Harris-Hub Co., Inc.

HARRIS-HUB COMPANY, INC. 287 V. THE REMEDY Having found that the Respondent has engaged in unfair labor practices violative of Section 8(a)(1) of the Act, I shall recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Upon the basis of the foregoing findings of fact and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. American Greetings Corporation is an employer within the meaning of Section 2(2) of the Act and is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. International Brotherhood of Pulp, Sulphite and Papermill Workers , AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. By interfering with, restraining, and coercing employees in the exercise of their rights guaranteed by Section 7 of the Act the Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2 (6) and (7) of the Act. 5. All allegations of the complaint as to which findings of violation have not been made have not been sustained. [Recommended Order omitted from publication.] Harris-Hub Company, Inc. and Martin P. Steffan. Case No. 13-CA-5161. April 214 1963 DECISION AND ORDER On February 13, 1963, Trial Examiner James F. Foley issued his Intermediate Report in the above-entitled proceeding, finding that 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 copy of the attached Intermediate Report. Thereafter, the General Counsel filed exceptions to the Intermediate Report and a supporting brief. 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 Leedom]. 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 entire record in this case, including the Intermediate Report, the exceptions and brief, and hereby adopts the findings,' conclusions, and recom- mendations of the Trial Examiner. [The Board dismissed the complaint.] 1 The Trial Examiner on page 289 of the report stated erroneously that the charge filed by Steffan on August 6, 1962, was dismissed on September 22, 1962 The parties stipu- lated that the charge was withdrawn on September 26, 1962. Also, on page 290, the Trial Examiner Inadvertently attributed certain testimony to Harris Instead of Jennings. 142 NLRB No. 31. 288 DECISIONS OF NATIONAL LABOR RELATIONS BOARD INTERMEDIATE REPORT STATEMENT OF THE CASE This case, was brought under Section 10(b) of the National Labor Relations Act, as amended (61 Stat. 136, 73 Stat. 519), herein called the Act, on a charge filed September 1962, by Martin P. Steffan, an employee, herein called Steffan, against Respondent Harris-Hub Company, Inc., herein called Respondent. On Novem- ber 9, 1962, the General Counsel issued a complaint in this case in which it is alleged that on or about August 9, 1962, Respondent, in violation of Section 8(a) (1) and (4) of the Act, discharged Steffan, the Charging Party, and since that date has refused to reinstate him, because he filed an unfair labor practice charge with the Board, and gave testimony to Board representatives, against Respondent. Respond- ent filed an answer on November 14, 1962, denying these allegations. A hearing on complaint and answer was held before Trial Examiner James F. Foley on Novem- ber 20, 1962, in Chicago, Illinois. General Counsel and Respondent were repre- sented, and they and the Charging Party were afforded an opportunity to be heard, make oral argument, and file briefs. General Counsel waived oral argument, Re- spondent made oral argument, and General Counsel and Respondent filed briefs after the close of the hearing. FINDINGS AND CONCLUSIONS I. THE BUSINESS OF RESPONDENT Respondent, an Illinois corporation, with its principal office and place of business in Chicago, Illinois, is engaged in the business of manufacturing metal beds, springs, television cabinets, and related products. During the year preceding November 9, 1962, Respondent sold and shipped to points located outside the State of Illinois products it manufactured that had a value in excess of $50,000, and during the same period purchased materials with a value in excess of $50,000, from sellers located outside the State of Illinois which were shipped directly from outside the State to Respondent's plant in Chicago, Illinois. I find that Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act, and that assertion of jurisdiction will effectuate the purposes of the Act. II. THE LABOR ORGANIZATION INVOLVED Local 18-b, Furniture & Bedding Workers Union, AFL-CIO, herein called the Union, is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. The issue The issue is whether Respondent discharged Steffan, the Charging Party, on Au- gust 9, 1962, because he filed an unfair labor practice charge against it on Au- gust 6, 1962, and gave testimony regarding the charge to the Board's Regional Office representatives on August 6 and 7, and thereabouts. Respondent denies Steffan was discharged as alleged and contends he was discharged for cause. B. Undisputed facts It is undisputed that: Respondent first employed Steffan in October 1961, laid him off in February 1962 for lack of work, reemployed him in April 1962, and discharged him on July 18, 1962, when the workday was half completed, with the notice that he was discharged for poor work performance. Steffan asked Vito M. Giordano, Respondent's personnel director, either after re- ceiving notice of the discharge on July 18, 1962, or a few days later, to reemploy him, and Giordano told him that Respondent was starting a new line of cabinets that furnished a job easy to perform and which he felt Steffan could do. He asked Steffan to contact him after the employees' vacation. The vacation started on July 20, 1962, and ended Monday, August 6, 1962. Steffan filed an unfair labor practice charge against Respondent with the Board's Regional Office on August 6, 1962, alleging a violation of Section 8(a)(3) of the Act for discriminatorily discharging him at the request of the Union because he engaged in protected activity under Section 7 of the Act. The Union is the collective- bargaining representative of the employees of Respondent. HARRIS-HUB COMPANY, INC. 289 Steffan telephoned Giordano on August 7, and the latter told him to report for work the following day. Steffan told him his fingers were still sore and he would let him know if he could work August 8. Steffan reported for work on August 9, 1962, and was put to work washing cabinets in the gluing department of Respond- ent's television cabinet production division. During the morning of August 9, 1962, following the time Steffan began employ- ment, Giordano received in the mail a copy of the charge filed by Steffan on August 6. However, Giordano had been informed on August 7 by a telephone call from Attorney Stewart of the Board's Regional Office that the charge had been filed. Giordano asked Steffan on August 9 before putting him to work why he filed the charge, and Steffan replied that he did not know what else to do. At 4 p.m., the end of the workday on August 9, Steffan received the notice attached to his card at the timeclock stating that "Your try at a different job as [has] proved unsuccessful. You have not been able to work up to standard, consequently you are again terminated effective today at 4:00 P.M." Steffan was discharged effective 4 p.m., August 9, 1962. C. Facts in controversy General Counsel presents a case-in-chief consisting of the testimony of Respond- ent's Personnel Director Vito Giordano, called under Section 43-B of the Federal Rules of Civil Procedure, Steffan, and Respondent's employees Jessie Fontenot, Tommy Lymon, and Versie Stamps. Respondent's defense consists of testimony by Samuel Jennings, Steffan's immediate supervisor on August 9; Chester Harris, super- intendent of Respondent's Division of Television Production where Steffan was employed, and Jennings' supervisor on August 9; Giordano, and Respondent's em- ployees Josh Bridgforth and Bernard Brady. There is no evidence to support a finding that Respondent discharged Steffan on July 18, 1962, for a reason other than the reason stated in the discharge notice of that date, namely, poor work performance. Steffan's testimony discloses that he felt he had a grievance against Respondent and the Union. His grievance was that he received a different amount of take-home pay each time in his pay envelope. He testified he discussed this matter with union representatives at union meetings, in the plant, and with representatives of Respondent. Steffan furnished no evidence to show that the amounts of take-home pay were incorrect. It was just his feeling that they were incorrect and that each paycheck was smaller than the previous one. There is testimony that union representatives brought him to representatives of Re- spondent and acquainted the latter with his problem. According to Steffan, they endeavored to give him an explanation but did not show him any records. There is no evidence to show he would have understood the records.' There is evidence that Respondent's production employees worked on a bonus system whereby their wages were adjusted upwards when their production rate exceeded a base rate No evidence was offered to show that the variations in the amounts of Steffan's paycheck were not due to this factor or to the factor that the different jobs he held may well have carried different rates of pay. The evidence does not disclose that Steffan's meetings with Respondent's representatives regarding the varying amounts of his take-home pay were union or concerted activity, or in any event, that he was dis- charged because he sought an explanation for the varying amounts of take-home pay. Steffan was informed on August 7 there was no merit to the unfair labor practice charge which he filed on August 6. It was dismissed by the Regional Director on September 22, 1962. Respondent has a collective-bargaining contract with the Union. There is no evidence to show that Respondent was encouraging or discouraging membership in the Union or any other union. The evidence indi- cates Respondent was complying with the contract. On the other hand, the evidence discloses that Steffan in his work was careless to a degree on July 16 and July 18, 1962, that could have caused Respondent to have reasonably concluded that his work performance was poor to the point where he should be discharged. On July 16, 1962, he cut his finger on a routing machine. This injury required stitches by a doctor. On July 18, 1962, he cut another finger on a belt sanding machine. This injury also required stitches by a doctor. The injury of July 18, occurred in the morning of July 18, and his discharge was effective 12 noon. This sequence of events shows a relationship between the injury and the discharge. The patience of Harris, Respondent's superintendent, could well have been exhausted at this point, especially when he took into consideration Steffan's i Steffan had very little formal education. His testimony, demeanor, and physical pres- ence as a witness disclosed to the Trial Examiner that he was slow in thinking, compre- hension, and physical movement. 290 DECISIONS OF NATIONAL LABOR RELATIONS BOARD similar injury on July 16 , 2 days earlier. Steffan claimed that guards to protect the operator of the routing and sanding machines were absent when he was injured. Harris on the other hand testified that he inspected each of the machines shortly after Steffan was injured and that the guards were present on the machines. Steffan admitted that when he returned to the machines after visiting the nurse the guards were on the machines. Harris, who had been maintenance foreman for Respondent and was familiar with the operation of each machine, stated that Steffan was injured in each case because he did not pull back toward him sufficiently the table on rollers on which the matter to be routed or sanded was placed, to avoid having his fingers too close to the knives on the router and the belt on the sander when he pushed the table toward the knives on the router and belt on the sander for the respective opera- tion. I credit Harris' testimony with respect to the condition of both machines from a safety standpoint, and credit Harris' testimony as to how Steffan injured his fingers I credit Harris' testimony that he told Giordano on the morning of July 18, that they could no longer employ Steffan, and that Giordano prepared the necessary personnel papers. Steffan testified that when he came in to Giordano's office on July 18, and asked why he was fired, Giordano threw up his hands and said, "That's it, you're through," The testimony discloses that Giordano brought Steffan to Harris at the beginning of the workday on August 9 and instructed him to put Steffan to work washing cabinets. Washing cabinets was a job in an assembly line of 10 jobs. The group of 10 comprised the gluing department. It was part of the laminating department supervised by Samuel Jennings. Jennings was also the direct supervisor of the 10 employees in the gluing department. The washer was the 8th employee in the assembly line of 10 which made up the gluing department. The washer was pre- ceded by an employee called a router and followed by two employees known as inkers. Steffan's job was to wash the excess glue off the television cabinets that was on them as a result of the gluing of the laminating material to the shells of the cabinets by employees on the assembly line preceding the router. He pressed a cloth placed on a plugger in a container containing a liquid solvent. The glue came on the plugger by pressing down on a foot pedal attached to the container. The washer applied the solvent to excess glue on the surfaces of the cabinets, and then wiped the cabinets clean with a dry cloth. Jennings showed Steffan how to perform the job for approximately 15 minutes by doing six to eight cabinets. Jennings testified that an employee complained to him early in the morning that Steffan was holding up the line and that the 10 on the assembly line would not get the bonus.2 He identified the employee as Jessie Fontenot, the router. Jennings also testified that he went to Steffan about 9 to 9:30 a.m. and asked him to speed up his work, and that Steffan replied his arms were sore. According to Harris, there were 30 to 40 cabinets stacked up waiting for Steffan. He then went to Chester Harris, his supervisor, and told him if Steffan could not keep up he would have to put another man on it. Harris corroborated Jennings. He also testified he told Jennings to go back and talk to Steffan. According to Jennings he again spoke to Steffan shortly before lunch about speeding up his work, and Steffan replied that he and Harris were on his back. Jennings thereupon went to Harris and told him they would have to let Steffan go. Harris testified he then talked to Steffan. He saw 25 to 30 cabinets stacked up at Steffan's work location. He told him to speed up his work, and Steffan said that his arms were tired.3 Harris replied that he hired him to do a day's work and if he could not do it "to hit the green door." This door is the exit .4 At this time, Jennings assigned Bernard Brady, one of the two inkers, to help Steffan. Jennings testified that it was the first time in the 11/2 years he was supervi- sor of this assembly line that he had to assign someone to help the washer. Brady 2 The 10 on the gluing assembly line received a rate of $1.85 an hour subject to an adjust- ment upwards of 1 percent to 30 percent for production over a base rate of 463 cabinets The range in terms of currency was slightly less than 2 cents to 55% cents. The average bonus was $2 to $4 a week, but had gone as high as $11. There were times when a bonus was not earned. 9 Steffan testified that he tried to conceal from Jennings and Harris that his injured fingers were still bothering him. They were still bandaged He said to them when they asked him to speed up his work that his arms were sore and were tired He was silent about his sore fingers. Jennings did not furnish Steffan with a pair of gloves. Jennings testified, however, that gloves were available. Brady who was assigned to assist Steffan obtained a pair of gloves from Jennings He asked Jennings for them. 4 This Is Harris' testimony corroborated by the testimony of General Counsel's witness Versie Stamps. HARRIS-HUB COMPANY, INC. 291 testified that when he began helping Steffan he saw approximately 15 cabinets stacked up. He continued to help Steffan with the washer 's work during the rest of the day when he had a backlog. Harris told Josh Bridgforth, the union steward, about 1 or 1 : 30 p.m., that Steffan was through that evening , and asked him to observe Steffan's work. He further said to Bridgforth that if he had any arguments that they would go in and thrash them out with Giordano.5 Bridgforth testified he observed Steffan's work at this time. He said Steffan was working slowly, and looking around. A short time later he decided to talk to Steffan and walked to his workbench . Steffan was not there. He went looking for him and found him in the washroom . Bridgforth said he saw Steffan trying to sell salve to two or three employees who were in the washroom . He hit Steffan on the shoulder and said to him that Chester [Harris] was looking for him . Steffan admitted selling salve, but denied he sold it during working hours. Bridgforth, as union steward and acting shop chairman for the Union, raised no objection to the impending discharge of Steffan. He apprised Shop Chairman Lowe of the discharge a week later, when Lowe returned to work. Giordano testified that Harris came into his office on two occasions on August 9 and talked to him about Steffan. The first occasion was in the morning before lunch and the second time was at 1:30 or 2 o'clock in the afternoon. He said to Giordano on both occasions that Steffan was not working out. At the first meet- ing, Harris told Giordano that something would have to be done about it right away. Giordano told Harris to do whatever was necessary to keep the line moving. According to Giordano, Harris reported to him a few minutes after the first con- versation that he had to give Steffan a helper .° In the second conversation, Harris stated that he could not use Steffan any more, that he had given him a fair trial, that the bonus for the day would be poor as the cabinets had stacked up requiring an additional washer on the gluing line. Giordano testified that at the time he had to take some action in preparation for the next day's production. Giordano then had the clerical work performed which was necessary to effect Steffan's termina- tion at the end of the workday. Steffan testified that he filed the charge in this case because Respondent treated him more or less like an animal in regard to the performance of his work. They were "forcing" him "to work hard and fast and to produce and hollered at him." 7 Harris and Jennings testified that the first knowledge they had that Steffan filed the unfair labor practice charge on August 6 was when Giordano asked them to visit the offices of Respondent's attorneys about a week be- fore the hearing date of November 20, in regard to Respondent's preparation for the hearing. Employees Fontenot, Lymon, and Stamps testified that they were not held up in their work by Steffan on August 9. Fontenot, a router, preceded Steffan on the assembly line. He said his work area was not clogged up or rendered unservicable by any stacking of cabinets in the vicinity of Steffan. He said he did not complain about Steffan's work or hear of any complaints by other employees . He also testified, however, that he did not pay enough attention to Steffan's work to be able to express an opinion regarding it, that more cabinets than usual were stacked up at Steffan's work location, and that an employee was assigned to help Steffan with the washing. He also said he was not held up by the stacking up of cabinets be- cause he placed them aside .8 5 Harris testified that Respondent and the Union had an arrangement whereby Respond- ent notified the shop chairman for the Union in advance of a discharge so that it could be discussed if necessary before the discharge took place Harris' testimony indicates that he was the one who notified the shop chairman in regard to impending discharges in his divi- sion, and that he gave the notice on August 9 to Union Steward Bridgforth. He was acting as shop chairman in the absence of employee Sherman Lowe. Giordano's testimony indi- cates that he was the one who notified the shop chairman on July 18 in regard to Steffan's discharge on that date. Harris testified, however, that he notified Giordano on that date that Steffan would have to be let go. Since the circumstances leading to the discharge on July 18 occurred so close to the time of discharge and could well have caused a change in customary procedure I place no significance on the giving of the notice by Giordano on July 18 and by Harris on August 9. Brady, who helped Steffan, testified he did not begin until 1 p.m Steffan testified that he had two or three helpers on August 9 7 The testimony of Steffan corroborates the testimony of Jennings and Harris that they went to him and attempted to speed up his work. 8 Jennings , contrary to Fontenot , testified that Fontenot complained to him about Steffan's slowness on the assembly line. I do not discredit Jennings' testimony as Jennings 712-548-64-vol. 142-20 292 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Lymon, who also testified for the General Counsel, placed frames on cabinets about 6 feet away from Steffan on August 9. He was in the final assembly line, a different line from the line Steffan was on. Cabinets were fed to his line from the line Steffan was on. He said there was no delay in the supply of cabinets com- ing to him, that he did not complain about Steffan's work or hear others complain. He also testified that he did not know whether Steffan's work was good or bad, that all he knew was that he was kept busy, and that he did not notice whether the cabinets were or were not stacking up. Employee Stamps, who also testified for the General Counsel, was the employee following Steffan on the assembly line. He testified he either received cabinets from Steffan or from the floor. He did not complain of Steffan's work or hear any complaints about it. He testified that an average number of cabinets were produced that day. He did not recall whether any other employee washed cabinets on August 9, or whether he received a bonus for his work on August 9. He also testified he did not observe Steffan close enough on August 9 to know whether his work was fast or slow, and that he heard Harris tell Steffan about 2 p.m., to speed up his work and if he could not do so to hit the green door.9 D. Analysis and concluding findings I conclude and find that a prima facie case of a violation of Section 8(a)(4) of the Act is presented by General Counsel's evidence of Steffan's reemployment by Respondent on August 9, 1962, in spite of his discharge for carelessness on July 18, 1962; Respondent's receiving by mail from the Board's Regional Office later on the morning of August 9 notice that Steffan had filed an unfair labor practice charge against it on August 6, 1962; and Steffan's discharge at the close of business on August 9, 1962, for failing to do efficient work. However, I also conclude and find this prima facie case is rebutted by Respond- ent's evidence that: Giordano, Respondent's personnel director, who gave Steffan employment on August 9, already knew when he put him to work that Steffan had filed the unfair labor practice charge; Steffan performed the assembly line job of washing excess glue off the television cabinets being assembly so slowly that he was asked to speed up his work, reprimanded for his slowness, and then given the assistance of a helper, a practice that was not necessary during the 11/2 years Jennings had been supervisor of this work; and the evidence that Harris and Jennings who, unlike Giordano, had no knowledge that Steffan had filed the unfair labor practice charge, determined that Steffan should be laid off. The evidence that neither Jennings nor Harris furnished gloves to Steffan does not help the General Counsel. The job can be done with or without gloves, and Steffan, like Brady, could have had gloves if he asked for them. Steffan testified that he concealed from Harris and Jennings his sore and bandaged fingers. When he replied to the reprimands of Harris and Jennings for being slow, he did not refer to his sore fingers but stated his arms were sore and tired. There was nothing to place Harris or Jennings on notice that they should have required Steffan to wear gloves. The testimony of General Counsel's witnesses Fontenot, Lymon, and Stamps does not contribute to General Counsel's case, especially when considered with the testimony of the employee witnesses Brady and Bridgforth called by Respondent. The availability of a sufficient supply of cabinets to Fontenot, Lymon, and Stamps to permit them to work at least with the minimum speed could well have been due to the assistance Brady gave Steffan. There is no evidence that Respondent showed hostility to union or concerted activity, the type of conduct an employee usually comes to the Board's Regional Office to complain of. Steffan's August 6 charge was dismissed as lacking in merit. Giordano, who had been informed of the charge by the Regional Office, 2 days before August 9, asked Steffan before he put him to work why he filed the charge, and the latter replied he did not know what else to do. It can be assumed that the Regional Office informed Giordano of the brief allegation in the charge at the time it notified him the charge had been filed. The lack of merit apparent to Giordano from the face of the charge, and Steffan's frustration apparent from his reply to Giordano's question, could well have aroused in Giordano sympathy for Steffan rather than any other reaction. The evidence shows that after these events occurred, Giordano still put Steffan to work. As stated above, Harris and Jennings, who decided on on November 20 could have been mistaken in his recollection of the identity of the employee who complained All the witnesses were credible witnesses. I have evaluated the testi- mony of each witness against the complete context of the evidence of record. See N.L.R.B. v Universal Camera Corporation, 179 F. 2d 749, 754, reversed on other grounds 340 U.S. 474. O This was Harris' way of telling an employee to quit SAKRETE OF NORTHERN CALIFORNIA, INC. 293 August 9 that Steffan would have to be discharged, did not have knowledge on August .9, that the charge had been filed. In sum, General Counsel has failed to support the allegations of the complaint by substantial evidence on the record considered as a whole. For the reasons I have stated, I shall recommend that the complaint be dismissed in its entirety. CONCLUSIONS OF LAW 1. Respondent Harris-Hub Company, Inc., is engaged in commerce within the meaning of Section 2(6) of the Act. 2. Respondent has not engaged in conduct violative of Sections 8(a)(1) and (4) of the Act. RECOMMENDED ORDER It is recommended that the Board issue an order dismissing the complaint in its entirety. .Sakrete of Northern California, Inc. and Freight, Construction, General Drivers and Helpers, Local 287, International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America.' Case No. 2O-CA-4069. April 04, 1963 ORDER ON MOTION On January 22, 1963, the Board issued its Supplemental Decision and Order (140 NLRB 765) in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain un- fair labor practices and ordering it to cease and desist therefrom and take certain affirmative action, as set forth in the Supplemental De- Icision and Order? On February 8, 1963, the Respondent filed with the Board a motion to modify the Board's Order, requesting that we eliminate the provi- sion for backpay mentioned in footnote 2, since investigation had showed that Ellis had "lost interest" in the strike on August 26, 1961, and obtained employment on September 14, 1961, and that Escajeda and Patino had continued to strike until March 5, 1962, but now have other employment and do not desire reinstatement of their employ- ment with Respondent. The Respondent also requested that the Board eliminate the requirement to bargain with Local 287. Local 287, on February 15, 1963, filed a letter of opposition to Respondent's motion, taking exception to the relief requested, but not to the state- ment of facts alleged in support of the Respondent's motion. ' Hereinafter referred to as Local 287. ,The Board found that the Respondent had violated Section 8(a) (1), (2 ), ( 3), and (5) of. the National Labor Relations Act. The Board, inter alia, ordered the Respondent to make whole Manuel Escajeda, Rual Dean Ellis, and Juan Patino for any loss of pay they may have suffered by reason of their discriminatory discharge of August 16, 1961, and to reinstate those employees to their former or substantially equivalent positions. This Order was conditioned upon a determination whether any of these three employees had abandoned their strike before September 15, 1961 . The Board reserved the right to modify its Order. The Board also ordered the Respondent, upon request, to bargain collectively in good faith with Local 287. 142 NLRB No. 27.