Advance Window Corp

National Labor Relations Board - Board Decisions

Sep 30, 1988

291 N.L.R.B. 226 (N.L.R.B. 1988)

226 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Advance Window Corp and Ronnie Codett Cases
2-CA-21562 and 2-CA-21852
September 30 1988
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
JOHANSEN AND CRACRAFT
On March 29 1988 Administrative Law Judge
Julius Cohn issued the attached decision The Re
spondent filed exceptions and a supporting brief
and the General Counsel filed a brief in support of
the judge s decision
The National Labor Relations Board has delegat
ed its authority in this proceeding to a three
member panel
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge s rulings findings 1 and
conclusions 2 and modify the remedy 3 and to
adopt the recommended Order
In section III C 3 of his decision the judge ap
plying a Wright Line analysis 4 found that the Re
spondent had unlawfully discharged Ronnie Codett
because the asserted reason of absenteesim had not
been established In reaching this conclusion the
judge relied on inter alia the Respondents failure
to apply its progressive discipline policy to Codett
We agree that the Respondent unlawfully dis
charged Codett but we do not rely on the judge s
reference to the progressive discipline policy In
stead we find that the Respondent tolerated Co
dett s absences and seized on them as a convenient
justification for Codett s discharge only after
Codett, as union steward, had aggressively disput
ed Plant Manager Wojtaszek s version of an agree
ment reached by Codett and Wojtaszek (the Satur
day agreement) 5 That Codett s absenteeism was
i The Respondent has excepted to some of the judge s credibility find
rags The Board s established policy is not to overrule an administrative
law judge s credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect Standard Dry
Wall Products 91 NLRB 544 (1950) enfd 188 F 2d 362 (3d Cir 1951)
We have carefully examined the record and find no basis for reversing
the findings
2 The Respondents motion to dismiss the consolidated complaint is
denied as lacking in merit
3 We have modified the recommended remedy to include the provision
that backpay be computed as prescribed in F W Woolworth Co 90
NLRB 289 (1950)
4 Wright Line 251 NLRB 1083 (1980) enfd 662 F 2d 899 (1st Cir
1981) cert denied 455 U S 989 (1982) See NLRB v Transportation Man
agement Corp 462 U S 393 (1983)
6 The credited version of this agreement shows that the employees
were to be given the option of working several Saturdays to make up for
unpaid holidays in December 1985 The credited testimony further re
veals that Codett specifically asked if the employees who did not work
on these Saturdays would be disciplined and that he was told they would
not be Wojtaszek s discredited explanation of the agreement was that all
the employees had to work the replacement Saturdays or the agreement
was off
not the real reason for his discharge was made evi
dent by several of the Respondents actions Thus
Wojtaszek testified that no other long term em
ployee had the poor attendance record of Codett
yet Codett was given a merit increase in August
1985 when he was building the absentee record
that the Respondent now asserts justifies his dismis
sal Also the Respondent never spoke to Codett
about his attendance records and Codett s attend
ance actually had improved in the 6 weeks prior to
his termination 7
The record also shows that Wojtaszek clearly
was displeased with Codett s aggressiveness as
union steward Wojtaszek stated he could terminate
Codett after Codett refused to sign a warning
notice because he had not worked one of the Sat
urdays covered by the Saturday agreement 8 Fur
ther when he discharged Codett Wojtaszek stated
that Codett was not the kind of steward he wanted
These circumstances establish that the justifica
tion offered for Codett s discharge was pretextual
and that the real reason was Codett s aggressive
ness as a union steward Accordingly the Re
spondent s discharge of Codett violated Section
8(a)(3) and (1) of the Act
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent Advance
Window Corp Newburgh New York its officers
agents successors and assigns shall take the action
set forth in the Order
8 The General Counsel introduced into evidence a warning notice to
Codett for excessive absenteeism dated February 7 1985 There is no in
dication however that Codett was presented with this notice or that he
ever knew about it For this reason the Respondents counsel stated that
he would not rely on it as support for Codett s discharge Also Codett s
evaluation dated July 29 1985 lists his attendance as fair-not good or
poor Codett stated that the Respondent never spoke with him regarding
this factor in his evaluation The evaluation recommends that Codett be
retained and as stated he received a merit increase in August 1985
7 The Respondents claim that the decision to discharge Codett was
made in mid December conflicts with Codett s December 23 1985 warn
mg notice which listed the action to be taken if violation continues as
possible suspension As the General Counsel points out if the Respond
ent had already decided to terminate Codett possible suspension would
not have been listed as its next action
8 See fn 5 supra
Leonard Grumbach Esq for the General Counsel
Joel Spivak Esq (Spivak & Meiselas) of Greak Neck
New York for the Respondent
DECISION
STATEMENT OF THE CASE
JULIUS COHN Administrative Law Judge This pro
ceeding was tried at New York New York during vari
ous dates in February and April 1987 On a charge filed
291 NLRB No 34
ADVANCE WINDOW CORP
by an individual Ronnie Codett the Regional Director
for Region 2 issued a complaint in Case 2-CA-21562 on
9 May 1986 alleging that Advance Window Corp (Re
spondent or the Company) violated Section 8(a)(1) and
(3) of the Act by discharging Codett because of his
union activities An informal settlement agreement was
approved by the Regional Director in that matter on 25
July 1986 Thereafter another charge was filed by
Codett in Case 2-CA-21852 in which it was alleged that
Respondent further violated the Act by in effect black
listing Codett with respect to employers with whom he
sought employment and because of his resort to the
Board s processes Subsequently the Regional Director
on 26 November 1986 issued an Order revoking his ap
proval of the settlement agreement in the prior case and
simultaneously consolidating the cases in a complaint al
leging violations by the Respondent of Section 8(a)(1)
and (3) of the Act Respondent filed an answer denying
the commission of unfair labor practices The issues pre
sented concern the propriety of setting aside the settle
ment agreement in the prior case and whether Respond
ent violated the Act by discharging Codett and blacklist
mg him in his efforts to obtain employment
All parties were given full opportunity to participate
to introduce relevant evidence to examine and cross ex
amine witnesses to argue orally and to file briefs The
General Counsel and Respondent submitted briefs which
have been carefully considered On the entire record in
this case and from my obser-,,ation of the witnesses and
their demeanor I make the following
FINDINGS OF FACT
I JURISDICTION
Respondent a New York corporation has an office
and principal place of business in Newburgh New York
where it is engaged in the manufacture and nonretail sale
of aluminum windows In the course and conduct of its
business operations Respondent annually purchases and
receives at its Newburgh facility goods and services
valued in excess of $50 000 directly from points outside
the State of New York The complaint alleges Respond
ent admits and I find that it is and has been at all times
material an employer engaged in commerce within the
meaning of Section 2(2) (6) and (7) of the Act
II LABOR ORGANIZATION
The complaint further alleges Respondent admits and
I find that General Trades Employees Union Local 5A
(the Union or Local 5A) is a labor organization within
the meaning of Section 2(5) of the Act
III THE ALLEGED UNFAIR LABOR PRACTICES
A Background
Respondent manufactures and installs windows in resi
dential and commercial buildings It has a collective bar
gaining agreement with the Union that represents ap
proximately 30 production and maintenance employees
The owner of the Company is Larry Toscano and Paul
Woltaszek was the plant manager from October 1985 to
September 1986
227
Charging Party Codett was employed on 4 June 1984
and worked it the shipping and receiving department
He became shop steward in November of that year
Codett was discharged on 13 January 1986 allegedly be
cause of his poor attendance record The formal pro
ceedings with regard to the issuance of the consolidated
complaint under consideration have already been noted
The preliminary question to be determined in this pro
ceeding is whether the settlement agreement approved
by the Regional Director was properly set aside Such
agreement can only be set aside in the event of miscon
duct by the Respondent in violation of the terms of the
settlement agreement In the context of this proceeding
the reference is to the alleged unlawful conduct in the
second complaint relating to the so called blacklisting If
Respondent engaged in the violations alleged in the
second case then the settlement agreement may be set
aside Accordingly I shall proceed to make my determi
nation with respect to the complaint in Case 2-CA-
21852 Cambridge Contracting 259 NLRB 1374 (1982)
Ann s Schneider Bakery 259 NLRB 1151 (1982)
B The Blacklisting Allegation
1 Facts
The facts relating to this portion of the complaint are
relatively few According to Codett on 5 September
1986 he applied for a job at an automobile service station
in Newburgh New York Owner John Servidio told
Codett that there was a job open for a mechanic Codett
stated that he had previously worked as a mechanic after
having gone to a technical college for training as an
automobile specialist Servidio replied that he would
accept Codett s application and would call his previous
employer and determine what type of recommendation
he would be given As instructed Codett returned in 2
hours and was told by Servidio that he could not be
hired Servidio informed him that he had spoken to Woj
taszek who advised him that Codett was not a good
worker was not self motivated and had many accidents
Wojtaszek also told Servidio that Codett was a labor or
ganizer and had taken the Company to the Labor Board
Servidio then told Codett that after such a reference he
was unable to hire him
Servidio testified that he owned a service station for
about 4 years He confirmed that about 5 September
1986 Codett came in and asked for a job as a mechanic
or mechanics helper indicating that he had gone to
school to become a mechanic and had actually worked
as such Codett filled out an application and Servidio
told him to return later in the day Servidio then called
Respondent for a reference and was connected with
Wojtaszek Servidio asked him how good an employee
Codett had been and was told not too good Wojtaszek
stated that Codett had to be told what to do all the time
was not a self starter and also took off a lot of time for
medical reasons Finally Wojtaszek told Servidio that
Codett had been a shop steward and took the Company
to the Labor Board and gave them all kinds of trouble
During his cross examination Servidio affirmed this nar
rative and in addition recalled that he asked Wojtaszek
228 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
whether he would rehire Codett and was told that he
would not Servidio asked why and it is then that Woj
taszek told him that Codett was a shop steward and took
him to the Labor Board
As to Wojtaszek in his direct testimony by Respond
ent he did not recall the name John Servidio but did re
member receiving a telephone call in September 1986
from someone who said he owned a gas station concern
ing an application by Codett The man asked if he would
hire Codett and Woltaszek replied that he would not He
told the man that Codett was not an ambitious type
worker but was somebody that required supervision and
direction During his cross examination he also recalled
that the man asked what kind of worker Codett was and
he replied that he was not self motivated and needed su
pervasion Although he remembered that the man asked
if he would rehire Codett and he replied he would not
Wojtaszek stated that the caller did not ask why
Codett further testified that on 2 September he applied
for a job as a warehouse worker at Wakefern Foods in
Middletown New York He filled out an application
was interviewed by a lady who then told him to call a
person named Gail on Thursday by which time they
would have called Respondent for a recommendation
He did call as instructed and was told that they had not
heard yet from Advance Window but she Gail would
call Codett when she did Not having heard he called 2
weeks later and responded that she had not heard from
Advance Window and he was not to call her again He
never did hear anything from that company The record
reveals a document in the nature of a request for infor
oration sent by Wakefern to Advance Window who re
sponded that Codett had had 18 accidents and that his
safety habits and attendance were poor This paper is
dated 10 September The parties based on records avail
able stipulated that Codett did not have 18 accidents
while working for Respondent It is further stipulated
that there were 8 accident reports involving Codett
rather than 18 It appears that the form sent by Wakefern
asked for the number of accidents involving workmen s
compensation There is no evidence that Codett ever re
ceived any workmen s compensation and on the con
trary indicated that he lost little or no time as a result of
the eight accidents in which he was involved
In his testimony concerning Codett s application for
work at Wakefern Wojtaszek said that he prepared the
form sent to him by Wakefern except the item regarding
workmen s compensation He stated that item was filled
in by a secretary who mailed the completed form to Wa
kefern without showing it to him
2 Analysis and conclusions
A decision in the so called blacklisting case rests base
cally on the determination of the conflict in the testimo
ny of Servidio and Wojtaszek Although Codett corrobo
rated in substance the testimony of Servidio nevertheless
Codett s testimony was what Servidio had related to
him On the record as a whole I credit Servidio over the
testimony of Wojtaszek The circumstances of their ap
pearance as witnesses in this matter reflect on this deter
mination On cross examination Wojtaszek admitted that
he appeared without subpoena and was being compen
sated to the the tune of $ 100 per day for his testimony
and preparation in this proceeding Incidently he is no
longer employed by Respondent having left its employ
on 1 January 1987 On the other hand Servidio was
indeed a reluctant witness as his appearance was com
pelled by a court order enforcing a subpoena that had
been served on him by the General Counsel There is no
indication of any relationship between Servidio and
Codett who was merely an applicant for employment at
his service station Indeed an appearance in New York
City would appear to be an imposition on his time Ac
cordingly I find no reason why his testimony should be
favorable to the Charging Party and the General Coun
sel other than a desire to tell the truth In addition I
find Servidio to be forthright in demeanor and testified
clearly and concisely On the other hand Wojtaszek was
at times evasive and as will appear in connection with
the case involving Codett s original discharge somewhat
contradictory I therefore adopt the testimony of Servi
dio as governing the disposition of this case
Having credited the testimony of Servidio I find that
in response to his telephone call to Wojtaszek the latter
informed him that not only was Codett an employee
who had to be told what to do all the time but also was
not a self starter and took off a lot of time for medical
reasons Wojtaszek also stated that Codett was a shop
steward and took Respondent to the Labor Board The
Board has found that this type of response to a request
for a reference interferes with employment opportunities
and amounts to a blacklisting that related to union or
other protected activity is a violation of the Act Madi
son South Convalescent Center 260 NLRB 816 823
(1982) Accordingly by this conduct on the part of Wok
taszek its plant manager at the time Respondent violat
ed Section 8(a)(1) of the Act
Inasmuch as Respondent has engaged in unlawful post
settlement conduct I further find that the Regional Di
rector properly set aside the settlement agreement in
Case 2-CA-21562 Accordingly I shall proceed to a de
cision in that matter
C The Case 2-CA-21562
1 Background
Codett was employed in Respondents shipping and re
ceiving department from 4 June 1984 until terminated on
13 January 1986 Soon after the commencement of his
employment in November 1984 Codett was elected shop
steward in Respondents shop representing about 30 em
ployees In that capacity Codett actively handled gnev
ances from fellow employees which were usually deter
mined by oral discussion with the plant manager who at
the outset was James Scott and after 1 October 1985
Paul Wojtaszek Indeed Codett never had recourse to
the filing of a written grievance Moreover it appears
that Richard Costello vice president of the Union in
charge of administering the contract rarely visited the
plant but rather when necessary would discuss prob
lems with Codett on the telephone The number of gnev
ances markedly increased when Wojtaszek assumed the
post of plant manager
ADVANCE WINDOW CORP 229
In his grievance handling Codett made reference to
the collective bargaining agreement and also to Respond
ent s employee handbook which according to testimony
of other employees had been used by management
during the entire penod involved In addition it also ap
pears that Respondent had a system of progressive disci
pline not only during the tenure of Scott but also when
Wojtaszek took over It should also be noted in connec
tion with events to be described subsequently that over
time was optional and employees could and would often
decline overtime work when asked to do so and would
not be disciplined
2 The facts
During the latter part of 1985 Codett and Wojtaszek
clashed over a number of matters For example there
was one problem concerning overtime in which Codett
and five other employees refused to work because there
was some disagreement about money and evaluations for
merit raises that Wojtaszek refused The following day
according to Codett Wojtaszek called in Codett and two
other employees during which Wojtaszek informed them
that while overtime was not compulsory they had to
perform it once they agreed to do so During this discus
sion Codett queried Wojtaszek as to why he and the two
other employees all black were called in and not the
three white employees who had also refused to work the
overtime On another occasion Codett challenged Wok
taszek concerning his transfer of employees to a different
shift and his refusal to pay the 10 percent shift differen
tial for a period of time One time Wojtaszek employed
his brother in law on a temporary basis as a truckdriver
Codett then sought to have the brother in law sign union
forms which Wojtaszek protested Codett also testified
that he had a dispute concerning a raise that was sup
posed to have been given a woman on maternity leave
On still another occasion Codett raised the question of
supervisors working and thereby performing unit work
Apparently Wojtaszek was so put out by this action that
he shouted at Codett and told him he was going to take
him and the Union to the Labor Board Codett stated
that when Toscano heard about it he apologized
Finally there was considerable discussion and some
dispute in December 1985 with respect to the plant clos
ing during Christmas week Besides the regular holiday
on 25 December Christmas Day Wojtaszek told Codett
that the plant would be closed 24 26 and 27 December
The employees would not be paid for those 3 days but
Wojtaszek proposed that the employees work three Sat
urdays prior to Christmas 7 14 and 21 December for
which they would be paid straight time According to
Codett he told him at this point that he did not think
that all employees would agree to work on these Satur
days Wojtaszek replied that he did not need 100 percent
just a majority
Codett then met with the employees informed them of
the proposal and determined that four employees and
himself would not want to work on these Saturdays
Codett related these results to Wojtaszek who asked him
to inform Costello of this arrangement The latter said it
would be okay as long as the employees knew that if
they did not work they would not get paid
Codett further testified that 2 days before the first Sat
urday workday Wojtaszek told him that he needed 100
percent cooperation or the agreement was off If enough
employees did not come in on the first Saturday he
would just pay those that did come in time and a half
payable in the next pay period and that would be the
end Codett protested that this was not the original
agreement The following day he met with the employ
ees to report that Wojtaszek had gone back on his origi
nal agreement The employees all affirmed that they
wanted the original agreement even for regular pay to
be paid during the week that the shop would be closed
They said they did not want this second proposal which
would be dependent on the number of people who re
ported to work The following day Codett received a
call from Costello who told him that he had heard from
Wojtaszek who claimed that Codett had called off the
agreement Codett then explained to Costello what actu
ally happened Costello then informed him that Wojtas
zek had agreed to put in effect the original agreement
providing for employment on the Saturdays for regular
pay to be received by employees during the plant clos
mg
Codett stated that later that afternoon a meeting was
called by Charles Stewart and Michael Tillman Codett
referred to the former as production manager and the
latter as foreman All employees attended Codett testi
feed that Stewart told the employees that the original
agreement was still on that they could work Saturday at
regular pay and receive their pay during the week the
shop was closed Stewart then asked how many employ
ees did not want to work and Codett and four others
said that they would not Codett then asked Stewart
whether there would be any disciplinary action taken
against employees who did not work any of the Satur
days to which Stewart replied no and the meeting was
then concluded 1
Codett did not work on three Saturdays No one re
ceived disciplinary notices for absence on 7 December
The record reveals that Codett and two other employees
were marked excused absence while five others were
marked absent no call Wojtaszek testified that no
action was taken because this was the first Saturday and
they merely reminded employees that it was a scheduled
workday However Wojtaszek did give disciplinary no
tices of warning to employees who were absent on 14
December Indeed he called Codett to his office the fol
lowing Monday and told him that the last warning
In its brief Respondent correctly contends that the complaint did not
allege either Stewart or Tillman to be supervisors within the meaning of
the Act Moreover I find the record insufficient to establish such super
visory status However it is apparent that Stewart at least represented
management in this situation According to the testimony of Codett and
other employees at the hearing this meeting was instituted and conduct
ed by Stewart and not anyone in a pure employee category The only
other contention regarding this meeting was the question whether Woj
taszek attended or was in some location such as a doorway so that he
could hear what was going on Wojtaszek of course denied having been
there and in this respect the testimony of employees who attended the
meeting is at vanance on the question In any event I do not deem this to
be of any importance Suffice it to say there is no denial that a meeting
took place even in Wojtaszek s absence and this is sufficient to indicate
certain of the protected concerted activity in which Codett was engaged
230 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
notice was saved for him and asked Codett to sign it
The latter refused stating that he had not done anything
wrong because he had informed the Company that he
was not going to work on those Saturdays and that he
and the other employees who did so had not broken the
agreement Codett testified that at this point Wojtaszek
began hollering and said that he could be terminated for
talking like that and harassing him in front of another su
pervisor pointing at Stewart Codett refused to sign and
walked out Codett did not work on 21 December nor
did eight other employees The Monday after that Satur
day two employees informed Codett they had received
messages on Saturday that they would be terminated if
they did not come in Codett later saw Wojtaszek and
asked him why he used these illegal tactics on employees
Saturday and the latter walked away and told him to
call his union Codett did call and report this incident to
Costello
On Saturday 4 January Codett came to work for half
a day He had told Stewart of this the night before and
the latter said it would be okay Codett did not receive a
disciplinary notice for that day On 13 January 1986
when Codett reported for work Stewart told him that
he was wanted in the office Wojtaszek handed him his
attendance sheet which Codett looked at and returned
Wojtaszek then gave him a check and told him he was
terminated for excessive absence He also said that
Codett was not the kind of shop steward he wanted and
that there was no need to argue about this because he
had already informed Costello
On the date of the discharge Codett also called Cos
tello and told him what had occurred Costello asked for
information concerning the times that he was absent for
medical reasons which Codett furnished him After a
week Costello informed him that the matter may go to
arbitration because Respondent refused to take him back
after the controversy concerning the Saturdays prior to
Christmas About 2 weeks later Costello again called
and told Codett they could not go to arbitration because
there was no witness to any statement by management
that there would be no disciplinary action against em
ployees who did not come in on those three Saturdays in
December Codett then went and obtained a statement
signed by a number of employees A few days later Cos
tello in response to a call from Codett stated that the
Union was not going to arbitration and he later received
a letter confirming that decision Incidently Codett testi
feed that the employees who signed the statement that
management said they would not be disciplined also told
Codett that they had never been questioned on this point
by Costello or anyone representing the Union This was
further substantiated by the testimony at the hearing of
employee witnesses Kolb Sickler and Watson
Finally Codett s record of absenteeism must be de
tailed as this is the stated reason for his discharge The
record shows that Codett was absent a total of 38 days
in 1985 With regard to these he received a warning
from Wojtaszek s predecessor Scott for an absence on
15 May 1985 because he failed to call in A number of
his absences were due to illnesses such as 5 days in
August when he was hospitalized and absences on 4 and
5 December because of an injury sustained at work He
was absent on 31 December also because of an injury at
work In addition 9 days of absence were the result of a
loss of a return bus ticket while on vacation in South
Carolina Respondent was advised of this matter and
Scott sent him a money order that permitted him to
return to work Codett received no warning or repri
mand regarding this absence of 9 days The total also in
cluded 3 disputed days of the Christmas Saturdays 7 14
and 21 December Codett was not absent in January
1986 during the period immediately preceding his dis
charge In addition his record indicated four warning
notices of which one on 15 May has been previously
mentioned one issued 2 October by Wojtaszek because
of Codett s failure to work overtime after agreeing to do
so This is the incident that resulted in a heated discus
sion and charge of racism also referred to above Two
notices of course were with respect to the disputed ab
sences on 14 and 21 December The parties stipulated
that Codett was never suspended for absenteeism or any
other reason although it appears that Respondents work
rules provided for progressive discipline including sus
pension prior to discharge
3 Analysis and conclusions
A determination must be made initially with respect
to credibility As noted in the discussion of the postset
tlement case above on the basis of Wojtaszek s demean
or coupled with his presence at the hearing pursuant to
subpoena by Respondent and its payment to him for his
testimony I do not find him to be credible On the other
hand Codett s testimony was in various areas substantiat
ed by the testimony of other employee witnesses Woj
taszek was the only witness called by Respondent and
despite the references in the record to conversations
meetings and 'ncidents at which other management
people such as Toscano Stewart Tillman and others
were present not one of these was called to corroborate
any of Wojtaszek s statements or testimony For exam
ple although Respondent has contested the supervisory
status of Stewart and Tillman I find on the basis of un
contradicted testimony that they were at the very least
management representatives It is noted that the meeting
of employees conducted by Stewart was not really con
tested by Respondent whether it actually took place The
only matter put in issue was whether Wojtaszek was in
the neighborhood of the meeting so that he could have
overheard what was being said It is difficult to believe
that Stewart would have a meeting with employees with
out the knowledge and acquiescence of management
Nevertheless Stewart did not testify in connection with
the attendance requirements of employees on the Satur
day workdays in December On the basis of these credi
bility findings I further find that Codett s version and
that of the other employees regarding the agreement to
make up for the lost days during the Christmas holidays
by working three Saturdays voluntarily was correct In
any case this would be the more likely version in view of
the past policy of voluntary overtime and the history of
absences so that the Respondent was usually agreeable
to having a reasonabie complement rather than having
an expectation of 100 percent attendance
ADVANCE WINDOW CORP
The complaint alleges that during December 1985
Wojtaszek threatened Codett with discharge because of
his activities as shop steward This allegation refers to
the Monday following the second Saturday of work 14
December Wojtaszek had given warning notices to em
ployees who had not reported for work that Saturday
He called Codett into his office told him he had saved
the last disciplinary action for him and asked Codett to
sign it The latter refused saying he had not done any
thing wrong since he had informed the Company that he
was not going to work on those Saturdays and further
that no agreement had been broken by the employees
but rather that Wojtaszek did not keep his agreement
Stewart and a secretary were present in the office at the
time Woltaszek at that point began hollering at Codett
and said he could be terminated for talking like that and
harassing him like that in front of another supervisor
pointing at Stewart Codett then walked out I find by
this conduct on the part of Wojtaszek Respondent vio
lated Section 8(a)(1) of the Act The disciplinary action
in question was not only with respect to Codett but also
to the other employees who failed to work on the pre
ceding Saturday The discussion if one could call it that
was with respect to the agreement made by Codett as
shop steward with Wojtaszek representing the Employ
er Any argument concerning its interpretation or who
did or did not break that agreement is concerted activity
protected under the Act particularly since other em
ployees were disciplined When Wojtaszek stated that
Codett could be terminated for talking the way he did
that is by stating that Wojtaszek violated the agreement
then clearly Wojtaszek was unlawfully threatening terms
nation Curiously it may also be noted that during Woj
taszek s response to Codett he referred to Stewart as a
supervisor This serves to substantiate by Respondent s
sole witness the prior finding that Stewart was at the
least a member of management
There remains for consideration whether Respondent
violated Section 8(a)(3) of the Act by terminating
Codett The General Counsel contends that Respondent
discharged Codett because he was an active and persist
ent shop steward Respondent claims that the cause was
excessive absenteeism Almost the entire record of this
proceeding relates to Codett s activity as a steward con
stantly embroiled with the grievances of the employees
individually or as a group Wojtaszek as plant manager
was clearly hostile to Codett and his efforts Moreover
it has been found that Codett was threatened with terms
nation by Wojtaszek in violation of Section 8(a)(1) of the
Act This would be sufficient to establish Respondent s
animus toward Codett
However it is equally clear on the basis of Wright
Line 251 NLRB 1083 (1980) enfd 662 F 2d 899 (1st Cir
1981) cert denied 455 U S 989 (1982) and NLRB v
Transportation Management Corp 462 U S 393 (1983)
that an employer may defend by a showing that an em
ployee would have been discharged in any event despite
his involvement in union or other protected activity
I find that Respondents asserted reason of absenteeism
has not been established The total number of days
absent in 1985 (38 days) was inflated by the three Satur
days in contention 9 days while on vacation in South
231
Carolina apparently excused by Respondent sending him
a bus ticket to return and several other days absent due
to work related injuries In addition Respondent was
plagued by absenteeism and had to overlook some of it
to retain its work force Actually since Codett was dis
charged on 13 January his attendance record was good
for the past 6 weeks if one discounts the three disputed
Saturdays Also to be noted is that Respondent did not
apply its progressive discipline policy to Codett as he
never was suspended
Arrayed against this is the obvious animus displayed
by Wojtaszek against Codett He actually said it all when
he told Codett at the time of his termination that he was
not the kind of steward he wanted This brings to mind
the strange absence of the Union in this situation-not to
file even a grievance on the termination of its steward
Codett s hyperactivity perhaps is more understandable in
this atmosphere of lack of support by union officials
Moreover it sheds more light and reason for the termina
tion Getting rid of Codett was buying peace for Wojta
szek and Respondent absent an active union presence
Accordingly I find that Respondent has not shown
that it would have taken the same action discharge
absent Codett s union activity It thereby violated Sec
tion 8(a)(3) and (1) of the Act
IV THE EFFECT OF UNFAIR LABOR PRACTICES ON
COMMERCE
The activities of Respondent set forth in section III
above occurring in connection with the operations of
Respondent described in section I above have a close
intimate and substantial relationship to trade traffic and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices I shall recommend that it be or
dered to cease and desist therefrom and take certain of
firmative action designed to effectuate the policies of the
Act
Having found that Respondent unlawfully discharged
Ronnie Codett in violation of Section 8(a)(3) and (1) of
the Act I shall recommend that Respondent be ordered
to offer him immediate and full reinstatement to his
former position or if that job no longer exists to a sub
stantially equivalent position without prejudice to his se
niority or any other rights or privileges previously en
toyed and make him whole for any loss of earnings suf
fered by reason of the discrimination against him with
interest as computed in New Horizons for the Retarded
283 NLRB 1173 (1987) 2 The earnings shall be computed
2 In accordance with our decision in New Horizons for the Retarded
283 NLRB 1173 (1987) interest on and after January 1 1987 shall be
computed at the short term Federal rate for the underpayment of taxes
as set out in the 1986 amendment to 26 US C § 6621 Interest on
amounts accrued prior to January 1 1987 (the effective date of the 1986
amendment to 26 U S C § 6621) shall be computed in accordance with
Florida Steel Corp 231 NLRB 651 (1977)
232 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
at the rate he received at the time of his termination by
Respondent and any increments thereafter or at the rate
he would have obtained if employed by Servidio or Wa
kefern the Employers at which he was unlawfully black
listed by Respondent whichever of the three was high
est Respondent shall receive credit for the amount of
money it paid Codett pursuant to the settlement agree
ment in Case 2-CA-21562 which has been set aside
I shall also recommend that Respondent remove from
its records any reference to the unlawful discharge of
Codett and inform him that this will not be used as a
basis for further personnel actions against him 3
Finally I shall recommend that Respondent be or
dered to notify John Servidio and Wakefern Foods in
writing that it withdraws its negative statements and re
marks with respect to Codett s union activities
CONCLUSIONS OF LAW
1 Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act
2 The Union is a labor organization within the mean
ing of Section 2(5) of the Act
3 As a result of Respondents unlawful conduct in
Case 2-CA-21852 the settlement agreement in Case 2-
CA-21562 was properly set aside
4 By threatening termination of Ronnie Codett be
cause of his union and other protected concerted activi
ties Respondent violated Section 8(a)(1) of the Act
5 By discharging Ronnie Codett because of his union
activities as shop steward Respondent violated Section
8(a)(3) and (1) of the Act
6 By blacklisting Codett as a union activist in re
sponse to request for references by other prospective em
ployers Respondent violated Section 8(a)(1) of the Act
7 The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act
8 Respondent has not engaged in unfair labor prac
tices except as specifically found above
On these findings of fact and conclusions of law and
on the entire record I issue the following recommend
ed4
ORDER
The Respondent Advance Window Corp Newburg
New York its officers agents successors and assigns
shall
1 Cease and desist from
(a) Threatening employees with discharge because of
their support for and activities on behalf of the Union
(b) Discharging employees because of their activities
on behalf of the Union
(c) Blacklisting discharged employees on the basis of
their union activities in their efforts to seek other em
ployment
(d) In any like or related manner interfering with re
straining or coercing its employees in the exercise of
rights guaranteed them by Section 7 of the Act
2 Take the following affirmative action necessary to
effectuate the policies of Act
(a) Offer Ronnie Codett immediate and full reinstate
ment to his former position of employment or if that job
no longer exists to a substantially equivalent position
without prejudice to his seniority and other rights and
privileges previously enjoyed
(b) Make whole Ronnie Codett for any loss of earn
ings and other benefits suffered by him as a result of the
discrimination against him in the manner set forth in the
remedy section of this decision
(c) Notify John Servidio and Wakefern Foods by reg
istered mail that Respondent has withdrawn the negative
references concerning Ronnie Codett and his union ac
tivities that it furnish them either by telephone or in
writing
(d) Remove from its files any reference to the dis
charge of Ronnie Codett and notify him in writing that
this has been done and that evidence of this unlawful ter
mination will not be used by it as a basis for future per
sonnet action against such employee
(e) Preserve and on request make available to the
Board or its agents for examination and copying all pay
roll records social security payment records timecards
personnel records and reports and all other records nec
essary to analyze the amount of backpay due under the
terms of this Order
(f) Post at its Newburgh New York office and plant
copies of the attached notice marked Appendix s
Copies of the notice on forms provided by the Regional
Director for Region 2 after being signed by the Re
spondent s authorized representative shall be posted by
the Respondent immediately upon receipt and maintained
for 60 consecutive days in conspicuous places including
all places where notices to employees are customarily
posted Reasonable steps shall be taken by the Respond
ent to ensure that the notices are not altered defaced or
covered by any other material
(g) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re
spondent has taken to comply
IT IS FURTHER ORDERED that the complaint be dis
missed regarding such allegations not specifically found
violative of the Act
3 Sterling Sugars 261 NLRB 472 (1982)
4 If no exceptions are filed as provided by Sec 102 46 of the Board s
Rules and Regulations the findings conclusions and recommended
Order shall as provided in Sec 102 48 of the Rules be adopted by the
Board and all objections to them shall be deemed waived for all put
poses
5If this Order is enforced by a judgment of a United States court of
appeals the words in the notice reading Posted by Order of the Nation
at Labor Relations Board shall read Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board
ADVANCE WINDOW CORP 233
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or
dered us to post and abide by this notice
WE WILL NOT threaten you with discharge because of
your activities on behalf of the Union
WE WILL NOT discharge employees because of their
activities on behalf of the Union
WE WILL NOT blacklist discharge employees on the
basis of their union activities in their efforts to seek
other employment
WE WILL NOT in any like or related manner interfere
with restrain or coerce our employees in the exercise of
their rights guaranteed in Section 7 of the Act
WE WILL offer Ronnie Codett immediate and full rein
statement to his former position of employment or if
that job no longer exists to a substantially equivalent po
sition without prejudice to his seniority and other rights
and privileges previously employed
WE WILL notify those prospective employees to whom
we furnished references that we are withdrawing the
negative remarks about Ronnie Codett and his union ac
tivities
WE WILL remove from our files any reference to the
discharge of Ronnie Codett and notify him in writing
that this has been done and the evidence of his unlawful
termination will not be used by us as a basis for future
personnel actions against him
ADVANCE WINDOW CORP
J