Rotax Metals, Inc.

National Labor Relations Board - Board Decisions

Feb 21, 1967

163 N.L.R.B. 72 (N.L.R.B. 1967)

72 DECISIONS OF NATIONAL
and "unremitting" effort to show what would happen to
employees if a strike should take place. Not only was a
strike portrayed as inevitable, but so also was strike
violence and physical harm to employees. A motion
picture was shown to illustrate the point. Also, the
employer, it was said, would hire permanent replacements
for the strikers. The employer himself would so conduct
any negotiations with the Union that a strike would result.
The Board characterized this campaign as "not an attempt
to influence the employees by reason, but an appeal to
fear." I do not find that to be so in the instant case, and
find Respondent's reference to the possibility of a strike
not to be sufficient grounds for setting aside the election of
September 23.
CONCLUSIONS OF LAW
1. Respondent is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. Respondent has not engaged in the unfair labor
practices alleged in the complaint.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and
conclusions of law, and upon the entire record in this case,
it is recommended that the complaint in Case 23 -CA-2172
be dismissed . It is further recommended that Petitioner's
Objection I to the election conducted on September 23,
1965, be dismissed.
Rotax Metals, Inc. and Frederick Douglas
Paige, an Individual . Case 29-CA-513.
February 21, 1967
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING
AND ZAGORIA
On September 27, 1966, Trial Examiner James V.
Constantine issued his Decision in the above-
entitled proceeding, finding that the Respondent had
engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision.
Thereafter, the Respondent and the General
Counsel filed exceptions to the Trial Examiner's
Decision, and the General Counsel filed a supporting
brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
LABOR RELATIONS BOARD
Examiner's Decision, the Respondent's exceptions,
the General Counsel's exceptions and brief, and the
entire record in this case,' and hereby adopts the
findings,2 conclusions,3 and recommendations of the
Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby adopts as its Order the
Recommended Order of the Trial Examiner, and
orders that the Respondent, Rotax Metals, Inc., New
York, New York, its officers, agents, successors, and
assigns shall take the action set forth in the Trial
Examiner 's Recommended Order.
' Because, in our opinion , the record and the exceptions and,
briefs adequately set forth the issues and positions of the parties,
the Respondent 's request for oral argument is hereby denied.
2 The Trial Examiner states that for an employee 's claim
against his employer pursuant to the terms of a bargaining
agreement to be within the protection of the Act, the claim must
be colorable , even though it may ultimately fail. The General
Counsel contends that the proper test is whether or not the claim
is made in good faith . As the facts of this case show that the claim
of employee Paige was both colorable and made in good faith, we
need not pass on this issue.. The presence of both factors clearly
brought Paige 's claims within the area of concerted activities
protected by the Act.
I The General Counsel has excepted to the Trial . Examiner's
failure to find that Respondent's discharge of Paige violated
Section 8(a)(3) as well as Section 8(a)(1). We find it unnecessary to
rule on this exception, since a remedial order based upon a
finding of 8(a)(3) would not materially enlarge upon the remedial
order herein based upon our finding of an 8 (a)(1) violation.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
JAMES V. CONSTANTINE, Trial Examiner: This is an
unfair labor practice case initiated by a complaint issued
on May 31, 1966, pursuant to Section 10(b) of the National
Labor Relations Act. See 29 U.S.C. Sec. 160(b). It is based
on a charge filed on February 10, 1966, by Frederick
Douglas Paige against Rotax Metals, Inc., the Respondent
herein. In essence the complaint alleges that Respondent
has violated Section 8(a)(1) and (3), and that such conduct
affects commerce within the meaning of Section 2(6) and
(7) of the National Labor Relations Act, herein called the
Act. Respondent has answered, admitting some facts but
putting in issue the commission of any unlawful act.
Pursuant to due notice this cause came on to be heard
and was tried before me on July 13, 1966,' at Brooklyn,
New York. All parties were present or represented at the
hearing and were granted full opportunity to introduce
evidence, examine and cross-examine witnesses, offer oral
argument, and present briefs. The General Counsel has
submitted a brief. At the close of the hearing Respondent
and the General Counsel argued orally.
The issues in this case are:
(a) Whether the Charging Party, Frederick Douglas
Paige, was discriminatorily discharged, or whether his
employment was terminated for lawful cause; and
' All dates mentioned hereafter refer to 1966, except where
otherwise specified. .
163 NLRB No. 21
ROTAX METALS, INC. 73
(b) Whether Respondent threatened its employees with
discharge and other reprisals if they engaged in activities
protected by the Act.
Upon the entire record in this case , and from my
observation of the witnesses , I make the following:
FINDINGS OF FACT
I. ON JURISDICTION
Rotax , a New York corporation , is engaged in Kings
County, city and State of New York , in selling and
distributing at wholesale nonferrous metals and related
products.
During the year preceding the issuance of the
complaint , Rotax sold and distributed products valued in
excess of $50,000 , of which products valued in excess of
$50,000 were shipped outside the State of New York. I find
that Respondent is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act, and that it will
effectuate the purposes of the Act to assert jurisdiction
over Respondent in this proceeding.
II. THE LABOR ORGANIZATION INVOLVED
Local 810, International Brotherhood of Teamsters,
herein called Local 810 or the Union, is a labor
organization within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
As noted above, this case presents two questions:
(1) whether Paige was unlawfully discharged and,
(2) whether Respondent unlawfully threatened employees
with discharge and other reprisals . Since the main issue
related to Paige's discharge , it will be considered first.
A. The Discharge of Frederick Douglas Paige
1. General Counsel's evidence
a. Testimony by Paige
Paige was hired as a warehouseman on October 4, 1965.
At that time, and at all times material, the employees of
Rotax, including its warehousemen, were represented by
Local 810 as their collective-bargaining agent. The
contract between Rotax and Local 810 contained a clause
requiring employees to join the Union after 30 days of
employment with Rotax. See General Counsel's Exhibit 2,
page 1. Shortly after November 3, 1965, Booker T. Jones,
the Union's job steward, gave Paige an application for
membership in Local 810. After completing it, Paige
handed it to Jones who told Paige "if it were approved
[Paige] would be informed."
Later that day Respondent's President Rosenthal told
Paige "there was a six weeks waiting period, not a thirty
days waiting period." When Paige conveyed this
information to job Steward Jones, the latter promised that
he would report it to the Union. About November 10, a
"union representative" spoke to Paige. In this
conversation Paige referred to "the thirty days waiting
period." Thereupon the representative went "to the
office" and, upon returning, stated that Mr. Rosenthal did
not consider Paige "in the Union" because "there was a
six weeks waiting period, and not a thirty days:"
Soon thereafter President Rosenthal requested Paige to
work on November 11, 1965, "Veterans Day." The
collective-bargaining contract provides for payment of
double time for work performed on any holiday; and
"Armistice Day" (which I officially notice is celebrated on
November 11) is designated as a holiday. See General
Counsel's Exhibit 2, pages 2-3. Paige worked on
November 11, but he was not immediately paid double
time therefor. Although "the union delegate told Paige
that he was entitled ti double time for working on
November 11," President Rosenthal denied this on the
ground that Paige "was not a member of the union." When
Paige told Shop Steward Jones about Rosenthal't
contention, Jones showed Paige the contract whereby
Paige "was supposed to have been in the Union after thirty
days."
In perusing the contract Paige "also noticed ... a
number of violations" of its provisions by Respondent,
including that (1) the employees of Man Power,
Incorporated, an employment agency supplying temporary
help for Rotax, "was not a member of the union shop,"
(2) employees of Rotax were being "underpaid," and (3) no
bulletin board was furnished in the shop. When Paige
informed Shop Steward Jones of this, Jones promised to
pass this on to Local 810.
About the second week of December 1965, a new
"delegate" of the Union, Mr. Silverman, was appointed for
the employees of Rotax. Paige called to Silverman's
attention the question of underpaying employees, Paige's
holiday pay for November 11, and "about [Paige's] being
a member of the Union." Silverman replied that the
holiday pay question would be "settled in arbitration."
On about January 10, 1966, Paige arrived at work about
a half hour late. This was caused by his walking to and
from work as a result of a transit strike. He normally takes
public transportation to work. When Paige sought to take a
coffeebreak at 10 a.m., President Rosenthal objected on
the ground that Paige reported to work a half hour late and
threatened to "dock" Paige's pay if he took the break.
Replying, Paige insisted that he was entitled to his break
under the contract, and added that Rosenthal was further
not abiding by the contract "concerning Man Power,2 and
our being underpaid ." Further, Paige told
Rosenthal that he, Paige, would write to Local 810 "listing
my complaint." Rosenthal then accused Paige of being
insubordinate and that he "was firing him." Nevertheless
Paige took the break. When he returned to work, he found
the door closed, but it was opened by a clerk about 10 or 15
minutes later. Paige then entered and resumed work. He
was the only warehouseman who worked that day.
On January 13, Paige injured his right thumb in the
course of his employment. President Rosenthal authorized
him to leave work to consult a doctor. Thereupon Paige
visited Dr. Michaels who treated him, told him not to work
the remainder of the day if the injury bothered him, and
directed him to return for further treatment the following
evening. The next day President Rosenthal, having
ascertained from Paige that he had seen a doctor,
instructed Paige to execute a workmen's compensation
report. Paige did so in the office, but was unable to
produce a temporarily misplaced doctor's certificate.
Within a few minutes, Rosenthal accused Paige of not
seeing a doctor and informed Paige that he would not be
paid for the period of time he did not work the day before.
2 When Respondent needs temporary employees, it obtains
them from Man Power. In such cases Man Power pays such
employees and is reimbursed therefor by Respondent.
74 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On payday Paige was deducted [sic] for that time. That
same day, a Friday, Paige found the "doctor's slip" in his
locker and showed it to Job Steward Jones who told Paige
to hand it in to the office. Paige did so. This "slip" is a
written statement by Dr. Michaels that he treated Paige on
January 13 for an injured right thumb. See General
Counsel's Exhibit 3. Paige was again treated by Dr.
Michaels in the evening of January 14.
About January 17 Paige wrote, but did not mail, a letter
to Mr. Silverman, the president of Local 810 , listing
"complaints and violation of the contract." About
January 19 Paige handed it to Silverman. Later in the day
Silverman told Paige that he would be paid for the time he
took sick leave to see the doctor, and also that no more
employees would be supplied by Man Power. Shortly
thereafter Silverman went to Respondent's office and soon
invited Paige to enter also. However, President Rosenthal
at first excluded Paige. Nevertheless Silverman
succeeded in having Paige admitted. Job Steward Jones
was also present. When Rosenthal asked Paige if Paige
had gone to the doctor, the latter replied that he had. At
this point Silverman left the office.
A short while later Silverman asked Paige whether
Paige cursed or threatened Rosenthal. Upon receiving
Paige's denial, Silverman asked employee Simon, in
Paige's presence, whether Paige threatened or cursed
Rosenthal. Simon answered he could not recall. Later that
day Silverman told Paige that Rosenthal complained to
Silverman that Paige had deliberately dropped some coil.
Paige denied this and explained' to Silverman in detail how
the coil accidentally fell.' 'President Rosenthal and
Warehouse Manager Blade were also present during this
conversation. As he left Silverman warned Paige to be
careful as President Rosenthal "is looking to fire" Paige.
About January 18 President Rosenthal discussed
Paige's complaints with him. These related to contract
violations by Respondent and denial of overtime pay to
Paige for work performed on November 11. Paige replied
he was interested in "getting my wage." In this
conversation Rosenthal made derogatory remarks about
Negroes. Paige is a Negro. A day or two later Warehouse
Manager Blade told Paige to take off a day the following
Tuesday on pay to compensate for his failure to receive
double pay on November 11. Paige replied he would rather
get paid without taking a day off. A few moments later
President Rosenthal confirmed and repeated Blade's
decision as to Paige's overtime for working on
November 11. Rosenthal also accused Paige of
"arrogance" and causing "nothing but union trouble," and
threatened to fire him for insubordination if he failed to
take a day off in lieu of overtime pay for November 11.
When Paige presented the matter to the Union, President
Silverman told Paige not to take a day off and assured him
that he would be paid in cash for overtime on Veterans
Day.
After January 10, President Rosenthal and Warehouse
Manager Blade harassed Paige. Examples of this are: they
ordered him to remove working gloves while at work,
although he had previously been directed to wear them as
a safety measure; they refused to let anyone work with
Paige; they constantly watched Paige or caused him to be
watched at work.
In late January Paige complained to Warehouse
Manager Blade that a recent hire was "getting the union
wage and [Paige] wasn't." Blade replied that Paige "was
supposed to be getting the same wages," and confirmed
this after returning from the office.
In late January or early February Paige asked President
Rosenthal for a half hour off to attend a union meeting at
6 p.m. on February 9. The working day ends at 5 p.m. Job
Steward Jones had invited Paige to attend it as a substitute
for Jones and designated Paige as such. See General
Counsel's Exhibit 5. The actual typing was performed by
Paige with the approval of Jones. Rosenthal refused to
grant Paige's request, although Paige showed him the
typed designation signed by Jones; i.e., General Counsel's
Exhibit 5.
About February 3, Paige complained to Job Steward
Jones that work was interfered with because too many
people were supervising. Salesman Pete Testaverde, who
was present, opposed this because it "would only cause
conflict between [Jones] and [Paige] , just what Mr.
Rosenthal wanted."
The following day, i.e., February 4, Union President
Silverman informed Paige at the shop that "Mr. Rosenthal
don't want you here any longer." No reason was assigned
for this. Nevertheless Silverman advised Paige to "write a
grievance" at the union hall if Paige had "any
complaints ." Soon thereafter office employee Davis gave
Paige his pay, including overtime for November 11, and
Paige then left.
At no time was Paige's work criticized. In fact,
President Rosenthal complimented Paige on his work the
second week of Paige's employment, gave Paige a raise of
25 cents an hour, and assured Paige that he would also
receive a Christmas bonus. Paige did receive a Christmas
bonus in 1965, Rosenthal telling him at the time to "keep
up the good work."
b. Testimony by Job Steward Booker Jones
Jones, who is job or shop steward for Local 810, showed
Paige a copy of the collective-bargaining contract between
the Union and Respondent and allowed Paige to take it
home overnight to study. When he returned it, Paige
complained that he was being underpaid and that there
were "some violations in there about Man Power and stuff
like that." Jones thereafter asked the union delegate to
come to the plant to "explain it" to Paige.
On one occasion, Jones told President Rosenthal that
the latter was being "too hard" on Paige "for the
moment." Jones explained "too hard" as comprising
directions, while Paige was "doing something," to "do
this, then do that ...." Rosenthal also gave orders to
Jones "in the same way," and Jones declared this "would
be a little hard." Although this once caused Jones to "just
go away [and] get a little water," he was not fired,
disciplined or branded insubordinate therefor.
When Jones attended union meetings, he did not
request time off for that purpose.
At one time, when Jones transmitted an order to Paige,
the latter suggested there were too many bosses and that
"when you are working for too many bosses somebody is
going to mess up when everybody gives you orders." In the
discussion which ensued, it was concluded that one man,
such as Warehouse Manager Blade, should give orders
"instead of everybody saying this and everybody saying
that."
c. Other evidence on behalf of the General Counsel
On January 18, 1966, Arbitrator Thomas E. Fitzgerald
rendered an award (1) finding Respondent "in violation of
the labor - management agreement in that they are not
ROTAX METALS, INC.
paying the employees, in the bargaining unit, in
accordance with the terms of the contract," and
(2) ascertained the correct rate of pay for employees. See
General Counsel's Exhibit 6. Further, Arbitrator
Fitzgerald found such violation resulted from an oral
agreement between Respondent and Local 810 whereby
the wage scale was set at 10 cents below the rates in the
schedule affixed to the contract, and that it was proper for
the Union to repudiate said oral agreement and insist that
the terms of the written contract be "restored."
2. Respondent's evidence
a. President Ronald Rosenthal's evidence
Respondent has recognized and bargained with
Local 810 for a period of 10 years. Its warehousemen are
dispatched to it by Local 810. When Local 810 is unable to
supply men, Respondent obtains them from agencies, one
of whom is Man Power, Incorporated.
Paige was hired in early October 1965. He was guilty of
insubordination on various occasions, enumerated here.
When Rosenthal asked him on January 20 to make up an
order, Paige replied, "Don't bug me." Again Paige gave
the same reply the next day when Rosenthal asked him to
put an order on the truck. This went on "every day,
backwards and forwards." On one occasion Paige
"completely ignored" Rosenthal's request, in the presence
of a customer, to cut a sample. Thereupon Rosenthal
wrote on a piece of paper, "Please cut me a sample," and
handed it to Paige; but the latter "just ignored me
completely."
About January 26, Rosenthal, in the presence of the
truckdriver, asked Paige to "fix up an order." However
Paige "throwed the merchandise down and went away."
Nevertheless Paige did start on the order 10 or 15 minutes
later. "This goes on and goes on ... every day." Since
Rosenthal "couldn't handle it anymore," he instructed
Warehouse Manager Blade thereafter to give the orders to
Paige. Sometime after that Blade reported to Rosenthal
that Paige would not take orders from Blade. As a result
Rosenthal complained to Job Steward Jones about Paige's
habits and asked Jones to transmit Rosenthal's orders to
Paige.
In mid-January, Rosenthal told Union President
Silverman that Paige's actions where intolerable in that.
Paige would not take orders from anyone. Silverman
replied, "If it happens once more, we put him on
probation," and, if Rosenthal complained again, "we will
have to take [Paige] off his job."
On February 4, Rosenthal called Silverman to the shop.
After extended discussion of Paige, who had "the whole
organization in upheaval," Rosenthal called in Paige and
told Paige he was dismissed. Paige then "got his pay."
On one occasion, Paige called President Rosenthal "a
creep, you steal money off me." Rosenthal denies that
Paige ever asked him for time off to attend a meeting of
Local 810, and, further, that it was not necessary to take a
half hour off to attend a 6 p.m. meeting. Paige gave
Rosenthal a doctor's note on January 15 for treatment on
January 13, but Paige was not paid for sick leave until the
Union requested it.3
Paige worked on Armistice Day, November 11, 1965. He
was not paid double time therefor until later when the
union interceded on Paige's behalf, and called it to
3 Before the Union so asked, Rosenthal had verified Paige's call
at the doctor's office by telephoning the doctor , but still Paige was
not paid for sick leave until the Union claimed it for Paige. The
contract provides that "An employee injured dunng working
75
Rosenthal' s attention . Paige was a good employee until
December 31, 1965. Rosenthal considered Paige a good
employee except when Paige "refuses orders and
provokes things." Paige received both a raise in pay and a
Christmas bonus in 1965.
Subsequent to Paige's discharge, the New York Board
of Mediation made an award that Mr. Paige was
discharged for just cause. At this arbitration hearing Paige
was represented by Union President Silverman and Henry
Brickman, counsel for Local 810. See Respondent's
Exhibit 1.
Following his discharge Paige applied for
unemployment compensation benefits. The New York
Division of Employment rendered a determination which
denied compensation on the ground of "failure to heed
employer's directions," which is a "provoked discharge"
constituting a "voluntary leaving ... without good cause."
See Respondent's Exhibit 3.
Nothing in said arbitration award or unemployment
compensation determination indicates that the question
arose or was litigated as to whether Paige engaged in
activities safeguarded by the National Labor Relations
Act, whether such sheltered conduct entered into the
decision to discharge him, or whether Paige's
insubordination was used as a pretext to disguise a
discharge for such protected activity.
b. Testimony of Peter Testaverde
Peter Testaverde is Respondent 's general sales
manager. His position includes authority to supervise and
give orders to Paige. In early January, Testaverde heard
Job Steward Jones and Paige engaged in a heated
discussion in the rear of the warehouse. Paige was
refusing to obey an order of President Rosenthal relayed to
him through Jones on the ground that he, Paige, should not
have to take orders from Jones, a union man , and because
too many people were giving orders. Paige also insisted
that his orders should come from one person, and,
therefore, Jones should mind his own business . At this
point Testaverde told Paige that "we are all employees
here. If the boss comes to me and tells me to give you an
order, it's my job to give you an order. Whether you do it or
not, is not my business. This goes to [Jones]. When
[Jones] gives you an order, the boss gave him an order ...
don't argue with [Jones]." Thereupon, Jones said to
Paige, "Why don't you do what you are told?" On this
aspect of the case, I credit Paige and Jones, whose
testimony is recited elsewhere in this decision, and do not
accept Testaverde's version thereof.
On another occasion, Testaverde asked Paige for a
sample, but Paige walked away. It is possible that Paige
did not hear him for Testaverde "thought [Paige] was
hard of hearing." Still another time President Rosenthal
asked Paige for a sample in the presence of Testaverde
and a customer. Paige "either ... did not hear him or
ignored him and caused Mr. Rosenthal to be
embarrassed" in front of a customer. In addition, Paige
engaged in "minor instances along the line which ...
happen normally daily."
c. Testimony of Herbert J. Balady
Balady, who is generally called Blade at the shop and
has been so mentioned herein, is Respondent' s general
manager . On one occasion, Blade observed Paige moving
hours shall receive the rest of the day off without loss of pay,
provided that the injunes are such that a doctor orders the
employee not to return to work " G.C Exh. 2, p.7
76 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
copper coils. Their nature requires "rather careful"
handling. One coil dropped because the side of the case
containing it opened up. "Normally" in such situation the
case should be immediately "strapped up" to prevent
further damage, but Paige did nothing about it. As a result
another coil dropped. Thereupon Blade instructed Paige
to "stop and put the thing down." However, Paige refused
to stop and consequently dropped still another coil. This
caused Blade to demand that Paige cease that operation.
Respondent has a practice whereby an individual
warehouseman who works on an order signs or initials the
written requisition for materials. Thus, the identity of
employees filling an order may be quickly ascertained for
any purpose. On one occasion, Blade asked Paige to fill an
order and to initial the written instrument describing its
contents. However, Paige refused to sign on the ground
that he "did not have to sign anything." Although Blade
then stated that signing was required by President
Rosenthal solely to know who worked on the order, Paige
persisted in his refusal.
On other occasions when Blade gave Paige something to
do, Paige sometimes would respond and sometimes would
not. But Blade always insisted that Paige obey
instructions. Paige's reply generally was that he wanted to
do one thing at a time and that he resented orders "from
everybody," because they "changed him back and forth"
and "rushed him." Blade assured Paige that this was
necessary if need arose to cause Paige to drop what he was
going and immediately assign him to different tasks. Blade
also testified that Paige was "antagonistic towards him,
President Rosenthal, and the men, because Paige did not
like what was going on."
Paige once complained to Blade that he, Paige, was
underpaid under the contract, and another time that he did
not receive double time for having worked on Veterans
Day, 1965. Blade replied that Paige was entitled to
whatever the contract provided. Blade also testified that
he never heard Paige use profane language.
d. Testimony of Harry Smith
Harry Smith is a self-employed independent truckman.
Rotax is one of his customers. Paige "quite a few" times
did not follow orders "and so on." Thus, there were times
when Paige would refuse to load the truck or would make
up an order but fail to put it on the truck, and other
occasions where instructions from the office of
Respondent were ignored by Paige, thus causing Smith to
wait needlessly for materials to be transported. Often such
waiting by Smith was caused by "an argument," but the
disputants were not identified by him. Many times Smith
loaded the truck himself to avoid delay.
Once Paige was being assisted by another employee in
loading Smith's truck. During the course of the loading,
President Rosenthal called off his employee to assist
elsewhere on a rush job. Thereupon, Paige went into a
rage, "threw up" the bundles he was loading, smashed the
bundles on the floor, and then went away for 10 or 15
minutes. Smith decided to load the truck himself.
Smith testified that he had daily squabbles with Paige
"in the nature of ... asking Paige to get the truck loaded
and him telling [Smith] that [Smith] had no authority to
give him orders."
3. Frederick Paige's rebuttal testimony
At the arbitration hearing relating to Paige's discharge,
Paige started to raise the question of wages but Mr . Isaacs,
counsel for Rotax, objected. Paige also requested union
counsel to bring up complaints enumerated in a letter
addressed by Paige to Union President Silverman, but
Brickman declined to do so because it would be
embarrassing to the Union. Paige then sought to "bring out
... these issues" again , but was stopped by Mr. Brickman.
Once General Manager Blade asked Paige to sign an
order. Since Paige was working on top of some crates he
asked Blade to sign for him. Paige was never told at any
other time to sign orders. I credit Paige on this aspect of
the case and do not credit Blade to the extent his
testimony clashes with Paige's.
CONCLUDING FINDINGS AS TO THE DISCHARGE OF
FREDERICK DOUGLAS PAIGE
In order to find that Paige was unlawfully discharged, it
must initially be established that he was engaged in some
activity sanctioned and protected by the Act. This is
because the Act does not immunize an employee against
discharge for nondiscriminatory reasons. Wellington Mill
v. N.L.R.B., 330 F .2d 579, 586-587 (C.A. 4); N.L.R.B. v.
Park Edge Sheridan , 341 F .2d 725 (C.A. 2); Mitchell
Transport, 152 NLRB 122, 123. "No order of the Board
shall require the reinstatement of any indivudual as an
employee who has been suspended or discharged ... for
cause." See Section 10(c) of the Act.
It is my opinion , and I find, that Paige engaged in
protected activity by complaining to his bargaining
representative , Local 810 , of contract violations by
Respondent . In effect , such complaints constitute
grievances . The fact that the contract failed to provide for
prescribed steps in a grievance procedure does not detract
from this conclusion , for the presentation of grievances to
a bargaining agent is a right conferred by the Act. Farmers
Union Co-operative Marketing , 145 NLRB 1 , 3. In this
connection , it may be noted , and I find , that the contract in
essence recognizes that grievances will be presented to
the employer , for it not only mentions "presentation of
grievances" as one of the functions of a shop steward, but
also provides that unresolved grievances shall be
submitted to arbitration . General Counsel's Exhibit 2,
page 4.
The contract violations which Paige protested as
grievances both to Respondent and the Union I find to be
the following:
a. Underpaying employees contrary to the contractual
wage schedule . Objecting to this alleged inequity is a
protected activity . Bunney Bros. Construction Company,
139 NLRB 151.6, 1519 . In my opinion merely claiming a
breach of contract does not suffice to bring the activity
within the security of the Act ; there must also be a
colorable claim, even though it may ultimately fail. On this
aspect of the case I find a colorable claim , for an arbitrator
upheld Paige's contention that employees were being
compensated at rates 10 cents an hour less than those set
forth in the contract . See General Counsel's Exhibit 6.
b. Refusal to pay Paige double time, pursuant to
article VI of the contract , for working on November 11, a
holiday under article IX of the contract . Again I find that
Paige's claim to be paid for this overtime was colorable. In
fact I find that his said claim was actually meritorious, that
the Union presented it to Respondent as a grievance,
controversy , or dispute, and that Respondent ultimately
paid it.
Further, I find that Respondent originally denied this
overtime on the grounds that only union members were
entitled to it, and that Paige did not then belong to the
ROTAX METALS, INC.
Union. But I find that this contention cannot be supported
by any language in the contract. Therefore I find that the
ultimate payment of this overtime was not a gratuity or a
matter of grace, for Respondent's refusal to pay is not well
taken. Hence I find, as noted above, that Respondent's
said contention did not render Paige's claim unmeritorious
and, as noted above, that Paige's claim was colorable.
c. Respondent hired temporary employees through
Man Power, Incorporated, contrary to the provisions of
article IV of the contract. See page 1 of General Counsel's
Exhibit 2. I find that Paige protested this practice to
Local 810 and that a colorable violation of the contract is
shown by the record, especially since Respondent stopped
hiring through Man Power after the Union objected to it.
d. Respondent failed to pay Paige for sick leave
resulting from an injury suffered during the course of his
employment. See article XXX of the contract. In this
connection I credit Paige and find that he injured his right
thumb during working hours, that he was directed by
Respondent to consult a doctor, that he received treatment
from Dr. Michael Michaels who told him to stay out of
work the remainder of the day if his thumb bothered him,
that it did bother him, and that he did not therefore return
to work that day (January 13).
Further, I find that Paige's claim to be paid for such
leave is colorable, especially since President Rosenthal
telephoned Dr. Michaels to ascertain the facts. On this
issue I find that Paige qualified for such payment pursuant
to article XXX of the contract whereby "An employee
injured during working hours shall receive the rest of the
day off without loss of pay, provided that the injuries are
such that a doctor orders the employee not to return to
work." I further find that Respondent ultimately paid for
this sick leave, that such payment was not a gratuity or a
matter of grace, and that such payment was made after
Local 810 complained to Respondent that Paige was
entitled to it.
e. In connection with the above grievances, I find that,
in addition to presenting them to the Union to process,
Paige also personally called them to the attention of
Respondent. Such personal grieving by Paige, without
more, may be thought to lose the statutory protection. See
Farmers Union Co-operative, 145 NLRB 1, 3. But I find
that Paige did not go "over the head" of his bargaining
agent to press his individual claims, for I find that he
asked the Union to prosecute his grievances, that the
Union did so, and that Respondent satisfied the grievances
only after the Union had acted on Paige's requests. Hence
I find that Paige did not forfeit the protection of the Act
because he also personally complained to Respondent of
breaches of contract which affected him as well as other
employees. Norfolk Conveyor, 159 NLRB 464, is
distinguishable.
f. The General Counsel contends that Respondent
interfered with a statutory right when it denied Paige time
off to attend a Union meeting. On this aspect of the case I
find that a union meeting was to be held at 6 p.m. on
February 9, that Paige's working day ends at 5 p.m., that
Shop Steward Jones designated Paige to attend this
meeting in his stead, that Paige asked for time off to attend
this meeting, and that such request was denied by
Respondent.
4 N.L.R.B v. Prince Macaroni , 329 F.2d 803, 809 (C.A 1), holds
that a reasonable belief that the employee engaged in misconduct,
and that such belief prompted the discharge , is sufficient to
exonerate an employer accused of illegally terminating an
employee Hence it is immaterial that Paige was not in fact
77
Nevertheless I find that Respondent did not unlawfully
deprive Paige of a legislative right by denying him time off.
This is because I find that, in the past, employees
attending 6 p.m. union meetings were able to arrive at
them on time by leaving Respondent's premises at 5 p.m.,
and that Paige did not need more than an hour to travel to
the meeting. Hence I find that Paige's request amounted
to no more than a request to take time off for personal
convenience, and that time off for such a purpose is not
protected by the Act.
"Engaging in protected, concerted activity ... does not
perforce immunize employee against discharge for
legitimate reasons." Mitchell Transport, Inc., 152 NLRB
122, 123. Respondent stresses that Paige was discharged
for a ligitimate cause; i.e., insubordination. If, in fact, he
was terminated for that reason such action must be
upheld, regardless of its soundness, wisdom, or seventy.
For the Board does not sit in judgment on
nondiscrimonatory discharges for cause. N.L.R.B. V.
Prince Macaroni Co., 329 F.2d 803, 809 (C.A. 1); N.L.R.B.
v. United Parcel Service, 317 F.2d 912, 914 (C.A. 1);
Thurston Motor Lines, 149 NLRB 368. "Without question
an employer may discharge an employee for any reason
provided the reason is not conduct protected by the Act."
Interboro Contractors, Inc., 157 NLRB 1295. See N.L.R.B.
v. Brennan's Inc., 366 F.2d 560 (C.A. 5).
On the other hand, the fact that a lawful cause for
discharge exists or is available will not justify a discharge
actually motivated by the employee's protected activities.
N.L.R.B. v. L. E. Farrell Co., Inc., 360 F.2d 205 (C.A. 2);
N.L.R.B. v. Ace Comb Co., 342 F.2d 841, 847 (C.A. 8);
N.L.R.B. v. Symons Mfg. Co., 328 F.2d 835 (C.A. 7);
Portable Tools v. N.L.R.B., 309 F.2d 423,426 (C.A. 7). The
question then is whether Paige was dismissed for
insubordination or a reasonable belief that he was
insubordinate," as Respondent asserts, or whether this
was used as a pretext to cover a discharge generated by his
protected activities.
It is my opinion, and I find, that Paige was discharged
for activities safeguarded by the Act and that the reason
given for his termination, i.e., insubordination, is a cloak to
disguise the real reason. Initially I find that Paige was not
insubordinate, and that if he failed to heed any of
Respondent's commands it resulted from his being hard of
hearing and not from intentional disregard of instructions
from superiors. On this branch of the case I accept the
testimony of Paige and Shop Steward Jones, and do not
credit Respondent's evidence inconsistent therewith. And
I find that Jones did not refuse to sign an order, as Blade
testified, for I find that Jones asked Blade to initial it for
him.
Nevertheless, the fact that Paige was not guilty of
insubordination does not dispose of the issue, because
rejection of a defense will not constitute affirmative
evidence to sustain the General Counsel's burden of proofs
that Paige was unlawfully terminated. N.L.R.B. v. Joseph
Antell, Inc., 358 F.2d 880 (C.A. 1); Guinan v. Famous
Players, 167 N.E. 235, 243 (Mass.). Of course affirmative
evidence includes inferences, especially when direct
evidence is not obtainable. N.L.R.B. v. Putnam Tool Co.,
290 F.2d 663, 665 (C.A. 6). See Radio Officers Union of
Commerical Telegraphers (A.H. Bull S.S.) v. N.L.R.B., 347
U.S. 17,48-49.
insubordinate if the employer reasonably believed he was and
discharged him because of such belief.
s The burden is on the General Counsel at all times to establish
that Paige was illegally terminated . N.L R.B v Park Edge
Sheridan, 341 F.2d 725 (C.A. 2), Interboro Contractors , supra.
78 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The ultimate finding that Paige was illegally discharged
is based on the entire record and the subsidiary findings
immediately following below.
a. Timing is important. I find that Paige was discharged
shortly after engaging in protected activity which resulted
in financials disadvantage to Respondent. Arkansas-
Louisana Gas Co., 142 NLRB 1083, 1085; Texas Industries,
156 NLRB 423; N.L.R.B. v. Mira-Pak, 354 F.2d 525
(C.A. 5). No fault had been found with his work until this
financial detriment was visited upon Respondent. In this
respect it is significant that Respondent found Paige an
exemplary employee until December 31, 1965, and gave
him a substantial increase in wages (25 cents an hour) as
well as a Christmas bonus before the end of 1965. Cf.
Barton Brass Works, 78 NLRB 431, 436. It is reasonable to
infer, and I do so, that after early January 1966, when
Paige's protected conduct cost Respondent added
financial outlays, Respondent would seek to obtain some
plausible cause to release Paige from its employ.
b. Also, I find that the manner of discharge has
probative value. Thus, Paige was not directly warned that
his so-called insubordination imperiled his job. Rather
such warning was conveyed to him by Union President
Silverman and even then Silverman did this on his own
initiative. At no time did Respondent, prior to the
discharge, warn, reprimand, or reprove Paige. To the
extent that Respondent's evidence is to the contrary, I do
not credit it.
Hence I find that Paige was abruptly discharged without
prior warning or notice. Yet the contract (article XII)
assures employees that "Before any employee is
discharged, the Employer must give one (1) working day's
notice in writing to the Union." This was not done. "The
abruptness of a discharge and its timing are persuasive
evidence as to motivation." N.L.R.B. v. Montgomery Ward
& Co., 242 F.2d 497, 502 (C.A. 2), cert. denied 355 U.S.
829; N.L.R.B. v. L. E. Farrell Co., supra, 207-208. And
failure to reprimand or warn is probative. N.L.R.B. v.
Melrose Processing Co., 351 F.2d 693 (C.A. 8); N.L.R.B. v.
Whitin Machine Works, 204 F.2d 883,887 (C.A. 1).
On this aspect of the case Respondent's witness Harry
Smith testified to some instances of Paige's refusal to take
directions from Smith. I find this is true. But I further find
that, since Smith was neither an agent nor supervisor of
Paige, the latter could disregard Smith's demands.
Moreover, I find that this alleged disobedience by Paige
was not forthwith mentioned by Smith to Respondent and,
in any event it was not called to Paige's attention at any
time by Respondent. Hence I find that these incidents did
not contribute to the decision to terminate Paige.
c. Respondent did not discipline employee Jones for
failing to follow at least one command. In this respect I
credit Jones. Disparate treatment of offenders or
transgressors, being harsher on those engaged in
protected activity, is some indication that such harshness
is prompted by an employee's protected activities.
N.L.R.B. v. A. P. Green Fire Brick Co., 326 F.2d 910,
915-916 (C.A. 8); Cosco Products Co., 123 NLRB 766, 768,
footnote 4.
d. Finally, it is not necessary to establish that the only
reason for the discharge is the protected activity of Paige.
Hence the fact that Paige could have been discharged for
his alleged insubordination or Respondent's reasonable
belief thereof will not salvage the discharge as lawful. "In
6 An example of the cost to Respondent of Paige's protected
activity is the arbitrator's award of January 18 increasing wages
10 cents an hour
order to supply a basis for discrimination, it is necessary to
show that one reason for the discharge is that the
employee was engaging in protected activity. It need not
be the only reason but it is sufficient if it is a substantial or
motivating reason, despite the fact that other reasons may
exist." N.L.R.B. v. Whitin Machine Works, 204 F.2d 883,
885 (C.A. 1). I find that Paige's protected activities were a
substantial or motivating reason for his discharge.
N.L.R.B. v. D'Arminege, 353 F.2d 406 (C.A. 2). Cf. Aeronca
Mfg. Co., 160 NLRB 426.
Two additional defenses of Respondent must be
considered: (1) whether the arbitrator's award of April 18
(Respondent's Exhibit 1) will defeat reinstatement and
backpay for Paige, and (2) whether the initial
determination of the New York State Division of
Employment denying Paige unemployment compensation
(Respondent's Exhibit 2) will deprive Paige of relief in this
proceeding.
In order to encourage the voluntary settlement of labor
disputes the Board has held that it will respect arbitration
awards where all parties have acquiesced in a reference to
arbitration, provided "the proceedings appear to have
been fair and regular, all parties had agreed to be bound,
and the decision of the arbitration panel is not clearly
repugnant to the purposes and policies of the Act."
Spielberg Manufacturing Company, 112 NLRB 1080; New
Britain Machine Co., 116 NLRB 645, 646, reversed on
other grounds 247 F.2d 414 (C.A. 2). However, the issue
before the Board must have been "fully and fairly litigated
before an impartial arbitrator" if the Board is to honor the
award. International Harvester Co., 138 NLRB 923, 928.
On the record before me I find that the questions of
whether Paige was discharged for protected activities was
not litigated before the arbitrator, and that Paige sought
unsuccessfully to raise that issue. Hence, I find that the
arbitrator's award does not preclude consideration by me
of the issue of whether Paige was discharged for engaging
in activities guaranteed by the Act. "It manifestly could
not encourage the voluntary settlement of disputes or
effectuate the policies and purposes of the Act to give
binding effect in an unfair labor practice proceeding to an
arbitration award which does not purport to resolve the
unfair labor practice issue ... and which is the very issue
the Board is called upon to decide in the proceeding before
it." Monsanto Chemical Company, 130 NLRB 1097, 1099.
Comparable to the rule in actions at law, where a judgment
is not res judicata of issues which were not litigated
therein (2 Freeman on Judgments (1455-56 (5th ed.)) the
Board's doctrine likewise ignores an arbitrator's award
when he "did not have before him, nor did he pass upon
the question, now presented to the Board," whether a
discharge was based upon conduct safeguarded by
Congress. Ford Motor Company, 131 NLRB 1462,
1463-64. See Walsh Construction Company, 131 NLRB
260, 263.
In many respects the instant case resembles Raytheon
Company, 140 NLRB 883. There the Board, in rejecting an
arbitrator's award emphasized that "the difference lies in
the fact that the two proceedings posed different issues
and hence different evidentiary considerations" (at 886).
Similarly, I find that the issue presented to the arbitrator
in Paige's case did not involve, nor was evidence received
on, the questions of whether Paige engaged in protected
activity and whether he was discharged therefor. Hence I
find that the arbitrator's award is not an impediment
preventing the Board from passing upon those issues in
the instant unfair labor practice case now before it.
ROTAX METALS, INC. 79
It is true that the arbitrator did pass upon the question
of whether Paige was insubordinate and decided it
adversely to Paige. On the other hand, I have found that
Paige was not insubordinate. Ordinarily, an arbitator's
award should be followed by a Trial Examiner. But I do not
do so here because I find that the arbitrator did not have
before him all the evidence surrounding Paige's discharge;
i.e., evidence of protected activities and of pretext. Cf.
Dubo Mfg. Corp., 148 NLRB 1114, 1116-17. Hence it is
speculative whether the arbitrator would have found as he
did if all such evidence had been presented to him and he
had evaluated all the evidence. His finding, therefore,
lacks force because it is based on only some of the
evidence adduced at the unfair labor practice hearing. In
any event, even if I should find that Paige was in fact
insubordinate, I adhere to my finding above that his
insubordination was used as a pretext to mask the true
reason for his termination; i.e., engaging in protected
activities.
Finally, Respondent urges that the initial determination
of the New York State Division of Labor (Respondent's
Exhibit 2), made by its Industrial Commissioner on
June 14, establishes that Paige was lawfully discharged.
That determination adjudges that Paige "quit your job
without good cause. This determination is based on the
following: Causing your dismissal because of failure to
heed employer's direction is considered a `provoked'
discharge and under unemployment insurance law this is
the same as a voluntary leaving." This initial
determination was made without a hearing. A right to a
hearing by a party adversely affected thereby may be had
by requesting one within 30 days. Such hearings are held
before an impartial referee. At the date of the unfair labor
practice hearing herein the said 30 days had not yet
expired.
State decisions relating to unemployment compensation
benefits have been held by the Board to be relevant in
ascertaining the legality of a discharge in an unfair labor
practice case. Aerovox Corporation, 104 NLRB 246, 247.
But such decisions are not controlling or binding. Cadillac
Marines 115 NLRB 107, footnote 1 (3). Further, such
decisions must be final; i.e., the time for appeal, if appeal
is available , must have expired. I construe the right to
request a hearing before an impartial referee as
tantamount to an appeal. At the hearing herein I informed
the parties that I would presume that Paige asked for a
hearing before an impartial referee unless I was notified
by any of them to the contrary. Such notification has not
been received. Hence, the initial determination of the
State Industrial Commissioner is not laden with probative
value as I presume Paige has sought review thereof.
Assuming that Paige has not asked for a hearing before
an impartial referee, the said initial determination is
relevant and must be assessed along with other evidence
on the issue. For the purposes of this case, I so assume.
Merely because it is a decision at the first stage of the
administrative process will not detract from its evidentiary
value as long as it is a final, unappealed adjudication
which is not subject to further review. Cf. West v. A. T. &
T. Co., 311 U.S. 223, 236-237. Nevertheless, evaluating
this initial determination in the light of the entire record, I
conclude and find that Paige was unlawfully discharged
and that the reason given for his discharge, i.e.,
insubordination, is a disguise to conceal the true reason.
The foregoing findings concerning the discharge of
Paige disclose a violation of Section 8(a)(1) of the Act as
alleged in paragraph 11 of the General Counsel's
complaint. No finding is made whether said discharge also
contravenes Section 8 (a)(3) of the Act, as set forth in
paragraph 12 of the complaint , since the remedy (i.e.,
reinstatement with backpay ) would be the same. Interboro
Contractors , Inc., 157 NLRB 1295, footnote 16; Bunney
Bros. Construction Co., 139 NLRB 1516, 1519, footnote 5.
It would seem that , since the discharge was not motivated
by Paige's union activities , if any, no violation of Section
8(a)(3) is disclosed . Pacific Electricord Company, 153
NLRB 521, affd. 261 F. 2d 310 (C.A. 9).
B. Threats of Discharge and Other Reprisals
On January 10, President Rosenthal denied a
coffeebreak to Paige because Paige reported for work a
half hour late that morning. When Paige replied that this
was unfair (because he had to walk to work because of a
transit strike) and that he would complain to Local 810 in
writing about it, Rosenthal charged Paige with being
insubordinate and "was firing Paige." This threat to fire
Paige for taking a coffeebreak is not forbidden by the Act
since Paige was pressing a personal grievance without the
intervention of the bargaining agent. This method of
grieving, i.e., bypassing the Union, "looses the statutory
protection." Farmers Union Co-operative, 145 NLRB 1, 3.
I do not construe Rosenthal's remark as a threat to
discharge Paige in case Paige complained to his Union;
rather, as found above, I regard it as a threat to discipline
Paige for taking a coffeebreak which had been forbidden.
Accordingly, I find no violation of the Act in Rosenthal's
foregoing conversation with Paige.
About January 19, President Rosenthal took up with
Paige the question of overtime pay for Paige's work on
November 11. As a disposition thereof, Rosenthal told
Paige to take off the following Tuesday with pay to make
up for Respondent's failure to reimburse Paige with
double time on November 11. When Paige replied that he
preferred to receive the overtime pay rather than a paid
day off, Rosenthal accused Paige of arrogance and causing
"nothing but union trouble," and threatened to discharge
Paige for insubordination if he refused to take a day off in
lieu of overtime compensation for November 11. I further
find that Paige had before this (a) presented a grievance to
Local 810 protesting Respondent's refusal to pay him
overtime for November 11, and (b) President Silverman of
Local 810 took up this grievance with Respondent. Hence
I find that when Paige spoke to President Rosenthal on
about January 19, Paige's said grievance had already been
made known to, and was being processed by, Local 810,
and Local 810 had submitted it to Respondent.
Since Paige's grievance had already been presented to
Respondent through the Union, I find that this
conversation on about January 19 with President
Rosenthal did not constitute a "going over the head" of a
bargaining agent but, instead, concerned a pending
grievance which Local 810 was prosecuting for Paige.
Accordingly, I find that Paige's claim for overtime on this
occasion was protected by the Act. Farmers Union Co-
operative, 145 NLRB 1, 3. Further, I find that when an
employee's grievance has been presented by his
bargaining agent to his employer, the employee is under no
obligation to compromise that claim, that an unwillingness
to settle the claim for less is protected by the Act, and that
a threat to discharge an employee for refusing to accept an
unsatisfactory adjustment of such claim is proscribed by
Section 8(a)(1) of the Act.
80 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
However, the foregoing finding that a refusal to
compromise a grievance is a protected activity is premised
expressly upon the companion finding that, and applies
only to situations where, the grievance has been filed
pursuant to a contract to correct an inequity under the
contract and the employer's obedience to the terms of the
collective -bargaining agreement is brought in issue
thereby. Where, however, "an employee does not utilize
his contractual right to grieve or `goes over the head' of his
bargaining agent to press his individual claim, his
grievance becomes `personal ' and loses the statutory
protection." Farmers Union Co-operative, supra.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
Those activities of Respondent found to constitute
unfair labor practices , as set forth in section III, above,
occurring in connection with its operations described in
section 1 , above, have a close , intimate , and substantial
relation to trade, traffic, and commerce among the several
States and tend to lead to labor disputes burdening and
obstructing commerce and the free flow of commerce.
V. THE REMEDY
It having been found that Respondent has engaged in
certain conduct prohibited by Section 8(a)(1) of the Act, it
will be recommended that Respondent cease and desist
therefrom and that it take specific affirmative action, as
set forth below, designed to effectuate the policies of the
Act. Generally , discriminatory discharges have been
considered as going "to the very heart of the Act."
N.L.R.B. v. Entwistle Mfg. Co., 120 F .2d 532 (C.A. 4). But
on the record developed in this case I find that
Respondent has not demonstrated general hostility to the
purposes of the Act. Hence the order to be issued should
be no broader in scope than to provide a remedy correcting
the violations found and preventing repetition thereof and
similar or related conduct . More extensive relief is not
warranted.
Having found that Respondent illegally discharged
Frederick Douglas Paige for engaging in protected
activities , it will be recommended that Respondent offer
him full and immediate reinstatement to his former
position or one substantially equivalent thereto without
prejudice to his seniority and other rights and privileges
and make him whole for any loss of earnings suffered by
reason of said discharge . In making Paige whole,
Respondent shall pay to him a sum of money equal to that
which he would have earned as wages from the date of
such discharge to the date of reinstatement or a proper
offer of reinstatement, as the case may be, less his net
earnings during such period . The backpay is to be
computed on a quarterly basis as prescribed in F. W.
Woolworth Company, 90 NLRB 289, with interest thereon
at 6 percent pursuant to the formula adopted in Isis
Plumbing & Heating Co ., 138 NLRB 716. It will also be
recommended that Respondent preserve and make
available to the Board or its agents , upon reasonable
request , all pertinent records and data, necessary to
analyze and calculate the amount, if any, of backpay due.
Upon the basis of the foregoing tindings of fact, and
upon the entire record in this case , I make the following:
CONCLUSIONS OF LAW
1. Local 810 is a labor organization within the meaning
of Section 2(5) of the Act.
2. Respondent Rotax Metals, Inc., is an employer
within the meaning of Section 2(2) and is engaged in
commerce within the meaning of Section 2(6) and (7) of the
Act.
3. By illegally discharging Frederick Douglas Paige,
thereby discouraging activity having for its purpose the
submission , presentation, and processing of grievances
pursuant to the terms of a collective- bargaining
agreement , and by threatening to discharge said Paige for
refusing to accept a settlement of such grievances relating
to overtime pay not in accordance with the terms of such
contract, Respondent has engaged in unfair labor
practices within the meaning of Section 8(a)(1) of the Act.
4. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and
conclusions of law, and upon the entire record in this case,
it is recommended that Respondent, its officers, agents,
successors, and assigns, shall:
1. Cease and desist from:
(a) Discouraging employees from engaging in activity
having for its purpose the submission, presentation, and
processing of grievances pursuant to the terms of a
collective-bargaining agreement, by discharging or in any
other manner discriminating against any of its employees
in regard to their tenure of employment or any term or
condition of employment.
(b) Threatening to discharge employees who refuse to
settle grievances arising under the terms of a collective-
bargaining agreement in a manner not in accordance with
the provisions of said agreement.
(c) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of rights
guaranteed to them by 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 in Section 8(a)(3) of
the Act.
2. Take the following action designed to effectuate the
policies of the Act:
(a) Offer Frederick Douglas Paige immediate and full
reinstatement to his former position or one substantially
equivalent thereto, without prejudice to his seniority or
other rights and privileges previously enjoyed by him, and
make him whole for any loss of pay he may have suffered
by reason of the discrimination against him, with interest
at the rate of 6 percent per annum.
(b) Notify Frederick Douglas Paige, if presently serving
in the Armed Forces of the United States, of his right to
full reinstatement upon application in accordance with the
Selective Service Act and the Universal Military Training
and Service Act, as amended, after discharge from the
Armed Forces.
(c) Preserve and, upon reasonable request, make
available to the Board or its agents, for examination and
copying, all payroll records and reports and all other
records necessary to ascertain the amount of backpay due
under the terms of this Recommended Order.
F. J. BUCKNER CORP.
(d) Post at its plant in Kings County, New York, New
York, copies of the attached notice marked "Appendix."7
Copies of said notice, to be furnished by the Regional
Director for Region 29, after being signed by a duly
authorized representative of Respondent, 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 employees are
customarily displayed. Reasonable steps shall be taken by
Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(e) Notify the Regional Director for Region 29, in
writing, within 20 days from the receipt of this Decision,
what steps Respondent has taken to comply herewith.8
81
Note: We will notify the above-named employee if
presently serving in the Armed Forces of the United States
of his right to full reinstatement upon application in
accordance with the Selective Service Act and the
Universal Military Training and Service Act, as amended,
after discharge from the Armed Forces.
This notice must remain posted for 60 consecutive days
from the date of posting, and must not be altered, defaced,
or covered by any other material.
If employees have any question concerning this notice
or compliance with its provisions, they may communicate
directly with the Board's Regional Office, 16 Court Street,
Fourth Floor, Brooklyn, New York 11201, Telephone
596-5386.
I In the event that this Recommended Order is adopted by the
Board, the words "a Decision and Order" shall be substituted for
the words "the Recommended Order of a Trial Examiner" in the
notice . In the further event that the Board 's Order is enforced by
a decree of a United States Court of Appeals, the words "a Decree
of the United States Court of Appeals Enforcing an Order" shall
be substituted for the words "a Decision and Order "
8 In the event that this Recommended Order is adopted by the
Board , this provision shall be modified to read : "Notify said
Regional Director , in writing , within 10 days from the date of this
Order, what steps Respondent has taken to comply herewith "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board, and in
order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our
employees that:
WE WILL NOT discourage employees from engaging
in activity having for its purpose the submission,
presentation , and processing of grievances pursuant
to the terms of a collective- bargaining agreement, by
discharging or in any other manner discriminating
against any of our employees in regard to their tenure
of employment or any term or condition of
employment.
WE WILL NOT threaten to discharge employees who
refuse to settle grievances arising under the terms of a
collective-bargaining agreement in a manner not in
accordance with the provisions of said agreement.
WE WILL NOT in any like or related manner
interfere with , restrain , or coerce employees in the
exercise of rights guaranteed to them by 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 in Section 8(a)(3) of the Act.
WE WILL offer Frederick Douglas Paige immediate
and full reinstatement to his former position or one
substantially equivalent thereto, without prejudice to
his seniority and other rights and privileges, and make
him whole for any loss of pay he may have suffered by
reason of the discrimination by us against him, with
interest at the rate of 6 percent per annum.
ROTAX METALS, INC.
(Employer)
Dated By
(Representative ) (Title)
F. J. Buckner Corporation , d/b/a United
Engineering Company and Oil , Chemical,
and Atomic Workers International Union,
Local 1-128 , AFL-CIO, Long Beach Local
No. 1-128 , OCAWIU, AFL-CIO. - Case
21-CA-9621.
February 23, 1967
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND ZAGORIA
On August 10, 1966, Trial Examiner E. Don
Wilson issued his Decision in the above-entitled
proceeding, finding that Respondent had engaged in
and was engaging in certain unfair labor practices
and recommending that it cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision.
Thereafter, the Respondent filed exceptions to the
Decision and a supporting brief, and the General
Counsel filed an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and
the entire record in the case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner'I
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
i We find without merit the Respondent's contention that
Escobedo v. Illinois , 387 U S 478, is applicable in this proceeding
See Crown Imports Co , Inc , 163 NLRB 24
The Respondent contends that the complaint should be
dismissed because of the General Counsel's alleged failure to
return documents belonging to the Respondent . As it has not been
established what, if any, papers were not returned , or how the
Respondent was prejudiced , we find no merit in this contention.
163 NLRB No. 7