Eveready Garage, Inc

National Labor Relations Board - Board Decisions

Jan 5, 1960

126 N.L.R.B. 13 (N.L.R.B. 1960)

EVEREADY GARAGE, INC 13
labor dispute to peaceful adjustment scarcely constitutes restraint and coercion
within the meaning of this Act
The attempts to induce K-C to consider the Local's contract proposals before
calling in lawyers for assistance in negotiating were not unlawful As we have seen,
Board precedents authorize seeking to persuade a party to bargaining not to select
particular individuals or classes as negotiators Apart from the failure to meet
which is no significance in this connection-the Respondents did not, in my opinion,
go beyond that Hence, even if it be assumed that the Respondents were under a
statutory duty to meet with K-C, their attempts to persuade K-C to meet without
Jones would be violative of the Act only if insisted upon a condition of agreement on
bargaining matters The Respondents' conduct here did not constitute such an
insistence The Respondents did not make agreement conditional upon the ehmina-
tion of Jones Indeed they did not even make meeting conditional upon it As we
have seen, in the last direct exchange of views on December 4, 1958, Union Business
Agent Smith urged Joplin Kowalchyk to look at the Local's proposals, and if K-C
then felt that it needed its lawyer to bring hun into the negotiations K-C declined
this invitation Under such circumstances I cannot find that the Respondents in-
sisted upon the exclusion of Jones either as a condition of agreement or as a condi-
tion of negotiating, or even that they unqualifiedly refused to meet with hun
As to the threat to strike on December 9 unless K -C began to live up to the terms
of the Association contract since the strike itself is not asserted to be restraint or
coercion, the threat to engage in it cannot be In any event, the threat on its face
belies any conclusion that it was an attempt to cause K-C to dispense with the
services of Jones
For the foregoing reasons it is found that the Respondents ' conduct here alleged
was not violative of Section 8(b)(1)(B) of the Act It will therefore be recom-
mended that the complaint be dismissed
[Recommendations omitted from publication I
Eveready Garage, Inc. and International Union of Operating
Engineers, Local Union No. 428, AFL-CIO; and Construction,
Building Material and Miscellaneous Drivers, Local Union
No. 83, affiliated with the International Brotherhood of Team-
sters, Chauffeurs , Warehousemen and Helpers . Cases Nos
21-CA-3334 and 21-CA-3483 January 5, 1960
DECISION AND ORDER
On August 20, 1959, Trial Examiner Howard Myers issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had not engaged in certain unfair labor practices
alleged in the consolidated complaint, as amended, and recommending
that the complaint be dismissed, as set forth in the copy of the Inter-
mediate Report attached hereto Thereafter, the General Counsel
filed exceptions to the Intermediate Report and a supporting brief
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 [Chairman Leedom and Members Bean and Fanning]
The Board has reviewed the rulings made 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 Inter-
mediate Report, the General Counsel's exceptions and brief, and
126 NLRB No 4
14 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the entire record in these cases, and hereby adopts the findings, con-
clusions, and recommendations of the Trial Examiner with the follow-
ing modifications.
Following a strike in November 1958, and the filing of charges in
Case No. 21-CA-3334, the parties entered into an informal settle-
ment agreement, and the Respondent reinstated all the dischargees
and strikers who desired reinstatement. The complaint alleges, inter
alia, that the Respondent thereafter discriminated against its employ-
ees who were union members by giving them reduced hours of work
while granting overtime and premium-paid field work only to non-
union employees, and also by discharging Woodley, Guy, and Brandon,
three of the reinstated strikers. The Trial Examiner concluded that
the evidence did not support these allegations. We agree with this
ultimate conclusion, although not with all the subsidiary findings.'
We note that the discharges of Woodley, Guy, and Brandon, alleged
to be discriminatory, all occurred on Tuesday, March 10, after 2 hours
of work. 'The Respondent's weekly payroll period includes Wednes-
day. There is no comment in the Intermediate Report regarding the
coincidence of the three discharges, apparently unconnected, occur-
ring on the same day, during working hours, before the end of the
workweek, with no indication of what precipitated the discharges
at that particular time. The Intermediate Report finds Woodley
responsible for several work derelictions, but the latest date given
for any of them is February 27. With reference to Guy, the Inter-
mediate Report finds that he unreasonably delayed delivery of needed
supplies by going to the wrong place to pick them up even though
he had the name and address of the supplier on a purchase order.
There is considerable doubt, on the record as a whole, that he was given
such an order, or whether, as he testified, he was given the directions
on the telephone while out on another errand. In any event, the pur-
chase order placed in evidence by the Respondent is dated March 11,
a day after Guy's discharge. With regard to Brandon, who had been
employed for 3 years, the Intermediate Report relies on the fact that
1 We note, for example , the following inaccuracies and omissions in the Intermediate
Report, It comments on the Respondent ' s reinstatement of each of three strikers
(Woolley, Guy, and Brandon, all later discharged) after the November 1958 strike "al-
though his name did not appear on any of the aforementioned settlement agreement
documents ," but fails to note that one such document , from a Board field examiner to
the parties ( dated February 5 and not February 3, 1959 , as stated in the report), sum-
marizes the settlement terms as including a provision that "the strikers shall be re-
instated . . ." ; it refers to strikers who were reinstated as "former " employees who were
"rehired" and to their having "quit" when they had gone on strike ; it points out Guy's
failure to let the manager know, as he promised to do , whether he wanted to work on
Saturdays, but fails to note that Guy went on strike on the day he was asked to do so;
it states that Guy, who had been on the third shift before the strike, was reinstated to
a "more desirable shift," but fails to note that Guy did not want the transfer ; and in
analyzing payroll records to show that union members were not discriminatorily given
shorter hours , it makes comparisons in three instances with a nonunion employee who
worked only 16 hours one week, but fails to note that this employee was terminated that
week after working two 8-hour days.
EVEREADY GARAGE, INC. 15
a superintendent of Long, for whom the Respondent did most of its
work, requested that Brandon not be sent to do field work because of
his excessive talking. The superintendent in question, however, testi-
fied that he made this request in February. Brandon had at that time
been on strike for several weeks, and someone else was doing the field
work in question.
Nevertheless, although the issue is not free from doubt, we are not
convinced that the General Counsel has established the alleged dis-
crimination by a preponderance of the evidence. The fact is that the
record contains no indication of why Woodley, Guy, and Brandon
should be selected for discriminatory discharge in March 1959. Al-
though they had gone on strike in November 1958, they were not
among the seven men whose discharges precipitated that strike.2 Nor
is there any showing that the three dischargees were union officers,
organizers, or in any way outstandingly active on behalf of the
Unions. Moreover, while the General Counsel alleged that the Re-
spondent discriminated against returned strikers by sending them
home at times during the day, thus reducing their hours of work, and
by eliminating the overtime and premium-paid field work they were
allotted before the strike, Woodley was never sent home and had not
worked overtime before or after the strike, Guy lost only 4 hours one
week because the equipment on which he was working broke down,
and Brandon was never sent home and, moreover, did get some field
work, although less than before the strike. Furthermore, some of the
conduct of the dischargees advanced as reasons for the discharges
was admitted or clearly established on the record as a whole. Finally,
as the General Counsel failed to establish that the Respondent, after
entering into the settlement agreement, displayed antiunion bias, dis-
criminated with regard to the working conditions of any of its union-
member employees, or engaged in the other unfair labor practices
alleged in Case No. 21-CA-3483, we, like the Trial Examiner, will
neither pass upon the conduct alleged in Case No. 21-CA-3334 to
constitute violations of the Act, nor consider such conduct in relation
to the violations alleged to have occurred since the settlement agree-
ment. Under all the circumstances, therefore, and on the basis of the
Trial Examiner's credibility resolutions,' we shall adopt the Trial
Examiner's recommendation and dismiss the complaint.
[The Board dismissed the complaint.]
2 The Respondent's general manager admitted that he terminated these men in Novem-
ber 1958 "because I suspected they were having union activities."
3 The General Counsel takes issue with some of the Trial Examiner 's credibility resolu-
tions . As it is the Board 's established policy , however , not to overrule a Trial Examiner's
resolutions as to credibility except where , as is not the case here , the clear preponder-
ance of all the relevant evidence convinces it that the resolutions were incorrect , we find,
contrary to the General Counsel ' s contentions , no basis for disturbing the Trial Examiner's
credibility findings Standard Dry Well Products, Inc, 91 NLRB 544, enfd 188 P. 2d
362 (C.A. 1).
16 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Upon two separate charges filed jointly on December 1, 1958 (Case No. 21-CA-
3334) and on March 12, 1959 (Case No. 21-CA-3483), respectively, by International
Umon of Operating Engineers, Local Union No. 428, AFL-CIO, herein called
Local 428, and Construction, Building Material and Miscellaneous Drivers, Local
Umon No. 83, affiliated with International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers, herein called Local 83,1 the General Counsel of the
National Labor Relations Board, herein respectively called the General Counsel 2 and
the Board, through the Regional Director for the Twenty-first Region (Los Angeles,
California), issued a consolidation complaint, dated April 28, 1959, against Ever-
ready Garage, Inc., Phoenix, Arizona, herein called Respondent, alleging that Re-
spondent had engaged in and was engaging in unfair labor practices within the
meaning of Section 8 (a) (1), (3), and (5) and Section 2(6) and (7) of the National
Labor Relations Act, as amended, 61 Stat. 136, herein called the Act.
Copies of the charges, order of consolidation, and consolidated complaint, together
with notice of hearing thereon, were duly served upon Respondent, upon Local 428,
and upon Local 83.
Specifically, the consolidated complaint alleged that Respondent (1) since on or
about November 28, 1958, has refused the Union's request to recognize and to bar-
gain with it as the exclusive collective-bargaining representatives of the employees
in a certain stated appropriate unit, despite the fact that the Unions then were, and
still are, the selected and designated collective-bargaining representative of the
employees in said appropriate unit as their collective-bargaining representatives; (2)
since on or about November 6, 1958, by engaging in certain stated acts and conduct
interfered with, restrained, and coerced its employees in the exercise of the rights
guaranteed in Section 7 of the Act; (3) on or about November 28, 1958, discharged
seven named employees 3 because of their memberships and activities in behalf
of the Unions; (4) since on or about February 14, 1959, without prior consultation
with the Unions, has altered terms and conditions of employment by eliminating
certain benefits previously enjoyed by the employees; and (5) on or about March
10, 1959, discharged three named employees,4 and since said date has refused to
reinstate them, because of their memberships and activities in behalf of the Unions.
The consolidated complaint also alleged the filing of the charge in Case No.
21-CA-3334, alleging violations of Section 8(a)(1), (3), and (5) of the Act, the
informal settlement of this charge by agreement, the approval of the agreement by
the aforementioned Regional Director on or about March 3, 1959, the withdrawal by
the Regional Director of his approval of said agreement on or about April 27, 1959,
and the revival of the allegations in the charge in Case No. 21-CA-3334.
On May 29, 1959, Respondent duly filed an answer denying the commission of the
unfair labor practices alleged.
Pursuant to due notice, a hearing was held from June 10 through 15, 1959, at
Phoenix, Arizona, before the duly designated Trial Examiner. All parties were
represented by counsel who were afforded full opportunity to be heard, to examine
and cross -examine witnesses , to introduce evidence pertinent and relevant to the
issues, to argue orally at the conclusion of the taking of the evidence, and to file
briefs on or before July 15, 1959. Briefs have been received from Respondent's
counsel and from counsel for the Unions which have been carefully considered.
Upon the entire record in the case and from his observations of the witnesses, the
Trial Examiner makes the following:
FINDINGS OF FACT
1. RESPONDENT'S BUSINESS OPERATIONS
Eveready Garage, Inc., an Arizona corporation, has its principal offices and place
of business in Phoenix , Arizona, where pit is engaged in repairing and maintaining in
good usable condition automotive and heavy equipment.
Conjointly Local 428 and Local 83 are referred to herein as the Unions
This term specifically includes counsel for the General Counsel appearing at the
hearing.
3 Albert B. Holiday, Charles Washa, Ca.ywood Jones, Kenneth Warner, Robert Harrell,
Toivo Donoho, and Virgil Jones
4 Charles Woodley, Johnny C. Guy, and Willie Brandon.
EVEREADY GARAGE, INC. 17
Since starting its business operations on November 17, 1958, Respondent 's opera-
tions have been mainly confined to rendering services and furnishing goods to
John F. Long, Home Builder , Inc., also of Phoenix, Arizona , and herein called Long.
On an annual basis Respondent 's billings to Long amount to more than $ 50.000.
Long 's annual out-of-State purchases of goods, products , and material aggregate
more than $ 50,000.
Upon the above undisputed facts, the Trial Examiner finds that during all times
material Respondent has been and now is engaged in commerce within the meaning
of the Act and that it will effectuate the purposes of the Act for the Board to assert
jurisdiction in this proceeding.
II. THE LABOR ORGANIZATIONS INVOLVED
Local 428 and Local 83 are labor organizations admitting to membership employ-
ees of Respondent.
III. THE ALLEGED UNFAIR LABOR PRACTICES
The Pertinent Facts
A. Prefatory statement
On December 1, 1958, the Unions filed with the Board a joint charge (Case
21-CA-3334) alleging, in substance , that ( 1) since on or about November 28, 1958,
Respondent , in violation of Section 8(a)(5) of the Act, refused to recognize or
bargain with them as representatives of its employees in a certain appropriate unit;
(2) Respondent , in violation of Section 8(a)(1) and (3) of the Act discharged
Virgil Jones, Caywood Jones, Robert Harrell , Toivo Donoho, and Charlie Washa,
on or about November 23, 1958, and thereafter refused to reinstate them, because
of their memberships and activities in behalf of the Unions ; and (3 ) by certain other
acts and conduct violated Section 8 (a) (1) of the Act.
Under date of February 3, 1959,5 a Board field examiner wrote the parties as
follows:
This will confirm the understanding reached by you yesterday at a joint con-
ference with the undersigned relative to the terms and conditions of settlement
in the above case.
The Company will
1. Bargain collectively upon request with the International Union of Operating
Engineers , Local Union 428, AFL-CIO, and Construction , Building Material
& Miscellaneous Drivers, Local 83, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen & Helpers, jointly, for a unit of all employees of
Eveready Garage, Inc ., excluding office clerical employees , watchmen, pro-
fessional employees , and supervisors as defined in the Act.
2. Offer immediate reinstatement to
Albert Holiday Toivo Donoho
Caywood Jones Charlie Washa
Virgil Jones Kenneth Warner
3. Make a lump -sum payment of $2,000 in full settlement of the -back-pay
claims of all the above-named, plus Robert Harrell. The Company will make
out individual checks to each of the seven above -named in amounts to be
determined by James W. Cherry, Jr., Attorney for the NLRB , after investigation
of their interim earnings and claims for loss of pay. The lump sum of $2,000
is to be pro-rated and divided among the claimants in accordance with the
results of the investigation of back-pay claims.
The Company will deliver the individual checks to Mr. Cherry of this office
upon receipt of notification that the Settlement Agreement , executed in accord-
ance with this understanding , has been approved by the Regional Director.
4. Post the required 8 (a) (1) (3 ) and (5 ) Notice to Employees immediately
upon receipt of notification that the Settlement Agreement has been approved
by the Regional Director.
In addition to the above , it is understood that the strike will terminate imme-
diately and that the strikers shall be reinstated with full seniority rights upon
prompt application for employment following termination of the strike.
A Settlement Agreement containing provisions as stated above will be
submitted to the parties for signature as soon as the exact pay amounts have
'Unless otherwise noted all dates hereinafter mentioned refer to 1959.
554461-60-vol 126 3
18 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
been determined for each of the claimants. Meanwhile the Company should
submit to Mr. Cherry specific data as to the probable earnings of Holiday, V.
Jones, C. Jones, Harrell, Warner, Donoho, and Washa, had they remained in
the employ of Eveready to date.
As I indicated at the conference yesterday, it is my intention to recommend
to the Regional Director that this Settlement Agreement be approved.
Under date of February 9, Local 428 wrote John A. Murphy, Respondent's counsel
and its secretary-treasurer, as follows:
This will confirm our oral agreement of this afternoon, relative to the above
case. This agreement, as I understand it, consists of the following items:
(1) That the Unions will remove their Pickets from the Company's premises
on or before Thursday, February 12, 1959.
(2) That some of the men entitled to reinstatement by the Company will
report for work at 8:00 A.M. Thursday, February 12, 1959.
(3) That the Unions will notify the Company of the exact number of men
who will report for work on February 12th, by the afternoon of Wednesday,
February 11th, 1959.
(4) That the remainder of men entitled to reinstatement by the Company
will report for work at 8:00 AM. on Friday, February 13th, 1959, with the
exception of Charles Washa, who may return to work any time during the
calendar week of February 16th through 21st inclusive; and those men who
are now presently employed, and who desire to give their present employers
notice of termination before returning to Eveready Garage, Inc., may also
return to work during the calendar week of February 16th through 21st
inclusive.
If this agreement, as I have stated above, does not conform to your under-
standing of our agreement, please notify me at once so that any misunder-
standing can be corrected before putting this agreement into effect.
On February 12 Donoho, Holiday, Virgil and Caywood Jones, and Washa were
reinstated with back pay and on February 13 Warner likewise was reinstated with
back pay.6
Under date of March 2 a formal written agreement was entered into between
the Unions and Respondent, which was approved, in writing, by the aforementioned
Regional Director on March 3.
The agreement, besides providing for certain steps to be taken by Respondent to
remedy the violations of the Act alleged in the aforesaid charge, also provided for
(1) the offer of reinstatement, with back pay, to Albert B. Holiday, Charles Washa,
Caywood Jones, Kenneth Warner, Toivo Donoho, and Virgil Jones; the payment of
$495 in back pay to Robert Harrell; and (3) the posting of a notice, a copy of
which was attached to and made a part of said agreement, by Respondent in which,
among other things, Respondent stated (a) it would, upon request, bargain collec-
tively with the Unions as the exclusive representatives of all Respondent's employees,
exclusive of those persons within certain stated classifications, (b) it would not in
any manner interfere with, restrain, or coerce its employees in the exercise of the
rights guaranteed in Section 7 of the Act, and (c) it would not discourage member-
ship in the Unions or in any other labor organization.
B. The chronology of the facts relative to Case No. 21-CA-3483
Under date of March 5, Larry Dugan, business representative of Local 428, wrote
Murphy requesting him to fix an early date for the purpose of negotiating a collective-
bargaining contract with the Unions.
Under date of March 6, Murphy wrote Dugan that he would meet with the
Unions at his offices at 2 o'clock on the afternoon of March 17.7
On March 10, Respondent discharged Woodley, Guy, and Brandon.8
On March 12, the Unions filed with the Board a joint charge alleging that by
unlawfully discharging the above named three persons and by engaging in certain
other unlawful acts, Respondent violated Section 8(a)(1) and (3) of the Act.
On the same day, March 12, the Unions placed a picket line in front of
Respondent's premises whereupon 6 of remaining 17 employees walked off the job.
60n February 12, former employees Brandon, Chamberlain, Guy and on February 13,
former employee Woodley were also rehired
7 The letter explains that because of Murphy's court appearances he was unable to fix
an early date.
s These discharges are discussed in detail below under subsection III, C.
EVEREADY GARAGE, INC. 19
By letter dated March 19, Murphy wrote Dugan as follows:
On March 6, 1959, we advised you that the undersigned as a representative
of Eveready Garage, Inc., would be available to meet with representatives of
your Union and that of Local No. 83 on March 17th at 2:00 P.M. in my
office for the purposes of commencing contract negotiations covering wages,
hours and other conditions of employment affecting the employees of
Eveready Garage, Inc.
In view of the fact that we heard nothing from you or your attorneys
objecting to this suggested date, we assumed it was acceptable. We waited to
meet with you on March 17th, but neither you nor any other representative
from the Unions appeared. Notwithstanding the fact that you have placed
picket lines on Eveready Garage, Inc., we want you to know that we are
desirous of meeting with you and commencing contract negotiations.
We will, therefore, appreciate your advising us as to what your intentions
are in the matter and what date, if any, would be satisfactory with you for
such a meeting.
On March 24, Dugan replied to Murphy's March 19 letter as follows:
In reply to your above letter, in which you requested that I advise you of
the Union's intentions regarding a meeting with Eveready Garage, Inc., for
the purpose of attempting to negotiate a Collective Bargaining Agreement
covering the Company's employees, please be advised that, notwithstanding
the fact that-
1/ The Company has failed to comply with all the terms of the National
Labor Relations Board Settlement Agreement of March 3, 1959, in Case No.
21-CA-3334; and
2/ That the Company has failed to comply with all of the terms of the
Settlement Agreement of February 9, 1959, between the Company and the
respective Unions; and
3/ That the respective Unions now have a Picket Line around the
premises of the Company because of their alleged Unfair Labor Practices
against certain of their employees on March 10, 1959 and previous thereto-
Representatives of the International Union of Operating Engineers, Local
428, and Teamsters Union, Local 83, will be available to meet with author-
ized representatives of the Eveready Garage, Inc., on April 8, 1959, at 1:00
P.M. in the Engineers Hall at 20 South 16th Avenue, Phoenix, Arizona, for
the purpose of attempting to negotiate a Collective Bargaining Agreement.
Nothing contained herein shall be construed as a waiver on the part of any
of the Company's previous or present employees and/or the International
Union of Operating Engineers, Local 482, and/or Teamsters Union, Local 83,
of any rights they may have arising out of the above matters.
As suggested in Dugan's March 24 letter, Murphy went to the offices of Local 428
at the appointed hour on April 8. When he asked to see Dugan, he was informed
by the receptionist that Dugan was not at the hall. Whereupon Murphy left.
A bargaining meeting was arranged for and held on April 20, at the offices of
Local 428. There, each party was represented by a duly qualified representative.
After some discussion was had relative to the failure of the ,parties to meet on April
8, Murphy inquired whether the Unions intended to negotiate a separate collective-
bargaining contract or would insist that Respondent agree to be bound by the
terms and conditions of the contract which the Associated General Contractors then
had with the various construction unions. Dugan replied that the Unions "didn't
know at that time," adding that since Respondent had failed to carry out all the
terms of the settlement agreement and had discriminatorily fired three men, he
thought those matters would have to be settled "before we proceeded to negotiate a
contract or went any further in negotiations." Murphy then stated he would ascertain
if Respondent would reinstate the three men in question and whether Respondent
would discharge the men it had hired as replacements during the first strike.
No other meetings were held between the Unions and Respondent.9
C. The alleged discriminatory discharges
On March 10, Respondent discharged Woodley, Guy, and Brandon. The com-
plaint alleged, and the General Counsel contended at the hearing, that their dis-
charges were violative of the Act.
B It is significant to note that at no time did the Unions, or either of them, submit to
Respondent any written contract proposals.
20 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Woodley was first hired by Respondent on November 15, 1958. Unlike most of
the persons in Respondent's employ when it first commenced operations, Woodley
had not previously worked for Long.
Woodley attended a meeting called by the Unions at the hall of Local 428 on
November 27, 1958. This meeting was attended by practically all of Respondent's
employees. There Woodley signed a Local 428 membership application card.10
The following day, November 28, after representatives of the Unions had visited
the plant and had demanded that Respondent recognize and bargain with the Unions
as the bargaining representatives of Respondent's employees, Respondent discharged
four employees. The Unions within a few hours of said discharges, placed a picket
line around Respondent 's plant. Seven of the remaining 12 employees , including
Woodley, quit their jobs. The remaining five employees continued to work.
Woodley, although his name did not appear on any of the aforementioned settle-
ment agreement documents, was reinstated on February 13.
In support of its contention that Woodley's discharge was for just cause and not
for the reasons advanced by the General Counsel, Respondent points to the following
evidence, which the Trial Examiner finds to be credible:
On February 13, Woodley refused to move a blade when he was instructed to do
so by a Respondent supervisor, on February 15 he refused to use a "toe yin" gauge
when ordered to do so and insisted upon using a steel tape; on February 14 and
again on February 18, Vice President Patterson had to direct Woodley to quit talking
to an outside salesman and return to his job; on or about February 18, Woodley,
although not authorized to do so, took it upon himself to weld a truck stake. He
did the job so poorly that the stake had to be removed; on or about February 19 he
painted a truck in a sloppy manner, on or about February 22 Woodley was again
warned by Patterson to discontinue his conversation with an outside salesman, and
on or about February 27 Woodley failed to follow instructions in removing and
replacing a truck grille. On another occasion Woodley was properly reprimanded
for failing to properly remove all the bushings from a certain truck, for again
talking to an outside salesman ; and for failing to install trailer tongues in a proper
manner.
Guy was first hired on November 17, 1958. He never worked for Long He
obtained his job through his father-in-law, a friend of Patterson. Guy signed a
Local 83 membership application card at the Unions' November 27 meeting.
When Guy went to the plant on November 28 to get his weekly pay check,
Patterson asked him if he "wanted to work Saturdays." Guy replied that he would
let Patterson know, but he never did so.
Although Guy's name does not appear upon any of the aforementioned settlement
agreement documents , he was offered reinstatement and reinstated on February 12.
The credible evidence discloses that Guy was discharged on March 10, for reasons
other than those advanced by the General Counsel. This conclusion is based upon
the following: On February 24, Guy so negligently operated the steam cleaning
apparatus that the equipment was put out of commission; on March 6, he failed to
notify Respondent that he had received a traffic ticket for overtime parking the
company truck which he was operating that day; and on March 9, Guy was sent to
pick up certain urgently needed parts at a company located about 8 miles from
Respondent's plant. Instead of expediting the mission, he was gone approximately
21/2 hours. His excuse for the delay was that he had gone to the wrong place despite
the fact that the name and address of the concern to which he was to go was on
the purchase order he had in his possession.
Brandon was employed by Long for approximately 3 years prior to being hired
by Respondent on November 17, 1958. When the picket line was established on
November 28, 1958, Brandon left the plant
The following morning, November 29, Long's purchasing agent, McPherson, who
was one of Brandon's supervisors while in Long's employ, telephoned Brandon to
inquire why he did not report for work. When Brandon replied that he did not want
to work behind the picket line, McPherson stated that the tire jobs which Brandon
had been performing for Long and Respondent would thereafter be done exclusively
on Long's property which was not being picketed. Brandon then reported for work.
He continued in Respondent's employ, but working on Long's tires and other
materials on Long's property, until about the end of 1958, when the tire equipment
was removed to Respondent's property. Brandon quit because he refused to cross
the picket line.
io Most, if not all, employees attending said meeting signed either Local 428 or Local 83
membership application cards.
EVEREADY GARAGE, INC. 21
Despite the fact that Brandon's name did not appear on any settlement agreement
documents, Respondent offered Brandon reinstatement and reinstated him on
February 12.
The credible evidence clearly establishes that Brandon was discharged on March
10, for failure to perform his work properly and for excessive talking. This finding
is based, in part, on the following quotation from Patterson's credited testimony:
Q. What were your reasons then for discharging [Brandon]?
A. Laziness, more than anything else; and talking.
Q. Can you explain to the Examiner a little more in detail how he talked?
A. Yes, sir. Delivery men and salesmen and Long's employees who would
come in to have flats fixed that were going down would be there in the yard
and Willie (Brandon) seized every opportunity he could get, instead of doing
his work laying there before him, to stop and shoot the breeze with them, rather
than get his work out first.
Q. Did he repair the tires that were brought promptly?
A. No, sir. There were a number of occasions that the other boy had to
help him.
Q. Did you ever warn Mr. Brandon with reference to his talking and not
getting his work out?
A. Yes, sir, I warned him. I said, "Willie [you] are going, to have to quit
this goofing off. We have had a pickup in the field since you were here before
and we have got to get these units out."
Q. Did he improve his work any after you talked to him about it?
A. No, sir, it had no effect on him.
D. Other purported discrimination
The General Counsel's contention, raised at the hearing, that after the Unions'
adherents returned to work in February their workweeks were shorter than those of
the nonunions is not sustained by the record as a whole.
Respondent's pay roll records, the correctness of which has not been questioned,
coupled with other credited evidence, discloses:
Washa, for the week ending February 18. worked 24 hours. This was the result
of Washa starting back to work in the middle of the pay period. For the week
ending February 25, he worked a total of 37 hours. Arthur Shaw, who was also a
mechanic on the second shift and a nonunion man, worked only 16 hours. For the
week ending March 4, Washa worked 20 hours by reason of the fact that he had hurt
his hand and also because he absented himself from work to get married. For the
week ending March 11, Washa worked only I day, having returned to work that day
after his wedding trip.
Woodley, for the week ending February 18, worked 32 hours having returned to
work late in that pay period For the week ending February 25, Woodley worked
40 hours. For the week ending March 4, he worked 381/2 hours having taken time
off to go to the doctor. He was fired on March 10.
Virgil Jones worked 40 hours the week of February 18; 25 hours the week ending
February 25. (This compares with 16 hours of work performed by Arthur Shaw, a
nonunion man performing the same type of work as Jones for the same period);
during the week ending March 4, Jones worked 40 hours and on the week ending
March 11, he quit.
Caywood Jones worked a 40-hour week the week ending February 18; for the week
ending February 25, he worked 241/2 hours as compared to 16 hours for the same
period worked by Arthur Shaw doing comparable work; during the week ending
March 4, he worked 40 hours, and the week ending March 11, he quit.
Donoho, for the week ending February 18, worked 36 hours, having started to
work in the middle of the pay period. For the week ending February 25, he worked
36 hours having quit early one day to go home with Woodley. For the week ending
March 4, he worked 40 hours. He quit during the week ending March 11.
Chamberlain, during the week ending February 18, worked 40 hours. During the
week of February 25 he quit.
Holiday, during each of the weeks worked from February 11 to March 11, he
worked 40 hours each week.
Brandon, worked 40 hours each week after returning to work, except for the last
week when he was fired.
Guy worked 36 hours for the week ending February 18, having started in the
middle of the pay period. For the week ending February 25, he worked 36 hours
by reason of the fact that the steam cleaning plant broke down through his own
negligence. For the week ending March 4, he worked 40 hours. On March 10, he
was fired.
22 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Warner, upon returning to work for the week ending February 18, worked 32
hours, having started 1 day late for that pay period. During the week ending Febru-
ary 25 he worked 36 hours, having quit early on Saturday. For the week ending
March 4, he worked 40 hours. On March 11 he quit.
Analysis of the payroll records further reflect that nonunion men such as Barnett,
Claunch, Gruhler, Arthur Shaw, and David Shaw also had short workweeks during
this same period of time.
Contrary to the General Counsel's contention the record reveals no discrimination
in assignment of duties to strikers who returned to work. Woodley testified that he
had been switched from mechanical work to painting and body work. By his own
admission this transfer was made at his request.
Guy, who was a helper on the third shift prior to the first strike, was transferred
to a more desirable shift upon his return to work in February.
Likewise, the record fails to sustain the General Counsel's contention that after
the men returned to work in February, Respondent discriminated against the ad-
herents to the Union in the allotment of overtime work.
The General Counsel's further contention that Brandon was discriminated against,
upon his return to work in February, by being refused field work is not supported by
the record as a whole." This change in job duties was solely brought about at the
request of Long's general superintendent who requested Patterson not to send
Brandon into the field to change tires or to do any other work there because Brandon
interfered with Long's employees by engaging them in extensive conversation.
The record is also devoid of any credible evidence that Respondent failed or re-
fused to bargain collectively with the Unions after the execution of the settlement
agreement or in any manner unlawfully interfered with the employee's statutory
rights.
E. Concluding findings
Upon the entire record in the case, the Trial Examiner is convinced, and finds,
that the General Counsel has failed to prove by a fair preponderance of the credible
evidence that Respondent has violated the terms of the settlement agreement or
has committed any unfair labor practices since its execution. Therefore, pursuant
to the long standing Board policy,12 the Trial Examiner honors the settlement agree-
ment and declines to consider any incident which took place prior thereto as a basis
of a finding of an unfair labor practice. Accordingly, the Trial Examiner will recom-
mend that the consolidated complaint be dismissed, in its entirety.
Upon the basis of the foregoing findings of fact, and upon the record as a whole,
the Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. Eveready Garage, Inc., Phoenix, Arizona, is engaged in, and during all times
material was engaged in, commerce within the meaning of Section 2(6) and (7) of
the Act.
2. Local 428 and Local 83 are labor organizations within the meaning of Section
2(5) of the Act.
3. The allegations of the consolidated complaint that Respondent has engaged in
and is engaging in unfair labor practices within the meaning of Section 8 (a) (1),
(3), and (5) of the Act have not been sustained by substantial evidence.
[Recommendations omitted from publication.]
11 This job pays more per hour and a field worker normally receives overtime work.
12 See, for example, Wooster Brass Company, 80 NLRB 1633, and cases cited therein.
Local 20, Bakery and Confectionery Workers International
Union of America [Berwick Cake Company] and Samuel
lannuzzi. Case No. 1-CB-525. January 8, 1960
DECISION AND ORDER
On July 27, 1959, Trial Examiner John H. Eadie issued his Inter-
mediate Report in the above-entitled proceeding, finding that the
126 NLRB No. 3.