Caplan Brothers Glass Co., Inc.

National Labor Relations Board - Board Decisions

Nov 24, 1964

149 N.L.R.B. 1023 (N.L.R.B. 1964)

CAPLAN BROTHERS GLASS CO., INC. 1023
The Petitioner, with an office at Coos Bay, Oregon, requests a state-
wide (Oregon) bargaining unit with the date the petition was filed
(August 21, 1964) as the date for determining eligibility to vote.
The Employer states that it had seven employees working in the
State of Oregon on that date.
The Employer contends that the bargaining unit should be limited
to the Coos Bay area and that only those employees who have worked
30 days within the last year should be eligible to vote in any election.
The Employer states that five employees meet this eligibility
requirement.
On the basis of the facts presented by this record, the Board is
unable to conclude that either of the aforesaid proposed units is
appropriate for the purpose of collective bargaining. Although an
employerwide unit would be appropriate," the Petitioner has not
requested such a unit, and neither the Petitioner nor the Employer
contends that such unit is appropriate here .6 The Petitioner offers no
reason why the unit should be limited to the State of Oregon. Under
such circumstances, we are unable to conclude that the requested unit
is based upon any consideration other than extent of organization,
one to which, by statutory mandate,? we are forbidden to give con-
trolling effect. The Employer's contention that the jurisdictional
limits of the Petitioner require that the unit be restricted to the Coos
Bay area is also without merit since the. Board has consistently
refused to predicate an appropriate unit finding upon the scope of a
local union's territorial jurisdiction.8 Therefore, in the circumstances
of this case, we shall dismiss the petition.9
[The Board dismissed the petition.]
G See Section 9(b), National Labor Relations Act, as amended
6 If the Board were to find that an employerwide unit was appropriate, the petition
would have to be dismissed since it does not appear that the Petitioner has the required
30-percent showing of interest for such a unit
7 See Section 9(c) (5), National Labor Relations Act, as amended.
8 See Broomall Construction Company, 137 NLRB 344, 346
9 Since we do not find any unit appropinate here, it is not necessary to make the con-
tested eligibility determination
Caplan Brothers Glass Co., Inc. and Charles J. Herbert. Case
No. 5-CA-2729. November 24, 1964
DECISION AND ORDER
On August 24, 1964, Trial Examiner Eugene F. Frey issued his
Decision in the above-entitled proceeding, finding that Respondent
had engaged in and was engaging in certain unfair labor practices
and recommending that it cease and desist therefrom and take cer-
149 NLRB No. 97.
1024 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tain affirmative action, as set forth in the attached Trial Examiner's
Decision. Thereafter, Respondent filed exceptions to the Decision 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 [Chairman McCulloch and Members Leedom and
Jenkins].
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 brief, and the entire record
in the case, and hereby adopts the findings,' conclusions, and recom-
mendations of the Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the Board hereby adopts as its Order, the Order recom-
mended by the Trial Examiner, and orders that Respondent, its
officers,, agents, successors, and assigns, shall take the action set forth
in the Trial Examiner's Recommended Order, with the following
modifications :
Add the following as 2(b) of the Order and renumber subsequent
paragraphs accordingly :
"(b) Notify the above-named 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."
1 The first conversation between the Employer's General Manager Seidman and Charg-
ing Party Herbert occurred during the morning of January 29, 1964, at the Employer's
plant. Accordingly, we correct the Trial Examiner's finding to reflect the record testimony.
DECISION OF TRIAL EXAMINER
STATEMENT OF THE CASE
This issues in this case are whether Respondent, Caplan Brothers Glass Co., Inc.,
during an attempt of its employees to associate with a labor organization affiliated
with the Baltimore Building and Construction Trades Council (herein called the
Council or the Union), interrogated employees about, and threatened them with
reprisals for, their adherence to said Union, in violation of Section 8(a)(1) of the
National Labor Relations Act, as amended, 29 U.S.C. Sec. 151, et seq. (herein called
the Act), and at the same time discharged and refused to reinstate employee Charles J.
Herbert for such activity, in violation of Section 8(a) (3) of the Act. The issues arise
on a complaint issued May 22, 1964,1 by the General Counsel of the Board through
the Regional Director for Region 5, and the answer of Respondent which admits
jurisdiction but denies the commission of any unfair labor practices.
On due notice a hearing on the issues was held before Trial Examiner Eugene F.
Frey on July 8, 1964, at Baltimore, Maryland, in which General Counsel and Respond-
1 The complaint issued after Board investigation of a charge flied February 28, 1964, by
Herbert.
CAPLAN BROTHERS GLASS CO., INC. 1025
ent participated through counsel, and Herbert appeared personally. At the close of
the hearing, I reserved decision on Respondent's motion to dismiss the complaint on
the merits, which motion is disposed of by the findings and conclusions herein. The
parties waived oral argument, but a written brief filed by Respondent has been care-
fully considered by me in making this Decision.
Upon the entire record in the case, including my observation of the witnesses on the
stand, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent is a Maryland corporation engaged at Baltimore, Maryland, in the sale
and installation of glass windows. In the course of such business in the past 12
months, Respondent had a direct inflow to its place of business of goods and materials
valued in excess of $50,000. I find that Respondent at all material times herein has
been and is an employer engaged in commerce within the meaning of Section 2(6) and
(7) of the Act.
11. THE LABOR ORGANIZATIONS
The Union, and Local 328 of the International Brotherhood of Painters, Decorators
and Paperhangers of America (herein called the Painters), affiliated with the Union
and considered herein as part of the Union, are each labor organizations within the
meaning of Section 2(5) of the Act.
HI. THE UNFAIR LABOR PRACTICES
In July or August 1963, the Union had sent Respondent a letter demanding that
it pay its employees union wage scales, and threatening picketing of its plant if it did
not. Picketing began in October and lasted until Christmas 1963. None of Respond-
ent's employees joined the picket line or engaged in any concerted activity on their
own or with the Union in this period. Respondent was well aware of the activity of
the Union prior to the events of 1964 found below.
On the night of January 28, 1964, Charles J. Herbert and Norman Zeller, glass-
workers employed by Respondent, attended a private meeting with a Council agent
for assistance in organizing Respondent's employees into the Painters. The agent
gave them union authorization cards to distribute among the employees. The next
morning, while Herbert was out working in a crew of five employees on a job, the
others asked him about his meeting with the Council agent. He told them and showed
them the cards. While on that job, S. Sherald Seidman, general manager of Respond-
ent, visited the job and asked Herbert with a smile, "How did your meeting go?"
Herbert did not answer, but kept on working.
When Herbert returned to the plant that afternoon, Seidman called him to the office
and discharged him. The crux of the case and main conflict of proof lies in the course
of that interview. Herbert testified that Seidman first asked him if the names of
Elmer Novak, James Lucas, George Jones, and Jake Ellis "rang a bell" with him,
reminded him of the Union. Herbert said they were the men with whom he usually
worked. Seidman asked if this group had been talking about the Union or the picket
line, or had anything to do with the Union. Herbert said they had talked about this,
but no more than workers discussed it generally in the plant. Seidman told Herbert
he was lying about it, and was trying to start trouble in the Company with the Union,
and the Company would be better off without him, and that he was going to set
Herbert up "as an example" to the others and pay him off; Seidman added that if he
was making a mistake in this, he would "make it up to"' Herbert. Herbert said he
could do nothing about it, as Seidman was the boss. Seidman also said that before he
would let the Union into his plant, he would close the doors and call the business
"Sherald Seidman Glass Company." Seidman then paid off Herbert, who has not
been recalled since.
Seidman's version of the talk is that he called Herbert in to tell him that other crew-
men had complained that they did not want to work with him because of his attitude
and unsatisfactory work, and that since Seidman could not choose a special crew for
him to work with, and Herbert had to be able to work with everyone, Seidman had
no alternative but to discharge him. Seidman also testified that immediately after the
discharge Herbert begged to be taken back, saying he needed the job, and reminded
Seidman that he had done Respondent a favor by going to a union meeting the night
before to get information. about the Union for Respondent. Seidman asked Herbert
why he had not told this to Seidman before but had waited until after his discharge to
tell him. Herbert replied that he had had no chance to. Seidman then questioned him
about the meeting. Herbert said the union agent had asked those present to sign
770-076-65-vol. 149-66
1026 DECISIONS OF NATIONAL, LABOR RELATIONS BOARD
cards, and had given Herbert one to sign. Seidman asked to see it, but Herbert said
it was at home. Seidman asked what men were at the meeting, and what men Herbert
had talked to that day, and Herbert named the four mentioned above.
- . In support of the discharge, Seidman also testified that during Herbert's last period
of employment (August 1963 to discharge), he was working as mechanic on a truck
with helper Paul Branch,2 and Branch complained about Herbert's bossy attitude,
which madenhim.hard, to,,work with. Prior to that, while Herbert,had been mechanic
on a truck at times during 1962 and 1963, helpers working with him had made the
same complaints and asked to be transferred to other, mechanics. Branch reported
that Herbert was a competent workman, but was hard to work with because he was
"overbearing," so Branch asked Seidman to assign him to another truck late in 1963.
Herbert himself admits that while he and Branch were on the same crew, they had
some "disagreements." In addition, Herbert's admission of a rather violent argument
with Seidman in December 1963, when his request for a raise was refused because of
alleged unsatisfactory work, and my own observation of his demeanor on the stand,
indicate that Herbert was an outspoken man with a rather blunt, argumentative, and
aggressive manner of speech, which might well justify the description of "overbearing"
or "bossy" while working orduring arguments. However; the force of this testimony,
and of Seidman's story in general, is weakened by Seidman's admissions that he in
effect reproached Herbert, immediately after the discharge, but in the same interview,
for not having told him beforehand about his attendance at the union meeting, and
his immediate and persistent interest in what was said there, who attended, and a desire
for examination of the union card. Although Seidman says this discussion occurred
after the discharge (when Herbert would no longer be an employee), his remarks
tended to indicate clearly to Herbert that, if he had reported at the outset of the
interview on the union meeting and his talks with the other workers about the Union,
he^probably would not have been discharged. This inference-is strengthened by Seid-
man's further admission that, on the basis of this interrogation, he later queried the
four other employees about their union sentiments, and also asked them whether
Herbert, in - his talks -with them,- had talked about "anything irregular" which. he
defined as including "anything underhanded," and "attendance of workers at union
meetings ." Seidman testified that this interrogation was prompted solely by his
stunned disbelief of what Herbert had told him about the union meeting and -the
presence of four or more workers there. At first blush this explanation is persuasive
because credible testimony of both Herbert and Seidman shows that during the Union's
1963 picketing of the plant, employees had often derided the picketing in talks with
Seidman, and clearly showed their union animus , and over a period of years Herbert
had often told Seidman bitterly about his repeated attempts to join the Painters and
his repeated rebuffs - (due to the alleged closure of their membership lists) and
expressed his open dislike of the Painters, saying he felt he was doing far better in
Respondent's open shop than in plants organized by the Painters. In addition, the
record shows that when Herbert had quit Respondent's employ three or four times in
the past to take temporary union jobs which-paid better wages, he had always returned
to work for Respondent, and on one occasion Seidman tried to induce him to quit
temporary union work by pointing out-the greater benefits of working for Respondent.
These circumstances indicate that on January 29, 1964, Seidman may have had good
reason to believe (as he testified) that Herbert and his other employees were antiunion,
and to be surprised when he learned of their attendance at the union meeting the night
before. However, this does not alter my conviction that Seidman's total remarks
demonstrate that he was discharging Herbert because of Seidman's suspicion or belief
that-he had attended -the union meeting and talked to other workers about ,joining_a
union , and belatedly defended the' discharge by, explaining `to Herbert that it would not
have occurred if he had made it clear at the outset of their talk that his attendance had
been only for purposes of surveillance for Respondent's benefit. This explanation
would ring true if Seidman had reinstated Herbert after the explanation. When he did
not, I can only conclude that his belief or suspicion of Herbert' s union activity, which
was an about-face from his prior apparent union animus, must have shocked and
displeased Seidman to the extent that it prompted him to discharge one who he had
always thought was solidly antiunion , but who had suddenly and secretly reversed
his position.
This conclusion is also supported by the fact of Respondent's strenuous efforts at
the hearing to prove that Herbert in his past periods of employment had long been
guilty of chronic absenteeism , and in his last period of work had done unsatisfactory
work on`at least four large-installation: jobs-in 1963, which had brought serious cus-
a In glass installation, Respondent's employees usually worked in crews of two men to a
truck, with one man as mechanic or, boss on the job, the other as his helper.
CAPLAN BROTHERS GLASS CO., INC. 1027
tourer complaints personally to Seidman ,3 on the basis of which he had denied
Herbert a raise in December 1963 (though he had given him one when he came back
to Respondent in August ) and then demoted him from mechanic to helper after a
violent quarrel during which Herbert used coarse language and refused to take out a
truck thereafter as mechanic While it is clear that Herbert had been far from satis-
factory as a mechanic or truck boss during his last 1963 employment , I consider this
defense spurious because ( 1) there is no credible proof that Seidman mentioned these
derelictions or his demotion on January 29 as reasons for discharge ; ( 2) no matter
how poor his performance had been in the past , Respondent had never disciplined him
before but always took him back, on two or three occasions as a helper and in his last
employment as a mechanic ( which was in effect a promotion ), because experienced
plate-glass mechanics were scarce , and Herbert had admittedly been a good workman,
and (3 ) Respondent 's willingness to forgive and forget past shortcomings is also
shown by repeated substantial loans to Herbert of large sums of money throughout his
employment and also special efforts in his last employment to have his driver's license
and car insurance reinstated after several serious accidents involving law violations.
These circumstances indicate that Respondent was trying at the hearing , as an after-
thought , to build a picture of Herbert as an unsatisfactory worker , and an ungrateful
one to boot , in order to conceal the true motive for his discharge.4
For reasons stated above , I credit Herbert 's version of the discharge interview out-
lined above , and discredit Seidman 's testimony thereon, including his denials of inter-
rogation of Herbert on January 28 and 29 , and find on the basis thereof that (1)
Respondent violated Section 8(a) (1) of the Act by Seidman's interrogation of Herbert
on January 28 and 29, 1964 , and other employees thereafter , about union activities of
employees, and by Seidman 's threat on January 29 to shut down the business and
reopen it under another name if the Union came into the plant; and ( 2) on Janu-
ary 29, 1964 , Respondent discharged Charles J. Herbert, and has since refused to rein-
state him , because of his union activities , thereby discouraging membership in a labor
organization , in violation of Section 8(a) (3) of the Act 5
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent set forth in section III, above , occurring in connection
with the operations of Respondent described m section I, above , have a close , intimate,
and substantial relation to trade, traffic, and commerce among the several States, and
tend to lead to labor disputes burdening and obstructing commerce and the free flow
thereof.
V. THE REMEDY
Having found that Respondent has engaged in and is engaging in certain unfair
labor practices, I shall recommend that Respondent be ordered to cease and desist
therefrom and to take certain affirmative action designed to effectuate the policies of
the Act
As I have found that Respondent discriminatorily discharged , and has refused to
reinstate , Charles J . Herbert, I shall recommend that it offer him immediate and full
reinstatement to his former or a substantially equivalent job, without prejudice to
seniority and other rights previously enjoyed, and make him whole for any loss of
earnings he may have suffered by reason of the discrimination against him , by pay-
ment to him of a sum of money equal to that which he would have earned as wages
from the date of the discrimination against him to the date of a proper offer of rein-
statement , less interim earnings, the amount to be computed in accordance with the
formula set forth in F . W. Woolworth Company, 90 NLRB 289, to which should be
added interest at the rate of 6 percent per annum as prescribed in Isis Plumbing &
Heating Co., 138 NLRB 716. I shall also recommend that Respondent be ordered
to preserve and make available to the Board or its agents, upon request , for exami-
nation and copying, all pertinent books and records which may be necessary to ana-
lyze and compute the amount of backpay due and the right to reinstatement under
these recommendations.
IIn the normal course of business , customer coniplaints of routine nature were taken
by telephone , and adjustments made on routine orders to the warehouse and installation
crews, only unusual and serious complaints were brought to Seidman personally for in-
cestieation and adjustment
i See Hurd Coiporation , 143 NLRB 306 , Hilnaa H Erikson et at , d/b / a Detroit Plastics
Products Company , 121 NLRI; 448 , 479-482
I have carefully considered other arguments made -by Respondent in its brief , and have
tound them without merit
1028 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In view of the variety of unfair labor practices committed, which indicate Respond-
ent's fundamental hostility to the purposes of the Act, I shall recommend the issuance
of a broad cease-and-desist order.
Upon the basis of the above findings of fact and the entire record in the case, I
make the following:
CONCLUSIONS OF LAW
1. The above-named Council and the Painters are labor organizations within the
meaning of Section 2(5) of the Act, and Respondent is an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of the Act.
2. By discriminating in regard to the hire and tenure of employment of Charles J.
Herbert, thereby discouraging membership in a labor organization, Respondent has
engaged in and is engaging in unfair labor practices within the meaning of Section
8 (a) (3) of the Act
3. By the above conduct, and by interrogating employees regarding their union
sentiments and activities, and threatening them with reprisals if any labor organization
organized its plant, thereby interfering with, restraining, and coercing employees in
the exercise of rights guaranteed to them by Section 7 of the Act, Respondent has
engaged in and is engaging in unfair labor practices within the meaning of Section
8(a)(1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
5. Except as found above, Respondent has not engaged in unfair labor practices as
alleged in the complaint.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact, conclusions of law, and the entire
record herein, and pursuant to Section 10(c) of the Act, I recommend that Respond-
ent, Caplan Brothers Glass Co., Inc., its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in or activity on behalf of Baltimore Building and
Construction Trades Council, or any of its affiliated labor organizations, or any other
labor organization, by discharging or refusing to reinstate any of its employees, or in
any other manner discriminating against employees in regard to their hire or tenure of
employment or any term or condition of employment.
(b) Interrogating employees regarding their union sentiments and activities or
threatening them with reprisals if any labor organization organized its plant.
(c) In any other manner interfering with, restraining, or coercing employees in
the exercise of rights guaranteed to them by Section 7 of the Act, or to refrain from
the exercise of any or all of such rights, 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 which is necessary to effectuate the policies
of the Act:
(a) Offer to Charles J. Herbert immediate and full reinstatement to his former or
substantially equivalent position without prejudice to seniority or other rights and
privileges previously enjoyed, and make him whole for any loss of earnings, in the
manner set forth in the section of this Decision entitled "The Remedy."
(b) Preserve and, upon request, make available to the Board or its agents, for
examination and copying, all payroll records, social security payment records, time-
cards, personnel records, and all other records necessary to analyze the amount of
backpay due and the right to reinstatement under the terms of this Recommended
Order.
(c) Post at its plant and place of business in Baltimore, Maryland, copies of the
attached notice marked "Appendix A." 6 Copies of said notice, to be furnished by the
Regional Director for Region 5, shall, after being duly signed by Respondent's repre-
sentative, 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 posted. Reasonable steps shall be taken by
Respondent to insure that such notices are not altered, defaced, or covered by any
other material.
6In the event that this Recommended Order be adopted by the Board, the words "a
Decision and Order" shall be substituted for the words "the Recommended Order of a
Trial Examiner" in the notice In the further event that the Board's Order be enforced
by a decree of a United States Court of Appeals, the words "a Decree of the United States
Court of Appeals, Enforcing an Order" shall be substituted for the words "a Decision-
and Order "
R.E.D.M. CORPORATION 1029
(d) Notify said Regional Director , in writing, within 20 days from the date of
receipt of this Decision , what steps Respondent has taken to comply herewith.?
I further recommend that the complaint herein be dismissed insofar as it alleges
violations of the Act other than those found in this Decision.
'In the event that this Recommended Order be 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 the Respondent has taken to comply herewith."
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board , and in order to effectuate the policies of the National Labor Rela-
tions Act, we hereby notify you that:
WE WILL NOT discourage membership in or activity on behalf of Baltimore
Building and Construction Trades Council, or any of its affiliated labor organi-
zations, or any other labor organization , by discharging or refusing to reinstate
any of our employees , or in any other manner discriminating against employees
in regard to their hire, tenure of employment, or any term or condition of
employment.
WE WILL NOT interrogate our employees regarding their union sentiments and
activities , or threaten them with reprisals if any labor organization organizes our
plant.
WE WILL NOT in any other manner interfere with, restrain, or coerce our
employees in the exercise of rights guaranteed to them by Section 7 of the Act,
or to refrain from the exercise of any or all of such rights, 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.
WE WILL offer Charles J. Herbert immediate and full reinstatement to his
former or substantially equivalent position without prejudice to seniority or
other rights and privileges previously enjoyed , and make him whole for any loss
of earnings he may have suffered by reason of our discrimination against him.
CAPLAN BROTHERS GLASS CO., INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative ) ( Title)
NOTE.-We will notify Charles J. Herbert 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 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.
Employees may communicate directly with the Board's Regional Office, Sixth
Floor , 707 North Calvert Street, Baltimore , Maryland, Telephone No. 752-8460,
Extension 2100, if they have any question concerning this notice or compliance with
its provisions.
1LE.D.M. Corporation and Faye Fiduccia. Case No. 22-CA-
1743. November 24, 1964
DECISION AND ORDER
On August 26, 1964, Trial Examiner John H. Eadie issued his
Decision in the above-entitled proceeding, 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
149 NLRB No. 98.