Sigma Chemical Co.

SIGMA CHEMICAL COMPANY 199 (c) Notify the Regional Director for Region 9, in writing, within 20 days from the date of receipt of this Decision and Recommended Order, what steps the Respondent has taken to comply herewith." "In the event that this Recommended Order is 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 NOTICE TO ALL MEMBERS OF UNITED PAPERMAKERS AND PAPERWORKERS, LOCAL No. 321, AFL-CIO 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, as amended, we hereby notify you that: WE WILL NOT by threats of violence or other means prevent employees of Philip Carey Mfg. Company from entering the Company's premises to report for work or otherwise restrain or coerce employees of Philip Carey Mfg. Com- pany in the exercise of their right to refrain from joining or supporting any strike we might call against the Company. WE WILL NOT in any like or related manner restrain or coerce employees of Philip Carey Mfg. Company in the exercise of its rights guaranteed them by the National Labor Relations Act, as amended. UNITED PAPERMAKERS AND PAPERWORKERS, LOCAL No. 321, AFL-CIO, Labor Organization. Dated------------------- By------------------------------------------- (Repr(,,sentative ) ( 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. If members have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, Room 2407, Federal Office Building, 500 Main Street, Cincinnati, Ohio 45202, Telephone 684-3686. Sigma Chemical Company and International Union of District 50, United Mine Workers of America. Case 14-CA-3798. June 13, 1966 DECISION AND ORDER On April 11, 1966, Trial Examiner Boyd Leedom issued his Deci- sion in the above-entitled proceediiig, finding that Respondent had engaged in and was engaging in certain unfair labor practices within the meaning of the National Labor Relations Act, as amended, and recommending that it cease and desist therefrom and take certain 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 National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel [Alembers Fanning, Brown, and Zagoria]. 159 NLRB No. 26. `ZOO DECISIONS OF. NATIONAL LABOR RELATIONS BOARD The Board has reviewed -the' rulings of the Trial Examiner made at the hearing and finds that no prejudicial' error was committed. The Board has considered the Trial Examiner's Decision, the excep- tions, .the brief, and the entire "^ecord ' in this case, and hereby adopts' the"findings, conclusions,. and recommendations of the Trial Examiner. [The Board adopted the Trial Examiner's • Recommended Order with the following modifications : [1. Add the following as paragraph 2 (b), the present paragraph 2(b) and those subsequent thereto-being cgilsecutively relettered: ["(b) Notify the above-named employee if presently serving in the Armed Forces of the United States of his right to full reinstate- ment- upon,-application in accordance with the Selective Service Act and the Universal Military Training and Service, Act, as amended, after discharge from the Armed Forces."] TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE The only issue in this case is whether Respondent violated Section 8 (a)( I) and (3) of the National Labor Relations Act, in the discharge of its employee Frank A. Kohn, Jr. He admittedly was discharged and there is no dispute that, at the time, he was engaged .•in union activity. The complaint, dated December 30, was issued on a charge filed November 3, 1965. The case was tried in St . Louis, Mis- souri, on January 17, 1966, before Trial Examiner Boyd Leedom. The disputed points are (1) whether ,Respondent had knowledge of Kohn 's union activity; and (2 ) whether the evidence adduced by Respondent to establish justifiable cause of discharge is in fact pretextual ,-and the real cause union activity notwith- standing certain deficiencies in the dischargee's employment performance. The resolution of these points depends on credibility and the weight to be given to cer- tain testimony. On the basis of the whole record and my observation of the witnesses on the stand, and with due consideration to briefs filed by Respondent and counsel for the General Counsel, I make the findings of fact and conclusions of law hereafter set forth, and determine that Respondent violated the Act essentially in the manner alleged in the complaint. 1. THE EMPLOYER AND THE LABOR ORGANIZATION I find that- the allegations of the complaint are true concerning the nature and the volume of ' business carried on by, Respondent, and conclude therefrom that Respondent herein is an employer engaged in commerce within the meaning of Sec- tion 2 (6) and (7) of the Act; such allegations are admitted in Respondent's answer. I also find and conclude that International Union of District 50, United Mine Workers of America, the Union named in the caption hereof, holds itself open to membership of "Employees" of "Employers," within the meaning of the Act, that it has such members and represents them for purposes of collective bar- gaining, and is a party to collective -bargaining contracts with "Employers": and that it is therefore a labor organization within the meaning of Section 2(5) of the Act. A. Company knowledge of union activity Kohn ' was discharged by Respondent on Friday, October 29, 1965. He had been employed since February 1962 , a period of about 3 years and 8 months. I find that the Union's effort to organize Respondent's employees started during the latter part of the week beginning October 18, 1965 ; that some cards, author- izing the Union to represent employees of Respondent, were signed as early as SIGMA CHEMICAL COMPANY ` 201 Monday; --October. 25;; that the campaign started' with, uhion representatives talk- ing to employees on sidewalks bordering Respondent's plant; that Kohn met with two- union representatives and 1three other employees , during ' the lunch period on Thursday, October 28 , the day before he was discharged, in a union represerita- tive's automobile, parked near Respondent's plant; .and was' observed there by two of Respondent's supervisors ; that Kohn signed a union membership card in the car and took ' cards for solicitation of other - employees; that Kohn's immedi- ate - superior, James' Furnas,' who., shared- responsibility for Kohn's discharge, learned about the union activity in the plant the week of October 28, and knew of it, according to his own testimony, before Kohn was fired. - I also find that Aaron Fischer, who, with Furnas, was responsible for the decision to let Kohn go, had knowledge of union activity in the plant and of Kohn's involvement -in, it, at -the time of the discharge , notwithstanding his testi- mony hereafter discussed. I credit Kohn's 'testimony that about 4 : 30 in the afternoon -of the day he was with the union representatives during the 'lunch hour, his supervisor, Fumas, told him "that Mr Fischer had my name and another •employee's name, and he said I think you know what, it is about. He said if you are not directly involved in what is going on I would advise- you to stay away from anyone that is.". That afternoon Kohn had' talked to about -five employees, during the work break, con- cerning the Union and offered them. membership cards. Furnas testified and I find, that he told Kohn that "Mr . Fischer had seen-him-out of the building sitting up the street in a car, and that Frank had not been 'punched out" and had also seen "Frank [Kohn ] talking to a couple people that afternoon in the building, and that maybe the next morning we , ought to have a little meeting and discuss what we should do about it ." Furnas denied that he had told Kohn that Fischer had his name and that of another employee, : and "that he should know what it was about," and not to get involved . I, however, credit Kohn and find that Furnas did tell him essentially what Kohn said . he told him , and that by implication , if not explicitly, he made it clear that the involvement to avoid was with the Union. • Fischer admitted seeing Kohn that Thursday afternoon "taking care of all the other problems in the world instead of minding his own business," in an incident involving a mistake in the paycheck of another employee. He also testified, contrary to • the testimony of the Supervisor Furnas, that he "did not see Frank out of the plant but someone mentioned that he, was out." If Fischer did not say to Furnas, as Furnas testified, that he had seen Kohn "out of the building sitting up the street in a car" it is difficult to know how Furnas ever found out- that Kohn was up -the street in a car. Fischer, to a direct question how he got information that Kohn had been out of the plant, answered "Somebody , mentioned it, and I'm sorry, I don't recall who. I did not see him." The only persons who knew and who had sufficient interest to tell Fischer that Kohn was out of the plant, were the two supervisors who saw Kohn in the union representative's car. I- find and conclude that they are the ones who told Fischer (the ones he could not, remember ) and that he did in fact tell Furnas that Kohn had been out of the building "sitting up the street in-a car:' I further . find and conclude that if Fischer was going to rest the discharge in part on a plant-rule violation (failure to punch out) he would or should have remembered the name of, his informant ; and I find that he did know his source of information. I infer from his failure to disclose all his information as to where Kohn was, and who told him, that Fischer knew ' he had been with union representatives and that full disclosure would have weakened the contention that the discharge was for the failure to "punch out," and for disregard of duty-for "kibitzing" and for "goofing-off." Thus I find and conclude, not only that Furnas, but Fischer as well (the two persons of Respondent's management who discharged Kohn ) knew that he was engaged in union activity when they discharged him. I 'make this finding con- cerning Fischer's knowledge notwithstanding that he testified "I did not know of union activities. I learned ... .' at least a week later . there were some handbills and that's when I learned specifically about this." If Fischer did not know "specifically" he had good reason to believe Kohn was working with the Union. . - B. The pretextual cause of the discharge The findings and conclusions I have hereinbefore made concerning Respond- ent's knowledge of Kohn's union activity, reveal a hidden motivation in dealing 202 DECISIONS OF NATIONAL LABOR RELATIONS BOARD with this employee, and such findings are a factor in my ultimate conclusion that Kohn was discharged because of his union activity rather than for the rule violation and failure ,to perform his work satisfactorily. Additional factors follow. • . ' The evidence fails to disclose either a written reprimand or any conversation or incident that can fairly be interpreted as a true oral reprimand.- I find none was ever made, even though Respondent claimed Kohn's bad work performance had been going on for months-almost from the beginning of his employment. On the contrary the evidence reveals that without fail he received a merit increase every time he came up for one. Not all employees were so fortunate. And during his employment he moved up in -responsibilities. Considerable testimony was taken concerning pay increases. Early in his employment, at one salary increase period Fischer inquired of Kohn's supervisor whether he wanted to give him a nickle increase or fire him. Much later, when Kohn had said to Super- visor Furnas he would like a 50-cent-an-hour increase and 5 cents to 10 cents was usual, the decision was made to give him the small increase, along with sword that if he spent less time on trips around the plant he might get more-a kind of "bribe" for a better performance. I do not find that his testimony is probative as to the, cause •of_ the discharge; and that as to the "bribe" approach it at most tends to-establish that Kohn could have been more effective than he was. ^ Kohn's testimony that for'sometime he felt'Fischer was out to "get him" (a feeling he had long before there was any union activity in the plant) was'a feeling he devel- oped because Fischer was the one who denied him larger pay increases; and this testimony has little if any bearing on the issues. There is testimony in the record, which I credit, tending -to'show that Kohn did not work hard or energetically all of the time; but, that he could and did work well when he really worked. Notwithstanding such loafing, or "goofing-off" or "kibitzing," as his work habit was.' characterized in the testimony, I find and conclude that it cannot reasonably be deemed to be, cause for sudden dismissal, even when considered with the failure to punch the clock when going out of the building at lunch time; and that it was not the cause. Furnas' testimony of -his long relationship with Kohn certainly does not reveal justifiable cause for im- mediate discharge. And Fischer's answer to a -request for "a little more specific" reason for the discharge, was more loquacious' than persuasive. Reduced to fewer words the reasons given were: "Well essentially there were two things, one seeing Frank someplace in'. the plant on that day late in the afternoon that I had a dis- cussion' on `other matters with, Mr. Furnas, and the fact' that [this] had been mentioned, that Frank was out of the plant," Being "seen some place in the plant" with no claim of any special harm flowing from his being there 'or hurtful neglect of his job, or any real, showing that he vas someplace he should not be, is hardly cause for discharge, especially in the absence of any evidence of specific failure of :a like, or of any other nature, leading up to the "final straw." Essentially all claims-of loafing (or more precisely excessive time on errands) were very general in nature, almost totally lacking in specificity. And for the reasons hereinafter set-forth, the stated cause of the discharge that Kohn "was out of the plant" adds nothing of any substance whatever to the 'lawfulness of the discharge. No one in the plant was ever discharged for not "punching out" when leaving the building at lunch time, or any other time., I credit Kohn's testimony that he never clocked out at lunch time unless he was going to be out longer than-the half hour allotted-for lunch, and I find and conclude from his testimony, and the other relevant evidence; that the rule was utilized primarily in cases of excessive time-out, and that violation of the rule was widespread in the plant. Fischer testi- fied that he did not believe the rule had application for those leaving the plant to play baseball on an adjacent street. The one supervisor who testified as to, some strictness in, seeking to' enforce the rule, testified' of four cases only, none of the four employees involved having clocked out' for lunch, indicating the general dis= regard of the rule. At least three of these four stayed out beyond the allowed time, and they 'were only told this could not be tolerated and it "should, not happen again." The fourth was a new employee with whom the rule had not been stressed and when, alerted began punching';out. The evidence, so clearly establishing a relative unimportance of the rule with respect to employees not clocking out and remaining out no longer than 30 minutes, not only fails to estab- lish cause for the discharge but marks the defense as a pretext. The undisputed testimony is that Kohn left the plant at 12 o'clock and returned at 12:25 on' the Thursday he met the union representatives. No claim is made SIGMA CHEMICAL COMPANY 203 that any neglect of'his job, or other detriment, resulted from Kohn's failure to clock out on this date or any other time he failed to follow the rule. It stands as a technical violation' only. I credit the testimony of Kohn that when Furnas discharged him about 4 p.m. on Friday, October 29, he told Kohn "that I was being fired because I left the building without clocking out, because I had been seen in the car with those men." Not only did Kohn impress me as being a straightforward witness, but the reasons attributed by Kohn to Furnas as the cause for the discharge, were quite naturally the ones Furnas would give. That is to say, his own testimony concerning his relationship to Kohn concerning Ko'hn's work performance was such he could not confront Kohn with the story that his work record was a cause of discharge. For all these reasons I find that Respondent's claim that Kohn was discharged for the rule violation and a poor work record, is a mere pretext and that he was in fact discharged because of his union activity and support of the Union's effort to organize Respondent's plant; that the discharge was therefore in violation of Section 8(a)(3) and (1) of the Act; and I also find and conclude that Super- visor Furnas' statement to Kohn: "I think you know what it is about . . . if you are not directly involved in what is going on I would advise you to stay away from anyone that is" was an unlawful interference with Kobn's right, under Sec- tion 7 of the Act, to engage in activity in behalf of the Union, and a violation of Section 8(a) (1) in that it was veiled threat, in its context, that what did hap- pen to Kohn would happen if he did not discontinue his union activity. The record of testimony is hereby corrected, pursuant to the motion of counsel for Respondent. II. THE REMEDY Having found that the Respondent has engaged in unfair labor practices, I shall recommend that it cease and desist therefrom and that it take certain affirmative action of the type which is conventionally ordered in such cases, as provided in the Recommended Order below, and which action I find necessary to remedy, and to remove the effects -of, the unfair labor practices, and to effectuate the policies of the Act. For the reasons which are stated'in Consolidated Industries, Inc., 108 NLRB 60, 61, and cases there cited, I shall recommend a broad cease- and-desist order. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law and upon the entire record in the case, it is recommended that the Respondent, Sigma Chemical Company, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Interrogating and threatening its employees unlawfully as to their union membership and activities. (b) Discharging or otherwise discriminating in respect to the hire and tenure of Frank A. Kohn, Jr., or any other_ employee for the purpose of discouraging membership in the aforesaid Union, or any other labor organization. (c) In any other manner interfering with, restraining, or coercing employees in the exercise of their rights as guaranteed by Section 7 of the Act 2. Take the following affirmative action which will effectuate the policies of the Act: (a) Offer to Frank A. Kohn, Jr., immediate and full reinstatement to his former position, or to a substantially equivalent position, without prejudice to his senior- ity or other rights and piivileges and make him whole for any loss of earnings suffered as a result of his discharge, by payment of a sum equal to that which he normally would have earned from the date of his discharge to the date of the Respondent's offer of reemployment,, less his net earnings during said period, the computation to be in accordance with the formula stated in F. W. Woolworth Company, 90 NLRB 289, with interest thereon at 6 percent per annum, as pro- vided in Isis Plumbing & Heating Co., 138 NLRB 716. (b) Post at its plant in St. Louis, Missouri, copies of the attached notice marked "Appendix." I Copies of said notice, to be furnished by the Regional Director for In the event that this Recommended Order is 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 If the Board's Order is enforced by a decree of a United States Court of Appeals , the notice will he further amended by the substitution of the words "a Decision and Order." 204 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Region 14, shall, after being signed by a representative of Respondent, 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 employ- ees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any material. (c) Notify the Regional Director for Region 14, in writing, within 20 days from the receipt of this Decision and Recommended Order what steps the Respond- ent has taken to comply herewith.2 a In the event that this Recommended Order is adopted by the Board , this provision shall be modified to read : "Notify the Regional Director for Region 14, in writing , within 10 days from the date of this Order what steps the Respondent has taken to comply herewith." 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, as amended, we hereby notify our employees that: WE WILL NOT interrogate or threaten our employees unlawfully concerning their union membership and activities. WE WILL NOT discourage membership in International Union of District 50, United Mine Workers of America, or in any other labor organization by discriminatorily discharging any of our employees or in any other manner discriminating against any individual in regard to his hire or tenure of employment. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of rights guaranteed them in Section 7 of the Act. WE WILL offer to Frank A. Kohn, Jr., immediate and full reinstatement to his former or substantially equivalent position, and make him whole for loss of pay suffered as a result of the discrimination against him; and if he is presently serving in the Armed Forces of the United States WE WILL notify him of his rights to reemployment under applicable statutes. All our employees are free to become, remain, or refrain from becoming or remaining members of any labor organization. SIGMA CHEMICAL 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. If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, 1040 Boatmen's Building, 314 North Broadway, St. Louis, Missouri 63102, Telephone 622-4156. Queen City Coach Company and Amalgamated Transit Union, Local No. 1531. Cases 11-CA-2855,2885, and 2898. Jwne 13,1966 DECISION AND ORDER On March 28, 1966, Trial Examiner Thomas A. Ricci 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 affirmative action, as set forth in the attached Trial Examiner's De' 1- 159 NLRB No. 19.