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National Labor Relations Board v. Stark

November 5, 1975; As Amended April 6, 1976.


Petition by the National Labor Relations Board to enforce an order, 213 NLRB No. 38, finding that respondents had violated §§ 8(a)(3) and (1) of the National Labor Relations Act by discriminatorily discharging and refusing to reinstate six employees and § 8(a)(1) by coercively interrogating and warning three employees.

Friendly, Timbers and Gurfein, Circuit Judges.

Author: Friendly

FRIENDLY, Circuit Judge

The National Labor Relations Board seeks enforcement of an order against employers dated September 6, 1974, 213 N.L.R.B. No. 38. The employers are Fred Stark (a family partnership composed of Fred Stark, Harold Stark and Rita Stark) and two affiliated corporations, Jamaica 201 St. Corp., Inc. and Jamaica 202 St. Corp., Inc., all engaged in the ownership and rental of commercial and residential buildings and properties. We shall refer to all three as "respondent." The order found that respondent had violated §§ 8(a)(3) and (1) of the National Labor Relations Act by the discriminatory discharge of, and refusal to reinstate, six employees, Charles Thompson, Roger Evans, Wayne Huff, Jeffrey Maksymchak, Felipe Ortiz and George Peters, and had violated § 8(a)(1) by the coercive interrogation and warning of Peters and another employee, Kenroy Bishop, and by offering to reinstate Maksymchak if he left his union. The order contained the usual provisions for ceasing and desisting and notice posting, and for the providing of reinstatement and back pay to the six discharged employees.


The story begins with respondent's signature, on April 17, 1973, of a contract with Local 32B, Service Employees International Union, AFL-CIO, the charging party herein (hereafter the Union), relating to a property not here involved. News of this led Peters, a foreman for respondent, to arrange for an organizational meeting in his apartment on April 30. The meeting was attended by Peters, Thompson, Evans, Huff, Maksymchak, Ortiz, and Bishop, all employed by respondent, and by a Union organizer. Each of the seven employees signed an authorization card. The Union requested recognition by letter dated May 8, which respondent received on May 10.*fn1

Four of the six discharges occurred on May 11. The day began with Harold Stark's sending Thompson, Evans and Huff to remove debris from a building under renovation and haul it away. During or shortly after the lunch hour, Thompson suggested that more men were needed, the others agreed, and they drove to respondent's office to ask Harold Stark to provide them. Stark was not there and the three employees sat in the truck to await his arrival. They were joined by Maksymchak, a part-time student employee who had recently reported for work and had been told by Harold Stark's secretary, Karen Gsell, to await Stark's arrival so that he could be given his work assignment. The four moved to Maksymchak's station wagon; he announced he was not feeling well and did not think he would work that afternoon. Stark soon arrived and asked Maksymchak whether he was going to work that day. Maksymchak answered in the negative, saying that he did not feel like working. Stark thereupon discharged all four for being drunk.

This was the version given, with slight variations, by the four employees, all of whom denied being drunk or, indeed, having had anything to drink. Stark testified that all but Maksymchak were drunk; that when he asked why the three had not finished the assigned job, Thompson answered that they weren't doing it and Huff that they were done with it; that he discharged the three for being drunk and not working; and that he told Maksymchak that if the latter didn't want to come to work, he was fired too.

Maksymchak further testified that on the next day he sought reinstatement; that Harold Stark asked him why he had joined the Union which was "like stabbing me in the back," and told him to wait a few weeks; and that on a later occasion Stark said he could have the job back if he got out of the Union. Stark did not specifically deny these incidents, although he made a general denial of discussing the Union with any employee.

Peters testified that on May 14 Fred Stark (Harold Stark's father) said he had just fired four of Peters' men because they had joined the Union; that Fred Stark was surprised at Peters' having joined because "you're supposed to be my foreman"; but that Stark said he would forget it, and told Peters to go back to work with a warning to "just stay away from the union." Fred Stark did not take the stand. Harold testified that he was with his father at the time of the alleged conversation and that it had not taken place; Peters, by contrast, had testified that Harold was inside a building when Fred spoke to him.

On May 15 Peters told Fred Stark he would not be in on the following day since he had been spitting blood and was going to the Veterans' Administration Hospital. According to Peters, Fred told him to stay away from the Union. In fact, Peters had had no intention of going to the hospital; instead he took Thompson, Evans, Huff and Maksymchak to the Union to make out affidavits concerning their discharge. According to Peters, Fred Stark fired him the next morning because Peters wouldn't "learn." Again Fred did not testify but Harold, who heard the May 17 conversation, quoted his father as saying only "You are a liar and I don't trust you. You weren't at the VA Hospital when you said you were... You are fired."

Meanwhile, Ortiz had been discharged on May 16. Unable to speak English intelligibly and having difficulty even with an interpreter, he made the somewhat bizarre claim, corroborated, however, by two other witnesses, that Harold Stark had fired him for disobeying an order to pick up dog stools with his hands rather than get a shovel and broom. Harold Stark denied Ortiz' story; his version was that Ortiz refused to clean out litter, including the dog stools, on the ground that this was not his job.

The final episode consists of a statement allegedly made by Harold Stark to Bishop shortly after Peters' discharge on May 17. According to Bishop, Stark said that he had already fired all the other card signers and that Bishop must "give up on the union because it won't come in here." Stark did not deny this except for his general disclaimer of having discussed the Union with employees.

One other piece of evidence should be mentioned. At some date, unhappily not identified, Fred Stark called Larmond, an official of the Union, about the Union's letter demanding recognition and asked what it was "all about." Stark also inquired who had signed the cards. Larmond gave "two or three names," to ...

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