V & H Industries, Inc.

National Labor Relations Board - Board Decisions

Nov 24, 1969

179 N.L.R.B. 696 (N.L.R.B. 1969)

696 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
V & H Industries, Inc. and International Union of
Electrical , Radio and Machine Workers,
AFL-CIO-CLC. Case 3-CA-3764
November 24, 1969
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
JENKINS AND ZAGORIA
On September 3, 1969, Trial Examiner George A.
Downing issued his Decision in the above-entitled
matter, finding that Respondent had engaged in and
was engaging in certain unfair labor practices and
recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in
the attached Trial Examiner's Decision. The Trial
Examiner further found that Respondent had not
violated the Act in other respects alleged in the
complaint, and recommended that such allegations
be dismissed. Thereafter, Respondent filed
exceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, 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 brief, and
the entire record in this case, and hereby adopts the
findings,' conclusions, and recommendations of the
Trial Examiner.2
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, and
orders that Respondent, V & H Industries, Inc.,
Buffalo, New York, its officers, agents, successors,
and assigns, shall take the action set forth in the
Trial Examiner's Recommended Order.
'Respondent excepts to the Trial Examiner's credibility findings. It is the
Board's established policy not to overrule a Trial Examiner's credibility
findings unless, as is not the case here, a clear preponderance of all the
relevant evidence convinces us that they are incorrect Standard Dry Wall
Products, Inc., 91 NLRB 544, enfd. 188 F 2d 362 (C A 3) We conclude
that the Trial Examiner's credibility findings are not contrary to the clear
preponderance of all the relevant evidence and, accordingly, we find no
basis for distrubing those findings.
'As the record indicates that no work was available for Kwasniewski
when she applied for reinstatement, backpay shall be computed from the
date she would have been put back to work absent Respondent's
discrimination against her
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
GEORGE A. DOWNING, Trial Examiner: This proceeding
under Section 10(b) of the National Labor Relations Act
as amended was heard at Buffalo, New York, on July 14,
1969, pursuant to due notice The complaint, as issued on
June 18, 1969, on a charge and an amended charge filed
on April 29 and June 10, respectively, alleged that
Respondent engaged in unfair labor practices within the
meaning of 8(a)(1), (3), and (4) of the Act on and after
December 13, 1968, by failing and refusing to reinstate
Rita Kwasniewski to her former position because of her
union membership or activities or other concerted
activities and because she gave testimony under the Act.
Respondent answered denying the unfair labor practices.
Upon the entire record in the case and from my
observation of the witnesses, I make the following:
FINDINGS OF FACT
L JURISDICTIONAL FINDING; THE LABOR ORGANIZATION
INVOLVED
I find on admitted allegations of the complaint that
Respondent is engaged in commerce within the meaning
of Section 2(6) and (7) of the Act (see also V & H
Industries, Inc., 177 NLRB No. 118) and that the
Charging Party is a labor organization within the meaning
of Section 2(5) of the Act.
IL THE UNFAIR LABOR PRACTICES
A. The Issues
The central issue herein is whether Respondent failed
and refused to reinstate employee Rita Kwasniewski to
her job on and after December 13, 1968, because she
testified as a witness against it during a hearing on
November 20-22, in Cases 3-CA-3478, 3-CA-3543, and
3-RC-4389, in which Trial Examiner John M. Dyer issued
his decision on March 18, 1969, adopted by the Board on
July 17, 177 NLRB No. 118.
Respondent at first advanced the defense that it
considered Kwasniewski a "quit," but during the present
hearing it advanced a further defense that Kwasniewski's
employment was terminated on November 12, 1968, by
President Douglas H. Smith.
B. The Evidence
Rita Kwasniewski was hired on January 27, 1967, as a
punch press operator and worked until July 3, 1968, when
she took a leave of absence under doctor's orders, because
of an ulcerous condition. She remained under the doctor's
care and received disability compensation until November
18, 1968, under an insurance policy carried by Respondent
which covered her as an employee. Kwasniewski did not
report to work on November 18, however, because (she
testified) she contracted a cold which later developed into
the flu for which she again went under the care of her
doctor, who certified to Respondent she was capable of
working as of December 18.
In the meantime Kwasniewski was in attendance at the
hearing in the former case on all 3 days. She testified on
the second day and was called again as a rebuttal witness
on the final day. Her testimony not only supported some
179 NLRB No. 112
V & H INDUSTRIES, INC.,
of the 8(a)(3) findings but also served as the basis for
finding an independent violation of Section 8(a)(1) on
conduct attributed by her to President Douglas Smith See
177 NLRB No 118, supra
Kwasniewski testified that thereafter she was treated for
the flu by her doctor, who told her she could return to
work on December 16 On December 13, the preceding
Friday, she , called the plant and talked with General
Manager Harold Wilson, informing him that she had been
released to come back to work and explaining why she
had not come back in November after the former release.
Wilson replied that they were laying off employees and
that if there were work, he would call her back
Kwasniewski asked that Wilson send her a layoff slip and
he agreed to do so Kwasniewski's sister Catherine
George, who was listening in on an extension telephone,
testified in full corroboration of Kwasniewski's testimony
Kwasniewski testified further that on December 20, not
having received a layoff slip, she called Wilson again and
asked about it. Wilson informed, her that after talking
with President Smith they decided she had quit because
she did not notify them in 'November when she was
released She reminded Wilson that she was the one who
told him why she had not reported in November and
charged that her treatment was due to the fact that she
testified in the earlier proceeding. She had no further
conversation with Wilson or any other representative of
the Company but did apply for unemployment
compensation on December 23
The record also establishes that though Respondent
hired other punch press operators after December 13, it
did not consider hiring Kwasniewski and still objects to
offering Kwasniewski her job back Also supporting the
General Counsel's case was the admission by President
Smith on cross-examination that Kwasniewski's testimony
at the prior hearing was a matter of concern to him
We now turn to the evidence which Respondent offered
in defense
General Manager Harold Wilson testified that he had a
single conversation with Kwasniewski about a week before
Christmas when Office Manager Margaret Stroke called
him to the telephone. Kwasniewski asked if he would send
her a layoff slip and he replied he did not think he could
but to hold the phone while .he checked. Wilson spoke
with President Smith, informing Smith that Kwasniewski
was asking for a layoff slip but he thought she was a
voluntary quit Smith agreed that was so, and Wilson
therefore informed Kwasniewski he could not give her a
layoff slip because they considered her a voluntary quit
Kwasniewski replied, "That's what I thought you would
say "
Wilson denied all remaining portions of Kwasniewski's
testimony He testified that he saw her at the former
hearing but she was not coughing or sneezing and did not
appear to be ill
On cross-examination Wilson testified his opinion that
Kwasniewski.had quit was based on information from the
office girl that Kwasniewski had been taken off the
payroll He also spoke with Smith at different times about
Kwasniewski On one occasion he asked whether Smith
had heard anything from her and Smith replied he had
not At the time of the telephone call Smith did not state
that he had terminated Kwasniewski but simply confirmed
Wilson's opinion that Kwasniewski had quit, adding that,
"We have not heard from her and she has been taken off
the payroll "
Smith's testimony accorded with Wilson's that he
simply confirmed Wilson's opinion that Kwasniewski had
697
quit and that he did not inform Wilson he had terminated
Kwasniewski. Smith testified, however, that he in fact
terminated Kwasniewski on November 12 because he had
not heard from her since her illness began and that was
the only reason for his decision The termination was
accomplished he testified, by directing his secretary, Paula
Murphy, to prepare for the Company's payroll processing
agent a change sheet dated November 12, which indicated
that Kwasniewski was terminated. Kwasniewski's name
did not appear on any payroll after that of November 2
Smith admitted that he never informed Kwasniewski
she was terminated and that he said nothing to her about
it during her attendance at the former hearing Explaining
the latter omission, Smith stated, "I was concerned with
other matters," and he conceded that Kwasniewski's
testimony was one of the matters which concerned him.'
Smith's reliability as a witness was thrown into extreme
doubt by his testimony concerning a response to the
charge herein which his counsel forwarded to the Board
on May 12 When first shown the response, Smith
testified that he had never seen the document, but on
further questioning admitted that it was his letter to his
attorney, Donald Fisher, dated May 8, 1969, and that he
prepared the statement, which in material part read as
follows
Rita Kwasniewski
Apparently she became sick during the week of July
6, 1968. Rita has not returned to work since date on
,previous page .
She never, at any time, reported for work physically
but did call in on or about January 25, 1969
At that time, she talked to her foreman, Harry
Wilson He informed her that he definitely considered
her a quit for the following reasons
A ) We had not heard from her via any means for
seven months
B ) Doctor considered her ready to report for work
November 18, 1969 She did not report
C ) Same (sic) time during December she applied for
unemployment for reasons unknown to us
D ). She did not continue to carry her group
insurance or hospitalization benefits after August 1968 2
Smith's testimony also covered the following matters
Smith had been furnished, before his conversation with
Wilson, a memorandum prepared -by Office Manager
Stroke dated December 18, which reflected that
Kwasniewski had been paid disability benefits 'for 18
weeks from July 8 to November 17 Smith admitted that
it was not his normal policy to terminate employees who
were on sick leave for a protracted period of time and
admitted that he did not know on November 12 whether
the benefits had a longer period to run and made no check
on it
Smith also referred in his testimony to the fact that he
received no response from Kwasniewski to the following
letter of August 20
Since the duration of your absence from work is
indefinite according to your statements, we have
covered your hospitalization premiums until the end of
August only This will give you thirty days to convert
to an individual policy If you desire to do this, please
contact Mr Norm Ablove at the Aron S. Freedman
Agency, TF-8-1500
'Smith testified, as Wilson did , that Kwasniewski appeared to be well
and that she did not sniffle, cough or sneeze
'Respondent's trial counsel, Genuino Grande , represented that he had
not seen Smith 's letter before the hearing
698 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
If you return to work, we will expect you to cover
the premiums normally paid by the employees, for the
month of August.
The amount of these premiums amounts to $19 25
Please let us hear from you at the earliest moment as
to your intent. '
That letter was the subject of conflicting testimony by
Kwasniewski and Stroke The former testified she called
Stroke about it, explained that she was on sick leave and
had not authorized anyone to take money out of her while'
she was not working Stroke replied that the insurance
covered her anyway and if she wanted to straighted it out
she should call Ablove (of the insurance agency)
Stroke repeatedly professed inability to remember the
content of conversations with Kwasniewski save on the
occasion in December when she called Wilson to the
telephone When questioned specifically with reference to
the letter of August 20, Stroke admitted that Kwasniewski
called her but testified she did not remember the
conversation about the letter Stroke testified further that
though she knew "as of now" the benefits had been
terminated, she did not know when they were terminated.
As for the memorandum of December 18 which she
prepared concerning disability payments to Kwasniewski,
Stroke could not remember what prompted it or who
asked her to obtain the information, but agreed that,
"Probably Mr Smith would be the only one " Stroke also
professed inability to remember whether she prepared the
note before or after the occasion of Kwasniewski's call to
Wilson
Finally Paula Murphy (Smith' s niece ) was called
concerning her issuance to the payroll agent of the change
form of November 12 which indicated that Kwasniewski
was terminated She testified that such forms were
customarily used to take employees off the payroll, but it
was no part of her duties to issue termination notices to
employees She was unable to recall whether it was Smith
or Wilson who directed her to prepare the form- but
testified she "usually" asked Wilson about payroll
changes, and that she "probably" asked Wilson whether
she should take Kwasniewski off the payroll or keep her
on
Respondent's case was concluded by receiving by
stipulation a notice issued on January 15 by the State
Industrial Commissioner informing Respondent that after
considering' the information which the Company furnished
on January 2, Kwasmewski was found entitled to
unemployment benefits for the following reasons
Claimant was involuntarily separated from employment
due to illness Clt's doctor certifies that following illness
for which she received disability benefits, she, was ill
with 'flu - and was capable of working as of
12/18/1968
C Concluding Findings
Considering the case first in the light of the General
Counsel's evidence and the record and findings in the
former case (noted 'officially on stipulation of the parties),
I find that a prima facie case was plainly made out `that
Respondent refused- to reinstate Kwasniewski because she
was a witness against it in the former case Indeed,
Smith's admission that her testimony was of concern to
him added further support to the inference that
Respondent was so motivated
As we turn to Respondent's case we note initially that
the only crucial conflict in the testimony concerns the
question whether Kwasniewski made one or two calls to
Wilson in December and, the content of those 'calls.
Though Wilson denied that there was any call on
December 13, Kwasniewski's testimony concerning it and
its content was fully corroborated by Catherine George I
therefore credit Kwasniewski's testimony.
As for the second call a week later, Wilson admitted
(as Kwasniewski testified) he informed her after talking
with Smith that they considered her a voluntary quit It is
to be noted that in the meantime Smith had learned
through Stroke • on December 18 that Kwasniewski
continued to receive disability payments as an employee
through November 17. Furthermore, though Kwasniewski
was in attendance throughout the hearing in the former
case, Respondent did nothing to inform her either that she
was terminated or that it regarded her as a quit
Certainly the letter of August 20 reflected Smith's
assumption that an employment status would continue, for
it spoke of Kwasniewski's absence from work as being
"indefinite" and informed her that she would be expected
to pay certain premiums upon her return As the letter
was directed to an alleged obligation to pay' insurance
premiums, a mere failure to reply would not evidence an
intent to quit Moreover, I credit Kwasniewski's positive
testimony that she called -Stroke concerning that letter,
and I conclude and find that Kwasniewski did not
voluntarily quit and that Respondent made no claim that
she had done so on December 13 when Kwasniewski
asked for a layoff slip and Wilson agreed to give it.
Turning to the defense of the 'alleged termination, it is
to be noted that as late as May 8 Respondent was still
standing on the claim of a voluntary quit and that it was
not until Smith took the stand that Respondent first
advanced the defense that Kwasniewski was in fact
terminated on November 12, a time when it knew or
could easily have learned 'that Kwasniewski was still
receiving' benefits as an employee Yet Respondent did
nothing to notify its insurance carrier she was no longer
employed and it never notified Kwasniewski she was
terminated
Moreover, Smith's testimony was'plainly impeached by
his prior response to the charge, prepared by submission
to the Board on May 8 There Smith advanced the
defense that when Kwasniewski called in (on January 251),
Wilson informed her she was considered a quit, in part
because she did not 'report to work on November' 18
Smith's testimony that he discharged Kwasniewski 'on
November 12 was not only plainly inconsistent with his
prior statement but it was inconsistent as well with
Wilson's testimony and his own that they agreed, while
Kwasniewski waited on the telephone, that Kwasniewski
was a voluntary quit.
Murphy's testimony failed to establish that the issuance
of the change slip constituted a termination 'as such The
function of the slip was to notify the payroll agent to take
the employee off the payroll and Murphy did not issue
termination notices to employees Significantly also,
Murphy 'pointedly failed to corroborate Smith's testimony
that it was he who directed her to prepare the form,
explaining instead that she usually asked Wilson about
making payroll changes and that she probably asked him
whether she should take Kwasniewski off the payroll
Though the notice issued by the Industrial
Commissioner on January 15 referred to an involuntary
separation from employment, it was not only- based on
evidence which Respondent supplied, but it indicated that
Kwasniewski's disability continued until December 18
Furthermore, as late as May 8 Smith continued to
advance the defense of a voluntary quit in his response to
V & H INDUSTRIES, INC.
the charge.
The record contained little else of significance on the
issues Though Kwasniewski's testimony, in the former
case seemed somewhat equivocal on the question whether
she was employed 'by Respondent at the time, she
answered affirmatively on rebuttal the question whether
she once worked for Respondent and/or still did Both
questioner and witness appeared to be using the term
employed as synonymous with working, and 'in the present
hearing Kwasniewski testified that her employment lasted
for approximately 2 years from January 27, 1967
Furthermore, Respondent based no part of its claim that
Kwasniewski had quit on her testimony in the former
case
As is seen on analysis Respondent's evidence tended not
to refute but to confirm the inference established by the
General Counsel's evidence that Respondent refused to
reinstate Kwasniewski to her former position because she
testified in the prior hearing. Though Respondent
presently seeks to minimize the adverse effects of her
testimony, the Trial Examiner in that case specifically
relied upon it in respects previously noted herein,
including unlawful conduct which Kwasniewski attributed
directly to Smith See 177 NLRB No 118 Furthermore,
Smith himself conceded that Kwasniewski's testimony was
a matter of concern to him
I therefore conclude and find upon the entire evidence
that Respondent failed and refused to reinstate
Kwasniewski to her former position - on' and after
December 1968, because she gave testimony under the Act
in the prior case. By so discriminating against
Kwasniewski, Respondent engaged in unfair labor
practices within the meaning of of Section 8(a)(4) and (1)
of the Act
I cannot find however, that the General Counsel
established by a preponderance of the evidence the
complaint allegation that reinstatement was refused
because Kwasniewski was a member of the Union or
because of her union or concerted activities
Upon the basis of the foregoing findings of fact and
upon the entire record in the case I make the following
CONCLUSIONS OF LAW
I By failing and refusing to reinstate Rita Kwasniewski
to her former or substantially equivalent position of
employment on and after December 13, 1968, because she
gave testimony under the Act, Respondent engaged in
unfair labor practices within the meaning of Section
8(a)(4) and (I) of the Act
2 The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act
3 Respondent did not engage in unfair labor practices
within the meaning of Section 8(a)(3) of the Act
THE REMEDY
Having found that Respondent engaged in certain
unfair labor practices I shall recommend that it cease and
desist therefrom and that it take certain affirmative action
as outlined below, which I find to be necessary to remedy
and to remove the effects of the unfair labor practices and
to effectuate the policies of the Act.
Because of the nature of the unfair labor practices
found herein and by the Trial Examiner in the former
case, 177 NLRB No 118, and for the reasons stated by
the Examiner under the Remedy section of that decision, I
shall recommend a broad cease and desist order.
Upon the foregoing findings of fact and conclusions of
699
law and the entire record and pursuant to Section 10(c) of
the Act, I hereby issue the following
RECOMMENDED ORDER
V & H Industries, Inc., its officers, agents, successors,
and assigns, shall
1. Cease and desist from
(a) Discriminating against employees by refusing to
reinstate them because they have given testimony under
the Act or in any other manner discriminating against
them in regard,to hire or tenure of employment or any
term or condition of employment.
(b) In any other manner interfering with, restraining or
coercing employees in the exercise of their rights to
self-organization, to form, join, or assist International
Union of Electrical Radio and Machine Workers,
AFL-CIO-CLC, or any other labor organization, to
bargain collectively through representatives of their own
choosing or to engage in other concerted activities for the
purpose of collective bargaining or other mutual aid' or
protection, or to refrain from any or all such activities
except as provided in Section 8(a)(3) of the Act
2 Take the following affirmative action
(a) Offer to Rita Kwasniewski immediate and full
reinstatement to her former or substantially equivalent
position, without prejudice to her seniority or other rights
and privileges, and make her whole for any loss of
earnings she may have suffered by payment to her of a
sum of money equal to that which she would have earned
from December 13, 1968, to the date of the offer of
reinstatement less her net earnings during such period
(Crossett Lumber Company. 8 NLRB 440), said backpay
to be computed on a quarterly basis in the manner
established by the Board in F W Woolworth Company,
90 NLRB 289, together with interest thereon at the rate
of 6 percent per annum Isis Plumbing & Heating Co ,
138 NLRB 716
(b) Preserve and, upon request, make available to the
Board or its agents, for, examination and copying, all
payroll records, social security records, timecards,
personnel records and reports, and all other records
necessary to analyze the amount of backpay due under
this Recommended Order
(c) Post at its plant and offices at Buffalo, New York,
copies of the attached notice marked "Appendix "3 Copies
of said notice on forms provided by the Regional Director
for Region 3, shall, after ' being duly signed by
Respondent's representative, be posted by it immediately
upon receipt thereof and be 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 3, in
writing within 20 days from the receipt of this Decision,
what steps Respondent has taken to comply herewith °
'In the event that this Recommended Order is 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 is enforced by a decree of the 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 is adopted by the Board,
this provision shall be modified to read "Notify the Regional Director for
Region 3, in writing within 10 days from the date of this Order, what steps
Respondent has taken to comply herewith "
700 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I RECOMMEND that the complaint be dismissed insofar
as it alleges that Respondent engaged in unfair labor
practices within the meaning of Section 8(a)(3) of the Act
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 refuse to reinstate employees or
discriminate against them in any other manner because
they have given testimony under the Act
WE WILL NOT in any other manner interfere, with,
restrain or coerce employees in the exercise of the
rights to self-organization, to form, join or assist
International Union of Electrical Radio and Machine
Workers,' AFL-CIO-CLC, or any other labor
organization, to bargain collectively through
representatives of their own choosing or to engage in
other concerted activities for the purpose of collective
bargaining or other mutual aid or protection, or to
refrain from any or all such activities except as
provided in Section 8(a)(3) of the Act.
WE WILL offer to Rita Kwasniewski immediate and
full reinstatement to her former or substantially
equivalent position, without prejudice to her seniority or
other rights and privileges , and make her whole for any
loss of earnings she may have suffered by reason of our
discrimination against her '
All our employees are free to become, remain or refrain
from becoming members of International Union of
Electrical, Radio and Machine Workers, AFL -CIO-CLC,
or any other labor organization , except as provided in
Section 8(a)(3)
V & H INDUSTRIES, INC
(Employer)
Dated By
(Representative) (Title)
Note We will notify ' any of the above-named
employees 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, 4th Floor, The
120 Building, 120 Delaware Avenue, Buffalo, New York
14202, Telephone 716-842-3100.