Stein Seal Co., 996 (1978)

• Date: 25 August 1978
• Docket Number: 04-CA-08604
• Court: National Labor Relations Board (US)

DECISIONS OF NATIONA. LABOR RELATIONS BOARD Stein Seal Company and District No. 1, International Association of Machinists & Aerospace Workers,

AFL-CIO. Case 4-CA-8604

August 25, 1978 DECISION AND ORDER

By CHAIRMAN FANNING ANI) MEMBE RS JINKINS AND MULRP'HY On April 4, 1978, Administrative Law Judge Morton D. Friedman issued the attached Decision in this proceeding. Thereafter, the General Counsel filed exceptions and a supporting brief, and the Respondent filed cross-exceptions and a supporting brief. TIhe Respondent also 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 I and briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge as modified below.

1. The Administrative Law Judge declined to find that the Respondent violated Section 8(a)(1 by threatening to retaliate against Ihor Shapolowenko.

   The General Counsel excepts, contending that a speech by Dr. Stein contained at least an implied threat of retaliation. We agree. The Respondent knew that Shapolowenko was the main union protagonist at its plant. Its founder and president, Dr. Stein, at a captive-audience meeting held sometime between February 17 and March 2, 1977, singled out Shapolowenko. by name, for discussion. He related Shapolowenko's progress with the Respondent and stated that he had received privileged treatment. lie further stated his opinion that, while he perhaps could not expect gratitude, one should not bite the hand that fed him. Stein then extended the analogy, saying that, when an ungrateful dog bites off the tip of one's finger while it is being fed, one does not give the dog another morsel for fear that it will bite off one's whole hand.

   The Administrative Law Judge concluded that Stein expressed disappointment, annoyance, and, lhe General Counsel and the Respondent ha.,e excepted trI certlln credibility findings made by the Administrative I.a, Judge It , the Board.% established polic) not to overrule an Adminlslrative L.,u Judge s resolutions with respect to credihilit 5 unless the clear preponderance (ofall of the relevant evidence cor inces us that the resolutions ire incorrect .Si,,indard Dr Wuall Products. Inc, 91 NLRB 544 (1950)). enfd 188 1 2d 362 (( A 3, 1951i We have carefully examined the record and findl no basis for reversing his findings perhaps. disgust with Shapolowenko, but did not threaten to retailiate against him. We disagree. In the context of the Respondent's other threats, and its knowledge of Shapolowenko's prominent role in the union effort, the meaning of Stein's comments is clear. The unmistakable impression left on the audience was that the ungrateful Shapolowenko or any emplosee who did likewise would thereafter be treated differently. These statements constituted at the very least an implied threat of retaliation in violation of Section 8(a)( I).

2. 1The General Counsel excepts to the Administrative Law Judge's failure to find that the Respondent violated the Act by restricting Shapolowenko's movements around the plant. We find merit in the General Counsel's exceptions. Before the union campaign, Shapolowenko customarily went to the second floor to obtain supplies, perform his work, and use the restroom. During the campaign, the Respondent restricted Shapolowenko to the first floor, admitting that it did so to prevent Shapolowenko from discussing and soliciting for the Union during worktime. No other employees were prohibited from talking to fellow employees. The Respondent presented no evidence that anyone's work was disrupted or that it had a valid no-solicitation rule in effect. The restriction was applied only to Shapolowenko, admittedly to prevent his union activities. Since the Respondent presented no justification for so restricting Shapolowenko, we find that by restricting Shapolowenko it violated Section 8(a)(1) of the Act.2

3. The Administrative Law Judge dismissed the complaint with respect to Shapolowenko's discharge;

   the General Counsel excepts, contending that the discharge violated Section 8(a)(3). The Respondent's defense, then and now, is that it did not discharge Shapolowenko. However, it also argues that if Shapolowenko were discharged it had valid reason to discharge him. The Administrative Law Judge found that the Respondent did in fact discharge him.3

   He then found, however, in spite of his own suspicions concerning the discharge, including the Respondent's animosity toward Shapolowenko and the Union during the campaign and its special need for his services at the time of his discharge, that Stein was not motivated by union animosity in discharging ShapolowIn ICA,e If lur lindilgh, w.e find it unnllecessary i( pass on the General ( unsel's. alleation thth thet et rictirn 1onShapoloxuenko's movement violiled Sec 8(i) 3 ).pilrtillairl! since ain X(al(3) linding would not affect the teniedN.

   We agree ith the Admniiiisiratlse L i.u Judge and find the Respondent's as'eItlirl uilthiillt tileilt itIadditionl to the isctsand reasoning relied on bh the ,\dliilnstirallce [i i Judge, we further note thait Stein. in testimons elicited bh Ihe Resrpondenl's counsel. staled that if Shapolovuenkol came hlCk, nld ifh e xpressed his strrog,, depending on his 'attitude.' he ma, hIeilllo, cd Shutpolosswenko to illme bhack to work In this statement, Stein set )outthe conditions for Shapolowenko',s reinstatement, clearly indicating thul Shlpoloenik

   996

   STEIN SEAL COMPANY enko. He instead found that Stein's decision woas spontaneously made during a heated argument because Shapolowenko refused to submit to Stein's decision that he was not entitled to a raise. He further noted that at the time. Shapolowenko wias not engaged in union or protected activity.4

   While we agree with the Administrative Law Judge that Stein may have acted in anger. that does not end the inquiry. For, the major source of Stein's animosity toward Shapolowenko was because of his union activities. Respondent not only displayed unrestrained union animus during the campaign. but directed much of it at Shapolowenko personally. Stein denounced him by name to his colleagues by comparing him to an ungrateful dog. and then restricted him in his movements to prevent his union activities.

   Stein, as the Administrative Law Judge noted, was dissappointed. annoyed, and even disgusted with Shapolowenko because of his leadership in the organizing effort. He discharged Shapolow enko less than 2 weeks after the union election, at a time when Shapolowenko's skills were particularly needed. Furthermore, Stein consciously provoked the argument that resulted in Shapolowenko's discharge by going to him and confronting him in the presence of his fellow workers.

   The Respondent presented no evidence that Stein had ever before discharged an employee for insubordination or for requesting a pay raise. whether done in anger or not. Moreover. Stein denied, and the Respondent in its answering brief continues to deny.

   that Stein fired Shapolowenko. The Respondent, however, now indicates that if Stein did fire Shapolowenko, as found by the Administrative Law Judge, then Stein had good reason or cause for doing so.

   But, given the Respondent's denial that Shapolowenko was fired, the Administrative Law Judge's further finding that he was discharged for insubordination or some other form of misconduct (cause) is, in our opinion, either gratuitous or merely speculation on his part, since the Respondent did not give any reasons for its action against Shapolowenko.

   In conclusion, we find that Shapolowenko was, in fact, discharged and the primary reason for his discharge was his union activity.5

   As noted, not only 4C(ontrary to the Adminlstralive Law Judgers coInclusiln. we dI nit agree that requesting a ralse is not protected acctil IIIn e' iofour dlipostllon here, however. we find it unnecessa,,r to decide whelher. il the cicuintanllices of this case, it was al31oconcerted aclltilc ('Contrary to her colleagues. Membher MNurphs agrees with the Adilnm,trative Law Judge that the (;eneral (Counsel haisfailed to sustln hi hurden of proof (hat the discharge was unlafulls ntiltl.ated. and therefore 'oiuld adopt the Administralive I.aw Judge's dismissal *of this allega;tion of the complaint Member Murphc finds no reason to conclude that Shalpoloentko's unrelenting campaign for .i raise for himself was concerted In nature. since it was not important to or for he he nefit of other employtres (see e . 411ih'ua Stein's union animus but his animosity toward Shapolowenko was very clear. Given Stein's hostility to%wardShapolowenko because of his union activit., the discharge of Shapolowenko does not become 'for cause' just because Stein happened to be angry.' We therefore find that the Respondent discharged Shapolowenko in violation of Section 8(a}(3) of the Act.

   ORI)ER Pursuant to Section 10(c) of the National Labor Relations Act. as amended. the National Labor Relations Board hereby orders that the Respondent,

   Stein Seal Company. Philadelphia. Pennsylvania. its officers. agents. successors, and assigns. shall:

1. ('ease and desist from:

   (

   1. Coercively interrogating employees concerning their union membership, activities. and desires.

   (h) Threatening employees with loss of employment by telling employees that the Respondent will sell its business if the Linion. or ans other labor organization, is successful in organizing its employees.

   (c) Threatening employees with loss of employment if the Union, or any other labor organization, should win an election among its employees.

   (d) Threatening to retaliate against employees because of their union activities.

   (e) Restricting employees' movements around the plant to prevent their union activities.

   (f) Discharging or...