Crown Cork & Seal Co.

National Labor Relations Board - Board Decisions

Nov 17, 1980

253 N.L.R.B. 310 (N.L.R.B. 1980)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Crown Cork & Seal Company, Inc. and United
Steelworkers of America, AFL-CIO, CLC.
Cases I-CA-7743 and I l-CA-7978
November 17, 1980
DECISION AND ORDER
HiY CHlAIRMAN FANNING ANI) M MIKRS
JENKINS ANI) PI NIII.O
()n March 28, 1980, Administrative Law Judge
Alvin Lieberman issued the attached Decision in
this proceeding. Thereafter, Respondent filed ex-
ceptions 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, 2
and conclusions:' of the Administrative Law Judge
' Respndel filed with the Adllinistrative Law Judge ia motion to
strike certait portitons e the (iieneral Counsel's hrief to tile Admillistra-
tive La,;w Judge thal dealt with the prior erlploynlent iof its felltr per-
sonnel managcr, Chester Martin The Adminllistrative L.aw Judge. ml I it 4
of his Decision, denlied Respondent ' motionl although he "made no cretli-
hility findings conlceriTug Martill based in his frorrer remployieit
' Respondent has excepted toi this prltion of the Admlilistrative
Law Judge's I)eciioln, ad continlues to assert that such niaterial should
be strickenl from the General Counlsel's brief. We lnote, hweVer, tat tile
General C(ounlsl has nott filed exceptitlls or brief with te IBoard aild lthe
General Counisel's brief filed with the Administrative I.aw Judge is not
formally bheftre us I these circumstances, and particularly sintce Re-
spondenl has nlt suffered any prejudice by thie Admlisitrative L.aw
Judge's ruling, we shall deny tle motion. In passing, hever, we ote
that, in our ie w, Martin's past emplo yment history is irrelevant to ally
issue in this case and it has played lno part in our analysis of the record
2 Respondent has excepted to certain credibility findings made by the
Administrative aw Judge. It is the Bolard's established policy nol to
overrule an adnlinistratise law judge's resolutions with respectl to credi-
bility utnless the clear preponlderalnce of all of the relevanit evidence con-
vinces us that the resolutions are incorrect. Slandord Dry Wall Products,
Inc., 91 NIRB 544 (1950), einfd 188 F.2d 362 (3d Cir 1951). We have
carefully exattined the record ad find it( basis for reecrsing hls findiigs.
a I the absence of exceptio,s. we adopt pr firrma the Adninlisl-alive
I-aw Judge's findings that Respondent did not iolate Sec. 8(a)(1) oif the
Act by (1i soliciting reports from employees on ,other employees' union
activity; and by (2) observing the Union's handbilling employees ill front
of the plant
The Admlinistrative aw Judge fiuind that Responldent ilated the
Act by discharging Henry McClain In this regard. Respilidelnt excepts
to the Admilnistrative L.aw Judge's failure it credit lie testnitinlly tif Su-
pervisor Asialos over that of McClai concerning an incident tccurriig
on Nosecmhcr 6, 1971. Respondent argues that the Administrative I.aw
Judge iginored the testimony f impartial emplloyee tobserver Iarry
HIooks concerning the incidenlt We agree with Resplonident that if ooks'
testimonliy was not mentilioned by the Adilinistrative Law Judge nehle-
less, cinsiderationl of that testiminy does tnoti support Astalos' versiell At
fil 4 of his D)ecisin, the Adminislralive Law Judge expressly noted that
all argumenlts raised by the parties i their briefs r at hearinig had bee
carefully weighed ad considered though they might not he discussed
lHence, it is not clear whether his timissioin (if a discussi n of 11 ooks' testi-
miony was inadvertenlt or not In ay ctnt, contrary to Responldetl. rwe
do not find that H oks' testinlonly supports Asalos TI'he Adminstratise
I.aw Judge found that McClain ad Astalols had an altercation oIve
McClaill's alleged unwilliniginess t d certain work in a proper mainner.
I'he incident started n the planlill loor and, after certainl words cwre ex-
changed, Astalos tirdered McClain into his iffice I he incident conttitued
253 NLRB No. 35
and to adopt his recommended Order, as modified
herein. 4
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modi-
fied below, and hereby orders that the Respondent,
Crown Cork & Seal Company, Inc., Cheraw,
South Carolina, its officers, agents, successors, and
there untlil Astilhos iold McClai thiat lie ss ,as laking McClain to te planit
mrlallager's ficc McClinl thent hecanie ill and, at McClai's request, A.-
lalos look McClail to tile firstl id oilice where McChlail was told to go
holie ''he Administrative I aw Judge nloted that, cntlary o Astalos'
testiiinony, McClaili dLniCte raising his oi0CC to Asials ad shakinlg his
fiNt ii his face durinig the incidenl l ooks testified that he hecard Asialos
speak to McClain ton the phlatnit floor about ;lai alleged failure to prform
,,ltilc ssork lie thei1 noted Ihill Atalits and McClain wellt nluto Atalos'
olice lie admitted h1e could hear iiitEliing Ihat was tIheti said thoulgh lie
cllld see the to inllen and surriised "''from I lheir exprcssion Illat
hey N was [sic] arguing." looks said he s McClaill pl il a finger at As-
Ill);s hile hcey ere talkilng id then the twio came ut f he office.
and walked ff, as did Iliooks Ilooks testifiel tlle to nlmen were 5 inches
from each olther whenl they were talking While he indicated that he
"'thought" something wais going to happen, like "a; fight r solmelhing,"
hcl thell said hie did nol "klow really what it was. you know ()On rc-
direct. McClain as expressly asked about pelintiig his finger and he in-
dicated that hc wals poitiitng to he first aid roonl , here he told Astalos
fti v utatled t go Consisdcraililon oif llioks' testimony thus doecs rnol estah-
lish corrobortalion of A,talit)s' testilltll)> that McClain raised his vsice o
Ast ill o Htolks cxpresl, aid he could iiotI hear tile cnversation Ili the
office Nr did Hiooks telify thfiat McClaim shook Ilis fist i Astalios' face
Rather, he idicatled McC'laill pointed his finger, and McClain supplied at
explanationl for hly tie id o Wile looks idicated that he "thought"
the two miglt hase a; light . his suppositinll was not supported by ally
objective cxidence other than the facl that lhey were standinig close to-
gether. WithIout milore and cousidering the Administrative l.aw Judge's
general crediting of McClain (see fit 2 oif the Decision),l we do not fiind
Ilooks' lestirlnry supportl Astalo s Resplondcnt argues
Respoindent has als excepted to the discrediting of Martin whio denied
laking lotles while hanldhilhlig tlook place In this connection, Responldeni
asserts ha the Administrativ e aw Judge mischaraclerized Martin's tes-
liniony As an examlple Resprondent contends tat the Adninisirative
L.aw Judge erred i stating Ihat Martin denied being outside te plainl ol
July 20 when the tvotelaking allegedly took place
We have carefully examined the record with respect to Marlin's testi-
ilonty. It is true that Martin was not specifically asked if he was outside
the plant lon July 2 H exer, Martin did testify hat he stood oulside
the plant when handhilling took place on ne occasionl only. and that was
during an afternoon incident. Since the only afternoon handbilling tlook
place in June. we find there ssas a reasonable basis fr the Administrative
l.aw Judge Ilo take Maritin's testimony as a denial that he wdas outside the
plat n July 20. Hence, we are nolt persuaded that Respondent has es-
tahlished that the Adnistratie Law Judge mischaracterized Martin's
testimony Iil ai;y siglficailo way.
li his recommended Order, the Administrative I.aw Judge employed
broad injulctive language i ordering Resp(-ndent to cease and desist
frotrt egaging Ili ";ani oilhr" unlawful tconduct After applying the
starndrds discussed ili tile Ioard's recent )eTision in Ilickmol Iouds.
hni' 242 NLRII 1357 1979). fr determininig wether a "''broad" order is
warranted, we finld the narrow ijunctive lanlguage, ie. '"any like or re-
lated rlarier."'' a sufficientl remedy in this instance and modify the Ad-
inurlisiratixe I.;iw Judge's recommended Order accolrdingly. We also
nlitdlify the proposed niltice 1 cltfliurm with the prolsisions of the recom-
nendcred O)rder
Memiber Jenkiins nles Ihal lie would award itecrest n any backpay
owed liinry McCt'in oiri the basis (if his pslt ll set ut i Olvmpie
M'dical C(irporutiun, 25f0 NL RH 140 119801
31()
CROWN CORK & SEAL C()MPANY
assigns, shall take the action set forth in the said
recommended Order, as so modified:
I. Substitute the following for paragraph l(e):
"(e) In any like or related manner interfering
with restraining or coercing employees in their ex-
ercise of the rights guaranteed them in the Act."
2. Substitute the following for paragraph 2(a):
"(a) Offer Henry McClain immediate and full re-
instatement to his former job or, if that job does
not exist, to a substantially similar job, without
prejudice to his seniority or other rights and privi-
leges previously enjoyed, and make him whole, in
the manner set forth in the section of the Adminis-
trative Law Judge's Decision entitled 'The
Remedy,' for any loss of earnings he may have suf-
fered by reason of his unlawful discharge."
3. Insert the following as paragraph 2(d):
"(d) Notify the Regional Director for Region 11,
in writing, within 20 days from the date of this
Order, what steps the Respondent has taken to
comply herewith."
4. Substitute the attached notice for that of the
Administrative Law Judge.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE.
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all parties had the oppor-
tunity to present evidence and arguments, the Na-
tional Labor Relations Board has found that we,
Crown Cork & Seal Company, Inc., have violated
the National Labor Relations Act, as amended. We
have, therefore, been ordered to post this notice
and to carry out its terms.
WE WILL NOT engage, or attempt to engage,
in surveillance of any activity carried on by
United Steelworkers of America, AFL-CIO,
CLC, or any other union.
WI Wi lI. NOT engage, attempt to engage, or
create the impression that we are engaging in
surveillance of your union activity.
WE WIl.L NOT fire you, lay you off, suspend
you, discipline you in any way, or do anything
else to your disadvantage, and WE Wll l NOT
threaten to do any of these things, because you
joined, helped, supported, or signed a card for
United Steelworkers of America, AFL-CIO,
CLC, or any other union.
WI: Wil. NOr in any like or related manner
interfere with, restrain, or coerce you in the
exercise of the rights guaranteed by the Na-
tional Labor Relations Act.
As it has been decided that we fired Henry
McClain because he helped and supported United
Steelworkers of America, AFL-CIO, CLC,
WE wl.l. immediately offer to take Henry
McClain back to work for us at his old job or,
if that job no longer exists, at a substantially
similar job without prejudice to his seniority
or other rights and privileges, and wI winl
pay Henry McClain any wages he lost because
we fired him, plus interest.
All our employees are free, without any objec-
tion from us, to become or remain or refrain from
becoming or remaining members of United Steel-
workers of America, AFL-CIO, CLC, or any
other union.
WE- wit.i respect your right to form any
union, to support any union, to help any
union, and to deal with us through any union.
WE WIL. also respect your right not to do
any of these things.
CROWN CORK & SF.AI COMPANY,
INC.
DECISION
SlIA IFMENT O1 THF CASk
AL.VIN LIEBIERMAN, Administrative Law Judge: The
hearing in this proceeding, with all parties represented,
was held before me in Cheraw, South Carolina, on the
General Counsel's complaint, as amended at the hearing,
and amendment to complaint' and Respondent's answer,
as amended at the hearing. In general the issues litigated
were whether Respondent violated Section 8(a)( ) and
(3) of the National Labor Relations Act, as amended. 2
More particularly, the questions for decision are as fol-
lows:
1. Did Respondent violate Section 8(a)(1) of the Act
by keeping under surveillance employees' union activity
and creating the impression that it was doing so; harass-
ing and threatening employees; and soliciting reports on
employees' union activities?
H' ereinafter these pleadings will be referred to jointly as the corm-
plaint
2 I pertllnenl part these sections provide:
Sec. (l) It shall be an unfair labor practice for an emploer--
(I) to interfere llth. restrain, or coerce employees in the exer-
cils of the rights guaranteed in sction 7,
(3) h dincrimllation in regard to hire or tenure of emplo) menl
to enlcourage or discourage membership in any labtr organi
iation
Sec 7 insofar ias relesanl states:
Stc. 7 Enmplioyees shall have the right to self-orgainilati. to
form . join( or ssis lahor organl,;11atl(o. (o bargainl collectiscl5
through rpresentalt\ies of heir II i chlloosing, aid t engage in
other concerted acli illCs Ifor the purpose of collectlie halrgalning or
tther nmlltuil id r prelte lltin
311
I)tCISI()NS OF NAII()NAI. AlO()R REI.AT'I()NS B()ARI)
2. Did Respondent violate Section 8(a)(3) of the Act
by discharging two employees. Henry McClain and
Willie Thomas?
Upon the entire record," and having taken into ac-
count the arguments made and the briefs submittedl 4 I
make the following:
I. INI)IN1 S Ol IAC('I
Respondent, a New York corporation, is engaged at
Cheraw, South Carolina, in the manufacture and sale of
cans. During the 12 months preceding the issuance of the
complaint, a representative period, Respondent sold and
shipped goods valued at more than 50,000 to customers
located outside the State of South Carolina. According-
ly, I find that Respondent is engaged in commerce
within the meaning of the Act and that the assertion of
jurisdiction over this matter by the National Labor Rela-
tions Hoard is warranted.
II. TIHR I ABOR ORGANIZATION INVOI VI)
United Steelworkers of America, AFL-CIO. CLC
(herein the Union), is a labor organization within the
meaning of the Act.
Ill. IN ROI)UC'ION N
Briefly, this proceeding is concerned with events fol-
lowing the institution of the Union's campaign to orga-
nize Respondent's employees and become their collec-
tive-bargaining representative. Included among these are
the discharge of two employees, stated in the complaint
as having been violative of Section 8(a)(3) of the Act,
Issued iltaneously is scparalc rder corr-hcing obvi)us crrors i
Ihe stelnographic raiscripl of tilth hearing in this proceeding. Included in
this order ar critlols Ilt lght h Ithe (e l neral C('ounlsel i a imotioll li
correctl ite tralnscript
4 Allhough all Ithe rgentients oI the parties and Ihe authoritics cited h)
them. whelhcr appearing il their briefs, or made orally al he hcaring,
may not he disc ussed. cat:h has been carefully cighed and considered
A separate matter concerning the (ileral Cltselc's brief mnlusl ios he
adldressed In it he Gcleral Counsel ulrges me to discrcil testin(lny
given hy ('hester Marlilln, a itness called hb Respondent, because lie had
been prsolnrel Imlanager il' the Vallace, North Carolina plai o J I'
Stevenls & Coi., I (Slencll ns l ;. lint heln all lnfair labor practice
pr-cceeding agaillt Sceiris ilvoling thai plant was in progress In Ihi,
coniection. tile (ictlilal ('ounsel's brief conilainls the fillowing passage:
Itli:l g al one lillic heeCl employed bhy the infalmous J.P Sevcens &
('