Rappaport Exhibits, Inc.

National Labor Relations Board - Board Decisions

Jun 21, 1976

224 N.L.R.B. 1558 (N.L.R.B. 1976)

1558 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Rappaport Exhibits , Inc. and Roger Barth . Case 8-
CA-9485
June 21, 1976
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS JENKINS
AND WALTHER
sign and manufacture of displays and exhibits . It annually
ships products valued in excess of $50,000 from its Cleve-
land location to points outside the State of Ohio. I find, as
Respondent admits , that it is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of the
Act. Sign, Display and Allied Trades , Local Union No. 639
of Ohio, of the International Brotherhood of Painters and
Allied Trades , AFL-CIO, are labor organizations within
the meaning of Section 2(5) of the Act.
On February 9, 1976, Administrative Law Judge
Melvin J. Welles issued the attached Decision in this
proceeding. Thereafter, the General Counsel filed ex-
ceptions 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 I 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 complaint be, and it hereby is, dis-
missed in its entirety.
i In affirming, we read the Administrative Law Judge's Decision as con-
cluding that Respondent's refusal to rehire employee Barth was based on his
prior insubordination and other factors and not on his having filed griev-
ances while acting as shop steward
DECISION
STATEMENT OF THE CASE
MELVIN J. WELLES, Administrative Law Judge: This case
was heard at Cleveland, Ohio, on January 28, 1976, based
on charges filed September 24, 1975, and amended October
29, and a complaint issued October 30, alleging that Re-
spondent violated Section 8(a)(1) and (3) of the Act.
Upon the entire record in the case, including my obser-
vation of the witnesses, I make the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE EMPLOYER AND THE LABOR
ORGANIZATION INVOLVED
Respondent, an Ohio corporation, with its principal
place of business at Cleveland, Ohio, is engaged in the de-
1I. THE ALLEGED UNFAIR LABOR PRACTICES
Facts and Discussion
The sole issue in this case is whether Respondent was
discriminatorily motivated in refusing to reemploy Roger
Barth. Barth had worked for Respondent for some 13
years, and been steward for Local 639 the last 6 of them.)
During those 6 years, Barth submitted about six or seven
grievances,2 all of which were resolved without resort to
arbitration, in most instances favorable to the Union's po-
sition. On Thursday, September 4, 1975, in the afternoon,
shop superintendent Rudy Barbato told Barth to do some
spray painting, and Barth refused, continuing to refuse
when Barbato repeated the direction some five or six times.
On the following Monday, September 8, Sherman Rappa-
port, the Company's President, discharged Barth because
of his insubordinate failure to do the spray painting.' Rap-
paport told Barth, when he discharged him, "If you are not
going to do the work that you are asked to do, I have no
other choice but to fire you."
Barth complained to Datko about the discharge, and
Datko determined, after consulting with union counsel,
that the discharge was not grievable. Datko told Barth that
he "didn't have a leg to stand on." The General Counsel,
indeed, concedes that the discharge was for good cause-
the reason given-and does not allege it was a violation of
the Act.
When Barth left Rappapor_'s office following his dis-
charge, assistant foreman Trzcinski was with him. Accord-
ing to Barth, Trzcinski said to him "Well, I told you sooner
or later that he'd get you." Trzcinski gave a somewhat dif-
ferent version of their conversation at that time, testifying
that he told Barth "See, Roger, your big mouth got you in
big trouble," and that when Barth asked him, "Well, why is
it, because of grievances?" Trzcinski responded, "Go ask
Sherman. You were there. I was there. The reason why is
that you didn't spray the panels like you were asked to."
In October, Barth called Rappaport about getting his job
back, and Rappaport told him there were "bad feelings,"
and added "Why don't we wait and see what happens." In
The Union has represented employees of the Company for more than 40
years
2 Five "grievance forms" were introduced into evidence Barth testified
that he filed "between 6 and 7," and Local 639 business manager Datko
testified to "nine or ten or even more," adding that he was "not positive"
3 Apparently Barth thought he should not be required to do the painting,
that he was being "picked on " There is no suggestion, however, that even in
Barth's view, being "picked on" at the time was in any way related to his
activities as steward for Local 639 And the testimony shows that Barth had
previously performed spray painting work
224 NLRB No. 210
RAPPAPORT EXHIBITS , INC 1559
the meantime, Barth had spoken to Datko about attempt-
ing to get his job back (The testimony was not too clear
This may have been when Datko told Barth he did not
"have a leg to stand on ") Datko called Rappaport on the
telephone, and asked Rappaport if he would take back
Barth Rappaport said to Datko, "Well, you know, we have
had problems," and asked Datko to talk to his attorney
about it Subsequently, Datko, having called Respondent's
attorney, again called Rappaport, and asked him if he
would consider putting Barth back to work According to
Datko, Rappaport replied, "No, not right now I don't
think I want him back because I have had a problem with
Roger with the grievances and headaches concerned in all
these years which have transpired" Datko also testified
that Rappaport mentioned other "reasons" for not rehiring
Barth, including Barth's inability to get along with Rudy
Barbato, one of the supervisors, performing jobs incorrect-
ly, lack of cooperation, and that bringing Barth back
would destroy the morale of the shop Rappaport denied
any mention having been made of grievance problems in
his conversations with Datko Rappaport also testified that
Barth's workmanship, over the years, had been "less than
the best," that he had clashes with his supervisors, that he
did not get along with the other men in the shop, and that
the Company was in a declining business period, and has
not to date replaced Barth He specifically denied that his
refusal to rehire Barth was based in any way on Barth's
activities as a steward
Assuming the complete accuracy of Datko's version of
his second telephone conversation with Rappaport,4 I am
not satisfied that the General Counsel has proven that Re-
spondent violated the Act by failing to rehire Barth In the
first place, the principal reason for not recalling a man
discharged for a particular cause is obviously the cause
that led to the discharge That "cause" became subsumed
in a number of other reasons, it manifestly needed no repe-
tition as both Datko and Rappaport knew the discharge
reason, and Datko had already accepted it as valid, when
the question became one of "why not forgive and take him
back?" And in that context, a combination of reasons such
as Barth's poor workmanship, his troubles with his supervi-
sor, his relations with the other employees, and, finally, his
"problems with grievances," scarcely makes the last factor
a truly operative reason for the failure to rescind the dis-
charge
If it could be inferred that but for Barth's having filed
the approximately six or seven grievances Rappaport
would have acceded to Datko's request that Barth be re-
hired, there would be a violation of the Act no matter how
just and proper the cause See, e g, Hunter Saw Division of
Asko, Inc, 202 NLRB 330 (1973) And even one reference
by Rappaport (once again, assuming it was made) to prob-
lems with grievances could, in other circumstances, be suf-
ficient to warrant such an inference Here, however, Rap-
paport has had a longstanding and obviously amicable
relationship with Local 639, all the grievances filed by
Barth were resolved by meetings with management offi-
cials, with Rappaport himself finding merit in most of
them, and with one including payment to Barth of $425
There is very little basis in the record for concluding that
Rappaport bore the kind of antipathy toward Barth for
filing grievances that would cause him to act differently
toward Barth on that account There was testimony by
Datko concerning an incident about 2 years earlier when
Rappaport took a grievance form and "tossed it on the
floor " But it was Datko, not Barth, who handed that griev-
ance to Rappaport And Rappaport frankly admitted that
he was "aggravated" about one grievance filed by Barth
But the filing of six or seven grievances in a 6-year period,
hardly a vast number, and with all of them settled without
resort to arbitration, does not suggest the kind of activity
by Barth that would give rise to hostility on the part of
Rappaport, even taking into account the two occasions
(and I am not sure that the grievance tossed on the floor
was not the same grievance about which Rappaport was
"aggravated") adverted to above
Barth was discharged for good cause in September 1975,
5 months after the last grievance filed by him In these
circumstances, there is not even a temporal relationship
between Barth's steward's activities and the failure to re-
hire him thereafter Both qualitatively and quantitatively,
then, it would be surprising if Rappaport viewed Barth's
filing grievances with sufficient hostility to cause him for
that reason, or even in part for that reason, to act any
differently from what he would have had Barth never even
been a steward
For all the foregoing reasons, I am convinced that
Rappaport's failure to rehire Barth was not caused, in
whole or in part, by Barth's filing grievances during his
6-year tenure as steward for Local 639, and I shall recom-
mend dismissal of the complaint herein
CONCLUSION OF LAW
4It is clear that Datko, and the Union had a good relationship with
Rappaport , and I am convinced that neither Datko nor Rappaport was in
any intentional way coloring his testimony Actually Datko s version of the
conversation was somewhat amorphous he clearly had no precise recollec
Lion of what was said Indeed the reasons other than a problem with
grievances did not emerge until Respondents cross examination of Datko
Respondent has not engaged in any conduct violative of
the Act
[Recommended Order for dismissal omitted from publi-
cation ]