Fairprene Industrial Products Co., Inc.

National Labor Relations Board - Board Decisions

Jan 31, 1989

292 N.L.R.B. 797 (N.L.R.B. 1989)

FAIRPRENE INDUSTRIAL PRODUCTS
Fairprene Industrial Products Company , Inc and
Fairfield Employees Association Case 39-CA-
3445
January 31, 1989
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND HIGGINS
On June 24, 1988, Administrative Law Judge
Marion C Ladwig issued the attached decision
The Respondent filed exceptions and a supporting
brief, and the General Counsel filed an answering
brief The General Counsel also filed cross-excep-
tions and a supporting brief, and the Respondent
filed an answering 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 briefs and has
decided to affirm the judge's rulings, findings, i and
conclusions and to adopt the recommended Order
as modified
The judge found, inter alia, that Supervisor
Wayne Hurd's questioning of employee Doris Jack-
son was not coercive The General Counsel con-
tends that Hurd's questioning of Jackson was coer-
cive because Hurd failed to follow the safeguards
set forth in Providence Hospital 2 We agree with the
General Counsel
The undisputed testimony establishes that on
March 31, 1987, the day after the Union gave
notice to the Company of its intention to strike at
midnight on March 31, Hurd approached Jackson
and asked whether she would report to work if the
Union went on strike Jackson answered that she
would not report to work but that she would not
picket
In Providence Hospital, the Board found that if an
employer asks employees whether they plan to par-
ticipate in a strike, the employer must fully explain
the purpose of the inquiry, assure them that it will
not take reprisals as a result of their response, and
otherwise refrain from creating a coercive atmos-
phere Hurd did not provide Jackson with an ex-
planation for his strike inquiry, nor did he give her
' The Respondent has excepted to some of the judge s credibility find
rags 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 F2d 362 (3d Cir 1951)
We have carefully examined the record and find no basis for reversing
the findings
The Respondent has requested oral argument This request is denied as
the record exceptions and briefs adequately present the issues and the
positions of the parties
2 285 NLRB 320 fn 2 (1987)
797
assurances against reprisal when he questioned her
Because Hurd did not follow the requirements set
forth in Providence Hospital, the Respondent violat
ed Section 8(a)(1) by coercively interrogating Jack
son regarding her intentions in the event of a
strike
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re
spondent, Fairprene Industrial Products Company,
Inc, Fairfield, Connecticut, its officers, agents, suc
cessors, and assigns, shall take the action set forth
in the Order as modified
1 Insert the following as paragraph 1(a) and re-
letter the subsequent paragraphs
"(a) Coercively interrogating employees regard-
ing their intentions in the event of a strike "
2 Substitute the following for current paragraph
1(e) now lettered (f)
"(f) In any like or related manner interfering
with, restraining, or coercing employees in the ex
ercise of the rights guaranteed them by Section 7
of the Act "
3 Substitute the attached notice for that of the
administrative law 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
WE WILL NOT fail to bargain in good faith with
Fairfield Employees Association as the exclusive
representative of our employees in the bargaining
unit
WE WILL NOT discharge or otherwise discrimi-
nate against any of you for engaging in union or
protected concerted activity
WE WILL NOT discharge or otherwise discrimi-
nate against any of you for being named in an
NLRB charge
WE WILL NOT threaten to suspend any of you
for wearing a sign with a lawful prounion message
WE WILL NOT coercively interrogate any of you
regarding your intentions in the event of a strike
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
292 NLRB No 84
798 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
WE WILL offer the following employees immedi-
ate and full reinstatement to their former jobs or, if
those jobs no longer exist, to substantially equiva-
lent positions, without prejudice to their seniority
or any other rights or privileges previously en-
joyed and WE WILL make them whole for any loss
of earnings and other benefits resulting from our
refusal to reinstate them, less any net earnings, plus
interest:
Valerie Adintori
Larry Burt
Maureen Dirga
Rodney Hoheb
Joseph Indenbaum
Doris Jackson
Kurt Kalaus
Warren Kalaus
David Nelson
Paul Pelletier
George Pospisil
Ralph Toms
Leslie Wargo
Clarence Wheeler
Richard Womic
WE WILL notify each of them that we have re-
moved from our files any reference to the refusal
to reinstate and that the refusal to reinstate will not
be used against them in any way.
FAIRPRENE INDUSTRIAL PRODUCTS
COMPANY, INC.
Thomas W. Meiklejohn, Esq., for the General Counsel.
William H. Smith Jr., Esq., of Columbia, South Carolina,
for the Respondent.
Paul Chill, Esq., of New Haven, Connecticut, for the
Union.
DECISION
STATEMENT OF THE CASE
MARION C. LADWIG, Administrative Law Judge. This
case was tried at Hartford, Connecticut, on February 29
and March 1, 1988. The charge was filed April 6, 19871
(amended May 21 and September 25), and the complaint
was issued September 27 and amended at the trial.
The Union (a small unaffiliated association) called a
strike on April 1 without giving the 8(d)(3) notices. The
strike ended early Friday morning, April 3, when the
Union accepted the Company's last offer and the Compa-
ny agreed to reinstate all the strikers. That afternoon,
after receiving confirmation that the 8(d)(3) notices had
not been filed, the Company discharged 15 of the former
strikers for having engaged in an unlawful strike.
The primary issues are whether the Company, the Re-
spondent, (a) unlawfully reneged on its agreement to re-
instate all the strikers; (b) discriminatorily discharged the
15 former strikers; (c) discharged two of them for having
been the subject of an earlier charge; and (d) unlawfully
threatened and interrogated employees, violating Section
8(a)(1), (3), (4), and (5) of the National Labor Relations
Act.
' All dates are in 1987 unless otherwise indicated.
On the entire record, including my observation of the
demeanor of the witnesses, and after considering the
briefs filed by the General Counsel and the Company, I
make the following
FINDINGS OF FACT
1. JURISDICTION
The Company, a corporation, manufactures gaskets at
its facility in Fairfield, Connecticut, where it annually
ships goods valued over $50,000 directly outside the
State. It admits and I find that it is an employer engaged
in commerce within the meaning of Section 2(2), (6), and
(7) of the Act and that the Union is a labor organization
within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Bad-Faith Bargaining
1. Promise of no reprisals
The Union, which has represented employees at the
Fairfield plant since 1951, had never before engaged in a
strike. In 1984, after the Company purchased the plant
from Du Pont and retained all except 3 of the approxi-
mately 100 employees, the Union signed a 3-year agree-
ment with the Company covering the following appro-
priate unit:
All production, maintenance, shipping and office
employees employed by Fairprene Industrial Prod-
ucts Company, Inc. at its Fairfield facility, exclud-
ing watchmen, executive and administrative person-
nel, confidential secretaries, and guards, professional
employees and supervisors as defined in the Act.
Under this agreement, which was effective until March
31, 1987, the unit employees retained their Du Pont se-
niority. (Jt. Exhs. 1 & 2; Tr. 46, 110, 223.)
Human Resources Manager Anthony Tecci was the
Company's chief spokesman in the February and March
negotiations for a new agreement (Jt. Exh. 1, par. 5; Tr.
224-225). The Union sought the participation of one of
the three vice presidents. Vice Presidents Kenneth
Lakich, Paul Timmons, and Michael Coco manage the
plant, reporting to Chief Executive Officer Jerry Zucker
in Charleston, South Carolina (Tr. 184-186).) After con-
sulting with the vice presidents, Tecci reported back that
they were too busy to attend the meetings and that he
would be the chief spokesman for the Company. (Tr.
106.)
All except three of the unit employees went on strike
April 1 (Tr. 47). That first day the Company sent the
strikers letters (Jt. Exhs. 6 & 7), warning them that it
would begin hiring permanent replacements Monday,
April 6, and that checks for insurance premiums must be
received from the strikers by that date for April cover-
age.
About 1 p.m. on Thursday, April 2, after the strikers
began receiving the warning letters, Union President
Samuel Anzolletti telephoned Tecci and said he "felt it
was in the best interest of all the employees and of the
FAIRPRENE INDUSTRIAL PRODUCTS 799
Company to get everybody back to work, for the team
to negotiate on a day to day basis ' Tecci stated he
would forward the proposal to his superiors (Tr 48-49 )
About 5 30 that Thursday afternoon Anzolletti, with
Area Representative Joseph Indenbaum, went to the
plant gate and spoke to Tecci As credibly testified by
Anzolletti (who impressed me most favorably by his de
meanor on the stand as an honest , forthright witness)
Tecci stated that the Union s proposal was not satisfac
tory, that "they felt that their proposal was a fair propos
al, ' and that they were no longer interested in negotiat
ing further " Tecci added, however, that the Company
was interested in getting the plant back in operation and
the Company proposed that if we accepted their last pro
posal there would be no reprisals then against any of the
picketers Anzolletti responded that it was obvious he
would need some time to get to the people but as a
show of good faith we would pull our picket lines
down (Tr 49-51, 127)
As recalled by Indenbaum (who also appeared to be
an honest witness) Tecci said that Anzolletti's proposal
to return to work and go back to the negotiating table
had been flatly rejected, but that the Company was anx
ious to have the employees back to work and if the
Union would accept the Company s firm and final
prestrike offer, all the striking employees would be re
turned to work and that no reprisals would be taken
against any of the picketers (Tr 128- 129) Indenbaum
also credibly recalled that Anzolletti said As a gesture
of good faith that we were going to suspend our picket
ing (Tr 130)
I discredit , as fabrications Tecci's claims that (1) he
made no statement about reprisals not being taken, (2) he
never heard the word reprisals" before, (3) there was
no longer [a company] offer that was available to [the
Union] " (4) he did not tell Anzolletti what it would
take to settle the strike and (5) the vice presidents had
not given him permission to tell Anzolletti that all the
strikers would come back to work (Tr 303-306 315-
317, 324) Neither Vice President Coco nor Vice Presi
dent Timmons admitted authorizing Tecci to promise no
reprisals Coco claimed that he merely told Tecci to
report back to Anzolletti That his proposition was un
acceptable and I don t know that [Tecci] asked me
what he should tell the Union the Company wanted (Tr
229-233) Although Timmons admitted telling Tecci to
inform Anzolletti that what would be acceptable to the
Company was A ratification of the new contract (Tr
276-281) he, like Tecci and Coco appeared by his de
meanor on the stand to be more interested in supporting
the Company s cause than candidly giving a full account
of what happened
After weighing all the evidence I find that in this
Thursday afternoon meeting with Union President An
zolletti and Area Representative Indenbaum Human Re
sources Manager Tecci relayed the vice presidents'
promise of no reprisal against any of the pickets if the
Union would accept the Company's last proposal
2 Agreement to reinstate all strikers
As promised, Union President Anzolletti removed the
pickets that Thursday evening He told the pickets to
come back tomorrow morning , to discuss a new pro
posal from the Company ' (Tr 51, 130)
About 7 30 the next morning , April 3, Anzolletti first
went to the plant gate and got Human Resources Manag
er Tecci s permission for the union membership to meet
on company property to vote on the Company s new
proposal (Tr 51-52, 306-307, 323) He then met with the
membership that was congregated on the front lawn (Tr
53)
As Anzolletti credibly testified, he presented "the pro
posal that we received from the Company the night
before , explaining that it was exactly the same as before
the strike except that there would be no reprisals
against any of the picketers " He stated he was con
cerned about strikers crossing the picket lines Monday
morning `because they couldn t afford to pay the insur
ance premiums," about there being a violent confronta
tion, and about a prolonged strike He said he felt it
was in the best interest of all parties concerned that they
accept managements proposal The membership then
` elected to go back to work (Tr 54-55 )
Anzolletti signed a note that Union Moderator Pete
Geoghan had handwritten (Jt Exh 9, Tr 55) It read
The Fairfield Employees Association will ratify the
proposed contract by management and will report
Monday April 6th, 1987 Anzolletti asked former Union
President Paul Pelletier to accompany him to the plant
gate to talk to Tecci (Tr 56) As they started walking
toward the gate David Kiley, another former union
president, stopped Anzolletti and told him Sam, make
sure all the people are coming back As Kiley credibly
testified, Anzolletti said okay " (Tr 348 )
At the plant gate about 8 30 a in Anzolletti, holding
the note in his hand, spoke to Tecci As Anzolletti credi
bly testified (Tr 56-58)
I said Tony I just took a vote from my
membership and he asked me if I had anything for
him I said, Yeah, I have something for you,
but there s some questions I want to get clear first
the first thing I d like to ask you is I want to
make sure all my people are coming back to work
Monday and he simply said Yes And then I
told him that we had three people scheduled
for a layoff that Friday and I asked him if it
would be possible if he could have the paperwork
[done] He responded by telling me that [Human
Resources Assistant] Susan Cunningham was in the
plant somewhere, warn t sure where she was, if he
could get in touch with her he would get the
paperwork made out and those guys could come in
and get their pink slips and if not they'd have to
come back Monday
I also asked him about the three individuals that I
couldn t get in contact with I asked for his as
sistance to call em up and tell em the strike was
ended and to report to work Monday
I also asked him about the individuals that were
working shift and those people that had been sched
uled off Monday in the Mechanical Depart
ment He said [if] you weren t sure who should be
scheduled off or if you were supposed to work, or
800 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
if you weren't sure what shift you were supposed to
be on, to call your supervisor and ask him
And then I asked him [once] more, I just wanted
to make sure that all my people come back to work
Monday , and he said yes and I handed him [the
note]
They then scheduled a meeting for 10 o'clock Monday
morning to initial agreed changes in the collective bar
gaming agreement and discussed Anzolletti s taking a va
cation day
Former Union President Pelletier , who was standing
"to the right side of the guard shack" on Anzolletti s left
(Tr 120), recalled (Tr 117-119) that
Mr Tecci came out and the guard went back in the
guard shack and myself, Sam, Mr Tecci were left
standing outside
Sam told Mr Tecci that he had a letter for him
but he wanted a few things cleared up first and the
first question he asked was , "Is everyone going
back , there is going to be no retaliation, everyone is
going back And Mr Tecci said, Yes, everyone is
going back, no retaliation
And then Sam went to ask him, Okay, when are
we going back? Do you want us to go back today?"
Mr Tecci said, No, Monday will be find [sic]
Then Mr Anzolletti asked him Well, how
about the mechanics that work Tuesday through
Friday, do you want them coming in on Monday?
Mr Tecci said, No, just have them come in on
their regular time
Mr Anzolletti also said to Mr Tecci that he
wanted a [vacation] day Monday, and Tony [said]
Yeah, fine, no problem with that
And Mr Anzolletti also asked Well
what happens to these people that are laid off' and
Mr Tecci said, Well have them come in and I will
make the arrangements
Then Mr Anzolletti gave Mr Tecci the note and
walked away
Q Do you recall anything that Mr Anzolletti
said dust before he gave him the note?
A No, I don t
(By his demeanor Pelletier impressed me as an honest
witness )
Human Resources Manager Tecci and Vice Presidents
Coco and Timmons all gave testimony to dispute that
there was any agreement to reinstate all the strikers
Tecci claimed that Anzolletti did not say anything before
handing him the note (Tr 308-309, 330) He also claimed
that "To the best of my recollection, no there was not
anyone else present (Tr 327, 330) Both Coco and Tim
mons were watching through office windows Both
claimed that there was no conversation before Anzolletti
handed Tecci the paper They also claimed that Anzol
letti was alone-contrary to the credited testimony by
Anzolletti, Pelletier, and the rebuttal witnesses current
employees Kiley (Tr 348) and Katherine Lamson (Tr
338) Coco claimed that the meeting lasted 30 to 45 sec
onds , certainly ` less than a minute," and Timmons
claimed 30 to 40 seconds, `maybe 45 seconds, no more "
(Tr 200-205 241, 248-255 270-271, 292-297) I discredit
these claims as fabrications
There was also conflicting testimony about when the
Company decided which day the strikers could return to
work Vice President Timmons recalled that after this
second (8 30 a m) meeting Tecc reported that Anzolletti
asked if they should return to work that day and he said
no, Monday would be more appropriate (Tr 295)
Former Union President Pelletier similarly recalled (as
quoted above) that Anzolletti asked Tecci Do you want
us to go back today9' and Tecci answered, No,
Monday will be fine'
In contrast Tecci recalled that in the first meeting that
morning Anzolletti stated that if the employees voted to
accept the proposed contract, "they were ready to come
back to work that day" and that Tecci responded "I
thought Monday would be best, but I told him I
would get back to him after the discussion [with his
membership] " Tecci claimed that he then reported this
to the vice presidents (after the first meeting, not after
the second meeting as Timmons recalled) and they
agreed" (Tr 332-334) Anzolletti recalled asking Tecci
at the 7 30 a in meeting if the membership elected to
agree to the [company proposal] did he want them back
to work that morning , and Tecci informed me that the
Company felt that the week was basically shot and
Monday morning was soon enough -without any men
tion of Tecci getting back to him after the vote I credit
Anzolletti's recollection and also Pelletier's testimony
that Anzolletti asked the question at the second meeting
(getting a confirmation)
I find that the credible evidence supports the General
Counsels contention that the Company in the negotia
tions to end the strike agreed to reinstate all the striking
employees if the Union accepted the Company s last
offer In the 8 30 meeting that Friday morning, after the
Company s authorized spokesman twice confirmed the
Company s reinstatement promise the Union accepted
the contract offer, ending the strike
3 Discharge of former strikers
Throughout these negotiations to settle the strike,
Human Resources Manager Tecci concealed from Union
President Anzolletti the information that the Company
was considering the possibility of discharging some of
the employees for engaging in the strike Tecci admitted
(Tr 320)
Q And you kept that information from him cor
rect9
A I did not reveal that information, no, sir,
I didn t
Q Did it occur to you that that might be some
information that the union would be interested in?
A I followed the directions of my vice presi
dents and that was never brought up
About 10 a in on Thursday (the second day of the
strike) the vice presidents conferred with Chief Execu
tive Officer Zucker about the indication that the 8(d)(3)
notices had not been filed with the appropriate Federal
FAIRPRENE INDUSTRIAL PRODUCTS
and state agencies Vice President Coco testified that
Zucker's feeling was that, if indeed, the strike was an
illegal strike, we had the option to not rehire people that
we felt might not be in the best interest of the long term
goals of Fairprene (Tr 194-195)
When Anzolletti first called about 1 o clock that
Thursday, trying to settle the strike, Tecci was already
making telephone calls-as requested by the company at
torney-to ascertain if the notices had been sent (Tr
313-314) Tecci admitted on cross examination that An
zolletti said it was time to get employees back to
work'
Q And you said you felt the same way?
A Yes, sir
Q Now, did you tell him at that point that the
company was considering the possibility of getting
nd of some of the employees because the strike was
illegal?
A No, sir, I did not
Q Now you knew there was a possibility at
that point that the strike was illegal?
A There was a possibility, yes, sir
The Company continued to conceal this information
from Anzolletti when he arrived at the plant gate about
5 30 that Thursday afternoon with Area Representative
Indenbaum, continuing his efforts to negotiate a strike
settlement Despite the possibility that the Company
would decide to discharge some of the strikers, Tecci (as
found above) relayed the vice presidents promise of no
reprisals against any of the pickets
Shortly after this meeting, about 6 p in as credibly tes
tified by Production Supervisor David Vayda (who ap
peared on the stand to be an honest, forthright defense
witness) the vice presidents met with the salaried em
ployees After production problems were discussed the
supervisors were informed that the strike is possibly an
illegal strike They were asked if they did not have an
obligation to hire back any or all of the employees, to
ponder over that evening which employees they felt
would not be in the best interest of the Company to
rehire (Tr 172-173)
The strike ended before the Company confirmed the
Union s failure to file the required 8(d)(3) notices
The Company by amending its last proposal (promis
ing no reprisals against the strikers) succeeded in settling
the strike Union President Anzolletti immediately re
moved the pickets that Thursday evening and early
Friday morning the union membership voted to accept
the new proposal and return to work
The strike ended about 8 30 am, April 3 when An
zolletti presented the Union's handwritten note, agreeing
to `ratify the proposed contract by management This
occurred at the plant gate after Human Resources Man
alter Tecci (the Company s chief spokesman in all the ne
gotiations) twice confirmed the Company s agreement to
reinstate all the strikers and scheduled all except three of
them to return to work the next week on their regular
shifts These three (unidentified) employees were to be
given pink slips and laid off from their employment, as
previously planned
801
Although the pickets were gone and the strike had
been settled, the Company proceeded that Friday morn
ing to get a list of the former strikers who the supervi
sors felt were not in the best long term interests of the
company' (Tr 39-40, 173-174, 205-208, 246, 271-272,
297-298) Then after Tecci finally confirmed around 10
or 10 30 am (Tr 37) that the required notices of the
labor dispute had not been filed, the vice presidents met
a "good three hours (Tr 273) As Vice President Coco
testified, they discussed first, whether or not we should
exercise this option" of not retaining some of the em
ployees, second, `how many employees it should in
volve,' and third, `who those employees are (Tr 208)
Despite the fact that the former strikers were already
scheduled to return to work, the vice presidents decided
to proceed with their option ' They reduced the list
from 24 to 14 names, added the name of employee Larry
Burt (discussed below), and decided to discharge 15 of
the employees (Tr 246-247, 299) About 2 30 that Friday
afternoon, at the conclusion of the meeting, the vice
presidents gave Tecci the list of 15 names (Tr 208, 273)
without informing him why any of them was being dis
charged (Tr 30) They instructed him to contact legal
counsel and be certain of the wording that should be
placed in a letter' to the Union (Tr 209)
After preparing the letter as instructed (with legal
advice), Tecci called Union President Anzolletti to the
plant and handed him the letter about 3 30 p in (Tr 19-
20, 58-59, 311) Although Tecci positively denied on the
stand that he considered the strike to be over at that time
(Tr 19), the letter bearing his signature (Jt Exh 10)
belies the denial After pointing out the Union s failure to
file the 8(d)(3) notices, the letter refers to the strike in
the past tense and to the returning employees
The strike was unlawful
Since the strike was unlawful, every striker has
made himself or herself subject to lawful discharge
We do not wish to take such drastic action We
also understand that the employees have voted to
return to work, agreed to Fairprene s last offer, and
the Union wishes to meet with us at 1000 A M on
Monday April 6 1987 to conclude the contract
On those conditions we welcome the return of
the great majority of you to our continuing business
relationship
However, in the best interest of Fairprene and of
our returning employees we feel that certain of the
unlawful strikers should not be returned to work
The following persons will not be permitted to
return to work at Fairprene, and are discharged
[Emphasis added ]
I find that the Company s contention that the strike con
tinued until Monday morning is an afterthought
The letter listed the following discharged persons
Valerie Adintori David Nelson
Larry Burt Paul Pelletier
Maureen Dirga George Pospisil
Rodney Hoheb Ralph Toms
802 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Joseph Indenbaum Leslie Wargo
Dons Jackson Clarence Wheeler
Kurt Kalaus Richard Womic
Warren Kalaus
It came as a complete surprise to Anzolletti Not only
had the Company assured him twice that morning that
all my people are coming back to work Monday, but
he had never heard about Section 8(d)(3) of the Act (Tr
59, 86 , 88) As found the Union had never engaged in a
strike
Anzolletti immediately contacted the Union s attorney
and joined with him in drafting a reply to Tecci (Tr 59-
60, 101-102 , Jt Exh 12), stating in part
I agreed on all contract terms with you in the
morning of April 3 1987 At that time, we agreed
that all employees would be brought back I
hope you will agree to your original settlement pro
posal and avoid substantial legal proceedings
About 10 a in Monday , April 6 Anzolletti handed the
letter to Tecci at the initialing of the agreed changes (Jt
Exh 11) in the collective bargaining agreement (Tr 60)
(The new agreement (Jt Exh 17) effective from April 6
to April 5 1990, was signed May 26) On April 7 Tecci
responded (Jt Exh 13 ) stating in part
On Friday morning, early , your Union took some
kind of show of hands vote at Fairprene s front
lawn Shortly after that occurrence you asked to see
me at the front gate and handed me a handwritten
note
I read the note told you that Management was
anxious to have the employees return to work but
that I would get back to you You said the Union
would meet with us at 10 00 A M Monday to agree
to Fairprene s proposal That is the whole substance
of our exchange
I made you no promises Your note stated that
the Union had already decided to ratify the contract
on Monday
On Friday April 3 1987 several hours after the
events between us on Friday morning we received
information that your Union had not given
notice of a labor dispute
With these new facts new actions were called
for The strike was unlawful a fact we had not
known until finally verified
Meanwhile early Monday morning April 6 Tecci met
each of the 15 discharged employees at the plant gate
and told them they would not be permitted to return to
work because `it would not be in the best interest of
Fairprene (Tr 23-24)
4 Contentions of the parties
The General Counsel concedes in her able brief (G C
Br 23) that employees who engage in a strike in viola
tion of Section 8(d) may be discharged for discriminato
ry reasons because they are no longer employees Fort
Smith Chair Co 143 NLRB 514 518 (1963) enfd sub
nom Furniture Workers Local 270 v NLRB 336 F 2d
738 (D C Cu 1964) She contends however (G C Br
26) that when the Company agreed to reinstate all the
strikers and the Union agreed to end the strike, the strik
ers at that point had been reemployed within the
meaning of Section 8(d) The statue does not require
that the employees return to work to regain em
ployee status Therefore , the strikers once again became
statutory employees
She argues (G C Br 25) that to allow [the Company]
to renege on its agreement to reinstate all the strikers
would fly squarely in the face of the purposes of the Act
in general and of Section 8(d) in particular She later
argues (G C Br 28)
The sanction of loss of employee status provides a
powerful incentive for labor organizations to pro
vide the notice mandated under Section 8(d)(3)
the involvement of mediation services is in
tended to encourage the peaceful resolution of labor
disputes However , once the parties have resolved
their dispute , as the parties in this case had, no fur
ther statutory purpose is served by allowing em
ployers to exercise [this] punitive power Once an
unlawful strike has ended , there is no longer any
reason to deprive employees of the protections of
the Act
The Company in its brief (R Br 9) makes the conten
tion (found above to be an afterthought) that the strike
did not end until the first shift Monday morning , April 6
when all but the fifteen strikers were returned to
work Also relying (R Br 3) on the Board s decision in
Fort Smith Chair Co, above as well as the court s open
ion on review the Company contends (R Br 5) that
until Monday morning all the strikers lost their status as
employees and the Union was not their bargaining repre
sentative Regarding the allegation that on April 3 the
Company and Union reached a full settlement agreement
through which the Company agreed to reinstate all strik
mg employees the Company (besides arguing credibility)
contends (R Br 5-6)
One does not settle unlawful activity The unlaw
ful participants are required to cease and desist, and
the strikers had not yet ceased and desisted
The strike was an unlawful strike in violation of
Section 8(d)(3) of the Act and therefore Section
8(d)(4) stripped the strikers of all employee status
There was thus not only no duty to negoti
ate it was not possible to negotiate while the un
lawful 8 (d)(3) strike was continuing [citing no au
thorny for this extreme position]
It was impossible under the law for the
[Union] to negotiate on any matter involving
the strikers The strikers were not Fairprene s em
ployees The strikers were not members of the col
lective bargaining unit represented by the [Union]
The [Union] had no status whatever to negotiate on
their behalf The Act makes it that way [without
explanation]
FAIRPRENE INDUSTRIAL PRODUCTS 803
The Company concludes (R Br 29) that all the
Unions testimony relating to the Company s alleged
agreement to reinstate all striking employees is irrele
vant to the Section 8(d)(3)(4) circumstances created by
themselves
5 Concluding findings
While the illegal strike continued, each of the strikers
lost his status as an employee of the employer as man
dated by Section 8(d) of the Act During this time the
Company was privileged to discharge any of the strikers
it chose
But the Company chose instead to negotiate a settle
ment of the strike and resume normal production It did
so by promising no reprisals and agreeing to reinstate all
the strikers Early Friday morning, April 3, the union
membership voted to accept the Company s last offer-
with this addition-and to return to work The Company
scheduled the employees to return on their regular shifts
beginning Monday morning April 6, and the strike
ended
Several hours later, after receiving confirmation that
the Union had failed to file the required 8(d)(3) notices,
the Company reneged on its promise to reinstate all the
participants in the strike It decided to proceed with its
preparations to discharge the former strikers who it be
lieved were not in the best long term interests of the
company ' About 3 30 p in April 3, it notified the
Union that its strike had been unlawful and that 15 of the
former strikers were discharged
The Company waited too long to discharge the strike
participants Section 8(d) provides that the loss of
status for the employee shall terminate if and when he
is reemployed I find, in agreement with the General
Counsel, that when the full strike settlement agreement
was reached and the Company scheduled the employees
to return to work, the strike ended and the strikers were
reemployed within the meaning of that sections provi
sion
I therefore find that by reneging on its promise to rein
state all the strikers the Company engaged in bad faith
bargaining and violated Section 8(a)(5) and (1) of the
Act
B The 8(a)(3) and (4) Violations
With the exception of Larry Burt (whom the vice
presidents added to the supervisors list of former strikers
to be considered for possible discharge (Tr 182-183 247,
299-300)), the Company has given no specific reasons for
each discharge
The General Counsel presented the following evidence
to make a prima facie case that 12 of the 15 former stnk
ers (omitting Rodney Hoheb, George Pospisil, and Ralph
Toms) were discharged because of union and protected
concerted activities and that 2 of the 12 were discharged
also because they were the subject of an earlier NLRB
charge
Valerie Adintori lived with Leslie Wargo who had
been a union representative about 17 years (Tr 30)
Larry Burt had been a union representative (Tr 150)
His workmanship attendance and punctuality were
good and his personnel file contained no record of any
disciplinary action (Tr 33, 181) Although he wore a
masking tape sign reading Go on strike on the back of
his shirt about a week before the strike until required to
take it off (as discussed below), his supervisor did not
recommend his discharge (Tr 181)
Maureen Dirga testified for the Union in an arbitration
of the bonus plan (Tr 158-160), engaged in other union
activity and was told by a supervisor that he was dead
set against anybody being involved with union (Tr
160-161), and complained in writing to Vice President
Lakich (Tr 161) Her personnel file contained no record
of any disciplinary action
Joseph Indenbaum was an area representative and was
on the Union s nine member negotiating committee (Jt
Exh 1, par 5) His personnel file contained no record of
any disciplinary action (Tr 36) In addition he had com
plained of disparate treatment and, with David Nelson
was the subject of an NLRB charge filed by the Union
(Tr 122-126 J Exh 3)
Doris Jackson testified against the Company in an arbi
tration case on behalf of the Union (Tr 137)
Kurt Kalaus was the Union's recording secretary and
was on the Union s negotiating committee (Jt Exh 1,
par 5) He had been a union representative about 7 years
(Tr 34)
Warren Kalaus is the father of Kurt Kalaus His per
sonnel file contained no record of any disciplinary action
and his workmanship, attendance, and punctuality were
good (Tr 34-35)
David Nelson s personnel file contained no record of
any disciplinary action (Tr 36) In addition he with In
derbaum, was the subject of an NLRB charge filed by
the Union
Paul Pelletier had served as the Union s president (Tr
114) and as a union representative about 14 years (Tr
35) He was on the Union's negotiating committee (Jt
Exh 1 par 5) In his last appraisal his supervisor said
he had ranked me among the top employees in his de
partment" (Tr 119)
Leslie Wargo was an area representative and was on
the Union s negotiating committee (Jt Exh 1 par 5)
He had been a union representative about 17 years (Tr
30)
Clarence Wheeler had a pending grievance against the
Company at the time of his discharge (Tr 142)
Richard Womic had been a union representative about
11 years (Tr 164) and his personnel file contained no
record of any disciplinary action (Tr 36) He had filed a
grievance that was taken to arbitration (Tr 165-167)
I find that the General Counsel has made a prima facie
showing sufficient to support the inference that union
and protected concerted activities were a motivating
factor in the discharge of these 12 employees and that
the naming of Indenbaum and Nelson on an earlier
NLRB charge was also a motivating factor in their dis
charges As the General Counsel points out in her brief
(G C Br 28) The record establishes that a dispropor
tionately high proportion of union officers, activists and
their relatives were included among the employees termi
nated Many were long term employees with good em
ployment records, and none were given any reason for
804 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
their selection." Concerning Indenbaum and Nelson
being the subject of an earlier charge, I agree with the
General Counsel (G.C. Br. 28 fn. 6) that "An employer
violates Section 8(a)(4) by discriminating against employ-
ees because they are named on an unfair labor practice
charge filed by someone else." Cafe La Salle, 280 NLRB
379, 395 (1986).
I find it clear that the Company has failed to rebut the
General Counsel's prima facie case by carrying its
burden to demonstrate that it would have discharged the
12 former strikers in the absence of the protected activi-
ties, or Indenbaum and Nelson if they had not been the
subject of an earlier charge. Wright Line, 251 NLRB
1083, 1089 (1980). The Company had not discharged, or
even reprimanded, Burt after he removed the sign from
his shirt the week before the strike.
I therefore find that the Company on April 3 discri-
minatorily discharged the 12 employees in violation of
Section 8(a)(1) and (3) and Indenbaum and Nelson also
in violation of Section 8(a)(4).
C. Threat and Interrogation
Sometime during the week before the strike, Human
Resources Manager Tecci saw Burt leaving the lunch-
room from his break, wearing a handprinted masking-
tape sign "Go on strike" on the back of his shirt. Tecci
told him to take the sign off, but he merely shrugged his
shoulders and returned to work. He was working when
Supervisor Vayda arrived and asked him to take the sign
off. Burt continued to refuse to remove the sign until, in
the office, Tecci told him "you'll have to go home until
you take the sign off." Upon the intervention of two
union representatives, Burt took off the sign and Tecci
said, "Okay, let's drop the issue .. . the thing's over,
let's everybody get back to work." (Tr. 61-62, 115-116,
150-157, 169-172, 174-176.)
Contrary to the Company's contentions in its brief (R.
Br. 27) that the threatened suspension was based on
Burt's (1) failure to comply with the bulletin board pro-
vision in the agreement (Jt. Exh. 2, p. 27); (2) violation
of the no-strike clause (pp. 30-31); and (3) direct interfer-
ence with production, I find that the threat was based on
the disfavored content of the prounion message on the
sign he was wearing. I therefore find that the Company
coerced Burt in the exercise of his Section 7 rights in
violation of Section 8(a)(1) of the Act. Publishers Printing
Co., 246 NLRB 206, 209 (1979), enfd. 650 F.2d 859 (6th
Cir. 1981).
On the afternoon of March 31, after the Union gave
notice to the Company of its intention to strike at mid-
night (Jt. Exh. 5), Supervisor Wayne Hurd approached
employee Doris Jackson and asked if she would come in
if the Union went on strike. She answered no, she would
not come but she would not picket. (Tr. 137.) I find that
the General Counsel has failed to prove that Hurd's
question tended to be coercive. ]: therefore find that the
allegation of coercive interrogation must be dismissed.
CONCLUSIONS O.F LAW
1. By agreeing to reinstate all the striking employees
employees after the strike ended , the Company engaged
in unfair labor practices affecting commerce within the
meaning of Section 8(a)(5) and ( 1) and Section 2(6) and
(7) of the Act:
Valerie Adintori David Nelson
Larry Burt Paul Pelletier
Maureen Dirga George Pospisil
Rodney Hoheb Ralph Toms
Joseph Indenbaum Leslie Wargo
Doris Jackson Clarence Wheeler
Kurt Kalaus Richard Womic
Warren Kalaus
2. By discriminatorily discharging the following 12
employees because of union and protected concerted ac-
tivities, it violated Section 8(a)(1) and (3):
Valerie Adintori
Larry Burt
Maureen Dirga
Joseph Indenbaum
Doris Jackson
Kurt Kalaus
Warren Kalaus
David Nelson
Paul Pelletier
Leslie Wargo
Clarence Wheeler
Richard Womic
3. By discriminatorily discharging employees Joseph
Indenbaum and David Nelson for being the subject of a
charge filed under the Act, it violated Section 8(a)(4).
4. By threatening to suspend an employee for engaging
in protected concerted activity, it violated Section
8(a)(1).
5. The General Counsel has failed to prove that the in-
terrogation of an employee tended to be coercive.
REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices, I find it necessary to order it
to cease and desist and to take certain affirmative action
designed to effectuate the policies of the Act.
The Respondent having reneged on its agreement to
reinstate all the strikers and refused after the strike ended
to reinstate 15 employees (12 of whom must be offered
reinstatement with backpay also because of their dis-
criminatory discharge), it must offer the 15 employees
reinstatement and make them whole for any loss of earn-
ings and other benefits, computed on a quarterly basis
from date of discharge to date of proper offer of rein-
statement, less any net interim earnings, as prescribed in
F. W. Woolworth Co., 90 NLRB 289 (1950), plus interest
as computed in New Horizons for the Retarded, 283
NLRB 1173 (1987).
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed2
2 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-
but refusing since April 3 to reinstate the following 15 poses.
FAIRPRENE INDUSTRIAL PRODUCTS 805
ORDER
The Respondent, Fairprene Industrial Products Corn
pany, Inc , Fairfield, Connecticut, its officers, agents,
successors, and assigns, shall
1 Cease and desist from
(a) Failing to bargain in good faith with Fairfield Em
ployees Association as the exclusive bargaining repre
sentative of the employees in the bargaining unit
(b) Discharging or otherwise discriminating against
any employee for engaging in union or protected con
certed activity
(c) Discharging or otherwise discriminating against
any employee for being named in an NLRB charge
(d) Threatening to suspend any employee for wearing
a sign with a lawful prounion message
(e) In any like or related manner 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 the following employees immediate and full
reinstatement to their former jobs or, if those jobs no
longer exist, to substantially equivalent positions, without
prejudice to their seniority or any other rights or pnvi
leges previously enjoyed, and make them whole for any
loss of earnings and other benefits sufered as a result of
the refusal to reinstate them, in the manner set forth in
the remedy section of the decision
Valerie Adinton David Nelson
Larry Burt Paul Pelletier
Maureen Dirga George Pospisil
Rodney Hoheb Ralph Toms
Joseph Indenbaum Leslie Wargo
Dons Jackson Clarence Wheeler
Kurt Kalaus Richard Womic
Warren Kalaus
(b) Remove from its files any reference to the refusal
to reinstate and notify the employees in writing that this
has been done and that the refusal to reinstate will not be
used against them 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
(d) Post at its facility in Fairfield, Connecticut copies
of the attached notice marked Appendix 3 Copies of
the notice, on forms provided by the Regional Director
for officer in charge for Subregion 39, after being signed
by the Respondent's authorized representative, shall be
posted by the Respondent immediately upon receipt and
maintained for 60 consecutive days in conspicuous places
including all places where notices to employees are cus
tomanly posted Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, de
faced, or covered by any other material
(e) Notify the officer in charge in writing within 20
days from the date of this Order what steps the Re
spondent has taken to comply
IT IS FURTHER ORDERED that the complaint is dis
missed insofar as it alleges violations of the Act not spe
cifically found
' 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