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National Labor Relations Board v. Rickel Bros. Inc.

May 15, 1961

NATIONAL LABOR RELATIONS BOARD, PETITIONER
v.
RICKEL BROS., INC., RESPONDENT.



Author: Mclaughlin

Before GOODRICH, McLAUGHLIN and HASTIE, Circuit Judges.

McLAUGHLIN, C.J.:

Enforcement of the Board's order against the respondent employer is sought on the proposition that "The Board's conclusion in the circumstances of this case that the 'real reason' for Nicolas' discharge was not his alleged shortcomings as an employee, but his union activity, is, to say the least, 'a permissible conclusionstores at Union and Succasunna, New Jersey, selling paint, plumbing and related tools and supplies for "do-it-yourself" home maintenance repairs and construction. Strafford Nicolas was hired by respondent about December 8, 1958. He first worked at the Union store. In March 1959 he was transferred to Succasunna. He had been in the plumbing, heating, oil pumpers and sheet metal work business for himself from 1922 to 1955. He also worked a year in Reaction Motors. He said he was engaged by respondent because of his background. On cross-examination he stated he had special qualifications for selling plumbing and heating supplies. Then he was asked:

"Hadn't you been warned several times before August 22, Mr. Nicolas, that you had been making too many errors and were going to be let go if they continued?"

He answered:

"I had made a number of errors. I was never told I was going to be let go."

He was asked:

"From time to time during the eight odd months you were working for Rickel, weren't you called on many occasions to make payment for under charges made by you to customers?"

He answered:

"Yes".

The Examiner in his intermediate report concedes those errors but would dispose of them as follows:

"However, it is clear that the Respondent did not sustain a financial loss as a result of these errors since the Respondent customarily deducted the amount of these undercharges from Nicolas' earnings and the customers reaped the benefit of such errors."

In the face of the above, the Examiner's only comment as to Nicolas' alleged inefficiency was: "It is obvious that the Respondent is grasping at weak reeds in its reliance on refunds as evidence of Nicolas' shortcomings."

In July 1959 there was quite a fuss over the sale by Nicolas of a kitchen cabinet with a special counter top to a Mr. Frey. Nicolas charged also for an ordinary top for which there should have been an allowance to the customer. In addition Nicolas had made special measurements for the cabinet at the customer's home. This was contrary to store regulations. It made the top a custom job and as the measurements were wrong, the store had to correct the work at its expense. The Examiner's conclusion as to this was "Whether or not Nicolas acted ...


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