, that the employees were entitled to time and a half pay for the scheduled Saturday work. On January 4, about 3:30 p.m., Respondent posted the following notice: NOTICE EFFECTIVE THIS DATE, JANUARY 4, 1968 , THE SWING SHIFT WILL BE DISCONTINUED. SUN HARDWARE CO., INC., IN THE INTEREST OF ACHIEV- ING MORE AND EFFICIENT PRODUCTION SCHEDULES IN ITS WORK FOR THE MAJOR AIRCRAFT COMPANIES, IS GOING TO EXPAND ITS DAY SHIFT IN BOTH PERSONNEL AND EQUIPMENT WE HOPE TO HAVE THIS PLANNING ACCOMPLISHED AND IN EFFECT BY THE FIRST PART OF FEBRUARY, 1968 ANY EMPLOYEE NOW WORKING ON THE SWING SHIFT, CAPABLE OF CHANGING TO THE DAY SHIFT SHOULD SIGN THIS NOTICE WE WILL REVIEW OUR PERSONNEL AND PRODUCTION NEEDS AND NOTIFY ANYONE SIGNING THIS NOTICE OF OUR INTENTION TO TRANSFER THEM ONTO THE DAY SHIFT BY FEBRUARY 16, 1968 THE MANAGEMENT Note Swing Shift pay checks may be picked up at the office after 4 00 P M. Friday, Jan. 5. Upon reading the notice, Ronald Maloof walked over to the "main office" where he found President Goodrich, Vice President Harry Smith, and Foreman Raymond Snyder. Maloof asked the reason for the notice and Goodrich said the night shift was not "putting out the work." Maloof asked that the employees be kept on at least another week but Goodrich replied that when he made a decision, he acted on it at once He told Maloof to terminate the shift at midnight. Maloof told the "girls" as they reported for work that he would try to reach the Union "so they could come right down " Maloof spoke to Business Agent Boldt over a plant telephone between 7 and 7.30 p.m He told Boldt the employees were "quite upset" over the layoff and did not want to wait until Friday to sign union authorization cards Boldt agreed to come to the plant during the employees' lunch period-8 to 8.30 p m.-and to bring letters and handbills "to hand out.s5 About 7 45 p in., Laura Scales, leadwoman on the night shift, told Maloof not to permit the Union in the budding Maloof replied that he was not going to let the Union into the building and that "they will be out at lunch time." About 5 minutes later, Scales told Maloof, "Harry Smith wants to see you in the office right away " Maloof went to the office where he found both President Goodrich and Vice President Smith Upon being instructed to shut the machines down and send the "girls" home, Maloof said most of the women would not have a ride home until midnight and he could not tell them to go home now. He added, "If you want to tell them, you will have to tell them yourself." Smith asked Maloof for his keys to the plant. Maloof handed over the keys and walked back into the plant He was asked what had happened and answered, "We have to go home now." Smith then came in and told the employees to shut the machines down and leave The employees gathered outside the plant Following a call from Sharon Maloof, Business Agent Boldt and several other union men came down and invited the employees to walk over to the Union hall About 20 employees walked to the Union hall where 17 signed union cards Three employees-Violet Krementz, Violet Thompson, and Mary Snyder-did not sign cards. Leadwoman Laura Scales, Krementz, and Thompson were rehired on January 8, and Snyder was rehired on January 9. Nine new employees were hired between January 11 and February 1, including four women, a utility man, a truck- driver, and three men for work in the "Annex " Between February 2 and May 9, Respondent hired approximately 20 employees, including 9 women laid off on January 4. B. Respondent's Explanation for the Layoff President Goodrich's explanation for the layoff of the night shift on January 4 may be summarized as follows The night shift was in operation "possibly a year " Its productivity compared to that of the day shift was "pretty poor " At its inception, Respondent had trouble getting a trained man to put in charge of the night shift. It needed a man familiar with the machines and who had "a strong back" to load the "hoppers" because the night workers were mostly women Ronald Maloof was chosen to be in charge of the night shift and, after he learned the work, another man, Fred Miller, was hired to relieve Maloof of the hopper loading work. The production of the night shift remained low, however, mainly because of "the absenteeism factor." Goodrich and Smith were aware of the night-shift production problem but did nothing about it for several months because they were busy "developing sales and new contacts." A flood of the premises around Thanksgiving Day caused Goodrich and Smith to "get 2 All dates hereafter are in 1968 unless otherwise noted 3 Sharon Maloof also worked on Respondent's night shift 4 Respondent had signed on December 12, 1967, a contract for payroll services with the Bank of America It was decided to work all employees two Saturdays so that the pay period could be adjusted to allow processsing time to the bank without causing the employees to receive "short paychecks " 5 Maloof testified that he heard a "click" when he picked up the telephone to talk to Boldt and that the light for his extension button was still on when he hung up the telephone. SUN HARDWARE CO. down to cases" about improving production. Not only did the flood cause them to lose a week's production, but they were "in negotiations with Boeing" and anticipated "a great volume of work " They discussed the situation with foreman Snyder and decided upon a single-shift operation to be expanded as a new building which had been completed was equipped with machinery Goodrich drafted the notice of layoff "just around the middle of December" but it was decided to delay the layoff because "the holidays were coming up," and a layoff at Christmas time would have affected the morale of the day shift The new operation was explained at "a general meeting in the office" to the persons who would be "solely responsible as leadmen in their own areas, all reporting to Mr. Snyder " This meeting was held "just prior to the discontinuance of the night shift" on January 4, 1968 The evening of the layoff, Goodrich and Smith decided to stop the shift at 8 p.m. and pay the employees "for the full shift" because a tour of the plant showed "nobody was too happy about the decision" and "the work was [not] being performed " Following the layoff, senior employees Laura Scales, Violet Krementz, Mary Snyder, and Violet Thompson were promptly rehired "because we were taking in totally new and unknown people on some of the inspection machines " It was Goodrich's intention to review the work of other night-shift employees and to rehire them as work became available "in the order of their efficiency and their seniority "6 Except for two or three employees whose absenteeism was "completely unacceptable," Respondent has offered reemployment on the day shift to all the laid-off employees it has been able to reach. C. Analysis and Conclusions The January 4 layoff was effected without advance notice, at the beginning of a pay period, at a time of full production, and just 1 day after Ronald Maloof told the night-shift employees that the Union would begin an organizing drive between shifts at the plant on January 5. Although Respond- ent asserts that the night shift was inefficient and suffered from excessive absenteeism, it offered no records to support its claim of poor production and its attendance records for several months before the layoff indicate that all but a few night-shift employees were regular in their attendance It may well be that Respondent decided sometime in December to switch as soon 6 Twenty employees had signed the January 4 layoff notice to indicate their wish to work on the day shift 7 Respondent had intended to divide the space in the new building between the hardware reclamation operation and another business venture The abandonment of this other venture released an additional 4000-4500 square feet for the hardware operation 8 Although compatible with Respondent 's production needs, the Saturday work also served to adjust Respondent 's payroll period The credible testimony of a Bank of America representative and of Respondent 's office manager shows that the failure to provide overtime pay was an oversight I therefore find no merit to the allegation in the complaint that Respondent 's decision to lay off the night-shift employees was motivated , at least in part, by the complaint presented in their behalf to the Wage and Hour Division. 9 Night -shift employee Fred Miller credibly testified that President Goodrich asked him "about two weeks before Christmas " whether he knew anything about union activity in the plant, and, when Miller said "no," Goodrich made remarks to the effect that he had been "involved" with a union and did not want a union in the plant . The interrogation was incidental to a conversation which centered around Respondent's prospects for a Boeing contract and Goodrich 's conversations with a representative of the International Association of Machinists about union working conditions in the Seattle area where the Boeing facility was located . The conversation between Goodrich and Miller occurred at 975 as practical to a single-shift operation since all the space in a new building had become available to it ' But this building was not equipped for production on January 4 and Respondent had posted a notice just 2 days before the layoff that all employees would work the next two Saturdays. This Saturday work was not "made" work, for Goodrich himself testifed that there was "plenty of work to be done by the night shift," and Respondent, although advised by a Wage and Hour representa- tive on January 3 that the employees were entitled to time and a half pay for Saturday overtime work, chose to go ahead with the Saturday work 8 1 therefore reject Goodrich's testimony that the January 4 layoff was effected pursuant to a firm decision reached in December to discontinue the night shift after the "holidays." It is true, as Respondent argues, that the record contains no direct evidence that Respondent had knowledge of union activities before the layoff and that the layoff occurred in a setting free of unfair labor practices 9 Nevertheless, the layoff was accomplished at a time and in a manner calculated to frustrate union organization, and Respondent's explanation why it discontinued the night shift at a time of full production is wholly unconvincing. I find that Respondent learned of the union activity on the night shift and that it laid off the night-shift employees in order to counter this activity I also find that Respondent delayed recalling the night-shift employees because of their union activity In addition to the prompt recall of several employees who had not signed cards at the Union hall the night of the layoff, Respondent hired a number of new employees for work which laid-off employees were competent to perform It did not begin to recall these laid-off employees until about a month after the layoff I reject Goodrich's testimony that he delayed recalling the night-shift employees in order to review their work records I have previously noted that Respondent offered no records to support its claim of poor production on the night shift and that Respondent's attendance records show that all but a few employees on the shift were regular in their attendance Respondent makes no claim that any night-shift employee was criticized for poor production or absenteeism before the January 4 layoff Why it was necessary for Goodrich to review their work before rehiring the night-shift employees is there- fore not apparent to me t ° Even assuming that such a review was warranted and could not be delegated to Foreman a time when there was no union activity at Respondent 's plant. No inference is warranted in these circumstances that Goodrich's inquiry about union activity tended to restrain Miller in the exercise of his rights under the act 10 There was certainly no need to review Ronald Maloof's work Maloof had been in charge of the night shift and Goodrich acknowl- edged that he was a competent utility man Yet Respondent hired a new utility man , Johnson, on January 11 in preference to Maloof As the record shows that Maloof was included in the layoff notice and hence discharged before he refused to dismiss the night shift early on the night of January 4, 1 find no merit to the allegation in the complaint that Maloof was discharged and refused reinstatement because he refused to commit unfair labor practices in behalf of Respondent I find rather that he was discharged because of his activity in behalf of the Union The record shows that Maloof was in charge of the night shift and that no one above him spent any considerable time at the plant during the night shift I find that Maloof was a supervisor under the Act and that his discharge for union activity was not violative of the Act I consider Pioneer Drilling Co, Inc., 162 NLRB No 85, and J B Martin Company, 164 NLRB No. 73, cited by the General Counsel, distinguishable on their facts In Martin, the supervisor was discharged "to give a color of validity to Ithe employee 's] discharge " In Pioneer, driller-supervisors were discharged as a means of getting rid of crews whose own employment was tied to that of the drillers 976 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Snyder,'' Goodrich offered no plausible explanation for his delay in making such a review. His absence from the plant on a business trip in January plainly does not account for the delay, for the trip lasted about 3 days. For the foregoing reasons, I conclude that Respondent laid off the night-shift employees on January 4 and delayed their recall in order to discourage support of the Union, thereby violating Section 8(a)(3) and (1) of the Act. CONCLUSIONS OF LAW 1. Respondent is an employer within the meaning of the Act. 2. The Union is a labor organization within the meaning of the Act. 3 By laying off and failing to reinstate its night-shift employees to discourage support of the Union, Respondent violated Section 8(a)(3) and (1) of the Act 4. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondent engaged in certain unfair labor practices, I shall recommend that it cease and desist therefrom and take certain action designed to effectuate the policies of the Act As it has been found that Respondent discriminatorily laid off the night-shift employees on January 4, 1968, 1 shall recommend 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, and make them whole for any loss of pay suffered by reason of the discrimination against them. The loss of pay under the order recommended shall be computed in the manner set forth in F. W. Woolworth Company, 90 NLRB 289, with interest added thereto in the manner set forth in Isis Plumbing & Heating Co., 138 NLRB 716 As the unfair labor practices of Respondent found herein go to the heart of the Act, I shall recommend that Respondent cease and desist from infringing in any manner upon the rights guaranteed in Section 7 of the Act RECOMMENDED ORDER Upon the basis of the foregoing findings of fact, and conclusions of law, and pursuant to Section 10(c) of the Act, it is recommended that Respondent, its officers, agents, successors, and assigns, shall 1 Cease and desist from (a) Discouraging membership in General Truck Drivers, Chauffeurs & Helpers, Local 692, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or any other labor organization of its employees, by laying off or discharging its employees or discriminating against them in any other manner in respect to their hire or tenure of employment, or condition of employment. (b) In any other manner interfering with, restraining, or coercing its employees in the exercise of rights guaranteed to them by Section 7 of the Act, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment, in conformity with the proviso of Section 8(a)(3) of the Act. 2 Take the following affirmative action which will effec- tuate the policies of the Act. (a) Offer the following employees immediate and full reinstatement to their former or substantially equivalent positions,' 2 and make them whole for any loss of pay they may have suffered because of the discrimination against them, the manner set forth in the section entitled "The Remedy"in Kay Bell Lori Costley Thelma Coaney Charlotte De Libro Gerrie Mae Eldred Nancy Lee Haupt Edith Pauline Hollis Mary Johnson Violet Krementz Joan McCue Sharon Maloof Peggy Manasco Fred J. Miller Iola Mitchell Medena Marie Owens Willme Riley Bonnie Russell Mary Ann Snyder Violet Thompson Kathryn Townsend Ellrnor J. Vann Lorraine H. Vanaman Joyce Vincent (b) Notify the above-named employees, if presently serving in the Armed Forces of the United States, of their right to full reinstatement upon application in accordance with the Selec- tive Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces (c) Preserve and make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary or useful in computing the amount of backpay due, as herein provided (d) Post at its Long Beach, California, plant, copies of the attached notice marked "Appendix s13 Copies of said notice, on forms provided by the Regional Director for Region 21, after being duly signed by Respondent, shall be posted immediately upon receipt thereof, and be maintained for 60 consecutive days thereafter in conspicuous places, including all places where notices to employees are customarily posted Reasonable steps shall be taken to insure that said notices are not altered, defaced, or covered by any other material (e) Notify the Regional Director for Region 21, in writing, within 20 days from the date of receipt of this Trial Examiner's Decision, what steps Respondent has taken to comply herewith 14 IT IS FURTHER RECOMMENDED that the complaint be dis- missed insofar as it alleges violations of the Act not specifically found herein 11 Snyder hired the new employees after the layoff. 12 No offer of reinstatement need be made to any employee reinstated prior to the issuance of this decision. 13 In the event that this Recommended Order is 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. If the Board 's Order is enforced by a decree of a United States Court of Appeals, the notice will be further amended by the substitution of the words "a Decree of the United States Court of Appeals Enforcing an Order" for the words "a Decision and Order " 14 In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read "Notify the Regional Director for Region 21, in writing , within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith " SUN HARDWARE CO. 977 APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that. WE WILL NOT discourage you from membership in General Truck Drivers, Chauffeurs & Helpers, Local 692, International Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America, or any other labor organization, by discharging, laying off, or discriminating against you in any other manner with respect to hire or tenure of employment or any term or condition of employment WE WILL offer any of the following employees who have not been reinstated immediate and full reinstatement to their former or substantially equavalent jobs, and we will pay all of the following employees any wages due them as a result of our discrimination against them Kay Bell Peggy Manasco Lori Costley Fred J. Miller Thelma Coaney Iola Mitchell Charlotte De Libro Medena Marie Owens Gerrie Mae Eldred Willine Riley Nancy Lee Haupt Bonnie Russell Edith Pauline Hollis Mary Ann Snyder Mary Johnson Violet Thompson Violet Krementz Kathryn Townsend Joan McCue Ellinor J. Vann Sharon Maloof Lorraine H Vanaman Joyce Vincent WE WILL NOT in any other way interfere with your right To organize yourselves To form, join, or help unions To bargain for your wages, hours, and working conditions as a group through representatives of your own choosing To refuse to do any or all of these things except as such right may be affected by an agreement requiring membership in a labor organization as a condition of employment, in conformity with the proviso of Section 8(a)(3) of the Act SUN HARDWARE CO., INC. (Employer) Dated By (Representative) (Title) NOTE. We will notify the above-named 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 This Notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material If employees have any question concerning this Notice or compliance with its provisions, they may communicate direct- ly with the Board's Regional Office, Eastern Columbia Building, 849 South Broadway, Los Angeles, California 90014, Telephone 688-5200. Copy with citationCopy as parenthetical citation