Lenape Products, Inc.

National Labor Relations Board - Board Decisions

Mar 4, 1987

283 N.L.R.B. 178 (N.L.R.B. 1987)

178 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Lenape Products , Inc. and Charles Bernhardt Sr.
Case 22-CA-13631
4 March 1987
DECISION AND ORDER
By CHAIRMAN DOTSON AND MEMBERS
JOHANSEN, BABSON, STEPHENS, AND
CRACRAFT
On 11 June' 1985 Administrative Law Judge
James F. Morton issued the attached decision. The
Respondent filed exceptions and a supporting brief,
and the General Counsel filed an answering brief.
The National Labor Relations Board has consid-
ered the decision and the record in light of the ex-
ceptions and briefs and has decided to affirm the
judge's rulings, findings,' and conclusions, but not
to adopt the recommended Order.2
ORDER
The National Labor Relations Board orders that
the Respondent, Lenape Products, Inc., Trenton,
New Jersey, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Discharging its employees for engaging in a
lawful work stoppage.
(b) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them by Section 7
of the Act.
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act.
(a) Offer its Division 3 day-shift employees who
were discharged for having engaged in a work
stoppage on 27 December 1984, including Charles
Bernhardt Sr., Charles Bernhardt Jr., Lottie Dillon,
Isabel Elisio, Maria Bruno, Mayra Torres, Sarran
Doogah, ' and Beverly Martinez,, immediate and full
reinstatement to their former jobs or, if those jobs
1 In sec II,A, par. 3 of his decision, the judge incorrectly spelled Her-
mann Ghnecke's first name as "Herman " In that same paragraph, as well
as in his recommended Order, the judge erroneously stated that the Re-
spondent's Division- 3 plant is located in Pennington, New Jersey. While
the Respondent's main office and two other plants are located in Pen-
nmgton, its Division 3 plant is located in Trenton, New Jersey.
In sec . II,A, par 11, the judge incorrectly spelled Isabel Elisio's first
name as "Isabella" and as "Isabelle" in his recommended Order and
notice.
In sec II,B, par . 2, the judge incorrectly cited Dirt Digger, which is
now published at 274 NLRB 1024 (1985).
We correct these inadvertent errors.
Chairman Dotson would overrule Abilities & Goodwill, 241 NLRB 27
(1979) In his view an unlawfully discharged striker must unconditionally
request reinstatement in order to trigger an employer's backpay obliga-
tion He would therefore follow the Board rule as it existed prior to
Abilities & Goodwill and as set forth in Bartlett-Collins Co, 230 NLRB 144
(1977).
2 We shall issue a new Order and notice reflecting the proper spelling
of Isabel Elisio's first name and properly identifying the location of the
Respondent's Division 3 plant
no longer exist, to substantially equivalent posi-
tions, without prejudice to their seniority or any
other rights or privileges previously enjoyed, and
make them whole for any loss of earnings and
other benefits suffered as a result of the Respond-
ent's unlawful discharge of them, in the manner set
forth in the remedy section of the judge's decision.
(b) Remove from its files any reference to the
unlawful discharges and notify the employees in
writing that this has been done and that the dis-
charges will not be used against them in any way.
(c) Preserve and, on request, make available to
the Board or its agents for examination and copy-
ing, all payroll records, social security payment
records, timecards, -personnel records and reports,
and all other records necessary to analyze the
amount of backpay due under the terms of this
Order.
(d) Post at its facility in Trenton, New Jersey,
copies of the attached notice marked "Appendix."
Copies of the notice, on forms provided by the Re-
gional Director for Region 22, after being signed
by the Respondent's authorized representative,
shall be posted, by the Respondent immediately
upon receipt and maintained for 60 consecutive
days in conspicuous places including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent
to ensure that the notices are not altered, defaced,
or covered by any other material.
(e) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply.
a If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
WE WILL NOT discharge you for engaging in a
lawful work stoppage.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
283 NLRB No. 33
LENAPE PRODUCTS 179
WE WILL offer Charles Bernhardt Sr., Charles
Bernhardt Jr., Lottie Dillon, Isabel Elisio, Maria
Bruno, Mayra Torres, Sarran Doogah, and Beverly
Martinez, and any other Division 3 employee who
was discharged for having engaged in a work stop-
page on 27 December 1984, immediate and full re-
instatement to their former jobs or, if those jobs no
longer exist, to substantially equivalent positions,
without prejudice to their seniority or any other
rights or privileges previously enjoyed, and WE
WILL make them whole for any loss of earnings
and other benefits resulting from their discharges,
less any net interim earnings , plus interest.
WE WILL notify each of them that we have re-
moved from our files any reference to his or her
discharge and that the discharge will not be used
against him or her in any way.
LENAPE PRODUCTS, INC.
Gary A. Carlson, Esq., for the General Counsel.
Arnold M. Mellk, Esq. (Katzenbach, Gildea & Rudner), of
Lawrenceville, New Jersey, for Lenape Products, Inc.
Ezra D. Rosenberg, Esq,. on the brief.
Carl S. Yaller, Esq., of Media, Pennsylvania, for Charles
Bernhardt, Sr.
DECISION
STATEMENT OF THE CASE
JAMES F. MORTON, Administrative Law Judge. The
complaint alleges that Lenape Products, Inc. (Respond-
ent) violated Section 8(a)(1)' of the National Labor Rela-
tions Act, by having discharged certain employees for
having engaged in a strike . Respondent, in its answer,
avers that the employees involved in this case had quit
and Respondent denies it violated the Act.
The hearing was held before me in Newark, New
Jersey, on April 17 and 18, 1985.
Based on the entire record in this case , including my
observation of the demeanor of the witnesses, and after
full consideration of the briefs filed with me by the Gen-
eral Counsel and Respondent , I make the following
FINDINGS OF FACT
1. JURISDICTION
The pleadings establish that Respondent is engaged in
the business of manufacturing and in the nonretail sale of
ceramic products and that its operations annually meet
the Board's nonretail standard for the assertion of juris-
diction.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
There is very little dispute about the events in this
case.
The employees , involved in this case have not been
represented by a labor organization for purposes of col-
lective bargaining.
In late August 1984 (all dates hereafter are for 1984
unless specified otherwise), Respondent hired Herman
Glinecke as its production control manager to put its Di-
vision 3 plant in Pennington , New Jersey , on a profitable
basis and also to ensure that a $240 ,000 order for the
production of 40 ,000 ashtrays would be processed
through its Division 3 phase by January 1, 1985, and to
completion by January 31, 1985 , to avoid paying a con-
tractual penalty.
Shortly after he took over, Glinecke made a number
of changes to which many of the Division 3 employees
objected . Thus, he stationed himself behind employees
for long periods as they worked and timed their oper-
ations with a stopwatch . He disallowed an employee a
"grace period" whereby employees could punch in up to
4 minutes late without penalty, by instead docking her
for being a minute late. He asked another employee to
work overtime on Sunday to assist in clearing; out an
area, but assigned him instead to production work. When
that employee protested , he was sent home and informed
that he would no longer be assigned to overtime work.
Some of the employees at Division 3 perceived that
Glinecke was responsible also for excessive fumes result-
ing from the method he used to ignite gas in the kilns.
They also thought he was not doing as much as his pred-
ecessor to keep a rat infestation problem under control.
They expressed their concern about techniques, intro-
duced by Glinecke in handling ceramic objects, which
they perceived as having caused skin rashes and related
illnesses . One of the perceived concerns of the Division 3
employees pertained to Glinecke 's moving ` them from
their normal assignments to other duties, e.g., assigning a
presser to the work of making clay. In mid -December,
Glinecke brought in to the Division 3 plant an operation
that was normally done atanother of Respondent's facili-
ties, located 9 miles distant. That operation involved' the
redoing of defective work at the other facility. The in-
creased workload at Division 3 resulting from the trans-
fer stimulated further changes, in work assignments.
Charles Bernhardt Sr., the charging party in this case,
was one ' of the Division 3 employees . He testified that he
and the ' other Division 3 employees complained among
themselves about the foregoing matters. He testified fur-
ther that he spoke to Glinecke about them and that Olin-
ecke responded that he did not care what the employees
thought . Bernhardt testified that the Division 3 employ-
ees decided that they would get nowhere with Glinecke
and that he asked Glinecke to tell "Pete" I3exter (Re-
spondent's principal stockholder and its de facto chief ex-
ecutive officer ') that the employees wanted "'to meet
with him to discuss (their) working conditions and the
problems at Division 3." According to Bernhardt, Glin-
ecke replied that he would tell Hexter of this request.
Glinecke and Hexter testified for Respondent . Glinecke
did not controvert Bernhardt's testimony respecting the
I Hextet testified he serves in that capacity , but is not one of Respond-
ent's officers.
180 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
desire of the Division 3 employees to meet with Hexter.
Instead, Glinecke's account suggests that he handled all
the problems at Division 3 in a manner satisfactory to
Bernhardt and the other employees there. I credit Bern-
hardt's testimony- that the employees had, through Glin-
ecke, sought 'a meeting with Hexter.
Hexter testified that he has always been on a first
name basis with Respondent's employees and has always
been available to discuss their problems. He testified also
that he regularly visited the Division 3 facility. To the
extent that Hexter's account suggests that the Division 3
employees had no concerns, I reject it as Glinecke him-
self acknowledged that he had received complaints from
employees about the changes he made in their work as-
signments.
Bernhardt testified also that he and the other Division
3 employees on the day shift then talked about starting a
union. Bernhardt called Nathan Rutkin, Respondent's
traffic manager at the Division 1 plant, 9 miles away.
Rutkin is also president of Local 185A, Glass, Pottery,
Plastics & Allied Workers International Union, AFL-
CIO, CLC. Rutkin gave Bernhardt the union's telephone
number. Bernhardt later obtained authorization cards for
that union and , on December 19, he and other Division 3
employees tilled out those cards. That testimony and the
signed authorization cards were offered solely to estab-
lish that the Division 3 employees were serious in their
concerns about their complaints regarding their working
conditions under Glinecke. Thus, they met with a union
representative and told him they may walk out because
of their complaints. The union cards were not offered for
the purpose of proving that their termination of employ-
ment, a week or so later, was due to their union activi-
ties, inasmuch as there is no complaint allegation that
Respondent has violated Section 8(a)(3) of the Act.
Defective work from another plant, Division 4, was
brought to Division 3 to be reworked. By December 27,
the Division 3 employees "couldn't take no more [and]
decided to walk out . . . but . . . would try to get a
hold of Mr. Hexter" first. Bernhardt telephoned Hexter
on December 27. There is a variation between their re-
spective accounts of that telephone discussion. Bern-
hardt's testimony is that he asked Hexter if it was possi-
ble for the employees to meet with him. He testified fur-
ther that Hexter put him off by saying he had meetings
elsewhere to attend and by suggesting that the employ-
ees wait until after the holidays. Bernhardt testified also
that he then accused Hexter of giving him "the run-
around" and that he also told Hexter that the employees
would walk out` by noon if Hexter did not come to the
Division 3 plant by then. Bernhardt concluded his ac-
count of the conversation by his testimony that Hexter
told him, "God dammit, Charlie, if you want to walkout,
walkout. I'll just get other people to replace you."
Hexter's version of the call is that Bernhardt told him
that the employees wanted him to come right down and
that when he told Bernhardt that he would be there at 1
p.m. because he had another meeting scheduled, Bern-
hardt told him that the employees would walk out if he
was not at the Division 3 plant by 11 a.m. Hexter testi-
fied that he told Bernhardt to either wait until 1:00 p.m.
or the meeting with the employees would have to wait
until after the holidays. I see no material difference in
the respective accounts. If a credibility resolution were
necessary, I would credit Bernhardt's account particular-
ly as Hexter's subsequent actions, as he related them and
as set out below, disclose that he was -not going to wait
until after the holidays to talk with the employees if they
walked out.
Bernhardt had the telephone conversation with Hexter
about 10:15 a.m. He informed his coworkers of it and
placed a call to Glinecke, who was at another facility.
Bernhardt told Glinecke that the employees were walk-
ing out. Glinecke drove to the Division 3 plant and ar-
rived in time to see the employees there punching out. It
was then about I1 a.m.
On the afternoon of the same day of the walkout, De-
cember 27, Hexter met with Respondent's president and
they instructed Respondent's payroll administrator to
write each of the employees who walked out. Her letter
to each was dated December 27 and stated, "[o]n De-
cember 27, 1984, you abandoned your position . . . [and]
therefore your position is no longer available." On De-
cember 28, the employees came in to pick up their pay-
checks. Glinecke testified that Bernhardt told him then
that what the employees did "was a dumb thing to do"
and asked if Hexter was ready to talk. Glinecke told
them that Hexter instructed him not to hire back any of
the employees who walked out.
The parties stipulated that the names of the employees
who walked out on December 27 and who received a
December 27 letter from the payroll administrator are:
Charles Bernhardt, Sr.
Sarran Doogah
Lottie Dillon
Mayra Torres
Maria Bruno
Isabella Elisio
Beverly Martinez testified for the General Counsel
that she was also one of the Division 3 employees who
walked out on December 27 and who heard Glinecke
state, on December 28, that Heater would not hire back
those who had walked out. It. is not clear whether she
was sent a letter from the payroll administrator as the
others were sent.
There may have been other day-shift employees who
joined in the December 27 walkout.2
On January 9, 1985, nine employees signed a letter
sent to Hexter seeking to talk to him about plant condi-
tions and also stating that they wanted their "jobs back."
That letter was offered by the General Counsel to dem-
onstrate that the employees who walked out on Decem-
2 At one point in the hearing, the General Counsel asserted that a day-
shift employee, Michele Tirado, had also been unlawfully discharged on
December 27 because she joined in the walkout that day The testimony
offered by Respondent, however, established that Tirado had been laid
off for lack of work on December 21 and thus was not even at work on
December 27 On the record before me, I find that she did not participate
in the December 27 walkout. I cannot say, based on the record herein,
however, that only the ones named above did
LENAPE PRODUCTS
her 27 did not thereby quit.3 There is no allegation that
on January 9, 1985, they were unlawfully refused rem-
statement.
B. Analysis
Respondent contends first that the General Counsel
failed to offer credible evidence that the employees were
engaged in a concerted act as, in Respondent 's view, the
evidence established that the Charging Party effectively
manipulated the employees because he had been passed
over for promotion. That contention is without merit and
is based solely on Respondent's speculation.
Respondent next asserts that the December 27 walkout
was unprotected as, in its view, Respondent was not
given timely notice of the employees ' intention to engage
in a work stoppage. The facts do not support that con-
tention either. The credited evidence establishes that Re-
spondent wanted to delay a walkout until after the holi-
days, at least . It should not be the Board 's function to
weigh tactical advantages either side may seek. Respond-
ent, in its brief, extracts a quotation from the dissenting
opinion in Tri-State Truck Service v NLRB, 616 F.2d 65
(3d Cir. 1980), to suggest that the General Counsel here
is engaged in an overly enthusiastic prosecution of a
marginal case. Tri-State factually has little resemblance to
the instant case in which employees had numerous com-
plaints for which they sought relief. In recent and analo-
gous cases, the discharge of employees who walked out
in'similar circumstances as in the instant case was held
unlawful. See Dirt Digger Inc., 274 NLRB 1024 (1985).
See also Seminole Mfg. Co., 272 NLRB 365 (1984). Thus,
I find that the employees involved herein did not quit
their employ but, instead, had been discharged on De-
cember 27 because they engaged in concerted activities
protected by Section 7 of the Act.
3 One of the nine who signed was Charles J., Bernhardt Jr., the son of
the Charging Party Other testimony' before me establishes that he was
among the employees present on December 28' when Glineckc informed
them that Herter would not take them back. It appears , however, that he
may, not have been sent a December 27 letter from the payroll adminis-
trator referred to above I find that the General Counsel has made out a
prima facie case that Bernhardt Jr. was among the employees who
walked out on December 27 and who were informed the following day
that they thereby would not be taken back. The Januray 9, 1985 letter
also was signed by Michele Tirado , whose status is discussed, supra.
181
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce as
defined in Section 2(2), (6), and (7) of the Act.
2. Respondent has committed an unfair labor practice
violative of Section 8(a)(1) of the Act, by having dis-
charged Division 3 day-shift employees who engaged in
a work stoppage on December 27, 1984, including
Charles Bernhardt Sr., Charles Bernhardt Jr., Sarran
Doogah, Lottie Dillon, Mayra Torres, Maria Bruno, Isa-
belle Elisio, and Beverly Martinez.
3. The unfair labor practice found above affects com-
merce within the meaning of Section 2(6) and (7) of the
Act.
REMEDY
It having been found that the Respondent has engaged
in certain-unfair labor practices, it is recommended that
it cease and desist therefrom and take certain affirmative
actions designed to effectuate the policies of the Act. It
having been found that Respondent unlawfully dis-
charged employees, including Charles Bernhardt Sr.,
Charles Bernhardt Jr., Lottie Dillon, Isabelle Elisio,
Maria Bruno, Mayra Torres , Sarran Doogah , and Bever-
ly Martinez and that it has since failed and refused to re-
instate them to their former positions or equivalent posi-
tions in violation of Section 8(a)(1) of the Act, it is rec-
ommended that the Respondent be ordered to remedy
such unlawful conduct.
In accordance with Board policy, it is recommended
that the Respondent be ordered to offer these employees
immediate and full reinstatement to their former positions
or, if such positions no longer -exist, to substantially
equivalent positions, without', prejudice to their seniority
or other'rights and privileges enjoyed , dismissing , if nec-
essary, -any employees hired on or since the date of their
discharges to fill the positions and to make them whole
for any loss of earnings they may have suffered by
reason of the Respondent's 'unlawful conduct, by pay-
ment to them of sums of money equal to the amounts
they would have earned from the date of their unlawful
discharges to the date of an offer of reinstatement, less
net earnings during such period , with interest thereon, to
be computed on a quarterly basis in the manner estab-
lished by the Board in F W. Woolworth Co., 90 NLRB
289 (1950), and Florida Steel Corp., 231 NLRB 651
(1977). See also Isis Plumbing Co., 138 NLRB 716 (1962).
[Recommended Order omitted from publication.]