Modulus Corp.

Modulus Corporation and Raymond Nicholson, Jr. Case 6-CA-10431 June 15, 1978 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND MURPHY On March 13, 1978, Administrative Law Judge Leonard M. Wagman issued the attached Decision in this proceeding. Thereafter, Respondent filed excep- tions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings,' and conclusions 2 of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the Respondent, Modulus Corporation, Mount Pleasant, Pennsylvania, its officers, agents, successors, and assigns, shall take the action set forth in said recommended Order, except that the attached notice is substituted for that of the Administrative Law Judge. ' The date "June 27, 1977" in the remedy section of the Administrative Law Judge's Decision appears to be an inadvertent error. As the record discloses that the telephone conversation between Henderson and Balog occurred on the last Tuesday in June, the date is hereby corrected to read June 28, 1977. 2 Respondent has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to over- rule an Administrative Law Judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Dry Wall Products. Inc., 91 NLRB 544 (1950), enfd. 188 F. 2d 362 (C.A. 3, 1951) We have carefully examined the record and find no basis for reversing his findings. MODULUS CORPORATION APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT refuse to reinstate or otherwise discriminate against any employee because he or she filed charges or permitted his or her name to appear on charges filed under the National La- bor Relations Act. WE WIL L NOT warn employees that they will be discharged or otherwise suffer discrimination with regard to their employment, because they filed unfair labor practice charges against us or because their names appear on an unfair labor practice charge filed against us. WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of the rights guaranteed them in Section 7 of the Act. WE WILL offer George Henderson immediate and full reinstatement to his former position or, if that position no longer exists, to a substantial- ly equivalent position, without prejudice to his seniority or any other rights and privileges previ- ously enjoyed and WE WILL make him whole for any loss of pay he may have suffered by reason of the discrimination against him, plus interest. MUDULUS CORPORATION DECISION STATEMENT OF THE CASE LEONARD M WAGMAN. Administrative Law Judge: This matter was heard on January 19, 1978, in Pittsburgh, Penn- sylvania, upon a charge filed on July 29, 1977, by Ray- mond Nicholson, Jr., an individual, and a complaint issued by the Acting Regional Director for Region 6 of the Na- tional Labor Relations Board on October 26. 1977. The complaint alleges that Modulus Corporation, referred to below as the Company, violated Section 8(a)(1) and (4) of the Act by telling employees that the Company would not hire them because an unfair labor practice charge had been filed on their behalf with the National Labor Relations Board, and by failing and refusing to hire George Hender- son because an unfair labor charge had been filed on his behalf against the Company, and because of his participa- tion as a witness in the investigation of that charge. Re- spondent denied commiting the alleged unfair labor prac- tices. Upon the entire record in this case, including my obser- vation of the witnesses and their demeanor, and after due consideration of the briefs filed by the parties, I make the following: 236 NLRB No. 116 967 DECISIONS OF NATIONAL LABOR RELATIONS BOARD FINDINGS OF FACT 1. RESPONDENITS BUSINESS The Company, a Delaware corporation, manufactures and distributes industrial fasteners. At its plant, located at Mt. Pleasant, Pennsylvania, the Company annually re- ceives goods and materials valued in excess of $50,000, di- rectly from sources outside the Commonwealth of Pennsyl- vania for use at that facility. The Company annually ships goods and materials values in excess of $50,000, from its Mt. Pleasant plant directly to points outside Pennsylvania. The Company admitted and I find that the Company is an employer engaged in commerce within the meaning of Sec- tion 2(6) and (7) of the Act. II THE UNFAIR LABOR PRACTICES A. The Facts On March 4, 1977, an unfair labor practice charge was filed at the Board's Pittsburgh, Pennsylvania, office, in Case 6-CA-10002, alleging that "[o]n or about October 28, 1977, [sic] " the Company had "discriminatorily laid off and subsequently discharged" five employees, including George Henderson, because of their union activity. There- after, on May 31, 1977, the Regional Director approved a request to withdraw the charge. The alleged violations arose out of the unfruitful at- tempts of George Henderson, a laid-off employee named in the withdrawn unfair labor practice charge, to obtain reinstatement. The Company first employed Henderson in June 1969. On October 28, 1976, the Company laid him off. Henderson's first attempt at reinstatement occurred in December 1976, during a visit to the Company. Henderson made his request to Plant Manager Charles Thomas. Thomas responded that there was no work available, due to economic conditions. During the same visit, Henderson repeated his request to a number of other supervisors and received the same response. Henderson's next attempt at reinstatement occurred ear- ly in June 1977. Henderson telephoned Plant Manager Thomas' office and was told by Thomas' secretary, Sandy Scalone, that Thomas was busy, but that she would talk to Thomas and "try to get back to [Henderson] today or the first thing tomorrow." That same afternoon, Scalone called Henderson, told him that she had talked to Thomas and that Thomas had requested that Henderson write a letter to Thomas showing his sincerity about coming back. Hender- son honored the request. The following week, Henderson telephoned Thomas' of- fice and encountered Scalone. After acknowledging that Thomas had received Henderson's letter, she asked Hlen- derson to wait "a couple of days" for a response. Henderson waited until the last week of June to inquire as to the plight of his request for reinstatement. He called Thomas' office again. Henderson asked to speak to Thomas. Scalone put him on hold, returned, and said that he could not speak to Thomas, adding "he won't talk to you, but he told me to tell you this, he asked two other supervisors and they refused to bring you back." Hender- son responded, "I must have a lot of enemies." Scalone replied: George, probably if you didn't go to the Labor Rela- tions Board, you might have had a better chance. If you don't hear from us in 3 days, forget it, look for a job elsewhere because if you would come back here, you would be under a lot of pressure. Undaunted, Henderson continued to press his need for em- ployment. Henderson asked Scalone if Thomas would per- mit him to talk to some of the other supervisors. Scalone put Henderson's call on hold, came back a short time later and said that Thomas would permit Henderson to talk to some of the other supervisors. That same day, after an unsuccessful attempt to reach Supervisor George Sanders, Henderson asked to be put in touch with another supervisor, Edward Balog, the Com- pany's manager of engineering and quality control. How- ever, Henderson was again unsuccessful. Later in the af- ternoon, Henderson's second attempt to contact Balog brought him to a secretary. Henderson asked Balog's secre- tary to have Balog return his phone call. Up to this point, my findings are based on Henderson's uncontradicted testimony. However, Balog and Henderson testified to different versions of their conversation which occurred late on the same June 1977 afternoon. In substance, Henderson's account was as follows: Balog returned Henderson's call shortly after 5 p.m. Henderson stated that he was surprised to hear from Balog. Balog an- swered, "I have nothing to hide, and I'm not afraid of any- thing George." At this, Henderson pressed Balog for assis- tance in obtaining a job. Balog responded, that he liked Henderson, his wife, and family, and thought Henderson was "smart," but that he should not have gone to "the Labor Relations Board." Continuing, Balog declared, "if I brought you back here now you wouldn't be able to do the job properly because of the sour taste among the other supervisors." Henderson reiterated his desire for reinstate- ment. Balog responded that he would think about it over night and respond to Henderson the following day, adding, "but I still don't know how you're going to do the job properly." In response to further pressure from Henderson, Balog responded that the five employees had made their "bed" and now they were "black-listed." At this point, Henderson became irred and told Balog that he, Hender- son, had to "stand up for my rights." Henderson continued asserting that he had voted against the union. At this, Ba- log said "[IWell, it's too late now. I don't really care." Balog said he would respond to Henderson's request the following day and Henderson said that unless Balog had something "good" to tell him, that Balog should not call him back. Balog never called Henderson back. Balog testified that he could not "attest" that his conver- sation with Henderson occurred in June. However, he ad- mits having a conversation. His version was as follows: Initially, Henderson's conversation concerned his lack of employment, and the effect it was having on himself and his family. Henderson explained that he realized that rein- statement would be difficult for him, because of his poor attitude as shown by his unsatisfactory job performance 968 MODULUS CORPORATION prior to his layoff. Henderson attributed his poor attitude to the Company's failure to promote him. Henderson re- marked toward the middle of the conversation, that "he knew that the case that he was involved with, with the NLRB was something that he would have to work out." However, he told Balog that his involvement in the case "was not of his choice." Henderson attributed his partici- pation to the urgings of the four other employees laid off on or about October 28, 1976, who counseled him that "a united front, would be a better way of approaching their lay off than as individuals." When Henderson told Balog that the unfair labor practice proceeding had been settled, Balog disclaimed knowledge of the settlement, and said that he did not wish to discuss the matter further. At this point, Henderson returned to his unemployed situation and his pressing financial need. According to Balog, Hen- derson raised the topic of the unfair labor practice charge and Balog's only comment in that regard was that he would not discuss it. Henderson asserted that Plant Man- ager Thomas had declared that if any supervisor were will- ing to have him back, he, Thomas, would not bar Henderson's reinstatement. The conversation ended with Henderson advising Balog that unless there was a favor- able answer to Henderson's request, Balog need not bother calling Henderson thereafter. Balog admitted that he never called Henderson back. In resolving the conflicts between the two versions of the Henderson-Balog conversation, I have noted Henderson's uncontradicted and unchallenged testimony regarding his conversations with Sandy Scalone, which I have credited. His reliability as a witness regarding the details of his en- counter with Scalone was corroborated by his letter to Thomas which the General Counsel introduced into evi- dence without objection. More importantly, I have also noted that Balog's testi- mony and demeanor reflected uncertainty and some vagueness about details of his conversation with Hender- son. As noted above, Balog at first was uncertain as to the date of the conversation. Further, he gave conclusionary testimony regarding Henderson's remarks lounging into the use of the word "essence" to describe his recollection of Henderson's statements. At one point in his testimony. Ba- log asserted that it was Henderson who made the only mention of the filing of the March unfair labor practice charge against the Company. However, at a later point in his testimony, when asked if there was any other mention of that charge, Balog answered, "not that I can recall." When I asked Balog what he meant when he said that he did not recall, he conceded that there may have been other mention of that charge in the conversation with Hender- son. In contrast, Henderson presented his largely uncon- tradicted testimony in a full and forthright manner. In sum, I am satisfied that of the two, Henderson is the more reliable witness. Accordingly, I have credited his version of the crucial conversation. B. Analysis and Conclusions The Board has recognized that an employer's resort to discharge, or refusal of reinstatement, or other discrimina- tion as reprisal for an employee's initiation or participation in unfair labor practice proceedings is violative of Section 8(a)(4) and (I) of the Act. General Services, Inc., 229 NLRB 940 (1977). In the instant case. I find from my review of Balog's I remarks that the Company denied Henderson's final request for reinstatement because he had joined in the filing of an unfair labor practice charge against it. I find, therefore, that the Company's refusal to reinstate Hender- son in late June 1977 violated Section 8(a)(4) and (1) of the Act. Red Cab, Inc., 194 NLRB 279, 291 (1971). 1 also find that by Balog telling Henderson that the Company was refusing his request for reinstatement because of his role in filing the March 1977 unfair labor practice charge, the Compan) also violated Section 8(a)(1) of the Act. CON( LUISIONS OF LAW 1. The Company engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. By refusing to reemploy George Henderson because he had joined in the filing of an unfair labor practice charge under the Act, alleging that he and four other em- ployees were unlawfully discharged, the Company has vio- lated Section 8(a)(4) and (I) of the Act. 3. By telling employee George Henderson that he was refused reinstatement because he had used the Board's pro- cesses, the Company violated Section 8(a)( 1) of the Act. 4. The foregoing unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. Tui RFMFDY Having found that the Company has engaged in unfair labor practices in violation of Section 8(a)( I) and (4) of the Act, it will be recommended that the Company cease and desist therefrom, and take certain affirmative action set forth below., designed and found necessary to effectuate the policies of the Act. Having found that the Company unlawfully refused re- instatement to George Henderson, it will be recommended that he he offered immediate and full reinstatement to his former position or if that position no longer exist, to a substantially equivalent position without prejudice to his seniority or other rights and privileges. It is further recom- mended that the Company be required to make George Henderson whole for any loss of earnings he may have suffered by reason of the discrimination against him, by paying to him a sum of money equal to the amount he normally would have earned as wages from June 27, 1977. the approximate date when the Company refused to rein- state him, to the date of the Company's offer of reinstate- ment. less net earnings with backpay and interest thereon to be computed in a manner prescribed in F. W. Wool- worth Companv, 90 Nl.RB 289 (1950), and Florida Steel Corporation, 231 NI.RB 651 (1977).2 Upon the foregoing findings of fact, conclusions of law, and the entire record in this proceedings and pursuant to Ini both its ansver .Ind in It brief, the ( ormpans conceded that Balog was a t all tine, Ill.lteriall io he allcge'd vi-,latwin a: superlisor within the meating of the Act I Sns Bh.llu '- remark. i;re .attrlhultable to the ( ompans 'Sec. generalkI. h1 Plnibm/hi i /& ,'lioi, ( , 138 NlRB 716 (1962) 969 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Section 10(c) of the Act, I hereby issue the following rec- ommended: ORDER 3 The Respondent, Modulus Corporation, Mt. Pleasant, Pennsylvania, its officers, agents, successors, and assigns shall: I. Cease and desist from: (a) Telling employees that they will be denied reinstate- ment because they have filed charges or associated them- selves with the filing of charges under the Act. (b) Denying reinstatement, discharging, or otherwise discriminating against employees because they have filed charges or associated themselves with the filing of charges under the Act. (c) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of their rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action which is deemed necessary to effectuate the policies of the Act: (a) Offer George Henderson immediate and full rein- statement to his former position or, if that position no lon- 3 In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions. and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order. and all objections thereto shall be deemed waived for all purposes. ger exist, to a substantially equivalent position, without prejudice to his seniority or other rights and privileges, and make him whole for any loss of earnings he may have suf- fered as a result of the discrimination practiced against him in the manner set forth in the section of this Decision enti- tled "The Remedy." (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all pay- roll records, social security payment records, timecards, personnel records and reports, and all other records neces- sary to analyze the amount of backpay due under the terms of this Order. (c) Post at its factory at Mt. Pleasant, Pennsylvania, copies of the attached notice marked "Appendix." Copies of said notice, on forms provided by the Regional Director for Region 6, after being signed by Respondent's represen- tative, shall be posted by Respondent 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. Rea- sonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 6, in writ- ing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. 4 In the event that this Order is enforced by a judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judg- ment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." 970