Lenape Products, Inc.

178 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Lenape Products, Inc. and Charles Bernhardt Sr. Case 22-CA-13631 4 March 1987 DECISION AND ORDER By CHAIRMAN DOTSON AND MEMBERS JOHANSEN, BABSON, STEPHENS, AND CRACRAFT On 11 June' 1985 Administrative Law Judge James F. Morton issued the attached decision. The Respondent filed exceptions and a supporting brief, and the General Counsel filed an answering brief. The National Labor Relations Board has consid- ered the decision and the record in light of the ex- ceptions and briefs and has decided to affirm the judge's rulings, findings,' and conclusions, but not to adopt the recommended Order.2 ORDER The National Labor Relations Board orders that the Respondent, Lenape Products, Inc., Trenton, New Jersey, its officers, agents, successors, and as- signs, shall 1. Cease and desist from (a) Discharging its employees for engaging in a lawful work stoppage. (b) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action neces- sary to effectuate the policies of the Act. (a) Offer its Division 3 day-shift employees who were discharged for having engaged in a work stoppage on 27 December 1984, including Charles Bernhardt Sr., Charles Bernhardt Jr., Lottie Dillon, Isabel Elisio, Maria Bruno, Mayra Torres, Sarran Doogah, ' and Beverly Martinez,, immediate and full reinstatement to their former jobs or, if those jobs 1 In sec II,A, par. 3 of his decision, the judge incorrectly spelled Her- mann Ghnecke's first name as "Herman " In that same paragraph, as well as in his recommended Order, the judge erroneously stated that the Re- spondent's Division- 3 plant is located in Pennington, New Jersey. While the Respondent's main office and two other plants are located in Pen- nmgton, its Division 3 plant is located in Trenton, New Jersey. In sec. II,A, par 11, the judge incorrectly spelled Isabel Elisio's first name as "Isabella" and as "Isabelle" in his recommended Order and notice. In sec II,B, par. 2, the judge incorrectly cited Dirt Digger, which is now published at 274 NLRB 1024 (1985). We correct these inadvertent errors. Chairman Dotson would overrule Abilities & Goodwill, 241 NLRB 27 (1979) In his view an unlawfully discharged striker must unconditionally request reinstatement in order to trigger an employer's backpay obliga- tion He would therefore follow the Board rule as it existed prior to Abilities & Goodwill and as set forth in Bartlett-Collins Co, 230 NLRB 144 (1977). 2 We shall issue a new Order and notice reflecting the proper spelling of Isabel Elisio's first name and properly identifying the location of the Respondent's Division 3 plant no longer exist, to substantially equivalent posi- tions, without prejudice to their seniority or any other rights or privileges previously enjoyed, and make them whole for any loss of earnings and other benefits suffered as a result of the Respond- ent's unlawful discharge of them, in the manner set forth in the remedy section of the judge's decision. (b) Remove from its files any reference to the unlawful discharges and notify the employees in writing that this has been done and that the dis- charges will not be used against them in any way. (c) Preserve and, on request, make available to the Board or its agents for examination and copy- ing, all payroll records, social security payment records, timecards, -personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (d) Post at its facility in Trenton, New Jersey, copies of the attached notice marked "Appendix." Copies of the notice, on forms provided by the Re- gional Director for Region 22, after being signed by the Respondent's authorized representative, shall be posted, by the Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable 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 Respondent has taken to comply. a 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." 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. WE WILL NOT discharge you for engaging in a lawful work stoppage. 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. 283 NLRB No. 33 LENAPE PRODUCTS 179 WE WILL offer Charles Bernhardt Sr., Charles Bernhardt Jr., Lottie Dillon, Isabel Elisio, Maria Bruno, Mayra Torres, Sarran Doogah, and Beverly Martinez, and any other Division 3 employee who was discharged for having engaged in a work stop- page on 27 December 1984, immediate and full re- instatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or any other rights or privileges previously enjoyed, and WE WILL make them whole for any loss of earnings and other benefits resulting from their discharges, less any net interim earnings, plus interest. WE WILL notify each of them that we have re- moved from our files any reference to his or her discharge and that the discharge will not be used against him or her in any way. LENAPE PRODUCTS, INC. Gary A. Carlson, Esq., for the General Counsel. Arnold M. Mellk, Esq. (Katzenbach, Gildea & Rudner), of Lawrenceville, New Jersey, for Lenape Products, Inc. Ezra D. Rosenberg, Esq,. on the brief. Carl S. Yaller, Esq., of Media, Pennsylvania, for Charles Bernhardt, Sr. DECISION STATEMENT OF THE CASE JAMES F. MORTON, Administrative Law Judge. The complaint alleges that Lenape Products, Inc. (Respond- ent) violated Section 8(a)(1)' of the National Labor Rela- tions Act, by having discharged certain employees for having engaged in a strike. Respondent, in its answer, avers that the employees involved in this case had quit and Respondent denies it violated the Act. The hearing was held before me in Newark, New Jersey, on April 17 and 18, 1985. Based on the entire record in this case , including my observation of the demeanor of the witnesses, and after full consideration of the briefs filed with me by the Gen- eral Counsel and Respondent , I make the following FINDINGS OF FACT 1. JURISDICTION The pleadings establish that Respondent is engaged in the business of manufacturing and in the nonretail sale of ceramic products and that its operations annually meet the Board's nonretail standard for the assertion of juris- diction. II. THE ALLEGED UNFAIR LABOR PRACTICES A. The Facts There is very little dispute about the events in this case. The employees , involved in this case have not been represented by a labor organization for purposes of col- lective bargaining. In late August 1984 (all dates hereafter are for 1984 unless specified otherwise), Respondent hired Herman Glinecke as its production control manager to put its Di- vision 3 plant in Pennington, New Jersey, on a profitable basis and also to ensure that a $240,000 order for the production of 40,000 ashtrays would be processed through its Division 3 phase by January 1, 1985, and to completion by January 31, 1985 , to avoid paying a con- tractual penalty. Shortly after he took over, Glinecke made a number of changes to which many of the Division 3 employees objected. Thus, he stationed himself behind employees for long periods as they worked and timed their oper- ations with a stopwatch. He disallowed an employee a "grace period" whereby employees could punch in up to 4 minutes late without penalty, by instead docking her for being a minute late. He asked another employee to work overtime on Sunday to assist in clearing; out an area, but assigned him instead to production work. When that employee protested , he was sent home and informed that he would no longer be assigned to overtime work. Some of the employees at Division 3 perceived that Glinecke was responsible also for excessive fumes result- ing from the method he used to ignite gas in the kilns. They also thought he was not doing as much as his pred- ecessor to keep a rat infestation problem under control. They expressed their concern about techniques, intro- duced by Glinecke in handling ceramic objects, which they perceived as having caused skin rashes and related illnesses. One of the perceived concerns of the Division 3 employees pertained to Glinecke's moving ` them from their normal assignments to other duties, e.g., assigning a presser to the work of making clay. In mid-December, Glinecke brought in to the Division 3 plant an operation that was normally done atanother of Respondent's facili- ties, located 9 miles distant. That operation involved' the redoing of defective work at the other facility. The in- creased workload at Division 3 resulting from the trans- fer stimulated further changes, in work assignments. Charles Bernhardt Sr., the charging party in this case, was one ' of the Division 3 employees . He testified that he and the 'other Division 3 employees complained among themselves about the foregoing matters. He testified fur- ther that he spoke to Glinecke about them and that Olin- ecke responded that he did not care what the employees thought. Bernhardt testified that the Division 3 employ- ees decided that they would get nowhere with Glinecke and that he asked Glinecke to tell "Pete" I3exter (Re- spondent's principal stockholder and its de facto chief ex- ecutive officer') that the employees wanted "'to meet with him to discuss (their) working conditions and the problems at Division 3." According to Bernhardt, Glin- ecke replied that he would tell Hexter of this request. Glinecke and Hexter testified for Respondent . Glinecke did not controvert Bernhardt's testimony respecting the I Hextet testified he serves in that capacity, but is not one of Respond- ent's officers. 180 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD desire of the Division 3 employees to meet with Hexter. Instead, Glinecke's account suggests that he handled all the problems at Division 3 in a manner satisfactory to Bernhardt and the other employees there. I credit Bern- hardt's testimony- that the employees had, through Glin- ecke, sought 'a meeting with Hexter. Hexter testified that he has always been on a first name basis with Respondent's employees and has always been available to discuss their problems. He testified also that he regularly visited the Division 3 facility. To the extent that Hexter's account suggests that the Division 3 employees had no concerns, I reject it as Glinecke him- self acknowledged that he had received complaints from employees about the changes he made in their work as- signments. Bernhardt testified also that he and the other Division 3 employees on the day shift then talked about starting a union. Bernhardt called Nathan Rutkin, Respondent's traffic manager at the Division 1 plant, 9 miles away. Rutkin is also president of Local 185A, Glass, Pottery, Plastics & Allied Workers International Union, AFL- CIO, CLC. Rutkin gave Bernhardt the union's telephone number. Bernhardt later obtained authorization cards for that union and, on December 19, he and other Division 3 employees tilled out those cards. That testimony and the signed authorization cards were offered solely to estab- lish that the Division 3 employees were serious in their concerns about their complaints regarding their working conditions under Glinecke. Thus, they met with a union representative and told him they may walk out because of their complaints. The union cards were not offered for the purpose of proving that their termination of employ- ment, a week or so later, was due to their union activi- ties, inasmuch as there is no complaint allegation that Respondent has violated Section 8(a)(3) of the Act. Defective work from another plant, Division 4, was brought to Division 3 to be reworked. By December 27, the Division 3 employees "couldn't take no more [and] decided to walk out . . . but . . . would try to get a hold of Mr. Hexter" first. Bernhardt telephoned Hexter on December 27. There is a variation between their re- spective accounts of that telephone discussion. Bern- hardt's testimony is that he asked Hexter if it was possi- ble for the employees to meet with him. He testified fur- ther that Hexter put him off by saying he had meetings elsewhere to attend and by suggesting that the employ- ees wait until after the holidays. Bernhardt testified also that he then accused Hexter of giving him "the run- around" and that he also told Hexter that the employees would walk out` by noon if Hexter did not come to the Division 3 plant by then. Bernhardt concluded his ac- count of the conversation by his testimony that Hexter told him, "God dammit, Charlie, if you want to walkout, walkout. I'll just get other people to replace you." Hexter's version of the call is that Bernhardt told him that the employees wanted him to come right down and that when he told Bernhardt that he would be there at 1 p.m. because he had another meeting scheduled, Bern- hardt told him that the employees would walk out if he was not at the Division 3 plant by 11 a.m. Hexter testi- fied that he told Bernhardt to either wait until 1:00 p.m. or the meeting with the employees would have to wait until after the holidays. I see no material difference in the respective accounts. If a credibility resolution were necessary, I would credit Bernhardt's account particular- ly as Hexter's subsequent actions, as he related them and as set out below, disclose that he was -not going to wait until after the holidays to talk with the employees if they walked out. Bernhardt had the telephone conversation with Hexter about 10:15 a.m. He informed his coworkers of it and placed a call to Glinecke, who was at another facility. Bernhardt told Glinecke that the employees were walk- ing out. Glinecke drove to the Division 3 plant and ar- rived in time to see the employees there punching out. It was then about I1 a.m. On the afternoon of the same day of the walkout, De- cember 27, Hexter met with Respondent's president and they instructed Respondent's payroll administrator to write each of the employees who walked out. Her letter to each was dated December 27 and stated, "[o]n De- cember 27, 1984, you abandoned your position . . . [and] therefore your position is no longer available." On De- cember 28, the employees came in to pick up their pay- checks. Glinecke testified that Bernhardt told him then that what the employees did "was a dumb thing to do" and asked if Hexter was ready to talk. Glinecke told them that Hexter instructed him not to hire back any of the employees who walked out. The parties stipulated that the names of the employees who walked out on December 27 and who received a December 27 letter from the payroll administrator are: Charles Bernhardt, Sr. Sarran Doogah Lottie Dillon Mayra Torres Maria Bruno Isabella Elisio Beverly Martinez testified for the General Counsel that she was also one of the Division 3 employees who walked out on December 27 and who heard Glinecke state, on December 28, that Heater would not hire back those who had walked out. It. is not clear whether she was sent a letter from the payroll administrator as the others were sent. There may have been other day-shift employees who joined in the December 27 walkout.2 On January 9, 1985, nine employees signed a letter sent to Hexter seeking to talk to him about plant condi- tions and also stating that they wanted their "jobs back." That letter was offered by the General Counsel to dem- onstrate that the employees who walked out on Decem- 2 At one point in the hearing, the General Counsel asserted that a day- shift employee, Michele Tirado, had also been unlawfully discharged on December 27 because she joined in the walkout that day The testimony offered by Respondent, however, established that Tirado had been laid off for lack of work on December 21 and thus was not even at work on December 27 On the record before me, I find that she did not participate in the December 27 walkout. I cannot say, based on the record herein, however, that only the ones named above did LENAPE PRODUCTS her 27 did not thereby quit.3 There is no allegation that on January 9, 1985, they were unlawfully refused rem- statement. B. Analysis Respondent contends first that the General Counsel failed to offer credible evidence that the employees were engaged in a concerted act as, in Respondent's view, the evidence established that the Charging Party effectively manipulated the employees because he had been passed over for promotion. That contention is without merit and is based solely on Respondent's speculation. Respondent next asserts that the December 27 walkout was unprotected as, in its view, Respondent was not given timely notice of the employees' intention to engage in a work stoppage. The facts do not support that con- tention either. The credited evidence establishes that Re- spondent wanted to delay a walkout until after the holi- days, at least. It should not be the Board's function to weigh tactical advantages either side may seek. Respond- ent, in its brief, extracts a quotation from the dissenting opinion in Tri-State Truck Service v NLRB, 616 F.2d 65 (3d Cir. 1980), to suggest that the General Counsel here is engaged in an overly enthusiastic prosecution of a marginal case. Tri-State factually has little resemblance to the instant case in which employees had numerous com- plaints for which they sought relief. In recent and analo- gous cases, the discharge of employees who walked out in'similar circumstances as in the instant case was held unlawful. See Dirt Digger Inc., 274 NLRB 1024 (1985). See also Seminole Mfg. Co., 272 NLRB 365 (1984). Thus, I find that the employees involved herein did not quit their employ but, instead, had been discharged on De- cember 27 because they engaged in concerted activities protected by Section 7 of the Act. 3 One of the nine who signed was Charles J., Bernhardt Jr., the son of the Charging Party Other testimony' before me establishes that he was among the employees present on December 28' when Glineckc informed them that Herter would not take them back. It appears , however, that he may, not have been sent a December 27 letter from the payroll adminis- trator referred to above I find that the General Counsel has made out a prima facie case that Bernhardt Jr. was among the employees who walked out on December 27 and who were informed the following day that they thereby would not be taken back. The Januray 9, 1985 letter also was signed by Michele Tirado, whose status is discussed, supra. 181 CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce as defined in Section 2(2), (6), and (7) of the Act. 2. Respondent has committed an unfair labor practice violative of Section 8(a)(1) of the Act, by having dis- charged Division 3 day-shift employees who engaged in a work stoppage on December 27, 1984, including Charles Bernhardt Sr., Charles Bernhardt Jr., Sarran Doogah, Lottie Dillon, Mayra Torres, Maria Bruno, Isa- belle Elisio, and Beverly Martinez. 3. The unfair labor practice found above affects com- merce within the meaning of Section 2(6) and (7) of the Act. REMEDY It having been found that the Respondent has engaged in certain-unfair labor practices, it is recommended that it cease and desist therefrom and take certain affirmative actions designed to effectuate the policies of the Act. It having been found that Respondent unlawfully dis- charged employees, including Charles Bernhardt Sr., Charles Bernhardt Jr., Lottie Dillon, Isabelle Elisio, Maria Bruno, Mayra Torres, Sarran Doogah, and Bever- ly Martinez and that it has since failed and refused to re- instate them to their former positions or equivalent posi- tions in violation of Section 8(a)(1) of the Act, it is rec- ommended that the Respondent be ordered to remedy such unlawful conduct. In accordance with Board policy, it is recommended that the Respondent be ordered to offer these employees immediate and full reinstatement to their former positions or, if such positions no longer -exist, to substantially equivalent positions, without', prejudice to their seniority or other'rights and privileges enjoyed, dismissing, if nec- essary, -any employees hired on or since the date of their discharges to fill the positions and to make them whole for any loss of earnings they may have suffered by reason of the Respondent's 'unlawful conduct, by pay- ment to them of sums of money equal to the amounts they would have earned from the date of their unlawful discharges to the date of an offer of reinstatement, less net earnings during such period, with interest thereon, to be computed on a quarterly basis in the manner estab- lished by the Board in F W. Woolworth Co., 90 NLRB 289 (1950), and Florida Steel Corp., 231 NLRB 651 (1977). See also Isis Plumbing Co., 138 NLRB 716 (1962). [Recommended Order omitted from publication.]