Capital Engineering and Mfg. Co.

National Labor Relations Board - Board Decisions

Jun 28, 1971

191 N.L.R.B. 641 (N.L.R.B. 1971)

CAPITAL ENGINEERING AND MFG CO.
Capital Engineering and Mfg. Co. and United Steel-
workers of America, AFL-CIO. Case 13-CA-9912
June 28, 1971
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS JENKINS
AND KENNEDY
On January 12, 1971, Trial Examiner Ivar H. Peter-
son issued his Decision in the above-entitled proceed-
ing, finding that Respondent had engaged in and was
engaging in certain unfair labor practices and recom-
mending 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 a brief
in support of the Decision. General Counsel also filed
a cross-exception to the Decision and a brief in support
of the cross-exception, and Respondent filed an answer-
ing brief to the General Counsel's cross-exception.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional 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 Ex-
aminer made at the hearing and finds that no prejudi-
cial error was committed. The rulings are hereby
affirmed. The Board has considered the Trial Ex-
aminer's Decision, the exceptions and briefs, and the
entire record in the case, and hereby adopts the
findings,' conclusions,' and recommendations of the
Trial Examiner.
I In one part of his Decision the Trial Examiner finds, contrary to Bolte's
testimony, and in accord with Pagorski's, that Pagorski was not welding ears
on June 12 and had not in fact been assigned to any ear welding work before
June 15, the date he was discharged In setting out his reasons for discredit-
ing Bolte, the Trial Examiner seems to find in another part of his Decision
that Pagorski did not work at all on June 12-contrary to the facts earlier
found and supported by the record While we are unable to account for the
error of the Trial Examiner's latter statement, we conclude from an overall
review of all his findings that what he meant to say was that Pagorski did
not weld ears on June 12, as Bolte claimed he had. In any event, we do not
regard the error as having any effect on the overall result or as otherwise
warranting reversal of the Trial Examiner's credibility findings We note in
this respect that Respondent has taken exception to the Trial Examiner's
credibility findings on the ground, among others, that the Trial Examiner
failed to credit the testimony of its witnesses on matters critical to the
violation issues and accepted, instead, the testimony of Pagorskr and other
employees who were called as witnesses by General Counsel. However,
having carefully reviewed the record, we conclude that the Trial Examiner's
credibility findings are not contrary to the clear preponderance of all the
relevant evidence. Accordingly we find no basis for disturbing those
findings Standard Dry Wall Products, Inc., 91 NLRB 544, enfd. 188 F 2d
362 (C.A 3)
i General Counsel has requested that we base an additional 8(a)(1)
finding on the remarks made to Pagorskr by General Foreman Kozlowski
and Plant Superintendent Bolte on June 11 when Kozlowski allegedly asked
Pagorski, "Well, what is this about a Polish guy starting the Union?" and
Bolte then made reference to his having deemed Pagorski to be a likely
candidate for the foreman's lob. We deny General Counsel's request without
passing on its evidentiary merit, for, even if supportable, the additional
ORDER
641
Pursuant to Section 10(c) of the National Labor Re-
lations Act, as amended, the National Labor Relations
Board adopts as its Order the recommended Order of
the Trial Examiner and hereby orders that Respondent,
Capital Engineering and Mfg. Co., its officers, agents,
and representatives, shall take the action set forth in the
Trial Examiner's recommended Order.
8(a)(1) finding would not enlarge the scope of the Order
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
IVAR H. PETERSON, Trial Examiner: I heard this case on
October 28 and 29, 1970,1 in Chicago, Illinois, upon a charge
filed June 16, by United Steelworkers of America, AFL-CIO,
herein called the Union, which resulted in the Acting Re-
gional Director for Region 13 issuing a complaint dated Au-
gust 27, against Capital Engineering and Mfg. Co. Briefly
stated, the complaint alleged that the Respondent violated
Section 8(a)(1) and (3) by interrogating an employee about
his union activities, offering an employee a position as fore-
man to induce him to cease engaging in union activities, and
discriminatorily discharging employee Jerry Pagorski on
June 15. The Respondent duly filed an answer denying that
it had committed any unfair labor practice. Following the
hearing, counsel for Responsent and counsel for the General
Counsel filed briefs on December 18, following an extension
of time granted at the request of counsel for the Respondent.
These have been carefully considered.
Upon the entire record in the case' and from my observa-
tion of the demeanor of the witnesses as they testified, I make
the following:
FINDINGS OF FACT
I THE BUSINESS OF THE RESPONDENT
The Respondent, an Illinois corporation, is engaged in the
designing and building of several machinery and metal
products at its plants in Harvey, Illinois, and Chicago, Il-
linois. Only the plant in Harvey is involved in this proceeding.
During the last calendar year the Respondent received in
excess of $50,000 for goods sold and shipped directly to
points outside the State of Illinois. The Respondent admits
and I find that it is an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
United Steelworkers of America, AFL-CIO, is a labor
organization within the meaning of Section 2(5) of the Act.
Unless otherwise indicated all dates refer to the year 1970.
After the Respondent had rested its case in chief, counsel for the Gen-
eral Counsel moved to amend the complaint to add another allegation of
violation of Section 8(a)(1), grounded on an incident that allegedly occurred
on October 27 I denied the motion as its subject matter seemed not so
material as to warrant a necessary postponement if granted and the addi-
tional travel and related expense See Cactus Petroleum, Inc., 134 NLRB
1254. The unopposed motion of counsel for the General Counsel to correct
the transcript is granted
191 NLRB No. 111
642 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. THE UNFAIR LABOR PRACTICES
A. The Evidence
Jerry Pagorski was hired by the Company on April 13 as
a welder and was terminated on June 15. Before being em-
ployed by the Respondent he had worked as a welder for 4
years. About the middle of May, Pagorski went to the union
hall and spoke with James Dunn, a staff representative, after
work one day. Pagorski told Dunn that he was working for
the Respondent and was dissatisfied with the working condi-
tions. Dunn told Pago'rski that if he wished to, he could take
some authorization cards and pass (them °out to fellow em-
ployees, but to be careful to confine such activity to periods
such as work breaks, the lunch hour, and after work .`Pagor-
ski took a supply of cards to work with him and during the
ensuing 4 or 5 weeks passed them out to employees . Except
for one or two occasions when he gave out cards during
working hours in the , washroom , he confined his activity in
accordance with the instructions given him by Dunn. He
obtained a total of some 58' cards out of approximately 100
employees.
About the end of May, while at work Pagorski noticed a
piece of literature on the floor in the presence of Foreman
Richard Rossiter. Pagorski asked Foreman Rossiter whether
he had dropped it; Rossiter said he had not and Pagorski
picked it up and put it in his pocket.' On Thursday, June 11,
at about 8:30 in the morning, Superintendent Anthony Bolte
came to Pagorski's work station in a golf cart which he used
to go about the plant, and asked Pagorski to get in. They
drove to the south side of the building and went outside.
There, according to Pagorski, Bolte asked, "Are you the one
who's trying to get a union in here?" At first Pagorski an-
swered in the negative , but, upon reconsideration , stated
"Yes, I am the one who is going out passing out union cards."
Bolte asked why he was engaging in such activity and Pagor-
ski responded by saying that the employees desired equal pay
for equal work, job security, a pension plan, insurance, and
-other benefits advocated by the Union. Referring to Mr. Mi-
letic, president and owner of the Respondent, Bolte said,
"You know, Papa Joe is a good guy," adding that Mr. Miletic
loaned employees money on occasion. Pagorski replied that
he knew of this as he had asked some employees who had
borrowed money from Mr. Miletic to sign an authorization
card and they had stated they would not do so for the reason
that if the Union got in Mr. Miletic would not continue
loaning money. Thereupon, according to Pagorski, Bolte
said, "You know, Jerry, ,you are a good worker. You do good
work. If you stay on the job and there is an opening for
foreman on the other side of the building we were thinking
of giving you a chance of working your way into it." Pagorski
testified he replied with thanks, but said he was committed
to the Union. The conversation ended on the note of "no hard
feelings."
Following this conversation with Bolte and shortly before
the 9:00 break, Pagorski had a conversation with a fellow
employee named Don or Ron. This employee asked whether
Bolte had offered Pagorski a foreman's job; Pagorski an-
swered that he had not, but had stated that, if there were an
opening on the west side of the building for a foreman's job
he might be considered. During the break Bolte, so Pagorski
testified, came to him "kind of mad" and stated, "What are
you doing, going around and telling these guys I offered you
a foreman's job?" Pagorski replied that all he had,told Don
or Ron was that Bolte had said if there was an opening for
' The leaflet was a piece of union literature outlining what a foreman
could or could not do during an organizing campaign . Pagorski carried such
literature.
a foreman's job on themest side, he might' be considered for
it.
Also during this morning Bolte and Leon Kozlowski, the
general foreman, came by his workstation and Kozlowski
remarked, "What's this I hear about a Polish,guy trying to
start a union in here?" Pagorski answered that what Kozlow-
ski had heard was correct and related to him some of the
benefits to be obtained by affiliation with the Union. On this
occasion Bolte remarked that} he had been telling Pagorski
about the need for a foreman on the other side of the building
and that he" had thought of giving Pagorski a chance to work
his way, into the job . Thereupon , so Pagorski testified, Ko-
zlowski commented, "That would be great. Then we would
have two Polish foreman around here." Kozlowski also com-
mented that the Respondent was a young company, and that
Mr. Miletic would obtain similar benefits for the employees
eventually . Pagorski , so he testified, said that he would like
to obtain such benefits while he was young so that as he
became older he would know that he had some type of
security.
Pagorski testified that on Friday, June 12, he had no con-
versation with Bolte or Kozlowski. He did not work on Satur-
day, June 13.
On Monday, June 15, Pagorski worked alongside Bob Ros-
siter, brother of Foreman Rossiter, who had been employed
about the same time as Pagorski . Rossiter had been away for
several weeks. On this day Pagorski and Rossiter were both
welding clams , Pagorski 's customary job. According to
Pagorski , Rossiter asked how many clams Pagorski com-
pleted each day and the latter replied that it depended upon
fitout problems and how the welding gun performed, but that
usually he could weld between three and five clams a day. At
about 11:30 in the morning the leadman came to Pagorski
and told him that he should move to another station and weld
ears, a job function that was first on the assembly line,
whereas welding clams was the third position on the line.
Pagorski testified that he had not welded ears previously. At
about 3:20 in the afternoon, 10 minutes before the end of the
shift, Superintendent Bolte and General Foreman Kozlowski
came to Pagorski and Kozlowski stated, "We are letting you
go." Pagorski asked why and Kozlowski replied, "You have
been going around telling guys to take it easy, slow down
... we have also been watching you all afternoon . It is taking
you two hours to do this one ear." Kozlowski further stated
that Pagorski's production had dropped markedly in the last
2 weeks. Pagorski was given a check for wages due. After
leaving the plant, Pagorski went to the union hall and spoke
to Dunn, telling him what had transpired, and Dunn stated
that the following day unfair labor practice charges would be
filed against the Respondent.'
Pagorski testified that he had never received a reprimand
or a warning about not producing enough work. Some 4 or
5 weeks after being employed, Pagorski received a 25-cent-
per-hour raise and was told by Foreman Rossiter that he was
doing good work.
Superintendent Bolte testified that Respondent 's policy
was that if an employee desired to join a union it was entirely
up to the employee, and that the Respondent did not pressure
them in any way. According to Bolte, lunch periods are re-
garded as the employees' time as they are not paid for it.
According to Bolte, at the time he hired Pagorski he spoke
to him about the possibility of there being an opening for a
foreman's job, and that based upon his work experience
Pagorski had a chance of working up to a foreman's position.
Bolte denied that he spoke to Pagorski on June 11 with regard
The charge was in fact filed on June 16.
CAPITAL ENGINEERING AND MFG I CO. 643
to this subject . During the first few weeks ofihis - en;iployment,
so Bolte testified , Pagorski did a very good job but thereafter
began slowing down . According to Bolte, he received two
complaints relating `to Pagorski from two different super-
visors. tee firmt' was from Foreman Rossiter about June 10;
`Rossiter stated that Pagorski was leaving his department and
going over to the paint shop and talking to employees-there
and passing out cards ., General Foreman Kozlowski was, the
source of the other complaint received by Superintendent
Bolte to the effect that Pagorski was in the washroom talking
to,several employees and cards were "all around ." Kozlowski
ordered Pagorski to go back to work . Bolte also related that
one day he noticed that Pagorski was not at his work station
and later found him at the other end of the building allegedly
looking for a wire brush . Bolte testified that he told Pagorski
to go back on his job as he had no need for a wire brush.
Bolte corroborated Pagorski concerning their conversation
on June 11, particularly that he inquired of Pagorski whether
he was the one passing out union cards. However, Bolte
added that he qualified his inquiry by confining it to company
time. According to Bolte, Pagorski at first denied having
engaged in such activity and stated that he had nothing to do
with the Union, but after further questioning stated, "I am
the guy passing out cards on company time and you have a
right to fire me if you want to." Also, Bolte testified , Pagorski
stated that if he were discharged he would be paid by the
Union . Later in the afternoon of June 11, Foreman Rossiter
came to Bolte and stated that he understood Bolte had offered
Pagorski a job as foreman . Bolte and Kozlowski then went
to Pagorski and Bolte asked him if he (Bolte) had offered him
a foreman's job. Pagorski replied that no such offer had been
made, and Kozlowski then said that that was not what Pagor-
ski was telling the employees.
Bolte testified that on June 12 he saw Pagorski welding ears
and spoke to him , saying that he noticed that it had taken him
two hours to do one ear, whereas he should have done four
in that period of time.'
On Monday , June 15, Bolte testified he received a report
from Foreman Rossiter that Pagorski made only two or three
clams a day whereas Bob Rossiter was making five or five and
a half. Bolte testified that this report came to him at about
1:30, and that he thereupon spoke to Pagorski and told him
that he was receiving too many reports about Pagorski not
being on the job , passing out cards, and attempting to have
Bob Rossiter slow down production . Bolte testified that it was
Kozlowski who told Pagorski that he was being terminated
and that when Pagorski asked why , Bolte stated "for holding
up production and numerous other things ," mentioning that
Pagorski was off the job and had passed out union cards, but
stated that the prime reason for dismissal was that he was
holding back production.
On cross-examination , Bolte insisted that the only time he
had mentioned to Pagorski that he might be favorably consid-
ered for a foreman 's job was at the time he interviewed Pagor-
ski, April 10. Between that time and June 15 there were two
vacancies in the position of foreman, but Bolte hired individu-
als from the outside to fill them . Bolte added that on these two
occasions Pagorski made no inquiry as to why he had been
passed over . Bolte further testified that it was during the
morning of June 15 that he asked the payroll office at the
main plant in Chicago to prepare Pagorski 's check.
Leon Kozlowski, the Respondent's general foreman, tes-
tified that he had heard no complaints about Pagorski's work
until towards the last part of his employment . He received a
5 No corroborating evidence , such as time cards , was produced to estab-
lish that Pagorski worked on June 12 As related above, he denied that he
did
report that Pagorski was slowing down on the job and loiter-
ing. A week or two before Pagorski 's discharge Kozlowski
found him in the men 's room talking with several fellow
employees and there were authorization cards on the radia-
tor. Kozlowski ordered Pagorski to go back to work and
reported the incident to Superintendent Bolte.
Kozlowski further testified that on June 11 he and Bolte
approached Pagorski and Kozlowski asked him (Pagorski) if
it was true that he had been offered a job as a foreman as he
had heard a rumor that Pagorski was spreading that word.
Pagorski denied that he had circulated the rumor . Kozlowski
admitted that he had asked Pagorski why he was such a
strong supporter of the Union and testified that Pagorski
replied that Polish people were always strong for unions.
Kozlowski also admitted that he asked Pagorski what
benefits the Union could obtain for him that the employees
did not already have and stated that Pagorski mentioned a
pension . Kozlowski rejoined that the Company was relatively
young and in due time he felt sure that a pension plan would
be provided . Kozlowski denied that he asked Pagorski some-
thing to the effect , "well, what is this about a Polish guy
starting the Union?" and also denied that he said it would be
"great" to have two Polish foremen in the plant.
On June 15, so Kozlowski related , Bolte told him that
Foreman Rossiter had been told by his brother Robert that
Pagorski had told Robert how many pieces to make in a shift,
particularizing that Pagorski said that three a day was plenty.
Kozlowski testified that he told Superintendent Bolte that
Pagorski had no right to set a quota as that was the job of
supervision , and that he and Bolte then determined to termi-
nate Pagorski during the afternoon . According to Kozlowski,
this decision was reached about 11 o'clock in the morning.
Kozlowski did not inquire of Rossiter what statement , if any,
Pagorski had made to him.
According to Kozlowski , Pagorski had worked on the first
step , welding ears , prior to June 15; however , he testified that
he was uncertain what Pagorski 's usual job was, but stated
that of the 40 or 50 employees under his general supervision
he remembered Pagorski specifically because he was "always
with a cigar."
On cross-examination , Kozlowski testified that although
he had noticed that Pagorski 's production had slowed down
during the last month of his employment he never brought
this matter to Pagorski 's attention . He testified that during
the initial period of his employment Pagorski was a "ball of
fire" and that when he first began working on clams he
welded three a day, and that at the time he was discharged
he was turning out two and a half or three a day. Kozlowski
testified that Bolte never told him that he had been watching
Pagorski work for a considerable period of time shortly
before the discharge.
On direct examination , Foreman Rossiter testified that
Pagorski worked most of the time on welding 7,919 clams;
asked whether he did "any other type of work" Rossiter
answered , "No, that is all he did." Asked what he considered
"a day's work" at the step-welding clams-that Pagorski
performed , Rossiter answered, "At least five ." Rossiter tes-
tified that when Pagorski first began working "he did beauti-
ful." He then changed his earlier testimony and related that
on two or three occasions he had Pagorski work on the first
step , welding ears , when the man who usually performed that
operation did not show up. Rossiter further related that about
two weeks before the discharge he dropped into the paint
room and the painter "told me the guy was over there passing
out cards," identifying him not by name but as the "guy in
the blue shirt ." Rossiter told Bolte of the incident , and sug-
gested that Bolte have atalk with Erwin Just, the painter.
About a week before Pagorski was terminated an employee
644 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(not named) asked Rossiter if it was a fact that Superinten-
dent Bolte had offered Pagorski a job as foreman; Rossiter
stated it was not true. Rossiter reported this incident to Bolte.
On June 15, Rossiter's brother, Robert, was welding clams
with Pagorski; Robert reported to his brother, the foreman,
that Pagorski in reply to a question as to the number of clams
he welded a day stated he did three and added, although he
could do more, "what's the sense of it." According to Fore-
man Rossiter, his brother turned out five and a half clams
that day. After receiving this information he went to Bolte
and stated that the best thing they could do would be to fire
Pagorski.
Admittedly, Foreman Rossiter, so he testified on cross-
examination, did not ask Pagorski whether he had made the
slowdown statement to his brother.'
Called on rebuttal, Pagorski testified that from 11 a.m.
until 3:20 in the afternoon of June 15 he welded ears and
completed six ears or pairs. He reiterated that prior to June
15 he had never welded ears and testified further that no one
had ever told him how many ears he was supposed to com-
plete. Pagorski testified that he had not noticed Bolte watch-
ing him that day, contrary to Bolte's statement that he had
observed Pagorski for 2 hours. In the approximately 4 hours
that he worked on clams on June 15 he produced two, and
testified that customarily he produced three during a shift,
sometimes four and very rarely five.
Contrary to the suggestion of counsel for the Respondent
that Pagorski was a union "plant," Pagorski testified that he
sought the job with the Respondent on his own initiative and
that no one connected with the Union suggested that he seek
work with the Respondent. Moreover, he testified that it was
his own idea to go to the Union and ask for authorization
cards. He also denied that when he was with Bolte in the golf
cart on June 11 he stated to Bolte that the latter could fire
him if he wished to, and further denied that he said that if he
were fired he would get paid by the Union.' Also, in contra-
diction to the testimony of Superintendent Bolte, Pagorski
stated that during his interview on April 10 nothing was said
to him about a foreman's job and reiterated that the first and
only mention of such a position was made on June 11.
Pagorski also denied that he ever told Robert Rossiter to
do only three clams a day, and further denied that he was a
cigar smoker, a habit which Kozlowski had testified helped
him to identify Pagorski.
Joseph Rzonzca, who works as a welding inspector for the
Respondent, testified that he inspected Pagorski's work 2 or
3 times a day, and that he had never had any complaints
about Pagorski's job performance. Rzonzca stated that fol-
lowing Pagorski's discharge one employee, Joe Ellery, welded
clams for about 3 weeks and produced 2 or 3 a day of the
smaller clams, which take about 45 minutes or an hour less
to weld than the larger clams which Pagorski customarily
welded. He also related that another employee, Al Calhoun,
also produced 2 or 3 a day over a period of time. Neither
Ellery nor Calhoun, so he testified, was discharged.
Erwin Just, a painter, testified that about 3 days before
Pagorski was discharged he had a conversation with Foreman
Rossiter after work as they were having some drinks in a
tavern. During their conversation Foreman Rossiter re-
marked that Pagorski was a good welder. Just stated that he
' Robert Rossiter was not called as a witness According to Foreman
Rossiter, at the time of the hearing he was in Altoona, Pennsylvania, at the
home of their father.
' James Dunn, a staff representative of the Union, testified that he had
given Pagorski authorization cards at the latter's request, and also stated
that Pagorski had never been on the Union's payroll nor been given any
money by the Union
had never seen Pagorski passing out union cards in the paint
room and that he had never told Foreman Rossiter that
Pagorski had done so.
Ralph Morris and Robert Morris, both welders who
worked with Pagorski, testified that they had never seen
Pagorski leave his job to talk with other employees or stand
around when he was supposed to be welding. Cecil Ashley,
who had worked for the Respondent from March 1969 until
the latter part of September 1970, when he was discharged for
being absent, testified that he held the position of fitter, a job
adjacent to the work station of Pagorski. He testified that he
had never seen Pagorski walk away from his job to talk to
other employees or stand around doing nothing when he was
supposed to be working. About a week or thereabouts before
Pagorski was discharged Ashley and another worker named
Bahman were in a tavern with Foreman Rossiter. On this
occasion Pagorski was mentioned in the conversation and
Rossiter stated that Pagorski was a good worker and did a
good job.
B. Conclusions
As is so frequently the case in instances of alleged dis-
criminatory discharge, the issue turns upon the resolution of
the relative credibility of witnesses in the light of the objective
facts and, as counsel for the Respondent points out in his
brief, the application of "the standard of normal probability."
Pagorski's interest in the Union stemmed from his dissatis-
faction with working conditions in the plant, that he was an
active union protagonist is abundantly established, as is the
Respondent's knowledge of that fact. But this is by no means
disposes of the case for; as has frequently been pointed out,
an employer may discharge an employee for a good reason,
a bad reason, or no reason at all. The critical question here
is whether the Respondent was motivated by antiunion con-
siderations in terminating Pagorski.
Upon a consideration of all the evidence I am persuaded
that the Respondent did discharge Pagorski because of his
protected activities in support of the Union and not, as the
Respondent argues, because he absented himself from his
work duties and engaged in union activity on company time,
or counselled a fellow employee to engage in a work slow-
down. I am convinced that Pagorski's account of the June 11
conversation between himself and Bolte is the more credible.
I find that Bolte's purpose in taking Pagorski outside the
plant was to attempt to dissuade Pagorski from continuing
his union activities rather than to point out that the employee
was not privileged to engage in such activities on company
time.' Against the hearsay testimony that Pagorski coun-
selled Bob Rossiter on June 15 to restrict his production of
clams is the direct and positive denial of Pagorski that he did
so. Bob Rossiter was not produced as a witness although his
whereabouts was known, and no records were made available
to support the Respondent's contention. I conclude that
Pagorski was discharged because of his interest in and sup-
port of the Union.
CONCLUSIONS OF LAW
1. The Respondent, Capital Engineering and Mfg . Co., is
an employer within the meaning of Section 2(6) and (7) of the
Act.
2. The Union, United Steelworkers of America , AFL-CIO,
is a labor organization within the meaning of Section 2(5) of
the Act.
' The fact that employees collected funds on comapny time in cases of
illness or death of an employee or members of his family would not, in my
view, sanction union activity during working time.
CAPITAL ENGINEERING AND MFG . CO. 645
3. Jerry Pagorski was discriminatorily discharged on June
15, 1970, by the Respondent, and by such act, the Respond-
ent violated Section 8(a)(3) and (1) of the Act.
4. By the questioning by Superintendent Bolte and by Bol-
te's statement to Pagorski to the effect that he would be
considered for a foreman's job if he ceased activity for the
Union, Respondent violated Section 8(a)(1) of the Act.
5. The aforesaid unfair labor practices are unfair labor
practices burdening and affecting commerce within the mean-
ing of Section 2(6) and (7) of the Act.
IV THE REMEDY
In order to effectuate the policies of the Act, I find that it
is necessary that the Respondent be ordered to cease and
desist from the unfair labor practices found and from like or
related invasions of the employees ' Section 7 rights; to take
certain affirmative action , including the offering of reinstate-
ment to Jerry Pagorski , with backpay computed on a quar-
terly basis , plus interest at 6 percent per annum, as prescribed
in F W. Woolworth Company, 90 NLRB 289, and Isis Plumb-
ing & Heating Co., 138 NLRB 716; and to post appropriate
notices.
Upon the foregoing findings of fact, conclusions of law, and
the entire record , and pursuant to Section 10(c) of the Act,
I hereby issue the following recommended:'
ORDER
Respondent, Capital Engineering and Mfg . Co., Harvey,
Illinois, its officers, agents, successors , and assigns , shall:
1. Cease and desist from:
(a) Discouraging union membership or concerted activities
of its employees by discriminatorily discharging any em-
ployees or by discriminating in any other manner in regard
to their hire or tenure of employment, or any term or condi-
tion of employment.
(b) Questioning its employees regarding their union or con-
certed activities, holding out the prospect of promotion if
employees cease activity in behalf of the Union, or in any
other manner interfering with, restraining, or coercing em-
ployees in the exercise of their right to self-organization, to
form labor organizations, to join or assist the above-men-
tioned union or any other labor organizations , to bargain
collectively through representatives of their own choosing,
and to engage in other concerted activities for the purpose of
collective bargaining or other mutual aid or protection, or to
refrain from any and all such activities.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act:
(a) Offer to Jerry Pagorski immediate and full reinstate-
ment to his former job, or if the job no longer exists, to a
substantially equivalent position, and make him whole for
any loss of earnings he may have suffered by reason of the
discrimination against him , in the manner set forth above in
the section entitled "The Remedy."
(b) Notify immediately the above-named employee, if pres-
ently serving in the Armed Forces of the United States, of the
right to full reinstatement , upon application after discharge
from the Armed Forces, in accordance with the Selective
Service Act and the Universal Military Training and Service
Act.
(c) Preserve , and upon request, make available to the
Board or its agents , for examination and copying , all payroll
records, social security payment records, timecards , person-
nel records , and reports , and all other records necessary to
analyze the amount of backpay due under the terms of this
recommended Order.
(d) Post at its place of business in Harvey, Illinois, copies
of the attached notice marked "Appendix."" Copies of said
notices, on forms provided by the Regional Director for Re-
gion 9, after being duly signed by an authorized representa-
tive of the Respondent, shall be posted immediately upon
receipt thereof, and be maintained for 60 consecutive days
thereafter , in conspicuous places, including all places where
notices to 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.
(e) Notify the Regional Director for Region 9, in writing,
within 20 days from the date of receipt of this Decision, what
steps the Respondent has taken to comply herewith."
1° 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 "
11 In the event that this recommended Order is adopted by the Board
after exceptions have been filed, this provision shall be modified to read:
"Notify the Regional Director for Region 9, in writing, within 20 days from
the date of this Order, what steps the 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
The National Labor Relations Board having found , after a
trial, that we violated Federal Law by questioning an em-
ployee regarding his union activity, by indicating to an em-
ployee that he would be considered for a foreman 's job if he
ceased his union activity; and by later discharging the em-
ployee because of his union activity;
WE WILL offer Jerry Pagorski full reinstatement, and
pay him for the earnings he lost as a result of his June
15, 1970, discharge, plus 6 percent per annum interest.
WE WILL NOT discharge or discriminate against any
employee for supporting United Steelworkers of
America , AFL-CIO, or any other union.
WE WILL NOT question any employee regarding his
union activity.
WE WILL NOT indicate to any employee that he will
be considered for a promotion if he ceases his union
activity.
WE WILL NOT unlawfully interfere with our em-
ployees' union activities.
CAPITAL ENGINEERING
AND MFG. CO.
(Employer)
' In the event no exceptions are filed as provided by Section 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions , recommendations, and recommended Order herein
shall, as provided in Section 102.48 of the 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.
Dated By
(Representative) (Title)
We will notify immediately the above-named in-
dividuals , if presently serving in the Armed Forces of the
United States , of the right to full reinstatement, upon
application after discharge from the Armed Forces, in
646 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
accordance with the Selective Service Act and the Uni- Any questions concerning this notice or compliance
versal Military Training and Service Act. with its provisions , may be directed to the Board's Office,
This is an official notice and must not be defaced by Room 2407 Federal Office Building, 550 Main Street,.
anyone. Cincinnati, Ohio 45202, Telephone 513-684-3686.
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.