Keller Industries, Inc.

National Labor Relations Board - Board Decisions

Feb 10, 1969

174 N.L.R.B. 365 (N.L.R.B. 1969)

KELLER INDUSTRIES 365
Keller Industries, Inc. and United Electrical , Radio,
Machine Workers of America . Case 20-CA-4792
February 10, 1969
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND ZAGORIA
On October 7, 1968, Trial Examiner Stanley
Gilbert issued his Decision in the above-entitled
proceeding, finding that the Respondent had
engaged in certain unfair labor practices and
recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in
the attached Trial Examiner's Decision. He also
found that the Respondent had not engaged in other
unfair labor practices alleged in the complaint, and
recommended that such allegations be dismissed.
Thereafter, both the Respondent and the General
Counsel filed exceptions to the Trial Examiner's
Decision, with supporting briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a
three-member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and
the entire record in this case, and hereby adopts the
findings,' conclusions, and recommendations of the
Trial Examiner.2
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner, and
hereby orders that Keller Industries, Inc., Merced,
California, its officers, agents, successors, and
assigns, shall take the action set forth in the Trial
Examiner's Recommended Order.
'As we adopt the Trial Examiner 's finding that Kepics was a supervisor
within the meaning of the Act at the time of his discharge, we deem it
unnecessary to pass upon whether the discharge would have been violative
of Section 8(a)(3) and ( 1) of the Act had he been found not to be a
supervisor at that time
The Respondent ' s request for oral argument is hereby denied, as the
record and briefs adequately present the positions of the parties
December 13, 1967, as amended on December 21, 1967,
and February 6, 1968, a complaint herein was issued on
February 13, 1968. The complaint alleges that Keller
Industries, Inc., hereinafter referred to as the Respondent
or the Company, violated Section 8(a)(1) and (3) of the
Act. Respondent, by its answer, denies that it committed
the unfair labor practices alleged.
Pursuant to due notice a hearing was held in Merced,
California, on July 1 and 2, 1968, before the duly
designated Trial Examiner. At said hearing the General
Counsel and the Respondent were represented by counsel;
no appearance was entered on behalf of UE. Briefs were
submitted by the General Counsel and the Respondent
within the time designated therefor.
Based upon my observation of the witnesses and upon
the entire record,' I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Respondent, a Florida corporation with a place of
business located in Merced , California, is engaged in the
manufacture of aluminum household ladders and other
aluminum household products . During the year preceding
the issuance of the complaint , Respondent , in the course
and conduct of its business operations , purchased and
received at its Merced plant supplies valued in excess of
$50,000 directly from outside the State of California.
Respondent is, and at all times material has been, an
employer engaged in commerce and in operations
affecting commerce within the meaning of Section 2(6)
and (7) of the Act.
IL THE LABOR ORGANIZATION INVOLVED
As is conceded by Respondent, UE is, and at all times
material herein has been, a labor organization within the
meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
Background Information
Respondent's plant in Merced consists of three separate
buildings in which are employed approximately 200
persons. During the entire period material herein and
extending until June 1968, Respondent had a
collective-bargaining agreement with the United
Brotherhood of Carpenters and Joiners of America, Local
Union No. 1496, AFL-CIO, herein referred to as
Millmen's Union, with respect to its production and
maintenance employees. It appears that there was
dissatisfaction with the Millmen's Union among some of
the members of the aforesaid unit and, in particular,
among some of the members of the unit employed in the
tool and die department. During most of the period
material herein, there were four persons employed in the
tool and die department.2 As a result of discussions among
various workers of their dissatisfaction with the Millmen's
Union, Michael Kepics, one of those employed in the tool
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
STANLEY GILBERT, Trial Examiner: Based upon a
charge filed by United Electrical, Radio, Machine
Workers of America, hereinafter referred to as UE, on
'General Counsel has filed a motion to correct the transcript of the
hearing . Said motion was unopposed except with respect to three items to
which the Respondent filed opposition From a study of the record and the
context in which the three items appear, it is concluded that said
corrections are appropriate , and therefore the motion is granted with
respect to all items
'It appears that on December 11, 1967, a fifth person was added to said
174 NLRB No. 58
366 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and die department, arranged a meeting with William
Freitas, a representative of the UE, which meeting took
place on December 12, 1967. Seven or eight persons
employed by Respondent attended this meeting including
Kepics and Michael Wytiaz. At this meeting both Kepics
and Wytiaz signed cards authorizing the UE to represent
them for the purposes of collective bargaining as well as
cards authorizing them to organize on behalf of the UE.
On December 13, 1967, Wytiaz was discharged, and on
December 14, 1967, Kepics was discharged.
All of the foregoing findings of fact are based upon
uncontradicted testimony which is credited.
The Issues
Following are the issues to be resolved in this
proceeding:
1. With respect to the discharge of Wytiaz, whether it
was unlawfully motivated.
2. With respect to the discharge of Kepics, (a) whether
or not Kepics was, at the time of his discharge, a
supervisor within the meaning of the Act, and (b) if he
were not a supervisor but rather an employee, whether his
discharge was unlawfully motivated.
3. Whether Respondent, through Lenwood Rosignol, an
admitted supervisor, engaged in conduct constituting
independent violations of Section 8(a)(1) of the Act.
A. The Discharge of Wytiaz
In August of 1967, Wytiaz was hired to work in the
tool and die department by Kepics, who at the time was
plant superintendent.3 It appears that the two were friends
of many years standing. As indicated above, Wytiaz was
discharged on December 13, 1967.4 On the morning of
December 13, in the period between 6:40 and 6:50 a.m.,
Wytiaz passed out authorization cards for the UE to
employees in the lunchroom, explaining the purpose of the
cards. According to Wytiaz' credited testimony, he passed
out about 20 cards and received about 15 of them with
signatures affixed. According to credited testimony of
both Wytiaz and Rosignol, while Wytiaz was doing this,
Rosignol, who had observed his activity in the lunchroom,
asked him what he was doing. Wytiaz told Rosignol that
he was passing out cards for the UE.
Work started at 7 a.m., and, according to the testimony
of Wytiaz, about 7:15 a.m., James B. Polk, Respondent's
general manager, came into the tool and die department.
Wytiaz testified as to what occurred as follows:
And Mike Kepics was helping me on the die and as I
looked up Jim Polk was walking in, you know, straight
to me. And he said to me, "I understand you are
pushing for a new union." And I told him, "Yes, I
was," and he told me to close my box and get out. So I
asked him if he knew that I was protected by law to try
and organize a new union, and he just repeated himself
saying, "Close your box, you are fired."
So I closed up my box, and I was gathering up my
tools, I should say, and he asked Mike Kepics if the
tools in my tool box were mine, and Mike looked and
said, "Yes, they were," so then Mr. Polk then told me
department it does not appear that any of the parties attach any
significance to this fact
'Kepics' title at that time is also referred to in the record as "production
manager."
'It is noted that Wytiaz testified that he returned to work for the
Respondent on June 17, 1968
to bring my tool box and follow him into the office.
Kepics' testimony corroborates the above testimony of
Wytiaz.
Polk testified as to his discharge of Wytiaz. According
to his testimony, when he arrived at the plant on the
morning of December 13, he went straight to the tool and
die department at "approximately five after 7.00." He
further testified that he told Wytiaz to close his toolbox
and come with him to his office and that, during the time
he talked with Wytiaz, Kepics was at the other side of the
toolroom and unable to overhear his conversation with
Wytiaz. He also testified that he told Kepics to check
Wytiaz' toolbox after he had finished his conversation
with Wytiaz In addition, he testified that he did not learn
from Rosignol that Wytiaz had been passing out union
cards in the lunchroom until about an hour after he had
discharged Wytiaz.
Douglas Livingston, who worked in the tool and die
department and who was appointed foreman after Kepics
was discharged the following day (December 14), testified
that he saw Rosignol confront Wytiaz in the lunchroom
and overheard their conversation (in which Rosignol asked
Wytiaz what he was doing and Wytiaz replied that he was
passing out union cards). Livingston further testified that
immediately after Rosignol left the lunchroom he
observed Rosignol walking into the building which
contained several offices including that of Polk and that
he did not come out of the office area until 4 or 5 minutes
later. On the other hand, Rosignol testified that after his
conversation with Wytiaz in the lunchroom he went
directly to his own department which is in an area of the
plant other than where the said offices are located, and
that it was not until some time later that he informed
Polk of Wytiaz' activity in the lunchroom. He denied that
he talked to Polk right after talking to Wytiaz. However,
he was asked to read a portion of his pretrial statement
and the following appears in the record:
Q. Do you recall now what time of day you spoke to
Mr. Polk?
A. In the neighborhood of 8:00 o'clock in the
morning.
Q. Did you make this statement in your affidavit, "I
don't recall what time this was"?
MR. THOMPSON: Mr. Examiner, I object to that.
TRIAL EXAMINER: You may read the entire
paragraph into the record.
Read the entire paragraph into the record.
MR. ORENSTEIN: "Within this hour I felt it was my
duty to tell Mr. Polk and told him that Wytiaz was
soliciting for another union. We were alone in his
office I recall only that Polk nodded his head. I don't
recall whether he was angry or not. I don't recall what
time this was."
Livingston corroborated the testimony of Wytiaz and
Kepics that Kepics was close enough to Wytiaz to
overhear the conversation between Polk and Wytiaz, that
Kepics was within 6 or 7 feet from Wytiaz at the time
Polk talked to Wytiaz.
Polk and Rosignol were not convincing witnesses with
respect to the incident of Wytiaz' discharge. Polk testified
that he had evaluated the production of the tool and die
department over the weekend and decided to discharge
Wytiaz, apparently in explanation of why he fired Wytiaz
as soon as he entered the plant without first going to his
office. However, when it was pointed out to him that
December 13, the day of discharge, was a Wednesday, he
changed his testimony to state that he made the
KELLER INDUSTRIES
evaluation on Tuesday Rosignol appeared to be far from
a candid witness. For example, when he was shown his
pretrial statement he, at first, denied that the initials
appearing in various portions of the statement were his
and then later admitted that they were his initials. Also,
he changed his testimony with respect to another incident
(which is discussed hereinbelow), when he was shown a
relevant portion of his pretrial statement. It is noted that
according to Rosignol's statement with respect to his
report to Polk of Wytiaz' activity in the lunchroom, Polk
did no more than nod his head when he received the
information. It would appear that, if the report had been
made to him after he had discharged Wytiaz, rather than
merely nodding his head, Polk would more likely have
indicated that he had already fired Wytiaz. The fact that
he did not so inform Rosignol tends to support the
inference that the report was made to him before he
discharged Wytiaz.
Based upon the above considerations and upon
observation of Rosignol and Polk upon the witness stand,
the Trial Examiner is of the opinion that their testimony
cannot be credited and that the above testimony of
Wytiaz, Kepics and Livingston should be credited.
Polk testified as to the reasons for the discharge,
dissatisfaction with Wytiaz' attitude and the quality of his
work, basing his dissatisfaction, in the main, on two
incidents. It appears from the record that the incidents did
occur, but that they occurred sufficiently prior to the
discharge to eliminate them as having precipitated it.'
It is inferred from the credited testimony that about 7
a.m., Rosignol went to Polk's office and informed him of
Wytiaz' activity in the lunchroom (that of passing out
union cards), that immediately thereafter Polk went to the
tool and die department and accused Wytiaz of engaging
in such activity, and that Wytiaz' said activity precipitated
his discharge. Therefore, it is concluded that Wytiaz'
discharge was discriminatorily motivated in violation of
Section 8(a)(3) and (1) of the Act.
This conclusion is further supported by the credited
testimony of Martha Thomas, an employee, with respect
to a conversation she had with Rosignol approximately 2
or 3 hours after Wytiaz was discharged. Her testimony of
their conversation is as follows:
A. He [Rosignol] asked me if I knew that Little
Mike [Wytiaz] had been fired, and I said, "Little
Mike?" I had never heard him called that before. And
he said, "Yes, Buddy."
And I said, "No." And I asked him why, and he
said, "For stirring up union trouble."
He said that they had nipped it in the bud or so they
thought.
Rosignol, at first, categorically denied her above
testimony. However, he was shown his pretrial statement
which contained the following:
I don't recall ever telling Martha Thomas that Michael
Wytiaz had been fired for stirring up union trouble.
and was asked if it refreshed his memory. His testimony
at that point continues as follows:
A. A little bit.
Q. Now, it will be your testimony that you don't
recall whether you told Mrs. Thomas that or that you
just didn't tell her that?
A. I don't recall.
'Wytiaz placed the time of the last of the two incidents approximately a
month before his discharge and Polk about a week prior thereto
367
TRIAL EXAMINER: Let me understand. This is a
common problem that occurs in hearings.
Is it that you recall that you did not tell her that or
is it that you don't recall whether or not you did tell
her that? Do you understand the difference?
THE WITNESS: Yes, I understand the difference.
TRIAL EXAMINER: Now, which one is it?
THE WITNESS: It is that I don't recall whether I did
tell her or did not tell her.
TRIAL EXAMINER: You may have told her?
THE WITNESS: It is possible.
As above indicated Rosignol did not appear to be a
convincing witness' in contrast to Thomas. Furthermore,
Rosignol admitted the possibility that Thomas' testimony
was correct. Consequently, the testimony of Thomas that
Rosignol made such a statement to her is credited. It is
inferred that Rosignol was privy to Polk's decision to
terminate Wytiaz, since he was instrumental in initiating
it. Therefore, it appears appropriate to conclude that he
was aware of the motive for the discharge and that his
statement to Thomas is of probative value as to said
motive. It is also concluded that said statement was an
implied threat of discharge for engaging in activity on
behalf of UE in violation of Section 8(a)(1) of the Act.'
C. The Discharge of Kepics
Michael Kepics was employed by Respondent in May
of 1967 at the rate of $3.75 per hour,' in the tool and die
department. About 6 weeks after he started his
employment he was promoted to plant superintendent at a
salary of $260 per week. The record does not reveal
whether he was or was not foreman of the tool and die
department before he became plant superintendent. For
approximately 2 to 2 1/2 months, he served as plant
superintendent and then, at his request, he stepped down
from the position of plant superintendent to that of
foreman of the tool and die department. He was asked by
Heaston, Polk's predecessor as general manager, whether
he would be satisfied with the rate of pay of $4.50 per
hour to which he replied in the affirmative. It appears that
Kepics' rate of pay of $4.50 per hour was "greater than
many of the other foremen,"' and that it was $1.50 higher
than the next highest hourly rate of pay of the other men
in the tool and die department. All of the foregoing is
based on the uncontradicted and credited testimony of
Kepics.
On November 1, 1967, Polk, who had been in charge of
the extrusion department, became general manager. It
appears to be the position of the General Counsel that
about a week after Polk became general manager he had
a conversation with Kepics during which he demoted
Kepics from his job as foreman and converted his status
to that of an employee within the meaning of the Act. On
direct examination, Kepics testified with respect to said
conversation as follows:
'Based upon the previous analysis of his credibility and the change in his
testimony after being confronted with his statement.
'Although this conduct was not specifically alleged in the complaint and
was not referred to in General Counsel ' s brief as an independent violation
of the Act , nevertheless, it was fully litigated and is closely related to the
allegations in paragraph VI of the complaint.
It appears that 60 days after his employment he would have been
entitled to an automatic raise to $4.25 per hour.
'According to Kepics ' testimony , there were "between 10 and 13"
foremen among the 200 employees of Respondent.
368 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
A. Well, he said that he was paying me a lot of
money and that he expected me to work in there and
keep the dies in good serviceable condition.
Q. Did he say anything else that you recall?
A. I can't recollect anything.
Kepics further testified that thereafter he spent all of his
time doing physical work. On cross-examination, he
amplified his testimony as to his aforesaid conversation
with Polk, as follows.
A All he said was that he was paying me good
money and that I was to work on the dies and not loaf
around.
A. He asked me to work together with him.
Q. Now, isn't it, true that at no time did he ever tell
you that you weren't tool and die room foreman?
A. I don't believe so.
Q. Heaston had put you in there as tool and die
foreman, is that correct?
A. Yes, sir.
Q. And Polk never told you that you weren't tool
and die foreman; is that correct?
A. Yes, sir.
The General Counsel elicited testimony purporting to
show that in the period after the aforesaid conversation
between Polk and Kepics, Kepics did not exercise or
possess any of the responsibility or authority attributed to
supervisors within the meaning of the Act. However, there
is testimony to the contrary. Kepics was questioned as to
whether, during the period of 4 or 5 weeks prior to his
termination and after the aforesaid conversation with
Polk, he had granted time off to employees to which he
responded that he had not. However, when he was asked
what procedure was followed when they requested time
off, he testified as follows:
A. They would come over and tell me that they were
going to leave and for what reason and I would relay
the message when I was confronted as to why the
person left.
Q. But they would come to you and tell you about it
first?
A. Yes, sir.
It would appear from his answer that he did grant time
off without consulting anyone else in management and
informed management of his action only when asked why
an employee was absent.
It is clear from the testimony of both Kepics and Polk
that Polk continued to hold Kepics responsible for the
production in the tool and die department. On two
occasions , Polk complained to Kepics about Wytiaz'
attitude and production and Kepics, in turn, spoke to
Wytiaz about Polk's complaints. Kepics testified about an
occasion approximately 3 weeks before his termination
when Polk "called him on the carpet" because a die had
not been repaired over the weekend according to his
instructions to Kepics. Kepics explained to Polk that he
had "told,"'" Livingston to repair the die and had no way
of knowing that Livingston had failed to do so. Kepics
further testified that, even though he informed Polk that
he had relied upon Livingston to do the work, Polk held
him responsible and terminated him at that time.
However, it appears that after a long discussion with
Kepics Polk reconsidered his action and reversed his
decision to discharge him.
1'Although he first testified that he had "asked" Livingston to work, he
Polk testified without contradiction and his-testimony is
credited that he had several conversations with Kepics
about the excessive amount of overtime in his department
and told him to "lay someone off or cut down on the
excessive amount of overtime that was being spent in his
department." Polk further testified without contradiction,
and his testimony is credited, that Kepics replied that "he
didn't think he could lay anybody off at that time," so he
(Polk) dropped the subject of layoff. Thus, it is clear that
Polk continued to consider and treat Kepics as a foreman
until the date of his termination.
Even if it were assumed that Kepics did not exercise
any of his authority as a foreman during the 4 or 5 weeks
before his discharge, that mere fact would not prove that
Kepics no longer had any such authority It is clear from
the testimony of Kepics that Kepics was never informed
that he was divested of any of the authority of a foreman
or that he was no longer foreman The fact that he was
required to spend all or most of his time doing physical
work does not, without more, permit the conclusion that
Kepics was demoted from his position as foreman. It is
noted that his rate of pay remained at $4,50 an hour until
his termination. It is also noted that immediately after
Kepics was discharged, Livingston was designated as
foreman and was given an increase in pay from $2.37 per
hour to $3 per hour, an amount considerably less than
Kepics' rate of pay had been.
It appears reasonable to infer from the record that
Respondent's foremen were supervisors within the
meaning of the Act. It is concluded from the foregoing
analysis of the record that at the time of his discharge,
December 14, 1967, Kepics still enjoyed the status of
foreman and, therefore, was at said time a supervisor
within the meaning of the Act." Consequently, even if
Kepics' discharge had been motivated by the fact or
suspicion that he was active on behalf of UE, his
discharge could not be found to be unlawful, since it is
well established that such activity ' on the part of a
supervisor is not protected under the Act.
It having been found that Kepics was a supervisor, the
issue of whether or not he was discharged for engaging in
activity on behalf of UE need not be resolved. Even if it
were assumed that Kepics was not a supervisor,
nevertheless, it is noted that the record would not support
a finding that the General Counsel has established by a
preponderance of the evidence that his discharge was
motivated by his activity on behalf of the UE. True, there
is sufficient evidence in the record to raise such a
suspicion: that Kepics arranged for the meeting of
employees with a representative of the UE and attended
the meeting, that he did engage in discussions with
employees with regard to the advantages of having UE
represent them; that the discharge occurred just 2 days
after the meeting with the UE representatives; and that
employee May Lou Paz credibly testified that Rosignol
had told her Kepics was discharged because he had been
caught signing up people for the UE in the ladder
department. Paz, who` was no longer -an employee of
Respondent at the time of the hearing,' 2 testified that
admitted that he had stated to the Labor Board agent that he had "told"
Livingston to repair the die over the weekend . This is a further indication
that he continued as foreman
"It is noted that in its brief Respondent points out that although there
was a union security clause in the Millmen's Union contract with the
Company, Kepics did not become a member of said union However, the
Trial Examiner does not rely upon this fact as an affirmative reason for
arriving at the conclusion that Kepics was a supervisor.
"She testified that she voluntarily terminated her employment in April
of 1968.
KELLER INDUSTRIES
Rosignol had made said statement to her when she asked
him, about a week after Kepics' discharge, what had
happened to Kepics. She further testified that, at that
time, Rosignol warned her not to get involved with the
UE or she would be discharged for doing so. Although
Rosignol denied this testimony as well as her testimony
that sometime in January 1968 he again warned her not to
get involved with the UE, Rosignol's denials are not
credited since, for the reasons indicated hereinabove,
Rosignol was not a convincing witness. On the other hand,
Paz impressed the Trial Examiner as a witness who was
testifying to the best of her recollection.
It does not appear that there is sufficient support in the
record for a finding that Respondent had any knowledge
of Kepics' aforementioned activities on behalf of UE or
even that Respondent suspected him of engaging in such
activities. The credited testimony of Paz as to the
statement made to her by Rosignol as to the reason for
Kepics' discharge has not been overlooked and has been
considered. However, Rosignol was only a minor
supervisor, having eight men in his department, and there
is no showing that he was privy to the decision to
terminate Kepics.13 There is nothing in the record to
support Rosignol's statement that Kepics was caught
signing up people for the UE in the ladder department, or
even to support a finding that Kepics had engaged in such
activity. It appears that Rosignol followed the practice in
moving around the plant of stopping to chat with
employees. It could very well have been that Rosignol
stopped to chat with Paz and merely passed on to her a
rumor that he had heard or that he himself had concocted.
This appears no less likely than an assumption that he had
been informed by Polk of his reason for discharging
Kepics, since there is no evidence to support a finding that
the statement was true.
The record clearly discloses that Polk was very
dissatisfied with the production and excessive overtime in
the tool and die department and held Kepics responsible
for that department's deficiencies. Furthermore, as
indicated above, he had discharged Kepics just 3 weeks
prior to December 14 because of his dissatisfaction with
Kepics. Although he reconsidered the discharge action at
that time, there is no showing that his dissatisfaction with
Kepics had diminished. This was ascribed as the reason
for his termination and it cannot be found from the record
that Polk's dissatisfaction with Kepics' performance was a
mere fabrication and thus a pretext for the discharge.
Consequently, it is concluded that the General Counsel
has failed to prove that Kepics' discharge was motivated
by his activity on behalf of the UE.
The credited testimony of Paz hereinabove as to the
warnings given to her by Rosignol with regard to getting
involved with the UE constituted threats of reprisal for a
protected activity and consequently were violative of
Section 8(a)(1) of the Act
Additional Independent Violations of Section 8(a)(1)
Paz testified that on the day Wytiaz was fired
(December 13), Rosignol asked her if she had signed one
of the cards Wytiaz had been passing out and warned her
that if she signed a card she would be fired Rosignol also
denied this testimony. For the reasons indicated
"Unlike the situation with respect to the discharge of Wytiaz in which it
was found heremabove that he was privy to the discharge, having initiated
it by reporting Wytiaz' protected activity to Polk
369
hereinabove, the Trial Examiner is of the opinion that
Paz' testimony should be credited. It is concluded that this
conduct of Rosignol constituted unlawful interrogation'
and a threat of reprisal for engaging in protected activities
in violation of Section 8(a)(1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The unfair labor practices of Respondent set forth in
section III above, occurring in connection with its
operations set forth in section I above, have a close,
intimate and substantial relation to trade, traffic and
commerce among the several states and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow thereof.
V. THE REMEDY
It having been found that the Respondent engaged in
various unfair labor practices, it will be recommended that
Respondent be ordered to cease and desist from such
conduct and take certain affirmative action designed to
effectuate the policies of the Act.
It having been found that Respondent discharged
Michael Wytiaz in violation of Section 8(a)(3) and (1) of
the Act, it will be recommended that Respondent be
ordered to make him whole for any loss of pay he may
have suffered as a result of the discrimination against him
by payment to him of a sum of money equal to that which
he would have earned as wages from the date of discharge
to the date he was reinstated' S less his net earnings during
such period, in accordance with the formula prescribed in
F. W. Woolworth Company, 90 NLRB 289, together with
interest on such sum, such interest to be computed in
accordance with the formula prescribed in Isis Plumbing
& Heating Co., 138 NLRB 716.
It having been found that General Counsel has failed to
prove by a preponderance of the evidence that the
discharge of Michael Kepics was violative of Section
8(a)(3) and (I) of the Act, it will be recommended that the
allegations of the complaint relating thereto be dismissed.
Based upon the foregoing findings of fact and upon the
entire record in the case, I make the following:
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2 (6) and (7) of the Act.
2. The UE is a labor organization within the meaning
of Section 2(5) of the Act.
3. Respondent discharged Michael Wytiaz for activities
on behalf of the UE in violation of Section 8(a)(3) and (1)
of the Act.
4. Respondent threatened , restrained , and coerced
employees in violation of Section 8(a)(1) of the Act by
unlawfully interrogating an employee as to whether she
signed an authorization card on behalf of the UE and by
threatening employees with economic reprisal should they
desire to have the UE act as their collective-bargaining
"Although this is the only instance in the record of interrogation, it is
not considered isolated and of little significance in view of the context in
which it occurred , i.e., coupled with an unlawful threat and closely linked
to the unlawful discharge of Wytiaz.
"It appears that Respondent reemployed Wytiaz on June 17, 1968.
There is no showing or contention that said reemployment did not
constitute reinstatement to his former or substantially equivalent position
without prejudice to his seniority or other rights and privileges
370 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
representative.
5. Michael Kepics was, at the time of his discharge, a
supervisor within the meaning of the Act and his
discharge was not violative of Section 8(a)(3) or ( 1) of'the
Act.
IT IS FURTHER RECOMMENDED that the allegations of the
complaint with respect to the discharge of Michael Kepics
should be and are hereby dismissed.
RECOMMENDED ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, and upon the foregoing
findings of fact, and conclusions of law, and the entire
record in this case, it is ordered that Keller Industries,
Inc., its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Interfering with, restraining, and coercing its
employees by unlawfully interrogating them with respect
to their adherence to the United Electrical, Radio,
Machine Workers of America, or any other labor
organization and threatening them with economic reprisal
should they desire to have said Union or any other labor
organization represent them as their collective-bargaining
representative.
(b) Discriminating in regard to the hire and tenure of
employment or any term or condition of employment of
any employee for engaging in activities on behalf of said
Union or any other labor organization.
(c) In any other manner interfering with, restraining, or
coercing employees in the exercise of their right to engage
in, or to refrain from engaging in, any or all of the
activities specified in Section 7 of the Act, except to the
extent such right may be affected by an agreement
requiring membership in a labor organization as a
condition of employment, as authorized by Section 8(a)(3)
of the Act, as modified by the Labor-Management
Reporting and Disclosure Act of 1959.
2. Take the following affirmative action which is
designed to effectuate the policies of the Act:
(a) Make Michael Wytiaz whole for any loss he may
have suffered by reason of his discharge in the manner
and to the extent set forth in the section entitled "The
Remedy."
(b) Preserve and upon request make available to the
Board or its agents for examination and copying all
payroll records and reports and all other records necessary
or useful to determine the amount of backpay due under
the terms of this Recommended Order.
(c) Post at its plant in Merced, California, copies of the
attached notice marked "Appendix"" Copies of said
notice, on forms provided by the Regional Director for
Region 20, shall, after being duly signed by the
Respondent's authorized representative, be posted by the
Respondent immediately upon receipt thereof and remain
posted for a period of 60 consecutive days from the date
of posting, in conspicuous places, including all places
where notices to employees 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 20, in
writing, within 20 days from the date of this Order what
steps have been taken to comply herewith.''
"In the event that this Recommended Order be adopted by the Board,
the words "a Decision and Order" shall be substituted for the words "the
Recommended Order of a Trial Examiner" in the notice. In the further
event that the Board ' s Order be enforced by a decree of a United States
Court of Appeals, the words "a Decree of the United States Court of
Appeals Enforcing an Order" shall be substituted for the words "a
Decision and Order "
"In the event that this Recommended Order be adopted by the Board,
this provision shall be modified to read . "Notify said Regional Director, in
writing , within 10 days from the date of this Order, what steps the
Respondent has taken to comply herewith "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our
employees that:
WE WILL NOT unlawfully interrogate our employees
as to their adherence to the United Electrical, Radio,
Machine Workers of America, or any other labor
organization.
WE WILL NOT unlawfully threaten our employees
with discharge or economic reprisal should they desire
to have said Union or any other labor organization
represent them as their collective-bargaining agent.
WE WILL NOT discharge any of our employees or
otherwise discriminate in regard to their hire or tenure
of employment, or any terms or conditions of
employment, because they have engaged in activities on
behalf of said Union or any other labor organization.
WE WILL NOT in any other manner interfere with,
restrain, or coerce employees in the exercise of their
right to engage in, or to refrain from engaging in, any
or all of the activities specified in Section 7 of the Act,
except to the extent that such right may be affected by
an agreement requiring membership in a labor
organization as a condition of employment, as
authorized in Section 8(a)(3) of the Act, as modified by
the Labor-Management Reporting and Disclosure Act
of 1959.
WE WILL make Michael Wytiaz whole for any loss
he may have suffered as a result of our discrimination
against him.
KELLER INDUSTRIES, INC.
(Employer)
Dated By
(Representative) (Title)
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material.
If employees have any question concerning this notice
or compliance with its provisions, they may communicate
directly with the Board's Regional Office, 450 Golden
Gate Avenue, Box 36047, San Francisco, California
94102, Telephone 556-0335.