Erik Sheetmetal Corp.

National Labor Relations Board - Board Decisions

Mar 15, 1978

235 N.L.R.B. 132 (N.L.R.B. 1978)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Erik Sheetmetal Corporation and Lawrence Harvey
Foster. Case 2-CA-14254
March 15, 1978
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
PENELLO AND TRUESDALE
On December 14, 1977, Administrative Law Judge
Alvin Lieberman issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief, and the General Counsel filed
a brief in support of the Administrative Law Judge's
Decision.
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 the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,' and conclusions2 of the Administrative Law
Judge and to adopt his recommended Order.
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 and
hereby orders that the Respondent, Erik Sheetmetal
Corporation, Binghamton, New York, its officers,
agents, successors, and assigns, shall take the action
set forth in the said recommended Order, except that
the attached notice is substituted for that of the
Administrative Law Judge.3
l 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 credibili-
ty unless the clear preponderance of all of the relevant evidence 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 At fn. 21 of his Decision, the Administrative Law Judge found it
unnecessary to determine whether Foster's discharge, which he found
violative of Sec. 8(aX ), was also violative of Sec. 8(aX3) of the Act. In the
absence of exceptions thereto, Member Truesdale adopts, pro forma, the
forgoing footnote.
3 The Administrative Law Judge inadvertently omitted the broad cease-
and-desist language from his notice. We shall therefore modify the posting
notice to reflect his entire Order.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Act gives you, as
employees, the following rights:
To engage in self-organization
To form, join, or help a union
To bargain collectively through a repre-
sentative of your own choosing
To act together for collective bargaining
or other mutual aid or protection
To refrain from any or all of these things.
Accordingly, we give you these assurances.
WE WILL NOT discharge you or do anything else
to your disadvantage, and WE WILL NOT threaten
to do so, because you have notified your steward,
business agent, or union that we have been late in
paying you your wages.
WE WILL NOT discharge you, refuse to rehire
you, or do anything else to your disadvantage
because you have filed a charge against us with
the National Labor Relations Board.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of their rights guaranteed by Section 7 of
the Act.
As it has been decided that we discharged
Lawrence Foster because he notified his union
that we were late in paying wages and that we
refused to rehire Lawrence Foster because he
filed a charge against us with the National Labor
Relations Board,
WE WILL immediately offer to take Lawrence
Foster back to work for us at his old job or, if that
job no longer exists, to a job just like the one he
had when we discharged him, and we will pay
Lawrence Foster any wages he lost because we
discharged him and refused to rehire him, plus
interest.
ERIK SHEETMETAL
COKPORATION
DECISION
STATEMENT OF THE CASE
ALVIN LIEBERMAN, Administrative Law Judge: The
hearing in this proceeding, with all parties except the
Charging Party represented, was held before me in New
235 NLRB No. 25
132
ERIK SHEETMETAL CORPORATION
York, New York, on March 1 and 2, 1977, on the General
Counsel's complaint dated December 15, 1976,' and
Respondent's answer.2 In general, the issues litigated were
whether Respondent violated Section 8(a)(1), (3), and (4) of
the National Labor Relations Act, as amended. 3 More
particularly, the questions for decision are as follows:
I. Did Respondent threaten an employee, Lawrence
Foster, with reprisal for engaging in activity protected by
Section 7 of the Act and thereby violate Section 8 (aX)(1)?
2. Was the termination of Foster's employment viola-
tive of Section 8(aX I) or (3) of the Act?
3. Was Respondent's refusal to reemploy Foster after
he filed a charge with the Board against Respondent
violative of Section 8(aX4) of the Act? 4
Upon the entire record,5 upon my observation of the
witnesses and their demeanor while testifying, and having
taken into account the arguments made and the briefs
submitted, 6 I make the following:
FINDINGS OF FACT
7
I. JURISDICTION
Respondent, a New York corporation whose principal
office is located in Binghamton, New York, is a sheet metal
contractor in the building and construction industry.
During 1976, a representative period, Respondent derived
revenues in excess of $50,000 for performing construction
work within the State of New York for employers located
outside the State of New York. Accordingly, I find that
Respondent is engaged in commerce within the meaning of
the Act and that the assertion of jurisdiction over this
matter by the Board is warranted.
II. THE LABOR ORGANIZATION INVOLVED
Local 38, Sheet Metal Workers International Association
(herein called Local 38) is a labor organization within the
meaning of the Act.
III. INTRODUCTION
Briefly, this case is principally concerned with Respon-
dent's discharge and failure to rehire an employee, Law-
The complaint was issued pursuant to a charge filed on April 30, 1976.
2 At the hearing the pleadings were amended in several respects. Thus,
regarding the complaint, the following paragraph was substituted for par.
7(a): "On or about February II, 1976. Respondent terminated the
employment of its employee Foster"; and the phrase "termination of the
employment" was substituted for the word "discharge" in paragraph 7(b).
The answer was amended to admit the allegations of par. 5(b) of the
complaint and the allegations of pars. 7(a) and (b). as amended.
3 Set forth below are the relevant provisions of the Act to which reference
has been made in the text:
Sec. 8(a). It shall be an unfair labor practice for an employer-
(I) to interfere with, restrain, or coerce employees in the exercise of
the rights guaranteed in section 7;
(3) by discrimination in regard to hire or tenure of employment ...
to encourage or discourage membership in any labor organization .. .;
(4) to discharge or otherwise discriminate against an employee
because he has filed charges or given testimony under this Act ....
rence Foster. The General Counsel contends that Foster's
discharge violated Section 8(a)(1) and (3) of the Act, and
that Respondent refused to rehire Foster because he filed a
charge with the Board relating to his discharge, thereby
violating Section 8(aX4).
Respondent asserts that it discharged Foster for cause,
his poor production. Concerning its refusal to rehire
Foster, Respondent contends that to have done so would
have been inconsistent with its position that it discharged
him because his production was deficient.
IV. PRELIMINARY FINDINGS
8
A. Respondent's Business and Supervisory Hierarchy
Respondent, as already noted, is a sheet metal contractor
in the building and construction industry whose offices and
shop are located in Binghamton, New York. It is a wholly-
owned subsidiary of J & K Plumbing & Heating Company,
Inc. (J & K).
At all material times a hospital (herein called hospital
project) has been under construction on the grounds of the
United States Military Academy at West Point, New York.
The general contract to build this hospital was awarded to
Murray Walter. Walter subcontracted the plumbing, heat-
ing, and air-conditioning work on the project to J & K,
which, in turn, engaged Respondent to install sheet metal
heating and air-conditioning ducts.
Joseph Fedourich is J & K's superintendent at the
hospital project. He exercises general supervision of the
work performed there by J & K and its subcontractors,
including Respondent.
Walter Disotelle is Respondent's field superintendent.
He oversees all of Respondent's field installation work.
Disotelle does this by visiting all Respondent's construc-
tion sites about once or twice a week, spending short
periods of time at each.
Mauro Mazza is employed by Respondent as its foreman
at the hospital project. The complaint alleges, and the
answer admits, that Mazza is a supervisor.
Sec. 7, insofar as pertinent, provides as follows:
Sec. 7. Employees shall have the right to self-organization . 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 . .
4 This issue was not raised by the pleadings. However. it was fully
litigated at the heanng, thus making it proper for determination. REA
Trucking Company, Inc. v N.L.R.B., 439 F.2d 1065, 1066 (C.A. 9, 1971).
s Issued simultaneously is a separate order correcting inadvertent errors
in the stenographic transcript of this proceeding.
6 Although all the arguments of the parties and the authorities cited by
them, whether appearing in their briefs or made orally at the hearing, may
not be discussed, each has been carefully weighed and considered.
7 Respondent's motion made at the conclusion of the hearing and the
motions made during the hearing, upon which rulings were reserved, are
disposed of in accordance with the findings and conclusions set forth in this
Decision.
8 The purpose of these findings is to furnish a frame of reference within
which to consider the facts relating to Respondent's alleged unfair labor
practices and to the conclusions which they may give rise.
133
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. Respondent's Employees
All Respondent's employees at the hospital project,
except its foreman and one journeyman, were referred to
Respondent by Local 38. An employee, Jonathan Brooks,
hired as the result of such a referral, was discharged 3 days
after being hired when it developed that his work was
unsatisfactory.
C. Respondent's Contract With Local 38
At all material times Respondent and Local 38 have been
parties to a collective-bargaining agreements containing
the following pertinent provisions:
ARTICLE VIII
Section 9. Wages at the established rates specified
herein shall be paid before 3:30 p.m., in the shop or on
the job at or before quitting time on Friday of each
week and no more than two (2) days' pay will be
withheld. However, employees when discharged shall
be paid in full.
ADDENDA TO ARTICLE I
1. In the operation of fans and blowers in buildings
under construction prior to the completion of the work
and acceptance by the owner, both parties agree that a
journeyman sheet metal worker shall be employed by
the sheet metal contractor to attend any fan or blower
that may be placed in operation, except when the
H.V.A.C. Sheet Metal Contractor has men employed
on the job site between the hours of 8:00 A.M. and 3:30
P.M.. The second shift will consist of an 8 hour day
from 3:30 P.M. to 11:45 P.M.. The third shift will
consist of an 8 hour day between the hours of 11:45
P.M. and 8:00 A.M..
ADDENDUM TO ARTICLE VIII
PAYMENT OF WAGES BY CHECK
4. Payment by check is not to be made until written
permission is received by the Sheet Metal Contractor
and signed by the Local Union Business Manager.
An Employer approved to pay by check will have the
work week end on Tuesday and pay check must be
given to the Sheet Metal Journeyman or Apprentice on
Thursday of the same week at or before quitting time.
D. Respondent's Payday
In March or April 1975, before construction work was
begun at the hospital project, representatives of Respon-
dent and Local 38 attended a prejob conference. Among
the matters discussed was the day on which sheet metal
workers employed at the project by Respondent should be
paid. Because Respondent's payroll system is computerized
it was agreed that they should receive their wages by check
9 Resp. Exh. 2.
1o The complaint alleges that Foster's discharge was violative of Sec.
8(aXI) and (3) of the Act.
it Mauro Mazza, Respondent's foreman at the hospital project, testified
on Wednesday instead of in cash on Friday, as provided
for in their collective-bargaining agreement.
Another conference was held on this subject in October
1975. This was brought on because Respondent's sheet
metal workers had not been paid their wages on one
Wednesday in that month and, as James Lewis, Respon-
dent's vice president, testified, Local 38 "was unhappy
about that situation."
At this meeting Local 38's representatives proposed that
Respondent pay its employees in cash on Friday in
accordance with the contract. Respondent's payroll system
being computerized, compliance with Local 38's suggestion
would cost Respondent several thousand dollars and take 4
to 6 weeks to accomplish. For these reasons Respondent
resisted Local 38's proposal and it was ultimately agreed
that Respondent could continue to pay its employees by
check on Wednesday.
V. THE ALLEGED UNFAIR LABOR PRACTICES
A. Facts Concerning Respondent's Alleged 8(a)(1)
and (3) Violations
Lawrence Foster has been a journeyman sheet metal
worker and a member of Local 38 since 1956. On July 28,
1975, he was referred to Respondent's hospital project by
Local 38 and was hired on that day by Respondent. On
August 29, 1975, Foster was appointed by Local 38 to serve
as its steward at the hospital project. Foster was discharged
on February 11, 1976.10
During the period of his employment on the hospital
project, Foster's duties included the installation of sheet
metal ducts which were fabricated in Respondent's shop.
In doing this, Foster, as was the custom in the industry,
worked with a partner, who was not always the same
person. There is no credible evidence showing that either
Foster, or any partner with whom he worked, was informed
by any representative of Respondent that their production
was low."I
In this connection, Respondent keeps a daily record of
the amount of ducts installed by its entire crew. It does not,
however, record or measure the quantity of ducts installed
by any individual employee or any two employees working
as partners.
As earlier found, Respondent had undertaken to pay the
wages of its employees working on the hospital project on
Wednesday instead of Friday as required by its contract
with Local 38. Notwithstanding this, they were not paid on
several of the agreed-upon paydays.
Thus, Respondent's employees did not receive their
paychecks on one Wednesday in October 1975, as already
noted. Nor did they receive their paychecks on Wednes-
day, December 17, 1975. Instead, they were paid the next
day.
On the latter occasion employees working on the hospital
project who were members of Local 38 complained to
Foster, their steward, about this. Foster passed their
complaints on to John McCabe, Local 38's business agent.
that in November 1975 he said to Foster "you are not giving me ... what
you are capable of." Being of the opinion that Mazza was not a reliable
witness, I do not believe he was telling the truth in this instance.
134
ERIK SHEETMETAL CORPORATION
Early the next month McCabe spoke over the telephor
with Respondent's payroll clerk and, as James Lewi
Respondent's vice president, put it, "raised hell with her
because the employees had not been paid on December I
Upon learning, shortly after it occurred, that McCabe ha
been abusive to the payroll clerk, Mazza, Respondent
foreman, told Foster, as the former testified, that McCat
"was a stupid jerk for calling the girl up and chewing hi
out"; that "Lewis would get back to McCabe on th
matter"; and that he "didn't think we had heard the la
thing about this."
The final incident of nonpayment of wages on Wedne
day took place on January 21, 1976.12 Again employee
complained to Foster about not being paid and Fost,
once more reported the nonpayment to McCabe.'3
On January 22, McCabe, Local 38's business agen
discussed with Walter Disotelle and Lewis, respectivel-
Respondent's field superintendent and vice president, tf
matter of the employees' failure to receive their wages t'
previous day. Among other things, McCabe stated to thei
that he intended to file a grievance on the issue.
Later, on January 22, Mazza, Respondent's foreman,
approached Foster, told him that he had been informed
that Respondent had received a complaint concerning the
nonpayment of wages the day before, and inquired as to
the source of the complaint. Upon being informed by
Foster that he, as steward, had reported the matter to Local
38, Mazza angrily exclaimed to Foster, "You haven't heard
the last of this yet." 14
About 2 or 3 weeks before Mazza's foregoing conversa-
tion with Foster, Respondent had been informed that the
general contractor at the hospital project had changed the
sequence in which the construction work was to be
performed. As a result, additional sketching, engineering,
and fabrication were required to be done in Respondent's
shop during which it was contemplated that on-the-job
installation work would be substantially reduced.
The record is silent as to when this additional shop work
was begun. However, because few or no ducts were being
installed at the project while it was in progress, Respon-
dent, early in February, terminated the employment of
three installers, including Foster. In this connection, on
February 5, Respondent sent the following letter' 5 to
Local 38:
12 All dates hereinafter mentioned without stating a year fall within 1976.
13 The findings in this paragraph are based on testimony given by Foster,
who impressed me as being a meticulous witness with a high regard for the
truth, and McCabe. Respondent contends that it paid its employees on the
date in question. In support of this contention Respondent relies on the
testimony of Mazza, its foreman, who stated that he had "examineld]"
Respondent's "payroll records" from which examination he determined that
on January 21 he had laid off two employees. Mazza further testified that
Respondent's collective-bargaining agreement with Local 38 contains a
"requirement [that I when employees are laid off [they I have to [be paid I
everything.. owed them"; that he "paid those men off' from a "payroll
[he I received ... on January 21 "; and that this "indicated to [him I that pay
was not late on January 21." In the circumstances, it seems to me that if
Respondent's payroll records actually show that Mazza received a "payroll
. .on January 21" and that it was from this "payroll" that Mazza paid the
employees who were laid off at that time, Respondent would have offered
the January 21 "payroll." which Mazza testified he "examined," in evidence
Gentlemen:
On Wednesday, February 11, 1976 at the West Point
Military Academy Hospital, we are going to terminate
the employment of Lawrence Foster, Dick Foster, and
Michael Kuney. When and if we do decide to rehire
men on this project, we will accept the return of Dick
Foster and Michael Kuney, but not that of Lawrence
Foster, as, according to our Project Foreman, his work
has not been acceptable to our expectations. Please see
that he does not return to any Erik project under your
Local #38 jurisdiction.
Very truly yours,
Walter E. Disotelle
Superintendent
WED:sb
cc: J. Lewis
J. Fedourich, Project Foreman
W. Disotelle
To support the statement concerning Foster's work
appearing in its letter to Local 38, Respondent adduced
evidence which, if believed, shows that Foster's production
was deficient and that Respondent became aware of this
soon after July 28, 1975, the date on which Foster began to
work at the hospital project. Thus, Joseph Fedourich, the
project superintendent, testified that in July 1975, or early
in the following month, he "started feeling that [Foster]
wasn't doing his job." Walter Disotelle, Respondent's field
superintendent, testified that in September 1975 he "was
not happy with the [amount of] duct [Foster] had ... put
up" in a 3-hour period. Similarly, Mazza, Respondent's
foreman, stated that in October 1975 he "started to notice
kind of a slow down in [Foster's] pace."
B. Contentions and Concluding Findings Concerning
Respondent's Alleged 8(a)(3) and (1) Violations
Respondent contends that it terminated Foster's employ-
ment because his production was low. However, this
contention does not withstand scrutiny.
If the evidence adduced by Respondent concerning
Foster's low production is to be believed, it shows that
Respondent knew of Foster's production deficiency virtu-
ally from the very onset of his employment. Yet, as I have
found, at no time did Respondent call this to Foster's
to bolster his testimony on this critical point. However, without explanation,
Respondent did not do this. Respondent's failure to do so leads me to
believe that the payroll records would not have borne out its contention that
its employees were paid on January 21. As was stated in this respect in
Bechtel Corporation, 141 NLRB 844, 852 at fn. 9 (1973), "A litigant's
unexplained failure to offer material evidence warrants the inference that, if
he adduced the evidence, it would not support his position." Accordingly, I
place no credence on Mazza's testimony that "pay was not late on January
21."
4 The findings in this paragraph are based on, and the quotation
appearing in the text is taken from, Foster's testimony. Mazza did not testify
concerning his conversation with Foster on January 22 about Respondent's
failure to pay its employees the previous day. Nor could he have done so
without giving the lie to his testimony, already reported and rejected as
being untruthful (fn. 13), that the employees were paid on January 21.
15 G.C. Exh. 3. The Lawrence Foster mentioned in this letter is the
person involved in this proceeding.
135
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
attention. Nor did Respondent discharge Foster for this
ostensible reason until February 11, 1976, some 7 months
after he was hired. In contrast, another employee, Jonathan
Brooks, was discharged as soon as Respondent learned, on
the third day of his employment, that he was an unsatisfac-
tory worker.
The long period of time during which Respondent
suffered Foster's claimed shortcomings as an employee
without discharging him, notwithstanding the treatment
accorded Brooks, persuades me that Foster's claimed low
production was not the real reason for his discharge.
Respondent's contention that it discharged Foster for
low production is suspect for yet another reason. I have
found that although Respondent records daily the total
amount of ducts installed by its employees as a group, it
does not record or measure the quantity of ducts installed
by any individual employee or by any two employees
working as partners. Accordingly, since Respondent never
measured Foster's production, or the production of the
teams on which Foster worked, it is difficult for me to
accept Respondent's claim that Foster was a low producer.
"[T]he explanation of the discharge offered by the
respondent [having thus] fail[ed] to stand under scrutiny,"
I find that it is false. This being the case, an inference can
be drawn which is "unfavorable to respondent." N.L.R.B.
v. Dant, et al., 207 F.2d 165, 167 (C.A. 9, 1953).
The extent of the unfavorable inference which can be
drawn in such a situation was spelled out in Shattuck Denn
Mining Corporation (Iron King Branch) v. N.L.R.B., 362
F.2d 466, 470 (C.A. 9, 1966). There it was stated with sharp
explicitness:
If [the trier of fact] finds that the stated motive for a
discharge is false, he certainly can infer that there is
another motive. More than that, he can infer that the
motive is one that the employer desires to conceal - an
unlawful motive - at least where . . . the surrounding
facts tend to reinforce that inference.i
Having found that the "stated motive" for Foster's
discharge is false, I, as the "trier of fact," draw the
inference that Respondent's actual motive for discharging
Foster was to retaliate against him for having engaged in
activity protected by Section 7 of the Act. One need not
search long to find "surrounding facts tend[ing] to rein-
force that inference."
It is quickly found in the reaction of Mazza, Respon-
dent's foreman, to the information supplied by Foster that
it was he who had brought to the attention of his union
Respondent's default in paying its employees their wages
on January 21.17 At that time Mazza, in essence, foreshad-
is The principle thus ennunciated in Shattuck Denn was specifically
adopted by the Board in Atlantic Metal Products, Inc., 161 NLRB 919, 922
(1966).
i? Foster's having done so, as Respondent concedes on bnef. was
protected by Sec. 7.
18 "[A] discharge['s] timing [is] persuasive evidence as to motivation."
N.L.R.B. v. Montgomery Ward& Co., Inc., 242 F.2d 497. 502 (C.A. 2, 1957),
cert. denied 355 U.S. 829 (1957).
9 "[A I]n employer's tolerance of an employee's shortcomings until he
engages in Iprotected I activity is an indicium of discriminatory motivation."
Virginia Metalcrafters, Incorporated. 158 NLRB 958, 962 at fn. 9 (1966).
enfd. 387 F.2d 379 (C.A. 4, 1967).
owed Foster's discharge by telling him, as I have found,
that he had not "heard the last of this yet."
It is also found in the timing of Foster's discharge,
coming, as it did, soon after Respondent learned that he
had informed Local 38 that Respondent's employees had
not received their wages on January 21. 8 This fact must be
considered in conjunction with Respondent's sufferance of
Foster's asserted low production for many months without
even so much as a reprimand before discharging him for
this ostensible reason. When so considered it leads me to
believe that Foster's claimed low productivity had nothing
to do with his discharge and that the discharge was, in fact,
motivated by Foster's having engaged in activity protected
by Section 7 of the Act; i.e., his reporting to his union
Respondent's failure to pay wages on January 21.19
Accordingly, I conclude that by threatening to discharge
Foster,2 0 and by discharging him, Respondent violated
Section 8(a)(1) of the Act. 21
C. Facts Concerning Respondent's Alleged 8(a)(4)
Violations
In December 1976, after Lawrence Foster's discharge
and during the pendency of the charge he filed in this
proceeding, Respondent requested Local 38 to refer two
sheet metal workers to its hospital project for employment
in connection with the maintenance of equipment used to
provide temporary heat. Learning that Foster would be one
of the two to be referred pursuant to its request, James
Lewis, Respondent's vice president, sought advice as to
hiring Foster from James Hensley, the manager of an
association of which Respondent is a member.
In discussing the situation with Hensley, Lewis told him,
as Lewis testified, that the instant proceeding "was still
open" and asked whether Respondent "would be able to
[hire] Foster. . . without prejudicing [its] situation involv-
ing this matter." Hensley recommended that Respondent
not hire Foster.
Accordingly, Lewis informed Charles Hertel, Local 38's
president, that "as long as this case was open [and Foster's]
charge was still in effect," Respondent would not hire
Foster to maintain the temporary heat equipment. Lewis
further informed Hertel that Foster would be hired if he
"dropped the case." 22
Hertel notified Foster of the condition to his hiring
imposed by Lewis, but Foster refused to withdraw his
charge. As a consequence, Foster was not hired by
respondent.
20 This conclusion is based on the statement made by Mazza, Respon-
dent's foreman, to Foster that he had not "heard the last" of his having
notified Local 38 that wages were not paid on January 21. I construe this
statement as having been a threat violative of Sec. 8(aX1) of the Act, to
retaliate against Foster for engaging in protected activity.
21 In view of the fact that the remedy would be the same, it is
unnecessary to determine whether, as alleged in the complaint, Foster's
discharge was also violative of Sec. 8(aX3) of the Act. Interboro Contractors,
Inc., 157 NLRB 1295, 1302 (1966), enfd. 388 F.2d 495 (C.A. 2, 1967).
22 The findings in the paragraph are based on, and the quotations
appearing in the text are taken from, testimony given by Lewis and Hertel.
136
ERIK SHEETMETAL CORPORATION
D. Contentions and Concluding Findings Concerning
Respondent's Alleged 8(a)(4) Violations
"An employer's refusal to rehire an employee because he
has filed charges violates [Section 8(a)(4) of] the Act."
Selwyn Shoe Manufacturing Corporation, 172 NLRB 674,
680 (1968).23 See also, to the same effect, N.L.R.B. v.
Syracuse Stamping Co., 208 F.2d 77, 80 (C.A. 2, 1953) and
Dubin-Haskell Lining Corp., 154 NLRB 641, 653 (1965),
enfd. in pertinent part 386 F.2d 306 (C.A. 4, 1967).
Notwithstanding this well-settled principle, Respondent
argues that it should not be found to have violated Section
8(a)(4) of the Act by conditioning Foster's rehire upon the
withdrawal of his charge because had it hired Foster while
his charge was outstanding its position regarding his
discharge would have been prejudiced. I find no merit in
this argument.
A similar contention was raised in Syracuse Stamping,
supra. In rejecting this contention as being without validity
the court stated:
It has been suggested that to force the company to
rehire an employee while charges of discriminatory
discharge are pending is unfair because it might act as
an admission. But the company can refuse to rehire on
any number of valid grounds such as incompetency, no
vacancies, etc., and as long as it makes its position clear
it will not be in difficulty. We accordingly think there is
no validity in the suggested objection.
Accordingly, I conclude that, by conditioning Foster's
rehire upon the withdrawal of the unfair labor practice
charge he had earlier filed, Respondent violated Section
8(a)(4) of the Act.
VI. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
Respondent's unfair labor practices, occurring in con-
nection with its operations set forth in section 1, above,
have a close, intimate, and substantial relationship to trade,
traffic, and commerce among the several States and tend to
lead to labor disputes burdening and obstructing com-
merce and the free flow of commerce.
vii. THE REMEDY
Having found that Respondent engaged in unfair labor
practices within the meaning of Section 8(a)(l) and (4) of
the Act, my recommended Order will require Respondent
23 The Court of Appeals for the Eighth Circuit denied enforcement of the
Board's Order in SelHwvn Shoe in the respect here under consideration.
However, enforcement was withheld not because the court was of the
opinion that the Board's statement of the law was erroneous, but because
the court felt that the Board's finding that the employee involved was
discharged "because she filed charges . . . [was] not supported by
substantial evidence on the record as a whole." That the court did not
disagree with the Board's statement of the law is made plain by the
following passage appeanng in the court's opinion: "Section 8(a)4) of the
Act makes it an unfair labor practice for an employer 'to discharge or
otherwise discriminate against an employee because he has filed charges
.... ' An employer's refusal to rehire an employee because he has filed
charges ... violates the 'otherwise discriminate' provision of Section
8(aX4)." N.L.R.B. v. Selwyn Shoe Manufacturing Corporation. 428 F.2d 217,
219 (C.A. 8, 1970).
to take such affirmative action as will effectuate the
policies of the Act. In the latter connection, I will require
Respondent to offer full and immediate reinstatement to
Lawrence Foster and to make him whole for any losses he
may have suffered by reason of his discharge and Respon-
dent's subsequent refusal to rehire him. Any backpay
found to be due to Foster shall be computed in accordance
with the formula set forth in F. W. Woolworth Company, 90
NLRB 289 (1950),24 and shall include interest in the
manner prescribed in Florida Steel Corporation, 231 NLRB
651 (1977).25
Upon the basis of the foregoing findings of fact, and
upon the entire record in this case, I make the following:
CONCLUSIONS OF LAW
I. Respondent is an employer within the meaning of
Section 2(2) of the Act and is engaged in commerce within
the meaning of Section 2(5) and (7) of the Act.
2. Local 38 is a labor organization within the meaning
of Section 2(5) of the Act.
3. By the following conduct Respondent has engaged,
and is engaging, in unfair labor practices within the
meaning of Section 8(a)(1) of the Act:
(a) Threatening to retaliate against an employee for
engaging in conduct protected by Section 7 of the Act.
(b) Discharging Lawrence Foster for engaging in con-
duct protected by Section 7 of the Act.
4. By conditioning Lawrence Foster's rehire upon the
withdrawal of a charge previously filed by him under the
Act, thereby discriminating against Foster for having filed
said charge, Respondent has engaged in, and is engaging
in, an unfair labor practice within the meaning of Section
8(a)(4) and (1) of the Act.
5. The unfair labor practices engaged in by Respon-
dent, as set forth, above, affect commerce within the
meaning of Section 2(6) and (7) of the Act.
Upon the foregoing findings of fact, conclusions of law,
and upon the entire record, and pursuant to Section 10(c)
of the Act, I hereby issue the following:
ORDER 26
The Respondent, Erik Sheetmetal Corporation, Bing-
hamton, New York, its officers, agents, successors, and
assigns, shall:
1. Cease and desist from:
(a) Threatening employees with any form of reprisal for
engaging in any activity protected by, or guaranteed in,
24 On brief, Respondent argues that because Foster was employed in the
construction industry, asserted by Respondent to be "seasonal" in the State
of New York. the "mechanical application of Woolworth may produce pay
awards that reward not compensate and that penalize the employer rather
than make whole the employee." The short answer to this argument is that
no evidence was adduced to establish that the construction industry in New
York is seasonal in nature. Moreover, I have been cited to no authonty
warranting my takingjudicial notice of this.
25 See, generally. Isis Plumbing & Heating Co., 138 NLRB 716 (1962).
26 In the event no exceptions are filed as provided in Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings.
conclusions, and Order herein shall, as provided in Sec. 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.
137
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Section 7 of the National Labor Relations Act, as amend-
ed.
(b) Discharging, suspending, laying off, taking any other
form of disciplinary action against, or in any other manner
affecting adversely the hire or tenure of employment or any
term or condition of employment, of any employee for
engaging in any activity protected by, or guaranteed in,
Section 7 of the National Labor Relations Act, as amend-
ed.
(c) Refusing to rehire, discharging, suspending, laying
off, or in any other manner discriminating against any
employee because he has filed charges or given testimony
under the National Labor Relations Act, as amended.
(d) In any other manner interfering with, restraining, or
coercing employees in the exercise of their right to self-
organization, to form, join, or assist labor organizations, to
bargain collectively through representatives of their own
choosing, or to engage in other concerted activities for the
purpose of collective bargaining or other mutual aid or
protection as guaranteed in Section 7 of the National
Labor Relations Act, as amended, or to refrain from any or
all such activities, except to the extent that such right may
be affected by an agreement requiring membership in a
labor organization as a condition of employment in
conformity with Section 8(aX3) of the Act.
2. Take the following affirmative action which, it is
found, will effectuate the policies of the Act:
27 In the event that 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 National Labor Relations Board" shall read "Posted Pursuant to a
(a) Offer Lawrence Foster immediate and full reinstate-
ment to his former job or, if that job no longer exists, to a
substantially equivalent job without prejudice to his senior-
ity or other rights and privileges, and make him whole in
the manner set forth in the section of this Decision entitled
"The Remedy" for any loss of earnings he may have
suffered by reason of Respondent's unlawful conduct.
(b) Preserve and, upon request, make available to the
Board, or its agents, for examination and copying, all
payroll records, social security payment records, timecards,
personnel records and reports, and all other records
necessary to analyze the amount of backpay due under the
terms of this Order.
(c) Post at its premises copies of the attached notice
marked "Appendix." 27 Copies of said notice on forms
provided by the Regional Director for Region 2, after
being duly signed by an authorized representative of
Respondent, shall be posted by Respondent immediately
upon receipt thereof, and be maintained by Respondent for
60 consecutive days thereafter, in conspicuous places
where notices to employees are customarily posted. Rea-
sonable steps shall be taken by Respondent to insure that
said notices are not altered, defaced, or covered by any
other material.
(d) Notify said Regional Director, in writing, within 20
days from the date of this Order, what steps Respondent
has taken to comply herewith.
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
138