Chelsea Laboratories, Inc.

500 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Chelsea Laboratories, Inc. and Kismath Sooknanan. Case 29-CA-11697 22 December 1986 BY CHAIRMAN DOTSON AND MEMBERS BABSON AND STEPHENS On 8 May 1986 Administrative Law Judge Elea- nor MacDonald issued the attached decision. The Respondent filed exceptions and a supporting brief. 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 brief and has decided to affirm the judge's rulings, frldings,1 and conclusions and to adopt the recommended Order as modified. The Respondent contends that the judge found that the Respondent had violated the Act on a theory of protected concerted activity other than the theory alleged in the complaint. It argues that this variance between the complaint allegations and the judge's findings warrants dismissal of the com- plaint. We find no merit to the Respondent's con- tentions for the following'reasons. The pertinent facts, as found by the judge and which are not in dispute, show that in September 1984 Teamsters Local 918 was the certified bar- gaining representative of the Respondent's employ- ees. On 9 October 1984, following a discussion with a committee of employees, including Charg- ing Party Sooknanan, who were dissatisfied with the conduct of Local 918, employee shop steward Velez filed a decertification petition. In the result- ing decertification election held 30 November 1984, a majority of employees voted against continued representation by Local 918. Election objections, timely filed first with the Regional Director and subsequently with the Board, were pending at the time of the following events.2 After the election, the employees received a letter, dated 7 December 1984, from the Company, thanking them for rejecting union representation, giving them insurance coverage, and promising ad- ditional information on a future wage increase. Also sometime in December, a dispute arose be- tween the Respondent's president, Getrajdman, and employees concerning overtime work. Sooknanan and Velez approached the Respondent's vice presi- 1 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 Cir. 1951). We have carefully examined the record and find no basis for reversing the findings. s The Board certified the results of the election on 12 March 1985. dent and offered to help resolve the dispute. At the same time, Sooknanan and Velez asked the vice president if the Company would recognize Local 815, another Teamsters Local, once Local 918 was decertified. $ The vice president promised to bring this request to the Respondent's board of directors. Sooknanan and Velez then met with employees and persuaded them to do the overtime work, tell- ing them to have patience until the decertification of Local 918 was completed and Local 815 could begin representing them. Subsequently, in Decem- ber 1984, the employee committee approached Ge- trajdman about their request regarding the recogni- tion of Local 815. Getrajdman indicated he could not give an answer but promised there would be a "dialogue" before any decision, was made. Sook- nanan also indicated the employees were dissatis- fied because they had not gotten the promised wage increase. Later that day, Velez and Sook- nanan met with employees and related their con- versation with Getrajdman. Several days later, Sooknanan individually approached Getrajdman, indicating that employees were dissatisfied with Local 918 and that Sooknanan had become in- volved, in the situation in an effort to help the people:, In,- early February 1985, Sooknanan asked Ge- trajdman, about :rumors that the,pending election objections, had been overruled. Getrajdman indicat- ed that'he had, no knowledge as to the status of the objections and promised to get back to Sooknanan. Several Y ,days later, the Respondent's production manager informed a group of approximately eight employees, including Sooknanan, that Local 918 had filed, an appeal with the Board regarding the Regional Director's recommendation that the ob- jections be overruled and that there would be no raise until this appeal was decided. By letter dated 15 February 1985, however, the Respondent in- formed the employees that they would receive a wage increase, effective 22 February 1985, and ret- roactive to December 1984. Additionally, the letter informed employees that, effective immediately, they would become participants in the company group profit-sharing plan and that all current work- ing conditions such as holidays, vacations, sick leave, and seniority would remain in effect. The letter further expressed the Company's appreciation to employees for deciding to join the percentage of the work force in the United States that is non- union. On 19 February 1985 Sooknanan was ap- S Record testimony shows that prior to the decertification election an unspecified number of employees had signed cards in support of Local 815 and had given them to Velez. There is, however, no showing that a request for recognition, based on a showing of employee support, was made at any relevant time. 282 NLRB No. 74 CHELSEA LABORATORIES, INC. proached at work by an employee who showed him a copy of the 15 February letter and who asked him to explain the apparent conflict between the Respondent's statement that there would be no raise until the Board reached a decision on the election objections and the 15 February letter granting, inter alia, a wage increase to employees. The employee also indicated to Sooknanan that she thought no increase would be given until the de- certification` proceeding was over and that she wondered whether this meant that Local 918 was out, Local 815 was in, or if the Company was going nonunion. Sooknanan - then went to Velez with the letter, and together they went to see Ge- trajdman. During 'the ensuing discussion as to the contents of the letter and their meaning, Sooknanan asked Getrajdman about the promised dialogue. Getrajdman and Sooknanart became involved in an argument, which resulted in Sooknanan's dis- charge. The complaint alleged that Sooknanan was dis- charged for protesting the Respondent's grant of a wage increase on 15 February 1985, while objec- tions to the decertification election were pending. During the hearing, Sooknanan's testimony clearly revealed that his '19 February protest was not di- rected toward the Respondent's grant of a wage in- crease because election objections were pending. Rather, the testimony revealed that the protest, which came in response to the 15 February letter, concerned what, to Sooknainan and other employ- ees, represented a decision by the Respondent to renege on its earlier promise to hold a dialogue with employees before deciding whether to recog- nize another local. These facts, which provide the basis for the judge's finding that Sooknanan Was engaged in protected concerted activity at the time he was discharged, were fully litigated at the hear- ing. As all the facts were not specifically alleged in the, complaint, we nonetheless find it inaccurate to say that the theory regarding the protected con- certed nature of Sooknanan's protest is not encom- passed' by the complaint, particularly where the complaint, allegations placed the Respondent on notice that the announcement of the wage increase in the 15 February letter was the genesis of Sook- nanan's protest and that the 15 February letter and 19 February conversation were the focus of the General Counsel's case., The Respondent does not now claim that it was precluded from presenting exculpatory evidence, nor does it argue that it would have altered the conduct of its case at the hearing in any particular. Further, although the Respondent now claims it had no notice of the specific basis for the violation found, the brief before us addresses the law and the 501 sufficiency of the facts now contained in the record with respect to the protected concerted nature of Sooknanan's protest of the Respondent's breach of promise regarding the dialogue. Accordingly, as we find that the theory was encompassed in the complaint and that all the operative facts underly- ing the 8(a)(1) finding are present in the record, we shall reject the Respondent's argument that vari- ance provides a basis for dismissal in this case. See, e.g., Baytown Sun, 255 NLRB 154 fn. 1 (1981); George C Foss Co. v. NLRB, 752 F.2d 1407 (9th Cir. 1985). ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re- spondent, Chelsea Laboratories, Inc., Inwood, New York, its officers, agents, successors, and assigns, shall take the action set forth in the Order as modi- fied.4 1. Substitute the following for paragraph 2(b). "(b) Remove from its files any reference to the unlawful discharge and notify the employee in writing that this has been done and that the dis- charge will not be used against him in any way." 2. Substitute the attached notice for that of the administrative law judge.5 4 The modified Order corrects certain inadvertent errors contained in the recommended Order,. s The attached notice corrects certain inadvertent errors contained in that of the judge. 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 ordered 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 representa- tives of their own choice To act together for other mutual aid or pro- tection To choose not, to engage in any of these protected concerted activities. WE WILL NOT discharge any of you for engaging in concerted activities. 502 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL NOT, in any like or related manner interfere with, restrain, or coerce you in the exer- cise of the rights guaranteed you by Section 7 of the Act. WE WILL offer Kismath Sooknanan immediate and full reinstatement to his former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to his seniority or any other rights or privileges previously enjoyed and WE WILL make him whole for any loss of earnings and other benefits resulting from his discharge, less any net interim earnings, plus interest. WE WILL notify him that we have removed from our files any reference to his discharge and that the discharge will not be used against him in any way. CHELSEA LABORATORIES, INC. Martha Rodriguez Esq., for the General Counsel. Martin Gringer, Esq. (Marshall Miller Associates), of Hew- lett, New York, for the Respondent. DECISION STATEMENT OF THE CASE ELEANOR MACDONALD, Administrative Law Judge. This case was tried in Brooklyn, New York, 'on 28 Octo- ber 1985. The complaint alleges that Respondent , in vio- lation of Section 8(a)(1) of the Act, discharged its em- ployee Kismath Sooknanan because he engaged in con- certed activity by protesting the announcement of a wage increase and in order to discourage employees from engaging in protected concerted activities. On the entire record, including my observation of the demeanor of the witnesses, and after consideration of the briefs filed in January 1986 by Respondent and the Gen- eral Counsel, I make the following FINDINGS OF FACT 1. JURISDICTION Respondent, a New York corporation with an office and plant in Inwood, Nassau County, New York, manu- factures, sells, and distributes pharmaceutical and related products. Respondent annually purchases goods in excess of $50,000 in interstate commerce. Respondent admits, and I find that it is an employer engaged in interstate commerce within the meaning of Section 2 (2), (6), and (7) of the Act and that Local 918, International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America is a labor organization within the meaning of Section 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES A. The Facts The facts in this case are not open to serious dispute. Indeed, a careful reading of the testimony shows that the witnesses did not contradict each other in most respects. For a number of years, Local 918 had represented the employees of Respondent. In September 1984, shop steward Jose Velez asked Charging Party Kismath Sook- nanan to serve on the employee negotiating committee.' Soon after this at a meeting attended by about six em- ployees, Velez stated that Local 918 was not represent- ing the employees properly, and it was decided to file a decertification petition. On- 30 November 1984, a decertification election was held at which Sooknanan acted as an observer for the petitioner. The majority voted to decertify Local 918 and the Union filed objections to the election. Although the objections were pending, Velez and Sooknanan heard that there was a problem concerning overtime in the packaging department in building 2. They spoke to Len, Respondent's vice president for op- erations, who told them that the Company needed the employees to work overtime. Len asked Velez and Sook- nanan to persuade the employees to work overtime. Then the three men began discussing the decertification proceedings. Velez and Sooknanan asked Len if manage- ment would recognize Local 815 after the decertification of Local 918 became final. Len did not know but he promised to bring the matter up at a forthcoming meet- ing of the board of directors of Respondent. Velez and Sooknanan spoke to the workers in building 2; Velez told the employees to be patient until the objections were decided and Local 815 could begin representing them. Velez said that the Company had not harmed the workers but that Local 918 had represented them poorly. Then Sooknanan spoke. He reminded the employees that he was a long service worker; he said he trusted Len to be fair and he asked the employees to continue working overtime. The employees complied with the request. On 7 December 1985, the employees received a letter from the president of Rugby Laboratories thanking them for rejecting representation by any union.2 The letter in- formed the, employees that they were now covered by Respondent's insurance plans and that, "In the near future, you will be getting more specific information as to what your wage increase will be." Sometime in December, the employee committee went to speak to Nat Getrajdman, the president of Respond- ent, about their request that Respondent recognize Local 815. Len and Plant Manager Lederman joined the group. The committee asked President Getrajdman if Respond- ent would recognize Local 815 when Local 918 was de- certified. Getrajdman said he could not give an answer but he promised that there would be a "dialogue" before any decision was made. Sooknanan said the people were dissatisfied because they had been promised a raise but had not gotten it. Some other job related concerns were discussed. Getrajdman assured the committee members that he would speak to them before a decision was made and "that his doors are always open and anyone could come in at any time and speak to him." At the 3 p.m. break that day, Velez and Sooknanan met with the employees and related their conversation 1 Sooknanan had been employed by Respondent since March 1979. 2 Respondent is a division of Rugby Laboratories. CHELSEA LABORATORIES, INC. 503 with Getrajdman. Velez told the employees that they should have patience. A few days later, Sooknanan went to see Getrajdman in his office to explain his position. He said he was help- ing the employees for humanitarian reasons; the people had complained about Local 918 and he was trying to help them. The two men assured each other that they both had the best interests of the Company and the em- ployees at heart and then they shook hands. In early February, some employees told Sooknanan that they had heard that the objections had been over- ruled. Sooknanan asked Getrajdman about this, but the latter did not know and said he would find out. A few days later, Suresh, a supervisor in the compression de- partment, told some employees that Local 918 had ap- pealed to Washington and that there would be no raise until the appeal was decided. In fact, the Regional Direc- tor for Region 29 had recommended on 25 January 1985 that the objections be overruled; Local 918 filed excep- tions to the Regional Director's report on 6 February 1985. On 19 February, the employees received another letter from the president of Rugby Laboratories telling them that they would receive an immediate wage increase ret- roactive to 14 December 1984. The letter referred to other working conditions and stated that the employees had decided "to join the over eighty (80 percent) of the workforce in the United States that is non-union." Sook- nanan did not understand why Respondent had granted a raise after informing the employees that it would not do so until the Union's objections had been ruled on in Washington. Employee Mary Giannone asked Sook- nanan about the situation. She had also understood that no raise could be granted until the decertification pro- ceeding was settled. She wanted to know if Local 918 was out, if Local 815 was in, or if Chelsea was ' going nonunion. According, to Sooknanan, he and Velez went to Ge- trajdman's office Velez asked about the letter and Ge- trajdman said that he knew about the letter. Sooknanan said that Getrajdman had promised to have a dialogue before a. decision was made. Getrajdman responded, "[W]hatever the letter says, that is what is going to be." Then Sooknanan asked, "[W]hat are you trying to do, push things down people's throats?" Getrajdman re- sponded that he did not wand, to speak to anyone from the union committee. Sooknanan asked why he had not said that in the first place. By this time, both men had raised their voices, and Getrajdman, said, "[Y]ou cannot speak to me that way, I'm the President." He then told Sooknanan that he was fired. He said, "I have witnesses, you can't speak to me that way." Getrajdman then told Velez "to watch how he spoke around this place and watch who he spoke to." On cross-examination, Sooknanai acknowledged that when he confronted Getrajdman he was not protesting the fact that Respondent had granted a raise while Local 918's objections were pending in Washington. Sooknanan stated that he wanted to get "clarification?' Sooknanan was confused because Respondent had told its employees that no raise would be granted until a decision on the ob- jections had been rendered. In his mind, this was con- nected to Respondent's promise to engage in a dialogue before it made a decision whether to recognize Local 815, because the recognition decision was also to be made after the decision on objections. Sooknanan be- lieved, that the granting of a wage increase showed that everything was "final" and that "the company did not recognize anybody." Sooknanan believed that this consti- tuted a breach of the commitment to talk to the people before reaching a decision on recognizing Local 815. He was surprised that Getrajdman, "a man of integrity," had not fulfilled his' promise. Getrajdman's version of the meeting does not contra- dict Sooknanan's in any material fashion. According to Getrajdman, after he had acknowledged that he knew about the letter, Sooknanan said, "[Y]ou cannot do this, it's illegal." Getrajdman responded that granting the raise Was not illegal and that the Company would stick to its decision. According to, Getrajdman, Sooknanan then "became very upset [and] started screaming at me." Getrajdman told him twice not to raise his voice "that I was the president of the company and I didn't have to take it," but Sooknanan did not let him finish. At that point, Getrajdman fired Sooknanan. After Getrajdman testified, Sooknanan denied saying the wage increase was illegal. Where the accounts given by Getrajdman and Sook- nanan differ, I shall credit Sooknanan. Sooknanan had a better, recollection than did Getrajdman; the latter was not able, to testify in as much detail as'Sooknanan and he admitted that he could not recall what Sooknanan's claims were during their meeting. Getrajdman summa- rized what Sooknanan was saying, as, "[W]e have no right to give a raise out and that we promised him-I don't know what. . . ." Getrajdman did not deny that he raised his voice during the discussion. Various employee warning records of Respondent were introduced into evidence involving warnings for "uncooperative" attitude, pushing a supervisor in anger, and insubordination. The employees warned were not discharged for their misdeeds; the employee who pushed his supervisor was warned that a similar future occur- rence might result in suspension or termination. B. Conclusions It is clear that Getradjman and Sooknanan had a dis- cussion in which both raised their voices. Sooknanan was complaining because it seemed to him that Getradjman had promised that a "dialogue" would take place before a decision' whether to recognize a new local union was made by Respondent. Since Respondent had emphasized that neither the decision about recognition nor the long delayed raise could be ° granted until the status of Local 918 was finally resolved, the two matters were linked in the employees' minds. Thus, when Respondent sent its letter of 15 February 1985, referring to both a "non- union" work force and the retroactive raise, it seemed that Respondent had decided not to recognize Local 815 without first engaging in the promised discussions. Indeed, Getrajdman affirmed this view when he said he did not want to speak to a union committee. 504 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Manifestly, Sooknanan was engaging in concerted ac- tivities when he asked Getrajdman in the presence of Shop Steward Velez and on behalf of other employees about the seeming contradiction between Respondent's letter and Getrajdman's earlier promises. Sooknanan did not lose the protection of the Act by raising his voice; Getrajdman also raised his voice and, in contrast to the cases cited by Respondent, Sooknanan did not use ob- scenity or violence. Further, Respondent's records show employees who push their supervisors in anger are merely warned and not suspended or discharged. Here, all Sooknanan did was raise his voice. Respondent makes much of the fact that the complaint alleges that Sooknanan was engaged in concerted activi- ty when he "protested Respondent's announcement that it was granting employees the wage increase." Sook- nanan admitted that he was not protesting the wage in- crease; in fact, he was asking about the letter and pro- testing the totality of Respondent's conduct in not dis- cussing matters with the employee committee as prom- ised. As Sooknanan testified, the wage increase showed that Respondent had made a final decision about not rec- ognizing Local 815 but had not discussed the matter with the employees beforehand. Getrajdman understood this protest very well-he told Sooknanan that he did not want to speak to the employee committee. Although the complaint condenses the transaction by describing it as a "protest" about the announcement of a wage increase, it was manifest throughout the instant hearing what Sooknanan's complaint had been, just as it must have been manifest to Getrajdman on 19 February 1985. When Getrajdman told Sooknanan that he did not want to speak to members of the committee and then fired Sooknanan for continuing to raise the issue, he knew very well that Sooknanan believed he had broken his promise to speak to the employees before any deci- sion was reached about recognizing a union. Respondent, citing Emporium Capwell Co. v. Western Addition Community Organization, 420 U.S. 50 (1975), urges that Sooknanan was fired because he was insisting that Respondent bargain with one union while another was the certified representative. This theory does not fit the facts. Sooknanan was not demanding bargaining over the wage increase nor was Sooknanan demanding that Respondent bargain with Local 815. Rather, he was asking Getrajdman about his promise to discuss the issue of recognition with the employees before any decision was made. This matter of concern to all the unit employ- ees had been discussed with Respondent over a period of time. The Supreme Court's decision in Emporium Cap- well, supra, stated that the principle of majority rule was "[c]entral to the policy of fostering collective bargain- ing" and that any bargaining by a minority group would be in derogation of the majority representative's ability to bargain on behalf of the entire unit. Sooknanan, on behalf of the other employees, was asking Respondent whether it would adhere to its promise that a discussion would take place if Local 918 were decertified. There is no way this inquiry as to Respondent's future actions can be construed as a present demand for bargaining. CONCLUSIONS OF LAW 1. By discharging its employee Kismath Sooknanan be- cause he engaged in concerted activities, Respondent violated Section 8(a)(1) of the Act. 2. The aforesaid unfair labor practice is an unfair labor practice affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. REMEDY Having found that Respondent engaged in certain unfair labor practices, I find it necessary to order it to cease and desist and to take certain affirmative action de- signed to effectuate the polices of the Act. Having unlawfully discharged Kismath Sooknanan, Respondent must offer him reinstatement and make him whole for any loss of earnings and other benefits, com- puted on a quarterly basis from date of discharge to date of proper offer of reinstatement, less any net interim earnings, as prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), plus interest as computed in Florida Steel Corp., 231 NLRB 651 (1977). On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- eds ORDER The Respondent, Chelsea Laboratories, Inc., Inwood, New York, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Discharging any employee for engaging in concert- ed activities. (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) Offer Kismath Sooknanan immediate and full rein- statement to his former job or, if that job no longer exists, to a substantially equivalent position, without prej- udice to his seniority or any other rights or privileges previously enjoyed, and make him whole for any loss of earnings and ' other benefits suffered as a result of the dis- crimination against him, in the manner set forth in the remedy section of this decision. (b) Remove from its files any reference to the unlawful discharge and notify the employee in writing that this has been done and that the discharge will not be used against him in any way. (c) 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. a 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. CHELSEA LABORATORIES, INC. 505 (d) Post at its facility copies in both English and Span- ishof the attached notice marked "Appendix."4 Copies of the notice, on forms provided by the Regional Director for Region 29, afer being signed by the Respondent's au- 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." thorized representative, shall be posted by the Respond- ent immediately upon receipt and maintained for 60 con- secutive 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. (e) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply.