Ben Peckin Corp.

National Labor Relations Board - Board Decisions

Apr 9, 1970

181 N.L.R.B. 1025 (N.L.R.B. 1970)

BEN PEKIN CORP. 1025
Ben Pekin Corporation and Walter John Churinoff.
Case 13-CA-8888
April 9, 1970
DECISION AND ORDER
BY MEMBERS FANNING, BROWN, AND JENKINS
On October 27, 1969, Trial Examiner James V.
Constantine issued his Decision in the above-entitled
proceedings, finding that 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 attached Trial Examiner's Decision.
Thereafter, Respondent filed exceptions to the Trial
Examiner's Decision and a supporting brief, and the
General Counsel filed cross-exceptions, and a brief
in support of cross exceptions and in answer to
Respondent's brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a
three-member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions, the briefs, and
the entire record in this case, and hereby adopts the
Trial Examiner's findings, conclusions, and
recommendations with the following modifications.
We agree with the Trial Examiner that Churinoff
was discharged in violation of Section 8(a)(1).
However, we find it unnecessary to pass on the Trial
Examiner's conclusion that Churinoff and the other
janitors employed by Respondent were entitled to a
$75 a month raise. The record shows that on
December 31, 1968, Respondent's janitors received
pay increases amounting to $27 a month effective
December 1, 1968 However, it is clear from the
record that Churinoff thought that he and his fellow
employees were entitled to an increase of $75, and
in an attempt to secure for himself and his fellow
employees the full benefits of this amount, he
attempted to contact his business agent. Being
unsuccessful in his initial efforts, Churinoff went to
Union Vice President Van Heck under the
impression that $75 was the amount of the increase
to which the janitors were entitled. It was during
this conversation that Churinoff, alarmed and
suspicious over not having received the $75 pay
raise, asked Van Heck if there had been some sort
of a pay off between Respondent and the Union
business agents. On these facts, we do not believe
that the actual amount of the pay increases is a
critical factor. Rather, we believe the critical
question is whether Churinoff was acting in good
faith on behalf of himself and his fellow employees
for rights he thought they all were entitled to In our
opinion, the record supports the conclusion that
Churinoff was at all times acting in good faith and
that his conduct falls within the limits of concerted
activity as set forth in Section 7 of the Act. To hold
otherwise, because of a genuine mistake of fact on
the part of an employee, would severely curtail
employees' rights to act on behalf of themselves and
their fellow employees. As Churinoff was engaged in
a protected activity on behalf of himself and his
fellow employees, and in view of the fact that the
allegation of a "payoff" was made in the context of
this activity, the remark was part of the protected
activity unless, as the Trial Examiner properly
noted, it was so offensive, defamatory or
opprobrious as to remove it from the protection of
the Act. Like the Trial Examiner, however, we agree
that the remark alleging a payoff, taken in the total
context of the case herein, was not so defamatory or
opprobrious as to isolate the allegation from the
related protected activity.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby adopts as its Order the
Recommended Order of the Trial Examiner, and
orders that the Respondent, Ben Pekin Corporation,
Westmont, Illinois, its officers, agents, successors,
and assigns, shall take the action set forth in the
Trial Examiner's Recommended Order.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
JAMES V CONSTANTINE, Trial Examiner. This is an
unfair labor practice case brought pursuant to Section
10(b) of the National Labor Relations Act, herein called
the Act. 29 U S C 160(b) It was initiated by a complaint
issued on April 30, 1969, and an amended complaint
issued on June 27, 1969, by the General Counsel of the
National Labor Relations Board, herein called the Board,
through the Regional Director for Region 13 (Chicago,
Illinois) Said complaints name Ben Pekin Corporation as
the Respondent. They are based on a charge filed on
February 6, 1969, by Walter John Churinoff, the
Charging Party
Essentially the complaints allege that Respondent has
engaged in unfair labor practices violating Section 8(a)(1)
and (3), and that such conduct affects commerce within
the meaning of Section 2(6) and (7), of the Act.
Respondent has answered denying that it committed any
violations of the Act.
Pursuant to due notice this case came on to be heard,
and was tried before me, at Chicago, Illinois, on August
12 and 13, 1969. All parties were represented at and
participated in the trial, and were afforded full
opportunity to introduce evidence, examine and
cross-examine witnesses, file briefs, and offer oral
argument. Respondent's motion to dismiss at the close of
the General Counsel's case, and again at the close of the
entire case, was denied. I reserved decision on the
181 NLRB No. 165
1026 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent's motion to find for it This latter motion is
hereby denied. Respondent and the General Counsel each
has submitted a brief.
This case presents the issues of whether Respondent
discharged' Walter John Churinoff, the Charging Party,
for engaging in union activities, or other protected
activities, .or both, or whether he was terminated for
cause
Upon the entire record in this case, and from my
observation of the witnesses, I make the following-
FINDINGS OF FACT
1. JURISDICTION
Respondent, an Illinois corporation, is engaged in
Illinois in the business of constructing apartment buildings
and residential homes and also of operating apartment
buildings in Illinois . One of the apartments it operates,
called Fountainhead Apartments, is located at 59th and
Cass Avenue, Westmont, Illinois During 1968 the gross
revenues from the apartment buildings operated by
Respondent exceeded $500,000. It was stipulated at the
hearing that Respondent was engaged in "`commerce' as
the Board defined it in" Karl Gerber, d/b/a Parkview
Gardens, 166 NLRB No 80 Accordingly, I find that
Respondent is engaged in commerce within the meaning
of Section 2(6) and (7) of the Act, and that it will
effectuate the purposes of the Act to assert jui indiction
over Respondent in this proceeding
II THE LABOR ORGANIZATION INVOLVED
Chicago Flat Janitors Union, Local No. 1, Service
Employees' International Union, AFL-CIO, herein called
Local No. 1 or the Union, is a labor organization within
the meaning of Section 2(5) of the Act
III THE UNFAIR LABOR PRACTICES
A. General Counsel's Evidence Respecting the Unfair
Labor Practices
Walter John Churinoff was hired to be employed at
Respondent's Fountainhead Apartments in Westmont,
Illinois, as a flat janitor beginning about July 1967. Before
that he had worked elsewhere as a janitor for about 15
years. His immediate supervisor at Fountainhead
Apartments was Harry Pasquinelli. I find that Pasquinelli
at all times material herein was a supervisor within the
meaning of Section 2(11), and an agent of Respondent
within the meaning of Section 2(13), of the Act
Churinoff has belonged to Local No 1 for about 17
years In late 1968 he was notified in writing by the Union
that apartment house janitors were to receive an increase
in wages. Churinoff then brought this to the attention of
Supervisor Pasquinelli sometime in December, 1968, by
telling the latter that he, Churinoff, had received notice
from the Union that "We [janitors] were to receive an
increase in wages " Replying that he had not heard about
it, Pasquinelli promised to look into it Thereafter
Churinoff "had many discussions with Mr Pasquinelli on
the subject of an increase."
On a Sunday morning in December 1968, following
Churmoffs receipt of the above notification from his
union, he was called by Pasquinelli to Respondent's
administration building. Pasquinelli said that "he had the
idea" of terminating janitors Jankowski and Joe and
transferring their duties to Churinoff and janitor Buzick.
Continuing , Pasquinelli added that he would ask President
Ben Pekin to grant Churmoff and Buzick an increase in
wages if this was consummated . Churinoff replied that he
"didn't think the Union would go for that ." Thereupon
Pasquinelli answered that he would "speak to the business
agent about it and see what could be done " Finally,
Pasquinelli added that he did not believe that
Respondent ' s janitors would receive the full $75 a month
raise which they had "hoped for "
Prior to December 1968, Churinoff ' s gross pay for a
half month had been $334. However , for the half month
period ending December 31, 1968, it had risen to $347.50.
See General Counsel's Exhibit 4A to 4D. Thereupon
Churmoff complained to Pasquinelli that he, Churinoff,
"was not getting a raise that we felt was due to us."
(However, Churmoff's gross pay after December 31, 1968,
was but $347.50 each half month , as disclosed by General
Counsel's Exhibits 6A, 6B , and 6C ) Pasquinelli replied
that a raise "would be retroactive to the first of
December, if and when [the janitors ] got it ." This caused
Churinoff to comment that he would call the Union to
"find out what was going on." But Pasquinelli requested
Churinoff not to call the Union and promised to see what
he, Pasquinelli , "could do to find out about getting [the
janitors ] a raise."
Some time after this conversation Churinoff telephoned
to Peter Loren and Sol Gault , both of whom are business
agents of the Union, but could not reach them . Then he
telephoned to Ray Van Heck, the union's vice-president,
and asked the latter whether janitors were entitled to a
raise of $75 a month Van Heck replied that "according
to the Union contract , [janitors] were to receive that
raise." This caused Churinoff to ask , " Is there a pay-off
here9" Later Business Agent Gault telephoned Churinoff
that on the following Monday a "meeting " would be held
at Fountainhead ' s administration building, and invited
him to attend
Churinoff went to that "meeting ." Also present were
janitors Jankowski , Birg, and Buzick , Business Agents
Gault and Loren, Supervisor Pasquinelli, and
Respondent 's office employee Ellen Verre . It was opened
by Gault's asking the janitors why they were unhappy
with their raises Then Gault said that no greater raise
would be granted and that the janitors could "take or
leave" the increase already inaugurated . Gault also asked
who had made an allegation about a payoff, and denied
there was a payoff.
About January 16 , 1969, Pasquinelli told Churinoff that
President Pekin was "very displeased with the fact" that
Churmoff was "inquiring about the raise", that, "in the
interest of peace, " Churmoff could quit if he, Churmoff,
so desired , and that if he did not quit, Churinoff would be
fired Further, Pasquinelli said that Churinoff was causing
ill feeling, unrest , and unhappiness among the flat janitors,
and that he, Pasquinelli , "had to let [Churinoff] go "
At the January 16, 1969, conversation between
Pasquinelli and Churinoff, described above, Pasquinelli
also mentioned that he had talked to Respondent's
President Pekin and that "Mr . Pekin didn't like the idea
that someone had suggested that he had made pay-offs to
the Union , that it wasn ' t true; and Mr. Pekin didn ' t like it
at all." Pasquinelli then, "because Mr. Pekin didn't like
it," gave Churinoff "a choice of quitting or being fired,"
and, if Churinoff resigned , Pasqumelli offered to ask the
Union to obtain a better job for Churmoff Churinoff
BEN PEKIN CORP.
declined this offer, refused to quit , and stated that if he
was fired he had to be notified in writing at least 2 weeks
in advance and that a copy of the notice be sent to the
union ' s business agent.
The next day Pasqu i nelli served such a notice on
Churinoff . In substance it reads as follows:
You are hereby notified that fifteen days from the
above date your services as a janitor at the
Fountainhead apartments , (Owned and operated by the
Ben Pekin Corporation ) will no longer be needed.
The reason for this dismissal is as follows When the
new union contract and raises became effective January
1st, 1969 , you let be known through your words and
actions that you were not entirely satisfied with your
new pay scale , along with the services required of you
as an employee at the Fountainhead apartments
It is therefore our contention that a unhappy
employee could tend to cause unrest with co workers,
which in turn could cause the efficiency of services
rendered to tenants to become inadequate . (See G C.
Exh. 5.)
Churinoff notified the Union thereof It sought to obtain
another job for him
On February 15, 1969 , Churinoff was terminated as a
janitor by Respondent.
After Churinoff became dissatisfied with the amount of
the raise received by the janitors he complained about it
to Ray Van Heck , a Union official . In that conversation
Churinoff asked Van Heck whether Respondent's
President Pekin "had in some way paid oft" Sol Gault, a
business agent of the Union. Churinoff made a similar
comment to Buzick , a fellow janitor By this interrogation
Churinoff was "raising the question about the honesty of
Mr Pekin and the honesty of Sol Gault ." This question
to Van Heck was propounded prior to January 16, 1969,
and also about a week prior to the "meeting " between the
Union and Respondent mentioned above. At that
"meeting" Gault denied there was a "pay-off" and asked
"who had made that allegation "
Doris Churinoff , Walter's wife, spoke to Pasquinelli on
January 16, 1969, after learning that Walter had been
fired , seeking to ascertain the reason for Walter's
discharge . Pasquinelli told her that "Not only did
[Walter ] go to the Union , but [Walter ] went to the
vice-president." Mrs. Churinoff was employed by
Respondent in its office at the time
B Respondent 's Evidence
1. Harry J Pasquinelli ' s testimony
Pasquinelli is Respondent ' s manager . I have already
found that he was at all times material a supervisor and
agent of Respondent . His testimony on behalf of
Respondent follows
In late December 1968, Walter Churinoff spoke to
Pasquinelli about a wage increase for the janitors at the
Fountainhead Apartments . Although Churinoff asked
what they would be receiving in additional wages,
Pasquinell i replied that he did not know. Nevertheless
Churinoff showed him a document revealing a schedule of
wage increases for janitors ; and Churinoff also asserted
that as of December 1, 1968, janitors were to receive a
wage increase of not less than $75 a month . Churinoff
further claimed that he was entitled to a $75 a month
raise in pay The foregoing schedule, according to
Pasquinelli , affected Respondent . Then Churinoff
1027
indicated that Respondent's janitors would not get the $75
a month increase they "had coming," and stated that
"Ben Pekin must have bought off the Union to get the
wage that he [Pekin ] wanted " Pasquinell i replied, "I
wouldn't make statements like that unless I really know
what I was talking about ." Later Pasquinelli reported
"that information" to President Pekin He did not do so
immediately because Pekin was out of town at that time
About January 16, 1969, Pasquinelli told Churinoff that
both President Pekin and Pasquinelli were "not happy
with the job" which Churinoff "was doing" and asked
Churinoff to resign . However, Churinoff refused and
insisted that he could be terminated only by being fired by
a 15-day written notice . When Churinoff asked if his
"accusing Ben Pekin of buying off the Union had
anything to do with [the ] firing," Pasquinelli replied that
"it had a strong bearing on it." Subsequently Pasquinelli
called the Union about whether a written notice to dismiss
Churinoff was required He was informed to give such a
notice to the employee discharged and to serve the Union
with a copy thereof
A "meeting" to discuss the wage increase for janitors
was held between Respondent and the Union prior to
January 16 , 1969. Churinoff and Pasqu inelli were among
those present Before this Churinoff had discussed the
wage increase "a couple of times" with Pasquinelli
By letter dated January 17, 1969, Pasquinelli discharged
Churinoff for "words and actions" demonstrating that the
latter was "not entirely satisfied with your new pay
scale . " See General Counsel's Exhibit 5
2. Ben Pekin's testimony
Pekin is president of Respondent and its chief operating
official . An abridgment of his testimony is set forth below.
Shortly before Christmas 1968, Pekin took a vacation
He returned about January 6, 1969 . The next day
Pasquinelli , the manager , told Pekin that Chur inoff was
"unhappy with the negotiated settlement [Pekin] had with
the Union " and had "accused [Pekin] of buying the Union
official to achieve a satisfactory settlement " Pekin replied
that he would inform union official Sol Gault of "that
fact" and also insisted that Churinoff be fired immediately
Pekin made the decision to discharge Churinoff About
January 8, 1969, Pekin did call Gault
Sometime between January 13 and 15, 1969, Pekin
asked Pasquinell i if the latter had discharged Churinoff
Pasquinell i replied that he had not because the Union had
not yet found a replacement. Thereupon Pekin ordered
Pasqumelli to fire Churinoff immediately and directed
Pasquinelli to perform Churinoff's duties until a
replacement could be obtained Pasquinelli said he would
comply. However, Pekin did not ask Pasquinell i to send a
dismissal letter to Churinoff and did not see such a letter
(G. C Exh 5) before i t was sent out
Although Respondent does not have a written
collective - bargaining contract with the Union , it does have
a "relationship" with the Union That is to say,
Respondent recognizes the Union as the
collective - bargaining agent for the janitorial employees of
the Ben Pekin Corporation , and has an oral agreement
with the Union concerning wages, hours, and working
conditions of those employees
1028 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
C Concluding Findingc and Discussion
It is my opinion, and I find, that Churinoff was
discharged by Respondent for accusing its president,
Pekin, of bribing a union agent to obtain a wage increase
less than that called for by the union's contract; that such
accusation was made while Churinoff was engaged in
protected concerted activities; and that under the
circumstances such discharge contravenes Section 8(a)(1)
of the Act. Further, I find that Churinoff was not
terminated for engaging in union activities , and, therefore,
Respondent did not violate Section 8(a)(3) of the Act by
discharging him. This is because the record is silent that
he was involved in union activities at any material time
These ultimate findings are based on the entire record and
the ensuing subsidiary facts, which I hereby find:
1. Respondent recognized the Union and had an oral
collective-bargaining agreement with the Union covering
Respondent's flat janitors. While said contract was not
reduced to writing, it nevertheless was valid between the
parties The fact that said oral contract was ineffective to
serve as a contract bar to a representation petition does
not affect the foregoing conclusion American Hoist
Company, 87 NLRB 654; West Coast Steel Works, 144
NLRB 1449, 1452 Since this oral contract was binding
and enforceable as between the parties, Respondent was
under a legal obligation to compensate its janitors the
wages payable thereunder
2. 1 also find that the wages payable under the
foregoing contract were increased as of December I, 1968,
and that the raise coming to Churinoff and other janitors
employed by Respondent was $75 a month Churinoff so
informed Respondent's manager, Pasquinelli, in a few
conversations relating to said increases , and Pasquinelli in
one of these discussions replied that such raises would be
retroactively reflected in paychecks due thereafter. On one
occasion Pasquinelli asserted that the janitors would not
receive the full $75 a month increment. In this respect I
credit Churinoff and do not credit Pasquinelli's testimony
insofar as it is inconsistent therewith.
These conversations between Churinoff and Pasquinelli
constituted protected concerted activity inasmuch as they
related to a raise in wages for janitors. Churinoff had
verified his information concerning the amount and timing
of the increases by calling Union Vice President Van
Heck. While it is true that ordinarily union officials
should police collective-bargaining contracts, and that
employees may not "go over the head of a bargaining
agent" to press personal claims, I find that Churinoff in
the above-mentioned discussions with Pasquinelli was
urging, on behalf of all Respondent's janitors, that the
employer abide by contract terms Bunney Bros
Construction Company, 139 NLRB 1516, 1519 R J
Tower, 144 NLRB 445, is distinguishable . This is a
protected concerted activity safeguarded by the Act.
Farmers Union Co-Operative, 145 NLRB 1, 3; Rotax
Metals, Inc, 163 NLRB 72, 79-80, Top Notch Company,
145 NLRB 429. In Norfolk Conveyor Division, 159
NLRB 464, 468, relied on by the Respondent, it was
expressly found that the employee there involved was
pursuing a personal claim and that such was not a
protected concerted activity. It is thus not controlling but,
rather , is quite distinguishable.
3 Churinoff also was engaged in protected concerted
activities when he attended the meeting, at which both
union and company officials were present, at which the
alleged inadequacy of the new raise in pay was debated It
is true that at this session Gault, one of the union business
agents present, informed the janitors that the increase they
were then receiving would not be augmented and that they
had to "take or leave" the raise already granted to them.
But this did not convert or otherwise change the protected
nature of the meeting into an unprotected session.
4. Since Churinoff was engaged in protected, concerted
activities in the various discussions in which he
participated, including the one with Vice President Van
Heck in which Churinoff inquired if there had been a
payoff, he was entitled to question and attack motives in
such discussions. This is true even though Churmoff's
manner of inquiring, or the content of the questions, may
be irritating to his employer, so long as such irritating
conduct occurred during the protected activities Poloron
Products, 177 NLRB No 50, R C Can Company, 144
NLRB 210, 218, enforcement denied on this issue in 340
F 2d 433 (C A 5).
It seems fairly clear now that offensive, vulgar,
defamatory, or opprobrious remarks uttered during the
course of protected, concerted activities will not
automatically destroy the right conferred by the Act to
engage in conduct otherwise safeguarded by its text Santa
Fe Drilling Company v N L R B 416 F 2d 725 (C A 9);
Socony Mobil Oil Company, Inc, 153 NLRB 1244, 1247;
Bettcher Manufacturing Corporation, 76 NLRB 526;
Reeves Brothers, Incorporated, 116 NLRB 422, 434-435;
Butcher Boy Refrigerator Door Company, 127 NLRB
1360, 1368; Nachman Corporation, 144 NLRB 473, 475
fn. 6. Cf Murray-Ohio Mfg Co, 148 NLRB 1541, 1550.
N L R B v. Clearwater Finishing Co, 203 F.2d 938 (C.A
4), is distinguishable
This concept, i e , that offensive conduct or statements
are protected when made during activities shielded by
statute, has been adopted in other branches of the law
dealing with other statutory rights of employees. See
Fulton Lodge No 2, i A M v Nix, 415 F 2d 212 (C A.
5)
Consequently, it is my opinion, and I find, that
Churinoff's alluding to a payoff must be considered as
secured by the Act unless it is so flagrant, violent, or
extreme as to render him unfit for further service
NLRB v. Illinois Tool Works, 153 F 2d 811, 815-816
(CA. 7) See Socony Mobil Oil Company, Inc, 153
NLRB 1244, 1247 However, upon the authority of the
Board decisions cited above, I find that Churinoff's
suggestion of bribery was insufficient to render him unfit
as an employee, so that it did not justify his discharge Cf
Salant & Salant, Inc , 92 NLRB 417, 451-453; Tracy
Towing, 166 NLRB No 9. Nehi-Royal Crown
Corporation, 178 NLRB No 19, does not require a
contrary conclusion To the extent that Bowling Green
Manufacturing Company v N L R B, 416 F.2d 371 (C.A
6), may not be consonant with the analysis made by me in
the instant case, I am unable to follow it; for I am bound
by Board decisions until they are reversed by the Supreme
Court of the United States, even though the Board
decisions are rejected by courts of appeals Iowa Beef
Packers, Inc , 144 NLRB 615, 616 In Bowling Green,
supra, the Board found the conduct there described to be
protected under the Act. See 169 NLRB No. 15.
I do not condone Churinoff's intemperate statement,
nor intimate that I approve of its oral publication. But the
question is whether that declaration disqualifies him from
enjoying rights extended to employees by the Act, and not
whether his utterances comply with normal standards of
decency. Indiana Gear Works, 156 NLRB 397, 401,
BEN PEKIN CORP.
enforcement denied 371 F 2d 273 (C A 7). As found
above, I am convinced that he did not exceed limits of
free speech and communication guaranteed by the Act as
interpreted by the Board's decisions.
Crown Central Petroleum Corporation, 177 NLRB
No 29, relied on by Respondent, actually supports the
General Counsel's position that Churinoff was unlawfully
terminated In Indiana Gear Works v. N L R B , 371 F 2d
273 (C.A 7), cited by Respondent, the Board held the
offensive conduct there involved to constitute part of the
protected concerted activity. 156 NLRB 397, 400-401
Although the court of appeals denied enforcement, I
nevertheless am bound by the Board's holding Hence I
am constrained to ignore the Court's decision And in
Norfolk Conveyor Division, 159 NLRB 464, 468, another
precedent referred to by Respondent, the Board found
that (a) certain conduct there depicted, for which the
employee was fired, did not amount to protected, concerted
activity, and (b) the employee was not discharged for other
conduct which was considered to be protected, concerted
activity Hence this last authority does not control the
disposition of the instant case
5. Finally, I find that Respondent entertained no
antiunion animus and that it demonstrated no opposition
to employees who participated in other protected,
concerted activities As a result I am persuaded, and find,
that Churinoff was not discharged solely or in substantial
part for union activity or because he asked Respondent to
grant wage increases to its janitors which he reasonably
believed had been negotiated by his union, Local No I
Accordingly, I find that Churinoff was discharged
exclusively for his alleged misconduct and that said
misconduct was not used as a pretext to terminate his
employment for engaging in union or other protected,
concerted activity. Hence Socony Mobil Oil Company,
Inc , 153 NLRB 1244, 1247, is distinguishable. In this
connection I find that Respondent's letter of January 17,
1969 (G C. Exh 5), although vaguely worded, does not
amount to a pretext disguising another reason than the
alleged misconduct This is because I find that the letter
was issued only because it was demanded by Churinoff
and its phraseology was intended to soften the harshness
or stigma of a written statement utilizing the words
"pay-off, or "bribery " Further I find that (a) early in
January, 1969, upon his return from a vacation, President
Pekin learned that Churinoff had accused him of bribing a
union official, (b) that thereupon Pekin directed Manager
Pasquinelli to discharge Churinoff for uttering this
accusation; (c) that Pasquinell[ orally discharged
Churinoff, on Churinoff's own testimony, for making such
an assertion ; and (d ) said letter (G. C Exh . 5) is not
inconsistent with Pasquinelli's desire to carry out Pekin's
order to fire Churinoff for contending that Pekin had
bribed a union business agent.
In finding that Respondent harbored no antiunion
feelings, I have not overlooked Mrs. Churmoff's evidence,
which I credit She testified that, when she asked
Pasquinell[ why her husband was fired, he replied that
Churinoff not only "went to the Union" but "went to its
vice-president " I do not regard this announcement to
indicate that Pasquinelli was opposed to unions or that he
objected to them. Rather I find that Pasquinelli without
rancor indicated that Churinoff did go to the Union. But
this alone hardly suffices to establish such a distaste for
unions that it would influence Pasqumelli to discharge
Churinoff. In any event I find that Churinoff was not
fired because he "went to the Union" but only for
accusing President Pekin of bribing a union official
IV THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
1029
The activity of Respondent set forth in section III,
above, found to constitute an unfair labor practice,
occurring in connection with its operations described in
section 1, above, has a close , intimate, and substantial
relation to trade, traffic, and commerce among the several
States and tends to lead to labor disputes burdening and
obstructing commerce and the free flow of commerce
V. THE REMEDY
Having found that Respondent has engaged in an unfair
labor practice proscribed by Section 8(a)(1) of the Act, I
shall recommend that the National Labor Relations Board
order it to cease and desist therefrom and to take specific
affirmative action designed to effectuate the policies of the
Act. Since I find that Respondent's conduct does not
display a general hostility to the Act, I shall recommend a
narrow order because limited relief, in my opinion, is
commensurate with the violation found.
As I have found that Respondent has discriminated
against Churinoff in discharging him I shall ' further
recommend that it offer him immediate and full
reinstatement to his former position or one substantially
equivalent thereto without prejudice to his seniority and
other rights and privileges previously enjoyed by him, and
to make him whole for any loss of earnings he may have
suffered by reason of his discharge.
In making Churinoff whole Respondent shall pay to
him a sum of money equal to that which he normally
would have earned as wages from the date of his discharge
to the date of reinstatement or a proper offer of
reinstatement , as the case may be, less his net earnings
during such period Such backpay shall be computed on a
quarterly basis in the manner prescribed in F W
Woolworth Company, 90 NLRB 289, and shall include
the payment of interest at the rate of 6 percent calculated
according to the method set forth in Isis Plumbing &
Heating Co., 138 NLRB 716 I shall also recommend that
Respondent preserve and make available to the Board or
its agents , upon reasonable request, all pertinent records
and data necessary to ascertain whatever backpay may be
due.
Upon the basis of the above findings of fact, and upon
the entire record, I make the following:
CONCLUSIONS OF LAW
1. Local No I is a labor organization within the
meaning of Section 2(5) of the Act.
2. Respondent is an employer as defined in Section
2(2), and is engaged in commerce within the meaning of
Section 2(6) and (7), of the Act.
3 By discharging Walter John Churinoff for
participating in protected, concerted activities, Respondent
has engaged in an unfair labor practice prohibited by
Section 8 (a)(1) of the Act.
4 The above-described unfair labor practice affects
commerce within the purview of Section 2(6) and (7) of
the Act
5. Respondent has not committed any other unfair
labor practices as alleged in the complaint
1030 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
RECOMMENDED ORDER
Upon the basis of the above findings of fact and
conclusions of law, and upon the entire record in this case,
I recommend that the National Labor Relations Board
issue an Order requiring that Respondent, its officers,
agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discharging employees for discussing raises in wages
or for engaging in other protected, concerted activities.
. (b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of rights
guaranteed to them by Section 7 of the Act, except to the
extent that such rights may be affected by an agreement
requiring membership in a labor organization as a
condition of employment as authorized in Section 8(a)(3)
of the Act.
2. Take the following affirmative action designed to
effectuate the policies of the Act:
(a) Offer Walter John Churinoff immediate and full
reinstatement to his former or substantially equivalent-
position, without prejudice to his seniority or other rights
and privileges previously enjoyed, and make him whole for
any loss of pay he may have suffered by reason of his
discharge, with interest at the rate of 6 percent, as
provided in the section above entitled "The Remedy."
(b) Notify Walter John Churinoff if presently serving in
the Armed Forces of the United States of his right to
reinstatement upon application in accordance with the
Selective Service Act and the Universal Military Training
and Service Act, as amended, after discharge from the
Armed Forces.
(c) Preserve and, upon reasonable request, make
available to the Board and its agents, for examination and
copying, all payroll records and reports and all other
records necessary to ascertain the amount of backpay due
under the terms of this Recommended Order.
(d) Post at its Fountainhead Apartments in Westmont,
Illinois, copies of the attached notice marked "Appendix."'
Copies of said notice, on forms provided by the Regional
Director for the Board's Region 13, after being signed by
a duly authorized representative of Respondent, shall be
posted by it immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter in
conspicuous places, including all places where notices to
employees are customarily displayed. Reasonable steps
shall be taken by Respondent to insure that said notices
are not altered, defaced, or covered by any other material.
(e) Notify the Board's Regional Director for Region 13,
'in the event no exceptions are filed as provided by Section 102 46 of the
Rules and Regulations of the Board , the findings , conclusions,
recommendations , and Recommended Order herein shall, as provided in
Section 102 48 of said Rules and Regulations, be adopted by the Board
and become its findings , conclusions, and order , and all objections thereto
shall be deemed waived for all purposes In the event that the Board's
Order is enforced by a judgment of a United States Court of Appeals, the
words in the notice reading "Posted by order of the National Labor
Relations Board" shall be changed to read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board "
in writing , within 20 days from the receipt of this
Decision, what step's Respondent has taken to comply
herewith.'
IT IS FURTHER RECOMMENDED that the complaint be
dismissed insofar as it alleges unfair labor practices not
found herein.
'In the event this Recommended Order is adopted by the Board, this
provision shall be modified to read "Notify said Regional Director, in
writing, within 10 days from the date of this Order, what steps Respondent
has taken to comply herewith "
APPENDIX
NOTICE TO EMPLOYEES
Posted by Order of the National Labor Relations
Board an agency of the United States Government
We hereby notify our employees that:
^.r 3WE WILL NOT discharge employees for discussing
raises in wages or for engaging in other concerted
"activities- protected by the National Labor Relations
a ``Act '
'WE WILL NOT in any like or related manner interfere
with, restrain , or coerce employees in the exercise of
rights guaranteed to them by Section 7, of said Act,
except to the extent that such rights may be affected by
an agreement requiring membership in a labor
organization as a condition of employment as
authorized in Section 8(a)(3) of said Act.
WE WILL offer Walter John Churinoff immediate
and full reinstatement to his former job or one
substantially equal to it, - without prejudice to his
seniority and other rights and privileges enjoyed by
him. We will also pay him whatever loss of pay he may
have suffered as a result of his discharge by us, with
interest at 6 percent per annum.
BEN PEKIN CORPORATION
(Employer)
Dated By
(Representative) (Title)
Note: We will notify the above-mentioned employee if
presently serving in the Armed Forces of the United
States of his right to full reinstatement upon application
in accordance with the Selective Service Act and the
Universal Military Training and Service Act of 1948, as
amended, after discharge from the Armed Forces.
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material.
Any questions concerning this notice or compliance
with its provisions, may be directed to the Board's Office,
881 U.S. Courthouse and Federal Office Building, 219
South Dearborn Street, Chicago, Illinois 60604,
Telephone 312-353-7597.