Globe Mfg. Co.

National Labor Relations Board - Board Decisions

May 31, 1977

229 N.L.R.B. 1025 (N.L.R.B. 1977)

GLOBE MANUFACTURING COMPANY
Globe Manufacturing Company and Teamsters,
Chauffeurs, Warehousemen and Helpers of Ameri-
ca, Local #526 a/w International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Help-
ers of America. Case 1-CA-9649
May 31, 1977
SUPPLEMENTAL DECISION AND
ORDER
BY MEMBERS JENKINS, PENELLO, AND
WALTHER
On June 10, 1975, the National Labor Relations
Board issued a Decision and Order in the above-
entitled proceeding in which, inter alia, it reversed
Administrative Law Judge Max Rosenberg's findings
that the Respondent had not violated Section 8(a)(4)
of the Act.' On July 16, 1975, the Respondent filed
motions for reconsideration and for reopening of the
record, both of which were denied by the Board on
September 16, 1975. Thereafter, the United States
Court of Appeals for the First Circuit denied the
Board's petition for enforcement and remanded the
case for further proceedings consistent with its
opinion.2 On January 19, 1977, the Board advised the
parties of its decision to accept the court's remand
and invited statements of positions from the parties
with respect to the issues raised by the remand.
Thereafter, the General Counsel and the Respondent
filed statements of positions with the Board.
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 reconsidered the record and our
previous decision in this matter in light of the
opinion of the First Circuit, and the statements of
positions that the parties have submitted. Upon due
consideration, we have decided to reaffirm our
previous conclusion that the Respondent violated
Section 8(a)(4) of the Act with respect to employee
James McCarthy; however, we do so for the
following reasons only. :'
The record indicates that, on January 3, 1974,
employee McCarthy visited the Respondent's plant
and spoke to Production Manager Romanowicz
concerning McCarthy's inability to receive compen-
sation as a result of an injury that he had suffered on
November 12, 1973. In accordance with the proce-
dures that were followed when a claim for compensa-
' 218 NLRB 342 (Members Kennedy and Penello: Member Jenkins.
dissenting on other points).
N.L. R.B. v. Globe Manufacturing Compano, 544 F.2d I 118 (1976).
:' Member Walther, while not a signatory to the onginal opinion or to the
order denying the Respondent's various motions, joins his colleagues in the
opinion here.
229 NLRB No. 147
tion was filed, the insurance carrier's physician, Dr.
Albert Resnick, had examined McCarthy and had
issued a report that indicated that while McCarthy
could return to work there was "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." During the
conversation with McCarthy on January 3, 1974,
Romanowicz indicated that it would be necessary for
McCarthy to obtain an opinion from a second
doctor, specifying that McCarthy was able to work
again, before he would be reinstated.
After the meeting of January 3, McCarthy filed an
unfair labor practice charge against the Respondent
in which he alleged that the only reason he had not
been reemployed was that he previously had been
active in a union organizing campaign. 4 On March
15, 1974, McCarthy returned to the plant and spoke
to Romanowicz. During this conversation, according
to Romanowicz' credited testimony,5 Romanowicz
indicated, when McCarthy attempted to show him
another doctor's note, that he could not consider
McCarthy's work status because of the pending
unfair labor practice charge and that it was therefore
"inappropriate" for them to discuss McCarthy's
return to work since the unfair labor practice charge
was still pending. Based upon the refusal of Roma-
nowicz to consider McCarthy for reinstatement,
McCarthy filed an 8(a)(4) charge with the Board.
While he noted the above facts, the Administrative
Law Judge dismissed the 8(a)(4) allegation against
the Respondent. He reasoned that Romanowicz had
refused to discuss McCarthy's work status pursuant
to his counsel's advice with respect to the pending
unfair labor practice charge. He then found such a
stance to be legal and noted that the Respondent did
not foreclose a further discussion with McCarthy at
an appropriate time. He therefore dismissed the
allegation. We disagree.
Section 8(a)(4) of the Act provides that it shall be
an unfair labor practice for an employer to discharge
or "otherwise discriminate" against an employee
because he has filed charges or given testimony
under the Act. Very simply, since Romanowicz
refused to consider McCarthy for reinstatement
solely because McCarthy had filed an unfair labor
practice charge against the Respondent, by definition
the Respondent violated Section 8(aX4) of the Act.
On January 3, Romanowicz had set as a condition
for McCarthy's return the presentation of another
doctor's opinion. On March 15, McCarthy attempted
I In its prior Decision, the Board (Member Jenkins. dissenting) affirmed
the Administrative Law Judge's finding that the Respondent had not
violated Sec. 8(a)3) of the Act in this proceeding.
5 In its prior Decision, the Board relied on McCarthy's testimony in
finding that the Respondent had violated Sec. 8(a)(4) of the Act.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to fulfill that condition, but that attempt was blocked
by Romanowicz only because McCarthy had filed an
unfair labor practice charge.6 Romanowicz thereby
violated Section 8(a)(4) of the Act at that time. 7
THE REMEDY
Having found that the Respondent has engaged in
certain unfair labor practices in violation of Section
8(a)(4) and (1) of the Act, it will be ordered that the
Respondent cease and desist therefrom and take
certain affirmative action designed to effectuate the
policies of the Act.
As we have found that the Respondent failed to
consider employee McCarthy for reinstatement
solely because of his having filed an unfair labor
practice charge, we shall order that McCarthy be
offered 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 and privileges, and to
make him whole for any loss of earnings he may have
suffered by reason of his unlawful treatment by
payment to him of a sum of money equal to that
which he normally would have earned as wages, from
the date of his discharge to the date of his offer of
reinstatement, less net earnings, to which shall be
added interest at the rate of 6 percent per annum in
accordance with the formula set forth in F. W.
Woolworth Company, 90 NLRB 289 (1950), and Isis
Plumbing & Heating Co., 138 NLRB 716 (1962).8
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.
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 consider James McCarthy for
reinstatement because an unfair labor practice
charge had been filed under the Act, in his behalf,
6 While Respondent argues for various reasons that the doctor's slip
McCarthy attempted to present on March 15 was insufficient to refute the
earlier opinion of Dr. Resnick, such argument is inapplicable to our finding
a violation of the Act here, since Respondent, on March 15, refused to
review the doctor's slip then or consider McCarthy for reinstatement solely
because he had filed an unfair labor practice charge. Further, as McCarthy
attempted to return to work on March 15 and as Respondent then blocked
his attempts only because unfair labor practice charges had been filed, the
Administrative Law Judge's comment that Respondent did not foreclose
discussion of a return to work at a later time is inapt. The violation rises and
falls on a consideration of why Respondent refused to consider McCarthy
for reinstatement on March 15. As shown, that reason was a proscribed one.
7 Respondent also argues in essence that, even if on March 15
Romanowicz had discussed with McCarthy the possibility of the latter's
return, Romanowicz would have rejected McCarthy on physical grounds.
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 the Respondent,
Globe Manufacturing Company, Fall River, Massa-
chusetts, its officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Refusing to consider employees for reinstate-
ment because unfair labor practice charges have
been filed under the Act on their behalf.
(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 privileg-
es, 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." 9
Copies of said notice, on forms provided by the
Regional Director for Region i, after being duly
signed by authorized representatives of the Respon-
dent, shall be posted by Respondent immediately
upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places,
While this issue is relevant for remedy purposes (see below), it hardly is for
purposes of establishing a violation where the filing of the unfair labor
practice charge was offered as the only reason for the refusal to discuss
McCarthy's return. We are not persuaded Respondent has disentangled any
legitimate reasons for not considering McCarthy from the illegal one it itself
proffered on March 15.
8 McCarthy's suitability for reinstatement, and therefore the extent to
which his pecuniary loss is fairly chargeable to the Respondent, is a matter
that is properly resolved at the compliance stage of this case.
9 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
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
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GLOBE MANUFACTURING COMPANY
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 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.
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 consider employees for
reinstatement because unfair labor practice
charges have been filed under the Act on their
behalf.
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 WE WILL make him
whole for any loss of earnings he may have
suffered with interest at the rate of 6 percent per
annum.
GLOBE MANUFACTURING
COMPANY
1027