Symons Manufacturing Co.

558 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Symons Manufacturing Company and Walter Sangari. Case No. 13-CA-4959. March 18, 1963 DECISION AND ORDER On December 28, 1962, Trial Examiner W. Gerard Ryan issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Intermediate Report. Thereafter, the Respondent filed exceptions to the Inter- mediate Report and supporting brief, and the General Counsel filed a brief in support of the Intermediate Report. Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman McCulloch and Members Rodgers and Fanning]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Intermedi- ate Report and the entire record in the case, including the exceptions and briefs, and hereby adopts the findings, conclusions, and recom- inendations of the Trial Examiner.' ORDER The Board adopts the Recommended Order of the Trial Examiner? 'For the reasons set forth in the dissenting opinion in Isis Plumbing & Heating Co , 138 NLRB 716 , Member Rodgers would not award interest on backpay. 2 The notice is hereby amended by adding the following note immediately below t he- signature line at the bottom of the notice : NOTE -We will notify the above-named employee if presently serving in the Armed Forces of the United States of his right to full reinstatement upon application in accordance with the Selective Service Act after discharge from the Armed Forces. INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE This proceeding was held before Trial Examiner W. Gerard Ryan at a hearing in Chicago, Illinois, on September 17 and 18, 1962. The issue presented by the plead- ings is whether Symons Manufacturing Company, herein referred to as the Re- spondent, violated Section 8(a)(1) and (3) of the Act.' Briefs from General Counsel and the Respondent have been considered. Upon the entire record,2 and from my observation of the witnesses , I hereby make the following: I The charge was filed on June 20, 1962, and the complaint was issued on August 2, 1962. 2 After the close of the hearing the General Counsel filed a motion which is unopposed, to correct the transcript. The motion is hereby granted and the motion document is made part of the formal exhibits marked "Trial Examiner's Exhibit No. 1." 141 NLRB No. 48. SYMONS MANUFACTURING COMPANY 559 FINDINGS AND CONCLUSIONS 1. THE BUSINESS OF THE RESPONDENT The complaint alleged, the answer admitted, and I find that the Respondent is and has been at all times material herein a corporation duly organized under and existing by virtue of the laws of the State of Delaware. At all times material herein Respondent has maintained its principal place of business at 200 East Touhy Avenue, Des Plaines, Illinois, and is and has been at all times material herein engaged at its said place of business in the manufacture and sale of concrete forms and related products. During the past calendar year, Respondent in the course and conduct of its said business operations manufactured, sold, and shipped from its Illinois plant finished products valued in excess of $50,000 to points outside Illinois. During the past calendar year Respondent in the course and conduct of its business operations purchased, transferred, and delivered steel, wire, wood, and other goods and materials valued in excess of $50,000, which goods and material valued in excess of $50,000 were transported to Respondents' Illinois plant directly from States of the United States other than the State of Illinois. Respondent is now and has been at all times material herein an Employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED District No. 8 of the International Association of Machinists , AFL-CIO, referred to herein as the Union , is and has been at all times material herein a labor organiza- tion within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES The complaint alleged that the Respondent discharged Walter Sangari on or about June 12, 1962, because he engaged in union or concerted activities for the purpose of collective bargaining and the Respondent thereby interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act in violation of Section 8(a) (1) of the Act; and discriminated in regard to the hire, tenure, terms, or conditions of employment of its employees, thereby discourag- ing membership in a labor organization in violation of Section 8(a) (3) of the Act. The answer denied the foregoing allegations except that it admitted that Sangari was discharged on June 12, 1962, and averred that Sangari was discharged solely be- cause of slanderous statements made by him against the Company, its officers, agents, and representatives. The General Counsel contends that the discharge of Walter Sangari on June 12, 1962, was a pretext and that the real reason for the discharge was that the Re- spondent desired to rid itself of Sangari, chief union steward, because of his union and other concerted activities. The Respondent contends that the General Counsel has failed to prove the allega- tions of the complaint by the required preponderance of evidence and therefore the complaint should be dismissed. The Respondent further contends that the record establishes that Sangari was discharged solely for his accusation that the Respondent had paid money to the Union for a favorable contract, or to use Sangari's version, that the Respondent and the Union had entered into a sweetheart contract which accusation cannot be considered as a protected right under the Act. The Respond- ent's motion to dismiss the complaint is disposed of in accordance with the findings and conclusions which follow. Walter Sangari testified that he was born in Teheran, Iran, and has been in the United States about 11 years. He was employed by the Respondent from May 6, 1954, to June 12, 1962, and most of that time he worked as a welder. During Sangari's employment he was never laid off nor was he criticized for insubordina- tion. During the summer of 1961 the Respondent appointed him as a temporary foreman. In December 1961 , Sangari became chief steward or chairman of the employee committee for the Union. At one of the first meetings he attended in this capacity, upon his objection to holding a strike vote in Respondent's plant, the Respondent's attorney "hollered" at him, "Don't make small details and quit you Bolshevick aggression." From January to June 1962, Sangari and Joseph Shuppas, the plant manager, met frequently to discuss grievances and questions of contract interpretation which had been brought to Sangari's attention by the employees. Shuppas testified these meetings were held weekly during this period. Sometimes other members of Sangari's committee were present but on other times they were not present. Paul 560 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Williams, also a member of the union committee , testified that when the committee was present at the meeting Sangari did most of the talking and brought up many, topics for discussion without having previously discussed them with the committee- Howard Kort, another member of the union committee , testified that most of these meetings became heated at sometime or another . Sangari testified that he raised the contract interpretation questions because he felt the Respondent was not living up to the contract, and that Russell Oddo , the business representative for the Union, never raised any such questions . Sangari testified further that Paul Williams who, was a welder sought to obtain a pay raise for welders . Sangari, according to his further testimony, stated that he filed the only grievances filed by the Union which were two including the one filed by Sangari for himself. Joseph Shuppas testified that it was Sangari who had been notified of the discharge of an employee but Sangari, stated that he learned of the matter from the dischargee . Sangari testified further that on several occasions he told Shuppas that the Union was not giving the em- ployees proper representation . Sangari also conducted union business with Welding Foreman Zarnecky and General Foreman Rudolph Omahana. Sangari testified that he proposed a warning system which the Respondent installed . When Sangari received his copy of the labor agreement he raised the question of whether journey- men and maintenance men were improperly excluded therefrom . Shuppas cor- rected the matter by a letter to all employees. Sangari further testified that he complained to Shuppas that nine employees had been laid off in violation of the contract as they had more seniority than retained employees. Sangari disagreed' with the Respondent's answer and asked that other employees be laid off instead. A series of discussions ensued concerning seniority which culminated in an addendum to the contract. Shuppas and Russell Oddo, business representatives for the Union, requested Sangari to sign this addendum but he refused because it had never been approved by the employees and Sangari claimed it only partially solved the problem. At that time he objected to problems being solved piecemeal and urged that a com- prehensive agreement be negotiated. Sangari proposed that employees should not be required by their foremen to• work different hours than the 8 to 4:30 shift provided for in the labor agreement. Shuppas conceded that foremen must adhere strictly to the 8 to 4:30 schedule. Sangari criticized the staggering of employees' lunch periods and Shuppas promised that it would not happen again but Sangari later complained that the problem had not been solved. Sangari further complained about a 90-day notice requirement for vacations which Shuppas said would be corrected. In May 1962, Sangari attended a meeting with Shuppas, Oddo, and time-study men at which the differences between the Union's and Respondent's time studies were discussed. Sangari testified with- out contradiction that everytime he said something at this meeting Shuppas responded, "Would you please keep out of it." According to Sangari's uncontradicted testi- mony Shuppas told him many times throughout their meetings that if he did not like how things were going that he could quit. Sangari testified further that on June 4, 1962, Shuppas asked for and received' Sangari's approval for running the shifts an hour earlier, i.e., 7 to 3:30 the following day. On June 5, upon Shuppas' request, Sangari testified that he obtained the employees' approval of the earlier hours for the remainder of that week because Respondent wished to have an open house party in the plant to celebrate the opening of the new plant. Shuppas testified that on Wednesday, June 6, he was told that it was necessary to get the plant noise level down for the open house party. That morning he talked to General Foreman Omahana about the necessity of having employees quit work early. This was done in preparation for a meeting with Sangari. Jessie Parra, an employee in the tie department, testified that about 10:30 or l l o'clock that morning he attended a meeting in the plant cafeteria called by William Smith, the acting foreman. Omahana told the employees attending this meeting that the noise and the crowd would be too much for the open house party and suggested that the employees quit at 11 o'clock and make up for the lost time later if they wished to do him a favor. The employees agreed to quit early and make up their work on Saturday. Parra informed Sangari of this meeting at quitting time. Shuppas denied knowledge of this meeting. After lunch on June 6, about 1 o'clock, Sangari testified that Shuppas called him into a foreman's office and said that he wanted to shut down the press and tie depart- ments at 11 o'clock the following day with the employees being allowed to make up their lost time on Saturday. Sangari replied that such action was a contract violation and that the employees should work 8 hours or at least be paid for those hours they missed. Sangari testified without contradiction that Shuppas replied that he was going to send the employees home anyway "if you like it or not." Sangari SYMONS MANUFACTURING COMPANY 561 said he would call the union representative . According to Sangari, Shuppas appeared angry during the meeting. Shuppas and Sangari then discussed other matters . Sangari testified that he pro- tested about a group 5 wage classification in the labor agreement which had never existed previously and provided a wage rate 25 cents below scale. Sangari testi- fied further that he told Shuppas the employees were not happy about staggered lunch periods which had not been remedied earlier and he brought up the matters of plant seniority, running shifts an hour earlier , wage rates, and other items in the contract . Shuppas testified that the topics discussed had been settled to the best of his knowledge but he could not remember what many of these topics were. Sangari testified without contradiction that during this discussion Shuppas said, "You are trying to make trouble. You are a trouble maker." According to Sangari's uncontradicted testimony, Shuppas then said , "If you don't like it, you can quit. This is our Company, our property , if you are not happy, why not find yourself a job someplace else." Sangari testified that he replied , "I have no intention of quitting , I like it and I will stay, I say the Union is getting over $7,000 3 a year for this place, they don't do anything for you, they are leaning on your side. This is a sweetheart contract and you know it." As to what Sangari said, Shuppas testified, "But I remember his saying about $6,700, this did not seem line [like] enough money for the Union . That they must be getting more money from someplace, specifically from the Company to negotiate the contract ." At the hearing, Sangari specifically denied making the statement that the Company paid money to the union representatives. Sangari testified that Shuppas then said, "If you don't like it , go." Shuppas testi- fied that he considered the statement to be a serious charge and suggested that Sangari call in a witness of his own choosing. Sangari testified that Shuppas asked him whether he wanted to make the statement to Symons or to Stanley . According to the testimony of Shuppas , Sangari refused to call in a witness but said that if Shuppas wanted a witness he could call in the newspapers . Sangari testified that he did not want to call Symons and Stanley but said to Shuppas , "No. Call the newspapers." After this Sangari and Shuppas discussed a number of items and Sangari said , "You should try to cooperate with us, we are willing to cooperate with you, we are willing to take steps forward, we are willing to work together. You should be able to take a step forward toward us and cooperate with us." After that comment by Sangari the meeting between him and Shuppas continued for 10 or 15 minutes. The meeting concluded upon Sangari telling Shuppas that he would call the union representative . The union representative appeared after the employees were sent home and he told Sangari that he would see Shuppas and talk to him. Sangari testified that he did not know whether the union representative did there- after talk to Shuppas about the matter. On Tuesday, June 12, the Respondent called a meeting which was attended by Sangari, Shuppas , Stewards Williams and Kort, Personnel Director Tansey, and Secretary-treasurer Michalak. Shuppas opened the meeting . The testimony of various witnesses is somewhat contradictory as to Shuppas ' exact statement which he read from a paper, but in substance he accused Sangari of making slanderous state- ments about the Company in that Sangari had accused the Company of paying money to the Union and the National Labor Relations Board 4 to get a favorable contract and that he had talked to the company attorney and decided that Sangari would have to be discharged for this reason immediately . At that point Steward Williams re- quested a lighter punishment but Shuppas said that there could be no reconsideration and the discharge would have to stand . Sangari testified that Shuppas said "that I made remarks to him about giving money, the Company giving money to the Union, and he said that is why he said I'm discharging you, and I said. `Joe , go and do what- ever you want to do." Howard Kort testified that following that statement by Sangari, Stanley said , "That is all we need." Sangari was then given his paychecks which had been prepared perviously. Payday is ordinarily on Friday. On June 18, a meeting was held to consider Sangari's grievance on his discharge. Those above referred to who had attended the June 12 meeting were present and in addition Union Representatives Oddo and Earl Drenning were also present. Shuppas read a statement that he had discharged Sangari for making slanderous remarks. According to Sangari's testimony Oddo then asked him whether he had made such remarks , to which Sangari testified that he had stated "that this is a sweetheart contract and you know it " Sangari testified at the hearing and main- tained throughout that he had not made any statement to Shuppas that the Company 3 Union dues were $5 per month . There were more than 100 employees in the plant._ I Later corrected in the record to refer to the Federal Mediation Service. 562 DECISIONS OF NATIONAL LABOR RELATIONS BOARD or is representatives , including Shuppas, had paid money to union representatives, but the only thing he did say to Shuppas was that "this is a sweetheart contract and you know it." During the hearing on the grievance Sangari was told to wait outside' the conference room which he did for about an hour. Paul Williams testified without contradiction that when Sangari was outside , Michalak said, "Where did Sangari go, we don't want him wandering around the Company talking to the employees and stirring up the employees ." Tansey then left the room, saying he would put Sangari into his office until the meeting was finished . Following the hearing on the grievance the Respondent refused to reconsider the discharge of Sangari. The Respondent called several witnesses who testified that Sangari was discharged on June 12 for accusing Respondent of having paid money to the Union to obtain a favorable contract. It is clear that Sangari made a derogatory statement that the Company and the Union had a sweetheart contract or the Company had paid money to the Union for a favorable contract. Either version of what Sangari said consti- tutes a most serious matter since it impugns the integrity of the relationship between the Respondent and the Union. However, I believe it was seized upon as a pretext to cloak his discriminatory discharge. Conclusion On the entire record and particularly on the uncontradicted testimony that Shuppas had called Sangari a troublemaker and had invited him to quit and seek other em- ployment several times, I find that the stated reason for his discharge on June 12, 1962, was not the real reason for his discharge. On June 6 immediately after Shuppas' last invitation to quit , I believe that Sangari was goaded into making the reply that the collective-bargaining agreement was a sweetheart contract . His dis- charge stemmed from his activities as a union steward ; and such discharge could reasonably be expected to dim the ardor of the activities of any steward or employee considering the possibility of accepting a stewardship. Accordingly, I find and con- clude that the discharge of Walter Sangari on June 12, 1962, was in violation of Section 8(a) (3) and (1) of the Act, since the discharge was clearly of a nature to discourage participation in union activities and was motivated by Respondent's hostility toward his zealous efforts as chief steward. The Supreme Court has held in The Radio Officers' Union of the Commeicial Telegraphers Union, AFL (A. H. Bull Steamship Company) V. N.L.R.B., 347 U.S. 17, 39-40, that Section 8(a)(3) includes "discrimination to discourage participation in union activities as well as to discourage adhesion to union membership." IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above , occurring in con- nection with the operations of the Respondent described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondent has engaged in certain unfair labor practices, I shall recommend that the Respondent cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Having found that the Respondent unlawfully discriminated with regard to the hire and tenure of Walter Sangari, I shall recommend that the Respondent offer him immediate and full reinstatement to his former or substantially equivalent position, without prejudice to his seniority or other rights and privileges , and make him whole for any loss of pay he may have suffered by reason of such discrimination, by pay- ment to him of a sum of money equal to that which he normally would have earned as wages from the date of his discharge to the date of the Respondent 's offer of reinstatement , less his net earnings during the period, such sum to be computed in accordance with the formula set forth in F. W. Woolworth Company, 90 NLRB 289, and with interest added thereto at the rate and compounded in the manner prescribed in Isis Plumbing & Heating Co., 138 NLRB 716. On the basis of the foregoing findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. The operations of Respondent affect commerce within the meaning of Sec- tion2 ( 6) and (7) of the Act. SYMONS MANUFACTURING COMPANY 563 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. By discriminating in regard to the hire and tenure of employment of Walter Sangari, thereby discouraging membership in the Union, the Respondent has en- gaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(3). 4. By the aforesaid discrimination the Respondent has interfered with, restrained, and coerced its employees in the exercise of rights guaranteed them in Section 7 of the Act and has thereby engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record in the case, I recommend that the Respondent, Symons Manufactur- ing Company, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discouraging membership in the Union or in any other labor organization of its employees by discharging its employees or by discriminating in any other manner in regard to their hire or tenure of employment or any term or condition of employment. (b) In any like or related manner interfering with, restraining, or coercing its employees in the right to self-organization, to form labor organizations, to join or assist the Union, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities, except to the extent that such right may be affected by an agreement (the execution or application of which is not prohibited by State law) requiring membership in a labor organization as authorized in Section 8(a)(3) of the Act. 2. Take the following affirmative action designed to effectuate the policies of the Act: (a) Offer Walter Sangari immediate and full reinstatement to the position he held at the time he was discharged or an equivalent position, without prejudice to his seniority and other rights and privileges, and make him whole for any loss of pay he may have suffered as a result of the discrimination against him in the manner set forth above in the section entitled "The Remedy." (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, time- cards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Recommended Order. (c) Post at its Des Plaines, Illinois, plant, copies of the attached notice marked "Appendix." 5 Copies of said notice, to be furnished by the Regional Director for the Thirteenth Region, shall, after being duly signed by a representative of the Re- spondent, be posted by the Respondent immediately upon receipt thereof, and be maintained by it 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 such notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for the Thirteenth Region, in writing, within 20 days of the date of the receipt of this Intermediate Report and Recommended Order, what steps the Respondent has taken to comply herewith .6 51n the event that this Recommended Order be adopted by the Board, the words "A Decision and Order" shall be substituted for the words "The Recommended Order of a Trial Examiner" in the notice. In the further event that the Board's Order be enforced by a decree of a United States Court of Appeals, the words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order" shall be substituted for the words "Pursuant to a Decision and Order." 6In the event that this Recommended Order be adopted by the Board, this provision shall be modified to read: "Notify said Regional Director, in writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith." 708-000-64-vol. 141--37 564 DECISIONS OF NATIONAL LABOR RELATIONS BOARD APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that: WE WILL NOT discourage membership in District No. 8 of the International Association of Machinists, AFL-CIO, or any other labor organization of our employees, by discharging or otherwise discriminating against any employee in regard to his hire, tenure, or any term or condition of employment. WE WILL NOT in any like or related manner interfere with , restrain, or coerce our employees in the exercise of the right to self-organization , to form labor organizations, to join or assist the above-named Union, or any other labor organization, to bargain collectively through representatives of their own choos- ing, and to engage in collective bargaining or other mutual aid or protection, or to refrain from any or all such activities, except to the extent that such right may be affected by an agreement (the execution or application of which is not prohibited by State law) requiring membership in a labor organization as authorized by the National Labor Relations Act. WE WILL offer Walter Sangari immediate and full reinstatement to the position he formerly held, or its equivalent, without prejudice to his seniority or other rights and privileges, and make him whole for any loss of pay he may have suffered as a result of the discrimination against him. SYMONS MANUFACTURING COMPANY, Employer. Dated------------------- By------------------------------------------- (Representative ) ( Title) This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. Employees may communicate directly with the Board's Regional Office, Midland Building, 176 West Adams Street, Chicago 3, Illinois, Telephone No. Central 6-9660, if they have any question concerning this notice or compliance with its provisions. The Kroger Co. and Retail Clerks Union, 1550; Retail Clerks Union, 1540; Retail Clerks Union, 1504; Retail Clerks Union, 1460; Retail Clerks Union, 1453 ; Retail Clerks Union, 98; Re- tail Clerks International Association, AFL-CIO. Case No. 13-CA-4742. March 18, 1963 DECISION AND ORDER On August 14, 1962, Trial Examiner C. W. Whittemore issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had not engaged in the unfair labor practices alleged in the complaint and recommending that the complaint be dismissed in its entirety, as set forth in the attached Intermediate Report. Thereafter, the Respondent, the General Counsel, and the Charging Parties filed exceptions to the Intermediate Report and supporting briefs.' 1 The Charging Parties have requested oral argument. This request is hereby denied as the record, the exceptions, and the briefs adequately present the issues and positions of the parties. 141 NLRB No. 46.