Syracuse China Corp.Download PDFNational Labor Relations Board - Board DecisionsOct 30, 1973206 N.L.R.B. 772 (N.L.R.B. 1973) Copy Citation 772 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Will & Baumer Candle Co . Inc., a Wholly Owned Sub- sidiary of Syracuse China Corporation and Local 320, International Union of Electrical , Radio and Machine Workers, AFL-CIO. Case 3-CA-5135-2 October 30, 1973 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS On April 30, 1973, Administrative Law Judge Jen- nie M. Sarrica issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings,' and conclusions of the Administrative Law Judge and to adopt her recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended the National Labor Rela- tions Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that Respondent, Will & Baumer Candle Co., Inc., a wholly owned subsidiary of Syracuse China 1 While we do not subscribe to the statement of the issue as it appears in sec. III , A, of the Administrative Law Judge's Decision , we are satisfied that the Administrative Law Judge analyzed the record evidence and made find- ings in accordance with the basic issues presented herein, namely: (1) Wheth- er Pacentine was engaged in protected, concerted activity at the time of his discharge ; and (2), if so, whether Pacentine 's conduct was so opporbrious as to remove him from the protection afforded by the Act to employees en- gaged, as was Pacentine , in voicing to management the grievances of employ- ees who had appointed him their spokesman. Furthermore , as Respondent was not privileged to dictate its employees' choice of a spokesman , we do not subscribe to the implication to the contrary which may flow from a reading of the Administrative Law Judge 's statement in the Analysis and Findings section as follows: "That Respondent may not have been obligated to permit Pacentine to be the employees ' spokesman in the circumstances of this case does not remove his attempt to voice their grievances from the realm of protected concerted activity." The Respondent has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board 's established policy not to overrule an Administrative Law Judge 's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect . Standard Dry Wall Products, Inc., 91 NLRB 544, enfd. 188 F.2d 362 (C.A. 3, 1951). We have carefully examined the record and find no basis for reversing her findings . See also Bishop and Malco, Inc., d/b/a Walker's, 159 NLRB 1159, 1161. Accordingly, we agree with the Administrative Law Judge that the record evidence , taken as a whole, sup- ports the conclusion that Respondent violated Sec. 8(a)(1) of the Act by discharging Pacentine. Corporation, Liverpool, New York, its officers, agents, successors, and assigns, shall take the action set forth in the Administrative Law Judge's recom- mended Order. DECISION STATEMENT OF THE CASE JENNIE M. SARRICA, Administrative Law Judge: Upon due notice, this proceeding under Section 10(b) of the National Labor Relations Act, as amended (29 U.S.C. 151, et seq.), hereinafter referred to as the Act, was tried before me at Syracuse, New York, on March 21, 1973,1 pursuant to a charge filed on January 17, and an amended charge filed January 29; a complaint issued February 2, presenting alle- gations that Will & Baumer Candle Co., Inc., a wholly owned subsidiary of Syracuse China Corporation, hereinaf- ter called the Respondent, committed unfair labor practices within the meaning of Sections 8(a)(t) and 2(6) and (7) of the Act; and Respondent's answer denying that it commit- ted any violation of the Act. Present and participating in the hearing were representatives of the Respondent and the General Counsel. Based on the entire record, including my observation of witnesses, and after due consideration of briefs, I make the following: FINDINGS AND CONCLUSIONS 1. JURISDICTION Respondent 's principal office and place of business is, and was at all times material herein , located on Old Liver- pool Road , in Liverpool , New York , where it is engaged in the manufacture , sale, and distribution of candles and relat- ed products. During the past year, a representative period, Respondent , in the course and conduct of its business oper- ations, purchased, transferred , and delivered to its Liver- pool, New York, plant , goods and materials valued in excess of $50,000, of which goods and materials valued in excess of $50,000 were transported to said plant directly from States other than New York. Respondent admits, and I conclude , that it is now, and was at all times material herein, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the. Act. II. THE LABOR ORGANIZATION Respondent admits, and I find , that the Charging Party, Local 320, International Union of Electrical , Radio and Machine Workers , AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 1 Unless otherwise indicated, all dates are in 1973. 206 NLRB No. 120 WILL & BAUMER CANDLE CO. 773 III. THE ALLEGED UNFAIR LABOR PRACTICE to 25 third floor employees were gathered at Ryan's desk, A. The Issue The only issue presented in this case is whether Respondent's discharge of Edward Pacentine, an employee, for insubordination was precluded by the concerted activity and a violation of Section 8(a)(1) of the Act. B. The Relevant Evidence Respondent employs approximately 220 employees at its factory where it is engaged in candlemaking. Ownership of Respondent was changed in late 1972. Under the previous ownership employees had each received a- printed book of rules. In December 1972, after the change in ownership, safety committeeman Edward Pacentine, took the rule book to Personnel Manager Bill Carrol, and sought to invoke the provision permitting employees to discuss their problems with top management. Carrol advised Pacentine that the book of rules was obsolete. Carrol also stated that as far as he was concerned employees could go no higher than him- self or Plant Superintendent James Quigley. Early in 1973 the subject of locker room conversation, among the 12 or 13 male employees on the third floor of the factory occupied by the hand casting department, involved what the employees believed were new rules being put into effect. No new written rules were instituted but these em- ployees understood from their supervisor, Timothy Ryan, that the Company was going to operate by "rule of thumb." 2 Other subjects discussed among the employees in the locker room during the week of January 8, 1973, includ- ed problems of safety, seniority rights, and overtime, as well as pay rates and the application of the incentive pay plan 3 In these discussions the employees decided to seek an op- portunity to present their problems to someone higher in authority than Carrol from whom they had previously failed to obtain _a satisfactory resolution of some of these griev- ances or Quigley, who they feared. To carry out this ap- proach, employees appointed as their spokesmen the two senior employees, Pacentine and Norman Bezio. In prepa- ration for such a discussion, Pacentine made a list of the problem areas mentioned by the employees with notations of the particular grievances under each and the names of individuals affected, Late on Friday afternoon, January 12, while all of the 20 2 One such rule, given employees orally by Ryan, required them to punch out on the timeclock at lunchtime Previously employees had been required to clock out only if they left the building Employees protested this new rule on grounds that employees usually ate their lunch in the locker room, the lunchtime allowed was only a half hour, and 10 minutes of their time was lost in the trip to and from the tmieclock on the first floor Ryan told employees he would talk with Vice President Delaney The oral instruction to punch the timecards at lunchtime was rescinded Apparently the incentive pay plan affected only the foul or five employ- ees on the finishing line, but these employees believed the incentive plan used to compute their pay was being taken away and different rates applied. On' both Wednesday and Thursday of that week employees on the finishing line had occasion to take exception to the computation assigned for their work and had caused it to be recomputed in their favor. The safety problems involved conditions Pacentie had unsuccessfully attempted to have correct- ed through the Safety Committee. Pacentine and Bezio informed Ryan they had been selected to speak for the group. Pacentine told Ryan they wanted to talk with someone higher than Quigley and showed him the list of the subjects they wished to discuss. Ryan promised to arrange something. - Pacentine, three male employees on the finishing line, and several other third floor employees worked overtime Saturday forenoon. That morning Ryan commented to them that he was "going downstairs" and "would probably get something ironed out." Ryan saw Quigley and told him that the men wished to speak to Vice President Delaney. Quigley advised that the men would have to go through channels and see him first. At about 9:30 Ryan approached Bezio and another finishing line employee and told them Quigley wanted to see the finishing line crew in his office.4 Bezio told Ryan that Pacentine was to go with them. The crew refused to go to Quigley's office alone. Ryan phoned Quigley and advised him that the men would not talk to him without Pacentine. Quigley told Ryan to bring Pacentine to his office. When Ryan and Pacentine entered Quigley's office Pa- centine immediately informed Quigley that he was going to "represent the people," i.e., employees located on the third floor, but Quigley ordered him to be silent, sit down and listen while he, Quigley, talked. This Pacentine did. Quigley told Pacentine that he was going to talk with the men on the finishing crew concerning their pay rates, that this was none of Pacentine's business, and that as far as he, Quigley, was concerned, Pacentine was, not going to talk for anyone. When Quigley finished Pacentine asserted that the men had elected him and Bezio to represent them because they felt it would be better if they had the two senior employees speak for them, and that this was what he intended to do. Quigley interrupted saying "You don't represent anybody." A heated exchange followed with voices raised and both men standing, in which Pacentine told Quigley the employ- ees had chosen spokesmen so that Quigley could not get them in his office one at a time and take away their rights. References to the new rules the Company was assertedly invoking and the number of employees who were being fired for flimsy cause ensued. Pacentine admitted that in this exchange he may have accused Quigley of firing em- ployees like flies, and of loving to fire people, and that he may have asked Quigley how many employees he had fired the day before .5 4 After speaking with Ryan, Quigley had gone over the computation of the finishing crew incentive pay for Wednesday and Thursday with time study department manager Owens, the payroll clerk involved and Vice President Langer. Owens was in Quigley's office with the documentation to explain the final computation of pay for those 2 days. 5 Quigley quoted Pacentme as having made the following statements in the course of their exchange. "God damn it, these men want me to represent them They are part of me, and I am going to represent these men." "I am sick and tired of your rules, we are going to have our own rules." "You sit here at your desk with a big club, and you want to take us on one at a time so you can fire us individually You just love to sit here and fire people. How many people did you fire yesterday? You son of a bitch, you just love to fire people." "I doubt if you are even a good time study man." On cross-examination Quigley testified Pacentme immediately said. "I am God damn sick and tired of your rules. You sit here and make up rules It is about time we had our own rules ." and that he said "You sit here at this desk with a big club and you like to get us down here one of a time and fire Continued 774 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The matter was ended by Quigley telling Pacentine he did not represent anybody, that he was fired, and to get out. Qui, igley came around the desk which had seperated the two men, took Pacentine by the arm, directed him out the door, and ordered him to punch his timecard. Pacentine told Quigley he did not believe Quigley had the authority to fire him for this, and stated he was going back to finish his work. Quigley ordered Pacentine to punch the timecard or he, Quigley would do so. At this point, according to Pacentine, Quigley was towering over him and jostling him. Pacentme told Quigley that since he was putting this matter on a personal basis, if Quigley punched out his timecard he would punch Quigley. Quigley clocked Pacentine's card. Pacentine then demanded that he be paid immediately since he had been fired. jJpon Pacentine's report that he had been fired, Bezio with other third floor employees went to Quigley's office where Bezio confronted Quigley with firing Pacentine "for representing us." Quigley replied that he had fired Pacen- tine for insubordination. Bezio asserted he too represented th employees and that if Quigley fired Pacentine he should fire him also. Quigley refused to do so. C. Analysis and Findings The evidence clearly establishes that Pacentine was at- tempting to represent his fellow employees at their request to obtain_a hearing of their grievances, and that Respondent knew this. Of course, some concerted activities are not pro- tected by Section 7, and discharge\or other discipline may be meted out to employees who engage in such activities as serilous trespass, destruction of property, violence, violation of the Statute, or breach of contract. As Pacentine was carrying out the task assigned him by fellow employees of conferring with Respondent's officials for the mutual aid and protection of the employees, I find that, during this conference with Quigley, Pacentine was engaged in concert- ed activity of a type which is protected by Section 7 of the us one at a time. How many people did you fire yesterday? You son of a bitch, you like to sit here-you just love to fire people." "I doubt if you are a good time study man." In this respect I do not credit Quigley's testimony that on entenng his office Pacentine slammed the door and that this was part of the offensive conduct for which he was fired. Admittedly this consideration was not in- cluded in the cause given by Quigley in his sworn statement on investigation of the charge. Further, all the testimony indicates that Ryan entered the office with Pacentine , and the first floor supervisor who testified that he was attracted by the raised voices and came to investigate stated that the door was ajar approximately 12 inches. It would be most unlikely that one who was entering an office intent upon seeking consideration for his fellow em- ployees would set the stage by such a display of an antagonistic attitude before he-even stated his cause. In addition I do not credit the testimony that during this verbal exchange Pacefitine swore and cursed Quigley. It is noted that here again Quigley completely failed to mention the use of such offensive language as part of the reason for the discharge given in his sworn affidavit , although Quigley admitted that employees do not generally address ban in this fashion Pacen- tine convincingly stated under oath that the language which he is accused of using is not a part of his vocabulary even when he is distraught. In view of Pacentme's forthrightness in admitting statements he recalls making and conceding statements he may have made, and his demeanor generally, I credit his denial of the use of such words as "son-of-a bitch" and "God damn it." Act. That Respondent may not have been obligated to per- mit Pacentine to be the employees' spokesman in the cir- cumstances of this case does not remove his attempt to voice their grievances from the realm of protected concerted ac- tivity. While an employee is thus engaged, the law protects him from reprisal for such activity unless he conducts him- self in such an offensive, and egregious manner as to depart from the res gestae of the concerted activity and expose himself in an area beyond the protection of Section 7 of the Act .6 In determining whether Pacentine's conduct went beyond the protection of the Act, consideration is given only to his actions and statements before he was discharged; 7 Pacentine's actions, during the conversation in the office, of pointing a finger, shaking a finger, or "talking with his hands," as he admitted he has a tendency to do, is insuffi- cient to cause a loss of Statutory protection. Similarly Pacentine's standing across the desk from Quigley during the verbal exchange is devoid of physical threat and within the area of acceptable conduct. Pacentine admittedly par- ticipated in the "hollering back and forth" with Quigley before he was discharged. However, raised voices in argu- mentative conversations involving assertions of rights, grievances, and authority, do not constitute insubordination of a degree which would remove the Statutory protection. Pacentine did pursue the subject of employee fears and grievances and Quigley's role and responsibility in causing their fear of discharge. In the course of this exchange, Pa- centine accused Quigley of firing employees for being late from lunch by 5 minutes, and of getting pleasure in firing employees. He also inferentially accused Quigley of firing several employees the day before 6 While this exchange could not have been very palatable for Quigley, the subject covered was within the confines of the legitimate mutual employment interests of Pacentine and those for whom he had been requested to speak. Having considered the relevant facts and the legal pre- cedent, I conclude that Pacetine's conduct was not so egre- gious as to cause him to lose his statutory protection while engaging in concerted activity. Accordingly, I find that by discharging him for his part in such activity, Respondent interfered with, restrained, and coerced employees in the exercise of their Section 7 rights to engage in concerted action for their mutual aid and protection in violation of Section 8(a)(1) of the Act. Upon the basis of the entire record, I make the following: CONCLUSIONS OF LAW 1. Respondent is engaged in commerce within the mean- 6 See Thor Power Tool Company, 148 NLRB 1379, enfd. 351 F.2d 584 (C.A. 7, 1965); Houston Shell and Concrete Co., 193 NLRB 1123. Cf. Calmos Com- bining Co, 184 NLRB 914. 7 In this respect, admittedly Pacentine' s statement that if Quigley punched his timecard he would punch Quigley occurred after he had been discharged and could be no part of the reason for his discharge. Moreover, Quigley obviously had little regard for any threat in this comment for he promptly walked over and clocked Pacentine's card I also find that Pacentme's com- ment on Quigley's timestudy ability occurred after he was in his street cloth- 59. Quigley admitted that several employees had been discharged the day before allegedly because of timecard incidents, but asserted that although he knew of this he had not personally performed the discharges. WILL & BAUMER CANDLE CO. 775 ing' of Section 2(2) and (6) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. By discharging Edward Pacentine for engaging in pro- tected concerted activity, thereby interfering with, re- straining, and coercing employees in the exercise of their Section 7 rights, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. THE REMEDY Having found that Respondent engaged in and is engag- ing in certain unfair labor practices it will be recommended that it cease and desist therefrom and take certain affirma- tive action deemed necessary to effectuate the policies of the Act. Having found that Respondent unlawfully discharged Edward Pacentine on January 13, 1973, I shall recommend that Respondent offer him immediate and full reinstate- ment to his former position or, if such position no longer exists, to a substantially equivalent position without preju- dice to any seniority or other rights and privileges he previ- ously enjoyed, and make him whole for any loss of pay suffered as a result of its discrimination against him, by payment to him of a sum of money equal to that which he normally would have earned, absent the unlawful discharge, with backpay and interest computed under the established standards of the Board, in accordance with the formula set forth in F. W. Woolworth Company, 90 NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB 716. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: copies of the attached notice marked "Appendix." 10 Copies of such notice, on forms provided by the Regional Director for Region 3, after being signed by an authorized represen- tative of Respondent, shall be posted by Respondent imme- diately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, includ- ing all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 3, in writing within 20 days from the date of this Order what steps the Respondent has taken to comply herewith. 9 In the event no exceptions are filed as provided by Section 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Section 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. 10 In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall be changed to 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 ORDERS The Respondent, Will & Baumer Candle Co., Inc., its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discharging employees for engaging in concerted ac- tivities for their mutual aid or protection, or in any like or related manner interfering with, restraining, or coercing em- ployees in the exercise of their rights guaranteed in Section 7 of the Act, except to the extent that such rights may be affected by an agreement in conformity with Section 8(a)(3) of the Act, as amended. 2. Take the following affirmative action designed to ef- fectuate the policies of the Act: (a) Offer Edward Pacentine immediate and full reinstate- ment to his former position or, if such position no longer exists, to a substantially equivalent position, without preju- dice to his seniority or other rights and privileges, and make him whole for any loss of earnings, in the manner set forth in "The Remedy." (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, person- nel records, and all other records necessary for determina- tion of the amount of backpay due and the rights of reinstatement under the terms of this Order. (c) Post at its place of business in Syracuse, New York, After a trial in which all parties had the opportunity to present their evidence, it has been decided that we violated the law and we have been ordered to post this notice. We intend to carry out the Order of the Board and abide by the following: WE WILL NOT discharge or otherwise punish employ- ees because they have engaged in concerted activities for their mutual aid or protection. WE WILL offer Edward Pacentine immediate and full reinstatement with backpay. WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of their rights. All employees are free to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection. Our employees are also free to refrain from any or all such activities. WILL & BAUMER CANDLE CO., INC. (Employer) Dated By (Representative) (Title) This is an official notice and must not be defaced by 776, DECISIONS OF NATIONAL LABOR RELATIONS BOARD anyone. Any questions concerning this notice or compliance with This notice must remain posted for 60 consecutive days its provisions may be directed to the Board's Office, 9th from the date of posting and must not be altered, defaced, Floor, Federal Building, 111 West Huron Street, Buffalo, or covered by any other material. New York 14202, Telephone 716-842-3100. Copy with citationCopy as parenthetical citation