Gladding Corp.

National Labor Relations Board - Board Decisions

Sep 16, 1969

178 N.L.R.B. 415 (N.L.R.B. 1969)

GLADDING KEYSTONE CORP.
Cladding Keystone Corporation , a wholly owned
subsidiary of Gladding Corporation' and
International Association of Machinists and
Aerospace Workers, AFL -CIO. Case 3-CA-3666
September 16, 1969
DECISION AND ORDER
By MEMBERS FANNING, BROWN, AND JENKINS
On June 5. 1969, Trial Examiner William 's.
Kapell issued his Decision in the above-entitled
proceeding, finding that the Respondent has engaged
in and is engaging in certain unfair labor practices
within the meaning of the National Labor Relations
Act, as amended, and recommending that it cease
and desist therefrom and take certain affirmative
action. as set forth in the attached Trial Examiner's
Decision. The Trial Examiner also found that the
Respondent did not engage in certain other unfair
labor practices alleged in the complaint and
recommended that such allegations be dismissed.
Thereafter, the Respondent filed exceptions to the
Trial Examiner's Decision and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
Act, the National Labor Relations Board has
delegated its powers in connection with this case to
a three-member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and brief, and
the entire record in this case, and finds merit in
certain exceptions of the Respondent. Accordingly.
the Board hereby adopts the findings, conclusions,
and recommendations of the Trial Examiner, as
modified herein.
1. The Trial Examiner found, and we agree, that
the Respondent violated Section 8(a)(1) of the Act,
as alleged in the complaint, on several occasions, by
interrogating employees concerning union matters
and by threatening to discharge an employee
because of his union membership or activities.
2. For the reasons detailed hereafter, we do not
adopt the Trial Examiner's additional findings that
Respondent violated Section 8(a)(1) in two other
respects, or his conclusion that Respondent's refusal
to transfer employee Seward was discriminatorily
motivated and an additional violation of Section
8(a)(3) of the Act.
The Trial Examiner found that President O'Neil's
disclosure to employee Zeidner of plans for
increased economic benefits for employees was for
the purpose of undermining support for the Union,
and that supervisor Svatek's warning to employee
Seward that his union activities could get him fired
The name of the Respondent appears in the caption as amended at the
hearing
415
each constituted separate violations of Section
8(a)(l). However, neither act was alleged in the
complaint as a violation, nor did the General
Counsel amend the complaint at the hearing to
allege such conduct as violative of the Act.
Moreover, as to President O'Neil's disclosure on
pending employee benefits, it does not appear that
such issue was fully litigated.' The record also
establishes that the testimony as to supervisor
Svatek (who did not testify) was admitted for the
limited purpose of establishing Respondent's
knowledge of Seward's union activity. In these
circumstances, we conclude a finding of a violation
as to either incident is not warranted.
While we agree with the Trial Examiner that
Respondent discriminatorily discharged employee
Seward in violation of Section 8(a)(3) of the Act, we
do not agree with his further finding that the refusal
to transfer Seward to another job constituted an
additional violation of Section 8(a)(3) Apart from
the fact that Respondent's failure to transfer Seward
to another job was a factor in determining that his
discharge was discriminatory, such conduct was not
alleged as an additional violation in the complaint
and the complaint was not amended during the
hearing We shall, therefore. modify the Trial
Examiner's Conclusions of Law, Order. and notice
accordingly.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended. the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner and
hereby orders that Respondent, Cladding Keystone
Corporation, a wholly owned subsidiary of Gladding
Corporation, Oneonta, New York, its officers,
agents, successors, and assigns, shall take the action
set forth in the Trial Examiner's Recommended
Order, as so modified.
1. Delete from Conclusion of Law 3 the words
"proposing tentative employee salary increases to
influence the employees against the Union,".
2. Delete the phrase "proposing salary increases
to employees to influence them against the Union,"
from paragraph 1(a) of the Trial Examiner's
Recommended Order, and delete from the Appendix
the paragraph containing a similar reference to
tentative wage increases.
'See Grafton Boat Co , Inc, 173 NLRB No 1 50
TRIAL EXAMINER'S DECISION
STA FEME NT OF 1 [IF CASF'
WILLIAM W. Kart.[ L, Trial Examiner: Case 3-CA-3666,
a proceeding under Section 10(b) of the National Labor
Relations Act, as amended, herein called the Act, was
heard in Oneonta. New York, on March 26 and 27, 1969,
The name of Respondent appears in the caption as amended at the
hearing
178 NLRBNo 66
416 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
with all parties participating pursuant to notice on a
complaint' issued on January 31, 1969, by the Regional
Director for Region 3 of the National Labor Relations
Board. hereafter called the Board. alleging violations of
Section 8(a)( 1) and (3) by Gladding Keystone
Corporation. a wholly owned subsidiary of Gladdmg
Corporation, hereafter called the Respondent. The
complaint, as amended at the hearing, alleges, in
substance, that Respondent interrogated employees
concerning their union membership and activities.
impliedly created an impression of surveillance of their
union or concerted activities, threatened them with
discharge if they joined of supported the Union.
conditioned reemployment of an employee upon the
signing of a statement that he would abstain from filing
unfair labor practice charges. and discriminatorily
discharged and refused to reinstate and reemploy Aaron
Seward, in violation of Section 8(a)(1) and (3) of the Act.
In its duly filed answer, as amended at the hearing.
Respondent denied the commission of any unfair labor
practices and the agency or supervisory status of Eugene
Heller. Joseph Cilbertt, and Richard Svatek
All parties were accorded full opportunity to be heard.
to introduce relevant evidence. to present oral argument.
and to file briefs Respondent and the General Counsel
tiled briefs which have been duly considered. On the entire
record in the case,' and from my observation of the
witnesses, l snake the following-
FINDINGS OF FAC I
III Ti1E Al LEGED UNFAIR LABOR PRACTICES
A. /'he Disputed Supervisory Status
The complaint alleges that at all times material herein
eight named individuals were agents or supervisor,, of
Respondent within the meaning of the Act, and were
involved in specified violative conduct. In it,, answer
Respondent denied the supervisory status of three of them:
namely, Gene Heller, Joseph Cllberti, and Richard
Svatek. It, accordingly, becomes necessary to determine
their status in attributing their conduct to Respondent
I Gene Heller
Heller was employed by Respondent from l ebruary to
November 1968. Ile was hired as a supervisor in' the
stockroom through a newspaper ad calling for a
supervisor He testified without contradiction that in the
course of his work he supervised from 2 to 10 employees,
interviewed prospective employees, effectively
ay raises, dischargedrecommended their hiring and p ,,'
employees, assigned work to employees, granted time off
to them, attended supervisor's meetings, and was paid
$2 70 an hour compared to $1.80 an hour, the highest pay
received by one of the employees under his supervision. It
clearly appears. and I find, that Heller was vested with
sufficient authority in the performance of his duties to
qualify him as a supervisor within the meaning of Section
2(1 1) of the Act
1. COMMFRCI
At all times material herein, Respondent has
maintained its principal office and place of business in the
city of Oneonta. New York, and has been engaged at said
plant in the manufacture, sale, and distribution of
electrical components and related parts. During the past
year. in the course and conduct of its business operations,
Respondent purchased, transferred, and delivered to its
Oneonta plant, goods and material valued in excess of
550,000, of which goods and material valued in excess of
S50.000 were transported to said plant directly from
States of the United States other than the State of New
York. During the same year Respondent sold and
distributed at said plant. products valued in excess of
550,000, of which products valued in excess of S50.000
were shipped from said plant directly to States in the
United States other than the State of New York.
Respondent admits, and I find, that at all trines material
herein. it has been engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
11 THE LABOR ORGANIZAIiON iNVOI VLI)
Respondent admits, and I (Ind. that at all times
material herein, the Union has been a labor organization
within the meaning of Section 2(5) of the ALt
'Based on a charge filed on December 23, 1968. by International
Association of Machinists and Aerospace Workers, AFL-CIO. hereafter
referred to as the Union All dates hereafter refer to the year 1968 unless
otherwise noted
'During the hearing , General Counsels unopposed motions were granted
to strike the names of Merman Leidner and Shirley Zeidner from pars 6
and 7 of the complaint as having been discnmmatonly discharged and
refused reinstatement , and to dismiss par 5((,) of the complaint relating to
John Ross' alleged violative conduct Respondent' s motions to dismiss
specific allegations of the complaint , on which rulin4 was reserved at the
hearing, are disposed of on the basis of the findings and conclusions made
herein
2. Joseph Cilberti
Cilberti a retired railway employee, was hired by
Respondent in 1966 According to O'Neil, Respondent's
president, Cilbertt worked in the quality control
department as a calibration technician whose prime
responsibility was to calibrate the measuring devices used
In periodically testing magnetic components and
transformers and keeping a record of his calibrations.
O'Neil testified further that Cilbertt is supervised by
Quality Control Manager Robert Bligh, and has no
authority to hire, lire, or to effectively recommend such
action, that his work was a combination of technical and
clerical functions, and that he worked alone except when
he was training Aaron Seward following the latter's
transfer to his division Robert Bligh, the quality control
manager, corroborated O'Neil's testimony to the effect
that Cilberti was not a foreman and did not hire. fire, or
effectively recommend hiring or firing. Cilberti testified
that he is the calibration technician. repairing. adjusting,
and keeping records of any discrepancies in the testing
devices, and that he never fired or hired an employee or
recommended such action.' The only testimony in support
of Cilbcrti's status as a supervisor was given by Seward
who stated that following his transfer from production and
maintenance to work as an apprentice electrical technician
in the quality control department under Cilberti, Cilbertt
assigned work to him while he was a trainee in that
department, and was his foreman. I find that Cilberti was
a skilled technician who was training Seward as an
apprentice, and in the course of that training supervised
him primarily for instruction purposes 1 find and
conclude that Cilberti was not vested with supervisory
In attacking Cilberti's credibility , the General Counsel introduced in
evidence a recommendanon he gave to Seward in applying for a job
elsewhere , which he signed with the title of foreman I attach slight weight
to this self- serving document
GLADDING KEYSTONE CORP. 417
authority within the meaning of Section 2(11) of the Act
Accordingly , his activities as a supervisor are not
attributable to Respondent.
qualify him as a supervisor within the meaning of the Act,
whose actions in that capacity are attributable to
Respondent.
B. The Alleged Violations of Section 8(a)(1)
3. Richard Svatek
O'Neil testified that Svatek had no authority to fire or
effectively recommend hiring or firing.that he was not in
production and maintenance and that he was a technical
assistant to the quality control manager. performing
technical and clerical paperwork duties. Bligh also
testified that Svatek was not a foreman, had no authority
to hire or fire, and was a quality control engineer in the
quality control department Seward in his testimony
referred to Svatek as an assistant supervisor.
Pursuant to the unopposed request of General Counsel,
official notice was taken herein of the following
stipulation appearing on page 71 of the transcript of a
hearing held in a related Board representation proceeding
held on August 26 involving the Union and Respondent.'
Can we have a stipulation that the foremen are
managers , Keehan, Shroder, Depew. Ross. Bligh,
Svatek and Fuller are supervisory as defined in the Act
and they do have the authority to recommend
disciplinary action or action against employees in their
work and should be excluded from the unit and held
ineligible to vote in any election that might be directed?
Mr Price (representing the Respondent): So stipulated
Mr. Kane (representing the Union)- So stipulated.
Mr. Fugerson (representing the Respondent): So
stipulated.
Respondent made no attempt to disavow or repudiate the
foregoing stipulation but claimed that the testimony of
O'Neil, which preceded the stipulation, should be
considered in conjunction with and in explanation of it.
This testimony, of which official notice was also taken,
appears on pages 66 and 70 as follows:
Q. And Quality Control, how about that'?
A. Quality Control is not broken up into jobs at this
point.
Q. All operations are under one supervisor?
A. Right. With an assistant
Q. Who is the assistant')
A Svatek.
Q. And how about in Quality Control? Mr. Bligh is
the general foreman and Mr. Svatek is the assistant
A. Mr Bligh is the quality control manager and
there are no group leaders set up in that department at
this point.
I find that O'Neil's testimony in the representation
hearing was not inconsistent with the stipulation, nor did
it refute or explain that Svatek was not vested with
authority to recommend disciplinary action or action
against employees in their work. Bligh was described as
general foreman in O'Neil's testimony and in the instant
hearing he testified that he was quality control manager.
Regardless of Bligh's title, which apparently was quite
high in the hierarchy of management, I find considering
all the evidence, and in particular the overriding weight of
the stipulation, that Svatek was a lower grade supervisor,
but, nevertheless, sufficiently endowed with authority to
'In the Matter of Gladding Keystone Corporation and Aerospace
Workers. AFL-CIO. Case 3-RC-4486
`Respondent claimed that the question mark appearing after "control"
should appear at the end of the question
Respondent conceded that it was aware of the Union's
organizing campaign as early as July. Heller testified
without contradiction that after signing a union card at
the request of Seward during the summer, he had a
conversation with O'Neil in which he was told to act like
a supervisor, and that "We can't have the Union in here
because the Company can't afford it." Following this
conversation, Heller retrieved his union card from Seward,
tore it up, told him he was not going to get involved with
the Union, and that the Company knew something was
going on about the Union and it they found out they
probably would fire him (Seward).
Seward testified without contradiction that on about
July 13, Svatek told him that he had heard some bad
reports about hint and said, "Well, you're the leader in
organizing the Union in the plant I just want to warn
you, you know you can get fired on account of this."
Seward testified further that on the morning of July 15
Cilberti told him he had been called to O'Neil's office
where O'Neil spoke to him about the union activity in the
plant and mentioned that he knew Seward was involved in
the Union as the leader. Cilberti then cautioned hint that
inasmuch as they were friends he would hate to see him
loose his lob because of the Union. Although Cilberti
testified on behalf of Respondent, he did not deny
Seward's testimony.
Employee Herman Zeidner testified that on July 13 he
was called to O'Neil's office where O'Neil told him that
he had reportedly been seen handing out union cards,
which was illegal and immoral When Zeidner stated that
he was unaware of cards being signed on company time
and asked what was immoral about it, O'Neil replied that
they were stabbing the Company in the back. During this
conversation O'Neil also showed him schedules of
proposed wage increases and asked what he thought of
them and the Union, to which Zeidner responded that the
schedules looked good and that the Union was good both
for the employees and the Company. According to O'Neil,
he told Zeidner he had heard reports to the effect that he
had been circulating petitions, that Zeidner denied doing it
on company time and stated he was working for the
Union which would be a good thing for both the
Company and the employees, and that he (O'Neil) denied
it would be beneficial to the Company but said that the
choice was up to the employees. I find from their
testimony that O'Neil initiated the conversation with
Zeidner concerning the Union, that he revealed proposed
wage increase scales for the employees, and inquired what
Zeidner thought about theirs and the Union.
CONCLUSIONS
The Board has held that in interrogating or polling
employees concerning their union support, employers must
observe certain rules in maintaining a reasonable balance
between the protection of employee rights and the
legitimate interests of employers See Struksnes
Construction Co., inc., 165 NLRB No 102, and cases
cited therein ' Absent unusual circumstances, the
interrogation or polling of employees is violative of
'Cf Bourne Co v N L.R B , 332 F 2d 47 (C A 2), cnfg. as modified
l44 NLRB 805.
418 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Section 8(a)(I) of the Act unless the following safeguards
are observed. The purpose of the interrogation or the poll
is to determine the truth of a claim of majority and this
purpose is communicated to the employees, assurances
against reprisals are given, the employees are polled by
secret ballot, and the employer is not engaged in unfair
labor practices or has not otherwise created a coercive
atmosphere Applying these standards to the instant case,
it appears that O'Neil called Zeidner from his work
station and interrogated him in his office as to how he felt
about the Union, no assurances against reprisals were
given, nor was any legitimate purpose served by the
interrogation , and O'Neil clearly indicated his hostility to
the Union. Under these circumstances, 1 conclude that
Respondent unlawfully interrogated Zeidner in violation
of Section 8(a)(I) of the Act.
I find further, that while the union organizing campaign
was in progress, O'Neil attempted to influence Zeidner
against the Union by discussing proposed wage increases
and displaying proposed pay schedules. In effect, O'Neil
was publicizing a tentative offer of economic benefits to
the employees for the purpose of adversely influencing
their union support in violation of Section 8(a)(1) of the
Act N L R B. v Exchange Parts Company. 375 U.S.
405, 409.
As appears above. Heller and Svatek each warned
Seward that his union activities could get him fired
Heller, as a result of his conversation with O'Neil. was
under no illusions as to the danger involved in supporting
the Union, and he quickly severed his connection with it
and warned Seward. Svatek, apparently, was giving
credence to common knowledge about Seward', union
leadership. and warned him of possible consequences,
albeit in a more formal manner than Heller Although
neither one presumably threatened to fire him, they,
nevertheless, made it clear that further participation in
union activities jeopardized his continued employment.
Moreover, Respondent had and could exercise thepowerto
carry out the warning, and as appears infra the prediction
materialized I find that the warnings given Seward
interfered with the exercise of his statutory rights to
engage in union activities and also coerced him within the
meaning of and in violation of Section 8(a)(I) of the Act.
'V L R.B. v. Exchange Part.s Co , supra: International
Union of Electrical. Radio and Machine Workers v.
N L R B. 289 F.2d 757. 763 (C.A.D.C ) "
C The Alleged Discriminatory Discharge of and
Refusal to Reemploy Seward
Seward was hired on April 22 to work in production
and maintenance under the supervison of Foreman John
Ross. lie did some electrical work, operated a punch
press, an automatic blender, and a cutting machine, and
performed brazing work in which he had had previous
experience . At the time he was hired it was noted in his
application that he had some schooling in drafting and he
expressed a preference for that type of work Thereafter,
pursuant to his frequent requests, he was transferred on
about May 20 to work as an apprentice electrical
technician under Cilberti.'
'Dailon Food Fair .Stores , Inc v N L R B, 399 I' 2d 153 (C A 6),
cued by Respondent is distinguishable Heller was voicing O'Neil's
antiunion policy following his conversation with him, and there is no
evidence to indicate that Svatek was prounion
`there was uncontradu .ted testimony that Seward had threatened to
Seward was instrumental in contacting the union
representative, Andy Heck, about organizing the plant,
and after receiving a number of union authorization cards
he solicited and obtained about 65 signatures on said
cards from out of approximately 100 to 110 production
and maintenance employees. As indicated above he also
solicited supervisors.
Seward testified that on the afternoon of July 15
Quality Control Manager Bligh called him to his office
and informed him that he was being terminated because of
a lack of work in his area and the need to cut down on
expenses. When he remonstrated that it seemed to him
that they had more work than they could handle, and
asked whether he could be rehired, Bligh assured him he
could be rehired Seward also inquired whether there was
anything he could do in some other area of the plant until
work became available in his present job to which he
could then return Bligh replied there was one other job,
lifting heavy units into a washroom, which Seward would
not want When Seward stated he could not refuse
anything and would take the job. Bligh informed him that
they had already found someone else and offered to give
him a good recommendation for a job elsewhere. Bligh
denied telling Seward about another job being available or
having just been filled He claimed that Seward was
terminated because it was necessary to cut costs in the
indirect section of quality control, that he informed
Seward he would he rehired it his job as a trainee in
quality control or a job in any other section of quality
control opened up, and that he indicated these prospects
on Seward's personnel records.i°
On July 17 Seward returned to the plant to inquire of
Bligh about reemployment. While waiting to see him, he
met Svatek, who said. "I told you. didn't I tell you you'd
get fired for monkeying with the Union')- When Seward
replied that he was terminated, not fired, Svatek said,
"That's a nice way saying fired." Seward then stated that
it was because of a lack of work and not because of the
Union which caused his termination, to which Svatek
responded. "we can't tie the Union in because it's against
the law to fire on account of the Union."
Seward also testified that on September 15 he returned
to the plant to ascertain whether work had picked up
sufficiently to warrant his recall. While in his car on the
parking lot O'Neil and Edward Sokolowski" came out of
the plant and approached him Sokolowski told him he
had no right to be there and he replied that he came to
find out whether he could return to work Sokolowski
then stated that he (Seward) had been involved in union
activity, that pictures had been taken of him handing out
the union cards, that they could not have a union, and,
that if one came in it would be the end of the Company.
Seward denied that such pictures could have been taken
because he had never passed out cards on company time
O'Neil then told him that if he went home, signed a
statement to the effect that he would release the Company
from any unfair labor practice charges, and mail it in, he
would be rehired in the near future i=
resign unless he was transferred
"Based on my observation of the manner in which they testified and on
the plausibility of their testimony, I credit Seward's version of then
conversation f also note that Bligh did not deny Seward's request for any
available job
"Vice president and general manager
"At first Seward attributed the conversation about absolving the
Company from any unfair labor practice to Sokolowski Ile thereafter
claimed that O'Neil made the proposition to him
GLADDING KEYSTONE CORP.
Sokolowski and O'Neil denied either meeting or having
a conversation in which they made the statements
attributed to them by Seward. O'Neil also testified that he
had not gone to the plant on September 15, a Sunday,
and, in tact , had spent the day at or around his home. On
rebuttal, Seward changed the date of this alleged
conversation to sometime during the earlier part of
September "
With regard to Seward's termination, O'Neil claimed
that it was part of a program resulting from a review of
the projected volume of business and its cost. He testified
that a significant decline in business had been projected
for the months following June after having built up the
output during the previous months, which necessitated
reducing all unnecessary costs. that shipments following
June were 65 percent of the June shipments, that the
Company made other changes in conformance with the
projected decline in work by terminating employee
Reddington who did technical type work in the quality
assurance department, and transferring employee Donna
Gransberry. a tester in the quality control department, to
a clerical position in engineering replacing the prior
employee in that position who was terminated, that on
July 15 there were 21 employees in quality control, who
were gradually reduced to 9 at the present time, that
neither Reddington nor Gransberry had been reinstated in
quality control. and that the sole reason for discharging
Seward was to reduce costs in line with the volume of
business
On cross-examination, however, O'Neil revealed that in
January there were between 40 and 50 employees in the
plant of whom about 30 worked in maintenance and
production, that on July I they had approximately 120
employees, that in July about 24 employees were hired.
including a Paul Goodman who was hired on about July 6
as an assembler in production and maintenance, and left
on August 16, a Mr. Graves who was hired on July 8, and
a Mr Shroeder who was hired on July 24 to do assembly
work until September 20 when he left, that during August,
14 more employees were hired, that they had no difficulty
in recruiting inexperienced help, using the New York
State Employment Service and advertisements, but had to
train them, that after July 15 at least one employee was
hired as a production tester in quality control, and that in
December there were 200 employees in the plant, which
was their projection for that time In explanation of hiring
38 employees during July and August. O'Neil asserted
that they were hired in production and maintenance where
65 employees had been terminated between May and
August, and that none had been hired in the calibration
technician department of quality control. However, he
admitted that at the representation hearing in August,
Respondent opposed holding an election at that time and
moved to dismiss the representation petition on the
ground that the employee unit was being expanded and
more employees were being hired.
"i find that Seward's testimony concerning this alleged incident was
uncertain and to some extent contradictory in contrast with the
straightforward and positive testimony given by O'Neil and Sokolowski It
also appears that no charge was filed until December 19, some 3 months
alter the alleged conversation Nor was any attempt made until March 19,
1969, a week hcforc the hearing , to amend the complaint to include an
allegation based on the purported proposal to absolve the Company from
any unfair labor practice charge, when the General Counsel served an
intention to amend the complaint in this respect Under these
circumstances, 1 credit the testimony of O'Neil and Sokolowski regarding
this alleged incident
CONCI LSIONS
419
I find that the evidence clearly establishes that
Respondent was aware of Seward's involvement as the
leader in the union organizing campaign. that it was
strongly opposed to any unionization of the plant and
strove to prevent it, and that warnings had been conveyed
to Seward by company supervisors to the effect that his
job was in jeopardy because of his union activity. I also
find that Respondent has tailed to substantiate its
contention that a contemplated decline in business
required a reduction in indirect costs involving the
discharge of Seward. It clearly appears that Respondent
was greatly increasing its employee complement during all
of 1968. It even opposed a Board election in August
because it was expanding the employee unit involved.
Also, at least one employee was hired after July 15 as a
tester in quality control However. even assuming there
were economic considerations for terminating him, his
union activities were undoubtedly a very significant, if not
the prime, factor in Respondent's decision to discharge or
lay him off on July 15, and I so find The availability of a
lawful cause for discharge is no defense where the
employee is actually discharged primarily because of his
union activities. N L R.B v Ace Comb Co. 342 F.2d 841,
847 (C.A. 8); N.L R.B v. Symons Manufacturing Co,
328 F 2d 835. 837 (C.A 2). 1, therefore, conclude that
Respondent discriminatorily discharged Seward in
violation of Section 8(a)(3) and (1) of the Act.
Furthermore, it indisputably appears that a large
number of new employees were hired in production and
maintenance at and around the time when Seward was
terminated. As found above, Seward requested
employment wherever available in the plant, and, as
indicated, he was experienced in doing work in production
and maintenance for which new employees had to be
trained I. find that Respondent was motivated to
discriminatorily deny him a transfer or reemployment in
production and maintenance because of his union activity
also in violation of Section 8(a)(3) and (1) of the Act.
Upon the foregoing findings of fact and upon the entire
record in the case, I make the following'
CONCLUSIONS OF L .sw
1. At all times material herein, the Union has been a
labor organization within the meaning of Section 2(5) of
the Act
2. At all times material herein, Respondent has been
engaged in commerce as an employer within the meaning
of Section 2(6) and (7) of the Act.
3 Respondent has interfered with, restrained, or
coerced its employees in the exercise of rights guaranteed
in Section 7 of the Act within the meaning of and in
violation of Section 8(a)(I) of the Act. by interrogating
employees concerning union matters, proposing tentative
employee salary increases to influence the employees
against the Union, and threatening to discharge an
employee for continuing to support the Union.
4. Respondent has discriminatorily discharged Aaron
Seward and refused to reinstate him in violation of
Section 8(a)(3) and (1) of the Act.
5. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
6 Respondent did not commit other alleged violations
not specifically found herein.
420 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
THE REMEDY
Having found that Respondent has engaged in and is
engaging in unfair labor practices within the meaning of
Section 8(a)(l) and (3) of the Act, I shall recommend that
it cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act.
Having found that Respondent has discriminatorily
discharged Aaron Seward and refused to reinstate him, I
shall recommend that Respondent offer to reinstate him
to his former or substantially equivalent position, without
prejudice to his seniority or other rights and privileges,
and make him whole for any loss of pay he may have
suffered as a result of the discrimination against him
Backpay shall be computed on a quarterly basis and in a
manner consistent with the Board policy set forth in F W.
Woolworth Company, 90 NLRB 289, and Isis Plumbing
& Heating Co., 138 NLRB 716.
Upon the foregoing findings of fact and conclusions of
law and upon the entire record in the case, I hereby issue
the following.
RECOMMENDED ORDER
Respondent, Gladding Keystone Corporation, a wholly
owned subsidiary of Gladding Corporation, its officers,
agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Interrogating employees concerning union matters,
proposing salary increases to employees to influence them
against the Union, or threatening to discharge employees
because of their union membership or activities.
(b) Discouraging membership in International
Association of Machinists and Aerospace Workers.
AFL-CIO. or in any other union by discharging. refusing
to reinstate, or otherwise discriminating in respect to the
hire or tenure of employment or any term or condition of
employment of its employees.
(c) In any other manner interfering with, restraining, or
coercing its employees in the exercise of the rights
guaranteed them by the Act.
2. Take the following affirmative action designed to
effectuate the policies of the Act.
(a) Offer Aaron Seward immediate and unconditional
reinstatement to his former or substantially equivalent
position, without prejudice to his seniority or other rights
and privileges, and make him whole for any loss of
earnings he may have suffered by reason of the
discrimination against him in the manner set forth in the
section hereof entitled "The Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records,
timecards, personnel records and reports, and all other
records necessary to analyze the amount of backpay due
under the terms of this Recommended Order.
(c) Post at its plant in Oneonta. New York, copies of
the attached notice marked "Appendix."" Copies of said
notice, on forms provided by the Regional Director for
Region 3, after being duly signed by Respondent's
representative, shall be posted by Respondent immediately
upon receipt thereof. and be maintained by it for 60
consecutive days thereafter, in conspicuous places,
including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by
Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(d) Notify said Regional Director, in writing, within 20
days from the receipt of this Decision, what steps have
been taken to comply herewith."
(e) Notify Aaron Seward if presently serving in the
Armed Forces of the United States of his right to full
reinstatement upon application in accordance with the
Selective Service Act and the Universal Military Training
and Service Act, as amended, after discharge from the
Armed Forces.
IT IS FLRTHER RECOMMENDED that the complaint be
dismissed insofar as it alleges violations of the Act not
specifically found.
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our
employees that:
This notice is posted pursuant to a Recommended
Order of a Trial Examiner, issued after a trial in which
both sides had the opportunity to present evidence. The
Trial Examiner found that we violated the National Labor
Relations Act and has ordered us to inform our employees
of their rights.
The Act gives all our employees the following rights.
To organize themselves, to form, join, or help
unions, to bargain as a group through a
representative of their own choosing, to act together
for collective bargaining or other mutual aid or
protection, or to refuse to do any of these things.
We assure our employees that.
WE WiLLNOrUnlawfully.interrogate them concerning
their union activities.
WE WILL NOT', propose tentative wage increases to our
employees in order to influence them against
International Association of Machinists and Aerospace
Workers, AFL-CIO, or any other labor organization.
WE WILL NOT threaten to discharge employees
because of their union support
WE WILL NOT in any other manner interfere' with,
restrain, or coerce our employees in the exercise of
their rights under the Act.
WE. WiLI NOT,discouraee membership in International
Association of Machinists and Aerospace Workers,
AFL-CIO, or in any other labor organization of our
employees by discharging them or refusing to reinstate
them or in any other manner discriminating in regard
to their hire or tenure of employment or any term or
condition of employment.
WE WILL make whole Aaron Seward for any loss of
earning he may have suffered by reason of his
discriminatory discharge and offer him reinstatement to
his former or substantially equivalent position without
"In the event that this Recommended Order is adopted by the Board,
the words "a Decision and Order" shall be substituted for the words "the
Recommended Order of a Trial Examiner" in the notice In the further
event that the Board s Order is enforced by a decree of a United States
Court of Appeals, the words "a Decree of the United States Court of
Appeals Enforcing an Order" shall be substituted for the words "a
Decision and Order "
"In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read "Notity the Regional Director for
Region 3, in writing , within 10 days from the date of this Order, what
steps Respondent has taken to comply herewith "
GLADDING KEYSTONE CORP.
prejudice to his seniority or other rights and privileges
previously enjoyed
WL WILL notify Aaron Seward if presently serving in
the Armed Forces of the United States of his right to
full reinstatement upon application in accordance with
the Selective Service Act and the Universal Military
Training and Service Act, as amended, after discharge
from the Armed Forces.
GLADDING KLYSTONI.
CORPORATION, A WHOLLY
OWNED SUBSIDIARY OF
GLADDING CORPORATION
(Employer)
Dated By
421
(Representatise ) (Title)
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced.
or covered by any other material
It employees have any question concerning this notice
or compliance with its provisions , they may communicate
directly with the Board ' s Regional Office, Fourth Floor,
The 120 Building, 120 Delaware Avenue. Buffalo, New
York 14202. Telephone 716-842-3100.