Keystone Building Products

National Labor Relations Board - Board Decisions

Apr 6, 1973

202 N.L.R.B. 963 (N.L.R.B. 1973)

KEYSTONE BUILDING PRODUCTS 963
Keystone Building Products and Aluminum Workers
International Union , AFL-CIO, Region #4. Case
4-CA-5891
April 6, 1973
DECISION AND ORDER
By CHAIRMAN MILLER AND MEMBERS
FANNING AND JENKINS
On November 22, 1972, Administrative Law Judge
John P. von Rohr issued the attached Decision in
this proceeding. Thereafter, Respondent's president
filed exceptions and also through counsel Respon-
dent filed exceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has. decided to affirm the rulings,
findings,' and conclusions2 of the Administrative
Law Judge and to adopt his recommended Order.
ORDER
instant case, he finds that the .rule was discriminatorily applied for the
reasons found by the Administrative Law Judge.
2 Respondent has requested oral argument. The request is hereby denied
as, in our opinion, the record, exceptions, and brief adequately present the
positions of the parties.
DECISION
STATEMENT OF THE CASE .
JOHN P. VON ROHR, Administrative Law Judge: Upon a
charge filed on March 14, 1972, the General Counsel of the
National Labor Relations Board, for the Regional Director
of Region 4 (Philadelphia, Pennsylvania) issued a com-
plaint and an amended complaint on May 31 and August
15, 1972, respectively, against Keystone Building Products,
herein called the Respondent or the Company, alleging
that it had engaged in certain unfair labor practices within
the meaning of Section 8(a)(1), (3), and (5) of the National
Labor Relations Act, as amended, herein called the Act.
The Respondent filed an answer denying the allegations of
unlawful conduct alleged in the complaint.
Pursuant to notice, a hearing was held before Adminis-
trative Law Judge John P. von Rohr in Harrisburg,
Pennsylvania, on August 30, 1972. Briefs were received
from the General Counsel and Respondent on October 27,
1972, and they have been carefully considered.
Upon the entire record in this case and from my
observation of the witnesses, I hereby make the following:
FINDINGS OF FACT
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge, as
modified below, and hereby orders that Respondent,
Keystone Building Products, Harrisburg, Pennsylva-
nia, its officers, agents, successors, and assigns, shall
take the action set forth in the Administrative Law
.Judge's recommended Order.
Chairman Miller agrees that employee Reed was discharged in
violation of Sec. 8(a)(I) and (3) of the Act. However, he would limit the
basis for making such a finding to the ground that Respondent terminated
her employment in reprisal for her union activities under the pretext that
she had not complied with Respondent's rule that a doctor's certificate be
produced in the event of absenteeism. While he agrees with the finding that
this rule was unlawfully promulgated, he does not find that it follows as a
matter of course, as appears to have been found by the Administrative Law
Judge, that the mere application of such unlawful rule renders the
disciplinary action taken pursuant to it per se violative of the Act. He
believes that the nature of the conduct for which the discipline was imposed
under the rule must be examined to determine whether it was motivated by
discriminatory reasons or disparate treatment, or by employees flagrant
disregard of their assigned duties. See his dissent in Daylin, Inc., Discount
Division d/b/a Miller's Discount Dept. Stores, 198 NLRB No. 40. In the
1. THE BUSINESS OF RESPONDENT
The Respondent is a Pennsylvania corporation with its
principal office and place of business located in Harris-
burg, Pennsylvania, where it is engaged in the manufacture
of doors, windows, building sidings, household furniture,
and the like..During the year preceding the issuance of the
complaint, Respondent sold goods and products valued in
excess of $50,000 to customers located outside the State of
Pennsylvania. I find that Respondent is engaged in
commerce within the meaning of Section 2(5) of the Act.
It. THE LABOR ORGANIZATION INVOLVED
Aluminum Workers International Union, AFL-CIO,
Region #4, is a labor organization within the meaning of
Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Issues
On October 20, 1971, Respondent discharged Maximo
Vasquez and on the same date suspended Vincent Vasquez
964 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
for approximately 3 days. Employee Theresa Reed was
subsequently discharged on November 8, 1971. At issue
herein is whether Respondent 's action against these three
employees was taken in violation of Section 8(a)(1) and (3)
of the Act. In addition, the complaint alleges, and
Respondent denies, that (1) Respondent engaged in
various conduct independently violative of Section 8(a)(1)
of the Act, and that (2) in December 1971 it refused to give
its employees an annual Christmas bonus in violation of
Section 8(a)(1), (3), and (5) of the Act.
B. The Discharge of Maximo Vasquez and the
Suspension of Vincent Vasquez
Preliminarily, the following chronological background
events are to be noted: An organizing campaign by the
Charging Union was conducted among Respondent's
employees commencing about early October 1971. Pur-
suant to a representation petition filed on October 8, 1971,1
in Case 4-RC-9398, a preelection conference was held
among its parties on October 27, -following which an
election was conducted on November 17. The results of the
election were 35 votes for the Union, 2 votes against, and 1
challenged ballot. On November 26, the Union was
certified as the collective-bargaining agent for Respon-
dent's production and maintenance employees, excluding
laboratory employees, office clerical employees, plant
clerical employees, confidential employees, technical em-
ployees, professional employees, truckdrivers, guards, and
supervisors as defined in the Act.
Maximo Vasquez, employed by Respondent since
November 9, 1970, unquestionably was the leading union
organizer among the employees. Thus, he was the only
employee who solicited for the Union at the plant in which
he worked and he obtained signed authorization cards
from 20-21 of the approximately 24 employees who
worked there.2 Vasquez testified without contradiction that
about 4 days before his termination he was approached by
John Devonshire, the foreman of the storm door depart-
ment, who asked him who was the leader of the Union.
Maximo responded that he was, whereupon Devonshire
stated that he would like a card, indicating that he would
like to join the Union. However, Devonshire returned the
card to Vasquez about 30 minutes later without having
signed it.
Vincent Vasquez, who signed a union card, is a brother-
in-law of Maximo Vasquez, and has been in Respondent's
employ since July 197.1. On October 15, a Friday, Maximo
and Vincent worked together on an operation involving the
use of a machine which cut end pieces for shutter frames. It
is undisputed that at some point during the day these
employees were unable to continue this operation due to
the fact that the machine broke down. Vincent promptly
reported this to the foreman, Robert Yon. Yon, however,
I All dates hereinafter refer to the year 1971 unless otherwise noted.
2 Vasquez worked in the larger of two plants which are located across the
street from each other . It may be noted that the majority of Respondent's
employees are classified as laborers. (G.C. Exh. 4.)
3 Credited and unrefuted testimony of Maximo.
4 Unrefuted testimony of Vincent.
5 Unrefuted and credited testimony on Maximo.
merely replied that he was too busy to repair the machine
and offered no further suggestions.3 Harold LeFevre, the
plant mechanic, was off work that day but happened to
walk in the plant. He was observed by Maximo and
Maximo also reported the breakdown to him. LeFevre,
however, stated that he was off work and that he would not
repair the machine.
Having obtained no assistance from either the foreman
or the maintenance man, Maximo Vasquez sent Vincent
Vasquez to the office which is located in the plant across
the street. Vincent did so and spoke to Clarence Farr, the
office manager and a company supervisor. Vincent advised
Farr about the machine breaking down and asked for his
and Maximo's paychecks so they could go home.4 Farr
gave him the paychecks, whereupon Vincent went back
across the street to pick up Maximo and they both went
home.
On the following Monday, October 18, Vincent returned
to work as usual . However , due to. the illness of his wife
who had returned from the hospital , Maximo remained at
home to take care of the children. Accordingly, at 8 o'clock
that morning, he called the plant and spoke to Albert
Kovner, Respondent's president. Upon listening to Maxi-
mo's explanation as to why he would be absent, Kovner
merely replied that he had his own problems and hung up.5
With the situation at home remaining the same , Maximo
again did not go to work on Tuesday. However , he testified
that he did not call in again because of the response he
received from Kovner the preceding day.
In the meantime, Vincent worked all day Monday and a
half day on Tuesday until he became ill on Tuesday noon.
He reported this fact to Foreman Yon and was excused by
Yon for the remainder. of the day.
On Wednesday morning, October 20, Vincent and
Maximo reported to work together but found their
timecards had been pulled from the rack. They both
thereupon left the plant and went to Maximo's home where
Maximo called Kovner .6 Kovner at this time told Maximo
that he had been out for a week, that he had been replaced
and that Respondent did not need him anymore.? With
this Maximo was terminated.
On the following day, October 21, Vincent went to the
plant to speak to Kovner about his situation. According to
Vincent's undenied and credited testimony concerning the
entire conversation which ensued, Kovner began by asking
"which one" put the Union in. Vincent stated that he knew
nothing about it. Kovner thereupon stated that because he
was not sure who brought the Union in, he had pulled two
timecards-his (Vincent's) and that of his brother-in-law,
Maximo. Continuing, Kovner proceeded to say that "he
was going to take care of whoever started the Union."
After some further discussion , Vincent said he would like
his job back and asked if he could start the next day,
Friday. Responding first that he would not be permitted to
do so, Kovner went on to say that he was "figuring" to
6 When queried as to why they went home to call Kovner, Maximo,
referring to his earlier telephone call to Kovner , explained , " I figure to go
home - because he didn ' t want to listen to me on Monday before . I said, I
prefer to call him by telephone wire."
7 Maximo , whose testimony concerning this conversation was not
refuted , did not give any further details and did not indicate if anything was
said about Vincent during the conversation.
KEYSTONE BUILDING PRODUCTS
close the plant but that he [Vincent] could come in on
Monday, at which time he could go to work if he found the
plant open or he could go home if he found the plant
closed. Suffice it to note here that Vincent thereupon left
the plant. He reported the following Monday . and at that
time was permitted to return to work.
C. Conclusions as to the Vasquezes
President Albert Kovner was present. throughout the
hearing. Having dismissed an attorney whom he engaged
at the prehearing stage, Kovner chose to proceed with the
hearing without counsel and declined the opportunity,
offered to him at the outset of the hearing, to engage an
attorney. While the evidence proffered by the General
Counsel in itself discloses that Respondent was opposed to
the Union, the hostility borne by Respondent's president
against the Union was further manifested during the
hearing by his frequent and uncalled for abusive outbursts
against the union representative who was present. Kovner
also testified as a witness. Insofar as the cases of Maximo
and Vincent Vasquez are concerned, Kovner did not deny
the damaging testimony of Vincent Vasquez concerning
the conversation which he had with Vincent on October 21
when Vincent returned to the plant. During this conversa-
tion, Kovner admitted the discrimination by stating that,
since he did not know which of the Vasquez brought in the
Union, he pulled the cards of both of them. Clearly a prima
facie case of discrimination against Maximo and Vincent
was thereby established.
I have not overlooked the testimony of foreman Robert
Yon, who claimed to have pulled the card of Maximo
Vasquez and who in effect testified that it was he who was
responsible for the termination of this employee. However,
Yon not only frequently contradicted himself but gave
testimony which was contradictory to other unrefuted and
established facts in the record. In view of this patently
unreliable testimony (which is clearly shown in the record),
as well- as my observation of him as a witness, I do not
credit his testimony insofar as it controverts the testimony
of either Vincent or Maximo Vasquez, or differs from other
established facts in the record.
Respondent appears to argue in its brief that the action
against Vincent and Maximo was taken, at least in part,
because these employees left the plant on October 15
without notifying their • foreman. The answer to this
contention is twofold. Thus, not only did these employees
receive permission from the office manager to leave the
plant upon apprising him that their machine had broken
down and would not be repaired that day, but the fact is
that Vincent returned to work the following Monday
without anything being said to him for having left the plant
the preceding Friday: Any belated assertion concerning the
Friday incident, therefore, can only be regarded as a
pretext. Moreover, Respondent offered no explanation at
all as to why, after permitting Vincent Vasquez to work on
Monday and excusing him after a half day's work on
Tuesday, it pulled his card and suspended him on
Wednesday.
In view of all the foregoing, and upon. the entire record, I
find that on October 20, 1971, Respondent discharged
Maximo Vasquez and suspended Vincent Vasquez in
965
violation of Section 8(a)(3) and (1) of the Act because of
their actual or suspected union activities. These violations
will become even more apparent when considered in the
context of Respondent's commission of the further unfair
labor practices hereinafter discussed and found.
D. The Retaliatory Absenteeism Rule
On or about October 20, 1971, Respondent posted a
notice on its bulletin board which stated as follows:
Starting time is 8 am
Quitting time is 5 pm
All overtime work must be ok'd by Robert Yon
The work week is 40 hrs. Anyone reporting off must
bring a doctor's certificate when reporting back to
work
Although Kovner asserted that the rule requiring absent
employees to produce a doctor's certificate was promulgat-
ed because of excessive absenteeism, I am persuaded that
the imposition of the rule at this time was not motivated
for this reason. Thus, the record is replete with uncontro-
verted testimony that Respondent had long tolerated
unexcused absences of its employees and throughout this
period had never announced any rule to put an end to this
practice. While obviously an employer need not tolerate a
condition such as this to continue indefinitely, the timing
of Respondent's new rule, coming as it did during the
height of the Union's campaign, leads to the inescapable
conclusion that it was instituted to discourage the union
activities and/or to act as a reprisal against the employees
for engaging in such activities. Indeed, that Kovner related
the rule to the advent of the Union is manifested in his
response to a question as to why the rule was posted at this
particular time. Thus, in answer to the question posed,
Kovner testified, "Yes. For the simple reason that when
you read the rules and regulations-when you sign a
contract with the Union-you can't say good morning to a
man without writing a letter first." Further indicative that
the new rule was unlawfully motivated was Kovner's
simultaneous-illegal conduct, on or about the day after the
rule was posted, in advising Vincent Vasquez that he had
pulled the cards of Vincent and Maximo Vasquez because
he suspected that one of them was the leader in bringing
the Union in the plant.
I conclude and find that under the foregoing circum-
stances Respondent's imposition of the rule requiring
absent employees to bring in a doctor's certificate was
violative of Section 8(a)(l) of the Act. See Carlisle Paper
Box Company, 168 NLRB 706, 716.
E. , The Discharge of Theresa Reed,
Theresa Reed was employed in Respondent's storm door
department since September 9, 1970. She was discharged
on November 6, 1971.
Several weeks before her discharge, Reed was observed
signing a union card in the department where she worked
by Foreman John Devonshire. Devonshire at this time
966 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
asked what she had and Reed replied that it was a union
card.8 Later that day he told Reed that there was no sense
in signing a card because " that is as far as it went before."
Several days thereafter Devonshire approached Reed
again. This time he told her that Kovner had a list of
names of everyone who had signed blue (union) cards and
that he was going to get rid of those who had signed.
It is undisputed that on the noon of Friday, November 5,
Reed advised: Devonshire that she was taking the afternoon
off. She then went to another department to meet her
sister, Ruth May, and they advised Richard Jackson, who
was in charge of May's department at the time,9 that they
were leaving for the day because Reed had to take May to
the doctor. Jackson gave his assent. S
That same Friday evening Reed was advised by a
relative who worked at the plant that Devonshire had
advised her (the relative) to tell her (Reed) that Kovner had,
pulled her timecard.
On the following morning, November 6, Reed met
Devonshire on the street as he was coming from her home
where he had stopped to see her. Devonshire's first remark
was that "they finally did it." He then confirmed that
Kovner had pulled her card and that of her sister. When
Reed thereupon asked what she could do, Devonshire
replied that she should come in on Monday "like you don't
know you're fired."
On Monday, November 8, Reed and her sister, Ruth
May, stopped first to see Office Manager Fan where May
gave Farr a doctor's certificate for the preceding Friday.
Farr then obtained May's timecard, whereupon they all
went to Kovner's office. Fan asked Kovner if he was to
put Reed'and May back to work. Kovner asked if they had
a doctor's excuse. Farr replied that May did. Kovner stated
that May could return to work. However, when Farr then
advised that Reed did not have a doctor's excuse, Kovner
stated that she could not return to work.10 With this Reed
was terminated.
F. Conclusions as to Reed
,The evidence leaves little room for doubt, and I find,
that Respondent discharged Reed in violation of Section
8(a)(3) and (1) of the Act. Thus, I would first note that the
only reason given by Respondent for terminating this
employee was testified to by Kovner as follows:
The big-why she was left out-was because we did
.not have enough work in that department to keep two
people. There are two people running that department
and according to the work that is being done in any one
department-in that department-to this very day. I
don't need her. in there, but we took her back regardless
because this is the way the general wanted it.h1
The reason thus cited by Kovner obviously differs from
that which he gave to Reed when she was discharged, i.e.,
that she failed to produce a doctor's certificate. Applicable
11 Beyond the fact that Reed impressed me as a credible witness, Reed's
testimony concerning her conversations with Devonshire is undenied.
Devonshire did not testify.
9 Although Jackson was a leadman , he at this time was substituting for
the regular foreman, Robert Barker , who was absent.
10 Reed testified that at one point during the conversation, when
reference was made to her not having a doctor's excuse, she stated , "Well,
Mr. Kovner , you know l wasn ' t sick and I wasn't going to make me out a
here, then, is the well established and self-explanatory rule
that Respondent 's inconsistent and shifting reasons for the
discharge is in itself a strong indicia of discriminatory
intent.12.
Returning to the reason- given to Reed at the time of her
discharge , this of course was in direct reference to the new
rule concerning the doctor's certificate which was posted
by Respondent on October 20. Accordingly, having found
that the rule in question was unlawfully promulgated, it
follows that Respondent also committed an unfair labor
practice within the meaning of Section 8(a)(1) and (3)'of
the Act when it implemented the rule by its discharge of
employee Reed . Finally, and assuming arguendo that the
rule was not unlawful , the plain fact is that Reed notified
her foreman that she would be absent on the afternoon of
Friday, November 5. Since her absence therefore was
taken with Respondent 's knowledge and consent , it is clear
that Respondent's rule did not apply and that Respon-
dent 's attempt to make it applicable was manifestly but a
coverup for discrimination against this employee whom it
knew,to have signed a union card.
G. The Failure to Grant a Christmas Bonus in
1971
The complaint alleges . that Respondent violated Section
8(a)(1), (3), and (5) of the Act in that in December 1971 it
refused to give an annual Christmas bonus to its pro-
duction and maintenance employees because they chose the
Union as their representative in a Board election conduct-
ed on November 17, 1971, and, further, that Respondent's
refusal came without prior notice to or bargaining with the
Union.
The fact that it was a practice of the Respondent to grant
its employees a Christmas bonus (or a Christmas "pres-
ent," as it was characterized by President Kovner) is
without dispute. This was conceded by Office Manager
Farr, who testified that practically all of the employees
received ' a "gift" around Christmas time ever since he had
been with the Company. Employee Richard Jackson,
employed since November 1967, testified without contra- .
diction that he had always received a Christmas bonus, this
having consisted of $10 for the first year of his employ-
ment, but having been increased to a full weeks pay for
every year thereafter. In view of the foregoing, I find that
the Christmas bonus did not consist of isolated gifts or
gratuities , but rather constituted a part of the compensato-
ry wage structure of the employees and hence constituted a
term or condition of employment.13
Departing from its usual practice , it is undisputed that
with only two exceptions Respondent did not grant a
Christmas bonus to the approximate 37 unit employees in
1971. On the other hand, Respondent did give a Christmas
bonus , to its truckdrivers and office employees, both
categories of which were excluded from the appropriate
liar and make out my doctor a liar."
11 Although the record does not reflect the date , Reed was reinstated at
some point subsequent to her discharge.
12 Concerning the reason cited by Kovner at the hearing , it may be
further noted that Respondent offered no evidence whatsoever to show
there was any reduction of work in Reed's department.
13 Mississippi Steel Corp., 169 NLRB 647, and cases cited therein.
KEYSTONE BUILDING PRODUCTS
bargaining unit. The employees in the said unit, it will be
recalled, voted on November 26, 1971 (by vote of 35 to 2),
to designate the Union as their collective-bargaining agent.
Respondent offered no defense, economic or otherwise,
to explain its departure from past practice in failing to
grant a Christmas bonus to the unit employees in 1971.
Indeed, with respect to the granting of the bonus Kovner
merely testified, "When I felt they were deserving, I gave it
to them." In view of Respondent's demonstrated hostility
to the Union, as well as its failure to give any explanation
for not granting the bonus, I think it clear that the
withholding of this benefit was motivated by Respondent's
design to retaliate against the "undeserving" employees for
having selected the Union as their bargaining agent.14 I
find that by this action Respondent violated Section 8(a)(3)
and (1) of the Act. Furthermore, since the Union, then the
bargaining agent, was not notified or consulted with the
respect to the nonpayment, Respondent thereby also
violated Section 8(a)(5) of the Act. N.L.R.B. v. Benne Katz,
369 U.S. 736.
Finally, and in accordance with the facts heretofore
related, I find that Respondent engaged in further
violations of Section 8(a)(1) of the Act by the following
conduct: (1) Devonshire's and Kovner's interrogation of
employees as to who was the leader of the Union and "who
brought the Union in"; (2) Kovner's statement to Vincent
Vasquez what he was going to "take care of" whoever
started the Union; and (3) Devonshire's statement to Reed
that Kovner had a list of names of all those who had signed
union cards and that he was going to get rid of them.15
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent set forth in section III,
above, occurring in connection with the operations of
Respondent described in section I, above, have a close,
intimate, and substantial relationship to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I shall recommend that it cease and
desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act.
It having been found that Respondent discriminatorily
discharged Maximo Vasquez, I shall recommend that
Respondent be ordered to offer him full and immediate
reinstatement to his former job or, if this job no longer
11 The evidence also reveals that shortly after the representation election
Kovner directed Farr to take Respondent's list of eligible voters and on it
check the names of those who had voted Farr followed Kovner's directions
and testified that this was done because "Kovner suggested that we try to
figure out who the two "no" votes were " Without relying on this in making
the findings above, I do think Kovner's thus expressed interest in
ascertaining the identity of the two "no" votes strongly suggests that this is
the reason for the granting of a Christmas bonus to only two of the unit
employees
11 Contrary to an amendment to the complaint, 1 do not find
Respondent's letter of August 16, 1972, which I have fully considered, to be
violative of Sec 8(a)(I) of the Act In the first place, the letter was not
967
exists, to a substantial equivalent position, without preju-
dice to his seniority or other rights and privileges, and
make him whole for any loss of earnings he may have
suffered from the time of his discharge to the date of
Respondent's offer of reinstatement. Backpay shall be
computed in accordance with the formula set forth in F W.
Woolworth Company, 90 NLRB 289, with interest thereon
computed to a manner and an amount prescribed in Isis
Plumbing & Heating Co., 138 NLRB 716. Although
subsequently reinstated, it has also been found that
Respondent discriminatorily discharged Vincent Vasquez
and Theresa Reed. Accordingly, it is recommended that
Respondent make these employees, and each of them,
whole for any loss of earnings they may have suffered from
the time of their discharge until the date of their
reinstatement. Backpay shall be computed in the manner
as aforesaid.
It is further recommended that Respondent make the
unit employees whole for the monetary loss suffered by
them as a result of the unlawful withholding of the 1971
Christmas bonus The determination of the amounts due
shall be determined in the compliance stage of this
proceeding, taking into consideration the amount already
granted two unit employees as well as all pertinent
financial records of the Respondent which would tend to
bear on the amount of money that would have been made
available for the bonus but for the employees' union
activities.16 I also recommend that Respondent be required
to bargain collectively with the Union, upon request,
concerning any changes in terms and conditions of
employment prior to effectuating such changes.
Since a discriminatory discharge of an employee goes to
the very heart of the Act (N.L R B v. Entwistle Mfg. Co.,
120 F.2d 532, 536 (C.A.4)), it will be recommended that the
Respondent be ordered to cease and desist from infringing
in any manner upon the rights guaranteed in Section 7 of
the Act.
CONCLUSIONS OF LAW
1. The Respondent is engaged in commerce and the
Union is a labor organization, all within the meaning of the
Act.
2. By discriminating in regard to the hire and tenure of
Maximo Vasquez, Vincent Vasquez, and Theresa Reed,
thereby discouraging membership in the Union, Respon-
dent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8(a)(3) and (1) of
the Act.
3. By failing to pay the 1971 Christmas bonus for the
purpose of discouraging membership in the Union, and by
addressed to any of the employees, but was sent to the Board and
nonemployee representatives of the Charging Party There is, moreover, no
evidence that it was shown to the employees or that its contents were
publicized in any event, the language contained in the letter is, in my
opinion , too ambiguous to constitute a threat within the meaning of Sec
8(a)(1) I recommend that this allegation be dismissed
16 The facts in this case are analagous to those in Mississippi Steel
Corporation, supra, wherein the Board also left the determination of the
amount of the Christmas bonus to be made at the compliance stage
Whatever amount is ultimately determined , I recommend that it include
interest at the rate of 6 percent per annum
968 . DECISIONS OF NATIONAL LABOR RELATIONS BOARD
acting unilaterally,. without prior notice to or bargaining
with the Union, Respondent has engaged' in and is
engaging in unfair labor practices within the meaning of
Section 8(a)(l), (3), and (5) of the Act.
4. By the foregoing and other independent acts and
conduct interfering with, restraining, and coercing employ-
ees in the exercise of their rights guaranteed in Section 7 of
the Act, Respondent has engaged in and is engaging in
unfair labor practices within the meaning of Section 8(a)(l)
of the Act.
5. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
Upon the basis of the foregoing findings of fact and
conclusions of law, and upon the entire record in this case,
and pursuant to Section 10(c) of the Act, I hereby make the
following recommended:
ORDER 17
Respondent, Keystone Building Products, its officers,
agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discharging, suspending, or otherwise discriminating
against any employee because of activity on behalf of, or
membership, in, Aluminum Workers International Union,
AFL-CIO, Region #4, or any other labor organization.
(b) Threatening its employees with discharge or other
reprisals because of their union activities.
(c) Interrogating its employees concerning the identity of
the supporters of the above-named Union, or any other
labor organization.
(d) Withholding Christmas benefits, or other benefits, to
dissuade employees from selecting a bargaining representa-
tive.
(e) Instituting new rules or changes in working condi-
tions for the purpose of discouraging union membership or
activity.
(f) Discontinuing a Christmas bonus, or other benefits,
or changing any term or condition of employment of
employees in the appropriate bargaining unit, without
notifying, consulting, and bargaining with the above-
named Union, as the exclusive representative of its
employees in the appropriate unit.
(g) In any other manner interfering with, restraining, or
coercing employees in the exercise of their rights guaran-
teed in Section 7 of the Act.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Notify and consult the above-named Union, and
afford it an opportunity to bargain collectively, with
respect to any changes in wages, bonuses, or other terms
and conditions of employment before effectuating such
changes.
(b) Offer to Maximo Vasquez immediate and full
reinstatement to his former job or, if this job no longer
exists, to a substantially equivalent position without
prejudice to his seniority or other rights and privileges, and
make him whole for any loss of pay he may have suffered
by reason of the discrimination against him in the manner
set forth in the section of this Decision entitled "The
Remedy."
(c) Make whole Vincent Vasquez and Theresa Reed for
any loss of pay they may have suffered by reason of the
discrimination against them, in the manner set forth in this
section of this Decision entitled "The Remedy."
(d) Make whole the employees in the appropriate unit
the amount of the Christmas bonus which was unlawfully
omitted in 1971, in the manner set forth in the section of
this Decision entitled "The Remedy."
(e) Preserve and, upon request, make available to the
Board, or its agents, for examination and copying, all
payroll records, social security payment records, timecards,
personnel records and reports, and all other records
necessary or appropriate to analyze the amount of backpay
due and the amount of the Christmas bonus due.
(f) Post at its plant in Harrisburg, Pennsylvania, copies
of the attached notice marked "Appendix." 18 Copies of the
notice, on forms provided by the Regional Director for
Region 4, after being duly signed by Respondent's
authorized representative, shall be posted by it for a period
of 60 consecutive days thereafter, in conspicuous places,
including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the
Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(g) Notify the Regional Director for Region 4, in writing,
within 20 days from the date of the receipt of this Decision
what steps Respondent has taken to comply herewith.
IT IS FURTHER RECOMMENDED that the complaint be
dismissed insofar as it alleges violations of the Act not
specifically found herein..
17 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.
' In the event the Board's Order is enforced by a Judgment of the
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."
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 Aluminum
Workers International Union , AFL-CIO, Region 4, or
any other labor organization , by discharging or
otherwise discriminating against our employees be-
cause of their union or concerted activities.
WE WILL NOT threaten our employees with discharge
or other reprisals for engaging in union activities or
supporting any labor organization.
WE WILL NOT interrogate our employees concerning
the identity of union supporters.
WE WILL NOT institute new rules or changes in
working conditions in order to discourage union
activity or membership among our employees.
WE WILL NOT withhold a Christmas bonus, or other
KEYSTONE BUILDING PRODUCTS 969
benefits, in order to dissuade employees from selecting
a bargaining representative.
WE WILL NOT discontinue a Christmas bonus, or
other benefits, or change any term or condition of
employment of our employees in the bargaining unit,
without notifying, consulting, and bargaining with the
above-named Union as the exclusive representative of
our employees in the appropriate bargaining unit.
WE WILL offer Maximo Vasquez immediate and full
reinstatement to'his former job or, if that job no longer
exists, to a substantially equivalent position, without
prejudice to his seniority or other rights and privileges,
and make him whole for any loss of pay suffered-as a
result of the discrimination against him.
WE WILL make Vincent Vasquez and Theresa Reed
whole for any loss of pay they may have suffered as a
result of the discrimination practiced against them.
WE WILL notify and consult the above-named
Union, and afford it an opportunity to bargain
collectively, with respect to any changes in wages,
bonuses, or other terms and conditions of employment
before effectuating such changes.
WE WILL make whole the employees in the appropri-
ate unit the amount of the Christmas bonus which was
unlawfully omitted in 1971.
WE WILL NOT in any other manner interfere with,
restrain , or coerce our employees in the exercise of their
rights guaranteed them in Section 7 of the Act.
KEYSTONE BUILDING
PRODUCTS
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material. Any questions concern-
ing this notice or compliance with its provisions may be
directed to the Board's Office, 1700 Bankers Securities
Building, Walnut & Juniper Streets, Philadelphia, Pennsyl-
vania 19107, Telephone 215-597-7601.