Harry Hoffman & Son Printing

HARRY HOFFMAN & SON PRINTING Harry Hoffinan & Son Printing and Graphic Com- munications International Union, Local 261. Case 3-CA-12271 21 February 1986 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS DENNIS AND BABSON On 28 June 1985 Administrative Law Judge Martin J. Linsky issued the attached decision. The Respondent filed exceptions and a supporting brief, and the Charging Party and the General Counsel filed briefs in support of the judge's decision. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. 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 conclusions2 and to adopt the recommended Order. ' The Respondent has excepted to some of the judge's credibility find- ings. The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cit. 1951) We have carefully examined the record and find no basis for reversing the findings In discussing the delay between Gliss' picket line misconduct in Octo- ber 1983 and his termination in March 1984, the judge hypothesized that theRespondent may have decided to terminate Ghss following the issu- ance of the Board's decision in Clear Pine Mouldings, 268 NLRB 1044 (1984), based on a conclusion that under the test for picket line miscon- duct announced in that decision, it could legitimately discharge Gliss for the October incident We disavow the judge's suggestion that the Re- spondent's actions in March 1984 were motivated by the issuance of Clear Pine Mouldings and note that there is no record support for such conjecture The judge, in finding condonation, relied on a statement by multiem- ployer group chief negotiator and counsel, Grande, that all employees would remain on the preferential recall list unless they obtained substan- tially equivalent employment elsewhere or resigned. The judge relates that Grande's statement was made to Union Attorney Giroux about Feb- ruary 1984 However, the record shows that Grande made a similar state- ment about 15 October 1983 during a negotiation session conducted shortly after the cessation of strike activities While discussing the Union's offer to return its members to work, Grande advised the Union that employees not immediately reinstated due to the hiring of permanent replacements would be placed on a preferential recall list. Grande added that union members would be treated as though there had been no strike, there would be no animosity, employees would be recalled by seniority and qualifications, and the only employees who would not be placed on the list would be those who resigned or obtained substantially equivalent employment. ']['he Respondent's vice president, Dauer, an active company representative at this and other meetings, admitted he was free to speak and participate fully in negotiations However, neither he nor Grande mentioned picket line misconduct by Ghss or any other employee. Al- though Grande may have been without specific knowledge of Gliss' mis- conduct, there is no question that Dauer had complete knowledge of all the relevant facts R The judge found the evidence "considered as a totality demonstrates condonation beyond a reasonable doubt." Although we believe the judge did not use the phrase "beyond a reasonable doubt" to identify the evi- dentiary standard applicable in condonation cases, we note our agreement with the Respondent's position that condonation is a factual matter which the General Counsel must prove by a "preponderance of the evidence." Bechtel Corp, 127 NLRB 891, 895 (1960) 671 ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, Harry Hoff- man & Son Printing, Buffalo, New York, its offi- cers, agents, successors, and assigns, shall take the action set forth in the Order. As an alternative rationale, the judge stated that were he to credit Dauer's testimony, an argument could be made that the Respondent should be estopped from relying on Gliss' misconduct even if the Re- spondent had not forgiven it because Gliss relied, to his detriment, on a misrepresentation that he would be recalled. We disavow the judge's dis- cussion of estoppel, finding such discussion unnecessary in light of our agreement with the judge that the evidence shows, contrary to Dauer's testimony, that the Respondent condoned Gliss' misconduct. Mark G. Pearce, Esq., for the General Counsel. Daniel P. Forsyth, Esq., of Buffalo, New York, for the Respondent. E. Joseph Giroux Jr., Esq., of Buffalo, New York, for the Charging Party. DECISION STATEMENT OF THE CASE MARTIN J. LINSKY, Administrative Law Judge. On 27 June 1984 a charge was filed against Harry Hoffman & Son Printing (Respondent) by Graphic Communications International Union, Local 261 (Charging Party or Union). On, 26 October 1984 the National Labor Relations Board, by the Acting Regional Director for Region 3, issued a complaint alleging that Respondent violated Section 8(a)(1) and (3) of the National Labor Relations Act by discharging its employee, Kenneth Gliss, and fail- ing and refusing to recall him to work from a preferen- tial recall list because he engaged in protected concerted activity. Respondent filed an answer in which it denied that it violated the Act in any way. A hearing was held in Buffalo, New York, on 4 April 1985. On the entire record in this case, including posthearing briefs submitted by the General Counsel, Charging Party, and Respondent, and on my observation of the de- meanor of the witnesses, I make the following FINDINGS OF FACT 1. JURISDICTION Respondent Harry Hoffman & Son Printing is a New York State corporation with an office and place of busi- ness in Buffalo, New York, where it is engaged in the manufacture, sale, and distribution of printed material and related products. Respondent admits, and I find, that it is now, and has been at all times material, an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 278 NLRB No. 101 672 DECISIONS OF NATIONAL LABOR RELATIONS BOARD II. THE LABOR ORGANIZATION INVOLVED truth but,I believe he was inaccurate when he says Gliss hit the vehicle because Pawlowski turned his head away from Gliss and those with him at the time he saw Gliss throw the tomato. Therefore he was not in the best posi- tion to testify that it was definitely the tomato thrown by Gliss that hit his car and that no one else threw a tomato at the car. Further, if Gliss wanted to lie, why not claim that he never threw a tomato at all. Fortunately no one was injured and there was no property damage. Pawlowski, who testified he was not intimidated by the incident, turned his car around, drove to where Gliss and two others were stding, jumped out of his car, and dared them to throw ananother tomato at him. The three men, Gliss included, wisely just walked away. Pawlowski appeared to me to be in excel- lent physical condition. He is 6 feet 2 inches -tall and weighs 200 pounds, according to his testimony, and not the least bit fearful of Gliss or those who were with him on the picket line. Under either Gliss' version or Pawlowski's version of the incident, what Gliss did amounts to the type of picket line misconduct sufficient to justify Gliss', dis- charge. The test for deciding whether picket line miscon- duct warrants discharge was enunciated by the Board in Clear Pine Mouldings, 268 NLRB 1044, 1046 (1984): "whether the misconduct is such that, under the circum- stances existing, it may reasonably tend to coerce or in- timidate employees in the exercise of rights protected under the Act." The intentional throwing of a tomato at a moving vehicle-even one occupied by someone not particularly put in fear by the incident-meets this test of picket line misconduct sufficient to warrant discharge. However, even though Gliss committed picket line mis- conduct warranting his discharge, Respondent could condone it and if Respondent condoned this misconduct, it then could not resurrect this same incident of miscon- duct and discharge Gliss in reliance on it. E. A. Laborato- ries, 80 NLRB 625 (1948), enfd. in relevant part 188 F.2d 885 (2d Cir. 1951), cert. denied 342 U.S. 871 (1951). I note that throwing a tomato at a moving vehicle where no one is hurt and no property damage occurs is a significantly less serious act of picket line misconduct than, for example, shooting and wounding a person crossing a picket line to go to work. It may be that in the former case a certain quantum of evidence may show condonation but in the latter case conceivably no quan- tum of evidence could show condonation short of an af- fidavit from the employer stating "I forgive you" be- cause the misconduct is so serious that no reasonable person could expect to be forgiven for that type of grievous misconduct. Condonation will be found if there is clear and con- vincing evidence that the employer intends to "wipe the slate clean" and to continue the employer-employee rela- tionship notwithstanding grounds for discharge. As the Eighth Circuit stated in Packers Hide Assn., 360 F.2d'59, 62 (8th Cir. 1966): Condonation can be found and is invocable only where there is clear and convincing evidence that the employer has completely forgiven the guilty employee for his misconduct-and agrees to a, re- Respondent admits, and I find, that the Charging Party, Graphic Communications International Union, Local 261, is now, and has been at all times material, a labor organization within the meaning of Section '2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICE The issue in this case is one of condonation, i.e., did Respondent forgive certain picket line misconduct on the part of one of its employees, Kenneth Gliss, so that it could not later discharge Gliss and remove him from a preferential recall list based on that same misconduct. Certain facts are not in dispute, namely, that Gliss and other employees of Respondent who were represented by the Charging Party refused to cross a picket line set up by employees represented by the Charging Party's sister local, i.e., Local 17B, Graphic Communications International Union, who had a labor dispute with Re- spondent and other employers who were part of a multi- employer group. In due course Respondent began advertising for per- manent replacements for the employees on strike. At this juncture employees represented by the Charging Party began picketing alongside the employees represented by Local 17B. Gliss took part in picketing and, as an assist- ant shop steward, was one of the leaders for the Charg- ing Party. There is no conclusive evidence, however, that Respondent knew he was in a leadership role. On 11 October 1983 Gliss was involved in a tomato throwing incident while on the picket line outside Re- spondent's facility. Although the details differ, Gliss of- fering one version of what he did and two witnesses for Respondent offering a different version of what Gliss did, it is clear from the testimony offered on both sides that Gliss threw a tomato at a moving vehicle which was being driven by a person crossing the picket line to work at Respondent's facility. Gliss referred to people in the vehicle as "scabs." Gliss admits he threw a tomato at the car but claims that others also threw tomatoes. Gliss claims that he missed the car but admits that one of the tomatoes thrown by one of other picketing employees did hit the driver's window of the car. Kenneth Pawlowski, who was driving the car, claimed that he only saw Gliss throw a tomato and it was the tomato thrown by Gliss that hit his window and splattered, and part of the tomato hit him in the head. A second witness for Re- spondent, security guard Craig Walek, testified that Gliss threw the tomato that hit Pawlowski's car and that Gliss was the only one who threw a tomato at the car. I do not credit the testimony of Walek because of his lack of opportunity to observe (he was 75 feet to 140 feet away from the incident, and his vision was obscured by other picketing employees) and because of the contradictory version of events he gave to Robert Dauer, Respondent's vice president, On the date of the incident Dauer testi- fied that Walek told him that several picketing employ- ees had thrown tomatoes. I credit the testimony of Glass over Pawlowski. Paw- lowski was obviously telling what he thought was the HARRY HOFFMAN & SON PRINTING 673 sumption of company-employee relationship as though no misconduct had occurred. The doctrine prohibits an employer from misleadingly agreeing to return its employees to work and then taking disci- plinary action for something apparently forgiven. I must determine if there is clear and convincing evi- dence of condonation in this case. Robert Dauer, Respondent's vice president, ordered on the scene that Gliss be arrested in connection with the tomato throwing incident and Gliss was arrested. Pawlowski signed a complaint at a police station in Buf- falo that very morning and Gliss was charged with dis- orderly conduct. His case was continued for 6 months in contemplation of dismissal. The case was subsequently dismissed because Gliss had not gotten into any other trouble. Although Respondent could have told Gliss he was fired on the very day of the incident it did not do so. In fact, it did not inform Gliss that he was discharged until it sent him a letter to that effect on 27 March 1984-some 5-1/2 months later. The picketing continued for only a few days following Gliss' arrest. At that time an unconditional offer to return to work was made on behalf of the striking em- ployees represented by the Charging Party and by Local 1713. Respondent, along with the several other employers who had been struck, and who were, like Respondent, part of the multiemployer bargaining group, immediately put a number of striking' employees back to' work. The remaining employees were put on a preferential recall list. Gliss was one of a number of employees not immedi- ately recalled when the picketing ended on i14 October 1983. On 26 October 1983 Gliss was sent a letter, which he received individually addressed to him, but a form letter in the sense that it was sent to all people similarly situat- ed (about 40). The letter advised him that he was being placed on a preferential recall list and would be recalled, based on the needs of the employer and his seniority, and that he would remain on the list unless and until recalled. Attached to this 26 October 1983 letter was a'card to be filled out and returned by the recipient of the letter stating, inter alia, whether they wished to remain on the preferential hiring list. Gliss and the other members of Charging Party returned individually signed statements to Respondent stating that they were ready and willing to be recalled at any time. On 7 December 1983 the employees on the preferen- tial recall list and those employees who had been re- called were each sent an individually addressed memo- randum from Respondent advising them that because the collective-bargaining agreement between Respondent and the Charging Party had expired, that the union-secu- rity clause contained therein was no longer in effect. They were free to remain members of Charging Party Union or resign from the Union and it would not affect their status as employees. On 16 February 1984 Respondent, through its agent and supervisor, Vice President Dauer, on the advice of counsel, called each and every person on its preferential recall list to determine whether or not they had obtained substantially equivalent employment and would be delet- ed from the preferential recall list and, if not, whether they wished to remain on the preferential recall list and were available for work. Gliss personally received a telephone call from Dauer and advised Dauer that he had not obtained substantially equivalent employment, wanted to remain on the prefer- ential recall list, and was available for work. Dauer said nothing about picket line misconduct. On 27 March 1984 Gliss was sent a letter by Respond- ent advising him that because of picket line misconduct, which it later confirmed was the tomato throwing inci- dent, he would not be recalled. Between the end of the strike in mid-October and late March, when Gliss was discharged for picket line mis- conduct, representatives of Respondent and Charging Party had met with each other on several occasions. At no time did Respondent tell the Charging Party that Gliss would not be recalled due to picket line miscon- duct or for any other reason. Following the February phone calls to members of Charging Party inquiring whether they had found sub- stantially equivalent employment,' the Charging Party's attorney, E. Joseph Giroux, was in communication with the chief negotiator for the multiemployer group, Gen- uino J. Grande, Esq. Grande advised Giroux that all those employees on the preferential recall list were still on it unless they had secured substantially equivalent em- ployment or resigned., Grande, said nothing about any employee being removed from the list because of picket line misconduct. Respondent's position, citing the Fifth Circuit decision in NLRB v. Marshall Car 'Wheel, 218 F.2d 409, 414 (5th Cir. 1955), is that condonation should "not be lightly presumed from mere silence or equivocal statements, but must clearly appear from some positive act by an em- ployer indicating forgiveness and an intention of treating the guilty employees as if their misconduct had not oc- curred." Vice President Dauer testified there was no for- giveness of Gliss' picket line misconduct and that he and Respondent's president, Melvin Hoffman (who did not testify), had met with each other on the very day of the misconduct-11 October 1983-and decided that Gliss would never again work for Respondent. Dauer admits that Respondent never told this to Gliss or the Charging Party because, he alleges, Respondent was hoping that Gliss would fmd substantially equivalent employment elsewhere before the time came to recall him. Respond- ent discharged Gliss in March 1984, according to Dauer, because it thought the possibility existed that it would have to recall him. Dauer claims they treated another employee, James Tara, the same way they treated Gliss. Tara, who was represented by Local 17B, also was guilty of picket line misconduct but found substantially x Respondent, within a day or so of 16 February 1984, wrote a letter to those employees who said they did not want to go back to work for Respondent or had secured substantially equivalent employment stating that their names were being removed from the preferential recall list Gliss received no such letter advising him he was being removed from the preferential recall list, although Dauer claims he struck Gliss' name from the list on 16 February 1984 immediately after finishing his conver- sation with Gliss on that same day. 674 DECISIONS OF NATIONAL LABOR RELATIONS BOARD equivalent employment elsewhere before he would have been recalled so Respondent never had to discharge him. I do not credit Dauer's testimony. In my judgment Dauer was not telling the truth. It could be that Re- spondent condoned both (Miss' and Tara's picket line misconduct but, be that as it may, Tara's case and the circumstances surrounding it are not before me. Suffice it to say Tara's picket line misconduct was substantially more serious than that of Gliss. Tara, armed with a loaded rifle, went onto Respondent's property in Septem- ber 1983 in broad daylight on a working day and shot out the windows on two parked cars owned by employ- ees of Respondent who were working. Over $600 worth of damage was caused by Tara. In any event, Dauer told representatives of Local 17B in "early 1984" that Re- spondent would never again let Tara work for it. Al- though Dauer maintained that the decisions never to recall Gliss and Tara were made on the date of each man's misconduct, Dauer, in an affidivit to a Board agent in July 1984, said no decision had ever been made to recall Tara or not because he received substantially equivalent employment before it became necessary to make a decision. It should also be noted that Gliss was next in seniority to be recalled as of November 1983 and yet the next person in his classification to be recalled was not recalled until July 1984 and yet Gliss is notified in March 1984 that he will not be recalled. Could it be that Respondent became aware of the Board's decision of 22 February 1984 in Clear Pine Mouldings, supra, and con- cluded that, under the new test for picket line miscon- duct, warranting discharge it could have legitimately dis- charged Gliss back in October? Because I do not credit Dauer, I am left with the fol- lowing evidence which, considered as a totality, demon- strates condonation beyond a reasonable doubt: 1. Letter to Gliss of 26 October 1983 advising him he is on preferential recall list. 2. Letter to Gliss of 7 December 1983 advising him of his rights as an employee to remain a ,member of the Union or resign. 3. Phone call from Respondent to Gliss on 16 Febru- ary 1984 inquiring if he was still available for work and wished to remain on preferential recall list. 4. The delay of 5-1/2 months between the date of the misconduct and the discharge. 5. The failure of Respondent to advise the Charging Party, with whom it met on a number of occasions, that Gliss would not be recalled. 6. The statement of the multiemployer group chief ne- gotiator that all employees would remain on preferential recall list unless they had secured substantially equivalent employment elsewhere or resigned with no mention made of picket line misconduct. No reasonable person faced with these facts could conclude anything other than that Gliss was on the pref- erential recall list and would be recalled in due course. His picket line misconduct was ancient history. Even if I were to credit Dauer's testimony, which l do not, an argument could be made that Respondent should be estopped from bringing up Gliss' misconduct even if Respondent really had not forgiven it. We would then have a situation in which Respondent misrepresented to Gliss that he would be recalled and Gliss relied on this misrepresentation, to his detriment. Gliss credibly testi- fied that because he thought he was going to be recalled he was "picky" about looking elsewhere for work, i.e., he wanted just the right job at the right pay in Buffalo. Gliss credibly testified that if he knew he would not be recalled, he would have expanded his search for work to Binghamton and elsewhere. Member Howard Jenkins in Union Twist Drill Co., 124 NLRB 1143 fn. 2 (1959), a case relied on by the General Counsel, wrote briefly about estoppel in a condonation case and the Board in that case spoke about the misconduct being "condoned or waived" (124 NLRB at 1145). The Second Circuit has spoken of condonation being "more akin to the doctrine of waiver then to the technicalities of contract law." Teamsters Local 805 v. NLRB, 312 F.2d 108, 113 (2d Cir. 1963).2 In short, even though not forgiven, it would be unjust for Respondent to bring up Gliss' misconduct at this point. The only argument against this would be if Pawlowski or some other victim of picket line miscon- duct were to advise the employer that they were afraid to work alongside the person who had committed the picket line misconduct but that is clearly not the case here. REMEDY Evidence at the hearing was to the effect that a job which Gliss was qualified to fill was filled by Respond- ent on 16 July 1984 when Respondent recalled Jack Kelch. Accordingly, the remedy in this case should in- clude the posting of a notice and the recall of Gliss with a make-whole remedy. Respondent should, of course, be ordered to cease and desist from this or similar miscon- duct. CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce and in operations affecting commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. The Union is a labor organization within the mean- ing of Section 2(5) of the Act. 3. By discharging employee Kenneth Gliss for picket line misconduct, which Respondent had condoned, Re- spondent violated Section 8(a)(1) and (3) of the Act. 4. The aforesaid unfair labor practice affects commerce within the meaning of Section 2(6) and (7) of the Act. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed3 ORDER The Respondent, Harry Hoffman & Son Printing, Buf- falo, New York, its officers, agents, successors, and as- signs, shall z' The Second Circuit was affirming a fording of condonation in M Eskin & Son, 135 NLRB 666 (1962) 8 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. HARRY HOFFMAN & SON PRINTING 1. Cease and desist from (a) Discharging and removing from preferential recall lists employees for picket line misconduct which it has condoned and discharging employees and removing them from preferential recall lists because these employ- ees have engaged in protected concerted activity. (b) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Recall and make whole Kenneth, Gliss for any loss of pay and other benefits suffered by him commencing on 16 July 1984. Backpay is to be computed in accord- ance with F. W. Woolworth Co., 90 NLRB 289 (1950), with interest, as set forth in Florida Steel Corp., 231 NLRB 651 (1977) (see generally Isis Plumbing, 138 NLRB 716 (1962)). (b) Preserve and, on 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 nec- essary to analyze the amount of backpay due under the terms of this Order. (c) Post at its facility in Buffalo, New York, copies of the attached notice marked "Appendix."4 Copies of the notice, on forms provided by the Regional Director for Region 3, after being signed by the Respondent's author-_ ized representative, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecu- tive days in conspicuous places .including all places where notices to employees are customarily posted. Rea- sonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. 4 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading "Posted by Order of the Nation- al 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." 675 (d) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER Of THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has or- dered us to post and abide by this notice. Section 7 of the Act gives, employees these rights. To organize To form, join, or assist any union To bargain collectively through representatives of their own choice To act together for other mutual aid or protec- tion To choose not to engage in any of these protect- ed concerted activities. WE WILL NOT discharge and remove from preferential recall lists any employees for picket line misconduct which we have condoned or discharge or remove from preferential recall lists any employees for engaging in protected concerted activity. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. WE WILL recall Kenneth Gliss immediately and make him whole for any loss of pay and benefits he suffered with interest from 16 July 1984. HARRY HOFFMAN & SON PRINTING'