Mylen Iron and Aluminum Works, Inc.

National Labor Relations Board - Board Decisions

Mar 5, 1975

216 N.L.R.B. 865 (N.L.R.B. 1975)

MYLEN IRON AND ALUMINUM WORKS, INC. 865
Mylen Iron and Aluminum Works, Inc. and Local
1034, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of Ameri-
Ca
Local 1034, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of Ameri-
ca and Mylen Iron and Aluminum Works, Inc.
Cases 2-CA-13343, 2-RC-16529, and 2-CB-
5615
2 The Respondent Employer 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 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.
DECISION
STATEMENT OF THE CASE
March 5, 1975
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
KENNEDY
On October 18, 1974, Administrative Law Judge
Joel A. Harmatz issued the attached Decision in this
proceeding. Thereafter, Respondent Employer and
Respondent Union filed exceptions and supporting
briefs, respectively.
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 Employer, Mylen
Iron and Aluminum Works, Inc., Peekskill, New
York, its officers, agents, successors, and assigns, and
Respondent Union, Local 1034, International Broth-
erhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, New York, New York, its
officers, agents, and representatives, shall take the
action set forth in the recommended Order.
i Respondent Union also filed exceptions to the Administrative Law
Judge 's recommendations to the Regional Director for Region 2 in Case 2-
RC-16529 and the Employer filed an answering memorandum. The
representation case was consolidated with the unfair labor practice charges
for hearing and was then severed after the hearing and returned to the
Regional Director for Region 2, for his decision on whether to set aside the
election and order a new election , in accordance with the "Agreement for
Consent Election" executed by the parties . We agree that the Administra-
tive Law Judge acted properly in severing the representation case from this
proceeding because , under the terms of the consent agreement , the matters
are ones which are properly to be decided by the Regional Director and not
the Board . Accordingly, we do not pass on the Administrative Law Judge's
recommendations to the Regional Director for Region 2 on the merits of the
objections filed in the representation case.
216 NLRB No. 141
JOEL A. HARMATZ, Administrative Law Judge: The
above consolidated proceeding was heard in New York,
New York, on August 14 and 15, 1974, upon a charge filed
on June 14, 1974, in Case 2-CA-13343, and a complaint
issued therein on July 18, 1974, alleging that Respondent
Employer discharged employees Timothy Estep and Kevin
McTiernan in violation of Section 8(a)(3) and (1) of the
Act; and a charge filed on June 11, 1974, in Case 2-CB-
5615, and a complaint issued therein on July 18, 1974,
alleging that Respondent Union violated Section
8(b)(1)(A) by threatening to fine nonmember employees if
they crossed the Union's picket lines , or if a vote was cast
against the Union, and by promising an employee that
such fines would be withdrawn if he declined to vote in the
forthcoming election.
The petition in Case 2-RC-16529 was filed on May 24,
1974. Thereafter, pursuant to an "Agreement for Consent
Election" executed by the parties, and approved on May
24, 1974, by the Regional Director for Region 2 of the
National Labor Relations Board, an election was conduct-
ed on June 6, 1974, under his direction and supervision.
The tally of ballots showed that of 15 eligible voters 9 cast
ballots for, and 5 against, the Union, and 1 ballot was
challenged. The challenged ballot ' was not sufficient to
affect the results of the election.
Thereafter, on June 11, 1974, the employer filed timely
objection$ to the election. Said Regional Director, after
copdqcting an investigation thereof on July 19, 1974,
issued an Order Consolidating Cases and Notice of
Hearing, in which he overruled Employer Objections 4 and
5, and concluded that Employer Objections 1, 2, and 3
raised material issues of fact which might best be resolved
through an evidentiary hearing. As these latter objections
raised substantially the same issues of fact and law as
involved in Case 2-CB-5615, it was further ordered that a
hearing with respect to Case 2-RC-16529 be consolidated
with the hearing in Cases 2-CA-13343 and 2-CB-5615.1
All parties were afforded full opportunity to participate
in the proceeding, and the Union and the Employer filed
posthearing briefs which have been carefully considered.
Upon the entire record in this consolidated proceeding
and from my observation of the witnesses, I hereby make
the following:
i As is appropriate with respect to postelection issues arising from
elections conducted pursuant to an "Agreement for Consent Election," the
Regional Director further ordered that Case 2-RC-16529 be severed from
Cases 2-CA-13343 and 2-CB-5615 and transferred to the Regional
Director for further processing upon issuance of this Decision. See Sec
102 62 of the National Labor Relations Board Rules and Regulations , Series
8. as amended.
866 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYER
The Employer is a New York corporation, with a place
of business in Peekskill, New York, from which it is
engaged in the manufacture, sale, and distribution of metal
railings, staircases , and related products. During the year
preceding issuance of the complaints, a representative
period, the Employer purchased goods and materials
shipped from sources outside the State of New York
exceeding $50,000 in value and has sold and shipped
products valued in excess of $50,000 from its New York
location to other States of the United States.
The complaints allege, the answers admit, and I find that
the Employer is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
As is established by the pleadings, I find that Local 1034,
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America is a labor
organization within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES AND THE
OBJECTIONS TO THE ELECTION
A. Background and Issues
There is no bargaining history covering rank-and-file
employees at the Employer's plant in Peekskill. In the
spring of 1974, of the some 15 production and maintenance
workers at that facility, substantially all signed cards
designating the Union as their representative. The Union
requested recognition, but when the Employer declined to
grant voluntary recognition a strike was called which
commenced on Wednesday, May 8.2 On May 24, the
Union filed an election petition with the Board.3 At the
outset, the strike was supported by all original card signers
except employee Richard Martini, who crossed the picket
line and worked through the entire duration of the strike.
Thereafter, during the second week of the strike, three
additional card signers, James Jenkins, James Bennett, and
Searcey Lampley, abandoned the strike and returned to
work. It does not appear that any other striker deserted the
strike effort.4
The election was held on June 6. At that time an offer to
return to work was made on behalf of the strikers. As a
result , all strikers were to be reinstated on Tuesday, June
11, 1974. However, on the morning of June 11, strikers
Estep and McTiernan were scheduled to be in court in
2 All dates refer to 1974 unless otherwise indicated
3 Through inadvertence Board Exhibits 1, 2. 3, 4, and 5 constituting the
formal papers in Case 2-RC-16529, though marked and offered , were not
received in evidence in on-the-record discussion It being my impression
from discussion with all counsel , both on and off the record , that receipt of
these documents was contemplated by all parties , without challenge to their
authenticity . they are hereby received in Case 2-RC-16529, and made a
part of the record in that proceeding.
I There is evidence that a Spanish-speaking individual referred to in the
record as "Victor" worked a single day during the strike , but the record does
not indicate that he was employed by the Company prior to the inception of
the strike.
connection with criminal charges pending against them
stemming from certain damage to the plant during the
course of the strike. Both first went to the plant, and after a
conversation with Frank Calabro,5 the Employer's plant
foreman, they proceeded to the court house. When they
returned to work later that day, they were discharged, by
reason , according to the Employer's claim , of their having
overstayed their leave.
The disputed issues in this consolidated proceeding turn
almost exclusively upon questions of fact. The existence of
an unlawful interference with the election and the alleged
8(b)(1)(A) violations relate to statements imputed to an
admitted union agent, and entail a resolution of conflicting
testimony as to whether the possibility of union imposed
fines was asserted as a means of coercing the nonstriking
employees in the exercise of Section 7 rights.
The issue presented by the complaint in Case 2-CA-
13343 relates exclusively to the discharges of Estep and
McTiernan and requires an assessment from the total
circumstances , of whether they were discharged because of
their failure to return from a permitted leave in a timely
manner , as the Employer contends, or whether, as the
General Counsel and Union argue, said action was
motivated by a desire to take reprisals against Estep and
McTiernan because of their support of the strike, and to
discourage employee support of the Union.
B. The Discharges (Case 2-CA-13343)
As heretofore indicated , Timothy Estep and Kevin
McTiernan were terminated on June 11, 1974, the very day
on which all strikers returned to work . When questioned as
to the work reputations of Estep and McTiernan, Plant
Foreman Calabro, who effected the discharges , responded:
"I thought they were good workers ." Both had supported
the strike from its inception , and, on the morning of May 8,
were among the first of the employees to join Business
Agent Fleisher in carrying a picket sign . It further appears
that Estep was the employee most responsible for the
Union's organization effort in this unit. Thus , organization
began when Estep , through a friend , contacted Fleisher
and obtained authorization cards, distributed them, and
solicited employee signatures thereto .6 Estep also acted as
union observer during the election of June 6, 1974.
Prior to the events of June 11, and at some time in the
course of the strike , a rock was thrown through a showcase
window at the plant . Calabro , admittedly reported the
incident to the police but did not identify anyone as
responsible . Estep and McTiernan stood accused of the
act, and shortly before Memorial Day the former was
arrested , while at the same time a warrant for the arrest of
S The content of this conversation is the subject of a highly material
conflict in testimony.
8 Based upon the testimony of Estep . Estep was not contradicted as to
these matters and I note that employee witnesses who testified on behalf of
the Employer in other respects , and who did not appear hostile to the
latter's cause , were themselves subjected to union organizational efforts, and
hence it is reasonable to presume that they would know of any exaggeration
by Estep as to his role in the campaign , if such were the case . The failure by
the Company 's counsel to examine these witnesses as to such matters tends
to support Estep 's credibility in this regard which is also supported by his
having acted as union observer during the election.
MYLEN IRON AND ALUMINUM WORKS, INC. 867
the latter was outstanding . Calabro denied knowledge as to
who filed the complaint naming Estep and McTiernan. In
any event , on the morning that the strikers were to return
to work , Estep and McTiernan were required to be in court
in connection with the charges against them.?
On June 11 , shortly before the 8 a.m. starting time,
McTiernan and Estep went to the plant and reported to
Frank Calabro. According to Estep and McTiernan, Estep
informed Calabro that they had to go to court, and, on
inquiry by Calabro, advised that they would return at
about 10:30 or II a.m. Calabro said okay, and the
dischargees left the plant . They were driven to the
courthouse by Business Agent Gilbert Smith.
Calabro denies that Estep on that occasion informed him
that he and McTiernan had to go to court . Instead , it is his
testimony that he was simply advised by Estep that "he
[Estep] had to go see his lawyer about a broken window."
Calabro also disputes the dischargees ' testimony as to the
time of their projected return . According to to Calabro, he
was told that the men would be gone for an hour and a half
or so and would be back at 9:30 or 10:30 a .m. I credit
Estep and McTiernan over Calabro as to this incident.8
On their arrival at the courthouse, Estep , McTiernan,
and Smith had to wait for the attorney , who appeared at
9:30 a . m. At about 10 a.m., their case was considered, and
was postponed after a 5-10-minute consultation between
the district attorney and the attorney representing Estep
and McTiernan. Following this, both talked with the
attorney , leaving the courthouse at about 10:30 a.m.
Because Smith had an appointment elsewhere , he left the
courthouse earlier, and the two dischargees , having no
transportation , elected to walk back to the plant . In route,
they stopped for coffee shortly after leaving the court-
house, and then again stopped to have a beer at a
restaurant located about two blocks from the plant .9
It is undisputed that Estep and McTiernan returned to
the plant before noon . 10 The balance of the events of June
11 are not the subject of any serious conflict in testimony.
7 The breaking of the window was not a part of the Employer's
justification for the discharges , and the identity of those responsible for said
property damage was not the subject of litigation in this proceeding
N 1 was not sufficiently impressed with Calabro's testimony to credit him
as to matters which run counter to the probabilities . I deem it entirely
unlikely that Estep and McTiernan would go to the plant to explain their
inability to work that morning , and, yet give a lesser justification for their
absence than the actual fact of their having to appear in court . I note also
that Calabro s testimony to the effect that he was not told that the men had
to be in court is enshrouded with further doubt , when considered with the
testimony of the Employer' s president , Arnold J. Myden , as to the content
of a conversation between himself and Business Agent Smith on the day
after the discharges, through which Smith was seeking reinstatement of the
two men . When initially cross -examined as to whether Smith informed
Myden as to the fact that the men had been in court during their absence,
Myden responded , "He may have I couldn 't say " Though Myden concedes
that Smith sought the meeting to obtain reinstatement of the dischargees
and that they discussed the merits of that issue , he later testified "if, I tell
you honestly , to the best of my recollection , he [Smith I never mentioned the
court." Smith, who I regarded as an impressive witness, testified that he on
several occasions during the above conversation with Myden told Myden
where the men were during their absence of the previous morning . Myden's
account as to whether or not he was informed by Smith that the men were in
court is entirely unbelievable . From the standpoint of Calabro and Myden,
they would have an understandable sensitivity to the question of whether
they knew that the men were in court on the day of the discharges . Yet, the
whereabouts of the men that morning would be highly significant to any
discussion concerning reinstatement of the strikers . I cannot imagine that
Thus, Calabro on observing Estep and McTiernan in the
plant, shortly before noon, approached them and told them
to wait. He then went to talk to Myden and Gelfand, the
Employer's secretary. Calabro apparently told Myden and
Gelfand that he wanted to fire the men "for being late,"
and asked if they had any objections. When Myden said
"Fire them" and Gelfand concurred, Calabro returned to
McTiernan and Estep and informed them of their
discharge." Estep and McTiernan requested a discharge
slip from Calabro, and he told them to return at 1 p.m.
After telephoning Business Agent Fleisher, and reporting
their discharges, Estep and McTiernan returned to the
plant at 1 p.m., whereupon their request for a discharge slip
was denied by Myden.
The next day, as heretofore indicated, Business Agent
Smith went to see Myden in the interest of securing
reinstatement of Estep and McTiernan. Though Smith's
credited testimony establishes that he several times referred
Myden to the fact that the dischargees were required to be
in court the previous morning, Myden adhered to the
discharge decision, and the meeting ended with Smith
failing to secure their reinstatement.
The terminations in issue here, occurring as they did on
the very day that all strikers were returned to active
employment, but before Estep and McTiernan were
allowed to work, are controlled by the principles which
govern the reinstatement rights of unreplaced economic
strikers upon their unconditional offer to return to work.
As stated by the Supreme Court in N.L.R.B. v. Fleetwood
Trailer Co., 389 U.S. 375, 378 (1967):
Section 2(3) of the Act provides that an individual
whose work has ceased as a consequence of a labor
dispute continues to be an employee if he has not
obtained regular and substantially equivalent employ-
ment. If, after conclusion of the strike, the employer
refuses to reinstate striking employees, the effect is to
discourage employees from exercising their rights to
Smith . who had escorted Estep and McTiernan to the courthouse, in
arguing for their reinstatement, would have neglected to mention that it was
the enforced court appearance of Estep and McTiernan that contributed to
their delayed return , which in turn was the sole cause assigned for them
discharge . In my opinion the thoroughly unbelievable testimony of Myden
in this regard , contributes further to my disbelief of Calabro, concerning his
knowledge of June I I as to the whereabouts of these employees. The lack of
candor on the part of both Myden and Calabro on this highly significant
point is not lightly dismissed as coincidental in my overall assessment of the
motivation issue.
9 Myden testified that prior to the instant hearing he had no knowledge
of the stops for coffee and beer. No evidence was offered to the effect that
any company official had knowledge of these incidents , and hence they are
not relevant to an assessment of the Employer's motivation in effecting the
discharges.
io The precise time of their return and whether or not they changed into
their working clothes before punching in is, however, the subject of a
conflict in testimony. The dischargees related that they returned at about
11:30 a.m., changed clothes , and then punched in. Employer witnesses
indicated that they returned about noon and punched in while still in street
clothes. The timecards of each man evidence that they punched in at 11.54
a.m Considering the timecards, the remaining issue of whether or not they
previously had changed clothes and hence actually arrived at about 11.30
a.m. presents a minor question , of no consequence to the ultimate result,
and hence does not require resolution.
ii Based on the testimony of Calabro, which , though not entirely
symmetrical with that of Estep and McTiernan , differs only as to
insignificant incidentals unworthy of mention.
868 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
organize and to strike guaranteed by §§ 7 and 13 of the
Act. Under §§ 8(a)(1) and (3) it is an unfair labor
practice to interfere with the exercise of these rights.
Accordingly, unless the employer who refuses to
reinstate strikers can show that his action was due to
"legitimate and substantial business justifications," he
is guilty of an unfair labor practice. NLRB v. Great
Dane Trailers, 388 U.S. 26, 34, 65 LRRM 2465 (1967).
The burden of proving justification is on the employer.
Thus the burden here is upon the Employer to show that
the instant discharges were based upon either misconduct
or other legitimate cause unrelated to protected activity.
To meet that burden, the Employer contends that the
discharges were predicated solely upon the failure of Estep
and McTiernan to return on a timely basis from the leave
granted by Plant Foreman Calabro on the morning of June
11. Upon analysis of the evidence, I am persuaded that the
Employer not only has failed to show a valid reason for the
discharge, but, in the total circumstances, the explanation
offered is so lacking in substance as to lend support to
other evidence warranting a specific finding of unlawful
discrimination.
Any conclusion that the two strikers were late in
reporting to work must rest upon an acceptance of their
conversation with Calabro, prior to their court appearance,
as establishing a firm reporting time. Even Calabro's
version of this conversation fails to reveal any clear
expression by him as to when the men had to return. It is
difficult for me to imagine how Calabro could have
concluded from this conversation that any specifically
defined "leave" had been granted. Furthermore, it is a fair
assumption that Calabro was fully mindful that Estep
could not with any degree of precision forecast when he
and McTiernan would complete their business in court.
Aside from common knowledge as to delays customarily
experienced in court appearances, which knowledge may
reasonably be imputed to Calabro, Calabro's own testimo-
ny as to Estep's representation of when he would return
plainly indicates that Estep used words of approximation.
Nonetheless, Calabro at no time during the conversation
admonished Estep as to the importance he would attach to
Estep's estimate. Moreover, Calabro did not advise the
men of the duties to which they would be assigned that
day, nor did he warn that a failure to report back when
indicated by Estep would result in discharge. In these
circumstances, for Calabro to hold the men to Estep's
approximation of when the men would return could only
be explained by a disposition on his part to arrive at some
justification lending a color of legitimacy to the discharge
of the two former strikers.
The subsequent action of Calabro and other manage-
ment representatives further enforces the conclusion that
the lateness issue was raised as pretext. Thus, immediately
upon their return from court, Estep and McTiernan were
discharged. The reasons for their delayed return were
neither known nor solicited by management before
12 It would be inconsistent with the sense of Calabro's description of the
Hart incident to assume that Hart had called in to notify the Company that
he would be coming in late
13 The likelihood of a further strike was highly predictable With the
Employers filing of objections, it was clearly manifested that recognition
invoking such severe discipline. Accepting for argument's
sake the testimony of Calabro, a lateness of less than 2
hours dictated the immediate discharge of Estep and
McTiernan. It is true that Calabro sought to justify his
precipitant action as consistent with the Company's alleged
strict policy against lateness. However, when called upon
to relate instances where others had been discharged for
like offenses, Calabro could only define, in detail, a single
incident. Yet, on that occasion the employee's lateness
resulted in a suspension and not a discharge. Thus,
according to Calabro, an employee by the name of Darrell
Hart was suspended for I day because he had not come in
the day before. The next day Hart came in late, and when
Calabro attempted to again suspend him, and Hart refused
to accept the suspension, Calabro fired him. Calabro
concedes that it was not his intention to discharge Hart for
coming in late. Nonetheless, Calabro sought to explain this
away, asserting that Hart was a badly needed employee.12
Considering Calabro's own admission that Estep and
McTiernan were good workers, and the further evidence
that following the effective strike of about 5 weeks there
was a need for their services, the discharges meted out in
this case, when considered against the treatment of Hart,
show a disparate application of the Company's lateness
policy. I discredit Calabro's testimony that the discharges
of Estep and McTiernan were in any way consistent with a
company policy against lateness.
From the total circumstances, I find, that the lateness
issue was raised as a pretext to mask the Company's real
intention to rid itself of two union supporters, including
Estep, the principal advocate of the Union among the
employees. Further contributing to that conclusion is
Myden's refusal to honor Business Agent Smith's request
of June 12, for the reinstatement of Estep and McTiernan.
Myden by then had learned that the alleged lateness had
occurred in the context of an enforced court appearance
and his refusal to effect a reinstatement leaves me with the
clear impression that such gross unreasonableness on his
part, considered against the total circumstances, was an
essential element of the Company's tactical design to
eliminate Estep and McTiernan while gaining an advan-
tage over the Union should a rerun election be directed on
the Company's objections. Thus, it is entirely likely that
these baseless discharges were motivated by a desire to lay
the groundwork for a reversal of the results of the first
election. It will be recalled that the first election was won
by the Union by a vote of 9 for, 5 against. The Employer
filed objections to that election on the very date that Estep
and McTiernan were discharged. From the Employer's
point of view it was not unlikely that these actions would
again prompt the Union to strike, an event which would
enable the Employer to hire replacements whose eligibility
to vote in any rerun election would at least afford an
opportunity to neutralize the Union's clear majority as
matters stood on June 11.13 This is precisely what
occurred. On June 13, the Union struck with some 9-10
employees walking out in support thereof. Although the
would not be granted immediately upon the results of the first election.
Therefore, the Union was left in the same position as it was on May 8 when
it struck for recognition. The discharges presented an added inducement to
further strike action.
MYLEN IRON AND ALUMINUM WORKS , INC. 869
Employer during the first walkout between May 8 and
June 6 had hired no replacements , the June 13 strike was
met by the hiring of nine striker replacements.14
In sum, I find that the denial of reemployment to strikers
Estep and McTiernan was specifically motivated by
antiunion considerations. In the alternative I find that the
discharges, in effect, constituted a denial of reinstatement
of unreplaced economic strikers, which denials were not
shown by the Employer to have been supported by just
cause . Accordingly, I find that the Employer thereby
violated Section 8(a)(3) and (1) of the Act.15
C. Union Restraint and Coercion; the Objections to
Election (Cases 2-CB-5615 and 2-RC-16529)
The issue involved here turns on whether an agent of the
Union, in his zeal to obtain allegiance to the strike effort
and the Union's position in an impending election, made
coercive references to the possible fining of dissidents.
Employees Lampley, Jenkins, Bennett , and Martini
testified in support of the assertions against the Union.
Each had signed a union authorization card early in the
organizational campaign, but all, at various times in the
course of the strike, crossed the picket line to report to
work.16 Membership is not acquired simply through
execution of an authorization card and it is undisputed that
Lampley, Jenkins, Bennett, and Martini never held such
status . Their testimony imputes to Business Agent Fleish-
er 17 threats of fines and related pressures, all asserted in
the context of their exercise of Section 7 rights. Fleisher, on
the other hand, flatly denies that he at any time discussed
fines under coercive conditions, and hence the threshold
issue is one of credibility.
Jenkins, Lampley, and Bennett all gave testimony
bearing upon an incident which occurred during the
second week of the strike on Wednesday, May 15.18 Two
days earlier all three had abandoned the strike and
returned to work. According to Jenkins, he traveled to
work by bus on May 15, arriving late at about 10 a.m. As
he was entering the plant, Fleisher stopped him, stating,
"Are you going to work, you will be fined five hundred
dollars if you go in to work, and anybody else - anyone
else that's working in there will also be fined and to tell
them." Jenkins also testified that later in the conversation
he told Fleisher that he would miss work for a few days
because of illness in his family but that when he returned
he intended to work. Fleisher is alleged to have then stated,
"... if you return to work, you will be fined $500 hundred
dollars also." Jenkins relates that he then went to work and
relayed to Bennett , Lampley, and Martini what Fleisher
had told him. At the close of work, Jenkins left the plant
i+ 1 was not impressed by Myden's attempt to explain why the Company
elected to replace the strikers during the second strike when it had abstained
from such a course during the first strike . I am certain that , after the first
election , it had become clear to Myden, that only through the hiring of
strike replacements , could the Company hope to dilute the majority support
of the Union made clear through that election . I simply do not believe that
Myden's decision with respect to the hiring of replacements had anything to
do with his assumption as to whether or when the strikers, after June 11,
would return to work.
15 In reaching this result , I have not relied upon any testimony of
Business Agent Fleisher which may be regarded as prejudicial to the
Employer's cause . His testimony is plainly cumulative , and his veracity need
not be considered in disposing of the issues presented by the 8(aX3)
with Lampley and Bennett in Lampley's truck. As they
were leaving the parking lot, Fleisher, according to
Jenkins, asked if the latter had told the others of Fleisher's
message , given Jenkins that morning. Jenkins answered in
the affirmative and then all three drove from the premises.
Bennett corroborated Jenkins, testifying that in the
course of the working day, on May 15, Jenkins told him
that Fleisher sent a message to the effect that they would
be fined for working. He further testified that as they were
leaving work that day, Fleisher approached the truck and
asked if his message had been relayed. The men said yes,
and then left the premises.19 According to Bennett's further
testimony, during the first 3 days of the strike, at a time
when all three were respecting the picket line, a question
arose among the strikers concerning the fact that Martini
had been working, whereupon Fleisher stated to the
pickets, "Well don't worry about it because he would be
fined."
Lampley corroborated Bennett both as to Jenkins'
transmittal of Fleisher's threat, as to Fleisher's inquiry at
the end of the workday, and as to Fleisher's statement on
the picket line that Martini would be fined for working.
As indicated the above testimony of Jenkins, Lampley,
and Bennett is contradicted by Fleisher. Indeed, Fleisher
denied ever discussing fines with them.
Richard Martini testified as to a further incident in
which unlawful conduct was attributed to Fleisher. Thus,
on June 3 or 4 a few days prior to the election, the
Employer had scheduled a meeting to which all employees,
including the strikers had been invited. The meeting was
for the purpose of affording the Employer an opportunity
to air its views on the question of union representation.
None of the strikers entered the plant at the appointed
time , and Martini, at Gelfand's direction came out of the
plant and asked the strikers if they intended to come in and
hear the boss speak. They declined. Martini went back,
and, despite the absence of the strikers, the meeting was
held. After the meeting, Martini voluntarily again left the
plant to talk to the strikers. According to Martini, after he
asked the men why they had not come inside, he engaged
in a conversation with Fleisher. In the course thereof,
Martini stated that he did not intend to vote for the Union.
To this Fleisher is alleged to have responded, "I know the
way you are voting, I can tell you right now, that you are
going to be fined up to a thousand dollars." Martini then
inquired of Fleisher how he could be fined. Fleisher
explained that since Martini had signed a card, which led
Fleisher to file in Washington for strike benefits, matters
had gone far enough to subject Martini to a fine for
crossing the picket line. Subsequently, according to
allegations.
i6 Of the four, only Martini at no time participated in the strike.
17 The allegation of the complaint in Case 2-CB-5615 that Fleisher is an
agent of the Union is not denied and hence is deemed admitted. See Sec
102.20 of the Board's Rules and Regulations , Series 8, as amended.
18 Lampley , on cross-examination , mistakenly placed this incident on
Monday, May 13. Of the factors bearing upon credibility, Lampley's
confusion or lack of recollection as to dates in no sense casts suspicion on
his overall testimony and is not regarded as critical to the reliability thereof.
i9 While Jenkins indicated that he answered "yes" and Bennett testified
that the "men" answered , I do not regard this minor difference as having
significant bearing upon the overall issue of credibility
870 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Martini, he was called aside by Fleisher and told that he
sounded confused, and that there was something Martini
could do about the fine; namely, that if the election results
reflected a unanimous vote no one would be fined. Martini
testified that Fleisher went on to specify that if Martini did
not vote in the election, Fleisher could do something about
Martini's being fined. After this, Martini returned to the
plant.
Fleisher admits to the confrontation with Martini, but
according to his account, when Martini came out of the
plant after the meeting, he sought out Fleisher, thanking
the latter with respect to the fact that no harm was done to
him. Then, Martini proceeded to engage Fleisher in a
conversation concerning union benefits. During the course
thereof, Martini asked Fleisher if there was such a thing as
union men being fined. Fleisher asserts that he responded
that a member of the Union, who crosses a picket line can,
after a hearing, be fined. According to Fleisher the above
represents the entire substance of what transpired between
Martini and himself that day. Fleisher denied any
reference to fines in his conversation with Martini other
than that conceded by him and set forth in this paragraph.
I credit Martini, Lampley, Jenkins, and Bennett over
Fleisher. None of the witnesses could be described as
disinterested. However, on the basis of their demeanor, I
regarded Martini, Lampley, Jenkins, and Bennett as more
trustworthy than Fleisher. Furthermore, the denial by
Fleisher that the strikers who consistently honored the
picket line expressed concern to him about the other card
signers who chose to work, while entirely improbable, at
the same time, suggested to me a deliberate effort by
Fleisher to strip from the background all matters enhanc-
ing the likelihood that Fleisher would have made the
threats imputed to him. It is only natural that there would
be some grumblings among strikers , who, while foregoing
their pay, nonetheless witness on a daily basis other
employees who continue to report for work and to enjoy
their normal earnings . Indeed, Estep contradicted Fleish-
er's denials that any striker expressed concern relative to
the strikebreakers . In this regard , Estep testified that
shortly before the election he asked Fleisher , "... can
anything happen to these guys crossing the picket
lines...?" According to Estep, Fleisher answered, ". . . it
is possible , but don't worry about it." When Estep was
asked to clarify what he meant by the term "possible,"
Estep specified that Fleisher said, "it is possible they can
get fines but don't worry about it "20 Thus, Estep's
testimony also tends to support the case against the Union,
insofar as it discloses that Fleisher was not disposed to
make statements , limiting the possibility of fines to those
having membership status . In sum , I am of the opinion
that, in addition to my observations of the witnesses, the
testimony of Martini, Lampley, Jenkins, and Bennett is the
more probable when considered in the light of the natural
20 Although I have credited Estep in other respects and plainly believe
the portion of his testimony set forth in the immediate text , I regard the
further testimony , through which he attempts to diminish the extent of his
concern about the men crossing the picket line, as an unbelievable attempt
to euphemize the obvious.
21 N.L. R.B. v. Granite State Joint Boars( Textile Workers Union of
America, Local 1029, 409 U.S. 213 (1972).
22 Provincial House, Inc., 209 NLRB 215 (1974). Although this case
concern that strikers would have concerning those who
sign cards but thereafter decline to make common cause.
Furthermore, the plausibility of their testimony is height-
ened by the normal inclination of those charged with
preserving the integrity of a strike, to assure supporters
thereof, that those who dishonor the picket line are not
beyond union restraint.
Accordingly, I find that Fleisher threatened to fine
Martini, Lampley, Bennett, and Jenkins for crossing the
picket line. I further find that Fleisher threatened to fine
Martini because he declared his intention to vote against
the Union, and then indicated that he would assist Martini
in avoiding the fine if Martini did not vote in the election
or if the results of the election proved unanimous.
By way of defense, the Union does not deny that, in
accordance with established precedent, the actual imposi-
tion of fines as a disciplinary measure directed at former
union members who have crossed a legitimate picket line,
violates 8(bx1XA) of the Act.21 Under Board policy, such
coercion would constitute grounds for invalidating an
election.22 Nonetheless, accepting the above resolution of
credibility, the Union would distinguish the instant case on
grounds that, here, fines were not actually imposed by the
Union, there is no evidence that oral threats of fines would
be consistent with union policy, and it is not shown that
Fleisher, though a business agent, was authorized to make
the statements imputed to him by the credited evidence.
Respondent further relies on the absence of any coercive
impact resulting from Fleisher's statements as demonstrat-
ed by the fact that the strikebreakers continued to work
through the balance of the strike, and also had received
assurances from the Employer that nonmembers could not
be fined by the Union. In my opinion these considerations
fail to remove the instant case from decisional precedent
proscribing the type of conduct Fleisher elected to pursue
herein. Fleisher, as the pleadings establish, was an agent of
the Union whose conduct was binding on the latter,
whether or not specifically authorized or consistent with
union policy. The Board has held that verbal threats by
agents of a labor organization to the effect that nonmem-
bers would be fined for crossing a picket line are unlawful.
This conclusion was reached, despite the fact that the
threats preceded formal imposition of any such fine, and
even though such imposition would be meaningless
because unenforceable against nonmembers 23 Thus, as I
understand controlling precedent, the improbability that
fines would actually be assessed and enforced is of no avail
to the Union herein. Also immaterial is the Union's
reliance upon subjective factors suggesting that Jenkins,
Lampley, Bennett, and Martini were not, in fact, coerced
by Fleisher's statement . Here again, under longstanding
Board policy, statements to the effect that reprisals would
be taken against those who exercise Section 7 rights,
uttered under circumstances calculated to influence em-
involves coercion in a different form than "fines"; it nonetheless stands for
the principle that union coercion and restraint for the object of requiring
obedience to a picket line constitutes an unlawful interference with a Board
election.
23 See Local 767, International Union of Electrical, Radio, and Machine
Workers, AFL-CIO-CLC (General Electric Company), 186 NLRB 682, 687-
688(1970).
MYLEN IRON AND ALUMINUM WORKS, INC. 871
ployees in that respect , fall within statutory proscriptions
whether or not effective to discourage protected activity.24
For the above reasons, I reject Respondent Union's
defenses related to the alleged lack of specific authority in
Business Agent Fleisher, the improbability that his state-
ments would be implemented by the Union, and evidence
to the effect that the strikebreakers were not influenced by
the conduct under examination here. Accordingly, I find
that Respondent violated Section 8(b)(IXA) of the Act by
threatening nonmember employees with fines for crossing
a picket line and for voting against the Union, and further
by advising an employee that efforts would be made to
assist him in rescinding any fine if he declined to vote in
the scheduled Board election or if the results of that
election evidenced unanimous support of the Union.
Based upon the foregoing, I also sustain Employer
Objections 1, 2, and 3,25 in Case 2-RC-16529 and find that
by the unlawful conduct set forth above the Union has
interfered with the requisite atmosphere for the conduct of
a free and fair election . Accordingly, I hereby recommend
to the Regional Director for Region 2 that the election in,
Case 2-RC-16529 be set aside and that a rerun election be
conducted at such time as the Regional Director deems
appropriate.
CONCLUSIONS OF LAW
1. Mylen Iron and Aluminum Works , Inc., is an
employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
2. Local 1034, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, is a
labor organization within the meaning of Section 2(5) of
the Act.
3. By discriminating in regard to the hire and tenure of
employees, in a manner discouraging membership in or
activities on behalf of a labor organization, Respondent
Employer has engaged in unfair labor practices within the
meaning of Section 8(aX3) and (1) of the Act.
4. By restraining and coercing employees in the
exercise of their rights guaranteed by Section 7 of the Act
to refrain from concerted activity, Respondent Union has
violated Section 8(b)(IXA) of the Act.
5. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent Union and Respondent
Employer have engaged in unfair labor practices , it shall be
recommended that they cease and desist therefrom, and
take certain affirmative action necessary to effectuate the
policies of the Act.
In Case 2-CA-13343, it having been found that
Respondent Employer discriminatorily discharged Timo-
24 See, e.g., Vernon Livestock Trucking Co., 172 NLRB 1805-1815 ( 1968).
76 1 note that minor nonsubstantive variations exist between the
allegations specifically set forth in the objections and the facts actually
found above . The discrepancies relate to the number of employees
threatened , and other matters which by implication are plainly within the
scope of the matters set forth in the objections . Such differences plainly
have no material bearing upon my conclusions and recommendations.
thy Estep and Kevin McTiernan, it is recommended that
Respondent Employer offer them immediate reinstatement
to their former positions, if available, or, if not, to
substantially equivalent positions, and make them whole
for any loss of wages suffered by reason of the discrimina-
tion against them in accordance with F. W. Woolworth
Company, 90 NLRB 289 (1950), with interest as specified in
Isis Plumbing & Heating Co., 138 NLRB 716 (1962).
Upon the foregoing findings of fact and conclusions of
law and the entire record in this consolidated proceeding,
and pursuant to Section 10(c) of the Act and the direction
of the Regional Director for Region 2 as set forth in his
order of consolidation dated July 19, 1974, I hereby issue
the following recommended:
ORDER 26
Pursuant to Section 10(c) of the Act and the aforedes-
cribed direction of the Regional Director in Case 2-RC-
16529, it is hereby ordered that:
A. Respondent Employer, Mylen Iron and Aluminum
Works, Inc., Peekskill, New York, its officers, agents,
successors, and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in or activities on behalf of
Local 1034, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, or
any other labor organization, by discharging or otherwise
discriminating in regard to hire and tenure of employment
or any term or condition of employment, except to the
extent that such rights may be affected by an agreement
requiring membership in a labor organization as a
condition of employment as authorized in Section 8(a)(3)
of the Act, as modified by the Labor-Management
Reporting and Disclosure Act of 1959.
(b) In any like or related manner interfering with,
restraining, or coercing its employees in the exercise of
their rights to self-organization, to form labor organiza-
tions to join or assist Local 1034, International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, or any other labor organization, 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 as guaranteed by Section 7 of the Act, or to
refrain from any and all such activities, except to the extent
that such right may be affected by an agreement requiring
membership in a labor organization as a condition of
employment, as is authorized in Section 8(a)(3) of the Act,
as modified by the Labor-Management Reporting and
Disclosure Act of 1959.
2. Take the following affirmative action which is found
necessary to effectuate the policies of the Act:
(a) Offer to Timothy Estep and Kevin McTiernan
immediate and full reinstatement to their former jobs, or, if
26 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.
872 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
such positions no longer exist , to substantially equivalent
positions, without prejudice to their seniority or other
rights and privileges , and make each whole for any loss of
earnings he may have suffered by reason of the discrimina-
tion against him in the manner set forth in the section of
this Decision entitled "The Remedy."
(b) 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.
(c) Post at its premises in Peekskill , New York, copies of
the attached notice marked "Appendix A.1127 Copies of
said notice, on forms provided by the Regional Director
for Region 2, after being signed by an authorized
representative of Respondent Employer, shall be posted by
Respondent Employer 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 . Reasonable steps shall
be taken by Respondent Employer to insure that said
notices are not altered, defaced , or covered by any other
material.
(d) Notify the Regional Director for Region 2, in writing,
within 20 days from the date of this Order what steps
Respondent Employer has taken to comply herewith.
B. Respondent Union, Local 1034, International
Brotherhood of Teamsters , Chauffeurs, Warehousemen
and Helpers of America, its officers, agents , and represent-
atives, shall:
1. Cease and desist from:
(a) Restraining and coercing nonmember employees by
threatening to fine them if they either cross a picket line or
otherwise refuse to support a strike.
(b) Restraining and coercing employees by threatening
to fine them if they vote against the Union in a Board
election ; or by offering to assist in rescission of any such
fine if an employee would decline to vote in a Board-
conducted election or if the results of that election
demonstrate unanimous support of the Union.
(c) In any like or related manner restraining or coercing
employees in the exercise of rights guaranteed them in
Section 7 of the Act, except to the extent that such rights
may be affected by an agreement requiring membership in
a labor organization as a condition of employment, as
authorized by Section 8(aX3) of the Act, as modified by the
Labor Management Reporting and Disclosure Act of 1959.
2. Take the following affirmative action which is found
necessary to effectuate the policies of the Act:
(a) Post at its meeting halls , business offices, and all
other places where notices to members are customarily
posted, copies of the attached notice marked "Appendix
B." 28 Copies of said notice , to be provided by the Regional
Director for Region 2, after being signed by a duly
authorized representative of the Respondent Union, shall
be posted by it immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter in
conspicuous places , including all places where notices to
members are customarily displayed. Reasonable steps shall
be taken by Respondent Union to insure that said notices
are not altered , defaced, or covered by any other material.
(b) Furnish the Regional Director for Region 2 with
signed copies of said notice for posting by Mylen Iron and
Aluminum Works , Inc., if it is willing, in places where
notices to employees of said Employer are customarily
posted . Copies of said notice , to be supplied by said
Regional Director , shall be transmitted by him to said
Employer.
(c) Notify the Regional Director for Region 2, in writing,
within 20 days from the date of this Order , what steps have
been taken to comply herewith.
IT IS FURTHER ORDERED that Case 2-RC-16529 be, and it
hereby is, severed from Cases 2-CA-13343 and 2-CB-
5615, and transferred to the Regional Director for Region
2 for further processing necessary to disposition of the
question concerning representation.
27 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 read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the Nattohal Labor Relations Board."
28 In the event 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 read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
APPENDIX A
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discharge, or in any other manner
discriminate against our employees because they have
joined or assisted Local 1034, International Brother-
hood of Teamsters , Chauffeurs, Warehousemen and
Helpers of America.
WE WILL NOT in any like or related manner interfere
with, restrain , or coerce our employees in the exercise
of their right to self-organization, to form labor
organizations, to join or assist Local 1034, Internation-
al Brotherhood of Teamsters , Chauffeurs, Warehouse-
men and Helpers of America , or any other labor
organization , to engage in collective bargaining
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
as is guaranteed in Section 7 of the Act, or to refrain
from any and all such activities.
MYLEN IRON AND ALUMINUM WORKS, INC. 873
WE WILL offer Timothy Estep and Kevin McTiernan
their former positions , and make them whole for any
loss of earnings they may have suffered by reason of
our discrimination against them, as set forth in the
Decision of the Administrative Law Judge.
MYLEN IRON AND
ALUMINUM WORKS, INC.
APPENDIX B
NOTICE To MEMBERS
POSTED BY ORDER OF 'SHE
NATIONAL LABOR RELATIONS BOARD
Ati Agency of the United States Government
WE WILL NOT restrain or coerce employees who are
not members of our Union by threatening to fide them
because they refuse to join our strike.
WE WILL NOT restrain or coerce employees by
threatening to fine them because they desire to vote or
to vote against our Union in an election conducted by
the National Labor Relations Board.
WE WILL NOT restrain or coerce employees by telling
them that we will assist them in having a fine rescinded
if they refuse to vote in an election conducted by the
National Labor Relations Board.
WE WILL NOT in any like or related manner restrain
or coerce employees in the exercise of their. right to
refrain from joining or assisting our Union as is
guaranteed by Section 7 of the National Labor
Relations Act.
INTERNATIONAL
BROTHERHOOD OF
TEAMSTERS, CHAUFFEURS,
WAREHOUSEMEN AND
HELPERS OF AMERICA