Caplan Brothers Glass Co., Inc.

CAPLAN BROTHERS GLASS CO., INC. 1023 The Petitioner, with an office at Coos Bay, Oregon, requests a state- wide (Oregon) bargaining unit with the date the petition was filed (August 21, 1964) as the date for determining eligibility to vote. The Employer states that it had seven employees working in the State of Oregon on that date. The Employer contends that the bargaining unit should be limited to the Coos Bay area and that only those employees who have worked 30 days within the last year should be eligible to vote in any election. The Employer states that five employees meet this eligibility requirement. On the basis of the facts presented by this record, the Board is unable to conclude that either of the aforesaid proposed units is appropriate for the purpose of collective bargaining. Although an employerwide unit would be appropriate," the Petitioner has not requested such a unit, and neither the Petitioner nor the Employer contends that such unit is appropriate here .6 The Petitioner offers no reason why the unit should be limited to the State of Oregon. Under such circumstances, we are unable to conclude that the requested unit is based upon any consideration other than extent of organization, one to which, by statutory mandate,? we are forbidden to give con- trolling effect. The Employer's contention that the jurisdictional limits of the Petitioner require that the unit be restricted to the Coos Bay area is also without merit since the. Board has consistently refused to predicate an appropriate unit finding upon the scope of a local union's territorial jurisdiction.8 Therefore, in the circumstances of this case, we shall dismiss the petition.9 [The Board dismissed the petition.] G See Section 9(b), National Labor Relations Act, as amended 6 If the Board were to find that an employerwide unit was appropriate, the petition would have to be dismissed since it does not appear that the Petitioner has the required 30-percent showing of interest for such a unit 7 See Section 9(c) (5), National Labor Relations Act, as amended. 8 See Broomall Construction Company, 137 NLRB 344, 346 9 Since we do not find any unit appropinate here, it is not necessary to make the con- tested eligibility determination Caplan Brothers Glass Co., Inc. and Charles J. Herbert. Case No. 5-CA-2729. November 24, 1964 DECISION AND ORDER On August 24, 1964, Trial Examiner Eugene F. Frey issued his Decision in the above-entitled proceeding, finding that Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take cer- 149 NLRB No. 97. 1024 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, Respondent filed exceptions to the Decision 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 Leedom and Jenkins]. 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 Trial Examiner's Decision, the exceptions, the brief, and the entire record in the case, and hereby adopts the findings,' conclusions, and recom- mendations of the Trial Examiner. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the Board hereby adopts as its Order, the Order recom- mended by the Trial Examiner, and orders that Respondent, its officers,, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order, with the following modifications : Add the following as 2(b) of the Order and renumber subsequent paragraphs accordingly : "(b) 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 and the Universal Military Training and Service Act of 1948, as amended, after discharge from the Armed Forces." 1 The first conversation between the Employer's General Manager Seidman and Charg- ing Party Herbert occurred during the morning of January 29, 1964, at the Employer's plant. Accordingly, we correct the Trial Examiner's finding to reflect the record testimony. DECISION OF TRIAL EXAMINER STATEMENT OF THE CASE This issues in this case are whether Respondent, Caplan Brothers Glass Co., Inc., during an attempt of its employees to associate with a labor organization affiliated with the Baltimore Building and Construction Trades Council (herein called the Council or the Union), interrogated employees about, and threatened them with reprisals for, their adherence to said Union, in violation of Section 8(a)(1) of the National Labor Relations Act, as amended, 29 U.S.C. Sec. 151, et seq. (herein called the Act), and at the same time discharged and refused to reinstate employee Charles J. Herbert for such activity, in violation of Section 8(a) (3) of the Act. The issues arise on a complaint issued May 22, 1964,1 by the General Counsel of the Board through the Regional Director for Region 5, and the answer of Respondent which admits jurisdiction but denies the commission of any unfair labor practices. On due notice a hearing on the issues was held before Trial Examiner Eugene F. Frey on July 8, 1964, at Baltimore, Maryland, in which General Counsel and Respond- 1 The complaint issued after Board investigation of a charge flied February 28, 1964, by Herbert. CAPLAN BROTHERS GLASS CO., INC. 1025 ent participated through counsel, and Herbert appeared personally. At the close of the hearing, I reserved decision on Respondent's motion to dismiss the complaint on the merits, which motion is disposed of by the findings and conclusions herein. The parties waived oral argument, but a written brief filed by Respondent has been care- fully considered by me in making this Decision. Upon the entire record in the case, including my observation of the witnesses on the stand, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT Respondent is a Maryland corporation engaged at Baltimore, Maryland, in the sale and installation of glass windows. In the course of such business in the past 12 months, Respondent had a direct inflow to its place of business of goods and materials valued in excess of $50,000. I find that Respondent at all material times herein has been and is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 11. THE LABOR ORGANIZATIONS The Union, and Local 328 of the International Brotherhood of Painters, Decorators and Paperhangers of America (herein called the Painters), affiliated with the Union and considered herein as part of the Union, are each labor organizations within the meaning of Section 2(5) of the Act. HI. THE UNFAIR LABOR PRACTICES In July or August 1963, the Union had sent Respondent a letter demanding that it pay its employees union wage scales, and threatening picketing of its plant if it did not. Picketing began in October and lasted until Christmas 1963. None of Respond- ent's employees joined the picket line or engaged in any concerted activity on their own or with the Union in this period. Respondent was well aware of the activity of the Union prior to the events of 1964 found below. On the night of January 28, 1964, Charles J. Herbert and Norman Zeller, glass- workers employed by Respondent, attended a private meeting with a Council agent for assistance in organizing Respondent's employees into the Painters. The agent gave them union authorization cards to distribute among the employees. The next morning, while Herbert was out working in a crew of five employees on a job, the others asked him about his meeting with the Council agent. He told them and showed them the cards. While on that job, S. Sherald Seidman, general manager of Respond- ent, visited the job and asked Herbert with a smile, "How did your meeting go?" Herbert did not answer, but kept on working. When Herbert returned to the plant that afternoon, Seidman called him to the office and discharged him. The crux of the case and main conflict of proof lies in the course of that interview. Herbert testified that Seidman first asked him if the names of Elmer Novak, James Lucas, George Jones, and Jake Ellis "rang a bell" with him, reminded him of the Union. Herbert said they were the men with whom he usually worked. Seidman asked if this group had been talking about the Union or the picket line, or had anything to do with the Union. Herbert said they had talked about this, but no more than workers discussed it generally in the plant. Seidman told Herbert he was lying about it, and was trying to start trouble in the Company with the Union, and the Company would be better off without him, and that he was going to set Herbert up "as an example" to the others and pay him off; Seidman added that if he was making a mistake in this, he would "make it up to"' Herbert. Herbert said he could do nothing about it, as Seidman was the boss. Seidman also said that before he would let the Union into his plant, he would close the doors and call the business "Sherald Seidman Glass Company." Seidman then paid off Herbert, who has not been recalled since. Seidman's version of the talk is that he called Herbert in to tell him that other crew- men had complained that they did not want to work with him because of his attitude and unsatisfactory work, and that since Seidman could not choose a special crew for him to work with, and Herbert had to be able to work with everyone, Seidman had no alternative but to discharge him. Seidman also testified that immediately after the discharge Herbert begged to be taken back, saying he needed the job, and reminded Seidman that he had done Respondent a favor by going to a union meeting the night before to get information. about the Union for Respondent. Seidman asked Herbert why he had not told this to Seidman before but had waited until after his discharge to tell him. Herbert replied that he had had no chance to. Seidman then questioned him about the meeting. Herbert said the union agent had asked those present to sign 770-076-65-vol. 149-66 1026 DECISIONS OF NATIONAL, LABOR RELATIONS BOARD cards, and had given Herbert one to sign. Seidman asked to see it, but Herbert said it was at home. Seidman asked what men were at the meeting, and what men Herbert had talked to that day, and Herbert named the four mentioned above. - . In support of the discharge, Seidman also testified that during Herbert's last period of employment (August 1963 to discharge), he was working as mechanic on a truck with helper Paul Branch,2 and Branch complained about Herbert's bossy attitude, which madenhim.hard, to,,work with. Prior to that, while Herbert,had been mechanic on a truck at times during 1962 and 1963, helpers working with him had made the same complaints and asked to be transferred to other, mechanics. Branch reported that Herbert was a competent workman, but was hard to work with because he was "overbearing," so Branch asked Seidman to assign him to another truck late in 1963. Herbert himself admits that while he and Branch were on the same crew, they had some "disagreements." In addition, Herbert's admission of a rather violent argument with Seidman in December 1963, when his request for a raise was refused because of alleged unsatisfactory work, and my own observation of his demeanor on the stand, indicate that Herbert was an outspoken man with a rather blunt, argumentative, and aggressive manner of speech, which might well justify the description of "overbearing" or "bossy" while working orduring arguments. However; the force of this testimony, and of Seidman's story in general, is weakened by Seidman's admissions that he in effect reproached Herbert, immediately after the discharge, but in the same interview, for not having told him beforehand about his attendance at the union meeting, and his immediate and persistent interest in what was said there, who attended, and a desire for examination of the union card. Although Seidman says this discussion occurred after the discharge (when Herbert would no longer be an employee), his remarks tended to indicate clearly to Herbert that, if he had reported at the outset of the interview on the union meeting and his talks with the other workers about the Union, he^probably would not have been discharged. This inference-is strengthened by Seid- man's further admission that, on the basis of this interrogation, he later queried the four other employees about their union sentiments, and also asked them whether Herbert, in - his talks -with them,- had talked about "anything irregular" which. he defined as including "anything underhanded," and "attendance of workers at union meetings." Seidman testified that this interrogation was prompted solely by his stunned disbelief of what Herbert had told him about the union meeting and -the presence of four or more workers there. At first blush this explanation is persuasive because credible testimony of both Herbert and Seidman shows that during the Union's 1963 picketing of the plant, employees had often derided the picketing in talks with Seidman, and clearly showed their union animus, and over a period of years Herbert had often told Seidman bitterly about his repeated attempts to join the Painters and his repeated rebuffs - (due to the alleged closure of their membership lists) and expressed his open dislike of the Painters, saying he felt he was doing far better in Respondent's open shop than in plants organized by the Painters. In addition, the record shows that when Herbert had quit Respondent's employ three or four times in the past to take temporary union jobs which-paid better wages, he had always returned to work for Respondent, and on one occasion Seidman tried to induce him to quit temporary union work by pointing out-the greater benefits of working for Respondent. These circumstances indicate that on January 29, 1964, Seidman may have had good reason to believe (as he testified) that Herbert and his other employees were antiunion, and to be surprised when he learned of their attendance at the union meeting the night before. However, this does not alter my conviction that Seidman's total remarks demonstrate that he was discharging Herbert because of Seidman's suspicion or belief that-he had attended -the union meeting and talked to other workers about ,joining_a union, and belatedly defended the' discharge by, explaining `to Herbert that it would not have occurred if he had made it clear at the outset of their talk that his attendance had been only for purposes of surveillance for Respondent's benefit. This explanation would ring true if Seidman had reinstated Herbert after the explanation. When he did not, I can only conclude that his belief or suspicion of Herbert' s union activity, which was an about-face from his prior apparent union animus, must have shocked and displeased Seidman to the extent that it prompted him to discharge one who he had always thought was solidly antiunion, but who had suddenly and secretly reversed his position. This conclusion is also supported by the fact of Respondent's strenuous efforts at the hearing to prove that Herbert in his past periods of employment had long been guilty of chronic absenteeism, and in his last period of work had done unsatisfactory work on`at least four large-installation: jobs-in 1963, which had brought serious cus- a In glass installation, Respondent's employees usually worked in crews of two men to a truck, with one man as mechanic or, boss on the job, the other as his helper. CAPLAN BROTHERS GLASS CO., INC. 1027 tourer complaints personally to Seidman ,3 on the basis of which he had denied Herbert a raise in December 1963 (though he had given him one when he came back to Respondent in August ) and then demoted him from mechanic to helper after a violent quarrel during which Herbert used coarse language and refused to take out a truck thereafter as mechanic While it is clear that Herbert had been far from satis- factory as a mechanic or truck boss during his last 1963 employment , I consider this defense spurious because ( 1) there is no credible proof that Seidman mentioned these derelictions or his demotion on January 29 as reasons for discharge ; ( 2) no matter how poor his performance had been in the past , Respondent had never disciplined him before but always took him back, on two or three occasions as a helper and in his last employment as a mechanic ( which was in effect a promotion ), because experienced plate-glass mechanics were scarce , and Herbert had admittedly been a good workman, and (3 ) Respondent's willingness to forgive and forget past shortcomings is also shown by repeated substantial loans to Herbert of large sums of money throughout his employment and also special efforts in his last employment to have his driver's license and car insurance reinstated after several serious accidents involving law violations. These circumstances indicate that Respondent was trying at the hearing , as an after- thought, to build a picture of Herbert as an unsatisfactory worker , and an ungrateful one to boot, in order to conceal the true motive for his discharge.4 For reasons stated above, I credit Herbert's version of the discharge interview out- lined above , and discredit Seidman 's testimony thereon, including his denials of inter- rogation of Herbert on January 28 and 29 , and find on the basis thereof that (1) Respondent violated Section 8(a) (1) of the Act by Seidman's interrogation of Herbert on January 28 and 29, 1964 , and other employees thereafter, about union activities of employees, and by Seidman 's threat on January 29 to shut down the business and reopen it under another name if the Union came into the plant; and ( 2) on Janu- ary 29, 1964 , Respondent discharged Charles J. Herbert, and has since refused to rein- state him, because of his union activities , thereby discouraging membership in a labor organization, in violation of Section 8(a) (3) of the Act 5 IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with the operations of Respondent described m 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 thereof. V. THE REMEDY Having found that Respondent has engaged in and is engaging in certain unfair labor practices, I shall recommend that Respondent be ordered to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act As I have found that Respondent discriminatorily discharged , and has refused to reinstate , Charles J . Herbert, I shall recommend that it offer him immediate and full reinstatement to his former or a substantially equivalent job, without prejudice to seniority and other rights previously enjoyed, and make him whole for any loss of earnings he may have suffered by reason of the discrimination against him , by pay- ment to him of a sum of money equal to that which he would have earned as wages from the date of the discrimination against him to the date of a proper offer of rein- statement, less interim earnings, the amount to be computed in accordance with the formula set forth in F . W. Woolworth Company, 90 NLRB 289, to which should be added interest at the rate of 6 percent per annum as prescribed in Isis Plumbing & Heating Co., 138 NLRB 716. I shall also recommend that Respondent be ordered to preserve and make available to the Board or its agents, upon request , for exami- nation and copying, all pertinent books and records which may be necessary to ana- lyze and compute the amount of backpay due and the right to reinstatement under these recommendations. IIn the normal course of business , customer coniplaints of routine nature were taken by telephone , and adjustments made on routine orders to the warehouse and installation crews, only unusual and serious complaints were brought to Seidman personally for in- cestieation and adjustment i See Hurd Coiporation , 143 NLRB 306 , Hilnaa H Erikson et at , d/b / a Detroit Plastics Products Company , 121 NLRI; 448 , 479-482 I have carefully considered other arguments made -by Respondent in its brief , and have tound them without merit 1028 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In view of the variety of unfair labor practices committed, which indicate Respond- ent's fundamental hostility to the purposes of the Act, I shall recommend the issuance of a broad cease-and-desist order. Upon the basis of the above findings of fact and the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. The above-named Council and the Painters are labor organizations within the meaning of Section 2(5) of the Act, and Respondent is an employer engaged in com- merce within the meaning of Section 2(2), (6), and (7) of the Act. 2. By discriminating in regard to the hire and tenure of employment of Charles J. Herbert, thereby discouraging membership in a labor organization, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (3) of the Act 3. By the above conduct, and by interrogating employees regarding their union sentiments and activities, and threatening them with reprisals if any labor organization organized its plant, thereby interfering with, restraining, and coercing employees in the exercise of rights guaranteed to them by Section 7 of the Act, Respondent has engaged in and is engaging 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. Except as found above, Respondent has not engaged in unfair labor practices as alleged in the complaint. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact, conclusions of law, and the entire record herein, and pursuant to Section 10(c) of the Act, I recommend that Respond- ent, Caplan Brothers Glass Co., Inc., its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discouraging membership in or activity on behalf of Baltimore Building and Construction Trades Council, or any of its affiliated labor organizations, or any other labor organization, by discharging or refusing to reinstate any of its employees, or in any other manner discriminating against employees in regard to their hire or tenure of employment or any term or condition of employment. (b) Interrogating employees regarding their union sentiments and activities or threatening them with reprisals if any labor organization organized its plant. (c) In any other manner interfering with, restraining, or coercing employees in the exercise of rights guaranteed to them by Section 7 of the Act, or to refrain from the exercise of any or all of such rights, except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Section 8(a) (3) of the Act. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Offer to Charles J. Herbert immediate and full reinstatement to his former or substantially equivalent position without prejudice to seniority or other rights and privileges previously enjoyed, and make him whole for any loss of earnings, in the manner set forth in the section of this Decision 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 all other records necessary to analyze the amount of backpay due and the right to reinstatement under the terms of this Recommended Order. (c) Post at its plant and place of business in Baltimore, Maryland, copies of the attached notice marked "Appendix A." 6 Copies of said notice, to be furnished by the Regional Director for Region 5, shall, after being duly signed by Respondent's repre- sentative, be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that such notices are not altered, defaced, or covered by any other material. 6In 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 "a Decree of the United States Court of Appeals, Enforcing an Order" shall be substituted for the words "a Decision- and Order " R.E.D.M. CORPORATION 1029 (d) Notify said Regional Director, in writing, within 20 days from the date of receipt of this Decision, what steps Respondent has taken to comply herewith.? I further recommend that the complaint herein be dismissed insofar as it alleges violations of the Act other than those found in this Decision. 'In 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." APPENDIX A 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 Rela- tions Act, we hereby notify you that: WE WILL NOT discourage membership in or activity on behalf of Baltimore Building and Construction Trades Council, or any of its affiliated labor organi- zations, or any other labor organization, by discharging or refusing to reinstate any of our employees , or in any other manner discriminating against employees in regard to their hire, tenure of employment, or any term or condition of employment. WE WILL NOT interrogate our employees regarding their union sentiments and activities, or threaten them with reprisals if any labor organization organizes our plant. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of rights guaranteed to them by Section 7 of the Act, or to refrain from the exercise of any or all of such rights, except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as a condition of employment , as authorized in Section 8 (a) (3) of the Act. WE WILL offer Charles J. Herbert immediate and full reinstatement to his former or substantially equivalent position without prejudice to seniority or other rights and privileges previously enjoyed , and make him whole for any loss of earnings he may have suffered by reason of our discrimination against him. CAPLAN BROTHERS GLASS CO., INC., Employer. Dated------------------- By------------------------------------------- (Representative ) ( Title) NOTE.-We will notify Charles J. Herbert 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 and the Universal Military Training and Service Act of 1948, as amended, after discharge from the Armed Forces. 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, Sixth Floor, 707 North Calvert Street, Baltimore, Maryland, Telephone No. 752-8460, Extension 2100, if they have any question concerning this notice or compliance with its provisions. 1LE.D.M. Corporation and Faye Fiduccia. Case No. 22-CA- 1743. November 24, 1964 DECISION AND ORDER On August 26, 1964, Trial Examiner John H. Eadie issued his Decision in the above-entitled proceeding, finding that Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain 149 NLRB No. 98.