Barton Manufacturing Corp.

720 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Barton Manufacturing Corp.' and Production Main- tenance and Service Employees Union, Local 3. Case 29-CA-3912 May 2, 1975 DECISION AND ORDER BY MEMBERS JENKINS, KENNEDY, AND PENELLO On January 31, 1975, Administrative Law Judge Ivar H. Peterson issued the attached Decision in this proceeding. Thereafter, the General Counsel filed ex- ceptions and a supporting brief, and a brief in support of the Administrative Law Judge's Decision. 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 briefs and has decided to affirm the rulings, findings, and conclusions' of the Administrative Law Judge and to adopt his recommended Order, as herein modified? ORDER Pursuant to Section 10(c) of the National Labor Re- lations Act, as amended, the National Labor Relations Board adopts as its Order the recommended Order of the Administrative Law Judge, as herein modified, and hereby orders that the Respondent, Barton Manufac- turing Corp., Freeport, New York, its officers, agents, successors, and assigns, shall take the action set forth in said recommended Order as modified below: 1. Substitute the following for paragraph 2(a) of the recommended Order: "(a) Interrogating employees concerning their mem- bership in, activities on behalf of, and sympathy in and for Production Maintenance and Service Employees Union, Local 3, or any other labor organization; warn- ing and directing its employees to refrain from becom- ing or remaining members of said Union or any other labor organization; threatening employees with loss of employment or-other benefits if they engage in union activities, and discriminatorily discharging any em- i The name of'the Respondent appears as amended at the hearing 2 In the absence of exceptions by Respondent thereto, we pro forma adopt the Administrative Law Judge's conclusions that Respondent violated Sec 8(a)(3) and (1) of the Act by discriminatorily discharging Earl Thrane, and Sec 8(a)(1) by interrogating, threatening, and warning employees about union activity Accordingly, we find it unnecessary to pass upon the addi- tional findings of fact requested by the General Counsel. 3 The General Counsel excepts to the failure of the Administrative Law Judge to include appropriate remedial language in his recommended Order and notice to employees with respect to the unlawful interrogation and the unlawful warning We find merit in these exceptions Accordingly, we shall modify the recommended Order and notice, as set forth below ployees to discourage membership or activity in sup- port of said Union or any other labor organization." 2. Substitute the attached notice for that ' recom- mended by the Administrative Law Judge. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT interrogate our employees concern- ing their membership in,, activities on behalf of, and sympathy in and for Production Maintenance and Service Employees Union, Local 3, or any other labor organization. WE WILL NOT warn or direct our employees to re- frain from becoming or remaining members of the Union, or any other labor organization, or to re- frain from giving any assistance or support to the Union. WE WILL NOT threaten our employees with loss of employment or other benefits if they engage in activities on behalf of the Union, or any other labor organization. WE WILL NOT discourage membership in or activ- ity on behalf of Production Maintenance and Serv- ice Employees Union, Local 3,, or any other labor organization, by discriminatorily discharging or refusing to reinstate any of our employees or by discriminating in any other manner in regard to hire or tenure of employment or any term or con- ditions of employment, except as authorized in Section 8(a)(3) of the Act, as modified by the La- bor-Management Reporting and Disclosure Act of 1959. - WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed to them in Section 7 of the National Labor Relations Act. WE WILL offer Earl Thrane immediate and full reinstatement to his former job or, if it no longer exists, to a substantially equivalent position, with- out prejudice to seniority and other rights and privileges. WE WILL make Earl Thrane whole for any loss of pay suffere&as a result of his discharge and our refusal to reinstate him. All our employees are free to become, remain, or refrain from becoming or remaining members of the above-named Union or any other labor organization. BARTON MANUFACTURING CORP 217 NLRB No. 123 BARTON MANUFACTURING CORP. - 721 DECISION - STATEMENT OF THE CASE were, respectively, president and officers of the Respondent and, accordingly, its agents. I further find that Henry Greene at all material times held the position of plant foreman and was a supervisor of the Respondent. IVAR H. PETERSON, Administrative Law Judge: This case was tried before me in Brooklyn, New York, on November 6 and 7, 1974, based on the complaint issued on September 30, by the Acting Regional Director for Region 29 and on charges filed by Production Maintenance and Service Em- ployees Union, Local 3, herein called the Union, on June 28. Briefly stated, the complaint alleged that on various dates in June Barton Manufacturing Corp.,' by its president, Hal Wolff, and other named and unnamed supervisors, ques- tioned employees concerning their membership and activities in the Union, warned and directed them to refrain from becoming or remaining members of the Union or giving it any assistance, threatened them with discharge or other reprisals if they became or remained members of or assisted the Union, created the impression of keeping under surveillance the meeting places and activities of the Union and, on or about June 25, discharged Earl Thrane, and thereafter refused to reinstate him, because he had joined and assisted the Union and engaged in other concerted activity for the purpose of collective bargaining and other mutual aid and protection. By such conduct, the complaint alleged that the Respondent had engaged in unfair labor practices violative of Section 8(a)(3) and (1) and 2(6) and (7) of the Act. In its answer, undated, the Respondent denied that it had engaged in any unfair labor practices. Upon the entire record in the caue2 and upon my observa- tion of the witnesses as they testified, I make the following: FINDINGS OF FACT I JURISDICTION The Respondent, a New York corporation, has at all material times maintained its principal office and place of business in Freeport, New York, where it is engaged in the manufacture, sale, and distribution of corrugated paper prod- uct boxes and related products. The Respondent admits and I find that during the preceding year it purchased and caused to be transported and delivered to the Freeport plant materi- als valued in excess of $50,000, of which goods and materials valued in excess of $50,000 were transported and delivered to the Freeport plant in interstate commerce and from points outside the State of New York, and that, during the same period, it manufactured, sold, and distributed at the Freeport plant products valued in excess of $300,000, of which prod- ucts valued in excess, of $50,000 were furnished to a number of concerns, including Maiden Form, Inc-, which enterprises annually produced goods valued in excess of $50,000 which were shipped directly out of the state in which the enterprise was located. I find that the Respondent is engaged in com- merce within the meaning of Section 2(2), (6), and (7) of the Act, and I further find that the Union is a labor organization within the meaning of Section 2(5) of the Act. In addition, I find that Hal Wolff, Leonard Walters, and Ronnie Zunk, ' As corrected at the hearing 2 I afforded the parties until December 10 to file briefs with me; however, no briefs were filed II THE ALLEGED UNFAIR LABOR PRACTICES A. Preliminary Statement It is the position of counsel for the General Counsel that the present case arose out of an organizational campaign which the Union began at the Respondent's premises about June 21, when two representatives of the Union, Patino and Christianson, stationed themselves outside the plant about closing time and began meeting with employees One of the workers they met with was Thrane, who signed an authoriza- tion card at that time and thereafter spoke to other employees urging them to do the same. According to counsel for the General Counsel, a representative of the Respondent ob- served Thrane speaking to Patino, with whom the Respond- ent was familiar in view of the fact that 2 years previously during a prior organizational campaign, representatives of the Respondent had become acquainted with him. On the following Monday, June 24, Thrane, so counsel for the Gen- eral Counsel contends, reported for work and was assigned a delivery and, on his return shortly before noon, he again met Patina outside the plant and had a brief conversation with him. Thereafter, Thrane gave a union authorization card to Greene at the plant premises and it is contended that Greene took the card and stated that he would think about the matter. Greene denied this. Shortly thereafter, Thrane was called into Wolff's office and, in the presence of Greene, Wolff proceeded to make certain statements to Thrane which it is claimed violated Section 8(a)(1) of the Act. The Respondent, on the other hand, asserts that Thrane was terminated for cause and, in addition, denies that any representative of the Respondent engaged in any conduct violative of Section 8(a)(1) of the Act. B. Discharge of Thrane and Other Conduct Thrane, a young man hired by President Wolff in March 1974, drove a truck for the Respondent making deliveries in the Metropolitan area and also worked in the plant and loaded and unloaded the truck . He was hired at the rate of $3.25 per hour and his hours of work were from 7 to 4:30 in the afternoon, 5 days a week. He was terminated on June 25. When working in the plant, he was directed by Foreman Greene. About the end of May he asked Wolff for a raise, from a take home salary of $130 per week to $150 per week. According to Thrane, Wolff told him that he "would have to find out what the gross would come out to, and that he would get back to me." However, according to Thrane, Wolff stated that he "did not deserve a raise, that I was unreliable, and that he shouldn't be giving me a raise." Wolff did not "get back" to Thrane and the latter, during the week of June 17, again asked that he be given a raise. Thrane testified that Wolff said he would receive an increase of 25 cents per hour. It is Thrane's testimony that he told Wolff that he would accept that raise on condition that he not be required to work in the plant or load the truck, and only assist in unloading it 722 DECISIONS OF NATIONAL LABOR RELATIONS BOARD if his help were necessary. Thrane testified that Wolff agreed to these conditions. On the afternoon of Friday, June 21, Thrane, shortly after punching out, met two representatives of the Union outside the plant and was given some union literature and an authori- zation card. Thrane signed the card and advised Patino, one of the Union representatives, "that Barton needed a union bad, and I was going to sign the card right now; which I did." Thrane told Patino that the other employees would be leaving the plant at 4:30 and that he would wait around as he wished to see what happened. As the employees came out, two ap- proached Patino and began talking to him. Patino gave them some literature and authorization cards. While the two em- ployees were talking to the Union representatives, Supervisor Zink. came out, and, according to Thrane, made a gesture at the Union representatives and asked, in substance, if they were "starting in again," and whether the Respondent would "have to go through what we did last year all over again." Thrane obtained some authorization cards from Patino and stated that during lunch time the following working day he would pass them out to the employees. Upon coming to work on Monday, June 24, Thrane was assigned by Wolff to make a delivery and, as he returned to the plant, Patino and his associates were again in front of the plant. Thrane greeted them and went inside the plant. He testified he met Supervi- sor Greene on the platform and gave him an authorization card. stating that Greene should "sign the card for his own good." Greene stated, as Thrane related, that he would think it over and-then went into President Wolff's office. Shortly thereafter, Thrane was called into the office and, in the pres- ence of Greene and a secretary, Wolff told Thrane that he had heard the latter had signed a union card, to which Thrane responded in the affirmative. Thrane testified that Wolff asked if he knew "if a union come in, here, there will have to be Union Shop Rules, which means, if you come in 2 minutes late, I can fire you." Thrane responded by stating that he had signed a card and that he felt he deserved more money and that "the Union is the only people that can get it for me." Thrane testified that Wolff, characterizing him with an ob- scene remark, stated that it was persons such as he "that always have to make it hard for me." Wolff, according to Thrane, stated that he had spoken to all the employees that morning and had "told them that if anybody signed that card, that he would fire them," and added that he could call an employment agency and obtain all the help he wanted. Thrane, then directed by Wolff, went out to lunch but was promptly called back. Wolff then asked him for the authori- zation cards Thrane had and Thrane gave them to him. Thrane testified that Wolff asked "if it was the Union's idea for me to pass them out," to which Thrane replied that it was his own idea as he wanted "to try to knock some sense into these guys' heads." To this, Wolff replied that Thrane could not "knock any ,smarts into these guys' heads" and that he had told them that if they did sign the card he would fire them. Thrane then left the office and in front of the plant talked to Patino and told him what had occurred. Thrane returned from lunch about 12:45 and continued to work the balance of the afternoon. He reported for work at about 7 a.m. on June 25, and Wolff told him to assist another employee in loading his truck. Thrane then recalled the un- derstanding concerning work assignments that the two had reached and Wolff replied that he did not remember any such agreement. Thrane again mentioned the understanding they had reached, to which Wolff replied, "first you want a union, then you don't want to load the truck up," and stated that he did not like Thrane's attitude. Thrane replied that he would load the truck on that occasion but Wolf replied, "no, don't do it, you're fired, I'm going to find somebody else." Thereupon Thrane gave Wolff the key to the truck and the registration card and punched out. Prior to receiving his raise on June 17, Thrane had assisted in loading the truck almost every day but, after he had received the raise, he was not assigned to load the truck or work in the plant. Thrane testi- fied that before his termination he had not been disciplined or warned about his work; to the contrary, he testified that he had received compliments from Wolff regarding the qual- ity of his work. Antonio Patino, secretary-treasurer of the Union for the past 10 years, an elected position, testified that the Union has made two attempts to organize the Respondent's employees, the first early in 1972 and the most recent beginning the latter part of June 1974. During the afternoon of Friday, June 21, he and an organizer named Clement Christianson, stationed themselves at the Respondent's premises near the loading platform and spoke to a number of employees, including Thrane. Patino gave Thrane some literature and an authori- zation card and discussed the merits of unionization with him. Thrane signed the authorization card and volunteered to participate in the effort to interest other employees. Patino related that while speaking to Thrane and two other em= ployees, Supervisor Zunk came out of the plant, approached Patino, and made a remark to the effect that the Respondent's employees would have to "go through this aggravation" again. Patino previously, during the prior organizational at- tempt, had had several discussions with Zunk during the course of the 1972 strike the Union had sponsored.' Patino testified that after Zunk had spoken to him Thrane requested a supply of authorization cards which he volunteered to dis- tribute to other employees. On Monday, June 24, shortly before noon, Patino and his associate, Christianson, went back to the plant and spoke to a number of employees. Shortly after noon Thrane, who had arrived from a delivery in the meantime and had gone into the plant, came out, and told the union representatives that he had been called into the office by Wolff who had relieved him of the authorization cards given Thrane on Friday. As Patino was leaving the plant, at approximately noon, he ob- served Wolff, who was on the loading platform between two trailers, looking at him. As previously related, Patino was acquainted with Wolff and testified that in April 1972 when the first organizational attempt was made, Wolff had dis- charged a number of employees who had signed authoriza- tion cards for the Union. On the last attempt, the Union was able to obtain only one authorization card, that of Thrane. Patino testified that during the course of his conversation with employees during the noon lunch hour, an employee named Eddie "came out and told us that they did not need a Union there, the plant was too small, and there was nothing 3 The strike, which fasted from April 7 to 11, cuinunated in an attempted consent-election agreement which, however, was not consummated because the Respondent questioned the jurisdiction of the Board and suggested that the Union file with the State Labor Relations Board BARTON- MANUFACTURING CORP. that the Union could do for them." Patino asked him whether he was speaking for himself or conveying a message from Wolff. The employee said the sentiments were his own. Leonard Walter, one of the Respondent's partners, as a witness for the Respondent, testified that he was very much involved in the determination of who should be employed and held frequent discussions with his partners as to the status of employees and who should or should not remain. He related that as a result of his study of employee timecards, he noticed that Thrane was erratic in his work week and, in his judg- merit, was "unreliable," a condition that the Respondent could not tolerate. In addition, he testified that Thrane was "accident prone," in that he had had two or three accidents in a relatively short period. Moreover, he stated that of his own knowledge Thrane's truck "had been coming back half laden with merchandise," and that he took "quite a few days" off work without calling the plant to inform the Respondent that he would not be coming to work. Walter testified that when Thrane was hired the "idea was" that if he continued to be employed after 3 months he would be given a raise. However, he related that during this period officials of the Respondent "were not satisfied with him at all, and we had been playing with the idea of letting him go several times." Walter said, that, despite the dissatisfaction with Thrane, he was determined to keep him in the employ of the Respondent because Thrane had "promised to quit his other job, his other work, his moonhghting work that he had." By his account, the Respondent was severely handicapped because of the hours Thrane was putting in, and, despite his promises, Thrane did not devote more time to his work for the Re- spondent. According to Walter, Thrane worked substantially fewer hours during the last 6 weeks of his employment; a fact which, so Walter testified, could be established by the Re- spondent's records. I suggested to counsel for the Respondent that, since the records were apparently available, I thought that they should be introduced, and they eventually were .4 4 The records for the penods ending in 1974 concerning Thrane's hours may be summarized as follows 3/20 46.75 3/27 45 75 4/3 44 4/10 43 4/17 40 25 4/24 36 5/1 40 75 5/8 36.5 5/15 42.5 5/22 15 75 5/29 0 6/5 35 6/12 25 5 6/19 40.5 6/26 25 The records show that on the first day of the period ending June 5 Thrane went to court, and that he did the same on the second day of the period ending June 28. With respect to the time Thrane punched in in the morning, the records show that from the period ending April 10 until his discharge he punched in after 7 a m. on 53 days They also reveal, however, that he frequently worked beyond the established quitting time. 723 Concerning the Respondent's claim to the effect that Thrane was "accident-prone," the only documentary evi- dence placed in evidence with respect to a traffic incident in which Thrane was involved, and which occurred according to Wolff, on June 19, indicates that the damage to the Re- spondent's vehicle consisted of the rear tail gate falling off and the right turn signal being bent. In the report, made out ' by Thrane, he stated that the vehicle he was driving was about to make the right turn when the vehicle behind him struck his vehicle in the rear. From this, it can scarcely be contended that Thrane was at fault or had a record indicating that he was apt to be involved in traffic accidents. C. Conclusions After carefully weighing the evidence adduced in this pro- ceeding, I reach the conclusion that the Respondent ter- minated Thrane because of his activity in support of the Union and, in addition, that it engaged in other activity viola- tive of the Act, as alleged in the complaint.' Accordingly, I shall recommend that the Respondent offer Thrane reinstate- ment to his former or a substantially equivalent position and pay him for wages lost on account of the discrimination against him, together with interest at the rate of 6 percent per annum, and post the customary notices. III THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth above, have a close, intimate, and substantial 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 of commerce. Upon the basis of the foregoing findings of facts and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Barton Manufacturing Corp. is an employer engaged in commerce within meaning of Section 2(6) and (7) of the Act and the Union is a labor organization within the meaning of Section 2(5) of the Act. 2. By discriminatorily discharging Earl Thrane, the Re- spondent violated Section 8(a)(3) and (1) of the Act. 3.,By other conduct as set forth above, the Respondent violated Section 8(a)(1) of the Act. 4. The aforesaid unfair labor ,practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. IV THE REMEDY Having found that the Respondent has engaged in unfair labor practices, it will be recommended that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. I have found that by terminating Earl Thrane the Respond- ent violated Section 8(a)(3) and (1) of the Act, and that it engaged in other conduct violative of Section 8(a)(1) of the Act. It will, therefore, be recommended that the Respondent 5 However, I am not persuaded that Wolff engaged in surveillance as I view the evidence in support of that allegation as being not substantial 724 DECISIONS OF NATIONAL LABOR RELATIONS BOARD offer Thrane reinstatement to his former job or, if that is no longer available, to a substantially equivalent position, and make him whole for any losses sustained by reason of his termination, with interest at the rate of 6 percent per annum. Additionally, it will be recommended that the Respondent cease and desist from engaging in any other conduct violative of Section 8(a)(1) of the Act, and post appropriate notices to its employees. Upon the basis of the foregoing f ndings of fact and conclu- sions of law, it is recommended that the National Labor Relations Board, pursuant to Section 10(c) of the Act, issue the following recommended: ORDER6 Respondent, Barton Manufacturing Corp., Freeport, New York, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: {a) Threatening employees with loss of employment or other benefits if they engage in union activities, or dis- criminatorily discharging any employees to discourage mem- bership or activity in support of the Union or any other labor organization. 6 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 7 In the event the Board's Order is enforced by a Judgment of the 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 " (b) In any other manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed to them in Section 7 of the Act. 2. Take the following affirmative action to effectuate the policies of the Act: (a) Offer to Earl Thrane immediate and full reinstatement to his former job, or, if the job no longer exists, to a substan- tially equivalent position, without prejudice to his seniority or other rights and privileges, 'and make him whole in the man- ner set forth in the section of this Decision entitled "The Remedy." (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, person- nel records and report, and all other records necessary to determine the amount of backpay due and to analyze rein- statement rights under the terms of this recommended Order. (c) Post at its premises in Freeport, New York, copies of the attached notice marked "Appendix."' Copies of said no- tice, to be furnished by the Regional Director for Region 29, after being duly signed by a representative of the Respondent, shall be posted by the Respondent immediately upon receipt thereof, and be maintained for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 29, in writing, within 20 days from the date of receipt of this Decision, what steps the Respondent has taken to comply herewith.