AJ Krajewski Manufacturing Co. v. NLRB

• Decision Date: 17 July 1969
• Docket Number: No. 7224.,7224.
• Citation: 413 F.2d 673
• Parties: A. J. KRAJEWSKI MANUFACTURING CO., Inc., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, and United Steelworkers of America, AFL-CIO, Intervenor.
• Court: U.S. Court of Appeals — First Circuit

413 F.2d 673 (1969)

A. J. KRAJEWSKI MANUFACTURING CO., Inc., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, and United Steelworkers of America, AFL-CIO, Intervenor.

No. 7224.

United States Court of Appeals First Circuit.

Heard April 8, 1969.

Decided July 17, 1969.

William J. Sheehan, Providence, R. I., for petitioner.

Eugene B. Granof, Washington, D. C., Atty., with whom Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Assoc. Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, and David C. Nevins, Atty., Washington, D. C. were on brief, for N. L. R. B., respondent.

Before ALDRICH, Chief Judge, McENTEE and COFFIN, Circuit Judges.

McENTEE, Circuit Judge.

On August 24, 1966, Michael Andreoli was called to the office of his employer and summarily fired. The several issues that we consider in this case center around this event and the circumstances that triggered it.

For many months after coming into the employ of the Krajewski Company, Andreoli's performance had been satisfactory if uneventful. Then in June of 1966 he became active in union organizational matters. Union authorization cards representing a majority of the Company's employees were signed largely as a result of his efforts. Based on these cards the Union made a claim of majority status and requested that it be recognized as the bargaining agent. The Company, disparaging the value of such cards in general and doubting that its employees had signed them in any event, refused to meet the Union's demands. Thereafter the parties agreed to an election. This election, held on September 14, resulted in the defeat of the Union by a vote of thirty-seven to ten.

Meanwhile, Andreoli's success as a labor organizer was paralleled by a decline in his fortunes as an employee. About two weeks before his discharge Andreoli noticed two foremen inspecting his open locker where he testified he kept, or at any rate had kept, union authorization cards. He complained of this incident to Fred Slemon, the general manager. Also, a few days later Andreoli received a warning letter charging that he had improperly questioned one Robert Bost, a customer's employee, concerning Krajewski operations on a holiday (V J Day). Finally, he had an argument with the wife of a foreman¹ (also a Krajewski employee) during which he made a vulgar remark to her. When this incident was reported to A. J. Krajewski, the president of the Company, Andreoli's dismissal resulted.

The Board, adopting the findings of the trial examiner, found that the Company violated §§ 8(a) (1), (3) and (5) of the National Labor Relations Act by giving the impression of surveillance of Andreoli, by discharging him and by refusing to bargain with the Union. It ordered that the election be set aside, that the Company bargain with the Union and that Andreoli be reinstated.

Turning first to the question of surveillance, we are constrained to note that the Board's determinations in this respect are extremely tenuous. Two foremen looked into the open locker of an employee. They testified that they didn't even know whose locker it was. In addition, their principal interest was that there were "three pairs of cutters" in the locker whereas each employee was supposed to have only one. Despite this the foreman took no disciplinary measures of any kind. We cannot say that this constitutes substantial evidence of surveillance.

The trial examiner, himself troubled that this incident might appear to be of "small significance were it isolated," calls attention to "contemporary events," such as the general manager's warning letter above mentioned, and his statement to Robert Bost that Andreoli was suspected of union activity. But such events hardly provide the background for a charge of surveillance. As to the warning letter, there was evidence that before the holiday there had been grumbling among the employees concerning the possibility of working on that day. The Company was understandably agitated when it learned that an employee involved its customers in this matter by raising questions concerning which employees had been working on the holiday. It would appear, however, that to this extent it was Andreoli who had the Company under surveillance rather than the other way around. The other contemporary event, Slemon's statement that Andreoli was suspected of union activities, is equally unimpressive. Slemon denies having made the statement at all and since he is supposed to have made it to Bost just after the latter had made a most profuse expression of fealty to unions and unionism generally it is surprising that his denial was not credited. In any event, assuming that Slemon made the statement, we are unable to agree that this would convert the locker episode into surveillance or the impression of surveillance.

We come now to the dismissal itself. The Board found that the real reason for Andreoli's discharge was his union activities. We think this determination is supported by the circumstances of the dismissal, especially the Company's inability to adhere with consistency to any explanation for its action.

The theory now espoused by the Company is that Andreoli was fired because of the vulgar remark made to a female employee. Intrinsically there are difficulties enough with this. It appears from the record that similar vulgarity was not unusual in the plant and that language-wise even the female employee in question was quite capable of giving as good as she received. In addition, despite warning from counsel not to take disciplinary action without consultation, Krajewski, after a vain effort to reach his attorney, acted on his own that very day; this despite the fact that the event was already three days old before he learned of it.

The explanation for the dismissal was weak enough even if it had been advanced with consistency. But there was no consistency to it at all. Andreoli himself was told at the time that he was being dismissed because his work was unsatisfactory.² This explanation has since been repudiated by the Company. Also, Krajewski told him that he would receive a letter from the Company attorney explaining the reasons for his dismissal. No such letter was sent.³ In addition, Slemon, who was present at the firing, charged that Andreoli had improperly ordered another employee to do certain work. This was news even to Krajewski.

Also, a notice of disqualification for unemployment benefits sent to Andreoli by the Rhode Island Department of Employment Security, reads in part: "Employer information reveals the claimant's employment was terminated because of his absence from his work area without permission and for questioning a company customer regarding the operation of the plant on a holiday. * * *"⁴ This is but another indication that the Company was unable to settle on a reason for the discharge, which in itself lends support to the theory that Andreoli's union support was the real explanation. See N. L. R. B. v. Joseph Antell, Inc., 358 F.2d 880 (1st Cir.1966); N. L. R. B. v. Schill Steel Products, Inc., 340 F. 2d 568, 573 (5th Cir.1965).

Of course, a...