The Akron Paint And Varnish Co.

AKRON PAINT & VARNISH CO The Akron Paint and Varnish Company and Frank T Simon Case Case 8-CA-20959 April 24, 1989 DECISION AND ORDER BY MEMBERS CRACRAFT, HIGGINS, AND DEVANEY On January 10, 1989, Administrative Law Judge Thomas A Ricci issued the attached decision The Respondent filed exceptions and a supporting brief, and the General Counsel 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 briefs' and has decided to affirm the judge's rulings,2 find ings, 3 and conclusions' and to adopt the recom- mended Order as modified5 and fully set out below r In sec III par 15 the judge apparently erroneously stated that the Respondent did not file a brief The Respondent has not moved or oth erwise sought to have this proceeding remanded to the judge to consider the postheanng brief We have considered the posthearing brief submit ted along with its exceptions to the Board and find that the arguments attnbuted to the Respondent by the judge are substantially the same as those presented by the Respondent in its posthearing brief 2 We correct the following errors in the judge s decision In sec III par 2 of his decision the judge inadvertently stated that Venarge spoke of Simon s warning notice for interfering when an OSHA inspector was walking through the shop in checking conditions In fact Simon s warning notice was for interfering when Venarge and a visitor were walking through the shop on a tour In sec III par 7 the judge inadvertently stated that Simon worked for the Employer from 1967 Simon actually started working for the Respondent in 1976 In sec III par 8 the judge inadvertently stated that the Respondent was fined by OSHA after a charge had been filed alleging that the Re spondent s safety procedures were below the standards of OSHA The company had failed an air quality check The evidence reveals instead that a charge was filed alleging that the Respondents air quality was below the OSHA standards but OSHA found no violation of air quality Rather OSHA fined the Respondent for other minor violations a The Respondent has excepted to some of the judge s credibility find rags The Board s established policy is not to overrule an administrative law judge s credibility resolutions unless the clear preponderance of all 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 * We agree with the judge s findings that Frank T Simon was dis charged because as the Union s spokesman he attempted to have the Re spondent improve the safety conditions in the work place The Respond ent contends that Simon was not a satisfactory employee and that it con sidered Simon s prior misconduct in the discharge Assuming arguendo the validity of these contentions we have considered the Respondents evidence on these points and conclude that the Respondent has not met its burden to prove that the discharge would have taken place even in the absence of Simon s protected conduct S We shall enter a narrow cease and-desist order and we shall also enter an expunction remedy as sought by the General Counsel 781 ORDER The National Labor Relations Board orders that the Respondent, The Akron Paint and Varnish Company, Akron, Ohio, its officers, agents, succes- sors, and assigns, shall 1 Cease and desist from (a) Discharging employees because of union or other protected concerted activities (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 Frank T Simon immediate and full re- instatement to his former position or, if such posi- tion no longer exists, to a substantially equivalent position, without prejudice to his seniority or any other rights or privileges previously enjoyed (b) Make whole Frank T Simon for any loss of earnings and benefits he may have suffered as a result of his unlawful discharge to be computed in the manner prescribed in F W Woolworth Co, 90 NLRB 289 (1950), with interest to be computed in the manner prescribed in New Horizons for the Re- tarded 6 (c) Remove from its files any reference to the unlawful discharge of Frank T Simon, and notify him in writing that this has been done and that evi- dence of the unlawful discharge will not be used as a basis for future personnel actions against him (d) 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 (e) Post at its facility in Akron, Ohio, copies of the attached notice marked "Appendix "' Copies of the notice, on forms provided by the Regional Director for Region 8, after being signed by the Respondent's authorized representative, shall be posted by the Respondent immediately upon re- ceipt and maintained for 60 consecutive days in conspicuous places including all places where no- tices to employees are customarily posted Reason- able steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material e 283 NLRB 1173 (1987) 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 293 NLRB No 97 782 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD (f) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent 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 ordered us to post and abide by this notice WE WILL NOT discharge employees because of union or other protected concerted activities WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of the rights guaranteed them by Section 7 of the Act WE WILL offer Frank T Simon immediate and full reinstatement to his former position or, if that position no longer exists, to a substantially equiva- lent position, without prejudice to his seniority or any other rights or privileges previously enjoyed WE WILL make whole Frank T Simon for any loss of earnings and benefits he may have suffered as a result of his unlawful discharge, with interest WE WILL remove from our files any reference to the discharge of Frank T Simon, and notify him in writing that this has been done and that evidence of the unlawful discharge will not be used as a basis for future personnel actions against him THE AKRON PAINT AND VARNISH COMPANY Charles Z Adamson Esq for the General Counsel H Bryan Rector Esq (Rector & Associates), of Akron, Ohio for the Respondent DECISION STATEMENT OF THE CASE THOMAS A Ricci Administrative Law Judge A hear ing in this proceeding was held in Akron, Ohio, on Octo ber 16, 1988, on complaint of the General Counsel against Akron Paint and Varnish Company (the Re spondent or the Company) The complaint issued on June 21, 1988, upon a charge filed on May 9, 1988 by Frank T Simon (the Charging Party) The sole issue to be decided is whether the Respondent discharged Frank Simon the union steward among the approximately 24 employees, because of his persistent attempts to have the Company improve the safety conditions in work place and thereby violated Section 8(a)(3) of the Act A post hearing brief was filed by the General Counsel On the entire record, and from my observation of the witnesses, I make the following FINDINGS OF FACT I THE BUSINESS OF THE RESPONDENTS Akron Paint and Varnish Company is an Ohio corpo ration with a place of business in Akron, Ohio where it is engaged in the manufacture of paint products Annual ly in the course and conduct of its business it sells and ships from its Akron facility goods and materials valued in an excess of $50,000 directly to points outside the State of Ohio I find that the Respondent is an employer within the meaning of the Act II THE LABOR ORGANIZATION INVOLVED I find that International Chemical Workers Union is a labor organization within the meaning of Section 2(5) of the Act III THE UNFAIR LABOR PRACTICE During a safety meeting among the employees held on April 1, 1988, Mike Chosa a company agent, said to Union Steward Simon you are dismissed Simon came back with a comment you are dismissed No one left the room, the meeting continued with Chosa asking for questions from the employees In a matter of minutes the meeting ended and everyone went back to work From the meeting place Chosa went to the office of David Venarge, the company president, where other management agents were also gathered As soon as he told the men about Simon s you are dismissed com ment, it was decided to fire the employee for that sole reason At the hearing, 6 months later Venarge added other reasons to justify his discharge decision that day He spoke of Simon s past conduct, of being served with one warning notice for failure to follow directions and another for interfering when an OSHA inspector was walking through the shop checking conditions All that had happened months earlier Vernarge also added in his testimony further reasons for the discharge-what he called Simon s roughhouse behavior after the decision to fire him had been decided on All this testimony is completely beside the point in this proceeding The question is, and remains did Simon s comment to Chosa that day justify his discharge or does the record as a whole warrant a finding of illegality in the Respondent s immediate reaction to the one small in cident9 Venarge called Simon s comments and intolerable of fence, as justifying the discharge After quoting Chosa as telling him that Simon had become unruly and dis ruptive the witness continued I had our entire organs zational management people really in that office and we discussed the situation that Mike Chosa was telling us about And considering the individual and his past record of behavior, it was decided at that meeting at that time to dismiss him Asked on direct examination why he was of that view, he testified as follows The report for Mr Chosa based on the disruption in the safety meeting the fact that he was very in subordinate in dismissing the person-the manage ment person in charge He disallowed this and dis AKRON PAINT & VARNISH CO enabled the meeting to continue and was-there s no way in my opinion that behavior [sic] could ever be considered anything than insubordination That that one incident was the basis of the discharge decision the moment it was made became even clearer in the presidents cross examination Q After Mr Chosa spoke to you on April 1st in the office, at that point you decided to dismiss Mr Simon, is that correct) A Yes Edward Espega, the production manager, gave like testimony A When he [Chosa] came into Mr Veneraga s [sic] office and told us what happened in the safety meeting Q What did you do at that time? A I was seated in front of Mr Venerage s [sic] desk I believe at that time I got up and conversed with Mr Benerage [sic] and Mr Chosa, who was physically upset at that time, to try to get out what had actually happened, I turned to Mr Venerage [sic] and we had a conversation of what should hap pened next And at that time it was decided that that was grounds for dismissal, that that was consid ered gross insubordination All the talk about past events, particularly about what happended when Simon became insensed and spoke loudly before leaving because he felt unjustly discharged, reflect no more than afterthoughts in managements to create a defense to this complaint 6 months after the act in question Simon was kept on the job in the past He must have been a satisfactory employee, for he worked for this Company from 1967 to 1982 He then left and was rehired in 1983 The question therefore remains the same Was he fired because he pressed to strongly in the opinion of management for the safety of his fellow em ployees? There are other realities in this total picture that ra tionally explain Simon s repetition of the words first used by the man conducting the safety meeting , and that also point strongly to the real reason why he was summarily discharged This paint and varnish production shop is a very dangerous place to work in The men must use chemicals and other materials that unless proper precau tions are taken, can cause severe damage to health The subject of proper precautions to be provided by the Re spondent has long been a subject of argument between the employees and management Epsega admitted the Company had been fined by OSHA after a charge had been fined by OSHA after a charge had been filed alleg mg that the Respondent's safety procedures were below the standards of OSHA The Company had failed an air quality check " Moreover, before Venarge took over as president of the Company, an annual physical examina tion was given each employee He discontinued that safety precaution when he arrived Indeed, that particu lar safety measure so discontinued became the bone of 783 contention between Chosa and Simon at the safety meet mg here in question Simon was principal spokesman for the Union on behalf of the 24 employees in this plant He testified, and no one contradicted him that the International Chemical Workers Union became bargaining agent in 1986, that he was the man who spoke for it at a number of confer ences in attempted negotiations , but that no agreement was reached for a collective bargaining contract throughout that entire period Simon was also the Union s steward , who, among, other things, also many times pressed management for this or that safety meas ure It is clear on this record that the subject of major con cern to these employees has long been and certainly was, at that time of the events under consideration , safety in the workplace And this brings us to the meeting of April 1, 1988, called by the Company to be more sure the employees took care of themselves Chosa spoke for about 20 or 25 minutes about what he called the MSDS sheets He explained the MSDS as follows A material safety data sheet is a document used to describe the identity and hazards of personal safety equipment and other safety related require ments such as what to do in case of a spill, what kinds of things in order to contain it , and what kinds of things you need to do in case of an excess exposure, what kinds of people need to be contact ed It s mandated by the Department of Labor At the end of his talk he asked for questions The first employee to speak up was Coontz who asked about pro tective aprons and other protection materials for the em ployees Chosa answered that that subject would be taken care of at a later date Asked was Coontz upset by his response the witness said Coontz was upset, but about what had happened in the past, not by what was happening then and there Maximovich also an employ ee then present recalled that Coontz became a little angry He says yeah that s just the way it goes every time we order or we try to get something and we some how get a run around It is to be noted that the subject of protective aprons was outside the scope of the MSDS sheets With the meeting continuing Simon brought up the subject of physical examinations, but Chosa s first re sponse was to say he knew nothing about that At that point Maximovich, a chemist suggested blood testing the employees, which the Good Year Company was doing with its employees Simon then again spoke about physi cal examinations, asking would the Company give them Chosa s answer to each of these was simply that he did not know about those things Both Maximovich and Simon kept pressing their subjects At one point Maxi movich suggested a blood test every 6 months, and Chosa replied it might be once every 12 months, but still that he did not know Maximovich openly pressed twice for the blood test Simon also was not satisfied with the speakers responses At one point he asked who was going to run the safety thing and who was going to take care of the people " Chosa arswered he was in charge 784 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD The back and forth arguing continued When Simon, after asking for help toward the physical examination idea, was still unsatisfied with Chosa 's evasions Chosa just said that he was dismissed Simon came right back saying Chosa was dismissed ' Chosa s repetition at the hearing that Simon had dis rupted" the hearing was pure exaggeration The truth is that he continued the meeting by asking were there any more questions None came and the meeting was ad journed He even said that Simon spoke too loudly, al lowing no one else to ask questions Simon denied having raised his voice , or having pounded the table I credit his testimony His testimony is directly supported by that of Gary Jones, another employee James Mosey, the production manager, was called to testify by the Re spondent, but he too said he did not recall Simon pound ing the table The Respondent did not file a brief to explain its de fense to this complaint But in the questioning of the var ious witnesses its representative obliquely argued that Simon s misbehavior during the meeting , what Chosa called disruption, was the fact that Simon spoke of safety measures that are outside the scope of the MSDS sheets and that Simon did not , during the meeting, make clear that he was speaking on behalf of all the employ ees, or as an agent of the Union' It was literally a safety meeting in a plant where employment is dan gerous everyday as the Company itself conceded To say that precautions such as blood tests, safety aprons and physical examinations are outside the scope of things to be considered, is farsical And if there is one thing this management knew it is that Simon was the real spokes man for the Union, after listening to him for over 2 years in one meeting after another while the Union kept trying to reach agreement on a collective bargaining contract In sum, I find that the real reason why the Respondent decided to discharge Simon that day was to get rid of the principal spokesman for the Union, and thereby vio lated Section 8(a)(3) and (1) of the Act THE REMEDY The Respondent must be ordered to cease and desist from again committing the kind of unfair labor practice found here Frank Simon must be reinstated to his former position and he must be made whole for any loss of earnings he suffered in consequence of the illegal dis cnmination against him IV THE EFFECT OF THE UNFAIR LABOR PRACTICE ON COMMERCE The activity of the Respondent set forth in section III, above, occurring in connection with the operations of the Respondent described in section I, have a close, inti mate, and substantial relationship to trade traffic, and commerce among the several States , and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce CONCLUSIONS OF LAW 1 By discharging Frank Simon the Respondent has violated and is violating Section 8(a)(3) and (1) of the Act 2 The above described unfair labor practice affects commerce within the meaning of Section 2(6) and (7) of the Act [Recommended Order omitted from publication ]