Globe Manufacturing, Co.

National Labor Relations Board - Board Decisions

Jun 10, 1975

218 N.L.R.B. 342 (N.L.R.B. 1975)

342 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Globe Manufacturing ,- Company and Teamsters,
Chauffeurs, Warehousemen and Helpers of
America, Local # 526 a/w International Brother-
hood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America . Case 1-CA-9649
June 10, 1975
DECISION AND ORDER
BY MEMBERS JENKINS, KENNEDY, AND
PENELLO
On October 25, 1974, Administrative Law Judge
Max Rosenberg issued the attached Decision in this
proceeding. Thereafter, General Counsel filed excep-
tions and a supporting brief, and Respondent filed
an answering brief.
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 conclusions of the Administrative Law
Judge only to the extent consistent herewith.
James McCarthy had been employed by Respon-
dent as an extruder-helper since 1959. It was a
physically taxing job and McCarthy established a
prolonged history of back injuries. He had been
working off and on for some time because of his
injuries and he had received a report from a
physician stating "this patient would appear to be
improving and will no doubt return to work as he
anticipates. There is, however, the long range
problem in that the patient has a recurrent low back
syndrome which I am reasonably certain will keep
repeating almost on an indefinite basis."
On January 3, 1974, McCarthy visited Respon-
dent's plant and spoke to Romanowicz, Respon-
dent's production manager, who told McCarthy that
he, Romanowicz, had received Dr. Resnick's report;
that, because the prognosis indicated a continuing
deterioration of McCarthy's condition, Romanowicz
did not think that the Company had any work which
McCarthy was capable of performing; and that it
would not be economically fair for the Respondent
to be subjected to McCarthy's intermittent employ-
ment.
On March 6, 1974, the original charge herein was
filed alleging that Respondent violated Section
1
The General Counsel has excepted to certain credibility findings made
by the Administrative Law Judge. It is the Board's established policy not to
overrule an Administrative Law Judge 's resolutions with respect to
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions are incorrect . Standard Dry Wall Products,
218 NLRB No. 51
8(a)(3) of the Act by its_ refusal to permit McCarthy
to return to work.2 On March 15, 1974, McCarthy
went to the plant with a note from a Dr. Quigley
stating that McCarthy had been under his care and
could return to work on February 11, 1974. Romano-
wicz looked at the document and said "your work
permit doesn't mean anything because you have seen
fit to file unfair labor practice charges against the
Company, it is inappropriate for me to discuss
employment with you. You are not fired or terminat-
ed. You are still considered an employee of Globe. I-
have nothing further to say to you." McCarthy then
left the office.
The Administrative Law Judge found that Section
8(a)(4) had not been violated because (a) Romano-
wicz had not foreclosed any future discussion
concerning McCarthy's return to work, (b) Romano-
wicz explicitly advised McCarthy that "you are not
fired or terminated, you are still considered an
employee of Globe," and (c) Respondent did not
discharge McCarthy on March 15, 1974, or at any
other time thereafter. The Administrative Law Judge
further found that Romanowicz had declined to
discuss McCarthy's work status on March 15 on
advice of counsel because the unfair labor practice
charge filed was under investigation, and that this
was a stance which Respondent could legally
assume . We do not agree.
Romanowicz did indeed foreclose any future
discussion concerning McCarthy's return to work.
He told McCarthy that he, Romanowicz, had
nothing further to say. Under the circumstances,
McCarthy had no choice but to leave the office. The
fact that Romanowicz told McCarthy that he was not
fired or terminated and that he was still considered
an employee of Globe is negated by the fact that
Respondent refused to return McCarthy to work. In
effect, Romanowicz discharged McCarthy and it is
clear from the context of the conversation that
Respondent was refusing to discuss McCarthy's
return to work because an unfair labor practice
charge had been filed against Respondent. In such
circumstances, we find that Respondent violated
Section 8(a)(4) of the Act on March 15, 1974, by its
failure to recall McCarthy to work.
Our dissenting colleague would find that Respon-
dent constructively discharged McCarthy and Gol-
den in violation of Section 8(a)(3). The evidence
supporting such a finding, however, is unconvincing.
With respect to McCarthy's discharge, the dissent
relies heavily on the synopsis of a telephone
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 We agree with the Administrative Law Judge that this particular
incident did not constitute a violation of Sec. 8(a)(3).
GLOBE MANUFACTURING COMPANY 343
conversation between Respondent's plant safety
engineer, Penrose, and Castro, an agent for Respon-
dent's workmen's compensation insurer. This synop-
sis was handwritten by Castro in a sort of personal
shorthand. The note identifies the claimant McCar-
thy as a troublemaker. At the trial there was
extensive discussion of the meaning of the note and it
is evident that the dissent's interpretation is incor-
rect.
Counsel for the General Counsel questioned
insurance agent Castro as his witness. The following
exchange took place:
Q. In the last paragraph that says, "the
insured would like to force claimant to resign if
they could-equals another Golden. George says
the claimant may return to work to get his holiday
pay." Was that the words of Mr. Penrose?
A. No. This would have been more or less my
summary of the conversation. There's no quotes
in there.
Q. I ask you, the document there says that
"the assured would like," are those the words that
Mr. Penrose used?
A. No. I can recall that, it's his,response to
my questions regarding the possibility of a lump
sum.
Q. And he mentioned the possibility of
resignation?
A. On a questionable back injury there is no
way we can come out with an agreement. And
under this set of circumstances, your alternatives
are either to deny or to lump sum. And that was a
question I put to him.
Q. You can lump sum a settlement, can't you,
Mr. Castro, without requiring an individual from
resigning?
A. Not necessarily, not in a back injury. It's
bong standing practice in the imdustry that if a
person with a back injury, unless for some reason
the insurance company wants to take the risk,
there is no reason to lump sum the case if you are
going to let the fellow go right back to work.
Q. So you called Globe and got Globe's
opinion of what they wanted to do with Mr.
McCarthy, is that correct?
A. No. I would say that this is a general
conversation regarding the injury.
* * *
JUDGE ROSENBERG: Is it possible that some or
all of these written comments which you have
written were things that you suggested?
THE WITNEss: I would think: that they would
be.
JUDGE ROSENBERG: Rather than Penrose's
directions to you?
T WITNESS: Yes. I am not in the practice of
taking shorthand, taking down a conversation
verbatim.
The exchange between Respondent's attorney and
the witness also contradicts General Counsel's theory
in this case.
Q. Now referring to General Counsel's exhib-
it 10. The reference "claimant equals trouble-
maker" is that your conclusion or a statement
made by Mr. Penrose?
A. I believe that was my conclusion.
Q. And the statement "assured would like to
force claimant to resign if they could, equals
another Golden," is that your conclusion or is
that the statement that you attribute to Mr.
Penrose?
A. It is not his. It would be my summary of
the situation.
Q. Did Mr. Penrose at any time during that
conversation, Mr. Castro, tell you that he wanted
Mr. McCarthy resigned?
A. Not to the best of my knowledge.
Q. Did he ever insist that Mr. McCarthy
resign?
A. No.
Q. Or that you do what you could to get him
to resign?
A. No.
* * * *
Q. To your knowledge, has Mr. Penrose or
anyone else from Globe Manufacturing ever
insisted that Mr. Golden or Mr. McCarthy resign
from the company?
Q. Was any suggestion along those lines ever
made to you by the company, anyone in the
company?
A. No.,
Q. As far as you know, if you weren't able to
obtain a settlement with Mr. Golden or Mr.
McCarthy, that would be perfectly all right with
Globe Manufacturing, wouldn't it?
A. Yes, as far as I know.
The dissent's inference that the note meant that
Respondent was out to fire McCarthy is unjustified.
The dissent also relies on a conversation between
Cottam, the insurance company's claim adjuster, and
344 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
McCarthy in which Cottam told McCarthy that
Respondent did not want McCarthy back. Assuming
Respondent in fact stated that it did not want
McCarthy back, there is not one iota of evidence that
Respondent was so motivated by McCarthy's union
activities.
As to Golden's alleged discharge, the evidence is
again extremely thin, if it exists at all. The dissent
concedes that the issue of the possible resignation of
Golden in exchange for a lump sum was raised by
the insurance company and not by Respondent.
Again, however, if Respondent did indeed try to
obtain Golden's resignation, or if Respondent was
instrumental in helping the insurance company to
obtain Golden's resignation, there is no evidence that
the motive was unlawful under the Act.
While it can be argued that perhaps Respondent
lacked compassion by trying to get rid of employees
who had been disabled performing heavy work for
Respondent, the Board is not vested with jurisdiction
or authority to fmd violations of the Act because of
the want of such feeling by an employer. The proper
forum in which to litigate a workmen's compensation
claim is the appropriate state agency and not the
National Labor Relations Board.
Finally, the dissent relies on a statement made by a
supervisor to McCarthy after the election. It is clear
from the statement, which is quoted in the dissent,
that it was a gratuitous opinion of a minor supervisor
to McCarthy as a friend of McCarthy's.
REMEDY
Having found that Respondent has engaged in
unfair labor practices in violation of Section 8(a)(4)
and (1) of the Act, we shall order that Respondent
cease and desist therefrom and take certain affirma-
tive action designed to effectuate the policies of the
Act.
It having been found that the Respondent unlaw-
fully refused to recall to work and discharged James
McCarthy on March 15, 1974, we will order
Respondent to offer him full reinstatement, with
backpay computed on a quarterly basis, plus interest
at 6 percent per annum; as prescribed in F. W.
Woolworth Company, 90 NLRB 289 (1950), and Isis
Plumbing & Heating Co., 138 NLRB 716 (1962), from
March 15, 1974, to the date reinstatement is offered.
CONCLUSIONS OF LAW
1. Globe Manufacturing Company is an employ-
er engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
3 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
2. Teamsters, Chauffeurs, Warehousemen and
Helpers of America, Local # 526 a/w International
Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, is a labor organization
within the meaning of Section 2(5) of the Act.
3. By refusing to recall to work and discharging
James McCarthy because an unfair labor practice
charge had been filed under the Act, Respondent
engaged in unfair labor practices within the meaning
of Section 8(a)(4) and (1) of the Act.
4. The foregoing unfair labor practices affect
commerce within the meaning of Section 2(6) and (7)
of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that Respondent,
Globe Manufacturing Company, Fall River, Massa-
chusetts, its officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Refusing to recall to work, discharging, or
otherwise discriminating against employees because
unfair labor practice charges have been filed under
the Act.
(b) In any other manner interfering with, restrain-
ing, or coercing employees in the exercise of the
rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action which is
deemed- necessary to effectuate the policies of the
Act:
(a) Offer James McCarthy immediate and full
reinstatement. to his former job or, if that job no
longer exists, to a substantially equivalent position,
without loss of seniority or other rights and privi-
leges, and make him whole for any loss of earnings
that he may have suffered in the manner set forth in
The Remedy section of this Decision.
(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 plant in Fall River, Massachusetts,
copies of the attached notice marked "Appendix." 3
Copies of said notice, on forms provided by the
Regional Director for Region 1, after being duly
signed by a duly authorized representative of the
Respondent, shall be posted by Respondent' immedi-
ately upon receipt thereof, and be maintained by it
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
GLOBE MANUFACTURING COMPANY 345
for 60 consecutive days thereafter, in conspicuous
places, including all places where notices to employ-
ees, are customarily posted. Reasonable steps shall be
taken by the Respondent to insure that said notices
are not altered, defaced, or covered by any other
material.
(d) Notify the Regional Director for Region 1, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply
herewith.
MEMBER JENKINS, concurring and dissenting in part:
My colleagues find that the Respondent violated
Section 8(a)(4) of the Act by refusing employment to
employee James McCarthy because he filed the
instant charges. I concur in this finding.
However, there is additional evidence which, in my
view, compels 4 finding that the Respondent con-
structively discharged McCarthy and, employee
William Golden in violation of Section 8(a)(3) and
(1). In support of these allegations contained in the
complaint, the General Counsel placed into evidence
certain documents, . including the synopsis of a
telephone conversation on November 20, 1973,
between the Respondent's plant safety engineer,
George Penrose , and David Castro, an agent for the
Respondent's workmen's compensation insurer,
Commercial United. The discussion concerned
McCarthy's recent November 12 work-related acci-
dent, and in pertinent part states:
Clt [i.e., claimant McCarthy] = Troublemaker
... assd [i.e., assured ,`the Respondent] would
like to force clt [McCarthy] to resign if they could
= another [employee William] Golden4
This evidence, and its obvious implications, is not
considered or mentionedin the attached Administra-
tive Law Judge's Decision. To me this and additional
critical evidence in the record of this case clearly
establishes that within days after McCarthy's acci-
dent the Respondent had set out to rid itself of the
4 In full, the note relates the following:
Geo Penrose called James McCarthy-still out report sent 11-14 -
assd feels faking-takes time off for back now & then -moved to
another job & griped lower back = stiff left Tues. 11-13 Clt =
Troublemaker -assd would like to force clt to resign if they could =
another Golden RTW [return to work ] to get his holiday pay.
DC
11-20-73
Whether Castro actually quoted Penrose seems immaterial; for, as my
colleagues must concede, Castro's "summary of the situation" and his
"summary of the conversation" with Penrose could hardly have been
recorded without Penrose's active participation-after all, Castro was not
talking to himself. And, as discussed below, any remaining doubt
concerning the Respondent's participation in a scheme to force McCarthy's
resignation is removed by the clear (and uncontroverted) "impression"
given to Commercial United that "they [the Respondent ] don 7t want you
"troublemaker," 5 McCarthy, in spite of his efforts to
return to work. Thus, by January 3, 1974, when the
Respondent made clear to him its unlawful design,
McCarthy had been examined by Commercial's
physician and, after his relapse, McCarthy was
reexamined by his own doctor. Each concluded that,
while McCarthy had a history of back trouble,6 he
was nonetheless making progress and was physically
able to resume his, normal duties. McCarthy in-
formed Penrose on December 21, 1973, that he
would be returning to work in mid-January; on
December 26 he informed Commercial's claim
adjuster, William Cottam, that he would be going
back to work in mid-January; and on a visit to the
plant on January 3, 1974, he again told Penrose he
would be returning to work in mid-January. Howev-
er, Penrose, the party to whom the Respondent
usually deferred in such matters, told McCarthy that
he would be required to discuss the matter with Vice
President Romanowicz. McCarthy told Romanowicz
that .he was ready to start in mid-January, to perform
"any work assigned that Globe gives me." At this
point, Romanowicz admittedly raised the possibility
of not reemploying McCarthy because the medical
report of Commercial's physician was not favorable
and it would not be fair to the Respondent to accept
McCarthy's return.? When McCarthy replied, if after
15 years he was terminated by the Respondent
because of an industrial accident, "who would hire
me," Romanowicz offered that "he should be able to
find something someplace." McCarthy then men-
tioned that he had not received any workmen's
compensation in 63 days (since his November 12
accident) and was in dire financial need. The
Respondent's vice president admittedly turned to the
subject of alternative (and,, in McCarthy's view,
fraudulent) forms of compensation, which included
concealing the fact that he was under a physician's
care in order to collect unemployment compensation,
McCarthy admittedly rejected these overtures, and
said that if there was "any hold" on the workmen's
[McCarthy ] back at Globe under any circumstances."
5 I am at a loss to conceive for what reason other than his union
activities McCarthy would be labeled a troublemaker. Respondent's vice
president, Romanowicz , said that he had no complaints against McCarthy
during the latter's 15 years ofservice ; there is absolutely no evidence in the
record of any derelictions on McCarthy's part; and surely the Respondent
could not be referring to McCarthy's unfortunate accident while on the job.
Finally, the Respondent's subsequent actions would remove any doubt that
it thought McCarthy was "faking" his back injury on November 12.
6 Actually, before his accid`e`nt on November 12, 1973, McCarthy, in his
15 years with the Respondent , had had seven back injuries causing him to
miss a total of only 2 months of work . The work involved at the
Respondent's plant was arduous and injuries were commonplace.
r The Administrative Law Judge concluded that at this meeting
McCarthy never asked for his job back. In view of Romanowicz' admitted
discussion of this medical report , the limitations on McCarthy's capabilities,
and fairness to the Company, it strains all credibility to believe that
McCarthy's return was not the topic under discussion.
346 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
compensation he was retaining counsel. Before
offering to call Commercial, Romanowicz stated, "if
you decide to get a lawyer to help you to collect
workmen's compensation, you might as well tell the
lawyer that there is a very good possibility there is no
employment for you at Globe Manufacturing." 8
Later that same day, Cottam telephoned McCar-
thy, stated that the Respondent was interested in
seeing that McCarthy got some payment, and asked
if McCarthy would submit to another examination in
which case Commercial would authorize partial
payment to McCarthy, explaining that McCarthy
would be required to go before the Industrial
Accident Board for any additional sums of money.
McCarthy inquired whether, if the examination
scheduled for January 8 were favorable, he would be
able to return to the Respondent on January 14. It is
uncontroverted that Cottam ended the conversation
stating that he had been told by Respondent "that
they didn't want [McCarthy's ] services anymore
under any circumstances." It is also undenied that on
the following day, January 4, Cottam again called
McCarthy, stating that if McCarthy approved the
partial disability settlement, as outlined the day
before, Commercial could mail a check for 5 weeks'
compensation that day. When McCarthy asked if he
could return to work on January 14, Cottam
answered:
I wish they would see it that way at Globe. It
would make it easier on the insurance company.
But the impression that I keep getting from them
is that they don't want you back at Globe under
any circumstances.
McCarthy refused this offer and decided to retain
counsel which ultimately led to the filing of the
instant charges and the Respondent's further dis-
crimination against McCarthy on March 15.
As .for William Golden, the record shows that
following his accident at work in June 1973 he sought
to obtain workmen's compensation from Commer-
cial and submitted to physical examinations by his
own doctor and Commercial's physician, both of
whom concluded that Golden could return to light
work. Commercial's physician stated in his report of
August 14 that he found only "modest objective
findings" of injury to Golden's back, adding that
Golden's ailments were "mainly of a subjective
nature." Yet, when Golden told Romanowicz on
August 28 that he was medically cleared to return to
light duties, the Respondent's vice president replied
8 Although called to testify after McCarthy , Romanowicz never denied
making this remark.
9 Commercial's physician had concluded in mid-August that Golden had
not suffered a ruptured disc and any such fear was largely "subjective."
Romanowicz sought to explain that he had not seen the report although he
that there was no such work available and if Golden
were to return he would be assigned to his former
arduous job on extruders. Romanowicz claimed that,
despite a documented history of assigning recuperat-
ing workmen to less burdensome tasks, the Respon-
dent had recently changed its practice and now
required that injured workmen resume the same
difficult jobs that led to their injury. Yet this new
practice was apparently not disclosed to Commer-
cial, and, when pressed, Romanowicz could not
name any employee, other than Golden, to whom
this new policy applied. Shortly thereafter, Cottam
suggested that Golden settle his claim for compensa-
tion in a lump sum and resign from the Respondent,
explaining further that:
[I]t doesn't appear to me that [the Respondent]
wants you back, so we are going to have to get
together and make a settlement ... but there is
one thing you're going to have to do. You're
going to have to resign.
Cottam and Golden then discussed a lump sum
settlement figure.
On October 12, Golden again visited Romanowicz,
related that he was in dire financial need because he
had not received any compensation in 3 months, and
pleaded for his old job. Romanowicz refused,
explaining that Golden had a disc problem and,
apparently, according to the new policy, Golden could'
not return unless he was "completely healthy." 9:
Two weeks later, Golden reached a settlement
with Commercial on a lump sum payment of $3,500,
conditioned, of course, on his resignation which was
mailed to the Respondent on October 23.
The Administrative Law Judge concluded that
Golden's job separation was voluntary and that the
Respondent "played no role, either directly or
indirectly, in imposing the condition of forced
resignation upon Golden as a prerequisite to the
receipt of an insurance settlement." However, the
Administrative Law Judge failed to discuss and
apparently overlooked the fact that on October 5
George Penrose had called a Commercial agent,
Edward Squire, and, left the following message for
Cottam:
Lee [i.e., Leland Cottam]: George Penrose called.
He has talked over with assd's V.P. [Roman-
owicz ] and they agree with a lump sum contin-
gent upon the client [i.e., claimant Golden]
signing a resignation slip.
was certain that Golden had sustained such an injury. Confronted with
these circumstances , Romanowicz then testified that, although he did not
know about Golden's true medical condition , he concluded that Golden was
seriously injured by the way he was "fidgeting in the chair."
GLOBE MANUFACTURING COMPANY 347
He wanted to know what we would pay for a
[lump sum]. I said in the neighborhood of $3,500.
I told him you'd be contacting client next week.
Last year the teamsters spent several months
trying to convince our employees that they
needed a union ... .
ESS
10-5-73
As with the notation made with regard to McCar-
thy., this evidence establishes that the Respondent
was considering Golden's forced retirement, while at
the same time representing to Golden that he could
return, albeit "if he were completely healthy."
Cottam himself testified that while the subjects of a
lump sum settlement and possible resignation were
raised by Commercial it was incumbent upon the
carrier to seek the insured's approval before taking
the drastic step of conditioning a lump sum settle-
merit upon resignation.'° Cottam further explained
the true gravity of this procedure, which requires the
approval of the Commission of the Industrial
Accident Board, by explaining that a lump sum
settlement conditioned upon resignation occurs in
"one out of every two hundred cases." This uncon-
troverted evidence shows that the Respondent played
a very crucial role in forcing Golden to take this
drastic step by refusing to reemploy him after his
accident.
Of course, there is the matter of motivation.
McCarthy and Golden were the only two, observers
for the Union at the election in May 1973. Before the
election, the Respondent called into supervisors'
offices small groups of employees to warn them
against participating in union activities. McCarthy
was admittedly a spearhead of the movement and
was the chief organizer among his fellow first-shift
employees. Also it is undenied that he was told by a
supervisor after the election: "I'm going to give you
some friendly advice, Red. Watch yourself. Watch
what you say because the company is out to get rid of
people like you."" While some time had elapsed
since the election and Golden's discharge, it is
noteworthy that McCarthy, as late as November, was
still considered a "troublemaker," and the Respon-
dent was then plotting his discharge, as it had done
in Golden's case. As my colleagues would now agree,
there is the further evidence of union animus
surrounding the March 15, 1974, confrontation
between Romanowicz and McCarthy. Finally, it is
documented that the union activities of its employees
were hardly a forgotten matter 1 year after the
election, for, in response to a new organizational
campaign in the spring of 1974, the Respondent's
president sent to all of its 300 employees a letter,
dated' March 26, 1974, reminding them that
Last year, the election was held only because a
number of employees were convinced to sign
cards . . . . Obviously many employees signed
cards under pressure last year who had no
intention of joining the union or voting for it. Out
of this came months of unrest in the plant.
Accordingly, after careful consideration of the
entire record evidence, including that evidence
herein set forth which was not discussed and
apparently not considered by the Administrative
Law Judge, I must conclude that the Respondent
violated Section 8(a)(3) with respect to employees
McCarthy and Golden as alleged in the complaint.
10 In this regard , the following colloquy during the proceeding is
enlightening:
[ALT ] RosENBERG. Let me ask you this, Mr. Cottam. At anytime
during these [settlement ] negotiations ... did either M.T. Romanowicz
or Mr. Penrose suggest to you as a condition of receiving a lump sum,
that Golden be asked to resign?
THE Wimsss: He didn 't to me, sir. He did to Mr. Squire . That's
why I didn't mention it, because he called and Mr. Squire took the
message, not myself.
[ALJ] RGSENBERG : Did he tell you why Mr. Penrose requested or
suggested that Golden resign?
TUE WrrNESS: Not according to the note that is on the file . The note
on the file simply states it was all right for us to proceed and settle the
case. He asked us how much we had in mind paying , and he just said he
thought we should get the resignation that I mentioned.
11 These incidents were not alleged as conduct violative of Sec. 8(a)(1) of
the Act because they occurred outside the 10(b) period. Nonetheless, they
are important background for the Respondent's unlawful actions.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT refuse to recall to work, dis-
charge, or otherwise discriminate against employ-
ees because unfair labor practice charges have
been filed under the Act.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of the rights guaranteed to them by
Section 7 of the Act.
WE WILL offer James McCarthy immediate and
full reinstatement to his former job or, if that job
no longer exists, to a substantially equivalent
position, without prejudice to his seniority or
other rights or privileges, and will make him
348 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
whole for any loss of earnings he may have
suffered.
GLOBE MANUFACTURING
COMPANY
DECISION
STATEMENT OF THE CASE
MAx ROSENBERG, Administrative Law Judge: With all
parties represented, this proceeding was tried before me in
Fall River, Massachusetts, on July 25 and 26, 1974, on an
amended complaint filed by the General Counsel of the
National Labor Relations Board and an answer filed
thereto by Globe Manufacturing Company, herein called
the Respondent.' At issue is whether Respondent violated
Section 8(a)(3) and (4) of the National Labor Relations
Act, as amended, by certain conduct to be detailed below.
Briefs have been received from the General Counsel and
the Respondent which have been duly considered.2
Upon the entire record made in this proceeding,
including my observation of the demeanor of the witnesses
as they testified on the stand, I hereby make the following:
FINDINGS OF FACT AND CONCLUSIONS
1. THE BUSINESS OF THE EMPLOYER
Respondent, a Massachusetts corporation with its
principal office and place of business in Fall River,
Massachusetts , is engaged in the manufacture , sale, and
distribution of rubber threads and related products . During
the annual period material to this proceeding , Respondent
received goods and materials valued in excess of $50,000
directly from points located outside the Commonwealth of
Massachusetts . In the same period, Respondent shipped
goods and materials valued in excess of $50,000 directly to
points located outside said Commonwealth . The complaint
alleges , the answer admits, and I fmd that Respondent is
an employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
U. THE LABOR ORGANIZATION INVOLVED
Teamsters, Chauffeurs, Warehousemen and Helpers of
America, Local #526, a/w International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of
America, herein called the Union, is a labor organization
within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
The complaint, as amended, alleges that Respondent
violated Section 8(a)(3) of the Act when, on October 23,
1973, it constructively discharged employee William
Golden by requiring him to execute a "resignation notice"
thereby forcing him to abandon his employment with
Respondent in order to enable him to receive monies due
from a workmen's compensation claim, all because he had
3 The complaint , which issued on June 14, 1974, is based upon charges
and amended charges filed and served on March 6, 1974, and June 7, 1974,
respectively.
acted as an observer on behalf of the Union in an election
which was conducted by the Board among an appropriate
unit of Respondent's employees on April 12, 1973. The
complaint further alleges that Respondent offended the
provisions of Section 8(a)(3) by discharging and/or
refusing to permit employee James McCarthy to return to
work on January 3, 1974, because he, too, served as a
union observer during the balloting, and additionally
violated Section 8(a)(4) by discharging and/or refusing to
permit McCarthy to return to work on March 15, 1974,
because he had filed unfair labor practice charges against
Respondent under the Act. For its part, Respondent denies
the commission of any labor practices proscribed by the
Statute.
On April 12, 1973, following the filing of a representation
petition by the Union, an election was conducted by the
Board among Respondent's employees which the Union
lost by a score of 2 to 1. No objections or unfair labor
practice charges were filed by the Union in connection
with the vote and, consequently, the Board certified the
results.
It is undisputed and I find that, during the election,
employee William Golden acted as a union observer and
Respondent was fully aware of his designated role. Golden
also distributed union authorization cards to employees
near the plant prior to the election. However, the record is
devoid of any probative evidence that Respondent knew of
these ancillary activities. Otherwise, Golden did not engage
in any future supportive endeavors on the Union's behalf.
Prior to his separation from Respondent's employment
rolls on October 23, 1973, Golden had worked for the
Company since 1970 and regularly performed the duties of
doffer-helper on extruders. Physically, the job was a
demanding one in that it required the lifting of boxes and
other materials weighing up to 100 pounds, and consider-
able bending. On June 22, 1973, he sustained an injury to
his back while at work and, shortly thereafter, sought and
received medical attention. He also filed a claim for
workmen's compensation. On August 28, 1973, Golden
visited Walter Romanowicz, Respondent's vice president
and production manager, and handed Romanowicz a note
from his physician, Dr. Bruce Derbyshire, which was dated
August 27, 1973, and which recited that "This is to certify
that William Golden has now recovered sufficiently to be
able to return to light work duties on 8-28-73 if he is, not
required to stand for long periods of time." Romanowicz
testified and I find that he informed Golden that there was
no light duty work then available, but promised to reinstate
Golden to his regular job just as soon as he was physically
able to perform it.
On October 12, 1973, Golden again visited Romanowicz.
Because Golden was in dire need of financial resources, he
asked Romanowicz for his regular job back although he
acknowledged to the production manager that he did not
feel physically qualified to execute those duties . Romano-
wicz told Golden that it would be folly for the latter to
return to his regular work and risk further, serious injury to
his back . Romanowicz added that it would also be risky for
2 Respondent's unopposed "Motion to Correct Transcript" is hereby
granted.
GLOBE MANUFACTURING COMPANY 349
the Respondent to return Golden to his former position in
light of the nature of Golden's infirmity. At this juncture,
Golden informed Romanowicz that the former had
received a settlement offer from Commerical Union
Insurance Company, Respondent's workmen's compensa-
tion insurance carrier, in the sum of $2,500. Golden stated
that he believed that this offer was inadequate and that he
intended legally to battle for a larger figure. Romanowicz
did not respond to this intelligence, whereupon Golden
thanked Romanowicz for his advice and left the plant.
On or about October 25, 1973, Respondent received in
the mail a written notice of resignation from Golden, dated
October 23, 1973, which read: "I hereby resign from the
employment of the Globe Manufacturing Company." The
notice was signed by Golden, and was witnessed by an
attorney.
At the hearing, the General Counsel, with commendable
candor, openly acknowledged that, if Golden's action in
resigning his employment with Respondent was voluntarily
taken, the Government's case as to him must inexorably
fall. I turn next to a consideration of the evidence
surrounding Golden's rendition of the resignation notice.
It is uncontroverted and I find that, on July 17, 1973,
Golden telephoned Leland Cottam, the adjuster for the
Commercial Union Insurance Company, to complain that
he had not received any insurance payments for almost 3-
1/2 weeks since his injury. Cottam stated that, if Golden
submitted to an examination by an insurance company
doctor, Cottam would remit a check for 4 weeks'
compensation. On August 13, 1973, Golden was examined
by a Dr. Albert Resnick. On August 14, 1973, Dr. Resnick
drafted his medical report in which he made reference to a
diagnosis by Golden's personal physician Dr. Derbyshire,
who believed that Golden had a possible ruptured disc.
Resnick disagreed with this diagnosis. Thereafter, on
August 26, 1973, Golden called Cottam to inquire whether
the latter had received Dr. Resnick's report. Cottam replied
in the affirmative and observed that the report contained a
negative description of Golden's physical condition.
Golden expressed his disagreement over Cottam's charac-
terization of his back injury and advised Cottam that he
planned to retain an attorney to press his compensatory
rights.
A few days after his August 28, 1973, meeting with
Production Manager Romanowicz, which is chronicled
above, Golden telephoned Cottam. In the ensuing conver-
sation, and according to Golden's testimony, Cottam
mentioned that "it doesn't appear to me that [Respondent]
wants you back, so we are going to have to get together
and make a settlement . . . but there's one thing you're
going to have to do. You're going to have to resign." 3
Cottam initially mentioned a settlement figure of $2,500,
and Golden countered with the sum of $5,000. Cottam
demurred at Golden's proposal and, just before the
telephonic colloquy ended, Cottam explained that, if a
settlement were to be reached, Golden would have to
undergo an examination by another insurance company
doctor. Arrangements were then made for Golden to be
examined on or about September 9, 1973. Following the
examination, Golden spoke with Cottam several times
concerning a settlement sum. On October 22, 1973, Golden
and Cottam reached agreement on a figure of $3,500.
Coincident thereto, Cottam informed Golden that "you are
going to have to resign from the company," to which the
latter replied, "well, I don't know if I want to be out of a
job, but it's O.K. with me." As heretofore outlined, on
October 23, 1973, Golden drafted his letter of resignation
and mailed it to Respondent.
Both Cottam and Romanowicz testified that Respondent
played no role, either directly or indirectly, in imposing the
condition of forced resignation upon Golden as a prerequi-
site to the receipt of an insurance settlement , and Cottam
stated unequivocally that Golden' s action in resigning his
job was entirely voluntary. If there is any doubt as to the
veracity of their testimonially statements in this regard, it is
completely resolved, in my opinion, by Golden's candid
testimony on this issue . During his sojourn on the witness
stand, Golden was questioned as follows:
JUDGE RosENBERG : In your conversations with Mr.
Cottam, if the word resign or resignation was ever
mentioned, did he ever tell you that that word
originated with anybody in the company?
TilE WITNEss: I'm not positively sure if the word
resign was used, but he did say "they don't want you
back."
JUDGE ROSENBERG : They what?
THE WiTNEss: They don't want me back, or "it
appears to me that they don't want you back." That is
what he said.
JUDGE ROSENBERG: Did he say that anybody in the
company had told him to tell you that in order for you
to get a settlement, you would have to resign?
THE WrrNEss: No.
JUDGE ROSENBERG : In your mind, when you wrote
that letter , there is a little note that "I hereby resign,"
did you do it voluntarily?
THE WrrNEss: Yes.
JUDGE RosENBERG : There was no coercion?
Tim WrrNEss: He told me that I'm going to have to
resign or I won't receive my settlement.
JUDGE RoSENBERG : So you had the option of either
not resigning and getting nothing, or resigning and
getting $3,500?
THE WIZNESs: Yes.
JUDGE RosENBERG : Were you under the impression
that the company had imposed that condition?
Tim WrrNEss: No, Mr. Cottam_ told me-all he said
to me was "it appears to me that the company doesn't
want you back" He never said they wanted me to
resign.
JUDGE RosENBERG : But he didn't say the company
told him that they didn't want you back?
Tim WiTNEss: No.
Based upon the foregoing testimony of Golden, as well
as the testimonial utterances of Cottam and Romanowicz,
which I credit, I find that, on October 23, 1973, Golden
3 In his testimony, Golden admitted that Cottam did not state that he
had been informed by Respondent that it did not want Golden back at
work.
350 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
voluntarily relinquished his job with Respondent to obtain
a satisfactory financial settlement from Respondent's
'insurance carrier. I fmd that Golden's decision to follow
this course was unfettered' by any pressure levied upon
him, either openly or covertly, by Respondent in order to
punish him for having served as a union observer in the
election held on April 12, 1973, some 6 months prior to
Golden's resignation. Accordingly, I conclude that the
General Counsel has failed, by preponderant proof, to
establish that Respondent' violated Section 8(a)(3) in its
dealings with Golden. I shall therefore dismiss the
allegations in the complaint which relate to him.
James McCarthy had been an employee of Respondent
since 1959. As in the case of Golden, McCarthy pulled a
tour as a union observer during the April 12, 1973 election.
Thereafter, he refrained from all overt union activities .4
Like William Golden,, McCarthy had been employed by
Respondent as an extruder-helper, a job, which as
previously noted, is physically taxing. During the span of
his employment from 1959, McCarthy established a
prolonged history of back injuries. Thus, on August 6,
1962, he experienced a back pain due to pushing a skid; on
December 20, 1963, he suffered a bruised back when he
slipped on the stairs at the plant; on May 18, 1970, he
wrenched his back muscles while pushing a rack which
incapacitated him from a month; August 3, 1971, he
sustained a back injury while "reaching" which deprived
him of work for 3 weeks; and, on October 27, 1972, he
strained the small of his back while lifting.
On May 15, 1973, approximately a month after the
election conducted by the Board, he experienced a muscle
pull in his middle back upon rising from a squatting
position. McCarthy thereafter absented himself from work
and filed a workmen's compensation claim, for which he
was paid for the period of May 15 to 31, 1973. On
November 12, 1973, he again sustained a back injury which
occurred while he was bending over the extruder tanks.
McCarthy left his work on November 13, 1973, and, on
November 26, 1973, he filed a workmen's compensation
claim with Adjuster Cottam of the Commercial Union
Insurance Company. During his incapacitation, McCarthy
was treated by his personal chiropractor, Dr. Robert J.
Quigley. Following the filing of his claim, and on
December 7, 1973, McCarthy was examined by the
insurance carrier's physician, Dr. Albert Resnick.
On December 21, 1973, McCarthy placed a call to
George Penrose, Respondent's plant safety engineer, to
seek assistance in obtaining compensation payments.
Penrose inquired whether the employee had any idea when
he would be able to return to work. McCarthy replied that
he anticipated his return on December 17, 1973, but that he
had aggravated his back injury on December 11 and that it
would be mid-January 1974 before he could resume his
duties. Penrose promised to contact Cottam and explore
the situation. After doing so, Penrose called McCarthy to
report that Cottam would be unavailable until December
26. On this date, McCarthy placed a call to Cottam.
During their conversation, McCarthy complained that he
had been out of work for 44 days and had not received any
compensation payments. Cottam inquired as to whether
McCarthy had returned to work, inasmuch as Dr.
Resnick's medical report predicted that the employee could
resume his normal duties on December 17, 1973. McCar-
thy replied that he had worsened his back injury on
December 11, and that his chiropractor, Dr. Quigley, had
indicated that he would be able to go back to his job in
mid-January 1974. In his report, Dr. Resnick noted:
This patient would appear to be improving and will no
doubt return to work as he anticipates. There is,
however, a long-range problem in that the patient has a
recurrent low back syndrome which I am reasonably
certain will keep repeating almost on an indefinite
basis .5
On January 3, 1974, McCarthy visited the plant and
spoke to Plant Safety Engineer Penrose. McCarthy testified
that he informed Penrose that Adjuster Cottam would not
authorize any, compensation payments until he (Cottam)
had talked the matter over with Respondent's officials.
Penrose asked how McCarthy's back injury was progress-
ing, and McCarthy responded that it was coming along
well and that he would be able to return to the plant
around the middle of January. A short time later,
McCarthy met with Romanowicz. According to McCarthy,
Romanowicz inquired as to when the former could come
back to his job. McCarthy answered that he contemplated
doing so around January 14. Romanowicz then stated that
he had received Dr. Resnick's report and that, because the
prognosis indicated a continuing deterioration of McCar-
thy's back condition, Romanowicz remarked that he did
not think the Company had any work which McCarthy
was capable of performing, and that it would not be
economically fair for the Respondent to be subjected to
McCarthy's intermittent employment. The discussion
turned to the matter of workmen's compensation, and
Romanowicz offered to facilitate the receipt of compensa-
tion payments by McCarthy.
In his testimony, Romanowicz stoutly maintained that
his conversation with McCarthy on January 3, 1974,
centered exclusively around the topic of obtaining work-
men's or unemployment compensation for McCarthy, and
that the latter at no time during the meeting sought a
resumption of employment. I credit Romanowicz' testimo-
ny, not only because McCarthy did not impress me with
his candor while on the witness stand, but also because he
spuriously volunteered that "All I was interested in at that
time was obtaining some compensation." Moreover,
McCarthy neither possessed nor proffered to Romanowicz
any written indication from his doctor that McCarthy had
cleared the hurdle of his physical incapacitation and was
capable of returning to work on January 14, 1974.
The General Counsel's complaint alleges that Respon-
dent violated Section 8(a)(3) of the Act by discharging
and/or refusing to permit McCarthy to return to work on
January 3, 1974. Based upon Romanowicz' credited
testimony, I find that the subject of McCarthy's return to
4 Although the Union launched another organizational drive in the
spring of 1974, McCarthy attended but one union meeting and did not
submerge himself into this campaign.
5 In his medical report , Dr. Quigley stated that "this injury is a
recurrence of a prior back injury."
GLOBE MANUFACTURING COMPANY
work never arose in their conversation on that date. I
further find that Romanowicz did not discharge McCarthy
on this occasion. I shall therefore dismiss this allegation
from the complaint.
Continuing the narrative, McCarthy testified that he
telephoned Cottam on the afternoon of January 3, 1974,
relative to his insurance payment. Cottam suggested that
some remuneration might be possible if McCarthy submit-
ted to an examination by the carrier's doctor. At this point,
and for some unexplained reason, McCarthy asked
Cottam, an insurance adjuster, whether he McCarthy,
could return to work on January 14, 1974, and that Cottam
responded that the examination would aid McCarthy only
in collecting compensation "because they had told him
[Cottam] at Globe that they didn't want my services
anymore under any circumstances." McCarthy then
tailored Cottam's response to, "Me impression I keep
getting from them that they don't want you back at Globe
under any circumstances." However, McCarthy admitted
that he never attempted to verify this statement with any
official of Respondent, and confessed that none of
Respondent's officers ever told him that he could not
return to work, or that he was discharged. In point of fact,
McCarthy testified that he was informed by Romanowicz,
as late as March 15, 1974, that he still remained an
employee of Respondent. Accordingly, I do not credit
McCarthy's testimony on this issue.
The important events abided until March 15, 1974.
McCarthy testified that he visited the plant and ap-
proached Penrose, proffered a work permit from his doctor
which recited that he was physically able to return to work,
and inquired into his employment status. The doctor's
note, dated February 7, 1974, stated that "James McCar-
thy has been under my care for the treatment of an injury
sustained in an industrial accident on November 12, 1973
and may return to work on Monday, February 11, 1974."
McCarthy then showed the notice to Romanowicz.
According to McCarthy, Romanowicz perused the docu-
ment and said, "your work permit doesn't mean anything
because you have seen fit to file unfair labor practice
charges against the company, it is inappropriate for me to
discuss employment with you."6 However, Romanowicz
added that, "you are not fired or terminated. You are still
considered an employee of Globe. I have nothing further to
say to you." McCarthy testified that he had retained an
attorney on March 15, 1974, who instructed him to proceed
to the plant and investigate his employment status, because
8 The initial charge in this proceeding was filed on March 6, 1974.
r In the event no exceptions are filed as provided by Sec. 102 46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions , and recommended Order herein shall, as provided in Sec.
351
the attorney had advised him to file for unemployment
compensation.
On the other hand, Romanowicz testified that, when he
received a visit from McCarthy on March 15, 1974, he told
the latter that, upon advice of counsel, he could not
consider McCarthy's work status because the unfair labor
practice charges which he had filed against Respondent
were under investigation, and that it was inappropriate for
him to discuss the matter at that time. On this record, there
is neither mention nor hint that Romanowicz had
foreclosed any future discussion concerning McCarthy's
return to work, or his ability to work. Moreover, it is
undisputed and I find that, during this conversation,
Romanowicz explicitly advised McCarthy that "you are
not fired or terminated. You are still considered an
employee of Globe."
The complaint alleges that Respondent violated Section
8(a)(4) of the Act by discharging and/or refusing to permit
McCarthy to return to work on March 15, 1974, or refusing
to discuss future work prospects, because he had filed
charges against Respondent under the Act. It seems clear,
on the basis of McCarthy's testimony alone, that Respon-
dent did not discharge him on March 15, 1974, or at any
other time thereafter. Moreover, I credit Romanowicz'
version of the event, and fmd that he declined to discuss
McCarthy's work status on that date on advice of counsel
because the unfair labor practice charges filed by McCar-
thy were then under investigation. I find that this stance
was one which Respondent could legally assume . Further-
more, there is nothing in this record which even remotely
suggests that Respondent foreclosed any future colloquy
regarding McCarthy's employment prospects. Accordingly,
I conclude that Respondent did not violate either Section
8(a)(3) or (4) of the Act by any conduct relating to
McCarthy. I shall therefore dismiss these allegations from
the complaint.
I shall therefore order that the complaint filed herein be
dismissed in its entirety.
Upon the basis of the foregoing fmdings of fact and
conclusions , and pursuant to Section 10(c) of the Act, I
hereby issue the following recommended:
ORDER 7
IT IS HEREBY ORDERED that the complaint filed herein be,
and it hereby is, dismissed in its entirety.
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.