Silogram Lubricants Corp.

National Labor Relations Board - Board Decisions

Apr 28, 1998

325 N.L.R.B. 678 (N.L.R.B. 1998)

678
325 NLRB No. 123
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. 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 agreeing with the conclusion that the Respondent’s discharge
of Harvey Berezin violated Sec. 8(a)(3), Member Hurtgen notes that
there is explicit evidence of antiunion animus. That is, on March 29,
the Respondent’s agent, Stevan Jospey, told Berezin that no one was
signing a union card, and Jospey instructed Berezin not to sign a
card. Berezin then told Jospey that he had already signed a card.
Shortly thereafter, on that day, Berezin was discharged.
3 See Edward G. Budd Mfg. Co. v. NLRB, 138 F.2d 86, 90 (3d
Cir. 1943).
1 Jospey is an agent of Respondent.
2 Margolis testified that he is a principal of Respondent.
Silogram Lubricants Corp. and Amalgamated
Workers Union Local 88, Retail, Wholesale
and Department Store Union, AFL–CIO. Case
29–CA–19901
April 28, 1998
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS LIEBMAN
AND HURTGEN
On December 5, 1997, Administrative Law Judge
Eleanor MacDonald issued the attached decision. The
Respondent filed exceptions and a supporting brief,
and the General Counsel filed a brief in support of the
judge’s decision.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions2 and to adopt the recommended Order.3
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Silogram Lubricants,
Corp., Brooklyn, New York, its officers, agents, suc-
cessors, and assigns, shall take the action set forth in
the Order.
Kevin R. Kitchen, Esq., for the General Counsel.
Richard M. Gaba, Esq., of Mineola, New York, for the Re-
spondent.
DECISION
STATEMENT OF THE CASE
ELEANOR MACDONALD, Administrative Law Judge. This
case was tried in Brooklyn, New York, on May 13, 1997.
The complaint alleges that Respondent, in violation of Sec-
tion 8(a)(1) and (3) of the Act, discharged its employee Har-
vey Berezin because he signed an authorization card on be-
half of Amalgamated Workers Union Local 88, Retail,
Wholesale and Department Store Union, AFL–CIO (the
Union). Silogram Lubricants Corp. (the Respondent) asserts
that Berezin was discharged for cause and denies that it en-
gaged in any violations of the Act.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the letter brief
filed by the General Counsel, I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent, a New York corporation, with its principal of-
fice and place of business located at Atlantic Avenue, Brook-
lyn, New York, is engaged in the manufacture and nonretail
sale of oil products. Annually, Respondent purchases mate-
rials, including oil products, valued in excess of $50,000 di-
rectly from points located outside the State of New York.
Respondent 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 and that the Union is a labor organization within
the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
Harvey Berezin began work as a lab technician for Re-
spondent in February 1973. Beginning in 1980, he was as-
signed to blend the oil products sold by the Company.
Berezin measured and mixed the various components of the
lubricants manufactured by Respondent and he tested the fin-
ished products to be sure that they met the required speci-
fications. Berezin testified that at the time of his discharge
on March 29, 1996, he was working about 33 hours per
week. In addition to his blending duties, he ran a variety of
errands for the Company and he helped the truckdrivers with
loading and labeling duties. Berezin acknowledged that he
had been reprimanded for arriving late to work, for leaving
work early, for sleeping on the job, for arguing with his co-
workers, and for engaging in a physical altercation with an-
other employee.
The Union has represented Respondent’s employees for 25
to 30 years but Berezin had never joined the Union.
Berezin’s wages apparently were not governed by any collec-
tive-bargaining agreement; from time to time, Berezin would
ask for and receive a raise from Respondent.
On March 28, 1996, a union representative named Jim ap-
proached Berezin on the factory floor and spoke to him
about the benefits of union membership. At about 4 p.m.,
Berezin signed a union authorization card in Jim’s presence
and returned it to him. Berezin testified that the next day,
Operations Manager Stevan Jospey came up to him on the
shop floor and told him that no one was joining the Union
and that Berezin should not sign the card.1 Berezin told
Jospey that he had already signed a card. A few minutes
later, Berezin was summoned to the office of Oscar
Margolis, the chief operating officer of Respondent.2
Margolis and Jospey were in the office and Berezin told
them that he thought he deserved a raise. Margolis replied
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679SILOGRAM LUBRICANTS CORP.
3 The parties stipulated that Berezin declined an offer of reinstate-
ment in February 1997.
4 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended 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 purposes.
that Berezin was not entitled to a raise. Berezin said, ‘‘What
do you want me to do. You give raises to the union mem-
bers, and they have a pension.’’ When Margolis did not an-
swer, Berezin left. Five minutes later, Margolis called
Berezin back to the office and told him that he was dis-
missed.
Margolis testified that he was not at work on March 28,
1996. He stated that he did not think he had seen Berezin’s
authorization card before the instant hearing. According to
Margolis, Berezin was in complete charge of all blending at
the factory and was the necessary and key person on whom
Respondent depended. Margolis testified that Berezin was a
difficult employee. He created many problems due to his
constant arguments with other employees, his tardiness, his
early departures, and his sleeping on the job. Over the years,
Margolis said, he had met weekly with Berezin and lectured
him on appropriate behavior. But because Margolis needed
Berezin he tolerated a great deal of misbehavior over the
years.
Margolis testified that on March 29, Berezin came into his
office and asked for a raise. Respondent was going through
a bad period and could not afford a raise. According to
Margolis, he wanted no more arguments and ‘‘no more non-
sense,’’ and because he had ‘‘had enough’’ he fired Berezin.
Margolis acknowledged that he had let a key man go, the
most important person in his business. Margolis denied that
he had fired Berezin for signing a union card; he maintained
that he fired Berezin because he was ‘‘just too disgusted’’
at the time. Margolis did not ‘‘think’’ that the Union or
Berezin had informed him that Berezin had just signed a
union card.
Operations Manager Jospey denied that Berezin informed
him of the fact that he had signed a union authorization card
on March 28. Jospey stated that on March 29, Berezin
stormed in to Margolis’ office in his usual manner and asked
for a raise. When Margolis said that he could not give
Berezin a raise at that time, Berezin walked out. According
to Jospey, ‘‘[J]ust for his things that he’d been doing there,
all the things, we had to let him go because of his craziness
there.’’
After Berezin was fired, truckdriver Paul Wortman was
trained to blend the oil products. In addition to his blending
duties, Wortman continues to drive a truck.
B. Discussion and Conclusions
I have decided to credit Berezin wherever his testimony
conflicts with that of the other witnesses. Although Berezin
was subject to episodes of aggressive behavior, he freely ad-
mitted these events and I believe that he testified accurately
at the instant hearing. Further, I do not credit Margolis and
Jospey that after having tolerated over 20 years of difficult
behavior from Berezin, admittedly Respondent’s most nec-
essary and key employee, they decided to fire him because
he asked for a raise and because of accumulated craziness.
Rather, it seems clear that Jospey and Margolis learned that
Berezin had joined the Union the day before and that he was
discharged soon after they became aware that he had signed
the union card.
Based on the testimony of Berezin, I find that on March
28, 1996, he signed an authorization card for the Union, that
on March 29, Jospey told him that no one was signing a
union card instructed him not to sign a card, that Berezin in-
formed Jospey that he had already signed up with the Union,
that soon after this conversation Berezin was summoned to
Margolis’ office where he asked for a raise and pointed out
that the union members were getting raises and had pensions,
and that 5 minutes’ later Margolis discharged Berezin. I find
that Respondent discharged Berezin because he signed an au-
thorization card for the Union.
I find that Respondent’s explanation that Margolis wanted
no more nonsense and craziness is a pretext. There is no evi-
dence of any precipitating factor for Berezin’s discharge
other than his signing of an authorization card for the Union
the day before he was fired.
CONCLUSION OF LAW
By discharging Berezin because he signed an authorization
card for the Union, the Respondent has engaged in unfair
labor practices within the meaning of Section 8(a)(1) and (3)
of the Act.
REMEDY
Having found that the Respondent has engaged in certain
unfair labor practices, I find that it must be ordered to cease
and desist and to take certain affirmative action designed to
effectuate the policies of the Act.
The Respondent having discriminatorily discharged Harvey
Berezin, it must make him whole for any loss of earnings
and other benefits, computed on a quarterly basis from date
of discharge to date of proper offer of reinstatement, less any
net interim earnings, as prescribed in F. W. Woolworth Co.,
90 NLRB 289 (1950), plus interest as computed in New Ho-
rizons for the Retarded, 283 NLRB 1173 (1987).3
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended4
ORDER
The Respondent, Silogram Lubricants Corp., Brooklyn,
New York, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Discharging its employees because they sign authoriza-
tion cards on behalf of a union.
(b) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Make Harvey Berezin whole for any loss of earnings
and other benefits suffered as a result of the discrimination
against him in the manner set forth in the remedy section of
the decision.
(b) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful discharge and no-
tify the employee in writing that this has been done and that
the discharge will not be used against him in any way.
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680 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 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
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.’’
(c) Preserve and, within 14 days of a request, make avail-
able 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 other records
necessary to analyze the amount of backpay due under the
terms of this Order.
(d) Within 14 days after service by the Region, post at its
facility in Brooklyn, New York, copies of the attached notice
marked ‘‘Appendix.’’5 Copies of the notice, on forms pro-
vided by the Regional Director for Region 29, after being
signed by the Respondent’s authorized representative, shall
be posted by the Respondent immediately upon receipt and
maintained for 60 consecutive days in conspicuous places in-
cluding all places where notices to employees are customar-
ily posted. Reasonable steps shall be taken by the Respond-
ent to ensure that the notices are not altered, defaced, or cov-
ered by any other material. In the event that, during the
pendency of these proceedings, the Respondent has gone out
of business or closed the facility involved in these proceed-
ings, the Respondent shall duplicate and mail, at its own ex-
pense, a copy of the notice to all current employees and
former employees employed by the Respondent at any time
since March 29, 1996.
(e) Within 21 days after service by the Region, file with
the Regional Director a sworn certification of a responsible
official on a form provided by the Region attesting to the
steps that the Respondent has taken to comply.
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 vio-
lated the National Labor Relations Act and has ordered 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 protection
To choose not to engage in any of these protected
concerted activities.
WE WILL NOT discharge or otherwise discriminate against
any of you for supporting Amalgamated Workers Union
Local 88, Retail, Wholesale and Department Store Union,
AFL–CIO, or any other union.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce you in the exercise of the rights guaran-
teed you by Section 7 of the Act.
WE WILL make Harvey Berezin whole for any loss of
earnings and other benefits resulting from his unlawful dis-
charge, less any net interim earnings, plus interest.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlawful
discharge of Harvey Berezin, and WE WILL, within 3 days
thereafter, notify him in writing that this has been done and
that the discharge will not be used against him in any way.
SILOGRAM LUBRICANTS CORP.
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