Unico Replacement Parts, Inc.

National Labor Relations Board - Board Decisions

Sep 8, 1986

281 N.L.R.B. 309 (N.L.R.B. 1986)

UNICO REPLACEMENT PARTS
Unico Replacement Parts, Inc. and International As-
sociation of Machinists and Aerospace Workers,
AFL-CIO, District Lodge No. 190, Local
Lodge 1492 . Case 20-CA-16849
8 September 1986
DECISION AND ORDER
BY MEMBERS JOHANSEN , BABSON, AND
STEPHENS
On 18 January 1983 Administrative Law Judge
Russell L . Stevens issued the attached decision.
The Respondent filed exceptions and a supporting
brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and brief and,
except as noted below , has decided to affirm the
judge's rulings , findings,' and conclusions and to
adopt the recommended Order as modified.
We agree with the judge that the Respondent
unlawfully threatened employees with plant closure
when Supervisor Shakesnider told employee
Manzo that if discriminatee Jacques called OSHA
to report unsafe working conditions , "we would
close the doors , put on our, coveralls and keep
working." In so doing we note that, contrary to
the judge , under the Board's decision in Meyers In-
dustries, 268 NLRB 493 (1984), Jacques' call to
OSHA would not be protected by the Act in the
absence of evidence to indicate that he acted in
concert with other employees . Nevertheless, Sha-
kesnider's threat of plant closure was unlawful.
Thus, Manzo credibly testified that Shakesnider's
threat to close the plant was made in the shop and
that "there was lots of people around " when he
made his remark . Under these circumstances, inas-
much as the threat could reasonably have been
construed as indicating that complaints to OSHA,
whether made by one or by several employees to-
gether, would result in plant closure , we find that
Shakesnider's comment had the effect of restraining
employees in the exercise of their right to act, in a
concerted manner, to report alleged safety viola-
tions to OSHA, and therefore violated Section
8(a)(1) of the Act. Certified Service, 270 NLRB 360
(1984).
' The Respondent has excepted to some of the judge 's credibility find-
ings The Board 's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect . Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd 188 F.2d 362 (3d Cir. 1951).
We have carefully examined the record and find no basis for reversing
the findings.
309
We do not, however, agree with the judge that
the Respondent unlawfully interrogated Jacques
concerning his union activities . The evidence in
this regard reveals that on 15 December 1981,
Jacques told Union Representative Willis that Sha-
kesnider had made some derogatory remarks about
Willis while informing Jacques of Willis' meeting
with the Respondent's general manager Clark over
Jacques' grievance. When Willis complained to
Clark and Shakesnider about the "badmouthing" he
had received from the latter, Shakesnider sought to
ascertain from Jacques why he (Jacques) had in-
formed Willis of their earlier conversation in which
the alleged derogatory remarks were made. It is
clear from Jacques' testimony that the focus of
Shakesnider's inquiry concerning Jacques' conver-
sation with Willis centered not on any union activi-
ties Jacques may have engaged in but rather on the
claim that Shakesnider had "badmouthed" Willis.
Under these circumstances , we find that Shakes-
nider's questioning of Jacques involved essentially
personal concerns and did not violate Section
8(a)(1) of the Act.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent, Unico Replacement Parts, Inc., Benicia,
California, its officers, agents, successors, and as-
signs, shall take the action set forth in the recom-
mended Order as modified.
1. Substitute the following for paragraph 1(a).
"(a) Violating Section 8(a)(1) of the Act by
threatening employees with reprisals and plant clo-
sure, and by telling them the layoffs were instituted
as a result of union grievance activity and that the
Union caused their layoffs."
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
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
WE WILL NOT violate Section 8(a)(1) of the Act
by threatening employees with reprisals, threaten-
ing employees with plant closure, telling employees
that layoffs were instituted as a result of union
281 NLRB No. 46
310 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
grievance activity, and telling employees that the
Union caused their layoffs.
WE WILL NOT violate Section 8(a)(3) and (1) of
the Act by laying off employees because of their
union membership or activities.
WE WILL NOT in any like or related manner
interfere with, restrain , or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
WE WILL offer Robert Jacques and Carl Davis
immediate and full reinstatement to their former
jobs or, if those jobs no longer exist , to substantial-
ly equivalent positions , without prejudice to their
seniority or any other rights or privileges previous-
ly enjoyed and WE WILL make them whole for any
loss of earnings and other benefits resulting from
their discharge , less any net interim earnings, plus
interest.
WE WILL notify each of them that we have re-
moved from our files any reference to his dis-
charge and that the discharge will not be used
against him in any way.
UNICO REPLACEMENT PARTS, INC.
Donald R . Rendall, Esq., for the General Counsel.
Wesley Sizoo (Moore, Sizoo & Cantwell), of Oakland, Cali-
fornia, for the Respondent.
DECISION
STATEMENT OF THE CASE
RUSSEL L. STEVENS, Administrative Law Judge. This
case was tried in San Francisco, California, on October
25, 1982.1 The complaint is based on a charge filed Janu-
ary 15, 1982, by International Association of Machinists
and Aerospace Workers, AFL-CIO, District Lodge No.
190, Local Lodge No. 1492 (the Union). The complaint
alleges that Unico Replacement Parts, Inc. (the Respond-
ent) violated Section 8(a)(1) and (3) of the National
Labor Relations Act (the Act).
All parties were given full opportunity to participate,
to introduce relevant evidence , to examine and cross-ex-
amine witnesses, to argue orally , and to file briefs . Briefs,
which have been carefully considered, were filed on
behalf of the General Counsel and the Respondent.
On the entire record,2 and from my observation of the
witnesses and their demeanor , I make the following
FINDINGS OF FACT
1. JURISDICTION
At all times material, the Respondent, a California cor-
poration with an office and place of business in Benecia,
California, has been engaged in the sale and servicing of
petroleum industry machinery and equipment. During
1 All dates are in 1981 unless otherwise stated.
2 The Respondent 's posttnal motion to correct the transcript is not op-
posed and is granted
the past 12 months the Respondent, in the course and
conduct of its business operations, sold goods and serv-
ices valued in excess of $50,000 directly to customers
who meet the Board's direct standards for assertion of
jurisdiction.
I find that the Respondent is, and at all times material
has been, an employer engaged in commere within the
meaning of Section 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
International Association of Machinists and Aerospace
Workers, AFL-CIO, District Lodge No. 190, Local
Lodge 1492 is, and at all times material has been, a labor
organization within the meaning of Section 2(5) of the
Act.
III. THE ALLEGED UNFAIR LABOR PRACTICE
A. Backgrounds
The Respondent is in the mechanical repair business,
and nearly all its jobs are on an emergency basis. The
Respondent 's customers primarily are in oil and chemical
businesses in the San Francisco Bay area, but the Re-
spondent has facilities in Tacoma, Washington, Santa
Ana, California, Salt Lake City, Utah, and Benicia, Cali-
fornia . The Respondent 's work includes repair of com-
pressors, pumps, turbines , gear boxes, and other mechani-
cal equipment used by refineries and chemical plants. Be-
cause the Respondent 's business is not predictable, its
employee complement is subject to wide and frequent
variation. Within a 6-month period it may vary from a
low of 2 or 3 employees in the shop, to as many as 40 to
44. Again because of the nature of the Respondent's busi-
ness, layoffs are not made on a single basis . For instance,
if machinists are laid off, it is by seniority within the ma-
chinists category. Employees with specialized skills may
be retained out of seniority. The nature of the job that is
being completed determines the nature of the layoff.
The Respondent has the job classifications of journey-
man machinist, journeyman mechanic, journeyman
welder, mechanic B, and helper. At times relevant Kyle
Shakesnider (later the Respondent's foreman superintend-
ent) was the Respondent 's shop foreman , and supervised
all the Respondent's employees who worked with tools.
His supervisor was Superintendent Fred Maas. John
Clark was the Respondent's general manager and the
person in charge of the Respondent 's labor relations.
Gerald Evans was the Respondent's comptroller.
The Respondent and the Union are parties to a collec-
tive-bargaining agreement effective January 29, 1981,
through April 30, 1983. At times relevant Samuel Willis
was the Union 's business representative who dealt on a
day-to-day basis with the Respondent.
Robert Jacques was employed by the Respondent in
February 1981 as a helper, and was laid off November
18, 1981. He filed a grievance under the collective-bar-
gaining agreement because of his layoff, and was rehired
on December 2, 1981. He was laid off again on Decem-
3 This background summary is based on stipulations of counsel and on
credited testimony and evidence not in dispute
UNICO REPLACEMENT PARTS
ber 15 by Shakesnider, and complained to Willis shortly
thereafter about his layoff.
Carl Davis was employed by the Respondent as a me-
chanic B from October 1981 until his layoff by Shakes-
nider on December 15. His layoff was after Jacques'
layoff.
B. Contentions of the Parties
The General Counsel contends that Jacques was a me-
chanic B at the time of his layoff, rather than a helper;
that Jacques was senior to Davis; that Willis complained
to Clark about Jacques' layoff; and that Davis was laid
off because of Willis' complaint concerning Jacques.
The Respondent contends that Jacques was laid off be-
cause he was a helper, whereas Davis was a mechanic B,
and the Respondent's practice is to lay off helpers first;
that Jacques was laid off solely for economic reasons;
and that Davis was laid off at the request of the Union.
C. The Status of Jacques and Davis
1. Jacques' classification
The fact that Jacques was hired as a helper is not in
dispute.
Willis contends that both Jacques and Davis were mis-
classified; that Jacques was qualified as, and did the work
of, a mechanic B; and that Davis was not as qualified as
Jacques and should have been classified as a helper.
Willis contends that Jacques should have been retained
over Davis when Jacques was laid off on November 18
and again on December 15.
John Manzo was Jacques' leadman. Manzo credibly
testified relative to Jacques:
I used him as mostly a mechanical helper, machine
builder, and he had a specialty of his own where he
would recondition and rebuild compressor valves
and mechanical seals, which is a highly technical
specialty.
[W]hen I had him, I used him 50% of the time as a
mechanical-mechanical helper-
Q. As a helper?
A. No. I used him-there's a difference between
a helper who sweeps the floors and a machinist B, I
should say. I shouldn't say mechanical helper. I
used him as a machinist B class most of the time.
Half of that time, working as a machinist B, he was
running machines under my supervision and the
other half of the time, he would either be recondi-
tioning compressor valves and mechanical seals
and-or tearing apart equipment, rebuilding. Very
little of that that I've mentioned is helper work, but
the man was qualified. I didn't look at him-I didn't
look at my men like helper or machinist. I didn't
ask for papers and all that. The guy could do the
work that I gave him and I had him-I used him
like that.
311
A. When he was originally hired, he had some
background in repair of seals and we enjoyed that
training, and it was our plan and hope that we
would eventually make him a journeyman machin-
ist. That was why he was hired initially.
Q. Was he paid over scale?
A. I believe he was, but that's-we frequently
pay over scale. We try to pay all that we possibly
can.
Clark testified that Jacques spent "probably 50 percent"
of his time working on valves, and that the Respondent
"tried to train him in all the other crafts in the business."
Shakesnider testified that Jacques worked on compres-
sor valves and seals , and that he was paid over scale "be-
cause of that specialty and nothing else." Shakesnider
further testified that, when not working on valves and
seals, "[h]e reverted back to helper , sweeping the floor
and whatever else became available that he could
handle."
Jacques testified that he did general mechanic work in
the shop, but that he also did some nonskilled work
(helper) just as all employees, including journeyman, did
when work was slack.
Willis testified that he went to the shop on December
15 to talk with Clark about Jacques' grievance concern-
ing his layoff on December 15, and that, during their
conversation, he asked to see Jacques' personnel file.
Willis testified that Clark had the file brought in, opened
it, and exclaimed, "How the hell did that happen?"
Willis looked at the file and noticed "B Mechanic" next
to Jacques' name . Clark asked how Willis thought that
happened, and Willis replied, "[H]e's doing the work and
I said he also had an efficient secretary4 to note such
things because it substantiates my position." Willis ex-
plained to Clark that his position was that Jacques was
more qualified than Davis, and that, for a period of ap-
proximately 2 weeks after Jacques' layoff of November
18, Davis had been doing work that Jacques should have
been doing. Davis stated that he told Clark "in my opin-
ion that both of them [Jacques and Davis] were misclas-
sified." Davis testified that Jacques' wage was more than
the contract rate for mechanic B.
Clark testified that he was surprised during his conver-
sation with Willis to see that Jacques was classified as a
mechanic B because he believed that Jacques was a
helper as he was hired. Clark said the secretary made the
notation in the file, but not at his direction. He said he
felt the notation was "a clerical error." Clark testified
that the error could have been corrected by erasure, but
that, instead, a new file was made. The new file has no
reference to Jacques' being a mechanic B.
2. Davis' classification
Willis testified that, although he was not personally
knowledgeable concerning the work that Jacques and
Davis did, he was of the opinion that Jacques was more
qualified as a mechanic than Davis was, and that he
talked with Shakesnider on December 14, at which time
Clark credibly testified relative to Jacques: 4 That secretary no longer works for the Respondent.
312 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Shakesnider stated he "had made a mistake in his hiring
Carl Davis because his application was better than his
work performance."
Davis testified that he worked both as a mechanic and
a helper. He said he sometimes drove forklifts.
Clark testified that "Jacques had more authority" than
Davis, that "he had more training," and that the two em-
ployees were "doing exactly the same jobs." Clark testi-
fied that he told Willis "Mr. Jacques had more talent and
knowledge than Mr. Davis."
Shakesnider, as well as several other witnesses, made it
clear that, as the Respondent's labor force shrinks from
time to time and during slack periods, all employees, in-
cluding journeymen, do helper tasks and menial chores
such as driving forklifts, cleaning the plant, and sweep-
ing the floor.
3. Discussion
It is quite clear that Jacques was better qualified, and
had better training, than Davis. That point is not in dis-
pute, and was made clear by Clark.
Jacques was hired as a helper and Davis was hired as
a mechanic B, but on a date not established at trial
Jacques' classification was changed in his file to that of
mechanic B. That change predated Willis' conversation
with Clark on December 15.
The fact that Jacques was paid wages in excess of
those required by the union contract for a mechanic B is
not in dispute.
Clark's testimony that Jacques' classification was
changed back to helper by him because Jacques errone-
ously had been shown in the file as a mechanic B was
not logical and is given no credence. In the first place,
the change back to helper was not made until after
Clark's conversation with Willis on December 15.
Second, Jacques was better qualified, and better trained,
than Davis. Third, Jacques and Davis did "exactly the
same job." Finally, Jacques' file was not corrected
simply by erasure or interlineation as it could have been.
The making of a new file for Jacques, showing him as a
helper, appears to have been a self-serving change.
It is found that at times relevant Jacques was a me-
chanic B, the same as Davis-5
D. Alleged Threat by Shakesnider
Paragraph 7(a) of the complaint alleges that, in early
December, Shakesnider threatened an employee with re-
prisals for using the contractual grievance procedure.
Manzo testified that he talked with Shakesnider in
early December: "This was at the beginning of the shift
and Kyle [Shakesnider] was mentioning to me that he
thought that Robert [Jacques] might be screwing himself
up by going through with his grievance to the union."
Shakesnider denied this testimony by Manzo.
6 It is recognized that the arbitrator held that Jacques' layoff of No-
vember 18 was permissible under the contract, and that this finding is not
dispositive of the issues in this case.
Discussion
If Manzo is credited, Shakesnider's statement clearly
would be a violation of Section 8(a)(1), as an implied
threat designed to coerce employees in their use of the
grievance procedure of the collective-bargaining agree-
ment.6 Further, the statement would be indicative of the
Respondent's intentions possibly to retaliate against
Jacques because of the grievance.
Manzo is credited, and a violation of the Act, as al-
leged, is found.
E. Alleged Threat by Shakesnider
Paragraph 7(b) of the complaint alleges that, in early
December, Shakesnider threatened employees with plant
closure if they contacted the Occupational Safety and
Health Administration (OSHA).
Manzo testified that during his conversation with Sha-
kesnider in early December:
He said that it wasn't doing him any good and
that he had heard that Robert [Jacques] may also
call OSHA and report unsafe working conditions
and he said that if that did take place, that it would
be all right because we could close the doors and
we'll put on our coveralls and keep working and
that was about it.
Shakesnider denied having any conversation with
Manzo concerning Jacques along the line testified to by
Manzo.
Discussion
If the statement alleged by Manzo is true, a violation
of the Act is clear. A complaint to OSHA is activity
protected by the Act-7 Any interference with that activi-
ty through threats is coercive and in violation of the
Act. 8
Manzo is credited, and a violation of Section 8(a)(1) of
the Act, as alleged, is found.
F. Alleged Statement by Shakesnider
Paragraph 7(c) of the complaint alleges that, about De-
cember 15, Shakesnider told employees that layoffs by
the Respondent were instituted as a result of union griev-
ance activity.
Davis testified that, on December 15, he talked with
Shakesnider:
He told me that, "After today, you're laid off." I
asked him why and he said, "Because of the posi-
tion of Mr. Willis protesting [the] layoff of
Jacques," that we both would be laid off that day,
seeing as though I would have been laid off a week
later anyway.
Q. All right. Continue with what was said in that
conversation, please.
6 Cooper-Jarrett, Inc., 260 NLRB 1123 (1982)
' J. P. Stevens & Co, 240 NLRB 579 (1979)
8 Philadelphia Ambulance Service, 238 NLRB 1070, 1071 (1978).
UNICO REPLACEMENT PARTS
A. I told him I didn 't understand . He suggested
that I talk with Mr. Willis at the Union.
Shakesnider acknowledged talking with Davis on De-
cember 15, and testified:
Q. In your conversation, referring back again to
your discussion with Mr. Davis, did you refer in
any way to a grievance with the Union as being one
of the reasons for layoff?
A. The reference made to the Union was that
Mr. Willis had been into the shop talking with John
Clark and Fred Maas . We couldn't come to an un-
derstanding, or at least Unico could not come to an
understanding with Mr. Willis . Therefore, both of
the people were laid off at the same time . But this
was a move to keep the Union satisfied . The Union
was really on us to retain Mr. Jacques when we
didn't have work for Mr. Jacques.
Q. So you laid off Mr. Davis to satisfy the
Union?
A. Exactly.
Q. Did you do it in reprisal?
A. It wasn't done in reprisal to the Union or the
employees.
Discussion
If Shakesnider made the statement attributed to him by
Davis, it would constitute a violation of the Act. Accel-
eration of a layoff because of a union's contractual activi-
ty on behalf of its members would be unlawful, and a
statement to that effect equally is unlawful.9
Davis is credited , and a violation of Section 8(a)(1) of
the Act, as alleged, is found.
G. Alleged Statement by Shakesnider
Paragraph 7(d) of the complaint alleges that, about
December 15, Shakesnider told employees the Union
caused their layoffs.
Manzo testified that he talked with Shakesnider on
December 15:
A. Well, as I started walking into the shop, we
walked together and Kyle mentioned that because
of Robert 's grievance , he's going to be forced to lay
off two men instead of one.
Q. Robert who?
A. Robert Jacques . I'm sorry . And I said, "Well,
is that what you were talking to Carl Davis about,"
and he says, "that's right , I had to let him , go." And
that was about it. We went in. I went to the locker
room and got ready for work.
He said because of the grievance that the Union is
pressing pretty hard on him and that was about it.
That's all I recall.
Shakesnider denied that he told employees that Davis
and Jacques were laid off to satisfy the Union.
Gauley Industries , 260 NLRB 1273 (1982).
313
Discussion
The alleged statement by Shakesnider would be a clear
violation of the Act if the statement was made . A layoff
because of union activities is protected by the Act as is a
statement to that effect.' °
Manzo is credited , and a violation of the Act, as al-
leged, is found.
H. Alleged Interrogation by Shakesnider
Paragraph 7(e) of the complaint alleges that , about De-
cember 17 , Shakesnider interrogated employees regard-
ing their union activities.
Jacques testified that, on December 15, Shakesnider
talked with him about the fact that Willis had gone in to
see Clark that day to talk about Jacques' grievance of
December 2, and that , during the conversation , Shakes-
nider talked very derogatorily about Willis. Jacques said
he told Willis about the matter , and Willis testified that
he complained to Shakesnider and Clark about Shakes-
nider "badmouthing" him.
Jacques testified that , when he went to the shop on
December 17 to pick up his check , Shakesnider asked
him what he had told Willis, and Jacques replied that he
only answered the questions Willis asked him.
Shakesnider denied saying anything to Willis or
Jacques concerning this matter.
Discussion
Jacques and Willis are credited.
It is clear from Jacques' answer to Shakesnider's ques-
tion that Jacques was reluctant to reply, and it is equally
clear that Shakesnider 's interrogation of Jacques was co-
ercive. The earlier conversation between Jacques and
Shakesnider involved Jacques' grievance that Willis was
processing under the contract, and any conversation
Jacques and Willis may have had relative to that matter
was of concern only to Jacques and Willis. Although a
personal element may have been injected so far as Sha-
kesnider was concerned, the fact remains that Shakes-
nider coercively interrogated Jacques concerning the Tat-
ter's private conversation with Willis, which related di-
rectly to the pending grievance . Such an interrogation is
violative of the Act as alleged.
Jacques was on layoff at the time the interrogation oc-
curred, but he retained his employee status . Further,
Jacques had a continuing relationship with the Respond-
ent's employees by reason of Jacques having filed a
grievance alleging that the November 18 layoff was not
in accordance with the collective-bargaining agree-
ment."
I. Alleged Statement by Clark
Paragraph 8(a) of the complaint alleges that, about De-
cember 15 , Clark told employees that layoffs were insti-
tuted as a result of union grievance activity.
10 Tufts Bros., 235 NLRB 808 (1978); Bert Wolfe Ford, 239 NLRB 555
(1978).
11 Doughboy Recreational, 229 NLRB 381, 388 (1977)
314 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Manzo testified that he talked with Clark the evening
of December 15, after the layoffs of Davis and Jacques:
It was just that John approached me and said, "Hi,
how are things going," and, after knowing that I
lost one of my workers, I said that, "They could be
going a lot better . I lost a good man." And he said,
"Well, we have a lack of work here," or a shortage
or work, and I said, "Well, it depends on who you
talk to. I get a different answer from other people,"
and I said, "I hear is has something to do with
Robert Jacques' grievance with the Union," and he
simply said, "Well, that's part of it," and that was-
I believe that was the end of the conversation.
Clark denied this testimony of Manzo.
Discussion
If the statement attributed to Clark actually was made,
it would be a patent violation of Section 8(a)(1) of the
Act.
Manzo is credited, and a violation of the Act, as al-
leged, is found.
J. Alleged Statement by Clark
Paragraph 8(b) of the complaint alleges that, about
November 15, Clark told employees that layoffs were in-
stituted as a result of union grievance activity.
Davis testified that he talked with Clark late in the
day on December 15:
He just said that Bud Willis took the position that
Robert should be laid off before me; so, therefore,
since production was slow, I would have been laid
off a few days later, so they was going to lay me
off that day also.
Q. Did he say why you were being laid off on
December 15, 1981?
A. Because of pressure from Bud Willis.
Clark denied ever telling any employee that the layoffs
of December 15 were occasioned by grievance activity.
Discussion
Davis is credited , and a violation of Section 8(a)(1) of
the Act , as alleged , is found.
K. The Layoffs of Jacques and Davis
1. Jacques
Jacques testified that Shakesnider called him aside De-
cember 15 and told him that would be his last night to
work. Jacques said he asked why, and Shakesnider re-
plied:
A. Then he said-he had told me that Bud Willis
had been there that day and had gone into John
Clark's office and had ranted and raved about the
grievance itself which I had filed prior to Decem-
ber 2nd, and then he went to say that Bud Willis
never did anyone any good and that the Union
should find somebody else to represent them as a
representative, and then he said that, to him, Bud
Willis was a no good, lousy bastard.
Q. All right. What else was said, please?
A. And then he said to me-he said, "This is just
between you and I," he said, "but the reason you
are being laid off is because you filed a grievance."
Jacques testified that no other reason was given for the
layoff, and that nothing was said about lack of work. He
said there seemed to be plenty of work at the time.
Willis testified that he went in to see Clark on Decem-
ber 15 about Jacques' layoff on November 18, and told
Clark that, because Jacques had been laid off out of se-
niority, the Respondent owed Jacques for 8 days' work.
Clark argued that the layoff was based on classification
and was proper. Willis said Clark then called in Maas,
and told him to lay off both Jacques and Davis, that
"work is becoming slow." Willis protested, and said he
did not want to get either of them laid off; he only
wanted to get 8 days' pay for Jacques. Willis also testi-
fied that Clark told him Jacques had bad work habits
and talked too much on the job.
Clark testified that, although Jacques had more
plantwide seniority than Davis, he had not progressed
satisfactorily during his training period. Clark testified
that he told Willis:
In fact, I explained to Mr. Willis that Mr. Jacques
had more talent and knowledge than Mr. Davis did
at the time, but it was the Company's decision to
put the effort into potential rather than into a dea-
dend employee.
Q. At the time, was there certain work to be
done which Mr. Davis could do and which Mr.
Jacques could not do?
A. No.
Clark later testified relative to the reason for laying off
Jacques:
Q. Then why did you lay him off and retain
Davis?
A. Because Davis had more potential. We decid-
ed it was wiser, a better management decision, to
put your training into the people that have the best
potential. We gave Mr. Jacques a good try and he
wasn't making it.
Still later , Clark testified that business was poor, and that
the Respondent was contemplating a general layoff about
December 15. Clark said Maas "wanted to take the two
men off the bottom of the seniority list because he was
low on work." Clark testified that, within 2 hours after
his discussion with Willis, Jacques and Davis both were
laid off. Finally, Clark testified that, although he could
not be specific and was not personally aware of much of
Jacques' work, Jacques' work was too slow and he
talked too much on the job.
Shakesnider testified that he told Manzo that Jacques
was laid off because of a "reduction in work force." In
his pretrial affidavit, Shakesnider stated that he told shop
employees that Jacques and Davis were laid off "because
UNICO REPLACEMENT PARTS
Bud Willis came to Unico on December 15, 1981 and in-
sisted the two of them be laid off." Shakesnider testified
that he laid off Davis before he laid off Jacques , and that
Jacques worked December 15 and 3 hours- on December
16. He said he tried to reach Jacques by telephone on
December 15 to lay him off, but was not successful. Sha-
kesnider later changed his testimony and said "[i]t would
have to be the evening of the 15th " when he laid off
Jacques . He said he made it clear to Jacques that he was
eligible for rehire . He denied saying anything to Jacques
about his grievance or about NLRB . Shakesnider testi-
fied that he made the decision to lay off Jacques, and
that it had nothing to do with Jacques ' work perform-
ance or working too slow ; he said the only reason was
lack of work . Later, in explaining Jacques' layoff, Sha-
kesnider testified:
Q. Were there any particular jobs that you had
been expecting that you did not receive that caused
that layoff?
A. No. What happened was we were finishing up
a job in the shop . It didn't go as long as we antici-
pated it to.
Q. What job was that?
A. We were working on PG&E turbine dia-
phragms from The Geysers, Geyserville, California,
and there was a lot of handwork and grinding in-
volved, and it was my belief that Carl Davis was
doing a better job on that particular job than Mr.
Jacques.
Q. Who were the employees that were working
on the job?
A. We had about three journeymen , Carl Davis,
and I think Robert Jacques on the swing shift.
Q. Who was the other employee working on it?
A. They were three journeymen . I have no idea.
I'd have to look back.
Still later, Shakesnider testified that , when Jacques was
laid off, there was no work on valves and seals, which
were Jacques ' specialty. 12
2. Davis
Davis testified that he talked with Shakesnider when
he was laid off December 15:
A. Mr. Shakesnider said that he [Willis] was
there that day protesting Jacques' layoff, and he
said that I should have been laid off before Jacques.
Q. Bud Willis said that?
A. Right. But seeing as though I would have
been laid off in a week anyway, we both would be
laid off that day.
Q. Did Mr. Shakesnider tell you why this was
said, why he was telling you this?
A. Because of Bud Willis, that it happened pre-
mature.
12 Shakesnider testified that an unsuccessful attempt was made in Janu-
ary or February to get in touch with Jacques relative to a rehire offer,
and Jacques testified that he was given an offer, but was not given a rea-
sonable time in which to report for work. This dispute is left for the
compliance stage of these proceedings.
315
Davis said he assumed that , based on the Respondent's
regular practice , he was eligible for rehire.
Shakesnider testified that he laid Davis off December
15 because of "a reduction in work force." He said he
told Davis he was eligible for recall. Shakesnider testi-
fied that a decision already had been made by him and
Maas to lay off Davis because of lack of work, but that
the layoff was accelerated 3 days "to satisfy the Union."
3. Discussion
In view of the nature of the various 8(a)(1) violations
found supra, the probability that Jacques was laid off
when he was because of Willis' complaints to Clark is
strong . Equally probable in view of those violations is
Davis' early layoff in retaliation for Willis' complaints
about Jacques.
The fact that the Respondent 's business is irregular
and that layoffs are frequent are not in dispute . There ap-
pears some likelihood, in view of the small number of
employees at work during times relevant , that business
was slow , but it is apparent that there was some work in
the shop, and that either Jacques or Davis could do that
work. Possibly a layoff was imminent, but that fact was
not established at trial, and such a fact could be consid-
ered at the compliance stage of these proceedings if it ex-
isted . In any event , no proof was adduced at trial to
show that layoffs were imminent other than the unsub-
stantiated statements of Clark and Shakesnider. The testi-
mony of those two witnesses was contradictory, in some
instances self-contradictory, and inconsistent . More than
their statements concerning the status of business and the
number of employees required would be necessary. No
business records were introduced in support of the Re-
spondent 's contentions relative to business volume.
The Respondent contends that no union animus on its
part was shown, but that is beside the point . It was clear-
ly established that the Respondent resented Willis' pres-
entation of Jacques ' grievance, and Jacques ' layoff fol-
lowed that presentation by 2 hours with no prior notice
given to Jacques or the Union.
The Respondent also argues that Davis was not en-
gaged in any protected activity, but that , too, is irrele-
vant . Shakesnider acknowledged that Davis' layoff was
accelerated because of Willis' visit, but he contends that
Willis wanted Davis to be laid off if Jacques was laid off.
Willis credibly denied that testimony, and Shakesnider's
contention is given no credence. Clearly, Davis was laid
off in pique and in retaliation for Willis' efforts to obtain
8 days' work pay for Jacques.
The versions of Jacques and Davis relative to their
layoffs are accepted as factual.
As alleged by the General Counsel, the Respondent's
layoff of Jacques because of the grievance he filed and
Willis' prosecution of that grievance violated a funda-
mental statutory right of Jacques,' 3 and the Respond-
ent's layoff of Davis in retaliation for Willis' efforts in
behalf of Jacques violated a fundamental statutory right
of Davis to be protected in his employment against im-
proper layoff.
18 Greencastle Mfg. Co., 234 NLRB 272, 274 (1978).
316 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IV. EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of the Respondent set forth in section
III above , occurring in connection with its operations
described in section I, above, have a close intimate, and
substantial relationship to trade, traffic, and commerce
among the several States, and tend to lead to labor dis-
putes burdening and obstructing commerce and the free
flow of commerce.
REMEDY
Having found that the Respondent violated Section
8(a)(1) and (3) of the Act, it will be recommended that
the Respondent be ordered to cease and desist and to
take certain affirmative action designed to effectuate the
policies of the Act.
It is recommended that the Respondent be ordered to
offer immediate and full reinstatement to Robert Jacques
and Carl Davis to their former jobs or, if those jobs no
longer exist, to substantially equivalent jobs, without loss
of seniority or other rights or privileges, and make them
whole for any loss of earnings they may have suffered,
to be computed in the manner prescribed in F. W. Wool-
worth Co., 90 NLRB 289 (1950), plus interest as set forth
in Isis Plumbing Co., 138 NLRB 716 (1962), and Florida
Steel Corp., 231 NLRB 651 (1977).
On the basis of the above findings of fact and on the
entire record, I make the following
CONCLUSIONS OF LAW
1. Unico Replacement Parts , Inc. is , and at all times
material has been , an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act.
2. International Associaton of Machinists and Aero-
space Workers, AFL-CIO, District Lodge No. 190,
Local Lodge 1492 is , and at all times material has been, a
labor organization within the meaning of Section 2(5) of
the Act.
3. The Respondent violated Section 8(a)(1) of the Act
by threatening employees with reprisals , threatening em-
ployees with plant closure, telling employees that layoffs
were instituted as a result of union grievance activity,
telling employees that the Union caused their layoffs,
and interrogating employees.
4. The Respondent violated Section 8(a)(3) and (1) of
the Act by laying off employees because of their union
membership or activities.
5. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed14
14 If no exceptions are filed as provided by Sec 102 46 of the Board's
Rules and Regulations, the findings , conclusions, and recommended
Order shall, as provided in Sec . 102.48 of the Rules, be adopted by the
ORDER
The Respondent , Unico Replacement Parts, Inc., Beni-
cia, California, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Violating Section 8(a)(1) of the Act by threatening
employees with reprisals, threatening employees with
plant closure , telling employees that layoffs were institut-
ed as a result of union grievance activity, telling employ-
ees that the Union caused their layoffs, and interrogating
employees.
(b) Violating Section 8(a)(3) and (1) of the Act by
laying off employees because of their union membership
or activities.
(c) In any other manner interfering with, restraining,
or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Offer Robert Jacques and Carl Davis immediate
and full reinstatement to their former jobs or, if those
jobs no longer exist , to substantially equivalent positions,
without prejudice to their seniority or any other rights
or privileges previously enjoyed, and make them whole
for any loss of earnings and other benefits suffered as a
result of the discrimination against them, in the manner
set forth in the remedy section of the decision.
(b) Remove from its files any reference to the unlawful
layoffs and notify the employees in writing that this has
been done and that the layoffs will not be used against
them, in any way.
(c) Preserve and, on request , make available to the
Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records nec-
essary to analyze the amount of backpay due under the
terms of this Order.
(d) Post at its Benicia, California facility copies of the
attached notice marked "Appendix." 15 Copies of the
notice, on forms provided by the Regional Director for
Region 20, after being signed by the Respondent's au-
thorized representative, shall be posted by the Respond-
ent immediately upon receipt and maintained for 60 con-
secutive days in conspicuous places including all places
where notices to employees are customarily posted. Rea-
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by
any other material.
(e) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
Board and all objections to them shall be deemed waived for all pur-
poses
15 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board "