Syn-Tech Windows Systems, Inc.

National Labor Relations Board - Board Decisions

Jun 8, 1989

294 N.L.R.B. 791 (N.L.R.B. 1989)

SYN-TECH WINDOWS SYSTEMS
Syn-Tech Windows Systems, Inc. and Cesar Garcia.
Case 2-CA-21638
June 8, 1989
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
JOHANSEN AND CRACRAFT
On February 5, 1987, Administrative Law Judge
James F. Morton issued the attached decision. The
Respondent filed exceptions and a supporting brief.
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 brief and has
decided to affirm the judge's rulings, findings, i and
conclusions, as explained below.
We agree with the judge's finding that the Re-
spondent violated Section 8(a)(3) and (1) of the Act
by discharging employee Cesar Garcia. It is undis-
puted that the Respondent discharged Garcia, who
was the only union steward, because of his conduct
in a meeting with one of the Respondent's officers,
Mark Wisner, on April 18, 1986. The General
Counsel's theory of the discharge was that Garcia
had antagonized the Respondent through his ag-
gressive pursuit of grievances on behalf of his
fellow employees and that Garcia's persistence in
this role during the April 18 meeting, even after
Wisner had received a disturbing telephone call
and wished Garcia to leave, precipitated his dis-
charge. The Respondent agreed that Garcia's be-
havior after Wisner received the telephone call re-
sulted in his discharge, but argued, on the basis of
Wisner's testimony, that Garcia had pointed his
finger angrily at Wisner and threatened him with
an unspecified "problem" if the employees' griev-
ances were not remedied. The Respondent con-
tended that it was not unlawful to discharge an em-
ployee for such conduct. The judge discredited
Wisner's account, but agreed with both parties that
Garcia's conduct at that meeting was critical. He
found that Garcia was discharged for a parting
statement he made to the effect that the employees
might look for a different union and wondered if
that would cause problems for Wisner.
The Respondent now argues to us that the
judge's finding is improper because it amounts to
finding a violation that was neither alleged by the
1 The Respondent has excepted to some of the judge's credibility find-
ings The Board 's established policy is not to overrule an administrative
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 Cir 1951)
We have carefully examined the record and find no basis for reversing
the findings
791
General Counsel nor fully litigated by the parties.
We agree that the judge's ultimate finding of the
cause of Garcia's discharge is at variance with the
allegation that the General Counsel pursued
throughout the case. For the reasons set forth
below, however, we find that the Respondent dis-
charged Garcia essentially for the reasons alleged
by the General Counsel. That conclusion is entirely
consistent with the judge's credibility resolutions,
although not with the construction he placed on
the events he found had occurred.
The judge concluded (with ample record sup-
port) that Garcia's active pursuit of employee
grievances had not endeared him to the Respond-
ent's management and that Martin Seltzer, the Re-
spondent's president, "was more than a little dis-
turbed by Garcia's advocacy of employee rights
under the contract," because the Respondent "had
successfully ignored various of those rights" before
Garcia became the steward. Nonetheless, he con-
cluded that Garcia's discussion of specific griev-
ances with Wisner prior to Wisner's receiving the
disturbing telephone call was not the direct cause
of the discharge. As noted above, he found that the
discharge was precipitated immediately thereafter
by a brief final exchange between the two men,
after Wisner put his hand over the telephone re-
ceiver and asked Garcia if there was anything else
he wanted. The testimony of Garcia, whom the
judge credited, was that Garcia asked Wisner to
give Garcia "his opinion about . . : i the em-
ployee[s] want[ing] to change the union," with
Garcia assuring Wisner that he did not want "to
create . . . any problem" for Wisner. Garcia fur-
ther testified (on redirect) that Wisner had become
angry and had told him "to try to solve the prob-
lem with your union because I don't care [about]
the union and I don't care [about] anybody."
Garcia also testified that Wisner had told him to
leave at that point. The judge found that "moments
later" Garcia's supervisor told him that Seltzer, the
Respondent's president, ordered the supervisor to
fire Garcia. As explained above, all parties agree
that the firing was the direct consequence of the
meeting with Wisner.
We find that the testimony credited by the judge
shows that Wisner-already disturbed by the tele-
phone call from a slow-paying customer-finally
became disgusted when Garcia appeared deter-
mined to stay in the office and discuss at greater
length the employees' problems and strategies for
solving them. That accounts for Wisner's outburst,
"I don't care [about] the union." We also infer
from the record as a whole (including earlier state-
ments to Garcia indicative of the Respondent's hos-
tility to Garcia's grievance activities) that Wisner
294 NLRB No. 60
792 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
and Seltzer determined that Garcia should be ter-
minated because of his constant pursuit of employ-
ees' grievances. That is, in essence, what the Gen-
eral Counsel alleged. Thus, although the judge
erred in narrowly construing Wisner's hostile reac-
tion as hostility toward the idea of a new union
coming in, we conclude that the facts he found are
supported by the record and that they, in turn, sup-
port the complaint allegation.
Moreover, even if the judge had credited
Wisner's account of the April 18 meeting, a viola-
tion would still be established. The angry finger-
pointing conduct that Wisner described would not
be sufficiently egregious to remove the protections
of the Act from Garcia's presentation of employee
grievances.2
We also affirm the judge's findings that the Re-
spondent's discharge of employees Augustin Perez,
Jorge Felix, Juan Maldonado, and Washington
Jaime violated Section 8(a)(3) and (1). The Re-
spondent contended that these four employees
were discharged for instigating an unprotected
strike during an employee meeting on April 18,
1986, in protest of Garcia's discharge.
We find that these employees' reaction to Gar-
cia's discharge constituted protected activity, not-
withstanding the presence of a no-strike clause in
their contract. We agree with the judge that, under
all the circumstances, the employees' confused,
emotional reaction to learning of Garcia's dis-
charge just as they were finishing their lunchbreak
did not constitute a work stoppage of a kind that
could properly subject them to discharge under the
collective-bargaining agreement. The contract pro-
vided that, in the case of an unauthorized work
stoppage, the Union was obligated to "make imme-
diate efforts to return employees to their respective
jobs," and employees could be "summarily dis-
charged" if they failed to report to work "after
being notified by the Union to do so." Here the
Respondent itself impeded the contractual proce-
dure, because it fired the union steward and then,
before other representatives of the Union (to whom
Garcia had spoken by telephone) could get to the
plant, told the employees to leave the plant. Fur-
ther, as the judge found, the Respondent issued its
"go-home" order only a few minutes after Seltzer,
the Respondent's president, had told the employees
they had 10 minutes in which to decide what to
do. At that point the employees were still mulling
over Garcia's report that the union representatives
had said that the employees should go back to
2 See, for example , NLRB v Chelsea Laboratories, 825 F 2d 680, 683
(2d Cir 1987) (protection of Act not necessarily lost because grievances
presented in rude manner), NLRB v Thor Power Tool Co., 351 F 2d 584,
587 (7th Cir 1965) (same)
work and that the representatives were coming out
to the plant.3 Accordingly, we conclude that the
four employees were discharged for engaging in
protected concerted activity.4
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Syn-Tech
Windows Systems, Inc., New York, New York, its
officers, agents, successors, and assigns, shall take
the action set forth in the Order. s
8 Although the General Counsel argued that the employees' action was
a serious unfair labor practice strike, the issue whether there were other
grounds for finding that the contractual no-strike clause did not privilege
discharging employees for the event was fully and fairly litigated The
judge himself had raised the point at the outset of the hearing, and, al-
though the General Counsel primarily pursued an unfair labor practice
strike theory, she responded to the judge 's question by noting that
"whether you call it an unfair labor practice strike, discussions about it,
or whatever it was protected activity " Further, the Respondent in
its brief to the judge presented argument on the issue whether, even apart
from the commission of any unfair labor practices, the contract enabled
the Respondent to discharge the employees for their participation in the
incident in question
4 In view of this conclusion, we find it unnecessary to pass on the issue
whether, even assuming that the employees engaged in a work stoppage,
their activity was protected because it was provoked by a serious unfair
labor practice Further, we find it unnecessary to pass on the judge's
finding that the Respondent condoned the actions of the unit employees
by directing all employees except Garcia to report for work on the
Monday following the April 18 meeting In addition, we note that the
judge found no evidence supporting the Respondent 's assertion that it
had conducted an independent investigation that established that the four
employees in question were directly involved in initiating the "wildcat
strike "
In accordance with our decision in New Horizons for the Retarded,
283 NLRB 1173 (1987), interest on and after January 1, 1987, shall be
computed at the "short-term Federal rate" for the underpayment of taxes
as set out in the 1986 amendment to 26 US C § 6621 Interest on
amounts accrued prior to January 1, 1987 (the effective date of the 1986
amendment to 26 U S C § 6621), shall be computed in accordance with
Florida Steel Corp, 231 NLRB 651 (1977)
Judy Minette Sandler, Esq., for the General Counsel.
Joel Spivak, Esq. (Spivak & Meiselas), of Great Neck,
New York, for the Respondent.
DECISION
STATEMENT OF THE CASE
JAMES F. MORTON, Administrative Law Judge. The
complaint alleges that Syn-Tech Windows Systems, Inc.
(Respondent) violated Section 8(a)(1) and (3) of the Na-
tional Labor Relations Act (the Act) by having dis-
charged Cesar Garcia because of his activities as steward
for General Trades Employees Union, Local 5 (the
Union) and that Respondent further violated Section
8(a)(1) and (3) of the Act by discharging four other em-
ployees when they ceased work to protest Garcia's dis-
charge. Respondent's answer to the complaint places
those allegations in issue.
The hearing was held before me in New York City on
15, 16, and 17 October 1986. All dates hereafter are for
1986 unless specified otherwise.
SYN-TECH WINDOWS SYSTEMS 793
On the entire record , including my'observation of the
demeanor of the witnesses , and after due consideration of
the briefs filed by the General Counsel and by Respond-
ent, I make the following
FINDINGS OF FACT
1. JURISDICTION AND STATUS OF THE UNION
The pleadings established and I find that Respondent
manufactures and installs windows in residential and
commercial buildings and that its operations meet the
Board 's nonretail jurisdictional standard.
I further find , based on the pleadings , that the Union is
a labor organization within the meaning of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
Respondent began operations in early 1985. Its presi-
dent , Martin Seltzer, is responsible for production and
other "inside " operations . Its other principal officer,
Mark Wisner , is in charge of sales and the other "out-
side" activities . Production work is supervised by Cesar
Pelleran and Joey Costello.
Respondent hired its first employee, Jorge Felix in
January 1985. He performed general duties in prepara-
tion for the start of production . Respondent began hiring
additional employees about 3 months after Felix began to
work
On 1 June 1985 Respondent and the Union signed a 3-
year collective -bargaining agreement covering "drivers
and factory employees ." Wage rates thereunder ranged
from $3.35 to $3.75 an hour Employees were to receive
a raise of 25 cents to 35 cents on completion of 90 days'
employment ; that provision of the contract was the basis
of a grievance seeking retroactive payment, as discussed
below . A 25-cent-an -hour raise in 1986 was provided for
as was another such raise for 1987. The contract con-
tained provisions for arbitration and for other relevant
points, as discussed below.
B. Garcia's Activities as Steward/His Discharge and
the Discharges of Four Other Employees
Although the collective -bargaining agreement was
signed on 1 June 1985, it appears from the uncontrovert-
ed testimony of the General Counsel 's first witness that
there was no union steward at Respondent 's facility until
November 1985 and that that steward was not chosen by
the unit employees . That steward never processed any
grievances . In February , the employees elected the
Charging Party, Cesar Garcia , to replace him as steward.
Garcia, as Respondent concedes , was an active steward.
Garcia processed a grievance to claim unpaid vacation
benefits under the contract. He pursued another griev-
ance to receive 3 days of funeral leave, under a contract
provision , instead of the 1 day that Respondent had al-
lowed . He sought , in another grievance , retroactive pay-
ments for all unit employees , then numbering between 50
to 70 employees , for the hourly wage increase due on
completion of 90 days' employment.
Garcia testified as follows as to an occasion when he
had gone to Respondent 's office to give Respondent's
bookkeeper certain information which she had requested
in connection with the retroactive wage increase griev-
ance. While there , Respondent 's president , Seltzer , called
him to his office Seltzer told Garcia he did not want
Garcia coming to the office . Garcia told him that he had
come to the office to discuss the grievance for retroac-
tive payments of the wage increases . Seltzer told him
that he was "never again " to come to the office "because
it's driving [him] crazy ." Seltzer did not testify . I credit
Garcia's account.
In March , the employees received retroactive pay-
ments of the wage increases due them under the con-
tract.
Garcia testified further, also without contradiction,
that his immediate supervisor , Cesar Pelleran , told him
that he had received instructions to assign Garcia to an
isolated area because of his activities as steward.'
Garcia further testified that he held meetings with his
coworkers to keep them abreast of all developments.
Garcia testified as follows as to one such meeting in late
March . At that meeting, his coworkers told him that, if
he was fired for "defending" their rights , they would
stop work . When that meeting ended , a supervisor, Joey
Costello, told him to see Mark Wisner , one of Respond-
ent's officers . Garcia went to Wisner 's office . The first
thing Wisner did was to tell him that he wanted Garcia
to know that if the workers strike , he would fire all of
them because he has the money and the lawyer to do it.
Garcia responded by saying that he was being pressured
by Seltzer and by his supervisor , Pelleran . Wisner in-
formed him that he would talk to Seltzer and to Pelleran
and indicated to Garcia that they can and should work
together . That discussion ended on a friendly note.
Wisner testified that he met with Garcia in his office
at Garcia's request after he had fended off earlier re-
quests by Garcia for such a meeting and that, when
Garcia told him that Seltzer and Pelleran "were out to
get him," he responded that he did not believe it but
would talk to them and that he did so.
I credit Garcia's version as to how the meeting start-
ed. Garcia impressed me as one who would be hesitant
to bypass his supervisor repeatedly to seek a meeting
with Wisner . Garcia's account indicates he had been
summoned by Costello to Wisner's office because of the
comments made at the meeting Garcia had just held with
his coworkers . There is a consistency in his account and
I note that Costello was not called as a witness to rebut
Garcia's account
On the following day, Garcia met with a union repre-
sentative to convey the dissatisfaction unit employees
had with their medical insurance coverage and the fail-
ure of the Union to return their phone calls.
In early April , according to Garcia 's uncontroverted
account, his supervisor , Pelleran, told him that he did
not want Garcia to be the union steward because he, Pel-
leran , was under pressure from his supervisor . Garcia
asked to speak with Wisner Wisner came down to Gar-
cia's work area and told him that he did not have time
i There is no allegation in the complaint that this statement by Pelleran
or others he made were violations of the Act
794 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
then to talk with him but that they would get together in
the following week
On Friday of the following week, 18 April, Garcia
sent a note to Wisner to remind him of his promise to
meet with him. At about noon that day, Garcia was
called to Wisner's office. Their respective accounts are in
substantial accord, except for the end of their discussion
where they diverge.
The meeting began on a friendly note when they dis-
cussed the Spanish language. Garcia then brought up a
problem that the employees were having in handling
glass and he showed Wisner that his hand had a cut.
Wisner told him that he had been looking at gloves that
would solve that problem. They discussed the use of ear
plugs to counter noise problems and the feasibility of in-
stalling an oven in order that the employees could heat
their lunches. At about this point in the discussion, the
telephone rang. Wisner and the caller talked about
money owed Respondent and Wisner argued with the
caller about a check Respondent should have received
The call "upset" Wisner Wisner put his hand over the
mouthpiece on the phone and asked Garcia if there was
anything else he wanted to talk about Garcia's testimony
and Wisner's testimony differ as to what transpired at
about that point.
Garcia related that he told Wisner that the employees
were thinking of getting a different union to represent
them and asked Wisner if this could be a problem. Ac-
cording to Garcia, Wisner'said that he did not have the
time to discuss that matter and abruptly told Garcia to
go back to work. Garcia left while Wisner resumed his
discussion on the telephone.
Wisner's account is as follows. Just before receiving
the phone call, Garcia had informed him that he wanted
to "change the union" and that he, Wisner, said to him,
"God bless you, I have no love for the Union, if you can
change the union go right ahead and change the union."
During the phone call, Wisner put the caller on hold and
asked Garcia if there was anything else he wanted to dis-
cuss. Garcia asked whether a holiday could be ex-
changed for another day off and he replied that that
would be no problem and he assured Garcia that they
would talk about that. He then told Garcia that he had
an important phone call Garcia then pointed a finger at
Wisner and said that "if [he doesn't] get these things,
[Wisner will] see what will happen." Garcia said that he
was "the shop steward here and that if [he doesn't] get
these things, we're going to have a problem." Wisner
then ordered him to leave the office. Garcia got up and
grinned Wisner was not in fear of physical harm He
went over to Seltzer's office and told him that he
"want[s] this guy gone." He told Seltzer that Garcia
pointed his finger at him and that "no one [threatens
him] " Seltzer called up Pelleran and told him to dis-
charge Garcia.
Although, as discussed below, it may not be necessary
to decide whether Garcia's account is more probable
than Wisner's, I credit Garcia's account. It is entirely
consistent with his earlier dealings with Wisner. Up to
the point when Wisner received a phone call which ad-
mittedly upset him, their dealings were friendly and
Wisner had presented himself to Garcia as one Garcia
could rely on to smooth any problem he was having
with Seltzer or his own supervisor. In that context, it is
more probable that Garcia would ask Wisner if bringing
in a different union could cause him problems. I note, in
that connection, that Garcia was raised in the Dominican
Republic and may be unfamiliar with the procedures in
the United States for changing representation and his de-
meanor indicated to me that he would be disposed to
seek guidance from Wisner particularly in light of the
friendly tone of their discussion. Wisner's version is
highly improbable to me. Garcia would hardly, for no
apparent reason, suddenly point a finger and "threaten"
Wisner
After leaving Wisner's office, Garcia returned to his
workplace Moments later, his supervisor, Pelleran, told
him that he, Pelleran, was ordered by Seltzer to dis-
charge him. Garcia asked for a reason and Pelleran said
that he was given none. Garcia asked if he could hold a
meeting of the employees. Pelleran said he could.
The General Counsel's witnesses and one called by
Respondent are in substantial accord as to what tran-
spired next Neither Seltzer, Wisner, nor any of Re-
spondent's supervisors testified as to the ensuing events
although present. The following is a composite of the ac-
counts given me.
The employees in Respondent's plant were in the
process of eating lunch at or near their workplaces. As it
was a Friday, the half-hour lunch was usually extended
for a short time to enable the employees to cash their
paychecks. It was approximately halfway through the
luncheon period that the employees got word to come to
the glass department About 70 were present. There,
Garcia told them he had been discharged because he was
acting as steward and that no reason was given him for
his discharge. There was a lot of shouting. In general the
employees were voicing outrage at Garcia's discharge.
Seltzer came onto the scene and using Supervisor Pel-
leran to translate his comments into Spanish, he told the
assembled employees that they had 10 minutes to decide
what to do He left. Garcia went to a supervisor's office
and returned to the meeting to tell the employees that he
had called the Union and that it was sending a represent-
ative to handle his discharge. Garcia told them to return
to work. The assembled employees shouted their support
for Garcia and in general made it clear that they would
wait with him for the union representative to appear.
Seltzer returned to the area with Wisner Seltzer had
been gone but a few minutes, not 10. Wisner told the em-
ployees that the plant was closed, that they were sus-
pended, and that all, but Garcia, are to report for work
on Monday. Wisner instructed them to leave They hesi-
tated but, when Wisner threatened to call the police,
they left.
All but Garcia returned to work on the following
Monday, 21 April. On the next day, Tuesday, 22 April,
one of the employees in the glass department, Augustin
Perez, was told by Pelleran that he was discharged.
Three other employees-Jorge Felix, Juan Maldonado
and Washington Jaime-were discharged during the re-
mainder of that week. All four of these discharged em-
ployees were among those who spoke up to support
SYN-TECH WINDOWS SYSTEMS
Garcia at the meeting held by Garcia on 19 April. Re-
spondent wrote the Union that these four employees
were dismissed because they had been "directly in-
volved" initiating the "wildcat strike."
Relative to Respondent 's assertion that there was a
wildcat strike , the collective-bargaining agreement re-
ferred to above contains the following provisions. Under
the section, headed "Arbitration," there is a provision
which reads , "If [Respondent ] is not in default in com-
plying with the decision of the arbitrator , the Union shall
not engage in any strike , picketing , boycott or walk-out."
Section 12 provides that "where an unauthorized work
stoppage or strike occurs the Union will make immediate
efforts to return the strikers to their respective jobs."
Section 12 of the agreement also contains the following
provision , "Should any employee fail to report to work
after being notified by the Union to do so, [Respondent]
shall have the right to summarily discharge."
C. Analysis
The facts found above disclose that Garcia's actions as
steward were hardly received with enthusiasm by Re-
spondent 's president. Seltzer's own words, as recounted
by Garcia , acknowledged that he was more than a little
disturbed by Garcia 's advocacy of employee rights under
the contract . It appears that , until Garcia was elected
steward , Respondent had successfully ignored various of
those rights One was enforced by retroactive payments
to all unit employees of a 25-cent -an-hour wage increase.
Garcia's activities led to warnings by his supervisors and
restriction on his access to the office area Yet the inci-
dent that brought about his discharge on 18 April was
not his processing of any specific contract grievance or
even his efforts to improve working conditions in gener-
al (e.g., his request for a warming oven). Those matters
were handled without incident by Wisner. What obvious-
ly was the precipitating factor in Respondent 's decision
to discharge Garcia was his statement to Wisner that the
employees wanted to replace the Union with another
labor organization as their representative . As soon as he
broached that subject , the interview was terminated and,
moments later , Garcia was discharged by Seltzer 's order
and without any explanation. A clear prima facie show-
ing has thus been made that Respondent discharged
Garcia in violation of Section 8(a)(1) and (3) of the Act,
in order to discourage him and the other unit employees
from seeking representation by another labor organiza-
tion. See Wright Line, 251 NLRB 1083 (1980), enfd. 662
F.2d 899 (1st Cir . 1981). See also System Analyzer Corp.,
171 NLRB 45 (1968), in which employer was held to
have violated Section 8(a)(1) and (3) by having dis-
charged four employees for "trying to get a union in the
plant."
Respondent offered no credible evidence to rebut that
strong prima facie showing. The reason proffered by Re-
spondent for discharging Garcia (that Garcia pointed his
finger at Wisner to emphasize that he expected Wisner to
honor his commitments ) is no defense but would more
properly constitute an unlawful basis for its action. See
Acme-Arsena Co., 276 NLRB 1291 (1985)
I find , thus, that Respondent discharged Garcia on 18
April because of his protected activities as union steward
795
and to discourage its employees from seeking representa-
tion by another labor organization.
There remains for consideration the question whether
Respondent , in discharging four employees in the week
after Garcia's discharge , violated the Act.
As noted above, the contract between Respondent and
the Union contains a clause which gives Respondent the
right to summarily discharge any employee engaged in a
wildcat strike who fails to go back to work when noti-
fied by the Union to do so. The Board honors such a
provision except where a strike is in protest against seri-
ous unfair labor practices . See Goodie Brand Packing
Corp., 270 NLRB 451 ( 1984), and cases discussed therein.
The immediate question to be considered is whether the
employees were engaged in an unauthorized work stop-
page. If they were, it must then be determined whether
Respondent 's discharge of Garcia was a serious unfair
labor practice so that the work stoppage , if in protest
thereof, would be protected by the Act. If it was, Re-
spondent 's discharging four employees for their part in
that stoppage constitutes additional violations of the Act.
An ancillary issue arises by reason of Respondent's
having restored all employees except Garcia to full em-
ployment status on 21 April, insofar as that may have
been condonation
The language whereby Respondent has the power to
summarily discharge employees pursuant to the no-strike
provisions of the contract clearly contemplates three sep-
arate events-first, the participation of employees in a
work stoppage ; second , a directive to them from the
Union to return to work , and third , their failure to heed
that directive.
As to whether the employees had been engaged on 18
April in a work stoppage contemplated by the contract,
the Board 's holding in Anheuser-Busch, Inc., 239 NLRB
207 (1978 ), is pertinent In that case , a similar type of
employee meeting was found not to be a work stoppage.
The facts in the case before me are even stronger to sup-
port such a holding. Respondent cannot tell its employ-
ees, who were then having lunch , that they have 10 min-
utes and still argue at the hearing that those employees
were then engaged in a work stoppage . Even had Re-
spondent not allocated those 10 minutes and assuming
also that Respondent had clearly demonstrated that the
employees had refused a clear order to return to work at
the end of their lunch period, the holding in Anheuser-
Busch would still apply as the language of section 12 of
the contract, quoted above, clearly pertains to reflective,
not spontaneous , acts More significantly , it would be un-
conscionable , in the circumstances of this case , to allow
Respondent to seize on that contract language now Put
aside the fact that Respondent itself appears to have ig-
nored , for long periods, contract language that benefited
its employees. Instead , I find that Respondent had to
have been aware, at the time it unlawfully discharged
Garcia, that there would be a sharp reaction among its
employees , who were then at lunch . To hold otherwise
would require me to impose on them a behavioral stand-
ard that Respondent itself admittedly could not begin to
meet. In that regard , I note that its president confessed
to being driven "crazy" by Garcia 's mere presence. In
796 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
overall context , Respondent 's discriminatory discharge of
Garcia was the cause of the confusion and clamor that
took place at lunchtime on 18 April . Thus, they learned
then that Garcia had been summarily discharged, with-
out a reason , right after having represented them at a
meeting with Respondent-Garcia whom they elected,
who pressed their grievances despite having been sub-
jected to repeated harassment and who had recently se-
cured for them a retroactive increase which lifted most
of them above the minimum wage level In these circum-
stances, Respondent could hardly have expected them to
pursue a leisurely lunch . Rather, the character of the
lunchtime meeting was the natural consequence of Re-
spondent 's unlawful discharge of Garcia For that sepa-
rate reason then , I find that under Anheuser-Busch , supra,
the 18 April lunchtime meeting was not a work stoppage
as contemplated by the contract.
Even assuming it was, the considerations set out above
would nonetheless compel a finding that the meeting was
an activity protected under Mastro Plastics and Arlan's
Department Store ( 133 NLRB 802 (1961 )), the cases cited
and discussed in Goodie Brand , supra. Respondent's acts
in discharging four employees in the following week be-
cause they took part in that meeting would also consti-
tute violations of the Act. I do not base my determina-
tion on that alternate holding. It is sufficient to note that
Respondent had discharged four employees for having
participated in a meeting held during a period when they
were not scheduled to be at work and , at which meeting,
they were obviously engaged in discussing a matter that
directly impacted on their working conditions In short,
those four employees were selected for discharge be-
cause they were engaged in activities protected by Sec-
tion 7 of the Act in that they were, in 'a concerted
manner , considering a course of action to support their
discharged union steward.
As a final point , I should note that, even were those 4
employees involved in an unprotected act when they
participated with approximately 70 of their coworkers at
that 18 April meeting , their being selected for discharge
the following week would still be violative of the Act. It
will be recalled that Respondent suspended all employees
that day for having taken part in that meeting, Respond-
ent had directed all to report for work on the following
Monday; and it put all of them back to work then. Re-
spondent by its own acts had condoned the actions of all
70 employees at that meeting . That is the unequivocal
import of the holding in Marquette Cement Mfg. Co., 219
NLRB 549 (1975), and cases cited therein on 555. Re-
spondent placed in evidence a letter stating that it had
conducted independent investigations which established
that these four employees were directly involved in initi-
ating the "wildcat strike." There is no evidence that they
did so or that Respondent conducted any such inquiry
3. Respondent has committed unfair labor practices in
violation of Section 8(a)(1) and (3) of the Act by having
discharged the employees named below on the following
dates in 1986 opposite their names:2
Cesar Garcia 18 April
Augustin Perez 22 April
Jorge Felix 22 April
Juan Maldonado 24 April
Washington Jaime 25 April
4. These unfair labor practices affect commerce within
the meaning of Section 2(6) and (7) of the Act.
REMEDY
Having found that Respondent has engaged in certain
unfair labor practices it is recommended that it be or-
dered to cease and desist therefrom and take certain af-
firmative action designed to effectuate the Act.
It is further recommended that Respondent shall be or-
dered to offer Cesar Garcia, Augustin Perez, Jorge Felix,
Juan Maldonado, and Washington Jaime reinstatement to
their former positions of employment without loss of any
seniority or privileges and to make them whole for all
pay they lost as a result of their unlawful discharges,
with interest thereon to be computed in the manner pre-
scribed in F. W. Woolworth Co., 90 NLRB 289 (1950),
and Florida Steel Corp., 231 NLRB 651 (1977)., See gen-
erally Isis Plumbing Co., 138 NLRB 716 (1962).
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed3
ORDER
The Respondent, Syn-Tech Windows Systems, Inc.,
New York, New York, its officers, agents, successors,
and assigns, shall
1. Cease and desist from
(a) Discouraging membership in any labor organization
by discharging any of its employees.
(b) In any other manner interfering with, restraining,
or coercing employees in the exercise of the rights guar-
anteed in Section 7 of the Act
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Offer Cesar Garcia, Augustin Perez, Jorge Felix,
Juan Maldonado, and Washington Jaime immediate and
full reinstatement to their former positions, or, if their
positions are no longer available, to substantially equiva-
lent postions without prejudice to their seniority or any
other rights and privileges and make each whole for any
loss of pay suffered by reason of his discharge, in the
manner set forth above in the remedy section of the deci-
sion.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act.
2. The Union is a labor organization as defined in Sec-
tion 2(5) of the Act.
2 The complaint does not allege that the employees were unlawfully
suspended
3 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
SYN-TECH WINDOWS SYSTEMS
(b) Expunge from its personnel records and files all
references to the unlawful termination of employment of
the employees whose names are listed above and notify
each , in writing , that this has been done and that such
termination will not be held against them in anyway.
(c) Preserve and, on request, make available to the
Board or its agents for examination and copying , all pay-
roll records , social security payment records , timecards,
personnel records and reports, and all other records nec-
essary to analyze the amount of backpay due under the
terms of this Order
(d) Post at its facility in New York , New York , copies
of the attached notice marked "Appendix ."4 Copies of
the notice , on forms provided by the Regional Director
for Region 2, after being signed by Respondent 's author-
ized representative , shall be posted by the Respondent
immediately upon receipt and maintained for 60 consecu-
tive days in conspicious places including all places where
notices to employees are customarily posted Reasonable
steps shall be taken by the Respondent to ensure that the
notices are not altered, defaced , or covered by any other
material.
(e) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
" 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 "
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
797
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT discharge any of our employees in
order to discourage membership in any labor organiza-
tion.
WE WILL NOT in any other manner interfere with, re-
strain , or coerce you in the exercise of the rights guaran-
teed you by Section 7 of the Act.
WE WILL offer to Cesar Garcia, Augustin Perez, Jorge
Felix, Juan Maldonado , and Washington Jaime full rein-
statement to work and make them whole for all lost pay,
with interest.
WE WILL expunge from our personnel records and
files all reference to the unlawful termination of employ-
ment of the employees whose names are listed above and
notify each , in writing , that this has been done and that
such termination will not be held against him in any
way.
SYN-TECH WINDOWS SYSTEMS, INC.