Carbone-Ferraz, Inc.

National Labor Relations Board - Board Decisions

Nov 3, 1977

233 N.L.R.B. 219 (N.L.R.B. 1977)

CARBONE-FERRAZ, INC.
Carbone-Ferraz, Inc. and Local 810, Steel, Metals,
Alloys and Hardware Fabricators and Warehouse-
men, affiliated with International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Help-
ers of America. Case 22-CA-7372
November 3, 1977
DECISION AND ORDER
BY MEMBERS JENKINS, PENELLO, AND MURPHY
On June 2, 1977, Administrative Law Judge
Stanley N. Ohlbaum issued the attached Decision in
this proceeding. Thereafter, Respondent filed excep-
tions and a supporting brief, and the General
Counsel filed with the Board the brief he submitted
to the Administrative Law Judge.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and attached
Decision in light of the exceptions and briefs and has
decided to affirm the rulings, findings,' and conclu-
sions of the Administrative Law Judge and to adopt
his recommended Order, as modified herein. 2
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge, as
modified below, and hereby orders that the Respon-
dent, Carbone-Ferraz, Inc., Rockaway, New Jersey,
its officers, agents, successors, and assigns, shall take
the action set forth in the said recommended Order,
as so modified:
1. Substitute the following for paragraph 2(a):
"(a) Offer to Michael McKevitt immediate and full
reinstatement to his former position or, if that
position no longer exists, to a substantially equiva-
lent position, without prejudice to his seniority and
other rights, privileges, benefits, and emoluments,
including but not limited to pay raises in the interim
and also currently applicable pay scales; and make
him whole for any loss of pay and other monetary
loss (including overtime, holiday, and vacation pay
and insurance benefits and reimbursements, if any),
together with interest, as set forth in fn. 2 of the
Board's Decision."
2. Substitute the attached notice for that of the
Administrative Law Judge.
i The Respondent has excepted to certain credibility findings made by
the Administrative Law Judge. It is the Board's established policy not to
overrule an Administrative Law Judge's resolutions with respect to
credibility unless the clear preponderance of all of the relevant evidence
233 NLRB No. 37
convinces us that the resolutions are incorrect. Standard Dry Wall Products.
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have
carefully examined the record and find no basis for reversing his findings.
2 The backpay ordered for McKevitt will be computed in accordance
with F. W. Woolworth Company, 90 NLRB 289 (1950); Isis Plumbing &
Heating Co., 138 NLRB 716 (1962); and Florida Steel Corporation, 231
NLRB 651 (1977). In accordance with our decision in Florida Steel
Corporation, we shall apply the current 7-percent rate for periods prior to
August 25, 1977, in which the "adjusted prime interest rate" as used by the
Internal Revenue Service in calculating interest on tax payments was at least
7 percent.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had the opportunity
to present evidence, the National Labor Relations
Board has decided that we have violated the
National Labor Relations Act, as amended, and has
ordered us to post this notice and comply with its
terms. We intend to abide by the following:
WE WILL NOT discharge, terminate the employ-
ment of, lay off, suspend, or refuse to reinstate,
rehire, or reemploy, or discriminate in employ-
ment against, any employee because he votes in a
Board-conducted union representation election,
or because he is a member of or sympathetic to or
active on behalf of any union, or because he
exercises or seeks to exercise any other right
under the National Labor Relations Act.
WE WILL NOT discourage or encourage mem-
bership in any labor organization by discriminat-
ing in regard to hire or tenure of employment or
any term or condition of employment, in viola-
tion of said Act.
WE WILL NOT in any other manner interfere
with, coerce, or restrain employees in the exercise
of their rights protected by Section 7 of the Act.
WE WILL offer Michael McKevitt immediate
and full reinstatement to his former or substan-
tially equivalent job and seniority with us, and WE
WILL pay him for any wages and benefits lost by
him because of our discharge of him on Novem-
ber 17, 1976, plus interest.
WE WILL remove from our records all indica-
tions that Michael McKevitt was discharged by
us on or about November 17, 1976, because of
any fault on his part; and WE WILL make no such
statement to any employer, potential employer, or
character inquiry.
CARBONE-FERRAZ, INC.
219
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
DECISION
PRELIMINARY STATEMENT; ISSUE
STANLEY N. OHLBAUM, Administrative Law Judge: This
proceeding' under the National Labor Relations Act, as
amended (28 U.S.C. § 151, et seq.) was heard before me in
Newark, New Jersey, on April 14, 1977, with all parties
participating throughout by counsel, who were afforded
full opportunity to present evidence and arguments and
who filed posttrial briefs received by May 16, 1977. Record
and briefs have been carefully considered.
The principal issue presented is whether Respondent
violated Section 8(a)(3) and (1) of the Act by discharging
and failing and refusing to reinstate its employee Michael
McKevitt because of his exercise of rights protected under
the Act; namely, voting in a Board-conducted union
representation election.
Upon the entire record and my observation of the
testimonial demeanor of the witnesses, I make the
following:
FINDINGS AND CONCLUSIONS
I. JURISDICTION
At all material times, Respondent Carbone-Ferraz, Inc.,
has been and is a New Jersey corporation engaged in the
business of manufacturing, selling, and distributing electri-
cal fuses and related products at and from its principal
plant and office at Elm and Sickel Avenues, Rockaway,
New Jersey, where in the representative year immediately
preceding issuance of the complaint it manufactured, sold,
and distributed over $50,000 worth of such products
directly in interstate commerce to persons in States other
than New Jersey.
I find that at all material times Respondent has been and
is an employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act; and that at all of those
times the Charging Party Union has been and is a labor
organization as defined by Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Discharged Employee's Version
Michael McKevitt, age 21, entered Respondent's employ
in October 1975 as an automatic screw machine and lathe
setup man and operator, tasks mostly requiring standing.
So far as appears, his job performance was unfaulted and
satisfactory. In a vehicular accident on August 23, 1976, he
sustained bodily injuries resulting in hospitalization and,
among other things, his fractured left leg being placed in a
cast, temporarily precluding work. On the day after the
accident, he telephoned Respondent from the hospital,
reporting the situation, stating that he would be away from
work for some months. According to the testimony of
I Based on January 28, 1977. complaint growing out of December 20,
1976, charge of the above Charging Party Union.
2 Cf. Excelsior Underwear Inc.. 156 NLRB 1236 (1966).
3 Although Christiansen denies such a conversation with McKevitt.
comparing testimonial demeanor observations within the context of the
record as a whole I credit the testimony of McKevitt, an open-faced young
Respondent's plant manager, Ernest Bouyet, McKevitt's
father, also within a day or two, reported the incident to
Bouyet, who already knew about it from a newspaper
account indicating that McKevitt had sustained serious
injuries "in a very bad accident." Further, according to
Bouyet, medical forms subsequently filed by McKevitt's
physician confirmed that McKevitt's injuries were "exten-
sive" and expected to continue to the end of that year
(1976).
In late October or early November (1976), McKevitt, of
whose condition his Employer had concededly been kept
apprised through medical and other reports, was contacted
at home by Respondent's personnel director, Kenneth
Christiansen, to ascertain when he expected to return to
work, since the plant was busy and he was "needed" there.
McKevitt concededly informed Christiansen (who passed
the information on to Bouyet) that he anticipated being
able to do so in "a couple of weeks when I get my cast
removed."
On November 5, after Christiansen's inquiry of McKev-
itt as to when he would be returning to work, McKevitt was
visited at home by the Charging Party Union's organizer,
Max John Sanches, as a result of the latter's seeing
McKevitt's name on an Employer-supplied "Excelsior"
list 2 of employees eligible to vote in a statutory representa-
tion election scheduled to take place under Board auspices
on November 12. Sanches visited McKevitt-whom he did
not know-in order to solicit McKevitt's vote for the
Union, which McKevitt assured him he would so cast at
the election. When Sanches visited McKevitt to persuade
him to vote for the Union in the upcoming election,
McKevitt was unaware of the impending election, since he
had not been informed of it before Sanches did so for the
Union. Sanches again contacted McKevitt on the date of
the election to assure his presence there because his
promised vote for the Union could be critical. Sanches'
testimony corroborates that of McKevitt that when
McKevitt voted without lawful challenge at the November
12 election-which the Union lost by a 23-13 vote, with 6
challenged ballots-his left leg was still visibly in a cast.
On November 23, 1976, McKevitt was permitted by his
physician to return to work, although not discharged from
further medical treatment or observation. Accordingly, on
the next morning, November 24, McKevitt telephoned
Respondent's personnel director, Christiansen, and in-
formed him he was now able to return to work. Christian-
sen thereupon told McKevitt he was terminated. When
McKevitt asked him why, Christiansen told him it was
costing the Company too much to carry him on disability,
but suggested he come in and talk it over with Plant
Manager Bouyet.3 McKevitt did so, visiting the plant later
that day, where Bouyet confirmed that he had been
discharged. When McKevitt asked him why, Bouyet said it
was "because [you] came to the plant to vote in the
union" 4 as well as because it was costing the Company too
much to carry him on disability and because he had failed
man who impressed me as testifying honestly and forthrightly as to what
occurred.
4 Upon comparative testimonial demeanor observations, I credit
McKevitt's testimony-which I believe to be candid and honest-over
Bouyet's denial, which impressed me as of dubious reliability, not only
220
CARBONE-FERRAZ, INC.
to call in "every two days" as required, calling to
McKevitt's attention a notice (which McKevitt had never
before seen) on the bulletin board allegedly to that effect.5
McKevitt said it was "a raw deal" and went home.6 A few
days later McKevitt returned to the plant for unemploy-
ment insurance application purposes, inquiring of Chris-
tiansen the exact date of his termination. He was told it was
November 17. It is undisputed that McKevitt was at no time
prior to his telephone call or visit to the plant on or around
November 24 informed by Respondent of his discharge.
B. Employer's Contentions
Respondent conceded upon the record that McKevitt's
discharge was not based on any disability or inability on his
part to perform his job.7 Respondent contends that
McKevitt was discharged because he "violated the compa-
ny rule on reporting"; 8 i.e., the aforedescribed notice
allegedly posted on the bulletin board. I unequivocally
reject this "explanation" as the true reason for McKevitt's
discharge. I base this rejection not only on testimonial
demeanor as observed, but also on the considerations set
forth in footnote 5, above. According to Respondent's
plant manager, Bouyet, although he had been informed by
Personnel Director Christiansen that McKevitt had report-
ed in to Christiansen at the end of October or beginning of
November that he expected to be returning to work in 2
weeks (i.e., around mid-November) and he (Bouyet) had
never invoked the so-called call-in rule against McKevitt
because he (Bouyet) was aware of McKevitt's condition
and knew McKevitt was unable to return to work,
nevertheless when he (Bouyet) learned that McKevitt had
come to the plant to vote in the Board-conducted election
on November 12 (Friday) and reportedly "seemed to be
fine," he (Bouyet) decided to immediately enforce the
supposed "two-day" reporting requirement against
McKevitt-concededly without in any way apprising
McKevitt thereof-so that Bouyet automatically regarded
McKevitt as discharged on November 17 (Wednesday).9
According to Bouyet, although Respondent had not
informed McKevitt of his discharge, McKevitt incompre-
hensibly appeared at the plant on November 18 (Thursday)
and demanded to know why he had been terminated.
Bouyet as well as Christiansen profess to be at a loss to
account for McKevitt's knowledge that he had been
discharged, since they (Bouyet and Christiansen) insist
McKevitt had not been notified of his discharge.
In addition and contradistinction to the foregoing,
Bouyet testified that McKevitt had been permanently
replaced on November 10, 1976, by one Watts, a tempo-
because of the less persuasive manner in which it was uttered but also
because of incredible equivocations as well as concessions of Respondent, as
described below.
5 The alleged notice (Resp. Exh. 6), which bears the date June 17, 1976,
requires employees expecting to be tardy or absent to telephone in;
otherwise, "after two (2) days." failure to do so "could result in possible
termination," since "the Company will presume that you have voluntarily
resigned." As indicated below, this requirement seems clearly inapplicable
to the situation here, where according to Bouyet's own testimony McKevitt
as well as his father had called in, Respondent was fully conversant with
McKevitt's condition, Respondent had been not only willing to but desirous
of returning McKevitt to duty, and it was utterly clear that McKevitt was
not abandoning or resigning his job. Moreover, I credit McKevitt's
testimony that at no time had any "call-in" policy so much as been
mentioned to him by Respondent.
rary employee hired shortly before, in September; and that
in any event McKevitt would not have been rehired
because Watts was more competent. But this appears to be
at odds with the fact that Respondent invited McKevitt to
return to his job and its further concession that he was not
terminated because of "inefficiency or anything relating to
his job performance" and also with Respondent's conten-
tion that it only for the first time on November 12-2 days
after its allegedly having replaced him with Watts-learned
of McKevitt's supposed ability to resume his job; and,
finally, with Respondent's repeated assertions here that it
discharged McKevitt only because of his failure to comply
with its alleged 2-day call-in requirement. Under these
circumstances, it would seem that Bouyet's contention that
McKevitt was "permanently replaced" by Watts on
November 10 (which was not in any event persuasively or
credibly established by objective or corroborative evidence
which would presumably be readily available to Respon-
dent if true) is a mere ploy to attempt to relate McKevitt's
termination to a date prior to the election- notwithstand-
ing Bouyet's own contrary testimony that McKevitt was
discharged on November 17. Finally, Bouyet also testified
firmly that if he had "seen" a cast on McKevitt's leg when
McKevitt visited his office on November 18 (Bouyet only
denies seeing it then "to the best of my knowledge" since "I
[Bouyet] was sitting at my desk and my desk is relatively
high"), he would not have terminated him. The plain fact is
that McKevitt did indeed still visibly have a cast on his leg
not only at the election but also when he visited Bouyet's
office in regard to his job; that cast was removed in mid-
December, and McKevitt was finally medically released by
his physician at the end of December 1976 or beginning of
January 1977.
C. Resolution and Rationale
Weighing comparative testimonial demeanor, as ob-
served, within the framework of the record as a whole, I am
compelled to regard Respondent's alleged explanations for
its precipitate discharge of McKevitt after he unexpectedly
voted in the election-in the face of Respondent's
expressed encouragement before then of his return as
"needed"--as strained, farfetched, unpersuasive, not ring-
ing true, and incredible. McKevitt was a satisfactory
worker who, after suffering an accident preclusive of early
return to work, not only promptly informed Respondent of
these facts, but was actively encouraged by Respondent to
6 Bouyet also said he would "keep [your ] name on record, on file, and if
anything [comes] up [I will] call lyoul back." McKevitt has never been
recalled or contacted.
Mr. Hawkey. Respondent's counsel, testified:
JUDGE OHLBAUM: Mr. Hawkey is it your client's contention that Mr.
McKevitt was denied the opportunity to return to work because of a
disability?
MR. HAWKEY: No.
a Testimony of Respondent's plant manager Bouyet; repeated by him on
rebuttal. The same position is taken by Respondent in its posttnal bnef.
9 Elsewhere, Bouyet testified the date of McKevitt's discharge was
November 18.
221
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
return to its employ-until he unexpectedly voted in a
Board-conducted union representation election. 0o Immedi-
ately thereafter, the atmosphere drastically changed: he
was not only no longer welcome to return, but without
notification he was summarily terminated. Respondent
now says he was discharged because he failed to comply
with its alleged 2-day reporting-in requirement. To begin
with, even assuming such a "requirement" was made
known to its employees, it was inapplicable to the situation
here. Concededly, both McKevitt and his father notified
Respondent of his condition and prognosis within 2 days
after his accident; concededly Respondent continued,
through medical reports and otherwise, to be fully aware of
McKevitt's condition; concededly Respondent was well
aware that McKevitt was not abandoning, relinquishing, or
resigning from his job; concededly Respondent was willing
to and desirous of permitting McKevitt to return to his job
until McKevitt voted in the Board-conducted union
election; concededly Respondent did not discharge
McKevitt because of disability or inability to do his job; 1I
and concededly Respondent would not have discharged
McKevitt if it had known the fact that at the time of his
discharge his left leg was still in a cast. Under all of these
circumstances, Respondent's contention that it discharged
McKevitt because of his failure to comply with the alleged
2-day call-in requirement is unpersuasive and pretextual,
and is rejected. To the contrary, I find that Respondent's
discharge of McKevitt was at least in controlling and
determinative part the result of his return to the plant to
cast a ballot-in exercise of his statutorily guaranteed right
under Section 7 of the Act-in the Board-conducted Union
representation election on November 12, 1976.12 In short,
Respondent's "explanation" here simply "fails to stand
under scrutiny." N.L.R.B. v. Thomas W. Dant, et al., d/b/a
Dant & Russell, Ltd., 207 F.2d 165, 167 (C.A. 9, 1953). 1
find that Respondent's termination of McKevitt, under the
circumstances described, was because of his having voted
in the Board-conducted election on November 12, 1976, in
exercise of his rights under Section 7 of the Act.
Upon the foregoing findings and the entire record, I state
the following:
CONCLUSIONS OF LAW
I. Jurisdiction is properly asserted in this proceeding.
2. Respondent's terminating Michael McKevitt on or
about November 17, 1976, as alleged in the complaint,
constituted, under the circumstances described and found,
unfair labor practices in violation of Section 8(a)(3) and (1)
of the Act.
'0 Respondent's plant manager, Bouyet, concedes he was informed that
McKevitt had showed up at the plant to vote at the Board-conducted
election on November 12, although Respondent had not informed McKevitt
of the election notwithstanding its having included him on its "Excelsior"
list of employees comprising the bargaining unit.
" In view of this concession and Respondent's further contention that
the reason it discharged McKevitt was his failure to comply with its alleged
2-day call-in requirement, it is clear that McKevitt's precise physical job
capabilities, in terms of or in contrast to whether he met any particular
insurance, compensation, or unemployment program definition of (partial)
"disability" is not contrary to Respondent's attempts to raise such
diversionary "issues" herein-called in question in this proceeding.
12 In this aspect, Bouyet's professed but factually mistaken assumption
3. Respondent's said unfair labor practices have affect-
ed, affect, and unless permanently restrained and enjoined
and affirmatively remedied will continue to affect, com-
merce within the meaning of Section 2(6) and (7) of the
Act.
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'3
The Respondent, Carbone-Ferraz, Inc., its officers,
agents, successors, and assigns, shall:
I. Cease and desist from:
(a) Terminating the employment of, discharging, laying
off, suspending, or refusing to reinstate, rehire or reemploy,
any employee because he votes in any Board-conducted
representation or other election under the National Labor
Relations Act, as amended, or because of his membership
in, sympathy for, or lawful activity on behalf of any labor
organization, or because he exercises, asserts, or seeks to
exercise or assert, any right under the Act.
(b) Discouraging or encouraging membership in any
labor organization by discriminating in regard to hire or
tenure of employment or any term or condition of
employment, in violation of said Act.
(c) In any other manner interfering with, restraining, or
coercing any employee in the exercise of the right to self-
organization; to form, join, or assist any labor organiza-
tion; to bargain collectively through representatives of his
own choosing; to engage in concerted activities for the
purpose of collective bargaining or other mutual aid or
protection; or to refrain from any or all such activities.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Offer to Michael McKevitt immediate, full, and
unconditional reinstatement to his former or substantially
equivalent position, without prejudice to his seniority and
other rights, privileges, benefits, and emoluments, includ-
ing but not limited to pay raises in the interim and also
currently applicable pay scales; and make him whole for
any loss of pay and other monetary loss (including
overtime, holiday, and vacation pay, and insurance
benefits and reimbursements if any), together with interest,
computed as explicated in F. W. Woolworth Company, 90
NLRB 289 (1950), and Isis Plumbing & Heating Co., 138
NLRB 716 (1962).
(b) Forthwith expunge from the personnel, employment,
and all other records of Michael McKevitt, all statements,
references, and entries that he was discharged from
Respondent's employ for any work-related fault, deficien-
on November 12 that McKevitt was no longer wearing a cast and therefore
at that time fully capable of working at his regular job, cannot in any event
be regarded as justifying the discharge, since it was mistaken and the
professed "mistake" arose out of alleged observations during the course of
protected concerted activity; i.e., participation in the Board-conducted
election of November 12, on McKevitt's part. Cf. N.LR.B. v. Burnup and
Sims, Inc.. 379 U.S. 21, 23 (1964).
13 In the event no exceptions are filed under Sec. 102.46 of the Board's
Rules and Regulations, the findings and conclusions and the following
recommended Order shall, under Sec. 102.48 of those Rules and Regula-
tions, be adopted by the Board and become its findings, conclusions and
Order, and all objections thereto shall be deemed waived for all purposes.
222
CARBONE-FERRAZ, INC.
cy, infraction, or reason; and refrain from so writing,
stating, or indicating to any employer, potential employer,
or character inquiry.
(c) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, wage scale records and notations, social
security payment records, timecards, personnel records and
reports, and all other records and entries necessary or
appropriate to determine the amount of backpay and other
sums and benefits due under and the extent of compliance
with this Order.
(d) Post at its premises in Rockaway, New Jersey, copies
of the attached notice marked "Appendix."' 4 Copies of
14 In the event this Order is enforced by Judgment of a United States
Court of Appeals, the words in the Notice "Posted by Order of the National
Labor Relations Board" shall read "Posted Pursuant to a Judgment of the
said notice, on forms provided by the Board's Regional
Director for Region 22, shall, after being duly signed by
Respondent's authorized representative, be posted by
Respondent immediately upon receipt thereof and main-
tained 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 said notices are not
altered, defaced, or covered by any other material.
(e) Notify said Regional Director in writing, within 20
days from the date of this Order, what steps Respondent
has taken to comply herewith.
United States Court of Appeals Enforcing an Order of the National Labor
Relations Board."
223