Florida Steel Corp.

FLORIDA STEEL CORPORATION 195 Florida Steel Corporation and United Steelworkers of America, AFL-CIO. Cases I -CA-7707 and 11-CA-7707-1 (formerly 12-CA-8250) May 1, 1980 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND TRUESDALE Upon a charge duly filed by United Steelworkers of America, AFL-CIO, hereafter called the Union, and an amended charge filed by the Union on June 22, 1978, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 11, issued a complaint and notice of hearing on May 9, 1979, and an order consolidating cases and consolidated complaint and notice of hearing on July 16, 1979, against Florida Steel Cor- poration, herein called Respondent. The consoli- dated complaint alleges that Respondent had en- gaged in and was engaging in unfair labor practices within the meaning of Section 8(a)(1) and (3) of the National Labor Relations Act, as amended, by denying the accumulation of "time bank" credits to certain employees at its Charlotte, North Carolina, plant and at its Indiantown, Florida, plant, for the weeks in which such employees participated in ne- gotiating sessions, because said employees engaged in union activities or in concerted activities with other employees for the purpose of collective bar- gaining and other mutual aid and protection. On June 1, 1979, Respondent filed an answer denying the commission of any unfair labor practices, and an answer to the consolidated complaint filed on August 2, 1979, denying the commission of any unfair labor practices. On November 1 and 2, 1979, the parties executed a stipulation of facts by which they waived a hear- ing before an administrative law judge and the issu- ance of an administrative law judge's decision and recommended order and agreed to submit the case to the Board for findings of fact, conclusions of law, and an order. The stipulation also provided for the filing of briefs with the Board. On January 2, 1980, the Board issued its order approving the stipulation and transferring the pro- ceeding to the Board. The General Counsel, the Charging Party, and Respondent filed briefs. 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 stipulation of facts, the exhibits, the brief, and the entire record in this proceeding, and hereby makes the follow- ing: 249 NLRB No. 18 FINDINGS OF FACT I. THE BUSINESS OF THE EMPLOYER Florida Steel Corporation, a Florida corporation, is engaged in the manufacture of steel and rein- forced rods at the plants involved herein located in Charlotte, North Carolina, and Indiantown, Flor- ida. During the past year, a representative period, the Employer manufactured, sold, and shipped from its North Carolina and Florida facilities, re- spectively, products valued in excess of $50,000 to points directly outside the States of North Carolina and Florida. During the same period, the Employ- er also purchased from points directly outside the States of North Carolina and Florida, respectively, materials valued in excess of $50,000. The parties stipulated, and we find, that Florida Steel Corporation is, and at all times material herein has been, an employer engaged in commerce and in operations affecting commerce within the meaning of Section 2(6) and (7) of the Act and that it will effectuate the purposes of the Act to assert jurisdiction herein. II. THE LABOR ORGANIZATION INVOI.VED The parties stipulated, and we find, that United Steelworkers of America, AFL-CIO, is a labor or- ganization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Facts On January 16, 1974, the Union was certified as the bargaining representative for the production and maintenance employees at Respondent's Char- lotte, North Carolina, plant.' On June 13, 1975, the Union was certified for the production and mainte- nance employees at Respondent's Indiantown, Florida, plant.2 The parties have since had separate contract negotiating sessions in each unit. Commencing June 1, 1976, Respondent imple- mented an "Attendance Bonus" (time bank) plan throughout its operations, except for the bargaining unit employees at its Charlotte and Indiantown plants. The Attendance Bonus plant provides that hourly employees shall be credited with one-half an Attendance Bonus hour for each week during which they are in attendance for all of their regu- larly scheduled hours. According to Respondent, the purpose of this plan was to provide employees with paid personal time when absenteeism might otherwise be necessary due to sickness, family busi- ness, or personal business. Case 1 -RC-3725 2 Case 12 RC 44hl FLORIDA STEEL CORPORATION 195 19h DECISIONS OF NATIONAL LABOR RELATIONS BOARD There are four exceptions to the rule that em- ployees, in order to qualify for the Attendance Bonus, have to be in attendance for all of their reg- ularly scheduled hours. Employees are excused from the rule (1) to receive treatment for an indus- trial injury sustained on the job; (2) to appear as a witness in court, should they be requested to do so by Florida Steel management; (3) when two com- pany-paid holidays are scheduled and observed during the same workweek; and (4) when exchang- ing a scheduled shift with another employee, if a supervisor's approval is obtained in advance.3 The Attendance Bonus plan also provides, apparently for consistency with (3), above, that when 2 or more days are scheduled "off' by Respondent in an employee's scheduled workweek the Attendance Bonus hour may not be accrued for that week. The United States Court of Appeals for the Fourth Circuit enforced the Board's Order in Flor- ida Steel Corporation.4 Thereafter, the parties, at an Indiantown negotiating session on October 28, 1976, agreed to implement retroactively certain fringe benefits including the time bank plan in the same manner as had been implemented to other employees. The plan was implemented on Novem- ber 11, 1976, and Respondent has made retroactive credits of all bonus hours due employees. These credits were made as part of the post-enforcement compliance procedure cited at 220 NLRB 1201 (1975), as reviewed and approved by the General Counsel. In a case involving Respondent's Charlotte plant, the U.S. Court of Appeals for the District of Co- lumbia Circuit enforced the Board's Order in Flor- ida Steel Corporation.5 The Board ordered Re- spondent to grant the Charlotte unit employees fringe benefits which were implemented at non- union plans but withheld at Charlotte because the Union had filed a representation petition. Pursuant to an agreement reached at a negotiat- ing session at Charlotte on December 20, 1976, the parties on January , 1977, implemented retroac- tively certain fringe benefits, including the time bank plan, in the same manner as it had been given to other employees. Respondent has made retoac- tive credits for all bonus hours due employees, and these credits were made as part of a compliance ' Respondent its revised policy to add his fourth excepliot on ( )cto- ber 3, 1976 E4 ilfd 58 t 2d 324 (41h Ciir 1976) The oard had ordered Responld- en to grant all employees ill the appropriate unit at Inldlanltw ll all the fringe hnelfits granted to the enipIlyces of Responideit corporalev,ide. retlroaliVt. Il the linme that uch grants were originally nmade 22t NIRl 2)i 1975) (then-Meniher Ialllting dissntinTg III per! ti ihe failure to adopt he renicd( o the Adiniiistrali 1.a Jutlge oi tlhe discrinimitilorl ithh vlild age Itlcrise), enid S42 2d 8W 41I)( (ir 19761 procedure in the Charlotte case, as reviewed and approved by the General Counsel. In contract negotiations at Indiantown and Char- lotte following the implementation of the "Attend- ance Bonus (time bank plan)," the application of the plan has resulted in a problem of interpretation. Five employees participated in the negotiations at Charlotte and three employees participated in the negotiations at Indiantown for a period since June 1, 1976. At both Charlotte and Indiantown, negoti- ations took place during the normal working hours of some of the participating employees. 6 The Union, not Respondent, compensated employee ne- gotiators for the time they spent in negotiations. Respondent considered employees attending the negotiating sessions during working hours as not present for work for purposes of the Attendance Bonus. Therefore, such employees were disquali- fied, in accordance with the terms of the policy, from receiving a one-half Attendance Bonus hour for the week during which they attended the nego- tiating sessions. Negotiating sessions of either 1 or 2 days' duration have occurred at both Charlotte and Indiantown on a regular basis between June 1, 1976, and November 1979. B. Contentions of the Parties In the consolidated complaint, the General Counsel alleges that since on or about December 22, 1977, and continuing thereafter, Respondent has denied the accumulations of time bank credits to its employees Burl Combs, L. W. Weedon, John Holly, Alfred Moore, and Otis Hilton at its Char- lotte, North Carolina, location, and to James Spore- man. Frank Barson, and Ansilmo Modrigal at its Indiantown, Florida, location, for the weeks in which they respectively participated in negotiating sessions and that Respondent denied the accumula- tion of time bank credits to its employees because said employees engaged in union activities or in concerted activities with other employees for the purpose of collective bargaining or other mutual aid and protection. The General Counsel thus alleges that Respond- ent violated Section 8(a)(l) and (3) of the Act by engaging in such unfair labor practices. Respondent's answer denied that it engaged in unfair labor practices and contends that the em- ployees' absence from work to attend negotiating sessions should be treated as essentially voluntary, which is in the control of the employee, rather than involuntary, or in some degree attributable to Respondent; that it treats employees participating Rt' potil'in, 1,1 Iiw I dlted Mu1q 2., 197,. ,1Ittd to IIti III {hi t'x i1 riiiii i i ll. 1\ ' 1.11TL (c;11 1 C !Xllltl 'S. *111il'1 i.. 1( l.r h 11 g1ts cn. ling, r 1 <.ksL, i .kTi 1 I.> t, ;,. 1a1 (II11 1 Cll pl, ll I lr[arllrilln *III 111 I ce FLO(RIDA STEEL CORPORATION 197 in negotiations no differently than it treats any other employee who chooses to leave work during scheduled work hours for personal reasons; that the time bank Attendance Bonus is like an hourly wage, which is a benefit accruing only for time spent on the job; that employers are not required to pay wages to employees for time spent attending negotiating sessions or for acting as union observ- ers during elections; and that, while an employer is not permitted to discriminate because of union ac- tivities, he is not required to subsidize those activi- ties. C. Conclusion We find that the stipulated record in this case does not establish a violation of Section 8(a)(l) and (3). The stipulated record shows that employees at- tending bargaining negotiations do not fall within the scope of any of the four written exceptions set forth by Respondent to its requirement that em- ployees are required to be present for all regularly scheduled hours during the workweek in order to accrue one-half hour of Attendance Bonus. The ex- ceptions to Respondent's rule apply to those em- ployee absences which are caused by Respondent, directly or indirectly, i.e., an injury on the job, an appearance in court as a witness for Respondent, certain shift changes, or the occurrence of two company-paid holidays during the same week. Clearly, serving as union negotiator is not an ex- ception and such service is not at the behest of Re- spondent. The Attendance Bonus or time bank plan was implemented by Respondent to provide employees with accumulated paid personal time for absences which might be caused by illness or personal busi- ness. Respondent benefited from the plan inasmuch as its rate of employee absence was greatly cur- tailed. We find merit in Respondent's contention that the time bank Attendance Bonus is comparable to an hourly wage, which is a benefit accruing only for time spent on the job. We so find. The record also shows that Respondent, at both its Charlotte and Indiantown plants, had agreed through negotiations to implement the time bank plan at those two plants as it had otherwise corpor- atewide, and that such implementation was part of its compliance with the prior Board decisions in- volving Charlotte and Indiantown, which were en- forced by the courts of appeals. Although Re- spondent has had a less than exemplary record with respect to its prior dealings with its employees and their representatives under the Act,7 and it has I Se Iordu S (rporuti,, 214 NlRI 264 (1974 1, 215 NIRII 97 (Iq74) 220 NlRBl 225 0(I751 : 2207 NIRI 21) 0I 5,) 220/ N R 1201 previously been found, as set forth above, to have violated the Act by denying any time bank Attend- ance Bonus at both the Charlotte and Indiantown plants, there does not appear to be any evidence in the stipulated record to support a finding herein that Respondent was discriminatorily motivated when it denied the eight employee negotiators credit for time spent in contract negotiating ses- sions. Finally, the stipulated record shows that Re- spondent did not adamantly insist that negotiations occur during working hours, inasmuch as it offered by letter dated March 28, 1978, to meet in the evenings or on weekends to accommodate the Charlotte plant bargaining committee. Respondent thereby made it possible for employee negotiators at that plant to earn Attendance Bonus credits by accepting the invitation to meet at times which would not require absence from work. In view of the above, we find that Respondent, by denying the Attendance Bonus (time bank) credits to those employees, five at Charlotte and three at Indiantown, who served on the union ne- gotiating committee, for the time they spent in ne- gotiations which were held during working hours, was not discriminatorily motivated and did not vio- late Section 8(a)(l) and (3) of the Act. Accordingly, we shall dismiss the complaint in its entirety. CONCLUSIONS OF LAW 1. The Respondent, Florida Steel Corporation, is an employer engaged in commerce within the meaning of the Act. 2. United Steelworkers of America, AFL-CIO, is a labor organization within the meaning of the Act. 3. Respondent, by denying the accumulation of time bank credits to certain employees for the weeks in which such employees participated in contract negotiating sessions, did not violate Sec- tion 8(a)(1) and (3) of the Act. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board hereby orders that the complaint be, and it hereby is, dismissed in its entirety. (1975); 221 NlRB 554 (1975). 221 NLRB 100I (1975). 221 NLRB3 101(i (1975); 223 NIRB 174 (1976), 224 NLRB 45 (1975): 224 NLRB 587 (1976) 226 NI.RB 124 (197h6) 231 NI.RB 651 (1477); 231 NRB 927 (1477); 233 NI.R1 491 (1977); 242 NI.RB N, IO5 (1979); 244 NlRB No 61 (1"79) FLORIDA STEEL CORPORATION 1q7