Artley, Incorporated

National Labor Relations Board - Board Decisions

Mar 11, 1982

260 N.L.R.B. 833 (N.L.R.B. 1982)

ARTLEY. INCORPORATED
Artley, Incorporated and Dominick C. Durso. Case
22-CA-10282
March 11, 1982
DECISION AND ORDER
BY CHAIRMAN VAN DE WATER AND
MEMBERS FANNING AND ZIMMERMAN
On September 22, 1981, Administrative Law
Judge Robert T. Snyder issued the attached Deci-
sion in this proceeding. Thereafter, Respondent
filed exceptions and a supporting brief, and the
General Counsel filed an answering 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
briefs and has decided to affirm the rulings, find-
ings,' and conclusions of the Administrative Law
Judge, except as modified below, and to adopt his
recommended Order.
The Administrative Law Judge found, and we
agree, that Respondent issued a letter of warning
to Dominick C. Durso and discharged him because
of his activities as a union steward on behalf of
Local 821, United Brotherhood of Carpenters and
Joiners of America, in violation of Section 8(a)(3)
and (1) of the Act.
While we agree with the Administrative Law
Judge that Respondent violated Section 8(a)(3) and
(1) by discharging Durso, we find it unnecessary to
rule upon or adopt the Administrative Law Judge's
rationale for and finding of an independent 8(a)(l)
violation.
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 and
I The Admnini,rative ILasA Judge correclld concluded that both the
'ritten xsarring of Augusl 4. 19g0. as "ell as the discharge ofr August 21
1980, oI employee Dorniink C Durso 'iolated Sec 8(al)( ) anld ( I ) of the
Act. C eonllstent th re'ith. Ihe Admninistrati e La" Judge included in the
recommended remed6 and reconmmended Order that the ritten X arnilng
he recinded and expunged from all personnel records and files, alnd an
other records HFlo e er. Ihe Admlnistratie CI as Judge onlitted from the
recommended lnoIice to enmploy)ee language Consistnt 's ith his CotIclu-
l0o1N Of Lass. recomnilllded rrned and re ormnlrendcd Order C insilt-
erl t it h the (ierlera l outilse]'s request, w e are hereby coilflornllng the
notice to enlplose, to the reonimenlldcd ()rdcr
Respondenll has ex:plctd Io certai icrtdibllity findings nla de b) th
Adminlstr;l.tic l.a ; Judge I is Ihe Board's established pohcll iot to
o, errule anl admillllratl e ]asl Juldge'n res olutilt nll ith respelt to rcdl-
bilit) unless (he clear prepolnderance of all of Ihe rcle atil cxidence con-
llncesI u I lill tIh resoTlutis are i IIcorrec t StlaidUrd D)r I 4il I'//odsiu l,
Inc. 91 NI RH 544 (I950). etltd 188 F 2d .l2 Hd Cir 1'511) \'c hiae
carefull) eaminiied the 'rl 5 rd alId find no basis for resersing his findings
260 NLRB No. 107
hereby orders that the Respondent, Artley, Incor-
porated, Newark, New Jersey, its officers, agents,
successors, and assigns, shall take the action set
forth in the said recommended Order, except that
the attached notice is substituted for that of the
Administrative Law Judge.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NA'rIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportu-
nity to present evidence and state their positions,
the National Labor Relations Board found that we
have violated the National Labor Relations Act, as
amended, and has ordered us to post this notice.
WE WILL NOT issue written warnings or dis-
charge any of you for supporting Local 821,
United Brotherhood of Carpenters and Joiners
of America, or any other labor organization.
WE WIL i NOT in any like or related manner
interfere with, restrain, or coerce our employ-
ees in the exercise of their rights under Section
7 of the Act.
WE WILL rescind and expunge from all per-
sonnel records and files, and any other re-
cords, all copies of the written warning issued
to Dominick C. Durso on August 4, 1980.
WE WII.L offer to Dominick C. Durso im-
mediate and full reinstatement to his former
job or, if his job no longer exists, to a substan-
tially equivalent position, without prejudice to
his seniority or any other rights or privileges
previously enjoyed and WE WILL reimburse
him for the pay or other benefits he lost as a
result of our discriminatory action, plus inter-
est.
AR II.EY, INCORPORATED
DECISION
STATIEIENT 01O THE CASE
ROHERr T. SNDI)ER, Administrative Law Judge: This
case was heard in Newark, New Jersey, on May 28,
1981. The complaint, which issued on October 31, 1980,
alleges that Artley, Incorporated, herein Respondent or
Employer, on or about August 4, 1980, warned its em-
ployee, Dominick C. Durso, that he would be discharged
if his attitude did not change, and then, on or about
August 21. 1980, discharged Durso, and since said date
has failed and refused to reinstate him because Durso
joined or assisted l.ocal 821, United Brotherhood of Car-
penters and Joiners of America, herein called the Union
or Local 821. or engaged in other concerted activities
833
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
for the purpose of collective bargaining or mutual aid or
protection, in violation of Section 8(a)(1) and (3) of the
Act. By answer dated November 10, 1980, Respondent
denied the allegations of the complaint.
Upon the entire record, including my observation of
the demeanor of the witnesses and after careful consider-
ation of the briefs filed by Respondent and General
Counsel, I make the following:
FINDINGS OF FAC I
I. JURISI)ICTION
The Employer, a New Jersey corporation, is engaged
in the manufacture, sale, and distribution of exhibit and
display materials and related products at its principal
office and place of business located in Newark, New
Jersey, herein called the Newark facility, where it annu-
ally manufactures, sells, and distributes goods valued in
excess of $50,000, of which products valued in excess of
$50,000 were furnished directly to other enterprises in-
cluding, inter alia, Purolator, Inc., New Jersey Bell Tele-
phone Company, and Johnson & Johnson Baby Products
Company, all located in the State of New Jersey, each of
which other enterprises is directly engaged in interstate
commerce. The Employer admits, and I find, that it is an
employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
II. I AROR ORG(ANIZATION STAT US
The complaint alleges, Respondent admits, and I find
that Local 821 is a labor organization within the meaning
of Section 2(5) of the Act.
111. Al I (;EI) UNI AIR I.ABOR PRACTICFS
A. Background
The Charging Party, Dominick C. Durso, herein
called Durso, was employed by Respondent for 16 con-
secutive years until his discharge, effective August 21,
1980.' Except for an 8-year period from 1968 to 1976,
during which time Durso was employed on salary as a
carpenter foreman, he worked as a carpenter, preparing
exhibits and other display materials produced by the Em-
ployer out of a carpentry shop located on the ground
floor of the Employer's two-story plus basement Newark
facility.
Respondent has had longstanding collective-bargaining
relationships to the present with a number of unions. The
sign writers union has represented the spray painters and
display artists for at least 33 to 34 years. Local 821 has
represented the Employer's carpenters since 1954. Re-
spondent also deals with an electrical union with respect
to one or more electricians it employs.
Although employing helpers and warehousemen for
some years to help prepare exhibits for shipment and
load and unload trucks, it was not until 1978, during the
third year of a 3-year collective-bargaining agreement
dating from 1976, that they were incorporated into the
bargaining unit by voluntary agreement of the parties.
Thereafter, and for the first time in the parties' successor
All datles hereinafler arc im 1980, unless othervise noted
and current agreement running from August 1, 1979,
until July 31, 1982, a wage scale was included for the
classification of helpers-warehousemen. The Employer
presently employs all told 22 employees, 18 of whom are
employed in the three bargaining units. At the time of
his discharge, Durso was one of only two carpenters em-
ployed in the unit represented by Local 821.
Aside from the carpenters and helpers-warehousemen,
Respondent for some years employed a man who super-
vised the setting up of Bell Telephone exhibits and co-
ordinated the show schedule at various locations in the
State of New Jersey. He was not covered by the Local
821 agreements. Then, in early 1980, Bell asked Re-
spondent to supply another employee to be responsible
for checking the various phone centers to insure the ex-
hibits there were in good repair. Following the employ-
ment of the second outside employee directly assigned to
Bell Telephone displays, both were incorporated into the
bargaining unit represented by Local 821 under circum-
stances to be described, infra.
Prior to 1976, the Union had never had a shop steward
designated to represent the unit employees on Respond-
ent's payroll. That August (probably in conjunction with
the successor agreement then taking effect), Durso was
designated by Local 821 to be the shop steward and he
continued as the sole occupant of that union position
until his discharge.
During the negotiations held in 1979 for the current
agreement which began a week before expiration of the
old agreement, an impasse was reached over such mat-
ters as the length of the contract-the Union wanted 2
years and the Employer 3-and a cost-of-living increase
added to a proposed 10-percent salary increase each year
which the Union sought over Employer opposition. The
Union called a strike-the first one called by any union
in Respondent's history, which extends back over 50
years. The Union had also sought a pay scale and bene-
fits for the new classification of helpers-warehousemen to
be added to the agreement. The strike lasted 7 or 8 days.
During this period, a Federal mediator assisted the par-
ties in arriving at an agreement. Durso attended five me-
diation sessions held over this time. As testified by
Durso, during the strike, at a meeting held before the
mediator, and attended by Stanley Roll, the union dele-
gate, all seven unit employees, and Howard Feld and
Morton Skoler, Respondent's vice president and presi-
dent, respectively, Durso participated in raising for the
first time a complaint that the Employer had failed to
comply with a provision which had been part of the
agreement for many years and which required the Em-
ployer to pay premium wages for work done outside the
shop and any construction work done in the shop. 2 As
Durso explained, "Well, we were bargaining over better
health conditions and why we don't get paid for outside
wages when we go out." At the time, in spite of the con-
' rt 2. "Wages." after setting forth the minimum wage rates for all
lourncylen, hbelch hands. cabinet makers, machine hands, and other ex-
perienced morkers, states. "The established Union Rate, Hours and Con-
ditions iof Jiourne) men. Leadmen and Carpenters on work done outside of
shorp or shops and any corlstruction s ,ork done in shop., such as additions
sha.l he dione anid paid for under outside rates and hours" The provision
,as Contihltled ill the 1979 82 agreement
834
AR ITEY. INCO)RP'()RATED
tract language, Feld and Skoler took the position they
would not pay outside wages when the men went out.
Feld denied that Durso or the Union brought up outside
pay during negotiations, although readily admitted that
such pay was raised by Durso a number of times follow-
ing negotiations. Concerning health conditions, Durso
also raised during the strike a health issue regarding
proper ventilation, particularly for the carpenters, in the
shop. Respondent's witness Feld agreed that the Em-
ployer reached an understanding during the strike to in-
stall a ventilation system for the carpentry shop and
spray painting room to remove noxious odors, wood
dust, and chips through a series of ducts and exhaust fans
into an external hopper.
In light of subsequent events which transpired con-
cerning the unit employees' demand for outside premium
pay and in accordance with my conclusions, to be dis-
cussed infra, concerning the credibility of the sole wit-
nesses, Durso and Feld, I find that Durso did join in rais-
ing the premium pay issue during the strike.
The strike concluded and the current agreement was
executed with the Union relinquishing its demands for a
2-year term and added cost-of-living provision. Respond-
ent did agree to, and the contract contains, a separate
salary provision for the helpers-warehousemen.
Two to 3 months after the new contract was signed in
early September 1979, the unit employees decided not to
perform any work outside the shop until their claim of
extra pay for such work was resolved. At a meeting held
on that occasion between all the union members and
Feld and Skoler, when Feld asked why the men were
not going out, Durso replied, "We're not going out if
we're not getting outside wages." Nothing further hap-
pened until a few months after that meeting when Feld
approached Durso, and said you have to have someone
going out to which Durso replied, "Howard, we agreed
not to go out." Feld then informed Durso that the Em-
ployer was willing to pay 40 percent above their normal
rate in order to have the work performed. Durso said he
would have to speak to the members. Durso did so, got
their approval, and returned to Feld who by this time
had learned Skoler would not go more than 25 percent
and told this to Durso. On Durso's poll of the men this
time, they rejected 25 percent, and Durso then informed
Feld that he would have to compromise by coming up a
little higher to 30 percent. When Feld agreed, Durso got
Ihth cuilrrent agreement conllailns prsilsilmon. art 13, elltlled "W'rk-
Ilg C'Orlldillonls" i.hich reads. "Ihe Ernploetr sldl hlse working conrldl-
lions Ihal are reaslonaibl aind nutuall] acceplabhle tc the emplosees. spcr
iall, reftrring t! Iautters pertulllling lo s.alt'et, siiarr5 ornlditoiriS. Ii0I -
er,, heal. anrid Ilher oirkilng condi ions In Ihe e' ent of a dispute rega;rd-
rng such lauters, ii s.ill he settled a1s proilded herein" LUnder art 14I
dispueir are iu he setled hetl(. lc Ihe partics and. if unahle Iio do ls. hi
niealls ef hirlldl ri g arbltra ion l-he parties haie icus er utilied the arhilra-
oIIll Clause seitle iL111s dispLute
' he rcoril p1 rnin letar ,is 0i thctlher lh su,1¢em \as eser Irltiallcd,
D)urso testf!llrg ltha (olln) a i clrliulioil liiIl arid .a shield Io catch su.s dlul
placed ,ii ha ck I ti heig sa'a ', erce eVr prolr ded. anrd F eld assertlig
Ihat althoughl tie I. rllpalln , mighi haut heen lax iii the aclual ill'lalaliIIIII.
Repoidenrr t laiti gliet t hc par,. he nlelil ttlu.I ,work, airi speclal fair,
and it 'alas tiniall5 i aliedr h l) Durs,o himulc I credJil l)ursl tl it I li l1 a
an tas cixtr I tni,rled, vt lich fell far sheri f tiL' sptC tiiiati ris } Ir ithe
s·entilating ht rpptI sslir i ,ithli [ t)urs irand [ ] I d had agrcede I,'
the employees' agreement, and the figure was set at 30
percent above their normal wage as the outside rate.
Feld disputed Durso's report of the manner by which
the outside figure was established. According to Feld,
shortly after the strike ended and the current contract
terms were settled, he sent two men out to set up a dis-
play for Bell Telephone after learning from them they
would do so. Upon their return the next morning, Durso
told him he was supposed to pay these men at an outside
rate, which is 130 percent of their normal rate. Feld first
checked with Skoler who was not aware of it and then
called Rolls who said the clause did not pertain to Re-
spondent's shop. At a subsequent meeting in the shop at-
tended by Rolls and all the men, Rolls again stated the
Company did not have to pay the additional 30 percent,
and if no one in the Union would perform the work the
Employer could pick up anybody and send them on the
job. Feld stated he was reluctant to take any man, he
wanted to settle the dispute at a reasonable cost to the
Company, and so he went over to Dominick (Durso) and
asked what money would settle this thing. After Durso
demanded 40 percent, and Feld countered with 25 per-
cent they settled at 30 percent, with Durso stated, "Well,
we'll go for the thirty percent."
I credit Durso's version. Feld's version implies, but
does not make explicit, that there had been a refusal by
the workers to perform outside work without premium
pay, evidence of a lack of candor on Feld's part, which I
conclude characterizes other aspects of his testimony. In
all likelihood, the matter only came to a head after a re-
fusal to perform the work, which placed the Employer
under considerable pressure to resolve the dispute in-
volving a claim of a specific contract benefit. Also, it
seems strange that under Feld's version, Durso's claim of
130 percent appears to be made up out of whole cloth
without any antecedents. Stranger still is the fact that the
dispute which led to a concerted refusal to perform
work involved, according to Feld, a payout of consider-
ally less than $1.000 a year. Further, inasmuch as Feld
admits he approached Durso to settle the matter even
though he placed at the meeting Rolls, the union agent
with whom he readily communicated over shop prob-
lems, I find that Rolls did not come to the shop on this
occasion, but rather that Feld purposely attempted here
to minimize Durso's role in leading the concerted action
by the men, another gambit which also characterized
other facts of his testimony.6
Early in the spring of 1980, Respondent hired the
second employee to work exclusively in maintaining Bell
Telephone phone center displays. At this time, Durso ap-
proached Morton Skoler and said "Mort, you know we
have to get Bob and Gene [the names of the two work-
ers] in the union now." Skoler replied, "Dominick, they
only change light bulbs and just deliver things." Durso
replied, "Morton, you know they set up jobs." Nothing
more was said at the time.
F eld ha d in led I, )urs Ih il r rince Resp ndeult ' exhibil arre dis
plaim cd iiri tdiferrenr co ulteics i raighl peLrcent age figure .as eailer II,
st r Nksit ih hall setiurig i1 dfiet reil (,labhlished UiriOii rtle III each ,.o uis
I' Otr Ceulllple . riLlrig ih[the ielearig. F rid den led ri e ta i l, a re of
l)tlr .l. .ff itilal riJitri prO irnlli
835
DECISIONS O()F NATIONAL LABOR RELATIONS BOARD
B. The Sequence of Events Which Ultimately Led to
Duriso' Discharge
Respondent's Newark facility closed for a summer va-
cation period the first 2 weeks in July. Durso took his
own vacation to coincide, from the last week in June to
July 14. During the period the facility was closed, Re-
spondent cinderblocked a number of window openings,
among them the only opening in the carpentry shop on
the main floor. This window had been loosely covered
for some time with boards, but not being fully closed, it
had allowed some outside air to circulate in the shop.
Respondent had taken this step to conserve energy and
minimize heat lost during the winter. Neither Durso nor
the Union had been informed of this event.
On Durso's return to work on July 14,' there was a
heat wave,8 with daily temperatures up to 100 degrees
Fahrenheit, which continued into the following weeks.
Durso went to work under these uncomfortable condi-
tions.
The following Monday, July 21, just before lunchtime,
Feld came to Durso's bench and told him that Pete
Tyler, an employee and union member, was due back
that day, had not come to work, and would have to be
let go. Durso testified that he responded that Feld could
not do that, that Tyler had to be given two verbal warn-
ings and a written statement that he was terminated.
Durso also noted that Tyler had emphysema, that it was
105 degrees outside and 97 degrees inside, since Tyler
could not breathe in normal weather how did Feld
expect him to breathe there now and that is the reason
he's out. Tyler was not discharged after this conversa-
tion. During this same conversation Durso reminded
Feld that while they were on strike he agreed to put
ventilating systems and hopper systems in the building
and they had not been put in. Feld responded, "if you
were any kind of a shop steward you should have come
in 30 days after to demand this." The conversation also
included reference to supplying a fan to circulate the air
to help overcome the extreme heat in the shop. Durso
acknowledges being supplied a fan, but that in spite of
the fan, he felt compelled to leave work that day early
and punched out at 3 p.m., informing Feld that he was
leaving because it was unbearable in the carpentry shop.
Feld's testimony differs considerably. He places the
difference about summer work hours as having been
raised by Durso on July 21, and that after rejecting the
1/2-hour proposed change (dictated, according to Feld,
by fixed trucking schedules) Durso became incensed,
and, although having earlier readily agreed to support
Feld's effort to fire Tyler (who, according to Feld had a
record of extreme absenteeism although he was a fairly
good worker), he now told Feld he couldn't fire Tyler,
he had emphysema, and also said, "unless I get fans here,
X Upon hi, retutrn, hc learnled Ihal Rerpotndent haid agreed li Bob and
Gene's inclusil ill the unit anid ihe,, *ere taken ilto the Ulnionl AWhenl
l)urso told Skolter after Jul 14 that iBob and ticnte xverc cl llplalilig
that tIhe s setc nott getting tilme-ani-a-ilalIt pay for o crtiurte o ll ttsid A otk
Skolcr did nol r'espond huti the mnones v, crc paind
Juist hbeforr hit \tacai on in June. I)urso testified he had l tked Feld 1 o
chanlge th1e vo k hotur, for the tunniler from 8 :3( a ll) t(i, p rn . 7
a i to X 1() p ilt \Whetl I :eld reported ht l hi tIould oIly aiugr tc to 1 Io\ e
tilt startillg litle back otie hilf ill hoLiur. IO a 1i1 Iafltr checkinlg it the lI
tleti, I)Liro told ilill it doestn'tl pay alld thie hoiur, v\erc tot thallged
I'll leave at 3:00." I do not credit Feld. Feld did not spe-
cifically deny the comment about Durso's failing as shop
steward. His characterization of Durso's position on
Tyler, as being dictated solely by pique and rather un-
principled, appears to be completely out of character for
Durso and at odds with his admitted constantly firm
union positions favoring enlargement of the unit, premi-
um pay for outside work, prompt payment of contractual
benefits, and holding Respondent to its commitment to
supply adequate ventilation. Furthermore, it was logical
for the men to seek a change in hours at the beginning of
the summer and not in the middle of it.
By July 23 or 24, Durso had convinced Feld, after
checking with Skoler, to reinstall a window where the
preexisting opening had been blocked up in the carpen-
try shop and to use for this purpose a window which
was then in storage at the facility. When Durso noted
that a frame for the window would be necessary, Feld
asked Durso to build one and Durso agreed. The earliest
Respondent could get the masons to return to break out
the cinderblocks was the following Thursday, July 31.
On July 31, the masons returned, the opening was cre-
ated and Durso made up the frame and assisted in the in-
stallation of the window. He later explained that al-
though of similar complexity to some of the more intri-
cate work involved in constructing displays, making up
the frame involved selecting the better grade of wood
from stock, cutting, dressing, grooving, and fitting 12
separate pieces together, making up inside and outside
casings, fitting it in place from the outside, caulking and
nailing the inside casings in place-a substantial piece of
work, unusual in the display trade. The next day, Friday,
August 1, Durso came up to Feld in the parking lot at
8:30 a.m. and told him, "Howard, I'm putting in five
hours outside wages." Feld did not reply. When Durso
said, "You're not answering me," Feld said, "If the con-
tract states it, take advantage of it." 9 That completed the
conversation.
After learning that Durso was making this claim,
either from his bookkeeper or from Durso himself, Feld
immediately contacted Roll, the union delegate, ex-
plained that he had tried to accommodate Durso by put-
ting this frame in the window and the whole thing was
backfiring. He told Rolls he did not think Durso was en-
titled to this outside rate"0 and he would pay it if Rolls
confirmed it. Feld testified Rolls told him not to pay
Durso because he was not entitled to it.
Later the same day, according to Durso, Feld came up
to him in the carpentry shop where he was working
alone and asked if Durso called himself a carpenter when
he took 5 hours to make that frame. Durso further testi-
fied that Feld next said, "When I don't see your car in
the parking lot you make me happy," to which Durso
replied, "The feeling is mutual." Feld responded, "sure,
when you don't see my car in the parking lot, that means
F Celd admitted. under direct exaunuation, that after he had learned
Ironm his hiookkeeper Ihatl [)urso had made a claim ftr 5 hours outside
Adages, he its getting hi,s car i1 the parkitg lot, presumably at the end tif
tile das. shenl he made the statleneit Durso attrihuted to him
i'hc tiotal prenliutn amount i iniloLd, ill Duro's then contractual
rate, htflre t \iugusl 1 of $8 4i per hour. sats S12 h5 fir the 5 hours
claill id
836
A R I I FY, tNCORt')R A Itf I )
your not working." Durso responded. "flHos canll I do
any work if you're gone; no one gives me any stork," to
which Feld replied. "I'm the boss: I call have you stand
there for two days and not do anything . e .. h n you
were sick and when your son was out... At
this point Durso jumped up and said. "How come you're
always-you and Mort are alxsa!s harassing my son and
I," whereupon Feld walked asal,.
Following this exchange, on August 4. Durso received
a letter of warning from Feld. a cops of ss hich \was for-
warded to Rolls, which reads as follows:
Please be ads ised that the daily confrontations
between you and Artle Inc can no longer he tol-
erated.
Your statement "that the reason for continuing
your work relationship with Artley Inc. is to make
us miserable and that you derive great pleasure in
the misery you inflick" [sic] is beyond comprehen-
sion.
Artley Inc. cannot continue it [sic] it's employ aI
person with the attitude such as your's. Therefore,
be advised that, if in two w eeks time, Artley Inc.
does not see a change in your work relationship;
your employment with Artley Inc. will he terminat-
ed.
Durso denied making the statements attributed to him
in the second paragraph, although he did not so inform
Feld. He did deny the statements privately to Russ
McNair, the union president, who attended a later meet-
ing with Feld after Durso protested the letter to Rolls.
Feld's account of his discussion s, ith Durso in the car-
pentry shop on August 1 varies in a number of signifi-
cant respects from Durso's. According to Feld, after
calling Rolls and learning the Union's position, he wentt
back to Durso, did not tell him that he was not paying it
to him, but rather, in agreement with Durso's account,
questioned how in good conscience he could charge 5
hours time for the job. Durso maintained it took 5 hours.
At this point the versions vary. Feld claims that he then
accused Durso of shafting him, that he, Feld, went out
of his way to accommodate Durso but now Durso was
shafting him, to which Durso replied, "Well, somehow I
have to make up for the money that I lost when I left
three o'clock that afternoon the previous week." When
the conversation continued on the nature of the work
performed over 5 hours, Durso is alleged to have said it
included the time he had to wait around while the
masons cleaned up or while they finished. When Feld
then questioned if he just sat on his bench and did abso-
lutely nothing, Durso agreed. Durso then reduced the
claim from 5 to 3 hours and added that he could have
charged outside pay for the time he panelled Feld's
office and did other things around the building. Feld told
him that he had been given such jobs to keep the em-
" According ti Durso. in i976 his son s iTuffreC al ellotiinal collap,.
as a result of "hich Durso look 2 kcicks Cleax I \ hll Ul askillg t o;r pai l hit
for which he a, larter paied h, Ihe Colrparl, l)urs, trclilicd s.lhoihtl dli -
pule tr hat time il 1976 Prcsldcrlt Sker said "Do)mmimk i, not
goo( for [he Cornlpalln allnr morc tie thinklll.s lIorc o 1 I i ;lll ,haii t doe,
of the Conlpanl I)urso also collec. ted nilrLls.atioll tir ail lllirY to IIs,
knee
ployees on during the summertinie at a fantastic amount
of monev, and that other exhibit houses around the coirl-
try. specifically in the metropolitan ara, lay!- off ahout 9()
percent of their help during those months lDurso then
replied. "Well. if you're not happy to work itlh us. send
uls home" Feld left. and told the bookkeeper that under
no circumstances .was [)urso to be paid his claim
F-eld next asserts. "later in the das , I wx.as quite upset
about it, and I went back to him and said. 'I ook, appar-
ently y ot're very unhappy here I can't belies e onu call
be happ anid do the things you're doing t1 seems to nie
like you're just trying to invent things just to cause somenc
sort of a confrontation '" And his reply w as, "l'n happy.
but I'm making you miserable." Feld concludes thait he
left and was extremely upset and emotional about it. but
that le waited a while before acting.
Feld next telephoned Rolls, explained `what had hap-
pened, voiced his opinion that he could not in good con-
science pay a man and have him come back and tell me
that he's making me miserable and that he's happy about
it. Rolls told Feld not to act hastily, wrrite Durso a letter
and gis e him an opportunity to straighten things out
The letter of August 4 followed
I am unable to credit Feld's version of the consersa-
tions. It is important to note that Feld approached
Durso, claiming lie came back to Durso t`wice the same
afternoon in a confrontational manner. Even though Feld
had knowledge of the Union's position on Durso's claim
he failed to disclose this to Durso, but instead pressed
Durso on the time claimed and not the merits of the
claim under the contract, demonstrating a lack of candor
and a provocative disposition. Further, in Feld's own
words, it was he who made the first accusations and
taunts against Durso, which is consistent swith the nature
if not the exact words, of the car in the parking lot com-
ment which Durso attributes to Feld. In view of Feld's
repeated use of the concept of "accommodation" it is en-
tirely reasonable to conclude, and I do, that Feld had
reference here not only to the accommodation of arrang-
ing for installation of a window in the carpentry shop
but also to the payments to Durso during his leave to
care for his son and because of his injury, a form of pa-
tronizing which triggered Durso's negative reaction. Sig-
nificantly, at no point does Feld in his version attribute
to Durso the language quoted in his August 4 warning
letter, even though the quoted statement forms the basis
for its stated conclusion that it illustrates an attitude
which the Employer can no longer tolerate. It is also in-
credible that Feld did not know that Durso was a union
shop steward WAhile acknowledging that whenever the
business agent came in he spoke directly to Durso rather
than to anybody else, he denied that Durso ever ideniti-
fied his union position or that he was aware esien if
Durso held one. This testimony on direct examination
conflicts sharply with Feld's later statement on cross-ex-
amination. When asked if he would agree that Durso was
active in the negotiations with the mediator. he respond-
ed. "'Well. lie xwas shop stesvard; so I would imagine so."
It was also Feld himself who negotiated directly xwith
Durso, as representative of the union employees, the set-
tliemeit of the contract claim for outside u`ages and it
I)t' CISI()NS ()t NA TIO()NA I AB()R R I.A I I()NS B()ARI)
was Feld to whom Durso complained ahout the failure
to pay overtime to the two outside employees. It was
also Durso to whom Feld went when he said he wanted
to fire Tyler. It is clear that Feld became so iiidignant
and upset at Durso's presentation of a claim for premium
pay on work authorized at extra employer expense to im-
prove ventilation in the shop in particular for Durso's
benefit that he failed to control his anger and provoked
Durso into his own reaction which was then seized on
by Feld to place Durso's job at risk. Durso's own testi-
mony appears to me to be straightforward, noncalculat-
ing, and fully explainable given the above-described cir-
cumstances. Durso also stood up well under a probing
cross-examination during which he described the work
involved in preparing and constructing the window
frame.
By August 7, the Union had contacted F}eld to arrange
a meeting based on Durso's protest to the Union. The
meeting was delayed because of Rolls' hospitalization
and Durso's absences also due to illness. On August 19,
Russ McNair, Local 821 president, came to the Newark
facility. McNair first talked with Feld and Skoler alone,
urging them not to terminate Durso, pointing out his
lengthy service with the Employer. Skoler and Feld
were noncommittal but Feld testified he felt at the time
he would not terminate Durso. McNair then suggested
Durso be invited in to discuss the matter. Durso then
joined the others in a conference room McNair asked
Durso to explain what happened. Durso then spoke
about the installation work and asked McNair why he
could not get outside wages for putting a window in.
McNair replied that the clause in question did not per-
tain to putting windows in, that is only for putting up
partitions. Durso then said, "All right, forget the outside
wages, but how come I'm always harassed. myself and
my son." With this statement, Feld jumped up and said
his attitude has not changed, he can leave now and I will
pay him until 5 p.m. or he can work until the end of the
week. Durso later received approval to finish out the
week, and was terminated effective Thursday, August
21. The following day, August 20, Feld wrote Durso
confirming this arrangement and adding "a difficult work
relationship exists, as was determined at the meeting held
by the concerned parties and Mr. McNair of Local 821
on Tuesday, August 19, 1980. Therefore it is in the best
interest of all parties concerned, that the relationship
come to a conclusion."
C. Analysis and Conclusions
The central question posed is whether Durso's union
activity was a motivating factor in Respondent's decision
to first issue him a written warning and then to fire
him. 12
While Respondent's history of labor relations appears
to have been generally uneventful, there is little question
that the first strike in the Employer's experience, in 1979,
was a sobering experience for Respondent, which e'en
after its settlement left unresolved certain lingering
1! Such a sho. king is required ill order folr the (ienller.l C('IIIIlCl l,, e
tablish 1 primia / ht(iU ca,te for iloiatioin of Sec 8(a)(1) tinder rgif .it. ,a
Division i/ right ILint. Inc. 251 NLRH 1i183 ( 1980)
issues. one of which had presumably been settled orally
w ithout inclusion in the conlract itn h/ac rvrha. ()n these
matters D)urso had been pirincipal or participating
spokesman, and, after the return to wvrk. took the lead
in pressing Respondent for compliance \with the outside
wage demand as well as with the agreement to install a
ventilation-hIopper system. In colnlnectionl with the out-
side wage issue, shortly after the strike settlement, Re-
spondent's management quickly learned that there was a
divergence between the position of the Union and that of
the unit employees, with Durso, as shop steward. acting
as leader for the more militant position taken by the em-
ployees. After Feld contacted Rolls and obtained his
agreement to the Employer's interpretation of the con-
tract clause, at a subsequent meeting at the shop attended
by Rolls, Durso and the employees made clear their firm
stand for payment of the outside wage rate.
Respondent makes much of the fact that on the outside
wage issue, as well as certain others, Feld and Durso
eventually resolved the matters amicably, without
rancor. Yet, it took a concerted refusal to perform out-
side work for Respondent to offer any concession with
respect to premium pay. Durso's ability to lead, to repre-
sent the men, and to control his forces on the ultimate
30-percent compromise is well documented on the
record and has been earlier described. As to the venti-
lation system, the credited testimony shows that Re-
spondent never fulfilled its commitment in spite of the
bearing that system had on the safety, sanitary, and
working conditions in the shop and the fact that agree-
ment had been reached during the strike in accordance
with article 13 of the agreement. Respondent does not
indicate what its position would have been on the issue
of premium pay, the inclusion of the two outside work-
ers in the unit, its intent to fire Tyler, and Durso's
demand for relief from the blocking up of the only open-
ing in the wall of the carpentry shop if Durso, as ste-
ward, had not pressed these matters or had not rejected
Respondent's proposed firing of Tyler. Each of these in-
cidents demonstrated not only Durso's strengths as union
advocate but also presented him as a plain speaker who
quickly makes his point without much concern for the
social niceties. Thus, his comment to Skoler that Skoler
knew the outside men, Bob and Gene, set up jobs after
Skoler sought to minimize their work role, got right to
the point without equivocation. Durso acted in similar
fashion when he disputed the Employer's right to fire
Tyler without providing him with the requisite notices
and given the condition of his health as aggravated by
the extreme heat in the shop.
That Respondent felt some resentment at Durso's con-
duct, even before his own claim for outside wages was
made, is apparent in Feld's response to Durso's July 21
continuing demand for the ventilating system that if he
'' I)lrl.,, pcr~ sl. llcc Ill Illllllilllllilg Illilillln uNiollll pOsiiOll
t
and RC-
spottieletis reactiOiln to[ that CrtdtIl'l Ce i ll o .ltie Ihe {--molltlh It(b)h
periild are aidnissible its hac kgrind l iL t eidenic tl h ith mt the gril Uth Ill Re-
,pottdeint', .,tttitude of hotilitt lot alrd t[)llurso .dll to ,hed light in1 the
ititi%, for Repotident',, cidllkt i ll n uililltllttl %.t ilaling .rid iring Dl)rso
( ,e tl/ .Sprtli, .S/irt ('rporail ltii 22't Ni RB 4 {1 77t: I. , l 6/3 ,/ rh,
Il irNot ti l- th l , 1..5hi q / : htrl r -11-l. (i /(1i t I: (oti
frlltllat. In, ), 22" NI Rlt 1t)S4 Jig77)
838
AR II F. IN('O'RPI)RA I F 1)
had been any kind of a shop stlcwvard he should have
come in with the demand V ithin 3() days of the agree-
meni Respondent's aniimus is also apparent in Feld's re-
action to the kind of militancy [)urso displayed w hen
pressing ssork demands. It is clear that Feld was not ac-
customed to such cortenliousness based on his past and
present dealings with the more )ielding Union delegate
Rolls. As }:eld learned by August 1, the "accommoda-
tion" of installing a v indol( in place of the blocked up
wall was not sufficient to mollif. Durso. Neither was the
fact that apparently Respondent had made every effort in
the past to keep its work force, including carpenters, reg-
ularly employed over the slow summer period. After re-
ceivisng Durso's claim, and learning that the union dele-
gate would not support it, Feld's hostility toward Durso
rose to the surface. This hostility readily explains Feld's
approach to Durso later in the day swhen, rather than in-
dicating that Darso's demand did not have the delegate's
support, he kept that inportant information to himself
and rather forced the subsidiary question of the time in-
volved and was biting and sarcastic in his remarks.
There is evident hostility in the statement that Feld is
happy when he doesn't see Durso's car in the parking
lot. Durso's response led Feld to acknowledge that the
Employer unilaterally determined whether an employee
would be assigned any work at all. When Feld next re-
ferred to the past accommodations, even superior treat-
ment, accorded Durso on the occasion of his paid leave
of absence to care for his son-an accommodation as to
which Skoler had expressed resentment even at the time
it was made-in the context of Durso's premium wage
claim, Respondent's vice president was exhibiting a state
of mind which quickly added another level to his rising
resentment when Durso not only refused to acknowledge
Respondent's condescending manner but expressed out-
rage at such behavior under the circumstances." Feld's
response was to walk away, discuss the matter further
with Rolls, and after having his own views reinforced,
issuing the letter of warning.
The letter makes immediate reference to daily confron-
tations, the record facts relating to which were all inti-
mately related to Durso's dispute-handling functions as
shop steward. The very last confrontation, for which
Feld himself was responsible, arose out of Durso's griev-
ance claim for premium pay. The letter continues with a
quote attributed to Durso which is at variance with
Feld's own version of the incident, and concludes with a
warning of discharge if Durso did not change his atti-
tude. I can draw no other conclusion than that Durso's
attitude was in reality the manner and comportment
Durso exhibited in representing the unit employees, in-
cluding himself, on each of the dispute presentations he
made relating to their terms and conditions of employ-
ment which arose during and following the 1979 strike
and up to August 1980.
As an employee representative he was entitled to
deal with management representatives as an equal
and express his views openly at the bargaining ses-
" R ecall Iohit lheTIl I)ulr'l repealed hi, e prelon of outrage at the
grieancte meeting oi AugUlt I., t ld toI k ihc .i( cawl tio fire l)UroI on
the spol. effe ,ll,c at t he T of he ,T lrkvck
sion. ' Hce was not subject to discipline in his em-
ployment relationship because his manner and he-
haior when lie appeared as employee represenla-
tive did not comport waith Respondent's standards
of propricety. [4/ljj Leisure Inc., 251 NLRB 691
(1 980).]
Respondent thus discriminated against Durso wvhen it
issued the warning letter, and when it subsequently dis-
charged him for exhibiting the same attitude on the occa-
sion of the grievance meeting at which he protested the
,warning. General Counsel has established on the record
that Durso's union activity was, indeed, a motivating
factor in Respondent's decisions. and further, Respond-
ent, in its defense has failed to demonstrate that it would
have warned and terminated Durso even absent the pro-
tected activity Thus, General Counsel has established by
a preponderance of the evidence Respondent's violation
of Section 8(a)(3)'6 and, derivatively. (1) of the Act.
A second issue presented is whether Respondent's
warning and discharge constituted violations of Section
8(a)(1) in the absence of proof of antiunion motivation.
Assuming, arguendo, that the record ultimately fails to
sustain my finding that sufficient antiunion animosity has
been demonstrated, it is clear that Respondent's action,
taken against Durso growing out of Durso's grievance
presentation, has violated 8(a)(1) of the Act. Even
though Respondent can be found to have acted in good
faith, so long as the tendency of the Employer's conduct
is to interfere with the rights of its employees protected
by Section 7 of the Act, without regard to motive, Re-
spondent has violated Section 8(a)(l). As Durso was en-
gaged in prosecuting a grievance for premium pay, a
fundamental aspect of collective bargaining, his conduct
was protected, and Respondent's warning and subsequent
discharge interfered with the exercise of that right. "
Respondent nonetheless contends that General Coun-
sel has waived any claim that the discharge independent-
ly violated Section 8(a)(1) by virtue of an interchange
among counsel and the presiding Administrative Law
Judge at the outset of the hearing. There is inadequate
warrant for Respondent's position. First, the waiver, as
all waivers, must be established by clear and convincing
proof. 1 The complaint clearly encompasses an 8(a)(l) al-
legation grounded on Durso's protected concerted activi-
ty. Second, Respondent's request was that General
Counsel indicate whether the 8(a)(l) charge was deriva-
tive or a separate substantive charge, an ambiguous re-
quest which failed to pinpoint Respondent's true concern
as to whether it was alleged that the discharge indepen-
, A grie\xance presentation, nor less than a bargaining session, as Sec 7
tCTl\its warrants the full protection of the Act Crown Central Petroleum
('rporation % N. 1. RB. 430 F.2d 724 (5th Cir 1970).
t" W4ian titted. Inc.. 255 NLRB 970 (1981), Magnetics International,
I,t . 254 NLRH 520 (1981), MaUts Factor & Co. 239 NLRB 804 (1978).
17 See lnited States Posttl Service, 250 NLRB 4 (1980). Schneiders'
Dauir Inc. 248 NLRH 1093 (1980): Lane Trenching. Inc. 247 NLRB
1341 (1980() Quaiutv, Broadcasting Corp. of San Juan dh/b/a K'QBS-AM
Radio Station "La Gran Cadena," 241 NLRB 318, 321 (1979) See also
J owph 14i t. d/ha Weit Mdeat Company. 244 NLRB 828 (1979)
l" WaiT\er, of latllloir rights will not he lightly inferred and must bhe
shown hi "'clear alnd unmlistkahle" language Gar-Hlobhart IWater Corpa-
rlrtion .A L R H . 511 1 2d 284 (7th Cir 1975). enfg 210 Nt RB 742
(1i q74
I)[IS)C IONS ()F NA 'I()NAL I.AIi()R RF-I.AlI()NS I()ARI)
dently violated Section 8(a)(I). General Counsel re-
sponded that "there is no claim of independent 8(a)(l), as
I believe the complaint makes clear." The complaint
does not allege any particular conduct as violative only
of Section 8(a)( ). (General Counsel may have thus un-
derstood Respondent counsel's request as seeking to
learn whether, apart from the warning or discharge, any
X(a)(l) violation had been alleged. I am unable, on this
exchange to conclude that the proofs establish convinc-
ingly, that General Counsel knowingly removed from
the theories it has advanced, a claim that the warning
and discharge constitute violations of Section 8(a)( ),
apart from whether they violated Section 8(a)(3). "'
Finally, as the 8(a)(1) aspect of this proceeding re-
quired no evidence other than that presented on the
8(a)(3) allegation, and as the matter did not go beyond
the scope of the complaint and was presented and
briefed by the parties, I conclude the issue was fully liti-
gated under the principle established by such cases as
Monroe f~eed Store, 112 NLRB 1336 (1955). Thus, the
theory that Respondent's conduct in warning and dis-
charging Durso independently violated Section 8(a)(l) is
fully before me and I will recommend that Respondent
be found to have engaged in that violation.
Respondent argues that Durso's statements made on
August 1, which formed the basis of Feld's August 4
letter, are not protected because it was made in the after-
math of Durso's claim for pay. Unlike the facts in Con-
tainer Corporation of ,4erica, 255 NLRB 1404 (1981),
which Respondent cites, in support, in its brief, Durso
was not extending a grievance discussion beyond the
time alloted for it nor was he refusing to obey a back-to-
work order. To the contrary, it was Feld who visited
Durso at his workplace to renew a brief grievance dis-
cussion which had concluded earlier in the day, and to
bait Durso as a consequence of Feld's own rising sense
of anger. It was in this setting that Durso echoed Feld's
own expression of satisfaction at being able to avoid
dealing with the other. While the discussion on August 1
took place at the workplace, Feld and Durso were alone,
Durso did not refuse to perform any work duties and
Durso's conduct did not interfere with job performance
or morale of other employees, did not undermine Feld's
authority in the shop, or expose Feld to any harm."'
Respondent also contends that Durso presented a
knowingly false claim which warranted the discipline
Durso received. There is no evidence to support this as-
sertion. The clause itself provides that the established
union rate is to be applied to ". . any construction work
done in shop." Respondent's agreement to pay the pre-
mium rate for work performed outside the facility did
not resolve Durso's claim nor foreclose such pay for the
work Durso performed. Even Feld initially was unaware
of the invalidity of the claim, and invited Durso's filing,
and a meeting had to be convened before all parties
"' Cf Iro,,n, f',orker Lo(Nal 118. International A4s.sociation, ,' sBridge oand
Structural Ironwoerk(rs, AfI.-CIO (IPitstburgh Des Moitne. Stle, (omenpnl)l.
257 NLRI 564 ( 8 i: Kolle r-( resornt C ,mpanr. a DOvnion etl Adfofixer, 217
NLRIB ,85, 687, 690 (1975). fenforcement denied ' I R t v. Keller C(re,-
cent C('omrpatr!. a d1vlrii, ol Mtosle'r, 5138 F 2d 1291 (71h Cir I976)
2' Cf Colurt Square IPress. Itl., 235 N RI RB 16 19781: Belrns W'h(olsal,
Spoerting (Gol Co , I88 NL .RI 373 (1971)
became convinced that inside construction work was
limited to installing partitions. McNair's position on the
matter effectively forestalled further pursuit of the griev-
ance, yet the record fails to reveal whether the Union's
interpretation was reasonably based on shop practice, al-
though such a conclusion is likely. In any event, Durso's
claim was not unreasonable given his regular duties, the
special work on the window, the contract language in-
volved, and the prior settlement. Even though the claim
probably lacked merit, there is every basis for conclud-
ing, as I do, that Durso asserted the claim in good faith
without forfeiting the protections of the Act."2
Neither was Durso's rejoinder under all the circum-
stances so extreme, even if Feld's testimonial version is
to be believed, so as to remove the employee from the
Act's protections. Even under Feld's version, it was not
until he had returned to Durso's bench for the second
time within a few hours in the same day, and goaded
Durso by references to Durso's inventing claims to cause
a confrontation, that Durso uttered the forbidden lan-
guage, expressing happiness at making Feld miserable. I
have little problem in concluding that Durso's response
was provoked by Feld's confrontational manner and this
is excusable. This particular confrontation, if believed, is
intimately related and cannot be separated from Durso's
initial assertion of the wage claim. Feld's introductory
accusations and Durso's response was a continuation of
an earlier grievance discussion, and were pertinent to
Durso's claim, albeit having evolved into a questioning
of Durso's good faith. As the court so aptly noted in
Crown Central,2 2 "Grievance meetings arising out of dis-
putes between employer and employee are not calculated
to create an aura of total peace and tranquility where
compliments are lavishly exchanged." And as the Board
stated, much earlier, in The Bettcher Manufacturing Cor-
poration,23 quoted with approval by the court in Crown
Central:
A frank, and not always complimentary, ex-
change of views must be expected and permitted
the negotiators if collective bargaining is to be natu-
ral rather than stilted. The negotiations must be free
not only to put forth demands and counterdemands,
but also to debate and challenge the statements of
one another without censorship, even if in the course
of debate, the veracity of one of the participants occa-
sionally is brought into question. If an employer were
free to discharge an individual employee because he
resented a statement made by that employee during
a bargaining conference, either one of two undesira-
ble results would follow: collective bargaining
would cease to be between equals (an employee
having no parallel method of retaliation), or em-
ployees would hestitate ever to participate personal-
ly in bargaining negotiations, leaving such matters
entirely to their representatives.
21 OAIC Strn Drive, a Deiviwn ofJ Outbavrd Marine Corporation, 253
Nl RB 486. fr 2 (219 )0: lhe, Siner C',ompany, C(lirnute (C'ntreol Divisein,
198 NLR ItH 870, fn 5 (972)
": Supru at 731
: 76 NI RH 52h (1948)
840()
ARTLEY. INCORPORATED
Respondent nonetheless contends that Durso's lan-
guage was so offensive as to be beyond the pale, citing
and quoting from Atlantic Steel Company, 245 NLRB 814
(1979), and Philo Lumber Company, 229 NLRB 210
(1977). Both cases are distinguishable. There, the offen-
sive remarks were expressions of obscenity uttered on
the plant floor where the employer's authority was un-
dermined and the remarks were responses to a valid
work order or reprimand. Unlike the facts in the instant
proceeding, the employers there did not instigate the
confrontation, the employers did not provoke by first
evidencing hostile behavior, nor did the opprobrious
conduct arise in the context or under the res gestae of a
grievance presentation. Applying the several factors dis-
cussed in Atlantic Steel on which the Board relies in de-
termining whether an employee's activity can cross over
the line which separates protected from unprotected, nei-
ther the place (nor setting) of the discussion, its subject
matter, the nature of the employee's outburst, nor the
nature of the employer's provocation (as found, evidenc-
ing discriminatory motivation toward Durso) in the case
sub judice warrant the conclusion that Durso's remarks
should deprive him of the Act's protection.
Respondent also urges that inasmuch as Durso was as-
serting a wage claim for himself he was not thereby en-
gaging in protected concerted activity. Respondent notes
that the Third Circuit Court of Appeals. the circuit
within which this proceeding is pending, rejects the doc-
trine of N.L.R.B. v. Interboro Contractors, Inc., 388 F.2d
495, 500 (2d Cir. 1967), that "activities involving at-
tempts to enforce the provisions of a collective bargain-
ing agreement may be deemed to be for concerted pur-
poses even in the absence of . . . interest (on the part of)
fellow employees." In N.L.R.B. v. Northern Metal Com-
pany, 440 F.2d 881 (3d Cir. 1971), the court refused to
enforce a Board order arising from a decision in which
the Board had found that the company's discharge of a
probationary employee for asserting a claim for holiday
pay was motivated by the employee's presenting a griev-
ance within the framework of the collective-bargaining
agreement, thus affecting the rights of all unit employ-
ees. 24
I am dutybound to apply this established Board prec-
edent, notwithstanding contrary views of a circuit court
of appeals, where, as here, the Board has adhered to this
principle and the Supreme Court has not reversed.25 It
also appears that Durso's activity may even meet the
more limited Third Circuit interpretation, or at any rate
the gloss which the Second Circuit has placed on the
doctrine that requires for an attempt to enforce an agree-
ment to be protected, the employees have a reasonable
basis for believing that their understanding of the terms
was the understanding that had been agreed upon.
" tThe Board has continued to hiold that a contractual claimn is "cmn-
certed" even if a single erlphlosce acls alone. siiLe the Icit is "
"whether his coimpiailrl or ohilectis isi a matter of , icommon Illtcrest alid
concern Io his fellosa cmplioee" Ih, tIl itd (crdit PArenvatu / timri a.
Inc., 242 NLRB 921. 925 (Iq19) Afcord Schncidicr Dairk. Inc. Aprh.
and cases citcd in fni 5 Fien s here a ste ard actI on hi, ox. n behalf the
activity has been found io he concerlld ihbrrr,,is. In . 252 NI RB 529
(1980): .ufagnet l In rrnaulinaul Inc aupra
2I loa Bec/it Ptckcrs. In, . 144 NI RB hi1. h16 I1963)
Unlike Northern Metal Co., Durso's claim was ground-
ed upon a precise clause and language of the agreement.
Furthermore, the claim had its antecedents in a group
demand asserted at the last negotiations which was not
resolved until a concerted refusal to perform outside
work. While the refusal was related directly to work
performed outside the shop, there is no evidence that
any of the unit employees had rejected or would reject
benefits under the portion of the clause providing special
benefits for construction work done in the shop. At least
Durso's fellow carpenters, and even other employees,
could well benefit from Durso's interpretation whenever
construction work not related to normal display erection
was assigned to them. Durso's standing as steward lends
weight to the conclusion that the interpretation Durso
sought had an impact on other employees and was of
common interest and concern.26 Also, in contrast with
the usual fact pattern represented by Northern Metal Co.
Durso's wage claim was the culminating grievance of a
series of claims and adversary positions he had taken as
shop steward under the contract which aroused the in-
creasing ire of the Employer. Thus, reliance solely on
the protected concerted nature of the final claim Durso
asserted would be misplaced. Finally, as noted earlier,
Durso had a reasonable basis for believing that the fram-
ing and installation of the window constituted construc-
tion work in the shop under the language of the clause.
particularly in the absence of any prior application of the
clause to the Newark facility under the agreement. Thus,
the N'.L.R.B. v. John Langenbacher Co.. Inc., 398 F.2d
459 (2d Cir. 1968), reading of the Interboro doctrine
would seem to have been met here.
CONCI USIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. By issuing a warning letter on August 4, 1980, and
by discharging employee Dominick C. Durso on August
21, 1980, Respondent violated Section 8(a)(3) and (I) of
the Act.
THM. REiM I)\,
Having found that Respondent has engaged in certain
unfair labor practices, I shall recommend that it be or-
dered to cease and desist therefrom, and take certain af-
firmative action designed to effectuate the policies of the
Act. Having found that Respondent discharged Domin-
ick C. Durso in violation of Section 8(a)(3) and (1) of the
Act, I recommend that Respondent be ordered to rein-
state him to his former position or, if no longer available,
to a substantially equivalent position, without prejudice
to his seniority and other rights and privileges, and make
him whole for any loss of earning or other monetary loss
he mav have suffered as a result of the discrimination
against him, less interim earnings, if any. The backpay
shall be computed in the manner set forth in IF W 1Uool-
:* 1! I C ed that [)llr, fight f or ouxlidc pas idt] ot brictit himn pr-
%onrlals. a, 1h riarclk i cci . x,.e rkc oift prctrliis
841
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
worth Company, 90 NLRB 289 (1950), with interest to be
computed in the manner described in Florida Steel Corpo-
ration, 231 NLRB 651 (1977). See, generally, Isis Plumb-
ing & Heating Co., 138 NLRB 716 (1962), enforcement
denied on other grounds 332 F.2d 913 (9th Cir. 1963).
I shall also recommend that Respondent rescind and
expunge from all personnel records and files, and any
other records, all copies of the written warning issued to
Dominick C. Durso on August 4, 1980.
Upon the basis of the foregoing findings of fact, con-
clusions of law, and the entire record in this proceeding,
and pursuant to Section 10(c) of the Act, I hereby issue
the following recommended:
ORDER 27
The Respondent, Artley, Incorporated, Newark, New
Jersey, its officers, agents, successors, and assigns, shall:
I. Cease and desist from:
(a) Issuing written warnings, discharging, or otherwise
discriminating against employees in regard to their hire,
tenure of employment, or other terms and conditions of
employment in order to discourage membership in or as-
sistance to Local 821, United Brotherhood of Carpenters
and Joiners of America, or any other labor organization.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of their
rights to self-organization, to form, join, or assist Local
821, United Brotherhood of Carpenters and Joiners of
America, or any other labor organization, to bargain col-
lectively through representatives of their own choosing,
to engage in concerted activities for the purpose of col-
lective bargaining or other mutual aid or protection, or
to refrain from any or all such activities.
27 In the eeunlt no exceptiron are filed as prosided hby Sec 102.46 of
the Rules and Regulations of the Naltionl LI ahor Relationls Board, Ihe
findings, condclusion. , and reconllinicided Order hereitl shall. as proi.lded
in Sec 1(12 48 of the RulIs and Regula;lioll,. he adopted by the Board nd
hbeComCe its findings COI1lusioTI, s (,iid Order, id aill obje. oni thereto
shall be deemed wv, ad fir all purposes
2. Take the following affirmative action which is nec-
essary to effectuate the policies of the Act:
(a) Offer to Dominick C. Durso immediate and full re-
instatement to his former job or, if his job no longer
exists, to a substantially equivalent position, without prej-
udice to his seniority or any other rights and privileges,
and make him whole in the manner set forth in the
Remedy.
(b) Rescind and expunge from all personnel records
and files, and any other records, all copies of the written
warning issued to Dominick C. Durso on August 4,
1980.
(c) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all records nec-
essary to analyze the amount of backpay due under the
terms of this Order.
(d) Post at its Newark, New Jersey, facility copies of
the attached notice marked "Appendix."2- Copies of the
notice, on forms provided by the Regional Director for
Region 22, after being duly signed by Respondent's au-
thorized representative, shall be posted by Respondent
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 Respondent to insure that the notices are not altered,
defaced, or covered by any other material.
(e) Notify the Regional Director for Region 22, in
writing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
27 II the LcVIt that this ()rder is crllorced hy a Judgment of a United
States Couiirt of Appeals, lihe , lrds iln the riottie reading "'Posted by
()rdcr .f lthe Nalilioial lhabor Rvliti)nis Board" shall read "'Psted Pursu-
mll to .i Jtudig nTi f ll Ihe 'l(ticd Sates (tlCourt _t' appeals linforcing mi
()rdcr of the NalioialI I aThor Rclations Board "
842