Remgrit Corp.

National Labor Relations Board - Board Decisions

Feb 28, 1990

297 N.L.R.B. 803 (N.L.R.B. 1990)

REMGRIT CORP 803
RemGrit Corporation and Retail, Wholesale and De-
partment Store Union, United Retail and Indus-
trial Union, Local 282, AFL-CIO and Industri-
al Machine and Office Workers Union. Cases
39-CA-3630 and 39-CA-3646
February 28, 1990
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND DEVANEY
On March 16, 1989, Administrative Law Judge
Joel P Biblowitz issued the attached decision The
General Counsel filed exceptions and a supporting
brief, the Respondent filed cross-exceptions and a
bnef in support of its cross-exceptions and in reply
to the General Counsel's exceptions, and the Gen-
eral Counsel filed a bnef in response to the Re-
spondent's cross-exceptions '
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel
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, 2 and
conclusions as modified 3 and to adopt the recom-
mended Order as modified
AMENDED CONCLUSIONS OF LAW
Substitute the following for Conclusion of Law
5(a) and reletter the subsequent paragraphs
"(a) Unilaterally modifying its collective-bargain-
ing agreement during the term of the agreement by
1 The General Counsel filed a motion to partially strike the Respond-
ent's brief in support of cross-exceptions, on the basis that the Respond-
ent refers to certain facts not in evidence in support of its arguments We
grant the General Counsel s motion, and thus strike fn 2 and that portion
of p 12 that refers to fn 2 from the Respondent s brief
2 The General Counsel has excepted to some of the judge's credibility
findings The Board's established policy is not to overrule an administra-
tive law judge's credibility resolutions unless the clear preponderance of
all the relevant evidence convinces us that they are Incorrect Standard
Dry Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Or
1951) We have carefully examined the record and find no basis for re-
versing the findings
The judge failed to Include in the Jurisdiction' section of his decision
commerce facts establishing the Board's jurisdiction over the Respondent
Accordingly, we add the following undisputed commerce facts
The Respondent, a South Carolina corporation with an office and
place of business in Bridgeport, Connecticut, has been engaged in the
production and nonretail sale and distribution of abrasive matenals
During the 12-month period ending October 31, 1987, the Respondent
purchased and received at its Bridgeport facility products, goods, and
matenals valued in excess of $50,000 directly from points outside the
State of Connecticut The Respondent is an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of the Act
3 The judge, although finding that the Respondent engaged in direct
dealing with its employees and modified its collective-bargaining agree-
ment during the term of the agreement, failed to include these violations
in his "Conclusions of Law" section, and failed to Include cease-and-
desist provisions pertaining to these violations in his recommended Order
Accordingly, we amend Ins Conclusions of Law and modify his recom-
mended Order to Include such provisions
granting wage increases to its bargaining unit em-
ployees
"(b) Bypassing the IMOWU and dealing directly
with bargaining unit .employees concerning the
granting of wage increases"
ORDER
• The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent, RemGnt Corporation, Bridgeport, Con-
necticut, its officers, agents, successors, and assigns,
shall take the action set forth in the Order as modi-
fied
1 Substitute the following for paragraph 1(a)
and reletter the subsequent paragraphs
"(a) Unilaterally modifying its collective-bargain-
ing agreement during the term of the agreement by
granting wage increases to its bargaining unit em-
ployees, provided, however, that nothing contained
here shall be construed as authorizing or requiring
the Respondent to order a return of the additional
compensation
"(b) Bypassing the IMOWU and dealing directly
with bargaining unit employees concerning the
granting of wage increase's"
2 Substitute the attached notice for that of the
administrative law judge
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The -National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice
WE WILL NOT unilaterally modify our collective-
bargaining agreement with Industrial Machine and
Office Workers Union by granting wage increases,
provided, however, that nothing contained here
shall be construed as authorizing or requiring us to
order a return of the additional compensation
WE WILL NOT bypass the Union and deal direct-
ly with our bargaining unit einployees concerning
the granting of wage increases,
WE WILL NOT discontinue the deduction of
union dues from the salary of our employees who
authorized such deductions and the transmittal of
those dues to the Union
WE WILL NOT refuse to recognize or bargain
with the Union, which is the collective-bargaining
representative of our employees in the following
appropriate unit
297 NLRB No 135
804 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
All production, maintenance, shipping and
office employees of the plant, excluding
watchmen, guards, executive, administrative
and professional employees, confidential secre-
taries, all other employees handling confiden
tial information and supervisory employees as
defined in the Act
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act
WE WILL deduct dues from the pay of employ-
ees who have executed dues-checkoff authonzation
forms for the Union and transmit these funds to the
Union
WE WILL reimburse the Union for the dues we
failed to transmit since about August 1, 1987
WE WILL, on request, bargain with the Union as
the exclusive representative of our employees in
the appropriate unit described above
REMGRIT CORPORATION
Michael A Marcionese Esq , for the General Counsel
William H Smith Esq for the Respondent
Charles Vizvarry President, for Industrial Machine and
Office Workers Union
DECISION
ployees with reprisals if they engaged in union activities
and that it threatened to reduce employees Christmas
bonuses because they filed charges with the Board This
complaint also alleges that smce about April 23, 1986,
IMOWU has been the exclusive collective bargaining
representative of Respondent s production and mamte
nance employees and that such recognition is embodied
in a collective bargaining agreement effective June 30,
1986 through July 1 1989 The complaint further alleges
that on about July 1 Respondent bypassed the Union
and engaged in direct dealing with the employees con
cernmg wages and failed to continue in full force and
effect the above descnbed contract by failing to deduct
and remit union dues to IMOWU, by increasing the
wages of certain of its maintenance employees and by
failing to post job openings for existing positions m the
unit Finally, the complaint alleges that on about July 1
Respondent withdrew its recognition of IMOWU, all in
violation of Section 8(a)(1) and (5) of the Act
On the entire record, mcludmg my observation of the
witness herein and the bnefs received I make the fol
lowing
FINDINGS OF FACT
I JURISDICTION
There being no dispute, I find that Respondent is an
employer engaged in commerce within the meaning of
Section 2(2), (6) and (7) of the Act
II LABOR ORGANIZATION STATUS
STATEMENT OF THE CASE
JOEL P BIBLOWITZ Administrative Law Judge This
case was heard by me on October 17 and 18, 1988 in
Hartford Connecticut The complaint in Case 39-CA-
3630 issued on November 6 1987, 1 and was based on an
unfair labor practice charge filed on September 23 by
Retail Wholesale and Department Store Union United
Retail and Industrial Union Local 282 AFL-CIO
(Local 282) The complaint in Case 39-CA-3646 Issued
on January 21 1988, and was based on an unfair labor
practice charge and an amended charge filed October 14
and November 23 by Industrial Machine and Office
Workers Union (IMOWU) On January 21 1988 an
order consolidating cases issued consolidating the above
two cases Case 39-CA-3630 alleges that on about
August 12 Respondent interrogated its employees regard
mg their protected concerted activities, on about August
12 transferred employees James Schlenk and Joseph
Aranjo to different shifts and harassed, suspended, and
subsequently discharged Schlenk on September 20 be
cause he and others acted in a concerted manner in com
plammg to governmental agenices regarding the wages
hours, and working conditions of Respondent s employ
ees in violation of Section 8(a)(1) of the Act Case 39-
CA-3646 alleges that on about June 30, Respondent cre
ated an impression among its employees that their union
activities were under surveillance and threatened em
'Unless Indicated otherwise all dates referred to herein relate to 1987
Respodent admits that at the time it entered into a col
lective bargaining agreement with IMOWU effective
July 1 1986, it was a labor organization within the mean
mg of the Act but because of its defense that, subse
quently IMOWU became defunct, it denies that it is
presently a labor organization within the meaning of Sec
tion 2(5) of the Act Respondent also denies that Local
282 is a labor organization within the meaning of the
Act no evidence was adduced at the hearing in this
regard On the basis of the evidence adduced at the hear
mg I find that IMOWU was, and continues to be, a
labor organization within the meaning of Section 2(5) of
the Act
III BACKGROUND
The facility presently operated by Respondent was
previously owned and operated for many years by the
Remington Arms Company (Remington) Respondent s
operation is extremely limited (in size and scope) com
pared to that of Remington Respondent commenced op
erations at the site on July 1, 1986 Respondent conducts
manufacturing principally in two areas a rim fire depart
ment where It manufactures and stores empty shells and
lead slugs under orders of Remington and an abrasives
department where it manufactures cutting tools such as
jigsaw blades Since about 1942 IMOWU has represent
ed certain of Remington s employees (and those of no
REMGRIT CORP 805
other employer) 2 After Respondent purchased certain of
Remington's operations, the employees in the purchased
areas had the choice of remaining with Remington or
being employed by Respondent In about March, Re-
spondent recognized IMOWU as the exclusive collec-
tive-bargaining representative of the production, mainte-
nance, shipping, and office employees employed at its fa-
cility in Bridgeport, the majority of whom had previous-
ly been employed at the same facility by Remington On
April 23, 1986, Respondent and IMOWU executed a col-
lective-bargaining agreement covering these employees,
to be effective June 30, 1986, when the sale of the facili-
ty was completed
Because the allegation of each of the complaints
herein, are basically distinct and are not dependent upon
the other for enlightenment, they will_be discussed spara-
tely First discussed will be the allegations of Case 39-
CA-3646
I IV FACTS AND ANALYSIS
On June 28, IMOWU (an independent union) conduct-
ed an affiliation vote among its members on the question
of affiliating with Local 282 By letter dated July 2,
counsel for Local 282 wrote to Respondent
This letter will serve as formal noification. to
RemGnt that the membership of IMOWU has over-
whelmingly voted to affiliate with United Retail
and Industrial Union, Local 282, Retail Wholesale
and Department Store Union, AFL-CIO The affili-
ation with Local 282 took-effect on July 1, 1987 As
a result the payment for dues being checked off
should be made payable to Local . 282 The Union
realizes that it will require some time to adjust the
data processing and in the interim checks still pay-
able to IMOWU are perfectly satisfactory . No
change in the makeup of stewards will take place as
a result of this affiliation Charles Vizvary and
Angela Fucm are now members of Local 282 who
will also join the other noted individuals in union-
management meetings..
r Local 282's headquarters are at 60 North Main
Street, Wallingford, Connecticut 06452, phone 265-
6707, the IMOWU's ,Bridgeport office is now
closed
If you have any questions, please feel free to call
me
By letter dated July 17, Raymond Anderson, vice
president of Respondent, wrote to counsel for Local 282
Receipt is acknowledged of your letter dated
July 2, 1987 It was delayed in receipt, pdssibly be-
cause of the erroneous zip, which which should be
06608
As you know, in June of last year the RemGnt
Corporation purchased the plant 'site at Barnum
Avenue and then became a separate employing
2 The IMOWU bylaws reitnct . membership to Remington employees
On December 7, 1986, the union membership rejected an attempt to
amend these bylaws to cover the Bridgeport area (which would include
Respondent s employees)
entity from the seller Upon purchase, the RemGrit
employees became, in fact, a separate collective bar-
gaining unit from that which had existed with the
seller Also, while the sale negotiations were in
progress, RemGnt and the IMOWU negotiated a
collective bargaining contract which applied exclu-
sively to the RemGrit employees
Your letter, therefore, prompts a primary ques-
tion
Was the membership vote referred to in your
letter confined to IMOWU members employed at
RemGnt, or did that membership vote include per-
sons employed by some other employer'
Your letter suggest other questions, but the one
above seems paramount for answer
Counsel for Local 282 responded by letter dated July
Thank you for your letter of July 17
To answer your question You well know that as
a result of the divestiture by Remington to Rem-
Grit, the IMOWU was party to two contracts The
union' still consists of both units Other than on
issues germane to just one unit,. all members vote to-
gether Thus, all members were given an opportuni-
ty to vote and did, as one unit It was clear that the
affilialion- was supported across-the-board since
there was a large turnout for the vote and the vote
in favor of affiliation was virtually unanimous
Anderson's reply is dated August 5
. r
We have received your letter of July 21, 1987
It was our information that a single vote was
conducted involving employees of the separate bar-
gaining units indistinguishably, and we thank you
for confirming it
A number of matters continue to bother us
1 The disparity in size between the bargaining
unit at the Remington Arms plant and the unit at
RemGnt, thus assuring an "overwhelming vote to
affiliate" by the Remington Arms employees, even
if all RemGnt employees were opposed .
2 Our belief that the majority of the very few
RemGnt employees who attended the meeting did
so oppose
3 Whether employees of one bargaining unit can
determine and control the representational rights of
the employees of another bargaining unit,
4 Our information and belief that the By-Laws
of the IMOWU make no provision for such affili-
ation questions
5 Our information and belief that the By-Laws
of the IMOWU continue to restrict membership to
employees of the gemmgton Arms Co, Inc
, Your prior letter indicates that Mr Phil Peeler,
President of Local 282, and on behalf of Local 282,
expects to undertake as collective bargaining repre-
sentative of RemGnt's employees, and that the offi-
cers of the IMOWU no longer have any function as
such officers
21
of
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806 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Your prior letter states that dues collected pursu-
ant to RemGrit's current contract with the
IMOWU are to be paid over to Local 282, that the
IMOWU office is now closed, and that the applica-
ble office is now that of Local 282 in Wallingford.
Under all of these circumstances we feel it is ap-
propriate, and necessary, that Local 282, United
Retail, Wholesale and Department Store Union,
AFL-CIO, make appropriate petition to the NLRB
for a determination of the representational rights of
Local 282 as to RemGrit's employees.
Until appropriate NLRB determination is made,
RemGrit must decline to recognize Local 282 as
collective bargaining representative of the employ-
ees of RemGrit.
Pursuant to RemGrit's continuing contract with
the IMOWU, RemGrit shall continue to deduct
dues from those employees who authorized dues to
be deducted and paid to the IMOWU, however,
such collected dues will be deposited in an interest
bearing escrow account for such subsequent distri-
bution as lawful authority determines appropriate.
On or about August 10, Respondent distributed the
following notice to its employees:
TO ALL EMPLOYEES
We were recently advised by the IMOWU attor-
ney that the IMOWU membership has voted to af-
filiate with the United Retail and Industrial Union,
Local 282, Retail, Wholesale and Department Store
Union
The IMOWU attorney also advised:
1. That the affiliation was effective on July 1,
1987.
2. That deducted dues should be sent to Local
282
3 That the IMOWU office is now closed.
4. That the Local 282 office is in Wallingford, Ct.
We subsequently received information that Rem-
Grit employees were not given the chance to vote
separately on the affiliation question, even though
our RemGrit employees comprise a separate collec-
tive bargaining unit, and are far outnumbered by the
Remington Arms employees.
RemGnt has accordingly:
1. Advised the Union to petition the NLRB for
an appropriate determination of the rights of Local
282, and YOUR RIGHTS.
2. Advised that RemGrit will not recognize
Local 282 unless and until the NLRB makes such a
determination
3. Advised that pursuant to our continuing con-
tract with the IMOWU, RemGnt will continue to
deduct dues as the individual employee has author-
ized, but instead of paying those dues to Local 282,
RemGrit will deposit the dues money into an inter-
est bearing escrow account pending determination
by lawful proper authority.
As RemGrit sees it, the dues, with accumulated
interest, will ultimately be paid, either.
1. To the IMOWU, if still existant, or
2 To Local 282 if the affiliation vote was proper
and effectively binds RemGnt's employees, or
3. Returned to the individual contributing em-
ployee.
We will keep everyone advised as this matter de-
velops.
A copy of our letter to the IMOWU attorney is
in Frank Bisogno's office and you are free to see it
in its entirety at reasonable times.
On August 28, Local 282 filed an unfair labor practice
charge alleging that Respondent's refusal to recognize or
bargain with it violated Section 8(a)(1)and (5) of the Act.
This charge was dismissed by the officer in charge of the
Subregional Office on October 1 on the ground that the
result of the attempted affiliation was that IMOWU
would cease to exist as a distinct and separate entity and
therefore the purported affiliation was a complete change
in the employees' bargaining representative. By letter
dated October 8, Respondent informed its employees of
the dismissal of the unfair labor practice charge and fur-
ther stated that in view of this decision and prior notices
to employees, IMOWU dues, being held in escrow, with
interest, would be returned to its employees By letter
dated October 15, Respondent informed its employees
that, because the Subregional Office found that IMOWU
no longer exists and that Respondent is not obligated to
recognize Local 282, dues will no longer be deducted
from their pay.
On October 11, IMOWU held another membership
meeting at which the members voted to affiliate with
RWDSU and seek a separate local charter (presumably
as Local 283) By letter dated October 13, Counsel for
Local 282 informed Respondent that at the meeting, 54
of the 116 IMOWU members were present and with
"near unanimity" voted to keep its existing officers in
office and to seek a separate charter from RWDSU. That
the vote on affiliation was conducted in secret by plant,
and the employees of Respondent voted 12 to nothing in
favor of affiliation, and that they expect Respondent to
recognize the result. Respondent did not live up to the
Union's expectations and, on December 11, Local 283
filed an unfair labor practice charge, alleging that Re-
spondent violated Section 8(a)(1) and (5) of the Act by
refusing to recognize and bargain with it. By letter dated
January 20, 1988, the Subregional Office dismissed the
charge on the ground that the organizational changes in
the attempted affiliation were substantial enough to
create a different entity, and therefore a question con-
cerning representation arose; a Board-conducted election
is mandated in such a situation. The appeal of this dismis-
sal was denied by the General Counsel by letter dated
September 29, 1988.
Employees Joseph Pascucci and Richard Gabriel testi-
fied to a meeting held at the facility for certain of Re-
spondent's maintenance employees; about three other
employees attended. Anderson spoke on behalf of Re-
spondent, Frank Bisogno, Respondent's human resources
manager (and formerly the president of IMOWU), was
present as well. This meeting occurred a day or two
after Respondent's October 8 letter to the employees,
supra, which stated: "We also expressed doubt as to the
e
REMGRIT CORP 807
very existence of the IMOWU after the affiliation" Pas-
cucci testified that Anderson read from the October 8
letter and then said: "Now, there's no more union here at
Remgrit." He then spoke of the Schlenk discharge, infra.
When he completed his talk, Pascucci asked, if there
were no union, who would represent them. Bisogno said
that if they got fired or had any grievances, they could
go to the Board. Somebody then asked about the existing
contract and benefits; Anderson said that the contract
would be followed. "nothing would change, when raises
came due in July, we would get the raises." Gabriel testi-
fied that at this meeting Anderson said that Respondent
did not agree with the Local 282 affiliation and the
Board ruled in their favor. He also said "that there
would no longer be a union at Remgnt and that dues
would be returned to us in our next pay" He also said
that he would abide by the contract
Anderson testified on behalf of Respondent about the
October 9 meetings, one of which was with the mainte-
nance department, including Pascucci, Gabriel, and
others. However, Anderson never testified regarding
what he told the employees at these meetings. Rather,
Respondent introduced into evidence an outline Ander-
son prepared a few days after these meetings as a sum-
mary of what took place generally at these meetings. In-
cluded were the following "concerns . . . voiced by em-
ployees regarding the prospect of a non-union environ-
ment":
(1) What becomes of the Contract?
(2) Who will represent us?
(3) Will seniority be honored?
(4) Will job posting continue?
(5) If you decide to honor the Contract, as
you've said, what happens when it runs out?
(6) How about raises?
Typical answers to the above:
(1) Most of it would become part of our operat-
ing policy (except for the parts which require
Union participation such as grievance, procedure,
arbitration, etc.)
(2) Your Supervisor, Human Resources Manager,
Vice President would handle progression of legiti-
mate problems
(3) Yes, in exactly the same way as it is now.
(4) Yes
(5) The only parts that would "run out" are the
increase specifics. Increases would be based on busi-
ness conditions, local pay considerations, profitabil-
ity, etc The incentive basis system would have a
better chance to work as intended.
(6) As above.
At a later point, this outline states "NLRB rules
IMOWU no longer exists" and "There is no Union at
RemGrit as of now."
Pascucci testified that at this meeting Anderson re-
ferred to Schlenk's discharge and the unfair labor prac-
tice charge that was filed with the Board. He said that
Respondent would fight it— "all the money or any cost
that it took would come out of our Christmas bonus at
the end of the year" Gabriel, who was present at and
testified about this meeting did not testify that such a
statement was made. Anderson testified that he made no
such statement. In its October 8 letter to employees,
supra, Anderson informed the employees of the unfair
labor practice charge filed regarding Schlenk's discharge
(to be discussed infra). The letter states: "We have
denied the charge but must nonetheless spend the time
and financial resources required to justify our position
If
Respondent's principal defense regarding this allega-
tion is that it did not violate Section 8(a)(5) of the Act
because since about July IMOWU has ceased to exist.
The Union's office has been closed, "the officers and Ex-
ecutive Board of the Union have been substantially dis-
banded," the IMOWU has failed to maintain stewards at
the plant or to present and process grievances, and has
failed to amend its bylaws to permit other than employ-
ees of Remington to become members of IMOWU. Prior
to Respondent taking over some of Remington's oper-
ation in July, Frank Bisogno was the president of
IMOWU and Charles Vizvary (who is employed by
Remington) was financial secretary and treasurer. Bi-
sogno was offered, and accepted, the position of human
resource manager for Respondent and, shortly thereafter,
Vizvary was elected president of IMOWU By letter
dated July 25, 1986, to Respondent, IMOWU listed its
five officers and four departmental stewards. Of these
five officers, only Vizvary remains, there is presently a
replacement secretary and a treasurer, 3 but no vice presi-
dent or financial secretary, although the bylaws call for
such positions. Three of the four stewards listed in the
letter continue to occupy that position
Vizvary testified that during the first year of the con-
tract's terms, he had a number of meetings with repre-
sentatives of Respondent regarding enforcement of the
contract. One was to represent an employee who was
about to be terminated by Respondent Additionally, in
about August 1986, he complained to Bisogno about
management performing cleanup work—pulling up and
cutting grass and painting—which he felt was bargaining
unit work. Bisogno reassured him that it was a one-time-
only situation where the work was being performed by
salaried employees to cut down expenses, and that it
would expedite the opening of the cafeteria. The Union
did not file a grievance on the matter. On one occasion,
Vizvary requested of Respondent an organizational
chart, a seniority list and job descriptions. The Union
eventually received all this information except for job
descriptions in the Rimfire division. In about mid-Sep-
tember, Vizvary was informed by Pascucci that Re-
spondent was terminating employee Donald St. John.
Vizvary called Anderson and asked him if it was true
and he said that it was. Vizvary asked if he could come
to the facility to represent St John and Anderson said
that he could as long as it was under IMOWU When he
got to the facility, he met with St. John, Bisogno, and
3 By letter to Respondent dated August 25, Vizvary notified Anderson
that he had appointed Pascucci and James Lynch to these positions Pas-
cucci was hired by Respondent on July 5, 1986, and became a member of
IMOWU on December 12, 1986 IMOWU bylaws require that a person
be a member of the Union in good standing for 1 year prior to becoming
eligible to be an officer of the Union
1
808 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Supervisor Larry Grillo. He then spoke privately with
St. John and then, Bisogno and Grillo. When this at-
tempt to settle the matter was unsuccessful, he informed
Bisogno that he was going to file a grievance on the
matter, Bisogno said that was acceptable as long as it
was on a IMOWU form. On September 16 and 18, Viz-
vary gave Grub twot grievances on IMOWU forms; the
first alleged a violation of the contract by the failure of
Respondent to notify the Union of its intention to dis-
charge St. John. The second alleged that the Respondent
did not have reasonable cause to discharge St. John. By
letter dated September 18, Respondent returned the first
grievance to Vizvary (the second grievance alleging no
reasonable cause to discharge is not referred to), giving
as reasons the fact that Vizvary is not an employee of
Respondent, so he is not an "appropriate representative"
and repeating that the Union's attorney had informed
them in the July 2 letter that IMOWU had affiliated with
Local 282 and that "IMOWU was closed." The next em-
ployee whom Respondent fired was James Schlenk, dis-
cussed infra
In August, Vizvary called Bisogno and told him that
he was sending him dues-authorization forms; Bisogno
said that as long as they were on IMOWU forms, they
would be accepted. Ten dues-checkoff authorization
forms of IMOWU, signed by employees on August 14
were delivered to Respondent on about that day. By
letter to Vizvary dated September 1, Anderson states,
inter aim:
Again, we must question your status as President of
the IMOWU, and, frankly, question the current ex-
istence of the IMOWU. We have an obligation to
the employees of RemGrit that their money, which
they have authorized to be deducted as dues, goes
to their legal collective bargaining representative,
and we do not know who that representative is, if
any.
Presumably, Respondent never remitted the dues of
these 10 employees to IMOWU. Vizvary initially testi-
fied that he believes Respondent did remit the dues to
IMOWU, but then testified that in about June or July,
Respondent stopped remitting dues deducted to
IMOWU.
The complaint also alleges that on about July 1, Re-
spondent bypassed the Union and dealt directly with its
unit employees concerning wages and failed to continue
in full force and effect the contractual terms of its agree-
ment with IMOWU by increasing the wages of certain
maintenance employees and failing to post job openings
for existing unit positions. The contract states that "new
jobs or other job vacancies . . will be posted on desig-
nated bulletin boards in each department for a period of
two working days" This allegation is supported by the
testimony of employee James Lynch, which is somewhat
confusing.
Q. Now, during that time, after July of 1987, did
the company post job openings in your area?
A. Well, with my department, job posting were
[sic] not up, not until, I would say, no more than
around in May
Q. May of what year?
A Well, I know of '87 there was no jobs posted
on the board. I didn't see any.
Q. Do you know—
A Most of the jobs that I know that were posted
were always over in abrasive area. A lot of times
there were jobs or such things to be posted were
never posted up on our boards.
Q But they were posted on other boards?
A. (No verbal response.)
Q. Was that a yes?
A. Pardon me?
He eventually answered in the affirmative In addition,
employee Joseph Aranjo testified that after Schlenk was
terminated (mid-September) Respondent did not post his
position until about December. Anderson testified that
Schlenk's position was posted in about mid-November
and was filled by an employee from the abrasives depart-
ment who assumed the position in December. Anderson
testified that Respondent has never failed to post a job
opening at the facility.
Lynch was also the General Counsel's sole witness re-
garding the alleged unilateral change regarding the in-
crease in the wages of certain maintenance employees;
although he never specifically testified when this oc-
curred, the complaint alleges that it was on about July 1,
and that appears to conform to the evidence. Lynch tes-
tified that at a certain point, four of their machines were
not working at a time when no repair people were em-
ployed. When he informed Grillo, his supervisor, of this,
Grillo said: "Fix them." Lynch said that they do not get
paid to repair machines. Grillo told him that he and the
other employees would receive 50 cents an hour addi-
tional pay for repairing the machines. The following day
Grillo called a meeting of the four employees in the de-
partment (including Lynch) and told them that they
would alternate for 2-week periods repairing machines
and the employee whose period it was would receive the
additional 50 cents an hour regardless of whether ma-
chines were down. This procedure continued until about
August Grillo testified that this situation began in about
early 1987 and continued for about 3 months. It began
because he had problems getting minor repair work per-
formed. Because he considered his toolsetters to be "ca-
pable and willing and cooperative people" who could
perform this work without the delay Inherent in obtain-
ing outside repair people, he told Lynch ("who was my
union representative for that area"—he was a steward)
about the problem and asked if there was anything
wrong with the toolsetters doing the repair work Lynch
told him that it would be acceptable if they were paid an
additional 50 cents an hour for doing it Grillo agreed
and they decided to discuss it with the other toolsetters.
At this meeting, Grillo told them of the problem, that
the temporary solution was to have them perform the
repair work, and for that they would receive an addition-
al 50 cents an hour.
The complaint also alleges that on about June 30, Re-
spondent, by Bisogno, created an impression among its
employees that their union activities were under surveil-
lance and threatened employees with unspecified repris-
e
REMGRIT CORP 809
als if they engaged in union activities This allegation
also involves Lynch, who testified that a few days after
the IMOWU membership voted to affiliate with Local
282 (June 28) he was called into the office of Mark Hun-
yadi, Respondent's manager of business services; Grillo
and Blsogno were also present. Bisogno told him that he
had been receiving complaints from employees that they
were being bothered by the Union and he wanted to
know what was going on. Lynch said that the Union had
just changed from an independent union to the AFL-
CIO Bisogno said that Respondent did not recognize the
Union because they were following what the contract
said. Bisogno then said that he had not seen him lately in
the cafeteria, that he was using the inspection office.
Lynch denied using the inspection office and Bisogno
said that he was engaged in union activities on Respond-
ent's time. Lynch denied this, saying that he engaged in
union activities only during lunch and coffeebreaks. Bi-
sogno showed him the contract and said: "You're not
supposed to do union activities during company time and
on company premises." Lynch said that he knew that
and Bisogno said that he just wanted to be sure that
Lynch did not encounter any problems. Bisogno did not
testify to any such incident with Lynch; he testified to a
warning he gave to Pascucci for being abusive. On that
occasion, he told Pascucci to watch himself, to calm
down.
The collective-bargaining agreement sets forth the
wage rate for toolsetters; it does not require any case ci-
tation to state that any change in this rate must be nego-
tiated by, and agreed to, by the Respondent and the
Union prior to implementation. This requirement is not
satisfied by the fact that Grillo discussed the 50-cent in-
crease with Lynch, who was the steward, and the affect-
ed employees San Antonio Portland Cement Co., 277
NLRB 309 (1985); TLI, Inc., 271 NLRB 798 (1984). See
Taft Broadcasting Co., 264 NLRB 185 (1982). Nor is
Gnllo's action excused by the fact that Vizvary is not
physically at the facility. Changes in contractual terms
must first be negotiated with the union. This was not
done here so it violates Section 8(a)(1) and (5) of the
Act. I also find that Respondent violated Section 8(a)(1)
and (5) of the Act by discontinuing the deduction of
dues and remittance to IMOWU. The contract between
the parties provides for the form to be executed by Re-
spondent's employees in order for the IMOWU dues to
be deducted from their pay and that these dues are to be
submitted to the IMOWU within 10 days of the end of
that month. Beginning in August, Respondent ceased
transmitting these deducted dues to IMOWU, and in Oc-
tober, Respondent returned all the previously deducted
but not transmitted dues to the employees, all without
previously discussing it with IMOWU. In its answer Re-
spondent alleges that IMOWU is "defunct" and a
"sham"; as this allegation is unsupported by the evidence
(as discussed more fully, supra), I find that the discon-
tinuance of the dues deduction violates Section 8(a)(1)
and (5) of the Act.
The General Counsel next alleges that Bisogno's state-
ments to Lynch on about June 30 created an impression
of surveillance of his union activities and constituted a
threat of reprisals if he engaged in union activities. I dis-
agree with the statement in the General Counsel's brief
that "the clear import of tbese statements was that Re-
spondent was watching Lynch, and in particular, his
union activities during breaks and lunches." Rather, I
find that another interpretation of these statements (and
one that is just as reasonable) is that Bisogno's remarks
to Lynch were a warning or reminder to follow the
terms of the contract in conducting his union activities,
something he was entitled to do. I would therefore rec-
ommend that this allegation be dismissed.
The allegation that on about October 9 Respondent,
by Anderson, threatened to reduce employees' Christmas
bonuses because they filed charges with the Board, in
violation of Section 8(a)(1) of the Act, is a difficult one.
On the one hand, I found persuasive the argument in
General Counsel's brief that Pascucci's testimony that
Anderson said that whatever legal expenses Respondent
incurred in contesting the unfair labor practice charge
would come out of their Christmas bonus was consistent
with Respondent's letter to employees the prior day that
said that Respondent would "spend the time and finan-
cial resources" to justify its position on the charge. On
the other hand, I found Anderson to be a witness who
answered questions in a direct and credible manner. Be-
cause of this, and the fact that Gabriel's testimony did
not support that of Pascucci, I would dismiss this allega-
tion. As regards the allegation that Respondent violated
Section 8(a)(5) of the Act by failing to post job openings
for existing unit positions, I discount Lynch's testimony
on the subject as too confusing to be helpful Aranjo tes-
tified that Schlenk's position was posted in about Decem-
ber; Anderson testified that it was posted in about mid-
November and filled by an employee from the abrasive
department in December. Although (as stated supra) I
found Anderson to be a credible witness, I fail to see any
violation even if I were to credit Aranjo's testimony. I
would therefore dismiss this allegation.
The final allegation is that on about July 1, Respond-
ent withdrew its recognition of the IMOWU Both Pas-
cucci and Gabriel testified that at the October meeting
Anderson said that there was no longer a union repre-
senting Respondent's employees; Anderson's notes of the
meetings he held with the employees that day confirms
that. This conforms to Anderson's earlier communica-
tions with counsel for the Unions and the employees.
The Respondent's defense to this withdrawal of recogni-
tion is: "The IMOWU very clearly no longer exists. It is
nothing more than a name being used in subterfuge by
Local 282 and/or Local 283 to accomplish in fact what
Subregion 39 and General Counsel said they could not
do under the law." This allegation is supported neither in
fact or law During the period in question, IMOWU had
officers, as well as stewards, present at the facility
IMOWU represented (or attempted to do so) two em-
ployees (St. John and Schlenk) in protesting their termi-
nations during this period and transmitted 10 IMOWU
dues-checkoff authorization forms to Respondent. These
are not actions of a nonexisting union Respondent's case
appears to depend upon the statement in the July 2 letter
that the IMOWU office was then closed That statement
must be read in context with the remainder of that letter
810 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
which informed Anderson of the IMOWU vote to affili
ate with Local 282 and requests that dues payments be
made to Local 282 and it gives the Local 282 address
At that point, the letter stated that the IMOWU office
was closed In Steelworkers (L&S Products Inc ), 253
NLRB 961 at 967 (1980) the administrative law judge
stated
In the case of a void affiliation election, it is even
more obvious that the void election and any denva
tive actions did not dissolve the preexisting labor
organization or its collective bargaining contract
with the employer
This language is right on point in this matter The June
28 vote of affiliation admittedly was ineffective that
alone, however did not give Respondent the right to
cease recognizing the IMOWU as the representative of
its employees
Respondent is also incorrect on its application of the
law herein A bargaining representative is considered
defunct and its contract is not a bar only if it is unable or
unwilling to represent the employees Yates Industries
264 NLRB 1237 1249 (1982) See also Pioneer Inn Assoc:
ates, 228 NLRB 1263 (1977) Respondent relies on the
fact that the IMOWU bylaws limit membership to Rem
mgton employees and that under the IMOWU By laws
Pascucci was not eligible to be an officer of the IMOWU
at the time he was appointed to that position However
these are internal union procedures that Respondent
cannot seize upon to defend his actions herem North
Country Motors 146 NLRB 671 (1964) M & M Oldsmo
bile Inc 156 NLRB 903 (1966) I therefore fmd that by
ceasing to recognize IMOWU as the representative of its
employees in October the Respondent violated Section
8(a)(5) of the Act
The other complaint (39-CA-3630) alleges (in addition
to an interrogation by Supervisor Anthony Sockolosky
on about August 12) that Respondent transferred
Schlenk and Aranjo from the day shift to the evening
and night shifts, and subsequently harassed Schlenk
(from about August 1 until September 18) suspended
Schlenk for 5 days (on about September 20), and dis
charged Schlenk (also on September 20) all because
Schlenk and Aranjo acting in concert complained to
Respondent, the Department of Labor and OSHA re
gardmg their wages hours and working conditions all
in violation of Section 8(a)(1) of the Act
This allegation involves the powerhouse employees
(also called boiler tenders or engineers)—Schlenk,
Aranjo, and Bill Haines (who at the time was actually
an independent contractor) The powerhouse provides
steam compressed air and during cold weather, heat to
the buildings at Respondent s facility Schlenk had been
employed in the powerhouse as a boiler tender for Rem
ington and accepted the same position with Respondent
when it commenced operations at the facility on July 1,
1986 From that time until May the powerhouse ran on a
three shift 24 hour a day basis Haines began at about 5
a m, while Schlenk and Aranjo alternated on the second
and third shift Beginning in May all three worked the
day shift with Haines arnvmg about 5 a m to turn on
the boiler
In about early August while Schlenk Aranjo and
Pascucci were performing maintenance work in the pow
erhouse they noticed that some insulation around pipes4
was torn and asbestos was falling from the insulation
They discussed the situation and were concerned about
working in the area with asbestos in the air While they
were working in the area, their supervisor, Sockolosky,
came into the powerhouse and Schlenk told him of the
problem and their fears about it Sockolosky told them
not to worry about it and to perform the work He also
told them to wear respirators over their mouth and nose
and that he would see what he could do about it
Schlenk testified that Sockolosky said that he would con
tact James Ackerman Respondent s supervisor of safety,
security and environmental health Shortly thereafter he
observed that Ackerman had installed an air monitor
system in the powerhouse Schlenk testified that he con
sidered this totally inadequate because it was about 8 feet
above the exposed asbestos rather than below it which
would have provided correct readings of the amount of
asbestos he s got the system above everything I mean,
it s above the highest piece of asbestos or pipe covering
within the building there s nothing running on top
of it Schlenk then discussed the situation with Pascucci
and Aranjo and they decided that Respondent s response
was inadequate Schlenk told Pascucci and Aranjo that
he was going to call OSHA (this was about the second
week in August) and while they were in the power
house Schlenk called OSHA from the office in the pow
erhouse The person whom he spoke to at OSHA told
him that because of a backlog it would take them about
3 months to investigate the situation but that he would
mail him a book of their regulations, which he did
Schlenk later showed this book to Aranjo and Pascucci
Gabriel testified at about this time he was concerned
about removing pipmg that was covered by exposed as
bestos he discussed it with Schlenk who showed him a
folder about asbestos that he had received although he is
not sure from where Schlenk received it ( It might have
been the City of Bridgeport I'm not sure ) Gabriel in
formed Sockolosky of his fears and Sockolosky told him
that Respondent would supply him with any safety
equipment that was needed
Sockolosky testified that in about August Schlenk
showed him a situation where a pipe had rusted causing
a leak with resulting exposure of asbestos Sockolosky
told him that he would notify Respondent s Safety De
partment to investigate the matter and attempt to correct
the problem if there was one He also told Schlenk to
wear his respirator while performing the work Socko
losky then told Ackerman of Schlenk s complaint about
asbestos Several weeks later Schlenk told him I guess
you heard that I called OSHA I told them that you did
what you had to do about it
Ackerman testified that in about the latter part of
August, Sockolosky told him that Schlenk had corn
4 Aranjo testified that the problem was the asbestos insulation covering
the pipes Schlenk and Pascucci testified that the problem was the asbes
tos covering on the hot water tanks
REMGRIT CORP 811
plamed to him about the asbestos level in the power-
house Ackerman then placed a monitor on what would
be the third level of the powerhouse—about 30 feet from
the floor He chose this spot because this is where
Schlenk would have been working to repair the tank
When he retneved that monitor, he saw that it had been
tampered with in that somebody had crumpled insulation
over the cassette Several days later, he repeated the test
at four locations, two up a few levels and the other two
at ground level These cassettes were sent to an inde-
pendent laboratory which, by letter dated September 24
(about a week after he sent the cassettes for analysis), in-
formed Respondent of the result of its analysis Each one
was below OSHA standards for permissible levels of as-
bestos 5
Anderson testified that on September 18, Henry Gross
from the Connecticut State Department of Health Serv-
ices, came to the facility and said that he had received a
complaint from Phil Peeler, president of Local 282, re-
garding unsafe working conditions in the powerhouse
due to asbestos Anderson arranged for Gross to be
taken to the powerhouse where he did some testing Ap-
proximately 2 weeks later, Respondent received the re-
sults of this test which stated that no asbestos was found
As stated, supra, from about July 1, 1986, to May,
Schlenk, Aranjo, and Haines worked three shifts, begin-
ning in May, Respondent switched to a single-shift oper-
ation in the powerhouse with Haynes reporting at about
5 a m to start up the boilers and Schlenk and Aranjo re-
porting shortly thereafter
Aranjo testified that about 2 weeks after Schlenk
called OSHA, Sockolosky came into the powerhouse
and told Schlenk that it was a mistake to call OSHA and
he should have checked with supervision first He then
told Schlenk and Aranjo that he was going to put them
on the night shift, he would be 3 to 11 p m and Schlenk
would be 11 p m to 7 a m He testified "Well, I don't
know if he was joking or what, but he made a statement
so far as saying that he was putting us on the night shift
to get us- out of the way for a while until things cool
off" Schlenk testified that about a week after he re-
ceived the OSHA material, Sockolosky called the pow-
erhouse and said that he wanted to speak to Schlenk and
Sockolosky He arrived and asked Schlenk if he had
called OSHA and he said that he had, Schlenk told him
"I'm sitting here in a dust bowl and nobody's really
doing anything about it" That was why he called
OSHA Aranjo told Sockolosky that he agreed with
Schlenk Sockolosky told him that he went too far and
had no right to call OSHA, and "he told Joe and myself
we were going to go on nights That's what they did
that following Monday" (He places this in about mid-
August ) When Schlenk asked him for a reason, Socko-
losky said, "that he was putting us on nights because we
were making too much trouble"
Sockolosky testified in a substantially different manner,
he testified that Schlenk first mentioned OSHA to him,
not the other way around In addition, he never said that
it was a mistake for him to call OSHA, or that he had no
5 Anderson testified that the OSHA standard for asbestos is below 0 5,
the four test results were 006, 0003, 0 002 and 0 002
right to do so, nor did he say that he was transferring
them to the night shift because he was making too much
trouble He testified that they were put on the evening
and night shift at that time because production increases
necessitated more steam and compressed air from the
powerhouse Anderson testified that he made the deci-
sion to return to three shifts in 'the powerhouse in
August after consulting with Gnllo, the supervisor in the
rim fire department and the person who prepares the
work schedules based upon the periodic orders received
from Remington This is Respondent's defense on the
transfer allegation, that the large increase of work in the
rim fire department necessitated additional steam from
the powerhouse, which resulted in a return to three-shift
operation As stated, supra, the powerhouse produces
steam for the rim fire department production, as well as
seasonally to heat the buildings at the facility To sup-
port its defense, Respondent introduced a number of
documents into evidence One was the monthly schedule
for the rim fire department for the entire year with the
exception of February which Respondent could not
locate These schedules show the number of shells Rem-
ington notified Respondent that it wanted in each of
these months together with the daily production figures
provided by Respondent They are 6
Monthly Schedule Daily Schedule
January 42,720,000 2,670,000
March 56,070,000 2,670,000
Apnl 61,600,000 2,800,000
May 64,000,000 3,000,000
June 67,200,000 3,000,000
July 70,400,000 3,000,000
August7 44,000,000 3,800,000
September 84,000,000 3,800,000
October 84,000,000 3,800,000
November 80,000,000 3,800,000
December 80,000,000 3,800,000
Anderson testified that in his experience when the daily
production reaches about three million, the powerhouse
must provide steam to support this production on a mul-
tishift basis Also proferred by Respondent and received
in evidence was a labor summary for the production em-
ployees in the rim fire department for the months of July
through September The total number of hours worked,
per month, increased from 1392 in July to 1790 in Sep-
tember, the month of August is not helpful because of
the 2-week shutdown These timecards show that from
the conclusion of the shutdown through September the
rim fire production employees worked no earlier than 5
a m and no later than 5 30 p in Sockolosky testified that
he prepares the weekly work schedule for the power-
house based upon production requirements provided to
him by Anderson and Grillo Additionally, he testified
6 Discrepancies between monthly and daily figures are explained by
the fact that Respondent establishes a number of scheduled workdays for
the month
7 The facility was shut down for the first 2 weeks of August
812 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
that in a heating season, it would be a three shift rota
lion Respondent operated three shifts in the power
house until the week ending May 3 beginning the fol
lowing week all three employees worked the day shift
Three shifts were resumed the week ending August 30
Between Schlenk s termination and Johnson s employ
ment as his replacement, the powerhouse was operated
with Haines and Aranjo each working about 10 hours
with the powerhouse unattended for the period of about
midnight to 3 a m at which time Haines arrived
Grillo testified that pnor to the shutdown during the
first 2 weeks of August he had a conversation with the
Remington representative who did the planning and
scheduling for the rim fire product He told Grillo to
prepare for higher schedules for the rest of the year He
informed Anderson of this conversation
Schlenk testified that when the three shifts were re
sumed in late August, he and Aranjo agreed that Aranjo
would work 3 to 11 p m and he would work from 11
pm to 7 a m (Haines worked the day shift) Between
that time and his termination he worked that shift with
little to do ( listen to the air compressors running )
except that he started up the boilers early in the morning
so they would be generating enough steam by the time
that production began in the rim fire department (it takes
about 2 to 3 hours for a head of steam to be built up)
Schlenk testified these boilers ran only during the pro
duction period at this time although the boilers would
run during the heating season 24 hours a day from ap
proximately October until April Anderson was asked
why Respondent maintained three employees on the day
shift in the powerhouse from May through August with
so little to do He testified basically to two reasons engi
neers of the type Respondent needs (the boilers at the fa
Wit), are quite old) are difficult to locate so once you
have them you attempt to keep them and they attempt
ed to keep them busy with routine maintenance work
It is next alleged that Respondent suspended and dis
charged Schlenk on about September 20 because of his
protected concerted activities referred to supra in viola
tion of Section 8(a)(1) of the Act Respondent did termi
nate him but alleges that it was not m retaliation for his
OSHA complaints but rather was due to Schlenk s har
assment of its secunty guard Bruce Vanak To under
stand this defense it is necessary to further describe the
powerhouse and more particularly the annunciator
board which is located there The powerhouse is located
in an isolated area at the facility with often only one or
no employees present In addition, at nighttime there are
few, if any other employees present at the facility except
for the guard in the guardhouse This situation necessi
tates some type of communication system between the
powerhouse and the guardhouse Aranjo testified that
the annunciator board in the powerhouse is an alarm that
rings every 45 minutes (only when an employee is phys
wally in the powerhouse) The engineer then resets the
board failure to do so within a few minutes results in a
telephone call from the guard m the guardhouse to see if
everything is all right He testified that the guard calls
only if the board is not reset Schlenk testified that the
annunciator board (which he called the dead man s
alarm) rings every 45 to 60 minutes in the powerhouse
the engineer then has 2 minutes to reset the alarm Only
if he does not do so within that time does the guard in
the guardhouse call the powerhouse to see if there is any
problem Ackerman testified that for several years the
procedure has been for the guard in the guardhouse to
call the powerhouse every hour (but only after 6 p m)
even if the engineer had reset the board after the alarm
went off Stanley Wuchek a security officer for Re
spondent who had previously occupied that position
with Remington for 15 years testified about this proce
dure he initially testified
The employee at the powerhouse has to reset the
boiler alarms and if he doesn t reset them we have
an alarm that rings in the patrol office and then we
have to make contact with the employee to make
sure that everything is okay
On cross examination, counsel for the General Counsel
asked only one question on the subject
Q So Mr Wuchek the procedure that the guard
follows is he would make a telephone contact to the
employee in the powerhouse if the alarm isn t reset
is that correct?
A Right
To clear up what I considered somewhat ambiguous
answers on an important subject I questioned Wuchek
about this procedure and he answered Even if the
alarm was reset I would ring the phone back Ander
son testified that there are two distinct phases to the se
cunty policy involving the powerhouse the first is the
alarm that rings m the powerhouse periodically If the
engineer fails to reset the board after the alarm goes off,
the guard calls him The second phase is an hourly com
munications check for everybody working the afternoon
or evening shift m remote areas or by themselves An
demon testified that this system existed at Remington for
the 18 years he was employed there and has been at the
facility for the entire period of his employ by Respond
ent Sockolosky testified that in addition to the annum
ator board the guard is supposed to call the powerhouse
on an hourly basis during off hours and he mformed
Schlenk and Aranjo of this in 1986
This testimony is important in the determination of
these final allegations During this period Schlenk was
annoyed because Vanak was calling him regularly which
he felt was a form of harassment another result of his
OSHA activities Respondent alleges that Vanak was just
doing his job and following the usual procedures and
that Schlenk s actions toward Vanak constituted harass
ment and were grounds for his (planned) suspension,
which instead, became a termination when he did not
appear to receive his suspension
Schlenk testified that prior to returning to the night
shift in August he had never been called by a guard
after he reset the alarm A few days after returning to
the night shift Vanak began calling him every hour
even after he reset the alarm When Schlenk questioned
him about it he said that he was told to call him every
hour Schlenk explained the annunciator system to him
REMGRIT CORP 813
and Vanak stopped calling him for the rest of the week
The following week Vanak resumed calling him on an
hourly basis (even after he reset the alarm), when
Schlenk asked him why he was doing it, he said that his
boss told him to do it When Schlenk questioned Socko-
losky about why Vanak was calling him hourly, he said
that it was because he worked alone Schlenk said that
they had the annunciator board alarm for that purpose
and Sockolosky said that the call was an additional safe-
guard Schlenk asked him why they didn't call Aranjo
and Haines, but he did not answer Vanak continued to
ring the telephone or call the powerhouse hourly while
Schlenk was there until his termination The situation
came to a head on the night/morning of ' September
15/16 Schlenk was working the 11 p m to 7 a m shift
that night and, clearly, by then, Schlenk and Vanak were
getting on each other's nerves Schlenk testified that
Vanak would ring his phone regularly and, sometimes,
hang up before he picked it up When he picked up' the
phone, he (Schlenk) would answer "good morning
Bozo" or "good morning stupid" After Vanak called
and hung up before he answered, Schlenk started switch-'
mg the annunciator back and forth which, presumably;
caused the alarm to ring on a regular basis in the guard-
house At about 2 a m that night Sockolosky and Acker-
man came to the guardhouse and asked him if there was
any problem Schlenk said that there was not "There's
no problem, the problem's your guard" and he told them
of Vanak's calls Schlenk then asked Ackerman about the
asbestos testing he had done Ackerman said that he
would have to redo the test because somebody tampered
with it Schlenk said that OSHA requires a company to
notify its employees within 15 days of a safety-related
test Shortly thereafter, Ackerman and Sockolosky left
and Schlenk finished his shift
Ackerman testified that on the evening in question
(counsel for Respondent places the incident on the
evening of September 16/17) he received a telephone
call at home from Vanak8 who said that Schlenk was re-
peatedly switching the annunciator monitor from power-
house to security, which caused a light to go on and an
alarm to go off He called Schlenk and told him to stop
doing it, but he refused Ackerman then called Socko-
losky and arranged to meet him at the facility They first
went to the guardhouse and from there went to the pow-
erhouse When they walked in, they saw Schlenk sitting
in a chair with his feet on a second chair turning the
monitor switch on and off, he stopped when he saw
them Sockolosky asked him if he was switching it on
and off and he said that he was, he asked him why he
was doing it and he said that he was being harassed by
telephone calls from Vanak and he was doing it to
bother him Sockolosky told Schlenk that he would have
to stop and he agreed to do so Other things may have
been said, as well, but Ackerman could not relate what
they were
Sockolosky testified that he received a telephone call
from Ackerman at about 1 a m that morning and ar-
ranged to meet him at the facility When he got to the
8 Vanak, who left Respondent s employ at about this time, did not tes-
tify
guardhouse, he saw and heard the "bogus" signals that
Schlenk was sending When Ackerman arrived, the two
went to the powerhouse and observed Schlenk sitting in
a chair, with his feet propped up on another chair, his
right hand turning the selector switch on and off He
asked Schlenk if he was sending the signals to the patrol
house and he said that he was Schlenk then asked if he
had any vacation days left and Sockolosky told him that
since he started his shift he should complete it
There does not appear to be significant credibility
questions regarding Schlenk's termination The day after
the incident referred to, supra, Sockolosky informed An-
derson of the incident and recommended that Schlenk be
written up for the incident and be given a suspension
"for a enod of time" Anderson agreed and it was de-
cided that when Schlenk arrived for work that evening,
he would be informed of the suspension Sockolosky pre-
pared the Corrective Action Report, dated September
17, set forth the events of the prior evening, as well as
other complaints about Schlenk, and stated that he
would be suspended for 5 days and would be allowed to
report for work again on September 24
Sockolosky, Bisogno, and Ackerman stayed at the fa-
cility after regular work hours on September 17 to await
Schlenk's arrival at the guardhouse at 11 p m At about
9 30 p m, Aranjo told Sockolosky that Schlenk had
called him a half hour earlier and said that he would not
be coming in that night, that he was taking a vacation
day and Arany) would cover his shift Sockolosky in-
formed Aranjo that he did, not have the authority to
grant vacation days, a supervisor must first be contacted,
which Schlenk did not do Sockolosky then arranged for
Aranjo to work overtime and for Haines to come in
early to cover for Schlenk's hours Then, at about 11
p m, he called Schlenk at his home He asked him why
he was not at work that night and he said that he was
taking a vacation day Sockolosky told him to come to
the facility because he wanted to give him a formal inter-
view with disciplinary action Schlenk asked what was in
the report and Sockolosky said that he would have to
come to the facility to find out, Schlenk said that he
would be late, but he would be there Schlenk called
back a few minutes later and asked if he would be paid if
he came to the facility, Sockolosky told him that he
would be paid for the period of time that he was at the
interview At this point, there is a conflict between the
testimony of Sockolosky and Schlenk Sockolosky testi-
fied that Schlenk said he would come in, Schlenk testi-
fied that he lives 30 miles from the facility and would
have to drive 60 miles round trip at about midnight to
come to the facility for a brief interview He told Socko-
losky that he was not going to drive to the facility for a
15-minute interview Sockolosky told him that they,
would wait there for him, and he told him "he can wait
as long as he wants They're going to be there a long
time" Sockolosky and Bisogno waited for him until 7 15
a m, but he never appeared Sockolosky considered this
gross insubordination
When Schlenk next reported for work on about Satur-
day night, September 19, he was not allowed into the fa-
cility, but was handed a series of documents outlining his
814 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
suspension (the Corrective Action Report which Socko-
losky was prepared to give him the prior evening) as
well as a letter from Anderson dated September 18, the
letter recites his failure to appear at the facility the prior
evening, and ends by stating "We are left with no
option but to terminate your employment with the com-
pany, effective immediately" He has not been employed
there since
In Wright Line, 251 , NLRB 1083, 1089 (1980), the
Board set forth the Rule to be applied in discrimination
cases such as the instant matter
First, we shall require that the General Counsel
make a prima facie showing sufficient to support the
inference that protected conduct was a "motivating
factor" in the employer's decision Once this is es-
tablished, the burden will shift to the employer to
demonstrate that the same action would have taken
place even in the absence of the protected conduct
There can be no question that the General Counsel has
sustained its burden herein, a few weeks prior to the
transfer to the night shift, and about a month before
Schlenk's discharge, he initiated the asbestos complaints
with Aranjo and other employees, and shortly thereafter
called OSHA after receiving no response he considered
satisfactory This certainly qualifies as protected concert-
ed activities and Respondent was aware of these activi-
ties prior to the transfer of Aranjo and Schlenk to the
evening and night shifts If Schlenk and Aranjo are cred-
ited over Sockolosky the final determination here is
simple, Respondent did not satisfy its burden under
Wright Line and the transfer of Schlenk and Aranjo, as
well as the termination of Schlenk (and the alleged inter-
rogation) violated the Act This is because Schlenk and
Aranjo testified that after informing them of the transfer
at the end of August, Sockolosky told them that the
transfer was due to Schlenk's OSHA complaint
No credibility determination is easy, unfortunately
judges do not have any greater power than others in de-
termining what testimony is truthful and what is not
Presiding over the hearing, and observing the witnesses
and the manner in which they answer questions certainly
helps in making this determination At the hearing I was
impressed by Respondent's witnesses, generally, and es-
pecially by Sockolosky, who I found testified in a precise
and direct manner and appeared to be testifying truthful-
ly That is not to say that I found Schlenk and Aranjo to
be incredible witnesses, they were not However, when
there is a clear conflict in the testimony, as there is here,
regarding the transfer of Schlenk and Aranjo to the
evening and night shift (and on other areas, infra), a de-
termination must be made on who was more credible,
and I find it to be Sockolosky and credit his testimony
that he did not tell Schlenk and Aranjo that they were
being transferred to the evening and night shift because
of Schlenk's OSHA complaint That, together with the
testimony of Anderson, Sockolosky, and Grillo, and the
supporting exhibits regarding the increased production
requirements at that time, convince inc that the three
shifts were resumed in August for production, rather
than discriminatory reasons I therefore find that Re-
spondent has sustained its burden under Wright Line and
I would therefore dismiss this allegation, as well as the
allegation that on about August 12, Sockolosky unlawful-
ly interrogated employees regarding their protected con-
certed activities
Remaining for consideration is the allegation that sub-
sequently Schlenk was harassed, suspended, and dis-
charged in retaliation for his protected concerted activi-
ties, in violation of Section 8(a)(1) of the Act As stated,
supra, I found Anderson and Sockolosky credible wit-
nesses, although not totally free from doubt, I would
credit their testimony, as well as that of Ackerman and
Wuchek, who also testified in a direct and credible
manner, that the guards are instructed to call the power-
house (and other isolated areas) on the late shifts on an
hourly basis, even if the engineer resets the alarm There-
fore, Vanak was acting properly in calling Schlenk on an
hourly basis, while Schlenk was not in harassing Vanak
by repeatedly setting the switch back and forth Re-
spondent has therefore sustained its burden under Wright
Line that Schlenk was neither harassed nor suspended
due to his protected activities As Schlenk did not report
for work on the evening of September 17/18 to be given
his suspension even though he told Sockolosky he would
be there (Sockolosky's testimony, which I credit), I like-
wise find that the discharge, in lieu of the suspension, did
not violate the Act I would therefore recommend that
this final 8(a)(1) allegation be dismissed as well
CONCLUSIONS OF LAW
1 Respondent RemGnt Corporation is an employer
engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act
2 Industrial Machine and Office Workers Union is a
labor organization within the meaning of Section 2(5) of
the Act
3 The following employees of Respondent constitute a
unit appropriate for the purpose of collective bargaining
within the meaning of Section 9(b) of the Act
All production, maintenance, shipping and office
employees of the plant, excluding watchmen,
guards, executive, administrative and professional
employees, confidential secretaries, all other em-
ployees handling confidential information and su-
pervisory employees as defined in the Act
4 Since on about July 1, 1986, and continuing to date,
IMOWU has represented the employees of Respondent
in the above-described unit
5 Respondent violated Section 8(a)(1) and (5) of the
Act by engaging in the following conduct
(a) Granting wage increases to its employees without
previously bargaining with IMOWU about the subject
(b) Discontinuing the deduction of dues from the pay
of its employees who authorized the deductions, and dis-
continuing the transmittal of these dues to IMOWU,
without previously bargaining with IMOWU about the
subject
(c) Withdrawing its recognition of IMOWU as the col-
lective-bargaining representative of its employees in the
unit described above, on about October 10, 1987
REMGRIT CORP 815
6 The Respondent did not further violate the Act as
alleged in the consolidated complaint
THE REMEDY
Having found that Respondent has engaged in and is
engaging in certain unfair labor practices, it will be rec-
ommended that it cease and desist therefrom and take
certain affirmative 'action designed to effectuate the poli-
cies of the Act As regards the unilateral granting of the
wage increase, that was effective for certain penods Ob-
viously, the employees who received this additional com-
pensation will not be ordered to return it, all that is
needed to remedy this violation is the usual cease-and-
desist order As regards Respondent's unlawful unilateral
discontinuance of the deduction and transmittal of
IMOWU dues, Respondent will be ordered to begin de-
ducting dues from the salary of its employees who have
executed dues-checkoff authorization forms for IMOWU
and to transmit this amount to IMOWU, pursuant to the
terms of its collective-bargaining agreement Additional-
ly, because Respondent unlawfully failed to transmit
dues to IMOWU since about August 1, even though it
had valid signed dues-checkoff authorization forms exe-
cuted by employees, Respondent shall be ordered to
remit to IMOWU the dues it should have checked of
pursuant to its collective-bargaining agreement with
IMOWU These dues payments, for the penod beginning
when Respondent first ceased transmitting the dues to
IMOWU (about August 1) shall be paid directly by Re-
spondent, rather than being first deducted from the em-
ployees' pay, but may be offset by the amount of dues
voluntarily paid to IMOWU by the employees during
this period Ogle Protection Service, 183 NLRB 682
(1970), Shen-Mar Food Products, 221 NLRB 1329 (1976),
Fashion Furniture Mfg, 279 NLRB 705 (1986) Finally,
Respondent will be ordered to bargain with IMOWU as
the collective-bargaining representative of its employees
in the above-descnbed unit The evidence establishes that
at the October meetings with employees Respondent in-
dicated that it would continue to follow the terms of the
collective-bargaining agreement until its conclusion, June
1989 There is no evidence that any employee has suf-
fered any loss of pay or benefits due to Respondent's
withdrawal of recognition, if such a loss has occurred,
the amount of reimbursement by Respondent can be de-
termined at a supplemental proceeding in this matter
On the foregoing findings of fact, conclusions of law,
and the entire record, I issue the following recommend-
ed°
ORDER
The Respondent, RemGnt Corporation, Bndgeport,
Connecticut, its officers, agents, successors, and assigns,
shall
9 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
1 Cease and desist from
(a) Unilaterally granting wage increases to its employ-
ees without first bargaining with IMOWU, the collec-
tive-bargaining representative of its employees
(b) Discontinuing the deduction of dues from the pay
of its employees who authorized such deduction by the
execution of a dues-checkoff authonzation form for
IMOWU, and the transmittal of the dues to IMOWU
(c) Refusing to recognize and bargain with IMOWU
as the collective- bargaining representative of its employ-
ees in the following appropriate unit
All production, maintenance, shipping and office
employees of the plant, excluding watchmen,
guards, executive, administrative and professional
employees, confidential secretaries, all other em-
ployees handling confidential information and su-
pervisory employees as defined in the Act
(d) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
guaranteed them by rights under Section 7 of the Act
2 Take the following affirmative action necessary to
effectuate the policies of the Act
(a) Immediately notify IMOWU, in wnting, that it rec-
ognizes IMOWU as the collective-bargaining representa-
tive of its employees in the above-descnbed unit, and
that it will bargain with IMOWU regarding the imple-
mentation of the existing collective-bargaining agree-
ment, as well as the terms of a subsequent agreement
when the existing agreement expires
(b) Reimburse IMOWU for all dues that it unlawfully
failed and refused to remit to IMOWU from the period
of about August 1 to the present, as more fully described
above in the remedy section
(c) Post at its Bndgeport, Connecticut location copies
of the attached notice marked "Appendix " 10 Copies of
the notice, on forms provided by the Regional Director
for Region 34, after being signed by the Respondent's
authorized representative, shall be posted by the Re-
spondent immediately upon receipt and maintained for 60
consecutive days in conspicuous places including all
places where notices to employees are customarily
posted Reasonable steps shall be taken by the Respond-
ent to ensure that the notices are not altered, defaced, or
covered by Any other material
(d) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply
IT IS FURTHER ORDERED that the consolidated com-
plaint herein be dismissed Insofar as it alleges violations
not specifically found
" If 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 Nation-
al 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"