Metz Metallurgical, Inc.

National Labor Relations Board - Board Decisions

Jul 11, 1985

275 N.L.R.B. 1045 (N.L.R.B. 1985)

METZ METALLURGICAL, INC.
Metz Metallurgical , Inc. and James Tubertini. Case
22-CA-13208
11 July 1985
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
On 17 January 1985 Administrative Law Judge
Steven Davis issued the attached decision. The
General Counsel filed exceptions and a supporting
brief, and the Respondent filed a reply brief.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings, and
conclusions and to adopt the recommended Order.
ORDER
The recommended Order- of the administrative
law judge is adopted and the complaint is dis-
missed.
DECISION
STATEMENT OF-THE CASE
STEVEN DAVIS, Administrative Law Judge. Based on
a charge and a first amended charge filed by James Tu-
bertini on May 2 and June 11, 1984,1 respectively, a
complaint and notice of hearing was issued on June 12
by Region 22 of the National Labor Relations Board
The complaint- alleges that on about March 12 Metz
Metallurgical, Inc. (Respondent) refused to issue a letter
verifying employment to Turbertmi because he filed a
charge in a prior case, in violation of Section 8(a)(1) and
(4) of the Act Respondent's answer denied the material
allegations of the complaint, and the case was heard
before me on September 19 in Newark, New Jersey
On the entire record and after consideration of the
briefs filed by the General Counsel and Respondent, I
make the following
FINDINGS OF THE FACT
1. JURISDICTION
Respondent, a New Jersey corporation, having its
office and place of business in South Plainfield, New
Jersey, is engaged in the manufacture and nonretail sale
and distribution of metal products. It annually purchases
and receives products, goods, and materials valued in
excess of $50,000 directly from points outside New
Jersey Respondent admits and I find that it is an em-
ployer engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the-Act.
' All dates herein are in 1984 unless otherwise stated
275 NLRB No. 149
II. ALLEGED UNFAIR LABOR PRACTICES
1045
A. The General Counsel's Case
Tubertini, a maintenance mechanic, has been employed
by Respondent since October 1981:
He was active in the attempt by Local 389, Service
Employees International Union to organize Respondent's
employees which began in late September or early Octo-
ber 1982, and he testified at a Board hearing subsequent
to the election that was conducted.
On February 13, Tubertini filed a charge in Case 22-
CA-12057 against Respondent which alleged that since
about September 1, 1983, it harassed him and imposed
more onerous work assignments on him-because he sup-
ported and engaged in activities on behalf of Local 389.
Sometime prior to March 12, Tubertini. accepted an
offer of employment by another company. A require-
ment of his new employment was that he needed 8 years'
experience as a skilled trades mechanic,, and had to
verify such employment by means of a letter from Re-
spondent. 2
On March 12, Tubertini presented his letter of resigna-
tion of Noel Mazar, Respondent's supervisor.3 Mazar ex=
pressed surprise that Tubertini was leaving and wished
him well. Tubertini told Mazar that he needed a letter of
recommendation, which should include his position and
dates of employment, and Mazar agreed to supply it.
That evening Tubertini spoke to the Board agent and
decided to withdraw the charge- then pending in Case
22-CA-13057.
The following morning, March 13, Tubertini met with
William Lyons, Respondent's industrial relations manag-
er. No one else was present. Lyons Tubertini was leav-
ing. Tubertini replied that it was a difficult decision, but
was making the move because he obtained a better posi-
tion with more money and benefits, and added that he
was sorry if he "bruised any egos" -during the Union's
organizing campaign. Lyons said he--understood. Tuber-
tini then inquired whether Mazar mentioned that he
needed a "letter." Lyons replied the he had, and re-
marked, "The only problem I would have with that is
any charges that you have with the-Board." Tubertini
answered that he had spoken with the Board agent the
previous night and decided to withdraw the charge.
Lyons then said. "Ok, fine, no problem," and Lyons said
he would speak with the agent or his attorney
The next day, March 12, Tubertini went to Lyons'
office and learned that he was absent due to illness. He
asked Lyons' secretary if a letter had been prepared for
him and she said that it had not. Tubertini then asked
Mazar if he ' typed the letter. Mazar replied that -the
matter was out of his hands inasmuch as Lyons was-
han-dling it.
The following day, March 15, Tubertini went to
Lyons' office and gave him a covering letter and a
Board request for withdrawal form. Lyons made a copy
of the covering letter. Tubertini filled out and signed the
2 Tubertmi's total work experience at Respondent and at two prior em-
ployers totaled just over 8 years
9 The letter stated that Tubertim's last day, of employment would be
March 23
1046 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
request for-withdrawal, put it in an envelope, and gave it
to Lyons who mailed it Tubertini requested his letter of
recommendation and Lyons said "Okay" and asked him
to return later that day Tubertini did so and was then
given the letter, dated March 15, which set forth his
social security number, position, and dates of employ-
ment.
- On his last day of employment Tubertini told -three
employees of the above events.
B. Respondent's Case
Mazar testified, in agreement with Tubertini, that he
was given his letter of resignation on March 12.
Mazar stated that he gave the letter to Lyons and told
him that Tubertini wanted a letter of recommendation
Lyons told - Mazar that it was Respondent's policy to
provide letters of reference and not letters of recommen-
dation. The reason for this is that a letter of reference,
containing the position and dates of employment, provid-
ed objective; indisputable facts, whereas a letter of rec-
ommendation, containing an appraisal of the employee's
work and an endorsement of his worth, was subjective,
conjectural, and provided a basis for liability if the rec-
ommendation was not accurate.
Mazar stated, and Tubertini -denied, that Mazar told
him later that day that Respondent could provide a letter
of reference only and explained the difference between
the two types of letters. According to Mazar, on being
given this information, Tubertini expressed no surprise
and "indicated acceptance" that he would receive a
letter-of reference.
Lyons testified that, on March 13, Tubertini entered
his office and asked if he heard that he was resigning
Lyons said that he,had, and was "shocked." Tubertini
explained that-his new job was closer to home and pro-
vided higher pay. Lyons did not recall if Tubertini asked
him then for a letter of reference
According to Mazar, Tubertini requested a meeting
"because of the problem with the:letter and the letter not
being a letter of recommendation," and a meeting was
held on March 13 or 14 with Lyons, Mazar, and Tuber-
tini present At the meeting, Lyons explained that a letter
of reference only could be given, and he mentioned the
difference between that and a letter of recommendation.
They also- discussed Tubertini's reasons for leaving. Tu-
bertini then mentioned that he had withdrawn the pend-
ing charge. Lyons and Mazar were "surprised" at hear-
ing that and Lyons stated that he probably displayed his
"exuberance and joy," because a charge filed against it
cost Respondent much money, time, and effort.
Lyons, who conceded that letters of reference were
given routinely on request to departing employees,
denied conditioning the issuance of such a letter on Tu-
bertini's withdrawal of his charge. However, it must be
noted that Lyons did not specifically deny the critical
remark attributed to him: "The only problem I would
have with that [the letter of reference] is any- charges
that you have with the Board." Moreover, Lyons also
did not testify- about and thus did not specifically deny
Tubertini's testimony that he gave Lyons the request for
withdrawal on March 15. It is undisputed that the letter
of reference was given on March 15.
C. Credibility Resolutions -
Two clearly contradictory versions of the relatively
simple series of encounters appears here.
It is undisputed that Tubertmi submitted his letter of
resignation to- Mazar on March 12 and immediately
asked for a letter of recommendation.
Tubertini• asserts that (a) on March 12, he requested a
"letter" from Lyons who said that "the only problem I
would have with that is any charges that you have with
the Board;" and (b) on March 15 completed a request for
withdrawal-in front of Lyons who gave him the letter of
reference later that day. Tubertini denies that any expla-
nation was given to him about a difference between a
letter of reference and recommendation.
Lyons, who did not specifically deny the March 13
remark attributed to him, concedes that he spoke with
Tubertini that day, but only when he came in to an-
nounce his resignation. Lyons and Mazar assert that an
issue was raised by Tubertini concerning the type of
letter he would receive which prompted him to request a
meeting at which. he announced that he had withdrawn
the charge
I base my finding that Tubertini's version is to be be-
lieved about the foregoing facts not on demeanor, as all
three witnesses testified in a believable, straightforward
manner, but rather on the inherent probability and rea-
sonable likelihood that the material events occurred in
the manner testified to by Tubertini.¢
Tubertini was understandably anxious to obtain a letter
which would set forth his position and dates of employ-
ment because he needed to demonstrate to his new em-
ployer 8 'years of experience. He accordingly asked
Mazar for such a letter on March 12 on presenting his
letter of resignation. He waited 1 day and asked Lyons
for the letter on March 13 It was understandable that
Tubertini would be impatient about the letter inasmuch
as he was a known union activist and had already sub-
mitted his resignation Thus, on March 13, Tubertini re-
quested the letter of Lyons who then said that "the only
problem I would have with that is any charges that you
have with the Board." Lyons did not specifically deny
that statement, and it is likely that a man of Lyons' con-
siderable experience in labor relations5 would have ex-
pected a quid pro quo in return for the letter of refer-
ence.6 This is especially true where Lyons conceded that
he probably showed his "exuberance and joy" upon
hearing that Tubertini would -.withdraw the charge
Lyons' reasonable response, as testified to Tubertini; that
he would check with the Board agent or his attorney,
* Respondent's request, that I discredit Tubertmi based, in part, on his
previous filing and withdrawal of allegedly unmeritorious charges, is
denied because "discrediting a charging party's testimony for this reason
impinges upon the statutory right of individuals to file (or refile) charges
under Section 10(b) of the Act and discourages voluntary dispositions of
such charges " Dews Construction Corp, 231 NLRB 182 fn 1 (1977)
6 Prior to joining Respondent, he was for 11 years the'director of the
labor division of a major International Brotherhood of Teamsters Local
union
6 This is not to say that such a quid pro quo amounted to a condition,
as alleged by the General Counsel On the contrary, I find that issuance
of the letter of reference was not conditioned on the withdrawal of the
charge - -
METZ METALLURGICAL, INC
makes Tubertmi's testimony more reliable and believable,
given Lyons' statement that a charge cost Respondent
much time, effort, and money. It would be likely `that
Lyons would want to clear up pending matters, and thus
contact official sources about Tubertini's withdrawal of
his charge.
I reject Respondent's testimony that an issue was
raised concerning a letter of reference or recommenda=
tion. On March 12, Tubertini requested a letter which set
forth his position and dates of employ-clearly a letter of
reference which Respondent routinely issues on request.
Even if Mazar's testimony is to • believed that he ex-
plained the difference between the two letters to Tuber-
tini that day according to Mazar,: Tubertini expressed no
surprise and was satisfied with a letter of reference.
There was thus no reason for Tubertim to request a
meeting on March 13 or 14 because of a "problem" with
the type of letter he would receive as asserted by Mazar.
Moreover, if Tubertim had wanted a letter of recommen-
dation it seems likely that he would have (a) told that to
Mazar at Mazar's second alleged talk with him on March
12 or (b) raised the issue with Lyons at their 'conversa-
tion on March 13. It would ' also be likely that Lyons'
would have mentioned it to Tubertim at their private
conversation on March 13. That none of these events oc-
curred'leads me to conclude that (a) no issue was raised
concerning the type of letter Tubertim would receive be-
cause he was at once satisfied that a letter of reference
would meet the new employer's requirements, (b) no
meeting was requested by Tubertim to discuss a "prob-
lem" with the letter, and (c) no meeting was held on
March 12 or 14 as testified to by Lyons and Mazar at
which Tubertim volunteered that he had withdrawn'his
charge. I also note that Lyons did not specifically deny
the March 15 events at-which Lyons copied the cover-
ing letter and mailed a request for withdrawal which Tu-
bertini signed in his presence.
I accordingly find, as testified to by Tubertini, whose
testimony I credit, that (a) on March 12, on requesting a
letter of reference, Lyons told him that "the only prob-
lem I would have with that is any charges that you have
with the Board," and that (b) on March 15, Tubertini
signed a request for withdrawal form in Lyon's presence,
which Lyons mailed.
D. Analysis and Discussion
The complaint alleges that on March 13 Respondent
refused to issue a letter verifying employment to Tuber-
tini. because he filed a charge in Case 22-CA-13057.
However, the case was tried and briefed on a different
theory-that Respondent unlawfully conditioned the is-
suance of such a letter on Tubertini's withdrawal of the
charge 7
I conclude that the General Counsel has not set forth
a prima facie case under either theory even crediting Tu-
bertini's version of the facts:
Under the first theory 'there was no refusal to supply
the letter. When Tubertini first requested such a letter on
March 12, Supervisor Mazar immediately agreed that it
Interestingly, the charge and amended charge reflect this latter
theory
1047
would be supplied, and a satisfactory letter was given to
him 3 days later on March 15. There was no showing
that 'the 3-day, delay was because Tubertim had • filed the
charge 1 month earlier, on February 13. And-there-was
similarly no proof that Respondent harbored any animos-
ity toward him for filling the charge. In fact, Respondent
had completed its investigation of the charge and it ap-
parently looked forward to proving that the charge
lached merit. Lyon's statement that the "only problem I
have with that is any charges that you have with the
Board," do not constitute a refusal to provide the letter,
and even according to Tubertini's testimony when he
mentioned that he decided to withdraw the charge,
Lyons said, "Well okay, fine, no problem." -
Concerning the second theory, that Respondent un-
lawfully conditioned the issuance of a letter of reference
on the withdrawal of the charge, I can-find no evidence
that any such condition .was made by Respondent. As
noted above, when Tubertini. first requested a letter set-
ting forth his position and dates of employment, Mazar
at once,agreed that it would be provided. The following
day, when Tubertini asked Lyons if he knew of his're-
quest for..the letter, Lyons responded that "the only
problem I would have with that is any charges that you
have with the Board." This is not a statement that a
letter would not be issued unless the charge, was with-
drawn. This was simply an expression by Lyons that he
desired to resolve all pending matters on Tubertini's
leaving Respondent. Tubertini, too, wished to do the
same . Prior to his meeting with Lyons he had already
decided to withdraw his charge, - and at the meeting
apologized,to Lyons for "bruising any egos" during the
organizational drive. Moreover, immediately on hearing
Lyons' statement about the charge, he advised him that
he had already decided to withdraw it. Thus, Tubertini
had, at the time Lyons asked. about the charge, already
made a decision and commitment, without any sugges-
tion by Respondent, to withdraw his charge. Only the
mechanical act of filing the request for withdrawal re-
mained, which Tubertini did on March 15-in front of
Lyons, apparently to show his good faith that he had in
fact decided to withdraw it.
It is clear, as I have found above, that Lyons did seek
a quid pro quo in this remark to Tubertini-he sought to
have the charge withdrawn in exchange for the letter of
reference. However, I cannot find in this that he condi-
tioned the issuance of the letter on the withdrawal of the
charge. Tubertini, too, wanted the letter in return for his
withdrawal of the charge, and he had already decided to
withdraw it when he spoke with Lyons. Thus, both par-
ties mutually desired a cessation of hostilities and pro-
ceedings on Tubertini's resignation. , t
I reject the General Counsel's argument that a condi-
tion was proven because Tubertini 'was made to wait
until March 15 for-the letter and was given it only .when
he produce& the withdrawal form. There has been ; no
evidence why Tubertini brought the form, to work and
signed it in front of Lyons, and no connection has thus
been proven to the effect that the letter would not have •
been issued but for Tubertini's signing the withdrawal -
form in front of Lyons. Under these circumstances, I be-
1048 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
lieve that Tubertini undertook this procedure to -prove
that his work was good that he had decided to withdraw
the charge, and was part of his common and reciprocal
purpose-'with Lyons to resolve all outstanding matters
before he left Respondent.
Two of the cases cited by the General Counsel are in-
apposite since they involve an unequivocal condition, not
present here, by the respondents that unless the charging
parties withdrew their charges, they would not be rein-
stated. Everage Bros. Market, 206 NLRB 593, 596 (1973);
Amsterdam Wrecking ' & Salvage Co., 196 NLRB 113,
115-116 (1972). The third case, Alfa Leisure, Inc., 251
NLRB 691, 705 (1980), involved an offer of a letter by
respondent to the brother of the charging party. The
letter, containing a guarantee of a job which would
enable the brother to be eligible for parole from jail, was
conditioned on the , charging party withdrawing his
charge. The Board found that the offer of the letter was
an unlawful promise of a benefit, and conditioning it on
the withdrawal of the charge limited the charging party's
"right of unfettered access "to the Board's processes."
Alfa is therefore distinguishable from the instant case be-
cause here (a) Respondent did not condition the letter on
the charge's withdrawal, (b) this was not a promise. of
benefit, and (c) Tubertini's right of access to the Board's
processes was unimpaired by Lyons' statement on March
13 because by then lie had already =decided to withdraw
his charge.
In conclusion, I' find that (a) on March 12 Respondent,
by Mazar, agreed to supply Tubertini with the letter that
he requested, even before any mention of the charge, and
later that day, Tubertini, on his own, decided to with-
draw his charge, (b)' on March 13 -Lyons ' sought to
obtain the withdrawal of the charge in exchange for-the
letter of reference and on that day Lyons and Tubertini
mutually understood ' that they each were obtaining
something each-desired, and (c) on March 15 Tubertini
completed the mechanical, ministerial process of signing
the withdrawal form and received the letter of reference.
Under these circumstances, I cannot find 'that they
each were obtaining something each desired, and (c) on
March Tubertini• completed the mechanical, ministerial
process of signing the withdrawal form and received the
letter of reference. _
Under these circumstances, I cannot find that Re-
spondent refused to issue the letter of reference because
Tubertini filed, the previous charge, or that Respondent
conditioned the issuance . of such letter on the withdrawal
by Tubertini of his charge
I will accordingly recommend that the complaint. be
dismissed in its entirety
CONCLUSIONS OF LAW
1. Respondent-Metz Metallurgical , Inc. is an employer
engaged in commerce within the meaning of Section
2(2), (6)', and (7) of the Act
2. Respondent has not engaged in the violations of the
Act.as alleged in the complaint
3.' Respondent has not unlawfully conditioned a letter
verifying the employment of James Tubertini on his
withdrawal of the charge in Case 22-CA-13057.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed". ' .
ORDER
The complaint is dismissed in its entirety.
s If no exceptions are filed as provided by Sec 102 46 of the Board's
Rules and - Regulations, the findings, conclusions, and , recommended
Order shall, as provided in Sec 102 48 of the Rules, be adopted by'the
Board and all objections to them shall be deemed waived for all pur-
poses