Vanport Sand & Gravel

National Labor Relations Board - Board Decisions

Jun 25, 1984

270 N.L.R.B. 1358 (N.L.R.B. 1984)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Vanport Sand and Gravel, Inc. and Construction
General Laborers and Material Handlers Local
Union 964 a/w Laborers International Union of
North America, AFL-CIO. Case 6-CA-15341
25 June 1984
SUPPLEMENTAL DECISION AND
ORDER
BY CHAIRMAN DOTSON AND MEMBERS
ZIMMERMAN AND HUNTER
On 30 January 1984 Administrative Law Judge
Peter E. Donnelly issued the attached supplemental
decision. l The Respondent filed exceptions and a
supporting brief. The General Counsel filed an an-
swering brief and cross-exceptions and a supporting
brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the supplemental deci-
sion and the record in light of the exceptions,
cross-exceptions, and briefs and has decided to
affirm the judge's rulings, findings, 2 and conclu-
sions and to adopt the recommended Order.
See 267 NLRB 150 (1983). Chairman Dotson did not participate in
that decision which reversed the judge and concluded that alleged discri-
minatee Fabich was not a supervisor.
a The Respondent has excepted to some of the judge's credibility find-
ings. The Board's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect. Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd. '188 F.2d 362 (3d Cir. 1951).
We have carefully examined the record and find no basis for reversing
the findings.
In NLRB v. City Disposal Systems, 115 LRRM 3193 (1984), the Su-
preme Court recently upheld the Board's application of the Interboro
doctrine as applied to the facts of that case. That doctrine holds that "an
individual's assertion of a right grounded in a collective bargaining agree-
ment is recognized as concerted activity and therefore accorded the pro-
tection of § 7." City Disposal Systems, supra at 3196. See Interboro Con-
tractors, 157 NLRB 1295, 1298 (1966), enfd. 388 F.2d 495 (2d Cir. 1967).
We find that the record supports the judge's reliance on this doctrine in
resolving the instant case. We note that the Respondent concedes that
Fabich's 28 December 1981 grievance relates to contract provisions.
The record discloses that between 24 December 1981 and I February
1982 a less senior employee performed work usually performed by em-
ployee Fabich. Art. 9 of the collective-bargaining agreement provides in
pertinent part that "[d]uring slow periods and layoffs, seniority shall pre-
vail at all times." (Emphasis added.) Thus, when Fabich filed his 3 Feb-
ruary grievance protesting the Respondent's use of a less senior employee
to perform his work while he was off, Fabich was asserting a right
grounded in the collective-bargaining agreement. This same result obtains
whether we apply the judge's characterization of Fabich's time off as
"vacation paid layoff" or the Respondent's characterization of this period
as "vacation scheduled during the slow season." Either characterization
places Fabich's "off" time within the ambit of the operative contractual
language. Nor does the Respondent's contention that Fabich was off be-
tween 24 December and I February pursuant to an agreement between
the Respondent and the Union to eliminate accrued vacation time deprive
Fabich's 3 February grievance of its contractual basis. The record indi-
cates that during contract negotiations the Respondent and the Union
bargained over the issue of accrued vacation time. However, art. 5, sec.
2, which apparently reflects any agreement reached regarding the issue of
accrued vacation time, undercuts the Respondent's position. Art. 5, sec.
2, provides "vacation not taken shall be paid in full upon winter layoff
each year." (Emphasis added.)
270 NLRB No. 205
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Vanport
Sand and Gravel, Inc., Edinburg, Pennsylvania, its
officers, agents, successors, and assigns, shall take
the action set forth in the Order.
Accordingly, we find that the Respondent's discharge of Fabich was
prompted by his filing of written grievances and that those grievances as-
serted rights grounded in the collective-bargaining agreement. We there-
fore adopt the judge's finding that the Respondent's discharge of Fabich
was in violation of Sec. 8(aXI) of the Act.
In adopting the judge, we do not adopt his characterization of the Re-
spondent's proferred reasons for discharging Fabich as inconsequential.
Rather, we find that the General Counsel established a prima facie case
that the Respondent violated the Act and the Respondent did not show it
would have taken the same action in the absence of the protected activi-
ty.
SUPPLEMENTAL DECISION
STATEMENT OF THE CASE
PETER E. DONNELLY, Administrative Law Judge. By
decision dated December 13, 1982, the complaint in the
instant case was dismissed by me concluding that Phillip
M. Fabich, the alleged discriminatee herein, was a super-
visor within the meaning of Section 2(11) of the Act. By
Decision and Order dated August 15, 1983 (267 NLRB
150), a three-member panel of the Board reversed that
finding, concluding that Fabich was not a supervisor,
and remanded the case for consideration on the merits of
the unfair labor practice allegation of the complaint. Fa-
bich's discharge is the only unfair labor practice alleged
in the complaint.
FINDINGS OF FACT
1. JURISDICTION
Respondent is engaged in the production and sale of
sand and gravel aggregates with its principal office and
sole facility located in Edinburg, Pennsylvania. During
the 12-month period ending March 31, 1982, Respondent
purchased and received at its Edinburgh, Pennsylvania
facilities goods and services valued in excess of $50,000
directly from points outside the Commonwealth of Penn-
sylvania. The complaint alleges, Respondent in its
answer admits, and I find that Respondent is an employ-
er engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
II. LABOR ORGANIZATION
The complaint alleges, Respondent at the hearing ad-
mitted, and I find that the Union is a labor organization
within the meaning of Section 2(5) of the Act.
1358
VANPORT SAND & GRAVEL
Ill. THE ALLEGED UNFAIR LABOR PRACTICES
A. Facts'
Respondent is engaged in the processing of sand and
gravel at a jobsite in Edinburg, Pennsylvania. It is essen-
tially a dredging operation, bringing up sand and gravel
to conveyors which move it onto the shore. From the
shore it is moved by conveyor to the plant where it is
processed and separated into various grades of sand and
gravel and sold.
Corporate responsibility at Respondent's jobsite resides
with Dale E. Schoeni, vice president, who also holds the
position of executive vice president of Vanport Stone,
Inc., and Alliance Land, Inc. All are separate corporate
entities.
The work at the jobsite is performed by four employ-
ees. These are Phillip M. Fabich, leadman, Thomas
Mitchell, dredge operator, Stephen Fabich, oiler, 2 and
Leroy McFall, dumpster operator.
Fabich was first employed by Vanport Stone, Febru-
ary 26, 1968, where he worked until August of 1969 at
which time he was drafted into the Army. When Fabich
left the Army he was hired by Respondent on June 1,
1971, where he worked until he was discharged on Feb-
ruary 8, 1982.
The employees of both Respondent and Vanport Stone
are represented under a single labor agreement. The
terms of the contract involved in this case ran from No-
vember 1, 1981, to October 31, 1982. Article V of the
contract deals with vacations and provides for vacations
with pay which depends on "years of continuous serv-
ice."3
It appears that some employees had been accumulating
unused paid vacation time over the years and Respond-
ent, wishing to eliminate this carryover, calculated the
amounts of vacation time due the employees with the
view towards having that time used. In discussing the
matter in November and December 1981,4 it became ap-
' There is conflicting testimony regarding some allegations of the com-
plaint. In resolving these conflicts I have taken into consideration the ap-
parent interests of the witnesses. In addition, I have considered the inher-
ent probabilities; the probabilities in light of other events; corroboration
or lack of it; and consistencies or inconsistencies within the testimony of
each witness and between the testimony of each and that of other wit-
neses with similar apparent interests. In evaluating the testimony of the
witnesses I rely specifically on their demeanor and have made my find-
ings accordingly. While apart from considerations of demeanor I have
taken into account the above-noted credibility considerations, my failure
to detail each of these is not to be deemed a failure on my pan to have
fully considered it. Bishop t Malco. Inc., 159 NLRB 1159 (1966).
s Stephen Fabich is the brother of Phillip Fabich, the alleged discri-
minatee.
' Sec. I of art. V "Vacations" reads:
Section 1. Any employee by this Agreement shall receive one
week vacation with pay after one year of continuous service. Any
employee covered by this Agreement shall receive two (2) week's
vacation with pay after three (3) years of continuous service. Any
employee covered by this Agreement shall receive three (3) week's
vacation after eight (8) years of continuous service. Any employee
covered by this Agreement shall receive four (4) week's vacation
with pay after twelve (12) years of continuous service. Vacations are
to be scheduled so they do not interrupt operations of plant. Vaca-
tion shall be paid at the rate of pay at the time it was earned.
4 All dates refer to 1981 or 1982 unless otherwise indicated.
parent that Fabich and Schoeni disagreed about the
amount of vacation time due to Fabich. Fabich took the
position that his years of employment with Vanport
Stone as well as his time in the Army should be added to
his time with Respondent in computing "years of contin-
uous service" for his vacation time. Schoeni did not
agree, and construed Fabich's entitlement as limited
solely to his post-Army years of employment with Re-
spondent.
On December 15, Schoeni gave Fabich a gold watch
commemorating 10 years of service with Respondent.
Fabich rejected the gift. Fabich testified, "I told him that
I didn't want it, I said, it took me almost 14 years to get
a 10-year watch, either I didn't deserve it, or it was an
insult."
On December 23, Schoeni showed Fabich written
computations showing Schoeni's version of his accrued
vacation. Fabich protested that the information being
provided to him was incomplete since it went back only
10 years beginning with his employment by Respondent.
Fabich requested more complete information and on
December 24 Schoeni showed Fabich what Fabich re-
garded as incomplete information carrying only the va-
cation days taken over the past 10 years. Fabich again
protested that he was entitled to vacation time for the
entire period beginning with his employment at Vanport
Stone and including his Army time. Schoeni argued
against such construction adding that no one was going
to tell him how to run his business. During this conver-
sation Schoeni told Fabich that his Christmas turkey 5
was on the back porch of the office.
Later in the day on December 24, Fabich and Schoeni
met and spoke again at the scale house. At this time
Schoeni told Fabich that he was giving him "off" until
February 1. Fabich asked why, and Schoeni responded
that he knew why and Fabich said that he did not.6
Schoeni also reminded him of the turkey in the office.
Fabich, whose testimony I credit, remarked that he in-
tended to go to the union hall and file a grievance to
which Schoeni responded "go ahead and file a griev-
ance, he said, you or no human is going to tell me how
to run a company." At noon on December 24, Fabich
picked up the turkey, left it to spoil on the seat of
Schoeni's pickup truck, and departed the premises.
Fabich testified that he did this because he was angry
that his vacation and seniority problem had not been re-
solved.
On December 28 Fabich went to the union hall where
he discussed his seniority-vacation problem with Robert
Session, business manager for the Union. Despite the fact
that the contract has no grievance procedure in it,
Fabich wrote out a grievance which Session mailed to
Schoeni. The grievance read, "To Whom It May Con-
cern. In March of 1968, I started my employment with
Vanport Stone Company. In August of 1969, I entered
the military service. I have lost approximatly 3 or 4
s Christmas turkeys were an annual gift to employees from the Compa-
ny.
6 The time off was paid vacation for which Fabich was paid weekly
by check during the time off, apparently pursuant to Schoeni's efforts to
eliminate the accrued vacation time he calculated to be outstanding.
1359
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
years seniority and I am filing this grievance to regain
my seniority." The grievance was signed by Fabich.
On January 19, 1982, a meeting was held at the union
hall to discuss the December 28 grievance. The meeting
was attended by Fabich, Session, Union Business Agent
Larry Pavrotta, and Schoeni. They discussed, but were
unable to agree on, the seniority problem as it affected
Fabich's vacation. Session testified that during the dis-
cussion Schoeni remarked that Fabich was going to have
to change his attitude or he might not be back, or, ac-
cording to Fabich, if he came back he might be replaced
as leadman. While Schoeni denies saying that Fabich's
attitude might affect his return to work on February 1,
he conceded that he did remark that Fabich's attitude
would have to change. In these circumstances, I credit
the corroborated accounts of Session and Fabich to the
extent that Schoeni indicated that Fabich's attitude might
affect his employment status.
On February 1, Fabich returned to work and discov-
ered that Mitchell had been performing work in his ab-
sence which he had normally done. On February 3,
Fabich went to the union hall and discussed the matter
with Session and wrote out the following grievance, "To
Whom It May Concern at Vanport Stone & Vanport
Sand and Gravel. I'm [Phillip M. FabichJ filing this
grievance because I have been off work since December
24, '81. But I was not given a reason why. While I was
off, you have had a man working at the stone plant and
sand plant with less seniority than me. I'm qualify [sic] to
do the job they were doing. I feel I should be paid for
the time or days they worked." The grievance was
signed by Fabich and mailed by Session to Schoeni.7 In
February 3 or 4, 1982, Session called Schoeni to discuss
the seniority-vacation problem and Schoeni still main-
tained the same position. Failing to make any progress,
Session said that he would take whatever proper steps
were necessary.
Schoeni received the second grievance on Friday,
February 5. On Monday, February 8, at the garage in
the sand plant between 8 and 8:30 a.m., Schoeni ap-
peared with the February 3 grievance in hand. Schoeni
asked Fabich if he had seen this letter he got from the
Union. Fabich identified it as the February 3 grievance
and asked Schoeni what was he going to do about it. At
this point Schoeni said, "[Y]ou're done, give me the
keys," referring to the keys kept by Fabich to certain
company property. Fabich asked why he was being
fired, but Schoeni refused to provide a reason saying that
he did not have to and "that's it." Fabich asked if it was
because of the grievance and, according to Fabich,
Schoeni shook the grievance in his face and said, "I will
not tolerate this from no one, and he said, there's two
other things that got to me, he said that watch I would
not accept and the God damned, fucking turkey on the
seat of my truck."
Schoeni conceded that he did not "spell out" to
Fabich the reasons for his discharge although he did
mention receiving the February 3 grievance, simply tell-
ing him that, "Mike, I've had all of this bullshit I can
7 Art. IX, Sec. 1, of the contract provides, inter alia, "During slow pe-
riods and layoffs, seniority shall prevail at all times."
stand, I can't tolerate anymore. And he asked me what
the reasons were, I said, Mike, you know the reasons, I
said, I don't have to spell them out to you. I didn't want
to get into a big argument. I'm not a good arguer, and I
didn't wish to get into a great dispute there. I have made
up my mind that this was what I was going to do."
When asked to explain what he meant by "bullshit,"
Schoeni testified, "The way that he had acted and treat-
ed me, he lost a great deal of respect, I felt, for me, there
toward the Fall of the year when I presented to him his
vacation period and I had proved to him or tried to
prove to him that it was correct, I wanted to make damn
sure that it was correct, and he still denied that wasn't
correct, that wasn't right and this irritates a person,"
adding that Fabich had been "very arrogrant and disre-
spectful" to his salesmen and people working at the
plant.
About 9:30 a.m. on the same morning, Schoeni visited
Vanport Stone where Fabich's father Phillip J. Fabich, a
22-year employee, was working. Schoeni engaged him in
conversation saying, according to Fabich, "I've got
something to tell you, he says, I fired Mike this morning
and then he proceeded to talk and he says, you know,
Mike refused that 10-year watch and I said, yes. He said,
that was bad then he said that Mike had returned the
turkey and the fruit cake that the Company give him for
the holidays and he didn't like that, so he says, he re-
ceived a letter in the mail indicating that Mike had
turned in a grievance and he said, that's it, I had to fire
him." This testimony is not disputed.
Session testified that later on the same morning of
February 8, after being advised of the discharge, he
called Schoeni: "I called Mr. Schoeni just to discuss the
grievance and Mr. Schoeni informed me that he didn't
have any problems with my predecessors and that he
wasn't going to have those problems with me and that
no one filed grievances against him and that he wouldn't
tolerate this kind of stuff and that was it and that his at-
torney told him that he didn't have to answer to anyone
the way that he run that plant or what he did with his
employees." Schoeni testified, "He said that he was sorry
to hear that I fired Mike, what did I fire him for and I
told him that I told Mike he knew what, I didn't need to
tell him the reasons cause he knew and I said, he's dissat-
isfied about his vacation period, I said, I'm sure this is
what prompted a great deal of his dissatisfaction, com-
menting that, I said I learned a lot of things that went on
before and-." To the extent that the conversations are
at variance, I conclude that Session's version is more re-
liable than Schoeni's somewhat disjointed account and I
credit it.
In testimony concerning Fabich's job performance,
Schoeni testified that Fabich's attitude towards his work
began to change in the summer of 1981 when Respond-
ent changed over to a German make of hydraulic bucket
for dredging, which involved substantial mechanical
problems. Schoeni testified that Fabich lost interest in
the changeover but conceded that he never discussed the
1360
VANPORT SAND & GRAVEL
matter with Fabich.8 Fabich denied this and testified that
his willingness to work was not affected by the change-
over. Schoeni also testified that Fabich would not wear a
hardhat as required by state and Federal regulations.
Fabich conceded this, but his undisputed testimony is to
the effect that others did not wear hardhats and that he
has never worn a hardhat and that he has agreed with
Schoeni to pay any fine Schoeni might incur on that ac-
count.
Schoeni also testified that material was rejected by
customers in September 1981 as not meeting their specifi-
cations and that it was Fabich's job to do periodic grada-
tions of the materials so as to meet those specifications.
While he discussed those problems with Fabich, Schoeni
conceded that he took no disciplinary measure on that
account. Fabich conceded that in certain instances the
customer's specifications were not met, however, this
was because it was not possible to make the material to
the specifications requested because the blending and
feeding machinery did not work properly. Fabich also
testified, and I credit him in this regard, that he and
Schoeni only discussed the problem and that Schoeni did
not fault or criticize him.
Schoeni also testified that Fabich, when he returned to
work on February 1, failed to perform various tasks as-
signed to him by Schoeni; however, Fabich, whose testi-
mony I credit in this respect, testified that he either did
what he was asked or was unable to do so because he
lacked the proper equipment.
B. Discussion and Analysis
The General Counsel takes the position that Fabich
was discharged because of the grievances he had filed
concerning the contract dispute over his seniority-vaca-
tion entitlements and Respondent's use of a less senior
employee on Fabich's job while he was laid off on paid
vacation pursuant to Respondent's calculation as to the
amount of paid vacation to which he was entitled.
Respondent first contends that Fabich's grievance
filing activity was not "concerted" activity within the
meaning of the Act since it was undertaken solely on his
own behalf, not in concert with any other employee.
Therefore, even assuming he was discharged for filing
grievances, his discharge was not discriminatory under
the Act.
Respondent further contends that, even assuming that
Fabich's activities were "concerted," he was not dis-
charged for the filing of grievances, but because of a
change for the worse in his "attitude."
Turning first to Respondent's contention that the
grievance filings were not concerted activities, Section
8(aXl) of the Act provides inter alia that employees have
the right to "engage in other concerted activities for the
purpose of collective bargaining or other mutual aid or
protection" without interference by the employer. Re-
spondent contends that the grievance filings were not
"concerted," but were personal to Fabich and unrelated
to the interests of any other employee.
s Mitchell, who was solicited by Schoeni in January 1982 to disclose
any problems he may have had with Fabich, agreed that Fabich became
less enthusiastic about the job about this time.
However persuasive Respondent's argument may be in
other forums, the current state of Board law, which I am
obliged to follow, provides that even individual griev-
ances filed to enforce a collective-bargaining agreement
constitute protected concerted activity. In this case,
while it is true that Fabich filed the grievances solely for
his own benefit, they were nonetheless filed to enforce
provisions of the existing collective-bargaining agreement
and were thus protected within the meaning of the Act.
The Board has consistently ruled that individual activity
to enforce the provisions of an existing contract are es-
sentially extentions of the concerted activity giving rise
to the contract, and hence "concerted" within the mean-
ing of the Act. Interboro Contractors, 157 NLRB 1295
(1966), enfd. 388 F.2d 495 (2d Cir. 1967); Roadway Ex-
press, 217 NLRB 278 (1975). Nor is it controlling that
there is no grievance procedure in the contract by which
to obtain Respondent's adherence to the provisions of
the contract. It is sufficient that the grievances relate di-
rectly to provisions of the contract even though the con-
tract itself provides no method by which to enforce
those provisions.
Respondent also arques that Fabich had no reasonable
basis for filing the February 3 grievance. Even assuming
that individual grievances filed to enforce a contract pro-
vision are protected concerted activity, Respondent con-
tends that a reasonable basis for the grievance must exist
as a prerequisite to any conclusion that a discharge for
filing the grievance is discriminatory. However, in the
instant case, where Fabich was protesting his layoff as
being administered pursuant to erroneous calculations
about his contractual seniority and the amount of vaca-
tion time to which he was entitled, the February 3 griev-
ance dealing with the filling of his job during the disput-
ed vacation paid layoff cannot be described as having no
reasonable basis, whatever Fabich's prospects of winning
that grievance. Such questionable merit does not privi-
lege the employer to discharge for the filing of individ-
ual grievances under the contract. In summary, I con-
clude that there was a reasonable basis for the filing of
both grievances and further that, even absent a finding
that a reasonable basis existed for the filing of the griev-
ances, the current state of Board law does not require
that grievances be meritorious in order to constitute pro-
tected activity. Interboro Contractors, supra.
In a recent holding9 a Board majority, in reviewing
the precedent established in Alleluia Cushion Co., 221
NLRB 999 (1975), held that it was not unlawful to dis-
charge a truckdriver for refusing to drive an unsafe truck
after filing a complaint with state safety authorities since
his action was individual and not "concerted activity"
within the meaning of Section 7 of the Act. The Board
further held that it was not in the Meyers case defining
the parameters of the Interboro case and distinguished
the two cases. In so doing the Board stated, "The focal
point in Interboro was, and must be, the attempted imple-
mentation of a collective-bargaining agreement. By con-
trast, in the Alleluia situation, there is no bargaining
agreement, much less any attempt to enforce one, and
g Meyers Industries. 268 NLRB 493 (1984).
1361
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
we distinguish the two cases on that basis."' ° The Board
further noted, "The issue of the validity of the Interboro
doctrine is presently pending before the Supreme Court.
City Disposal Systems, 256 NLRB 451 (1981), enf. denied
683 F.2d 1005 (6th Cir. 1982), cert. granted 51 U.S.L.W.
3703 (U.S. Mar. 28, 1983) (No. 82-960)."' l However,
whatever implications the Supreme Court decision in
City Disposal Systems may have, my responsibility is to
apply existing Board law to the facts of the instant case,
the disposition of which is still presently controlled by
the Interboro decision.
Respondent further contends that, even assuming that
the grievance filings were protected concerted activity,
Fabich was not discharged for filing the grievances but
rather because of, as set out in Respondent's brief, Fa-
bich's "uncompromising and disagreeable attitude which
finally really 'got to' Schoeni." The record, however,
does not support that position.
The antagonism between Fabich and Schoeni has its
beginnings in their disagreement over Fabich's seniority,
specifically as it applied to Fabich's vacation entitle-
ments. This matter was first discussed in November 1981
and frequently thereafter.
The problem became more defined on December 24
when Schoeni gave Fabich a written computation of va-
cation time which Fabich felt was incorrect and pursuant
to which Schoeni told him he was being given off until
February 1.12 It was at this time that Fabich expressed
his intention to file a grievance and Schoeni reacted by
saying neither Fabich nor anyone was going to tell him
how to run his business. In a meeting on January 19 to
discuss the grievance Schoeni warned Fabich that he
might not be back at all if his attitude did not change.
On Friday, February 5, shortly after he received the
February 3 grievance, Schoeni consulted his superiors
about discharging Fabich and did so on the morning of
Monday, February 8. The circumstances of the discharge
suggest an unlawful motivation. Thus, with grievance in
hand, Schoeni told Fabich that he would not tolerate the
filing of grievances anymore. Schoeni declined to tell
Fabich why he was being discharged only saying that he
had tolerated all the "bullshit" he could. In defining
"bullshit" Schoeni conceded his irritation over, inter alia,
Fabich's refusal to accept his computation on seniority
and vacation.
That the grievances were the events precipitating the
discharge is supported by the testimony of Fabich's
father concerning his conversation-with Schoeni on Feb-
ruary 8, shortly after his son was discharged. A further
suggestion of unlawful motivation is apparent in Session's
telephone conversation with Schoeni later on the same
day.
There are other elements, apart from the direct evi-
dence of unlawful motivation set out above, which sug-
gest a discriminatory motive for Fabich's discharge.
Thus, Fabich was the leadman for the entire employee
complement at Respondent's operation, the most senior
10 Id. at 496.
' Id, at 496 fn. 21.
12 Despite Fabich's testimony that he was not told why he was being
given off, given the nature of the discussion, Fabich must have been
aware that the layoff was to use up accrued paid vacation time.
and highest paid employee at the time of the discharge.
In these circumstances, Fabich's discharge, without
notice, without warning, without explanation, and with-
out investigation, precipitously executed the next work-
ing day after receipt of the second grievance, persuades
me, together with the other factors noted above, that Fa-
bich's discharge was motivated by the filing of the griev-
ances and was thus discriminatory.
Respondent advances yet another defense by arguing
that the theory of the Wright Line case, and its progeny,
should be applied to the instant case.' 3 While Respond-
ent denies that the General Counsel has made a prima
facie showing to support the inference that the grievance
filings were motivating factors in the decision to dis-
charge Fabich, it argues that, even if such a prima facie
showing has been made, Respondent has sustained its
burden to demonstrate that Fabich would have been dis-
charged even in the absence of the protected grievance
filing activity. First, I am satisfied, based on the factors
outlined above, that the General Counsel has made a
prima facie showing of discrimination. In addition, a
careful examination of this record convinces me that Re-
spondent has not met its burden. While the record sug-
gests that Schoeni may have been hurt or embarrassed
by Fabich's rejection of the watch and Christmas turkey,
the record will not support the conclusion that this in-
gratitude motivated Schoeni to discharge him. Nor will
the record support the conclusion that he was discharged
for any of the various shortcomings attributed to him by
Schoeni. The incidents described by Schoeni were all es-
sentially inconsequential or insignificant and certainly not
sufficient to conclude that Fabich would have been dis-
charged for those transgressions even in the absence of
his protected concerted grievance filing activity.
In summary I conclude that Fabich's written protesta-
tions to enforce the contract motivated Schoeni to dis-
charge him and that the discharge violated Section
8(a)(1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section III,
above, occurring in connection with Respondent's oper-
ations as described in section I, above, have a close and
intimate relationship to trade, traffic, and commerce
among the several States and tend to lead to labor dis-
putes burdening and obstructing commerce and the free
flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in and is
engaging in unfair labor practices, I shall recommend
that it cease and desist therefrom and take certain affirm-
ative action designed to effectuate the policies of the
'S This case (251 NLRB 1083 (1980)) held that the Board, in evaluat-
ing employer motivation, was establishing a new test: "First we shall re-
quire that the General Counsel make a prima facie showing sufficient to
support the inference that protected conduct was a 'motivating factor' in
the employer's decision. Once this is established, the burden will shift to
the employer to demonstrate that the same action would have taken
place, even in the absence of the protected conduct." Id. at 1089.
1362
VANPORT SAND & GRAVEL
Act. I have found that Respondent discharged Phillip M.
Fabich in violation of Section 8(a)(1) of the Act and I
therefore recommend that Respondent make him whole
for any loss of pay which he may have suffered as a
result of the discrimination practiced against him. The
backpay provided herein with interest shall be computed
in the manner prescribed in F. W Woolworth Co., 90
NLRB 289 (1950), and Florida Steel Corp., 231 NLRB
651 (1977).14
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. By unlawfully discharging Phillip M. Fabich Re-
spondent has engaged in unfair labor practices within the
meaning of Section 8(a)(1) of the Act.
3. By interfering with, restraining, and coercing em-
ployees in the exercise of their rights guaranteed in Sec-
tion 7 of the Act Respondent has engaged in and is en-
gaging in unfair labor practices proscribed by Section
8(a)(l) of the Act.
On these findings of fact and conclusions of law and
the entire record, I issue the following recommended' 5
ORDER
The Respondent, Vanport Sand and Gravel, Inc., Ed-
inburg, Pennsylvania, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Discharging or otherwise discriminating against
employees in regard to their hire or tenure in order to
discourage concerted employee action regarding terms
and conditions of employment.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action which I find
necessary to effectuate the policies of the Act.
(a) Offer Phillip M. Fabich immediate and full rein-
statement to his former job or, if that position no longer
exists, to a substantially equivalent position, without prej-
udice to his seniority or other rights and privileges previ-
ously enjoyed and make him whole for any loss of pay
he may have suffered in the manner set forth in the sec-
tion of this decision entitled "The Remedy."
(b) Expunge from its files any reference to the dis-
charge of Phillip M. Fabich and notify him in writing
that this has been done and that evidence of the unlawful
discharge will not be used as the basis for future person-
nel action against him.
L, See generally Isis Plumbing Co., 138 NLRB 716 (1962).
'1 If no exceptions are filed as provided by Sec. 102.46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
(c) Preserve and, on request, make available to the
Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records nec-
essary to analyze the amount of backpay due under the
terms of this Order.
(d) Post at its Edinburg, Pennsylvania facility copies of
the attached notice marked "Appendix."1 6 Copies of the
notice, on forms provided by the Regional Director for
Region 6, after being signed by the Respondent's author-
ized representative, shall be posted by the Respondent
immediately upon receipt and maintained for 60 consecu-
tive days in conspicuous places including all places
where notices to employees are customarily posted. Rea-
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by
any other material.
(e) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
I" If this Order is enforced by a Judgment of a United States Court of
Appeals, the words in the notice reading "Posted by Order of the Na-
tional Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discharge or otherwise discriminate
against employees in regard to their hire or tenure in
order to discourage concerted employee action regarding
terms and conditions of employment.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise of
their rights guaranteed in Section 7 of the Act.
WE WILL offer Phillip M. Fabich immediate and full
reinstatement to his former job or, if that position no
longer exists, to a substantially equivalent job, without
prejudice to his seniority or other rights and privileges
previously enjoyed, and make him whole for any loss of
pay he may have suffered as the result of his unlawful
discharge, plus interest.
WE WILL expunge from our files any references to the
discharge of Phillip M. Fabich and notify him in writing
that this has been done and that evidence of the unlawful
discharge will not be used as the basis for future person-
nel action against him.
VANPORT SAND AND GRAVEL, INC.
1363