Jamestown Metal Polishing

JAMESTOWN METAL POLISHING Jamestown Metal Polishing and Patrick A. McNal- lie. Case 3-CA-13328 31 August 1987 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS STEPHENS AND CRACRAFT On 30 March 1987 Administrative Law Judge Wallace H. Nations issued the attached decision. The Respondent and the General Counsel filed ex- ceptions, and the General Counsel filed a support- ing 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, findings,' and conclusions, 2 to modify his 'remedy, 3 and to adopt the recommended Order. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, Jamestown Metal Polishing, Jamestown, New York, its offi- cers, agents, successors, and assigns, shall take the action set forth in the Order. 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. 2 In adopting the judge's conclusions in this case we do not rely on his use of McNalhe's residence and family relationship or the perceived change in attitude exhibited by the Respondent's supervisors toward McNalhe to impute knowledge of union activity Instead, we impute such knowledge to the Respondent on the basis of the fact that McNalhe was the only employee who spoke out at the meeting in which the Respond- ent interrogated its employees about their reasons for wanting ' a union and that, according to McNallie's credited and uncontradicted testimony, Supervisor Mark Garrett, who was the owner's son, told McNalhe and Spencer that "he was mad at us guys for what we were doing because he thought we were trying to screw his dad " In adopting the judge's finding of an unlawful interrogation we apply the "all the circumstances" test of Rossmore House, 269 NLRB 1176 (1986). In this case, the Respondent's agents asked the employees ques- tions concerning their union sentiments at three different plant meetings. We need not pass on the questioning at the first meeting since the interro- gations at the second two meetings were clearly coercive under the Ross- more House test The second and third meetings were conducted by the Respondent's owner, they occurred after the leading union activist had been fired, and the interrogations were coupled with unlawful promises of benefits to the employees if they would agree to forgo seeking the union election. S Interest will be computed in accordance with our decision in New Horizons for the Retarded, 283 NLRB 1173 (1987) Interest on amounts accrued prior to 1 January 1987 (the effective date of the 1986 amend- ment to 26 U S.C § 6621) shall be computed in accordance with Florida Steel Corp, 231; NLRB 651 (1977) We reject the General Counsel's request for a visitatorial clause as we do not feel it is necessary under the facts of this case 413 William B. Kenny, Esq., for the General Counsel. James P. Subjack, Esq., of Jamestown, New York, for the Respondent. DECISION STATEMENT OF THE CASE WALLACE H. NATIONS, Administrative Law Judge. Patrick A. McNallie, an individual, filed a charge against Jamestown Metal Polishing (Respondent) on 7 July 1986.1 On 26 August 1986 the Regional Director for Region 3 issued a complaint and notice of hearing alleg- ing that Respondent, by discharging its employee Patrick A. McNallie, by interrogating its employees, promising benefits to its employees, and threatening its employees because of their union activities, has been engaging in unfair labor practices within the meaning of Section 8(a)(1) and (3) of the National Labor Relations Act. Re- spondent denies it has violated the Act. A hearing was held in this matter before me in James- town, New York, on 17 November 1986. On the entire record and on.my observation of the witnesses and their demeanor, I make the following FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT Jamestown Metal Polishing, at all times material to this proceeding, has been a sole proprietorship with its principal office and place of business in Jamestown, New York. It engages at that location in the polishing and buffing of metal products for other companies. Respond- ent admits the jurisdictional allegations of the complaint and I find that it is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED Metal Polishers, Buffers, Platers and Allied Workers International, AFL-CIO (Union) is now, and has at all times material been, a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES Patrick McNallie was employed as a belt polisher by Respondent from approximately 2 June 1983 to the date of his discharge on 24 June 1986. During the last 6 months of McNallie's employment, the number of co- workers employed by Respondent varied between 8 and 12. In February 1986 George Garrett, Respondent's gener- al manager, had a meeting with employees where they were informed they would be put on a piecework pay- ment basis because production was low and the Compa- ny was losing money. McNallie and his fellow employ- ees did not like the proposal as it would result in a pay cut. They held a meeting and, after talking, decided to seek union representation to aid in keeping their present i All dates are in 1986 unless otherwise stated 285 NLRB No. 42 414 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD payscales. McNallie contacted Glen Holt, the president of the involved local union, on approximately 14 May. McNallie received authorization cards from the Union in the mail on 19 May. He was not working at that time- being on compensation for an injury. When he received the cards, he contacted five people at the shop who had previously agreed to sign the cards. They came to his house, filled the cards out, and mailed them back to the Union. McNallie returned to work either the end of May or the early part of June. Immediately on his return, McNallie testified he noticed a change in what he de- scribed as the regular friendly atmosphere between the employees and the supervisors, Vincent Alessi and the owner's son, Mark Garrett. On the day of his return, Su- pervisor Alessi called the employees aside and an- nounced that they had been notified by the NLRB that a peition for representation had been filed by the Union. He asked the employees why. McNallie was the only employee who spoke up, explaining to Alessi that it was because of the piecework proposal and the employees' reluctance to take a cut in pay. On 16 June Respondent signed a stipulation for an election to be held on 11 July. Before this, on the shop floor, Mark Garrett told McNallie and fellow employee, Robin Spencer, that "he was mad at us guys for what we were doing because he thought we were trying to screw his dad," and that the employees should have a talk with him. On 12 June McNallie was late to work and received a verbal warning from Supervisor Alessi to the effect that, if he was late again, he would be fired. McNallie had been late for work once or twice a week for the entire time he had been working for the Company. McNallie testified that the Company's personnel records reflect that being late was a general condition in the shop. After 12 June McNallie was late on Saturday, 21 June, but nothing was said to him about it. On Tuesday, 24 June, he and fellow employee Al Kennedy, were both 20 minutes late. Immediately on punching in, McNallie was summoned to Alessi's office and fired. When he returned on the following Friday to pick up his paycheck, Alessi attempted to get him to sign a statement that the sole reason for his discharge was his lateness. McNallie de- clined. As noted, an election was scheduled for 11 July. Al Kennedy, an employee of the Respondent at the time, testified that a meeting was held approximately 2 weeks prior to the election. It was a meeting of all employees and attended by George Garrett and Vince Alessi. Ken- nedy testified that Garrett and/or Alessi wanted to know why the employees wanted the elections and if "we can work it all out-not to have any elections ...." He tes- tified that Garrett said that Respondent would give the employees a Christmas bonus and maybe profit sharing on the production per month. Kennedy testified that there was another meeting ap- proximately a week to 2 days before the election held in the breakroom of the shop. At this meeting Garrett and Alessi requested that the employees not vote for the Union and attempt to solve their problems right there in the shop because the Company was a small one. Again, according to Kennedy, Garrett and/or Alessi mentioned profit sharing, annual raises at Christmas time, and maybe better bonuses at Christmas. He testified that Gar- rett asked what he could do to have the employees work it out with him rather than having a union come into his Company. The petition was withdrawn by the Union on 9 July. With respect to these meetings, Supervisor Alessi testi- fied that employee Mark Wallace requested a meeting at- tended by Alessi and Garrett. He testified that the em- ployees just wanted to talk to Garrett pertaining to the piecework and other problems throughout the shop. Alessi testified that Garrett's response to the employees' questions about their problems was that production was down and somehow production had to be beefed up be- cause at the rates the employees were making their pro- duction was losing the Company money. He testified that Garrett did not promise an increase in wages but only agreed to consider the question. He also recalled that Garrett informed the employees that the Company tried to give them Christmas bonuses when it could afford it. George Garrett also testified that Mark Wallace called a meeting attended by he and Alessi. He testified that at the meeting Wallace spoke up and asked what the Com- pany was going to do if it gets a union. Garrett testified he stated, "I'm not going to say what I'm going to do if you get a union." He denied making any promises, threats, or inducements to the employees for them to withdraw their petition. A. Was the Termination of McNallie Unlawfully Motivated The General Counsel has presented a compelling case that Respondent's decision to terminate McNallie was motivated by union animus and that the stated reason for his termination was pretextual. As a late-filed exhibit, the General Counsel has offered into evidence records from Respondent's personnel files that demonstrate the number of days worked by Respondent's employees and the number of times these employees were tardy. No ob- jection has been offered by Respondent to the exhibit and it is accepted as part of the record in this proceed- ing. Based on his personnel data, it can be determined from 27 September 1985, McNallie worked 53 days ' and was late 31. From 30 December 1985 through 28 April 1986, he worked 58 days and was late 17. From 4 April through 24 June, he worked 49 days and was late 15, in- cluding the day he was fired. Yet, despite the consistent record of tardiness, no issue was made of it until after the filing of the petition that resulted from McNallie's union activity. It is revealing to look at the other employees' attend- ance records. Al Kennedy,-a fellow employee who testi- fied in the proceeding, worked 56 days in the last quarter of 1985 and was late 20 of those days. He worked 60 days in the first quarter of 1986 and was late 28 of them. In the second quarter he worked 60 days through 24 June and was late 31 of those days. As noted above, he was the employee who was late with McNallie on the JAMESTOWN METAL POLISHING 415 date of McNallie's termination, but received no warnings and continued to work for Respondent until he quit. Employee Tim Colburn worked 50, 53, and 60 days in the respective three quarters covered by the exhibit and was late 37, 2, and 17 times. In the 18 days he worked from 25 June through 25 July, he was late seven times. A final warning was given to Colburn, but not until the end of October, after the filing of this proceeding. Employee L. Passinger worked 48, 42, and 30 days and was late 16, 45, and 14 days respectively. Employee Robin Spencer worked 47, 59, and 50 days and was late 32, 9, and 14 times. The exhibit reflects that each of the other employees was late on at least some occasions during those quarters. I find that though McNallie's tardiness record with Respondent is reprehensible, so is the like record of many of his fellow employees. Yet, he was the only one singled out for warning and discharge. This disparate treatment of McNallie relative to his fellow employees strongly supports the General Counsel's theory that Re- spondent's motive in terminating McNallie was to dis- courage union activity. Also supporting the pretextual nature of the discharge is its timing. McNallie was only warned and discharged after the filing of the petition by the Union and after McNallie spoke up at the meeting called by Supervisor Alessi to determine why the employees wanted a union. Although Alessi and Garrett deny any knowledge that McNallie was a union activist, the facts outlined in this record lead me to discredit the denial. First, as noted, was McNallie's leadership role taken in the meeting with Alessi. Second, ' there was the undenied change in atti- tude exhibited by Respondent's supervisors toward McNallie after the filing of the petition and his return to work from an injury. The record reflects that McNallie lived in the same residence with General Manager Gar- rett's son, Mark Garrett, who was also engaged to be married to McNallie's sister. McNallie's actions in speak- ing up at, the meeting and the closeness of the relation- ship he bore with Supervisor Mark Garrett, dispels in my mind any doubt that management of Respondent knew that McNallie was a union- supporter, if not the leading union activist in its employ complement. Next, it cannot be disputed that Respondent harbored an antiunion animus. Its actions at the meeting held by Alessi with the employees and at the meetings held by Garrett and Alessi after McNallie's termination, clearly demonstrate that the Company did not want the Union. Similarly, Mark Garrett's undenied statement to McNal- lie and employee Robin Spencer demonstrating hostility to the Union supports this view. In conclusion, I agree with the General Counsel and find that all elements of an 8(a)(3) violation have been proven: activity by the discri- minatee, knowledge of the activity by the Respondent, hostility by the Respondent, a timing of discrimination, and a clearly pretextual reason for the discharge. For the foregoing reasons, I find that the discharge of McNallie by the Respondent to be in violation of Section 8(a)(3) of the Act. B. The 8(a)(1) Violations The meetings of the Company's supervisory personnel with the employees during the pendency of the union pe- tition-if the description given by employee Kennedy is credited-clearly constitute violations of Section 8(a)(1) of the Act. I do credit employee Kennedy's version of these meetings based on my observation of the witnesses and the surrounding circumstances. Although Supervisor Alessi and General Manager Garrett deny that they ever solicited complaints or problems with employees at later meetings, it is undisputed that Supervisor Alessi called the first meeting for the avowed purpose of discovering why the employees wanted a union. Second, given the Respondent's actions in its discharge of McNallie, the leading union activist, after the filing of the petition and within 1 month of the election, the statements attributed to them at the meetings by Kennedy are entirely consist- ent. I therefore find from the record that the employer interrogated its employees about the employees' union sympathies and desires, and promised benefits to employ- ees to sway them from supporting the Union. I further find that the statement of Mark Garrett to employees Spencer and McNallie rose to the level of a threat in violation of the Act, primarily because it was followed shortly thereafter with the unlawful discharge of McNal- lie. CONCLUSIONS OF LAW 1- Respondent is now and, at all times material to this decision, has been an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the National Labor Relations Act. 2. The Union is a labor organization within the mean- ing of Section 2(5) of the Act. 3. By unlawfully discharging Patrick A. McNallie on 24 June 1986, Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(1) and (3) of the Act. 4. By interrogating its employees about their union sympathies, promising benefits to its employees to dis- suade them from supporting the Union, and threatening its employees with unspecified reprisals because of union activity, Respondent has engaged in unfair labor prac- tices within the meaning of Section 8(a)(1) of the Act. THE REMEDY Having found that Respondent has engaged in unfair labor practices, I recommend that it cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act. Having found that Respondent unlawfully discharged Patrick A. McNallie on 24 June 1986 and has since failed and refused to rein- state him in violation of Section 8(a)(1) and (3) of the Act, I recommend that Respondent remedy such unlaw- ful conduct. In accordance with Board policy, I recom- mend that Respondent be ordered to offer Patrick A. McNallie immediate and full reinstatement to his former job, discharging if necessary any employee hired to re- place him or, if that job no longer exists, to a substantial- ly equivalent position, without prejudice to his seniority 416 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD or other rights and privileges and make him whole for any loss of earnings he may have suffered by payment to him of an amount he normally would have earned from 24 June 1986 to the date of an offer of reinstatement, less net earnings, in accordance with the formula set forth in F. W. Woolworth Co., 90 NLRB 289 (1950), to which should be added interest computed as prescribed in Flori- da Steel Corp., 231 NLRB 651 (1977). See generally Isis Plumbing Co., 138 NLRB 716 (1962). I further recom- mend that Respondent be required to remove from it files any reference to the discharge of Patrick A. McNal- lie and notify him in writing that this has been done and that evidence of his unlawful discharge will not be used as a basis for future personnel actions against him. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed2 ORDER The Respondent, Jamestown Metal Polishing, James- town, New York, its officers, agents, successors, and as- signs, shall 1. Cease and desist from (a) Discouraging union or protected concerted activi- ties of its employees or their membership in Metal Pol- ishers, Buffers, Platers and Allied Workers International Workers, AFL-CIO, or any other labor organization, by unlawfully and discriminatorily discharging its employ- ees or discriminating against them in any manner with respect to their hire, tenure of employment, or any term or condition of employment, in violation of Section 8(a)(1) and (3) of the Act. (b) Interrogating its employees about their union sym- pathies, promising benefits to its employees to dissuade them from supporting the Union, and threatening its em- ployees with reprisals because of their union activities. (c) 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 Patrick A. McNallie immediate and full rein- statement to his former position or, if such position no 'longer exists, to a substantially equivalent position, with- out prejudice to his seniority or other rights and privi- leges previously enjoyed, discharging, if necessary, any employee hired to replace him, and to make him whole for any loss of pay -he may have suffered by reason of Respondent's unlawful discharge of him in accordance with the recommendations set forth in the remedy sec- tion of this decision. (b) Remove from its files any reference to the unlawful discharge of Patrick A. McNallie and notify him in writ- ing that this has been done and that the discharge will not be used against him in any way. 2 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. (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. (d) Post at its Jamestown, New York place of business copies of the attached notice marked "Appendix."3 Copies of said notice, on forms provided by the Regional Director for Region 3, after being signed by Respond- ent's authorized representative, shall be posted by Re- spondent immediately on 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 Respondent to ensure that the notices are not altered, defaced, or cov- ered 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. 3 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 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 discourage union or protected activities by our employees or their membership in Metal Polish- ers, Buffers, Platers and Allied Workers International Union, AFL-CIO, or any other labor organization, by unlawfully discriminatorily discharging our employees or discriminating against them in any manner with respect to their hire or tenure of employment or any term or condition of employment in violation of Section 8(a)(1) and (3) of the National Labor Relations Act. WE WILL NOT interrogate our employees about their union sympathies, promise benefits to our employees in order to dissuade them from supporting a union or threaten our employees with unspecified reprisals be- cause of their union activities. JAMESTOWN METAL POLISHING 417 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 offer Patrick McNallie, whom we unlawful- ly discharged on 24 June 1986, immediate and full rein- statement to his former position or, if that position no longer exists, to a substantially equivalent position, dis- charging, if necessary, any employee hired to replace him; WE WILL restore his seniority or other rights and privileges previously enjoyed; WE WILL make him whole for any loss of backpay to which he may be entitled, to- gether with interest. WE WILL remove from our files any reference to the unlawful discharge of Patrick A. McNallie and notify him in writing that this has been done and that evidence of this unlawful action will not be used as a basis of future discipline against him. JAMESTOWN METAL POLISHING