Barnes Metal Products Co.

National Labor Relations Board - Board Decisions

Sep 8, 1961

133 N.L.R.B. 39 (N.L.R.B. 1961)

BARNES METAL PRODUCTS COMPANY 39'
procedural and organizational, and not substantive, in nature.'3
Accordingly, as Section 4(c) by its terms applies only to substantive
rules ,14 the 30-day notice requirement is not applicable." Moreover,.
in this connection, the Board at the time of publication in the Register
of these amendments added the following statement :
Pursuant to Section 3 (b) the National Labor Relations Board
finds that it is in the public interest and will better effectuate the
purposes of the Act to issue the following rules as soon as possi-
ble, and further finds that compliance with the provisions of
Section 4 of the Administrative Procedure Act (60 Stat. 238;
5 U.S.C. 1003) as to notice of proposed rule making and delayed
effective date is unnecessary in this instance.ie
In sum, we find no validity to this attack upon the propriety of they
effectuation of the delegation. The Board has acted consistently with
applicable statutory authority as delineated in both the National Labor
Relations Act and the Administrative Procedure Act. Accordingly
the motions to dismiss are denied.''
[Text of Direction of Election omitted from publication.]
>s See Attorney General's Manual on the Administrative Procedure Act, p 30, footnote 3.
14 find , p. 13, footnote 5 ; p. 30.
75 Section 4(c) of the Administrative Procedure Act provides as follows
Effective dates.-The required publication or service of any substantive rule (other
than one granting or recognizing exemption or relieving restriction or interpretative
rules and statements of policy ) shall be made not less than thirty days prior to the
effective date thereof except as otherwise provided by the agency upon good cause
found and published with the rule.
16 26 F.R 3885. In any event, the Employer had more than 30 clays' notice of the
Board's delegation and procedure, as the hearing was held on June 16, 1961 , more than
30 days after publication thereof in the Federal Register on May 4, 1961.
17 As the Regional Director after the bearing deferred this case directly to the Board
for ruling on the motions to dismiss and for the Board 's decision on the merits , we find,
in any event, that the Board 's powers under Section 9 of the National Labor Relations
Act were not exercised by the Regional Director in this case, as provided in the delegation.
Barnes Metal Products Company rand Iwan ; Kapeczuk. , Case
No. 13-CA-3842. September 8, 1961
DECISION AND ORDER
On April 24, 1961, Trial Examiner Fannie M. Boyls issued her
Intermediate Report in the above-entitled proceeding, finding that the
Respondent has engaged in and is engaging in certain unfair labor
practices, and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in a copy of the Inter-
mediate Report attached hereto. The Trial Examiner also found
that the Respondent had not engaged in other unfair labor practices
133 NLRB No. 3.
40 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
alleged in the complaint and recommended that such allegations be
dismissed. Thereafter, the General Counsel filed exceptions to the
Intermediate Report and a brief in support thereof.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a. three-
member panel [Members Rodgers, Fanning, and Brown].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed. The
ruling are hereby affirmed. The Board has considered the Intermedi-
ate Report, the exceptions and brief, and the entire record in this case
and hereby adopts the findings, conclusions, and recommendations of
the Trial Examiner.
ORDER
Upon the entire record in the case, and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, Barnes Metal
Products Company, Chicago, Illinois, its officers, agents , successors,
and assigns , shall :
1. Cease and desist from interrogating employees with respect to
their union membership, activities, and sentiments in a manner con-
stituting interference, restraint, and coercion in violation of Section
8(a) (1) of the Act, and from engaging in any like or related unfair
labor practice.
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act :
(a) Post at its plant in Chicago, Illinois, copies of the notice
attached hereto marked "Appendix." 1 Copies of said notice, to be
furnished by the Regional Director for the Thirteenth Region, shall,
after being duly signed by the Respondent's representative, be posted
by the Respondent immediately upon receipt thereof, and be main-
tained by it for 60 consecutive days thereafter, in conspicuous places,
including all places where notices to its employees are customarily
posted.' Reasonable steps shall be taken by the Respondent to insure
that said notices are not altered, defaced, or covered by any other
material.
(b) Notify the Regional Director for the Thirteenth Region, in
writing, within 10 days from the date of this Order, what steps have
been taken to comply herewith.
IT Is FURTHER ORDERED that the complaint be, and it hereby is, dis-
missed insofar as it alleges that the Respondent discriminatorily dis-
charged Iwan Kapeczuk in violation of Section 8(a) (3) and (1) of
the Act.
IIn the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order."
BARNES METAL PRODUCTS COMPANY
APPENDIX
NOTICE TO ALL EMPLOYEES
41
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, you are notified that :
WE WILL NOT interrogate our employees with respect to their
union membership , activities, or sentiments in a manner con-
stituting interference, restraint, or coercion in violation of Section
8(a) (1) of the Act or engage in any like or related unfair labor
practice.
All our employees are free to become or remain or to refrain from
becoming or remaining members of the International Union, United
Automobile, Aircraft and Agricultural Implement Workers of Amer-
ica, AFL-CIO, or any other labor organization.
BARNES MIIrAL PRODUCTS COMPANY,
Employer.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
This proceeding, with all parties represented , was heard before Trial Examiner
Fannie M. Boyls in Chicago , Illinois , on December 5 and 6 , 1960 , on complaint of the
General Counsel and answer of Barnes Metal Products Company, the Respondent
herein . The issues litigated were whether Respondent coercively interrogated em-
ployees concerning their union membership, activities , and desires and discrimina-
torily discharged the Charging Party, Iwan Kapeczuk , thereby violating Section
8(a)(1) and ( 3) of the National Labor Relations Act, as amended , 61 Stat. 136,
73 Stat . 519. Counsel for Respondent and for the General Counsel submitted briefs,
which I have duly considered.
Upon the entire record and from my observation of the witnesses , I make the
following:
FINDINGS OF FACT
1. RESPONDENT'S BUSINESS
Respondent is an Illinois corporation and maintains its principal office and place
of business in Chicago , Illinois , where it is engaged in the manufacture of rain-
carrying equipment and radio tube shields . During the calendar year 1959 , a repre-
sentative period , Respondent, in the course and conduct of its business operations,
sold and shipped goods and materials from its Chicago , Illinois, plant valued in
excess of $50 ,000, directly to points outside Illinois . Respondent 's answer admits,
and I find , that Respondent is engaged in commerce within the meaning of the Act.
I also find that it will effectuate the policies of the Act to assert jurisdiction herein.
H. THE LABOR ORGANIZATION INVOLVED
International Union , United Automobile , Aircraft and Agricultural Implement
Workers of America , AFL-CIO, is a labor organization admitting to membership
employees of Respondent.
42 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The alleged unlawful interrogation
In late 1959, employee Iwan Kapeczuk, whose alleged discriminatory discharge is
discussed infra, met with a representative of the Union for the purpose or organizing
Respondent 's plant and in January 1960 began distributing membership cards among
the employees . Pursuant to a representation petition filed by the Union , the Board
conducted an election at the plant on March 25 , 1960 , which the Union lost.
Two or three weeks before the election , according to the credited testimony of Fore-
man Chester Poliwada ( known in the plant as Polly ), Plant Manager Kowal told him,
"Polly, I hear from the other fellows that John [Iwan] Kapeczuk is bothering the
fellows during working hours and trying to solicit them in the union ." Poliwada
volunteered to talk to Kapeczuk "and find out ." During this conversation , Manager
Kowal told Poliwada he had heard that Kapeczuk "was one of the instigators of the
union."
That same day, Foreman Poliwada said to Kapeczuk , "What is this I hear that you
are an instigator in the union ." Kapeczuk replied , "No, not me." Nothing further
was said at that time . Later, after being informed by Manager Kowal's son, who
was an employee , that Kapeczuk was "for the union " and had approached him during
working hours about the Union , Foreman Poliwada asked Kapeczuk' s working
partner, J. D. (Slim ) McComb , whether Kapeczuk had ever talked to him about
the Union and McComb replied that Kapeczuk had asked him to join it. Poliwada
also asked McComb what he thought of the Union and the latter stated that he did
not want to have anything to do with it.'
It may well be that Plant Manager Kowal 's concern , as he testified , was that
Kapeczuk should not visit employees in other departments , thereby interfering
with production and creating a safety hazard where employees were operating moving
machinery . Foreman Poliwada 's interrogation of Kapeczuk as to whether he was the
"instigator" of the Union and his questioning of employee McComb as to Kapeczuk's
union activities and McComb 's own sentiments about the Union , however , did not
convey Kowal's concern . This interrogation is of the type which normally tends to
interfere with, restrain , and coerce employees in the exercise of their organizational
rights. Later, about 2 days before the election, when Kapeczuk reported to Manager
Kowal that he overheard Foreman Bruno Mazur remarking that management was
going to have a meeting and kick Kapeczuk out of the plant, Kowal told Kapeczuk
that he should not pay any attention to or worry about such statements , that he
was a good worker and Kowal was satisfied with him ; but during the same conversa-
tion , Kowa] told Kapeczuk that he did not think a union was needed in the plant
and he hoped Kapeczuk would vote against the Union . Kowal 's assurances, in
these circumstances , were not, in my view, sufficient to overcome the coercive
effect of Foreman Poliwada 's interrogation of Kapeczuk and McComb . I accordingly
find that such interrogation constituted a violation of Section 8(a)(1) of the Act.
N.L.R.B . v. Jackson Press, Inc., 201 F . 2d 541, 545-546 (C.A. 7).
B. The alleged discriminatory discharge of Kapeczuk
Before his discharge on August 4, 1960, Kapeczuk had been employed by Re-
spondent in its steel department for about 41/a years. He had the greatest seniority
and was the most valuable all-around employee in the department . He was not only
an efficient worker but was the only employee capable of setting up and changing or
adjusting all the machines and gauges.
In July when Kapeczuk requested permission to take his 2 weeks' annual vacation
during a period which conflicted in part with Foreman Poliwada 's planned vacation,
Poliwada told him he could not be spared from the department while Poliwada was
away because there was no one else to perform certain functions such as changing
the machines or putting the size on the slitting machine. It was then arranged that
Kapeczuk would take 1 week of his vacation before Poliwada left and the other week
after Poliwada returned.
On other occasions when Poliwada had been absent from the plant , Kapeczuk had
taken care of all the machines and had also distributed work orders to his fellow
1 The findings in this and the foregoing paragraphs are based upon Poliwada's testimony
when called by the General Counsel under Rule 43(b) of the Rules of Civil Procedure.
Upon being recalled as a witness by Respondent on the following day, Poliwada varied his
testimony In some respects I do not credit It Insofar as it is inconsistent with the testi-
mony given by him on the first day.
BARNES METAL PRODUCTS COMPANY 43
employees and filled. in job record. cards and production records for most of them.
He proceeded to perform the same functions during Poliwada's 1960 vacation period.
On August 1, the beginning of the second week of Poliwada's absence, one of the
steel department employees, John Yarber, complained to Plant Manager Kowal that
Kapeczuk had been issuing orders to him, using abusive language, and trying to run
the shop and informed Kowal that he, Yarber, would not take any orders from
Kapeczuk. Kowal then called Kapeczuk from his machine and requested him to
report any trouble he had to Kowal and not to issue orders to anyone in the depart-
men because he wanted everyone to get along. He especially warned Kapeczuk to
stay away from Yarber 2
On August 4, Kapeczuk approached Yarber for the purpose of obtaining infor-
mation to fill in Yarber's job record card, as Kapeczuk had been doing with respect to
the job record cards of other employees. Yarber resented what he apparently con-
sidered an unwarranted assumption of authority by Kapeczuk and cursed him. The
episode ended with Yarber striking Kapeczuk with a pipe. Kapeczuk thereupon
reported the incident to Plant Manager Kowal.
Kowal investigated the incident and was told by Yarber that "he just couldn't stand"
Kapeczuk any longer; that every time Kowal turned his back, Kapeczuk had attempted
to give him orders and had called him a "dumb hillbilly" and other abusive names; and
that he, Yarber, had lost his temper and struck Kapeczuk. Kowal then discharged
Yarber.
He also discharged Kapeczuk a few minutes later. There is a sharp conflict in
the testimony as to what was said at that time. According to Kapeczuk, when Kowal
informed him that he was being discharged too, Kapeczuk protested that he had done
nothing wrong, that he had merely asked Yarber for information necessary to fill in
the job record card, and that Kowal had replied, "Well, John, we have plenty of
trouble with you about the union."
Kowal, on the other hand, testified that after discharging Yarber, he called
Kapeczuk to the office and asked him why he had been at Yarber's machine; that
Kapeczuk did not reply; Kowal then told him that because of his failure to follow
instructions to stay away from Yarber, he had "created this fight"; and he was being
discharged for failing to follow orders and provoking the "fight." Kowal further
testified that Kapeczuk then accused Kowal of discharging him because of his union
activities, a charge which Kowal denied.
I find Kowal's account of the discharge the more believable and credit it.
Kapeczuk's discharge occurred more than 4 months after the employees had re-
jected the Union in a Board-conducted election and union activities at the plant had
ceased. It is not likely that Kowal's displeasure at discovering Kapeczuk' s part in
the union movement would have influenced his action after the lapse of this number
of months. Nor do I find Kowal's action so unreasonable as to warrant rejection
of his asserted reasons for the discharge? I accordingly find that Respondent did not
violate Section 8(a)(3) or (1) of the Act by discharging Kapeczuk.
W. THE REMEDY
Having found that Respondent has coercively interrogated employees, in violation
of Section 8(a)(1) of the Act, my recommended order will direct that Respondent
cease and desist from engaging in the unfair labor practice found, or in any like or
related unfair labor practice. My recommended order will also direct that Respond-
ent post appropriate notices.
2 The above findings are based on that part of Kowal's testimony which I credit. On
direct examination, Kowal testified that Yarber complained to him again on August 1 and
also on August 2 about Kapeczuk and that each time Kowal repeated his instructions to
Kapeezuk to stay away from Yarber. On cross-examination, Kowal testified that Yarber
complained of Kareezuk only once on August 1 and again on August 3 Kapeczuk denied
that Kowal instructed him to stay away from Yarber I do not credit his denial in this
respect, but I find it unnecessary to decide whether, as Kowal testified, he warned
Kapeczuk more than once to stay away from Yarber
2It is possible that Kapeczuk honestly believed that his union activities were the moti-
vating reasons for his discharge for although he may not have been expressly requested to
act in Foreman Poliwada's place during the latter's absence in 1960, he could reasonably
assume that he was expected to act as he had done on previous occasions when Poliwada
'was absent from the plant; and his contacts with Yarber were in line with his supposed
duties Yarber, while working in another department, had resented taking orders from
another senior worker who had been designated to take over responsibilities in the ab-
sence of the foreman, and it may well be that his resentment of Kapeczuk was entirely
unwarranted.
44 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the basis of the foregoing findings of fact and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. International Union, United Automobile , Aircraft and Agricultural Imple-
ment Workers of America, AFL-CIO, is a labor organization within the meaning
of Section 2(5) of the Act.
2. By coercively interrogating employees with respect to their union membership,
activities , and sentiments , Respondent has interfered with, restrained , and coerced
employees in the exercise of their rights guaranteed in Section 7 of the Act, thereby
engaging in an unfair labor practice within the meaning of Section 8(a)(1) of the
Act.
3. The aforesaid unfair labor practice affects commerce within the meaning of
Section 2 ( 6) and (7) of the Act.
4. The evidence does not establish that Respondent engaged in an unfair labor
practice within the meaning of Section 8 (a) (3) of the Act.
[Recommendations omitted from publication.]
Jimmie Green Chevrolet and Retail Automobile Salesmen, Local
Union No. 501 , affiliated with Retail Clerks International
Association, AFL-CIO. Case No. 23-CA-1133. September 8,
1961
DECISION AND ORDER
On June 26, 1961, Trial Examiner Owsley Vose issued his Inter-
mediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the Intermediate Report
attached hereto. Thereafter the Respondent filed exceptions to the
Intermediate Report and a supporting brief.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Members Leedom, Fanning, and Brown].
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and the brief, and the entire record
in the case, and hereby adopts the findings, conclusions,' and recom-
mendations of the Trial Examiner.
1 We agree with the Trial Examiner that salesman Smith was discharged by Respondent
in violation of Section 8(a) (3) of the Act. Not only was Smith an admittedly exceptional
salesman but his absence from one morning 's floor time , while serious , was also in-
advertent . While Vice President and General Manager Williamson testified that two
other salesmen had been discharged for absenteeism in the past 4 years both were guilty
of unexplained absences for a period of days . One of these was rehired after 6 days and
the other , Trueblood , was allowed to resign . Unlike Trueblood , and contrary to William-
son's statement of company policy, Smith was not permitted to resign . This evidence of
significantly disparate treatment coupled with the Respondent's knowledge of Smith's
union activity and evidence that it suspected him of being the organizer of such activity,
in light of the Respondent 's opposition to the Union , convinces us that the reason assigned
was pretextuous and that the discharge was in fact discriminatory within the meaning of
the Act.
133 NLRB No. 5.