Wayne Register Co.

National Labor Relations Board - Board Decisions

Aug 16, 1979

244 N.L.R.B. 252 (N.L.R.B. 1979)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Wayne Register Company, a Division of Alan Kitt,
Inc. and District 77, International Association of
Machinists and Aerospace Workers, AFL-CIO.
Case 18-CA 5792
August 16, 1979
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS PENELLO
AND TRUESDALE
On June 7. 1979, Administrative Law Judge Ber-
nard Ness issued the attached Decision in this pro-
ceeding. Thereafter, the General Counsel filed excep-
tions and a supporting 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,' 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 Or-
der of the Administrative Law Judge and hereby or-
ders that the complaint be, and it hereby is, dismissed
in its entirety.
I The General Counsel has excepted to certain credibility findings made by
the Administrative Law 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 his findings.
DECISION
STATEMENT OF THE CASE
BERNARD NESS, Administrative Law Judge: Upon an un-
fair labor practice charge filed on April 27, 1978, by District
77, International Association of Machinists and Aerospace
Workers, AFL-CIO, herein called the Union, against
Wayne Register Company, a Division of Alan Kitt, Inc.,
herein called Respondent, a complaint issued on October
30, 1978. The complaint alleged that Respondent violated
Section 8(a)(1) and (3) of the Act by discharging Harold
Berzins on April 14, 1978, because of his activities on behalf
of the Union. Respondent has denied the commission of
any unfair labor practices. A hearing was held before me on
December 19, 1978, at Minneapolis, Minnesota.
Upon the entire record, including my observation of the
witnesses and after due consideration of the briefs filed by
the General Counsel and Respondent,' I make the follow-
ing:
FINDINGS OF FACrI
I. THF BUSINESS OF RESPONDENT
Respondent, a Minnesota corporation, with its place of
business located in St. Louis Park, Minnesota, is engaged in
the manufacture, sale, and distribution of air registers and
related products. Based on its operations since March 28.
1978, when Respondent commenced operations, it is pro-
jected that Respondent will annually manufacture, sell, and
ship products valued in excess of $50,000 directly to points
outside the State of Minnesota from its St. Louis Park facil-
ity. The parties agree and I find that Respondent is engaged
in commerce within the meaning of Section 2(6) and (7) of
the Act.
11. THE LABOR ORGANIZATION INVOLVEI)
The parties agree and I find that the Union is a labor
organization within the meaning of Section 2(5) of the Act.
III. TIHE ALLEGED UNFAIR LABOR PRA(CTI(CES
Prior to late March 1978 the plant was owned and oper-
ated by Midco Mfg. Co. The employees were represented
by the Union. In late March 1978, while Midco and the
Union were in the midst of contract renewal negotiations,
Respondent purchased certain assets of Midco. Wayne A.
Pokorny is the principal owner of Respondent. He was in-
troduced to the employees in the last week in March by the
principal owner of Midco as the new owner of the facility.
Pokorny then announced to the employees that the plant
would be run as a nonunion shop. He welcomed the em-
ployees to stay on and said that if they agreed to forgo
having the Union as their bargaining representative they
would retain their same salaries and other benefits.2 Berzins,
the alleged discriminatee, and Julian King, union steward,
posed most of the questions at this meeting. On April 3
Respondent commenced operations with most of the same
employees. John Riley, who had been the general manager
of Midco Mfg., was retained by Pokorny to run the plant.
Pokorny was unfamiliar with the plant operations and vis-
ited the plant daily early in the morning and again after 5
p.m. During the remainder of the day he practiced law at
his law office away from the plant.
Harold Berzins had been employed at this same plant
since 1971 and was a leadman since summer 1972. He was
a union member during his entire period of' employment.
He was discharged on April 14, 1978. There were about 12
production employees during this period. Berzins was the
leadman in the assembly department. Also employed in
that department were Alma Gardinier. Nancy Gross, and
Despite the late filing by Respondent I have read its brief.
2 See G.C. Exh. 3. Pokorny, an attorney, testified that he was not knowl-
edgeable on labor law at the time,
244 NLRB No. 39
252
WAYNE REGISTER COMPANY
Shirley Murphy. When Respondent commenced operations
on April 3 there were two painters. one identified in the
record as Rebecca. 3 the other as John Kowlanowski. Ber-
zins testified that he was never told he was leadman over
the painters although he relayed orders from management
personnel to the painters and did painting himself. Riley. a
witness for the General Counsel, testified that Berzins was
also leadman over the painters.4 I find it unnecessary to
decide this question, but I do find that Pokorny believed
Berzins was the leadman. Berzins did relay instructions to
the painters from supervision, but his principal function
was in the assembly department.
On April 12 Union Business Representative Schoenborn
telephoned Berzins at his home and asked Berzins to set up
a meeting with the employees for the following evening,
April 13.' Early in the morning on April 13 Berzins in-
formed the employees of the union meeting and urged them
to attend, Later that morning Berzins' wife called the plant
and spoke to the secretary. She asked that a message be
given to her husband to the effect that she had a ride home
that afternoon, and he could go to the union meeting.' The
secretary relayed the message to Riley who, in turn, passed
it on to Berzins. Riley' testified that the was told by Berzins
of his role in setting up the meeting.' Early in the day on
April 14 Gardinier and Murphy told Riley that they were
quitting at noon but gave no reason. Riley called Pokorny
at his office and told him of the pending resignations. Po-
korny said that he would be over to talk to the girls. When
Pokorny came to the plant he told the girls that he wanted
to get a handle on what was wrong with the operations at
the plants and asked them why they were quitting. They
said that they had had enough of the way things were done
but refused to elaborate. Berzins' name was not mentioned.
They then accepted Pokorny's invitation to lunch. Murphy
and Gardinier both testified that the first thing Pokorny
said when they met him at the restaurant was that Berzins
would be fired that evening. Pokorny credibly denied mak-
ing this statement at the time. He did so state later in the
conversation. The luncheon meeting lasted about 2 hours.
The conversation included opinions by Murphy and Gardi-
nier about other personnel in the plant. They told Pokorny
that Riley was arbitrary and caused friction among the em-
ployees. making it difficult to work in such an atmosphere.
With respect to Berzins, Murphy said that he was not the
fastest worker. Gardinier, who had been employed at the
plant about 7 months, told Pokorny that Berzins insisted
she operate a machine with the materials to be used in the
operation placed by the machine in such manner compel-
Rebecca quit a few days before Berzins' discharge to return to her previ-
ous place of employment.
' Pokorny personally lacked familiarity with the personnel. He testified
that he believed Berzins was also the leadman over the painters.
'Beins was called because the Union's steward had no telephone.
6 She worked elsewhere, and they had driven to work together.
Pokorny denied being told by Riley of the meeting or Berzins' role. Riley
had no independent recollection of telling Pokorny, but stated that he re-
ported anything of interest to Pokorny every afternoon when Pokorny came
to the plant and, in accordance with his normal procedure, he believed that
he informed Pokorny of the meeting the afternoon of April 13. 1 am con-
strained to find that Pokorny had knowledge of the meeting, but, as stated
below, this was not a factor in discharging Berzins.
8 Midco Mfg. Co. had been operating at a loss.
ling her to use her right hand rather than her left hand.?
Gardinier also told Pokorny that she was disgusted because
at times when she needed help or parts Berzins was not
available. Pokorny told the girls that he would keep Riles
out of the assembly department and Berzins would be dis-
charged. but Pokorny first wanted to personally learn more
about the plant operation before taking this action. Po-
korny also asked them if they would return if Berzins was
discharged. They agreed to return to work the following
Monday, and together with Pokorny contrived a storN to be
told to employees explaining that the, returned to work
because Pokorny had called them on the weekend asking
them to return. This fabrication was to negate any inference
employees might draw that Berzin's discharge was attribut-
able to Gardinier and Murphy.' ° Pokorny then returned to
the plant. He told Riley of his luncheon meeting with the
two girls. and that they said that they had intended to quit
because of Berzins. PokornN also stated that Berzins was a
leadman over five employees and that four had now quit.'
He directed Riley to discharge Berzins and cautioned him
not to divulge to Berzins that he was discharged as a result
of Pokorny's meeting with Gardinier and Murphy. lie said
that the girls would be back at work on MondaN. Pokorny
later telephoned Riley from his office and directed Rile to
be sure to discharge Berzins or he himself would he dis-
charged. At the end of the workday, pursuant to Pokorn's
instructions, Berzins was discharged.
Respondent had just purchased the Company. and it was
losing money. Pokorny was not familiar with the operation
and was attempting to improve it. When Gardinier and
Murphy disclosed their criticisms of Berzins to him at the
luncheon meeting, he felt that Berzins was the source of
dissatisfaction causing employees to quit. and that he
should be removed. It should be noted that Riles himself
was discharged I week later fr incompetency.
It is undisputed that Pokorny did not want to deal with
the Union as the bargaining representative. Although he
was aware of a union meeting to be held. I do not believe
that the record supports a finding that Berzins was dis-
charged for telling the people to attend. Pokorny struck me
as a member of the legal profession, moonlighting as an
owner of a plant with almost a total unfamiliarity with its
I Gardinier was left-handed, and due to a disability she lacked dexterit in
her right hand. She testified that Berzins had insisted only one time that she
operate the machine his way and this happened months before Since then,
according to her testimony. she had worked the machine her was, making
full use of her left hand. I discredit this testimony It strains credulity that
she would have raised this with Pokorny ifil had only happened months ago.
only once, and that the difficulty had been eliminated
ia Both Gardinier and Murphy attempted In their testimonies to soften
their criticism of Berzins and denied that their intention to quit was in any
way because of Berzins. I am convinced that their criticisms of the plant
operations, as conveyed to Pokorny. were directed principally against Riles
and Berzins. Pokorny too attempted to embellish what was said at the lun-
cheon. The recitation described above is a snthesis of the credited testimo-
nies of these three concerning the luncheon meeting based on their demea-
nor, the probabilities, and the entire record.
H Pokorn) testified that he initially thought Rebecca had quit only to
return to her prior place of employment. but after talking to the two girls he
then believed that Berzins was a motivating factor for Rebecca's resignation.
He counted four having quit because of Bernins: the fourth was a painter
Being unfamiliar with the personnel. he ma er, well have miscounted.
253
DECISIONS ()F NAIIONAL LABOR RELATIONS BOARI)
operation at the time of Berzins' discharge. From my obser-
vation of him while testifying and the record testimony. I
believe him to be an impulsive individual who abruptly
concluded to discharge Berzins. believing Berzins to be re-
sponsible for the resignations of employees. Accordingly. I
find that the evidence is insufficient to support a finding
that the discharge of Berzins was attributable to unlawful
considerations. I shall therefore recommend that the com-
plaint be dismissed.
CON( I USIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. Respondent has not engaged in the unfair labor prac-
tices alleged in the complaint.
Upon the basis of the above findings ot tact, conclusions
of law, and the entire record in this case, and pursuant to
Section 10(c) of the Act. I herebN issue the tollowing recom-
mended:
ORDER' 2
The complaint is dismissed in its entirety.
1' In the event no exceptions are filed as provided b Sec. 102.46 of the
Rules and Regulations of the National I.abor 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 objecions hereto shall be deemed
waived for all purposes.
254