Weather-Shield Corp.

National Labor Relations Board - Board Decisions

Feb 27, 1976

222 N.L.R.B. 1171 (N.L.R.B. 1976)

WEATHER-SHIELD CORPORATION
Weather-Shield Corporation and International Union,
United Automobile, Aerospace & Agricultural Im-
plement Workers of America , Local 55. Cases
3-CA-5876, 3-CA-5876-2, and 3-RC-6179
- February 27, 1976
DECISION, ORDER, AND DIRECTION
BY MEMBERS JENKINS, PENELLO, AND WALTHER
On November 5, 1975, Administrative Law Judge
Eugene E. Dixon issued the attached Decision in this
proceeding. Thereafter, Respondent and the Charg-
ing Party filed exceptions and the Respondent filed 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, as modified herein,
in Cases 3-CA-5876 and 3-CA-5876-2, and his rec-
ommendations with respect to the disposition of the
issues raised in Case 3-RC-6179.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge as modified
below and hereby orders that the Respondent,
Weather-Shield Corporation, Buffalo, New York, its
officers, agents, successors, and assigns, shall take
the action set forth in the said recommended Order,
as so modified:
1. Substitute the following for paragraph 2(a):
"(a) Offer to Murray Miller and Ira Schwartz im-
mediate and full reinstatement to their former posi-
tions or, if those positions no longer exist, to substan-
tially equivalent ones, without prejudice to their
seniority or other rights and privileges and make
them whole for any loss of earnings or other econom-
ic loss suffered by them in the manner set forth in the
section entitled `The Remedy."'
2. Substitute the attached notice for that of the
Administrative Law Judge.
IT IS FURTHER ORDERED that Case 3-RC-6179 be,
and it hereby is, remanded to the Regional Director
for Region 3 as provided below.
DIRECTION
1171
It is hereby directed that, as part of the investiga-
tion to ascertain a representative for the purpose of
collective bargaining with the Respondent-Employer,
the Regional Director for Region 3 shall, pursuant to
the Board's Rules and Regulations, within 10 days
from the date of this Direction, open and count the
ballots cast by Murray Miller and Ira Schwartz, and
thereafter cause to be served on the parties a revised
tally of ballots including therein the count of the
above-named ballots. Thereafter, the Regional Di-
rector shall issue the appropriate certification in ac-
cordance with the Board's Rules and Regulations.
' In the second paragraph of "The Remedy" section of the Administrative
Law Judge's Decision, the Administrative Law Judge inadvertently includ-
ed Richard Schmelz as a dischargee The name should , of course, be Ira
Schwartz.
The Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to over-
rule 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 F2d 362 (C.A 3, 1951). We have carefully
examined the record and find no basis for reversing his findings.-
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discourage membership in In-
ternational Union, United Automobile, Aero-
space & Agricultural Implement Workers of
America, Local 55, or any other labor organiza-
tion, by discharging or in any other manner dis-
criminating against employees in regard to hire
or tenure of employment or any term or condi-
tion of employment.
WE WILL NOT threaten employees with dis-
charge, plant closure, or other reprisals if they
become or remain members of International
Union, United Automobile, Aerospace & Agri-
cultural Implement Workers of America, Local
55.
WE WILL NOT initiate, sponsor, or promote the
formation of an employees' committee to deal
with us concerning employees' wages, hours,
and working conditions.
WE WILL NOT in any other manner interfere
with, restrain, or coerce employees in the exer-
cise of their rights to self-organization, to join or
assist International Union, United Automobile,
Aerospace & Agricultural Implement Workers
222 NLRB No. 187
1172 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of America, Local 55, or any other labor organi-
zation, to bargain collectively through represen-
tatives of their own choosing, and to engage in
concerted activities for the purpose of collective
bargaining or other mutual aid or protection, or
to refrain from any or all such activities.
WE WILL offer Murray Miller and Ira
Schwartz immediate and full reinstatement to
their former jobs or, if they no longer exist, to
substantially equivalent positions without preju-
dice to their seniority or other rights and privi-
leges, and WE WILL make them whole for any loss
of earnings or other economic loss suffered by
them as a result of our discrimination against
them.
WEATHER-SHIELD CORPORATION
DECISION ,
STATEMENT OF THE CASE
EUGENE E. DIXON, Administrative Law Judge: Upon
duly served charges filed on November 6, 1974, in Case
3-CA-5876 and on November 8, 1974, in Case
3-CA-5876-2 by International Union, United Automo-
bile, Aerospace & Agricultural Implement Workers of
America, Local 55 (herein the Union), alleging that Weath-
er-Shield Corporation (herein Respondent or Company)
had engaged in and was engaging in unfair labor practices
in violation of the National Labor Relations Act, as
amended (61 Stat. 136), herein called the Act, a representa-
tive of the General Counsel of the National Labor Rela-
tions Board (herein the General Counsel and the Board)
issued an amended consolidated complaint and notice of
hearing alleging violation of Section 8(a)(1) by certain
specified acts and of Section 8(a)(3) by the discharge of
Walter Brown, Murray Miller, and Ira Schwartz.
In its duly filed answer, Respondent denied the commis-
sion of any unfair labor practices.
Consolidated with the foregoing is Case 3-RC-6179 in
which the challenges to and the counting of the ballots of
the three alleged 8(a)(3) discriminatees and Charles Torch,
Sr., hinges on and will be determined by the disposition
made in the complaint case of the discrimination charges
and the supervisory status of Torch.
Pursuant to notice the matter was heard at Buffalo, New
York, on May 13, 14, and 15, 1975, with all parties repre-
sented by counsel.
Upon the entire record of the case and from my observa-
tion of the witnesses, I make the following:
FINDINGS OF FACT
1. THE BUSINESS INVOLVED
At all times material Respondent has been a corporation
duly organized under and existing by virtue of the laws of
the State of New York and has maintained its principal
office and place of business at 1687 Main Street in Buffalo,
New York, and operates plants at 1755 Elmwood Avenue
and at 31 Barker Street in Buffalo and has been engaged at
said plants in the manufacture, sale, and distribution of
loading dock enclosures and related products. During the
year preceding issuance of the complaint, Respondent in
the course and conduct of its business operations manufac-
tured, sold, and distributed at its Buffalo plants products
valued in excess of $50,000, which products were shipped
from said plants directly to States of the United States
other than the State of New York.
At all times material, Respondent has been an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
II. THE LABOR ORGANIZATION
International Union, United Automobile, Aerospace &
Agricultural Implement Workers of America, Local 55, at
all times material has been a labor organization within the
meaning of Section 2(5) of the Act.
Iii. THE UNFAIR LABOR PRACTICES
The Supervisory Status of Torch
In the fall of 1974 the manager of Respondent's Elm-
wood plant was Richard Schmelz. Under him as leadmen
were Dennis Repetowski over the RB 500 section, George
Lowry over shipping, Bill Huggins over foam, Murray
Miller over welding, and Charles Torch, Sr., over the 600
line. Torch was the oldest man in seniority at the Elmwood
plant and was one of three people (the other two admitted
supervisors) who were entrusted with keys to the plant.
In early September, Schmelz was tranferred to the Main
Street plant to take charge of some remodeling of that fa-
cility. He remained on this assignment until mid-Novem-
ber, devoting all his time to that project except for a weekly
visit of a couple of hours to the Elmwood plant, usually on
Friday afternoon and telephone contact with it during the
rest of the time. Witnesses for the General Counsel testified
that Schmelz told the Elmwood employees that Torch
would be in charge during his absence. In his testimony,
Schmelz admitted that he "may have" told the employees
that Torch was his assistant foreman and that he was put-
ting Torch in charge during his absence.' I credit the Gen-
eral Counsel's version.
Respondent contends that Torch was not a supervisor at
any time. I believe that the foregoing evidence on its face
contradicts Respondent. By putting Torch in charge during
the absence of an admitted supervisor, Torch ipso facto
became a supervisor or at least during the period of such
absence. In any event Torch's conduct during that period
confirms it. In this respect a summary of the credited evi-
dence shows that Torch: (1) changed from spending about
7 out of 8 hours on production tasks to 1 out of 8 hours-
the remaining 7 being devoted to checking on the overall
operation of the plant; (2) instead of wearing work clothes
1 In his testimony, Respondent's president, Thomas Higgins, would have
me believe that no one was in charge at Elmwood in Schmelz 's absence
WEATHER-SHIELD CORPORATION 1173
he changed to more genteel garb; (3) interviewed job appli-
cants noting his recommendation on their applications,
two of whom went to work, after being interviewed- by no
one but Torch who told them to report to the Main Street
plant the next day prepared to go to work; (4) had authori-
ty to and did transfer,, direct, and order the employees
around the entire plant at his discretion;' (5) checked all
timecards for "verification to the payroll division" of the
hours worked by- the employees (any changes made by
Torch were controlling on the payroll division); and (6)
reprimanded employees. I find Torch to have been a super-
visor within the meaning of the Act at all times material.
Section 8(a)(1)
Ira Schwartz was hired by Respondent on August 30,
1974. In early September, Schwartz contacted Donald
Waldron, union business representative, concerning union
representation for the employees. Waldron outlined the
procedure to be followed and suggested that Schwartz talk
to his fellow employees to ascertain their attitude about
unionization. Schwartz thereupon discussed the Union
with the employees,3 most of whom were in favor of the
Union.
In mid-October during their lunchbreak, the employees
at the Elmwood plant began a discussion of the benefits of
unionization in the lunchroom. Murray Miller went into
the office and invited Torch into the lunchroom and asked
him how Thomas Higgins, Respondent's president, felt
about the employees joining a union. Torch replied that
Higgins "was dead set against the union in his company";
that "in the past a couple of guys tried to organize a union
in the shop and they were immediately fired when Higgins
heard about their activity"; that "if Higgins heard (they)
were going to try to get a union, he would fire the whole
crew and hire a new staff in this factory." Torch also said
"that Higgins is so much against the union that he would
move his plant to a southern state." Torch suggested that if
the employees were "dissatisfied with Weather-Shield"
they should leave and find jobs elsewhere.
On or about October 18 employee James Keddie was
terminated. Shortly thereafter Schwartz questioned Torch
about the discharge. As to this conversation Schwartz testi-
fied as follows:
Well, James was fired at that time and James was, you
know, well liked in the company. He was working just
about a year and a-half or so, and at least all the em-
ployees liked him. He was a very friendly guy, and
after most` of the guys heard that he got fired and the
rumor was that he was fired for having a bad attitude,
and most of the guys felt very bad about it, and subse-
quently I approached Charlie Torch and I asked him
what happened to Jim Keddie, and he said, well,
James was fired for havinga bad attitude, and he fur-
2 A dispute that arose between Torch and the welding area supervisor,
Eric Jessiman, as to who had priority in this respect was resolved in Torch's
favor by Schmelz
3 He worked for a time at the Main Street plant prior to being transferred
at his request back to the Elmwood plant.
4 An indication that the employees considered Torch to be a supervisor.
ther said that that should be a lesson to all of us that-
or an example that you know, if we get out of hand, if
we talk about a union, if we demand pay raises, if we
request benefits at all, Higgins wouldn't think twice
about firing us, he wouldn't have-any reservations. He
said look at James Keddie, he was working here for
about a year and a-half or so, and Higgins doesn't
care one way or the other. And despite the -fact that
Jim Keddie had a very, very good work record at
Weather-Shield. That's about it.
Schwartz also testified as follows about another conver-
sation with Torch several days later:
Well, it was one Saturday and Charlie Torch and I
were working at the Weather-Shield plant to catch up
on some back orders, and we had a lengthy discussion
about various things, but one thing was about unions,
and he said that about a year, you know before, I
guess 1973 or something, under the old plant manager
and Higgins, two guys tried to organize a union, and
when Higgins and the old plant manager heard about
this, these two guys were immediately fired, and they
threatened these two guys to call the cops if they
didn't leave the plant immediately. And Torch again
warned me about talking to the fellows about trying to
organize a union.
... he said . . . if the word gets around, namely, if
Higgins hears about it, he would fire me immediately
Torch testified that he had a discussion about a union
with the employees in mid-October but there was no denial
by him of Schwartz's version of the remarks made by
Torch. On the contrary Torch admitted he may have said
something about the Company moving south. I credit
Schwartz. I also credit Schwartz's testimony about the re-
marks he claims Torch made in connection with the dis-
charge of Keddie and his subsequent remarks regarding
the 1973 attempt to organize notwithstanding Torch's deni-
al of such remarks.'
About_ the second week in November a meeting of all
employees was held at the Main Street plant. The assem-
bled employees were addressed by Respondent's president,
Higgins. He told them, according to the testimony of Eu-
gene Torres, that he knew "that they were trying to get a
union in there" 6 and that if they wanted a union "he was
happy to have it" that it was up to the employees. Torres
further testified that when Higgins finished he left the em-
ployees in the room telling them to-discuss their problems
among themselves.' The supervisors were not to be present.
5 Torch definitely did not impress me as a truthful witness. An example of
his unreliability is shown by his testimony (1) that he "never" had any
knowledge that the employees were seeking to have a union and (2) that he
first heard about the union effort to organize the employees after the dis-
missals of Miller and Schwartz-weeks after his mid-October union discus-
sion with the employees.
6 They had already held their first meeting.
7 Production coordinator Lytle testified that prior to the meeting Higgins
told him and Eric Jessiman that he was going to read a statement to the
employees and that he wanted Lytle and Jessiman to come and listen, add-
ing, "and then we've got to leave because we can 't hang around ." At the
Continued
1174 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Nonetheless Torch remained with the employees and
played a.leadmg role in the discussion -and action that fol-
lowed. Torch did most of the talking.8 He pointed out how
bad unions were . A big argument developed because some
of the employees wanted- and some did not want a union.
Finally Torch steered them into the appointment of a-com-
mittee suggesting that a secret ballot be taken.9 Torch be-
came one of the three members of -the committee. He asked
if it was all right if he represented the Elmwood employ-
ees.10 No one objected. The employees were supposed to
get together with their committee representative and list
the things they "wanted to change and then the three rep-
resentatives were to meet with Mr. Higgins and discuss this
and see what they could do about it."
About what happened subsequently Torres testified as
follows: -
He [Torch] came back and he said that Mr. Higgins
wanted-us to call off the union for 30 days, or some-
thing like that, 30 days or four weeks II so then he
could speak with us, because he couldn't speak with us
as long as we were dealing with the union, and that,
and you know, he would speak to us if we would call
off the union, because as long as we got the union we
couldn't-once we got the union we couldn't get out
of it, or something.
An overall reading of Torch's version of the mid-Novem-
ber meeting tends to confirm Torres' version which I cred-
it.
The foregoing credited evidence clearly shows as alleged
in the complaint that Respondent by its agent or supervisor
Charles Torch "threaten(ed) its employees with discharge,
plant closure, or other reprisals if they became or remained
members of the union or gave any assistance or support to
it" and thereby violated Section 8(a)(l) of the Act. I also
find that the mid-November meeting and its aftermath
called by Higgins was intended to and did "initiate, spon-
sor or promote the formation of an employees' committee
to deal with Respondent concerning employees' wages,
hours, and working conditions" which action constituted
another violation of Section 8(a)(l) as alleged.
Discrimination
Ira Schwartz
The hiring of Schwartz in August and the role he began
almost immediately in trying to bring in the Union has
meeting Higgins told the employees that he'd rather they didn't have a
union vote but that he couldn't stop them At the finish of his speech he told
them "you can go back to work or you can stay here and talk it over
between yourselves . "
S In his testimony Torch conceded he may have done so and that he "may
have" suggested that a committee be formed.
9 According to Torch's version, although he had suggested a secret ballot
vote, someone amended the suggestion for a voice vote which was taken
10 After first asking two or three others if they would take the position,
according to Torch.
11 Which would be after the union election that was scheduled for No-
vember 27. In this connection Higgins testified that he told Torch in this
conversation "this thing should all be to a head in a couple of weeks . . if
you decide then, maybe you'll be back to talk to me then or maybe, some-
thing will happen."
been noted. In all he contacted 25 to 30 employees- about
the,Union in both plants, passed out union authorization
cards during lunch hours, including cards to Murray Miller
and Denny Kurtz on November 5 (the day of his dis-
charge), and made numerous telephone calls in-connection
with his union effort. Schwartz worked in the Main Street
plant from about September 1 to about October 1 when at
his request he was transferred to the Elmwood plant. On or
about October 11 he was given a 25-cent increase.
At 4:30 p.m. on November 5 Torch informed Schwartz
and John Keddie that they were being laid off. According
to Schwartz' testimony he asked why. Torch replied that it
was because of a lack of work. Schwartz protested that as
the reason because there was an abundance of work avail-
able. Murray Miller who was at the scene questioned why
Schwartz was being let out before about 50 percent of
those with less seniority,12 and said he-was "going-to quit
the plant because he didn't like the way the company was
handling the employees."
At this point Torch said he would make a phone call to
see if the order could be, changed. He did so and came
back to say that Keddie had been reprieved, but that
Schwartz was to be laid off. Schwartz then got permission
to call Main Street and talk to Schmelz about which he
testified as follows:
Tasked him why was I being laid off, and he said
the same thing as Torch, lack of work, and I repeated
the same thing. I said, well, you know, if you would
come to this plant you'd see how many orders we had
and how much work has to be put out, and then he
said, well, actually you're being laid off because you
have a bad attitude. And I heard these reports-this is
Dick Schmelz-he said I've had reports from Charlie
Torch that you have a very bad attitude.
And I responded to that by saying two things. One
was that earlier that day Torch praised me on my
work, and two, that two weeks before that day, two
weeks before November 5th, I received a 25 cents
raise, which was so hard to get, and one thing about
that raise was that you really had to prove yourself as
an able bodied worker- to get that raise,13 because
mostly guys didn't get that raise after two or three
months, and I got the raise after about a month and
'a-half and I said, you know, if that's true that I have a
really bad attitude, why did Charlie Torch give me the
raise and why has Charlie Torch continually said that
I do pretty good work? And he said, well, I've heard
from other people that you've got a bad attitude and I
said, you know, tell me who those people were, and he
didn't say anything to that. And that ended the con-
versation and I turned the phone over to Charlie
12 Because some personnel had been assigned to the Main Street remodel-
ing several new people had been hired for the production work in mid-
October It was these people whom Torch interviewed as part of his supervi-
sory duties They had applied at the Elmwood plant in accordance with
directions given in the help-wanted advertisement
13 Schmelz testified that "normally [employees] would get an automatic
raise after 90 days, after the probationary period which was a full 90 days,
they would get a 25 cent raise. They could possibly get it sooner if they were
extra good employees, if [they] really worked out ... and did good work
for the company, then I'll see that he gets a raise sooner .. possibly after
30 days."
WEATHER-SHIELD CORPORATION 1175
Torch. Before I gave him the phone I asked him did he
give Dick Schmelz bad reports about me, and he de-
nied the whole thing.
It was now quitting time and Schwartz made an an-
nouncement to those waiting to punch out that there was
going to be a union meeting that night. At this point two
employees from the Main Street plant came in and an-
nounced that they too had been "laid off or fired because
of having a bad attitude."
On November 8, Schwartz went back to, the plant to get
his check. About this he testified credibly and without de-
nial as follows:
November 8th I think was a Friday and I returned to
the Elmwood plant to pick up my last check, last pay-
check, and I went along with Wally Brown, Wally
Brown picked me up, and we went together. And we
went into the plant and Charlie Torch gave both of us
our paychecks and after that Torch took Wally Brown
aside and they were talking, and I was standing close
to them so I was able to overhear most of what they
were talking about. And one of the things Charlie told
Wally was, that he should go out and find himself a
better job. He said-' it's not worth fighting for his job,
he said it's not that important. And then Charlie
walked over to me and he asked me point blank who I
am. He just wanted to know who I am and I looked at
him, you know, very puzzled, and I said, "What do
you mean by that question?" and he said, "Well,
you're the union paid organizer." And he said, you
know, "You should feel very bad. You should feel sad
that you're responsible for all these guys being laid off
and fired." Because I guess I was the most instrumen-
tal in trying to get the union in. He said that I should
feel bad. Whereupon I said, "Well, look, I certainly
don't feel responsible for them being fired. Everybody
made their, own decisions and I certainly didn't coerce
anybody or anything like that." And I was for the
union and you know, I mean I'm responsible for get-
ting the union in here, but I 'm not responsible for any-
body being fired. I said if anybody would be responsi-
ble it would be Higgins. He's the one that fired them.
And then I said, well, I'm going to fight to get my
job back. I said I didn't think I was fired justly and he
said that there's no way in the world I'll be able to get
my job back. And immediately after that he threw me
out of the plant.
Murray Miller
Miller was employed by Respondent for 7 months from
April 11 to November 6, 1974. He was an arc welder, ad-
mittedly an employee of superior capabilities,14 as demon-
strated by his being made a leadman in August.
Early on November 5, Miller signed a union card at the
request of Ira Schwartz who also indicated that there was
to be a union meeting that evening. Miller attended and
came away with some authorization cards for the men in
14 Schmelz testified that Miller "was an excellent welder for our purpos-
es." Torch testified that "his ability was terrific "
his area that had not attended the meeting . The next morn-
ing as soon as he got to work at approximately 8:30 he
passed them out to Walter Brown , Ray Villa, and a man
named Joe , who all filled them out then and there and
returned them to Miller.
At 11:20 that morning Miller had to go home with a
migraine headache , telling Torch that if his headache went
away he would be back. About what then transpired, Mill-
er testified as follows: -
... about half past one, roughly, maybe it wasn't
quite that time , I got a phone call. I went and an-
swered the phone, and at first I didn 't recognize whose
voice it was, and then Dick said it was him. So he told
me they were letting me go, and then I kind of woke
up and I said, "What, what did you say?" and he says,
"We're letting you go." And I says, "Wait a minute."
I says, "Where are you now?" He said him and Thom-
as Higgins were over at the Elmwood plant . I lived
around the corner on Amherst so it only took me a
couple minutes to get over there, so I told them don't
leave and I 'll be right there. So I went over there and
I walked in and I says, "Now tell me what is it you're
going to do?" And he says, "We're letting you go, lay-
ing you off." And I says, "Why?" And then he got
down on his absenteeism stuff.
Well, I know for the last couple months there I had
very little time off except for my five minutes late, or
whatever, you know, and he says, I'm not doing my
job in the welding area and I wasn 't taking care of the
things like they expected it, and he come on me with
all this horse, you know, so I says, "All right, don't
give me the runaround. Why are you letting me go?"
And at this point, Thomas Higgins turned around to
me and said, "We're closing the welding area down.
We're going to send all the work out. He started talk-
ing at the top of his voice. He says, "That's it, you're
through." I says, "Okay, that's what I asked for was a
straight answer."
And at this point, Ray Villa and Joe Krysak, two
new guys, one had been there two days and one had
been there maybe two weeks , were still working. I
said, "Well, what about them guys, If you're cutting
the welding area down you don't need anybody,
right?" He says, "Well, we'll keep them around to do
little odds and ends, bitty bittys, you know." So I says,
"Okay, no hard feelings." I didn 't argue with them or
nothing. I walked down to the welding area and got
my gear and walked out and said goodbye to the guys
in the lunchroom, nice working with you, and I
walked out the door.
The next day Miller returned to the plant to pick up
some of his belongings he had not taken with him the day
before and had a conversation with Torch which is unde-
nied and which I credit as follows:
I had left some of my stuff there. I went back to
pick it up, and I talked with Charlie. He followed me
to make sure I didn't take something that wasn't mine,
and that only took 10 , 15 minutes, and then I said to
Charlie, "I thought you were closing the welding area
1176 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
down and here's the other two guys had started mov-
ing so they can expand ." And he says, "Well, they're
just doing this work for now, you know." So I figured
okay, let them guys do all the work, I didn't care.
So then I says, "They're not closing this welding
area down, Charlie, you know it, too." He says, "I
know it." I says, "Well , what kind of a raw deal is
this?" He says, "Well, you know why you got laid off."
I says, "No, I don't know why." He says, "You know
why." I said, "No, Charlie, I don't know why. Tell
me," but he wouldn' t specifically come out and tell
me, you know . So I spoke what was on my mind, my
piece, and that. And that was it.
On November 27 Miller returned again to the plant for
the union election. He described the scene credibly and
without denial as follows:
... we were over there to vote and I 'm still under
the impression that they closed the welding area down,
you know, I'm trying to swallow that. And we went in
there for the election and they had completely expand-
ed the welding area from one end of the building pret-
ty near to the other, you know, moved the desk up, the
welding machines, the steel. We had worked in a room
maybe in an area not quite as big as this room, and
they had turned the steel the other way, restocked it,
you know. Had everything set up real nice. And I says,
"This is closing the welding area down ?" and they just
gave us one of those little snickers , you know, and that
was it. The rest I could figure out for myself.
Miller admitted that in September or October, after
Torch was put in charge, Torch and he had a "heated argu-
ment" in which Torch told him that his "absenteeism rec-
ord wasn't very good" and that he wasn 't doing his work.
At this time Torch threatened Miller with discharge. His
exact words according to Miller were "He was going to
kick my ass out the door." 15 On cross-examination Miller
testified that his absenteeism "never did boil right down to
being absolutely corrected" but that he had "tried [his] best
to be there on time and as often as possible."
Walter Brown
Brown was hired on August 13, 1974 , under some sort of
state-sponsored veterans ' apprentice program which paid
part of his wages. 16 On November 5, Brown, according to
his calculation , had a sick day coming.17 To be certain he
had his wife call Torch to confirm it. Torch did so. Brown
stayed out that day. The next day when he went in to work
he went to see Torch "to see that the sick day was taken
care of ...." Torch told him that he had been informed
that Brown had not been entitled to a sick day. Thereupon
a heated argument ensued . Brown admitted on cross-exam-
ination that he lost his temper , that he followed Torch
15 This was denied by Torch. I credit Miller. It is another indication of
Torch's supervisory status.
I6 The amount or percentage contributed by the state was not brought
out.
17 The policy apparently was that 1 day of paid sick leave was earned
every 90 days. Obviously Brown's calculation was in error.
around the plant for about 10 minutes , that he shouted and
swore at Torch, that he threatened Torch with bodily
harm, countering with the claim that Torch threatened "to
beat on him," 18 which claim he contradicted in the next
breath . Torch had suggested
_
that Brown call Schmelz
about the matter, which he did admitting that he shouted
at Schmelz over the phone but he could not remember
using obscenities.
In his testimony Brown corroborated Miller's testimony
that he signed an authorization card for Miller early on
November 6, explaining that this occurred in the welding
area in the presence of a couple of other employees. He
also testified about his discharge that day as follows:
after a big ruckus in the morning about that
sick day, maybe an hour later Dick Schmelz and Hig-
gins come over to the plant.
* *
And they talked with Charlie and they had a confer-
ence up there with him for about half an hour, and
then all of a sudden they come back to the welding
area and called me up to the office . And Higgins said
I was fired and Dick Schmelz says I was laid off and
then they didn 't know what was going on. They just
said I was terminated . I couldn't get no straight an-
swer out of them . 19 So then I stood around arguing
with them and asked them why, and finally one of
them said that there was no work . That they were
going to move the welding area out . So then I asked
Higgins if there was going to be anymore work if he'd
call me and he says yes. There was nothing else I
could do , so I left.
Respondent 's Evidence
Respondent 's president, Thomas Higgins, testified that
he was in Sweden for 2 or 3 weeks in the fall of 1974
returning to his office on Monday , November 4. His trip to
Sweden was a business trip , part of which involved negoti-
ation for the import of hydraulic tailgates . He contemplat-
ed that a welding operation on them would be done in the
Elmwood plant . At the suggestion of the Swedes however
he changed his mind and decided to have the welding done
in Sweden.
One of the first things Higgins did on his return was ask
for a report on his cash flow and receivables. He was told
that the "cash flow position was very poor," unpaid bills
dated back to August and shipments were "way down."
Further study showed that it was costing "20.44 percent
more labor to ship $100 worth of merchandise in '74 as
opposed to '73." Weighed against a 20-percent increase in
efficiency during that same period meant that they "were
off about 40 percent."
That afternoon he walked around the plant to find out
what was wrong. His conclusion was that he was over-
18 Torch, a man who appeared to be in his 50's was considerably smaller
than Brown who was a young man
19 On redirect , he testified that the first thing he asked was if the distur-
bance regarding the sick day was the reason for his discharge. They both
answered, "No, it wasn't "
WEATHER-SHIELD CORPORATION
staffed by 20 percent. Accordingly, he gave orders to
Schmelz and Lytle to make a 20-percent cut in personnel,
to "get rid of the dead wood." At that time he indicated
that they weren't going to need those they had planned on
for the Swedish tailgate work. He took no part in selecting
those to be terminated, leaving it entirely up to Schmelz
and Lytle. According to Higgins at this time he had no
knowledge of any union activity among the employees
whatsoever. According to him the first "official notifica-
tion" he had was when he received the Union's letter de-
manding recognition on November 7. He admitted howev-
er that he "heard a rumor" on November 6 or 5,20 from
employee Elenore Chrostowsky. About this his testimony
was as follows:
She came by the office and said, "Can I talk to
you," and I said, "Sure." So she said, "They're talking
union in the place," and I says, "Is that right?" She
said, "What shall I do?" I said, "Well, what can I say,
what can I do?" So she said something about a meet-
ing coming up, and I said, "Well, I can't get involved
with that," and, you know, "thanks for telling me,"
and that's how it went.
Q. Did she ask you whether or not she could attend
the meeting?
A. Yes, she said, "What shall I do?" I said, "Well,
it's up to you, you know, I can't give you any advice
there."
Q. Did any other employees mention the union to
you?
A. No. She always comes in my office and she's
kind of sociable, you know, she probably felt obligat-
ed, I guess, to tell me that.
Production Coordinator Leonard Lytle in general cor-
roborated Higgins' testimony that Respondent was over-
staffed at this time and running 20 percent in cost over the
previous year. According to Lytle, when Higgins met with
him and Schmelz on the Monday of his return from Swe-
den "he was quite upset." Lytle had never seen him "quite
as mad as he was . . . his skin was pulled very tightly .. .
and he was waving these papers around, complaining
about the fact that [they] had so many employees and
nothing was going out the door and he wanted an immedi-
ate cutback on employees ...." He further testified that
Higgins told him and Schmelz to cut back 21 but did not
indicate who. Nor was any mention made of union activity
in the plant of which Lytle claimed he was not aware at
that time 22 After the session with Higgins he and Schmelz
discussed cuts and decided on four from each plant. His
four were Victor Scripkunas, DelValle, Sheehan, and Wal-
ter Payton.
In his testimony Schmelz also corroborated Higgins, in-
cluding his suggestion to cut the "dead wood" which
Schmelz interpreted to mean those he "could do without
20 He first testified that he heard the "rumor" on November 6, then testi-
fied it was on the 5th . He then said he was mistaken and changed it again to
the 6th.
21 But he denied that Higgins told them to "get rid of dead wood."
22
According to Lytle he didn't hear about the Union until "Higgins came
out with the letter in his hand saying that the union was going to represent
the employees."
1177
easiest"; those he could let go and "still keep production
up." He immediately picked his four. (This was on Novem-
ber 5.) They were Schwartz, John Keddie, Miller, and
Kryszak. He then called Torch and told him to release
Schwartz and Keddie.23 Torch wanted to know why and
was told that shipments were way down and they had "to
cut back."
The General Counsel apparently has accepted
Respondent's basic defense that economic conditions re-
quired a reduction in force resulting in the termination of
some employees in early November but takes issue with the
selection of the alleged 8(a)(3) discriminatees as having
been discriminatory.
In defense of its selection of the three alleged 8(3)'s for
termination, Respondent adduced the following testimony:
Schwartz
According to Schmelz, Schwartz was an unsatisfactory
employee. It took him 30 minutes to do a 5-minute job. He
refused to lend a hand when asked and instead volunteered
"a snide remark." Nonetheless Schmelz gave Schwartz a
25-cent raise hoping that it would be an incentive to im-
provement. When he talked to Schwartz about his termina-
tion he told Schwartz that he was not satisfied with his
work and that his "attitude . . . doesn't seem to be 100
percent" for the company.
According to Torch, Schwartz "was a poor production
worker" 24 who "didn't seem to have the ability to learn, he
was a slow learner." Moreover, "He didn't have the energy
... he was always tired." Torch talked to Schmelz twice
regarding Schwartz, pointing out that he "didn't know
whether he was trying or he wasn't capable but he wasn't
making it." Notwithstanding all this adverse analysis
Torch "admitted [to Schmelz] that he might come along
but he was very slow at it ...." Torch also admitted on
the stand that he "may have" praised Schwartz' work per-
formance explaining that Schwartz asked "how do you
think I'm coming along?" To which Torch replied, "Ira, I
think you're doing fine, you're doing all right." He also
admitted that he might have praised Schwartz' perfor-
mance to the latter's girlfriend describing it as "a little
white lie" and passing it off as "a nice gesture."
Miller
According to Schmelz on direct, even though Miller's
work was very good it could never compensate for the time
he missed. He was always coming in late and he'd take a
23 Asked in effect why he did not include Miller and Kryszak at this time,
he testified.
I still didn 't actually know whether I wanted to let those people go or
not because the welding area has always been a stickler with me, that's
the reason Eric Jessiman became interested in this whole thing I am
now, but I wasn 't then , at that time , real familiar with welding and steel
work and I was just getting my feet wet and he was kind of helping out
more or less, so I wanted to do the right thing, Dust held back on those
two.
24 To bolster his testimony Torch also testified that Miller "complained"
about Schwartz ' work This was in the first or second week of Schwartz'
employment The complaint , according to Torch , amounted to Miller's ask-
ing "what have you got that guy doing over there . He's just standing around
talking to everybody, doing nothing."
1178 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
day off sometimes without even calling in. Both Schmelz
and Jessiman warned him at least four or five times: "you
do the job, but your attendance record is absolutely terri-
ble and you're setting a bad example for the rest of the
employees that are working underneath you in the welding
area...:'
On cross Schmelz testified that the only reason for
Miller's termination was his absenteeism-that Respon-
dent " just couldn't depend on-him to be there for a lead-
man ...." He knew that Miller always came in late. "It
was fairly normal" apparently for everybody as evidenced
by a standing $5 bonus for promptness. Regarding Miller's
absenteeism, Schmelz testified that at the time of Miller's
discharge he didn't know if Miller was improving or not. In
this connection Miller's timecards show that the last time
he had taken a full day off was in the week ending Septem-
ber 12 when he took two consecutive days. For the eight
pay periods from that date to the date of his termination
(which included one sick day absence and only a portion of
the pay period in which he was terminated) he worked
every day (with 4 hours off and 3-1/2 off another) and
averaged 41.9 hours a week. This figure included all of his
accumulated tardiness time.
Brown
On the morning of Brown's termination Schmelz took a
call from him that was transferred from another official
who handed the phone to him saying, "Talk to his man
... the guy is . . . screaming in my ear and calling names
.... Schmelz got the same from Brown; "He wouldn't
calm down . . . he was talking in circles" and Schmelz
finally hung up on him. He then got a call from Torch
"who was quite frightened." He said Brown had been fol-
lowing him around the plant swearing at him and threaten-
ing him with physical harm. Torch said something should
be done about him.
Schmelz was convinced that Brown had to go. He was
reluctant to terminate him because he was in the state
sponsored training program but decided to keep Kryszak
(who had been slated to go) and let Brown go in his place.
Nonetheless Schmelz was afraid to go over and tell Brown
that he was fired because he didn't know what Brown
would do and he "didn't want to create a scene and end up
in court with the guy because he hit [me] or something like
that ...." So he discussed it with Higgins who said that
he would go with Schmelz. They went and Higgins told
Brown that he was being let go because they were cutting
back. Brown wanted to know if it was because of the inci-
dent that morning. Higgins said, "No," they were "just cut-
ting back on . . . production and ... workforce because
of an over amount of salaries ... .
Conclusions
In my opinion a preponderance of the evidence estab-
lishes that regardless what economic necessity if any there
was for a reduction in Respondent's work force,25 the ter-
25 Considering that only a couple of weeks prior to this (and at the height
of its busy season) Respondent had hired several new people (obviously not
mination of Schwartz and Miller were in substantial part
discriminatorily motivated within the meaning of Section
8(a)(3) of the Act. The same cannot be said for the termi-
nation of Brown. Considering his unfortunate conduct on
the day of his discharge in the light of the fact that up to
that time he was not scheduled to be let go (he was not on
the list that had already been selected for termination) it
seems clear that, notwithstanding Respondent's denial to
him, the "ruckus" that day was the sole reason for his dis-
charge and I so find.26
With respect to Schwartz the situation is different. Con-
sidering the extent and timing of his union activity (which
from all circumstances I find Respondent was fully aware
of at the time he was terminated) 27 and the obvious phoni-
ness of his claimed incompetency,28 I find that his termina-
tion was because of his union activity and thus in violation
of Section 8(a)(3) of the Act. Torch's accusation to
Schwartz after his discharge that he was a union organizer
and because of his activities on behalf of the Union should
feel responsible for the layoff supports the foregoing con-
clusion.
I also find that Miller was discriminated against. His
excellence as a craftsman not only had outweighed the de-
triment of his absenteeism up to the time that the Union
appeared on the scene, but actually that deficiency was on
the wane at that time. Considering the timing of his dis-
charge on the same day that he got cards signed in the
plant after attending a union meeting the night before,29
and the falseness of the other reason given him for his
release (the discontinuance of the welding department) '30 I
believe and find that those reasons were pretexts relied on
to conceal Respondent's true antiunion motivation. Here,
too, Torch's comment that Schwartz was "responsible for
all these guys being laid off and fired" tends to support this
conclusion.
CONCLUSIONS OF LAW
1. Weather-Shield Corporation is an employer engaged
in commerce within the meaning of Section 2(2) and (6) of
the Act.
2. International Union, United Automobile, Aerospace
without Higgins' approval ) all in the context of a 20-percent increase in
efficiency over the previous year, a decline of any kind, let alone 40 percent,
seems incredible, all the more so in the absence of any documentary sup-
port.
26 I have no difficulty in believing that Higgins was reluctant to raise the
issue with him again
27 Besides Torch's knowledge there was Elenore Chrostowsky 's acknowl-
edged frequenting of Higgins' office and her disclosures about the Union
stemming from her feeling of obligation to him
28 The 25-cent raise within 6 weeks of his hiring was indicative (under
Respondent's formula) of special reward for competence rather than an
incentive builder which explanation I reject Another indicia of Schwartz'
acceptability as an employee was Torch's praise to him and to Schwartz'
girlfriend about him
29 For the same reasons in the case of Schwartz, I find that, under the
circumstances here, Respondent had knowledge of Miller's union activity
before he was discharged.
30 As demonstrated by the increase in the size of that department at the
time of the election as credibly described in Miller's testimony and the
hiring of at least one additional man for the welding department shortly
after his discharge to add to the two who were kept on when Miller was
terminated
WEATHER-SHIELD CORPORATION 1179
& Agricultural Implement Workers of America, Local 55,
is a labor organization within the meaning of Section 2(5)
of the Act.
3. By discharging Murray Miller and Ira Schwartz for
engaging in union activity, Respondent has engaged in and
is engaging in unfair labor practices within the meaning of
Section 8(a)(3) of the Act.
4. By threatening its employees with discharge, plant
closure, or other reprisals if they become or remain mem-
bers of International Union, United Automobile, Aero-
space & Agricultural Implement Workers of America, Lo-
cal 55 and by initiating, sponsoring, or promoting the
formation of an employees' committee to deal with Re-
spondent concerning employees' wages, hours, and work-
ing conditions, Respondent has engaged in and is engaging
in unfair labor practices within the meaning of Section
8(a)(1) of the Act.
5. The aforesaid unfair labor practices are unfair labor
practices within the meaning of Section 2(6) and (7) of the
Act.
THE REMEDY
Having found that Respondent has engaged in and is
engaging in certain unfair labor practices it will be recom-
mended that it cease and desist therefrom and take certain
affirmative action necessary to_effectuate the policies of the
Act.
Having found that Respondent discharged Murray Mill-
er and Richard Schmelz in violation of Section 8(a)(3) of
the Act, it will be recommended that Respondent offer
them full and immediate reinstatement to their former or
substantially equivalent positions without prejudice to their
seniority or other rights and privileges, and make them
whole for any loss of earnings or any other monetary loss
they may have suffered as the result of such discrimination.
Any backpay due is to be determined in accordance with
the formula set forth in F.. W. Woolworth Company, 90
NLRB 289 (1950), and Isis Plumbing & Heating Co., 138
NLRB 716 (1962).
It will also be recommended that the challenges to the
ballots in Case 3-RC-6179 of Murray Miller and Ira
Schwartz be overruled and the challenges to the ballots of
Walter Brown and Charles Torch, Sr., be sustained.
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:
ORDER 31
Respondent, Weather-Shield Corporation, Buffalo, New
York, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Threatening its employees with discharge, plant clo-
31 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.
sure, or other reprisals if they become or remain members
of International Union, United Automobile, Aerospace &
Agricultural Implement Workers of America, Local 55.
(b) Initiating, sponsoring, or promoting the formation of
an employees' committee to deal with Respondent con-
cerning employees' wages, hours, and working conditions.
(c) Discouraging membership in International Union,
United Automobile, Aerospace & Agricultural Implement
Workers of America, Local 55, or any other labor organi-
zation, by discharging or in any other manner discriminat-
ing against employees in regard to hire or tenure of em-
ployment, or any term or condition of employment.
(d) In any other manner interfering with, restraining, or
coercing its employees in the exercise of their rights to self-
organization, -to join, or assist International Union, United
Automobile, Aerospace & Agricultural Implement Work-
ers of America, Local 55, or any other labor organization,
to bargain collectively through representatives of their own
choosing, and to engage in concerted activities for the pur-
pose of collective bargaining or other mutual aid or protec-
tion, or to refrain from any or all such activities.
2. Take the following affirmative action which is neces-
sary to effectuate the policies of the Act:
(a) Offer to Murray Miller and Ira Schwartz immediate
and full reinstatement to their former or substantially
equivalent positions, without prejudice to their seniority or
other rights and privileges, and make them whole for any
loss of earnings or other economic loss suffered by them in
the manner set forth in the section hereof entitled "The
Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records, and all other records necessary for the
determination of the amount of backpay due and the rights
of reinstatement under the terms of this recommended Or-
der.
(c) Post at its place of business in Buffalo, New York,
copies of the attached notice marked "Appendix." 32 Cop-
ies of such notice, on forms provided by the Regional Di-
rector for Region 3, after being signed by an authorized
representative of Respondent, shall be posted by Respon-
dent 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 by Re-
spondent to insure that said notices are not altered, de-
faced, or covered by any other material.
(d) Notify the Regional Director for Region 3, in writ-
ing, within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the challenges to the ballots in
Case 3-RC-6179 of Murray Miller and Ira Schwartz are
overruled and the challenges to the ballots of Walter
Brown and Charles Torch, Sr., are sustained.
32 In the event 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 read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."