Rosicrucian Press, Ltd., The, 1323 (1982)
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THE ROSICRUCIAN PRESS, LTD.The Rosicrucian Press, Ltd. and Graphic Arts International Union, Local 3-B, AFL-CIO. Case 32-CA-1807 September 30, 1982 DECISION AND ORDER BY MEMBERS FANNING, JENKINS, ZIMMERMAN On May 30, 1980, Administrative Law Judge Martin S. Bennett issued the attached Decision in this proceeding. Thereafter, the General Counsel filed exceptions and a supporting brief, the Charging Party filed a letter joining in the exceptions, and Respondent filed an answering 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 conclusions of the Administrative Law Judge only to the extent consistent herewith. Contrary to the Administrative Law Judge, we find that Respondent, through its agents, twice violated Section 8(a)(1) of the Act by threatening employee Coreen Salberg and violated Section 8(a)(3) and (1) of the Act by thereafter discharging Salberg in reprisal for her union and protected activities. Coreen Salberg was an apprentice bookbinder who worked with two other employees under the immediate supervision of Elsie Garcia. When there was insufficient work in that department, the employees were assigned to work in other departments. On April 3, 1979,2 Salberg told Garcia that she had complained to the Union about working with a folder operator for some hours each week and that she then complained about his body odor.3 During the next 2 weeks Salberg continued to object to the Union about working with the folder operator and about her treatment by Supervisor Garcia and Nick Mueller, the bindery foreman, an admitted supervisor. On April 17 both Mueller and Garcia told owner Ted Livingston, I The General Counsel 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 (1950), enfd. 188 F.2d 362 (3d Cir 1951). We have carefully examined the record and find no basis for reversing his findings. 2 All dates are in 1979. s There is no contention that this assignment was discriminatory. The other two employees who worked under Garcia worked with the folder operator for roughly equal time and, although they had commented about his odor, they had not complained about working with him. 264 NLRB No. 170 who had returned from vacation, about the problems they were having with Salberg. The next day Salberg was fired. With regard to the independent 8(a)(l) violations, it is undisputed that, on April 3, Salberg asked Garcia if Garcia thought her job was in jeopardy because she had complained to the Union the previous day about working with the folder operator. Garcia, whose testimony was fully credited by the Administrative Law Judge, testified that she answered, 'Well, let's put it this way, Coreen, you did jeopardize your job by going over our heads.' Secondly, Foreman Mueller, whose testimony was credited, testified that sometime between April 3 and April 18 he told 'all the girls together' in the presence of Salberg that he did not like them going to the Union over the matter and that he would not put up with it. Both Garcia and Mueller were supervisors within the meaning of Section 2(11) of the Act, and each threatened Salberg for going to the Union to complain about having to work alongside the folder operator.4 Accordingly, we find that Respondent by these two acts violated Section 8(a)(l) of the Act. With respect to the 8(a)(3) and (1) allegation, the record shows that, on April 17, Garcia, who was not at work that day because her husband had suffered a heart attack the previous day, went to Respondent's plant solely to talk to owner Ted Livingston about Salberg. Garcia testified that she went to Livingston's office and 'explained the problems we had with Coreen [Salberg], that she had called the Union about [the folder operator] and that we'd like the matter taken care of'; that she did not want to 'work under conditions where Salberg would be making calls to the Union everyday'; and that, although the Union insisted on Salberg's remaining employed by Respondent, Garcia did not feel that Salberg was 'qualified to train as an apprentice.' After discussing Salberg's calls to the Union, Livingston told Garcia not to worry about the problem, that he would think about it and take care of things, and that they did not want any troublemakers in the shop. Also on April 17, Mueller spoke with Livingston, telling him that Salberg had complained to the Union and that he thought Salberg should be fired. The next morning, Livingston showed Garcia and Mueller the letter he had prepared terminating Salberg.5 Garcia attempted to telephone Salberg, ' There is no evidence that Garcia or Mueller acted out of animus to the Union or to unionization Instead, the evidence shows that the) were concerned with protecting the folder operator. Nonetheless, the evidence shows that they objected to Salberg's going to the Union. 5 The text of the letter is set forth in full in the Administrative Law Judge's Decision 1323 DECISIONS OF NATIONAL LABOR RELATIONS BOARD who was not at work that day, but was unsuccessful. Apparently, an office employee later reached Salberg and told her not to report for work. Shortly thereafter, on April 25, Livingston sent the Local Union's president, Robert Osterloh, a letter which referred to Osterloh's 'siding with Coreen against other members of your own Union,' and stated that he had 'no alternative but to discharge Coreen [Salberg], or accept the resignation of [the] entire bindery.' Based on the foregoing, we are convinced that Salberg was discharged for her repeated appeals to the union president, Osterloh, for relief from what she considered an undersirable situation; namely, being required to work alongside an employee with a serious body odor problem. In sum, Salberg was fired because she took her complaint to the Union, a clearly protected union activity. In dismissing the compliant, the Administrative Law Judge erroneously places great weight on the fact that it was Livingston, not Garcia or Mueller, who made the decision to fire Salberg. However, Livingston based his decision on reports he received from Garcia and Mueller; thus, Garcia and Mueller were the moving force behind the discharge. And Garcia unequivocally testified that Salberg was fired because she kept stirring up trouble by complaining to the Union almost every day during the first 3 weeks in April. Further, Garcia testified that she had no problems with Salberg's work. Similarly, the Administrative Law Judge erroneously concluded that Salberg was discharged for insubordination; i.e., refusing to work with the folder operator when she was assigned to do so and taking her complaints about doing so to the Union for possible adjustment. Foreman Mueller testified that Salberg told him she would not work with the foder operator, and his testimony was credited. However, Salberg's statement was not an act of insubordination but a response to a question put to her in an informal grievance meeting with the president of the Local Union present. Such posturing is not unusual during grievance adjustment meetings and does not amount to a refusal to perform assigned work. As indicated, Salberg never refused any such assignment. Respondent could have replied that, if Salberg did in fact refuse such an assignment, she would be fired, but Respondent could not lawfully discharge her for this pursuit of her grievance. 6 Simply put, Salberg's action in going to the Union was protected by the Act. As we would not on this record find that Salberg actually refused a work assignment, we do not 6In fact the Administrative Law Judge found that Mueller's statement that if she refused to work with the folder operator she was 'on her way out' was not an unlawful threat. agree with the conclusion of the Admininstrative Law Judge that she was insubordinate. 7 Accordingly, we conclude that Respondent discharged Coreen Salberg in violation of Section 8(a)(3) and (1) of the Act.8 THE REMEDY Having found that Respondent unlawfully threatened and coerced Coreen Salberg, we shall order that it cease and desist therefrom. Having found...
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