Wayne W. Wilson Co.

National Labor Relations Board - Board Decisions

Jan 4, 1962

135 N.L.R.B. 28 (N.L.R.B. 1962)

28: DECISIONS OF NATIONAL LABOR' REI]ATIbNS BOARD
Upon the basis of the foregoing findings of fact and upon the entire record in the,
case , I make the following: - -
CONCLUSIONS OF LAW
1. By terminating the employment of Louise Moore , a supervisor , on October 19,'
1960 , Respondent has interfered with , restrained , and coerced its nonsupervisory
employees in the exercise of rights guaranteed in Section 7 of the Act and thereby,
has engaged in and is engaging in unfair labor practices within the meaning of Section
8 (a) ( I) of the Act.
2. The aforesaid unfair labor practices are' unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
3. Respondent has not engaged in independent unfair labor practices within the
meaning of Section 8 ( a) (1) of the Act by the conduct of Moe Tanger.
[Recommendations omitted from publication .], .
Wayne W. Wilson Company and Local 247, International Brother-
hood of Teamsters , Chauffeurs, Warehousemen and Helpers
of America, Ind.
Wayne W. Wilson Company and Arthur Shemansky. Cases Nos.
7-CA-2845 and 7-CA-3112. January 4, 1962
DECISION AND ORDER
On October 12, 1961, Trial Examiner John H. Eadie issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the Intermediate
Report attached hereto. The Trial Examiner also found that the
Respondent did not engage in certain other unfair labor practices al-
leged in the complaint and recommended dismissal of those allega-
tions. Thereafter, the General Counsel and the Respondent filed ex-
ceptions to the Intermediate Report together with supporting briefs.
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with these cases to a three-
member panel [Members Rodgers, Fanning, and Brown].
The Board has reviewed the rulings inade by the Trial Examiner
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Interme-
diate Report, the exceptions and briefs, and the entire record, and
hereby adopts the findings,' conclusions, and recommendations of the
Trial Examiner.
1 The General Counsel contends that the October 24, 1060, layoff of Arthur Shemansky
was violative of Section 8(a) (4) as well as Section 8 ( a) (3) We have found, herein,
that Shemansky's October 24 layoff violated Section 8(a)(3), and we have ordered his
full reinstatement and backpay for the period of his layoff Under these circumstances,
and as the policies of the Act w ill be fully effectuated by our remedial order herein, we
find it unnecessary to determine whether Shemansay's layoff was also violative of Sec-
tion 8 ( a) (4) of the Act
135 NLRB No. 5.
)WAYNEW. WILSON,- COMPANY
ORDER
29
Upon the entire record in these cases, and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, Wayne W. Wil-
son Company, Warren, Michigan, its officers, agents, successors, and
assigns, shall :
1. Cease and desist from :
(a) Discouraging membership in Local 247, International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and Helpers of
America, Ind., or any other labor organization of its employees, by
laying off or discharging employees, or by otherwise discriminating
in regard to their hire or tenure of employment, or any term or con-
dition of their employment.
(b) Interrogating its employees concerning their membership in
or activities on behalf of the above-named labor organization, or any
other labor organization, or making any threat of reprisal or promise
of benefit because of such activity.
(c) In any other manner 2 interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to form
labor organizations, to join or assist the above-named labor organiza-
tion, or any other labor organization, to bargain collectively through
representatives of their own choosing, and to engage in other con-
certed activities for the purpose of collective bargaining or other
mutual aid or protection, or to refrain from any or all such activities,
except to the extent that such rights may be affected by an agreement
requiring membership in it labor organization as a condition of em-
ployment, as authorized'in Section 8(a) (3) of, the Act, as modified by
the Labor-Management Reporting and Disclosure Act of 1959.
2. Take the following affirmative action which the Board finds will
•effectuate the policies of the Act : I '
(a) Offer to Arthur Shemansky and 'James Arnold immediate and
full reinstatement to their former or substantially equivalent 'posi-
;tions, without prejudice to their,seniority • or other rights and privi-
leges previously enjoyed, 'and make them whole ', for any loss of
earnings they may have suffered because of the discrimination against
them in the manner set forth in that section of the Intermediate Re-
port entitled "The Remedy." The amount of' backpay due shall be
computed according to ,the Board's policy set forth in F. W. Wool-
worth Com pany, 90 NLRB 289.
(b) Preserve and, upon request, make, available to. the Board or
its agents, for examination and copying, all payroll records, social
2 Because the discriminatory discharges of Shemansky and Arnold evince a studied intent
to thwart the rights of employees, in freely selecting their collective- bargaining representa-
five, we'shall'issue a broad ' cease-and desist order.' Corpu8 Christi Grain Exchange, ]nc,
132 NLRB 145 ., n, t
30 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
security payment records, timecards, personnel records and reports,
and all other records necessary to determine the amount of backpay
and other benefits due under the terms of this Order.
(c) Post at its plants in Warren, Michigan, copies of the notice
attached hereto marked "Appendix." 3 Copies of said notice, to be
furnished by the Regional Director for the Seventh Region, shall,
after being duly signed by the Respondent's authorized representative,
be posted by the Respondent immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter, in conspicuous
places, including all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respondent to insure
that said notices are not altered, defaced, or covered by any other
material.
(d) Notify the Regional Director for the Seventh Region, in writ-
ing, within 10 days from the date of this Order, what steps tha
Respondent has taken to comply herewith.
a In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order 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 membership in Local 247, Interna-
tional Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, Ind., or any other labor organization of our
employees, by laying off, discharging, or otherwise discriminating
in regard to their hire or tenure of employment, or any term or
condition of employment.
WE WILL NOT interrogate our employees concerning their mem-
bership in or activities on behalf of Local 247, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and Help-
ers of America, Ind., or any other labor organization, or make
any threats of reprisal or promises of benefit because of such
activity.
WE WILL NOT in any other manner interfere with, restrain,
or coerce our employees in the exercise of their right to self-
organization, to form labor organizations, to join or assist Local
247, International Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, Ind., or any other labor or-
ganization, to bargain collectively through representatives of
their own choosing, to engage in concerted activities for the pur-
WAYNE W. WILSON, COMPANY '31
poses of collective bargaining ' or' mutual aid or protection, or to
refrain from any or all such activities, except to the extent that
such rights may be affected by an agreement requiring member-
ship 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.
WE WILL offer to Arthur Shemansky and James Arnold im-
mediate and full reinstatement to their former or substantially
equivalent positions, without prejudice to their seniority or other
rights and privileges previously enjoyed, and will make them
whole for any loss of earnings they may have suffered by reason of
the discrimination against them.
All our employees are free to become, remain, or refrain from be-
coming or remaining members of any labor organization, except to the
extent that this right may be affected by an agreement requiring mem-
bership in a labor organization as a condition of employment as au-
thorized in Section 8 (a) (3) of the Act.
WAYNE W. WILSON COMPANY,
Employer.
Dated---------------- By-------------------------------------
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
This proceeding involves allegations that Wayne W. Wilson Company, herein
called the Respondent , violated Section 8(a)(1), (3), and (4 ) of the National
Labor Relations Act, as amended . A hearing was held before the duly designated
Trial Examiner at Detroit , Michigan , on July 18 and 19 , 1961 . The Respondent's
motion to dismiss the complaint is disposed of as hereinafter indicated. After
the conclusion of the hearing , the General Counsel and the Respondent filed
briefs with the Trial Examiner.
Upon the entire record, and from my observation of the witnesses , I make the
following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent is a Michigan corporation . It maintains its principal office at
21167 Ryan Road and its places of business at 21167 Ryan Road , herein called
the Ryan plant , and at 3884 Keefer Road, herein called the Keefer plant, both in
the city of Warren , State of Michigan : It is engaged at said plants in the fabrica-
tion , processing , sale, and distribution of steel and related products.
During the year 1960 , the Respondent in the course and conduct of its business
operations , purchased , transferred , and delivered to its Ryan and Keefer plants,
steel , copper, brass, aluminum , and other goods and materials , valued in excess
of $50,000, all of which were transferred to said plants directly from States of
the United States other than the State of Michigan.
During the same year the Respondent manufactured , sold, and distributed
finished products valued in excess of $50 ,000, all of which was sold and distributed
from said places of business directly to customers located in States of the United
States other than the State of Michigan.
32 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The complaint, alleges, the Respondent 's answer admits, and the Trial, Examiner
.finds that the Respondent is engaged in commerce within the meaning of Section
'2(6) and (7) of the Act.
H. THE LABOR ORGANIZATION INVOLVED
Local 247, International Brotherhood of Teamsters, Chauffeurs , Warehousemen
and Helpers of America , Ind., herein called the Union , is a labor organization
within the meaning of-Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Background; interference , restraint, and coercion
At all times mentioned herein Wayne ( Jack ) Wilson was the Respondent's
president ; Leigh Wilson was vice president and general manager ; and Walter
Fortuna was superintendent over both the Ryan and Keefer plants.
During June 1960 , the employees at the Ryan plant decided that they wanted
to join the Union . Employee Arthur Shemansky obtained authorization cards
from the Union. About June 20, 1960, Shemansky , William Barshaw, Gary
Staats, Dennis Shipp , Dewey (Burt ) Childress , and James Arnold , all employees
at the Ryan plant , signed the union cards. At this time the employees intended to
organize all employees at both plants . Staats was the "foreman " at the Ryan
plant. Barshaw was a "saw man." Shemansky , Shipp, and Arnold were the regu-
lar truckdrivers . At times Staats , Barshaw, and Childress also drove trucks.
On or about July 14, 1960 , the Union sent a telegram to the Respondent. The
following day Wayne Wilson called Staats to his office and asked him if he knew
anything about the Union. Staats replied that he did not know anything about it.
About this same time Wilson had a conversation with Shipp . He told Shipp
that he had heard that the employees were "going to organize the union " and asked
Shipp if he had signed a union card. When Shipp replied that he had, Wilson
asked him who else had signed cards . Shipp told him that the "whole group" had
signed.
On or about July 20, 1960, Wilson went to Barshaw 's place of work and talked
to him about the Union . He questioned Barshaw concerning which employees had
signed union cards. Barshaw told him that all of the employees had signed "as
a group ." When Wilson started to talk about "the harm" that the Union would
cause a "small company," Barshaw stated that he would "sooner have the group
talk in a meeting ." Wilson then told him that he would meet with the employees
the next day.
The above facts are based upon the credited testimony of Staats , Shipp, and
Barshaw. Denials of Wilson are not credited . It is found that Wilson 's interro-
gation of Shipp and Barshaw concerning the union membership and activity of
the employees ' constitutes interference , restraint , and coercion . No finding is made
with respect to Wilson 's conversation with Staats since the record indicates that
the latter was a supervisory employee. -
The day after his conversation with Barshaw , Wilson told Staats that he wanted
to, speak to all of the employees . Staats notified the employees ; and they met with
Wilson in the Respondent 's office.' In substance , Wilson told the employees that
he understood that they wanted "to organize a union," that he did not "think it
right just the truck drivers should join the union "; that he believed that all of the
employees "should be entitled to - join the union if they want to"; that the Re-
spondent , being "a small shop ," wanted "a versatile unit," which would permit
employees to work at various jobs ; that if the Union organized the plant, the
employees would have job classifications; that in such case when a truckdriver
completed his deliveries, he would be out of work and would , have to go home;
that "if things got slow he would have to sell his trucks and, the union couldn't
tell him who to classify and he would classify all of the men as warehouse men";
that he would get a "cartage company to come in and take over his deliveries and
that way he wouldn't - have to have ,a truck driver"; and that he would close down
the business before he would let the Union tell him what to •do.z
1 Staats , Shemansky , Childress , Arnold , Barshaw , and Shipp were present at the meeting
The statements of Wilson, found above , are based upon the credited testimony of
Staats , Arnold , Shemansky ;• and Barshaw ._ Shipp testified that Wilson said that "we
!would have a,private vote and we, was free to vote whatever way we cared to vote" ,and
that he ( Shipp ) did_not "recall Iust • ,what was said in the meeting " ,^ Staats also testified
that Wilson said that if the Union did not get in the plant , ."he .could not promise us
WAYNE W. WILSON COMPANY 33
The above threats of Wilson to close -the plant and to discontinue making de-
liveries with the Respondent's own trucks if the Union organized the plant are
found to be violative of Section 8(a)(1) of the Act.
Staats was discharged on or about August 1, 1960. Dewey Childress gradually
began to assume Staats' duties after the latter's discharge.
During about the last week in August 1960, Wayne Wilson called the employees
together for a meeting.3 Barshaw, Arnold, and Dewey Childress were present.
Shemansky, although he had been notified of the meeting by Childress, arrived late
and apparently did not join in the group. Wilson asked the employees what benefits
they thought they would get from the Union. He told them that he could not pay
the union scale of wages, since he could not "raise the price on steel because it would
hurt his business because other companies were selling cheaper"; that "once this
union mess was over with . I can't promise you nothing but . I assume things
will be better"; that before he would let the Union in the plant he would "lock the
doors up"; and that, if Shemansky wanted a union, "let him vote it in himself." 4
It is found that Wilson's threat to close the plant is violative of Section 8 (a)( 1 ) of
the Act.
During October or November 1960, Wayne Wilson had a conversation with
Arnold. Concenring this conversation, Arnold testified credibly as follows:
I was in his office and so he says, "Now," he says, "look, Arnold, I like your
work and you get along with everybody and you haven't caused too much
trouble," and so he says, "If you go along with the company," he says, "I am
going to take care of the ones that go along with the company," he says, "and
as far as the rest of them I ain't worrying about the rest of them," and he went on
about the union, if he had to he would close the doors and sell the trucks ... .
I find that Wilson's above-implied promises of benefit and threats of reprisal con-
stitute interference, restraint, and coercion.
B. The layoff of Arthur Shemansky on October 24, 1960
A representation hearing of the Board in Case No. 7-RC-4623 (not published in
NLRB volumes) was held on October 4, 1960. Shemansky testified for the Union
at this hearing. Some few days before the hearing, Shemansky told Dewey Childress
that he wanted "half a day off to go down town on business." Childress told him
it was "okay." 5
anything because it was against the law, but there would be a considerable change . .
more wages, for one " I do not credit this testimony of Staats Concerning Wilson's
statements at the meeting, Childress , called as a witness by the Respondent , was ques-
tioned and testified as follows:
Q. Do you remember what he said 9
A It had something to do with the union some way or some how He said "I feel
we ought to have an election on the thing A vote on it A majority vote." And
some more stuff . But I don ' t recall any more too much about it
Q (By Mr EWALD ) Do you recall him saying that rather than have the union he
would lock the doors 9 -
A No, I don ' t recall ' him saying that
TRIAL EXAMINER: Did he say anything like that?
The WITNESS : -Not to my remembrance, no
Q- (By Mr EWALI.) To the best of your recollection did lie make any threats to
anybody concerning the union organization9
A No, sir, I don't remember of him ever saying anything like that
Wilson denied - that he had threatened to close down the business or to lease trucks for
deliveries . The contrary testimony and denials of Childress and Wilson are not credited
'Arnold testified that the meeting was held about 3 weeks after Staats ' discharge
Barshaw testified that the meeting took place about a month before , the election on Febru-
ary 21 , 1961 Shemansky testified that the meeting took place at sometime between
August 1 and October 4, 1960 It is not clear from the testimony of Arnold and Barshaw
that they were referring to the same meeting However , both testified concerning a meet-
ing that took place near "the saw "
4 Barshaw , Arnold, and Shemansky testified credibly to the above The denials of
Wilson are not credited . Childress did not testify concerning the above meeting
5 Shemansky testified credibly that Fortuna had told him "on many occasions" to con-
sult with Childress as "Burt is in charge of the warehouse ." Childress testified that as
634449-62-vol 135-4
34 ,.,, DECISION'S OF NATIONAL LABOR RELATIONS BOARD
The day after the hearing Fortuna reprimanded Shemansky for taking time off
without getting permission Shemansky said that he had told Childress before
taking the time off Fortuna ieplied , "Burt Childress is nothing out there . you
tell me ." Either that same day or the following day Shemansky was called to the
office by Wayne Wilson. Wilson spoke to him about his testimony at the hearing.
Shemansky was laid off on October 24. Fortuna told him at the time, "Art, I
have got bad news for you, . . I am going to have to give you some time off. .
You guys are just getting too smart out there . . You have taken time off without
asking me and altering the timecards and altering the bulletin 'board.. . It is
going to have to stop. . I am going to start giving everybody time off, . . I
am sorry you have to be the first one but we have got to start with someone " When
Shemansky asked Fortuna how long he would be off , Fortuna replied , "You know
things are slow and I will give you a call " Shemansky then went to Wilson and
asked him how long he would be off . Wilson told h im, "I don't know It is
up to Walter . Walter is mad at you guys out there ." Shemansky called Fortuna
about 3 days later. He told Fortuna that he had to know how long he would be
off, as he could not "afford to lose any time or money." Fortuna told him to report
for work on October 31 6
Fortuna and Wilson both denied that Shemansky was laid off on October 24. They
testified that he was discharged on that date "for marking up time cards" of the
employees at the Ryan plant , and that he was rehired on October 31.
Shemansky admitted marking the timecards "possibly a week" after October 4. In
this connection he testified as follows- 7
We had come into the shop and we were punching in, and Dennis Shipp was
the first to punch his card , and he had grabbed the wrong card and punched it,
and we said , "what's the matter' Can 't you see?" And he said "Well , I can't
see without my glasses" and he held it like that and I said , "Well, I will write the
name on here so you can see it," and so then I had a red pencil and I written
"Dan" on the card and 1 wrote "Art" on my card and Jim and Burt's name on
the card.
Shemansky also admitted that he rearranged some documents on the bulletin board
The documents were a settlement agreement in Case No 7-CA-2845 and a notice
of election in Case No 7-RC-4623. Shemansky testified that the documents were
posted one on top of the other, and that he separated them.
Wayne Wilson testified that on July 21 , 1960, Shemansky "came in late and
never punched the card"; that when he questioned Shemansky about it, Shemansky
said that he was going to let Staats mark his timecard for him ; that he told
Shemansky that thereafter he should talk to Fortuna if he was late ; that the
employees "were depending on [Staats] at the end of the week to mark in the
starting time and therefore no loss {sic ] time was being incurred "; that he then
went to Staats and told him , "if you are going to mark them when they are late,
mark them late and if they have got an excuse tell me about the excuse and we will
give them a full day 's pay if it is a legitimate excuse"; and that he told all em-
ployees at the time, "This business of touching or fooling with anybody else 's cards
and marking them in or don't mark them in or don't punch them in has got to stop.
We got rules . They are posted on the board."
I find that Shemansky was laid off and not discharged on October 24, 1960. In
so finding I discredit Fortuna's testimony to the effect that he told Shemansky that
he was "fired, " and that he made it clear to him that he was being "rehired." I am
convinced and find that the Respondent 's reason for Shemansky 's layoff was a
pretext, and that it laid him off because it considered him a leading adherent of the
Union.
It is undisputed that Shemansky did not alter the timecards . In what might be
termed "horseplay ," he merely wrote in red pencil the first name or nickname of the
of the time of the hearing herein he was "warehouse leader " Fortuna testified that
Childress was not it leader in October 1060 , and that he ( Fortuna ) was the only one
who could grant an employee time off front work
6The above conversation between Slieniansky, Fortuna, and Wilson are based upon the
credited testimony of Shouaan^lzv.
R Shipp gave substsuntially the same testimony its Slieniansky as to this incident
Shenuunsky also testified that shortly after lie wrote on the cards both Fortuna and
Wilson reprimanded him for it , and that Wilson told hint , "You could have put the
wrong name on somebody else's cards and that would confuse the timekeeper and he
would be getting someone else's pay, Just don ' t let it happen again " I credit
.Shemansky ' s testimony In this connection
-WAYNE W. WILSON COMPANY-,, 35
employees on the top of the cards. That Wilson did not-consider the matter seriods
enough for a layoff or discharge at the time is clear from his warning to Shemansky
not to let it happen again . Further,` Shemansky testified that the incident happened
"possibly a week" after October 4 Fortuna and Wilson did not identify the date,
but their testimony indicates that, it occurred immediately before October 24. The
issue of time could have been resolved 'by the timecards themselves, since they
constitute the best evidence. They were not adduced in evidence. For. this reason
I credit the above testimony of Shemansky as to the time of the incident.
Accordingly, I find that by laying off Shemansky on October 24, 1960, the Re-
spondent violated Section 8(a) (3) of the Act
C. The transfer of drivers after the election
On February 21, 1961 , an election was conducted among the Respondent's em-
ployees, with a unit of truckdrivers found to be appropriate by the Board. Arnold,
Shemansky, Shipp, Clinton Childress, Dewey Childress, Walter Babinean, and
Eugene Duda voted at the election. Shemansky, who acted as the Union's observer,
challenged the ballots of Clinton Childress, Dewey Childress, Babinean , and Duda.
Aside from the challenged ballots, three votes were cast for the Union. In its
Supplemental Decision and Direction, dated August 10, 1961, the Board overruled
the challenges on Clinton Childress, Babinean, and Duda and sustained the challenge
on Dewey Childress.
As related above, Shemansky, Arnold, and Shipp were the regular drivers at
the Ryan plant; and during emergencies Barshaw and Dewey Childress also drove
trucks.
At the start of work on February 22, Fortuna told Shemansky and Shipp to
work in the warehouse "putting away steel ." He told Dewey Childress and Arnold
to drive the trucks .8
Between February 22 and March 27, 1961, the date when Arnold and Shemansky
were laid off, Shipp and Shemansky each were assigned to drive trucks about three
times. Arnold drove a truck for about 4 days after February 22, and then was
assigned to work in the warehouse Thereafter, Arnold drove only 1 day. Dewey
Childress, Clinton Childress, Duda, and Babinean replaced Shipp, Shemansky, and
Arnold as drivers during this period of time .9
The above facts concerning the changes made on and after February 22 are
based on the credited testimony of Barshaw, Shemansky, Shipp, and Arnold.
Fortuna at first denied that he made any changes in the work on and after Febru-
ary 22. Later he testified,
I had a lot of steel on the floor, and as I said, I came out to the fellows there
and I took Artand I took Dan Shipp. Those fellows were with me and they
knew how to put that steel away a little better than these other fellows, I assume,
so I put them to putting the steel away, and so I would say that to the best of
my knowledge, what I can recollect, they might have drove about a day or two
days out of the week at that time they were putting the steel away.
Wayne Wilson testified that he did not issue ,any orders to "cut off these guys from
driving"; that "two of our trucks were out of commission on the 22nd"; that "Walter
Babinean was on the night shift right up to the time of the layoffs and never came
down during days and never did any more than what he normally did"; 10 and that
Shipp, Shemansky, and Arnold "drove just as much before February 21st as they did
after," except that "deliveries were slower . because business was poor."
The complaint alleges that about February 22, 1961, the Respondent "transferred
its truck drivers to other duties and assigned said truck driving duties to other
employees for the purpose of undermining and dissipating the majority status of the
Union in the unit found appropriate by the Board." In my opinion the General
Counsel has failed to sustain the burden of proving this allegation of the complaint.
It is undisputed that the Respondent's "regular" truckdrivers did not drive con-
stantly. They were required to perform other jobs, such as putting away steel. It is
also undisputed that there was an unusual amount of accumulated steel in the Ryan
plant at the time in question. Shipp, Shemansky, and Arnold were put to work
moving and storing this steel. That they were not transferred permanently to this
8 Dewey Childress made the work assignments to the employees at the Ryan plant before
the election
8 Clinton 'Childress, Duda, and Babinean worked for the most part at the Keefer plant
before the election There is some evidence that they drove the Ryan plant's trucks dur-
ing emergencies or at night.
31 Babinean did not appear as a witness at the hearing
36 DECISIONS OF NATIONAL LABOR : RELATIONS BOARD
type ofwork is indicated by-reason of-the fact that each of them did some driving
thereafter. -
Further, Clinton Childress , Babinean , and Duda were included by the Board in
the unit of truckdrivers . The evidence indicates that these employees drove trucks
at the Keefer plant prior to February 22. There is no evidence showing that
employees other than regular truckdrivers took over the driving duties at that plant
after February 22. Accordingly it will be recommended that this allegation of the
complaint be dismissed.
D. The layoff of Shemansky and Arnold
About 3 days before the election on February 21, 1961 , Shemansky distributed
union literature to employees at both the Ryan and Keefer plants. Upon being
asked by Hurmel Stiltner , foreman at the Keefer plant , as to what he was passing
out, Shemansky showed him one of the union pamphlets . About 3 or 4 days after the
election , Shemansky had a conversation with Wayne Wilson. Concerning this con-
versation ;Shemansky testified credibly as follows:
I walked in to Walter Fortuna's office to turn in my shippers , and Jack Wilson
was standing there at his desk and he said "Art , what is this I hear about you
passing out personal literature at the other shops ," and I said it wasn 't personal.
I said it was matters concerning the company and he said "well, I don't know
what it was but it is not a company policy that the men pass out personal
literature at the shops ." He said "if you don 't watch yourself , you will talk
yourself right out of a job."
On March 27, 1961 , Shemansky and Arnold were laid off . Fortuna told them
that the reason for the layoff was because business was slow, and that employees
at the Keefer plant also were being laid off.
Wayne Wilson - testified that five employees , including Shemansky and Arnold,
were laid off on March 27 "because business was in such a slow state"; 11 that he
-made the final decision on the selection of employees to be laid off , after consulting
with Fortuna ; and that "the drivers were laid off on the length of service and on
their record , how good they were."
Arnold testified without contradiction that he was hired by the Respondent on
March 31, 1960 . Shemansky testified without contradiction that he was hired in
October 1957 . Dewey Childress testified that as of the date of the hearing herein
-he had worked a year for the Respondent . Fortuna testified that as of the date
of the hearing herein Clinton Childress had been employed by the Respondent
"over a year ," Duda 3 or 4 years, and Babinean "about three years ." Shemansky
"testified without contradiction that Dewey Childress , Clinton Childress , Babinean,
and Duda all were hired after him.
From the above testimony it appears that Shemansky had more seniority than
Dewey Childress , Clinton Childress , Duda, and Babinean; 12 and that Arnold had
more seniority than Dewey Childress 13 and possibly more than Clinton Childress.
"Fortuna testified that six employees were laid off at the time Bradshaw was one of
the employees laid off.
12 As -related above, Fortuna and Wilson testified that Shemansky was discharged on
October 24 and was rehired on October 31, 1960 The reason for this contention becomes
clear when considered with the above facts Shemansky testified to the effect that the
first that he knew of the alleged discharge in October 1960 , was at the time of his layoff
in March 1961 Concerning a conversation with Fortuna on March 28, 1961, Shemansky
testified credibly as follows:
I called Walter Fortuna and I asked him , I said, "Is my vacation pay ready for me
to pick up ?" and he said, "Art, if you will wait a minute I will check " He asked
me if he could call me back and I said yes I would wait, and about probably forty-
five minutes later so he called me back and he said "Gee, Art , I have bad news for
you " He said , "You are not going to get your vacation pay," and I said, "why
not"" and he said , "Well the time you had that time off there you lost your vacation
pay and seniority," and I said, "nobody ever told me I lost my seniority and vacation
pay," and he said , "well, you must have misunderstood " He said, "We rehired you
at that time ," so I says, "Who told you that1" and lie said, "that ' s the word that is
going around here." . .
"As found above, Dewey Childress made work assignments prior to the election Start-
ing on February 22, Fortuna made the assignments, and Childress drove a truck
Childress testified that he became a "warehouse leader " during May 1961.
WAYNE W. WILSON COMPANY 37 :
Therefore , it is ' clear that Shemansky and Arnold were not selected for layoff on
the basis of seniority.
Concerning alleged "drawbacks" or shortcomings which were considered in the
selection of Shemansky and Arnold for layoff, Wayne Wilson, Fortuna, and Leigh
Wilson testified at length . For the most part , the incidents involving Shemansky
and Arnold are undisputed . During August 1960 , Arnold damaged Wayne Wilson's
automobile with his truck . In the early spring of 1960, Shemansky received "a towing
ticket" because his truck got stuck on a residential street. During August 1960,
Shemansky ran into the Respondent 's building and damaged "the down-spout." On
February 22, 1961, the truck driven by Shemansky the previous day needed repairs
because of overheating . Other complaints of Respondent concerning Shemansky's
conduct as an employee have been related above in connection with his layoff
during October 1960.
I have carefully considered all of the evidence , and am convinced and find that
the Respondent was seizing upon pretexts to justify its disregard of its admitted
seniority policy in the selection of Shemansky and Arnold for layoff. In so finding,
I have credited the testimony of Shemansky and Arnold as to the incidents involved.
Fortuna testified that after the accident involving Wilson 's car, Arnold "seemed to
straighten out and work good." Fortuna admitted that Shemansky was one of his
"most reliable drivers," along with Shipp and Duda. Shemansky testified without
contradiction that during the winter of 1959 he was offered the job of foreman,
and that the offer was repeated by Wilson after Staats was discharged. From this
and other evidence , I am unable to believe that the Respondent took into consideration
these alleged "drawbacks" of Shemansky and Arnold in their selection for layoff.
Accordingly , I find that the Respondent was motivated discriminatorily in selecting
Arthur Shemansky and James Arnold for layoff on March 27, 1961, and that by
such conduct the Respondent violated Section 8(a)(3) and (1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section Ill, above, occurring in con-
nection with its operations described in section I, above, have a close , intimate, and
substantial relation to trade, traffic, and commerce among the several States, and
tend to lead to labor disputes burdening and obstructing commerce and the free
flow of commerce.
V. THE REMEDY
Having found that the Respondent has-engaged in unfair labor practices , it will
be recommended that it cease and desist therefrom and take certain affirmative and
remedial action designed to effectuate the policies of the Act. Having found that
the Respondent discriminatorily laid off Arthur Shemansky from October 24 to 31,
1960, and Arthur Shemansky and James Arnold on March 27, 1961, I recommend
that the Respondent offer them immediate and full reinstatement ,, without prejudice
to their seniority and other rights and privileges , and make - them whole in accord-
ance with the Board's usual procedures and remedial policies for any loss of earnings
occasioned by their layoff I further recommend that the Respondent upon reason-
able request make available to the Board and its agents all payroll and other records
pertinent to an analysis of the amount due in backpay.
Upon the basis of the foregoing findings of fact , and upon the entire record in
the case, I make the following:
CONCLUSIONS OF LAW
1. Local 247, International Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, Ind., is a labor organization within the meaning of Section.
2(5) of the Act.
2. By laying off Arthur Shemansky and James Arnold, thereby discriminating in
regard to the hire and tenure of their employment and discouraging membership in
the Union , the Respondent has engaged in and is engaging in unfair labor practices
within the meaning of Section 8(a) (3) and (1) of the Act.
3. By interfering with, restraining , and coercing its employees in the exercise of
the rights guaranteed in Section 7 of the Act, the Respondent has engaged in unfair
labor practices within the meaning of Section 8(a)(1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting com-'
merce within the meaning of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]