Modulus Corp.

National Labor Relations Board - Board Decisions

Jun 15, 1978

236 N.L.R.B. 967 (N.L.R.B. 1978)

Modulus Corporation and Raymond Nicholson, Jr.
Case 6-CA-10431
June 15, 1978
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS JENKINS
AND MURPHY
On March 13, 1978, Administrative Law Judge
Leonard M. Wagman issued the attached Decision in
this proceeding. Thereafter, Respondent filed excep-
tions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings,' and
conclusions 2 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 Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the Respondent, Modulus Corporation,
Mount Pleasant, Pennsylvania, its officers, agents,
successors, and assigns, shall take the action set forth
in said recommended Order, except that the attached
notice is substituted for that of the Administrative
Law Judge.
' The date "June 27, 1977" in the remedy section of the Administrative
Law Judge's Decision appears to be an inadvertent error. As the record
discloses that the telephone conversation between Henderson and Balog
occurred on the last Tuesday in June, the date is hereby corrected to read
June 28, 1977.
2 Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to over-
rule an Administrative Law Judge's resolutions with respect to credibility
unless the clear preponderance of all of the relevant evidence convinces us
that the resolutions are incorrect. Standard Dry Wall Products. Inc., 91
NLRB 544 (1950), enfd. 188 F. 2d 362 (C.A. 3, 1951) We have carefully
examined the record and find no basis for reversing his findings.
MODULUS CORPORATION
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT refuse to reinstate or otherwise
discriminate against any employee because he or
she filed charges or permitted his or her name to
appear on charges filed under the National La-
bor Relations Act.
WE WIL L NOT warn employees that they will be
discharged or otherwise suffer discrimination
with regard to their employment, because they
filed unfair labor practice charges against us or
because their names appear on an unfair labor
practice charge filed against us.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce employees in
the exercise of the rights guaranteed them in
Section 7 of the Act.
WE WILL offer George Henderson immediate
and full reinstatement to his former position or,
if that position no longer exists, to a substantial-
ly equivalent position, without prejudice to his
seniority or any other rights and privileges previ-
ously enjoyed and WE WILL make him whole for
any loss of pay he may have suffered by reason
of the discrimination against him, plus interest.
MUDULUS CORPORATION
DECISION
STATEMENT OF THE CASE
LEONARD M WAGMAN. Administrative Law Judge: This
matter was heard on January 19, 1978, in Pittsburgh, Penn-
sylvania, upon a charge filed on July 29, 1977, by Ray-
mond Nicholson, Jr., an individual, and a complaint issued
by the Acting Regional Director for Region 6 of the Na-
tional Labor Relations Board on October 26. 1977. The
complaint alleges that Modulus Corporation, referred to
below as the Company, violated Section 8(a)(1) and (4) of
the Act by telling employees that the Company would not
hire them because an unfair labor practice charge had been
filed on their behalf with the National Labor Relations
Board, and by failing and refusing to hire George Hender-
son because an unfair labor charge had been filed on his
behalf against the Company, and because of his participa-
tion as a witness in the investigation of that charge. Re-
spondent denied commiting the alleged unfair labor prac-
tices.
Upon the entire record in this case, including my obser-
vation of the witnesses and their demeanor, and after due
consideration of the briefs filed by the parties, I make the
following:
236 NLRB No. 116
967
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
FINDINGS OF FACT
1. RESPONDENITS BUSINESS
The Company, a Delaware corporation, manufactures
and distributes industrial fasteners. At its plant, located at
Mt. Pleasant, Pennsylvania, the Company annually re-
ceives goods and materials valued in excess of $50,000, di-
rectly from sources outside the Commonwealth of Pennsyl-
vania for use at that facility. The Company annually ships
goods and materials values in excess of $50,000, from its
Mt. Pleasant plant directly to points outside Pennsylvania.
The Company admitted and I find that the Company is an
employer engaged in commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
II THE UNFAIR LABOR PRACTICES
A. The Facts
On March 4, 1977, an unfair labor practice charge was
filed at the Board's Pittsburgh, Pennsylvania, office, in
Case 6-CA-10002, alleging that "[o]n or about October
28, 1977, [sic] " the Company had "discriminatorily laid off
and subsequently discharged" five employees, including
George Henderson, because of their union activity. There-
after, on May 31, 1977, the Regional Director approved a
request to withdraw the charge.
The alleged violations arose out of the unfruitful at-
tempts of George Henderson, a laid-off employee named
in the withdrawn unfair labor practice charge, to obtain
reinstatement. The Company first employed Henderson in
June 1969. On October 28, 1976, the Company laid him
off.
Henderson's first attempt at reinstatement occurred in
December 1976, during a visit to the Company. Henderson
made his request to Plant Manager Charles Thomas.
Thomas responded that there was no work available, due
to economic conditions. During the same visit, Henderson
repeated his request to a number of other supervisors and
received the same response.
Henderson's next attempt at reinstatement occurred ear-
ly in June 1977. Henderson telephoned Plant Manager
Thomas' office and was told by Thomas' secretary, Sandy
Scalone, that Thomas was busy, but that she would talk to
Thomas and "try to get back to [Henderson] today or the
first thing tomorrow." That same afternoon, Scalone called
Henderson, told him that she had talked to Thomas and
that Thomas had requested that Henderson write a letter to
Thomas showing his sincerity about coming back. Hender-
son honored the request.
The following week, Henderson telephoned Thomas' of-
fice and encountered Scalone. After acknowledging that
Thomas had received Henderson's letter, she asked Hlen-
derson to wait "a couple of days" for a response.
Henderson waited until the last week of June to inquire
as to the plight of his request for reinstatement. He called
Thomas' office again. Henderson asked to speak to
Thomas. Scalone put him on hold, returned, and said that
he could not speak to Thomas, adding "he won't talk to
you, but he told me to tell you this, he asked two other
supervisors and they refused to bring you back." Hender-
son responded, "I must have a lot of enemies." Scalone
replied:
George, probably if you didn't go to the Labor Rela-
tions Board, you might have had a better chance. If
you don't hear from us in 3 days, forget it, look for a
job elsewhere because if you would come back here,
you would be under a lot of pressure.
Undaunted, Henderson continued to press his need for em-
ployment. Henderson asked Scalone if Thomas would per-
mit him to talk to some of the other supervisors. Scalone
put Henderson's call on hold, came back a short time later
and said that Thomas would permit Henderson to talk to
some of the other supervisors.
That same day, after an unsuccessful attempt to reach
Supervisor George Sanders, Henderson asked to be put in
touch with another supervisor, Edward Balog, the Com-
pany's manager of engineering and quality control. How-
ever, Henderson was again unsuccessful. Later in the af-
ternoon, Henderson's second attempt to contact Balog
brought him to a secretary. Henderson asked Balog's secre-
tary to have Balog return his phone call.
Up to this point, my findings are based on Henderson's
uncontradicted testimony. However, Balog and Henderson
testified to different versions of their conversation which
occurred late on the same June 1977 afternoon.
In substance, Henderson's account was as follows: Balog
returned Henderson's call shortly after 5 p.m. Henderson
stated that he was surprised to hear from Balog. Balog an-
swered, "I have nothing to hide, and I'm not afraid of any-
thing George." At this, Henderson pressed Balog for assis-
tance in obtaining a job. Balog responded, that he liked
Henderson, his wife, and family, and thought Henderson
was "smart," but that he should not have gone to "the
Labor Relations Board." Continuing, Balog declared, "if I
brought you back here now you wouldn't be able to do the
job properly because of the sour taste among the other
supervisors." Henderson reiterated his desire for reinstate-
ment. Balog responded that he would think about it over
night and respond to Henderson the following day, adding,
"but I still don't know how you're going to do the job
properly." In response to further pressure from Henderson,
Balog responded that the five employees had made their
"bed" and now they were "black-listed." At this point,
Henderson became irred and told Balog that he, Hender-
son, had to "stand up for my rights." Henderson continued
asserting that he had voted against the union. At this, Ba-
log said "[IWell, it's too late now. I don't really care."
Balog said he would respond to Henderson's request the
following day and Henderson said that unless Balog had
something "good" to tell him, that Balog should not call
him back. Balog never called Henderson back.
Balog testified that he could not "attest" that his conver-
sation with Henderson occurred in June. However, he ad-
mits having a conversation. His version was as follows:
Initially, Henderson's conversation concerned his lack of
employment, and the effect it was having on himself and
his family. Henderson explained that he realized that rein-
statement would be difficult for him, because of his poor
attitude as shown by his unsatisfactory job performance
968
MODULUS CORPORATION
prior to his layoff. Henderson attributed his poor attitude
to the Company's failure to promote him. Henderson re-
marked toward the middle of the conversation, that "he
knew that the case that he was involved with, with the
NLRB was something that he would have to work out."
However, he told Balog that his involvement in the case
"was not of his choice." Henderson attributed his partici-
pation to the urgings of the four other employees laid off
on or about October 28, 1976, who counseled him that "a
united front, would be a better way of approaching their
lay off than as individuals." When Henderson told Balog
that the unfair labor practice proceeding had been settled,
Balog disclaimed knowledge of the settlement, and said
that he did not wish to discuss the matter further. At this
point, Henderson returned to his unemployed situation
and his pressing financial need. According to Balog, Hen-
derson raised the topic of the unfair labor practice charge
and Balog's only comment in that regard was that he
would not discuss it. Henderson asserted that Plant Man-
ager Thomas had declared that if any supervisor were will-
ing to have him back, he, Thomas, would not bar
Henderson's reinstatement. The conversation ended with
Henderson advising Balog that unless there was a favor-
able answer to Henderson's request, Balog need not bother
calling Henderson thereafter. Balog admitted that he never
called Henderson back.
In resolving the conflicts between the two versions of the
Henderson-Balog conversation, I have noted Henderson's
uncontradicted and unchallenged testimony regarding his
conversations with Sandy Scalone, which I have credited.
His reliability as a witness regarding the details of his en-
counter with Scalone was corroborated by his letter to
Thomas which the General Counsel introduced into evi-
dence without objection.
More importantly, I have also noted that Balog's testi-
mony and demeanor reflected uncertainty and some
vagueness about details of his conversation with Hender-
son. As noted above, Balog at first was uncertain as to the
date of the conversation. Further, he gave conclusionary
testimony regarding Henderson's remarks lounging into
the use of the word "essence" to describe his recollection of
Henderson's statements. At one point in his testimony. Ba-
log asserted that it was Henderson who made the only
mention of the filing of the March unfair labor practice
charge against the Company. However, at a later point in
his testimony, when asked if there was any other mention
of that charge, Balog answered, "not that I can recall."
When I asked Balog what he meant when he said that he
did not recall, he conceded that there may have been other
mention of that charge in the conversation with Hender-
son. In contrast, Henderson presented his largely uncon-
tradicted testimony in a full and forthright manner. In
sum, I am satisfied that of the two, Henderson is the more
reliable witness. Accordingly, I have credited his version of
the crucial conversation.
B. Analysis and Conclusions
The Board has recognized that an employer's resort to
discharge, or refusal of reinstatement, or other discrimina-
tion as reprisal for an employee's initiation or participation
in unfair labor practice proceedings is violative of Section
8(a)(4) and (I) of the Act. General Services, Inc., 229 NLRB
940 (1977). In the instant case. I find from my review of
Balog's I remarks that the Company denied Henderson's
final request for reinstatement because he had joined in the
filing of an unfair labor practice charge against it. I find,
therefore, that the Company's refusal to reinstate Hender-
son in late June 1977 violated Section 8(a)(4) and (1) of the
Act. Red Cab, Inc., 194 NLRB 279, 291 (1971). 1 also find
that by Balog telling Henderson that the Company was
refusing his request for reinstatement because of his role in
filing the March 1977 unfair labor practice charge, the
Compan) also violated Section 8(a)(1) of the Act.
CON( LUISIONS OF LAW
1. The Company engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. By refusing to reemploy George Henderson because
he had joined in the filing of an unfair labor practice
charge under the Act, alleging that he and four other em-
ployees were unlawfully discharged, the Company has vio-
lated Section 8(a)(4) and (I) of the Act.
3. By telling employee George Henderson that he was
refused reinstatement because he had used the Board's pro-
cesses, the Company violated Section 8(a)( 1) of the Act.
4. The foregoing unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
Tui RFMFDY
Having found that the Company has engaged in unfair
labor practices in violation of Section 8(a)( I) and (4) of the
Act, it will be recommended that the Company cease and
desist therefrom, and take certain affirmative action set
forth below., designed and found necessary to effectuate
the policies of the Act.
Having found that the Company unlawfully refused re-
instatement to George Henderson, it will be recommended
that he he offered immediate and full reinstatement to his
former position or if that position no longer exist, to a
substantially equivalent position without prejudice to his
seniority or other rights and privileges. It is further recom-
mended that the Company be required to make George
Henderson whole for any loss of earnings he may have
suffered by reason of the discrimination against him, by
paying to him a sum of money equal to the amount he
normally would have earned as wages from June 27, 1977.
the approximate date when the Company refused to rein-
state him, to the date of the Company's offer of reinstate-
ment. less net earnings with backpay and interest thereon
to be computed in a manner prescribed in F. W. Wool-
worth Companv, 90 Nl.RB 289 (1950), and Florida Steel
Corporation, 231 NI.RB 651 (1977).2
Upon the foregoing findings of fact, conclusions of law,
and the entire record in this proceedings and pursuant to
Ini both its ansver .Ind in It brief, the ( ormpans conceded that Balog
was a t all tine, Ill.lteriall io he allcge'd vi-,latwin a: superlisor within the
meating of the Act I Sns Bh.llu '- remark. i;re .attrlhultable to the ( ompans
'Sec. generalkI. h1 Plnibm/hi i /& ,'lioi, ( , 138 NlRB 716 (1962)
969
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Section 10(c) of the Act, I hereby issue the following rec-
ommended:
ORDER 3
The Respondent, Modulus Corporation, Mt. Pleasant,
Pennsylvania, its officers, agents, successors, and assigns
shall:
I. Cease and desist from:
(a) Telling employees that they will be denied reinstate-
ment because they have filed charges or associated them-
selves with the filing of charges under the Act.
(b) Denying reinstatement, discharging, or otherwise
discriminating against employees because they have filed
charges or associated themselves with the filing of charges
under the Act.
(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of their
rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action which is
deemed necessary to effectuate the policies of the Act:
(a) Offer George Henderson immediate and full rein-
statement to his former position or, if that position no lon-
3 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.
ger exist, 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 suf-
fered as a result of the discrimination practiced against him
in the manner set forth in the section of this Decision enti-
tled "The Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records neces-
sary to analyze the amount of backpay due under the terms
of this Order.
(c) Post at its factory at Mt. Pleasant, Pennsylvania,
copies of the attached notice marked "Appendix." Copies
of said notice, on forms provided by the Regional Director
for Region 6, after being signed by Respondent's represen-
tative, shall be posted by Respondent immediately upon
receipt thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all places
where notices to employees are customarily posted. Rea-
sonable steps shall be taken by Respondent to insure that
said notices are not altered, defaced, or covered by any
other material.
(d) Notify the Regional Director for Region 6, in writ-
ing, within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith.
4 In the event that 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
National Labor Relations Board" shall read "Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
970