Du-Tri Displays, Inc.

National Labor Relations Board - Board Decisions

Sep 12, 1977

231 N.L.R.B. 1261 (N.L.R.B. 1977)

DU-TRI DISPLAYS, INC.
Du-Tri Displays, Inc. and David C. Werbeck. Case
13-CA- 15660
September 12, 1977
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND PENELLO
On April 1, 1977, Administrative Law Judge
Nancy M. Sherman issued the attached Decision in
this proceeding. Thereafter, the Respondent filed
exceptions and a supporting brief, and the General
Counsel filed an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,' and conclusions of the Administrative Law
Judge, to modify her remedy, 2 and to adopt her
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, Du-Tri Displays,
Inc., Chicago, Illinois, its officers, agents, successors,
and assigns, shall take the action set forth in the 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
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 (C.A. 3. 1951). We have
caretull) examined the record and find no basis for reversing her findings.
The Respondent has also excepted to the Administrative Law Judge's
finding that the Secretary of Labor. pursuant to sec. 660(c) of the
Occupational Safety and Health Act of 1970, has filed suit against the
Respondent alleging that it discharged Werbeck because of his complaint to
the Occupational Safety and Health Administration. The Respondent
alleges that, although Werbeck has filed a discrimination complaint with
OSHA, the matter is still pending and no lawsuit has yet been instituted.
Inasmuch as we do not rely on the matter before OSHA in reaching our
conclusions herein, we find it unnecessary to determine the current status of
Werbeck's discrimination complaint.
2 In accordance with our decision in Florida Steel Corporation. 231
NLRB 651 (1977), we shall apply the current 7-percent rate for periods prior
to August 25. 1977, in which the "adjusted prime interest rate" as used by
the Internal Revenue Service in calculating interest on tax payments was at
least 7 percent.
DECISION
STATEMENT OF THE CASE
NANCY M. SHERMAN, Administrative Law Judge: This
case was heard at Chicago, Illinois, on January 17, 1977,
pursuant to a charge filed on July 26, 1976, and a
complaint issued on October 22, 1976. The issue presented
is whether Respondent Du-Tri Displays, Inc., discharged
David C. Werbeck, who Respondent contends was a
supervisor, because of his protected concerted activities, in
violation of Section 8(aX 1) of the National Labor Relations
Act, as amended (hereinafter called the Act).
Upon the entire record, including my observation of the
witnesses, and after due consideration of the briefs filed by
Respondent and by counsel for the General Counsel, I
make the following:
FINDINGS OF FACT
1. JURISDICTION
Respondent, an Illinois corporation, maintains its place
of business in Chicago, Illinois, where it manufactures
magazine display shelves. During the calendar year
preceding the issuance of the complaint, a representative
period, Respondent did a gross volume of business
exceeding $300,000, and purchased and received, from
points within Illinois, more than $50,000 worth of goods
which originated at points outside Illinois. During the same
period, Respondent sold and shipped more than $50,000
worth of goods to firms in Illinois which are themselves
directly engaged in interstate commerce. I find that, as
Respondent concedes, it is engaged in commerce within the
meaning of the Act, and that to assert jurisdiction over its
operations will effectuate the policies of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
Werbeck has the credit-hour equivalent of 2 years'
college, which he obtained at four different schools over a
period of at least 4 years.
Between 1965 and 1967, he was the manager, at $12,000
a year, of a corporation which was displaced by urban
renewal. Between 1967 and 1970, he was the manager of a
foreign-car repair firm, which he brought out of near-
bankruptcy. The firm eventually moved to Ohio. Between
I The General Counsel's unopposed motion to correct p. 34. I1. 3. of the
record, so as to substitute "July" for "June," is hereby granted.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1970 and 1973, he was a $15,000-a-year assistant to the vice
president for a steel fabrication division of a New York-
based corporation. He left this position in June 1973 to
form a bicycle-importation firm of which he was president.
A personal friend of Werbeck's promised to lend Werbeck
$250,000 to invest in the business. In November 1975,
Werbeck abandoned the project because he did not want
to accept the responsibility of $250,000 if for some reason
the company did not "make it." Between June 1973 and
November 1975, Werbeck made $1,000 from this business.
The resume attached to his job application to Respondent
states that his salary was "based on profits."
In November 1975, Werbeck and Leon Caine, who at
one time had been Werbeck's immediate superior, entered
into negotiations directed to the formation of a company to
be called Korco Corporation, which was going to import
foreign steel. The negotiations broke down because Caine,
an elderly man who was going to finance the entire venture
by investing several million dollars, wanted 70 percent of
the company and Werbeck did not want to work the rest of
his life at 30 percent for Caine's relatives after his death.
Werbeck and Caine never made any money from Korco.
Werbeck stated in the resume which he gave to Respon-
dent that his salary had been based on the profits of
Korco's total sales volume. Werbeck's application listed
Caine as a reference.
B. WerJeck's Hire by Respondent
On Thursday, May 27, 1976,2 Werbeck filed a job
application with Respondent in response to a newspaper
advertisement for an "assistant foreman." He was then 32
years old. Company President John F. Gray testified that,
after inspecting Werbeck's application and resume, he told
Werbeck that he was not qualified for the job. Still
according to Gray, he said that he would nevertheless hire
Werbeck for the job "due to his past experience," but
asked, "With your qualifications, what do you want to be
doing working here?," whereupon Werbeck assured Gray
that Werbeck could do well for him. According to Gray, he
offered Werbeck the job, Werbeck said that he would see
Gray on Monday, and Gray then said that four others were
interested and it was proper that Gray interview them too.
On the following Monday, May 31, Werbeck came to the
plant in his work clothes and said he was ready for the job.
Gray took him through the shop and explained all the
functions of the job. During this tour, Werbeck noticed
fumes from the drying lacquer which had been sprayed
onto the shelves manufactured by Respondent. These
fumes were present throughout the plant but were especial-
ly strong on the second floor, which received them from an
enclosed stair well to the first and third floors, and in a
third-floor spray booth. 3 Gray told Werbeck that after a
training program, he would be considered for foreman and
possibly general manager, that it would take some time
before he would be given power and authority in the
2 All dates hereafter are 1976 unless otherwise indicated.
I Werhbeck testified that during this tour, he told Gray that Werbeck
could not work for Respondent if the fumes were not taken care of, that he
waas going to call the Amencan Medical Association about the fumes, and
remarked on the "tremendous" amount of wood particle dust. Still
according to Werbeck. Gray said that he was thinking of moving, and that
Company, and that he would receive such authority when
Gray felt he was ready. Werbeck began to work for
Respondent at $6 an hour.
C. Events Allegedly Relating to WerJeck's
Separation
A day or two after Werbeck began to work for
Respondent, employee Luis Fregoso and other employees
asked Gray if he had hired an inspector. Fregoso
commented that Werbeck was standing around. Gray told
the employees that Werbeck was "just new. He's looking,
so work with him." That week, Fregoso told Gray that
Werbeck was a good employee.
Gray testified that later that same week, Werbeck drew
to his attention the fact that a particular employee "never
shows up on Monday," to which Gray replied, "He's a
good man. We just have to work with him." Werbeck was
not asked in terms about this alleged conversation.
However, he did testify that he complained to Gray that
the plant was inefficient, that Gray agreed, and that Gray
further complained that employees were absent too often
and especially on Mondays and Tuesdays. It is somewhat
unlikely that anyone whose first day of employment was
the Monday of a particular week would be aware that same
week that a particular employee "never shows up on
Monday." For this and demeanor reasons, as to the
testimony discussed in this paragraph I credit Werbeck and
discredit Gray.
Werbeck credibly testified that, on unspecified dates, he
complained to Gray about the wood dust in the plant, and
told Gray that "safeties" should be put on the saws.
About the first week in June, Werbeck asked employee
Fregoso whether the fumes seemed to affect him or anyone
else in the plant. Fregoso replied "Yes, I get chest pains. I
get irritable, things like that." Werbeck said, "Well, why
don't the men do something? Isn't there something that
could be done? What do the men say about it?" Fregoso
replied that the men were afraid to say anything, "We don't
have a union here. They are afraid of being fired."
About the second week in June, Werbeck telephoned
Robert Wheater, who is the AMA's assistant director of
industrial hygiene, and asked if the AMA had done any
studies on the possible harmful effects of lacquer fumes on
people. Wheater replied that the AMA had performed such
studies but he would have to know the chemical composi-
tion of the lacquer fumes. Werbeck said that he did not
know the chemical composition, but that the lacquer was
made by the Midwest Lacquer Company. Wheater replied
that he would call Midwest Lacquer and find out the
chemical composition, and then would send Werbeck the
information. Wheater also said that if Werbeck thought the
fumes were doing him harm, he might call the National
Institute of Occupational Safety and Health (NIOSH),
which would come in and do a free survey and make
suggestions about how to eradicate any problem with the
the problem of the fumes would be cleared up. Gray testified that Werbeck
did not complain about the odors until the second or, more likely, the third
week after he was hired. In view of the probabilities of the situation, I
believe it unlikely that Werbeck made the foregoing remarks on the very
first day of his employment, and before he had actually started to work. To
this extent, I credit the testimony of Gray summarized in this footnote.
1262
DU-TRI DISPLAYS, INC.
fumes. NIOSH, a Federal agency in the Department of
Health, Education and Welfare, is authorized by statute to
conduct research and tests for development of criteria for
occupational safety and health standards, and to recom-
mend such standards to the Secretary of Labor. Occupa-
tional Safety and Health Act of 1970, 84 Stat. 1612, 29
U.S.C. § 671. See Industrial Union Department, AFL-CIO
v. D. Hodgson, 499 F.2d 467, 470-478 (C.A.D.C., 1974).
Such standards are developed by the Assistant Secretary of
Labor for Occupational Safety and Health, who heads the
Occupational Safety and Health Administration (OSHA).
A day or two later, Werbeck reported this conversation
to Gray, and expressed the opinion that the fumes were
harmful. Gray asked if NIOSH would cite him or cause
him to be fined if there were any violations. Werbeck
replied that NIOSH would not, that it would simply cite
the violations and give him a specified amount of time to
correct them. Gray said that he was not interested in
having any Government agencies in his plant. Thereafter,
Gray telephoned Midwest Lacquer, which sent out a
salesman to tell Werbeck that the composition of the
lacquer had passed the city and state codes. 4 In addition,
Midwest Lacquer sent Respondent a letter setting forth the
chemical composition of the volatile portion of the
product, which (according to the letter) was the only
portion which concerned environmental protection agen-
cies. The letter further stated, "In no case is any 'restricted'
solvent allowed to exceed 20 percent by volume. Since
toluene is the only 'restricted' solvent now in general use at
Midwest Lacquer, the above combination is well within the
limits prescribed by current legislation." The letter further
stated that the lacquer also contained, inter alia, methyl
ethyl ketone, isobutyl acetate, and isopropyl alcohol
(isopropanol). There is no evidence that Werbeck ever saw
this letter.
After Werbeck's conversation with Gray about NIOSH,
Werbeck told employee Fregoso that Werbeck had called
the AMA, and asked whether Fregoso would be interested
in seeing the information when it came in. Fregoso said
that he would. Fregoso asked Werbeck if he had talked to
Gray about calling NIOSH and the AMA. Werbeck said
that he had, and that Gray had said that he was not
interested in either organization. Fregoso then said, "Well,
what can we do about such a thing?" Werbeck said, "The
only choice I might have is to sue him." A few days later,
Gray initiated a conversation with Werbeck by saying, "I
hear you are going to sue me." Werbeck said that he was
not going to sue Gray. Gray said that "some of the men"
had reported to him that Werbeck was going to sue him.
Werbeck said that he had talked to Fregoso about suing
Gray, and that, unless some change was in the plan so far
as the fumes were concerned, Werbeck saw no alternative.
Werbeck further said that he was trying to get the fumes
Respondent's counsel stated on the record, without dispute from the
General Counsel. that these codes were drawn up to protect the health of
workers who sprayed the lacquer.
' My findings as to this Werbeck-Gray conversation are based on
Werbeck's testimony. Gray testified that he did not "recall" Werbeck's
coming to the office and saying that he was going to sue Gray. and that he
did not call Werbeck into the office and ask him about Fregoso's report that
Werbeck was going to sue Gray. For demeanor reasons, I discredit Gray in
this respect.
'' Brautigan assigned work to employees and could recommend dis-
out of the plant, and that Gray had failed to keep a promise
to install fans. Gray said that he would put fans in the
plant, and also said, "If you have any problems like that or
if you're going to sue me, I'd appreciate that you come to
me personally and tell me this." Werbeck said that he
would.5
Before Werbeck was hired, nobody had ever said
anything to Gray about the fumes in the shop. At or about
the same time that Werbeck told Gray that Werbeck might
sue him about the fumes, employee Fregoso told Gray that
Werbeck had told Fregoso about the fumes, and said that
the fumes were bothering Fregoso. Also at about the same
time, Assistant Foreman Fred Brautigan 6 asked for a fan
in the cutting department to take away the dust and odors.
Gray told Werbeck that Brautigan had mentioned the fact
that some of the men had come up to him and said they
would like a fan or fans too, and that Gray had replied,
"Well, can you blame them?" Initially, a fan which
Respondent already owned was installed in the cutting
area on the first floor. A few days later, that fan was
installed on the second floor, and a smaller fan, also
already owned by Respondent, was installed in the cutting
area. 7 Respondent also purchased a third fan which, so far
as the record shows, was never installed.s Neither of the old
fans had been used during the preceding summer. The
current 1976 summer was an unusually hot one, with a
number of ozone watches.
By letter dated June 22, received by Werbeck about June
24, AMA Assistant Director Wheater stated that Midwest
Lacquer was "hesitant" to divulge precise ingredients in its
lacquer because "these are proprietary formulations . . .
however, . . . such information would be provided [by
Midwest Lacquer] to whomever [sic] 'needed to know' if
there was a particular health problem with any specific
product." The letter further stated that compounds gener-
ally used in lacquer included, inter alia, methyl ethyl
ketone, isopropanol (isopropyl alcohol), and toluene, all of
which were mentioned in Midwest Lacquer's letter to
Respondent, and xylene, which Midwest Lacquer's letter
did not mention. In addition, Wheater's letter enclosed
certain pages from American Conference of Governmental
Industrial Hygienists, Documentation of the Threshold Limit
Values for Substances in Workroom Air (3d ed. 1971). This
document reported adverse effects of such compounds on
human beings and/or animals, and recommended limits on
the amounts to which workers should be exposed.
According to these materials, methyl ethyl ketone (2
butanone) at certain concentrations had been reported to
cause irritation of eyes, nose, and throat; and, at higher
concentrations, to cause "low grade intoxication ... while
workers frequently complain about the objectionable odor,
there have been relatively few reports of serious ill effects."
Still, according to these materials, at certain concentrations
charge. Respondent appears to contend that he was a supervisor within the
meaning of Sec. 2(11) of the Act. I find it unnecessary to pass on this
question. See, infra, sec. 11, E, 3.
7 My findings in the last two sentences are based on Werbeck's testimony
and credible portions of Brautigan's testimony. Other portions of Brauti-
gan's testimony indicate that an unused fan was installed on the second
floor.
8 Gray testified that he bought this fan because Werbeck requested more
fans. Brautigan, whom I regard as less knowledgeable than Gray as to this
issue, testified that Gray bought this fan as a "back-up"
1263
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
isopropanol (isopropyl alcohol) had been reported to cause
mild irritation of the eyes, nose, and throat, and its "most
important toxic action. . . is narcosis." Further, at various
concentrations toluene had been reported to cause "pros-
tration" of, temporary decrease in the white cell count of,
and "death from acute poisoning" in mice; and, in human
beings, to cause workers to be "overcome," enlarged livers,
macrocystosis, absolute lymphocystosis, headache, lassi-
tude, nausea, impairment or "pronounced loss" of coordi-
nation, momentary loss of memory, anorexia, palpitation,
extreme weakness, impairment of reaction time, decrease
in red cell count, decrease in pulse rate and systolic blood
pressure, partial destruction of the blood-forming elements
of the bone marrow, and aplastic anemia with one fatality.
Still, according to the same source, at certain concentra-
tions xylene had been reported to cause decreases in
rabbits' red and white cell count; an increase in rabbits'
platelet count; reversible lesions in cats' corneas; head-
ache; fatigue; lassitude; gastrointestinal and neurological
disturbances; injuries to the heart, vascular system, liver,
and kidneys; fatal aplastic anemia; fatal blood dyscrasias;
an apparent eplieptiform seizure; and irritation of eyes,
nose, and throat. Further, this material averred that
exposure to wood dusts had been reported to cause, inter
alia, cancer, dermatitis, and respiratory disease.
In addition to the foregoing material, Wheater's letter to
Werbeck enclosed certain pages from the "Occupational
Safety and Health Reporter" stating that the Occupational
Safety and Health Review Commission had ruled that "in
order to establish a violation of the standard requiring the
use of spray booths or spray rooms in spray painting
operations it must be proven that dangerous quantities of
emissions were produced by the painting."
About June 24, after receiving this material, Werbeck
told Gray that the problem with the fumes had not been
cleared up, and that the AMA material appeared to
contain "somewhat conclusive" information that some of
the lacquer fumes "might be doing damage." Gray replied
that he was not interested in looking at the literature, that
he did not want NIOSH, that he did not want any
Government agencies in the plant, and that he felt the fan
already installed on the second floor would be sufficient.
Werbeck replied that it was not sufficient, that he should
do more, and that he should put more fans in the plant.
Gray said, "Maybe the fumes are all in the mind."
Werbeck said that some of the men were afraid of saying
something to Gray about the fumes. Gray agreed.
In early July, Werbeck told Fregoso that Werbeck had
the literature, read it to him, asked him if he would like to
read it, and asked Fregoso to talk to the men about the
effect of the lacquer fumes because some of the things
seemed to be some of the symptoms that the employees
had. Fregoso said that he would talk with the men and
would come back to Werbeck later.9 Thereafter, Fregoso
told Werbeck that the men were not interested in causing
!' Werbeck does not speak Spanish. Fregoso and Ivan Figueroa, the only
other admitted iank-and-file employee who testified, both speak Spanish as
their mother tongue.
"' When asked bh Respondent's counsel, "Were you ever afraid to tell
Mr. Gray that anything was wrong because he might fire you?", Fregoso
rather weakly replied. "Not really."
" The windows were closed to avoid humidity-caused blemishes in the
finish.
any problems; and that many of them were afraid of being
fired if they did say anything or if they organized.' 0
Fregoso never did read the material which Wheater sent
Werbeck because, as Fregoso testified, "It's too much for
me" (see supra, fn. 9).
On several occasions after the fans were installed,
Assistant Foreman Brautigan asked Fregoso how the odors
were, and he replied, "Much better." Fregoso gave a
similar answer to a similar question by Gray. After the fans
were installed, Fregoso made no further complaints to
Gray about the odors.
Later, and still in early July, Gray initiated a conversa-
tion with Werbeck by saying that he had heard that
Werbeck was going to sue him. Gray said, "You had
promised me that if you were going to sue me that you
would tell me directly and now I hear again from [Fregoso]
that you are going to sue me. Why?" Werbeck said that the
one fan on the second floor was not solving the problem,
and that many times the employees were told to close the
windows." Also, Werbeck said, he had no authority
whatsoever in the plant, even though he had been working
there for almost 2 months. Gray said that he would call
Shop Foreman Phil Randazzo (a coowner and admitted
supervisor), that "we would change the situation and that
[Werbeck ] would be given authority." 12
On Friday, July 9, Werbeck told Fregoso, "I tried
everything possible. I had gone to the American Medical
Association. I had talked to Mr. Gray as sincerely and
honestly as I could, that Mr. Gray did not do anything
about the fumes, that he had basically told me the fumes
were in my mind and that he was not interested in any
Government agencies coming in and doing surveys
voluntarily so that I had no alternative but to quit and to
sue him." At or about this same time, Fregoso told Gray
that Werbeck was going to sue Gray.
Werbeck's payroll records in evidence show the total
number of hours worked each payroll week (which runs
from Friday to Thursday, inclusive), but not the particular
days worked. After working 40 hours during the payroll
week ending Thursday, July 8, Werbeck worked 16 hours
during the payroll week ending Thursday, July 15, and 24
hours during the payroll week ending Thursday, July 22,
the week he was terminated. Werbeck testified without
dispute that, between July 13 and 20, he discussed the fume
problem with Gray, and the problem of Werbeck's
authority with Gray and Randazzo.' 3 At certain points,
Werbeck testified that he had two conversations with Gray
and Randazzo. However, I conclude from the substance of
the discussion and Werbeck's payroll record that in fact
there was only one such conversation, and that it occurred
on July 13. As to this conversation and the related
sequence of events, I find as follows: Werbeck stayed home
sick on Monday, July 12, and Tuesday, July 13. On the
morning of July 13, Gray telephoned Werbeck that there
12 My findings in this paragraph are based on Werbeck's testimony.
Gray did not directly deny his promise to give Werbeck authority. See infra,
fn. 13.
1t Gray did not deny discussing these matters with Werbeck during this
period. Randazzo did not testify.
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DU-TRI DISPLAYS, INC.
had been rumors that he was going to sue Gray, and asked
Werbeck to come in and talk with Gray.'4 When Werbeck
came into Gray's office that afternoon, Gray said, "I hear
you are going to sue me. .... For God's sake, you told me
you would tell me if any problems came up." Werbeck
said, "I owe you no more loyalty. I have tried sincerely and
honestly to change the problem with the fumes in this
plant. You have not wanted to make an honest effort for
it." Werbeck further stated that he had been hired as a
foreman and promised authority, but had been given none
so far. Gray said that he would put more fans in the plant
and would give Werbeck authority. Gray called in
Randazzo and told him, "From now on, we are going to
give Mr. Werbeck more authority.... Put him to
supervise people." Gray told Werbeck to report to work the
following day, July 14, and "we will start that procedure."
Werbeck replied that owing to a dental appointment, he
could not work the whole day on July 14. Gray told him to
take the whole day off on July 14, to come in on July 15,
"and we'll start from there." 15
In accordance with this arrangement, Werbeck did not
report for work on July 14. He came to work as usual on
Thursday, July 15; Friday, July 16; Monday, July 19; and
Tuesday, July 20.?6 However, he received no more
authority than before. On Wednesday, July 21, when he
came to the plant at his usual hour, Randazzo met him at
the door of the plant and said that Gray did not want him
to report to work that day, but to contact Gray when he
came in about 10 a.m. Werbeck did so, but Gray said he
was busy and asked Werbeck to talk to him later in the
day. Both Gray and Werbeck testified that they had a
conversation about 2 p.m. that day, but they gave
somewhat different versions of what was said.
Werbeck testified as follows: Gray told Werbeck that
Gray felt the fumes were just imagination on Werbeck's
part, that Gray had put a fan on the second floor as
Werbeck had asked, and that that should have taken care
of the situation. Werbeck replied that Gray had refused
Werbeck's request to bring in NIOSH and would not read
the AMA material, that Werbeck was physically sick at this
point and had an appointment with a neurologist, and that
Werbeck could not say the fumes did not bother him
because they did. Gray replied, "None of the other men
complained . . . so I can't see why you complained."
Werbeck said, "What do I have to do?" Gray said that
Werbeck had been taking too many days off. Werbeck said
that he had been absent with advance notice to undergo
dental treatment, and that Gray had said this would be all
right when hiring him. Gray said that he saw no problem
with the fumes, and "if the fumes do bother you, maybe it's
better you don't work here." Werbeck said that he liked
working for Respondent, but would like to bring in NIOSH
and have it decide. Gray said that he was not going to
1 This finding is based on Werbeck's testimony. When asked on direct
examination whether he had called Werbeck to see where he was when he
did not show up. Gray testified, "No, I didn't call him." To the extent that
their testimony may be inconsistent, for demeanor reasons I credit Werbeck.
r' My findings as to this Werbeck-Gray-Randazzo conversation are
based on Werbeck's testimony. Randazzo did not testify. Gray was not
asked to give a complete version of the conversation. To the limited extent
that Gray denied Werbeck's testimony, for demeanor reasons I credit
Werbeck over Gray (see supra, fn. 12).
sk My finding in this sentence is based on inferences from Respondent's
allow a Government agency in the plant. Werbeck said,
"We have to do something." Gray said, "No. If this is the
way you feel, it is probably better that you don't work here
unless you can see the fact that these fumes are not harmful
to you. It would be better for you to leave, if you feel that
they are harmful to you." Werbeck said that the AMA and
NIOSH were there, and, "Let's bring in NIOSH." Gray
said, "No, unless you can see it it's better for you to leave
then." Werbeck said, "Well ... do you give me a choice?"
Gray asked whether he wanted to pick up his things that
day, or to wait until Friday when he could pick up his
check, and wished him the best of luck. Werbeck picked up
his things that day, and his paycheck the following Friday.
Gray testified that he told Werbeck, "I hear you're going
to sue me," and Werbeck replied, "If I was going to sue
you, John, I'd tell you to your face." Gray further testified
that he told Werbeck that he had "excessive absenteeism,"
that the men had no respect for him, that he was not
working with the men or conducting himself like an
assistant foreman, and that "Really, now you're being
threatened. I can't handle it anymore. I just can't handle
the situation anymore." Still according to Gray, Werbeck
then said, "Do you want me to get my things?"; Gray said,
"lt would be best for both of us .... When you get your
things, I want you to stop by the office"; and Werbeck left
the plant without talking to him again. Gray testified that
while working for Respondent, Werbeck never complained
to him about being physically ill as a result of working in
the plant. When asked whether Gray was the one that
terminated Werbeck's employment, Gray testified, "Well,
really I didn't terminate him because I have never fired
anybody since I started employing people, never." Gray
stated in his prehearing affidavit that Werbeck "was
discharged from employment." In view of this inconsisten-
cy and demeanor considerations, to the extent that
Werbeck's and Gray's versions of this conversation differ, I
credit Werbeck.
D. Events Following WerJeck's Separation
On July 26, Werbeck filed the NLRB charge herein,
alleging that he had been "terminated . . . because of his
protected concerted activities."
On an undisclosed date prior to August 5, 1976, Werbeck
filed a charge of unlawful employment practices, whose
nature is not shown by the record, with the Equal
Employment Opportunity Commission.t 7 By letter dated
August 5, the EEOC advised Werbeck that in accordance
with the requirements of its underlying statute, Werbeck's
charge was being referred to the Illinois Fair Employment
Practices Commission. Werbeck forwarded a Xerox copy
of this letter to Respondent, and added thereto the
following note, "Please be aware that the NAACP will also
payroll records, which show that Werbeck worked 24 hours during the
payroll week which ended Thursday, July 22: and on Gray's testimony that
Werbeck worked on Monday. July 19. I believe Werbeck was mistaken in
testifying to being out sick on Monday and Tuesday, July 19 and 20, and
that he confused these days with Monday and Tuesday. July 12 and 13.
17 No contention is made that Werbeck's alleged discharge was
motivated by his action in this respect. Werbeck himself does not appear to
be a member of any of the minonty groups which the EEOC is ordinanly
asked to protect. However, as noted, at least two of Respondent's other
employees are Spanish-speaking.
1265
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
be notified. Also [NIOSH] will be calling and they are
more than OSHA as far as fumes are concerned. Also, after
appeal of the NLRB; a private suit in reference to a
violation of the Taft Harding [sic] Act, Sec. 302 will be
[filed].'X If I find that you are continuing 'research' into my
past work record I will have to press suit on that also. The
Doctor bill is in direct consequence of my working for
DuTri, and if you feel that you do not want to pay it I will
press suit in pro se court for [collectible] damages."
Thereafter, Werbeck did file suit against Gray or Respon-
dent, to compel payment of this medical bill, in what
Werbeck testimonially described as a "pro se court"
(inferentially, small claims court). The case was dismissed.
At the time of the January 1977 hearing before me, a
motion for a new trial was pending.
Some time in early August, Werbeck filed a complaint
with OSHA about the allegedly unhealthy conditions in the
plant.i 9 About August I 1, OSHA visited the factory with a
two-man research team, who were there the entire day and
said they might return. They took liquid samples of all the
paint, and also air samples, all of which samples they sent
to a Salt Lake City laboratory. In addition, they took
photographs, made some tests in the plant, and wired with
sensors the employees who were spraying.20 The OSHA
team also checked the fire extinguishers, which should have
been recharged a few months earlier. Respondent was
directed to recharge them, and did so. In addition, the
OSHA team directed Respondent to install an additional
guard on a saw. Respondent complied with this instruction
also. In response to Gray's inquiry, the OSHA team told
him that the installation of additional fans would interfere
with the existing draft. OSHA eventually reported the
existence in the atmosphere at Respondent's plant of, inter
alia, methyl ethyl ketone, iosbutyl acetate, isopropyl
alcohol, toluene, and xylene, but all of them in concentra-
tions from 5 to 10 percent of tolerance levels. As previously
noted, the material sent to Werbeck by the AMA had
attributed adverse effects at certain levels to all these
chemicals except isobutyl acetate, which was not men-
tioned.
On a date not clear in the record, the Secretary of Labor
filed suit against Respondent alleging that it had dis-
charged Werbeck because of his complaint to OSHA, in
violation of Section 660(c) of the Occupational Safety and
Health Act of 1970 (84 Stat. 1620, 29 U.S.C. §§ 651-678).
This suit was still pending at the time of the January 1977
hearing before me. No contention is made that this lawsuit
affects the NLRB's jurisdiction herein.
E. Analysis and Conclusions
I. Whether Werbeck quit or was discharged
Although Respondent's answer admits that Respondent
discharged Werbeck, at the outset of the hearing Respon-
dent's counsel claimed that Werbeck quit; "there is some
"' Sec. 302 of the Taft-Hartley (National Labor Relations) Act relates to
improper payments by employers to unions. The record fails to show why
Werheck believed it relevant to the situation, or whether he had different
statutory provisions in mind.
' Wnerbeck had had difficulty in filing this complaint because OSHA
was then in the process of moving its Chicago office.
i Gray testified that after being wired, these employees "looked like the
Bionic Man."
difference that has come to light as a question of fact ...
and if the proof so shows it, we would ask leave at the
conclusion of the hearing to amend the Answer on its
face." No such motion was made.
In any event, I conclude that Gray in fact discharged
Werbeck, in view of the credible evidence that both of
them believed the termination interview to constitute a
discharge. Thus, Gray stated in his prehearing affidavit
that Werbeck had been "discharged." Moreover, Werbeck
testified that Gray had "dismissed" him, and alleged in his
July 26 charge, filed 5 days after the termination interview,
that Respondent had "terminated" him "because of his
protected concerted activities." Furthermore, as the court
said in N.L.R.B. v. Central Oklahoma Milk Producers Assn.,
285 F.2d 495, 498 (C.A. 10, 1960), "It is sufficient if the
words or conduct of the employer 'would logically lead an
employee to believe his tenure had been terminated .... '
N.L.R.B. v. Cement Masons Local No. 555, 9 Cir., 225 F.2d
168, 172." On either Werbeck's credited or Gray's
discredited version of the interview, I conclude that Gray's
words logically led to Werbeck's conclusion that he had
been discharged. 21
2. Respondent's motives for discharging Werbeck
a. Respondent's contention that Werfeck was or
could justifiably have been discharged for conduct not
contended to be protected Jy the Act
Respondent's counsel stated at the outset of the hearing
that if Werbeck were discharged, he was discharged for
absenteeism and for making "continual remarks about
other employees, about their incompetency, made fun of
their foreign language backgrounds and things of that
nature." However, it is uncontradicted that 9 days before
discharging Werbeck, and after the occurrence of practical-
ly all these alleged incidents, Gray gave a promise to
Werbeck (which, however, was not kept) to give Werbeck
supervisory authority. Moreover, at the conclusion of the
hearing counsel stated, "If we say that Mr. Werbeck was-
would have been fired for insulting the Spanish-speaking
members of the Du-Tri firm, then he would have been
justified in being fired then.... Endangering the other
men's lives or physical being, he would have been justified
in being fired there. He was not fired for any of those
reasons ... Mr Werbeck [was] not discharged because of
any of the complaints that he might have made." Counsel's
statement in this respect has rendered immaterial much of
the evidence tending to show deficiencies in Werbeck's
work performance; for it is well settled that the presence of
valid grounds for a discharge is no defense to a charge that
the discharge was unlawful, unless the discharge was
predicated solely on those grounds, and not by a desire to
discourage protected activity. Florida Medical Center, Inc.
d/J/a Lauderdale Lakes General Hospital, 227 NLRB 1412
(1977); N.L.R.B. v. Symons Manufacturing Co., 328 F.2d
21 Werbeck's payroll record states that he "quit," and that he was
"terminated" on Tuesday, July 20, the last day he worked in the plant. Gray
did not keep this record. There is no evidence about who made this entry,
when it was made, or why it was made. Respondent does not rely thereon in
support of its suggestion that Werbeck quit.
1266
DU-TRI DISPLAYS, INC.
385, 837 (C.A. 7, 1964); Nachman Corp. v. N.LR.B., 337
F.2d 421, 423-424 (C.A. 7, 1964); Hugh H. Wilson
Corporation v. N.L.R.B., 414 F.2d 1345, 1353 (C.A. 3,
1969), cert. denied 397 U.S. 935 (1970). However, because
counsel's brief suggests that Respondent may now be
taking a somewhat different approach, I discuss below the
evidence bearing on both the withdrawn and the unwith-
drawn explanations.
I. Respondent has never specifically withdrawn its
contention that Werbeck was discharged partly for absen-
teeism. Werbeck worked for Respondent for 9 complete
payroll weeks (that is, Friday through Thursday). During 4
of these weeks, he worked less than 40 hours (16 hours, 34
hours, 38 hours, and 39 hours, respectively). During 3 of
these weeks, he worked 40 hours; and during the remaining
2 weeks, he worked 49 and 52 hours, respectively. Werbeck
did not get paid when he did not work.
Werbeck's uncontradicted and credited testimony shows
that before he was hired, he told Gray that he would have
to take several days off during the next couple of months in
order to have extensive dental work done,2 2 and Gray
replied that this would be all right if Werbeck gave 1 day's
advance notice. Except for Werbeck's absences on July 12
and 13, all of his full-day absences while working for
Respondent were due to such dental arrangements and
were taken with I day's notice.
Werbeck's absences on July 12 and 13 were due to illness
from the fumes. He did not give Respondent advance
notice of these absences. However, as previously noted, on
July 13 Gray encouraged Werbeck to take off on July 14
for a dental appointment and then to return to work,
Werbeck returned to work on July 15, and he continued to
work without incident until his July 21 termination. Nor is
there any evidence that until his termination date Respon-
dent ever reproached Werbeck for absenteeism. Indeed,
absenteeism was a major problem at Respondent's plant,
and the record fails to show how Werbeck's attendance
record compared with that of employees who were
retained. I conclude that Werbeck's attendance record had
little or nothing to do with his discharge.
2. Respondent seems to contend that Werbeck was
discharged partly because the other men refused to work
with him. The mutually corroborative and credible testimo-
ny of Gray and Fregoso shows as follows: About the first
week in July, Fregoso, who is not claimed to be a
supervisor but is in charge of the second floor, got "mad"
because Werbeck refused to obey his orders. Thereafter,
Fregoso went to Gray, said that Werbeck would not follow
Fregoso's instructions, asserted that Werbeck was "crazy,"
said that Fregoso did not want to work with Werbeck any
more, and further said that if Gray sent Werbeck upstairs
again Fregoso would throw him out the window. Gray
replied, "Cool it . . . I'm still trying to run a business." In
view of this reply, Fregoso's testimony that Werbeck
"seems like a nice guy," and Werbeck's uncontradicted and
credible testimony that so far as he knew, none of the men
ever said they would not work with him, I conclude that
the foregoing incident did not motivate his discharge.
2' Werbeck was having his dental work performed at a dental clinic
staffed hb students at the University of Illinois Dental School under the
supervision of the faculty He paid relatively low fees, but was unable to
obtain either an evening appointment or an appointment for a definite hour.
Assistant Foreman Brautigan testified that about 2 weeks
before Werbeck's termination-that is, in early July-
Brautigan told Gray that Brautigan was "going to be
leaving. . . because [Fergoso] did not want to work with
[Werbeck] anymore and [Gray] had asked me if I would
work with [Werbeck] and I said if I had to work with him, I
would quit rather than work with him and, in fact, I had
given [Gray ] my notice at that time that I was going to quit
if he brought [Werbeck] back to work with me." I do not
credit Brautigan's testimony in this respect, for demeanor
reasons, because it was not corroborated by Gray, and
because it is uncontradicted that none of the men ever told
Werbeck that they would not work with him.
Brautigan testified that after working with Werbeck for a
couple of days during the first week of Werbeck's
employment-that is, in early June-employee Jim Stevens
said on several occasions that he would go home rather
than work with Werbeck. 23 Although Brautigan's testimo-
ny suggests that he reported Stevens' statements to Gray,
Gray did not so testify, and it is uncontradicted that no
such statements were ever reported to Werbeck. Because of
these and demeanor considerations, I do not believe
Brautigan's testimony in this respect.
3. As previously noted, at the close of the hearing
Respondent apparently withdrew any contention that
Werbeck was discharged partly because he insulted or
ridiculed fellow employees for their foreign-language
backgrounds. In any event, for demeanor reasons I credit
Werbeck's denial of Gray's testimony that in early July
Werbeck described Fregoso to him as a "dumb Mexican."
Employees Figueroa and Fregoso testified that on one
occasion, which date they did not give, Werbeck made fun
of the fact that they were conversing in Spanish. Figueroa
testified that he complained to Gray about Werbeck's
conduct in this respect, and said that if Gray did not do
"something" Figueroa would "take care of' Webeck. Gray
testified that, in July, Figueroa came to him and threatened
to kill Werbeck because "He mimic. He make funny noise
about my Spanish." For demeanor reasons, I credit
Werbeck's testimony that he did not in fact complain
about the other employees' foreign accents. I believe that
Figueroa, whose command of English is limited, honestly
thought that Werbeck was making fun of the two and
complained to Gray about this supposed conduct. How-
ever, in view of Gray's "cool it" reply to Figueroa's
complaint, I would reject any contention that this incident
played a part in Werbeck's discharge.
4. Brautigan credibly testified without contradiction
that shortly after starting to work for Respondent,
Werbeck risked causing wood to be thrown all over the
shop by disobeying Brautigan's instructions to use a
crosscut saw rather than a table saw to cut short pieces of
wood across the grain. Still according to Brautigan's
uncontradicted and credible testimony, in Werbeck's
presence Brautigan reported this incident to Gray, who
told Werbeck not to cut things that way. Brautigan further
credibly testified that 2 or 3 weeks before Werbeck's
termination-that is, in early July-Brautigan reproved
23 Stevens. who did not testify, was no longer working for Respondent at
the time of the hearing.
1267
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Werbeck for causing Brautigan to stumble over a movable
ramp which Werbeck had left in place after he had finished
using it.24
However, as previously noted, at the close of the hearing
Respondent withdrew any contention that Werbeck was
discharged because he was an unsafe worker. Moreover,
both of these incidents occurred several weeks before
Werbeck's discharge, and there is no evidence that Gray
ever found out about the ramp incident or that he
discharged Werbeck because Brautigan recommended
such action. Accordingly, I would not accept any conten-
tion that these incidents played a part in the discharge
decision.
Brautigan further testified that about 2 weeks before
Werbeck's "argument" with Figueroa (that is, in late June),
after being told to clean up some material, Werbeck put
onto the top of a box of merchandise a brick which later
fell 8 feet onto the ground when the box was being loaded
and which could have severely injured Brautigan or
Figueroa, who were loading the box, if the brick had hit
one of them. However, Figueroa was not asked about this
incident, and Gray was not asked about Brautigan's
testimony that he reported this incident to Gray. Nor is
there any evidence that Werbeck, who had allegedly left
before the brick fell, was told about this incident.
Accordingly, and for demeanor reasons, I do not credit
Brautigan's testimony about it.
5. Respondent also introduced into the record certain
evidence of alleged deficiencies in Werbeck as an employee
which have never been contended as having motivated his
discharge. Thus, Brautigan credibly testified that Werbeck
had a tendency to respond to corrections from Brautigan,
Fregoso, Randazzo, and perhaps others, by giving long
explanations about why Werbeck was performing the
operation as he was. Also, in early June, Werbeck
complained to Gray about having to unload trucks and
miscounted a shipment of supplies. On occasion, Werbeck
reported to Gray that other employees were absent, were
inefficient, or were falling down in their work pace in the
afternoon, comments which Gray regarded as partly
justified and partly unjustified. For reasons previously
indicated, I regard all the evidence in this paragraph as
immaterial to the issue here.
b. Respondent's contention that WerJeck was not
discharged for complaining aiout the fumes
At the hearing, Respondent seemed to be contending
that Werbeck's discharge was not motivated by his
complaints regarding the fumes. In support of this
contention, Respondent offered evidence that Respondent
did not discharge other employees who complained about
the matter and, indeed, attempted to improve the condi-
tions complained about. However, Gray testified that
before Werbeck was hired, nobody ever complained about
the fumes; that, when complaining about the fumes,
21 Werheck denied that he was ever told that he was an unsafe worker.
However, he was not asked about either of these specific incidents.
2; Werheck credibly testified that he complained about them around
once a week.
21i Although Werbeck credibly testified that Fregoso was the only
employee he spoke to about the fumes, this circumstance would not
Fregoso said that Werbeck had told him about them; and
that Werbeck complained more than any other employee
he had ever had. Furthermore, so far as the record shows,
none of these other employees ever suggested drawing
these complaints to the attention of NIOSH or any other
Government agency. Moreover, during the July 21 termi-
nation interview, Gray stated in response to Werbeck's
suggestion to call in NIOSH that Gray was not going to
allow a Government agency in the plant; Gray made like
comments on the two previous occasions when Werbeck
mentioned NIOSH; and Gray repeatedly expressed con-
cern at the prospect that Werbeck was going to "sue"
about the fumes. The foregoing comments and testimony
by Gray lead me to infer that Respondent discharged
Werbeck for complaining more than anyone else about the
fumes,25 for causing or supposedly causing other employ-
ees to complain about them, 26 and for indicating that he
would draw the fumes to the attention of a Government
agency.
Under settled principles, if such activities constituted
protected concerted activities, Respondent violated the Act
by discharging him even partly therefor. Lauderdale Lakes
General Hospital, 227 NLRB 1412; N.L.R.B. v. Tom Wood
Pontiac, Inc., 447 F.2d 383, 386 (C.A. 7, 1971); Symons,
supra, 328 F.2d at 837; Nachman, supra, 337 F.2d at 424;
Wilson, supra, 414 F.2d at 1353. For the reasons set forth
below, I find that Werbeck's activities were so protected.
c. Respondent's contention that WerJeck's conduct
in connection with the fumes was not protected ,y
Section 7 of the Act
The evidence shows that Werbeck's complaints about the
fumes, and his proposals to obtain a NIOSH study of the
matter, were advanced on behalf of others as well as
himself. Accordingly, his activities in this respect consti-
tuted, at least prima facie, concerted activities for mutual
aid and protection within the meaning of Section 7 of the
Act. N.L.R.B. v. Washington Aluminum Company, Inc., 370
U.S. 9 (1962); Dreis & Krump Manufacturing Company, Inc.
v. N.LR.B., 544 F.2d 320 (C.A. 7, 1976); Oklahoma Allied
Telephone Company, Inc., 210 NLRB 916 (1974). Indeed,
because Werbeck would have engaged in Section 7
protected activity by requesting NIOSH's assistance
without consulting other employees about the fumes
problem, 27 he could not lawfully have been discharged for
expressing an intention to get in touch with NIOSH even if
he had been acting solely on his own. General Nutrition
Center, Inc., 221 NLRB 850, 855 (1975).
I Regard as contrary to the evidence Respondent's
contention that Werbeck's complaints were not protected
by Section 7 of the Act because they were allegedly not
advanced in subjective good faith. The uncontradicted
evidence shows that Fregoso told Werbeck that the fumes
gave him chest pains and made him irritable, that Fregoso
told Gray that the fumes were bothering him, that
privilege Werbeck's discharge. Wilson, supra, 414 F.2d at 1347 50, ,N.L.R.B.
v. The Hertz Corporation. 449 F.2d 71 1, 714-715 (C.A. 5, 19711). See supra, fn.
9, and attached text.
27 Allelulia Cushion Co., Inc., 221 NLRB 999 (1975); Doawson (aJiner
Company, Inc., 228 NLRB 290 (1977).
1268
DU-TRI DISPLAYS, INC.
employee Figueroa complained about them "many times,"
that Assistant Foreman Brautigan asked for a fan in the
cutting department, that other personnel also asked for
fans, that Gray sympathized with these requests, and that
he in fact installed fans. Moreover, after concluding that
the fumes and wood dust might in fact constitute a health
hazard, Werbeck asked an authoritative body, the Ameri-
can Medical Association, about the matter. An AMA
representative stated that the lacquer probably contained
certain specified ingredients (a statement borne out by the
lacquer manufacturer and by the OSHA inspection) and
that at certain levels in the atmosphere these ingredients
had been reported to cause a number of adverse physical
effects, including cancer, fatal aplastic anemia, narcosis,
and the kind of neurological symptoms experienced by
Werbeck. I infer from OSHA's action after receiving
Werbeck's complaints that whether such chemicals were
present in the plant air and the level of their concentration
could be determined only by laboratory and other
scientific tests. However, Gray rejected Werbeck's sugges-
tion that NIOSH be asked to make such tests, and (so far
as the record shows) made no alternative arrangements for
tests to find out whether the air endangered the employees'
health. Only after Gray had thus refused to act did
Werbeck tell Gray that he was going to "sue" him by filing
a complaint with NIOSH. The foregoing evidence corrobo-
rates Werbeck's testimony, which I credit by reason of such
corroboration and for demeanor reasons, that he believed
the fumes might be causing physical and possibly mental
damage to himself and his fellow workers. The OSHA tests,
about which Respondent introduced evidence on the
ground that they showed Werbeck's complaints were
"imaginary," show in my opinion the exact opposite.
Rather than merely looking around and sniffing the air, the
OSHA representatives conducted tests over an entire day,
wired employees with sensors, took air and paint samples
for laboratory analysis, took photographs, and even, after
all this, told Respondent that they might be back.
Moreover, the laboratory tests did in fact show the
presence in the air of some of the chemicals of whose
possible danger Werbeck had been advised by the AMA.
While it is true that the laboratory reported the presence of
these chemicals at levels far below "tolerance," this
laboratory finding hardly reflects on the reasonableness of
Werbeck, who necessarily relied on his own nose. Of
course, even assuming that the fumes did not in fact
present a health hazard, this circumstance would not
render unprotected Werbeck's efforts to remove what he
honestly believed to be a danger to himself and others.
Washington Aluminum, supra, 370 U.S. at 16; Ben Pekin
Corporation, 181 NLRB 1025 (1970), enfd. 452 F.2d 205
(C.A. 7); ARO, Inc., 227 NLRB 243 (1976); Red Line
Transfer and Storage Company, Inc., 194 NLRB 174, 176-
177 (1971), enfd. 465 F.2d 1407 (C.A. 8, 1972). Moreover,
as stated in the material which the AMA sent Werbeck,
even experts disagree on the appropriate tolerance level of
such chemicals.
In contending that Werbeck's expressed concern with the
fumes was not advanced or pressed in subjective good
faith, Respondent apparently relies on his other actual or
threatened legal proceedings against Respondent. How-
ever, some of these were directly related to the fumes
matter and his discharge for pressing it-namely, his
lawsuit for the medical bill, his statement that NIOSH
would be calling, and the suit filed under the Occupational
Safety and Health Act regarding his discharge. Moreover,
in the absence of evidence regarding even the subject of his
civil rights and other claims, there is no basis for inferring
that these were advanced in bad faith, much less that any
such alleged bad faith reflects on Werbeck's honesty of
purpose here.
In any event, on the facts of this case I would find
Werbeck's discharge unlawful even accepting Respon-
dent's contention that Werbeck's complaints were made
for the purpose of satisfying "some vendetta which he had
threatened against" Respondent. The record shows that
other employees who disliked or felt sickened by the fumes
were afraid of reprisals if they complained. Accordingly, I
conclude that regardless of Werbeck's subjective motive for
his conduct in connection with the fumes, his discharge
would be unlawful because it would lead other employees
to fear like retaliation for similar conduct with unexcep-
tionable motives. General Nutrition, supra, 221 NLRB at
859, including fn. 49; Alberici-Fruin-Colnon, 226 NLRB
1315 (1976); cf. Siiilio's Golden Grill, Inc., 227 NLRB 1688
(1977).
3. Whether Werbeck was a supervisor within the
meaning of the Act
Although Respondent's answer did not claim that
Werbeck was a supervisor within the meaning of Section
2(11) of the Act, at the outset of the hearing Respondent's
counsel so alleged. Werbeck was hired in connection with
Respondent's advertisement for an assistant foreman. Gray
told him that, after a training programs he would be
considered for foreman and possibly general manager, that
it would take some time before he would be given power
and authority, and that he would receive such authority
when Gray felt he was ready and could handle the job.
Similarly, Gray testified that Werbeck would become a
supervisor "if he worked out and could handle the job."
Werbeck never did receive such authority. Rather, he
worked as the other men did, loading trucks and working
on specialty wooden magazine displays. He was never
informed that he had the authority to hire, fire, lay off,
grant time off to, discipline, or suspend employees, or to
assign them work or overtime, or to adjust grievances. He
never recommended that any employee be fired, laid off,
disciplined, or suspended. He did recommend that one
person be hired, but that person was not in fact hired. He
never hired, fired, laid off, suspended, or disciplined
anyone, never granted time off or assigned work to any
employee, and never adjusted any employee's grievances or
complaints. Brautigan, who was also hired as an assistant
foreman, testified that he himself had a supervisory,
capacity over other persons (namely, the power to
recommend discharge and to assign work), that this came
about gradually during the course of his training, that when
hired he was told that he would be required to go through a
certain training program, of the same nature and kind that
Werbeck was to go through, and that after a year and a
1269
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
half in Respondent's employ Brautigan had still not
completed his training program.
I conclude that although Werbeck may have been in the
course of being trained to be a supervisor, whether he
would ever become a supervisor was uncertain, and that at
the time of his discharge Werbeck was an employee within
the meaning of Section 2(3) of the Act, and not a
supervisor within the meaning of Section 2(11).
"[EJmployees being groomed for supervisory posts are not
supervisors since future assignments are at best specula-
tive." Ramona's Mexican Food Products, Inc., 217 NLRB
867, 868 (1975). Accordingly, I need not and do not
consider whether I would be warranted in finding that
Werbeck's discharge violated the Act if he were a
supervisor, in view of the General Counsel's concession,
in effect, that in that event Werbeck's discharge would be
lawful. 29
CONCLUSIONS OF LAW
I. Respondent is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. At all times relevant herein, David C. Werbeck has
been an employee within the meaning of Section 2(3) of the
Act, and not a supervisor within the meaning of Section
2(11).
3. Respondent has violated Section 8(a)(1) of the Act
by discharging David C. Werbeck because he engaged in
activity protected by Section 7 of the Act.
4. Such unfair labor practices affect commerce within
the meaning of the Act.
THE REMEDY
Having found that Respondent engaged in certain unfair
labor practices, I shall recommend that it be required to
cease and desist therefrom. Because the unfair labor
practices found consists of an employee's discharge for
protected activity, Board precedent calls for the issuance of
a broad order. Skrl Die Casting, Inc., 222 NLRB 85 (1976).
Accordingly, I shall recommend that Respondent be
required to cease and desist from infringing on employee
rights in any other manner. Further, I shall recommend
that Respondent be required to offer Werbeck immediate
reinstatement to the job of which he was unlawfully
deprived, or, in the event such job no longer exists, a
substantially equivalent job, and make him whole for any
loss of pay he may have suffered by reason of his unlawful
discharge from the date of his discharge to the date of a
valid offer of reinstatement, to be computed in the manner
described in F. W. Woolworth Company, 90 NLRB 289
(1950), with interest as described in Isis PlumJing &
Heating Co., 138 NLRB 716 (1962). 1 shall also recommend
that Respondent be required to post appropriate notices.
Because some of Respondent's employees speak Spanish as
a native language, such notices shall be posted in Spanish
as well as English.
Upon the foregoing findings of fact and conclusions of
law, and the entire record, and pursuant to Section 10(c) of
the Act, I hereby issue the following recommended Order:
ORDER 30
The Respondent, Du-Tri Displays, Inc., Chicago, Illi-
nois, its officers, agents, successors, and assigns, shall:
I. Cease and desist from:
(a) Discharging employees because they have engaged in
activities protected by Section 7 of the Act.
(b) In any other manner interfering with, restraining, or
coercing its employees in the exercise of rights guaranteed
in Section 7 of the Act.
2. Take the following affirmative action designed to
effectuate the policies of the Act:
(a) Offer reinstatement to David C. Werbeck, and make
him whole for any loss of pay he may have suffered by
reason of his discharge, in the manner set forth in that part
of this Decision entitled "The Remedy."
(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 other records
necessary or useful to analysis of the amount of backpay
due under the terms of this Order.
(c) Post at its Chicago, Illinois, plant copies in English
and Spanish of the attached notice marked "Appendix." 31
Copies of said notice, on forms provided by the Regional
Director for Region 13, after being signed by Respondent's
representative, shall be posted by it 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.
Reasonable steps shall be taken by Respondent to ensure
that such notices are not altered, defaced, or covered by
any other material.
(d) Notify the Regional Director for Region 13, in
writing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
25 See Alberici-Fruin-Colnon, supra; General Nutrition, supra, 221 NLRB
at 859; SiJilio's, supra.
29 See cases cited in N.LR.B. v. Dennison Manufacturing Co., 419 F.2d
1080, 1083, fn. 4 (C.A. 1, 1969), cert. denied 397 U.S. 1023 (1970).
30 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.
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.
11 In the event that the Board's Order is enforced by a Judgment of a
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
After a hearing in which all parties had the opportunity to
present their evidence, it has been decided that we violated
the law by discharging David C. Werbeck. We have been
ordered to post this notice. We intend to carry out the
order of the Board and abide by the following:
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DU-TRI DISPLAYS, INC.
WE WILL NOT discharge any employee because he
has complained about working conditions on behalf of
himself and other employees, or because he has said
that he will complain to the National Institute of
Occupational Safety and Health or any other Govern-
ment agency that working conditions are unlawful.
WE WILL NOT in any manner interfere with, restrain,
or coerce employees in the exercise of the rights
guaranteed them by Section 7 of the Act.
WE WILL offer David C. Werbeck reinstatement to
his old job or, if such job no longer exists, to a
substantially equivalent job, and make him whole, with
interest, for loss of pay resulting from his discharge.
The National Labor Relations Act gives employees the
following rights:
To engage in self-organization
To form, join, or assist any union
To bargain collectively through representa-.
tives of their own choosing
To engage in activities together for the purpose
of collective bargaining or other mutual aid or
protection
To refrain from any such activities.
Our employees are free to exercise any or all of these
rights. Our employees are also free to refrain from any or
all such activities, except to the extent that union
membership may be required by a collective-bargaining
agreement as a condition of continued employment as
permitted by the proviso to Section 8(aX3) of the Act.
DU-TRI DISPLAYS, INC.
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