Metz Metallurgical, Inc.

METZ METALLURGICAL, INC. Metz Metallurgical, Inc. and James Tubertini. Case 22-CA-13208 11 July 1985 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS HUNTER AND DENNIS On 17 January 1985 Administrative Law Judge Steven Davis issued the attached decision. The General Counsel filed exceptions and a supporting brief, and the Respondent filed a reply brief. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings, and conclusions and to adopt the recommended Order. ORDER The recommended Order- of the administrative law judge is adopted and the complaint is dis- missed. DECISION STATEMENT OF-THE CASE STEVEN DAVIS, Administrative Law Judge. Based on a charge and a first amended charge filed by James Tu- bertini on May 2 and June 11, 1984,1 respectively, a complaint and notice of hearing was issued on June 12 by Region 22 of the National Labor Relations Board The complaint- alleges that on about March 12 Metz Metallurgical, Inc. (Respondent) refused to issue a letter verifying employment to Turbertmi because he filed a charge in a prior case, in violation of Section 8(a)(1) and (4) of the Act Respondent's answer denied the material allegations of the complaint, and the case was heard before me on September 19 in Newark, New Jersey On the entire record and after consideration of the briefs filed by the General Counsel and Respondent, I make the following FINDINGS OF THE FACT 1. JURISDICTION Respondent, a New Jersey corporation, having its office and place of business in South Plainfield, New Jersey, is engaged in the manufacture and nonretail sale and distribution of metal products. It annually purchases and receives products, goods, and materials valued in excess of $50,000 directly from points outside New Jersey Respondent admits and I find that it is an em- ployer engaged in commerce within the meaning of Sec- tion 2(2), (6), and (7) of the-Act. ' All dates herein are in 1984 unless otherwise stated 275 NLRB No. 149 II. ALLEGED UNFAIR LABOR PRACTICES 1045 A. The General Counsel's Case Tubertini, a maintenance mechanic, has been employed by Respondent since October 1981: He was active in the attempt by Local 389, Service Employees International Union to organize Respondent's employees which began in late September or early Octo- ber 1982, and he testified at a Board hearing subsequent to the election that was conducted. On February 13, Tubertini filed a charge in Case 22- CA-12057 against Respondent which alleged that since about September 1, 1983, it harassed him and imposed more onerous work assignments on him-because he sup- ported and engaged in activities on behalf of Local 389. Sometime prior to March 12, Tubertini. accepted an offer of employment by another company. A require- ment of his new employment was that he needed 8 years' experience as a skilled trades mechanic,, and had to verify such employment by means of a letter from Re- spondent. 2 On March 12, Tubertini presented his letter of resigna- tion of Noel Mazar, Respondent's supervisor.3 Mazar ex= pressed surprise that Tubertini was leaving and wished him well. Tubertini told Mazar that he needed a letter of recommendation, which should include his position and dates of employment, and Mazar agreed to supply it. That evening Tubertini spoke to the Board agent and decided to withdraw the charge- then pending in Case 22-CA-13057. The following morning, March 13, Tubertini met with William Lyons, Respondent's industrial relations manag- er. No one else was present. Lyons Tubertini was leav- ing. Tubertini replied that it was a difficult decision, but was making the move because he obtained a better posi- tion with more money and benefits, and added that he was sorry if he "bruised any egos" -during the Union's organizing campaign. Lyons said he--understood. Tuber- tini then inquired whether Mazar mentioned that he needed a "letter." Lyons replied the he had, and re- marked, "The only problem I would have with that is any charges that you have with the-Board." Tubertini answered that he had spoken with the Board agent the previous night and decided to withdraw the charge. Lyons then said. "Ok, fine, no problem," and Lyons said he would speak with the agent or his attorney The next day, March 12, Tubertini went to Lyons' office and learned that he was absent due to illness. He asked Lyons' secretary if a letter had been prepared for him and she said that it had not. Tubertini then asked Mazar if he ' typed the letter. Mazar replied that -the matter was out of his hands inasmuch as Lyons was- han-dling it. The following day, March 15, Tubertini went to Lyons' office and gave him a covering letter and a Board request for withdrawal form. Lyons made a copy of the covering letter. Tubertini filled out and signed the 2 Tubertmi's total work experience at Respondent and at two prior em- ployers totaled just over 8 years 9 The letter stated that Tubertim's last day, of employment would be March 23 1046 DECISIONS OF NATIONAL LABOR RELATIONS BOARD request for-withdrawal, put it in an envelope, and gave it to Lyons who mailed it Tubertini requested his letter of recommendation and Lyons said "Okay" and asked him to return later that day Tubertini did so and was then given the letter, dated March 15, which set forth his social security number, position, and dates of employ- ment. - On his last day of employment Tubertini told -three employees of the above events. B. Respondent's Case Mazar testified, in agreement with Tubertini, that he was given his letter of resignation on March 12. Mazar stated that he gave the letter to Lyons and told him that Tubertini wanted a letter of recommendation Lyons told - Mazar that it was Respondent's policy to provide letters of reference and not letters of recommen- dation. The reason for this is that a letter of reference, containing the position and dates of employment, provid- ed objective; indisputable facts, whereas a letter of rec- ommendation, containing an appraisal of the employee's work and an endorsement of his worth, was subjective, conjectural, and provided a basis for liability if the rec- ommendation was not accurate. Mazar stated, and Tubertini -denied, that Mazar told him later that day that Respondent could provide a letter of reference only and explained the difference between the two types of letters. According to Mazar, on being given this information, Tubertini expressed no surprise and "indicated acceptance" that he would receive a letter-of reference. Lyons testified that, on March 13, Tubertini entered his office and asked if he heard that he was resigning Lyons said that he,had, and was "shocked." Tubertini explained that-his new job was closer to home and pro- vided higher pay. Lyons did not recall if Tubertini asked him then for a letter of reference According to Mazar, Tubertini requested a meeting "because of the problem with the:letter and the letter not being a letter of recommendation," and a meeting was held on March 13 or 14 with Lyons, Mazar, and Tuber- tini present At the meeting, Lyons explained that a letter of reference only could be given, and he mentioned the difference between that and a letter of recommendation. They also- discussed Tubertini's reasons for leaving. Tu- bertini then mentioned that he had withdrawn the pend- ing charge. Lyons and Mazar were "surprised" at hear- ing that and Lyons stated that he probably displayed his "exuberance and joy," because a charge filed against it cost Respondent much money, time, and effort. Lyons, who conceded that letters of reference were given routinely on request to departing employees, denied conditioning the issuance of such a letter on Tu- bertini's withdrawal of his charge. However, it must be noted that Lyons did not specifically deny the critical remark attributed to him: "The only problem I would have with that [the letter of reference] is any- charges that you have with the Board." Moreover, Lyons also did not testify- about and thus did not specifically deny Tubertini's testimony that he gave Lyons the request for withdrawal on March 15. It is undisputed that the letter of reference was given on March 15. C. Credibility Resolutions - Two clearly contradictory versions of the relatively simple series of encounters appears here. It is undisputed that Tubertmi submitted his letter of resignation to- Mazar on March 12 and immediately asked for a letter of recommendation. Tubertini• asserts that (a) on March 12, he requested a "letter" from Lyons who said that "the only problem I would have with that is any charges that you have with the Board;" and (b) on March 15 completed a request for withdrawal-in front of Lyons who gave him the letter of reference later that day. Tubertini denies that any expla- nation was given to him about a difference between a letter of reference and recommendation. Lyons, who did not specifically deny the March 13 remark attributed to him, concedes that he spoke with Tubertini that day, but only when he came in to an- nounce his resignation. Lyons and Mazar assert that an issue was raised by Tubertini concerning the type of letter he would receive which prompted him to request a meeting at which. he announced that he had withdrawn the charge I base my finding that Tubertini's version is to be be- lieved about the foregoing facts not on demeanor, as all three witnesses testified in a believable, straightforward manner, but rather on the inherent probability and rea- sonable likelihood that the material events occurred in the manner testified to by Tubertini.¢ Tubertini was understandably anxious to obtain a letter which would set forth his position and dates of employ- ment because he needed to demonstrate to his new em- ployer 8 'years of experience. He accordingly asked Mazar for such a letter on March 12 on presenting his letter of resignation. He waited 1 day and asked Lyons for the letter on March 13 It was understandable that Tubertini would be impatient about the letter inasmuch as he was a known union activist and had already sub- mitted his resignation Thus, on March 13, Tubertini re- quested the letter of Lyons who then said that "the only problem I would have with that is any charges that you have with the Board." Lyons did not specifically deny that statement, and it is likely that a man of Lyons' con- siderable experience in labor relations5 would have ex- pected a quid pro quo in return for the letter of refer- ence.6 This is especially true where Lyons conceded that he probably showed his "exuberance and joy" upon hearing that Tubertini would -.withdraw the charge Lyons' reasonable response, as testified to Tubertini; that he would check with the Board agent or his attorney, * Respondent's request, that I discredit Tubertmi based, in part, on his previous filing and withdrawal of allegedly unmeritorious charges, is denied because "discrediting a charging party's testimony for this reason impinges upon the statutory right of individuals to file (or refile) charges under Section 10(b) of the Act and discourages voluntary dispositions of such charges " Dews Construction Corp, 231 NLRB 182 fn 1 (1977) 6 Prior to joining Respondent, he was for 11 years the'director of the labor division of a major International Brotherhood of Teamsters Local union 6 This is not to say that such a quid pro quo amounted to a condition, as alleged by the General Counsel On the contrary, I find that issuance of the letter of reference was not conditioned on the withdrawal of the charge - - METZ METALLURGICAL, INC makes Tubertmi's testimony more reliable and believable, given Lyons' statement that a charge cost Respondent much time, effort, and money. It would be likely `that Lyons would want to clear up pending matters, and thus contact official sources about Tubertini's withdrawal of his charge. I reject Respondent's testimony that an issue was raised concerning a letter of reference or recommenda= tion. On March 12, Tubertini requested a letter which set forth his position and dates of employ-clearly a letter of reference which Respondent routinely issues on request. Even if Mazar's testimony is to • believed that he ex- plained the difference between the two letters to Tuber- tini that day according to Mazar,: Tubertini expressed no surprise and was satisfied with a letter of reference. There was thus no reason for Tubertim to request a meeting on March 13 or 14 because of a "problem" with the type of letter he would receive as asserted by Mazar. Moreover, if Tubertim had wanted a letter of recommen- dation it seems likely that he would have (a) told that to Mazar at Mazar's second alleged talk with him on March 12 or (b) raised the issue with Lyons at their 'conversa- tion on March 13. It would ' also be likely that Lyons' would have mentioned it to Tubertim at their private conversation on March 13. That none of these events oc- curred'leads me to conclude that (a) no issue was raised concerning the type of letter Tubertim would receive be- cause he was at once satisfied that a letter of reference would meet the new employer's requirements, (b) no meeting was requested by Tubertim to discuss a "prob- lem" with the letter, and (c) no meeting was held on March 12 or 14 as testified to by Lyons and Mazar at which Tubertim volunteered that he had withdrawn'his charge. I also note that Lyons did not specifically deny the March 15 events at-which Lyons copied the cover- ing letter and mailed a request for withdrawal which Tu- bertini signed in his presence. I accordingly find, as testified to by Tubertini, whose testimony I credit, that (a) on March 12, on requesting a letter of reference, Lyons told him that "the only prob- lem I would have with that is any charges that you have with the Board," and that (b) on March 15, Tubertini signed a request for withdrawal form in Lyon's presence, which Lyons mailed. D. Analysis and Discussion The complaint alleges that on March 13 Respondent refused to issue a letter verifying employment to Tuber- tini. because he filed a charge in Case 22-CA-13057. However, the case was tried and briefed on a different theory-that Respondent unlawfully conditioned the is- suance of such a letter on Tubertini's withdrawal of the charge 7 I conclude that the General Counsel has not set forth a prima facie case under either theory even crediting Tu- bertini's version of the facts: Under the first theory 'there was no refusal to supply the letter. When Tubertini first requested such a letter on March 12, Supervisor Mazar immediately agreed that it Interestingly, the charge and amended charge reflect this latter theory 1047 would be supplied, and a satisfactory letter was given to him 3 days later on March 15. There was no showing that 'the 3-day, delay was because Tubertim had • filed the charge 1 month earlier, on February 13. And-there-was similarly no proof that Respondent harbored any animos- ity toward him for filling the charge. In fact, Respondent had completed its investigation of the charge and it ap- parently looked forward to proving that the charge lached merit. Lyon's statement that the "only problem I have with that is any charges that you have with the Board," do not constitute a refusal to provide the letter, and even according to Tubertini's testimony when he mentioned that he decided to withdraw the charge, Lyons said, "Well okay, fine, no problem." - Concerning the second theory, that Respondent un- lawfully conditioned the issuance of a letter of reference on the withdrawal of the charge, I can-find no evidence that any such condition .was made by Respondent. As noted above, when Tubertini. first requested a letter set- ting forth his position and dates of employment, Mazar at once,agreed that it would be provided. The following day, when Tubertini asked Lyons if he knew of his're- quest for..the letter, Lyons responded that "the only problem I would have with that is any charges that you have with the Board." This is not a statement that a letter would not be issued unless the charge, was with- drawn. This was simply an expression by Lyons that he desired to resolve all pending matters on Tubertini's leaving Respondent. Tubertini, too, wished to do the same. Prior to his meeting with Lyons he had already decided to withdraw his charge, - and at the meeting apologized,to Lyons for "bruising any egos" during the organizational drive. Moreover, immediately on hearing Lyons' statement about the charge, he advised him that he had already decided to withdraw it. Thus, Tubertini had, at the time Lyons asked. about the charge, already made a decision and commitment, without any sugges- tion by Respondent, to withdraw his charge. Only the mechanical act of filing the request for withdrawal re- mained, which Tubertini did on March 15-in front of Lyons, apparently to show his good faith that he had in fact decided to withdraw it. It is clear, as I have found above, that Lyons did seek a quid pro quo in this remark to Tubertini-he sought to have the charge withdrawn in exchange for the letter of reference. However, I cannot find in this that he condi- tioned the issuance of the letter on the withdrawal of the charge. Tubertini, too, wanted the letter in return for his withdrawal of the charge, and he had already decided to withdraw it when he spoke with Lyons. Thus, both par- ties mutually desired a cessation of hostilities and pro- ceedings on Tubertini's resignation. , t I reject the General Counsel's argument that a condi- tion was proven because Tubertini 'was made to wait until March 15 for-the letter and was given it only .when he produce& the withdrawal form. There has been ; no evidence why Tubertini brought the form, to work and signed it in front of Lyons, and no connection has thus been proven to the effect that the letter would not have • been issued but for Tubertini's signing the withdrawal - form in front of Lyons. Under these circumstances, I be- 1048 DECISIONS OF NATIONAL LABOR RELATIONS BOARD lieve that Tubertini undertook this procedure to -prove that his work was good that he had decided to withdraw the charge, and was part of his common and reciprocal purpose-'with Lyons to resolve all outstanding matters before he left Respondent. Two of the cases cited by the General Counsel are in- apposite since they involve an unequivocal condition, not present here, by the respondents that unless the charging parties withdrew their charges, they would not be rein- stated. Everage Bros. Market, 206 NLRB 593, 596 (1973); Amsterdam Wrecking ' & Salvage Co., 196 NLRB 113, 115-116 (1972). The third case, Alfa Leisure, Inc., 251 NLRB 691, 705 (1980), involved an offer of a letter by respondent to the brother of the charging party. The letter, containing a guarantee of a job which would enable the brother to be eligible for parole from jail, was conditioned on the , charging party withdrawing his charge. The Board found that the offer of the letter was an unlawful promise of a benefit, and conditioning it on the withdrawal of the charge limited the charging party's "right of unfettered access "to the Board's processes." Alfa is therefore distinguishable from the instant case be- cause here (a) Respondent did not condition the letter on the charge's withdrawal, (b) this was not a promise. of benefit, and (c) Tubertini's right of access to the Board's processes was unimpaired by Lyons' statement on March 13 because by then lie had already =decided to withdraw his charge. In conclusion, I' find that (a) on March 12 Respondent, by Mazar, agreed to supply Tubertini with the letter that he requested, even before any mention of the charge, and later that day, Tubertini, on his own, decided to with- draw his charge, (b)' on March 13 -Lyons ' sought to obtain the withdrawal of the charge in exchange for-the letter of reference and on that day Lyons and Tubertini mutually understood ' that they each were obtaining something each-desired, and (c) on March 15 Tubertini completed the mechanical, ministerial process of signing the withdrawal form and received the letter of reference. Under these circumstances, I cannot find 'that they each were obtaining something each desired, and (c) on March Tubertini• completed the mechanical, ministerial process of signing the withdrawal form and received the letter of reference. _ Under these circumstances, I cannot find that Re- spondent refused to issue the letter of reference because Tubertini filed, the previous charge, or that Respondent conditioned the issuance. of such letter on the withdrawal by Tubertini of his charge I will accordingly recommend that the complaint. be dismissed in its entirety CONCLUSIONS OF LAW 1. Respondent-Metz Metallurgical , Inc. is an employer engaged in commerce within the meaning of Section 2(2), (6)', and (7) of the Act 2. Respondent has not engaged in the violations of the Act.as alleged in the complaint 3.' Respondent has not unlawfully conditioned a letter verifying the employment of James Tubertini on his withdrawal of the charge in Case 22-CA-13057. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed". ' . ORDER The complaint is dismissed in its entirety. s If no exceptions are filed as provided by Sec 102 46 of the Board's Rules and - Regulations, the findings, conclusions, and , recommended Order shall, as provided in Sec 102 48 of the Rules, be adopted by'the Board and all objections to them shall be deemed waived for all pur- poses