Extract
Steinerfilm, Inc., 769 (1981)
STEINERFILM. INC. 769
Steinerfilm, Inc. and District 2, International Union of Electrical, Radio & Machine Workers, AFLCIO. Cases 1-CA-16548 and 1-CA-16917April 9, 1981 DECISION AND ORDEROn August 20, 1980, Administrative Law Judge Herbert Silberman issued the attached Decision in this proceeding. Thereafter, both Respondent and the General Counsel filed exceptions and supporting briefs.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,1 and conclusions of the Administrative Law Judge to the extent consistent with the following, and to adopt his recommended Order as herein modified. 2The Administrative Law Judge found, inter alia, that Respondent violated Section 8(a)(3) and (1) of the Act by discharging employee Michael Gazaille because of Gazaille's union activities. We affirm this finding. The General Counsel clearly established a prima facie case of discriminatory discharge. The evidence presented below, as fully described in the attached Decision of the Administrative Law Judge, established that Respondent knew of Gazaille's activities on behalf of the Union and that these activities were the motivating cause in Respondent's decision to discharge Gazaille. Respondent failed to present credible evidence indicating that Gazaille's discharge was motivated by legitimate business considerations or that the reasons Respondent advanced for the discharge were more than pretext.3Accordingly, we find that Respondent's discharge of Michael Gazaille constituted a violation of Section 8(a)(3) and (1) of the Act.The General Counsel has excepted to the Administrative Law Judge's dismissal of the complaint's allegations that Respondent violated Section 8(a)(l) of the Act by twice requesting that the key union organizer, Michael Gazaille, leave its employ, and by granting its employees wage increases immediately after their initial union meeting for the purpose of discouraging union membership.IRespondent 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 We have substituted our own notice for that of the Administrative Law Judge.3 This is a case of pretextual justification for an unlawful discharge in which the asserted reasons do not exist, rather than a mixture of lawful and unlawful reasons for the discharge. See Limestone Apparel Corp., 255NLRB 722 (1981).255 NLRB No. 17For the reasons explained below, we find merit to these exceptions.Michael Gazaille gave unrefuted testimony that Respondent's plant manager, Glenn Walters, twice requested that Gazaille leave Respondent's employ.The first such request was made on November 13, 1979, after Gazaille had complained to Walters that the second-shift slitters were not being paid a 10percent differential as required in the employee handbook, that a former employee had not received payment from the profit-sharing plan, and that Respondent's job-posting plan was ineffective.According to Gazaille's unrefuted testimony, Walters responded to Gazaille's complaints by telling him 'if I didn't like it here, why didn't I go someplace else?' The second request to quit occurred on November 20, 1979, after Walters had issued Gazaille a warning letter stating that Gazaille had been guilty of poor job performance, insubordination, misrepresentation of work hours, absenteeism, and misuse of coffeebreaks, and informing him that any further violation of company policy would result in his immediate discharge. Following the issuance of this warning letter, which the Administrative Law Judge found to have been written solely for the purpose of fabricating a record of legitimate motivation for Gazaille's discharge, Glenn Walters walked into the area in which Gazaille was working. An emotional and angry confrontation between Walters and Gazaille ensued, which is well described in the attached Decision of the Administrative Law Judge. During this confrontation, Walters told Gazaille that if he did not like the situation, he should leave.It is the established policy of this Board to find a violation of Section 8(a)(l) of the Act where an employer asks an employee to quit and such request has a tendency to interfere with the free exercise of the employee's Section 7 rights.4Our review of the circumstances under which Gazaille was asked to quit, particularly in the context of Respondent's other unfair labor practices, convinces us that these requests had a tendency to interfere with Gazaille's exercise of his Section 7 rights and...See the full content of this document
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