Chelsea Laboratories, Inc.

National Labor Relations Board - Board Decisions

Dec 22, 1986

282 N.L.R.B. 500 (N.L.R.B. 1986)

500 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Chelsea Laboratories, Inc. and Kismath Sooknanan.
Case 29-CA-11697
22 December 1986
BY CHAIRMAN DOTSON AND MEMBERS
BABSON AND STEPHENS
On 8 May 1986 Administrative Law Judge Elea-
nor MacDonald issued the attached decision. The
Respondent filed exceptions and a supporting brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and brief and has
decided to affirm the judge's rulings, frldings,1 and
conclusions and to adopt the recommended Order
as modified.
The Respondent contends that the judge found
that the Respondent had violated the Act on a
theory of protected concerted activity other than
the theory alleged in the complaint. It argues that
this variance between the complaint allegations and
the judge's findings warrants dismissal of the com-
plaint. We find no merit to the Respondent's con-
tentions for the following'reasons.
The pertinent facts, as found by the judge and
which are not in dispute, show that in September
1984 Teamsters Local 918 was the certified bar-
gaining representative of the Respondent's employ-
ees. On 9 October 1984, following a discussion
with a committee of employees, including Charg-
ing Party Sooknanan, who were dissatisfied with
the conduct of Local 918, employee shop steward
Velez filed a decertification petition. In the result-
ing decertification election held 30 November 1984,
a majority of employees voted against continued
representation by Local 918. Election objections,
timely filed first with the Regional Director and
subsequently with the Board, were pending at the
time of the following events.2
After the election, the employees received a
letter, dated 7 December 1984, from the Company,
thanking them for rejecting union representation,
giving them insurance coverage, and promising ad-
ditional information on a future wage increase.
Also sometime in December, a dispute arose be-
tween the Respondent's president, Getrajdman, and
employees concerning overtime work. Sooknanan
and Velez approached the Respondent's vice presi-
1 The Respondent has excepted to some of the judge 's credibility find-
ings. The Board's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect. Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951).
We have carefully examined the record and find no basis for reversing
the findings.
s The Board certified the results of the election on 12 March 1985.
dent and offered to help resolve the dispute. At the
same time, Sooknanan and Velez asked the vice
president if the Company would recognize Local
815, another Teamsters Local, once Local 918 was
decertified. $ The vice president promised to bring
this request to the Respondent's board of directors.
Sooknanan and Velez then met with employees
and persuaded them to do the overtime work, tell-
ing them to have patience until the decertification
of Local 918 was completed and Local 815 could
begin representing them. Subsequently, in Decem-
ber 1984, the employee committee approached Ge-
trajdman about their request regarding the recogni-
tion of Local 815. Getrajdman indicated he could
not give an answer but promised there would be a
"dialogue" before any decision, was made. Sook-
nanan also indicated the employees were dissatis-
fied because they had not gotten the promised
wage increase. Later that day, Velez and Sook-
nanan met with employees and related their con-
versation with Getrajdman. Several days later,
Sooknanan individually approached Getrajdman,
indicating that employees were dissatisfied with
Local 918 and that Sooknanan had become in-
volved, in the situation in an effort to help the
people:,
In,- early February 1985, Sooknanan asked Ge-
trajdman, about :rumors that the,pending election
objections, had been overruled. Getrajdman indicat-
ed that'he had, no knowledge as to the status of the
objections and promised to get back to Sooknanan.
Several Y ,days later, the Respondent's production
manager informed a group of approximately eight
employees, including Sooknanan, that Local 918
had filed, an appeal with the Board regarding the
Regional Director's recommendation that the ob-
jections be overruled and that there would be no
raise until this appeal was decided. By letter dated
15 February 1985, however, the Respondent in-
formed the employees that they would receive a
wage increase, effective 22 February 1985, and ret-
roactive to December 1984. Additionally, the letter
informed employees that, effective immediately,
they would become participants in the company
group profit-sharing plan and that all current work-
ing conditions such as holidays, vacations, sick
leave, and seniority would remain in effect. The
letter further expressed the Company's appreciation
to employees for deciding to join the percentage of
the work force in the United States that is non-
union. On 19 February 1985 Sooknanan was ap-
S Record testimony shows that prior to the decertification election an
unspecified number of employees had signed cards in support of Local
815 and had given them to Velez. There is, however, no showing that a
request for recognition, based on a showing of employee support, was
made at any relevant time.
282 NLRB No. 74
CHELSEA LABORATORIES, INC.
proached at work by an employee who showed
him a copy of the 15 February letter and who
asked him to explain the apparent conflict between
the Respondent's statement that there would be no
raise until the Board reached a decision on the
election objections and the 15 February letter
granting, inter alia , a wage increase to employees.
The employee also indicated to Sooknanan that she
thought no increase would be given until the de-
certification` proceeding was over and that she
wondered whether this meant that Local 918 was
out, Local 815 was in, or if the Company was
going nonunion. Sooknanan - then went to Velez
with the letter, and together they went to see Ge-
trajdman. During 'the ensuing discussion as to the
contents of the letter and their meaning, Sooknanan
asked Getrajdman about the promised dialogue.
Getrajdman and Sooknanart became involved in an
argument, which resulted in Sooknanan's dis-
charge.
The complaint alleged that Sooknanan was dis-
charged for protesting the Respondent's grant of a
wage increase on 15 February 1985, while objec-
tions to the decertification election were pending.
During the hearing, Sooknanan's testimony clearly
revealed that his '19 February protest was not di-
rected toward the Respondent's grant of a wage in-
crease because election objections were pending.
Rather, the testimony revealed that the protest,
which came in response to the 15 February letter,
concerned what, to Sooknainan and other employ-
ees, represented a decision by the Respondent to
renege on its earlier promise to hold a dialogue
with employees before deciding whether to recog-
nize another local. These facts, which provide the
basis for the judge's finding that Sooknanan Was
engaged in protected concerted activity at the time
he was discharged, were fully litigated at the hear-
ing. As all the facts were not specifically alleged in
the, complaint, we nonetheless find it inaccurate to
say that the theory regarding the protected con-
certed nature of Sooknanan's protest is not encom-
passed ' by the complaint, particularly where the
complaint, allegations placed the Respondent on
notice that the announcement of the wage increase
in the 15 February letter was the genesis of Sook-
nanan's protest and that the 15 February letter and
19 February conversation were the focus of the
General Counsel's case.,
The Respondent does not now claim that it was
precluded from presenting exculpatory evidence,
nor does it argue that it would have altered the
conduct of its case at the hearing in any particular.
Further, although the Respondent now claims it
had no notice of the specific basis for the violation
found, the brief before us addresses the law and the
501
sufficiency of the facts now contained in the record
with respect to the protected concerted nature of
Sooknanan's protest of the Respondent's breach of
promise regarding the dialogue. Accordingly, as
we find that the theory was encompassed in the
complaint and that all the operative facts underly-
ing the 8(a)(1) finding are present in the record, we
shall reject the Respondent's argument that vari-
ance provides a basis for dismissal in this case. See,
e.g., Baytown Sun, 255 NLRB 154 fn. 1 (1981);
George C Foss Co. v. NLRB, 752 F.2d 1407 (9th
Cir. 1985).
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent, Chelsea Laboratories, Inc., Inwood, New
York, its officers, agents, successors, and assigns,
shall take the action set forth in the Order as modi-
fied.4
1. Substitute the following for paragraph 2(b).
"(b) Remove from its files any reference to the
unlawful discharge and notify the employee in
writing that this has been done and that the dis-
charge will not be used against him in any way."
2. Substitute the attached notice for that of the
administrative law judge.5
4 The modified Order corrects certain inadvertent errors contained in
the recommended Order,.
s The attached notice corrects certain inadvertent errors contained in
that of the judge.
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 has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representa-
tives of their own choice
To act together for other mutual aid or pro-
tection
To choose not, to engage in any of these
protected concerted activities.
WE WILL NOT discharge any of you for engaging
in concerted activities.
502 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT, in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
WE WILL offer Kismath Sooknanan immediate
and full reinstatement to his former job or, if that
job no longer exists, to a substantially equivalent
position, without prejudice to his seniority or any
other rights or privileges previously enjoyed and
WE WILL make him whole for any loss of earnings
and other benefits resulting from his discharge, less
any net interim earnings, plus interest.
WE WILL notify him that we have removed from
our files any reference to his discharge and that the
discharge will not be used against him in any way.
CHELSEA LABORATORIES, INC.
Martha Rodriguez Esq., for the General Counsel.
Martin Gringer, Esq. (Marshall Miller Associates), of Hew-
lett, New York, for the Respondent.
DECISION
STATEMENT OF THE CASE
ELEANOR MACDONALD , Administrative Law Judge.
This case was tried in Brooklyn , New York, 'on 28 Octo-
ber 1985 . The complaint alleges that Respondent , in vio-
lation of Section 8 (a)(1) of the Act, discharged its em-
ployee Kismath Sooknanan because he engaged in con-
certed activity by protesting the announcement of a
wage increase and in order to discourage employees
from engaging in protected concerted activities.
On the entire record, including my observation of the
demeanor of the witnesses, and after consideration of the
briefs filed in January 1986 by Respondent and the Gen-
eral Counsel , I make the following
FINDINGS OF FACT
1. JURISDICTION
Respondent, a New York corporation with an office
and plant in Inwood, Nassau County, New York, manu-
factures, sells, and distributes pharmaceutical and related
products . Respondent annually purchases goods in excess
of $50,000 in interstate commerce . Respondent admits,
and I find that it is an employer engaged in interstate
commerce within the meaning of Section 2 (2), (6), and
(7) of the Act and that Local 918, International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America is a labor organization within the
meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
The facts in this case are not open to serious dispute.
Indeed, a careful reading of the testimony shows that the
witnesses did not contradict each other in most respects.
For a number of years, Local 918 had represented the
employees of Respondent. In September 1984, shop
steward Jose Velez asked Charging Party Kismath Sook-
nanan to serve on the employee negotiating committee.'
Soon after this at a meeting attended by about six em-
ployees, Velez stated that Local 918 was not represent-
ing the employees properly, and it was decided to file a
decertification petition.
On- 30 November 1984, a decertification election was
held at which Sooknanan acted as an observer for the
petitioner. The majority voted to decertify Local 918
and the Union filed objections to the election.
Although the objections were pending, Velez and
Sooknanan heard that there was a problem concerning
overtime in the packaging department in building 2.
They spoke to Len, Respondent's vice president for op-
erations, who told them that the Company needed the
employees to work overtime. Len asked Velez and Sook-
nanan to persuade the employees to work overtime.
Then the three men began discussing the decertification
proceedings. Velez and Sooknanan asked Len if manage-
ment would recognize Local 815 after the decertification
of Local 918 became final. Len did not know but he
promised to bring the matter up at a forthcoming meet-
ing of the board of directors of Respondent. Velez and
Sooknanan spoke to the workers in building 2; Velez
told the employees to be patient until the objections
were decided and Local 815 could begin representing
them. Velez said that the Company had not harmed the
workers but that Local 918 had represented them poorly.
Then Sooknanan spoke. He reminded the employees that
he was a long service worker; he said he trusted Len to
be fair and he asked the employees to continue working
overtime. The employees complied with the request. On
7 December 1985, the employees received a letter from
the president of Rugby Laboratories thanking them for
rejecting representation by any union.2 The letter in-
formed the, employees that they were now covered by
Respondent's insurance plans and that, "In the near
future, you will be getting more specific information as
to what your wage increase will be."
Sometime in December, the employee committee went
to speak to Nat Getrajdman, the president of Respond-
ent, about their request that Respondent recognize Local
815. Len and Plant Manager Lederman joined the group.
The committee asked President Getrajdman if Respond-
ent would recognize Local 815 when Local 918 was de-
certified. Getrajdman said he could not give an answer
but he promised that there would be a "dialogue" before
any decision was made. Sooknanan said the people were
dissatisfied because they had been promised a raise but
had not gotten it. Some other job related concerns were
discussed. Getrajdman assured the committee members
that he would speak to them before a decision was made
and "that his doors are always open and anyone could
come in at any time and speak to him."
At the 3 p.m. break that day, Velez and Sooknanan
met with the employees and related their conversation
1 Sooknanan had been employed by Respondent since March 1979.
2 Respondent is a division of Rugby Laboratories.
CHELSEA LABORATORIES, INC. 503
with Getrajdman. Velez told the employees that they
should have patience.
A few days later, Sooknanan went to see Getrajdman
in his office to explain his position. He said he was help-
ing the employees for humanitarian reasons ; the people
had complained about Local 918 and he was trying to
help them. The two men assured each other that they
both had the best interests of the Company and the em-
ployees at heart and then they shook hands.
In early February, some employees told Sooknanan
that they had heard that the objections had been over-
ruled. Sooknanan asked Getrajdman about this, but the
latter did not know and said he would find out. A few
days later, Suresh, a supervisor in the compression de-
partment, told some employees that Local 918 had ap-
pealed to Washington and that there would be no raise
until the appeal was decided. In fact, the Regional Direc-
tor for Region 29 had recommended on 25 January 1985
that the objections be overruled; Local 918 filed excep-
tions to the Regional Director's report on 6 February
1985.
On 19 February, the employees received another letter
from the president of Rugby Laboratories telling them
that they would receive an immediate wage increase ret-
roactive to 14 December 1984. The letter referred to
other working conditions and stated that the employees
had decided "to join the over eighty (80 percent) of the
workforce in the United States that is non-union." Sook-
nanan did not understand why Respondent had granted a
raise after informing the employees that it would not do
so until the Union's objections had been ruled on in
Washington. Employee Mary Giannone asked Sook-
nanan about the situation. She had also understood that
no raise could be granted until the decertification pro-
ceeding was settled. She wanted to know if Local 918
was out, if Local 815 was in, or if Chelsea was ' going
nonunion.
According, to Sooknanan, he and Velez went to Ge-
trajdman's office Velez asked about the letter and Ge-
trajdman said that he knew about the letter. Sooknanan
said that Getrajdman had promised to have a dialogue
before a. decision was made . Getrajdman responded,
"[W]hatever the letter says, that is what is going to be."
Then Sooknanan asked, "[W]hat are you trying to do,
push things down people's throats?" Getrajdman re-
sponded that he did not wand, to speak to anyone from
the union committee. Sooknanan asked why he had not
said that in the first place. By this time, both men had
raised their voices, and Getrajdman, said, "[Y]ou cannot
speak to me that way, I'm the President." He then told
Sooknanan that he was fired. He said, "I have witnesses,
you can't speak to me that way." Getrajdman then told
Velez "to watch how he spoke around this place and
watch who he spoke to."
On cross-examination, Sooknanai acknowledged that
when he confronted Getrajdman he was not protesting
the fact that Respondent had granted a raise while Local
918's objections were pending in Washington. Sooknanan
stated that he wanted to get "clarification?' Sooknanan
was confused because Respondent had told its employees
that no raise would be granted until a decision on the ob-
jections had been rendered. In his mind, this was con-
nected to Respondent's promise to engage in a dialogue
before it made a decision whether to recognize Local
815, because the recognition decision was also to be
made after the decision on objections. Sooknanan be-
lieved, that the granting of a wage increase showed that
everything was "final" and that "the company did not
recognize anybody." Sooknanan believed that this consti-
tuted a breach of the commitment to talk to the people
before reaching a decision on recognizing Local 815. He
was surprised that Getrajdman, "a man of integrity," had
not fulfilled his' promise.
Getrajdman's version of the meeting does not contra-
dict Sooknanan's in any material fashion. According to
Getrajdman, after he had acknowledged that he knew
about the letter, Sooknanan said, "[Y]ou cannot do this,
it's illegal." Getrajdman responded that granting the
raise Was not illegal and that the Company would stick
to its decision. According to, Getrajdman, Sooknanan
then "became very upset [and] started screaming at me."
Getrajdman told him twice not to raise his voice "that I
was the president of the company and I didn't have to
take it," but Sooknanan did not let him finish. At that
point, Getrajdman fired Sooknanan.
After Getrajdman testified, Sooknanan denied saying
the wage increase was illegal.
Where the accounts given by Getrajdman and Sook-
nanan differ, I shall credit Sooknanan. Sooknanan had a
better, recollection than did Getrajdman; the latter was
not able, to testify in as much detail as'Sooknanan and he
admitted that he could not recall what Sooknanan's
claims were during their meeting. Getrajdman summa-
rized what Sooknanan was saying, as, "[W]e have no
right to give a raise out and that we promised him-I
don't know what. . . ." Getrajdman did not deny that
he raised his voice during the discussion.
Various employee warning records of Respondent
were introduced into evidence involving warnings for
"uncooperative" attitude, pushing a supervisor in anger,
and insubordination. The employees warned were not
discharged for their misdeeds; the employee who pushed
his supervisor was warned that a similar future occur-
rence might result in suspension or termination.
B. Conclusions
It is clear that Getradjman and Sooknanan had a dis-
cussion in which both raised their voices. Sooknanan was
complaining because it seemed to him that Getradjman
had promised that a "dialogue" would take place before
a decision' whether to recognize a new local union was
made by Respondent. Since Respondent had emphasized
that neither the decision about recognition nor the long
delayed raise could be ° granted until the status of Local
918 was finally resolved, the two matters were linked in
the employees' minds. Thus, when Respondent sent its
letter of 15 February 1985, referring to both a "non-
union" work force and the retroactive raise, it seemed
that Respondent had decided not to recognize Local 815
without first engaging in the promised discussions.
Indeed, Getrajdman affirmed this view when he said he
did not want to speak to a union committee.
504 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Manifestly , Sooknanan was engaging in concerted ac-
tivities when he asked Getrajdman in the presence of
Shop Steward Velez and on behalf of other employees
about the seeming contradiction between Respondent's
letter and Getrajdman's earlier promises. Sooknanan did
not lose the protection of the Act by raising his voice;
Getrajdman also raised his voice and, in contrast to the
cases cited by Respondent, Sooknanan did not use ob-
scenity or violence. Further, Respondent's records show
employees who push their supervisors in anger are
merely warned and not suspended or discharged. Here,
all Sooknanan did was raise his voice.
Respondent makes much of the fact that the complaint
alleges that Sooknanan was engaged in concerted activi-
ty when he "protested Respondent's announcement that
it was granting employees the wage increase ." Sook-
nanan admitted that he was not protesting the wage in-
crease; in fact, he was asking about the letter and pro-
testing the totality of Respondent's conduct in not dis-
cussing matters with the employee committee as prom-
ised. As Sooknanan testified, the wage increase showed
that Respondent had made a final decision about not rec-
ognizing Local 815 but had not discussed the matter
with the employees beforehand. Getrajdman understood
this protest very well-he told Sooknanan that he did
not want to speak to the employee committee.
Although the complaint condenses the transaction by
describing it as a "protest" about the announcement of a
wage increase, it was manifest throughout the instant
hearing what Sooknanan's complaint had been, just as it
must have been manifest to Getrajdman on 19 February
1985 . When Getrajdman told Sooknanan that he did not
want to speak to members of the committee and then
fired Sooknanan for continuing to raise the issue, he
knew very well that Sooknanan believed he had broken
his promise to speak to the employees before any deci-
sion was reached about recognizing a union.
Respondent, citing Emporium Capwell Co. v. Western
Addition Community Organization, 420 U.S. 50 (1975),
urges that Sooknanan was fired because he was insisting
that Respondent bargain with one union while another
was the certified representative. This theory does not fit
the facts. Sooknanan was not demanding bargaining over
the wage increase nor was Sooknanan demanding that
Respondent bargain with Local 815. Rather, he was
asking Getrajdman about his promise to discuss the issue
of recognition with the employees before any decision
was made. This matter of concern to all the unit employ-
ees had been discussed with Respondent over a period of
time. The Supreme Court's decision in Emporium Cap-
well, supra, stated that the principle of majority rule was
"[c]entral to the policy of fostering collective bargain-
ing" and that any bargaining by a minority group would
be in derogation of the majority representative's ability
to bargain on behalf of the entire unit. Sooknanan, on
behalf of the other employees, was asking Respondent
whether it would adhere to its promise that a discussion
would take place if Local 918 were decertified. There is
no way this inquiry as to Respondent's future actions can
be construed as a present demand for bargaining.
CONCLUSIONS OF LAW
1. By discharging its employee Kismath Sooknanan be-
cause he engaged in concerted activities, Respondent
violated Section 8(a)(1) of the Act.
2. The aforesaid unfair labor practice is an unfair labor
practice affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
REMEDY
Having found that Respondent engaged in certain
unfair labor practices, I find it necessary to order it to
cease and desist and to take certain affirmative action de-
signed to effectuate the polices of the Act.
Having unlawfully discharged Kismath Sooknanan,
Respondent must offer him reinstatement and make him
whole for any loss of earnings and other benefits, com-
puted on a quarterly basis from date of discharge to date
of proper offer of reinstatement, less any net interim
earnings , as prescribed in F. W. Woolworth Co., 90
NLRB 289 (1950), plus interest as computed in Florida
Steel Corp., 231 NLRB 651 (1977).
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
eds
ORDER
The Respondent, Chelsea Laboratories, Inc., Inwood,
New York, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Discharging any employee for engaging in concert-
ed activities.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Offer Kismath Sooknanan immediate and full rein-
statement to his former job or, if that job no longer
exists, to a substantially equivalent position, without prej-
udice to his seniority or any other rights or privileges
previously enjoyed, and make him whole for any loss of
earnings and ' other benefits suffered as a result of the dis-
crimination against him, in the manner set forth in the
remedy section of this decision.
(b) Remove from its files any reference to the unlawful
discharge and notify the employee in writing that this
has been done and that the discharge will not be used
against him in any way.
(c) Preserve and, on request, make available to the
Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records nec-
essary to analyze the amount of backpay due under the
terms of this Order.
a If no exceptions are filed as provided by Sec. 102.46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules , be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
CHELSEA LABORATORIES, INC. 505
(d) Post at its facility copies in both English and Span-
ishof the attached notice marked "Appendix."4 Copies of
the notice, on forms provided by the Regional Director
for Region 29, afer being signed by the Respondent's au-
If this Order is enforced by a judgment of a United States court of
appeals , the words in the notice reading "Posted by Order of the Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."
thorized representative, shall be posted by the Respond-
ent immediately upon receipt and maintained for 60 con-
secutive days in conspicuous places including all places
where notices to employees are customarily posted. Rea-
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by
any other material.
(e) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.