Lattimer Associates Limited

National Labor Relations Board - Board Decisions

Sep 30, 1981

258 N.L.R.B. 1012 (N.L.R.B. 1981)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Lattimer Associates Limited and United Mine
Workers of America, District 25. Case 4-CA-
11111-1
September 30, 1981
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
ZIMMERMAN
On April 16, 1981, Administrative Law Judge
Frank H. Itkin issued the attached Decision in this
proceeding. Thereafter, the Charging Party filed a
brief in support of the Administrative Law Judge's
Decision, Respondent filed exceptions and support-
ing brief, and the General Counsel filed a cross-ex-
ception and supporting brief.
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, cross-ex-
ception, and briefs and has decided to affirm the
rulings, findings, 2 and conclusions3 of the Adminis-
trative Law Judge and to adopt his recommended
Order,4 as modified herein.5
'The General Counsel excepts to the admission into evidence of the
transcript, as well as the decision of the Pennsylvania Unemployment
Compensation Board pertaining to employee Fichter's claim for benefits.
We find merit in the exception insofar as it pertains to the admission into
evidence of the transcript of the hearing. It is well established that the
decision of the Administrative Law Judge, as well as the Board, "must be
based upon an independent consideration and evaluation of the evidence
received in this unfair labor practice proceeding." Furthermore, it was
not shown that the unfair labor practice issue was considered by the state
agency in reaching its decision. Justak Brothers and Company, Inc., 253
NLRB 1054 (1981).
2 Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to
overrule an administrative law judge's resolutions with respect to credi-
bility unless the clear preponderance of all of the relevant evidence con-
vinces us that the resolutions are incorrect. Standard Dry Wall Products,
Inc.. 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have
carefully examined the record and find no basis for reversing his findings.
We further find that record evidence shows that Superintendent
Tanner had knowledge of employee discussions regarding union activity
as early as the fall of 1979, and that, according to the credited testimony
of employee Lafayette Fichter, in late April or early May 1980, Tanner
called Fichter into the scale house, and commented, after giving Fichter
his work assignment, that, "if I find out who the leader of his union is,
I'll send them packing down the road."
I Member Jenkins does not rely on Wright Line, a Division oj' Wright
Line, Inc., 251 NLRB 1085 (1980). In his view, that decision concerns
identifying the cause of discharge where a genuine lawful and a genuine
unlawful reason exist. Where, as here, the asserted lawful reason is found
to be a pretext, only one genuine reason remains-the unlawful one. To
attempt to apply Wright Line in such a situation is futile. confusing, and
misleading.
' In accordance with his dissent in Olympic Medical Corporation, 250
NLRB 146 (1980), Member Jenkins would award interest on the backpay
due based on the formula set forth therein.
' We have modified the Administrative Law Judge's recommended
Order to include the full reinstatement language traditionally provided by
the Board.
258 NLRB No. 132
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, as modi-
fied below, and hereby orders that the Respondent,
Lattimer Associates Limited, Hazle Township,
Pennsylvania, its officers, agents, successors, and
assigns, shall take the action set forth in the said
recommended Order, as so modified:
1. Substitute the following for paragraph 2(a):
"(a) Offer employee Lafayette Fichter immediate
and full reinstatement to his former job or, if that
job no longer exists, to a substantially equivalent
position, without prejudice to his seniority or other
rights and privileges preivously enjoyed, and make
him whole for any loss of earnings he may have
suffered due to the discrimination practiced against
him, with interest, calculated in the manner set
forth in this Decision."
2. Substitute the attached notice for that of the
Administrative Law Judge.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportu-
nity to present evidence and state their positions,
the National Labor Relations Board found that we
have violated the National Labor Relations Act, as
amended, and has ordered us to post this notice.
WE WILL NOT threaten our employees with
discharge because of their union activities.
WE WILL NOT discourage membership in
United Mine Workers of America, District 25,
or in any other labor organization, by discri-
minatorily discharging any of our employees
or in any other manner discriminating against
them with respect to their hire or tenure of
employment or any term or condition of em-
ployment.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employ-
ees in the exercise of the rights guaranteed
them in Section 7 of the National Labor Rela-
tions Act.
WE WIL.L offer employee Lafayette Fichter
immediate and full reinstatment to his former
job or, if that job no longer exists, to a sub-
stantially equivalent position, without preju-
dice to his seniority or other rights and privi-
leges previously enjoyed and make him whole
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LATTIMER ASSOCIATES LIMITED
for any loss of earnings he may have suffered
due to the discrimination practiced against
him, with interest.
LATTIMER ASSOCIATES LIMITED
DECISION
FRANK H. IrKIN, Administrative Law Judge: An
unfair labor practice charge was filed in this case on
May 29 and a complaint issued on July 3, 1980. A hear-
ing was conducted in Hazleton, Pennsylvania, on Janu-
ary 8 and 9, 1981. The General Counsel contends that
Respondent Employer violated Section 8(a)(1) and (3) of
the National Labor Relations Act by threatening to dis-
charge and later discharging employee Lafayette Fichter
because of his union activities. Respondent denies that it
has violated the Act. Upon the entire record, including
my observation of the witnesses, and after due considera-
tion of the briefs of all counsel, I make the following:
FINDINGS OF FACT
Respondent Lattimer Associates Limited is engaged in
the business of reclaiming coal from "culm banks," or
discarded slag deposits, in Hazle Township, Pennsylva-
nia. Respondent is admittedly an employer engaged in
commerce. Charging Party Union is admittedly a labor
organization. On April 7, 1980, Charging Party Union
filed a representation petition with the Board's Regional
Director seeking to represent a unit consisting of the
Employer's some 16 production and maintenance em-
ployees. On April 30, the Regional Director approved a
Stipulation for Certification Upon a Consent Election.
On May 30, the Regional Director conducted an elec-
tion. The tally of ballots shows that of approximately 16
eligible voters, 16 ballots were cast; 8 were for the
Union; 4 were against the Union; and 4 were challenged.
On July 15, the Board issued its Decision and Certifica-
tion of Representative. (See G.C. Exhs. 3 and 4, Case 4-
RC-14144.) The parties have since entered into a collec-
tive-bargaining agreement.
Lafayette Fichter testified that he worked for Re-
spondent about I year prior to his discharge on May 8,
1980; that he was a bulldozer operator; and that "I went
up these high [culm or slag] banks. They were several
hundred feet high, very uneven, and my job was to push
the material down off the edge of the cliff so that it
could be [re]covered later."
Fichter explained that, in his view, the "machine I had
to run . . . was extremely dangerous" because it had
"wheels" instead of "tracks"; and "this machine is actual-
ly a loader with a dozer blade on it. In other words, pic-
ture a huge bulldozer drive vehicle up there with all
these drive shafts on it. If one of them breaks, you have
some very very serious problems, which I encountered
already."'
In addition, Fichter noted that both Company General
Manager George Jones and Superintendent Richard
Tanner had told Fichter repeatedly that he was doing
'Fichter had operated a bulldozer and related equipment for some 20
years.
"good work" in "bringing the material down to where
they wanted it." Fichter had been informed that, because
of his good work, he "wouldn't have to wait for the
monthly period to be given a higher rate."
Fichter was laid off during December 1979. He was
recalled a few weeks later and "helped install new ma-
chinery and new pipes." Later. as he testified, about mid-
February 1980, "they put me outside running a dozer to
push some of the refuse banks away and, later, [back] up
on the high bank."
Fichter testified that, commencing in the fall of 1979,
he and a coworker "first started the idea of bringing the
Union into Lattimer Associates." Fichter thereafter
spoke with his fellow employees about the advantages of
union representation. "Most of the conversation[s] took
place in the work shop area in the rear of the plant." Su-
perintendent Tanner, during these "discussions," was
"very close"-"within earshot." Subsequently, about
March 1980, Fichter telephoned Angelo Matz, the
Union's district representative, and requested his organi-
zational assistance. Matz met with the employees; union
authorization cards were signed; and, as noted, a repre-
sentation petition was filed on April 7, 1980.
The Employer opposed the Union's organizational
effort at meetings of the assembled employees. See Gen-
eral Counsel's Exhibits 4, 5, 6, and 7, literature distribut-
ed by the Company to the employees in opposition to
the Union's drive. As stated, a representation election
was scheduled for May 30, 1980. In addition, Fichter re-
called, during late April or early May 1980, Superintend-
ent Tanner "called me [Fichter] into the scale house . . .
and he was giving me my work assignment, and then he
made the comment that if I [Tanner] find out who [is]
the leader of this Union I'll send them packing down the
road .... " Fichter "didn't comment"-he "just walked
out the door and got on [his] machine .... "
Fichter further testified that on or about May 5, 1980,
Superintendent Tanner "wanted me to push the . . .
waste material on the lower end of the [culm or slag]
bank, before I went out on top of my normal high strip-
ping bank. And again, when I came down for quitting
time, he wanted me to push them over again."
Fichter "did it." Fichter, however, "told him [Tanner]
that the first thing in the morning was fine, and so was
the evening, but the additional [pushing of the waste ma-
terial at the bottom of the bank] was the loader opera-
tor's job."
Tanner explained to Fichter: "the new plan" was "to
push material over" at the bottom of the bank "first
thing in the morning and in the afternoon." Fichter fur-
ther recalled:
Tanner had told me, push the material over, and I
just told him a different way that it should be done,
being I have experience with this, but I didn't argue
with him. I pushed material over.
During this same week, on or about May 5, Fichter
had the following discussion with Tanner:
I [Fichter] told Mr. Tanner that I noticed the ma-
chine [Fichter's bulldozer] was being used by some-
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
one who didn't have any experience because of the
way the blade was curled back .... Tanner
walked away.... The following day, I brought it
to his attention again.... He said he would put
somebody on the machine, whoever he wanted to,
it was their machine ....
Tanner identified night employee A. Lescowitch as the
worker using Fichter's machine. Fichter replied:
I [Fichter] said the man's [Lescowitch] not an expe-
rienced operator, and that if he abuses the machine
in any manner, my life would depend on it on top
of the bank.
Fichter recalled that about 10 p.m. on the evening of
May 7, 1980,2 he returned to the Employer's worksite
"to observe how Lescowitch was operating that ma-
chine." Fichter explained:
I parked my pick-up and I walked directly down to
where Lescowitch at the time was operating my
machine, and I [stood] by the parts trailer watching.
I watched him for about ten minutes.
He didn't see me until [he] got off the machine and
crawled up the ladder, and then he saw me... . He
came back down and asked me what I was doing
there . ... I said to him, "How come you're oper-
ating this machine. You're not qualified to operate
it" ... .. He said, "I will do anything that Mr.
Tanner says to do." . . . And then I said to him,
"You're taking another job away from a man that is
presently unemployed. When the Union gets in
here, you won't be doing this." I turned around and
walked away.
Fichter also visited with some of the employees then
working. He recalled that he spent some 15 to 20 min-
utes at the site on the evening of May 7.
Fichter reported for work the next morning, May 8,
1980. Superintendent Tanner instructed Fichter that
General Manager Jones wanted to see him. Fichter went
to Jones' office. There, in the presence of Tanner, Jones
and Fichter had the following conversation:
[H]e [Jones] said, I understand you [Fichter] were
down at the job site last night. And, he said what
reason did you come down for. And, I told him I
wanted to see how Lescowitch was operating the
machine. He said, "bullshit, you came down to in-
timidate that employee .... So, therefore, I am
going to suspend you."
Fichter told Jones: "Well, I'm sorry, I shouldn't have
come down here and talked to him." Jones replied: ". . .
it's too late to say your sorry if you murder someone."
Fichter asked: "Am I fired." Jones responded: "No,
2 Fichter's work hours were then 7 a.m. to 4:30 p.m.
you're suspended. Take your clothing and stuff out of
your locker and clear out."
About 4 days later, Tanner telephoned Fichter "in-
structing" him "to come down to the Hazleton office,
where Jones said he was firing [Fichter] after reviewing
the situation .... " Jones read the following letter,
dated May 12, 1980, to Fichter (G.C. Exh. 8):
After a thorough review of your recent behavior
we advise you that your employment is terminated
with effect from May 8, 1980. This action was taken
as a result of your acts of insubordination, trespass-
ing and intimidation of an employee while on duty.3
Angelo Matz, district representative for the Union, re-
called that Fichter telephoned him during early 1980 and
"asked what procedures would have to be followed to
organize Lattimer Associates .... " A meeting with the
employees was arranged by Fichter. Fichter and eight
other employees attended the meeting, and a representa-
tion petition was later filed.
James Dietrich, an employee of Respondent, testified
that he would often return to the Employer's worksite
after his working hours and visit with his fellow employ-
ees; that he was never told such visits constitute "an un-
lawful trespass on the Employer's property"; and that
Fichter had spoken to him "about a Union."4 In addition,
Dietrich characterized the "machine" which was operat-
ed by Fichter as an "awkward machine and it's not gen-
erally built for the terrain .... " Dietrich added: "...
if it was not operated properly . . . you could internally
do damage to the drive shafts of the axles, hydraulic . . .
if you do not know what you are doing . . . you can
bust them and you will not know it at the moment
.... " This machine was operated "on the top of the
bank . . . now 275 feet up in the air ... ."5
Eugene Traub, employed by Respondent, testified that
he worked on the evening of May 7; that he observed
Fichter there that evening; that Fichter made no attempt
to conceal his presence; that they both spoke briefly; and
that other employees have returned to the site after their
work hours. Traub noted that Fichter earlier solicited his
organizational support. Further, Traub explained that "at
the mine site" "almost every day there's some kind of ar-
gument." Traub added: "As a matter of fact . .. I even
' On cross-examination. Fichter explained that Tanner originally in-
structed him, on May 5, that he wanted the "accumulation of refuse on
the lower end" of the bank "removed once in the morning before I went
up on the high hill and once again when I came down at quitting time."
Fichter added: "When I came down that day fir the coffee wagon.
[Tanner] said that I should push the refuse on the lower end. Fichter tes-
tified:
I complained about it because at the time the plant was down. the
loader operator could have removed [the refuse at the lower end]
instead of sitting there looking, but I removed it.
'Dietrich recalled that during his prehire interview in June 1979. Su-
perintendent Tanner "said there would be basically no reason to have a
Union here at this jobsite because of the family relationship as far as
benefits and wages are concerned." This conversation is not alleged to be
unlawful and was received for "background purposes only."
Employce Robert Merola also testified that he too returned to the
Employer's worksite after hours to visit with his coworkers and that he
was never told that this constituted "an unlawful trespass" Merola re-
called that Fichter solicited his union support.
1014
LATTIMER ASSOCIATES LIMITED
had an argument with Mr. Tanner. We would argue now
and then, but that's as far as it would go. We would just
blow off steam and that would be it.
Mark Leonard, employed by Respondent, testified that
he was working the night shift on May 7; that he saw
and spoke with Fichter that evening for about 10 min-
utes; that Fichter made no attempt to conceal his pres-
ence; that Fichter and other employees had visited the
site after hours on previous occasions; and that Fichter
spoke to him "about a Union." '
Company Superintendent Richard Tanner generally
denied "threatening" employee Fichter "about Union ac-
tivity." Tanner testified that he instructed Fichter "to
remove the refuse" at the bottom of the slag bank at 9:30
a.m. and at 12 noon on May 5 and that Fichter did not
remove the "refuse piles" as instructed. Tanner asserted-
ly "discussed this at length" with Manager George Jones
and "we had decided" to "train" another employee,
Lescowitch, "for the job."7 Tanner claimed that he re-
peated his instructions to Fichter on May 6 and again on
May 7 and that Fichter again refused "to remove the
refuse."
Elsewhere, Tanner acknowledged that:
Mr. Fichter did remove the refuse the first thing in
the morning. That was the refuse that accumulated
the night before ....
Tanner assertedly wanted Fichter to perform this chore
"two more times during his shift." Tanner also testified
in part as follows:
Q. Is Mr. Lescowitch the loader operator?
A. No, sir, he's responsible for activities down at
the bottom of the hill. He's the shaker operator.
Q. But, you said Mr. Lescowitch was the other
person available to remove the refuse that Mr.
Fichter didn't remove. That was what your answer
was.
A. That's right, because at night we had less the
amount of manpower operating the plant.
Q. But, if the refuse was causing the problem, it
was causing no problems during the day?
A. It was, sir, but the loader operator, he had
taken care of it to a point.
Q. Someone else was responsible for the refuse
pile?
A. That's right.
Q. But, you said Mr. Lescowitch was responsible
for it.
A. George and myself, Mr. Jones and myself, had
decided to use Mr. Lescowitch on the night shift
6 Leonard testified that during his prehire interview. Company Man-
ager Jones said "this would he a non-Union jobh." Leonard further testi-
fed that "arguments" among employees t work are "frequent" and hal
he too visited the sitre after work hours and as never disciplined for
such conduct. On cross-examination, Leonard admitted having an argu-
ment with coworker l.escowitch on May 7. calling him an "asshole" and
threatening to throw him "down the steps.'
' Lescowitch. as discussed below. did not work on the same shift with
Fichter. Lescovlitch 'was the ight shift "shaker machine" operator
because the machine was sitting. there was nobody
using that machine at night.
Q. Did you do anything else [after Fichter re-
fused]?
A. I informed Mr. Jones.
Q. Did you do anything else other than that'?
A. I requested the loader operator who was
working in the vicinity that he has to work a little
harder. He may not be able to take a break and
we'll just have to do the best we can with what we
have.
Q. Before May 5th, whose job was it to normally
remove the refuse pile?
A. I beg your pardon?
Q. Befoe May 5th, I assume that there were the
same types of refuse piles that built up?
A. Yes, sir.
Q. Who removed that?
A. We did not have a severe refuse problem as
we did.
Q. It wasn't as severe?
A. No.
Q. But, there was a problem?
A. Right.
Q. And who removed them?
A. The loader operator who works in that area.
Q. Now, what does this loader operator normally
do?
A. He picks up the material from the bottom of
the bank which Mr. Fichter has pushed from the
top. He deposits it through a grizzly, that is a sta-
tionary screen. Thc smaller material goes through
the grizzly is what we want. Larger pieces, tires
and junk, they are collected and they are deposited
in a designated area.
Q. Now, how far away from where this refuse
pile builds up does the loader operator work?
A. He is approximately two different elevations, I
would say 50 feet.
Q. And is that the primary responsibility of the
loader operator is to pick up the material at the
bottom of the bank and put it in this grizzly?
A. Yes, sir.
Q. [Does] the loader operator have any other ob-
ligations aside from loading the grizzly?
A. Yes, sir. At that time, it was to remove the
refuse.
Q. But. that's the only other obligation. to
remove the refuse and load the grizzly?''
A. And to load the grizzly, yes, sir, with the size
of machine that he had.
Q. Now. Mr. Fichter works at the top of the
bank; is that correct?
1015
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
A. Yes.
Q. And that bank is how high?
A. It's approximately 80 feet, maybe.
Q. How many times a day would the refuse pile
need to be moved?
A. At that particular time, we decided that twice
would be good for a start.
Q. Twice at the beginning of the day and at the
end of the day?
A. Sometimes in the middle of the day and some-
times towards the end of the day.
Q. But, just two times?
A. Right, sir.
Q. Well, then, you testified that Mr. Fichter
moved it one morning at 6:30?
A. Yes, sir.
Q. During these three days that you testified to,
May 5th, 6th and 7th, could the loader operator
move any of this refuse pile?
A. In the course of the day, yes, sir.
Q. Did he?
A. Yes, sir.
Q. Did you at any time make a recommendation
that Mr. Fichter be disciplined?
A. No.
Q. Did you have any discussion with Mr. Jones
about Mr. Fichter prior to the decision to terminate
him?
A. No.
Company General Manager George Jones testified
that employee Fichter "was a good operator of the
equipment having many years of experience in that
equipment" and that he, Jones, prepared the May 12
letter, General Counsel's Exhibit 8, to Fichter stating the
"reasons" for Fichter's firing. Jones claimed that the
"reasons" for "terminating Fichter" were:
[T]he man had refused to follow instructions; . . .
he had intimidated an employee while on duty; . . .
he had following a very heated discussion with our
superintendent; . . . [he] presented himself on the
property after dark and behaved in an extremely
suspicious manner ....
General Counsel's Exhibit 8 lists as reasons for the termi-
nation "acts of insubordination, trespassing and intimida-
tion of an employee while on duty." Further, Jones ac-
knowledged that, in his prehearing affidavit given to a
Board agent, there is no "reference to insubordination or
an incident where Mr. Fichter refused to work.
Jones testified:
Q. Is it accurate to state again that that affidavit
was not referred [sic] to any alleged incident in-
volving Mr. Tanner or refusing work orders for
Mr. Tanner?
A. It's accurate to state that they're not included
in the affidavit, yes.
Jones suspended Fichter on the morning of May 8
after having spoken to Tanner. Jones had not yet spoken
to Lescowitch about the May 7 incident. Jones recalled
that he first discussed the May 7 incident with
Lescowitch late Thursday, May 8, or Friday, May 9. 0
Jones was apprised by Tanner and/or Lescowitch that,
on the evening of May 7:
[H]e [Fichter] told Mr. Lescowitch that he
[Lescowitch] was doing the job of more than one
man and that when the Union gets in, he
[Lescowitch] would not have a job.
Jones also testified, in part as follows:
Q. Now, with regard to Mr. Fichter, when did it
first come to your attention that difficulties were
being experienced with Mr. Fichter?
A. Well, it was essentially on Wednesday, the
7th, during the day this problem first came to my
attention.
Q. During the day? And would you tell us what
it was that came to your attention?
A. The fact that Richard Tanner was not being
able to get Fichter to comply with his instructions
to move the piles of material during the day.
Q. Now, was there any decision made at that
time as to what was to be done with Mr. Fichter?
A. No, not during the course of the day on
Wednesday. This was a matter that was brought to
my attention and it was a matter that would have to
have our attention, but a decision was not made on
that day.
Q. Now, the next morning what happened with
regard to Fichter?
A. The next morning, I presented myself to the
plant at a time prior to the normal starting time of
6:30. 1 was there about quarter after 6, and we, I
was briefed by Mr. Tanner and subsequently had a
meeting with Mr. Fichter.
Q. Would you tell us what the gist of the conver-
sation as best as you can recall it with Mr. Fichter?
THE. WITrNESS: This is now the morning of the
8th.. I confronted Mr. Fichter and I said to him
that you had been down at the site last night, is that
correct. He said yes, it was. I said what was the
purpose of your visit. He said I came down here to
check on the operation of my dozer, and I told him
' latcr, Jories explained that he irst spoke ith l.cco itch on Friday,
May 9. Jones then "composed" Resp. Exh 4. a t pe.ritcn statemenrt,
he signed h le.cscowitch.
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LATTIMER ASSOCIATES LIMITED
at that time that that was baloney, in fact he had
come down there for the purposes of intimidating,
first of all, trespassing the premises, intimidating an
employee while on duty, countermanding the
instructions of our superintendent, and that I in fact
was not prepared to tolerate that kind of behavior
and that in fact, placed him on immediate suspen-
sion. He asked me did that mean that I was fired, to
which I replied, no, you have been around long
enough to know that that means you are suspended
and that I will be in touch with you further. He
then requested of me that whether he may say
something, to which I gave him permission. And he
said that I believe that I stick my nose in, I am too
gung-ho, I stick my nose in where it doesn't belong,
that the actions that I, of the night before, in fact I
made a foolish mistake, that I shouldn't have done
them. To which I replied that a man must take into
consideration the judgements before he does them,
not after, to which I gave him an example,9 and fur-
ther then advised him that I was not going to toler-
ate that behavior and then advised him that he was
to leave the premises and I would be in touch with
him.
Jones added "suspected sabotage" as a "reason" for
Fichter's discharge. Elsewhere, Jones acknowledged that
there "was no evidence produced" to confirm this of-
fense. Further, Jones believed that the May 7 Fichter-
Lescowitch incident took "about five minutes." Jones
discussed his firing of Fichter with his attorney because
"it was my concern that in fact my . . . terminating
Fichter might be placing Fichter as a martyr in the case
and . . . it might well move against us in the forthcom-
ing election .... "
Anthony Lescowitch was subpenaed by Respondent to
testify in this case. He had testified earlier in the state un-
employment compensation proceedings in support of the
Employer's contention that employee Fichter's wage
claim should be rejected. (See Resp. Exh. 5.) Lescowitch
asserted before me that he did not want to testify. (See
Resp. Exh. 2.) He nevertheless related the May 7 inci-
dent involving Fichter. He also gave, as noted supra, a
written statement to Jones. (See Resp. Exh. 4.)
Lescowitch claimed that Fichter, on the evening of May
7, was, in effect, sneaking about his machine; that he
yelled at Fichter two or three times; that he asked
Fichter what he was doing there; and that Fichter "start-
ed hollering because I was running the bulldozer."
Lescowitch attributed to Fichter "dirty words."
Lescowitch added: "he said I had my own job to do,
that job belonged to someone else"-"if the Union
comes in I wouldn't have a job." The entire incident
lasted "maybe about two minutes, that's all." Lescowitch
related the incident to Tanner, as well as Fichter's
"Union statements."'
IJones later recalled the "example" he gave Fichter as follos: s"
in the court trial of a murderer, the courl does not take his remorse into
consideration . . ."
"' William Heapps testified that he has entered into conltract% with Rc-
spondenti "to do site excavation": that he instructed l.escositch on the
use of the hulldozer which Fichter had oper;ltcd: and that. i his opion.
Lescowitch could do nothing during his use of the nmachie "that x.ould
I credit the testimony of Fichter. Matz. Dietrich.
Merola, Traub, and Leonard as detailed supra. Their tes-
timony is in part mutually corroborative and, relying
upon demeanor, they impressed me as trustworthy and
reliable witnesses. On the other hand, the testimony of
Tanner and Jones was, at times, unclear, contradictory,
and confusing. Insofar as the above-quoted testimony of
Fichter, Matz, Dietrich, Merola, Traub, and Leonard dif-
fers with the testimony of Tanner and Jones, I credit the
former as more complete, accurate, and reliable. In addi-
tion, as discussed below, I reject as pretextual manage-
ment's asserted shifting and unsubstantiated reasons for
the sudden firing of Fichter. I am persuaded instead here
that management summarily terminated Fichter, regard-
ed previously as a good worker, after he disclosed his
strong union support on May 7, in an attempt to discour-
age the employees from supporting the Union in the
scheduled Board election. Further, Lescowitch, as noted,
was a most reluctant witness. I find his account of the
May 7 incident to be unreliable and untrustworthy. I find
here that Fichter's recollection of this brief incident to
be more complete and trustworthy. "
Discussion
The General Counsel argues that Respondent threat-
ened to discharge and discharged employee Fichter be-
cause of his union activities, in violation of Section
8(a)(1) and (3) of the Act. Respondent argues (br. pp. 2-
3) that "Fichter failed to carry out work directives and
improperly threatened a fellow employee . . . and for
these reasons was discharged from employment." How-
ever, it has long been settled law that "the Board is not
compelled to accept the employer's statement" of the
reason for an employee's discharge "when there is rea-
sonable cause for believing that the ground put forward
by the employer was not the true one, and that the real
reason was the employer's dissatisfaction with the em-
ployee's" union activities. The Great Atlantic and Pacific
Tea Co., Inc. v. N.L.R.B., 354 F.2d 707, 709 (5th Cir.
1966). And, recently, in Wright Line, a Division of Wright
Line, Inc., 251 NLRB 1083 (1980), the Board held that,
in cases raising the question whether an employer's disci-
pline of an employee was motivated by lawful or unlaw-
ful reasons, it would require the General Counsel to es-
tablish a prima facie showing that protected conduct was
a "motivating factor" for the employer's decision. The
burden would then shift to the employer to show that
the same action would have taken place even in the ab-
sence of such protected activity.
create [any] inherent danger in the machine for a subsequent operator
Further. Heapps noted that the culmn or slag bank "should be leveled off
so this rubber tire machine would not be going up and down--other-
wse. tleapps perceised no danger in using this machine on the top of the
bank
i Isnofar as Hicapps' testtimon: concernlin g the particular bulldoztr dif-
fer, fronm the tetlnionl) of Fichtier and Dietrich I fiTd that Fic hier and
Dietrich have more credibly explained the nature of ad dangers coln-
cetted ith the use of this equipment on top of a lag bank. Charging
Parl has filed a lotiolt to correct the transcript It is unotpposed except
with respect to item 9 All the proposed changes pro:perl rnctt the te,-
timon'l
1017
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Applying these principles to the credited evidence of
record, as recited supra, I find and conclude that Re-
spondent unlawfully threatened and later discharged em-
ployee Fichter because of his union activities; that Re-
spondent's asserted reasons for the firing of this employ-
ee are plainly pretextual and not the real reasons for this
disciplinary action; that the General Counsel, under the
Wright Line rationale, has made a prima facie showing
that Fichter's union activities were a "motivating factor"
for the Employer's action; and that Respondent has not
shown that the same action would have taken place
absent such union activity.
Fichter worked for the Employer over a year prior to
his suspension and firing on May 8, 1980. His job en-
tailed pushing material by bulldozer off the edge of a
high culm bank or slag pile so that the Employer could
reclaim and process coal at the bottom of this bank. He
was considered by management to be a good worker.
However, Fichter became chiefly responsible for the
Union's organizational effort. He enlisted the assistance
of the Union's district representative during March 1980;
he arranged for union meetings; and he solicited the
union support of his coworkers. Fichter's organizational
activities took pace on occasion at the Employer's facili-
ty within "earshot" of management, and, as noted, there
were then only some 16 employees working at the site.
The Union, on April 7, filed a representation petition
with the Board and an election was scheduled for May
20. Management actively opposed the Union's organiza-
tional drive. And, as Fichter credibly testified, during
late April or early May, Superintendent Tanner warned
Fichter: ". . . if I find out who the leader of this Union
[is], I'll send them packing down the road .... "
On or about May 5, management determined to let a
new employee, Lescowitch, then working on the shaker
machine during the evening shift, use Fichter's bulldozer
to remove refuse on the bottom of the slag bank. Fichter
discovered this and complained to management that "the
machine was being used by someone who didn't have
any experience because of the way the blade was curled
back .... " Fichter expressed his concern that "if he
[Lescowitch] abuses the machine in any manner, my life
would depend on it on top of the bank .... " Later,
during the evening of May 7, Fichter returned to the
Employer's premises after his working hours in order to
observe how Lescowitch was using his bulldozer. It was
not unusual for employees to return to the site after
working hours. Fichter's confrontation with Lescowitch
took about 2 minutes. As Fichter credibly recalled:
I [Fichter] said to him [Lescowitch], "How come
you're operating this machine. You're not qualified
to operate it" .... He said, "I will do anything
that Mr. Tanner says to do." . . . And then I stated
to him, "You're taking another job away from a
man that's presently unemployed. When the Union
gets in here, you won't be doing this."
Lescowitch related this conversation to Superintendent
Tanner who, in turn, spoke to Manager Jones.
On the following morning, May 8, Jones summarily
suspended Fichter. Jones had not yet interviewed
Lescowitch at the time. Jones equated Fichter's conduct
on the evening of May 7 with that of a "murderer" and
refused to accept Fichter's apology for confronting
Lescowitch. Jones later spoke with his attorney because,
as Jones acknowledged, "it was my concern that . . . my
. . . terminating Fichter might be placing Fichter as a
martyr . . . in which case it might well move against us
in the forthcoming election." Jones interviewed
Lescowitch on May 9 and "cor'. ;ed" a typewritten
statement for Lescowitch to sign. And, on May 12, Jones
fired Fichter effective May 8. (See G.C. Exh. 8.)
Management, in defense of its firing of Fichter, claims,
inter alia, that Fichter was "trespassing." The credited
evidence shows that employees often returned to the site
after working hours and were never disciplined for such
visits. Management claims that Fichter repeatedly re-
fused the work orders of Superintendent Tanner on May
5, 6, and 7, to remove the refuse on the bottom of the
bank. Fichter credibly denied refusing any such work
orders. Manager Jones' prehearing affidavit makes no
reference to "any alleged incident involving Mr. Tanner
and refusing work orders for Mr. Tanner." Indeed, I do
not believe that Manager Jones or Superintendent
Tanner would tolerate in such a manner Fichter's alleged
repeated refusals to perform work on three separate
days. In short, I believe here that management would
have responded more timely to such alleged refusals to
perform assigned work.
Management also claims that Fichter had a "heated
discussion" with Tanner on May 7. The credible evi-
dence of record does not support this assertion. Rather,
as Fichter credibly explained, Fichter stated his position
to Tanner with respect to the removal of the refuse on
the bottom of the slag bank, but still performed his as-
signed duties. Management also cites as a reason for
Fichter's firing, "suspicion of sabotage." The credible
evidence of record does not support such a claim of mis-
conduct. Management also cites the brief May 7 confron-
tation between Fichter and Lescowitch in support of its
disciplinary action. However, employees have often
argued strongly among themselves and with management
without being disciplined.
In short, management's asserted reasons for the sudden
firing of a good employee do not withstand close scruti-
ny. The weaknesses of these and related shifting, unsub-
stantiated and belated contentions only serve to bolster
an inference that management was really motivated by
the employee's strong union support which had just been
called to Manager Jones' attention. The representation
election was less than 2 weeks away and management
terminated employee Fichter in an attempt to discourage
employee support of the Union. By threatening to dis-
charge and discharging Fichter for this reason, manage-
ment violated Section 8(a)(1) and (3) of the Act.'2
' I received into evidence as Resp. Exh 5 the findings, decision. and
order of the Pennsylvania Unemployment Compensation oard pertain-
ing to Fichter's claim fior benefits. I also received into evidence as Resp.
Exh. 5 the accompanying transcript of that proceeding in order to under-
stand the basis, scope, and extent of the findings made. All counsel agree,
in effect, that the state agency decision is not controlling upon me I have
considered the decision of the state agency a;nd, on the entire record. I
Coiimued
1018
LATTIMER ASSOCIATES LIMITED
CONCI.USIONS OF LAW
I. The Charging Party is a labor organization as al-
leged.
2. Respondent is an employer engaged in commerce as
alleged.
3. Respondent violated Section 8(a)(1) and (3) of the
Act by threatening to discharge and later discharging
employee Fichtc '--ause of his union activities.
4. The unfair laoor practices found above affect com-
merce as alleged.
REMEDY
Having found that Respondent engaged in certain
unfair labor practices, I find it necessary to recommend
that it cease and desist therefrom and take certain affirm-
ative action designed to effectuate the policies of the
Act. It has been found that Respondent, in violation of
Section 8(a)(1) and (3) of the Act, unlawfully terminated
employee Fichter. It will therefore be recommended that
Respondent offer to employee Fichter immediate and full
reinstatement to his former or substantially equivalent
position, without prejudice to his seniority or other
rights and privileges, and make him whole for any loss
of earnings suffered by reason of his unlawful termina-
tion, by payment to him of a sum of money equal to that
which he normally would have earned from the date of
Respondent's discrimination to the date of Respondent's
offer of reinstatement, less net earnings during such
period, with backpay and interest thereon to be comput-
ed in the manner prescribed in F W. Woolworth Compa-
ny, 90 NLRB 289 (1950), and Florida Steel Corporation,
231 NLRB 651 (977).13 Further, it will be recommend-
ed that Respondent preserve and make available to the
Board, upon request, all payroll records and reports, and
all other records necessary and useful to determine the
amount of backpay due and the rights of reinstatement
under the terms of these recommendations. Respondent
will also be ordered to post the attached notice.
Upon the foregoing findings of fact, conclusions of
law, and the entire record of the case, I hereby issue the
following recommended:
find, as discussed above. that Respondent discharged employee Fichter.
not for alleged acts of misconduct. but for union activities. Cf. Duquesln,
Electric and M.anufacturing Company. 212 NLRB 142, fn. I (1974). enfd
518 F.2d 701 (3d Cir. 1975), and Razco, Inc., d/h/a Hit'.V Run Fhod
Store, 231 NLRB 660. fn. I (1977).
" See, generally. Iis Plumbing & fIleaing Co. 138 Nl.RB 716 (19)2)
ORDER"
The Respondent, Lattimer Associates Limited. Hazle
Township, Pennsylvania, its officers, agents, successors,
and assigns, shall:
1. Cease and desist from:
(a) Threatening to discharge employees because of
their union activities.
(b) Discouraging membership in United Mine Workers
of America, District 25, or any other labor organization.
by discriminatorily discharging any of its employees or
in any other manner discriminating against them with re-
spect to their hire or tenure of employment or any term
or condition of employment.
(c) In any like or related manner interfering with. re-
straining, or coercing its employees in the exercise of the
rights guaranteed them in Section 7 of the Act.
2. Take the following affirmative action designed to ef-
fectuate the policies of the Act:
(a) Offer employee Lafayette Fichter immediate and
full reinstatement to his former job, or to a substantially
equivalent position, without prejudice to his seniority or
other rights and privileges, and make him whole for the
loss of earnings in the manner set forth in this Decision.
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other re-
cords necessary to analyze the amount of backpay due
under the terms of this Order.
(c) Post at its facilites in Hazle Township, Pennsylva-
nia, copies of the attached notice marked "Appendix."'"
Copies of said notice, on forms provided by the Regional
Director for Region 4, after being duly signed by its rep-
resentatives shall be posted by Respondent immediately
upon receipt thereof, and be maintained by it for 60 con-
secutive days thereafter, in conspicuous places, including
all places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respondent to
insure that notices are not altered, defaced, or covered
by any other material.
(d) Notify the Regional Director for Region 4, in writ-
ing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
" In he event no exceptions are filed as provided b 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. 10248 of the Rules and Regulations be adopted by the Board and
become its findings, conclusions, and Order. and all objections thereto
shall he deemed waised for all purposes.
1' In the event that this Order is enforced by a Judgment of a United
Stales Court of Appeals. the words in the notice reading "Posted by
Order of the National Labor Relatiolns Board" shall read "Posted PIursu-
anl to a Judgment of the nited States Court of Appeals Enforcing an
Order of the National habor Relations Board"
1019