Weldstar Co.

National Labor Relations Board - Board Decisions

May 10, 1976

223 N.L.R.B. 1385 (N.L.R.B. 1976)

WELDSTAR COMPANY 1385
Weldstar Company and Carlos L. Hughes. Case 13-
CA-14611
May 10, 1976
DECISION AND ORDER
BY MEMBERS FANNING. PENELLO, AND WALTHER
On January 26, 1976, Administrative Law Judge
Henry L. Jalette issued the attached Decision in this
proceeding. Thereafter, the General Counsel filed ex-
ceptions and a supporting brief; the Respondent
filed a brief in opposition to exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the complaint be, and it hereby is, dis-
missed in its entirety.
DECISION
STATEMENT OF THE CASE
HENRY L. JALETTE, Administrative Law Judge: This pro-
ceeding was initiated by a charge filed by Carlos L. Hughes
on August 19, 1975.1 Pursuant thereto, complaint issued on
October 21 alleging that the above-captioned Respondent
had violated Section 8(a)(1) of the Act by coercively inter-
rogating employees about the union activities of Carlos
Hughes and had violated Section 8(a)(1) and (3) of the Act
by laying off and failing to recall Hughes because he en-
gaged in union activities . On December 11, hearing was
held in Chicago, Illinois.
Upon the entire record, including my observation of the
witnesses , and after consideration of the briefs filed by
General Counsel and Respondent, I hereby make the fol-
lowing:
1 Unless otherwise indicated all dates hereinafter are in 1975.
FINDINGS OF FACT
I. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Events
Respondent is engaged in the distribution of industrial
gases at places of business in Aurora and Park Forest, Illi-
nois.' At the Aurora location, Respondent's employees are
represented by Local 423, affiliated with Teamsters, Chauf-
feurs, Warehousemen and Helpers of America, and at the
Park Forest location by Local 702, also affiliated with
Teamsters, Chauffeurs, Warehousemen and Helpers of
America. Both units are covered by separate collective-bar-
gaining agreements both of which contain union-security
clauses.
Carlos Hughes was employed by Respondent at its Au-
rora location on July 7. It is undisputed that his employ-
ment at that location was as a summer replacement for
vacationing employees. It is also undisputed that Respon-
dent was expanding its operation at Park Forest and that
Hughes would be transferred there when the work became
available if he had proved to be satisfactory. The work at
Aurora consisted of filling and delivering a variety of cylin-
drical gas containers to customers at various locations.
These containers ranged in height from 3 to 5 feet and
when filled, weighed from 125 to 175 pounds, with one
type, a gas pack, weighing over 600 pounds. These contain-
ers were generally moved by hand in a vertical position
and tipped to permit rolling. Hughes is 5 feet 7 inches tall
and weighs 120 pounds. Other employees, who appeared
before me, were significantly larger, and it appears that,
whereas they would roll two containers at a time, Hughes
rolled only one. Neither Joseph Testa, a dispatcher and
admitted supervisor, nor Vice President John Winkler, ever
spoke to Hughes about this. Moreover, on two occasions
Hughes dropped gas packs, and on neither occasion was he
reprimanded or cautioned.
On August 6, his 30th .day of employment, Hughes was
approached by Wendell Wood, a representative of Team-
sters Local 423, who asked him if he was the new man.
Hughes told him he was and Wood reminded him that he
had his 30 days in and that it was time for him to join the
Union. Hughes testified that he told Wood that he had
agreed with the Company not to join the Union for 8 or 9
months and Wood told him that was wrong, that the con-
tract specified 30 days and the Company could not make
Hughes wait that long. He said every driver had to join
after 30 days. Thereupon, Hughes paid Wood $70 as part
of an initiation fee into Local 423.
Thereafter, Wood did not leave immediately but en-
gaged in conversations with some of the other employees
and with Vice President John Winkle. After talking to
Wood, Winkle walked up to Hughes and asked him what
his friend had wanted that morning. Hughes told him that
Wood had asked him to sign up for the Union. Winkle
asked him why he had not sent the man to him. Hughes
replied that he had told Wood of the agreement he had not
2 Jurisdiction is not in issue . The complaint alleges, the answer admits,
and I find , that Respondent meets the Board's $50,000 direct outflow stan-
dard for the assertion of jurisdiction.
223 NLRB No. 210
1386 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to join the Union for 8 or 9 months, but that Wood had
told him he wanted to sign him up anyway. Winkle asked
Hughes if he had given Wood any money and when
Hughes said $70, Winkle told him he would try to get his
money refunded . According to Hughes , Winkle also men-
tioned that he had planned on laying Hughes off for a
week before the Park Forest job opened up and planned on
bringing him back.
At the end of the workday, Hughes had another conver-
sation with Winkle in which Winkle told him that his curi-
osity was killing him as to how Wood knew that Hughes
was there on the 31st day. Hughes said he did not know
and conjectured that perhaps the Union made regular
calls. Winkle said it usually did not, that someone must
have called . Winkle also wanted to know why Hughes had
not sent the man to him; he remarked that "when a perfect
stranger comes up to you and tells you something different
than the Company, I should have sent the man to him."
According to Hughes , the following day some of the
other drivers told him that they had been questioned by
Winkle and dispatcher Joe Testa as to how the Union had
known Hughes was employed by Respondent . Driver J. D.
Hambrick told Hughes that Winkle had also asked him if
he had encouraged Hughes to join the Union and that
Winkle and Hughes had an agreement whereby Hughes
would not join the Union until after he was transferred to
Respondent 's Park Forest location . Winkle allegedly said if
it came down to where he could not make a gentlemen's
agreement with a man he would go out of business. Ham-
brick testified and confirmed having been questioned by
Winkle, but he did not confirm the other parts of Hughes'
testimony.
At the end of the next workday, dispatcher Testa told
Hughes he was going to have to lay him off. According to
Hughes, the only reason given was because things were
slow. Hughes asked him if they were going to call him back
and Testa said he did not know . Hughes asked whether it
was because he could not handle the job and Testa told
him that Winkle had questioned some of the drivers and
they had told him Hughes could not handle the cylinders.
Hughes asked Testa what he meant and Testa asked him if
he had not dropped any of the gas packs . Hughes replied
one or two, but that all drivers had dropped one on occa-
sion . Hughes asked Testa if he was being laid off because
he could only roll one cylinder. Testa replied that it takes
more time if an employee can only roll one cylinder.
Hughes' reply was that he made just as good time as the
other drivers. Hughes asked to speak to Winkle, but Testa
told him Winkle had gone on vacation and would be away
for a week.
According to Testa, he told Hughes that it had been
decided to lay him off, "that work had been slow, but ba-
sically we had decided he was physically unable to do the
job." Hughes asked if he would be recalled , and Testa told
him he "had no information on the matter , but if I were
laid off because of physically being unable to do the job, I
wouldn 't expect to be called."
Hughes testified that, on August 12, he returned to the
facility to get his layoff slip. He asked Testa if Respondent
was going to call him back and Testa said he did not know.
Hughes has not been recalled since that date.
B. Analysis and Conclusions
General Counsel has filed a rather detailed and compre-
hensive brief in this case despite the narrow factual issue
presented and the short record. One is tempted as a result
to engage in a discussion of details in the record which
arguably support a finding of a violation but which in the
final analysis are in no way dispositive of the case.
In skeletal form, this case consists of the following: an
employee is hired, completes his probationary period with-
out reprimands or criticism , receives a wage increase, signs
a union card to the irritation and displeasure of manage-
ment, and is discharged immediately thereafter. Given
such a scenario, General Counsel argues one would have to
be naive to believe Respondent's assertion that it laid off
Hughes permanently because of his inability to do the
work. As General Counsel points out, the trier of fact is not
"required to be any more naif than is a judge." 3
Shattuck Denn Mining Corp., supra, is an oft-cited case in
support of a finding of unlawful motivation where the find-
ing must depend on inferences drawn from circumstantial
evidence. It is noteworthy, however, that the inference of
unlawful motive in that case was drawn from circumstan-
tial evidence entirely different from the evidence in this
case. Thus, the discharge there occurred in the context of
"a new union, just certified, and quite busy in advancing
grievances; here was an officer of that union who was also
a shop steward and an active member of the grievance
committee; here was such an employee presenting a griev-
ance, on his own behalf, against his supervisor."
In this case, there is no evidence that the bargaining
relationship between Respondent and the Union is other
than amicable. The employee's union activity consisted of
signing a union card where there existed a collective-bar-
gaining agreement containing a valid union -security clause.
In the circumstances , what possible motive could Respon-
dent have for discharging him? It should not have mattered
one whit to Respondent that Hughes signed a card.
It may be argued that perhaps it should not have mat-
tered, but that the evidence of Winkle's interrogation of the
employees, including Hughes, demonstrates that it did
matter . In sense , that is true. But as I understand Winkle's
testimony, which I credit, he was upset because he viewed
the Union 's action in signing up Hughes as a breach of an
understanding that summer drivers would not have to join
the Union . He was also upset about the fact that he was
contemplating laying off Hughes and the Union would
have been enriched by an initiation fee from which Hughes
would derive no benefit . I recognize that Winkle's testimo-
ny is entirely self-serving, but his words find support in his
remarks to Hughes and in his telephone call to Wood to
obtain a refund of Hughes' $70.
The timing of the layoff is suspicious. If Hughes was
physically unable to do the work, and Winkle had been so
informed by other drivers I or 2 weeks before his separa-
tion, why was he not laid off sooner? As I understand
Winkle's testimony, the adverse reports on Hughes had
caused him to contemplate not moving Hughes to Park
J Shattuck Denn Mining Corporation v. N.L.R. B., 362 F.2d 466, 470 (C.A.
9. 1966).
WELDSTAR COMPANY 1387
Forest, but he did not have to act on that matter at the
time, and he did not lay off Hughes any earlier because the
vacation period had not ended and he did not want to have
to replace Hughes by hiring someone for I or 2 weeks. This
rationale explains why Hughes was permitted to work
through a 30-day probationary period. The fact that
Hughes received a raise proves nothing as the rasie was
automatic and it does not appear that either Winkle or
Testa was consulted about it.
Finally, there is the matter of Hughes' ability to do the
work. In my judgment, the record compels a finding that
the duties of the job exceeded Hughes' physical capabili-
ties . This was attested to by three experienced drivers;
Hughes' height and weight and the fact he only rolled one
cylinder at a time lend credence to their testimony.
In short, in the absence of any motive to discharge
Hughes for joining the Union, and based on the evidence
supporting the asserted reason for his separation, I am per-
suaded that a finding that his separation was unlawful is
unwarranted.
There remains for consideration the allegation of unlaw-
ful interrogation. In the circumstances of this case, includ-
ing the absence of any evidence of union animus , the ex-
isting collective-bargaining relationship , and the nature of
the inquiry made, I am persuaded and find that the interro-
gation was not coercive and did not tend to interfere with
the employees' exercise of Section 7 rights.
CONCLUSIONS OF LAW
1. Weldstar Company is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of the
Act.
2. General Counsel has not established by a preponder-
ance of the evidence that Respondent has engaged in un-
fair labor practices within the meaning of Section 8(a)(1)
and (3) of the Act as alleged in the complaint.
Upon the basis of the foregoing findings of fact and con-
clusions of law, I hereby issue the following recommended:
ORDER4
The complaint is hereby dismissed.
In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board , the findings,
conclusions , and recommended Order herein shall , as provided in Sec.
102.48 of the Rules and Regulations , be adopted by the Board and become
its findings , conclusions, and Order , and all objections thereto shall be
deemed waived for all purposes.