Stay Plastics, Inc.

648 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Stay Plastics, Inc. and Philip W. Haeck. Case 19- DECISION CA-7130 November 5, 1974 DECISION AND ORDER By CHAIRMAN MILLER AND MEMBERS FANNING AND PENELLO On September 5, 1974, Administrative Law Judge James S. Jenson issued the attached Decision in this proceeding. Thereafter, the General Counsel filed ex- ceptions limited to the Administrative Law Judge's failure to provide for reinstatement of the discrimina- tees in his recommended Order. The Respondent filed no exceptions or cross-exceptions. 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 limited exceptions and has decided to affirm the rulings, findings, and con- clusions of the Administrative Law Judge and to adopt his recommended Order, as modified below.' 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, as modified herein, and hereby orders that the Respondent, Stay Plastics, Inc., Bellevue, Washington, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, as modi- fied below: 1. Substitute the following for paragraph 2(a). "(a) Offer Philip Haeck and Steven Boom imme- diate reinstatement to their former positions or, if those jobs no longer exist, to substantially equivalent positions, without loss of seniority or other rights or privileges, discharging if necessary any replacements for these employees and make them whole for any loss of earnings they may have suffered by reason of Respondent's unlawful conduct, in accordance with the provisions of the section of the Administrative Law Judge's Decision entitled `The Remedy.'" i The Administrative Law Judge, by apparent inadvertence, neglected to include in his recommended Order a provision requiring Respondent to reinstate two employees who, he found had been discriminatorily dis- charged We shall correct the recommended Order to include such reinstate- ment provision STATEMENT OF THE CASE JAMES S. JENSON, Administrative Law Judge: This case was heard before me in Seattle, Washington on August 15, 1974. The complaint, which issued on July 19, 1974, pur- suant to a charge filed on June 5, 1974, alleges that in May 1974, Respondent, by its president, Nicholas F. Stay, inter- rogated employees concerning their reasons for supporting the Union and threatened employees with termination for continued support of the Union in violation of Section 8(a)(1) of the Act, and on May 5, terminated employees Philip Haeck and Steven Boom because of their activities on behalf of the Union, in violation of Section 8(a)(3) and (1) of the Act. Respondent filed an answer denying all alle- gations in the complaint. All parties were afforded full op- portunity to appear, to introduce evidence, to examine and cross-examine witnesses, to argue orally and to file briefs. Both parties waived the filing of briefs. Upon the entire record' in the case, and from my obser- vation of the witnesses and their demeanor, I make the following: FINDINGS OF FACT 1. JURISDICTION Respondent, a family owned corporation, is engaged in the construction of industrial flooring at locations through- out the United States. Its office is located in Bellevue, Washington. The Stay family also has a Canadian opera- tion. While the Canadian operation has a business location in Canada, the members of the Stay family living in Wash- ington and employees from the Washington operation per- form the Canadian work. Respondent's gross receipts for services performed outside the State of Washington ex- ceeded $68,000 for the year 1973. I find, therefore, that Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. Siemons Mailing Service, 122 NLRB 81. II. THE LABOR ORGANIZATION INVOLVED Cement Masons Local No. 528 , Operative Plasterers' and Cement Masons' International Association of the United States and Canada , AFL-CIO, is a labor organiza- tion within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES Respondent's employees began talking about unioniza- tion in April 1974, while on a job in Montreal, Canada. Upon their return from Canada, Philip Haeck and another employee contacted representatives of Cement Masons Lo- cal 528. The following day a number of the employees met at the home of Steven Boom and decided they would ap- i Page 26, line 13 of the official transcript is amended as follows Delete "8,300" and substitute therefor "83,000" 214 NLRB No. 89 STAY PLASTICS, INC proach Respondent's president, Nicholas F. Stay, about "going union." Accordingly, within a couple of days Haeck and Boom contacted Stay at his home .2 Haeck, the employees' spokesman, told Stay that the employees had contacted Local 528 and wanted to go union . According to Haeck and Boom, whom I credit, Stay immediately told them both that they were terminated , and then tried to talk them out of becoming unionized.3 A few days later , Erik Thixton, one of Respondent's part-time employees, was at the Stay residence visiting one of Nicholas Stay's sons . As he was leaving, Respondent's president asked Thixton if he had been contacted "about ,joining" the Union, and upon learning that he had , replied, "If you work for them , you won't work for me." 4 On or about the same day, employee Jeff Nichols walked home from school with one of Stay's sons Nicholas Stay was at home, and the first thing he said to Nichols, accord- ing to Nichols' credited and unrefuted testimony, was . . if I wanted to go Union , I can't work for him." The nature of Respondent's operations required that a substantial portion of the work be performed on weekends. Thus, except for members of the Stay family, all employees are employed on part-time basis. When an employee is hired and works for the Company , he is placed "on auto- matic standby," and is called when the next job arises. On the basis of the foregoing, I conclude and find that the General Counsel has established by a preponderance of the evidence that Haeck and Boom were terminated be- cause of their interest in and activities on behalf of Local 528 in violation of Section 8(a)(3) and ( 1) of the Act; and that Respondent unlawfully interrogated employees and threatened them with termination if they continued to sup- port the Union, all in violation of Section 8(a)(1) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent as set forth in section III, above, occurring in connection with the operations of Re- spondent as described in section I, above, have a close, intimate and substantial relation to trade , traffic and com- merce among the several states, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that Respondent has engaged in, and is engaging in, certain unfair labor practices, I shall recom- mend that Respondent cease and desist therefrom, and take certain affirmative action designed to effectuate the policies of the Act. It having been found that Respondent discriminatorily discharged Philip Haeck and Steven Boom on May 5, 1974, 2 Respondent's business is operated out of Stay's home 3 t do not credit Stay's denial that he terminated the two employees His antagonism towards the unionization of his employees was prominent throughout the hearing 4 Based on the credited and undenied testimony of Thixton 649 I shall recommend that Respondent offer them immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to seniority or any other rights or privileges previously enjoyed by each, dis- missing, if necessary, any employee hired since the date of termination of each , having less seniority. It is further rec- ommended that Respondent make Haeck and Boom whole for any loss of pay each may have suffered by reason of the discrimination against them. Said loss of pay shall be based on the earnings each would normally have earned from the date of discharge or layoff until offered reinstatement, less the net earnings of each during such period . Said backpay shall be computed on a quarterly basis in the manner es- tablished by the Board in F. W. Woolworth Company, 90 NLRB 289 (1950). The interest on backpay shall be com- puted in the manner set forth in Isis Plumbing & Heating Co., 138 NLRB 716 (1962). Since the evidence reveals Respondent's operations are conducted from the residence of Nicholas F. Stay, and as all of Respodent's employees are employed on a part-time basis, and there appears to be a substantial turnover of employees, it is found that in order to effectively dissipate the unfair labor practices found herein , Respondent be re- quired to mail signed notices to all employees who were employed at any time from May 5, 1974, to date. It is also recommended that Respondent be ordered to make available to the Board, upon request, all payroll and other records to facilitate checking the amounts of earnings due. In view of the nature of the unfair labor practices com- mitted, the commission of similar and other unfair labor practices reasonably may be anticipated. On the basis of the foregoing findings of fact , and the entire record in this proceeding, I 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. Cement Masons Local No. 528, Operative Plasterers' and Cement Masons' International Association of the United States and Canada , AFL-CIO, is a labor organiza- tion within the meaning of Section 2(5) of the Act. 3 By interrogating employees concerning their reasons for supporting the Union , and by threatening employees with termination for continued support of the Union, Re- spondent engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 4. By discharging Philip Haeck and Steven Boom on or about May 5, 1974, because of their activities on behalf of the Union, Respondent engaged in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. Upon the basis of the foregoing findings of fact and con- clusions of law, and the entire record in this proceeding, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: 650 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ORDERS It is recommended that Stay Plastics, Inc., its officers, agents, successors and assigns , shall: 1. Cease and desist from: (a) Discharging, laying off or otherwise discriminating against employees for engaging in union or concerted pro- tected activities. (b) Interrogating employees concerning their reasons for supporting the Union , or threatening employees with ter- mination for continued support of the Union. (c) In any like or related manner interfering with, re- straining or coercing its employees in the exercise of their rights guaranteed by Section 7 of the Act. 2. Take the following affirmative action: (a) Make whole Philip Haeck and Steven Boom, as set forth in "The Remedy" section above, for any loss of earn- ings suffered as a result of the discrimination against them. (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 and determine the amounts of backpay due these employees under the terms of this Recommended Or- der. (c) Sign copies of the attached notice marked "Appen- dix" 6 and mail signed copies of said notice to the last known address of all employees employed by the Respon- dent at any time from May 5, 1974, to date. (d) Notify the Regional Director for Region 19, in writ- ing, within 20 days from the date of receipt of this Order, what steps Respondent has taken to comply herewith 5 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 6 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 NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The trial held in Seattle, Washington, on August 15, 1974, in which we participated and had a chance to give evi- dence, resulted in a decision that we had committed certain unfair labor practices in violation of Section 8(a)(1) and (3) of the National Labor Relations Act, as amended , and this notice is sent to you pursuant to that Decision. The National Labor Relations Act, as amended, gives all employees the following rights: To organize themselves To form, loin, or support unions To bargain as a group through a representative they choose To act together for collective bargaining or other mutual aid or protection and To refrain from any or all such activity. In recognition of these rights , we hereby notify our employees that: WE WILL NOT unlawfully interrogate employees con- cerning their reasons for supporting Cement Masons Local No. 528, Operative Plasterers' and Cement Ma- sons' International Association of the United States and Canada, AFL-CIO. WE WILL NOT threaten employees with termination for continued support of said Union. WE WILL NOT discharge, lay off, or in any other man- ner, discriminate against any of our employees be- cause of their activities in behalf of Cement Masons Local No. 528, Operative Plasterers' and Cement Ma- sons' International Association of the United States and Canada, AFL-CIO, or any labor organization, or because of other concerted activities protected by the Act. WE WILL NOT in any other manner interfere with, restrain, or coerce employees in the exercise of any right guaranteed them by the Act. WE WILL offer to Philip Haeck and Steven Boom immediate and full reinstatement to their former or substantially equivalent positions without prejudice to their seniority or other privileges, and make them whole for any loss of earnings and other benefits suf- fered because of the discrimination against them. STAY PLASTICS, INC.