Porcelain Patch & Glaze Co.

National Labor Relations Board - Board Decisions

Jun 21, 1971

191 N.L.R.B. 368 (N.L.R.B. 1971)

368 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Al Frank d/b/a Porcelain Patch & Glaze Co. and
Local 299, International Brotherhood of Teamsters,
Chauffeurs , Warehousemen and Helpers of
America. Case 7-CA-7938
June 21, 1971
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS JENKINS
AND KENNEDY
On March 17, 1971, Trial Examiner John F. Funke
issued his Decision in the above-entitled proceeding,
finding that Respondent had engaged in certain unfair
labor practices alleged in the complaint, and recom-
mending that it cease and desist therefrom and take
certain affirmative action, as set forth in the attached
Trial Examiner's Decision. The Trial Examiner also
found that Respondent had not engaged in certain
other unfair labor practices. Thereafter, the General
Counsel filed exceptions to the Decision and a brief in
support thereof.
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 powers
in connection with this case to a three-member panel.
The Board has reviewed the rulings of the Trial Ex-
aminer made at the hearing and finds that no prejudi-
cial error was committed. The rulings are hereby
affirmed. The Board has considered the Trial Ex-
aminer's Decision, the exceptions and brief, and the
entire record in the case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor Re-
lations Act, as amended, the National Labor Relations
Board adopts as its Order the recommended Order of
the Trial Examiner and hereby orders that Respondent,
Al Frank d/b/a Porcelain Patch & Glaze Co., Detroit,
Michigan, its officers, agents, successors, and assigns,
shall take the action set forth in the Trial Examiner's
recommended Order.
IT IS FURTHER ORDERED that the allegations of the
complaint alleging a violation of Section 8(a)(3) and (1)
in the discharge and refusal to reinstate Richard K.
Detmers be, and they hereby are, dismissed.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
JOHN F. FuNKE, Trial Examiner: Upon a charge and an
amended charge filed May 14 and 28, 1970, respectively, by
Local 299, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, herein
the Union, against Al Frank d/b/a Porcelain Patch & Glaze
Co., herein the Respondent, the General Counsel issued an
amended complaint on January 31, 1971, alleging Respond-
ent violated Section 8(a)(1) and (3) of the Act.
The answer of the Respondent set forth certain affirmative
defenses and denied the commission of any unfair labor prac-
tices.
This proceeding, with the General Counsel and the Re-
spondent represented, was heard by me at Detroit, Michigan,
on February 24, 1971.
Upon the entire record in this case and from my observa-
tion of the witnesses while testifying, I make the following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF RESPONDENT
Al Frank is an individual doing business under the trade
name Porcelain Patch & Glaze Co., engaged in the refinish-
ing, patching, and glazing of porcelain fixtures at Detroit,
Michigan. The complaint alleges, the answer admits and I
find that Respondent is engaged in commerce within the
meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of
Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Facts
1. Violations of Section 8(a)(1)
Richard Detmers, the alleged discriminatee in the proceed-
ing, testified that in March 1970,' following discussion among
the employees, he went to the union hall, saw an organizer
named Albert Oulette and received authorization cards for
distribution. Four of the employees signed the cards and
Detmers returned them to George Kraft, another representa-
tive of the Union' On April 3, Detmers and two other em-
ployees, Porter and Strober, went into the office and James
Frank' had a telegram from the Union in his hand and asked
them if they had signed union cards and all denied signing.
Frank then handed them a piece of paper stating they did not
want to be represented by the Teamsters and asked them to
sign it. Ralph Caruso, another employee, refused to sign and
then all refused. The paper, according to Detmers, had al-
ready been signed by an employee named Ketchum when it
was offered to him. Frank then pointed his finger at Detmers
and told him he was the instigator. This testimony was cor-
roborated by that of Ralph Caruso, called by Respondent,
and was not denied by James Frank.
Albert Oulette testified that immediately after the election
on May 7 (the Union won the election four to one) he and
the employees were gathered in Frank's office and Frank
pointed his finger at Caruso and told him his wages were
reduced 50 cents an hour and there would be no more over-
Unless otherwise notes all dates refer to 1970
There were six employees engaged in repair work for Respondent.
James Frank testified that he ran the business Al Frank, father of James
and founder of the business, was deceased
191 NLRB No. 74
PORCELAIN PATCH & GLAZE CO. 369
time. This last remark , according to Oulette was addressed to
all the employees . Detmers testified to this same incident,
corroborating Oulette and stated Caruso , Porter, Strober,
and he were present. Caruso testified that later the same day
Frank called him at his home and told him he had been angry
and to forget about cutting wages. Caruso's wages were not
cut and he continued to receive overtime.
2. Violations of Section 8(a)(3)
Detmers testified that following the meeting between
Frank and his employees on April 3 he was given his ticket
for calls on the morning of April 9. The first job was Fretter's
warehouse, the next job was at a home on Minock , the next
at Coyle, and the last was at Fraser . Detmers completed the
Fretters and Minock jobs and then proceeded to Coyle. He
arrived about 2 : 30, set up his equipment , and then called
Frank and told him he could not get to the Fraser job that
day. Frank told him to drop everything and get to Fraser.
Detmers packed his tools and since the Frank shop was on
the route to Fraser stopped there. He arrived at the shop
about 3:30 (normal quitting time was 4 : 30) and told Frank it
was too late to start painting a refrigerator in the kitchen
since this would be at dinner hour. Frank told him thejob had
to be done and when Detmers told him it was too late, Frank
told him to quit. Detmers said he would not quit and Frank
told him "I don't care what the Union says I can lay you off
for business reasons." Detmers then told Frank it was a good
thing there was a law against hitting him in the jaw or he
would do it. He was then told he was laid off and Detmers
tated he then asked for a ride home. He was given the ride
by Steve Pennsyl , employed in the shop , and who had over-
heard the conversation . Pennsyl stayed at Detmer 's home for
dinner.
Frank testified that he received a telephone call from Det-
mers from Coyle Street and told Detmers to get over to
Fraser which was a rush job. (The Coyle Street job had been
paid for, Fraser was a C.O.D. job .) The telephone call took
place at about 2:30, according to Frank and Detmers told him
he was not going to do the Fraser job. A little later Detmers
came "storming" into the shop and told Frank to do the job
himself. Frank then told him to quit, Detmers told him he
had to fire him and Frank told Detmers he was laid off.'
Frank then had Pennsyl drive Detmers home. Frank alleged
he had received a number of complaints from customer con-
cerning Detmers and his work but no evidence was offered to
support the general accusation.
Pennsyl testified that he heard the conversation between
Frank and Detmers when Detmers returned to the shop on
April 9. Detmers came into the shop "angry" and told Frank
he could to the Fraser job himself. Frank then told Detmers
he could do the job or quit and when Detmers said he would
not quit Frank told him he was laid off. They then went into
the office where, according to Pennsyl , they remained for
about one hour.' Pennsyl was then asked to drive Detmers
home and he did.
Detmers was not offered reemployment after his layoff Neither was
anyone hired to replace him He was still in layoff status at the time of
hearing.
5 Neither Frank nor Detmers testified as to what took place in Frank's
office
B. Conclusions
1. Violations of Section 8(a)(1)
I find Respondent violated Section 8(a)(1) of the Act by:
1. Asking its employees , on April 3, whether they had
signed union cards.
2. Asking its employees to sign a statement repudiating the
Union as their bargaining representative.
3. Threatening its employees , on May 7, that wages would
be reduced and overtime eliminated.'
2. Violations of Section 8(a)(3)
The Section 8(a)(3) allegation poses the more difficult but
usual question of the motive of Respondent in laying off
Detmers. I would find that Respondent had good cause for
laying off Detmers for his refusal to accept a rush job, his
telling Frank to do the job himself if he wanted it done, and
his statement that he would hit Frank in the jaw if there were
not a law against it. While discipline has become an ugly word
and the mark of a regressive society, lip service is still paid
to the last vestiges of authority unrelinquished by manage-
ment. Whether an identified union leader may be discharged
for good cause a few days after his leadership has become
known and after the employer has engaged in unfair labor
practices establishing his hostility toward union organization
is the issue. The primeval rule is that an employer may not
discharge for cause if he is motivated in part by discrimina-
tory considerations. Unfortunately no device has been
created which will reproduce a state of mind and as Judge
Blackman notes in N.L.R.B. v. Byrds Manufacturing Corp.,
324 F.2d 329, 332-33 (C.A. 8): "These discharge issues are
difficult and sensitive when termination coincides with union
activity."
The Trial Examiner may not rest his decision on whether
he considers the action of a Respondent hasty, ill-considered,
or arbitrary . He is to be guided solely by his analysis and
evaluation of the employee 's motives . In the instant case the
action of Frank was certainly hasty and made without any
careful weighing of all the circumstances . I do not feel that
such a characterization of his action requires a find that it was
also discriminatory. Granting his hostility toward unioniza-
tion and his knowledge , or at least his strong suspicion, of
Detmers' leadership , he was confronted with a direct refusal
to perform a job which he considered urgent and the refusal,
far from being couched in reasonable terms, was accom-
panied by the statement that Frank could do the work himself
and that were it not for the law he (Detmers) would hit him
on the jaw. Frank, who impressed me as prone to instant
response to provocation, laid him off. I do not think that
Frank's statement to Detmers that he could , regardless of the
Union , lay him off for business reasons was an admission of
pretext. If he had been seeking to conceal his real motive he
would not have made the statement at all. It was rather an
acknowledgement of the fact, to which employers have
become reluctantly reconciled , that when a union engages in
organization of employees the employer will be subject to
unfair labor practice charges if he imposes any disciplinary
action upon a union adherent .' Which proves no more than
6 Since there is no evidence that Frank 's recantation of this threat in his
telephone call to Caruso was made known to the other employees by Frank,
I do not consider it neutralized the threat.
' Employers are not reconciled , however, to what many consider a dispo-
sition on the part of the Board to make per se findings of violation in such
cases. Cf. Arbie Mineral Feed Co. v N.L.R.B., 436 F.2d 940 (CA. 8),
reversing the Board 's finding that the discharge of an employee who was the
leader of the union's organizational drive for drinking beer while operating
a company truck was a violation of Section 8(a)(3) The company had a
(Cont.)
370 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that the path of labor-management relations is not always
strewn with roses, either for unions or employers.
I hold that where an employee commits a flagrant act of
insubordination accompanied by provocative language he
must assume the risk of disciplinary response. Put more
bluntly, the act of joining a union does not confer immunity
against discharge for cause. I do not believe that the permis-
siveness of the era has changed that simple rule.
I find Respondent, by laying off Detmers on April 9, did
not violate Section 8(a)(3) of the Act.
Upon the foregoing findings I make the following:
CONCLUSIONS OF LAW
1. By interrogating its employees as to their union activity;
asking them to sign a document repudiating the Union as
their bargaining representative; threatening them with wage
reductions and loss of overtime because they voted for the
Union, Respondent violated Section 8(a)(1) of the Act.
2. Respondent did not violate Section 8(a)(3) of the Act.
3. The aforesaid unfair labor practices are unfair labor
practices within the meaning of Section 2(6) and (7) of the
Act.
THE REMEDY
Having found the Respondent engaged in certain unfair
labor practices I shall recommend that it cease and desist
from the same and take certain affirmative action necessary
to effectuate the policies of the Act.
Upon the foregoing findings of fact and conclusions of law
and upon the entire record in this case I issue the following
recommended:'
ORDER
Respondent, Al Frank d/b/a Porcelain Patch & Glass Co.,
his agents, successors, and assigns, shall:
1. Cease and desist from interrogating its employees con-
cerning their union activity; asking them to sign any docu-
ment repudiating Local 229, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of
America as their bargaining representative; threatening them
with wage reductions and loss of overtime because they se-
lected the Union as their bargaining representative.
2. Take the, following affirmative action:
(a) Post at it place of business at Detroit, Michigan, copies
well-established rule prohibiting driving while drinking any intoxicant. The
court held that drinking while driving violated an elemental safety rule
exposing the employer to almost certain liability and that union affiliation
does not prevent a discharge for cause. Those who drive on public highways
might be expected to favor the court decision.
8 In the event no exceptions are filed as provided by Section 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, and recommended Order herein shall, as provided in
Section 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 pruposes.
of the attached notice marked "Appendix."9 Copies of the
notice, on forms to be furnished by the Regional Director of
Region 7, shall, after being duly signed by a representative of
Respondent, be posted immediately upon receipt thereof, and
be maintained for a period of 60 consecutive days thereafter,
in conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall be
taken to insure that said notices are not altered, defaced, or
covered by any other material.
(b) Notify the Regional Director for Region 7, in writing,
within 20 days from the receipt of this Decision, what steps
have been taken to comply herewith."
' In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall be changed to read
"Posted Pursuant to a Judgment of the United States Court of Appeals
Enforcing an Order of the National Labor Relations Board,"
30 In the event that this recommended Order is adopted by the Board
after exceptions have been filed, this provision shall be modified to read:
"Notify the Regional Director for Region 7, in writing, within 20 days from
the date of this Order, what steps the Respondent has taken to comply
herewith."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT interrogate our employees concerning their
union activity.
WE WILL NOT ask any of our employees to sign any state-
ment indicating they do not wish Local 299, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, to represent them as their union in col-
lective bargaining.
WE WILL NOT threaten our employees that we will reduce
their wages or take away their overtime because they voted
for a union to represent them.
AL FRANK
D/B/A PORCELAIN
PATCH &
GLAZE Co.
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced by any-
one.
This notice must remain posted 60 consecutive days from
the date of posting and must not be altered, defaced, or
covered by any other material.
Any questions concerning this notice or compliance with
its provisions, may be directed to the Board's Office, 500
Book Building, 1249 Washington Boulevard, Detroit, Michi-
gan 48226, Telephone 313-226-3200.