Poloron Products, Inc.

736 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Poloron Products, Inc. and Anthony La Motta. Case 4-CA-6327 December 6, 1973 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS JENKINS AND KENNEDY On August 15, 1973, Administrative Law Judge Max Rosenberg issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions 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 authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings, and conclusions 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 Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge and hereby orders that the Respondent Poloron Products, Inc., Scranton, Pennsylvania, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. DECISION STATEMENT OF THE CASE MAX ROSENBERG, Administrative Law Judge: With all parties represented, this case was tried before me in Scranton, Pennsylvania, on May 22, 23, and 24, 1973, on a complaint filed by the General Counsel of the National Labor Relations Board and an answer filed thereto by Poloron Products, Inc., herein called the Respondent.' The issues raised by the pleadings relate to whether Respondent violated Section 8(a)(3) of the National Labor Relations Act, as amended, by discharging Anthony La Motta on January 26, 1973, because he engaged in certain activities on behalf of International Association of Machinists and Aerospace Workers, AFL-CIO, herein called the Union, and whether Respondent otherwise independently violated Section 8(a)(1) of the Act. At the close of the hearing, the General Counsel orally argued his cause. A brief has been i The complaint, which issued on March 30, 1973, is based upon charges filed and served on February 15, 1973. 2 All dates herein fall in 1973. 3 La Motta testified and I find that, in the course of his duties as a steward, he had "personal" encounters with Coolbaugh. In La Motta's words, "we had many problems down at Chamberlain when I started there as far as safety was concerned; and it seemed like many times we just could received from the General Counsel which has been duly considered. FINDINGS OF FACT AND CONCLUSIONS I. THE BUSINESS OF THE EMPLOYER Respondent is a corporate entity engaged in the manufacture of bomb fins and ammunition storage boxes at a plant located in Scranton, Pennsylvania, which is the only facility here involved. During the annual period material to this proceeding, Respondent sold and shipped products valued in excess of $50,000 to points located outside the Commonwealth of Pennsylvania. The com- plaint alleges, the answer admits, and I find that Respon- dent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED It is admitted and I find that the Union is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES The complaint alleges that, on January 26, 1973,2 Respondent violated Section 8(a)(1) of the Act by the conduct of Foreman John Perry in interrogating employees concerning their union activities. The affirmative pleadings further allege that Respondent offended the provisions of Section 8(a)(3) by discharging employee Anthony La Motta on that day because of his engagement in union activities. Respondent claims that it severed La Motta from its employment rolls solely because he failed to perform his work tasks in a satisfactory manner. It also denies that Perry illegally questioned its employees./ Prior to his employment with Respondent on January 24, La Motta had toiled for a company known as the Chamberlain Corporation, herein called Chamberlain, for more than 5 years. This entity, also located in Scranton, Pennsylvania, manufactures products similar to those fabricated by Respondent. During his stint with Chamber- lain, the employees were represented by the Union and, until the last 6 months of his tenure, La Motta served as a shop steward. It is undisputed and I find that he actively processed grievances under the collective-bargaining agree- ments between Chamberlain and the Union, particularly those involving safety matters, and that these endeavors frequently brought him into discussions and negotiations with Robert Coolbaugh, Chamberlain's industrial relations manager.3 I find that, at 9 a.m. on January 24, La Motta visited the personnel office of Respondent in quest of employment.4 The record discloses that, as in the case of Chamberlain, Respondent's employees had been collectively represented by the Union for many years under a contract which not sit down and talk things out; we would have to refer to the grievance procedure to try to settle these points. And, I was Just doing the job that I was elected to do for certain people, and I believe honestly and truthfully that Mr. Coolbaugh down at Chamberlain Corporation resented this fact very much and it created hard feelings between him and I." 4 La Motta had been laid off at Chamberlain as a result of a general reduction in force which affected him on January 23. 207 NLRB No. 129 POLORON PRODUCTS, INC. provided that, for the first 30 days of their employment, new employees would be placed on a probationary status and could be terminated for any reason during the probationary period. Upon his arrival at the personnel office, La Motta filled out an application and was then interviewed by Edward Manarski, Respondent's personnel manager, who learned that La Motta had formerly been employed by Chamberlain. Manarski explained the proba- tionary period to La Motta and indicated that the shop was unionized. Manarski remarked that, following the inter- view, he had an appointment to visit Chamberlain's personnel offices to review the personnel files of supervi- sors and skilled mechanics who had been laid off by that company in order to determine whether Respondent desired to employ them. At the conclusion of the interview, Manarski informed La Motta that the latter had been hired and that he should report for work on the second shift that day, which commenced at 3:30 pm.-5 In conformity with Manarski's instructions, La Motta appeared at the plant shortly before 3:30 p.m. on January 24 and was introduced to John Perry, the production foreman. According to La Motta, Perry escorted the former and another newly hired employee to the prod- uction line.6 Perry assigned La Motta the job of filing metal burrs on the ammunition boxes, and the other employee was directed to spot weld reinforcement strips to the sides. La Motta continued to perform the work of deburring until 9 p.m., at which time he was instructed by Perry to assume the duties of welding the clasps and handles to' the containers because the employee who had been performing that chore had quit his job. La Motta undertook the welding assignment and worked in this capacity until the end of the shift on the evening of January 26. As he proceeded to cleanse himself, Perry approached with a piece of paper in his hand which contained the names of La Motta and an individual named Jack Bielucki. After beckoning to, Bielucki, Perry, La Motta, and Bielucki gathered around a desk. Perry opened the conversation by stating to La Motta that "you know you've been doing very good work . . . as a matter of fact the other foreman and myself have been watching you these last few nights . . . and we both agree that you're one of the best men we ever had on this machine." La Motta thanked the foreman for the compliment. Perry went on to relate that "when I came in to work today at the beginning of the shift ... I was called i n t o the personnel office ... . I was given your name and Jack's [Bielucki' s ] name; and I was told to let you fellows go." At this juncture, La Motta remarked that "you just got done saying that how good my work is and everything else; so what's the problem." Perry then inquired, "were you ever involved with the union at Chamberlain." La Motta ' replied that "I was a union representative down at Chamberlain for the last five or six years," whereupon Perry stated that "he was told to let me 5 Several former employees of Chamberlain were hired by Respondent following the reduction in force at that plant. 6 As indicated heretofore, Respondent manufactures ammunition storage boxes for the military. The process begins with a flat piece of metal which is cut to form and placed into a machine by an employee who fabricates the shell of the box, i.e ., the four sides of the container. The shell then is conveyed to another employee who spot welds the edge and the bottom of the box to hold it in shape Thereafter, another employee welds 737 go before I got my thirty days [an apparent reference to the probationary period] in because I was affiliated with the union at Chamberlain and I was, -you know, going to start causing problems . . ." When La Motta asked the source of the information, Perry rejoined that "personally it isn't me . . . I like you ... there's a lot of people here that I'd like to get rid of but I can't . . . and there's a lot of people that I'd like to keep and I can't." Perry terminated his discussion with La Motta by requesting that La Motta provide his telephone number and by assuring La Motta that Perry would speak with Personnel Manager Manarski the following Monday in the hope that the latter could be persuaded to retain La Motta's services. Turning to Bielucki, Perry announced that the decision to discharge Bielucki was bottomed on his frequent absences from work. Bielucki corroborated La Motta's testimony regarding the conversation with Perry on the evening of January 26 when both employees were discharged. According to Bielucki, Perry informed the men that "he had to let both of us go." When La Motta inquired into the reason for the personnel action regarding him, Perry inquired whether La Motta was affiliated with the union down at Chamber- lain." La Motta responded in the affirmative, and asked whether the termination was due to any deficiencies in his work performance. Perry assured La Motta that this was not the case, stating "you're doing a good job . . . you're the best man we've had on that machine." When La Motta pressed Perry for the cause of the separation, Perry replied "since you were affiliated with the union at Chamberlain, they said you're a troublemaker; so they told me that I have to let you go." Following this discussion, La Motta sought out a shop steward. Finding none, he enlisted the support of George Yanchik, a senior employee, and, together, they called upon Perry. Yanchik asked Perry "how come you have to let the kid go . . . is there something wrong with his work or what," to which Perry replied, "no, there's nothing wrong with his work; they just gave me the pink slip to get rid of him." Despite the fact that Perry sat at Respondent's counsel table throughout the course of the hearing in this proceeding, he was not summoned as a witness by Respondent, either to deny the statements attributed to him La Motta and Bielucki, or to explain them. According- ly, the testimony of La Motta and Bielucki stands uncontroverted regarding their conversation with Perry on the evening of January 26. La Motta left the plant at midnight on January 26 and entered his automobile to drive to his home. On the way, he mentally recapitulated the events leading to his termination, and the thought struck him that Personnel Manager Manarski must have learned of La Motta's active role as a shop steward while employed by Chamberlain the seam of the receptacle, after which still another employee welds the bottom onto the container. Following a water test of the box, an employee spot welds any discovered holes. The next operation involves the welding of reinforcement strips to the sides , after which an employee welds on the requisite clasps and handles. The box is thereupon transmitted to an employee who manually files away the burrs which are found. The final process is the painting of the container. 738 DECISIONS OF NATIONAL LABOR RELATIONS BOARD from Robert Coolbaugh, Chamberlain's personnel chief, when Manarski visited the latter on the morning of January 24 after La Motta had been hired. Armed with this suspicion, La Motta drove to the Chamberlain plant and persuaded the guard to show him the visitors' sign-in sheet for January 24. After perusing the sheet, La Motta noticed Manarski's signature imprinted thereon. On Monday, January 29, La Motta drove to the Union's office in Scranton and contacted Lynn Warren, the Union's business agent. La Motta recounted the events which led to his discharge, after which Warren telephoned Cyril Neyhart, Respondent's plant manager. When the conversation was concluded, Warren informed La Motta that the former would meet with Neyhart the following day to discuss the discharge. On Wednesday, January 31, La Motta went to the plant to return a pair of safety glasses. Upon his arrival, he asked to speak to Personnel Manager Manarski. When Manarski arrived, La Motta asked, "can you tell me the reason why I was let go." Manarski replied, "well the foreman [Perry] stated that your work wasn't up to par." La Motta rejoined, "then why was 'I told my work was good, I was one of the best men he ever had work there; the man even took my phone number down and he was going to talk to you about keeping me." Manarski stated, "I don't know nothing about that," at which point La Motta observed that "I was under the impression that you went down to Chamberlain after I was hired and talked to someone down there, and they gave you the information that I was a union representative down at Chamberlain and this is how it all came about that I had been let go." Manarski protested that this was not the case, and that his visit to Chamberlain's personnel office preceded La Motta's employment by 3 to 7 days. La Motta then requested a meeting with Plant Manager Neyhart and a union representative. Shortly thereafter, La Motta met with Neyhart, Manarski, and a union official named Manning. After Neyhart complained about the interruption of his work schedule, he opined that "I guess you [La Motta] want to know the reason why you were let go.... well, the reason was because the foreman [Perry] said your work wasn't up to par." La Motta responded, "then why did your foreman praise me, why did he tell me my work was good and everything." When Neyhart professed ignorance about these encomiums, La Motta inquired, "well then where did your foreman get the information about me being involved with the union at Chamberlain Corporation and you know being a union steward and this." Neyhart replied, "well, I've talked to the foreman about those statements that he made to you about being affiliated with the union . . . the foreman admitted that he made those statements . . . but why he made them I don't know." After La Motta announced that he intended to file unfair labor practice charges with the Board, the conversation ended. Manarski testified that, following his interview with La Motta on the morning of January 24, he proceeded to Chamberlain's personnel office to review the files of potential employees who had been supervisors and maintenance mechanics at Chamberlain. Manarski related that he reported at the Chamberlain guard station and signed the visitors' log at 10:30 a.m., after which he visited the office of Personnel Manager Coolbaugh. It is uncon- tradicted and I find that Coolbaugh had entered a grievance meeting at 10 a.m. in another area of the plant. Manarski was met by Coolbaugh's secretary, Nancy Hameza, who escorted Manarski to a desk where she deposited approximately 15 files for Manarski's perusual. Both Manarski and Hameza testified that La Motta's file was not produced for inspection and his name or union activities did not come up in the course of Manarski's visit, although Hameza conceded that she was well aware of La Motta's activities as a steward at the plant prior to his reduction in force. Manarski testified that at 11:50 a.m. on January 24, he left the Chamberlain plant and returned to Respondent's premises without conversing with or otherwise contacting Coolbaugh that morning. Coolbaugh testimonially re- counted that the grievance meeting which he had attended terminated at 12 noon, about 10 minutes after Manarski had left the plant, and that he had no conversation with Manarski that morning regarding La Motta or anyone else. According to Coolbaugh, he had never met Manarski until the day of the hearing herein. However, he admitted having telephonic conversations with his counterpart on two or three occasions prior to La Motta's discharge. I do not credit the testimony of Manarski and Cool- baugh to the effect that they never discussed La Motta's activities as union steward during the period of his employment at Chamberlain prior to his discharge on January 26, not only because they failed to impress me with their candor, but also because I am persuaded that their testimonial utterances in this regard were contrived. Thus, Manarski telephoned Coolbaugh after La Motta's discharge and, in the course of their conversation concern- ing _ the acquisition of Chamberlain's supervisors and mechanics, Manarski, without any plausible explanation on this record, suddenly decided to reveal to Coolbaugh that Respondent had rid itself of La Motta, a nondescript laborer. Although Jack Bielucki, a former Chamberlain employee and another laborer, was also discharged at the same time as La Motta, Manarski nevertheless felt no compulsion to disclose this personnel action to Coolbaugh. In sum, I am convinced and find that, following La Motta's employment with Respondent at 9 a.m. on January 24, Manarski communicated with Coolbaugh, either on January 24, or during the ensuing days until La Motta's discharge on January 26, and he learned that this employee had been a thorn in Coolbaugh's side when he was entrusted the duties of shop steward at Chamberlain.? I am also convinced and find, despite Neyhart's denial to the contrary which I discredit, that, during the meeting on the afternoon of January 26 between Neyhart, Manarski, and Perry, when the decisions were discussed and formulated to terminate La Motta and Bielucki, Manarski imparted this intelligence to Neyhart and Perry, and the decision was then made to discharge La Motta in an 7 In his testimony, Coolbaugh stated that he was told by Manarski that Somehow, Coolbaugh equated these reasons with "poor performance." La Motta had been discharged for "disciplinary reasons" or "disruption:' POLORON PRODUCTS, INC. attempt to forestall a recurrence of his energetic stewards' activities at Respondent's installation. Nor do I place credence in Neyhart's assertion that La Motta was separated from Respondent's employ because of any deficiencies in his work. Neyhart admitted on the record that he did not observe La Motta's work perform- ance and, indeed, was not aware of Perry's asserted reasons for firing La Motta until days after the personnel action was accomplished. Moreover, Neyhart stated that Perry possessed the exclusive authority to evaluate La Motta's work performance and to determine whether La Motta would be dismissed or retained. As indicated heretofore, La Motta and Bielucki testified without contradiction that Perry complimented La Motta for his workmanship. In short, I find and conclude that Respondent singled out La Motta for discharge on January 26, not because of any work deficiences, but solely because it desired to remove him from its employment rolls before he could engage in the same type of protected, concerted activities at its plant as those engaged in at Chamberlain's. By so doing, I conclude that Respondent violated Section 8(a)(3) of the Act. Moreover, under the circumstances here presented, I conclude that- Respondent violated Section 8(a)(1) of the Act by Perry's coercive interrogation of La Motta on January 26 when the former asked La Motta whether he had been active in the Union at Chamberlain. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with Respondent's opera- tions described in section I, above, have a close and intimate relationship 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 recom- mend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. I have found that Respondent discharged Anthony La Motta on January 26, 1973, because he had been an active union steward when employed with another company and because Respondent desired to remove him from its employment rolls before he could engage in the same type of protected, concerted activities at its plant. I shall therefore recommend that Respondent make La Motta whole for any loss of pay which he may have suffered as a result of the discrimination practiced against him. The backpay provided for herein shall be computed in accordance with the Board's formula set forth in F. W. Woolworth Company, 90 NLRB 289, with interest thereon at the rate of 6 percent per annum computed in the manner prescribed in Isis Plumbing & Heating Co., 138 NLRB 716. 8 In the event no exceptions are filed as provided by Section 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in 739 Upon the basis of the foregoing findings of fact and conclusions, and upon the entire record in this case, I hereby make the following: CONCLUSIONS OF LAW 1. Respondent is, an employer engaged in commerce within the meaning of Section 2(6) and, (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. By interfering with, restraining, and coercing em- ployees in the exercise of the rights guaranteed in Section 7 of the Act, Respondent has engaged in and is engaging in conduct proscribed by Section 8(a)(1) of the Act. 4. By discharging Anthony La Matta, thereby discruni- nating in regard to his hire and tenure of employment, in order to discourage activity on behalf of the Union, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(3) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices within,the meaning of Section 2(6) and (7) of the Act. 6. Upon the foregoing findings of fact and conclusions of law and the entire record, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, I hereby issue the following recommended: ORDERS Respondent, Poloron Products, Inc., Scranton, Pennsyl- vania, its officers, agents, successors, and assigns, shall: I.` Cease and desist from: (a) Coercively interrogating employees concerning their activities on behalf of International Association of Ma- chinists and Aerospace Workers, AFL-CIO. (b) Discharging employees, thereby discriminating in regard to their hire of tenure of employment, in order to discourage activity on behalf of International Association of Machinists and Aerospace Workers, AFL-CIO. (c) In any other manner interfering with, restraining, or coercing employees in the exercise of their rights guaran- teed in Section 7 of the Act. 2. Take the following affirmative action which I find is necessary to effectuate the policies of the Act. (a) Offer to Anthony La Motta immediate and full reinstatement to his former job or, if that job no longer exists, to substantially equivalent employment and make him whole for any loss of pay which he may have suffered as a result of the discrimination practiced against him, in the manner set forth in the section of this Decision entitled "The Remedy." (b) Notify Anthony La Motta, 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, as amended, after discharge from the Armed Forces. (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all Section 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. 740 DECISIONS OF NATIONAL LABOR RELATIONS BOARD payroll records, social security payment records and reports, and all other records necessary to analyze the amount of backpay due herein. (d) Post at its plant in Scranton, Pennsylvania, copies of the attached notice marked "Appendix." 9 Copies of said notice, on forms to be provided by the Regional Director for Region 4, after being duly signed by Respondent's authorized representative, shall be posted by it immediate- ly upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, includ- ing all places where notices to employees are customarily posted. Reasonable steps shall be taken to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 4, in writing, within 20 days from the date of receipt of this Decision, what steps have been taken to comply herewith. 9 In the event that the Board's 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 be,changed to read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." APPENDIX Machinists and Aerospace Workers, AFL-CIO, or any other labor organization. WE WILL NOT coercively interrogate our employees concerning their activities on behalf of the above- named Union. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their rights guaranteed in Section 7 of the National Labor Relations Act, as amended. WE WILL make Anthony La Motta whole for any loss of pay he may have suffered as a result of our discrimination practiced against him due to his Union activities, and WE WILL reinstate him. All our employees are free to become, remain, or refrain from becoming or remaining, members of the above- named or any other labor organization. Dated By POLORON PRODUCTS, INC. (Employer) (Representative) (Title) This is an official notice and must not be defaced by anyone. 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. Any questions concern- ing this notice or compliance with its provisions may be directed to the Board's Office, William J. Green, Jr., Federal Building, Suite 4400, 600 Arch Street, Philadel- phia, Pennsylvania 19106, Telephone 215-597-7601. NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT discharge our employees from work, thereby discriminating in regard to their hire and tenure of employment, in order to discourage their activities on behalf of International Association of