Ulbrich Stainless Steels, Inc.

National Labor Relations Board - Board Decisions

Apr 29, 1969

175 N.L.R.B. 680 (N.L.R.B. 1969)

680 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Ulbrich Stainless Steels , Inc. and United
Steelworkers of America, AFL-CIO. Cases
1-CA-5947 and 1-CA-6088
April 29, 1969
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND JENKINS
On December 18, 1968, Trial Examiner Ivar H.
Peterson issued his Decision in the above-entitled
case, finding that Respondent had engaged in and
was engaging in certain unfair labor practices within
the meaning of the National Labor Relations Act,
as amended, and recommending that it cease and
desist therefrom and take certain affirmative action,
as set forth in the attached Trial Examiner's
Decision. He further found that Respondent had not
engaged in certain other unfair labor practices
alleged in the complaint and recommended that such
allegations be dismissed. Thereafter, the General
Counsel and Respondent filed exceptions to the
Trial Examiner's Decision and supporting brief.
Pursuant to the provisions of Section 3(b) of the
Act, 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 this case, and hereby adopts the
findings,' conclusions, and recommendations2 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, as
modified below, and orders that the Respondent,
Ulbrich Stainless Steels, Wallingford, Connecticut,
its officers, agents, successors, and assigns, shall
take the action set forth in the Trial Examiner's
Recommended Order, as modified herein:
Insert the following as the fourth indented
paragraph in the notice appended to the Trial
'We note that the discharge interview of Plant Superintendent Riccardi
with McConnell included, during the same confrontation , an offer to
rescind the discharge if McConnell would "drop the unfair labor practice
charges and stop his union activity ", as found by the Trial Examiner This
offer, on the heels of the termination , leaves no doubt that the discharge of
McConnell was not for insubordination but for discriminatory reasons In
the circumstances we find the discharge and conditions imposed on its
recession a violation of Section 8(a)(4) as well as of 8(a)(1 ) and (3)
'The Trial Examiner inadvertently omitted in the notice appended to his
Decision , a provision remedying the Respondent's violation of Sec 8(aX4)
of the Act. Our order corrects this oversight.
Examiner ' s Decision:
WE WILL NOT discharge or otherwise
discriminate against any employee because he has
filed charges or given testimony under this Act.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
IVAR H . PETERSON , Trial Examiner : Upon a charge
duly filed May 16 , 1967, and thereafter amended on June
7, 1967, by United Steelworkers of America , AFL-CIO,
herein called the Union , the General Counsel of the
National Labor Relations Board, by the Regional
Director for Region 1, on July 21 , 1967, issued a
complaint against the Respondent alleging that it had
engaged in unfair labor practices violative of Section
8(a)(1) and (3) of the Act.
Pursuant to notice I heard the case in New Haven,
Connecticut , on September 20 and 21, 1967. Thereafter,
on a charge filed September 22, 1967, in Case 1 -CA-6088,
the General Counsel moved to reopen the hearing and
amend the complaint on November 15, to allege
additional violations of Section 8(a)(1) and (3), and also
to allege that the discharge of employee Samuel
McConnell on September 14 violated Section 8 (a)(4) of
the Act . The motion was granted on November 20
without opposition , the Respondent filed an amended
answer on November 27, and pursuant to notice I heard
the additional allegations set forth in the amendment on
February 13 and 14, 1968 , in New Haven, Connecticut.
All parties were represented by counsel and were afforded
full opportunity to participate in both hearings. Briefs
filed by the General Counsel and the Respondent have
been carefully considered.
Upon the entire record in the case ' and from my
observation of the witnesses and their demeanor, I make
the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENTS
The Respondent, a Connecticut corporation, is engaged
at its plant in Wallingford , Connecticut , in the processing,
sale, and distribution of stainless steel and related
products . In the course and operation of its business the
Respondent annually ships materials valued in excess of
$50,000 directly to points outside Connecticut and receives
materials valued in excess of $50,000 from points outside
Connecticut.
The Respondent admits and I find it is an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
United Steelworkers of America, AFL-CIO, is a labor
organization within the meaning of Section 2(5) of the
Act.
'The transcript contains a number of obvious typographical errors It
seems unnecessary to issue a formal order correcting it, although in the
findings which follow in some instances I have quoted the testimony in
corrected form
175 NLRB No. 111
ULBRICH STAINLESS STEELS, INC.
III.' THE UNFAIR LABOR PRACTICES
A. Background and Sequence of Events
The Respondent's plant in Wallingford, under the
management of Richard and Daniel Ulbrich, both
corporation vice presidents, and Frank Riccardi, plant
superintendent, has about 100 employees. They are not
represented by any labor organization.
In the spring of 1966 the Union commenced an
organizing campaign among the employees, which appears
to have continued sporadically until the present. Unfair
labor practice charges were filed in 1966 which resulted in
a decision of the Board on April 26, 1967, in which the
Respondent was found to have engaged in unfair labor
practices in violation of Sections 8(a)(1) and (3) of the
Act; the Board ordered that the Respondent cease and
desist therefrom and take certain other remedial action.2
One of the witnesses in the earlier case was Samuel J.
McConnell, whose testimony on behalf of the General
Counsel, credited by the Trial Examiner therein, revealed
that he had been threatened on at least two occasions that
if he engaged in union activities he would be discharged.
The original complaint in the instant matter alleges the
suspension of, said McDonnell on May 5,' and the
amendment to the complaint alleges the subsequent
unlawful discharge of McConnell on September 14. The
complaint, as amended, additionally alleges the
discriminatory layoff of one Alexander Olschefski. In
addition the complaint, as amended, alleges several
incidents of coercive interrogation or threats by Riccardi
and one John Zakowski, admittedly a supervisory
employee of the Respondent.
The answers generally deny the commission of any
unfair labor practices, admit the suspension and discharge
of McConnell and the layoff of Olschefski, but deny the
alleged violations of Section 8(a)(1) and the discriminatory
motivation for the actions admitted.
B. The Layoff and Discharge of Samuel McConnell
McConnell was first employed by the Respondent in
August 1963, and worked from then until June 1965 when
he voluntarily quit. He was rehired in November 1965 and
continued to work until discharged September 15, 1967.
He was last employed as an edger, running the 2-Hi
rolling mill in the edging department.
McConnell joined the Union in July 1966, attended
meetings, and passed out union literature and membership
application cards to employees. He estimated that he
signed up a total of about 15 employees.
McConnell testified that on May 5, together with
Arthur Arnold' and John Guthridge, an employee,
distributed union literature at the plant between the hours
of 3 and 5 p.m. After distributing the literature they drove
in Arnold's car to the union hall where McConnell was to
have met the Union's business agent. They waited there
until 7:30 at which time they left for the Moose Club in
Wallingford, of which Guthridge is a member and where
he is employed as -a bartender on occasion. According to
the testimony of McConnell and Arnold they arrived at
'I take official notice of the Board decision in the former case, which is
reported at 164 NLRB No. 22. At the time of the hearing herein the
matter was pending before the United States Court of Appeals for the
Second Circuit upon the Board's petition for enforcement of its order
Since the hearing in the present case the petition has been granted in full,
on May 6, 1968, 393 F 2d 871 (C.A. 2), in a per curiam decision.
'Unless otherwise indicated , all dates refer to the year 1967.
681
about 8 p.m. as Edward Elyward, another Company
employee, commenced working as a bartender. McConnell
stayed at the club until about 10 p.m., playing a bowling
machine and drinking about two beers, according to his
testimony. At 10 o'clock, realizing that he had to be at
work at 11, McConnell prevailed upon Arnold to drive
him to his home where he changed to his working clothing
and drove himself back to the plant, arriving about 10
minutes late. When he reached the timecard rack he
discovered that his timecard had been removed. Foreman
Zakowski told McConnell that he had removed the
timecard because he was late and then accused him of
drinking, stating that he smelled alcohol on his breath.
McConnell replied that he didn't drink alcohol but that he
had had about two bottles of beer about 8:30. His request
that he be allowed to punch in was refused by Zakowski,
on the ground that he was drunk. Zakowski also said that
he was "sick and tired of hearing" about McConnell and
that he heard about him every day. When McConnell
asked what he heard about him, Zakowski replied that
during the afternoon he learned that McConnell had been
passing out union literature in front of the shop.
McConnell pointed out that he was on his own time and
that this was none of Zakowski's business, to which
Zakowski replied, waving the timecard in his hand, "Well,
it's my business now."
An argument then ensued, during which Zakowski
requested McConnell to leave and threatened to call the
police if he did not do so, while McConnell said that if the
police came he wanted a blood test to prove that he was
not drunk. Ultimately Zakowski, after calling Riccardi at
his home on two occasions and escorting McConnell to
the door, told McConnell that he was sending him home
because McConnell swore at him. McConnell denied
having sworn at him and Zakowski said that it was
McConnell's word against his. McConnell maintained his
denial but said in any event he would apologize and return
to work. Zakowski refused to permit him to return to
work and McConnell left the plant.
McConnell attempted to work Sunday, May 7, his next
scheduled working day, but was not permitted to do so.
He was informed at that time that he should see Riccardi
the following day. On Monday morning McConnell
reported to Riccardi who told him in essence that he had
a report from Foreman Zakowski, asked McConnell for
his version, but told him that he had no choice but to
believe the foreman. Richard Ulbrich, who had been in
the room, left saying that he would call his lawyer to find
out if they could discharge McConnell. While he was gone
from the room Riccardi said to McConnell that he had
spoken to him before about passing out "that junk" and
said that McConnell was being played for a sucker by the
other employees in the shop who wanted a union but
wished to remain in the background. Ulbrich returned
saying he could not reach the lawyer but was going to
suspend McConnell indefinitely until they found out what
they could do. McConnell pointed out he had a family to
support and asked how long he was going to be
suspended. He was given no answer, whereupon he asked
for a termination slip to submit for unemployment
compensation. Ulbrich stated that the Company did not
have to give him anything and that they did not have to
answer to McConnell or anybody like him, whereupon
Ulbrich left.
'Arnold was found to have been discharged in violation of Section
8(a)(3) in the prior case . He had not , on May 5, been reinstated.
682 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On May 10 McConnell was instructed to report for
work that evening , which he did.
The General Counsel alleges that McConnell was
suspended because of his union activities , in violation of
Section 8 (a)(3) of the Act. The Respondent contends, in
substance , that the suspension was for cause
insubordination and threatening the foreman.
Respondent produced one Henry Dechert as a witness
to McConnell 's activities at the Moose Club the evening
of May 5. A bartender at the club, Dechart specifically
recalled seeing McConnell and Arnold there that evening,
testifying that they arrived at about 4:45 p.m. and stayed
until he went off duty at 8 o'clock , and that in that period
he "must have served at least six or seven " highballs to
McConnell . He testified that he was relieved at 8 o'clock
by Elyward.
Elyward , an employee of the Respondent , testified that
he came on duty at 8 o 'clock and found McConnell and
Arnold in the bar . He testified that he observed Arnold's
car in the parking lot and identified it as a black Chevy.'
He testified that Guthridge was not present but that two
gentlemen , Ernie Johnson and "Portuguese Joe," were
drinking with McConnell and Arnold; that several other
employees joined them at about a quarter to 10; and that
he served McConnell five or six beers and three or four
highballs, all of which he observed him drinking.'
Respondent also produced Foreman Zakowski who
testified to the occurrence when McConnell arrived at the
plant. According to Zakowski, he pulled McConnell's
timecard at 11:20 in accordance with standing instructions
to pull timecards when employees were over 15 minutes
late, and that McConnell reported to the plant at about
11:25. He testified that he refused to let McConnell go to
work because he smelled alcohol on his breath and when
he said so McConnell stepped up and breathed in his face
and then stepped back and swore at him .' Ultimately he
escorted McConnell to the door. At the door McConnell,
according to Zakowski , said , "Come on, let's go off
company property . Your glasses won't stop me."
McConnell offered to apologize if the foreman would let
him go to work . He denied that he had at any time told
McConnell that he had heard about McConnell passing
out leaflets in front of the plant or that there was any
other discussion about McConnell's union activity.
I find McConnell to be a credible witness with regard
to the incidents of May 5 . On the other hand , I find it
impossible to believe the story put forth by the
Respondent through the testimony of the two bartenders
and the foreman . If I believed the bartenders I would have
to find that McConnell commenced drinking at the Moose
Club some 15 minutes before he completed handbilling at
the Company plant and continued drinking from then
until 15 minutes before 11 at night during which time he
drank no fewer than nine highballs and six bottles of beer,
ate nothing , and then managed to drive to the plant. I
think it significant that on cross-examination Foreman
Zakowski testified that aside from the odor of alcohol
McConnell did not appear to be drunk: he talked
coherently and, although Zakowski walked side by side
with him through the door, McConnell did not walk in a
strange or unsteady manner . I simply do not believe that
'Arnold testified credibly , as a rebuttal witness , that he had owned a
black Chevrolet poor to January 1967. However, early in January he
purchased two other cars, one of which was maroon and the other white,
and traded in the black Chevrolet on the deal.
'Guthridge was not called as a witness.
'According to Zakowski , earlier in the evening another employee
working while under the influence of alcohol, had injured himself.
McConnell could have imbibed during the evening to the
extent described by the two bartenders , without showing
any observable effects. Aside from the fact that their
testimony impressed me as exaggerated , I note that two of
the three witnesses on whose testimony the employer's
position rests, are foremen.' The third, bartender Dechert
was no more believable . He testified that he did not know
when the occurrence took place but that it could have
been in May or April, or even in March. Dechert, 81
years of age, had worked for approximately 10 or 12
years as a bartender at the Moose Club from 4 to 8 p.m.
in the evening . Although he testified that he recalled
McConnell and that McConnell was with Arnold, he
stated that he did not think he would know Arnold if the
latter walked into the courtroom. However, Arnold
testified credibly that he had been in the Moose Club
eight or nine times in the year 1967, and has seen Dechert
many times. I can not rely on Dechert's selective memory,
especially since to do so would lead to a conclusion which
I consider highly improbable. I discount his testimony as
well as that of Elyward, to the effect that McConnell
drank to the extent that they said he did. Nor do I believe
that McConnell was under the influence of alcohol when
he reported for work, as testified by Zakowski, after
having had two or so beers in the period from 8 to 10
p.m., some 75 minutes before reporting at the plant.
This, of course , does not resolve the issue presented by
the complaint , i.e., whether McConnell was disciplined
because of his union adherence . Both his and Zakowski's
version of the incident of May 5 reveal that McConnell
reacted to Zakowski's action in pulling his timecard in a
truculent and argumentative manner and refused to leave
the plant when ordered to do so by Zakowski. A ready
explanation appears for McConnell's seeming
intransigence in this regard . He could not help but have
become aware of the employer's propensity for
discrimination against union adherents , for he was, after
all, closely connected with the General Counsel 's trial of
the first case which involved the discriminatory discharge
of three employees as well as interference with his rights
under the Act. Presumably as an avowed and open union
adherent McConnell must have made it his business to see
to it that he did not give the Respondent any adequate
cause for his discharge. Finding as he did that his
timecard had been removed when he was only 10 minutes
late, a practice not theretofore followed to his knowledge,
he must readily have suspected that his turn as the object
of the Respondent ' s discrimination had come, and his
attitude in response to Zakowski ' s action and claim that
he was drunk becomes readily understandable . Even so, he
did no more than protest his innocence of the charge,
demand an explanation for his timecard having been
pulled , and initially refuse to leave when told. I do not
credit Zakowski's testimony , denied by McConnell, that
McConnell invited him outside presumably with the
intention of starting a fight . I credit McConnell's
testimony that to eject McConnell, when Zakowski
threatened to call the police he welcomed the suggestion
and said that he would demand a "drunk test" when the
police came in order to prove that he was not intoxicated.
We come then to consider whether the employer
thought in good faith that McConnell had committed the
grievous sins charged against him by Zakowski on the
witness stand . I know of no reason why Zakowski would
have manufactured the story that I am satisfied in fact he
'Elyward was promoted on May 29 from the job of expediter to a
supervisory position
ULBRICH STAINLESS STEELS, INC. 683
did, other than to support the Respondent's efforts to
punish McConnell for his union activities. There is no
suggestion of personal animosity between the two men nor
is there any suggestion that Zakowski was in the habit of
making untrue reports to his superiors. In the absence of
evidence to the contrary, I must conclude that the report.
he gave Riccardi was factual and that Riccardi was thus
aware that only the flimsiest of grounds appeared to
warrant taking any substantial measures against
McConnell. It is for this reason I believe that the events
before and on May 10 took place in the manner in which
I have set them forth, including Ulbrich's attempt to
reach his lawyer.' I believe that Ulbrich in fact suspected
that he did not have adequate cause to withstand the
charge that would necessarily be forthcoming if he
discharged McConnell and he was not at that time
prepared to move to that extent. His statement that he
would suspend McConnell indefinitely and his refusal to
give McConnell a termination slip which would have
required a definitive decision on his part support my
finding in this regard. By May 10, I conclude the
Respondent realized that it would be on shaky grounds to
discharge McConnell, and thus called him back to work.
I conclude that McConnell's suspension resulted
entirely from his union activities. I believe that Zakowski,
knowing that the Respondent welcomed an opportunity to
get rid of McConnell, pounced upon his tardiness with
excessive zeal; I believe, moreover, that the matter would
have gone no further but for the fact that Riccardi and
ultimately Ulbrich were toying with the idea of using the
incident as an excuse to discharge McConnell. I find that
by the suspension of McConnell the Respondent violated
Section 8(a)(3) and (1) of the Act, as alleged in the
complaint.
Immediately before the incident of McConnell's
suspension Donald Bundy, who had been his partner in a
concrete construction business outside the plant as well as
in his organizational attempts within the plant, was
offered and accepted a promotion to a foreman's position
on the third shift. Prior to McConnell's suspension he and
Bundy had obviously argued with some bitterness about
Bundy's agreement to accept the promotion thus
becoming, in McConnell's eyes, a turncoat. Bundy
assumed the duties of foreman during McConnell's
suspension.' °
It is obvious that McConnell felt that any friendship
that had existed between him and Bundy was dissolved by
Bundy's acceptance of the promotion. McConnell
commenced complaining to Bundy that he had been given
a reduction in his hourly rate but had resumed doing the
job carrying the higher rated pay, and in consequence
should have his old rate back at least during the period of
time he was working in the higher rated job. Late in July
Bundy took McConnell's complaints up with Riccardi
who called McConnell into his office. Riccardi told
McConnell that he did not expect McConnell to remain
on the higher paid machine very long and accordingly he
was not going to give him his rate back, but he informed
McConnell of other openings in the shop and asked if
McConnell wanted one of them. McConnell preferred the
job on which he was then assigned but said that he would
work wherever he was sent. Riccardi said that McConnell
should ask for any job he wanted and McConnell pointed
at Riccardi's desk, whereupon Riccardi asked if he was
really interested in a management job; McConnell said
that he was not. Riccardi offered McConnell Bundy's job
which McConnell declined. Riccardi told him not to make
a decision but to think about it and let him know where
he wanted to be assigned stating, according to McConnell,
"But one thing you'll have to drop all your union
activities and you'll have to sign a statement dropping the
charges against the Company." At this juncture Riccardi
received a telephone call pursuant to which he took
McConnell to Richard Ulbrich's office. Daniel Ulbrich
was there also. Riccardi told Richard Ulbrich about the
jobs that he had offered McConnell and said, "I think
I've got Sam on our side." Richard Ulbrich then inquired
what Riccardi meant and Riccardi said, "I offered him a
foreman's job." Richard Ulbrich replied, "What, a
foreman in my plant?" and after discussion said to
McConnell, "I've got just the job for you. We need
someone to clean out the toilet bowls and take out the
garbage." Riccardi and McConnell left and Riccardi
warned McConnell to behave himself and keep his mouth
shut. However, McConnell continued to complain to
Bundy about his rate.
Early in August Bundy sent McConnell to Riccardi in
the latter's office. On this occasion Riccardi told
McConnell he would be getting his rate back but that he
would have to cease passing out union literature. This is
denied by Riccardi, as was the mention of the Union in
the former conversation. While it would ordinarily seem
unlikely that Riccardi, after going through the hearing in
the former case in which he was found to have made
unlawful remarks, would make similar statements
thereafter, I credit McConnell's testimony that Riccardi in
fact made both the foregoing statements. I believe that
Riccardi felt, as he had in the earlier case, that he had
gained a convert for the Company's side of the union
organization issue by granting McConnell the rate
increase and by holding out to him the possibilities of
promotion. I was impressed at the hearing with the fact
that Riccardi, while testifying, seemed unduly aware of
the fact that he was under the eyes of his superiors. I do
not credit his denials.
I find that the Respondent violated Section 8(a)(1) of
the Act by (a) Riccardi's statement that McConnell would
get his old rate back on the condition that he cease his
union activities, and (b) Riccardi's earlier statement in
effect informing McConnell that he would have to cease
activity in behalf of the Union and drop charges against
the Respondent in order to obtain better job' assignments. "
Bundy, as night foreman, was charged with the
supervision of McConnell, among others. Bundy did not
normally announce the luncheon break on the third shift,
which prior to his promotion had been called at 2 a.m. by
the then foreman. On September 13, McConnell began his
luncheon break at 2:15 and saw Bundy at the coffee
machine when he arrived there. At 2:35 a.m. Bundy told
McConnell and another employee who had arrived after
McConnell that the break was over. The other employee,
Weyant, informed Bundy that he did not arrive until 2:20,
whereupon Bundy replied that his break was over at 2:50.
Bundy then turned to McConnell and said, "I suppose you
didn't get here until 2:25." McConnell replied that Bundy
'I do not credit his testimony that he was not in any way involved in the
May 10 interview between McConnell and Riccardi.
"Bundy 's testimony that he was unaware of McConnell 's suspension at "Although these were not alleged specifically as violations of the Act, I
the time and that McConnell was working the first night he was foreman is find they were fully litigated and thus may be utilized as the basis for
not credited . unfair labor practice findings.
684 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
knew when he arrived because he (Bundy) was standing at
the coffee machine when he got there. Bundy said he did
not ask that and wanted a simple answer to a simple
question. McConnell replied, "My break is over at 2:45
and I'll go back to work then." There was further
discussion, but McConnell left at 2:45 and returned to his
machine, commenced operating it, and while it was
running began to figure his production log. While he was
computing his log the coil on his machine ran out and he
stopped the machine, using a foot switch. About a minute
later Bundy approached and asked McConnell if the
machine was broken down and why it was not running.
McConnell said he was figuring his production log and
would start the machine again in a minute. Bundy ordered
him to start it immediately and McConnell repeated that
he would do it in a minute. After some further argument
McConnell told Bundy to "get off my back."
The next afternoon, Zakowski called McConnell at
home and told him not to report to work. McConnell
asked why and Zakowski said that it had something to do
with Bundy, and told him to contact Riccardi the next
day. The following afternoon, September 15, McConnell
went to Riccardi's office and was told by Riccardi that he
was discharged. McConnell asked why and Riccardi
answered that he was sure McConnell knew, because he
had a full report from Bundy indicating that McConnell
swore at Bundy and hit him. Riccardi gave McConnell a
termination slip stating that he was discharged for
insubordination and said that he hoped that they would
meet again some day under better conditions. McConnell
reminded him that they would meet at the NLRB hearing
the following week. Riccardi said, "Why don't you drop
all that junk?" and added, "You can't possibly fight these
people." McConnell, however, insisted that he was right
and intended to fight. Riccardi then offered to give
McConnell his job back if he would drop the unfair labor
practice charges and stop his union activity. McConnell
agreed, whereupon Riccardi said Richard Ulbrich would
have to prepare the withdrawal statement for McConnell's
signature but was not then in the office. He advised
McConnell that he would call him after Ulbrich had the
statement prepared. McConnell returned to his home
where Riccardi called him at about 4 p.m., stating that
Richard Ulbrich had not returned and that he was leaving
the plant. Riccardi gave McConnell his home telephone
number and said that if he had not contacted McConnell
by 6:30 McConnell should call him. He also advised
McConnell not to discuss the matter with anyone.
McConnell neither received a call nor called Riccardi that
night; he next saw Riccardi when he went to the plant on
Monday, September 18, for his check. Riccardi called the
personnel office to have McConnell's check brought to
him and McConnell said, "What happened to our deal?"
Riccardi answered, "I have no deal with you, you are
terminated.""
Once again I believe Riccardi was tripped up by his
eagerness to believe that he could convert McConnell to
an antiunion position. I credit McConnell's account of the
discharge interviews and I believe that Riccardi offered to
remit the discharge in exchange for McConnell's
agreement to stay away from union activities.
"This question and answer was Riccardi's testimony on direct
examination by Respondent 's counsel . Riccardi had already denied that he
had any conversation in which he had offered to make a deal in answer to
the Trial Examiner's question "but he did ask you on September 18, 'what
happened to our deal ,' he answered, 'yes,' or words to that effect," and
then went on, saying "his exact words were 'what about the proposition I
made you,' something like that ." I credit the version as he first gave it
The Respondent contends that McConnell was
discharged for insubordination and, according to Riccardi,
specifically because he physically assaulted Bundy,
referring to Bundy's statement that during the argument
at McConnell' s machine McConnell stuck his finger in
Bundy's side and swore at him. McConnell denies having
done so and further denies having sworn at Bundy.
Riccardi contended that he had been informed of these
matters by a written report given him by Bundy, but the
report was not placed in evidence nor was the failure to
do so explained. We can only assume , as the General
Counsel points out, that the Respondent's failure to
produce the report, if such in fact existed, support an
inference that the report does not sustain the j espondent's
position. I credit McConnell in this regard also.
The Respondent would have me consider the finding of
the unemployment commission in a hearing conducted
with regard to McConnell's discharge on December 19, as
supportive of its version of McConnell's termination.
However, it is clear from the report of the commissioner
that McConnell did not appear nor was he represented at
the hearing. The commissioner's report reveals that he
found (on what evidence is not disclosed) that McConnell
overstayed his coffee break, that he did not proceed to
work when he returned to his job area and that he swore
at his foreman and challenged him to go outside.
However, it contains no mention of the alleged assault. I
have considered the commissioner's report but find that it
does not serve to alter the conclusion I have reached.
I conclude that the Respondent considered that the
incident with Bundy afforded it a sufficient pretext to "get
away with" discharging McConnell. Even if I were to find
that McConnell was discharged for cause, however, I
would find that the failure to rescind his discharge in
exchange for his agreeing to drop his union activity and to
withdraw the unfair labor practice charges pending
converted the discharge into an unfair labor practice. In
either event it violated Section 8(a)(3) and (4), as well as
Section 8 (a)(1) of the Act, and I so find.
C. The Layoff of Alexander Olschefski
The General Counsel contends that Olschefski was laid
off on or about May 27, 1967, and has since been refused
reinstatement because he joined or assisted the Union or
engaged in other concerted activities.
Olschefski went to work for Respondent in March 1966
as a slitter's helper on the day shift. In July of that year
he signed a union card and on May 19 , 1967, signed a
second authorization card. He testified that in May, 1966,
Frank Riccardi warned him to stop talking to employees
about joining the Union and that in May, 1967, a year
later, he again was warned by Superintendent Riccardi
that he would be discharged if he did not stop talking
about the Union. On May 22, the operator of the slitter
on which Olschefski worked was discharged and he
operated the machine until the 26th, on which date he was
laid off allegedly for lack of work.
At the time Olschefski came to work for the
Respondent he had filed a claim against a prior employer
under the workmen 's compensation laws because of an
injury to his back. Thereafter, in 1966, while employed by
the Respondent, he reinjured his back and filed a claim
against the Respondent with the Workmen's
Compensation Board. After his layoff, the Respondent
offered him reinstatement with a provision that he
undergo an examination by the Company's physician. The
Company's physician examined him and reported to the
ULBRICH STAINLESS STEELS, INC.
Respondent that Olschefski had a defective back and that
he would not recommend that Olschefski be employed in
any job which required him to stoop or lift heavy weights.
Necessarily, in the Respondent's plant there are few such
jobs. With the report of the Respondent's doctor in hand,
the Respondent suggested to Olschefski that it would
reemploy him only if he would sign a waiver in the event
of future injury. While Olschefski signed such a waiver he
never tendered it to the Respondent and was never put
back to work. The General Counsel contends first, that
the layoff was discriminatory, and, second, that the
imposition by the Respondent of the condition that
Olschefski should sign a waiver before being put back to
work was discriminatory.
Necessary to any determination that an employer has
discriminated against an employee because of his union
activity is a showing that the employer was aware of such
activity. In Olschefski's case the General Counsel relies on
Olschefski' s own testimony of the two incidents attributed
to Riccardi to show employer knowledge of Olschefski's
union activity. There is no evidence in the record that
Olschefski engaged in such activities other than the
warnings he attributed to Riccardi. So far as the record
reveals, the only thing Olschefski had done was to sign the
card and talk to employees about the Union. With respect
to the statements attributed to Riccardi by Olschefski,
there is no corroboration of either Olschefski's testimony
or Riccardi' s denial . Necessarily, there could have been no
corroboration since, in each case, no third person was
shown to have been present. Accordingly, the General
Counsel's case with regard to Olschefski depends on
Olschefski's own testimony.
I am unable to find Olschefski to be a sufficiently
credible witness to accept -his conclusionary statement that
Riccardi warned him against talking to employees about
the Union, on pain of discharge. It was my opinion, based
on his demeanor at the hearing, as well as his testimony,
that his recollection of what was said was not altogether
clear or adequate to sustain the General Counsel's burden
of proving his case with substantial evidence upon the
record considered as a whole." In view of my
disinclination to give any substantial weight to
Olschefski's testimony, I cannot find on this record that
Respondent had any knowledge of his union activity and
accordingly that Respondent discriminated against him.
Under these circumstances I shall recommend that the
complaint be dismissed insofar as it alleges a violation
with regard to the layoff of Olschefski.'
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent set forth in Section
III, above, occurring in connection with the Respondent's
"For example , the second alleged incident with Riccardi was placed
definitely by Olschefski as occurring in May 1967, specifically, in answer
to an observation of the Trial Examiner that this was his understanding.
On cross-examination , he testified that the conversation was not in May
but in April 1967. When his attention was called to the discrepancy he
testified that in his direct evidence he had said that the second conversation
with Riccardi was about a month before he was laid off which is directly
contradicted by the record . While I do not believe that this discrepancy
was deliberate , at the least it reveals a lack of understanding and
additionally leads me to evaluate Olschefski 's testimony as menting little
weight
"In reaching this conclusion I have considered the evidence relating to
lack of work at the time Olschefski was laid off , as well as the testimony
regarding the hiring of new employees thereafter This evidence does not
alter my conclusions , as set forth above.
685
operation described in Section I, above, have a close,
intimate 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.
V. THE REMEDY
It having been found that Respondent engaged in unfair
labor practices in violation of Section 8(a)(1), (3) and (4)
of the Act, it will be recommended that the Respondent
cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act.
Having found that the Respondent illegally suspended
and then discharged Samuel McConnell because of his
activities on behalf of the Union, it will be recommended
that Respondent be ordered to offer McConnell
immediate and full reinstatement to his former position
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
Respondent's unlawful conduct both during the period of
his suspension and since his discharge until the date when
Respondent makes an unconditional offer of
reinstatement. Such backpay shall be computed in
accordance with F. W. Woolworth Co., 90 NLRB 289,
with interest as computed in Isis Plumbing & Heating
Co., 138 NLRB 716. It will also be recommended that
Respondent preserve and, upon request, make available to
the Board payroll and other records to facilitate the
computation of the amounts of back wages.
Upon the basis of the foregoing findings of fact and
upon the entire record of the case, I make the following:
CONCLUSIONS OF LAW
1. The 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. By suspending and discharging Samuel McConnell,
the Respondent discriminated as to his terms and
conditions of employment and thereby sought to
discourage membership in the Union in violation of
Section 8(a)(3) of the Act.
4. By discharging McConnell , in part because he had
filed charges under the Act, the Respondent has violated
Section 8(a)(4) of the Act.
5. By the conduct , set forth in section III , which has
been found to constitute unfair labor practices, the
Respondent interfered with, restrained and coerced its
employees in the exercise of rights guaranteed to them by
Section 7 of the Act and thereby engaged in, and is
engaging in unfair labor practices within the meaning of
Section 8 (a)(1) of the Act.
6. The aforesaid unfair labor practices are unfair labor
practices within the meaning of Section 2(6) and (7) of the
Act.
7. By laying off Alexander Olschefski , the Respondent
committed no violation of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and
conclusions of law and upon the entire record in the case,
I recommend that Ulbrich Stainless Steels, Inc.,
686 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Wallingford , Connecticut, its officers , agents, successors,
and assigns , shall:
1. Cease and desist from:
(a) Discouraging membership in United Steelworkers of
America , AFL-CIO, or any other labor organization by
discharging , suspending or otherwise discriminating
against employees in regard to their hire or tenure of
employment or any term or condition of employment.
(b) Warning or threatening its employees with discharge
or other reprisals if they joined or assisted the Union.
(c) Discharging or otherwise discriminating against any
employee for filing charges under the Act.
(d) In any other manner interfering with , restraining or
coercing its employees in the exercise of their rights to
self-organization , as provided in Section 7 of the Act.
2. Take the following affirmative action designed to
effectuate the policies of the Act:
(a) Offer to Samuel J . McConnell immediate and full
reinstatement to his former or substantially equivalent
position without prejudice to his seniority or other rights
or privileges previously enjoyed by him, and make him
whole for any loss of pay he may have suffered by reason
of the Respondent ' s discrimination against him in
accordance with the recommendations set forth above in
the section entitled "The Remedy."
(b) Post at its plant in Wallingford , Connecticut, copies
of the attached notice marked "Appendix." Copies of
said notice , to be furnished by the Regional Director for
Region 1, shall, after being duly signed by Respondent's
representative , be posted by the Respondent immediately
upon receipt thereof and be maintained for 60 consecutive
days thereafter in conspicuous places including each of
Respondent 's bulletin boards . Reasonable steps shall be
taken by the Respondent to insure that the said notices
are not altered , defaced , or covered by any other material.
(c) Preserve and, upon request, make available to the
Board or its agents , for examination and copying, all
payroll records , social security payment records,
timecards , personnel records and reports, and all other
records necessary to analyze the amounts of backpay due
and the rights of employment under the terms of the
Recommended Order herein.
(d) Notify the Regional Director for Region 1, in
writing , within 20 days of the date of the receipt of the
Trial Examiner's Decision , what steps Respondent has
taken to comply with the foregoing Recommended Order. "
"In the event that this Recommended Order shall be 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 be 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."
"In the event that this Recommended Order be adopted by the Board,
the provision shall be modified to read : "Notify the Regional Director for
Region 1 , in writing, within 10 days from the date of this Order, what
steps the Respondent has taken to comply herewith."
IT IS FURTHER RECOMMENDED that in all other respects
the complaint herein be dismissed.
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 membership in United
Steelworkers of America, AFL-CIO, or any other labor
organization of our employees, by discharging or
otherwise discriminating against our employees in
regard to their hire or tenure of employment or any
term or condition of employment.
WE WILL NOT warn or threaten them with discharge
or other reprisals if they join or assist the Union.
WE WILL NOT in any other manner interfere with,
restrain , or coerce our employees in the exercise of
their rights protected by the Act.
WE WILL offer to Samuel J . McConnell immediate
and full reinstatement to his former or substantially
equivalent position , without prejudice to his seniority or
other rights and privileges , and make him whole for
any loss of pay he may have suffered as a result of our
discrimination against him.
All our employees are free to become or remain, or
refrain from becoming or remaining , members in the
above-named Union or any other labor organization.
ULBRICH STAINLESS
STEELS, INC.
(Employer)
Dated By
(Representative) (Title)
Note: 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, 20th Floor,
John F. Kennedy Federal Building , Cambridge and New
Sudbury Streets, Boston , Massachusetts 02203, Telephone
223-3300.