The Akron Paint And Varnish Co.

National Labor Relations Board - Board Decisions

Apr 24, 1989

293 N.L.R.B. 781 (N.L.R.B. 1989)

AKRON PAINT & VARNISH CO
The Akron Paint and Varnish Company and Frank
T Simon Case Case 8-CA-20959
April 24, 1989
DECISION AND ORDER
BY MEMBERS CRACRAFT, HIGGINS, AND
DEVANEY
On January 10, 1989, Administrative Law Judge
Thomas A Ricci issued the attached decision The
Respondent filed exceptions and a supporting brief,
and the General Counsel 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 briefs' and
has decided to affirm the judge's rulings,2 find
ings , 3 and conclusions ' and to adopt the recom-
mended Order as modified5 and fully set out
below
r In sec III par 15 the judge apparently erroneously stated that the
Respondent did not file a brief The Respondent has not moved or oth
erwise sought to have this proceeding remanded to the judge to consider
the postheanng brief We have considered the posthearing brief submit
ted along with its exceptions to the Board and find that the arguments
attnbuted to the Respondent by the judge are substantially the same as
those presented by the Respondent in its posthearing brief
2 We correct the following errors in the judge s decision
In sec III par 2 of his decision the judge inadvertently stated that
Venarge spoke of Simon s warning notice for interfering when an
OSHA inspector was walking through the shop in checking conditions
In fact Simon s warning notice was for interfering when Venarge and a
visitor were walking through the shop on a tour
In sec III par 7 the judge inadvertently stated that Simon worked
for the Employer from 1967 Simon actually started working for the
Respondent in 1976
In sec III par 8 the judge inadvertently stated that the Respondent
was fined by OSHA after a charge had been filed alleging that the Re
spondent s safety procedures were below the standards of OSHA The
company had failed an air quality check The evidence reveals instead
that a charge was filed alleging that the Respondents air quality was
below the OSHA standards but OSHA found no violation of air quality
Rather OSHA fined the Respondent for other minor violations
a The Respondent has excepted to some of the judge s credibility find
rags The Board s established policy is not to overrule an administrative
law judge s credibility resolutions unless the clear preponderance of all
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
* We agree with the judge s findings that Frank T Simon was dis
charged because as the Union s spokesman he attempted to have the Re
spondent improve the safety conditions in the work place The Respond
ent contends that Simon was not a satisfactory employee and that it con
sidered Simon s prior misconduct in the discharge Assuming arguendo
the validity of these contentions we have considered the Respondents
evidence on these points and conclude that the Respondent has not met
its burden to prove that the discharge would have taken place even in
the absence of Simon s protected conduct
S We shall enter a narrow cease and-desist order and we shall also
enter an expunction remedy as sought by the General Counsel
781
ORDER
The National Labor Relations Board orders that
the Respondent, The Akron Paint and Varnish
Company, Akron, Ohio, its officers, agents, succes-
sors , and assigns, shall
1 Cease and desist from
(a) Discharging employees because of union or
other protected concerted activities
(b) In any like or related manner interfering
with, restraining, or coercing employees in the ex
ercise of the rights guaranteed them by Section 7
of the Act
2 Take the following affirmative action neces
sary to effectuate the policies of the Act
(a) Offer Frank T Simon immediate and full re-
instatement to his former position or, if such posi-
tion no longer exists , to a substantially equivalent
position, without prejudice to his seniority or any
other rights or privileges previously enjoyed
(b) Make whole Frank T Simon for any loss of
earnings and benefits he may have suffered as a
result of his unlawful discharge to be computed in
the manner prescribed in F W Woolworth Co, 90
NLRB 289 (1950), with interest to be computed in
the manner prescribed in New Horizons for the Re-
tarded 6
(c) Remove from its files any reference to the
unlawful discharge of Frank T Simon, and notify
him in writing that this has been done and that evi-
dence of the unlawful discharge will not be used as
a basis for future personnel actions against him
(d) Preserve and, on request, make available to
the Board or its agents, for examination and copy-
ing, all payroll records, social security payment
records, timecards, personnel records and reports,
and all other records necessary to analyze the
amount of backpay due under the terms of this
Order
(e) Post at its facility in Akron, Ohio, copies of
the attached notice marked "Appendix "' Copies
of the notice, on forms provided by the Regional
Director for Region 8, after being signed by the
Respondent's authorized representative, shall be
posted by the Respondent immediately upon re-
ceipt and maintained for 60 consecutive days in
conspicuous places including all places where no-
tices to employees are customarily posted Reason-
able steps shall be taken by the Respondent to
ensure that the notices are not altered, defaced, or
covered by any other material
e 283 NLRB 1173 (1987)
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
293 NLRB No 97
782 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
(f) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice
WE WILL NOT discharge employees because of
union or other protected concerted activities
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce employees in the
exercise of the rights guaranteed them by Section 7
of the Act
WE WILL offer Frank T Simon immediate and
full reinstatement to his former position or, if that
position no longer exists, to a substantially equiva-
lent position, without prejudice to his seniority or
any other rights or privileges previously enjoyed
WE WILL make whole Frank T Simon for any
loss of earnings and benefits he may have suffered
as a result of his unlawful discharge, with interest
WE WILL remove from our files any reference to
the discharge of Frank T Simon, and notify him in
writing that this has been done and that evidence
of the unlawful discharge will not be used as a
basis for future personnel actions against him
THE AKRON PAINT AND VARNISH
COMPANY
Charles Z Adamson Esq for the General Counsel
H Bryan Rector Esq (Rector & Associates), of Akron,
Ohio for the Respondent
DECISION
STATEMENT OF THE CASE
THOMAS A Ricci Administrative Law Judge A hear
ing in this proceeding was held in Akron, Ohio, on Octo
ber 16, 1988, on complaint of the General Counsel
against Akron Paint and Varnish Company (the Re
spondent or the Company) The complaint issued on
June 21, 1988, upon a charge filed on May 9, 1988 by
Frank T Simon (the Charging Party) The sole issue to
be decided is whether the Respondent discharged Frank
Simon the union steward among the approximately 24
employees, because of his persistent attempts to have the
Company improve the safety conditions in work place
and thereby violated Section 8(a)(3) of the Act A post
hearing brief was filed by the General Counsel
On the entire record, and from my observation of the
witnesses, I make the following
FINDINGS OF FACT
I THE BUSINESS OF THE RESPONDENTS
Akron Paint and Varnish Company is an Ohio corpo
ration with a place of business in Akron, Ohio where it
is engaged in the manufacture of paint products Annual
ly in the course and conduct of its business it sells and
ships from its Akron facility goods and materials valued
in an excess of $50,000 directly to points outside the
State of Ohio I find that the Respondent is an employer
within the meaning of the Act
II THE LABOR ORGANIZATION INVOLVED
I find that International Chemical Workers Union is a
labor organization within the meaning of Section 2(5) of
the Act
III THE UNFAIR LABOR PRACTICE
During a safety meeting among the employees held
on April 1, 1988, Mike Chosa a company agent, said to
Union Steward Simon you are dismissed Simon came
back with a comment you are dismissed No one left
the room, the meeting continued with Chosa asking for
questions from the employees In a matter of minutes the
meeting ended and everyone went back to work
From the meeting place Chosa went to the office of
David Venarge, the company president, where other
management agents were also gathered As soon as he
told the men about Simon s you are dismissed com
ment, it was decided to fire the employee for that sole
reason At the hearing, 6 months later Venarge added
other reasons to justify his discharge decision that day
He spoke of Simon s past conduct, of being served with
one warning notice for failure to follow directions and
another for interfering when an OSHA inspector was
walking through the shop checking conditions All that
had happened months earlier Vernarge also added in his
testimony further reasons for the discharge-what he
called Simon s roughhouse behavior after the decision to
fire him had been decided on
All this testimony is completely beside the point in this
proceeding The question is, and remains did Simon s
comment to Chosa that day justify his discharge or does
the record as a whole warrant a finding of illegality in
the Respondent s immediate reaction to the one small in
cident9
Venarge called Simon s comments and intolerable of
fence, as justifying the discharge After quoting Chosa
as telling him that Simon had become unruly and dis
ruptive the witness continued I had our entire organs
zational management people really in that office and we
discussed the situation that Mike Chosa was telling us
about And considering the individual and his past
record of behavior, it was decided at that meeting at that
time to dismiss him Asked on direct examination why
he was of that view, he testified as follows
The report for Mr Chosa based on the disruption
in the safety meeting the fact that he was very in
subordinate in dismissing the person-the manage
ment person in charge He disallowed this and dis
AKRON PAINT & VARNISH CO
enabled the meeting to continue and was-there s
no way in my opinion that behavior [sic] could ever
be considered anything than insubordination
That that one incident was the basis of the discharge
decision the moment it was made became even clearer in
the presidents cross examination
Q After Mr Chosa spoke to you on April 1st in
the office, at that point you decided to dismiss Mr
Simon , is that correct)
A Yes
Edward Espega, the production manager, gave like
testimony
A When he [Chosa] came into Mr Veneraga s
[sic] office and told us what happened in the safety
meeting
Q What did you do at that time?
A I was seated in front of Mr Venerage s [sic]
desk I believe at that time I got up and conversed
with Mr Benerage [sic] and Mr Chosa , who was
physically upset at that time , to try to get out what
had actually happened, I turned to Mr Venerage
[sic] and we had a conversation of what should hap
pened next And at that time it was decided that
that was grounds for dismissal , that that was consid
ered gross insubordination
All the talk about past events, particularly about what
happended when Simon became insensed and spoke
loudly before leaving because he felt unjustly discharged,
reflect no more than afterthoughts in managements to
create a defense to this complaint 6 months after the act
in question Simon was kept on the job in the past He
must have been a satisfactory employee , for he worked
for this Company from 1967 to 1982 He then left and
was rehired in 1983 The question therefore remains the
same Was he fired because he pressed to strongly in the
opinion of management for the safety of his fellow em
ployees?
There are other realities in this total picture that ra
tionally explain Simon s repetition of the words first used
by the man conducting the safety meeting , and that also
point strongly to the real reason why he was summarily
discharged This paint and varnish production shop is a
very dangerous place to work in The men must use
chemicals and other materials that unless proper precau
tions are taken , can cause severe damage to health The
subject of proper precautions to be provided by the Re
spondent has long been a subject of argument between
the employees and management Epsega admitted the
Company had been fined by OSHA after a charge had
been fined by OSHA after a charge had been filed alleg
mg that the Respondent 's safety procedures were below
the standards of OSHA The Company had failed an air
quality check " Moreover, before Venarge took over as
president of the Company , an annual physical examina
tion was given each employee He discontinued that
safety precaution when he arrived Indeed , that particu
lar safety measure so discontinued became the bone of
783
contention between Chosa and Simon at the safety meet
mg here in question
Simon was principal spokesman for the Union on
behalf of the 24 employees in this plant He testified, and
no one contradicted him that the International Chemical
Workers Union became bargaining agent in 1986, that he
was the man who spoke for it at a number of confer
ences in attempted negotiations , but that no agreement
was reached for a collective bargaining contract
throughout that entire period Simon was also the
Union s steward , who, among , other things , also many
times pressed management for this or that safety meas
ure
It is clear on this record that the subject of major con
cern to these employees has long been and certainly was,
at that time of the events under consideration , safety in
the workplace And this brings us to the meeting of
April 1, 1988, called by the Company to be more sure
the employees took care of themselves Chosa spoke for
about 20 or 25 minutes about what he called the MSDS
sheets He explained the MSDS as follows
A material safety data sheet is a document used
to describe the identity and hazards of personal
safety equipment and other safety related require
ments such as what to do in case of a spill, what
kinds of things in order to contain it , and what
kinds of things you need to do in case of an excess
exposure , what kinds of people need to be contact
ed It s mandated by the Department of Labor
At the end of his talk he asked for questions The first
employee to speak up was Coontz who asked about pro
tective aprons and other protection materials for the em
ployees Chosa answered that that subject would be
taken care of at a later date Asked was Coontz upset
by his response the witness said Coontz was upset, but
about what had happened in the past, not by what was
happening then and there Maximovich also an employ
ee then present recalled that Coontz became a little
angry He says yeah that s just the way it goes every
time we order or we try to get something and we some
how get a run around It is to be noted that the subject
of protective aprons was outside the scope of the MSDS
sheets
With the meeting continuing Simon brought up the
subject of physical examinations, but Chosa s first re
sponse was to say he knew nothing about that At that
point Maximovich , a chemist suggested blood testing the
employees, which the Good Year Company was doing
with its employees Simon then again spoke about physi
cal examinations , asking would the Company give them
Chosa s answer to each of these was simply that he did
not know about those things Both Maximovich and
Simon kept pressing their subjects At one point Maxi
movich suggested a blood test every 6 months, and
Chosa replied it might be once every 12 months, but still
that he did not know Maximovich openly pressed twice
for the blood test Simon also was not satisfied with the
speakers responses At one point he asked who was
going to run the safety thing and who was going to take
care of the people " Chosa arswered he was in charge
784 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
The back and forth arguing continued When Simon,
after asking for help toward the physical examination
idea , was still unsatisfied with Chosa 's evasions Chosa
just said that he was dismissed Simon came right back
saying Chosa was dismissed '
Chosa s repetition at the hearing that Simon had dis
rupted" the hearing was pure exaggeration The truth is
that he continued the meeting by asking were there any
more questions None came and the meeting was ad
journed He even said that Simon spoke too loudly, al
lowing no one else to ask questions Simon denied
having raised his voice , or having pounded the table I
credit his testimony His testimony is directly supported
by that of Gary Jones , another employee James Mosey,
the production manager , was called to testify by the Re
spondent , but he too said he did not recall Simon pound
ing the table
The Respondent did not file a brief to explain its de
fense to this complaint But in the questioning of the var
ious witnesses its representative obliquely argued that
Simon s misbehavior during the meeting , what Chosa
called disruption , was the fact that Simon spoke of
safety measures that are outside the scope of the MSDS
sheets and that Simon did not , during the meeting, make
clear that he was speaking on behalf of all the employ
ees, or as an agent of the Union' It was literally a
safety meeting in a plant where employment is dan
gerous everyday as the Company itself conceded To
say that precautions such as blood tests, safety aprons
and physical examinations are outside the scope of things
to be considered , is farsical And if there is one thing this
management knew it is that Simon was the real spokes
man for the Union, after listening to him for over 2 years
in one meeting after another while the Union kept trying
to reach agreement on a collective bargaining contract
In sum , I find that the real reason why the Respondent
decided to discharge Simon that day was to get rid of
the principal spokesman for the Union, and thereby vio
lated Section 8(a)(3) and (1) of the Act
THE REMEDY
The Respondent must be ordered to cease and desist
from again committing the kind of unfair labor practice
found here Frank Simon must be reinstated to his
former position and he must be made whole for any loss
of earnings he suffered in consequence of the illegal dis
cnmination against him
IV THE EFFECT OF THE UNFAIR LABOR PRACTICE ON
COMMERCE
The activity of the Respondent set forth in section III,
above, occurring in connection with the operations of
the Respondent described in section I, have a close, inti
mate , and substantial relationship 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
CONCLUSIONS OF LAW
1 By discharging Frank Simon the Respondent has
violated and is violating Section 8 (a)(3) and (1) of the
Act
2 The above described unfair labor practice affects
commerce within the meaning of Section 2(6) and (7) of
the Act
[Recommended Order omitted from publication ]