Triangle Sheet Metal Works, Inc.

National Labor Relations Board - Board Decisions

Sep 30, 1981

258 N.L.R.B. 467 (N.L.R.B. 1981)

TRIANGLE SHEET METAL WORKS, INC.
Triangle Sheet Metal Works, Inc. and Glen Lang-
staff and Krishna Maharaj. Cases 29-CA-7179
and 29-CA-7637
September 30, 1981
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
ZIMMERMAN
On April 10, 1981, Administrative Law Judge
Julius Cohn issued the attached Decision in this
proceeding. Thereafter, the General Counsel filed
exceptions and a supporting brief, and Respondent
filed an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,' 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 Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the complaint be, and it hereby
is, dismissed in its entirety.
The General Counsel 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 re-
spect 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. 88 F.2d 362 (3d Cir.
1951). We have carefully examined the record and find no basis for re-
versing his findings.
The General Counsel also excepted to the Administrative Law Judge's
failure to find that Respondent violated Sec. 8(a)(3) and (1) of the Act by
laying off employee Maharaj, relying, in part, on testimony concerning
certain statements made to Maharaj by Respondent's officials. The Ad-
ministrative Law Judge does not specifically mention this testimony.
Even assuming, arguendo, that these statements were made, we neverthe-
less find that the General Counsel has failed to prove by a preponderance
of the evidence that Maharaj's layoff was unlawfully motivated.
The Administrative Law Judge erroneously stated that employee Pat-
rick did not testify at the hearing and that 26, rather than 25, employees
were laid off by Respondent on November 9 and 10. 1978. These inad-
vertent errors do not affect our decision herein.
DECISION
STATEMENT OF THE CASE
JULIUS COHN, Administrative Law Judge: This case
was heard at Brooklyn, New York, on March 24 and
April 14 and 15, 1980. Upon a charge filed and served on
May 9, 1979, the Regional Director for Region 29 issued
a complaint on July 31, 1979, alleging that Triangle
Sheet Metal Works, Inc., herein called Respondent, laid
258 NLRB No. 66
off and refused to recall or reinstate Glen Langstaff be-
cause of his protected concerted activities, and because
he gave testimony under the Act, in violation of Section
8(a)(1), (3), and (4) of the National Labor Relations Act,
as amended. Subsequently, a charge was filed and served
on December 3, 1979, upon which the Regional Director
issued a complaint on January 29, 1980, alleging that Re-
spondent, having recalled Krishna Maharaj to his former
position on August 1, 1979, discharged him on that date
because of his protected concerted activities, and because
he gave testimony under the Act, in violation of Section
8(a)(1), (3), and (4) of the Act. Thereafter the Regional
Director issued an order dated February 14, 1980, con-
solidating these two complaints for hearing. Respondent
filed answers denying generally the commission of the
unfair labor practices alleged in the complaints.
All parties were given full opportunity to participate,
to introduce relevant evidence, to examine and cross-ex-
amine witnesses, to argue orally, and to file briefs. Briefs
were submitted by the General Counsel and Respondent
which have been carefully considered. Upon the entire
record in this case and from my observation of the wit-
nesses and their demeanor I make the following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
At all times material herein Respondent maintained a
principal office and place of business in New Hyde Park,
New York, and has been engaged in the manufacture,
sale, and distribution of sheet metal products, including
duct work for air distribution systems. In the year pre-
ceding the issuance of the complaints herein, Respond-
ent, in the course of its business and operations, pur-
chased goods in excess of $50,000, and sold goods in
excess of $50,000, of which products valued in excess of
$50,000 were shipped directly to States of the United
States other than the State of New York. Respondent
admits and the Board has found that it is an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.'
II. THE LABOR ORGANIZATIONS INVOLVED
Local 28, Sheet Metal Workers International Associ-
ation, AFL-CIO, herein called Local 28, and Local 282,
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen, and Helpers of America, herein called
Local 282, are labor organizations within the meaning of
Section 2(5) of the Act.
Ill. THE ALLEGED UNFAIR LABOR PRACTICES
A. Case 29-CA-7179-Glen Langstaff
1. Background
In the case reported at 238 NLRB 517, the Board
found that Respondent had laid off Glen Langstaff on
July 2, 1976, in violation of Section 8(a)(l) and (3) of the
Act. Thereafter the U.S. Court of Appeals for the
L 237 NLRB 364 (1978): 238 NLRB 517 (1978).
467
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Second Circuit enforced the Board's Order on June 18,
1979, and ultimately the Regional Director issued a back-
pay specification on August 31, 1979. In the meantime,
shortly after the Administrative Law Judge had issued
his Decision in the original case, Respondent offered and
Langstaff accepted reinstatement to his prior position on
June 26, 1978. Once more on November 9, 1978, Re-
spondent laid off Langstaff and did not offer him rein-
statement until August 1979 when he refused to accept
it.
2. Facts and discussion
The General Counsel contends that Langstaffs layoff
by Respondent in November 1978 was the result of his
involvement in the prior unfair labor practice case as a
discriminatee and because he gave testimony under the
Act. Great reliance is placed on the fact that Langstaff
could operate almost every machine utilized in the plant,
a determination made by the Board in the prior case. Re-
spondent's superintendent, Biegler, confirms this ability
of Langstaff and further testified that he could not recall
ever placing Langstaff's name on any layoff list which he
was called upon, as a matter of practice, to submit to the
vice president. A counterbalancing factor, however, is
that seniority by contract is not a factor with regard to
layoff or recalls, and, in short, there is no seniority
among the Local 28 sheet metal mechanics employed by
Respondent. Also as a matter of policy, employees, after
a layoff, are retained on the basis of the current needs for
production.
The records reveal that Respondent commenced
laying off sheet metal mechanics in October 1978 until
the latter part of that year. Thus, 13 were laid off on Oc-
tober 3, 2 on November 3, 26 on November 9 and 10,
and 17 on December 15. Langstaff was among the 26
laid off on November 9, of whom 3 had over 20 years'
experience, considerably more than Langstaff.
Since it is established that seniority is not a factor for
recall or layoff, I place no reliance on the General Coun-
sel's analysis tending to show that a few people with less
seniority than Langstaff were retained after his layoff on
November 9, as it ignores a number of employees with
greater seniority who were laid off before or at the same
time that he was. Moreover I find no great significance
in the fact that Langstaff was capable of running all the
machines and could do almost any job in the plant. In
this connection it is noted that, during the 4-1/2 months
of his reinstatement, Langstaff took 2 weeks of vacation
and was absent on several other days. Clearly the oper-
ation continued in his absence since the record estab-
lishes there were other employees capable of running the
machines upon which Langstaff was then working, even
though they may not have been as versatile as he.
The General Counsel also places considerable reliance
on certain testimony of Respondent's president, Fred
Zwerling, adduced in the backpay case.2 Zwerling stated
2 A Decision in that case has been recently issued, JD-(NY)-28-81,
March 27, 1981. The parties have agreed that testimony and other evi-
dence from that record may be utilized in this case.
that during the course of a discussion with Langstaff in
approximately the third week of September 1976, while
the charges in the prior case were pending, he told
Langstaff the charges filed were in the nature of a politi-
cal matter and that he, Langstaff, "was going to be the
loser for it." This statement was made in context of
Zwerling's alleged attempt to have the charges dropped
on the basis of Langstaff being reinstated to his job at
that time. I found, in the backpay case, that the conver-
sation as a whole did not give rise to a conclusion that
Respondent had made an unconditional offer to Lang-
staff to return to work. However, to use the statement
that Langstaff was going to be a loser to bolster a charge
that his layoff more than 2 years later was discriminatori-
ly motivated is stretching a bit too far. Even at the time
it was made the remark was ambiguous and could have
various meanings; for example, Zwerling's statement that
the pending unfair labor practice charges and complaint
in 1976 were politically motivated, taken together with
his conditional offer to reinstate Langstaff, could very
well have meant that Langstaff, by not accepting the
offer, would continue to lose wages, or may lose the
case. If such interpretation is placed on Zwerling's
words it could have no relevance to the layoff in No-
vember 1978.
The General Counsel finally relies on the testimony of
Langstaff at the hearing to the effect that, shortly after
his recall and reinstatement in June 1978, Zwerling told
him to obtain the withdrawal of the charges in the un-
derlying case. Although Zwerling did not appear at the
hearing, he testified at the backpay hearing that he had
only two or three conversations with Langstaff in the
latter part of 1976 when he tried to persuade Langstaff
to return to work and withdraw the charges. Langstaffs
testimony on this point is uncorroborated. I find it diffi-
cult to believe that Zwerling was still attempting, 2 years
later and after issuance of an administrative law judge's
decision, to convince Langstaff to withdraw the charges.
This is particularly so when it is considered that the de-
cision was in Langstaff's favor and, in any case, he had
no power to withdraw the charge. At this point I believe
that Zwerling was probably better advised. In any event
such statement, even if made, would appear to have little
probative value as to whether Langstaff's layoff in the
following November was discriminatorily motivated.
The existence of such elements as a prior unfair labor
practice complaint, in which Langstaff was found to
have been discriminatorily terminated, and his giving tes-
timony under the Act, all occurring at least 2 years in
the past, are not in themselves sufficient to establish that
Respondent was unlawfully motivated when it laid off
Langstaff in November 1978. No intervening event has
occurred, nor is there any evidence of contemporaneous
statements manifesting such motive on the part of Re-
spondent. This spans a period running from July 1976
when Langstaff was originally discharged until Novem-
ber 1978 when he was laid off and, interestingly, another
6 months before the instant charge was filed. Assuming
that the General Counsel had established a prima facie
case by virtue of reliance on the animus created by the
original discharge, which I believe to be doubtful, Re-
468
TRIANGLE SHEET METAL WORKS, INC.
spondent has amply rebutted it by the evidence to the
effect that Langstaff was included among 26 employees
laid off November 9 for economic reasons, one of a
series of layoffs occurring from October through Decem-
ber 1978. In reaching this conclusion I rely on the fact
that seniority is not a consideration under the Local 28
agreement, and, as previously noted, the fact that Lang-
staff was capable of performing a large number of tasks
is of no avail when it is clear that his work was always
covered by other employees during his absences. Finally,
as noted, there is no evidence of unlawful conduct since
the original case. In sum, I conclude that the General
Counsel has not established by a preponderance of evi-
dence that Respondent unlawfully and discriminatorily
laid off Langstaff on November 9, 1978. Accordingly, I
shall recommend dismissal of the complaint in Case 29-
CA-7179.
B. Case 29-CA-763 7-Krishna Maharaj
1. Background
Maharaj was one of several employees found to have
been discriminatorily terminated in 1976 by the Board in
237 NLRB 364. Prior thereto he had been employed at
Respondent's College Point plant. On April 3, 1978, Re-
spondent recalled Maharaj to a job at its New Hyde
Park plant and retained him until May 5 when he was
again laid off. Maharaj was also one of the discriminatees
in the backpay case concerning which a Supplemental
Decision was recently issued. Unlike the situation pre-
vailing under the Local 28 contract referred to in the
Langstaff case, the Local 282 contract provided for se-
niority according to length of service in the plant. The
seniority list established thereunder included warehouse-
men and three skilled maintenance men. Despite differ-
ences in seniority, it is clear that the maintenance em-
ployees had skills and abilities not possessed by warehou-
semen such as Maharaj.
2. Facts and conclusions
During his employment from 1974 to his discharge in
1976, Maharaj was a warehouseman at College Point
where he operated a forklift. While he worked at New
Hyde Park in April 1978, he also was assigned duties
such as loading and unloading trucks, moving ducts, and
sweeping. After his layoff in May 1978, concerning
which, incidently, no contention of illegality is made,
Maharaj would return to Respondent from time to time
seeking employment. According to Maharaj, during one
of these visits in 1979, he noted a strange man named
"Amos" working at the plant. Maharaj stated that he at-
tempted to see Benjamin Silverstein, an officer of Re-
spondent, to find out what the new fellow was doing
working there. He said he was unable to see Silverstein
but spoke to him on the phone and was told to get off
the premises. Maharaj stated he then went to the Union
to complain about the new man working for Respondent.
As a result of this complaint to the Union, Maharaj was
directed to report to work at the Company.
Maharaj did come to work on August 1, 1979. He was
given an assignment by Miles, one of the maintenance
mechanics and the current shop steward. Miles had Ma-
haraj paint a duct which took him a couple of hours to
do. He was then given an electrical box to rewire but
was unable to do it. Miles reported this to Silverstein
who paid Maharaj for a full day and told him that he
was unable to perform the maintenance work. Respond-
ent's answer admits the allegation of the complaint that
Maharaj was discharged. However Silverstein testified
that he told Maharaj he was being laid off, despite the
fact that the Company, under the policy of the Local 282
contract, had the right to discharge a warehouseman
who insisted on bidding for a maintenance mechanic's
job and then was unable to perform the work. This is
somewhat contradicted by the testimony of Miles who
stated that Silverstein told him before Maharaj reported
to work on August 1 that he would be fired if he could
not perform. In any event whether Maharaj was dis-
charged or laid off makes no difference to the ultimate
outcome of this case.
Silverstein testified, without contradiction, that the
two maintenance mechanics who were employed in early
1979 were Miles and Ortoleva. He said that Ortoleva re-
tired on June 9 of that year and consequently Respond-
ent needed another man who could fully perform all of
the maintenance work. None of the warehousemen cur-
rently employed, all of whom were senior to Maharaj,
was qualified for this work nor did anyone apply. An
effort was made to recall John Cutrone, a maintenance
mechanic and one of the discriminatees who had been
discharged along with Maharaj in the previous case, but
he was employed elsewhere and was not immediately
available. Silverstein then hired Amos Laudman on July
30, 1979. Laudman had not previously been employed by
Respondent and therefore had no seniority. Silverstein
states he was informed one day that Maharaj was at the
plant demanding to be employed since Laudman was not
on the seniority list. He said he tried to have Miles ex-
plain that the need was for a maintenance man and no
warehouseman claimed the job. Miles himself decided
that Local 282 should be called, which he did in the
presence of Maharaj. The business agent, Gesualdi,
called Silverstein and insisted that he employ Maharaj
for a day with the stipulation that he be employed to do
the maintenance work which he was claiming. Silver-
stein then notified Miles that Maharaj was to come in to
work for the day. On August when Miles reported that
Maharaj could not do the maintenance work, Silverstein
said he gave Maharaj a check and told him he was being
laid off because he was unable to do the work, but he
would remain on the seniority list for future warehouse
work if needed. As a sequel to this incident, Laudman
was laid off on August 28, 1979, when Cutrone was
available and put on full-time employment. Cutrone,
apart from his mechanical abilities, had originally been
hired in 1974 to substitute for Ortoleva who then was on
a long leave of absence. He had greater seniority than
Maharaj and no one else thereafter was hired for ware-
house work with less seniority than Maharaj.
While there really is no great variance in the recitation
of the facts, I would credit the version as testified by Sil-
verstein as the most logical and credible. There is no real
claim on the part of Maharaj that he was capable of per-
469
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
forming the type of maintenance work done by the re-
tired Ortoleva, or Miles or Cutrone. Although there is
testimony not only by Maharaj but also by Miles that
warehousemen upon occasion assisted the maintenance
mechanics in their work, there is no probative evidence
that these people were able to perform the mechanical
work done by the three named mechanics. To the con-
trary, there is testimony to the effect that even these
skilled mechanics had to do some of their work in col-
laboration with the engineers. In this connection it may
be noted that Earl Patrick, one of the names mentioned
by Maharaj as having done some maintenance work, was
a warehousemen, a shop steward, and had been the
charging party in the underlying case which led to the
finding that Maharaj and others were discriminatorily
discharged in 1976. Patrick was senior to Maharaj, em-
ployed on August 1, 1979, and of course had not applied
for the job for which Laudman was temporarily hired.
Nor did Patrick testify at this hearing.
The only other evidence in support of the complaint
allegation that Maharaj was discriminatorily discharged
on August I was Maharaj's testimony concerning a tele-
phone call to Silverstein at some period subsequent to
the August 1 incident. He said he called Silverstein from
his house and stated he needed work and Silverstein told
him to go to the union hall. Maharaj did this and spoke
to Gesualdi, the union official. A call was then made to
Silverstein in the course of which Maharaj asked why he
had work for Cutrone and not for him. Silverstein alleg-
edly replied that he should discuss that with Earl Patrick
in the union hall. Apart from the fact that Cutrone, as
noted above, was not only a full-fledged maintenance
mechanic but was in any event senior to Maharaj, I
cannot find any violation of the Act or animus in the
statement of Silverstein, if he indeed made it, that Ma-
haraj should take the matter up with the Union.
The same conclusion is reached in this case as in the
Langstaff case. There has been no evidence presented
with respect to any event, or conduct, or statements
made by Respondent or its agents which would indicate
that Respondent unlawfully discharged or laid off Ma-
haraj on August 1 when he was given a day's work. The
fact that Maharaj was unlawfully discharged in 1976 is
not sufficient to give rise to the conclusion that he was
accorded the same treatment in August 1979, 3 years
later. The seniority argument, which was unavailable to
Langstaff, was sought to be made here. The record
showed that no one was employed by Respondent
during the relevant period with less seniority than Ma-
haraj, except Laudman briefly in August and his job was
that of a mechanic, for which Maharaj was clearly un-
qualified. In all the circumstances, I find that the General
Counsel has not established by a preponderance of evi-
dence that Respondent unlawfully and discriminatorily
discharged or laid off Maharaj on August 1, 1979. Ac-
cordingly, I shall recommend dismissal of the complaint
in Case 29-CA-7637.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. Local 28 and 282 are labor organizations within the
meaning of Section 2(5) of the Act.
3. Respondent has not engaged in the unfair labor
practices alleged in the consolidated complaints.
Upon the foregoing findings of fact, conclusions of
law, and the entire record, and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended:
ORDER 3
The complaints are dismissed in their entirety.
3 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the find-
ings, 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.
470