Glomac Plastics, Inc.

National Labor Relations Board - Board Decisions

Jan 26, 1973

201 N.L.R.B. 450 (N.L.R.B. 1973)

450 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Glomac Plastics, Inc. and Textile Workers Union of
America , AFL-CIO-CLC. Case 3-CA-4881
January 26, 1973
DECISION AND ORDER
BY MEMBERS FANNING, KENNEDY, AND
PENELLO
On September 14, 1972, Administrative Law Judge
Phil Saunders issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions,
and the General Counsel filed a brief in answer to
Respondent's exceptions.
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 brief
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge only to
the extent consistent herewith.
The complaint alleges and the Administrative Law
Judge found that the Respondent violated Section
8(a)(1). (3), and (4) of the Act by failing to grant a
wage increase to Nina DePalma in April 1972. We
do not agree.
DePalma began working for the Respondent in
1969, was active in the Union's organizing campaign
during the spring of 1970, was a member of the
organizing committee, solicited a majority of the
authorization cards, was out on strike from April to
November 1970, was elected shop steward for her
shift in the spring of 1970, and in March 1972
testified against the Respondent in a prior Board
case in support of a complaint alleging in part that
the Respondent prevented her from union soliciting
during nonwork hours. In that case the Respondent
was found not to have violated the Act as to
DePalma, but was found to have illegally threatened
to deny a wage increase to another union supporter,
Mary Cullen, who also testified.'
DePalma broke a production mold in April 1971.
This, according to the Respondent's president, held
up production because the mold had to be sent out
for repair at a cost of between $300 and $400, and
possibly was one of the reasons for the Respondent's
loss of a major customer. Two other employees also
damaged molds, but much less seriously than
DePalma.
During April 1972, the Respondent granted a wage
increase to approximately 22 of its 80 employees,
including 15 of the 16 former strikers who were still
employed. Included among the employees who
had testified, and the two other employees who had
damaged molds. The Respondent told DePalma that
she did not get her raise because of the broken mold.
At the instant hearing, the Respondent also argued
that DePalma was denied a raise because she had
incorrectly filled out her production cards and had to
be sent to a training session. In fact, she had been an
instructor at these sessions.
The Administrative Law Judge found that the
Respondent's refusal to grant DePalma a wage
increase was motivated by her prounion activities
and her testimony against the Respondent at the
earlier Board hearing and was violative of Section
8(a)(1), (3), and (4).
We are not satisfied that it was in fact DePalma's
union activity and her testimony at the earlier
hearing that caused the denial of an increase to her.
The damage that she caused was, it appears,
substantially greater than that caused by others and
the other union witness was not denied an increase,
nor were the strikers who were still in the Respon-
dent's employ. No one of these factors may in itself
be determinative, but in combination they convince
us that the General Counsel has not established a
violation. Accordingly, we shall dismiss the com-
plaint.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the complaint be,
and it hereby is, dismissed in its entirety.
Glomac Plastics, Inc, TXD-291-72, decided by the Trial Examiner
May 1. 1972, no exceptions were filed , and the Trial Examiner's
recommended Order became the Order of the Board on June 2, 1972
The title of "Trial Examiner" was changed to "Administrative Law
Judge" effective August 19, 1972
DECISION
STATEMENT OF THE CASE
PHIL SAUNDERS , Administrative Law Judge: Upon a
charge filed on April 18, 1972 , by Textile Workers Union
of America , AFL-CIO-CLC, herein called the Union, a
complaint , dated May 31, 1972 , was issued alleging that
Glomac Plastics, Inc., herein the Company or Respondent,
has engaged in conduct constituting unfair labor practices
within the meaning of Section 8(a)(1),(3), and (4) of the
National Labor Relations Act, as amended . Respondent
filed an answer to the complaint generally denying that it
had engaged in the alleged unfair labor practices. A
hearing in this proceeding was held in Syracuse, New
York, on July 11 and 12, 1972.' Both the General Counsel
and Respondent filed briefs.
Upon the entire record in this case , and from my
received raises were Cullen, the other employee who I All dates are 1972 unless specifically stated otherwise
201 NLRB No. 66
GLOMAC PLASTICS, INC.
observation of the witnesses and their demeanor, I make
the following:
FINDINGS OF FACT
1. BUSINESS OF RESPONDENT
Respondent, a New York corporation, manufactures and
sells plastic products from its plant located in Syracuse,
New York. During the past year the Company shipped
manufactured products valued in excess of $50,000
through channels of interstate commerce from its plant in
Syracuse, New York, to customers located in other States
of the United States. Respondent admits, and I find, that it
is engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of
Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
The issue in this case is whether or not Nina DePalma
was denied a wage increase in April due to her union
activities and because she testified at a Board unfair labor
practice hearing against the Respondent. DePalma started
her employment in 1969, and still works for the Company
as a machine operator in the molding department.
It appears that the Union initially attempted to organize
the plant in the sprang of 1970, and a strike of several
months' duration resulted soon thereafter. DePalma was
active on behalf of the Union from its inception and has
continued in such activities right up to the present time. In
early phases of the organizational campaign she successful-
ly solicited a good many employees in signing authoriza-
tion cards, she was a member of the organizing committee,
participated in the strike, and in the spring of 1971 she was
elected union steward for the employees on the first shift.2
There is no question that the Respondent had prior
knowledge of DePalma's activities for the Union, and, in
fact, the Respondent stipulated that since 1970 it knew she
was involved in the Union, but argues that such activities
in no way entered into their failure to include DePalma in
the April wage increase here in question , and the
Respondent maintains that DePalma was denied the
increase due to work performances and because she had
broken a "mold."
DePalma admits breaking a "control block mold" back
in February 1971 and receiving a written warning slip over
this incident and testified that, when she inquired in April
as to the reason why she was not included in the group
receiving the pay increase, her foreman told her it was
because of the broken mold.
The General Counsel produced testimony through Rita
LaRock, a machine operator on the second shift, to the
effect that she had also accidently broken a mold in March
1971 and received a warning slip, but, nevertheless, was
included in the April wage increase. LaRock said that
2 The Union's organizational efforts resulted in its victory in a Board
election on June 15 and its certification by the Board
3 Resp . Exhs 1 through 6
451
because of this accident (breaking the legs on the mold) her
machine "was down" for some period of time , but she was
placed on another machine . LaRock also considered
DePalma to be the leader of the union movement.
Beatrice Howard is a machine operator on the third shift
and received a 12-cent hourly wage increase in April, but
she also admitted "scratching" a mold in October 1971 and
receiving a written warning slip over this incident.
The Respondent 's president , Daniel Mackessy , explained
that in late 1971 he asked three or four of his supervisors to
compile a list of employees, by clock numbers , who were
entitled to a wage increase , and said that the selections
were to be based on past performances , ability to follow
instructions, absence of warnings and violations of rules,
and their absenteeism and tardiness was also to be
considered . He said that out of 80 employees working in
the plant about 23 percent received wage increases. The
Respondent then introduced various production cards
showing the different pieces produced by employees during
certain periods of time .3 Mackessy said that each card was
considered in deciding whether DePalma would merit a
raise . Mackessy classified some of the figures put on these
cards by DePalma as "falsification"; in other instances he
said that the total production of parts or pieces as revealed
by DePalma 's calculations during certain time periods
were a "physical impossibility" and stated that on other
occasions her figures reflected incorrect counts. Mackessy
contended that the above situation was a continuous
problem and it was even necessary for Production
Manager William Rodgers to set up a training period for
DePalma in efforts to get her to fill out the production
cards properly and for "upgrading" purposes.
According to Mackessy the mold broken by DePalma
cost anywhere from $300 to $400 to repair and for a time
shut down a production line, and said that as a result the
Company lost its number one customer-Carrier Corpora-
tion .4 Mackessy stated this incident was taken into account
in final determinations as to whether DePalma should be
given a wage increase.
Mackessy explained that when a mold is scratched, as
was the case involving Beatrice Howard , it could be
repaired in the shop by repolishing, and said that the mold
damaged by LaRock could be quickly repaired by merely
inserting a spare leg.
Respondent Exhibit 10 is a warning slip which was given
to DePalma in February 1971, and it states that she made
an unauthorized entry into the plant after working hours.
Mackessy testified this was her second warning slip, and
usually a third warning slip results in discharge. DePalma
admits entering the plant , but only for the purpose of
informing a few employees of a postponement in a hearing
that was pending at the time.
To sustain the 8 (a)(4) allegation in the instant complaint,
and for background purposes in efforts to shed light on
events within the 10(b) period , the General Counsel notes a
prior charge filed by the Union against the Company in
December 1971, with a hearing held in this case
(3-CA-14715) in March . One allegation in this prior
4 Mackessy explained that the above circumstances involving the broken
mold could not be called or classified as the single instance that lost the
Carrier account, but said it was "the straw that broke the camel 's back."
452 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
complaint was that Mackessy informed DePalma that she
could not solicit cards on her breaktime, and DePalma
testified at the hearing in March giving her version of what
she was told. No violative conduct was found as to this
allegation although an 8(a)(1) violation was found as to
one other incident involving another employee. No
exceptions were taken from the Decision (TXD-291-72),
and the General Counsel argues that this finding is
evidence of Respondent's union animus and also points to
certain other incidents of union confrontations between
Mackessy and DePalma as additional demonstrations of
Respondent's animus.
Final Conclusions
I find there is adequate-and sufficient evidence in this
record to sustain the allegation that DePalma was
discriminatonly denied the wage increase . There is no
question that DePalma has been extensively involved in
the prolonged organizing campaign among Respondent's
employees and, admittedly, the Company had knowledge
of her active and continual involvement.
Respondent Exhibit 9 list the names of the 24 employees
who received the wage increase and, out of his number, 16
of them were employees who had been on strike, as
aforementioned, and DePalma was the only one out of the
16 who did not receive the increase. In other words, of all
the employees who went out on strike and who were still
employed by Respondent in April, only DePalma was
denied the wage increase. It appears to me that this pivotal
fact quite clearly indicated that Respondent was singling
out DePalma among the known union adherents.
The Respondent points out that Mary Cullen, who was
active in the Union and who also testified against
Respondent at the prior unfair labor practice hearing in
March, as aforestated, was granted the raise and that,
therefore, Respondent's treatment of DePalma could not
be violative. The Board and courts have rejected this type
of argument in similar cases, and the fact that Respondent
retained or gave benefits to some union employees does
not exculpate him from the charge of discrimination as to
others.
The Company maintained that the main reason DePal-
ma was denied a raise was because she broke a mold which
cost the Company a considerable amount of money.
However, Rita LaRock was guilty of a like offense and
Beatrice Howard scratched a mold. Both of these incidents
cost Respondent repairs-both occurred subsequent to
DePalma's accident and both resulted in the issuance of
warning slips-yet, LaRock and Howard were both
included in the wage increases. As pointed out, the
pretextual nature of Respondent's contention is further
demonstrated by the fact that the breakage of the mold by
DePalma occurred more than a year before the wage
increase was instituted and, in the final analysis, it is
apparent that such accidents are not unusual happenings in
the molding department and that they do occur from time
to time , and under normal circumstances the discipline
measures are without any particular consequences other
than a routine warning . There is no contention or
testimony that DePalma had ever before or has since been
careless in this respect.
Mackessy maintained that the various production cards
introduced into the record , as previously detailed herein,
revealed that DePalma failed to follow instructions, and
said that this "falsification" was a constant and continuing
problem which resulted in a loss of money and loss of
business and good will with its best customers , and that
such factors also played a part in denying DePalma a raise.
It is difficult for me to attach any significant importance
to the above contention as the Respondent never issued a
warning slip to DePalma for her conduct in filling out
production reports or cards . As pointed out by the General
Counsel , if DePalma had been falsifying the cards, and if
this had cost the Company money and had resulted in
serious difficulties with customers , Respondent surely
would have issued her a warning slip, or at minimum
would have cautioned her about it-yet , management did
neither , and the Respondent 's reaction was to place
DePalma in a training program . I agree that this too is
highly unlikely . The cards in question concerned her
production tabulations in 1971 , but the training program
DePalma was supposedly placed in to correct her figures
could not have been instituted until the spring of 1972 as
Manager Rogers did not start his employment with the
Company until then , and admittedly the training was
under his direction . Moreover, there is reliable evidence by
DePalma that the only training program she participated in
was a program for new employees which commenced in
June , and at times she had even been an instructor in this
program.
It is also noted that the failure to include DePalma in the
April wage increase closely followed her testimony in
March against the Company in the prior case
(3-CA-4715). Based on a preponderance of evidence I
have found that Respondent violated Section 8(axl), (3),
and (4) of the Act by denying DePalma the wage increase
it granted other employees in April 1972.
IV. THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices , I shall recommend that it cease and
desist therefrom and take certain affirmative action to
effectuate the policies of the Act.
It has been found that Respondent , since on or about
April 3, 1972, had discriminatorily failed and refused to
grant a wage increase to Nina DePalma , and it will
therefore be recommended that she be included in this pay
raise and that Respondent also make DePalma whole for
any loss of earnings she may have suffered as a result of
the discrimination against her by payment of a sum equal
to that which she would have earned , absent the discrimi-
nation , and with backpay and interest computed in
accordance with the Board 's established standards .5 It will
be further recommended that Respondent preserve and
make available to the Board , upon request , all payroll
records, social security payment records , timecards, per-
5 F W Woolworth Company, 90 NLRB 289; Isis Plumbing & Heating Co,
138 NLRB 716.
GLOMAC PLASTICS, INC.
sonnel records and reports , and all other records necessary
and useful to determine the amount of backpay and the
wage increase under the terms of this recommended Order.
Upon the foregoing findings of fact, and upon the entire
record in the case, I make the following:
CONCLUSIONS OF LAW
1. Respondent is engaged in commerce within the
meaning of Section 2 (6) and (7) of the Act.
453
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. By failing and refusing to grant Nina DePalma a
wage increase on or about April 3 , 1972, the Respondent
has engaged in and is engaging in unfair labor practices
within the meaning of Section 8(a)(3), (4), and (1) of the
Act.
4. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
[Recommended Order omitted from publication.]