Thermofit, Inc.

National Labor Relations Board - Board Decisions

Sep 14, 1979

244 N.L.R.B. 1056 (N.L.R.B. 1979)

I)L(ISIO()NS OF NA'II)NAI. IABOR REL.ATIONS BOARD
Thermonil, Inc. and Thonmas ). Singer. Case 7 C'A
14973
September 14. 1979
DECISION AND ORDER
BY 'CHAIRMAN FANNING ANI) MI:MBRS JNKINS
ANI) TRUESDAI.L
On May 14, 1979, Administrative Law Judge
Almira Abbot Stevenson issued the attached Decision
in this proceeding. Thereafter, Respondent filed ex-
ceptions and a supporting brief, and the General
Counsel filed cross-exceptions and a supporting and
answering brief: Respondent thereupon filed a reply
brief.'
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings,2 and
conclusions of the Administrative Law Judge and to
adopt her recommended Order, as modified herein.)
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended Or-
der of the Administrative Law Judge, as modified be-
low, and hereby orders that the Respondent,
Thermofil, Inc., Ypsilanti, Michigan, its officers,
agents, successors, and assigns, shall take the action
set forth in the said recommended Order, as so modi-
fied:
1. Substitute the following for paragraph I(b):
"(b) In any like or related manner interfering with,
I The General Counsel filed a motion to strike certain portions of Respon-
dent's reply brief Respondent filed a response to the General Counsel's
motion and requested special leave to submit the contested material as a
reply to the General Counsel's answering brief We thereby grant the Gen-
eral Counsel's motion to strike pp. 7 24 of Respondent's reply briefs as not
limited to the questions raised in the cross-exceptions. See Sec. 102.46(f (1)
of the National Labor Relations Board Rules and Regulations, Series 8. as
amended. Respondent's motion for special leave is hereby denied.
2 Respondent has excepted to certain credibility findings made by the Ad-
ministrative aw Judge. It is the Board's established policy not to overrule
an administrative law judge's resolutions with respect to credibility unless
the clear preponderance of all of the relevant evidence convinces us that the
resolutions are incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544
(1950). enfd. 188 F.2d 362 (3d Cir. 1951) We have carefully examined the
record and find no basis for reversing her findings.
t In light of Hickmour Fobods, Inc, 242 NLRB 1357 1979). we find that the
narrow cease-and-desist language, "in any like or related manner," is ade-
quate to remedy the violation here. Accordingly, we shall modify the recom-
mended Order and notice.
restraining, or coercing employees in the exercise of
the rights guaranteed them by Section 7 of the Act."
2. Substitute the attached notice for that of the
Administrative Law Judge.
APPEN[DIX
No ll(ti To EMPIP.OYt:S
PosTED Y ORDER 01 1 TlE
NAIIONAI. LABOR RLLAI()NS BOARI)
An Agency of the United States Government
Wti Vll.I NOI terminate or otherwise interfere
with, restrain, or coerce employees in the exer-
cise of the rights guaranteed them by Section 7 of
the National Labor Relations Act, as amended.
WF; 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.
Wti wlll offer Thomas D. Singer immediate
and full reinstatement to his former job or, if that
job no longer exists, to a substantially equivalent
job, without prejudice to his seniority or other
rights and privileges.
WF. WI l make Thomas D. Singer whole for
any loss of pay he may have suffered as the result
of his termination on March 2. 1978, plus inter-
est.
TtiIIRM(OFII., IN(.
DECISION
SIAIEMiENI OF() I (CASI
AIMIRA Ao()I SItVLNS()N, Administrative Law Judge:
This case was heard in Detroit, Michigan, on October 30
and 31. 1978. A copy of the charge, filed on March 20,
1978, was served on Respondent on March 22, 1978. The
complaint was issued May 25, 1978, and amended at the
hearing. Respondent duly filed an answer, which also was
amended at the hearing.
The issue is whether or not Respondent violated Section
8(a)() of the National Labor Relations Act by discharging
Thomas Singer because of his concerted protected protests
about job safety and working conditions. For the reasons
fulls set forth below, I conclude that Respondent violated
the Act as alleged.
Upon the entire record,' including my observation of the
demeanor of the witnesses, and after due consideration of
the briefs filed by Respondent and the General Counsel, I
make the following:
The General Counsel's motion to correct official record is granted in the
absence of objection. No reliance is placed on an otherwise unidentified cop)
of a shift-production report dated March 1. 1978, submitted by Respondent
after the close of the hearing.
244 NLRB No. 171
1()56
THERMOFIL. IN('.
FINI)IN(S OF FA(CT AND) CO()N(ISIONS OF LAW
I. JRISDt)I( I()N
Respondent. a Michigan corporation, maintains its prin-
cipal office and place of business at 815 North Second
Street, Brighton. Michigan. Respondent maintains other
plants located at 103 South River Street, Ypsilanti. Michi-
gan, and 884 Railroad Street, Ypsilanti. Michigan, here in-
volved. Respondent is engaged in the manufacture, sale,
and distribution of fiberglass reinforced plastics and related
products. During the year ending December 31. 1977, Re-
spondent purchased goods and materials valued in excess of
$50,000, which were transported and delivered to its Rail-
road Street plant directly from points outside Michigan.
Respondent stipulates. and I find. that it is an employer
engaged in commerce within the meaning of Section 2(2).
(6), and (7) of the Act.
11. UtNFAIR ABOR PRA(TI(IES2
A. Fcrs
Thomas Singer, the Charging Party', was employed as an
extruder-machine operator at Respondent's Railroad Street
fiberglass and plastics manufacturing plant in Ypsilanti.
Michigan, from April 27, 1977, until March I, 1978. The
plant employs approximately 50 production employees. Re-
spondent admits and I find that the following individuals
were its supervisors and agents during material times: Rob-
ert Darga, vice president: John LeClair, manufacturing
manager; Leonard Federer, general foreman; Richard Vuk-
mirovich, general foreman: Stan Johnson. foreman; Bryce
Johnson, foreman.
The extruder machines. to one of which Singer was as-
signed, produce small solid fiberglass and plastic pellets
from melted mixes. They also produce a considerable
amount of scrap which does not meet specifications and
must be trucked to another building for grinding and even-
tual remixing and melting. The scrap is stored in old card-
board boxes of approximately 3-1/2 or 4 feet cubed in sizes
of 100-800 pounds in weight. Respondent has periodic
problems storing the scrap boxes and stacks them two.
three, and sometimes four boxes high in the area where the
extruder-machine operators work. When this has occurred,
there have been many employee complaints to management
about being crowded by the boxes and not having enough
room to work. The cramped conditions caused by stacked
scrap boxes was discussed by employees and management
at a quality control meeting as far back as the fall of 1977.
When Singer reported for work on the 2- to 8-p.m. shift
on March 1, 1978, the situation was worse than it had ever
been because the grinder machine was broken down and
more scrap boxes than usual were being held in the ex-
truder building until the grinder could be repaired. Along-
side extruder 4, to which Singer was assigned, as well as
elsewhere in the building, the scrap boxes were stacked out
Except where credibility issues are discussed specifically. the facts are
substantially undisputed.
of alignment in a sloppy manner: some were broken and
leaking contents. and some were oserpacked, ca.tusing those
on top of them to rock and lean. Although do not credit
Singer that any of the boxes had actually fallen up to this
time, they clearly constituted ;t hazard to the safleti of the
employees, as well as adversely affecting the working condi-
tions of Singer and other emploees, as subsequent e, ent,
proved .4
At the start of his shift on March 1, 1978, Singer .ast
assigned to effect a changeover on extruder 4 to ) I ml
which was a clear natural color different in content from
the black mix which had been running through the machine
before then. The changeover required Singer to clear the
machine of the molten black plastic b letting i run on the
floor where it gradually cooled into piles 2 to 2-1/2 leet I
diameter and 4 to 6 inches thick. hese cooling piles. or
goobers, the empty boxes provided to store them in alter
they had hardened. and the old scrap boxes stacked along-
side the extruder hampered Singer's ability to move about
his machine to make the adjustments necessar to run the
new material, and he was unable to get the extruder into
proper operation again. he nes material becamlie too hot.
the water-cooling system failed to correct the temperature.
and hot strands of plastic became rapped around the con-
veyor belt and the pelletizer became clogged vkith the hot
strands. Singer shut the machine off' sought out For an
Bryce Johnson. and told him that: (1) the place v as
"fucked up" and he could not work: (2) Johnson had seen
the boxes stacked out there leaning and so close to the m;-
chine there was no room to work: and (31 the material v;as
too hot and the pelletizer was plugged up. Johnson offered
to help Singer, but Singer said no, the place was a mess. he
was going home, and they could call him when the place
was cleaned up. With that. Singer left the plant about 4:3(
p.m. 5
'Singer testified that two Nhxes fell from a st:lack on hc afernoon ot
March 1. and that boxes and had fallen inlo aisles on pre ious occaions lie
said that on March I the boxes ell1 10 feet in fronl of James Iterndon. .h ,
was operating extruder machines 5 and 6 alongside 4. and thai olher 1n.dilcI
employees had witnessed the previous falls. However. neither Herndon, ho
testified. nor the other named emplosees was asked to corroborate Singer in
this respect. In the absence of such corroboration, as Singer was upon occa-
sion inconsistent and self-contradictor), and in view of the ahbsence of evi-
dence that any falls were witnessed bh. or reported to. management. I do nol
credit Singer in this respect
4 In view of the substantially undisputed evidence as to the size, weight
and condition of the scrap boxes and the height and manner of their stack-
ing, as well as subsequent events, I do not credit the testimony of general
formen Vukmiro ich and Federer that the stacked boxes did notl ,nt lutle
danger to the emploees. Vice President Darga. in effect. concededi subshrn-
tially, as employee James Herndon and Michigan Safet t)fficr Robert
Tavernier testified, that the stacks would not withstand a jo li
s The facts as to this conversation are based on the mot likely aspects ot
the testimony of Singer. Johnson. and emploee Douglas rales. witlh hoim
Johnson subsequently discussed the matter Respondent's counsel claimed Io
have seen Johnson's entry in the foreman's log book regarding this conr,ersa-
lion before the page on which it was written disappeared. Although he thus
may have been in a position to corroborate to some extent Johnson's testi-
mony that Singer did not mention the stacked boxes, counsel declined the
General Counsel's invitation to take the stand. and refused m Instructions
that he do so under a subpoena served on him bh the General Counsel. In
these circumstances, and as Vice President Darga acknos ledged a arenes
that Singer had mentioned the "cluttered conditions" caused hb the stacked
boxes at the time of his walkout. Johnson's testimony to the contriar is not
credited. Respondent's contention that Singer raised the alet issue nl
((' ontmued)
1 )'7
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Johnson proceeded to Singer's work place. cleared away
the goobers, cleared the pelletizer, adjusted the machine,
and operated it unitl the end of the shift at 8 p.m.
The next day, Assistant General Foreman Leonard Fed-
erer pulled Singer's timecard when he failed to punch in at
2 p.m. Vice President Robert Darga testified that he re-
ceived information from Foreman Johnson and Manufac-
turing Manager John LeClair that Singer had left the plant
because of frustration over difficulties he encountered run-
ning his machine, and because of what Singer called the
mess in his work area, part of which Singer had made him-
self with the goobers in the aisle and. Darga continued, part
of which "I assumed he was referring to some of the clut-
tered conditions" created by the stacked scrap boxes. Based
on Singer's refusal of Foreman Johnson's offer to help him
clean up, his walkout, and a recent deterioration in his work
performance, Darga testified, he instructed LeClair to ter-
minate Singer.
Sometime after 2 p.m., Singer, having received no call,
went to the plant and asked LeClair whether he still had a
job. LeClair responded that Singer had quit; Singer denied
it, saying he would be glad to return to work if the place
was cleaned up.
In his claim for unemployment compensation, filed that
day, Singer alleged "the work area was cluttered to the
point he could not set up materials and operate his ma-
chine" and that "safety precautions and use of safety equip-
ment are not enforced." Darga responded to this claim on
March 14, 1978, to the following effect:
Thomas stated he would not work because of the clut-
tered working conditions. The conditions were tempo-
rarily congested but were not to the point that the ma-
chines could not be operated. There was no reason for
Thomas to walk off the job. In light of this and previ-
ous attitude problems, it was decided that Thomas be
terminated effective the date he walked off the job.
We do take all necessary safety precautions and use
safety equipment, as substantiated by MIOSHA in-
spection in January of this year.
That night, at approximately midnight, a scrap box fell
from the top of a stack on employee Terry Strosier while he
was operating a hi-low near extruder machine 4, injuring
him and requiring medical attention. Douglas Fraley and
Mitchell Watts immediately turned off their machines and
informed their foreman Stanley Johnson, they "weren't
going to work anymore with that mess the way it was."
Stanley Johnson sent for General Foreman Richard Vuk-
mirovich. Fraley testified without dispute that he told Vuk-
mirovich, "Tom [Singer] had just left because he was afraid
of these boxes and this mess, and afraid of one falling on
him and now that one fell on Terry, one could fall on me.
And there was no way we were going to work like that."
Fraley and Watts left the plant. The following day, March
after March 5 when he heard that a box had fallen on employee Strosier the
night after Singer walked out is without merit. As found below, Singer's
unemployment-compensation claim, filed on March 2 before the accident to
Sirosier, reaffirmed his claim of hazardous working conditions. Since Singer
was not sure he told Johnson about the boxes having fallen and because I
have found that they had not, I do not credit Singer in his respect.
3, Vice President Darga got in touch with them because, he
testified, they made a complaint with regard to safety which
he believed was made in good fatith after the accident to
Strosier. Darga explained the reason for the stacking of
scrap boxes and promised to clear the building. The two
employees accepted his promise and returned to work.
The following week, Singer visited Vice President Dar-
ga's office and asked Darga if he had been fired. Darga told
him no, he had left voluntarily, and based on his departure.
he had been terminated. Singer told Darga the plant was
unsafe.
Pursuant to a telephoned complaint, the Michigan Bu-
reau of Safety and Regulation (MIOSHA) inspected the
Railroad Street plant March 16. when conditions in the
extruder building were substantially as they were on March
I and March 2. and cited the Company fbr. among other
things, failing to "Maintain stacking of material in a man-
ner which does not create a hazard. (Boxes of scrap mate-
rial in aisleway near #4)."
B. Conclusions
There is no merit in Respondent's accusations that Singer
quit. He denied it, and repeatedly expressed his willingness
to return to work when the place was cleaned up. It is clear
that Singer walked off his job, in part, as a protest against
the stacked boxes which were leaning in a hazardous man-
ner and created crowded working conditions. It is also clear
that these were determinative factors triggering Vice Pres-
ident Darga's decision to terminate him. Thus. although
Singer's work performance apparently had been deteriorat-
ing for some time, and he had even left his machine in
frustration over its operation before, he was not terminated
or even disciplined for those transgressions. Moreover. Re-
spondent was well aware that the stacked boxes created
crowded and hazardous conditions, since other employees
had complained about the crowding and the danger was
evident. Respondent also was aware that these conditions
were a factor in Singer's walkout because he made this
plain to Foreman Johnson at the time, and Vice President
Darga acknowledged that the boxes were part of the mess
to which Singer referred. It was obvious also, as Singer tes-
tified, that there was no way Foreman Johnson's offer to
help him clean up the mess could have solved the problem
of the stacked boxes, because it would have been impossible
for the two of them to accomplish that feat. Nor does it
signify that Respondent did not terminate employees Fra-
ley and Watts when they walked out in protest over the
same hazard. Unlike Singer, they did not refuse to return
until the place was cleaned up, but returned under the con-
ditions laid down by Darga of a promise to do so in future.
In any event, it has long been recognized that an employer's
failure to discharge all similarly situated employees does
not negative unlawful motivation for the discharges shown.6
The stacking of heavy boxes close to work stations to a
formidable height in an unstable manner affected the effi-
ciency and safety of all employees who worked in the ex-
truder building. Singer's protest was therefore a protest
See Hyster Company. 198 NLRB 192. 202 (1972).
1058
THERMOFIL, IN(C.
about conditions of employment which were of concern to
all employees subjected to those conditions. It was accord-
ingly protected concerted activity even absent a showing
that other employees joined in his walkout where, as here,
there is no evidence that fellow employees disavowed the
substance of his complaint.
I conclude that Respondent's termination of Thomas
Singer on March 2, 1978, in part. because of his protected
concerted activity in engaging in a walkout in protest over
hazardous and crowded working conditions interfered with,
restrained, and coerced employees in the exercise of the
rights guaranteed them by Section 7, and it thereby violated
Section 8(a)(1) of the Act, as alleged in the complaint.7
11. REMEDY
To effectuate the policies of the Act. I recommend that
Respondent be ordered to cease and desist from the unfair
labor practices found and, in view of the nature thereof to
cease and desist from infringing in any manner on its em-
ployees' rights guaranteed by the Act. N.L. RB. v. Entwistle
Mfg. Co., 120 F.2d 532 (4th Cir. 1941).
Having found that Respondent interfered with, coerced.
and restrained its employees by discharging Thomas Singer
on March 2. 1978, to effectuate the policies of the Act I
recommended that Respondent be ordered to take certain
affirmative action, including that it offer him immediate an
full reinstatement to his former job or, if that job no longer
exists, to a substantially equivalent job, without prejudice
to his seniority or other rights and privileges, and to make
him whole for any loss of earnings suffered by reason of
Respondent's unlawful conduct against him, in accord with
the Board's Decision and Order in Abilities and Goodwill
Inc., 241 NLRB 27 (1979). Backpay shall be computed, as
provided in F. W. Woolworth Company, 90 NLRB 289
(1950). Interest shall be paid on all back pay due. Florida
Steel Corporation, 231 NLRB 651 (1977); Isis Plumbing &
Heating Co., 138 NLRB 716 (1962).
Upon the foregoing findings of fact and conclusions of
7Pink Moody, Inc., 237 NLRB 39 (1978): S. Joseph's High School. 236
NLRB 1623 (t1978) [vacated by Order dated 4/ /80]: Akron General Medical
Center, 232 NLRB 920 (1977); Air Surrey Corporation. 229 NLRB 1064
(1977); Dawson Cabinet Company, Inc.. 228 NLRB 290 (1977); Alleluia
Cushion Co., Inc., 221 NLRB 999 (1975). Accord: ARO. Inc., 227 NLRB 243
(1976). Tabernacle Community Hospital & Health Center, 233 NLRB 1425
(1977), and Standard Brands Incorporporated. 196 NLRB 1006 (1972). relied on
by Respondent. are distinguishable on their facts. To the extent that my
decision herein is inconsistent with American Art Clay Company, Inc. v.
N.LR.B., 328 F.2d 8. (7th Cir. 1964), Dobbs Houses, Inc. v. N.L R.B. 325
F.2d 531 (5th Cir. 1963); N.LR.B. v. Jamestown veneer & Plywood Corpora-
tion. 194 F.2d 192 (2d Cir.). and other cases in which the Board was reversed
on somewhat similar issues. I am required to follow the Board. Iowa Beef
Packers. Inc., 144 NLRB 615 (1963).
law and the entire record. and pursuant to Section 10(c) of
the Act. I hereby issue the following recommended:
ORDER'
The Respondent. Thermofil, Inc., Ypsilanti, Michigan. its
officers, agents. successors, and assigns, shall:
I. (Cease and desist from:
(a) Terminating or otherwise interfering with, restrain-
ing. or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the National l.abor Relations
Act.
(b) In any other manner, interfering with. restraining. or
coercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action which is neces-
sary to effectuate the policies of the Act:
(a) Offer Thomas D. Singer immediate and full reinstate-
ment to his former job or, if that job no longer exists. to a
substantially equivalent job, without prejudice to his senior-
ity or other rights and privileges, and make him whole for
any loss of earnings, in the manner set forth in the section
of this Decision entitled "Remedy."
(b) Preserve and, upon 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 documents nec-
essar) to analyze and compute the amount of backpay due
under this recommended Order.
(c) Post at its Railroad Street. Ypsilanti, Michigan, facil-
ity copies of the attached notice.9 Copies of said notice on
forms provided by the Regional Director for Region 7. after
being duly signed by Respondent's authorized representa-
tive, shall be posted by it immediately upon receipt thereof
and maintained by it for 60 consecutive days thereafter, in
conspicuous places. including all places where notices to
employees are customarily posted. Reasonable steps shall
be taken to insure that said notices are not altered, defaced.
or covered by any other material.
(d) Notify the Regional Director for Region 7. in writ-
ing, within 20 days from the date of this Order, what steps
have been taken to comply herewith.
8 In the event no exceptions are filed. as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings.
conclusions. and recommended Order herein shall, as provided in Sec. 102.48
of the Rules and Regulations. be adopted by the Board and become its
findings, conclusions. and Order. and all objections thereto shall be deemed
waived for all purposes.
9 In the event that 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
National 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."
1059