New Metal Crafts, Inc.

850 DECISIONS OF NATIONAL LABOR RELATIONS BOARD New Metal Crafts, Inc. and United Electrical, Radio and Machine Workers of America (UE). Case 13- CA-14299 August 6, 1976 DECISION AND ORDER BY CHAIRMAN MURPHY AND MEMBERS FANNING AND PENELLO On April 16, 1976, Administrative Law Judge Leo- nard M. Wagman issued the attached Decision in this proceeding. Thereafter, the Respondent filed ex- ceptions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings,' and conclusions of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the Respondent, New Metal Crafts, Inc., Chicago, Illinois, its officers, agents, successors, and assigns, shall take the action set forth in said recom- mended Order. America (UE), referred to hereinafter as the Union, and alleged therein that the Company violated Section 8(a)(3) and (1) of the National Labor Relations Act, as amended (29 U.S.C 151, et seq ), referred to herein as the Act, by discharging or laying off employees Angel Portalatin, Jack Nudelman, Jesus DeLaPena, and Jean Kowalyk, and by discharging employee Michel Kowalyk, because of their union activity. In a timely filed answer, the Company de- nied commission of the alleged unfair labor practices. At the hearing, the General Counsel amended the complaint by deleting the allegation regarding Angel Portalatin, and by correcting the complaint to show "Jesus" as employee DeLaPena's given name. Following the close of the hear- ing, the General Counsel and the Company filed briefs.' Upon the entire record in this case, from my observation of the demeanor of the witnesses, and upon careful consid- eration of the briefs, I make the following: FINDINGS OF FACT 1. THE COMPANY'S BUSINESS AND THE LABOR ORGANIZATION INVOLVED The Company, an Illinois corporation, is engaged in the manufacture and sale of custom-made lighting fixtures at Chicago, Illinois, where it maintains the plant involved in the instant proceeding. During the preceding calendar year, the Company, in the course and conduct of its busi- ness operations, sold and shipped goods and materials val- ued in excess of $50,000 from its Chicago, Illinois, plant, directly to points in the United States outside the State of Illinois. I find from the foregoing admitted data, and the Company's admission, that at all times material herein, the Company was an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. The Company admits, and I find, that United Electrical, Radio and Machine Workers of America (UE), is, and at all times material herein has been, a labor organization within the meaning of Section 2(5) of the Act. i The Respondent has excepted to certain credibility findings made by the Administrative Law Judge It is the Board's established policy not to over- rule an Administrative Law Judge 's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect Standard Dry Wall Products, Inc, 91 NLRB 544 (1950), enfd 188 F 2d 362 (C A 3 , 1951) We have carefully examined the record and find no basis for reversing his findings DECISION STATEMENT OF THE CASE LEONARD M. WAGMAN, Administrative Law Judge' A hearing in the entitled proceeding was held before me on November 3 and 4, 1975, at Chicago, Illinois, on the com- plaint of the General Counsel against the Respondent, New Metal Crafts, Inc., referred to hereinafter as the Com- pany. The Regional Director of Region 13, on behalf of the General Counsel, issued the complaint in this proceeding on August 28, 1975, upon a charge filed on May 14, 1975, by United Electrical, Radio and Machine Workers of It. THE ALLEGED UNFAIR LABOR PRACTICES A. Facts 1. Union activity 2 Late in the summer of 1974, company employee Jack Nudelman began discussing with fellow employees the pos- sibility of obtaining union representation for the Company's approximately 20 plant employees. However, it was not until March 1975 that Nudelman contacted the Union and spoke to Business Agent Criley. Thereafter, on the evening of April 25, Criley held a meeting at the Union's headquarters attended by Nudelman, Michel 1 The General Counsel's motion of December 23, 1975, to correct the transcript is granted 2 Except as otherwise noted, my findings of fact regarding the union ac- tivity of employees Jack Nudelman, Michel Kowalyk, Jean Kowalyk, and Jesus DeLaPena are based on their testimony and that of the Union's busi- ness agent, Florence Criley 225 NLRB No. 122 NEW METAL CRAFTS, INC. Kowalyk, his brother, Jean Kowalyk, Jesus DeLaPena, and the other employees. At the April 25 meeting, the assem- bled employees discussed their expectations regarding union representation. That same evening, Nudelman and the two Kowalyk brothers signed authorization cards for the Union. Also on April 25, Nudelman and Business Agent Criley scheduled a second union meeting for company employees to be held on the evening of May 7,3 at the Union's office As May 7 approached, Nudelman, the Kowalyks, and De- LaPena approached fellow employees at the plant, in a nearby restaurant and in a nearby parking lot, and encour- aged them to attend the scheduled meeting. Nudelman spoke to approximately 15 employees 2. The alleged discrimination " About 8:25 a.m., on the morning of May 7, Company President James R. Neumann, came to employee DeLa- Pena's work station in the Company's drafting room and directed DeLaPena to accompany him After the two had walked a few steps, Neumann turned to DeLaPena and ordered him to pack his effects, told him that his check was being prepared, and cautioned him against talking to any- one in the shop downstairs. DeLaPena asked Neumann to explain the discharge, but Neumann did not answer. At a second encounter after De- LaPena had taken up his effects, he met James Neumann at the reception desk. Again DeLaPena asked why he was being discharged, and Neumann did not reply. At their third and final meeting, in the drafting room, as DeLaPena was picking up the last of his things, Neumann came into the room. DeLaPena renewed his question Neumann re- plied that he was discharging him because of "a lack of work." Neumann also reminded DeLaPena that he had ordered "some glass wrong sizes." At this, DeLaPena went downstairs, told Nudelman of the discharge, assured him that he would attend the union meeting later in the eve- ning, and left the plant. My findings regarding the arrangement for the second meeting was based on the parties' stipulation In resolving conflicts between the testimony of the four alleged discrimi- natees and President Neumann , I have credited the alleged discrimmatees For, unlike the four, who appeared to be conscientiously providing their best recollections, Neumann's testimony tended to be artificial, particularly when recounting conversations with Nudelman Thus, Neumann asserted that he was "shocked" by Nudelman's suggestion that his discharge "has something to do with the union " Neumann again sought to over dra- matize his testimony when he attempted to testify that Nudelman made a further accusation In recounting a second incident , Neumann testified that Nudelman warned "You are going to be unionized whether you like it or not," and that he, Neumann responded " I don't know what you are talking about" Given that President Neumann has devoted his entire adult life to the Company, which has not heretofore been organized by any union, I find it difficult to believe his portrayal of disinterest at this revelation A further incident persuaded me that President Neumann was an unrelia- ble witness On cross-examination, President Neumann agreed that January and February 1975 were the "two worst months" insofar as the Company's backlog of work was concerned Three pages later, when asked why he did not discharge employees during those 2 months, he became evasive and then changed his position, testifying that the Company had a big backlog in January 1975 For these reasons, and my general impression of President Neumann, I have rejected his testimony where it conflicted with the testi- mony of the four alleged discriminatees 851 Later the same morning, President Neumann discharged the Kowalyk brothers. When Michel Kowalyk asked for an explanation, President Neumann told him, "Well, things are slow. I have to reorganize the shop." Michel then went to his brother, Jean, and told him of the development. Jack Nudelman credibly testified that, before leaving the plant, Michel notified him that Neumann had discharged the two Kowalyks. Jean Kowalyk spoke to President Neumann and con- firmed Michel's report. Neumann instructed Jean to gather his tools and return the Company's tool to Supervisor Wal- ter Klis. As he handed the Company's tools to Klis, Jean Kowalyk remarked that the real reason for his and his brother's discharge was that they were "planning to orga- nize a union." Klis did not reply.' The Kowalyks packed their personal tools in a box, left the box on the shop floor, and then went home. Later, on May 7, at 2 or 2.30 p.m., President Neumann discharged Jack Nudelman. In replying to Nudelman's "Why," Neumann said, "I have lost some more jobs and we have to economize, and it is getting slow " At this, Nu- delman expressed disbelief, and added, "We have been working overtime, everybody's working fifty hours." Neu- mann answered with "it is slow. I have to let you go." After he prepared for departure, Nudelman went up- stairs to get his check from President Neumann. When he found Neumann, Nudelman asked, "Jim, why are we fired-because we tried to organize the shop, because we tried to get a union into the shop?" Neumann did not re- ply. Nudelman went on to suggest that, although the Com- pany was discharging him for union activity, the Union would continue its organizing effort. Neumann answered: "Well, we'll see." At this, Nudelman left the plant. Once outside the plant, Nudelman phoned Michel and Jean Kowalyk, told them he had been discharged, and in- vited them to accompany him back to the plant to discuss the discharges with President Neumann. The Kowalyks agreed to return to the plant with Nudelman. Within less than 1 hour after the phone conversation, Nudelman and the Kowalyks were back in the company machine shop, where they found President Neumann. Nudelman approached Neumann and stated his intent to find out "whether we have been fired or laid off." Neu- mann immediately moved the discussion to the plant load- ing platform, where Nudelman again pressed his question, adding, "Jim, were we fired for union activities)" Neu- mann replied' "No, no no. You are just fired because it is slow." At this, Nudelman questioned Neumann's remark, by asking how could the Company's operations be slow as all the employees were working 50-hour weeks. Neumann Unlike Jean Kowalyk, who testified in a full and forthright manner and showed a conscientious effort to recall incidents and remarks , Supervisor Walter Klis was carefully lead by company counsel in regard to the conver- sation described by Jean Kowalyk I also find it difficult to accept Klis' testimony to the effect that at the time of the hearing he had no knowledge of the union meeting on April 25, an event which must have been common knowledge at the plant at least by November 3, 1975, the first day of the hearing in this case Indeed, Klis appeared to be overly anxious to disclaim any knowledge or inkling of union discussions, volunteering the unlikely explanation that there was no such discussions "because there was no union in the shop" In short, Klis appeared to be protesting too much and thus cast further doubt upon his testimony 852 DECISIONS OF NATIONAL LABOR RELATIONS BOARD retorted that he was not obliged to talk to Nudelman and that he was only acting out of courtesy. At this, Nudelman suggested that he and the Kowalyks should leave the plant. As Nudelman and the Kowalyks were walking out, Neu- mann turned to the Kowalyks and said, "You fellows have Jack to thank for what happened to you today." Approximately 2 or 3 weeks later, employee Stanley Ba- jon overheard Company Superintendent Joseph Neumann tell a woman, who was looking for "Mike" Kowalyk, that "Mike" was "fired because he was getting smart and want- ed [a] union in the shop." 6 The Company reinstated Michel Kowalyk on August 18. The Company has not offered reinstatement to the remain- ing three alleged discriminatees. B. Analysis and Conclusions were unlawful, the Company raised economic defenses. The Company urged that "lack of business" required a re- duction in its work force and that it selected Nudelman, the Kowalyks, and DeLaPena, for reasons having nothing to do with union activity. However, in view of the direct evidence of unlawful motive, it appears unnecessary to an- alyze the grounds urged by the Company which have been shown to be pretextual. For, as I have found above, Presi- dent James Neumann and Superintendent Joseph Neu- mann revealed that the Company discharged the four em- ployees solely because of their union activity. Accordingly, I find that by discharging Jack Nudelman, Michel and Jean Kowalyk, and Jesus DeLaPena, the Company violat- ed Section 8(a)(3) and (1) of the Act Upon the foregoing findings of fact and the entire re- cord, I make the following: The record shows that employees Jack Nudelman, Mi- chel and Jean Kowalyk, and Jesus DeLaPena were actively soliciting support for the Union's organizing effort. Their efforts in early May were directed to getting a good turn- out of employees at the May 7 union meeting. Given these circumstances, the timing of their unheralded discharges on that same day, May 7, suggests a connection between their union activity and the Company's decision to get rid of them. However, the instant case presents one of those rare in- stances where direct evidence reveals the unlawful motive alleged by the General Counsel. Here, the direct evidence was provided by the Neumanns. Taken in its context, Pres- ident Neumann's remark to the Kowalyks, as he was usher- ing them and Nudelman from the plant on May 7, i.e , "you have Jack to thank for what happened to you today," revealed that he was aware of Nudelman's leading role, and their supporting roles, in the Union's organizing effort. Also, given the context in which it was made, the remark also revealed that President Neumann was punishing Nu- delman and his allies for their union activity by discharg- ing them. Any doubt as to President Neumann's unlawful design was eradicated by Superintendent Joseph Neumann's subsequent admission that the Company fired Michel Kowalyk "because he was getting smart and want- ed [a] union." For, this statement made plain that the Com- pany had resorted to the May 7 discharges to rid itself of the four employees responsible for stirring up a union orga- nizing campaign in its plant. In attempting to avoid findings that the four discharges 6 My finding regarding Joseph Neumann's remarks are based on Baton's testimony Although Baton required a Polish interpreter to testify, it ap- peared during the hearing that he understood conversational English I also noted that on cross-examination, though armed with his preheating affida- vit, the Company did not attempt to show any inconsistency between his testimony before me, and his affidavit, which he gave 6 days before the Company discharged him Thus, it appears that discharge did not affect Baton's testimony Baton also impressed me as being more candid than Joseph Neumann As in the cases of James Neumann and Walter Klis, Joseph Neumann ap- peared given to anxious disclaimers He fervently denied any inkling of union activity prior to May 7, 1975, and showed similar anxiety in denying the remarks attributed to him by Baton Finally, Joseph Neumann even denied ever discussing Michel Kowalyk's discharge with anyone Such a sweeping disclaimer appears unlikely in view of his presence on the stand CONCLUSIONS OF LAW 1. New Metal Crafts, Inc., is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. United Electrical, Radio and Machine Workers of America (UE), is a labor organization within the meaning of Section 2(5) of the Act. 3. By discharging employees Jack Nudelman, Jean and Michel Kowalyk, and Jesus DeLaPena, the Company en- gaged in unfair labor practices within the meaning of Sec- tion 8(a)(3) and (1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. THE REMEDY Having found that the Respondent has engaged in cer- tain unfair labor practices, I find it necessary to order Re- spondent to cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. The Respondent having discriminatorily discharged em- ployees Jack Nudelman, Jean and Michel Kowalyk, and Jesus DeLaPena, and having reinstated only Michel Kow- alyk, I find it necessary to order the Respondent to offer full reinstatement to employees Jack Nudelman, Jean Kowalyk, and Jesus DeLaPena. In accordance with usual requirements, reinstatement shall be to the three employ- ees' respective former positions or substantially equivalent positions, without prejudice to their seniority and other rights and privileges. I shall also order the Respondent to make whole each of the four discriminatees for any loss of earnings each may have suffered by reason of the discrimi- nation against him, by payment to each of a sum of money equal to that which he normally would have earned from the date of the initial discrimination to the date the Com- pany has offered, or shall offer him reinstatement, less net earnings, if any, during such period, to be computed in the manner prescribed in F. W. Woolworth Company, 90 NLRB 289 (1950), and Isis Plumbing & Heating Co., 138 NLRB 716 (1962) Finally, I shall order the Respondent to post the usual notices to employees. NEW METAL CRAFTS, INC The unfair labor practices committed by Respondent strike at the very heart of employees' rights safeguarded by the Act. I shall therefore place Respondent under a broad order to cease and desist from in any manner infringing upon the rights of employees guaranteed in Section 7 of the Act. N.L.R B v. Entwistle Manufacturing Company, 120 F.2d 532, 536 (C.A. 4, 1941). Upon the basis of the foregoing findings of fact, conclu- sions of law, and upon the entire record in the case, I here- by issue the following recommended- ORDER 7 The Respondent, New Metal Crafts, Inc., Chicago, Illi- nois, its officers, agents, successors, and assigns, shall' 1. Cease and desist from- (a) Discouraging membership in, support for, or activi- ties on behalf of United Electrical, Radio and Machine Workers of America (UE), or any other labor organization, by discriminating in any manner against any of its employ- ees in regard to their hire and tenure of employment, or any term or condition of employment, because of their union membership, sympathies, or activities. (b) In any other manner interfering with, restraining, or coercing employees in the exercise of their rights to self- organization, to form, join, or assist labor organizations, including United Electrical, Radio and Machine Workers of America (UE), to bargain collectively through represen- tatives of their own choosing, to engage in concerted activi- ties for the purpose of collective bargaining or other mutu- al aid or protection, or to refrain from any and all such activities. 2. Take the following affirmative action, which I find will effectuate the policies of the Act: (a) Offer employees Jack Nudelman, Jean Kowalyk, and Jesus DeLaPena immediate and full reinstatement to their former positions or, if these positions no longer exist, to substantially equivalent positions without prejudice to their seniority or other rights and privileges. (b) Make whole employees Jack Nudelman, Michel and Jean Kowalyk, and Jesus DeLaPena for any loss of earn- ings suffered by reason of Respondent's discrimination against them, in the manner set forth in the section of this Decision entitled "The Remedy." (c) 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 or useful to analyze the amounts of backpay due un- der the terms of this Order. (d) Post at its plant in Chicago, Illinois, copies of the attached notice marked "Appendix." 8 Copies of said no- tice, on forms provided by the Regional Director for Re- gion 13, after being duly signed by Respondent, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in con- spicuous places, including all places where notices to em- ployees are customarily posted. Reasonable steps shall be 853 taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 13, in writ- ing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. 7 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 B 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 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 After a hearing in which all sides had the chance to give evidence, the National Labor Relations Board found that we, New Metal Crafts, Inc., violated the National Labor Relations Act, and ordered us to post this notice and abide by the following. The law gives you the right: To form, join, or help unions To choose a union to represent you in bargaining with us To act together for your common interest or pro- tection To refuse to participate in any or all of these things. WE WILL NOT discharge you, or otherwise discrimi- nate against you, because you have engaged in orga- nizing activity for, or are a member or supporter of, United Electrical, Radio and Machine Workers of America (UE), or any other union. WE WILL NOT in any other manner interfere with, restrain, or coerce employees in the exercise of their rights to engage in or to refrain from engaging in any or all of the activities specified in Section 7 of the Act. The Board found that we violated the law because we discharged employees Jack Nudelman, Jean and Michel Kowalyk, and Jesus DeLaPena. WE have recalled Michel Kowalyk. WE WILL offer to reinstate Jack Nudelman, Jean Kowalyk, and Jesus DeLaPena to their former jobs without any loss of seniority or other rights WE WILL make Jack Nudelman, Jean and Michel Kowalyk, and Jesus DeLaPena whole for any loss of earnings they may have suffered because we dis- charged them, together with 6-percent interest. NEW METAL CRAFTS, INC.