Syracuse China Corp.

National Labor Relations Board - Board Decisions

Oct 30, 1973

206 N.L.R.B. 772 (N.L.R.B. 1973)

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.