International Chemical Workers

National Labor Relations Board - Board Decisions

Nov 17, 1972

200 N.L.R.B. 341 (N.L.R.B. 1972)

INTERNATIONAL CHEMICAL WORKERS 341
International Chemical Workers Union, AFL-
CIO-CLC and Office and Professional Em-
ployees International Union , Local 17, AFL-CIO.
Case 8-CA-6859
November 17, 1972
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS JENKINS
AND KENNEDY
On July 12, 1972, Administrative Law Judge I
Anne F. Schlezinger issued the attached Decision in
this proceeding. Thereafter, Respondent filed excep-
tions and a supporting 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 brief
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt her recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that Respondent, International Chemi-
cal Workers Union, AFL-CIO-CLC, Akron, Ohio,
its officer, agents, and representatives, shall take the
action set forth in said recommended Order.
, The title of "Trial Examiner" was changed to "Administrative Law
Judge" effective August 19, 1972
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
ANNE F. SCHLEZINGER, Trial Examiner: Upon a charge
and an amended charge filed respectively on February 8
and on March 6, 1972, by Office and Professional
Employees International Union, Local 17, AFL-CIO,
referred to herein as the Charging Union, the General
Counsel, by the Regional Director for Region 8 (Cleve-
land, Ohio), issued a complaint on March 10, 1972. The
complaint alleges in substance that International Chemical
Workers Union, AFL-CIO-CLC, herein called the Re-
spondent or the Respondent Union, made a promise of
benefit to an employee if he would refrain from joining the
Charging Union; threatened an employee with layoff if he
engaged in activity on behalf of the Charging Union; and
failed and refused to recall Ryan C. Wise, an employee
who had been laid off for lack of work, to fill openings
when they occurred, because of his membership in the
Charging Union or other protected concerted activity; and
thereby violated Section 8(a)(1) and (3) of the National
Labor Relations Act, as amended. In its answer, duly filed,
the Respondent admits that after the layoffs it recalled an
employee with less seniority, hired a new employee, and
did not recall Wise; asserts that, while the immediate
reason for the layoff of Wise was lack of work, he was not
recalled because his work record had not been satisfactory;
and denies the commission of the alleged unfair labor
practices.
Pursuant to notice, a hearing was held before the Trial
Examiner at Akron, Ohio, on April 25, 1972. All parties
appeared at the hearing and were afforded full opportunity
to be heard, to examine and cross-examine witnesses, and
to introduce relevant evidence. Subsequent to the hearing,
briefs were filed by the General Counsel and by the
Respondent which have been duly considered.
Upon the entire record in this case and from my
observation of the witnesses, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent Union, the employer herein, is now,
and has been at all times material herein, a labor
organization which has more than 86,000 members in 400
local unions throughout the United States and Canada.
The annual dues remitted to its headquarters in Akron,
Ohio, from local unions in various States of the United
States and in Canada, total in excess of $300,000 a year.
The Respondent remits insurance premiums annually
totaling in excess of $50,000 directly to insurance compa-
nies in States other than Ohio. Its membership consists for
the most part of employees in chemical industry plants that
either ship or receive products directly across State lines of
a value in excess of $50,000 annually. I find, as the
complaint alleges and the Respondent in its answer admits,
that the Respondent has been, at all times material herein,
an employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
II. THE CHARGING UNION
I find, as the complaint alleges and the Respondent's
answer admits , that Office and Professional Employees
International Union, Local 17, AFL-CIO, is a labor
organization within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Issues
The Respondent owns the Mitchell Building in Akron,
which is occupied in part by the Respondent's headquar-
ters and in part by various tenants. The Charging Union
was the contractual representative of a unit of the
Respondent's employees working in this building. Wise
was employed as a janitor in this building from June 25,
1971, until his layoff on or about October 30, 1971. There
is no contention that the layoff of Wise was discriminatory.
The General Counsel contends, however, that Jean
Buechler, the maintenance superintendent, who is an
admitted supervisor and agent of the Respondent, made a
200 NLRB No. 55
342 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
promise of benefit to Wise if he refrained from joining the
Charging Union, threatened him with layoff if he became a
member or engaged in activity on behalf of the Charging
Union, and on or about January 10, 1972, failed and
refused to recall him when work was available because of
Wise's membership in or activity on behalf of the Charging
Union. The Respondent denies that any unlawful promise
of benefit or threat was made, and maintains that, when
work became available subsequent to the layoffs, it
recalled an employee with less seniority than Wise and
hired a new employee, and did not recall Wise, because his
work had not been satisfactory.
B. The Union Relationships
The Charging Union has since about 1954 represented a
unit of the Respondent's office clerical and janitorial
employees. On November 22, 1971, the International
Chemical Workers Representatives Union, an independent
union which was the contractual bargaining representative
of the Respondent's field staff, filed a petition for an
election in the unit represented by the Charging Union,
which intervened in the election proceeding. On December
29, the Acting Regional Director for Region 8 directed
elections in separate units of office clerical and mainte-
nance employees, and the elections were held on February
10, 1972. The ballots were impounded because of charges
that were filed, including those herein involved. The results
of these elections had not been determined at the time of
the instant hearing.
The Charging Union had a collective-bargaining agree-
ment with the Respondent, effective by its terms until
February 16, 1972, which contained a union-security
provision requiring employees to join the Charging Union
after 30 days of employment. It was customary, however,
for new employees of the Respondent to work 60 days of a
probationary period, and for the Respondent then to
request and be granted a 30-day extension of the effective
date of the union-security provision, so that the probation-
ary period extended to 90 days. Before the expiration of
the 90-day period, the probationary employee was given a
physical examination, and at the expiration of the 90 days
was required to join the Charging Union.
At the time of the hearing herein, Thomas Boyle was
president of the Respondent, John Gratz was secretary-
treasurer of the Respondent and of the building corpora-
tion, and Larry McKelvey was Gratz's assistant.' Gratz
was in charge of all personnel of the Mitchell Building,
including the janitors. The janitors worked under the
immediate supervision of Buechler, who was the superin-
tendent of the Mitchell Building and of other property of
the Respondent in the area. Buechler, who reports to Gratz
or to Gregg Barris, the Respondent's director of properties,
hires and discharges maintenance employees subject to
postapproval by Gratz. Matters arising under the Charging
1 Neither Boyle nor McKelvey was called as a witness.
2 Mary Boyle is not related to the Respondent's President Boyle.
3 Sommerfield admitted that while she heard of complaints and protests
about failure to get premium pay in accordance with the contract , she had
no knowledge of any employee in fact failing to get such pay.
4 It was stipulated at the hearing that the following individuals were
hired by the Respondent as maintenance employees on the dates indicated:
Union's contract were taken up with the Respondent at
times by Irene Sommerfield , business representative of the
Charging Union, who has been associated with that
organization since its inception in about 1954, and by
Mary Boyle, secretary to the Respondent's director of
collective bargaining, who was a steward in the Charging
Union.2
Gratz testified that the Respondent's relations with the
Charging Union were "Very good," while Sommerfield and
Mary Boyle maintained that this relationship was "Very
pleasant until 1971." Both testified about problems that
arose in the maintenance department since the move into
the Mitchell Building due in part to the fact, as testified by
Sommerfield, that the Respondent "did not want to pay
premium pay for Saturdays although it was under the
existing contract. Holidays-there was a problem on
holidays-having people come in and not wanting to pay
premium pay. It was just those kinds of things all the
time." 3 Sommerfield also testified that on August 17, 1971,
she took up with Buechler a letter she had received, signed
by employees in the maintenance department, regarding
various matters including hours and work on Saturdays,
and that Buechler responded that he did not think the men
should get extra pay for Saturday, and that "I am not going
to have any Union tell me what to do."
C. Respondent's Employment of Wise
Wise, who was attending college and paying his own
expenses, had been employed for about a year in Foley's
Restaurant, where he became acquainted with Boyle,
president of the Respondent. Wise testified that Boyle was
going to try to get him a job at B. F. Goodrich but the
personnel manager was out of town, and a job became
available in the meantime in the maintenance department
of the Mitchell Building. Gratz, who testified that Boyle
requested that Wise be hired "because he was a friend of
his whom he had met in a restaurant and he was impressed
with him," checked with Buechler, who agreed he could
use another janitor. Boyle called Wise to his office, where
Wise met Gratz and Buechler. Buechler had Wise make
out an application, and told him about the job and the
employee benefits. He called Wise that evening, a
Thursday, and Wise began work as a janitor in the
Mitchell Building on Friday evening, June 25, 1971. As two
jobs were open at the time , James Sisler was hired as a
janitor on June 30.4 Gratz testified that Jesse McCollam, a
janitor, had been terminated because he came to work
intoxicated on June 23, was sent home by Buechler and
told to come back the next day in better condition, and
"failed to report for several days; so, we let him go"; that
at the urging of the Charging Union's grievance committee
to give McCollam another chance, the Respondent
reinstated him after both Wise and Sisler had been hired;
and that "we decided to operate with the extra man
Gary Bartholomew, hired 6-14-71, suspended for week ending 1-15-72
Ryan Wise, hired 6-25-71, laid off 10-30-71
James Sisler, hired 6-30-71, laid off 10-30-71, recalled 1-10-72
Paul Drope , hired 1 -13-72, quit 4-21-72
At the time of the hearing, Gratz testified, there were six maintenance
employees, Drope , the seventh, having recently quit.
INTERNATIONAL CHEMICAL WORKERS 343
because, as employers, we didn't have any confidence that
McCollam would last more than 30 days." In any event,
Gratz testified, there was for a time considerable extra
work on building alterations for new tenants. It was
stipulated that Wise worked a 40-hour week during the
entire period of his employment, on a 4:30 p.m. to I a.m.
shift Monday through Friday. His duties were to clean
tenants' offices. He worked with another janitor, Bartholo-
mew, a few weeks, and then was assigned to his own floor,
and from time to time was reassigned to different floors.
Wise continued as a full-time college student while
employed by the Respondent.
D. Wise's Work Performance
Buechler testified that there were many complaints about
Wise's work and that he often spoke to Wise about this,
and Gratz testified that Buechler reported to him that Wise
was not doing his work properly. Wise admitted that
Buechler had mentioned to him that certain areas on his
floor had not been adequately dusted, and that he had
received an oral reprimand, but he denied that he ever
received a written reprimand.
The oral reprimand resulted from an incident in which
Wise, during his 6 p.m. break, went to a tenant's office and
took two pieces of stationery and two envelopes from a
secretary's desk, went to another tenant's office and typed
letters to two car parts companies, and left the letters on a
shelf in his closet where Buechler found them. According
to Wise, Buechler called him to the office that night, asked
where he got the stationery, and Wise told him. He also
testified that Buechler said it was strictly against the rules
to take anything from a tenant's office, that he told
Buechler he was sorry, it would not happen again, and he
did not realize it was so serious a matter, and that Buechler
told him, "You could be fired for this ... If anything like
this happens again, then you will lose your job." William
Pfeiffer, one of the janitors,5 testified that he was told by
Buechler about the stationery incident, that he took it upon
himself to go to the tenant whose stationery had been
taken and offer to reimburse him for it, but that the tenant
rejected the offer and said it was not important. Wise and
Pfeiffer thought this incident occurred sometime in July
1971.
Buechler testified that he did not know why he went to
Wise's closet or why he "was up on a ladder or standing up
on a sink or I was up high anyway," and saw the
envelopes; that he noted that they had a tenant's name
crossed out, Wise's name typed in, and were unsealed, so
he read the letters which were orders for car parts; and that
he went to the tenant's office and asked the secretary if
permission had been given to use the envelopes, and then
"took the letter and went down through all of the offices to
find out what typewriter had been used," and did find it;
and that he "took it right up to Mr. Gratz' office to report
my findings." Gratz testified that Buechler reported to him
about finding the envelopes in Wise's closet. Asked what
Buechler reported to him about this incident, Gratz made
reference to tenants' reports of pilfering of office supplies,
liquor, and other items, and that "there was not much we
could do about it. We could not prove anything." Asked
again what Buechler reported, Gratz stated that Buechler
traced the envelopes in question to one tenant's office, the
typewriter used to another tenant's office, and spoke to
Wise about the matter. He did not recall Buechler telling
him what Wise said.
The secretary in the office from which the envelopes
were taken testified, as a witness for the Respondent, with
regard to complaints she made to Buechler about unsatis-
factory cleaning work and about liquor, food, and other
items taken from the office. She did not recall when or how
often she complained about these matters, but was sure she
and many other tenants complained frequently. The record
indicates that some of her complaints about the cleaning
were made before Wise was employed and some after Wise
was laid off. Some complaints she made directly to the
janitors, none of whose names she could recall. She
testified that on one occasion Buechler showed her an
envelope on which her employer's name had been crossed
out and asked her to identify it, that she said it was from
one of the desks in her office, and that that was her entire
conversation with Buechler about it.
The Respondent placed in evidence a memorandum
from Buechler to Gratz, dated August 16, 1971, headed
"RE: Ryan Wise" and "SUBJECT: Probationary Period,"
and reading as follows: 6
On or about July 15, 1971 Ryan Wise was late for
work. He called in and said that he would be late. He
was met here in our parking lot by a detective, and
through the grapevine I learned that he allegedly was
involved in stealing a motorcycle. I do not know the
details or particulars about this, but at this time am
reporting it as a matter of record.
Also, it has come to my attention that in the areas
where Ryan has been working, small items have been
missing. I am making this report but am not accusing
him of anything. I have no proof.
The Respondent also placed in evidence a memorandum
from Buechler to Wise, which is also dated August 16, with
the heading "RE: Cleaning" and "SUBJECT: Complaint,"
and reading as follows:
It has been called to my attention that the cleaning you
have been doing hasn't been up to par.
I hope that in the future I will have no further
complaints concerning the areas in which you work.
Both memoranda indicate that copies were sent to Boyle.
Buechler apparently did not prepare a memorandum
about the envelope incident, and he and Gratz were unable
to recall when it occurred. Buechler admitted that it
occurred in any event during Wise's probationary period,
and he assumed that it was at some time after the "last
warning" given Wise, which was the one about the
motorcycle incident. As that "warning" and Buechler's
memorandum addressed to Wise are both dated August 16,
Buechler assumed the envelope incident was at a later date
5 Pfeiffer , who began working for the Respondent on March 2, 1970, was 6 Counsel for the Respondent stated at the hearing that this document
accused of drinking and leaving the building for extended periods, and was was being placed in evidence not for the truth of its contents but only to
discharged on January 10, 1972. He was working elsewhere at the time of show that such a report was made to Gratz.
the instant hearing.
344 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
or, he testified, it would also have been brought up on
August 16. There is no indication, however, that the
memorandum about the motorcycle incident, addressed
from Buechler to Gratz, was called to Wise's attention, and
Wise denied that he received the written reprimand
addressed to him from Buechler. Buechler, asked on cross-
examination by the General Counsel if he ever handed this
memorandum to Wise, testified as follows:
A. My habit was putting it on their time cards-pin-
ning it on with a paper clip.
Q. You did not hand this to him directly; is that
correct?
A. I do not recall handing it to him directly.
He must have received it, or I would have followed up
on it.
Q. Do you know for a fact that he received it?
A. I couldn't swear to it, no.
Mary Boyle, recalled by the General Counsel as a
rebuttal witness, testified that it was the practice of the
Respondent to submit to her as steward "any written
reprimands ever given to any employees," and that she had
never before seen the memorandum from Buechler to
Wise. Finally, Buechler admitted that he made oral
complaints about the work not only to Wise but also to
other maintenance employees, and that "most of the
employees, from time to time, get such memorandums,"
some more than one.
E. Wise's Employee Status
Gratz testified that on about September 5, 1971, after
Wise and Sisler had worked about 60 days, he and
Buechler decided they would retain Sisler, if there was
work available, at the end of his 90-day probationary
period. He also testified that they "had more pertinent and
important discussions with respect to Ryan Wise .. .
Buechler talked to me first because we had this general
feeling about what the tenants said and what his problems
were with Wise," and that both were concerned as to the
effect on Boyle "because he was a friend" of Wise. As
Gratz further testified:
So, we had to go in and tell Mr. Boyle about what
was happening, and it became my feeling that we
couldn't put in Ryan Wise on permanently and that we
didn't want to deprive him of an opportunity to earn
money because we thought he was going to school and
would be leaving and the job was running out and that
would be it for Wise.
The decision was we would keep Wise on as a
temporary employee and not be concerned with the
probationary period. We would keep him on as a
temporary employee, a part-time employee.
We felt that, because of our need for the work-from
our experience, sometimes we would bring in Manpow-
er for several days-we would use him on that basis
rather than Manpower and that that, in effect, it was
really temporary although we referred to it as part
time .. .
That was the only way the part time came in with my
discussions with Mr. Buechler, and, whether he gave
that same kind of information to Wise, I don't know.
Gratz also testified that he asked Buechler to explain to
Wise the decision to change his status to part time, and
that Buechler reported back that Wise agreed. Gratz
admitted, however, that no report was made to the
Charging Union of this decision to change Wise 's status,
although the Respondent , in accord with its practice, had
requested, and been granted , a 30-day extension for Wise
after he completed 60 days of the probationary period.
Buechler testified that his discussions with Gratz about
Sisler and Wise occurred because both employees were
approaching the end of their probationary periods and "I
wanted to know if I should give them both a physical";
that he and Gratz decided that Sisler would be given his
physical examination and "would go on full time and join
the Union"; but that, after discussing the matter with
Boyle, it was agreed that Wise would not be put on full
time and that Buechler should ask if Wise would agree to
those conditions . Buechler testified as to the reasons that
"we didn't feel his character was quite up to par and yet it
wasn't enough to fire him right out. We didn't have no
concrete evidence."
Sommerfield testified that at about this time she met
Buechler on the elevator and, at his suggestion, they went
to the coffeeroom, where they had the following conversa-
tion:
We were discussing Saturday work . Mr. Buechler
didn't want to pay premium pay to the Saturday work,
and he said, "I will only be able to use Ryan Wise on
Saturdays."
I said, "Why," and he said, "Because he won't
belong to the Union. He is only part time."
I said that I just learned he was working full time. He
said, "He is a student and working part time and can't
belong to the Union."
I questioned him further , and he said , "He will not
became a member ," and he said, "If he does , I will have
to let him go. I do not want him to belong to any
union."
On the day after this conversation , Sommerfield, who tried
unsuccessfully to reach Boyle and Gratz, discussed it on
the telephone with McKelvey, assistant to Gratz, who said
he would take it up with Boyle and Gratz as soon as he
could.
Wise completed his 90-day probationary period on
September 27. When Wise and Pfeiffer went into Bue-
chler's office on that day to punch the timeclock, Pfeiffer
noticed on Buechler's desk two appointments for physical
examinations , and called Wise's attention to the fact that
they were for Bartholomew and for Sisler, and that there
was none for Wise who was senior to Sisler . Buechler at
about this time entered the office , and Pfeiffer asked him
about Wise's physical examination . Wise testified that
Buechler replied, "I was about to talk to Ryan about that,"
and said further, "Well, Ryan, since you are a full-time
student and the most likely to quit first, you will still
continue to work the 40 hours but be considered a part-
time employee . . . If you join the Union, I will have to let
INTERNATIONAL CHEMICAL WORKERS 345
you go because I have got too many men now." Pfeiffer
testified to the same effect about this conversation.
Buechler testified that no one else was present when he
spoke to Wise as he never discussed such matters with an
employee in the presence of others; that "Pfeiffer probably
was in the office ahead of time, yes, but I probably asked
him to leave the office" in order to talk to Wise privately;
that he was not able to remember whether or not Pfeiffer
was there; and, finally, that "I would not dispute his
[Pfeiffer's] testimony, no." Buechler also testified that
there was no discussion at all at this time about the
Charging Union and that he had no discussion with Wise
about joining or not joining at any time after that. Buechler
continued, however, as follows:
A. When I told him we wasn't going to put him on
full time, I told him it would not be necessary for him
to join the Union.
Q. Did you tell him he would not be permitted to join
the Union?
A. I told him we wasn't going to have him join the
Union.
Q. What do you mean?
A. That we wasn't demanding him to join the Union.
TRIAL EXAMINER: What did you actually tell him
at the time?
THE WITNESS: I told him we would keep him on at
part time status if he agreed and that we wasn't going
to have him join the Union.
We wasn't going to give him a physical and, otherwise,
I would have to leave him go at that time.
He agreed to stay on as part time.
Buechler maintained that Wise agreed to continue working
on these terms and that he so reported to Gratz, and Gratz
testified that Buechler so reported to him. When pressed on
cross-examination, however, as to what Wise said to
indicate agreement, the only explanation Buechler gave
was that when "he said Wise would be considered a part-
time employee, Wise asked why, and that was all he
remembered that Wise said.
F. Wise's Membership in the Charging Union
On September 27, Wise completed his 90-day probation
and signed a membership card in the Charging Union. He
was accompanied by Pfeiffer. Mary Boyle testified that
Wise's membership became effective, and he went on the
dues checkoff list, on September 27.
Buechler testified that he was informed by one of the
janitors, Nitzsche, that Wise had joined the Charging
Union, that he was "quite disturbed" because "I thought
that would put him on a full-time status, or I didn't know
what to think," that he went to see Mary Boyle to confirm
"If Ryan joined the Union or not," that he told her "we
was only going to have him as a part-time employee," and
that he also went to see Gratz and "told him that Ryan
joined the Union." On the day after Wise became a
member of the Charging Union, he and Buechler were in
the coffee shop before Wise began work. Buechler asked
Wise to come to his office where, as Wise testified,
Buechler said, "I thought you and I had had an
understanding that you would stay out of the Union after
the 90 days probation," and he replied, "Well, in the
contract part time is 30 hours and under, and I can work
40 hours; so, I am entitled to join the Union."
Mary Boyle testified that after Wise became a member,
Buechler came to her desk and the following conversation
took place:
Well, Mr. Buechler came up just about as soon as I
got to work and was very upset about Ryan joining the
Union. He told me he couldn't do it because he was a
part-time employee, and I in turn told him he couldn't
be considered a part time because he worked 40 hours
and, according to our existing contract, the part-time
employee worked under 30 hours.
I pointed out the two probationary notices and that
he had gone the full 90 days that they could discharge
him and that the period had passed that he was,
according to our contract, included in the Union.
I told him, "You just can't point your finger at
someone and say he is a part-time employee. We have a
contract."
Mary Boyle called Sommerfield and told her about this
conversation. Sommerfield then telephoned Buechler and
told him about Mary Boyle's call. According to Sommer-
field, Buechler said, "I told Ryan Wise not to belong to the
Union, and I told you to tell him not to join the Union";
she commented, "Why shouldn't he join? He has been here
90 days"; and he responded, "I told you-I told him and
you to tell him not to join the Union at all." Sommerfield
also testified, on cross-examination by the Respondent,
that Buechler never objected to Sisler joining the Union or
to any employee joining the Union other than Wise
"Because he said he was part time and a student."
Gratz testified that Buechler reported to hum that Wise
had joined the Charging Union; that Buechler "was
concerned about a lot of things with regard to the Union
and he had heard it and he came to me and said, `Can
Ryan Wise, as a part-time employee, join the Union?' ";
and that he assured him Wise could do so. He also testified
that he did not consider that Wise was required to join
"Because he was temporary."
G. The Layoff of Wise and Sisler
On October 30, both Wise and Sister were called to the
office and handed layoff notices by Buechler. According to
wises testimony, Buechler said at this time, "I am sorry
this has to happen but we have just got too many men, but,
some time if the workload increases by mid December, we
will be calling you back." The notices, dated October 29
and signed by Buechler, indicate copies went to T.E. Boyle,
John Gratz, and Mary Boyle, and read as follows:
Due to lack of work, we find it necessary to cut back on
our maintenance personnel, consequently you will be
laid off effective Friday, October 29, 1971.
Should the work increase at some later date, and you
were available, you would be considered for recall.
Please turn in your keys, and any other ICWU property
that you may have in your possession, to me.
You will be paid one week's salary in lieu of notice.
I regret that this action is necessary.
346 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Gratz testified that on about October 13 or 14, before he
left on October 14 for a vacation of about 3 weeks followed
by attendance at a conference, he and Buechler decided
that the work would warrant reducing the maintenance
crew in a week or two, and that the two newest people
would be selected. Gratz also testified that the decision had
been made that "when the time came to lay them off, we
certainly were not going to call Ryan Wise back." He gave
as the reasons for this decision "the thing that concerned
us the most-that we had this pilfering," and the incident
on the parking lot. He also testified, in regard to the
pilfering reports, that Wise was not terminated before the
end of his probationary period because "we didn't have
proof of who it was that was involved in any pilfering and
we just didn't see any reason to terminate him when we
needed a man." Gratz admitted, on cross-examination,
that the only reports as to pilfering, prior to the decision to
change Wise's status to part time, were made by Buechler,
that he did not know for a time which employee Buechler
was referring to or whether more than one was involved,
and that he never discussed this matter with Wise nor had
any conversation with Wise after the introductory meeting
in Boyle's office. Gratz also testified that at one time
Buechler reported to him that the night crew was leaving
early, that someone was clocking them out at quitting time,
that "at one time he reported that they were coming out
and he saw Ryan Wise about to leave and, when he saw
Buechler, he went back"; and that Buechler issued an
"official notice" to all maintenance personnel dated
October 27, 1971, stating that "anyone caught leaving
before his proper quitting time, or caught clocking out
another person, will be discharged immediately." Gratz
testified that he did not know of any other action taken in
this matter.
When Buechler was asked the reason for the layoff of
Wise, he answered "For lack of work." He testified further
that at the time of the layoff he had no intention to call
Wise back if work became available. Although the layoff
letter stated otherwise, Buechler explained, in his testimo-
ny, that identical letters were written for Sister and Wise;
that there was a desire to avoid causing hard feelings in
view of Wise's connection with Boyle7 and to avoid
damage to Wise's reputation; and that the layoff letters,
although signed by Buechler, were written by someone
else, possibly Barris or McKelvey. Buechler also testified
that'he did not say anything to Wise about recalling him,
that "I let the letter speak for itself." Sisler, who was
recalled to work, testified, however, as did Wise, that
Buechler told both of them they would be recalled if the
work increased.
H. Failure and Refusal to Recall Wise
The Respondent offered to put Sisler back to work in
December. He refused as the work offered was on a part-
time basis and he preferred to remain on unemployment
compensation. Thereafter Sisler was offered his job back
and he returned to work on January 10, 1972. Buechler
also hired a new man, Drope, for the late shift on January
13, 1972. He had discharged Pfeiffer and McCollam and
sought to fill the vacancies by recalling Sisler, hiring
Drope, and on occasion during the period in question
using personnel from Manpower.
In December 1971 the Charging Union protested that
Buechler had brought in men from Manpower when two of
its members, Wise and Sisler, were still on layoff. At a
meeting with Gratz and McKelvey on about December 22,
Gratz told the Charging Union's representatives that work
had been offered to Sisler, who was willing to come back
on a full-time basis, but preferred to remain on unemploy-
ment compensation than to return for part-time work.
When Mary Boyle pointed out that Wise was senior to, and
should be considered ahead of, Sisler, Gratz maintained
that the Respondent's reason for not recalling Wise was
confidential. The Charging Union's committee urged that
some explanation had to be given to the members. As
Gratz testified, when pressed for "better reasons than the
confidential," he told the committee of the pilfering
problem, after warning that the information must be kept
confidential as "we had no proof of it," and stated that "we
would not call him [Wise] back because, at that time, it
had stopped. We felt we would not call him back positively
by December." Mary Boyle asked for something in writing
to show the membership but this was never furnished. She
testified that in this discussion Gratz referred to Wise as a
part-time employee, to which she responded that she had
previously told Buechler that saying Wise was part-time
did not make it so because Wise had worked a 40-hour
week. The Charging Union filed a grievance with Boyle
dated January 13, 1972, alleging discrimination against
Wise in recalling Sisler and using Manpower personnel,
and not recalling Wise, when work was available. Boyle
replied, in a letter dated January 17, that grievances filed
on behalf of Wise, and of Bartholomew, McCollam, and
Pfeiffer, would not be considered because of failure to
comply with the contract procedures requiring that these
grievances be presented in writing to Buechler and then to
Gratz before being presented to Boyle. There was no
arbitration provision in the Charging Union's contract with
the Respondent.
Wise, who has never been recalled by the Respondent,
since his layoff was employed again at Foley's Restaurant
and later at B. F. Goodrich, where he was working at the
time of the hearing.
Gratz and Buechler both denied several times in their
testimony that their actions regarding Wise had anything
to do with Wise's membership in the Charging Union.
Buechler, who testified that this job was his first experience
with union relationships, also testified that he has told the
maintenance employees that "I felt they should have a
separate union from the girls upstairs and, if they didn't
belong to any union at all, I thought the International
Chemical Workers would treat them right. . . I felt they
would be treated right if they didn't belong to any union at
all."
, There is no evidence that Boyle, who was kept informed of the actions
of Buechler and Gratz regarding Wise, ever suggested any different
treatment.
INTERNATIONAL CHEMICAL WORKERS 347
Concluding Findings
Wise impressed me as a candid and reliable witness,
whereas both Gratz and Buechler appeared evasive and
unconvincing in the presentation of their testimony. I
therefore credit Wise where his testimony is in conflict with
that of Gratz and Buechler. I also credit Sisler, whose
testimony corroborative of Wise was against his own
interest as the less senior employee recalled from layoff
ahead of Wise. Further, I found Sommerfield and Mary
Boyle, whose testimony was in large part undisputed,
forthright and credible witnesses. Accordingly, on the basis
of credited testimony, admissions by the Respondent's
witnesses, and the record as a whole, I find that Buechler
decided he would designate Wise as a part-time employee
although Wise worked 40 hours a week and was a full-tune
employee according to the contract terms. Buechler also
decided, again contrary to the terms of the contract, that
this precluded Wise from becoming a member of the
Charging Union, which was the contractual representative.
Accordingly, as he admittedly told Wise, "we would keep
him on at part- time status if he agreed and that we wasn't
going to have him join the Union . . . and, otherwise, I
would have to leave him go at that time." Buechler also
told the Charging Union's representatives that Wise was
not to become a member. Wise, despite Buechler's promise
to retain him if he did not join the Charging Union and
threat to let him go if he did, signed a card and was
admitted to membership in the Charging Union. Thereaf-
ter Buechler laid off Wise for lack of work and said he
would recall Wise if work became available. Buechler,
however, failed and refused to recall Wise when work
became available.
While Wise admitted taking two pieces of stationery and
envelopes from one tenant and typing two letters on the
typewriter of another tenant, he promised never to engage
in such conduct again, and it was treated as of no
importance by the tenant whose stationery was taken.
There was admittedly no proof that the incidents of
pilfering to which Gratz and Buechler repeatedly made
reference in their testimony were attributable to Wise, that
Wise had any responsibility in the motorcycle incident, or
that Wise's work was subjected to more criticism than that
of other maintenance employees. Moreover, the record
shows that the Respondent, while contending that Wise
was not reemployable when it could point specifically only
to the stationery incident, retained or rehired employees in
spite of absenteeism, intoxication, and other derelictions of
duty s Finally, the conduct to which the Respondent
alludes in explaining its failure and refusal to recall Wise
occurred during his probationary period. He was not
terminated, however, until after he became a member of
the Charging Union upon completion of his 90-day
probation. In doing so, Wise disobeyed Buechier's direc-
8 See N LR.B. v. Melrose Processing Co., 351 F 2d 693 (C A 8), in which
the Court commented that the fact that "employees guilty of far more
serious offenses had not suffered the same fate . . , tends to indicate
discrimination by the employer."
9 See N.L R.B. v. Copps Corp, 458 F.2d 1227 (CA. 7, April 1972),
L H. C, Inc., 195 NLRB No. 181; Estee Mold and Die, Inc, 196 NLRB No
164.
10 See N.L R B. v. Mira-Pak, Inc, 354 F 2d 525, 527 (C.A 5), Dobbs
tives, which were contrary to the contractual union-
security provisions, that Wise was not to become a member
of the Charging Union.
Accordingly, I conclude and find, on the evidence in its
entirety, that the Respondent promised to retain Wise if he
refrained from joining the Charging Union; threatened
him with -termination if he joined; laid him off with the
intention not to recall him if work became available; and,
when work became available, recalled an employee with
less seniority than Wise and hired a new employee, but
failed and refused to recall Wise, because Wise had
disregarded the Respondent's promise and threat and
became a member of the Charging Union. I am convinced,
in all the circumstances of this case, and find, that the
reasons asserted by the Respondent for its failure and
refusal to recall Wise are unsupported by credible or
probative evidence; that to the extent they are based on his
status as a student, or on its designation of him as a part-
time or temporary employee, they have no merit; 9 and that
they are clearly pretextual.10 In conclusion, therefore, I
find that the Respondent has discriminated with regard to
the terms and conditions of employment of Wise, and
thereby, by making a threat and a promise of benefit to
him conditioned upon his membership in the Charging
Union, has interfered with, restrained, and coerced
employees in the exercise of the rights guaranteed in
Section 7 of the Act, in violation of Section 8(a)(1) and (3)
of the Act.11
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent set forth in section III,
above, occurring in connection with the Respondent's
operations described in section I, above, have a close,
intimate, and substantial relationship to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in
certain unfair labor practices in violation of Section 8(a)(1)
and (3) of the Act, I shall recommend that the Respondent
be ordered to cease and desist therefrom and from in any
other manner infringing upon its employees' Section 7
rights,12 and that it take certain affirmative action designed
to effectuate the policies of the Act.
As I have found that the Respondent failed and refused
to recall Ryan C. Wise from layoff in violation of Section
8(a)(3) and (1) of the Act, I shall recommend that the
Respondent be directed to offer Wise immediate recall to
his former job or, if it is no longer in existence, to a
substantially equivalent position, without prejudice to his
Houses, 182 NLRB 675; Estee Mold and Die, Inc., supra.
11 N LR B. v. Texas Bolt Co., 313 F 2d 761 (C.A. 5), N.LR B. v. Melrose
Processing Co, supra, Great Atlantic & Pacific Tea Co. v. N.LR.B., 354 F.2d
707 (CA. 5); Harper & Row Publishers, Inc., 196 NLRB No. 50; National
Utility Service, Inc., 196 NLRB No. 168; D. H. Farms Co., 197 NLRB No.
47.
12 N LR.B. v. Express Publishing Company, 312 U.S. 416,437; N.LR.B.
v Entwistle Mfg. Co., 120 F.2d 532, 536 (CA. 4).
348 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
seniority or other rights and privileges, and to make him
whole for any loss of earnings he may have suffered by
reason of the discriminatory failure or refusal to recall
him,13 by payment of a sum of money equal to that which
he would normally have earned as wages from the date on
which Wise would have been recalled to work absent any
discrimination against him 14 to the date on which the
Respondent shall offer to recall him, less his net earnings
during said period. Backpay shall be computed in the
manner prescribed in F. W. Woolworth Company, 90 NLRB
289, together with interest thereon at the rate of 6 percent
per annum as set forth in Isis Plumbing & Heating Co., 138
NLRB 716.
Upon the basis of the foregoing findings of fact and the
entire record in the case, I make the following:
CONCLUSIONS OF LAW
1. The Respondent, International Chemical Workers
Union, AFL-CIO-CLC, is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of
the Act.
2. Office and Professional Employees International
Union, Local 17, AFL-CIO, is a labor organization within
the meaning of Section 2(5) of the Act.
3. By failing and refusing to recall Ryan C. Wise from
layoff when work became available because of his
membership in the Charging Union, the Respondent has
discriminated in regard to the hire and tenure of its
employees, in violation of Section 8(a)(3) and (1) of the
Act.
4. By promising to retain Wise if he refrained from
joining the Charging Union, and by threatening to
terminate him if he joined, the Respondent has interfered
with, restrained, and coerced its employees in the exercise
of the rights guaranteed in Section 7 of the Act, in violation
of Section 8(a)(1) of the Act.
5. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended: 15
ORDER
The Respondent , International Chemical Workers Un-
ion, AFL-CIO-CLC, Akron, Ohio, its officers , agents, and
representatives , shall:
1. Cease and desist from:
(a) Failing or refusing to recall Ryan C. Wise or any
other employee from layoff when work becomes available,
or otherwise discriminating against its employees in regard
to their hire or tenure of employment, in order to
discourage membership in or activity on behalf of Office
and Professional Employees International Union, Local
17, AFL-CIO, or any other labor organization.
(b) Making promises of benefit or threats of reprisal to
its employees in order to induce or coerce them into giving
up their membership in or activity on behalf of Office and
Professional Employees International Union , Local 17,
AFL-CIO.
(c) In any other manner interfering with, restraining, or
coercing its employees in the exercise of the rights
guaranteed in Section 7 of the Act.
2. Take the following affirmative action designed to
effectuate the policies of the Act:
(a) Offer Ryan C. Wise immediate recall to his former
job or, if it is no longer in existence, to a 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 of this Decision entitled "The Remedy."
(b) Notify Ryan C. Wise, if at present 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.
(c) Post at its headquarters in Akron, Ohio, and all places
where notices to its employees are customarily posted,
copies of the attached notice marked "Appendix." 16
Copies of said notice, on forms provided by the Regional
Director for Region 8, after being duly signed by the
Respondent's representative, shall be posted by it immedi-
ately upon receipt thereof, and be maintained by it for 60
consecutive days thereafter. 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 8, in writing,
within 20 days from the date of the receipt of this Decision,
what steps the Respondent has taken to comply herewith.17
13 Estee Mold and Die, Inc., supra.
14 Sister, who was laid off at the same time as Wise and had less seniority
than Wise, was recalled and returned to work on January 10, 1972. The
record shows, however, that prior thereto Sister was recalled for part-time
work but rejected it, and that the Respondent used some Manpower
personnel during this period. I shall, therefore, leave the date on which Wise
would have been recalled on a nondiscriminatory basis for determination at
the compliance stage of this proceeding or, if agreement is not reached on
this matter, in a backpay proceeding.
15 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.
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.
16 In the event that the Board's 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 be changed to read
"Posted pursuant to a Judgment of the United States Court of Appeals
enforcing an Order of the National Labor Relations Board."
17 In the event that this recommended Order is adopted by the Board
after exceptions have been filed , this provision shall be modified to read:
"Notify the Regional Director for Region 8, 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 fail or refuse to recall Ryan C. Wise or
any other employee from layoff when work becomes
INTERNATIONAL CHEMICAL WORKERS
available, or otherwise discriminate against our em-
ployees in regard to their hire or tenure of employment,
in order to discourage membership in or activity on
behalf of Office and Professional Employees Interna-
tional Union, Local 17, AFL-CIO.
WE WILL NOT make promises of benefit or threats of
reprisal to our employees in order to induce or coerce
them into giving up their membership in or activity on
behalf of Office and Professional Employees Interna-
tional Union, Local 17, AFL-CIO, or in any other
manner interfere with, restrain, or coerce our employ-
ees in the exercise of the rights guaranteed in Section 7
of the National Labor Relations Act.
WE WILL offer Ryan C. Wise immediate recall to his
former job or, if it is no longer in existence, to a
substantially equivalent position, without prejudice to
his seniority and other rights and privileges, and WE
WILL pay him for any loss of earnings he may have
suffered as a result of our discrimination against him,
together with interest thereon at 6 percent per annum.
Dated By
349
INTERNATIONAL CHEMICAL
WORKERS UNION,
AFL-CIO-CLC
(Employer)
(Representative) (Title)
WE WILL NOTIFY Ryan C. Wise, if at present 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.
This is an official notice and must not be defaced by
anyone.
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. Any questions concern-
ing this notice or compliance with its provisions may be
directed to the Board's Office, 1695 Federal Office
Building, 1240 E. Ninth Street, Cleveland, Ohio 44199,
Telephone 216-522-3725.