Unimasco, Inc.

National Labor Relations Board - Board Decisions

Jul 17, 1973

204 N.L.R.B. 1128 (N.L.R.B. 1973)

1128 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Unimasco, Inc. and Mrs . Frank Martinez . Case 21-
CA-11188
FINDINGS OF FACT
1. JURISDICTIONAL FINDINGS
July 17, 1973
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS FANNING
AND JENKINS
Unimasco, Inc., is a California corporation engaged in
the manufacture of painting equipment at Gardena, Cali-
fornia. It annually sells and ships products valued in excess
of $50,000 directly to points outside the State of California.
The Board has previously asserted jurisdiction over its oper-
ations in Unimasco, Inc., 196 NLRB 400 and I find that the
operations of Respondent affect commerce within the
meaning of Section 2(6) and (7) of the Act.
On February 16, 1973, Administrative Law Judge
Martin S. Bennett issued the attached Decision in this
proceeding. Thereafter, the Respondent filed excep-
tions and a brief in support of its exceptions and the
General Counsel filed exceptions and a brief in sup-
port thereof.
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 briefs
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
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
Order of the Administrative Law Judge and hereby
orders that the Respondent, Unimasco, Inc., Garde-
na, California, its officers, agents, successors, and
assigns, shall take the action set forth in the said rec-
ommended Order.
DECISION
STATEMENT OF THE CASE
MARTIN S. BENNETT, Administrative Law Judge: This mat-
ter was heard at Los Angeles, California on January 10,
1973. The complaint, issued October 6 and based upon
charges filed August 18 and September 5, 1972, by Mrs.
Frank Martinez, an Individual, alleges that Respondent,
Unimasco, Inc., has engaged in unfair labor practices within
the meaning of Section 8(a)(4), (3), and (1) of the Act. Briefs
have been submitted by the General Counsel and Respon-
dent.
Upon the entire record in the case, and from my observa-
tion of the witnesses , I make the following:
11 THE LABOR ORGANIZATION INVOLVED
Miscellaneous Warehousemen, Drivers & Helpers Local
986, International Brotherhood of Teamsters, Chauffeurs,
Warehousemen & Helpers of America, herein the Union, is
a labor organization within the meaning of Section 2(5) of
the Act.
III THE UNFAIR LABOR PRACTICES
A. Introduction; The Issue
In the predecessor case, supra, the Board held, inter alia,
that Frank Martinez was discharged by Respondent on
March 24, 1971, because of his activities in behalf of the
Union within the meaning of Section 8(a)(3) and (1) of the
Act. It preliminarily rejected the claim of Respondent that
Martinez was a supervisor, and flatly adopted the holding
of the Administrative Law Judge that Martinez was an em-
ployee and ruled that he was subject to the protection of the
Act.
It is also undisputed that Martinez did testify at the earli-
er Board hearing and, after its adverse decision, was rein-
stated on February 29, 1972. The General Counsel contends
that Martinez suffered a reduction in pay from $4.60 to
$3.50 per hour on June 26, 1972, because of his prior union
activities, the adverse decision in the predecessor case and
because he testifed therein, all within the meaning of Sec-
tion 8(a)(4), (3), and (1) of the Act.
B. Discussion
Initially, absent any claim that Martinez was assigned
supervisory responsibilities after his reinstatement, I deem
the prior holding as to his rank-and-file status to be binding
herein. Moreover, the parties do not dispute and indeed
assert his present nonsupervisory status. It is also undisput-
ed that Respondent did reduce his pay precisely in the
amount alleged. Respondent has presented a number of
defenses, somewhat varying in nature, which are treated
below.
Martinez, according to Respondent, was a supervisor in
its machine shop at the time of his original discharge in
March 1971 and enjoyed a wage scale of $4.60 per hour.
President F. A. Moon of Respondent initially testified here-
in that Martinez had been a supervisor over some two to
four employees. The Board having previously held that
Martinez was not a supervisor and therefore an employee
204 NLRB No. 148
UNIMASCO
and a discriminatee , Respondent reinstated him in order to
toll his backpay . As Moon put it , "On orders that he was
not a supervisor, he had to be rehired as a Machinist. We
have only two titles in the department . . . I removed the
supervisory duty that he had upon discharge."
Moon contended that , upon the reinstatement of Marti-
nez on February 29, 1972, he removed certain of his prerog-
atives , such as asking Moon to order materials and
consulting with Moon concerning the hire of an employee;
Moon also abandoned his custom of discussing the daily
program with him . Matters such as these have since been
taken up with Bruce Atwood whose title is machine shop
supervisor . Atwood , previously in the assembly and supply
department , was appointed this post in July 1971, after the
discharge of Martinez.
Moon later flatly admitted that , after the reinstatement of
Martinez , he excised those of his functions which he, Moon,
considered to be supervisory in nature ; Martinez was there-
after treated as a rank -and-file machinist and Atwood was
his supervisor . Moon also presented some vague testimony
that , after the rehire of Martinez , Respondent had two full-
time employees in this work but the machine shop required
only one . I do not fully follow this because he conceded
Respondent 's work volume did not then change . Viewed
similarly is his testimony that Respondent subcontracts
some of its machine shop operations at a cost much below
what it would cost Respondent to perform them in the
plant . But the simple answer is that this reduced cost sub-
contracting was undertaken approximately one year prior to
the discharge of Martinez.
Next considered is Respondent 's claim that it reduced the
pay of Martinez , after his reinstatement pursuant to the
advice of counsel . Presumably this resulted from the remov-
al of his alleged supervisory functions , but this concept, as
noted , the Board has previously rejected. Moon , in essence,
is contradicted by a subordinate . Thus , John Rice , person-
nel director and purchasing agent , flatly testified that the
duties of Martinez , as a machinist , had not changed since
his reinstatement on February 29, 1972. Martinez is alleged-
ly a machinist with no supervisory functions. As
Respondent 's highest rate for a journeyman machinist if
$3.50 per hour ; as its supervisory rate is $4.60; and, as
Atwood , Martinez ' supervisor was receiving only $4.30 per
hour ; Martinez was duly reduced to $3.50 per hour on June
26, 1972.
Rice reiterated that when Martinez ' rate of pay was re-
duced on June 26 , 1972, his duties were not supervisory in
nature and they were not altered . Rice and Atwood agree
that Atwood , ostensibly the supervisor of Martinez, com-
plained that his subordinate , Martinez, was enjoying a high-
er scale than he did . It is readily apparent that Respondent
is actually quibbling with the prior decision of the Board.
And a consideration of other points it raises readily so
demonstrates.
Thus , Rice testified that the title of Martinez before his
reinstatement was that of supervisor and that , upon rein-
statement , it was changed to machinist . Yet it is undisputed
that his job content , according to Rice , did not change. In
this respect , Shop Foreman L. H. Abersold agreed with
President Moon as to the duties taken away from Martinez
after his reinstatement and then turned over to Atwood.
1129
Abersold also presented testimony that Martinez , when At-
wood was ill and Abersold was functioning in his place
during 1972, had on three occasions disputed the way the
job was to be done . The direct answer to this is that
Respondent's basic contention herein is that the elimination
of Martinez ' alleged supervisory duties led to his reduction
in pay and not the manner in which he sought to perform
these assignments.
Viewed similarly is certain testimony by Atwood that the
work of Martinez was unsatisfactory . This is indeed surpris-
ing because Martinez had worked for Respondent for 19
years , as the original decision , supra, discloses . Atwood al-
legedly found fault with two jobs where Martinez had made
some scrap ; needless to say , this strikes one as not unusual.
More particularly, it had nothing to do with Respondent's
decision to reduce the pay of Martinez. I do not consider
it my province to establish a revised wage structure for
Respondent . But it complains that it could not permit Mar-
tinez to make more than Supervisor Atwood; conceivably,
the answer might be to raise the wage scale of the latter.
In conclusion , as an underlying premise , Respondent is
basically carping with the previous decision of the Board,
which , in reality, it wishes me to reverse , a matter beyond
my authority. Stated otherwise, Martinez was duly reinstat-
ed but suffered a reduction in pay for reasons which, as a
matter of law, cannot be sustained . I find therefore, upon
the entire record , that by reducing the pay of Martinez on
June 26, 1972, Respondent was striking out at him and
retaliating because he testified in the earlier case and be-
cause he was a discriminatee therein . I further find that, by
the foregoing conduct , Respondent has, as alleged by the
General Counsel, engaged in unfair labor practices within
the meaning of Section 8(a)(4), (3), and (1) of the Act.
Upon the basis of the foregoing findings of fact, and upon
the entire record in the case , I make the following:
CONCLUSIONS OF LAW
1. Unimasco , Inc., is an employer within the meaning of
Section 2(2) of the Act.
2. Miscellaneous Warehousemen, Drivers & Helpers Lo-
cal 986 , International Brotherhood of Teamsters , Chauf-
feurs , Warehousemen & Helpers of America is a labor
organization within the meaning of Section 2 (5) of the Act.
3. By reducing the wages of Frank Martinez for engaging
in union and concerted activities , and because he presented
testimony in a proceeding before the Board , Respondent
has engaged in unfair labor practices within the meaning of
Section 8(a)(4), (3), and (1) of the Act.
4. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in unfair
labor practices , I shall recommend that it cease and desist
therefrom and take certain affirmative action designed to
effectuate the policies of the Act.
I have found that Respondent has violated Section
8(a)(4), (3), and (1) of the Act by reducing the wages of
1130 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Employee Frank Martinez . I shall therefore recommend
that Respondent make him whole for any loss he may have
suffered as a result of his reduction in wages on June 26,
1972, and forthwith restore him to the wages he enjoyed
prior to that date , plus interest at 6 percent per annum. his
Plumbing & Heating Co., 138 NLRB 716. If an inspection
of Respondent's records discloses that the rate he enjoyed
prior to that date has been increased, his wage scale should
be adjusted appropriately.
Upon the foregoing findings of fact, conclusions of law,
and the entire record , and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ing, within 20 days from the date of receipt of this Order,
what steps it has taken to comply herewith.
1 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
2 In the event that the Board's 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 be changed to read "Posted
Pursuant t& a Judgment of the United States Court of Appeals enforcing an
Order of the National Labor Relations Board."
ORDER'
Respondent, Unimasco, Inc., Gardena, California, its of-
ficers , agents , successors , and assigns , shall:
1. Cease and desist from:
(a) Discouraging membership in, or activity in behalf of
Miscellaneous Warehousemen, Drivers & Helpers Local
986, International Brotherhood of Teamsters, Chauffeurs,
Warehousemen & Helpers of America, or any other labor
organization of its employees , by discriminating in regard
to hire or tenure of employment, or any term of condition
thereof.
(b) Discriminating in regard to hire or tenure of employ-
ment, or any term or condition thereof , because employees
have presented testimony in a proceeding before the Na-
tional Labor Relations Board.
(c) In any like or related manner, interfering with, re-
straining, or coercing employees in the exercise of the rights
guaranteed under Section 7 of the National Labor Rela-
tiions Act, except to the extent such rights may be affected
by an agreement requiring membership in a labor organiza-
tion as a condition of employment, as authorized by Section
8(a)(3) of the Act.
2. Take the following affirmative action which is deemed
necessary to effectuate the policies of the Act:
(a) Make whole Frank Martinez for any loss of pay suf-
fered by reason of the discrimination against him in the
manner provided above in the section entitled, "The Reme-
dy," and restore him to the rate of pay he enjoyed prior to
the discrimination against him, subject to any increases
since granted in the applicable wage scale.
(b) Preserve and, upon request, make available to the
National Labor Relations Board and its agents, for exami-
nation and copying, all payroll records, Social Security pay-
ment records, timecards, personnel records and reports, and
all other records necessary to determine the amount of
backpay due under the terms of this Order.
(c) Post at its plant at Gardena, California, copies of the
attached notice marked "Appendix." 2 Copies of said no-
tice, on forms provided by the Regional Director for Region
21, after being duly signed by Respondent, shall be posted
by Respondent immediately upon receipt thereon, and be
maintained by it for 60 consecutive days thereafter , in con-
spicuous places, including places where notices to employ-
ees are customarily posted . Reasonable steps shall be taken
by Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(d) Notify the Regional Director for Region 21, in writ-
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL make whole Frank Martinez for any loss of
wages suffered as a result of our discrimination against
him, and we will restore him to the wage rate enjoyed
by him prior to our discrimination against him, subject
to any increases in that rate.
WE WILL NOT discourage membership in, or activity in
behalf of Miscellaneous Warehousemen, Drivers &
Helpers Local 986, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen & Helpers of
America, or any other labor organization of our em-
ployees, by discharging employees, or by discriminat-
ing in any manner in regard to hire or tenure of
employment or any term or condition thereof.
WE WILL NOT discriminate in any manner against em-
ployees because they have presented testimony before
the National Labor Relations Board.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees in the exercise of the
rights guaranteed under Section 7 of the National La-
bor Relations Act, except to the extent such rights may
be affected by an agreement requiring membership in
a labor organization as a condition of employment, as
authorized by Section 8(a)(3) of the Act.
All our employees are free to become or remain, or
refrain from becoming or remaining, members of the
above named or any other labor organization.
UNIMASCO, INC
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
UNIMASCO 1131
or covered by any other material. Any questions concerning ed to the Board's Office , Eastern Columbia Building, 849
this notice or compliance with its provisions may be direct- South Broadway, Los Angeles, California 90014, Telephone
213-688-5229.