Metro Steel Co.

METRO STEEL COMPANY Metro Steel Company and Edward J. Szczesny. Case I-CA- 13049 December 8, 1978 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS PENELLO AND TRUESDALE On September 6, 1978, Administrative Law Judge Julius Cohn issued the attached Decision in this pro- ceeding. Thereafter, Respondent filed exceptions and a supporting 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 brief and has decided to affirm the rulings, findings,' 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 Respondent, Metro Steel Company, Quincy, Massachusetts, its officers, agents, succes- sors, and assigns, shall take the action set forth in the said recommended Order. J Respondent has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to over- rule an Administrative Law Judge's resolutions with respect 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 reversing his findings. DECISION STATEMENT OF THE CASE JULIUS COHN. Administrative Law Judge: This case was heard before me in Boston, Massachusetts, on December 19-20, 1977. Upon a charge filed on April 27 and amended on June 7, 1977, by Edward Szczesny, the Regional Direc- tor for Region I issued a complaint on June 14, alleging that Metro Steel Company, herein called Respondent or the Company, violated Section 8 (aX)(1) and (3) of the Act. Thereafter, another charge was filed by Harold Morrison in Case I-CA-13768, upon which the Regional Director issued an order consolidating the cases, amended com- plaint, and notice of hearing dated November 16. 1977. At the hearing, counsel for the General Counsel moved to withdraw the complaint as to Harold Morrison and to sev- er Case 1-CA-13768 from this proceeding. Counsel for the General Counsel also moved to delete from the complaint the allegations relating to violation of Section 8(aX3) of the Act. These motions of the General Counsel were granted. There remains, therefore, the issue as to whether Respon- dent violated Section 8(a)(1) of the concerted activities. All parties were given full opportunity to participate, to produce relevant evidence, to examine and cross-examine witnesses, to argue orally, and to file briefs. The General Counsel and Respondent submitted briefs, which have been carefully' considered. Upon the entire record of this case and from my observation of the witnesses and their demeanor, I make the following: FINDINGS OF FACI I. THF BUSINESS OF THE COMPANY Respondent, an unincorporated division of Dorel Steel Corporation. which was organized under the laws of the Commonwealth of Massachusetts, maintains a principal place of business in Quincy, Massachusetts, where it is en- gaged in the fabrication, sale, and distribution of structural steel and related products. Respondent, in the course of its business operations, annually purchases structural steel and other goods and materials valued in excess of $50,000, which goods and materials are transferred to its Massachu- setts plant from States of the United States other than the Commonwealth of Massachusetts. Respondent also annu- ally ships products valued in excess of $50,000 from its Massachusetts plant to States of the United States other than the Commonwealth of Massachusetts. The complaint alleges, Respondent admits, and I find that the Company is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICES A. Background Respondent was organized in February 1976 as a part- nership and division of Dorel Steel Corporation. Basically it fabricates structural steel and operates on the theory that it could be more competitive, price-wise, by providing a complete package of structural steel, miscellaneous steel, and erection for a contractor. By April 1977, Respondent employed 18 employees in its shop. Dieter Klohn is vice president and general manager of Respondent and is re- sponsible for the entire operation. It was stipulated, and I find, that John Harkins, Sr., the plant superintendent, and Irving Hecht, who substituted for 2 months in 1976 while Harkins, Sr., was in the hospital and thereafter has been a working foreman, are and have been supervisors within the meaning of the Act. As early as April 1976, Respondent was visited by two representatives of Local 501 of the Iron Workers, who wanted to know its intentions as to a union shop. Klohn told them that his company was not as yet ready or set up 6R81 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to even talk about this subject. The union representatives accepted this then but returned on two other occasions in 1976, during which, as stated by Klohn, he was successful in keeping that union out. Actually, Klohn testified that it was his intent to keep a union out of his shop as long as he could. In October 1976, Klohn spoke about a union to his employees at a beer party conducted by the Company. He told the employees that he did not want a union because if it did not get what it wanted there would be a strike. He also told the employees that the Company was in no posi- tion to bear a strike, in view of the contracts it had to perform. At the same time, Klohn announced a 50-cent-an- hour across-the-board increase to all the employees. He then advised them to set up some sort of grievance or safety committee and elect two or three employees to rep- resent them and meet with him to discuss conditions. The employees then met and elected a committee consisting of Peter Russell and Fred Harkins.' B. Facts as to the Layoff of Edward Szczesny Szczesny was hired by Harkins, Sr., in April 1976, as a welder fitter. During the period of his employment he did welding, fitting, and on occasion some layout work. In 1976, Szczesny not only received the across-the-board wage increase of 50 cents granted by Respondent to all employees, but also a previous individual increase of 50 cents per hour. At the time that the employee committee was set up, Szczensy ran for election but was defeated by one vote. On April 21, 1977, Fred Harkins was appointed as ex- pediter and resigned from the committee. During lunch that day, the employees met in the cafeteria and unani- mously elected Szczesny to the committee. Russell, the continuing member of the committee, and Szczesny then discussed grievances and other matters with the employees. Among the demands put forth by the employees at this meeting were those for an additional holiday, sick leave days, 15 minutes time within which to cash paychecks, re- ducing the waiting period for employee eligibility for Blue Cross-Blue Shield, and a reduction in the amount of over- time that the employees were currently working. Szczesny wrote out these requests, as they were called, and later that afternoon he and Russell presented them to Harkins, Sr., in his office. Harkins told them that he would submit the list to Klohn for his consideration, indicating that the 15-min- utes period for cashing checks would be all right with him. I Fred Harkins. a son of John Harkins, Sr., was employed in the plant in various capacities. On April 21. 1977, Fred was given the position of expedi- ter, according to both Klohn and Harkins. Sr.. Szczesny had testified that. on that date, Harkins, Sr., announced to the employees that Fred had been promoted to assistant superintendent. The General Counsel has contended that Fred is a supervisor within the meaning of the Act. On this point, I credit the testimony of Klohn and Harkins, Sr., to the effect that he was an employee both in his original capacity and in the position of expediter suh- sequent to April 21. There is no probative evidence in the record to establish that Fred Harkins enjoyed or exercised the indiria of supervisory authorits as required by the Act. I therefore find that he is not a supervisor within the meaning of the Act. However, in evaluating the events hereinafter de scribed, it will be noted that Fred is the son of the plant superintendent and. moreover, in his position as expediter, he followed instructions directly from the front office. When Russell mentioned that some of the employees were getting tired of overtime, Harkins asked them to bear with him for another 4 or 5 weeks. At that point, Szczesny told Harkins that he would ask the fellows about this but could not force them. On April 22, John Harkins, Jr., told Szczesny that Fred Harkins would like to see him in the office.2 Fred Harkins, now an expediter, said that he thought Szczesny would go along with having the fellows work overtime, but a few of them left early that day. Szczesny replied that he had spo- ken to the men but had no control over what they did. Fred then said that was okay. Also that afternoon, Szczesny told the employees that they would have another meeting in the lunchroom the following Monday. On April 25, the employees met in the cafeteria after lunch. Among others at the meeting were Szczesny, Russell, John Harkins, Jr., and Irving Hecht. Russell began the meeting by stating that there was talk among the new people that they would like to get a union. Mudge, an employee, then asked Russell what would hap- pen to an employee who contacted a union and was then discharged or laid off.3 Russell replied that the other em- ployees would have to make a decision to walk out until that person is reinstated. John Harkins, Jr., said that he did not think a union was a good idea because it would get more benefits and raises, which would result in the employ- ees having to work harder and push out more work be- cause of the increased costs to Klohn. Hecht, an admitted supervisor, said he did not think a union was a good idea because the employees had a good thing going. At that, Szczesny told Hecht not to try to persuade the men against the Union because they could think for themselves. Szczes- ny said, if there was going to be a union, that was well and good, or, if the men did not want a union, that would also be well and good. Russell told the employees that the list of requests had been submitted to Klohn and suggested they give him a week to act upon it. On April 26, about 10:30 a.m., Harkins, Sr., called Szczesny to his office and told him there was going to be a production layoff and he was to be one of those laid off. According to Szczesny, he inquired of Harkins whether his election to the committee and the proposals submitted had anything to do with his layoff. He stated that Harkins did not reply to this query but merely said this was the way it was going to be. He told Szczesny to turn in his tools and gave him his check. Harkins' account of the interview does not vary too much from that of Szczesny, but he expanded somewhat on it. Harkins stated that he told Szczesny there was a backup on the job on which they were working and the Company was going to set up for a new expansion joint 2John Harkins. Jr.. another son of Superintendent Harkins. was em- ployed in the yard painting structural steel and loading and unloading. It is contended by General Counsel that he is a supervisor because he directs a crew of employees in these activities. However, the uncontradicted testi- mony of Respondent's witnesses is to the effect that when Harkins. Jr., required assistance, he would speak to the superintendent or one of the foremen, who would tell him to ask certain people to help him. He would then relay this instruction to whoever was designated, and those employees would then go to the yard and do the painting or loading or unloading, as needed. There is no evidence that Harkins. Jr., either possessed or exercised the duties of a supervisor as set forth in the Act. I therefore find that John Harkins. Jr . is not a supervisor within the meaning of the Act. 3Mudge is related to a third son of Harkins. Sr.. by marnage. 682 METRO STEEL COMPANY job, which would require more layout people. He said that he told Szczesny that the latter was the only one doing fitting work who was not qualified as a layout man. How- ever, Harkins also said that, when Szczesny asked him if it was because of mistakes he had made, he replied that the layoff was due to the ending of the job. Harkins acknow- ledged that Szczesny told him he thought that he was being fired because of the requests made by the committee and that Harkins thought that he may be getting involved in bringing in a union. However, Harkins denied ever discuss- ing unionization with Szczesiiy. That same afternoon, several hours after Szczesny was laid off, Klohn called a meeting in the shop of his employ- ees. He informed them that he would grant I week's paid vacation after a year of employment and 15 minutes to cash paychecks on Friday. He also said that he would al- low an additional holiday, making a total of seven paid holidays. However, he informed the employees that he could not honor the request to reduce waiting time for eli- gibility on the hospitalization, and would not consider sick days because such a benefit was not common in the indus- try. C. Discussion Clearly, Szczesny was involved in concerted activity upon his election to the committee on April 21. The com- mittee immediately met with the employees and requests were formulated and submitted to Respondent. Equally clear is the fact that Respondent had knowledge of these activities, as Szczesny submitted the employees' proposals in person to Harkins, Sr., for their forwarding to Klohn. These, incidentally, were written, and dealt with economic benefits to the employees, apparently the first time this had occurred. In addition, the meetings of the committee were attended by Hecht, an admitted supervisor, as well as John Harkins, Jr., and Mudge, who was also somewhat distantly related to Harkins, Sr. Klohn testified at length with regard to his feelings and ideas as to unions. He detailed how he was able to put off the organization of the shop by the Iron Workers Union by informing its representative that he was not "ready" and that his company could not afford a union. He specifically stated that it was his "intent to keep a union out of my shop as long as I could." He averred that as of the date of the hearing he had been successful in this endeavor. It is thus established that Szczesny was engaged in concerted activity, that Respondent was aware of it, and that Re- spondent harbored animus towards unions. Also in this latter connection, it is noted that at a meeting of the com- mittee during which the employees were formulating their demands, there was some talk of union and, indeed, an exchange on this subject occurred between Szczesny and Hecht. The question then remains as to whether Szczesny was terminated because of his activity or for other reasons, as suggested by Respondent. As previously noted, at the time of his layoff, Szczesny was informed by Harkins, Sr., that the reason for such ac- tion was the conclusion of the work project being per- formed by the Company. In a letter to the Board's Region- al Office, Respondent added to this that the shop would now change to a project providing for the fabrication of expansion joints for bridges, and the employees laid off 4 had little or no experience with this type of work and did not have required welding certifications. In their testimony at the heanng, Klohn and Harkins, Sr., also added the ex- pansion joint project as a important reason for the layoff. In addition, they asserted that Szczesny did not have suffi- cient skill at layout work to be continued on this new proj- ect, nor was he certified for submerged arc welding. Final- lv. Klohn and Harkins. Sr.. emphasized to a great extent at the hearing that Szczesny was prone to errors which cost the Company a good deal of time and money to rectify. In the overall circumstances of the situation, I find that Respondent's asserted reasons were in some respects con- tradictory, shifting, and, on the whole, pretextual. For ex- ample, with regard to Szczesny's alleged mistakes, Harkins. Sr., testified that when he told Szczesny of the layoff, the latter himself brought up the question of mistakes. He said Szczesny remarked that Harkins "was against him on ac- count of the mistakes that he had made." Harkins testified that he told Szczesny he was not against him because of any mistakes and that this was simply a production layoff. Despite this direct testimony as to the reason for the layoff, Harkins. Sr., continued to elaborate on the number and type of mistakes Szczesny had made during the course of his employment. Oddly enough, the last of these suppos- edly occurred in January 1977. Suffice to say that Szczesnv was never disciplined or terminated for any of these al- leged costly mistakes. When asked about this with regard to one such mistake some time ago, Klohn said that he was unable to let Szczesny go because he needed him. Although Respondent contended that the layoff was necessary because of the conclusion of the project upon which it was working, it appeared that immediately there- after Respondent began a night shift. hiring additional em- ployees, including welders. It is also admitted that, during the time of the layoffs and immediately thereafter, Respon- dent's employees were working a good deal of overtime. Moreover none of this activity was really in connection with the new expansion joint project but was actually spent on the job which Respondent asserts was almost complet- ed. If work was still necessary on that job, and overtime 5 and new employees were required, and even assuming Szczesny was not sufficiently capable of working on the new project, there was no apparent reason for the hurry to terminate him before the old project was actually complet- ed and the new one began. Even with respect to Szczesny's lack of a certificate as a submerged arc welder, it has not been clearly established that Szczesny was incapable of learning this work and becoming certified, if given the op- portunity, as was the case with other employees who later received certificates from the inspecting authority. As to the layoff of the four people on the same day, the three employees other than Szczesny were comparatively new, one of them only a trainee, while Szczesny himself was a rather senior employee with Respondent. In sum, the uncontroverted facts are that Szczesny was 'Three other employees were laid off a t'ie same time as Szczesn, ' II will be recalled that on April 21 Halkins, Sr, requested the committee to bear with him on overtime for 4 or 5 weeks. 683 DECISIONS OF NATIONAL LABOR RELATIONS BOARD elected to the committee on April 21, replacing the son of the production manager. Within a matter of hours, the committee then met with the employees and formulated certain economic demands which were immediately trans- mitted by Szczesny to the plant superintendent in writing for the first time. In the next 2 or 3 days, there were other meetings in the course of which other employees suggested the possibility of joining a union. Although not taking a position in favor thereof, Szczesny, in the presence of Sup- ervisor Hecht, defended the rights of these employees to discuss the possibility of a union. On April 26, a weekend having intervened, Szczesny was laid off. Within hours Klohn met with the employees and granted some of the requests that had been made. I find for all the foregoing reasons that the contentions of Respondent are pretextual and Szczesny was laid off or terminated because of his concerted activities on the committee, for presenting the requests of the employees to Respondent, and because of Respondent's fear that ultimately he might be instrumental in bringing a union to the premises. By this conduct Re- spondent violated Section 8(a)(l) of the Act. III. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section 11, above, occurring in connection with the operation of Re- spondent described in section I, above, have a close, inti- mate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. IV. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, I shall recommend that it be ordered to cease and desist therefrom and to take certain affirma- tive action designed to effectuate the policies of the Act. Having found that Respondent laid off Edward Szczes- ny because of the protected concerted activities in which he was engaged, I shall recommend that Respondent be ordered to offer immediate and full reinstatement to Szczesny to his former position, or, if no longer available, to a substantially equivalent position, without prejudice to his seniority or other rights and privileges, and make him whole for any loss of earnings or any monetary loss he may have suffered as a result of Respondent's unlawful con- duct, less interim earnings if any. The amount of backpay shall be computed in the manner set forth in F W. Wool.- worth Company, 90 NLRB 289 (1950), with interest thereon to be computed in the manner prescribed in Florida Steel Corporation, 231 NLRB 651 (1977).6 CONCILUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(6 ) and (7) of the Act. 6 See, generally. Isis Plumbing & Heating ('o. 138 NL RB 716 (1962). 2. By discharging Edward Szczesny for engaging in pro- tected concerted activity, Respondent has violated Section 8(aXI) of the Act. 3. The aforesaid unfair labor practice is an unfair labor practice within the meaning of Section 2(6) and (7) of the Act. Upon the foregoing findings of fact and conclusions of law, upon the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER 7 The Respondent, Metro Steel Company, Quincy, Massa- chusetts, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Interfering with, restraining, or coercing employees by discharging employees for engaging in concerted activi- ties. (b) In any other manner interfering with, restraining, or coercing employees in the exercise of rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action designed to ef- fectuate the policies of the Act: (a) Offer Edward Szczesny immediate and full reinstate- ment to his former position or, if that position is no longer available, to a substantially equivalent position, without prejudice to his seniority or other rights and privileges, and make him whole for any loss of earnings he may have suf- fered as a result of his discharge by Respondent in the manner set forth in the section of this Decision entitled "The Remedy." (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all pay- roll records, social security payment records, timecards, personnel records and reports, and all other records neces- sary to analyze the amount of the backpay due under the terms of this recommended Order. (c) Post at its place of business at Quincy, Massachu- setts, copies of the attached notice marked "Appendix." 8 Copies of said notice, on forms provided by the Regional Director for Region 1, after being duly signed by Respon- dent's representative, shall be posted by Respondent imme- diately upon receipt thereof and be maintained by it for 60 consecutive days thereafter, in conspicuous places, includ- ing all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or cov- ered by any other material. (d) Notify the Regional Director for Region 1, in writ- ing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. 7In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board. the findings, 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. s In the event that this Order is enforced by a Judgment of the United States Court of Appeals. the words in the notice reading "Posted by Order of the National Labor Relations Board" 'hall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National labor Relations Board." 684 METRO STEEL COMPANY APPENDIX NOTICE To MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT interfere with, restrain, or coerce our employees by discharging them for engaging in pro- tected concerted activities. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of rights guaranteed them by Section 7 of the National Labor Relations Act, as amended. WE WILL offer Edward Szczesny reinstatement to his former position or, if that position is no longer avail- able, to a substantially equivalent position without prejudice to his seniority or other rights and privileges. WE WILL make Edward Szczesny whole for any loss of earnings he may have suffered as a result of our unlawful action against him. METRO STEE. COMPANY 685