Jamestown Metal Polishing

National Labor Relations Board - Board Decisions

Aug 31, 1987

285 N.L.R.B. 413 (N.L.R.B. 1987)

JAMESTOWN METAL POLISHING
Jamestown Metal Polishing and Patrick A. McNal-
lie. Case 3-CA-13328
31 August 1987
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
STEPHENS AND CRACRAFT
On 30 March 1987 Administrative Law Judge
Wallace H. Nations issued the attached decision.
The Respondent and the General Counsel filed ex-
ceptions, and the General Counsel filed a support-
ing brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and brief and has
decided to affirm the judge's rulings, findings,' and
conclusions, 2 to modify his 'remedy, 3 and to adopt
the recommended Order.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Jamestown
Metal Polishing, Jamestown, New York, its offi-
cers, agents, successors, and assigns, shall take the
action set forth in the Order.
1 The Respondent has excepted to some of the judge's credibility find-
ings The Board's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect. Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir 1951)
We have carefully examined the record and find no basis for reversing
the findings.
2 In adopting the judge's conclusions in this case we do not rely on his
use of McNalhe's residence and family relationship or the perceived
change in attitude exhibited by the Respondent's supervisors toward
McNalhe to impute knowledge of union activity Instead, we impute such
knowledge to the Respondent on the basis of the fact that McNalhe was
the only employee who spoke out at the meeting in which the Respond-
ent interrogated its employees about their reasons for wanting ' a union
and that, according to McNallie's credited and uncontradicted testimony,
Supervisor Mark Garrett, who was the owner's son, told McNalhe and
Spencer that "he was mad at us guys for what we were doing because he
thought we were trying to screw his dad "
In adopting the judge's finding of an unlawful interrogation we apply
the "all the circumstances" test of Rossmore House, 269 NLRB 1176
(1986). In this case, the Respondent's agents asked the employees ques-
tions concerning their union sentiments at three different plant meetings.
We need not pass on the questioning at the first meeting since the interro-
gations at the second two meetings were clearly coercive under the Ross-
more House test The second and third meetings were conducted by the
Respondent's owner, they occurred after the leading union activist had
been fired, and the interrogations were coupled with unlawful promises
of benefits to the employees if they would agree to forgo seeking the
union election.
S Interest will be computed in accordance with our decision in New
Horizons for the Retarded, 283 NLRB 1173 (1987) Interest on amounts
accrued prior to 1 January 1987 (the effective date of the 1986 amend-
ment to 26 U S.C § 6621) shall be computed in accordance with Florida
Steel Corp, 231; NLRB 651 (1977)
We reject the General Counsel's request for a visitatorial clause as we
do not feel it is necessary under the facts of this case
413
William B. Kenny, Esq., for the General Counsel.
James P. Subjack, Esq., of Jamestown, New York, for the
Respondent.
DECISION
STATEMENT OF THE CASE
WALLACE H. NATIONS, Administrative Law Judge.
Patrick A. McNallie, an individual, filed a charge against
Jamestown Metal Polishing (Respondent) on 7 July
1986.1 On 26 August 1986 the Regional Director for
Region 3 issued a complaint and notice of hearing alleg-
ing that Respondent, by discharging its employee Patrick
A. McNallie, by interrogating its employees, promising
benefits to its employees, and threatening its employees
because of their union activities, has been engaging in
unfair labor practices within the meaning of Section
8(a)(1) and (3) of the National Labor Relations Act. Re-
spondent denies it has violated the Act.
A hearing was held in this matter before me in James-
town, New York, on 17 November 1986. On the entire
record and on.my observation of the witnesses and their
demeanor, I make the following
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Jamestown Metal Polishing, at all times material to
this proceeding, has been a sole proprietorship with its
principal office and place of business in Jamestown, New
York. It engages at that location in the polishing and
buffing of metal products for other companies. Respond-
ent admits the jurisdictional allegations of the complaint
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. THE LABOR ORGANIZATION INVOLVED
Metal Polishers , Buffers, Platers and Allied Workers
International , AFL-CIO (Union) is now, and has at all
times material been , a labor organization within the
meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
Patrick McNallie was employed as a belt polisher by
Respondent from approximately 2 June 1983 to the date
of his discharge on 24 June 1986. During the last 6
months of McNallie's employment, the number of co-
workers employed by Respondent varied between 8 and
12.
In February 1986 George Garrett, Respondent's gener-
al manager, had a meeting with employees where they
were informed they would be put on a piecework pay-
ment basis because production was low and the Compa-
ny was losing money. McNallie and his fellow employ-
ees did not like the proposal as it would result in a pay
cut. They held a meeting and, after talking, decided to
seek union representation to aid in keeping their present
i All dates are in 1986 unless otherwise stated
285 NLRB No. 42
414 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
payscales. McNallie contacted Glen Holt, the president
of the involved local union, on approximately 14 May.
McNallie received authorization cards from the Union in
the mail on 19 May. He was not working at that time-
being on compensation for an injury. When he received
the cards, he contacted five people at the shop who had
previously agreed to sign the cards. They came to his
house, filled the cards out, and mailed them back to the
Union.
McNallie returned to work either the end of May or
the early part of June. Immediately on his return,
McNallie testified he noticed a change in what he de-
scribed as the regular friendly atmosphere between the
employees and the supervisors, Vincent Alessi and the
owner's son, Mark Garrett. On the day of his return, Su-
pervisor Alessi called the employees aside and an-
nounced that they had been notified by the NLRB that a
peition for representation had been filed by the Union.
He asked the employees why. McNallie was the only
employee who spoke up, explaining to Alessi that it was
because of the piecework proposal and the employees'
reluctance to take a cut in pay.
On 16 June Respondent signed a stipulation for an
election to be held on 11 July. Before this, on the shop
floor, Mark Garrett told McNallie and fellow employee,
Robin Spencer, that "he was mad at us guys for what we
were doing because he thought we were trying to screw
his dad," and that the employees should have a talk with
him.
On 12 June McNallie was late to work and received a
verbal warning from Supervisor Alessi to the effect that,
if he was late again , he would be fired. McNallie had
been late for work once or twice a week for the entire
time he had been working for the Company. McNallie
testified that the Company' s personnel records reflect
that being late was a general condition in the shop.
After 12 June McNallie was late on Saturday, 21 June,
but nothing was said to him about it. On Tuesday, 24
June, he and fellow employee Al Kennedy, were both 20
minutes late. Immediately on punching in, McNallie was
summoned to Alessi's office and fired. When he returned
on the following Friday to pick up his paycheck, Alessi
attempted to get him to sign a statement that the sole
reason for his discharge was his lateness. McNallie de-
clined.
As noted, an election was scheduled for 11 July. Al
Kennedy, an employee of the Respondent at the time,
testified that a meeting was held approximately 2 weeks
prior to the election. It was a meeting of all employees
and attended by George Garrett and Vince Alessi. Ken-
nedy testified that Garrett and/or Alessi wanted to know
why the employees wanted the elections and if "we can
work it all out-not to have any elections ...." He tes-
tified that Garrett said that Respondent would give the
employees a Christmas bonus and maybe profit sharing
on the production per month.
Kennedy testified that there was another meeting ap-
proximately a week to 2 days before the election held in
the breakroom of the shop. At this meeting Garrett and
Alessi requested that the employees not vote for the
Union and attempt to solve their problems right there in
the shop because the Company was a small one. Again,
according to Kennedy, Garrett and/or Alessi mentioned
profit sharing, annual raises at Christmas time, and
maybe better bonuses at Christmas. He testified that Gar-
rett asked what he could do to have the employees work
it out with him rather than having a union come into his
Company.
The petition was withdrawn by the Union on 9 July.
With respect to these meetings, Supervisor Alessi testi-
fied that employee Mark Wallace requested a meeting at-
tended by Alessi and Garrett. He testified that the em-
ployees just wanted to talk to Garrett pertaining to the
piecework and other problems throughout the shop.
Alessi testified that Garrett's response to the employees'
questions about their problems was that production was
down and somehow production had to be beefed up be-
cause at the rates the employees were making their pro-
duction was losing the Company money. He testified
that Garrett did not promise an increase in wages but
only agreed to consider the question. He also recalled
that Garrett informed the employees that the Company
tried to give them Christmas bonuses when it could
afford it.
George Garrett also testified that Mark Wallace called
a meeting attended by he and Alessi. He testified that at
the meeting Wallace spoke up and asked what the Com-
pany was going to do if it gets a union. Garrett testified
he stated, "I'm not going to say what I'm going to do if
you get a union." He denied making any promises,
threats, or inducements to the employees for them to
withdraw their petition.
A. Was the Termination of McNallie Unlawfully
Motivated
The General Counsel has presented a compelling case
that Respondent's decision to terminate McNallie was
motivated by union animus and that the stated reason for
his termination was pretextual. As a late-filed exhibit, the
General Counsel has offered into evidence records from
Respondent's personnel files that demonstrate the
number of days worked by Respondent's employees and
the number of times these employees were tardy. No ob-
jection has been offered by Respondent to the exhibit
and it is accepted as part of the record in this proceed-
ing.
Based on his personnel data, it can be determined from
27 September 1985, McNallie worked 53 days ' and was
late 31. From 30 December 1985 through 28 April 1986,
he worked 58 days and was late 17. From 4 April
through 24 June, he worked 49 days and was late 15, in-
cluding the day he was fired. Yet, despite the consistent
record of tardiness, no issue was made of it until after
the filing of the petition that resulted from McNallie's
union activity.
It is revealing to look at the other employees' attend-
ance records. Al Kennedy,-a fellow employee who testi-
fied in the proceeding, worked 56 days in the last quarter
of 1985 and was late 20 of those days. He worked 60
days in the first quarter of 1986 and was late 28 of them.
In the second quarter he worked 60 days through 24
June and was late 31 of those days. As noted above, he
was the employee who was late with McNallie on the
JAMESTOWN METAL POLISHING 415
date of McNallie's termination, but received no warnings
and continued to work for Respondent until he quit.
Employee Tim Colburn worked 50, 53, and 60 days in
the respective three quarters covered by the exhibit and
was late 37, 2, and 17 times. In the 18 days he worked
from 25 June through 25 July, he was late seven times.
A final warning was given to Colburn, but not until the
end of October, after the filing of this proceeding.
Employee L. Passinger worked 48, 42, and 30 days
and was late 16, 45, and 14 days respectively. Employee
Robin Spencer worked 47, 59, and 50 days and was late
32, 9, and 14 times. The exhibit reflects that each of the
other employees was late on at least some occasions
during those quarters.
I find that though McNallie's tardiness record with
Respondent is reprehensible, so is the like record of
many of his fellow employees. Yet, he was the only one
singled out for warning and discharge. This disparate
treatment of McNallie relative to his fellow employees
strongly supports the General Counsel 's theory that Re-
spondent's motive in terminating McNallie was to dis-
courage union activity.
Also supporting the pretextual nature of the discharge
is its timing . McNallie was only warned and discharged
after the filing of the petition by the Union and after
McNallie spoke up at the meeting called by Supervisor
Alessi to determine why the employees wanted a union.
Although Alessi and Garrett deny any knowledge that
McNallie was a union activist, the facts outlined in this
record lead me to discredit the denial. First, as noted,
was McNallie's leadership role taken in the meeting with
Alessi. Second, ' there was the undenied change in atti-
tude exhibited by Respondent's supervisors toward
McNallie after the filing of the petition and his return to
work from an injury. The record reflects that McNallie
lived in the same residence with General Manager Gar-
rett's son , Mark Garrett, who was also engaged to be
married to McNallie's sister. McNallie's actions in speak-
ing up at, the meeting and the closeness of the relation-
ship he bore with Supervisor Mark Garrett, dispels in
my mind any doubt that management of Respondent
knew that McNallie was a union - supporter, if not the
leading union activist in its employ complement.
Next, it cannot be disputed that Respondent harbored
an antiunion animus. Its actions at the meeting held by
Alessi with the employees and at the meetings held by
Garrett and Alessi after McNallie's termination, clearly
demonstrate that the Company did not want the Union.
Similarly, Mark Garrett's undenied statement to McNal-
lie and employee Robin Spencer demonstrating hostility
to the Union supports this view. In conclusion, I agree
with the General Counsel and find that all elements of an
8(a)(3) violation have been proven: activity by the discri-
minatee, knowledge of the activity by the Respondent,
hostility by the Respondent, a timing of discrimination,
and a clearly pretextual reason for the discharge. For the
foregoing reasons, I find that the discharge of McNallie
by the Respondent to be in violation of Section 8(a)(3) of
the Act.
B. The 8(a)(1) Violations
The meetings of the Company's supervisory personnel
with the employees during the pendency of the union pe-
tition-if the description given by employee Kennedy is
credited-clearly constitute violations of Section 8(a)(1)
of the Act. I do credit employee Kennedy's version of
these meetings based on my observation of the witnesses
and the surrounding circumstances. Although Supervisor
Alessi and General Manager Garrett deny that they ever
solicited complaints or problems with employees at later
meetings, it is undisputed that Supervisor Alessi called
the first meeting for the avowed purpose of discovering
why the employees wanted a union. Second, given the
Respondent's actions in its discharge of McNallie, the
leading union activist, after the filing of the petition and
within 1 month of the election, the statements attributed
to them at the meetings by Kennedy are entirely consist-
ent. I therefore find from the record that the employer
interrogated its employees about the employees' union
sympathies and desires, and promised benefits to employ-
ees to sway them from supporting the Union. I further
find that the statement of Mark Garrett to employees
Spencer and McNallie rose to the level of a threat in
violation of the Act, primarily because it was followed
shortly thereafter with the unlawful discharge of McNal-
lie.
CONCLUSIONS OF LAW
1- Respondent is now and , at all times material to this
decision , has been an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
National Labor Relations Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. By unlawfully discharging Patrick A. McNallie on
24 June 1986, Respondent has engaged in unfair labor
practices within the meaning of Section 8(a)(1) and (3) of
the Act.
4. By interrogating its employees about their union
sympathies , promising benefits to its employees to dis-
suade them from supporting the Union, and threatening
its employees with unspecified reprisals because of union
activity, Respondent has engaged in unfair labor prac-
tices within the meaning of Section 8(a)(1) of the Act.
THE REMEDY
Having found that Respondent has engaged in unfair
labor practices, I recommend that it cease and desist
therefrom and to take certain affirmative action designed
to effectuate the policies of the Act. Having found that
Respondent unlawfully discharged Patrick A. McNallie
on 24 June 1986 and has since failed and refused to rein-
state him in violation of Section 8(a)(1) and (3) of the
Act, I recommend that Respondent remedy such unlaw-
ful conduct. In accordance with Board policy, I recom-
mend that Respondent be ordered to offer Patrick A.
McNallie immediate and full reinstatement to his former
job, discharging if necessary any employee hired to re-
place him or, if that job no longer exists, to a substantial-
ly equivalent position, without prejudice to his seniority
416 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
or other rights and privileges and make him whole for
any loss of earnings he may have suffered by payment to
him of an amount he normally would have earned from
24 June 1986 to the date of an offer of reinstatement, less
net earnings, in accordance with the formula set forth in
F. W. Woolworth Co., 90 NLRB 289 (1950), to which
should be added interest computed as prescribed in Flori-
da Steel Corp., 231 NLRB 651 (1977). See generally Isis
Plumbing Co., 138 NLRB 716 (1962). I further recom-
mend that Respondent be required to remove from it
files any reference to the discharge of Patrick A. McNal-
lie and notify him in writing that this has been done and
that evidence of his unlawful discharge will not be used
as a basis for future personnel actions against him.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed2
ORDER
The Respondent, Jamestown Metal Polishing, James-
town, New York, its officers , agents, successors , and as-
signs, shall
1. Cease and desist from
(a) Discouraging union or protected concerted activi-
ties of its employees or their membership in Metal Pol-
ishers, Buffers, Platers and Allied Workers International
Workers, AFL-CIO, or any other labor organization, by
unlawfully and discriminatorily discharging its employ-
ees or discriminating against them in any manner with
respect to their hire, tenure of employment, or any term
or condition of employment, in violation of Section
8(a)(1) and (3) of the Act.
(b) Interrogating its employees about their union sym-
pathies, promising benefits to its employees to dissuade
them from supporting the Union, and threatening its em-
ployees with reprisals because of their union activities.
(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Offer Patrick A. McNallie immediate and full rein-
statement to his former position or, if such position no
'longer exists, to a substantially equivalent position, with-
out prejudice to his seniority or other rights and privi-
leges previously enjoyed, discharging, if necessary, any
employee hired to replace him, and to make him whole
for any loss of pay -he may have suffered by reason of
Respondent's unlawful discharge of him in accordance
with the recommendations set forth in the remedy sec-
tion of this decision.
(b) Remove from its files any reference to the unlawful
discharge of Patrick A. McNallie and notify him in writ-
ing that this has been done and that the discharge will
not be used against him in any way.
2 If no exceptions are filed as provided by Sec . 102.46 of the Board's
Rules and Regulations , the findings , conclusions, and recommended
Order shall, as provided in Sec. 102 48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
(c) Preserve and, on 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 reports, and all other records nec-
essary to analyze the amount of backpay due under the
terms of this Order.
(d) Post at its Jamestown, New York place of business
copies of the attached notice marked "Appendix."3
Copies of said notice, on forms provided by the Regional
Director for Region 3, after being signed by Respond-
ent's authorized representative, shall be posted by Re-
spondent immediately on receipt and maintained for 60
consecutive days in conspicuous places, including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respondent to
ensure that the notices are not altered, defaced, or cov-
ered by any other material.
(e) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
3 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
al 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 "
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
Section 7 of the Act gives employees these rights:
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these protect-
ed concerted activities.
WE WILL NOT discourage union or protected activities
by our employees or their membership in Metal Polish-
ers, Buffers, Platers and Allied Workers International
Union , AFL-CIO, or any other labor organization, by
unlawfully discriminatorily discharging our employees or
discriminating against them in any manner with respect
to their hire or tenure of employment or any term or
condition of employment in violation of Section 8(a)(1)
and (3) of the National Labor Relations Act.
WE WILL NOT interrogate our employees about their
union sympathies, promise benefits to our employees in
order to dissuade them from supporting a union or
threaten our employees with unspecified reprisals be-
cause of their union activities.
JAMESTOWN METAL POLISHING 417
WE WILL NOT in any like or related manner interfere
with , restrain , or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL offer Patrick McNallie , whom we unlawful-
ly discharged on 24 June 1986 , immediate and full rein-
statement to his former position or, if that position no
longer exists, to a substantially equivalent position, dis-
charging, if necessary , any employee hired to replace
him; WE WILL restore his seniority or other rights and
privileges previously enjoyed; WE WILL make him whole
for any loss of backpay to which he may be entitled, to-
gether with interest.
WE WILL remove from our files any reference to the
unlawful discharge of Patrick A. McNallie and notify
him in writing that this has been done and that evidence
of this unlawful action will not be used as a basis of
future discipline against him.
JAMESTOWN METAL POLISHING