Carbone-Ferraz, Inc.

CARBONE-FERRAZ, INC. Carbone-Ferraz, Inc. and Local 810, Steel, Metals, Alloys and Hardware Fabricators and Warehouse- men, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Help- ers of America. Case 22-CA-7372 November 3, 1977 DECISION AND ORDER BY MEMBERS JENKINS, PENELLO, AND MURPHY On June 2, 1977, Administrative Law Judge Stanley N. Ohlbaum issued the attached Decision in this proceeding. Thereafter, Respondent filed excep- tions and a supporting brief, and the General Counsel filed with the Board the brief he submitted to the Administrative Law Judge. 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 attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings,' and conclu- sions of the Administrative Law Judge and to adopt his recommended Order, as modified herein.2 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, as modified below, and hereby orders that the Respon- dent, Carbone-Ferraz, Inc., Rockaway, New Jersey, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, as so modified: 1. Substitute the following for paragraph 2(a): "(a) Offer to Michael McKevitt immediate and full reinstatement to his former position or, if that position no longer exists, to a substantially equiva- lent position, without prejudice to his seniority and other rights, privileges, benefits, and emoluments, including but not limited to pay raises in the interim and also currently applicable pay scales; and make him whole for any loss of pay and other monetary loss (including overtime, holiday, and vacation pay and insurance benefits and reimbursements, if any), together with interest, as set forth in fn. 2 of the Board's Decision." 2. Substitute the attached notice for that of the Administrative Law Judge. i The Respondent has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an Administrative Law Judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence 233 NLRB No. 37 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. 2 The backpay ordered for McKevitt will be computed in accordance with F. W. Woolworth Company, 90 NLRB 289 (1950); Isis Plumbing & Heating Co., 138 NLRB 716 (1962); and Florida Steel Corporation, 231 NLRB 651 (1977). In accordance with our decision in Florida Steel Corporation, we shall apply the current 7-percent rate for periods prior to August 25, 1977, in which the "adjusted prime interest rate" as used by the Internal Revenue Service in calculating interest on tax payments was at least 7 percent. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing at which all sides had the opportunity to present evidence, the National Labor Relations Board has decided that we have violated the National Labor Relations Act, as amended, and has ordered us to post this notice and comply with its terms. We intend to abide by the following: WE WILL NOT discharge, terminate the employ- ment of, lay off, suspend, or refuse to reinstate, rehire, or reemploy, or discriminate in employ- ment against, any employee because he votes in a Board-conducted union representation election, or because he is a member of or sympathetic to or active on behalf of any union, or because he exercises or seeks to exercise any other right under the National Labor Relations Act. WE WILL NOT discourage or encourage mem- bership in any labor organization by discriminat- ing in regard to hire or tenure of employment or any term or condition of employment, in viola- tion of said Act. WE WILL NOT in any other manner interfere with, coerce, or restrain employees in the exercise of their rights protected by Section 7 of the Act. WE WILL offer Michael McKevitt immediate and full reinstatement to his former or substan- tially equivalent job and seniority with us, and WE WILL pay him for any wages and benefits lost by him because of our discharge of him on Novem- ber 17, 1976, plus interest. WE WILL remove from our records all indica- tions that Michael McKevitt was discharged by us on or about November 17, 1976, because of any fault on his part; and WE WILL make no such statement to any employer, potential employer, or character inquiry. CARBONE-FERRAZ, INC. 219 DECISIONS OF NATIONAL LABOR RELATIONS BOARD DECISION PRELIMINARY STATEMENT; ISSUE STANLEY N. OHLBAUM, Administrative Law Judge: This proceeding' under the National Labor Relations Act, as amended (28 U.S.C. § 151, et seq.) was heard before me in Newark, New Jersey, on April 14, 1977, with all parties participating throughout by counsel, who were afforded full opportunity to present evidence and arguments and who filed posttrial briefs received by May 16, 1977. Record and briefs have been carefully considered. The principal issue presented is whether Respondent violated Section 8(a)(3) and (1) of the Act by discharging and failing and refusing to reinstate its employee Michael McKevitt because of his exercise of rights protected under the Act; namely, voting in a Board-conducted union representation election. Upon the entire record and my observation of the testimonial demeanor of the witnesses, I make the following: FINDINGS AND CONCLUSIONS I. JURISDICTION At all material times, Respondent Carbone-Ferraz, Inc., has been and is a New Jersey corporation engaged in the business of manufacturing, selling, and distributing electri- cal fuses and related products at and from its principal plant and office at Elm and Sickel Avenues, Rockaway, New Jersey, where in the representative year immediately preceding issuance of the complaint it manufactured, sold, and distributed over $50,000 worth of such products directly in interstate commerce to persons in States other than New Jersey. I find that at all material times Respondent has been and is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act; and that at all of those times the Charging Party Union has been and is a labor organization as defined by Section 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES A. Discharged Employee's Version Michael McKevitt, age 21, entered Respondent's employ in October 1975 as an automatic screw machine and lathe setup man and operator, tasks mostly requiring standing. So far as appears, his job performance was unfaulted and satisfactory. In a vehicular accident on August 23, 1976, he sustained bodily injuries resulting in hospitalization and, among other things, his fractured left leg being placed in a cast, temporarily precluding work. On the day after the accident, he telephoned Respondent from the hospital, reporting the situation, stating that he would be away from work for some months. According to the testimony of I Based on January 28, 1977. complaint growing out of December 20, 1976, charge of the above Charging Party Union. 2 Cf. Excelsior Underwear Inc.. 156 NLRB 1236 (1966). 3 Although Christiansen denies such a conversation with McKevitt. comparing testimonial demeanor observations within the context of the record as a whole I credit the testimony of McKevitt, an open-faced young Respondent's plant manager, Ernest Bouyet, McKevitt's father, also within a day or two, reported the incident to Bouyet, who already knew about it from a newspaper account indicating that McKevitt had sustained serious injuries "in a very bad accident." Further, according to Bouyet, medical forms subsequently filed by McKevitt's physician confirmed that McKevitt's injuries were "exten- sive" and expected to continue to the end of that year (1976). In late October or early November (1976), McKevitt, of whose condition his Employer had concededly been kept apprised through medical and other reports, was contacted at home by Respondent's personnel director, Kenneth Christiansen, to ascertain when he expected to return to work, since the plant was busy and he was "needed" there. McKevitt concededly informed Christiansen (who passed the information on to Bouyet) that he anticipated being able to do so in "a couple of weeks when I get my cast removed." On November 5, after Christiansen's inquiry of McKev- itt as to when he would be returning to work, McKevitt was visited at home by the Charging Party Union's organizer, Max John Sanches, as a result of the latter's seeing McKevitt's name on an Employer-supplied "Excelsior" list 2 of employees eligible to vote in a statutory representa- tion election scheduled to take place under Board auspices on November 12. Sanches visited McKevitt-whom he did not know-in order to solicit McKevitt's vote for the Union, which McKevitt assured him he would so cast at the election. When Sanches visited McKevitt to persuade him to vote for the Union in the upcoming election, McKevitt was unaware of the impending election, since he had not been informed of it before Sanches did so for the Union. Sanches again contacted McKevitt on the date of the election to assure his presence there because his promised vote for the Union could be critical. Sanches' testimony corroborates that of McKevitt that when McKevitt voted without lawful challenge at the November 12 election-which the Union lost by a 23-13 vote, with 6 challenged ballots-his left leg was still visibly in a cast. On November 23, 1976, McKevitt was permitted by his physician to return to work, although not discharged from further medical treatment or observation. Accordingly, on the next morning, November 24, McKevitt telephoned Respondent's personnel director, Christiansen, and in- formed him he was now able to return to work. Christian- sen thereupon told McKevitt he was terminated. When McKevitt asked him why, Christiansen told him it was costing the Company too much to carry him on disability, but suggested he come in and talk it over with Plant Manager Bouyet.3 McKevitt did so, visiting the plant later that day, where Bouyet confirmed that he had been discharged. When McKevitt asked him why, Bouyet said it was "because [you] came to the plant to vote in the union" 4 as well as because it was costing the Company too much to carry him on disability and because he had failed man who impressed me as testifying honestly and forthrightly as to what occurred. 4 Upon comparative testimonial demeanor observations, I credit McKevitt's testimony-which I believe to be candid and honest-over Bouyet's denial, which impressed me as of dubious reliability, not only 220 CARBONE-FERRAZ, INC. to call in "every two days" as required, calling to McKevitt's attention a notice (which McKevitt had never before seen) on the bulletin board allegedly to that effect.5 McKevitt said it was "a raw deal" and went home.6 A few days later McKevitt returned to the plant for unemploy- ment insurance application purposes, inquiring of Chris- tiansen the exact date of his termination. He was told it was November 17. It is undisputed that McKevitt was at no time prior to his telephone call or visit to the plant on or around November 24 informed by Respondent of his discharge. B. Employer's Contentions Respondent conceded upon the record that McKevitt's discharge was not based on any disability or inability on his part to perform his job.7 Respondent contends that McKevitt was discharged because he "violated the compa- ny rule on reporting"; 8 i.e., the aforedescribed notice allegedly posted on the bulletin board. I unequivocally reject this "explanation" as the true reason for McKevitt's discharge. I base this rejection not only on testimonial demeanor as observed, but also on the considerations set forth in footnote 5, above. According to Respondent's plant manager, Bouyet, although he had been informed by Personnel Director Christiansen that McKevitt had report- ed in to Christiansen at the end of October or beginning of November that he expected to be returning to work in 2 weeks (i.e., around mid-November) and he (Bouyet) had never invoked the so-called call-in rule against McKevitt because he (Bouyet) was aware of McKevitt's condition and knew McKevitt was unable to return to work, nevertheless when he (Bouyet) learned that McKevitt had come to the plant to vote in the Board-conducted election on November 12 (Friday) and reportedly "seemed to be fine," he (Bouyet) decided to immediately enforce the supposed "two-day" reporting requirement against McKevitt-concededly without in any way apprising McKevitt thereof-so that Bouyet automatically regarded McKevitt as discharged on November 17 (Wednesday).9 According to Bouyet, although Respondent had not informed McKevitt of his discharge, McKevitt incompre- hensibly appeared at the plant on November 18 (Thursday) and demanded to know why he had been terminated. Bouyet as well as Christiansen profess to be at a loss to account for McKevitt's knowledge that he had been discharged, since they (Bouyet and Christiansen) insist McKevitt had not been notified of his discharge. In addition and contradistinction to the foregoing, Bouyet testified that McKevitt had been permanently replaced on November 10, 1976, by one Watts, a tempo- because of the less persuasive manner in which it was uttered but also because of incredible equivocations as well as concessions of Respondent, as described below. 5 The alleged notice (Resp. Exh. 6), which bears the date June 17, 1976, requires employees expecting to be tardy or absent to telephone in; otherwise, "after two (2) days." failure to do so "could result in possible termination," since "the Company will presume that you have voluntarily resigned." As indicated below, this requirement seems clearly inapplicable to the situation here, where according to Bouyet's own testimony McKevitt as well as his father had called in, Respondent was fully conversant with McKevitt's condition, Respondent had been not only willing to but desirous of returning McKevitt to duty, and it was utterly clear that McKevitt was not abandoning or resigning his job. Moreover, I credit McKevitt's testimony that at no time had any "call-in" policy so much as been mentioned to him by Respondent. rary employee hired shortly before, in September; and that in any event McKevitt would not have been rehired because Watts was more competent. But this appears to be at odds with the fact that Respondent invited McKevitt to return to his job and its further concession that he was not terminated because of "inefficiency or anything relating to his job performance" and also with Respondent's conten- tion that it only for the first time on November 12-2 days after its allegedly having replaced him with Watts-learned of McKevitt's supposed ability to resume his job; and, finally, with Respondent's repeated assertions here that it discharged McKevitt only because of his failure to comply with its alleged 2-day call-in requirement. Under these circumstances, it would seem that Bouyet's contention that McKevitt was "permanently replaced" by Watts on November 10 (which was not in any event persuasively or credibly established by objective or corroborative evidence which would presumably be readily available to Respon- dent if true) is a mere ploy to attempt to relate McKevitt's termination to a date prior to the election- notwithstand- ing Bouyet's own contrary testimony that McKevitt was discharged on November 17. Finally, Bouyet also testified firmly that if he had "seen" a cast on McKevitt's leg when McKevitt visited his office on November 18 (Bouyet only denies seeing it then "to the best of my knowledge" since "I [Bouyet] was sitting at my desk and my desk is relatively high"), he would not have terminated him. The plain fact is that McKevitt did indeed still visibly have a cast on his leg not only at the election but also when he visited Bouyet's office in regard to his job; that cast was removed in mid- December, and McKevitt was finally medically released by his physician at the end of December 1976 or beginning of January 1977. C. Resolution and Rationale Weighing comparative testimonial demeanor, as ob- served, within the framework of the record as a whole, I am compelled to regard Respondent's alleged explanations for its precipitate discharge of McKevitt after he unexpectedly voted in the election-in the face of Respondent's expressed encouragement before then of his return as "needed"--as strained, farfetched, unpersuasive, not ring- ing true, and incredible. McKevitt was a satisfactory worker who, after suffering an accident preclusive of early return to work, not only promptly informed Respondent of these facts, but was actively encouraged by Respondent to 6 Bouyet also said he would "keep [your ] name on record, on file, and if anything [comes] up [I will] call lyoul back." McKevitt has never been recalled or contacted. Mr. Hawkey. Respondent's counsel, testified: JUDGE OHLBAUM: Mr. Hawkey is it your client's contention that Mr. McKevitt was denied the opportunity to return to work because of a disability? MR. HAWKEY: No. a Testimony of Respondent's plant manager Bouyet; repeated by him on rebuttal. The same position is taken by Respondent in its posttnal bnef. 9 Elsewhere, Bouyet testified the date of McKevitt's discharge was November 18. 221 DECISIONS OF NATIONAL LABOR RELATIONS BOARD return to its employ-until he unexpectedly voted in a Board-conducted union representation election. 0o Immedi- ately thereafter, the atmosphere drastically changed: he was not only no longer welcome to return, but without notification he was summarily terminated. Respondent now says he was discharged because he failed to comply with its alleged 2-day reporting-in requirement. To begin with, even assuming such a "requirement" was made known to its employees, it was inapplicable to the situation here. Concededly, both McKevitt and his father notified Respondent of his condition and prognosis within 2 days after his accident; concededly Respondent continued, through medical reports and otherwise, to be fully aware of McKevitt's condition; concededly Respondent was well aware that McKevitt was not abandoning, relinquishing, or resigning from his job; concededly Respondent was willing to and desirous of permitting McKevitt to return to his job until McKevitt voted in the Board-conducted union election; concededly Respondent did not discharge McKevitt because of disability or inability to do his job; 1I and concededly Respondent would not have discharged McKevitt if it had known the fact that at the time of his discharge his left leg was still in a cast. Under all of these circumstances, Respondent's contention that it discharged McKevitt because of his failure to comply with the alleged 2-day call-in requirement is unpersuasive and pretextual, and is rejected. To the contrary, I find that Respondent's discharge of McKevitt was at least in controlling and determinative part the result of his return to the plant to cast a ballot-in exercise of his statutorily guaranteed right under Section 7 of the Act-in the Board-conducted Union representation election on November 12, 1976.12 In short, Respondent's "explanation" here simply "fails to stand under scrutiny." N.L.R.B. v. Thomas W. Dant, et al., d/b/a Dant & Russell, Ltd., 207 F.2d 165, 167 (C.A. 9, 1953). 1 find that Respondent's termination of McKevitt, under the circumstances described, was because of his having voted in the Board-conducted election on November 12, 1976, in exercise of his rights under Section 7 of the Act. Upon the foregoing findings and the entire record, I state the following: CONCLUSIONS OF LAW I. Jurisdiction is properly asserted in this proceeding. 2. Respondent's terminating Michael McKevitt on or about November 17, 1976, as alleged in the complaint, constituted, under the circumstances described and found, unfair labor practices in violation of Section 8(a)(3) and (1) of the Act. '0 Respondent's plant manager, Bouyet, concedes he was informed that McKevitt had showed up at the plant to vote at the Board-conducted election on November 12, although Respondent had not informed McKevitt of the election notwithstanding its having included him on its "Excelsior" list of employees comprising the bargaining unit. " In view of this concession and Respondent's further contention that the reason it discharged McKevitt was his failure to comply with its alleged 2-day call-in requirement, it is clear that McKevitt's precise physical job capabilities, in terms of or in contrast to whether he met any particular insurance, compensation, or unemployment program definition of (partial) "disability" is not contrary to Respondent's attempts to raise such diversionary "issues" herein-called in question in this proceeding. 12 In this aspect, Bouyet's professed but factually mistaken assumption 3. Respondent's said unfair labor practices have affect- ed, affect, and unless permanently restrained and enjoined and affirmatively remedied will continue to affect, com- merce within the meaning of Section 2(6) and (7) of the Act. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER'3 The Respondent, Carbone-Ferraz, Inc., its officers, agents, successors, and assigns, shall: I. Cease and desist from: (a) Terminating the employment of, discharging, laying off, suspending, or refusing to reinstate, rehire or reemploy, any employee because he votes in any Board-conducted representation or other election under the National Labor Relations Act, as amended, or because of his membership in, sympathy for, or lawful activity on behalf of any labor organization, or because he exercises, asserts, or seeks to exercise or assert, any right under the Act. (b) Discouraging or encouraging membership in any labor organization by discriminating in regard to hire or tenure of employment or any term or condition of employment, in violation of said Act. (c) In any other manner interfering with, restraining, or coercing any employee in the exercise of the right to self- organization; to form, join, or assist any labor organiza- tion; to bargain collectively through representatives of his own choosing; to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection; or to refrain from any or all such activities. 2. Take the following affirmative action necessary to effectuate the policies of the Act: (a) Offer to Michael McKevitt immediate, full, and unconditional reinstatement to his former or substantially equivalent position, without prejudice to his seniority and other rights, privileges, benefits, and emoluments, includ- ing but not limited to pay raises in the interim and also currently applicable pay scales; and make him whole for any loss of pay and other monetary loss (including overtime, holiday, and vacation pay, and insurance benefits and reimbursements if any), together with interest, computed as explicated in F. W. Woolworth Company, 90 NLRB 289 (1950), and Isis Plumbing & Heating Co., 138 NLRB 716 (1962). (b) Forthwith expunge from the personnel, employment, and all other records of Michael McKevitt, all statements, references, and entries that he was discharged from Respondent's employ for any work-related fault, deficien- on November 12 that McKevitt was no longer wearing a cast and therefore at that time fully capable of working at his regular job, cannot in any event be regarded as justifying the discharge, since it was mistaken and the professed "mistake" arose out of alleged observations during the course of protected concerted activity; i.e., participation in the Board-conducted election of November 12, on McKevitt's part. Cf. N.LR.B. v. Burnup and Sims, Inc.. 379 U.S. 21, 23 (1964). 13 In the event no exceptions are filed under Sec. 102.46 of the Board's Rules and Regulations, the findings and conclusions and the following recommended Order shall, under Sec. 102.48 of those Rules and Regula- tions, be adopted by the Board and become its findings, conclusions and Order, and all objections thereto shall be deemed waived for all purposes. 222 CARBONE-FERRAZ, INC. cy, infraction, or reason; and refrain from so writing, stating, or indicating to any employer, potential employer, or character inquiry. (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, wage scale records and notations, social security payment records, timecards, personnel records and reports, and all other records and entries necessary or appropriate to determine the amount of backpay and other sums and benefits due under and the extent of compliance with this Order. (d) Post at its premises in Rockaway, New Jersey, copies of the attached notice marked "Appendix."' 4 Copies of 14 In the event this Order is enforced by Judgment of a United States Court of Appeals, the words in the Notice "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the said notice, on forms provided by the Board's Regional Director for Region 22, shall, after being duly signed by Respondent's authorized representative, be posted by Respondent immediately upon receipt thereof and main- tained 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 said notices are not altered, defaced, or covered by any other material. (e) Notify said Regional Director in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. United States Court of Appeals Enforcing an Order of the National Labor Relations Board." 223