Masco Products, Inc.

National Labor Relations Board - Board Decisions

Jul 26, 1972

198 N.L.R.B. 424 (N.L.R.B. 1972)

424 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Masco Products, Inc. and Richard L. Russell. Case
14-CA-6527
July 26, 1972
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS JENKINS
AND KENNEDY
On April 6, 1972, Trial Examiner Owsley Vose
issued the attached Decision in this proceeding.
Thereafter, the General Counsel filed exceptions 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 Trial
Examiner's Decision in light of the exceptions and
brief and has decided to affirm the Trial Examiner's
rulings, findings, and conclusions and to adopt his
recommended Order except as modified below.
The sole question in this case at the present stage of
this proceeding is what remedy should be ordered for
Respondent's violating Section 8(a)(3) and (1) of the
Act by discharging Richard L. Russell, the Charging
Party, in retaliation for filing a grievance with his
Union.' In his recommended Order the Trial
Examiner, for reasons that will be discussed below,
required only that Respondent grant Russell the first
job becoming available at the plant and pay him
backpay for four 37-1/2 hour weeks at the rate of
$3.60 an hour. The General Counsel contends that
this proposed remedy is not adequate. We agree.
The normal remedy for a discharge in violation of
the Act is an order requiring the unlawfully dis-
charged employee to be immediately reinstated with
full backpay. To avoid such an order, the Respon-
dent must prove that the discharged employee would
have been terminated at some later date for nondis-
criminatory reasons had he not been unlawfully
discharged.2 We find that Respondent failed to make
the necessary proof.
The only evidence Respondent offered which
might have established a specific date on which
Russell would have been laid off for economic
reasons had he not been unlawfully discharged was
the testimony of its president, Emanuel Schwartz.
Schwartz testified that he had intended to inform
Russell on October 4, 1971, the date on which he
actually discharged him, that Russell would be laid
off the following week. Although Schwartz asserted
that his determination to lay Russell off arose solely
from his desire to be able to increase the number of
i Respondent did not except to the Trial Examiner's findings, conclu-
sions, or Order The General Counsel excepted only to the proposed
working hours of the remaining employees, who were
on a 30-hour week at the time, several factors make
his testimony incredible. Respondent's employees
had been on a reduced workweek for over 2 months
during which Schwartz had not contemplated any
layoffs; Schwartz made his decision to lay Russell off
on the day after Russell complained to him that he
was being underpaid and asked for backpay; and
Schwartz laid Russell off immediately after finding a
copy of the grievance over back wages that Russell
had filed with the Union. We find, as the Trial
Examiner did, that these facts establish an unlawful
motivation behind Schwartz' decision to lay Russell
off.
Apart from Schwartz' testimony which the Trial
Examiner discredited, there is no other evidence in
the record that would establish a date on which
Russell would have been laid off absent discrimina-
tory motivation. The Trial Examiner nevertheless
found that Russell would have been laid off for
economic reasons 30 days after he was actually laid
off. The lack of evidence to support this finding is
manifested by the Trial Examiner's statement that
"[f ]ashionmg a backpay remedy in a case like this is
difficult because it is almost impossible to determine
with accuracy what course the Respondent would
have pursued had it not suddenly laid off Russell
without notice." Clearly, Respondent has not met its
burden of proving that Russell would have been
lawfully discharged at some later date had his
discriminatory discharge not occurred. We therefore
find that the normal remedy of immediate reinstate-
ment with full backpay should be granted.
THE REMEDY
As we have found that Respondent unlawfully laid
off Richard L. Russell on October 4, 1971, and that
the record herein does not establish that he would
have been laid off at any subsequent time, we shall
modify the Trial Examiner's remedy in the manner
described below.
We shall direct, in the light of our decision herein,
that Respondent offer to Richard L. Russell immedi-
ate and full reinstatement to his former job or, if that
job no longer exists, 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
thereof by payment to him of a sum of money equal
to that which he would normally have earned as
wages from the date of his discharge to the date of
Respondent's offer to reinstate him, together with
interest thereon, less net earnings, if any, during such
remedy
2 Trico Products Corp, 195 NLRB No 198
198 NLRB No. 70
MASCO PRODUCTS, INC.
period. Backpay and interest shall be computed in
the manner prescribed in F. W. Woolworth Company,
90 NLRB 289, and Isis Plumbing & Heating Co., 138
NLRB 716.
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 Trial Examiner, as hereinafter
modified, and hereby orders that Respondent,
Masco Products, Inc., St. Louis, Missouri, its officers
agents, successors, and assigns, shall take the action
set forth in the Trial Examiner's recommended
Order, as modified herein:
1. We amend the Trial Examiner's recommended
Order by substituting the following paragraph 2(a):
"(a) Offer to employee Richard L. Russell immedi-
ate and full reinstatement to his former job or, if that
job no longer exists, 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 and to
the extent provided in this section of this Decision
entitled "The Remedy."
2. Substitute the attached notice for the Trial
Examiner's notice.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a trial in which all parties had the opportunity
to present their evidence, it has been decided that we
violated the law and we have been ordered to post
this notice. We intend to carry out the Order of the
Board and abide by the following:
WE WILL NOT lay off or otherwise discriminate
against any employee for filing grievances with
his collective-bargaining representative.
WE WILL NOT threaten employees with dis-
charge, layoffs, more harsh working conditions,
or other reprisals for filing grievances with their
collective-bargaining representative.
WE WILL NOT direct or instruct our employees
not to take up grievances with their collective-
bargaining representative.
WE WILL NOT coercively question employees
425
concerning the filing of grievances or other union
matters.
WE WILL NOT in any other manner interfere
with, restrain, or coerce employees in the exercise
of the rights guaranteed in Section 7 of the Act.
WE WILL offer to Richard L. Russell immediate
and full reinstatement to his former position or, if
that position no longer exists, to a substantially
equivalent position, without prejudice to his
seniority or other rights and privileges, and we
will make him whole for any loss of pay he may
have suffered by reason of our discrimination
against him.
MASCO PRODUCTS, INC.
(Employer)
Dated By
(Representative) (Title)
We will notify immediately the above -named indi-
vidual , 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.
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 concerning this notice or compli-
ance with its provisions may be directed to the
Board's Office , 210 North 12th Boulevard, Room
448, St . Louis , Missouri 63101, Telephone
314-622-4167.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
OWSLEY VOSE, Trial Examiner: This case, tried before
me at St. Louis, Missouri, on February 7, 1972, pursuant to
a charge filed on November 12, 1971, and a complaint and
amendment to the complaint dated December 16 and 29,
1971, presents the following questions: (1) whether the
Respondent laid off Richard Russell, the Charging Party,
because he filed a grievance concerning his rate of pay with
International Association of Machinists and Aerospace
Workers, District No. 9, herein called District No. 9, in
violation of Section 8(a)(3) and (1) of the Act, and (2)
whether the Respondent threatened Russell with reprisals
because of his grievance activities and engaged in other
conduct in violation of Section 8(a)(1) of the Act.
426 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the entire record, my observation of the witness-
es,' and after due consideration of the briefs filed by the
General Counsel and the Respondent, I make the
following:
rehirings, and a provision requiring that a week's notice be
given in cases of employee terminations or that pay be
given in lieu thereof. The agreement further provided for a
guaranteed 40-hour week.
FINDINGS AND CONCLUSIONS
I. THE RESPONDENT'S BUSINESS
The Respondent is engaged in the rebuilding and sale of
rebuilt carburetors and related items at its plant in St.
Louis, Missouri. During the calendar year 1971, a
representative period, the Respondent shipped to out-of-
state destinations more than $50,000 worth of rebuilt
carburetors and related items. Upon the foregoing facts
which are admitted by the Respondent, I find that the
Respondent is engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
International Association of Machinists and Aerospace
Workers, District No. 9, is a labor organization within the
meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Layoff or Richard Russell in Violation of
Section 8(a)(3) and (1) of the Act; the Threats
Against Russell and Other Acts of Interference,
Restraint, and Coercion in Violation of Section
8(a)(1)
1. Background
At the time of Russell 's layoff on October 4, 1971, the
Respondent had six employees. Four of these men,
including Russell , were carburetor rebuilders. The other
two men disassembled carburetors and cleaned parts. They
were referred to at the trial as "teardown" men. The
Respondent's employees were covered by a single compre-
hensive collective-bargaining agreement with two unions,
District No. 9 and Automotive, Petroleum and Allied
Industries Employees Union Local 618, herein called Local
618.
Under the agreement which is effective until June 20,
1972, the Respondent's carburetor rebuilders belong to
District No. 9 and the "teardown" men belong to Local
618. The agreement provided different wage scales for the
two categories of employees, "Carburetor Rebuilding
Employees" being entitled to $3.60 per hour effective July
1, 1972, and "Disassemblers and parts cleaners" being
entitled to $3.20 per hour. The agreement also contained
seniority provisions, requiring among other things that
seniority should be taken into consideration in layoffs and
I In accordance with my announcement at the trial, I have reconsidered
my ruling rejecting Resp. Exhs. I and 3 and they are hereby received in
evidence . Resp . Exh. I consists for the most part of communications written
by Russell to District No . 9 more than a month after his layoff concerning a
settlement of his case against the Respondent . Resp. Exh. 3 is a letter
written by Russell on January 4, 1972, to his father-in -law, Foreman
Edward Gronke , at his home which is clearly offensive not only in its
content but also in the vulgar manner in which he addressed it. The
Respondent argues that these letters reflect an attitude which is wholly
2. The Respondent's supervisory hierarchy
The majority stockholder and president of the Respon-
dent is Emanuel Schwartz. Schwartz also owns another
enterprise, Liberty Auto Salvage Company, to which he
devotes most of his time. Schwartz visits the Respondent's
plant for brief periods only, once or twice a day. William
Gelfand is the general manager of the Respondent's
operations. Gelfand is also in charge of sales for the
Respondent and these duties frequently take him away
from the plant.
Under Gelfand are Lloyd Johannpeter and Edward
Gronke. Gelfand testified that Johatinpeter was the
foreman and that Gronke was his assistant. Gronke, who
does some carburetor rebuilding work, characterized
himself as a leadman. In an affidavit given to the attorney
trying the case for the General Counsel on December 2,
1971, President Schwartz admitted that "Lloyd Johannpet-
er & Ed Gronke are both foremen.... They both have
authority to assign work to the men & to see that the men
perform the work efficiently & correctly."
The Respondent does not dispute the fact that Gelfand
and Johannpeter are supervisors within the meaning of
Section 2(13) of the Act. It does suggest that Gronke does
not possess such supervisory authority. The record shows,
however, that in assigning work Gronke exercises his
independent judgment in appraising the capabilities of the
carburetor rebuilders; that he has authority to make
recommendations regarding the hiring and firing of men,
which recommendations would be given serious considera-
tion by General Manager Gelfand; and that Gronke keeps
records of the production of the carburetor rebuilders. The
record also shows that Gronke instructs and trains the men
and that he receives 50 cents per hour more than the
carburetor rebuilders. Upon these facts I conclude that
Gronke possesses supervisory authority within the meaning
of Section 2(11) of the Act and that the Respondent,
therefore, is responsible for his conduct.
3. The discharge of Richard Russell on October 4
Russell was hired by the Respondent in November 1970
upon the recommendation of Foreman Gronke, who is
Russell 's father-in-law.
Russell was first assigned to "teardown" work and was
paid the contractual wage rate for such work then in effect,
$3 per hour. On March 2, 1971, upon the retirement of an
elderly carburetor rebuilder, Russell was selected to
replace him. However, the Respondent continued to pay
inconsistent with Russell being a truthful witness and that for this reason
Russell's testimony should be rejected in its entirety. I have taken this
argument into consideration in weighing the conflicting testimony discussed
below but conclude that , while these letters do not reflect favorably upon
Russell, they do not call for the conclusion urged by the Respondent, that
Russell "fabricated" the charge which he filed with the Board and the
testimony which he gave at the trial . In fact, on the issue of the
Respondent's motivation for discharging him when it did there is no serious
controversy as to the facts.
MASCO PRODUCTS, INC.
Russell at the lower contractual rate for "teardown" work.
Russell joined District No. 9 about this time, as was
required by the union security provision of the agreement.
Russell continued doing rebuilding work at the lower
rate for about 6 months. At this time, ascertaining that the
other carburetor rebuilders were being paid 40 cents per
hour more than he was, Russell remarked about this fact to
Foreman Gronke in the presence of Foreman Johannpeter.
Gronke stated, according to Russell's testimony which I
credit, that the agreement provided for an apprentice rate
and that he was not entitled to the rebuilder's rate until
after he had worked as a rebuilder for a year. Then Russell
asked to see a copy of the agreement . Gronke stated that
President Schwartz had the contract in his office at the
Liberty Auto Salvage Company and that Russell had
better have a good reason to want to see it . Russell
informed Gronke that he was going to District No. 9 and
examine a copy of the agreement and that if what Gronke
had told him about the apprentice rate was erroneous he
was going to file a grievance. Russell credibly testified that
Gronke angrily rejoined as follows:
You better make sure you've got a grievance before you
go down there, because if you go down to the union
and file a grievance that it would upset Manny
[President Emanuel Schwartz] and he would fire me
[Russell] or lay me off.2
Such a threat unquestionably constituted interference,
restraint, and coercion, in violation of Section 8(a)(1) of the
Act.
Around September 23 Russell left for the office of
District No. 9 at 7 a.m., before going to work for the
Respondent. Charles Van Bibber, the business agent for
District No. 9 having the responsibility for servicing the
labor agreement with the Respondent, gave Russell a copy
of the agreement to look at.3 This agreement does not
provide for a different rate of pay for apprentice rebuild-
ers. Russell arrived back at the plant and started to work at
9 a.m. that day.
Later that day, around 12:30, President Schwartz called
Russell out on to the sidewalk in front of the plant and, as
Russell testified, told him as follows:
I better not hear you going to the union again, and that
if you have any grievances, you come to me. I have a
shop steward at the other place and he's nothing, all the
men come to me with their grievances, and that if you
have a grievance, you come to me and we'll work it out.
Russell replied that he would like to make the same as the
other rebuilders since he did as much work as the others.
2 Foreman Gronke admitted that he told Russell on this occasion that it
would not be a good idea to go down to the Union at the present time
because things were "rough" and that if there was any chance of a layoff he
might be the first man laid off as he was the last man hired . Even under
Gronke's version of the conversation , the statement violated Sec. 8 (a)(1) of
the Act. By linking Russell's going to the Union with the possibility of a
layoff, Gronke subtly threatened Russell with retaliatory action for
engaging in an activity protected by Sec. 7.
3 Although Van Bibber did not recall having given Russell a copy of the
contract on this occasion , Russell was so positive of his identification of
Van Bibber that I am convinced that his recollection is more accurate than
Van Bibber 's. In any event , except for credibility purposes, it is immaterial
which business agent gave Russell the agreement.
4 Schwartz denied having any such conversation with Russell . However,
it is wholly consistent with Schwartz ' layoff of Russell on October 4,
427
Schwartz, stating that he did not have the money, left the
premises.4 President Schwartz' instructions to Russell not
to go to District No. 9 with his grievances clearly infringed
a fundamental right guaranteed by the Act to employees
who have chosen union representation. Accordingly, such
conduct violated Section 8(a)(1) of the Act. Cf. Dr. J. C.
Campbell et at, 157 NLRB 1004, 1008-10, 1012.
On Thursday, September 30, Foreman Johannpeter and
Gronke told Russell it was the wage price freeze which was
responsible for Russell's not receiving the same wages as
the other rebuilders, and at the same time gave Russell a
document apparently supporting their assertion. This
prompted Russell to go to the office of District No. 9 a
second time. Russell left the plant at 2 p.m. that day and
did not return that afternoon.
The next morning, Friday, October 1, about 9 o'clock
General Manager Gelfand spoke to Russell as follows:
"You went to the union, right?" I said, "Right." He
said, "Are you going to file a grievance," and I said,
"Right, I am." Then he said, "I would like 20
carburetors a day from you now," and then he turned
around and walked away .5
While the goal set by the Respondent for its rebuilders was
20 carburetors a day, Russell's undenied testimony is that
not a single rebuilder regularly rebuilt 20 carburetors a
day. Russell's own average, according to his testimony was
13 to 15 a days In these circumstances Gelfand's 20
carburetors-a-day statement to Russell amounted to an
illegal threat to impose more arduous working conditions
upon Russell for indicating that he was going to file a
grievance with District No. 9. Furthermore, Gelfand's
questioning of Russell as to whether he was going to file a
grievance, when considered in the light of the threat which
immediately followed Russell's giving an affirmative
answer, constituted a further violation of Section 8(a)(1) of
the Act.
Shortly. after Gelfand's conversation with Russell on
Friday morning, October 1, Russell approached President
Schwartz with an inquiry about his wage rate. Schwartz
suggested that they go out on the sidewalk hi front of the
plant to discuss the matter. Russell asserted that he was
entitled to the same wage rate as the other rebuilders,
claimed that he was entitled to backpay for an unstated
period, and urged that he had a day's pay coming to him
for the holiday on his birthday which he had not been
given. Schwartz asked Russell why he had not come to him
sooner, if he believed he had an increase in pay coming to
him. Russell did not answer. Schwartz stated that he could
not worry about back wages, but that he would give
immediately upon being informed of Russell's filing of a grievance, for
Schwartz to have made such a statement. Russell impressed me as
attempting to testify truthfully, Accordingly, I do not credit Schwartz'
denial.
5 The above-quoted testimony is Russell's . Gelfand categorically denied
having this conversation with Russell . The statement attributed by Russell
to Gelfand does not seem to me to be one which an employee would be apt
to fabricate. President Schwartz' own testimony and conduct establishes
that he resented Russell 's going to District No. 9 with a grievance . Gelfand's
statement is wholly consistent with such an attitude . Under all the
circumstances, I credit Russell 's testimony above-quoted.
8 Although as found above, Foreman Gronke keeps productions records
for all the rebuilders, these records were not offered in refutation of
Russell 's testimony.
428 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Russell the regular rebuilders ' wages commencing on the
following Monday.?
At 2 p.m. on Friday, October 1, Russell notified
Foreman Johannpeter that he was going down to the office
of District No. 9 ditd-fil ievance. Johannpeter said
"O.K." At the union office Russell filled out the grievance
form in which he claimed that he was entitled under the
agreement to higher hourly wages, backpay, and birthday
holiday pay. Also included in the grievance was a reference
to the 40-hour workweek provision. At the Distract No. 9
office Russell was instructed to give the foreman a copy of
the grievance when he returned to work. Russell did not go
back to work that Friday afternoon.
On the following Monday, October 4, Russell reported
for work at 8 a.m. as usual. Russell gave Foreman
Johannpeter a copy of the grievance. At 9 a.m. President
Schwartz summoned Russell from his workbench to the
sidewalk in front of the office. Schwartz, holding the copy
of the grievance in his hand, told Russell that he was going
to have to lay him off, explaining that he did not have
enough money. Schwartz then had Foreman Gronke,
Russell's father-in-law, sent out in front. After Gronke
arrived, Schwartz told him that he was going to have to lay
Russell off and that he hoped that there would be no hard
feelings. Gronke replied, as Russell testified, that there
were "no hard feelings at all." Then Gronke said to
Russell, "Well you done this to yourself, buddy boy, I tried
to warn you."8 No mention was made by Schwartz that
Russell would be given a week's pay in lieu of the week's
notice required by the union agreement .9
The very day that Russell was laid off the remaining
employees were restored to a 40-hour workweek.
4. The Respondent's contentions concerning
Russell 's layoff; conclusions
The Respondent contends primarily that Russell was laid
off for economic reasons, although it in effect concedes
that the layoff was accelerated by I week because of
Russell's filing of the grievance with District No. 9.
President Schwartz testified that over the weekend, after
his discussion with Russell on Friday, October 1, he
decided because of economic conditions to give notice to
Russell , on Monday morning, October 4, that he would be
laid off a week later, but that he "might have pushed it up
an extra week . . . when [he] saw the grievance." 10
Schwartz also testified that he selected Russell because he
had the least seniority of any employee at the plant, and
that since the layoff of Russell he had not hired any
employee to replace Russell.
Regarding the Respondent's claim of economic necessi-
ty, Schwartz testified that the Respondent's business had
been in a slump during all of 1971. Schwartz, however, did
7 The foregoing findings are based on the testimony of President
Schwartz Russell denied having any conversation with Schwartz on
October I However, I believe Russell's recollection is faulty in this regard
B Gronke's version of this statement is as follows "Richard Russell
started all of it , he can end it."
9 While at first Schwartz testified that he told Russell at the time of the
layoff that he was going to pay him for the full week, Schwartz later
admitted that he was sure that Russell did not know he was going to be
offered this pay when he and Russell parted on October 4
not produce any monthly sales records to substantiate his
testimony in this regard.ii However, the Respondent did
furnish records prepared by a certified public accountant
which indicate that the Respondent 's financial position
deteriorated during 1971, that it suffered a net operating
loss of $2,148.98 for the year, and that it experienced a
substantial net decrease in working capital. The Respon-
dent also produced records showing that for 2 weeks in
July 1971, the whole month of August, and the first 2
weeks in September the employees' hours were reduced
from 40 per week to 37 1 /2 hours, and in the last 2 weeks in
September the employees hours were further reduced to 30
hours per week.
In further support of the Respondent's contention that
Russell's layoff was economically motivated Schwartz
testified that his customers were very slow in meeting their
obligations and that consequently at times he had extreme
difficulty in meeting the Respondent's payroll.
Considering all of the facts of the case, I am convinced
that Schwartz' layoff of Russell on October 4 was
prompted by his resentment of the fact that Russell had
filed a grievance with District No. 9. Not only did
Schwartz virtually admit as much but he also testified that
he was "pretty peeved" at Russell's conduct. Furthermore,
Schwartz' action in hastily removing Russell from the
payroll without giving him an opportunity to work out the
week, as he assertedly had decided to do over the weekend,
and without offering Russell a week's pay in lieu of notice,
as he was obliged to do under the labor agreement, clearly
indicates that much more was involved than a layoff for
economic reasons. I conclude that Russell's layoff was
motivated by prohibited considerations and that it violated
Section 8(a)(3) and (1) of the Act.
However, I am equally persuaded that the Respondent
was in financial difficulties and that a reduction in force
was inevitable. The reduced workweek, including the
reduction to 30 hours a week which the employees
consented to in writing shortly before Russell's layoff,
indicates the employees' recognition that the Respondent
was having serious problems. With the labor agreement
providing for a guaranteed 40-hour week and District No.
9 alerted to the fact that the Respondent was not observing
this contractual requirement, it was only a matter of time
before the Respondent would be required to reduce its
force so as to enable it to come into compliance with the
40-hour week guarantee. Russell, as the junior employee on
the Respondent's work force, would be the employee
affected under the seniority clause of the labor agreement.
The fact of the Respondent's financial difficulties and the
necessity for a reduction-in-force will be taken into
consideration in framing the remedy.
10 As found above, the labor agreement provided for a week's notice, or
pay in lieu thereof , in case of employee terminations
11 The Respondent did supply monthly sales figures for the months of
October 1971 through January 1972 However, these figures are not helpful
in that they cover a period after the decision to lay off Russell was made
and no figures for earlier months , to afford a basis for comparison, were
supplied In any event, the figures as to sales for October through December
1971 average about $9 ,600 a month, which was the average monthly sales
volume for all 12 months in 1971
MASCO PRODUCTS, INC. 429
CONCLUSIONS OF LAW
1. By threatening Richard Russell with discharge,
layoff, and more arduous working conditions if he filed a
grievance, by instructing Russell not to go to District No. 9
with a grievance but rather to take any grievance directly
to the Respondent's president, and by coercively question-
ing Russell as to whether he was going to file a grievance,
the Respondent has interfered with, restrained, and
coerced its employees in the exercise of the rights
guaranteed in Section 7 of the Act, thereby violating
Section 8(a)(1) of the Act.
2. By laying off Richard Russell for filing a grievance
with District No. 9, the Respondent has engaged in
discrimination in regard to tenure of employment, thereby
discouraging membership in District No. 9 in violation of
Section 8(a)(3) and (1) of the Act.
3. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
The Remedy
Having found that the Respondent has engaged in unfair
labor practices, my recommended Order will direct that the
Respondent cease and desist therefrom and take certain
affirmative action designed to effectuate the policies of the
Act.
I have found that the Respondent laid off Richard
Russell in violation of the Act and also that because of
economic conditions at the plant Russell would have been
laid off at some later date. To remedy this unlawful layoff
my recommended Order will require that the Respondent
reinstate Russell to the first job becoming available at the
plant after his layoff, dismissing if necessary to make room
for Russell, any employee hired since the date of Russell's
layoff. If the first job becoming available at the plant is one
as a "teardown" man, Russell shall be offered this job, but
at the rate of pay for "teardown" men. Whether or not
Russell refuses an offer of a job as "teardown" man, he
shall nevertheless be entitled to an offer of the first job
becoming available as a carburetor rebuilder. Any offer of
reinstatement made to Russell shall be without prejudice to
his seniority and other rights and privileges.
Should the Respondent fail to offer Russell the first job
becoming available after his layoff, Russell shall be
entitled to backpay at the rate of the job becoming
available commencing with the date the job became
available and continuing until the date the Respondent
offers Russell reinstatement, less Russell's net interim
earnings.
Fashioning a backpay remedy in a case like this is
difficult because it is almost impossible to determine with
accuracy what course the Respondent would have pursued
had it not suddenly laid off Russell without notice.
President Schwartz asserts that Russell would have been
laid off a week later, in any event. Of this I am doubtful.
Prior to Russell's filing of the grievance, although the
Respondent's financial situation remained about the same,
12 In the event no exceptions are filed to this recommended Order as
provided in 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. 10(c) of the Act and in Sec. 102.48 of the Rules
Schwartz had let the situation drift for many months
without resorting to a reduction-in-force. There are certain
factors which limited Schwartz' freedom of action, howev-
er. Schwartz could not continue ignoring the guaranteed
40-hour week provision of the labor agreement indefinitely,
particularly since District No. 9 had been made aware in
connection with the filing of Russell's grievance that the
employees were currently on a 30-hour week. Business
Agent Van Bibber testified that, upon a request from the
employer, District No. 9 would sanction a departure from
the contractual requirement for a 30-day period, with the
possibility of an extension for another 30 days. Van Bibber
further testified that at the option of the employer, he
could at any time resort to a reduction-in-force, laying off
the junior employees, in order to make it possible to give
the remaining employees 40 hours a week.
In this kind of a situation, in my opinion, it is
appropriate to arrive at an approximate remedy. In view of
all the facts of the case it is my opinion that a reasonable
remedy would be one based on the assumption that the
Respondent would have kept Russell on the payroll for 4
additional weeks of 37 1 /2 hours.
The 4-week provision is a compromise, taking into
consideration, on the one hand, the fact that under the
labor agreement the Respondent could resort to a
reduction-in-force at any time to bring itself into compli-
ance with the 40-hour week requirement and, on the other
hand, the fact that the Respondent might have been
granted up to 60 days by District No. 9 to bring itself into
compliance.
In view of the fact that immediately after Russell's layoff
the Respondent restored the remaining five employees to a
full 40-hour workweek, I do not believe it reasonable to
assume that had Russell not been laid off that the
Respondent would have kept all the employees on a 30-
hour workweek any longer. Six employees working a 30-
hour week would not have been able to produce the
volume of work actually put out by the five employees who
worked a 40-hour week after the layoff. In addition, the 30-
hour workweek resulted in such a drastic reduction in the
employees' pay that the Respondent could not have
expected them to put up with his contractual violation
much longer.
For the foregoing reasons I find that Russell is entitled to
backpay calculated on the basis of 4 37 1/2-hour weeks at
$3.60 per hour, less his net interim earnings . Russell's
backpay shall include interest at 6 percent per annum. Isis
Plumbing & Heating Co., 138 NLRB 716.
Upon the foregoing findings and conclusions and the
entire record, and pursuant to Section 10(c) of the Act,
there is hereby issued the following recommended:
ORDER 12
The Respondent, Masco Products, Inc., St. Louis,
Missouri, its officers, agents , successors , and assigns , shall:
1. Cease and desist from:
(a) Discouraging membership in International Associa-
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.
430 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion of Machinists and Aerospace Workers District No. 9,
or any other labor organization, by laying off or in any
other manner discriminating against employees in regard
to their hire or tenure of employment or any terms or
conditions of employment.
(b) Threatening employees with discharge, layoff, more
arduous working conditions or other reprisals for filing
grievances with their collective-bargaining representative.
(c) Directing or instructing employees not to take up
grievances with their collective-bargaining representative.
(d) Coercively questioning employees concerning the
filing of grievances of other union matters.
(e) In any other manner interfering with, restraining, or
coercing its employees in the exercise of the rights
guranteed in Section 7 of the Act.
2. Take the following affirmative action which it is
found will effectuate the policies of the Act:
(a) Offer to Richard Russell reinstatement to the first
position as either "teardown" man or as carburetor
rebuilder becoming available after Russell's layoff, without
prejudice to his seniority and other rights and privileges,
and pay him backpay, all as provided in the section of this
Decision entitled "The Remedy."
(b) Notify Richard Russell, if presently serving in the
Armed Forces of the United States, of his right to'
reinstatement as provided herein 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) 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, as well as all other records
necessary to analyze and compute the amount of backpay
due under the terms of this recommended Order.
(d) Post at its plant at St. Louis, Missouri, copies of the
attached notice marked "Appendix." 13 Copies of said
notice, on forms provided by the Regional Director for
Region 14, after being duly signed by the Respondent's
representatives, shall be posted by the Respondent imme-
diately 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.
(e) Notify the Regional Director for Region 14, in
writing, within 20 days from the receipt of this Decision,
what steps have been taken to comply herewith. i4 i
13 In the event that the Board's Order is enforced by a Judgment of a 14 In the event that this recommended Order is adopted by the Board
United States Court of Appeals, the words in the notice reading "Posted by after exceptions have been filed, this provision shall be modified to read.
Order of the National Labor Relations Board" shall be changed to read "Notify the Regional Director for Region 14, in writing, within 20 days
"Posted Pursuant to a Judgment of the United States Court of Appeals from the date of this Order, what steps the Respondent has taken to comply
Enforcing an Order of the National Labor Relations Board " herewith "