Poloron Products, Inc.

National Labor Relations Board - Board Decisions

Dec 6, 1973

207 N.L.R.B. 736 (N.L.R.B. 1973)

736 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Poloron Products, Inc. and Anthony La Motta. Case
4-CA-6327
December 6, 1973
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS JENKINS
AND KENNEDY
On August 15, 1973, Administrative Law Judge
Max Rosenberg issued the attached Decision in this
proceeding. Thereafter, 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, 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 Poloron Products,
Inc., Scranton, Pennsylvania, its officers, agents,
successors, and assigns, shall take the action set forth
in the said recommended Order.
DECISION
STATEMENT OF THE CASE
MAX ROSENBERG, Administrative Law Judge: With all
parties represented, this case was tried before me in
Scranton, Pennsylvania, on May 22, 23, and 24, 1973, on a
complaint filed by the General Counsel of the National
Labor Relations Board and an answer filed thereto by
Poloron Products, Inc., herein called the Respondent.' The
issues raised by the pleadings relate to whether Respondent
violated Section 8(a)(3) of the National Labor Relations
Act, as amended, by discharging Anthony La Motta on
January 26, 1973, because he engaged in certain activities
on behalf of International Association of Machinists and
Aerospace Workers, AFL-CIO, herein called the Union,
and whether Respondent otherwise independently violated
Section 8(a)(1) of the Act. At the close of the hearing, the
General Counsel orally argued his cause. A brief has been
i The complaint, which issued on March 30, 1973, is based upon charges
filed and served on February 15, 1973.
2 All dates herein fall in 1973.
3 La Motta testified and I find that, in the course of his duties as a
steward, he had "personal" encounters with Coolbaugh. In La Motta's
words, "we had many problems down at Chamberlain when I started there
as far as safety was concerned ; and it seemed like many times we just could
received from the General Counsel which has been duly
considered.
FINDINGS OF FACT AND CONCLUSIONS
I. THE BUSINESS OF THE EMPLOYER
Respondent is a corporate entity engaged in the
manufacture of bomb fins and ammunition storage boxes
at a plant located in Scranton, Pennsylvania, which is the
only facility here involved. During the annual period
material to this proceeding, Respondent sold and shipped
products valued in excess of $50,000 to points located
outside the Commonwealth of Pennsylvania. The com-
plaint alleges, the answer admits, and I find that Respon-
dent is an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
It is admitted and I find that the Union is a labor
organization within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
The complaint alleges that, on January 26, 1973,2
Respondent violated Section 8(a)(1) of the Act by the
conduct of Foreman John Perry in interrogating employees
concerning their union activities. The affirmative pleadings
further allege that Respondent offended the provisions of
Section 8(a)(3) by discharging employee Anthony La
Motta on that day because of his engagement in union
activities. Respondent claims that it severed La Motta from
its employment rolls solely because he failed to perform his
work tasks in a satisfactory manner. It also denies that
Perry illegally questioned its employees./
Prior to his employment with Respondent on January 24,
La Motta had toiled for a company known as the
Chamberlain Corporation, herein called Chamberlain, for
more than 5 years. This entity, also located in Scranton,
Pennsylvania, manufactures products similar to those
fabricated by Respondent. During his stint with Chamber-
lain, the employees were represented by the Union and,
until the last 6 months of his tenure, La Motta served as a
shop steward. It is undisputed and I find that he actively
processed grievances under the collective-bargaining agree-
ments between Chamberlain and the Union, particularly
those involving safety matters, and that these endeavors
frequently brought him into discussions and negotiations
with Robert Coolbaugh, Chamberlain's industrial relations
manager.3
I find that, at 9 a.m. on January 24, La Motta visited the
personnel office of Respondent in quest of employment.4
The record discloses that, as in the case of Chamberlain,
Respondent's employees had been collectively represented
by the Union for many years under a contract which
not sit down and talk things out; we would have to refer to the grievance
procedure to try to settle these points. And, I was Just doing the job that I
was elected to do for certain people, and I believe honestly and truthfully
that Mr. Coolbaugh down at Chamberlain Corporation resented this fact
very much and it created hard feelings between him and I."
4 La Motta had been laid off at Chamberlain as a result of a general
reduction in force which affected him on January 23.
207 NLRB No. 129
POLORON PRODUCTS, INC.
provided that, for the first 30 days of their employment,
new employees would be placed on a probationary status
and could be terminated for any reason during the
probationary period. Upon his arrival at the personnel
office, La Motta filled out an application and was then
interviewed by Edward Manarski, Respondent's personnel
manager, who learned that La Motta had formerly been
employed by Chamberlain. Manarski explained the proba-
tionary period to La Motta and indicated that the shop was
unionized . Manarski remarked that, following the inter-
view, he had an appointment to visit Chamberlain's
personnel offices to review the personnel files of supervi-
sors and skilled mechanics who had been laid off by that
company in order to determine whether Respondent
desired to employ them. At the conclusion of the interview,
Manarski informed La Motta that the latter had been hired
and that he should report for work on the second shift that
day, which commenced at 3:30 pm.-5
In conformity with Manarski's instructions , La Motta
appeared at the plant shortly before 3:30 p.m. on January
24 and was introduced to John Perry, the production
foreman. According to La Motta, Perry escorted the
former and another newly hired employee to the prod-
uction line.6 Perry assigned La Motta the job of filing
metal burrs on the ammunition boxes, and the other
employee was directed to spot weld reinforcement strips to
the sides. La Motta continued to perform the work of
deburring until 9 p.m., at which time he was instructed by
Perry to assume the duties of welding the clasps and
handles to ' the containers because the employee who had
been performing that chore had quit his job.
La Motta undertook the welding assignment and worked
in this capacity until the end of the shift on the evening of
January 26. As he proceeded to cleanse himself, Perry
approached with a piece of paper in his hand which
contained the names of La Motta and an individual named
Jack Bielucki. After beckoning to, Bielucki, Perry, La
Motta, and Bielucki gathered around a desk. Perry opened
the conversation by stating to La Motta that "you know
you've been doing very good work . . . as a matter of fact
the other foreman and myself have been watching you
these last few nights . . . and we both agree that you're one
of the best men we ever had on this machine." La Motta
thanked the foreman for the compliment. Perry went on to
relate that "when I came in to work today at the beginning
of the shift ... I was called i n t o the personnel office ... .
I was given your name and Jack's [Bielucki' s ] name; and I
was told to let you fellows go." At this juncture, La Motta
remarked that "you just got done saying that how good my
work is and everything else; so what's the problem." Perry
then inquired , "were you ever involved with the union at
Chamberlain." La Motta ' replied that "I was a union
representative down at Chamberlain for the last five or six
years," whereupon Perry stated that "he was told to let me
5 Several former employees of Chamberlain were hired by Respondent
following the reduction in force at that plant.
6 As indicated heretofore , Respondent manufactures ammunition
storage boxes for the military. The process begins with a flat piece of metal
which is cut to form and placed into a machine by an employee who
fabricates the shell of the box, i.e ., the four sides of the container . The shell
then is conveyed to another employee who spot welds the edge and the
bottom of the box to hold it in shape Thereafter, another employee welds
737
go before I got my thirty days [an apparent reference to the
probationary period] in because I was affiliated with the
union at Chamberlain and I was, -you know, going to start
causing problems . . ." When La Motta asked the source
of the information, Perry rejoined that "personally it isn't
me . . . I like you ... there's a lot of people here that I'd
like to get rid of but I can't . . . and there's a lot of people
that I'd like to keep and I can't." Perry terminated his
discussion with La Motta by requesting that La Motta
provide his telephone number and by assuring La Motta
that Perry would speak with Personnel Manager Manarski
the following Monday in the hope that the latter could be
persuaded to retain La Motta's services. Turning to
Bielucki, Perry announced that the decision to discharge
Bielucki was bottomed on his frequent absences from
work.
Bielucki corroborated La Motta's testimony regarding
the conversation with Perry on the evening of January 26
when both employees were discharged. According to
Bielucki, Perry informed the men that "he had to let both
of us go." When La Motta inquired into the reason for the
personnel action regarding him, Perry inquired whether La
Motta was affiliated with the union down at Chamber-
lain." La Motta responded in the affirmative, and asked
whether the termination was due to any deficiencies in his
work performance. Perry assured La Motta that this was
not the case, stating "you're doing a good job . . . you're
the best man we've had on that machine." When La Motta
pressed Perry for the cause of the separation, Perry replied
"since you were affiliated with the union at Chamberlain,
they said you're a troublemaker; so they told me that I
have to let you go."
Following this discussion, La Motta sought out a shop
steward. Finding none, he enlisted the support of George
Yanchik, a senior employee, and, together, they called
upon Perry. Yanchik asked Perry "how come you have to
let the kid go . . . is there something wrong with his work
or what," to which Perry replied, "no, there's nothing
wrong with his work; they just gave me the pink slip to get
rid of him."
Despite the fact that Perry sat at Respondent's counsel
table throughout the course of the hearing in this
proceeding, he was not summoned as a witness by
Respondent, either to deny the statements attributed to
him La Motta and Bielucki, or to explain them. According-
ly, the testimony of La Motta and Bielucki stands
uncontroverted regarding their conversation with Perry on
the evening of January 26.
La Motta left the plant at midnight on January 26 and
entered his automobile to drive to his home. On the way,
he mentally recapitulated the events leading to his
termination, and the thought struck him that Personnel
Manager Manarski must have learned of La Motta's active
role as a shop steward while employed by Chamberlain
the seam of the receptacle, after which still another employee welds the
bottom onto the container . Following a water test of the box, an employee
spot welds any discovered holes. The next operation involves the welding of
reinforcement strips to the sides , after which an employee welds on the
requisite clasps and handles . The box is thereupon transmitted to an
employee who manually files away the burrs which are found. The final
process is the painting of the container.
738 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
from Robert Coolbaugh, Chamberlain's personnel chief,
when Manarski visited the latter on the morning of
January 24 after La Motta had been hired. Armed with this
suspicion, La Motta drove to the Chamberlain plant and
persuaded the guard to show him the visitors' sign-in sheet
for January 24. After perusing the sheet, La Motta noticed
Manarski's signature imprinted thereon.
On Monday, January 29, La Motta drove to the Union's
office in Scranton and contacted Lynn Warren, the
Union's business agent. La Motta recounted the events
which led to his discharge, after which Warren telephoned
Cyril Neyhart, Respondent's plant manager. When the
conversation was concluded, Warren informed La Motta
that the former would meet with Neyhart the following day
to discuss the discharge.
On Wednesday, January 31, La Motta went to the plant
to return a pair of safety glasses. Upon his arrival, he asked
to speak to Personnel Manager Manarski. When Manarski
arrived, La Motta asked, "can you tell me the reason why I
was let go." Manarski replied, "well the foreman [Perry]
stated that your work wasn't up to par." La Motta
rejoined, "then why was 'I told my work was good, I was
one of the best men he ever had work there; the man even
took my phone number down and he was going to talk to
you about keeping me." Manarski stated, "I don't know
nothing about that," at which point La Motta observed
that "I was under the impression that you went down to
Chamberlain after I was hired and talked to someone
down there, and they gave you the information that I was a
union representative down at Chamberlain and this is how
it all came about that I had been let go." Manarski
protested that this was not the case, and that his visit to
Chamberlain's personnel office preceded La Motta's
employment by 3 to 7 days. La Motta then requested a
meeting with Plant Manager Neyhart and a union
representative. Shortly thereafter, La Motta met with
Neyhart, Manarski, and a union official named Manning.
After Neyhart complained about the interruption of his
work schedule, he opined that "I guess you [La Motta]
want to know the reason why you were let go.... well, the
reason was because the foreman [Perry] said your work
wasn't up to par." La Motta responded, "then why did
your foreman praise me, why did he tell me my work was
good and everything." When Neyhart professed ignorance
about these encomiums, La Motta inquired, "well then
where did your foreman get the information about me
being involved with the union at Chamberlain Corporation
and you know being a union steward and this." Neyhart
replied, "well, I've talked to the foreman about those
statements that he made to you about being affiliated with
the union . . . the foreman admitted that he made those
statements . . . but why he made them I don't know."
After La Motta announced that he intended to file unfair
labor practice charges with the Board, the conversation
ended.
Manarski testified that, following his interview with La
Motta on the morning of January 24, he proceeded to
Chamberlain's personnel office to review the files of
potential employees who had been supervisors and
maintenance mechanics at Chamberlain. Manarski related
that he reported at the Chamberlain guard station and
signed the visitors' log at 10:30 a.m., after which he visited
the office of Personnel Manager Coolbaugh. It is uncon-
tradicted and I find that Coolbaugh had entered a
grievance meeting at 10 a.m. in another area of the plant.
Manarski was met by Coolbaugh's secretary, Nancy
Hameza, who escorted Manarski to a desk where she
deposited approximately 15 files for Manarski's perusual.
Both Manarski and Hameza testified that La Motta's file
was not produced for inspection and his name or union
activities did not come up in the course of Manarski's visit,
although Hameza conceded that she was well aware of La
Motta's activities as a steward at the plant prior to his
reduction in force.
Manarski testified that at 11:50 a.m. on January 24, he
left the Chamberlain plant and returned to Respondent's
premises without conversing with or otherwise contacting
Coolbaugh that morning. Coolbaugh testimonially re-
counted that the grievance meeting which he had attended
terminated at 12 noon, about 10 minutes after Manarski
had left the plant, and that he had no conversation with
Manarski that morning regarding La Motta or anyone else.
According to Coolbaugh, he had never met Manarski until
the day of the hearing herein. However, he admitted
having telephonic conversations with his counterpart on
two or three occasions prior to La Motta's discharge.
I do not credit the testimony of Manarski and Cool-
baugh to the effect that they never discussed La Motta's
activities as union steward during the period of his
employment at Chamberlain prior to his discharge on
January 26, not only because they failed to impress me
with their candor, but also because I am persuaded that
their testimonial utterances in this regard were contrived.
Thus, Manarski telephoned Coolbaugh after La Motta's
discharge and, in the course of their conversation concern-
ing _ the acquisition of Chamberlain's supervisors and
mechanics, Manarski, without any plausible explanation
on this record, suddenly decided to reveal to Coolbaugh
that Respondent had rid itself of La Motta, a nondescript
laborer. Although Jack Bielucki, a former Chamberlain
employee and another laborer, was also discharged at the
same time as La Motta, Manarski nevertheless felt no
compulsion to disclose this personnel action to Coolbaugh.
In sum, I am convinced and find that, following La
Motta's employment with Respondent at 9 a.m. on
January 24, Manarski communicated with Coolbaugh,
either on January 24, or during the ensuing days until La
Motta's discharge on January 26, and he learned that this
employee had been a thorn in Coolbaugh's side when he
was entrusted the duties of shop steward at Chamberlain.?
I am also convinced and find, despite Neyhart's denial to
the contrary which I discredit, that, during the meeting on
the afternoon of January 26 between Neyhart, Manarski,
and Perry, when the decisions were discussed and
formulated to terminate La Motta and Bielucki, Manarski
imparted this intelligence to Neyhart and Perry, and the
decision was then made to discharge La Motta in an
7 In his testimony, Coolbaugh stated that he was told by Manarski that Somehow, Coolbaugh equated these reasons with "poor performance."
La Motta had been discharged for "disciplinary reasons" or "disruption:'
POLORON PRODUCTS, INC.
attempt to forestall a recurrence of his energetic stewards'
activities at Respondent's installation.
Nor do I place credence in Neyhart's assertion that La
Motta was separated from Respondent's employ because
of any deficiencies in his work. Neyhart admitted on the
record that he did not observe La Motta's work perform-
ance and, indeed, was not aware of Perry's asserted reasons
for firing La Motta until days after the personnel action
was accomplished. Moreover, Neyhart stated that Perry
possessed the exclusive authority to evaluate La Motta's
work performance and to determine whether La Motta
would be dismissed or retained. As indicated heretofore,
La Motta and Bielucki testified without contradiction that
Perry complimented La Motta for his workmanship.
In short, I find and conclude that Respondent singled
out La Motta for discharge on January 26, not because of
any work deficiences, but solely because it desired to
remove him from its employment rolls before he could
engage in the same type of protected, concerted activities
at its plant as those engaged in at Chamberlain's. By so
doing, I conclude that Respondent violated Section 8(a)(3)
of the Act. Moreover, under the circumstances here
presented, I conclude that- Respondent violated Section
8(a)(1) of the Act by Perry's coercive interrogation of La
Motta on January 26 when the former asked La Motta
whether he had been active in the Union at Chamberlain.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section III,
above, occurring in connection with Respondent's opera-
tions described in section I, above, have a close and
intimate relationship to trade, traffic, and commerce
among the several States, and tend to lead to labor disputes
burdening and obstructing commerce and the free flow
thereof.
V. THE REMEDY
Having found that Respondent has engaged in and is
engaging in certain unfair labor practices, I shall recom-
mend that it cease and desist therefrom and take certain
affirmative action designed to effectuate the policies of the
Act.
I have found that Respondent discharged Anthony La
Motta on January 26, 1973, because he had been an active
union steward when employed with another company and
because Respondent desired to remove him from its
employment rolls before he could engage in the same type
of protected, concerted activities at its plant. I shall
therefore recommend that Respondent make La Motta
whole for any loss of pay which he may have suffered as a
result of the discrimination practiced against him. The
backpay provided for herein shall be computed in
accordance with the Board's formula set forth in F. W.
Woolworth Company, 90 NLRB 289, with interest thereon
at the rate of 6 percent per annum computed in the manner
prescribed in Isis Plumbing & Heating Co., 138 NLRB 716.
8 In the event no exceptions are filed as provided by Section 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, and recommended Order herein shall, as provided in
739
Upon the basis of the foregoing findings of fact and
conclusions , and upon the entire record in this case, I
hereby make the following:
CONCLUSIONS OF LAW
1. Respondent is, an employer engaged in commerce
within the meaning of Section 2(6) and, (7) of the Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. By interfering with, restraining, and coercing em-
ployees in the exercise of the rights guaranteed in Section 7
of the Act, Respondent has engaged in and is engaging in
conduct proscribed by Section 8(a)(1) of the Act.
4. By discharging Anthony La Matta, thereby discruni-
nating in regard to his hire and tenure of employment, in
order to discourage activity on behalf of the Union,
Respondent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8(a)(3) of the Act.
5. The aforesaid unfair labor practices are unfair labor
practices within,the meaning of Section 2(6) and (7) of the
Act.
6. Upon the foregoing findings of fact and conclusions
of law and the entire record, and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, I hereby
issue the following recommended:
ORDERS
Respondent, Poloron Products, Inc., Scranton, Pennsyl-
vania, its officers, agents, successors , and assigns, shall:
I.` Cease and desist from:
(a) Coercively interrogating employees concerning their
activities on behalf of International Association of Ma-
chinists and Aerospace Workers, AFL-CIO.
(b) Discharging employees, thereby discriminating in
regard to their hire of tenure of employment, in order to
discourage activity on behalf of International Association
of Machinists and Aerospace Workers, AFL-CIO.
(c) In any other manner interfering with, restraining, or
coercing employees in the exercise of their rights guaran-
teed in Section 7 of the Act.
2. Take the following affirmative action which I find is
necessary to effectuate the policies of the Act.
(a) Offer to Anthony La Motta immediate and full
reinstatement to his former job or, if that job no longer
exists, to substantially equivalent employment and make
him whole for any loss of pay which he may have suffered
as a result of the discrimination practiced against him, in
the manner set forth in the section of this Decision entitled
"The Remedy."
(b) Notify Anthony La Motta, if presently serving in the
Armed Forces of the United States, of his right to full
reinstatement upon application in accordance with the
Selective Service Act and the Universal Military Training
and Service Act, as amended, after discharge from the
Armed Forces.
(c) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
Section 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.
740 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
payroll records, social security payment records and
reports, and all other records necessary to analyze the
amount of backpay due herein.
(d) Post at its plant in Scranton, Pennsylvania, copies of
the attached notice marked "Appendix." 9 Copies of said
notice, on forms to be provided by the Regional Director
for Region 4, after being duly signed by Respondent's
authorized representative, shall be posted by it immediate-
ly upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places, includ-
ing all places where notices to employees are customarily
posted. Reasonable steps shall be taken to insure that said
notices are not altered, defaced, or covered by any other
material.
(e) Notify the Regional Director for Region 4, in writing,
within 20 days from the date of receipt of this Decision,
what steps have been taken to comply herewith.
9 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 be,changed to read
"Posted Pursuant to a Judgment of the United States Court of Appeals
Enforcing an Order of the National Labor Relations Board."
APPENDIX
Machinists and Aerospace Workers, AFL-CIO, or any
other labor organization.
WE WILL NOT coercively interrogate our employees
concerning their activities on behalf of the above-
named Union.
WE WILL NOT in any other manner interfere with,
restrain, or coerce our employees in the exercise of their
rights guaranteed in Section 7 of the National Labor
Relations Act, as amended.
WE WILL make Anthony La Motta whole for any
loss of pay he may have suffered as a result of our
discrimination practiced against him due to his Union
activities, and WE WILL reinstate him.
All our employees are free to become, remain, or refrain
from becoming or remaining, members of the above-
named or any other labor organization.
Dated By
POLORON PRODUCTS, INC.
(Employer)
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material . Any questions concern-
ing this notice or compliance with its provisions may be
directed to the Board's Office, William J. Green, Jr.,
Federal Building, Suite 4400, 600 Arch Street, Philadel-
phia, Pennsylvania 19106, Telephone 215-597-7601.
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discharge our employees from work,
thereby discriminating in regard to their hire and
tenure of employment, in order to discourage their
activities on behalf of International Association of