White's Gas & Appliance, Inc., 494 (1973)

White's Gas & Appliance, Inc. and Teamsters Local No. 486, International Brotherhood of Teamsters,

Chauffeurs, Warehousemen and Helpers of America. Case 7-CA-9565

March 20, 1973 DECISION AND ORDER

BY CHAIRMAN MILLER AND MEMBERS

FANNING AND PENELLO

On November 1, 1972, Administrative Law Judge Almira Abbot Stevenson issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief, and the General Counsel filed cross-exceptions to the Administrative Law Judge's Decision and opposition to Respondent's exceptions and a supporting brief.

Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel.

The Board has considered the record and the attached Decision in lig.1L of the exceptions, crossexceptions, and briefs and has decided to affirm the rulings, findings,' and conclusions of the Administrative Law Judge to the extent consistent herewith.

1. The Administrative Law Judge found that Respondent discriminatorily discharged Robert Carpenter because of its employees' union activity in violation of Section 8(a)(3) and (1) of the Act. In reaching this conclusion, the Administrative Law Judge found that it was Respondent's receipt on April 29, 1972, of the Union's demand for recognition and its conclusion that Carpenter was responsible for the Union's presence which triggered the decision to discharge him.

   We agree with the Administrative Law Judge's ultimate conclusion that Carpenter was unlawfully discharged, but, in doing so, we find, for the reasons stated below, that the conduct of Respondent's employees with respect to their overtime pay claims, as well as their union activity, playea a direct role in the decision to discharge Carpenter.

   The facts, as more fully described in the Decision of the Administrative Law Judge, show that Carpenter, who was a full-time employee at Fisher Body Company, was first hired by Respondent in September or October 1967, as a part-time employee at $2.75

   1 The 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 credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Dry Wall Products,

   Inc, 91 NLRB 544, enfd 188 F 2d 362 (CA 3) We have carefully examined the record and find no basis for reversing her findings.

   2 The record reveals, however, that there was still work for Carpenter to do at the time his employment was terminated, that Saxton and Fitzpatrick, an hour, and that until 1971 he usually worked from the fall of one year until the spring of the next. When Carpenter resumed his employment in the fall of 1971, however, he was told by Theron White, the corporate director of Respondent, that he could work through the summer because 'he was fine help.' The record shows that early in November 1971, employees Charles Carpenter, who is Robert's father,

   Larry Chick, and Marion Andrew reported Respondent to the Wage and Hour Division of the Labor Department for failing to pay the proper rate for overtime work. Respondent settled the overtime claims of these and other of its employees in March 1972. However, late in April 1972 it learned that one employee, Lloyd Kinney, was dissatisfied with the overtime settlement. At the same time, White observed that the employees were meeting in 'little groups and huddles' which he interpreted as an effort on their part to 'undermine' him.

   On April 21, 1972, Robert Carpenter signed an authorization card for the Charging Party and mailed it to the Union. On Friday, April 28, Carpenter did not work because of car trouble. He called White and offered to make up the work on Saturday, but White told him that there was no work to be done on Saturday that he could not do on Monday, May 1.

   On Saturday, April 29, Respondent received the Union's written request for recognition. On Sunday,

   April 30, Theron White and his wife Alice drove to Carpenter's home and informed him that he was no longer needed, as work was getting slack and they had decided to keep on one of the employees who did not have two jobs.2 When Carpenter offered to pick up his paycheck on Monday, Alice White told him she would deliver it to his home, a distance of 11 miles from the plant.

   On May 8, the Union filed a petition for a Board election. At the hearing on May 22 and 23, Theron White testified, when asked for the reason he laid Carpenter off, 'I think everything that developed over this overtime deal. There was just that undercurrent going around. I figured that no more work than we had, the other older help might just as well start doing it.' When asked at the hearing herein whether that was his testimony, White responded, 'That is correct because Lloyd [Kinney] made the remark that he would not sign that thing [the overtime settlement] and they were getting in little groups and apparently part-timers who also held jobs elsewhere and were junior to Carpenter in employment with Respondent, were hired in April 1972 and continued working through August, that Carpenter's father, a full-time employee of Respondent, took sick leave from April 23 to August 1 or 2, that Roslund, another seasonal employee, had quit earlier that month, that, after Carpenter's father went into the hospital on April 23, one of the Whites told Carpenter that employee Lawrence Smith would give him some help with the truck runs, and that Carpenter was doing his father's work when he was discharged.

   202 NLRB No. 60

   WHITE'S GAS & APPLIANCE, INC. 495 huddles and you'd have to go out and break it up.' He said, 'Well, I knew then about what the whole situation was where they were trying to undermine me in a way. . . . I didn't know what was going on around with the help because nobody would mention anything of the nature of the activities, but there was an undercurrent where you knew something was being formulated.' Based on the above facts and White's admissions in his testimony, it is clear that at this point White decided that he had to forestall 'the whole situation . .. to undermine me' from deteriorating further by discharging someone, and that that someone turned out to be Robert Carpenter. White's own testimony establishes that one of the reasons he decided to discharge Robert Carpenter was because he learned that the 'undercurrent' was in fact related to the employees' concerted activities in pursuing their overtime pay claims.

   Accordingly, we find that, in discharging Robert Carpenter, Respondent was motivated, at least in part, by its employees' protected concerted activities in pursuing their overtime pay claims, and that Respondent thereby violated Section 8(a)(1) of the Act.3

   We further find that Carpenter's discharge violated Section 8(a)(3). Like the Administrative Law Judge, we find that White considered the Union's demand for recognition as the last straw: In reaching this conclusion, however, we do not rely on the fact or find it necessary to determine, as she did, that White considered Carpenter primarily responsible for the union activity of its employees. While White may not have been aware that Carpenter had signed a union card on April 21, the precipitate timing and circumstances of his discharge clearly show that, upon receipt of the Union demand for recognition on Saturday, April 29, White then knew that the 'undercurrent' and 'something that was being formulated' related to his employees' union activities, as well as their concerted activities concerning their overtime pay claims. Therefore, we find that, in discharging Carpenter on Sunday, April 30, White was also motivated by the employees' union activity.4

   Accordingly, we shall order Respondent not to discriminate against its employees for engaging in union or concerted activity, and to refrain from interfering with their exercise of any Section 7 rights.

   3 See Thurston Motor Lines, Inc., 159 NLRB 1265, 1306-07, in which the Board enunciated the principle that it would be contrary to public policy to hold that the making of complaints to public authorities in the course of concerted activity removes the protection of the Act from the concerted activity. G. V.R., Inc., 201 NLRB No. 2. (Chairman Miller dissented on the ground that, in his view, there was insufficient evidence to show that the employees were acting in concert . He finds, however, that the instant case is distinguishable on its facts and that the evidence shows that the employees, in reporting their overtime pay claims to the Wage and Hour Division, were 2. The General Counsel excepts to the Administrative Law Judge's recommendation that Robert Carpenter be paid no backpay from the date his father returned to work from sick leave until the date he would have returned to work in the fall of 1972.

   General Counsel contends that the extent of the backpay period for Carpenter should have been deferred to the compliance stage of these proceedings. We find merit in this contention. This issue and other possible issues bearing on the backpay period were not litigated at the hearing. In these circumstances, and as there appears to be no reason why the backpay computation should not be handled in the usual manner, we shall leave this aspect of the case to the compliance stage of this proceeding.

   Accordingly, to remedy the unlawful discharge of Robert Carpenter, we shall order Respondent to make him whole for any loss of earnings he may have suffered by reason of the unlawful conduct directed against him by paying him a sum of money equal to the amount he would have earned as wages from April 30, 1972, the date of his discharge, to the date of a bona fide unconditional offer of reinstatement by Respondent, less his net earnings, F. W. Woolworth Company, 90 NLRB 289,...