Gulf Coast Steel, Inc.

GULF COAST STEEL, INC. Gulf Coast Steel, Inc. and Llewellyn Evans. Case 10- CA-12919 June 12, 1978 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND MURPHY On March 1, 1978, Administrative Law Judge Marvin Roth issued the attached Decision in this proceeding. 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, Gulf Coast Steel, Inc., Atlanta, Georgia, its officers, agents, successors, and assigns, shall take the action set forth in the said rec- ommended Order, except that the attached notice is substituted for that of the Administrative Law Judge. 'Respondent has excepted to certain credibilit) findings made bh the Administrative Law Judge. It is the Board's established policy not to i'.er- rule the Administrative Law Judge's resolutions with respect to credibility unless the clear preponderance of all the relevant evidence convinces us that the resolutions are incorrect. Standard Dry Wall Productrs Inc., 91 NL RB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have carefullk examined the record and find no basis for reversing his findings. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR REL.AIONS BOARD An Agency of the United States Government After a hearing in which all parties had an opportu- nity to present their evidence, the National Labor Relations Board has found that we violated the Na- tional Labor Relations Act and has ordered us to post this notice and to carry out its provisions. WE WILL NOI discharge employees or in any other manner discriminate against them with re- gard to their hire or tenure of employment or any term or condition of employment, because they claim rights under a collective-bargaining contract, or because they engage in any other union or concerted activities for the purpose of collective bargaining or other mutual aid or pro- tection. WE WIL. NOT threaten employees with dis- charge or other reprisal because they engage in such activities. WE wll L Nor interrogate employees about their union or concerted activities or attitudes. WE wIl. NOT in any other manner interfere with, restrain, or coerce employees in the exer- cise of their rights guaranteed in Section 7 of the Act. WE WILL offer Llewellyn Evans immediate and full reinstatement to his former job or, if such job no longer exists, to a substantially equivalent position, without prejudice to his se- niority or other rights, and make him whole for losses he suffered by reason of the discrimina- tion against him, plus interest. GU:iE COAST STEEL, IN(C DECISION STATEMENT OF THE CASE MAR'IN ROTH. Administrative Law Judge: This case was heard before me in Atlanta, Georgia, on January 24, 1978. The charge and amended charge were filed respectively, on July 8 and August 17, 1977, by Llewellyn Evans, an indi- vidual. The complaint, which issued on August 17, 1977, and was amended at the hearing by direction of the Ad- ministrative Law Judge, alleges that Gulf Coast Steel. Inc. (herein called the Company or Respondent), violated Sec- tion 8(a)(1) and (3) of the National Labor Relations Act, as amended. The gravamen of the complaint is that the Com- pany interrogated and threatened employee Evans, and discharged him on July 1, 1977, because of his union and concerted activities. The Company's answer denies the commission of the alleged unfair labor practices. All par- ties were afforded full opportunity to participate. to pre- sent relevant evidence, and to argue orally. Briefs were waived. Upon the entire record in this case and from my obser- vation of the demeanor of the witnesses, and having con- sidered the arguments of counsel, I make the following: FlNDING;S OF FA( r The Company, a Georgia corporation with its principal office and place of business in Atlanta. Georgia. is a con- tractor in the building and construction industry. The 236 NLRB No. 98 831 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Company annually performs services valued in excess of $50,000 directly for customers located outside of Georgia. It is an employer engaged in commerce within the meaning of the Act. International Association of Bridge, Structural and Ornamental Iron Workers Local Union No. 387, AFL-CIO (herein called the Union), is a labor organiza- tion within the meaning of the Act. The Company is a member of Association of Steel Erectors & Heavy Equip- ment Operators, Inc., a multiemployer bargaining associa- tion, and through such membership has a collective-bar- gaining relationship with the Union. The 1975 77 contract, which was effective through June 30. 1977, and which is relevant to the present case, contained the following provi- sion: ARTICLE 9 REPORTING TIME A. When an Ironworker is ordered by his Employer or his Representative to report for work and, through no fault of such Ironworker, is not put to work, the Employer shall pay him for two (2) hours time, weath- er permitting; if any' work is performed, the Employer shall pay him four (4) hours, weather permitting; if any work is performed in the afternoon, the Employer shall pay him eight (8) hours, weather permitting. Llewellyn Evans, a rodman. i.e.,journeyman ironworker, was hired by the Company in May 19 77.' Company Vice President Michael T ucker personally asked Evans to come to work for the Company, because Evans had been recom- mended to him. Evans, a union member, was cleared through the union hall and was covered by the union con- tract. He went to work on the Hartsfield Airport project. which was the Company's biggest job. Evans performed well, and was soon promoted to foreman. However, he ap- parently, had difficulty in directing other employees, and about 2 weeks before his discharge he was returned to his job as rodman. Evan testified that on Friday, June 24, when he received his paycheck for the week ending June 17, he saw that he had been paid only for 30 hours; i.e., time actually worked instead of the 38 hours to which Evans felt he was entitled by virtue of the reporting time provision of the union con- tract, quoted above. Evans testified that he complained to the Union's job steward, who checked with the Union. The steward then told Evans and the other ironworkers on the job that Evans was right, and that the ironworkers were entitled to 2, 4, or 8 hours reporting time pay as provided in the contract. Later that day, Company General Fore- man Felix Odom told the employees that, beginning the next day, they would so receive 2, 4, or 8 hours reporting pay. However, Evans testified that on Thursday, June 30, Odom's subordinate, Foreman Joe Sanders, told Evans that Odom said to ask Evans whether "you are going to stay with the Company or the Union." Evans answered that he was "one hundred per cent union." Evans testified that, at this point, Sanders said that he did not want any- thing to do with firing Evans because Evans was a good worker. Evans reported the conversation to the Union's All dates herein are in 1977 unless otherwise indicated. business agents, who told him that the Company had no right to fire him, and that he should go back to work. How- ever, the next day, Odom fired Evans, telling him that he was not needed anymore. Upon receiving his final pay- check, Evans again found that he had not been given re- porting time pay, and he protested to Odom. About an hour later, Evans was given a supplementary check to make up the difference. Both Odom and Sanders were supervisors within the meaning of the Act. Neither was called as a witness, and the Company failed to explain why they were not called. I have no reason to disbelieve Evans, and I credit his testi- mony in full. The three witnesses who were called by the Company figuratively fell over one another in an effort to avoid taking the responsibility for Evan's discharge. Com- pany President Nash testified, in sum, that he had nothing to do with the discharge. Vice President Tucker did not impress me as a candid witness. He testified in the manner of one who is reciting a carefully prepared speech. Tucker testified, in sum, that Evans was discharged because he seemed to have lost interest in his job. However, like Nash, Tucker attempted to avoid responsibility for the discharge, testifying that he did not know whether Company Superin- tendent Freddy Harrell or General Foreman Odom made the decision to discharge Evans. Harrell, the last company witness, parroted Tucker's line that Evans seemed to lose interest in his job. However, he admitted that he had no personal knowledge of whether Evans had ever been ad- monished or even spoken to about this alleged lack of in- terest. Evans testified that in fact his work had never been criticized, that Foreman Sanders had said that he was one of the best men on the job, and that Vice President Tucker had complemented all of the employees on their work. I credit Evans. I find that the Company summarily discharged Evans because he initiated and joined with his fellow employees in an effort to obtain what they considered to be their contractual right to reporting time pay. The Company thereby violated Section 8(a)(1) and (3) of the Act. Crown Wrecking Co., Inc., 222 NLRB 958, 962 (1976), and cases cited therein. The Company, through Foreman Sanders, further violated Section 8(a)(l) by interrogating Evans about whether he intended to persist in those efforts, and by threatening to discharge him because he indicated that he would do so. The Company was cost conscious about the Hartsfield Airport project, and fearful that Evans' per- sistence would cost it money. It is immaterial to the present case whether Evans and the Union were correct in their interpretation of the contract. Crown Wrecking Co., supra.2 2 The Company. through Evans. presented in evidence the "General Working Rules" of the Ironworkers International Union. which provide in part: Reporting for Work. Two Hours Time Section 12. Par. A. When an ironworker is ordered by the employer or his representative to report for work and then through no fault of such ironworker is not put to work or employed for less than two (2) hours, the employer shall pay him for two (2) hours' time, weather permitting work, provided such ironworker remains on the job during the said twso (2) hours. On jobs of more than two (2) hours' duration, all ironworkers shall be paid for the actual hours worked. Par. B. Notwithstanding the contents of the above paragraph, the 832 GULF COAST STEEL. INC(. CONCLUSIONS OF LAW I. The Company is engaged in commerce and the Union is a labor organization, all within the meaning of the Act. 2. By terminating Llewellyn Evans for engaging in pro- tected concerted activities for mutual aid and protection. and thereby discouraging membership in the Union. the Company has engaged in, and is engaging in, unfair labor practices within the meaning of Section 8(a)(1) and (3) of the Act. 3. By interrogating Evans about such activities, and threatening him with discharge because of such activities. the Company has further interfered with, restrained, and coerced its employees in the exercise of the rights guaran- teed in Section 7 of the Act, and thereby has engaged in. and is engaging in, unfair labor practices within the mean- ing of Section 8(a)(1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. THE REMEDY Having found that the Company has committed viola- tions of Section 8(a)(1) and (3) of the Act, I shall recom- mend that it be required to cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Having found that the Company discriminatorily termi- nated Llewellyn Evans, it will be recommended that the Company be ordered to offer him immediate and full .reinstatement to his former job, or, if it no longer exists, to a substantially equivalent position, without prejudice to his seniority or other rights and privileges, and make him whole for any loss of earnings that he may have suffered from the time of his discharge to the date of the Company's offer of reinstatement. The backpay for said employee shall be computed in accordance with the formula ap- proved in F. W. Woolworth Company, 90 NLRB 289 (1950), with interest computed in the manner and amount prescribed in Florida Steel Corporation, 231 NLRB 651 (1977). 3 It will also be recommended that the Company be required to preserve and make available to the Board. or its agents, on request, payroll and other records to facilitate the computation of backpay due. The Company's conduct demonstrated a flagrant disre- gard for the collective-bargaining rights of employees, and their right to engage in concerted activity for their mutual General Executive Board shall approve all allowance of reporting time in cases where the Local Union and the employer agree to the allowance of such reporting time. Evans testified that this rule referred only to situatlins where weather Lon- ditions precluded further work: i.e.. those situations expressly excluded from article 9. sec. A, of the contract. Moreover, par B of the above rule expressly permits collective-bargaining contracts which provide for reptrt- ing time. Company counsel promised to present a union official toi lestis about the rule. However, after consulting with a union representanixe who was present in the heanng room, he failed to do so The inference is ,i.r- ranted that the Union agrees with Evans' understanding if the rule In anr event, as indicated, whether or not Evans was correct, the ('iompans had no lawful nright to discharge him for seeking redress of what he considered to he his contract rights. 3 See, generally. Isis Plumbhing & H eating (o,. 138I NI RB 71b. 717 721 (1962). benefit. The Company willfully utilized the managenrent prerogatives clause of its contract (which gave it sole dis- cretion to discharge employees) as an excuse for discrimi- natorily discharging Evans. thereby leaving him no re- course but to file an unfair labor practice charge. Ihe inference is warranted that the Company maintains an attl- tude of opposition to the purposes of the Act with respect to the protection of employee rights in general. Accord- ingly. I shall recommend that the Compans be ordered to cease and desist from infringing in any manner upon the rights guarainteed in Section 7 of the Act. Uipon the foregoing findings of fact, and conclusions of law, and upon the entire record, and pursuant to Section IO(c) of the Act, I hereb, issue the following recom- mended: ORDER The Respondent. Gulf Coast Steel, Inc., Atlanta, Geor- gia, its officers. agents, successors. and assigns, shall: 1. ('ease and desist from: (a) I)ischarging emplo!ees or in an! other manner dis- criminating against them with regard to their hire or tenure of emplos!ment or any term of condition of employment. because thes claimi rights under a collectise-bargaining contract, or because they engage in any other union or concerted activities for the purpose of collective bargain- ing, or other mutual aid or protection. (b) Threatening employees with discharge or other re- prisal because the, engage in such activities. (c) Interrogating employees about their union or con- certed actitiies or attitudes. (d) In aln other manner interfering with, restraining, or coercing emplosees in the exercise of their rights guaran- teed in Section 7 of the Act. 2. Take the following affirmative action which is neces- sars to effectuate the policies of the Act: (a) Offer Llewellsn Evans immediate and full reinstate- ment to his former job or. if such job no longer exists, to a substantially equivalent position, without prejudice to his seniority or other rights, and make him whole for losses he suffered bs reason of the discrimination against him as set forth in the section of this Decision entitled "The Rem- ed'." (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all pay- roll records. social security payments records, timecards. personnel records and reports, and all other records neces- sarN to analsie the amount of backpay due. (c) Post at its office and place of business in Atlanta, Georgia. and at each of its jobsites, if possible. copies of the attached notice marked "Appendix."' Copies of said In the nclei nlo excptlure.I ac filed Ias prosided hs Sei 102 46 of the Rules and Realil tilon, f the \llhill 1 a I abor Relatlons Board. the findinre ciinclut..lol, aild recollmnended O(rder herein shall, as provided in Set 1I)2 4S of the Rules and Rculitlt. ,,. he atdopted hs the Board aind heolle Its fildin,,. incilustionl . and O(rder. and all oh lectlrls thereto shalil he deemed I.sl\c ld f0l .A11 p lrp-iC I In the event that this Order 1v entfried h .I J1tidlliClli .. t I fitd Staces ( ourt of A.ppeals. the words in the tintmc icadili I',ted h\ (hOder of the N.tional .bor Relatlills B .oard' hail rieadl e ),r l l'Lnbill l . Judgmnent of the t nued Statei, ( mrt of .- \ppe].i, [ irt. ,, t )rdCr oi 0t National I abothr Relations Board" 833 DECISIONS OF NATIONAL LABOR RELATIONS BOARD notices, on forms provided by the Regional Director for Region 10, after being duly signed by Respondent's au- thorized representative, shall be posted by Resondent im- mediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, in- cluding all places where notices to employees are custom- arily posted. Reasonable steps shall be taken by Respon- dent to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 10, in writ- ing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. 834