Merit Stainless Steel, Inc.

466 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Merit Stainless Steel, Inc. and International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, UAW and Donald Larck. Cases 7-CA-15740, 7-CA- 15771(1), (2), 7-CA-15931, 7-CA-15987, and 7-CA-16120 May 13, 1980 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND PENELLO On February 19, 1980, Administrative Law Judge Bruce C. Nasdor issued the attached Deci- sion in this proceeding. Thereafter, the General Counsel filed exceptions 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 the answering brief and has decided to affirm the rul- ings, findings,' and conclusions of the Administra- tive 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 Respondent, Merit Stainless Steel, Inc., Roseville, Michigan, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. 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. 188 F.2d 362 (3d Cir 1951). We have carefully examined the record and find no basis for re- versing his findings. DECISION STATEMENT OF THE CASE BRUCE C. NASDOR, Administrative Law Judge: This proceeding under Section 10(c) of the National Labor Relations Act, as amended, was heard pursuant to due notice on May 22 and 23, 1979, at Detroit, Michigan. The order consolidating cases, third amended com- plaint and notice of hearing, alleges that the Respondent, Merit Stainless Steel, Inc., terminated the employment of Donald Miller, in violation of Section 8(a)(1) and (3) of the Act, and demoted Donald Larck, in violation of Sec- 249 NLRB No. 79 tion 8(a)(3) and (1) of the Act. Also alleged are various violations of Section 8(a)(1) of the Act, including, but not limited to, the institution of previously nonexistent rules in order to undermine union support, threats to ter- minate employees because of their union sympathies, re- scission of benefits because of union support and sympa- thy, and removal of union literature from Respondent's bulletin board. Upon the entire record, including my observation of the demeanor of the witnesses, and after due considera- tion of the brief filed by Respondent, I make the follow- ing: FINDINGS OF FACT 1. JURISDICTION Respondent is engaged at its Roseville, Michigan, plants, in the processing and slitting of stainless steel products. During the fiscal year ending May 31, 1978, which period is representative of its operation during all times material herein, Respondent, in the course and con- duct of its business operations, manufactured, sold, and distributed at its Roseville, Michigan, plants products valued in excess of $50,000, of which products valued in excess of $50,000 were shipped from said plants directly to points located outside the State of Michigan. Re- spondent maintains another plant in the State of Tennes- see. Respondent's plants located at 28332 Hayes Road, Roseville, Michigan, are the only facilities involved in this proceeding. I find that the Respondent is an employ- er engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. LABOR ORGANIZATION It is admitted, and I find, that International Union, United Automobile, Aerospace and Agricultural Imple- ment Workers of America, UAW (hereinafter referred to as the Union), is, and has been at all times material herein, a labor organization within the meaning of Sec- tion 2(5) of the Act. 111. THE ALLEGED UNFAIR LABOR PRACTICES In late September 1978,2 Donald Miller contacted a union representative for the purpose of organizing em- ployees at Respondent's plant. Thereafter, on October 26 or 27, Herbert A. Zalopany, an International representa- tive and organizer for the Union, met at a cocktail lounge down the street from the plant with Donald Miller, Donald Larck, Bob Rietman, and David Andrze- jewski. On November 1, Zalopany again met with Miller and Larck. On the following day, November 2, Miller and Larck passed out handbills on their lunch break and after work. They also signed and distributed union au- thorization cards. Garland Charles Stamey, the shop supervisor, readily admits his knowledge of the fact that both Miller and Larck were handbilling. ' Although, on the record, counsel for the General Counsel assured me he would file a convincing brief, he apparently decided that the case did not merit a brief. 2 All dates are in 1978 unless otherwise indicated MERIT STAINLESS STEEL, INC. 467 Record testimony elicited from Bernard Cipa, vice president of Respondent, and Raymond Hood, supervisor of engineering for Fisher Body, sets forth Respondent's production problems in fulfilling its contractual obliga- tion to Fisher Body, a Division of General Motors. Re- spondent textures a blank of stainless steel, which it fur- nishes to Fisher Body to be used in the Cadillac, El Dorado, Biarritz. It utilizes a particular machine for this operation which the layman would call a polishing ma- chine, although Hood, an expert in this regard, would not characterize it as such. For purposes of simplicity I will refer to it simply as "the machine." According to the record testimony, this contract between Respondent and Fisher Body was Respondent's largest and most lu- crative contract. In mid-December 1978, the record is clear, Respond- ent's production process was stymied. Fisher Body as- signed Hood to Respondent's plant so that he could at- tempt to get this machine in working order. All the wit- nesses, including Larck, were in agreement that the ma- chine was breaking down practically every day. Larck had been employed by Respondent on a prior occasion; he quit and went to work for Otis Elevator. After being laid off from Otis Elevator, he approached Stamey and requested that he be rehired to any position for approximately I-year duration because he was on the waiting list to be hired at Haughton Elevator. Larck tes- tified that he quit Respondent the first week in April 1978, prior to his scheduled vacation, and commenced to work at Haughton Elevator the following Monday. Larck was rehired 2-1/2 months later in a production job and gradually worked from time to time with Carl Bender as a maintenance helper on the machine. When Bender retired, Larck replaced him in full-time mainte- nance on the machine. He worked with Joseph Las- kowski, a foreman, and Roger Stinbrink, the machine op- erator. Miller worked on this machine and also other equipment. Hood testified that the machine was in a very sad state of affairs. According to Hood the reason was that they just could not keep the machine in operation. During a 4-week period in December, and probably early January, Hood spent 8 to 15 hours a day in the plant attempting to rebuild and service the machine. He testified that, based on his observation of maintenance procedures, the maintenance department in his opinion lacked expertise. Hood testified that the problems with the machine were caused specifically by Larck, Laskowski, and Stinbrink. Although he did not initially know the names of the indi- viduals, he identified them in a lineup procedure. Hood testified that he apprised management of the fact that he thought the maintenance people were not treating the machine as it should be treated. Larck recalled that he and Miller were working on the machine in October 1978. According to his testimony he was advised by James Golden, president of Respondent, that if he and Miller did not have the machine "put to- gether" within 3 days they would no longer have their jobs. After 5 days he and Miller advised Golden that they could not get it done, and it was impossible to have the job done in less than 2 weeks. Larck testified that, upon completion, Golden told him and Miller they should feel proud of themselves because they had done a very fine job. On or about January 6, 1979, Larck, Laskowski, Stin- brink, and Dave Sarocka were working on the machine. They found it necessary to disassemble a part of the ma- chine and they had a difficult time removing a nut which had, in the words of Larck, "messed up the threads." After putting new bearings in the machine and reassem- bling it, replacing all the parts, Larck and the others no- ticed that there was a part lying on the floor which had been left out after the machine had been completely reas- sembled. According to Larck, Laskowski asked him if he, Larck, thought that the part should be put back in and Larck responded that he did not believe it was nec- essary and they agreed they may as well leave it out. The machine again failed and production came to a halt. As stated earlier, Hood identified Larck, Laskowski, and Stinbrink in a "line-up" as the maintenance employ- ees who were responsible for the malfunctions and prob- lems on the machine.3 Later in the day on January 6, 1979, Larck met with James Golden, president of Re- spondent, and Bernard Cipa, vice president. At the meet- ing, which was initiated by Larck, Golden advised Larck that he was being transferred from maintenance into pro- duction because Golden felt that he was not competent to perform maintenance work. Indicative of his lack of qualifications was the incident that had occurred on the machine when the part was left out. According to Cipa, who was present at the time, Larck stated that he was not capable of knowing the components or what was necessary or not necessary to the machine. Furthermore, according to Cipa, Larck stated he did not have techni- cal knowledge, schooling, or training to be classified as a maintenance man. Although the transfer is a lateral one in the sense that the pay is the same, Larck testified that he earned less money because he worked less hours as a production employee. He denied admitting to Golden a lack of competency or knowledge. Larck admitted that Laskowski, his foreman, criticized him in that he "messed up" and for other failings in his maintenance work. Larck testified that Laskowski's criti- cisms were made jokingly. Larck admits that he under- stood Hood was present to supervise the production on the machine and that he engaged in several discussions with Hood as to how to improve production efficiency and to keep the machine functioning. On January 6, the day when Larck was working on the machine, he was accompanied in his work by three other employees. Laskowski, the foreman, was the only individual who was in the maintenance department. The other employees, Sarocka and Stinbrink, were produc- tion employees. Therefore, there was no need to transfer them into the production department because they were already in that status. Donald Miller was hired by Respondent in April 1978. His supervisor was Garland Charles Stamey, the shop su- pervisor. Miller's version of the termination is as follows. He was on his way to the maintenace department to get I Apparently Sarocka did not regularly work on the machine. MERIT STAINLESS STEEL, INC. 467 46X DE CISIONS OF NATIONAL LABOR RELATIONS BOARD some tools, when he observed Stamey standing at the timeclock with his arms folded and smiling. Miller testi- fied he went up to Mr. Stamey and said, "Seeing that we have to wear safety equipment such as a hard hat, how about you?" According to Miller, Stamey told him he was fired and Miller asked the reason. Stamey responded that he did not like the way Miller parted his hair. Miller went to the timeclock, punched his card, and, as he was walking out, Stamey told him to return the vest he was wearing because it was company property. Stamey's version is as follows. He was standing in the break area when Miller came up to him and said, "Get your fucking hard hat on." Stamey responded, "What?" Miller allegedly repeated the comment. Stamey testified, "I said, Miller pack it in your ass if you don't like what I am doing. Get the hell out." Miller inquired, did that mean he was fired and Stamey responded, "Take it any damn way you want." Miller then walked to the time- clock, punched his card, and went out the door. No one else was present during the exchange. A few days after November 7, the date of Miller's sep- aration, he returned to the plant and spoke to Cipa. He told Cipa that he thought he had gotten a bad deal from Stamey, and Cipa advised him that there was nothing he, Cipa, could do. He told Miller that Golden was in Ari- zona and that he should come back to the plant and speak to Golden when he returned. Miller admits that thereafter he returned to the plant parking lot for union literature but he never went into the plant to talk to Golden. There is evidence in the record which is uncon- troverted that Golden had an open door policy so that employees were able to discuss grievances or problems. Larck testified that he, himself, utilized this policy when he was transferred. Other individuals testified similarly. Alleged Violations of Section 8(a)(l) Miller testified initially that he and Larck were told by Stamey that because they were organizing they lost all of their previous benefits; that is, the trip to Las Vegas and a 50-cent bonus. He testified further that those eligi- ble for the 50-cent bonus had to have been with the Company for 8 years, and those eligible for the trip to Las Vegas had to be at the Company for I year. At this point in time, Miller testified he had been employed with Respondent 7 months. Later, he testified that he and Larck were told by Stamey that all of the employees lost their benefits. Larck testified that Stamey told him and Miller that he heard they were trying to organize the plant. According to Larck, Stamey told them, if they continued to try to organize a union in the shop, they would lose their Las Vegas trip and 50-cent-an-hour bonus. Miller testified it was his opinion that he and Larck were singled out be- cause Stamey thought that they were not doing the ca- pacity of work required and Stamey thought they were getting away with a lot of things that he himself could not get away with. These alleged threats, according to the testimony, occurred in October 1978. David Andrzejewski, a witness called by counsel for the General Counsel, testified that he attended the union meetings, signed an authorization card, and passed out union literature on the parking lot after work in the same manner as Miller and Larck. He also testified that he was sent on the Las Vegas trip and the Florida trip by the Company, in view of the fact that he met the -year em- ployment status criteria. Andrzejewski testified that no one ever told him that he would lose his bonus or any other benefits. According to him, this was rumored about the plant. Andrzejeswki testified further that there were verbal rules in the plant which were communicated from time to time; for example, a rule to wear a hardhat and var- ious safety rules. Andrzejewski, who has been with the Company 4 years, and is presently still employed there, testified that Respondent was aware of his union activity. According to his testimony, a supervisor, Tofey, sometime in No- vember 1978, discussed the Union with him, and Andrze- jewski made no bones about the fact that he was proun- ion. This is not alleged as a violation in the complaint and counsel for the General Counsel on the record spe- cifically stated that he is not asking for any remedy in this regard. Golden testified regarding the trip. Prior to Christmas 1977, he held a meeting in which he stated that business had been good and he wanted to share it with the people and therefore he was instituting a bonus system and was going to give them a gift. At this general meeting he ex- plained that there was a place in Florida he was going to send the groups of employees on a weekly basis, and pay for their air fare and money to rent an automobile. Ac- cording to Golden, he made a point that this was a gift whereas the 50-cent bonus belonged to the employees-it was their money. These trips were given I year to Flor- ida and I year to Las Vegas. Employee Christopher Tye, who has been employed by Respondent since September 1977, was called as a witness by the General Counsel. He signed a union card, served on the Union's organizing committee, and distrib- uted union literature and pamphlets. He also posted union literature on the Company's bulletin board. Ac- cording to Tye, there were two bulletin boards situated on either side of the timeclock, their size approximately 2 by 3 feet. Tye testified that state safety rules, envelopes containing employees' insurance forms, cartoon strips, baby pictures, and lost articles notices were posted on these bulletin boards. Tye testified that he knew of no rule against posting anything on the bulletin board, nor did he ever ask permission to post on the bulletin board. As stated earlier, Tye posted a notice on the bulletin board around November 12 and it stayed up for the entire shift, but was taken down somewhere between 6 and 6:25 a.m. Several days after November 12, Tye posted union literature again; this time it was a different notice. This stayed on the bulletin board from about I o'clock in the morning until 6:15. According to Tye, it was taken down by a rank-and-file employee and then reposted. Tye testified, although he did not pinpoint the time, that on one occasion he saw Charles Stamey remove union literature from the bulletin board. Tye also testified that, after Miller had been terminat- ed, he saw Miller on the parking lot sometime around the end of November or early December 1978, sitting in his car. According to Tye, he was on his way out for MERIT STAINL.ESS STEEL. INC. 469 lunch and Charles Stamey was standing at the door ap- proximately 2 feet from him. Tye testified that Stamey pointed to Miller and said that he was the guy that start- ed all the trouble, "He is the guy that took 'your' bene- fits away." Tye testified that he was married on January 11, and the next day he went to Charles Stamey for the purpose of borrowing some money. He had received a $100 advance sometime in the past. On this occasion, he was advanced $300. On January 15, 1979, Tye and ap- parently all employees were given a set of work rules with a cover letter, for which they had to sign a receipt. The cover letter related that in the future $100 will be considered the maximum pay advance available only to employees with a minimum of 6 months of service, and a good work record. Donald Miller testified, as Andrzejewski did that, when the Company wanted to impose rules they were never published, but were verbally communicated. Larck also testified that there were verbal rules in ex- istence which had been communicated to the employees. He gave as examples that the Company would not allow smoking marijuana, or drinking beer at lunchtime. Larck also related his testimony as to the written set of work- ing rules and compared them to the rules he had remem- bered which were in the past verbally communicated. He gave examples, again, drinking at lunchtime, failure to obey traffic rules, speeding, parking, safety cap and steel- toed shoes. Joseph Laskowski testified to have "written up" an employee for coming in late because this was a violation of a verbal rule. Conclusions and Analysis I am convinced by the preponderance of the evidence that Respondent's motivation for transferring Larck was not union animus but purely a decision based on business considerations. Larck's transfer was lateral, in that he re- ceived the same hourly rate, although he testified he earned less money because he worked less hours. Hood identified Larck as one of the individuals responsible for the costly interruptions in production on this machine. I fully accept the testimony of Respondent's witnesses as to the reason Larck was transferred. There were no other employees to be transferred. I also credit Cipa, that Larck recognized and admitted his lack of knowledge and skill in maintenance work. The record accurately reflects that Miller was indeed a disgruntled and dissatisfied employee.4 Early in his career at the Company he began complaining that he was not given enough raises and Stamey was giving raises to his, Stamey's, buddies. It was generally known that Stamey had a short fuse or a quick temper. I com- pletely credit Stamey's version and discredit Miller's ver- sion of what occurred on November 7, 1978. According- ly, in my opinion, Miller was fired for insubordination al- though in accepting Stamey's account it would seem that Miller was not actually told to punch his timecard. It does not matter; the result is the same. It may be conjec- ture, but based on the totality of the record, including the personalities involved, I think if Miller had backed down and perhaps apologized he might still be working 4 1t.t ippC;IrCd t C \aI/ 0Ia ohc n AICd - tdIld for Respondent. What is not conjecture and is supported by the record is that Cipa, Respondent's vice president, advised Miller to return to the plant, and discuss his ter- mination with Golden, the president. It is equally clear that, thereafter, Miller appeared on the premises of the parking lot, but did not see fit to approach Golden. My conclusions with respect to Larck and Miller are also based on the record evidence and testimony of other employees, who were known to be equally prounion, and as active as Larck and Miller, but were in no way threat- ened, harassed, or penalized. Alleged Violations of Section 8(a)(l) Stamey, whom I consider a credible witness, did not testify with respect to alleged threats made by him to Miller and Larck. There is no record denial. Therefore, Miller's and Larck's testimony stands unrefuted in the record. Accordingly, I conclude that Respondent, by its agent Stamey, threatened Larck and Miller with rescis- sion of employment benefits because of their union sym- pathies and activities. Tye's testimony regarding Sta- mey's comments, which is undenied, is without nexus to union activity, although I think it can be inferred. With reference to the allegation of the complaint that Stamey threatened to terminate the employment of sev- eral employees, there is an incident involving Larck, Stamey, and Miller. According to Miller's testimony there was an altercation with Stamey. Larck was also in- volved. Miller told Stamey that he, Stamey, better play it by the book. Stamey allegedly responded that before the day was out he would have Miller's and Larck's job. There is no connection or reference whatsoever to union organizational efforts or sympathies playing any part in this comment. Accordingly, I conclude that this allega- tion is without merit. Larck testified on direct examination that he was warned he would lose his job "if you did not have the work done." This obviously has nothing to do with union activity. I conclude that this statement is not viola- tive of the Act. The record is devoid of any testimony by Stamey with respect to the bulletin board allegation. There is evi- dence in the record that oil one occasion Stanley was seen removing union literature from a bulletin board. There is also evidence that a rank-and-file employee was seen removing union literature from the bulletin board. There is no testimony that anyone talked to Stanley about posting literature on the bulletin board nor is there any evidence that the Company had a rule or implement- ed one with respect to posting written matter on the bul- letin board. There is evidence that the union literature was reposted and for all this record reflects it nia still be on the bulletin board. Therefore, because of the isolat- ed nature of this incident, I will recommend that this al- legation be dismissed. As to the promulgation of written rules, I conclude, based on the weight of credible evidence, including testi- mony by the General Counsel's own witnesses. that these were preexisting rules. Nor is there any eidence in the record that the purpose of their codification was based on any union considerations. The Union has been certi- fied to represent the employees, and as the certified rep- MERIT STAINLESS STEEL. INC~~~~~~~~~~~~~. 6 470 DECISIONS OF NATIONAL LABOR RELATIONS BOARD resentative it has a right to ask the employer to negoti- ate, regarding any rule or rules that may give the Union or the employees a problem. This allegation is without merit. I do not find that Respondent violated the Act by in- stituting a monetary limit of $100 on employee pay ad- vances. Simply because one employee on the eve of his honeymoon received a $300 pay advance does not sup- port an inference or a finding that the limitations of $100 is based on any union considerations. I recommend dis- missal of this allegation of the complaint. With respect to the 50-cent bonus, the evidence re- veals that this has not been withheld. The trips to Las Vegas and Florida were in existence for 2 years, not much of a past practice, and the record is devoid of any evidence that they were discontinued because of any an- tiunion consideration. Accordingly, I will recommend dismissal of these allegations. 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 mean- ing of Section 2(5) of the Act. 3. By threatening employees with rescission of em- ployment benefits because of their union sympathies and support, Respondent has committed unfair labor prac- tices in violation of Section 8(a)(1) of the Act. 4. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. 5. The other allegations of the complaint are not sup- ported by substantial evidence. THE REMEDY Having found that Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act, I shall recommend that it be ordered to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I issue the following recommended: ORDER 5 The Respondent, Merit Stainless Steel, Inc., Roseville, Michigan, its officers, agents, successors, and assigns, shall: 5 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- I. Cease and desist from: (a) Threatening employees with rescission of employ- ment benefits because of their union sympathies, support, and activities. (b) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action which will ef- fectuate the policies of the Act: (a) Post at it plants located at 28332 Hayes Road, Ro- seville, Michigan, copies of the attached notice marked "Appendix."6 Copies of said notice, on forms provided by the Regional Director for Region 7, after being duly signed by Respondent's representative, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. (b) Notify the Regional Director for Region 7, in writ- ing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. IT IS ALSO ORDERED that the complaint be dismissed insofar as it alleges violations of the Act not specifically found herein. 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. a In the event that this 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 read "Posted Pursu- ant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT threaten employees with rescission of employment benefits because of their union sym- pathies, support, or activities. WE WIt.L NOT in any like or related manner in- terfere with, restrain, or coerce employees in the exercise of rights guaranteed in Section 7 of the Act. MERIT STAINLESS STEEL., INC.