Schluderberg-Kurdlle Co.

National Labor Relations Board - Board Decisions

May 4, 1978

235 N.L.R.B. 1412 (N.L.R.B. 1978)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Schluderberg-Kurdle Co., Inc. and Joseph F. Nichols.
Case 5-CA-8437
May 4, 1978
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND MURPHY
On January 25, 1978, Administrative Law Judge
Marion C. Ladwig issued the attached Decision in
this proceeding. Thereafter, the Respondent filed
exceptions and a supporting 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 brief
and has decided to affirm the rulings, findings,1 and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the Respondent, Schluderberg-
Kurdle Co., Inc., Baltimore, Maryland, its officers,
agents, successors, and assigns, shall take the action
set forth in said recommended Order.
The Respondent 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 credibili-
ty 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 (C.A. 3, 1951). We have carefully
examined the record and find no basis for reversing his findings.
DECISION
STATEMENT OF THE CASE
MARION C. LADWIG, Administrative Law Judge: This
case was heard at Baltimore, Maryland, on June 15, 1977.'
The charge was filed by an individual, Joseph Nichols, on
February 24 and the complaint was issued on March 31.
The primary issues are whether the Company, the Respon-
dent, (a) threatened to discharge Nichols, a probationary
employee, if he sought the assistance of the Union
concerning holiday pay, and (b) thereafter discharged him
for going to the Union, in violation of Section 8(a)(1) and
(3) of the National Labor Relations Act.
Upon the entire record, including my observation of the
demeanor of the witnesses, and after due consideration of
the briefs filed by the General Counsel and the Company, I
make the following:
FINDINGS OF FACT
1. JURISDICTION
The Company, a Maryland corporation, is engaged in
production, packaging, and sale of meat products at its
plant in Baltimore, Maryland, where it annually ships
products valued in excess of $50,000 directly to customers
located outside the State. The Company admits, and I find,
that it is an employer engaged in commerce and in
operations affecting commerce within the meaning of
Section 2(2), (6), and (7) of the Act, and that the Union,
International Union of Operating Engineers, Local No. 37,
is a labor organization within the meaning of Section 2(5)
of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Discharge Threat
Chief Engineer Walter Malinowski was the supervisor
over eight power department employees, represented by
the Union. Malinowski had been a member of the Union
(or its predecessor local) for 34 years, until January when
the Union was "about to pull a strike" and "they were
going to pull me out of the plant with them." He then
obtained a withdrawal card, testifying, "I thought that my
obligations were to the company. . . I had to put my trust
into the company."
In early February, after a new union agreement was
signed, Malinowski needed another employee to take the
place of stationary engineer Edward Copes, who was to be
moved "into the position of an operating or maintenance
engineer." Malinowski explained to Corporate Engineer
Winfield Rogers "we have to have more help." They
contacted the Union, hoping that it "would save us some
time and send us a qualified engineer down to handle this
oiler's job." The Union referred Joseph Nichols, an
experienced employee who had been a member of the
Union since 1965.
Nichols was a good worker. He was being instructed on
the job by stationary engineer Calvin Holmes, and was also
working with employee Copes for about 1-1/2 to 2 hours a
day. Chief Engineer Malinowski admittedly asked Holmes
and Copes how Nichols was doing, and "Little by little
they would tell me .. .'He's doing all right.' "
Nichols had previously worked on a rotating shift, but he
had never worked up to 9 or 10 days in a row, before
getting up to 5 days off. On his first day on the job, he
commented to employees Holmes and Copes that he did
not like such a schedule, but they told him that once he
worked it and got his 5 days off, he would. (When he was
discharged on February 24, he had 2 days more to work
before getting his first 5 days off.) He proceeded to work
the assigned schedule, without complaining either to
management or to the Union about it. However, his initial,
first-day complaint was immediately reported by both
I All dates are in 1977 unless otherwise stated.
235 NLRB No. 194
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SCHLUDERBERG-KURDLE CO.
Holmes and Copes to Chief Engineer Malinowski, who
said nothing to Nichols about it.
Although Nichols was assigned to work on employee
Holmes' schedule, Chief Engineer Malinowski left a note
for Nichols on Friday night, February 18, that Nichols
would not work (with Holmes) on Monday, February 21
(Washington's birthday), but would be permitted to make
up his time on the following Saturday-which was one of
Nichols' 5 scheduled days off. (Under the union agree-
ment, Nichols was considered a probationary employee for
the first 30 days of employment, and was not "subject to
any of the provisions of this Agreement"-including a
minimum of 40 hours a week guarantee and holiday pay.
Nichols had not read the agreement, and did not know
what it provided for probationary employees.
Nichols told employees Copes and Holmes that he did
not think it was right, and that he should be allowed to
work on the holiday. Copes told him that he was not really
entitled to holiday pay, but that when Copes was a
probationary employee, Copes "had worked the holiday
but had got straight time." Holmes (as Nichols credibly
testified) said that Malinowski "should have at least told
me ahead of time, to give me time to work it out with him,"
and said that "I could probably get ahold of Mr. Malinow-
ski at home, and he might let me work straight time
Monday." Both Copes and Holmes looked for a copy of
the agreement, but could not find one.
Over the weekend, Nichols tried unsuccessfully to con-
tact Chief Engineer Malinowski, and also Union Business
Representative John Skipper. He did not work the holiday.
Nichols next saw Chief Engineer Malinowski about 7
a.m. on Tuesday, at the end of the Monday night shift. As
credibly testified by Nichols (who impressed me as an
honest, forthright witness), Malinowski asked him if he had
any problems, and he answered just one, about being
required to take off on Monday. Discussing the matter with
Nichols, Malinowski explained that was the way the
Company had it set up, and the way the contract read.
Nichols said he did not think it was fair, and said that he
had tried to call Malinowski over the weekend, and also
tried to call the Union and to talk to Skipper. Malinowski
warned, "If you are going to make a whole bunch of waves
over every little thing and bring the union in on this, then
you are not going to work here very long." Nichols said he
did not think a day's pay was a very little thing, and
Malinowski then threatened, "Well, you just go on to the
union, but don't come back here when you do." (Emphasis
supplied.) As Nichols credibly testified further, Malinowski
was angry, waving his hands, "telling me just to go on to
the union." (Employee Copes overheard the first part of the
conversation, but was in the shower and did not overhear
Malinowski's warning and threat. Employee Holmes en-
tered the locker room at the end of the conversation, and
heard none of the conversation except Malinowski's telling
Nichols that if he wanted to go to Skipper, then go ahead. I
discredit Malinowski's denials, and his claim that when
Nichols said he was going to the Union to get this
straightened out, Malinowski merely stated, "That's your
perfect privilege. Go any place you want.")
I find that Chief Engineer Malinowski's threat, "you just
go on to the union, but don't come back here when you
do," as well as his warning to Nichols, "If you are going to
make a whole bunch of waves over every little thing and
bring the union in on this, then you are not going to work
here very long," was coercive and violated Section 8(a)(1)
of the Act.
B. Nichols' Discharge
1. "Poor attitude"
Immediately following this conversation with Chief
Engineer Malinowski, Nichols went to the union hall and
spoke to Business Representative Skipper about 7:45 or 8
o'clock that Tuesday morning, February 22. Nichols talked
to Skipper about the holiday pay, and reported the
discharge threat. Skipper explained that Nichols was a
probationary employee and had no recourse through the
Union for the first 30 days, but suggested that he talk to the
shop steward about past practice on holidays for proba-
tionary employees. In Nichols' presence, early that Tues-
day morning, Skipper telephoned Industrial Relations
Manager Charles Tornabene at the plant and complained
about Malinowski's statement that if Nichols "came out to
talk to me, that he would be fired." Tornabene "said that
he would look into the matter, that he would talk to
[Corporate Engineer] Rogers about it, and see if he
couldn't correct the situation." Skipper heard nothing
further from Tornabene (who was not called as a witness).
It is also undenied that about 7:30 or 8 o'clock on
Wednesday morning, February 23 (after Nichols and the
steward talked), Union Steward Alexander Egress spoke to
Malinowski about Nichols not working on Monday.
Malinowski said that "he couldn't work him on account of
he wasn't there for the 30 days, and that he wasn't covered
under the contract. And that was it."
Nichols worked Wednesday night, and was discharged
about 7 o'clock the next morning, Thursday, February 24.
Chief Engineer Malinowski introduced Nichols to Me-
chanical Superintendent Robert Callahan, who told Nich-
ols that he was being terminated and that it was because of
his "attitude." Upon Nichols' leaving Malinowski's office,
Callahan called in shift engineers Holmes and Copes.
Callahan stated that the Company decided to terminate
Nichols because of his "poor attitude," and explained that
he thought Nichols was complaining about a lot of things,
and that he just really didn't fit in. Then, after the
discharge, Callahan asked Holmes and Copes about Nich-
ols. (As Malinowski admitted, it was his regular procedure,
for all probationary employees, to "sit and talk to Mr.
Holmes and Mr. Copes" at the end of the employee's 30-
day probationary period, and "lay the whole thing out, his
work, how he's doing, is he ready to take over, his attitude,
and everything." Nichols had been employed 17 days.)
Copes credibly testified that Callahan asked "if we had any
problem with his work, and we said 'No,' and he asked if it
seemed like he had a bad attitude on the job, and we said
'No.' " (Holmes could not recall their responses. Callahan
admitted on the stand that Holmes and Copes said that
Nichols had done his job properly, and had been a good
worker from the time he had been there.)
It is undisputed that Malinowski and Callahan had not
previously mentioned anything to Nichols about his "atti-
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tude," and that Nichols had not received any unfavorable
comments about his work in general.
The General Counsel contends that this is a "classic
8(a)(3) situation." Nichols "is threatened with discharge if
he seeks union assistance; he, in fact, does contact the
Union for assistance; Respondent learns of his contact
with the Union [through Business Representative Skipper's
telephone call to Industrial Relations Manager Tornabene
early Tuesday morning, shortly after the threat was made,
and again the next morning, through the union steward]
and discharges Nichols shortly thereafter." The General
Counsel argues that "Nichols' discharge, following so
closely upon the heels of Respondent's discovery that
Nichols discussed the holiday pay problem with Skipper
and [Steward] Egress, coupled with Malinowski's threats,
compels the conclusion that Nichols' discharge was based
on his assertion of his Section 7 right to seek union
assistance concerning his wages, hours and conditions of
employment." Citing the testimony that stationary engi-
neers Copes and Holmes "were called into Malinowski's
office and asked if they had encountered any problems
with Nichols' attitude or work after Nichols had been fired
and after Respondent had informed Copes and Holmes
that Nichols had been fired," the General Counsel con-
tends that one is compelled to conclude "that Respondent
was engaging in a post facto attempt to gather evidence to
make appear legitimate a discharge which was clearly
based on illegal considerations."
2. Company's defenses
Mechanical Superintendent Callahan (who discharged
Nichols on Thursday morning) testified that about 9
o'clock on Tuesday morning (i.e., shortly after Union
Business Representative Skipper complained by telephone
to Industrial Relations Manager Tornabene that Chief
Engineer Malinowski had stated if Nichols "came out to
talk to me, that he would be fired"), Malinowski came to
Callahan's office and reported to Callahan about Nichols.
According to Callahan, Malinowski reported that Nichols
had complained about not being able to work on the
Monday holiday, that Nichols showed a very bad attitude
to Malinowski, and that Nichols was not satisfied with the
work schedule. "So I proceeded to tell Mr. Malinowski that
this man doesn't seem to be suitable for our employment,"
that Nichols was a probationary employee and "we would
most likely discharge him, and we'll talk to [Corporate
Engineer] Rogers first." Callahan testified that he and
Malinowski, about 9 or 9:30 that Tuesday morning, went
to Rogers' office, "Malinowski restated that Mr. Nichols
had complained about not working on the holiday, and
that he also complained to the men about the work
schedule. Then, we went on to say that we felt as though
the man was not suitable for our employ" and Rogers
"confirmed in our recommendation to let the man go."
When asked if anything else was said, Callahan testified,
"Nothing except that the man had a poor attitude, and he
would not make a suitable employee, and we'd let him go."
According to Callahan, only he, Malinowski, and Rogers
were discussing the discharge, and it was not until over 27
hours later, about I o'clock on Wednesday, that "We
found . . . from Mr. Tornabene . . . that Mr. Malinowski
had threatened Mr. Nichols about not going to the union,
or something like that." Thus, according to Callahan's
testimony, the three supervisors made the discharge deci-
sion without consulting with Industrial Relations Manager
Tornabene; and furthermore, despite the undisputed testi-
mony that Tornabene promised Business Representative
Skipper earlier that Tuesday morning that Tornabene
would talk to Rogers about Malinowski's discharge threat,
Tornabene remained silent about the threat until over a
day later. (Callahan did not impress me as being a candid
witness and, as indicated above, Tornabene did not testify.)
Chief Engineer Malinowski's account was even less
credible. He not only denied threatening Nichols with
discharge, but he gave what appeared to be a clearly
fabricated account of what happened that Tuesday morn-
ing. He claimed (contrary to the credited testimony by
Nichols and employee Copes) that Nichols first refused to
speak to him that morning; that Copes commented, "Hey,
what's eating him?"; that Nichols said, "I'll tell you what's
eating me" and came around the corner and took his finger
and said, "You ain't got no business giving me that day
off"; and that Nichols was "shouting" and "pointing his
finger." Malinowski also claimed -that after Nichols left,
employee Holmes walked over "and he said to me, 'Boy,
he's something else, ain't he?' and I said, 'What do you
mean by that?' He said, 'He ain't nothing but trouble.
Everything this company, every policy of this company he
seems to be against. He don't like the schedule. He don't
like this. He don't like that.' " (To the contrary, employee
Holmes-also a company witness-testified that after
Nichols left, it was Malinowski who said that Nichols had
only been there a few weeks and was trying to tell him how
to run the place, and "We didn't pursue that any further"
and proceeded to talk about problems in the power
department.) Concerning his report that morning to Me-
chanical Superintendent Callahan, Malinowski claimed
(contrary to Callahan's testimony) that he told Callahan
that Nichols "came up to me, shook his finger in my face,
telling me I had no business giving him a day off. . . that
the fellows told me that . . everything that the company
policies [were for] he was against." Malinowski claimed
that Callahan asked him "what do you think you're going
to do about it?" and "I said, 'Well, to my knowledge I think
we ought to let him go; because the attitude of the fellow
here, if he is going to stand there and shake his finger in my
face now, what's he going to do to me when he's a real
employee, that I'll have a lot of problems getting rid of?' I
said, 'This is my opportune time. This is what the 30-day
period is supposed to be for' [emphasis supplied]." (From
his demeanor on the stand, Malinowski impressed me as
being a most untrustworthy witness.) When Corporate
Engineer Rogers, in turn, was called to testify about the
discharge decision, he also appeared less than candid when
he claimed, "I think [Malinowski] even referred to the fact
that the man shook his finger in his face," and further
belatedly claimed that he had Nichols' subsequent layoff
"in the back of my mind."
Ignoring the undenied testimony that Industrial Rela-
tions Manager Tornabene promised early Tuesday morn-
ing (before the discharge decision was made) that he would
talk to Corporate Engineer Rogers about Chief Engineer
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SCHLUDERBERG-KURDLE CO.
Malinowski's threat to discharge Nichols if Nichols went to
the Union, the Company argues in its brief that "the record
is abundantly clear that the decision to discharge Nichols
was entirely unrelated to his going to the Union, and
indeed, was made even before [Mechanical Superinten-
dent] Callahan, Rogers or Malinowski became aware that
Nichols had even gone to the Union." Later in its brief, the
Company relies on discredited testimony and argues, "the
sole motivation for Nichols' discharge was his abusive,
insubordinate conduct and attitude, manifested not only
by his outburst at Malinowski on February 22, but by his
continual criticism of the work schedule and work rules."
3. Concluding findings
Chief Engineer Malinowski threatened on February 22
to discharge Nichols if he took the holiday matter to the
Union; Nichols did take the matter to the Union, which
immediately complained to Industrial Relations Manager
Tornabene about the discharge threat; and 2 days later, the
Company discharged Nichols for having a "poor attitude."
Malinowski and Supervisors Callahan and Rogers testi-
fied that they made the decision to discharge Nichols
without the participation of Tornabene. However, I infer
from their widely different accounts of what happened that
they were attempting to conceal the fact that Tornabene
(who did not testify) had participated in the discharge
decision, and that the Company was concerned primarily,
if not solely, about Nichols seeking the assistance of the
Union even while still a probationary employee. Nichols'
work had proved to be satisfactory, and the Company's
only basis for claiming that he had a "poor attitude" (apart
from Malinowski's fabricated testimony) was Nichols'
persistence in taking the question of holiday pay to the
Union, and then Malinowski's first-day reports from
employees Holmes and Copes that Nichols initially com-
plained about working 9 or 10 days in a row (before getting
off 5 days).
Although Malinowski appeared to be a most untrustwor-
thy witness, he did reveal that consideration was given to
what Nichols would do "when he's a real employee," after
30 days, when "I'll have a lot of problems getting rid of"
him, and this therefore being "my opportune time" to have
him discharged.
In Loose Leaf Metals Company, 181 NLRB 202, 206
(1970), the plant manager stated "that one of the reasons
for Schwent's discharge was that she had caused 'trouble'
by calling the union representative, that he was afraid she
would continue to make a 'lot of trouble' both for the
Respondent and for the Union, and that by terminating
her while she was still a probationary employee they would
avoid further 'trouble.'" The Board found that the
employer "was unhappy with Schwent because as a
probationary employee she had already displayed a 'bad
attitude' by seeking the Union's aid to assert rights which
she believed were granted to her under the union contract
. . . It is a reasonable inference . . . that, based upon this
conduct of hers as a probationary employee, Respondent
2 See, generally, Isis Plumbing& Heating Co., 138 NLRB 716 (1962).
3 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec.
made a prognosis of her future conduct as a full status
employee, concluded that she would or might be a
'troublemaker,' and decided that her discharge while still
occupying the status of a probationary employee would be
a desirable solution." The Board found that the employer
"was primarily, if not solely, motivated by a belief or fear
that as a full status employee she would or might be quick
to call the Union. . . conduct which Respondent regarded
as disclosing a 'bad attitude,' " and that "such conduct
constituted protected union . . . activity," discharge for
which violated Section 8(aX3) and (1) of the Act.
I find that Nichols' going to the Union to seek assistance
in the matter of holiday pay was protected union activity,
and that his discharge for doing so constituted unlawful
discrimination to discourage participation in union activi-
ties, in violation of Section 8(a)(3) and (1) of the Act. The
Radio Officers' Union of the Commercial Telegraphers
Union, AFL [A. H. Bull Steamship Company] v. N.LR.B.,
347 U.S. 17, 39-40(1954).
CONCLUSIONS OF LAW
i. By discharging Joseph Nichols on February 24, 1977,
for engaging in protected union activity, the Company
engaged in unfair labor practices affecting commerce
within the meaning of Section 8(aX3) and (1) and Section
2(6) and (7) of the Act.
2. By threatening to discharge Nichols if he sought the
assistance of the Union concerning holiday pay, the
Company violated Section 8(aX(1) of the Act.
REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I find it necessary to order the
Respondent to cease and desist therefrom and to take
certain affirmative action designed to effectuate the poli-
cies of the Act.
Since Respondent has discriminatorily discharged an
employee, I find it necessary to order it to offer him full
reinstatement, with backpay and interest thereon to be
computed in the manner prescribed in F. W. Woolworth
Co., 90 NLRB 289 (1950), and Florida Steel Corporation,
231 NLRB 651 (1977),2 from date of discharge to date of
proper offer of reinstatement. Inasmuch as Respondent's
unlawful conduct goes to the very heart of the Act, I find it
necessary to issue a broad Order, requiring the Respondent
to cease and desist from infringing upon employee rights in
any other manner.
Upon the foregoing findings of fact and conclusions of
law, upon the entire record, and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended:
ORDER3
The Respondent, Schluderberg-Kurdle Co., Inc., Balti-
more, Maryland, its officers, agents, successors, and as-
signs, shall:
I. Cease and desist from:
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(a) Discharging any employee for seeking the assistance
of International Union of Operating Engineers, Local No.
37, or for otherwise engaging in protected union activity.
(b) Threatening to discharge any employee if he seeks the
assistance of a union.
(c) In any other manner interfering with, restraining, or
coercing employees in the exercise of their rights under
Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Offer Joseph Nichols immediate and full reinstate-
ment to his former job or, if his job no longer exists, to a
substantially equivalent position, without prejudice to his
seniority or other rights and privileges, and make him
whole for any loss of pay and other benefits in the manner
set forth in the Remedy section.
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, timecards,
personnel records and reports, and all records necessary to
analyze the amount of backpay due under the terms of this
Order.
(c) Post at its plant in Baltimore, Maryland, copies of the
attached notice marked "Appendix." 4 Copies of the notice,
on forms provided by the Regional Director for Region 5,
after being duly signed by Respondent's authorized repre-
sentative, shall be posted by Respondent immediately upon
receipt thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all places
where notices to employees are customarily posted. Rea-
sonable steps shall be taken by Respondent to ensure that
the notices are not altered, defaced, or covered by any
other material.
(d) Notify the Regional Director, in writing, within 20
days from the date of this Order, what steps Respondent
has taken to comply herewith.
4 In the event that this Order is enforced by a Judgment of the United
States Court of Appeals, the words in the notice reading "Posted by Order
of the National 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."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL offer Joseph Nichols immediate and full
reinstatement to his former job or, if his job no longer
exists, to a substantially equivalent job, without preju-
dice to his seniority or other rights and privileges, and
make him whole for any loss of pay or other benefits
since his discharge, plus interest.
WE WILL NOT discharge any of you for seeking the
assistance of International Union of Operating Engi-
neers, Local No. 37.
WE WILL NOT threaten to discharge any of you if you
seek the assistance of a union.
WE WILL NOT in any other manner interfere with,
restrain, or coerce you in the exercise of the rights
guaranteed under Section 7 of the Act.
SCHLUDERBERG-KURDLE
Co., INC.
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