Adam Metal Products Co.

National Labor Relations Board - Board Decisions

Feb 10, 1987

282 N.L.R.B. 1163 (N.L.R.B. 1987)

ADAM METAL PRODUCTS CO
RBB Corp . t/a Adam Metal Products Co. and Nabil
Aboulhosn . Cases 22-CA-13767 and 22-CA-
13960
10 February 1987
DECISION AND, ORDER
BY CHAIRMAN DOTSON AND MEMBERS
JOHANSEN AND BABSON , ,
On 10 July 1986 Administrative Law Judge D.
Barry Morris issued the attached decision. The
General Counsel filed exceptions and a supporting,
brief, and the Respondent filed an answering brief
in support of the judge's decision.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings,' and
conclusions and to adopt the recommended Order.
ORDER
The recommended Order of the administrative
law judge is adopted and the complaint is dis-
missed.
1163
FINDING OF FACT
1. JURISDICTION
Respondent, a corporation with a place of business in
Ledgewood, New Jersey, is engaged in'the manufacture
of metal products, including fluorescent lighting fixture
housings. During the 12 months prior to the issuance of
the complaint, Respondent sold and shipped from its
New Jersey facility goods valued in excess of $50,000 to
consumers located outside the State of New Jersey. Re-
spondent admits that it is an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of
the Act, and I so find. In addition, Local 1158 Interna-
tional Brotherhood of Electrical Workers (Union) is a
labor organization within the meaning of Section 2(5) of
the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Issues
The issues are:
I ., Did Respondent discharge its employee, Nabil
Aboulhosn, because of his activity on behalf of the
Union, in violation of Section 8(a)(3) and (1) of the Act?
2. Did Respondent file a civil lawsuit against Aboul-
hosn that lacks a reasonable basis in fact and law, in vio-
lation of Section 8(a)(4) and (1) of the Act?
B. The Facts
i The General Counsel has excepted to some of the judge's credibility
findings The Board's established policy is not to overrule.an administra-
tive 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 re-
versing the findings.
Gary A. Carlson, Esq., for the General Counsel.
Melvin L. Gelade, Esq. (Apruzzese, McDermott, Mastro &
Murphy), of Springfield, New Jersey, for the Respond-,
ent.
DECISION
STATEMENT OF THE CASE
D. BARRY MORRIS, Administrative Law Judge. This
case was heard before me in Newark, New Jersey, on 30
January 1986. On charges filed on 25 March and 31 July
1985,1 a complaint was issued on 28 June and amended
on 30 September, alleging that RBB Corp, t/a Adam
Metal Products Company (Respondent) violated Section
8(a)(1), (3), and (4) of the National Labor Relations Act
(Act). Respondent filed an answer denying the commis-
sion of the alleged unfair labor practices.
1. Events prior to discharge
Aboulhosn was employed as a leadman in the shipping
and receiving department of Respondent. He reported, to
Joseph Sciarrillo, the plant manager. At the time of
Aboulhosn's discharge in March 1985 approximately 35-
40 employees worked for Respondent.
In March 1983 the Union engaged in an organizing
campaign at Respondent's plant. Aboulhosn felt that "we
didn't really need a union" and he distributed a letter en-
couraging other employees not to vote for the Union. He
was asked by Respondent to be an election observer on
behalf of the Company. The Union lost the election.
In March 1984 the Union again began organizing at
Respondent's premises, at which time Aboulhosn signed
an authorization card for the Union. During that lime a
rule was posted in the warehouse regarding incoming
calls to employees. Aboulhosn did not receive a call,
which he was upset about, and he reported this to Sciar-
rillo, Aboulhosn testified that Iater that day, Ray Bent-
ley, president of Respondent, explained to him the reason
why the Company felt that incoming calls had to be cur-
tailed. Aboulhosn further ,testified that Bentley told him:
{S}omeone told him that this would be another vote
for the union, which I said that I did not make the
statement and he said to me that if I know you
would say something like this. ... I'll fire you
right away.
i All dates refer to 1985 unless otherwise specified
On 30 May 1984 Aboulhosn's attorney wrote a letter to
Bentley in which the attorney referred to Aboulhosn's
282 NLRB No. 133
1164 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"feeling that because of some of the recent organization-
al efforts that took place in your plant, he may have
`fallen from grace' and feared that his job is in jeop-
ardy."
On 9 November 1984 Joe Calabro, organizer for the
Union , sent a letter to Respondent 's employees inquiring
whether they were still interested in being represented
by the'Union. A month later Aboulhosn telephoned Ca-
labro and asked "when he's going to show up to give
more cards." Aboulhosn called Calabro again in Febru-
ary 1985 to, inquire when he would come to the plant.
Calabro replied that he would be at the plant during the
first week of March.
Aboulhosn testified that on 11 March he signed a new
authorization card at home and he mailed it from home
to the Union. He also testified that Calabro gave him
several authorization cards for distribution. He testified
that he spoke to "four or five employees about the union
and I gave them the cards." He stated that he distributed
these cards inside the plant during the second week of
March, that no supervisors were present, and that he did
not want management to know what he was doing.
Aboulhosn testified that during the union campaign in
1984 his signing of the card was his only activity on
behalf of the Union.
Aboulhosn testified that he was informed of his last
pay raise in December 1984, which was effective 1 Janu-
ary 1985. He testified that when Sciarrillo informed him
of the pay raise, he asked:
[I]f I am still pro-union, so I said to him that there
are a few things in this company that I would like
to see . . . improve, and I would rather see them
improve without the need for having a union.
2. Discharge
Aboulhosn was discharged on 22 March. He testified
that on 21 March he was called into Bentley's office, at
which time Bentley; Weir, the controller, and Sciarrillo
were present. Bentley told Aboulhosn that he had re-
cently discovered that Aboulhosn had "cost the compa-
ny over four hundred dollars in telephone bills." Aboul-
hosn admitted the use of the telephone and offered to re-
imburse the Company. Bentley asked Aboulhosn how he
was going to pay the money and Aboulhosn replied,
"[Y]ou have my paycheck." Aboulhosn further testified
that, "When I offered to pay back the money Mr. Bent-
ley said it is just like a bank robber being caught in the
action and offering to pay the money back." Aboulhosn
testified that Sciarrillo was aware of other employees
also using the telephone for personal calls and testified
that in April 1984 Bentley told him "I had a telephone in
my office which I can use and no one around here moni-
tors the phone."
Bentley testified that in late February or early March,
Weir made him aware of the fact that certain employees
were making excessive personal telephone calls. A week
later he received a report from Weir showing the fre-
quent calls to Aboulhosn's home phone number and his
wife's phone number. Bentley testified, as follows:
Q. Did Mr. Weir tell you about any other phone
numbers that were recurring with frequency on the
bills?
A. There didn't appear to be any others that had
any frequency other than the normal business calls,
like the truckers or customers or anything of that
consequence.
Brentley denied that he threatened Aboulhosn in April
1984 concerning his union activity. He also denied that
he ever gave Aboulhosn permission to use the Compa-
ny's phone for personal reasons. He corroborated Aboul-
hosn's testimony that after being confronted with the
number of telephone calls, Aboulhosn offered to reim-
burse the Company, and said that Bentley "could take it
out of his pay." Bentley further testified:
Q. When you terminated Mr. Aboulhosn on
March 22nd, did you mention anything with respect
to his offer to pay you back the cost of the calls?
A. Well yes, I made a remark to him.. . . I lik-
ened it to someone that robbed a bank and got
caught on the corner with the money bag and of-
fered to give it back to the cop if he'd let him go,
and I said I didn't feel that was fair.
Sciarrillo testified that he was not aware of any union
activity in December 1984 and that at the time he in-
formed Aboulhosn of the impending raise he did not ask
him whether he was still with the Union. Sciarrillo
stated that in March 1985 he saw the union organizers
handing out authorization cards. Sciarrillo further testi-
fied:
Q. Didn't [Joan] Sperry tell you that Mr. Aboul-
hosn was out there talking to the union organizer?
A. No.
Q. You asked Ms. Sperry whether Aboulhosn
was out there , didn't you?
A. No I did not.
Joan Sperry, who at the time of the hearing was em-
ployed by Respondent, was not called as a witness.
3. Conclusions
Aboulhosn appeared to me to be a credible witness. I
credit his testimony that Bentley made an antiunion
statement to him in April 1984. Although Bentley denied
even referring to Aboulhosn 's union activities in that
conversation , in view of the fact that Aboulhosn was so
concerned about the conversation that he contacted his
attorney and his attorney wrote to Bentley about the
matter, it seems probable that Bentley did make some
reference to Aboulbosn 's union activity . With respect to
Aboulhosn 's testimony that Bentley gave him permission
to use the telephone for personal calls, Bentley denied
that he ever gave such permission. Because the Company
had a rule against "use of company telephones for per-
sonal business without permission of the supervisor," it is
unlikely that Bentley gave Aboulhosn blanket permission
to use the telephone for personal reasons. I, therefore,
conclude that the General Counsel has not shown by a
ADAM METAL PRODUCTS CO. 1165
preponderance of the evidence that Aboulhosn was
given such permission. In addition, although Aboulhosn
testified that in December 1984 Sciarrillo asked him
whether he was "still pro-union," Sciarrillo denied this.
Again, I conclude that the General Counsel has not
shown by a preponderance of the evidence that Sciarrillo
made such a statement.
In December 1984 and again in February 1985 Aboul-
hosn contacted the, union organizer. There is no evidence
in the record that Respondent knew of these telephone
calls by Aboulhosn to the Union. Although Aboulhosn
signed an authorization card in March 1985, he did it at
home and mailed it to the Union. Again, there is no evi-
dence in the record that Respondent knew that he signed
an authorization card. Also during March, Aboulhosn
distributed four or five authorization cards to fellow em-
ployees. He testified that he spoke to the, employees
inside the plant, that no supervisors were,present, and
that he did not want management to know what he was
doing. There is no evidence in the record that Respond-
ent knew that Aboulhosn handed out these authorization
cards.
In order to find a violation of Section 8(a)(1) and (3)
of the Act, it is essential that it be shown that Respond-
ent knew of Aboulhosn 's union activities. NLRB v.
Burn up & Sims, Inc,, 379 U.S. 21; 23 (1964); Tri-State
Truck Service v. NLRB, 616 F.2d 65, 69 (3d Cir. 1980).
There is no evidence in the record that Respondent
knew of Aboulhosn' s union activities., On, the contrary,
Respondent knew that in 1983 Aboulhosn expressed sen-
timents against the Union and, in fact, Respondent chose
him to be the Company's election observer. Aboulhosn
testified that his only union activity in March 1984 was
signing the authorization card. I have already found that
there is no evidence in the record that Respondent knew
of Aboulhosn's, telephone calls to the union organizer in
December 1984 and in February 1985, nor did Respond-
ent know of Aboulhosn's handing out the four or five
authorization cards in March 1985. Accordingly, I find
that the General Counsel has not made a showing that
Respondent knew of Aboulhosn's union `activities.
I find that in late February or early March Bentley
was informed by the Company's controller that excessive
telephone calls were being made. A week later he re-
ceived a report that showed numerous personal phone
calls made by Aboulhosn. When Bentley confronted
Aboulhosn with this information, Aboulhosn did not
deny makking the calls, but instead offered to reimburse
the Company by having Respondent deduct the amount
due from his paycheck. Counsel for Respondent main-
tains that under New Jersey law it is unlawful. to with-
hold any portion of an employee's wages for such pur-
pose. The General Counsel does not dispute this conten-
tion. 2
2 The General Counsel's brief states that the applicable statue provides
that "no employer may withhold or divert any portion of an employee's
wages unless- (a) the employer is required or empowered to do so by
New Jersey or United States Law; or (b) the amounts withheld or divert-
Based on the above I find that the General Counsel
has not shown by a preponderance of the evidence that
Respondent violated Section 8(a)(1) and (3) of the Act
by discharging Aboulhosn. Moreover, even were it es-
tablished that protected conduct was a motivating factor
in Respondent's decision to discharge Aboulhosn, I be-
lieve that Respondent has demonstrated that because of
Aboulhosn's excessive use of the telephone for personal
reasons the discharge would have "taken place even in
the absence of the protected conduct." Wright Line, 251
NLRB '1083, 1089 (1980), enfd. 662 F. 2d 899 (1st Cir.
1981), cert.,denied 455 U.S. 989 (1982).
4. Filing of civil lawsuit
On 22 July Respondent filed a lawsuit in Superior
Court of New Jersey alleging that Aboulhosn made "nu-
merous personal telephone calls on company time with-
out authorization." The complaint in the instant proceed-
ing alleges that Respondent violated Section 8(a)(4) of
the Act by filing the civil action because it "lacks a rea-
sonable basis in fact or law." The testimony indicates
that in April, when Aboulhosn was confronted by Bent-
ley with the telephone report, Aboulhosn `did not deny
making the telephone calls,and, indeed, offered to reim-
burse the Respondent. The record thus shows that
Aboulhosn did make "numerous personal telephone
calls" without authorization. Accordingly, the General
Counsel has not made 'a showing that the suit "lacks a'
reasonable basis in fact or law." Therefore, the allegation
must be dismissed. See Bill Johnson's Restaurants R
NLRB, 461 U.S. 731 (1983).
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of'Section 2(2), (6), and '(7) of the
Act.
2. The Union is a labor, organization within the mean-
ing of Section 2(5) of the Act.
3. Respondent has not engaged, in the unfair labor
practices alleged in the complaint.
On these findings of fact and conclusions of law, and
on the entire record , I issue the following recommend-
ed3
ORDER
The complaint is dismissed.
ed are for - eight situations in which such withholding or diversion is
lawful, none of which are applicable . to the present rase" (Emphasis
added)
a If no exceptions are filed as provided by Sec 192.46 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