United States Aluminum Corp.

UNITED STATES ALUMINUM CORP. 1079 Page 12, line 7, "union" should be "unit"; line 18 should read "TRIAL EXAMINER: The motions will be denied. Is there." Page 13 , lines 7 and 8 should read "Mr. GRONER : That the Board has petitioned for an order before the Fourth Circuit and the case was argued , V; line 10 strike out "not." Page 14, lines 13 to 16 should read "TRIAL EXAMINER: No newly discovered and not previously available evidence that you want to present ? (No answer.) So I guess that about completes it : it took us only 32 minutes." United States Aluminum Corp . and Delbert Markley, Jr. Case No. 21-CA-4994. April 2, 1963 DECISION AND ORDER On January 21, 1963, Trial Examiner Wallace E. Royster issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Inter- mediate Report. Thereafter, the General Counsel and the Respondent filed exceptions to the Intermediate Report and briefs in support thereof. Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman McCulloch and Members Rodgers and Fanning]. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Interme- diate Report, the exceptions and briefs, and the entire record in this case, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner.' ORDER The Board adopts as its Order the Recommended Order of the Trial Examiner.2 3 The General Counsel has excepted to the Trial Examiner 's failure to make additional findings with respect to certain statements made by President Linder and Superintendent Bernard to the diseriminatees which would buttress his conclusion that Respondent vio- lated Section 8(a) (3) of the Act. As these findings would merely be cumulative , we over- rule the General Counsel's exceptions. 2 For the reasons set forth in the dissenting opinion in Isis Plumbing & Heating Go, 138 NLRB 716, Member Rodgers would not award interest on backpay. The note below the signature line at the bottom of the page in the Appendix is hereby modified to read: NOTE -We will notify any of the above-named employees presently serving in the Armed Forces of the United States of their right to full reinstatement upon applica- tion in accordance with the Selective Service Act and the Universal Military Training and Service Act of 1948 , as amended , after discharge from the Armed Forces 141 NLRB No. 95. 1080 DECISIONS OF NATIONAL LABOR RELATIONS BOARD INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE This matter came on to be heard before Trial Examiner Wallace E. Royster in Los Angeles, California, on November 19 and 20, 1962,' upon the complaint of the Gen- eral Counsel of the National Labor Relations Board issued September 13, based upon the charge filed August 7. It is alleged that United States Aluminum Corp., herein called the Respondent, has discriminatorily discharged employees Delbert Markley, Jr., James Taylor, Melvin Clark, and Robert Dill in violation of Section 8 (a) (3) of the National Labor Relations Act, herein called the Act, and by promises of benefits, threats of discharge, and granting of a wage increase, has violated Section 8 (a)( 1 ) of the Act. Upon the entire record in the case, upon consideration of the briefs filed by counsel, and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The Respondent is engaged in Compton, California, in the manufacture of alumi- num products. During the year preceding the issuance of the complaint the Respond- ent imported from other States goods and materials valued in excess of $50,000 and in the same period shipped products from California to other States of the United States. The Respondent admits, and I find, that it is an employer engaged in com- merce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED Local 721, Cabinet Makers & Millmen, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, herein called the Union, is a labor organization within the meaning of Section 2(5) of the Act. For some period of time extending at least through June 30, the Respondent and the Union were parties to a collective- bargaining agreement covering Respondent 's employees III. THE UNFAIR LABOR PRACTICES The theory of the General Counsel, in essence, is that the Respondent became wearied of dealing with the Union. In order to escape this obligation the Respond- ent made promises and threats to its employees in an effort to cause them to withdraw their support of the Union, and discharged four employees in order to discourage union activity. Evidence in support of the complaint is to be found largely in the several testimonies of the four discharged employees. Delbert Markley, Jr., who became Respondent's employee on August 19, 1961, worked in the shipping department with James Taylor. Both were under the direct supervision of Foreman Edward Triviso. Respondent's answer admits the allega- tion of the complaint that Triviso is a supervisor and an agent of the Respondent. At the opening of the hearing, counsel for the Respondent asserted that this admis- sion was made improvidently and upon that representation was permitted to amend Respondent's answer to deny that allegation. The evidence makes clear that Triviso is in fact a supervisor within the Act's meaning, and I so find.2 Markley, a member of the Union, testified that on a date, which from other evidence I find to have been about the middle of April, he attended a union meeting and there voiced some criticism of certain working conditions in Respondent's plant. The following after- noon, still according to Markley, Bernard called him to his office and handed him his paychecks. Markley inquired why Bernard was taking this action and the latter said that Markley had been "shooting [his] mouth off" at the union hall about Bernard. Markley protested that he had said nothing about Bernard and that every- thing he had complained of at the union meeting concerned Foreman Triviso. Bernard suggested that Markley take some time off from work and if he later decided that he wanted to continue in Respondent's employ, he could return. As an alternative, Bernard said that he could go back to work and keep his mouth shut. Markley returned to his workplace. On May 2, during the lunch hour, Respondent's employees met with a union representative in the street adjacent to Respondent's 'plant. At I All dates are In 1962 unless stated otherwise 2 All production employees took their orders from Triviso His only function is super- vision Triviso has a desk in the office of Production Superintendent Charles A Bernard and, he testified, spends 95 percent of his time in the shop "seeing that the work is being done " UNITED STATES ALUMINTJM CORP. 1081 this meeting certain grievances against the Respondent were aired. The following morning Respondent's president, John Linder, gathered all of the shop employees in the plant and said that he had heard many rumors of dissatisfaction and desired to find out what the difficulties were. He asked a number of the employees if they had grievances and, when any were expressed, answered them. Speaking generally to all of the employees, according to Markley, Linder said that he could provide better insurance for the employees than the Union had and was willing to give an immediate raise. He added that the employees could continue to pay their union dues if they wanted to but that he would not sign another contract with that organization. James Taylor, who was hired by Respondent in May 1961, and who until his dis- charge worked in the shipping department with Markley, testified that he too attended the meeting of the Union about mid-April and that he spoke there concerning Re- spondent's seniority policies. The next afternoon, according to Taylor, he was called to Bernard's office where Bernard handed him his check, saying that he was paid to- date. Taylor asked for an explanation and Bernard answered that he had heard about Taylor and Markley going to the union hall and "shooting your mouth off." Bernard said that it was apparent that Taylor was not satisfied to work at Respondent's plant and that he should look for another job. Bernard said that he would leave Taylor's timecard in the rack for about 6 weeks and that Taylor could return to work at any time during that period. Alternatively, Bernard said that Taylor could go back to work, stay out of the Union, and keep his mouth shut. On the day of the union meeting across the street from Respondent's plant and after it had been held, Taylor testified, Bernard told him he was being given a 5-cent hourly increase, saying, "I want you to stay out of the Union. If you quiet down this union business going around the shop now, there might be more." The next morning, Tay- lor testified, Linder spoke to all of the shop employees saying that he wanted to find out what the troubles were. After inquiring of several individuals about grievances, Linder said that he was tired of devoting valuable time to dealing with the Union and that he would sign no contract with it. He told the employees that he would pay them more money and get them better insurance if they would assist him "in throwing the union out." Melvin Clark, testifying about the occasion on May 3 when Linder spoke to the employees, said that Linder offered them better insurance and a 10-cent wage increase and said that he would never sign a contract with the Union. Robert Dill, in respect to the same meeting, testified that Linder said he could get them a better insurance plan and was willing to grant a 10-cent wage increase. Linder said that he could do "perfectly well" without the Union and that he did not intend to sign a contract with it. Donald Givens, a witness for the Respondent, in respect to this meeting, testified only that he believed there was some mention of an insurance program. Another such witness, Kenneth Yamato, testified that Linder mentioned a hospitalization plan and merit increases. James Thomas testified that a medical plan was mentioned and that there was some suggestion of merit increases. Felix Saldana testified that Linder mentioned merit increases and that he had put money into a bank so that employees would not lose insurance benefits if the Union was "kicked out " President John Linder testified in a rambling and discursive fashion that he called the meeting of the employees in order to learn why there was so much dissatisfaction . According to Linder, some employee brought up the question of health and welfare insurance. Linder told the employees that the office workers had dropped the insurance carrier used by the Union and that the union plan was collecting $3 in premiums for every dollar of benefits. Linder told them that if they dropped out of the Union they would be covered by the same insurance plan as the office employees. In response to a question of what would happen to employees who abandoned the Union, Linder answered that they would save their monthly dues and, in response to a further question, that he would protect their seniority and deal fairly with them. Linder said, he testified, that there would be no raises negotiated with the Union that year because of the competitive situation in the industry. Linder asked the employees if they did not think it would be better to keep the wages they had than to force the closing of the plant by increasing labor costs beyond a tolerable limit. Linder testified that Markley, Taylor, Clark, and Dill appeared to be dissatisfied with their jobs and that this dissatisfaction was reflected in their work So, in the hope of improving their attitudes, he instructed Bernard to call each of them into the office and present each with his check in full. Bernard was then to tell these employees to go out and look for a better job and if they decided at any time within 6 weeks to return, they would be permitted to do so. As an alternative, Bernard was to instruct them they must improve their work performance or suffer discharge. 1082 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Bernard testified that on this mid-April occasion he called Markley to the office, gave him his check, and suggested that he take 6 weeks off to hunt for a job, holding out the privilege of returning at any time . Bernard denied that there was any men- tion of the Union in this conversation with Markley and did not mention in his testimony that Linder had instructed him to take this approach with Taylor, Clark, and Dill as well. Bernard was not questioned about his conversation with Taylor on a similar occasion and Taylor's testimony in that respect stands undenied. It is evident that neither Clark nor Dill was spoken to by Bernard on the proposition of taking time off to look for other work. The testimony of Markley, Taylor, Clark, and Dill concerning the remarks made by Linder at the meeting of the shop employees in mid-April is controverted in no important aspect except by Linder. Even Linder conceded that in speaking to his employees he discussed the inadequacy of their hospitalization program under ar- rangement with the Union and told them that they could expect no wage increase to be negotiated with the Union. I find that the testimony of Markley, Taylor, Clark, and Dill merits belief and that on the occasion being discussed Linder told the em- ployees that without a union he would be able to obtain a more satisfactory hospi- talization plan for them and held out the possibility of a wage increase I further find that Linder then told the employees that he would not sign a contract with the Union. The testimony of Markley and Taylor concerning what Bernard said to each of them,when he handed them their checks in mid-April is credited. The explanation offered by Linder, that he had directed Bernard to ask Markley, Taylor, Dill, and Clark to take time off to seek more congenial work in the hope of shocking all four of them into a realization of their shortcomings and to bring to them an awareness that their jobs were, after all, desirable, is not believed. Bernard made no mention of such an instruction in his testimony, did not deny the account given by Taylor as to what passed between them, and made no reference to any intent to speak in similar fashion to Dill or Clark Bernard testified that with the prior approval of Linder, he gave a 5-cent hourly increase to Taylor on May 2 in a further attempt to persuade Taylor to improve his work attitude and performance. Taylor's testimony about this conversation is credited I find that the increase was granted to Taylor on May 2 for the reason attributed to Bernard in Taylor's testimony, to persuade Taylor or to influence him to abandon his interest in the Union. Markley, Taylor, Clark, and Dill believed that the contract running between the Union and the Respondent expired on June 30. This belief, apparently shared by other employees, gave rise to some speculation among them concerning the possi- bility of a strike. Markley and Taylor testified that when they came to work on Monday, July 16, there was a discussion among employees, before starting time, about a possible strike that day. Markley telephoned a representative of the Union and informed him of this circumstance. The employees began work and during the morning coffee break met in the plant with a union representative who advised them that the time was not propitious for a strike and urged them to remain at work. Markley, Taylor, Clark, and Dill, dissatisfied with the failure of the Union to obtain a contract, discussed the matter during the lunch period that day. In consequence, Markley drafted and each of the four signed a document which read: "We the under- signed petition our Local Union No. 721 to have a special meeting regarding work without a contract." Returning to work that afternoon, this petition was left for a time at the work station of Taylor and Markley within view of passersby. Markley testified that Foreman Triviso saw the document and asked what it was Markley gave a noncommittal answer to which Triviso replied, "Well, looks like something to get you in a bunch of trouble to me " 3 Later in the day, still according to Markley, Triviso returned and asked if he might sign it. Markley replied that Triviso's signature would do no good and that he thought he should not do so. Triviso, a member of the Union although a foreman, conceded that he inquired about the petition and that he read it According to Triviso, the petition received in evidence is not the one which he saw on this occasion and that the wording on the one he recalled was to the effect that the signers refused to work without a union contract and demanded action of the Union. Triviso agreed in his testimony that he saw the signatures of Markley, Taylor, Clark, and Dill on the document. At 4:30 that afternoon, at the close of the workday of Clark and Dill, but an hour before the end of the shift worked by Markley and Taylor, all four were discharged by Bernard 3 Undenied and credited testimony of Markley. UNITED STATES ALUMINUM CORP. 1083. Bernard testified that for several months the theretofore satisfactory work per- formance of the four men had deteriorated and that President Linder had on a number of occasions complained to Bernard that the four men were loafing, talking, staying away from their work stations, and, in general, refusing to perform the jobs for which they were paid. Bernard testified that he spoke to Markley in particular on a number of occasions about his deficiencies, and less frequently to Taylor, Clark, and Dill? According to Bernard, on each occasion of criticism, the employee to whom it was addressed would promise to reform but that any reformation was shortlived. On July 16, still according to Bernard, Linder complained again to him about the failure of the four men to perform their work. Bernard, he testified, spoke to each of them and told each that he was courting discharge. About noon, according to Bernard, Linder again brought the matter up. Bernard explained to Linder that he had spoken to the men that morning and Linder, saying in effect that warnings seemed to have no effect, told Bernard to discharge the men at 4:30 that afternoon. Linder testified that he had long been dissatisfied with the work attitude and per- formance of the four men; that each was away from his work station on the morning of July 16; and that before noon on that day he instructed the bookkeeper to draw up final checks for them and told Bernard to make the discharges. Linder conceded that he heard something about a petition but denied that he had any knowledge concerning that document prior to deciding upon the discharges. I am convinced and find that the Respondent in the spring of 1962 desired to rid itself of the necessity of further dealings with the Union. To enable it to escape this obligation the Respondent first sought to frighten Markley and Taylor, who it had reason to believe were urging the Union to take steps to remedy some condi- tions in the shop, into leaving their employment or abandoning their union ac- tivities. Similarly, the wage increase given to Taylor on May 2 was, I find, as Taylor testified, a sort of a bribe to persuade him to drop his interest in the Union. Consistent with this conduct of the Respondent was the employee meeting in early May where Linder criticized the health insurance plan effective under the union con- tract and made it plain to the employees that he considered they would be better off financially without a union. But Markley and Taylor were not frightened and the 5-cent increase given to Taylor did not accomplish its purpose. Both continued their interest in the Union and became persuaded that strike action against their employer must at least be considered. Dill and Clark by signing the petition on July 16, which Markley had prepared, identified themselves as employees who wanted the Union to take some action in the premises. I find that Linder decided upon the discharge of the four men on July 16 after and not before he learned of the existence of the petition and the identity of the signers. The somewhat elaborate testimony of Linder and Bernard as to warnings given to the four men on the morning of July 16 is not believed .5 I find that Linder and Bernard contrived this explanation for the discharges when in fact they were motivated by the action that the employees took in drafting and signing the petition. How the petition came to Linder's attention I do not know. Triviso admitted that he saw it or one like it and it is of course highly probable that be quickly conveyed this information to Bernard who surely would then have reported to Linder. Based upon my observation of witnesses at the hearing, I credit Markley, Taylor, Dill, and Clark in full and disbelieve Linder and Bernard to the extent that their testimony is inconsistent with the first named four. I find that Markley, Taylor, Dill, and Clark were discharged on July 16 because of Linder's belief that they were trying to get the Union to take a firmer stand with the Respondent in contract negotiations . By the discharges the Respondent discour- aged membership in the Union and activity in its behalf and thus unlawfully dis- criminated against the four employees in violation of Section 8(a)(3) of the Act. By the discharges, by suggesting to the employees that a wage increase might be forthcoming if they would abandon the Union, by giving Taylor a wage increase in an effort to get him to diminish his interest in the Union, and by threatening Markley and Taylor with layoff unless they stopped talking about the Union, the Respondent interfered with, restrained, and coerced its employees in the exercise of rights guar- anteed in Section 7 of the Act and thus violated Section 8(a)(1) of the Act. 4 At one point in his testimony Bernard testified that he had complained about these men to a union agent. At a later point, he testified that he was unsure that lie had made such a complaint about Taylor and Dill. 'Nor do I credit the testimony that each of the four was frequently criticized and warned for talking, loafing, or other asserted derelidtions. It is my judgment that such complaints have been magnified and embellished by Triviso, Bernard, and Linder to give color of legality to the discharges. 1084 DECISIONS OF NATIONAL LABOR RELATIONS BOARD IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above , in connection with its operations described in section I, above, have a close , intimate, and substantial relation 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. V. THE REMEDY Having found that the Respondent has engaged in unfair labor practices , it will be recommended that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. It will be recommended that the Respondent offer to Markley, Taylor, Dill, and Clark immediate reinstatement each to his former or substantially equivalent position and that it make each whole for any loss of earnings suffered by reason of the discharge . Backpay shall be computed in the manner established in F. W. Woolworth Company, 90 NLRB 289, with interest at the rate of 6 percent per annum computed quarterly. Because the violations found are of such a nature as to indicate a studied purpose to deny to employees those rights secured by the Act, it will be recommended that the Respondent be required to cease and desist from violating the Act in any respect. Upon the basis of the foregoing findings of fact , and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. The 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 meaning of Section 2(5) of the Act. 3. By discharging Markley, Taylor , Dill, and Clark, the Respondent has discour- aged membership in the Union in violation of Section 8(a)(3) of the Act. 4. By such discrimination, by suggesting the possibility of a wage increase if the employees would abandon the Union , by granting a wage increase to Taylor in an attempt to persuade him to lessen his interest in the Union , and by threatening the lhyoff of Markley and Taylor in an attempt to force them to abandon their activities in the Union, the Respondent has interfered with , restrained, and coerced employees in the exercise of rights guaranteed in Section 7 of the Act and has thereby engaged in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law, I rec- ommend that the Respondent , United States Aluminum Corp ., its officers, agents, successors, and assigns , shall: 1. Cease and desist from: (a) Discouraging membership in Local 721, Cabinet Makers & Millmen, United Brotherhood of Carpenters and Joiners of America , AFL-CIO, or in any other labor organization of its employees , by means of discharge or other discrimination in regard to hire or tenure of employment or any term or condition of employment. (b) In such fashion or by suggesting the possibility of wage increases, by granting wage increases , or by threatening layoff or in any other manner interfering with, re- straining, or coercing employees in the exercise of the right to self-organization, to form labor organizations , to join or assist any labor organization , to bargain collec- tively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities , except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in Section 8 (a) (3) of the Act. _ 2. Take the following affirmative action which I find will effectuate the policies of the Act: (a) Offer to Delbert Markley, Jr, James Taylor, Robert Dill, and Melvin Clark immediate and full reinstatement each to his former or substantially equivalent posi- tion, without prejudice to seniority or other rights and privileges . and make each whole for any loss of earnings in the manner set forth in the section of this report entitled "The Remedy." (b) Preserve and, upon request , make available to the Board or its agents, for examination and copying, all payroll records , social security payment records, time- UNITED STATES ALUMINUM CORP. 1085 cards, personnel records and reports, and all other records necessary to an analysis of the amount of backpay due. (c) Post at its plant in Compton, California, copies of the attached notice marked "Appendix." 6 Copies of said notice, to be furnished by the Regional Di- rector for the Twenty-first Region, shall, after being duly signed by a representative of the Respondent, be posted immediately upon receipt thereof, and be maintained by it for a period of 60 consecutive days thereafter , in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for the Twenty-first Region, in writing, within 20 days from the date of receipt of this Recommended Order, what steps it has taken in compliance? It is further recomended that unless the Respondent shall within the prescribed period notify the said Regional Director that it will comply, the Board issue an order requiring Respondent to take the action aforesaid. "In the event that this Recommended Order shall be adopted by the Board , the words "A Decision and Order" shall be substituted for the words "The Recommended Order of a Trial Examiner" in the notice. In the further event that the Board' s Order be enforced by a decree of a United States Court of Appeals, the words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order" shall be substituted for the words "Pursuant to a Decision and Order." 7In the event that this Recommended Order be adopted by the Board , this provision shall be modified to read: "Notify said Regional Director, in writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith." APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify you that: WE WILL NOT discourage membership in Local 721, Cabinet Makers & Millmen, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, or in any other labor organization, by discharging employees or otherwise dis- criminating in any manner in respect to hire or tenure of employment or any term or condition of employment. WE WILL NOT by suggesting the possibility of a wage increase or by granting wage increases or by threatening layoffs or in any other manner interfere with, restrain , or coerce our employees in the exercise of their rights under Section 7 of the Act. WE WILL offer Delbert Markley, Jr., James Taylor, Robert Dill, and Melvin Clark, immediate and full reinstatement each to his former or substantially equivalent position, without prejudice to seniority and other rights and privileges, and make each of them whole for any loss of earnings, plus interest, suffered by reason of discharge. All employees are free to become, remain, or refrain from becoming or remaining members of the above-named Union, or any other labor organization, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in Section 8 (a) (3) of the Act. UNITED STATES ALUMINUM CORP., Employer. Dated------------------- By------------------------------------------- (Representative) (Title) NOTE.-We will notify any of the above-named employees presently serving in the Armed Forces of the United States of their right to full reinstatement upon application in accordance with the Selective Service Act after discharge from the Armed Forces. This notice must remain posted for 60 days from the date of posting, and must not be altered, defaced, or covered by any other material. Employees may communicate directly with the Board's Office, 849 South Broad- way, Los Angeles, California, Telephone No. Richmond 9-4711, Extension 1031, if they have any question concerning this notice or compliance with its provisions.