Mannington Electric, Inc.

National Labor Relations Board - Board Decisions

Dec 18, 1972

200 N.L.R.B. 970 (N.L.R.B. 1972)

970 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Mannington Electric, Inc and Local 592, International
Brotherhood of Electrical Workers, AFL-CIO
Case 4-CA-5914
December 18, 1972
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND PENELLO
On August 14, 1972, Administrative Law Judge i
Thomas A Ricci issued the attached Decision in this
proceeding Thereafter, Respondent filed exceptions
and a supporting brief, and the General Counsel and
Charging Party filed briefs in answer to Respon-
dent's exceptions
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings,
findings,2 and conclusions of the Administrative Law
Judge and to adopt his 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, Mannington Electric
Inc , Salem, New Jersey, its officers, agents, succes-
sors, and assigns, shall take the action set forth in the
said recommended Order
I The title of Trial Examiner was changed to Administrative Law
Judge effective August 19 1972
2 The Respondent has excepted to certain credibility findings made by
the Administrative Law Judge It is the Board s established policy not to
overrule an Administrative Law Judges resolutions with respect to
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions were incorrect Standard Dry Wall
Products Inc 91 NLRB 544 enfd 188 F 2d 362 (C A 3) We have carefully
examined the record and find no basis for reversing his findings
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
THOMAS A Ricci, Trial Examiner A hearing in the
above-entitled proceeding was held before the duly
designated Trial Examiner on July 6, 1972, at Philadelphia,
Pennsylvania, on complaint of the General Counsel against
Mannington Electric, Inc, herein called the Respondent or
the Company The charge was filed on March 24, 1972,
and the complaint issued May 31, 1972 The issue
presented is whether the Respondent discharged two
employees and suspended two others in violation of
Section 8(a)(3) of the Act Briefs were filed by the General
Counsel and the Charging Party
Upon the entire record in the case, and from my
observation of the witnesses, I make the following
FINDINGS OF FACT
I THE BUSINESS OF THE RESPONDENT
Mannington Electric, Inc, a New Jersey corporation, is
engaged in the electrical construction and maintenance
business, with its principal place of business in Salem, New
Jersey During the past year in the course and conduct of
its business, the Respondent derived revenues in excess of
$50,000 from sales of services to firms over which the
Board would assert jurisdiction on a standard other than
that of indirect inflow or indirect outflow I find that the
Respondent is engaged in commerce within the meaning of
the Act and that it will effectuate the policies of the Act to
exercise jurisdiction herein
II THE LABOR ORGANIZATION INVOLVED
I find that Local 592, International Brotherhood of
Electrical Workers, AFL-CIO, herein called the Umon, is
a labor organization within the meaning of Section 2(5) of
the Act
III THE UNFAIR LABOR PRACTICES
A A Picture of the Case
Apart from a brother-in-law of the owner of the
Company, a helper who works an occasional day now and
then, the Respondent has for years operated with four
electricians, their respective tenure being 4, 6, 10, and 12
years These employees joined Local 592 of the IBEW
some time in February 1972 and filed a petition for a
Board election on February 25 (Case 4-RC-9649) An
election was held between 4 30 and 4 45 p in on Friday,
March 17, after the men had returned to the shop to report
and to check in their tools, as they always do, all four
voted in favor of the Union At 8 o'clock Monday
morning, when the men reported to the shop for assign-
ments, again in keeping with established practice, each was
told to leave because there was no work It is conceded
there had been no hint to any of them that this might
happen They returned at the same hour again both
Tuesday and Wednesday, ready to work Two of them
-Martin Russell and Donald McNulty-were returned to
work on Wednesday, and have continued on the job at all
times since as in the past The other two-William Kurman
and William Sanderlin-were simply told there was no
work, and have never been called back
The complaint alleges that the outright discharge of
Kurman and Sanderlin and the 2-day suspensions imposed
on Russell and McNulty were discriminations in employ-
ment in violation of Section 8(a)(3) of the Act At the
hearing, Adrian Winstel and his son Donald Wmstel,
coowners of the business, said, in part of their testimony,
that they did what they did for economic reasons, and the
Respondent denies commission of any unfair labor
practices The question is one of motivation-does the
200 NLRB No 138
MANNINGTON ELECTRIC
record in its entirety warrant a conclusion that the
suspensions and discharges were in fact caused by the
employees' action in joining the Union and voting for
union representation?
B Proof to Support of the Complaint
The proof starts with an "Affirmative Allegation"
appearing in the Respondent's answer to the complaint,
which reads as follows "By reason of the union activities
this Respondent has been unable to properly plan its
construction work and prior to election and several weeks
before the election, following the filing by the local of its
petition to represent employees of the Respondent on or
about February 25, 1972, and Respondent having no idea
as to the demands that might be made upon Respondent,
was unable to secure figures on construction contracts with
any certainty as to the costs of performing contracts By
reason thereof, by the time of the election on March 17,
1972, Respondent had exhausted its working con-
tracts "
Management's decision to release the men precisely at 8
a m on March 20 was made after the Friday afternoon
election, for both the Wmstels testified they discussed the
matter and so decided at the home of one of them during
the intervening weekend Throughout the years of their
employment not one of the four men had lost a single hour
of work, whenever production work was slow in the field
they were kept occupied in the shop-painting, cleaning,
rebuilding shelves, cleaning and sanding the trucks,
replacing mufflers, restocking the shop, etc Despite the
Company's assertion at the hearing that on January 21,
1972, it learned it had lost money the previous year, no
mention of this had been made to any employees, and no
indication of any kind had been given them that they
might be released Asked at the hearing to explain the
timing of the surprise dismissals in view of the employees'
long tenure, Donald Winstel, vice president of the
Company, gave the following two answers
The election had taken place on the 17th, we weren't
quite sure, I assumed the union would approach us
with collective bargaining So, therefore, the work of
the 20th didn't have to be done on the 20th, I mean it's
like has been stated before, our work is flexable, unless
someone needs a piece of machinery a certain day So
we talked it over on the weekend and thought it
advisable, and then I approached each man personally
on Monday and told him there was no work for you
today
As far as the financial statement, that's a personal
matter between the stockholders and officers of the
corporation, as far as I'm concerned, it's none of the
employees' business, period As far as why they weren't
told, when they came in, we assumed we would be
approached by the union for collective bargaining
Now I'm not going to sit there and say we're going to
keep two men on for two days or three days or a week,
when we have knowledge of what we're going to be
doing So, if after 10 years they had had the employ-
971
ment when we didn't have the work, fine, but until we
were approached by the union, we weren't going to
keep people on to appease a certain position when we
didn't know what we were going to be doing So, if we
get together with the union, fine, and we can go back to
work on it
A clearer statement of the Respondent's motivation
appears in the pretrial affidavit of Donald Winstel, dated
April 25, 1972 In pertinent part it reads as follows
There were jobs left incomplete on Friday afternoon
March 17, 1972, the day of the election, but the fact
that I told the men there was no work available
Monday March 20, 1972 was because of the outcome
of the election which the Union won, and we thought
the Union would be contacting us on Monday to
discuss a labor contract and we did not want to send
men on jobs not knowing what the results of the labor
negotiations would be
The Union, of course, had made no demands upon the
Respondent before its decision to lock out, as it were, the
entire complement The effective hurt to the employees in
this case therefore cannot be likened to any effort by an
employer in fact engaged in collective bargaining with a
majority representative to bring pressure upon the union to
accept a particular wage offer, or other proposed contract
terms and conditions of employment When posting the
election notice shortly before the balloting, Adrian Winstel
several times told more than one employee they were
"playing dirty pool " It was the fact they voted in favor,
and not against the Union, which he resented, and which
triggered the Monday morning discriminatory act The
total picture, and its necessary legal effect, is not changed
by the Respondent's contention that it prepared itself for
such possible prounion action by not accepting offers of
work from its customers in advance of the voting, while
there existed-to quote Donald Winstel-"a state of
ambiguity, yes, as to what the [wage] rate is going to be "
This is virtual admission that had the majority vote gone
the other way nothing untoward would have happened
later As will appear below, the evidence falls short of
proving that in fact there was no work the following
Monday But even assuming such a situation, contrary to
the fact, between closing a plant after the employees have
voted in favor of collective bargaining and because they
have done so, and making the work disappear in advance
of the election to assure that there will be none later in the
event the employees should select a union, there is no
significant difference
Against this persuasive evidence of pure retaliation
against the employees for choosing to be represented by
the Union in collective bargaining, proof in support of an
affirmative defense of discharge for just cause would have
to be overwhelmingly convincing indeed, both factually
and logically, to rebut the essential allegation of illegality
made in the complaint
C The Affirmative Defense
When the four men were sent home on Monday morning
they were literally told nothing more than that there was no
work and they should take their personal tools with them
In fact they were also given not another word in
972 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
explanation when all four returned on Tuesday, and when
Kurman and Sanderhn were sent home again Wednesday
In the fact of the evidence set out above-literal admis-
sions by the owners of the business-that the reason was
the fact the men had voted for the Union on Friday
evening, at the hearing Winstel gave two other reasons (1)
a loss during the previous fiscal year, and (2) no work
available that Monday Considering their total testimony
respecting these belated assertions, and the whole record,
neither story is convincing
On January 21 the Company received its accountant's
written report showing a paper loss of $5,000 for the fiscal
year ending November 30, 1971 The Winstels said that
they looked into the matter and decided the loss had been
caused by "lack of production," a phrase that remained
only vaguely defined throughout the hearing As he
proceeded, Donald Winstel tried to create the impression
McNulty and Sanderlin had been responsible, but he then
said it was not that McNulty's work was "poor," only that
"McNulty was doing something, he was trying to carry
another employee, it concerned the two of them, it
doesn't mean the two of them were integrally involved "
The two Company witnesses then explained they did
nothing about all this, never even mentioning the problem
to the men, for 2 months before the election, because "it
would be misconstrued into intimidation " The father
remembered there had been another year when the
Company also lost money, he even said there might have
been still other such years, but he could not recall He also
admitted there had never been any layoffs, regardless of
losses and regardless of lack of work, at any time in the
past This, plus the delay in taking any remedial steps for 2
months after receipt of the accountant's report, and the
failure to tell anything to the employees at the moment of
discharge as to why they were being reduced in force,
greatly weakens the credibility of this particular defense
assertion
As to the claim now that there was no work for the men
that Monday, the testimony is much in conflict To start
with, it seems this company does not do business on the
basis of one or several fixed contract jobs at a time, rather
its regular customers simply call when they need work and
it is performed and paid for on the basis of "time and
material " Thus Adrian Wmstel said, " there's always a
little work to do, as jobs come in, some of them are
emergencies , some of them are not, some of them you can
postpone for a week or a month " From his son's
testimony, " the work on the 20th didn't have to be
done on the 20th, I mean it's like has been stated before,
our work is flexable, unless someone needs a piece of
machinery a certain day " When two of the men-Russell
and Kurman-ceased work at a particular job at the end of
the workday on Friday, Donald Winstel was there and told
the customer, Bill Jennings, the men "would have to come
back Monday to finish the fob " Winstel said at the
hearing that no work orders had been received during
Monday and Tuesday, yet he had work to be done by
McNulty and Russell on Wednesday Despite their
statements that there was no work to be performed
Monday and Tuesday, every time they were asked for
specifics as to what was available and who did it, they
answered with a stock phrase "I suppose the day book
would tell me more " "I'd have to check the timebook
for that," "Q (By Miss Selby) How much work, sir, did
you have lined up on March 20th" A There's a day book
there, I couldn't tell you how much there was, the day
book would show " None of the generalities voiced by the
Winstels were substantiated by any company records
Clearly there was work to be done on Monday at the Bill
Jennings job, for this is what Donald Winstel said on
Friday evening And when McNulty went to work on
Wednesday, together with Russell, it was to a location
where neither had worked the week before All this
strongly indicates work was available at the start of the
week, even without intervening orders
Neither Adrian nor Donald Winstel were reliable
witnesses, for apart from the inconsistencies in their stones
they evaded direct answers at many turns and more than
once shifted grounds In complete contradiction of his
assertion that he released the men after instead of before
the election in order to avoid the appearance of intimida-
tion, at another point Adrian Winstel said he chose
Monday morning to dismiss the men because "we sort of
felt that they'd have a better chance for ajob if they had a
representative " But Winstel could not know in advance
how the men would vote If the layoffs had to come for
economic reasons it was irrelevant whether or not the men
"had a representative " The suggestion that Winstel waited
until after the election to take action to avoid any adverse
inference necessarily implies the decision to take action
was made before the election Asked when the decision was
made, Winstel again kept shifting, first he said the "lack of
production" was discussed after receiving notice of the
coming election and it was then decided "to lay off or
terminate two or three of the four men " He then added it
was decided to take action "when the work load dropped
before the election " Finally he said the decision was
really made "after the election " A more likely explanation
of the timing of both decision and action may be seen in a
statement, attributed to Adrian Winstel by Sanderlm, who
testified that when posting the election notice the day
before the election the owner said "you guys are playing
dirty pool, but I have my plans " I think it a fair inference
Winstel's "plan" was to retaliate by firing at least some of
the men if they persisted in their "dirty pool " He denied
saying this, but I do not credit him
Conclusion
I find that the Respondent violated Section 8(a)(3) of the
Act on March 20, 1972, by discharging Kurman and
Sanderhn and by suspending for 2 days Russell and
McNulty This conclusion arises necessarily from the total
record , no less from the written admissions in the
Respondent's answer and Donald Winstel 's affidavit, as
well as Donald Winstel's testimony , than it does from the
related facts It has not been shown that in fact there was
no work for the men to do on the 20th In view of the
Respondent 's apparent indifference to previous losses on
paper, there is not sufficient reason for crediting Adrian
Winstel in his contention that he was overly concerned
with the Company's loss during the previous fiscal year
And it is just about incredible that two men conducting so
MANNINGTON ELECTRIC
intimate an operation, themselves regularly working with
the only four employees long associated with them, would
turn them around and send them home after they had
arrived at that hour of the morning, without a single word
of explanation Had the reason for firing anyone been at
all legal and defensible-no matter what the economic or
rational basis-management would have told them all
about it when they finished work on Friday
A fair paraphrase of what the managing agents meant by
their words set out at the beginning of this report is that so
long as they had to deal with a union they preferred to
negotiate from a position of strength-the owners them-
selves doing the work for pay while the employees bore the
brunt of economic pain in the street No less does an
employer flex his muscles illegally by merely threatening
discharge in retaliation when employees in any way express
their preference for collective bargaining It is like the
converse of the principle of N L R B v Exchange Parts,
375 U S 405, which holds that the hand that gives can also
take away In that case the employer gave additional
benefits to his employees, and thereby illegally induced
them to refrain from joining a union Here he took away,
with the same unlawful purpose, and necessary effect, of
coercing the employees In each case the conduct directly
violated the prime proscription of the statute
The Respondent must offer reinstatement to Kurman
and Sanderlin, and it must make whole these two men for
interim losses in earnings and Russell and McNulty for the
2 days' pay which they lost on March 20 and 21, 1972
IV THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent set forth in section III,
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
the free flow of commerce
CONCLUSIONS OF LAW
1 The Respondent is an employer within the meaning
of Section 2(2) of the Act, and is engaged in commerce
within the meaning of Section 2(6) and (7) of the Act
2 By discharging William Kurman and William
Sanderlin, and by suspending Martin Russell and Donald
McNulty because of their union activity, the Respondent
has interfered with, restrained, and coerced its employees
in the exercise of the rights guaranteed in Section 7 of the
Act, and has thereby engaged in unfair labor practices
proscribed by Section 8(a)(3) and (1) of the Act
3 The aforesaid unfair labor practices are unfair labor
practices within the meaning of Section 2(6) and (7) of the
Act
Upon the foregoing findings of fact, conclusions of law,
I 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
973
and the entire record , and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended 1
ORDER
The Respondent, Mannington Electric, Inc, Salem,
Pennsylvania, its officers, agents, successors, and assigns,
shall
1 Cease and desist from
(a) Discharging, suspending, or in any other manner
discriminating against its employees because of their union
activities
(b) In any other manner interfering with, restraining, or
coercing employees in the exercise of their rights to self-
organization, to form, join or assist labor organizations, to
bargain collectively through representatives of their own
choosing, and to engage in other concerted activities for
the purpose of collective bargaining or other mutual aid or
protection, or to refrain from any and all such activities
2 Take the following affirmative action necessary to
effectuate the policies of the Act
(a) Offer William Kurman and William Sanderlin
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
(b) Notify immediately the above-named individuals, if
presently serving in the Armed Forces of the United States,
of the right to full reinstatement, upon application after
discharge from the Armed Forces, in accordance with the
Selective Service Act and the Universal Military Training
and Service Act
(c) Make whole William Kurman, William Sanderlin,
Martin Russell, and Donald McNulty for any loss of pay
or any benefits they may have suffered by reason of the
Respondent's discrimination against them
(d) Preserve, and upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, timecards,
personnel records and reports, and all other records
necessary to analyze the amount of backpay due under the
terms of this Order
(e) Post at its shop and office in Salem, New Jersey,
copies of the attached notice marked "Appendix "2 Copies
of the notice, on forms provided by the Regional Director
for Region 4, after being duly signed by the Respondent's
representative, shall be posted by the Respondent immedi-
ately upon receipt thereof and be maintained by it for 60
consecutive days thereafter, in conspicuous places, includ-
ing 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
(f) Notify the Regional Director for Region 4, in writing,
E 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
974 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
within 20 days from the receipt of this Decision, what steps
the Respondent has taken to comply herewith 3
3 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 4 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
The National Labor Relations Board having found, after a
trial, that we violated the Federal law by discharging and
suspending employees because they joined a union and
voted in favor of a union
WE WILL offer William Kurman and William
Sanderlin full reinstatement, and pay them for the
earnings they lost as a result of their March 20, 1972,
discharges, plus 6-percent interest
WE WILL pay Martin Russell and Donald McNulty
for earnings lost as a result of our suspension of both of
them on March 20 and March 21, 1972, plus 6-percent
interest
WE WILL NOT discharge or discriminate against any
employees for supporting Local 592, International
Brotherhood of Electrical Workers, AFL-CIO, or any
other union
WE WILL NOT unlawfully interfere with our employ-
ees' union activities
Dated By
MANNINGTON ELECTRIC
INC
(Employer)
(Representative) (Title)
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, 1700 Bankers Securities
Building, Walnut & Juniper Streets, Philadelphia, Pennsyl-
vania 19107, Telephone 215-597-7601