NLRB v. Ben Pekin Corporation

• Decision Date: 04 October 1971
• Docket Number: No. 18894.,18894.
• Citation: NLRB v. Ben Pekin Corporation, 452 F.2d 205 (7th Cir. 1971)
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. BEN PEKIN CORPORATION, Respondent.
• Court: U.S. Court of Appeals — Seventh Circuit

452 F.2d 205 (1971)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. BEN PEKIN CORPORATION, Respondent.

No. 18894.

United States Court of Appeals, Seventh Circuit.

October 4, 1971.

Marcel Mallet-Prevost, Asst. Gen. Counsel, Janet Skaare Morris, Atty., N.L.R.B., Washington, D. C., Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Herman M. Levy, Atty., N.L.R.B., for petitioner.

Harold A. Katz, Irving M. Friedman, Charles Barnhill, Jr., Zenia S. Goodman, Chicago, Ill., Katz & Friedman, Chicago, Ill., for respondent.

Before HASTINGS, Senior Circuit Judge, and KERNER and SPRECHER, Circuit Judges.

PER CURIAM.

This application by the National Labor Relations Board for the enforcement of its order presents the issue of whether substantial evidence supports the Board's finding that Walter Churinoff was discharged for participating in protected concerted activity in asking, "Is there a pay-off here" when he failed to receive an anticipated increase in wages. We find that substantial evidence exists in the record to support the Board's finding and its conclusion based thereon that the respondent engaged in an unfair labor practice prohibited by Section 8(a) (1) of the National Labor Relations Act (29 U.S.C. § 158), requiring full reinstatement of Churinoff and payment of lost pay plus interest.

The respondent, Ben Pekin Corporation (Company), operates apartment buildings in Illinois, including the Fountainhead Apartments comprising twenty buildings located in Westmont, Illinois. The Company recognized the Chicago Flat Janitors Union, Local No. 1, Service Employees' International Union, AFL-CIO (Union) and had an oral agreement with the Union concerning wages, hours and working conditions of the Company's flat janitors. Churinoff had belonged to the Union for about 17 years and had been employed by the Company at Fountainhead Apartments as a flat janitor since July, 1967.

In December, 1968 Churinoff received a notice from the Union that janitors were to receive a wage increase of $75 per month effective December 1, 1968. Churinoff's gross pay was increased $27 a month in December, causing him to discuss the $48 discrepancy with his immediate supervisor, Harry Pasquinelli, who could give him no satisfactory explanation. He then telephoned the Union's vice-president who told him that "according to the Union contract" janitors were to receive a $75-a-month raise. Churinoff then asked, "Is there a pay-off here?" This question was repeated in substantially the same form possibly to Pasquinelli and on a separate occasion to a co-worker.

Subsequently, the Union's business agent telephoned Churinoff and invited him to attend a meeting at the Fountainhead administration building. Present at the meeting were the Fountainhead janitors, two Union business agents, Pasquinelli, and a Company office employee. One of the business agents told the meeting that $27 a month was the entire increase the janitors at Fountainhead would receive and they could "take or leave" it. He then asked who had made the allegation about a pay-off. Churinoff replied that he had and the agent denied the charge.

Ben Pekin, the Company's president, heard about the pay-off remarks and ordered Churinoff discharged. By letter dated January 17, 1969, Pasquinelli discharged him for "words and actions" demonstrating that "you were not entirely satisfied with your new pay scale" and an "unhappy employee could tend to cause unrest with co-workers, which in turn could cause the efficiency of services rendered to tenants to become inadequate." Churinoff worked for the Company until February 15, 1969; he promptly complained about his discharge to the Board, which issued a complaint against the Company.

The trial examiner found that, although the Company and Union did not have a written collective-bargaining agreement, they did have a "relationship" and an "oral agreement." He also found that "the wages payable under the foregoing contract were increased as of December 1, 1968, and that the raise coming to Churinoff and other janitors employed by Respondent was $75 a month." The Board, however, found it unnecessary to pass upon the trial examiner's conclusion that the janitors were entitled to the $75 increase, finding instead that "it is clear from the record that Churinoff thought that he and his fellow employees were entitled to an increase of $75" and "the critical question is whether Churinoff was acting in good faith on behalf...