Ory Bros. Maine Service of America, Inc.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Ory Bros. Marine Service of America, Inc. and Inter- national Longshoremen's Association Local #1652, AFL-CIO. Case 14-CA-10174 May 16. 1978 DECISION AND ORDER BY MEMBERS JENKINS. MURPHY, AND TRUESDAI I On January 9, 1978, Administrative Law Judge Sidney J. Barban issued the attached Decision in this proceeding. Thereafter, Resondent 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, as modified herein.2 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, as modified below, and hereby orders that the Respondent, Ory Bros. Marine Service of America, Inc., Hartford, Illi- nois, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, as so modified: 1. Substitute the following for paragraph l(b): i'(b) In any other manner interfering with, re- 'Respondent has excepted to certain credibility findings made bh the Administrative Law Judge. It is the Board's established polic) not to, ier- rule an Administrative Lass Judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence cons tices ilS that the resolutions are incorrect. Standard Dr' Walll Prodlw . Inr.. 91 NLRB 544 (1950), enfd. 188 F.2d 362 (( A. 3. 1951). We have carefulls examined the record and find no basis for reversing his findings 2 Although the Administrative l aw Judge found that Respondent .,,- lated Sec. 8(aHl), (3), and (4) of the Act by withholding, effective April 17, 1977, the weekly guaranteed wage which ( Clyde Dwayne Wall would hve otherwise received, he inadvertently failed to recommend that the March 1I letter issued to Wall, in which the aforesaid penalty was imposed upon imnl. be expunged by Respondent from its records. Since swe find that the disci pline imposed by the letter was unlawful, we find that the remedy of ex- pungement is necessary to effectuate the purposes of the Act and shall modify his recommended Order accordingly. Inasmuch as Respondent's unfair labor practices go i, the yer) heart of the Act. we shall issue a broad order requiring Respondent to cease iand desist from violating the Act "in an) other manner." Sprintgfield Dodge. In, 218 N LRB 1429 (1975): , L. R.B. v. Enteil/e Milnufaci turing ( omptar,? 120 F.2d 532 (C.A. 4. 1941 . straining, or coercing its employees in the exercise of rights guaranteed them in Section 7 of the Act." 2. Insert the following as paragraph 2(c) and relet- ter the subsequent paragraphs accordingly: "(c) Physically expunge from its records the letter dated March 31, 1977, which was given to Clyde Dwayne Wall." 3. Substitute the attached notice for that of the Administrative Law Judge. APPENDIX NOTICE To EMPLOYEES POSI-IED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Act gives all em- ployees the following rights: To organize themselves To form, join, or support unions To bargain as a group through a representa- tive they choose To act together for collective bargaining or other mutual aid or protection To refrain from any or all such activities. In recognition of these rights, we hereby notify our employees that: WE WiI.L NOT withhold or take away benefits from employees, or penalize employees in any other way for activities on behalf of Internation- al Longshoremen's Association Local # 1652, AFL-CIO, or any other labor organization, or for participating in proceedings before the Na- tional Labor Relations Board, or assisting the processes of the Board. WE WILL NOI in any other manner interfere with, restrain, or coerce our employees in the exercise of rights guaranteed to them by Section 7 of the Act. WE WILL restore to Clyde Dwayne Wall, effec- tive April 17, 1977, the weekly guaranteed wage which was withheld from him. WE WILL reimburse Clyde Dwayne Wall for all losses which he has sustained by reason of the withholding of his guaranteed weekly wage as of April 17, 1977, with interest thereon. WE WIlL physically expunge from our records the letter dated March 31, 1977, which we gave to Clyde Dwayne Wall. ORY BROS. MARINE SERVICE OF AMERI(A. INc. 236 NLRB No. 2 74 ORY BROS. MARINE SERVICE OF AMERICA. INC. DECISION STATEMENT OF TIH CASE SIDNEY J. BARBAN, Administrative Law Judge: This mat- ter was heard at St. Louis, Missouri, on May 13. 1977. upon a complaint issued on April 22, 1977. based upon a charge filed by the Charging Party. International Longshoremen's Association Local #1652, AFI. CIO (herein the Union), on April 5. 1977. The complaint alleges that since on or about March 31. 1977. Respondent Ory Bros. Marine Service of America, Inc. has eliminated the guaranteed wage paid to Clyde Dwayne Wall (herein Wall), and has since failed and refused to reinstate Wall to his former terms and conditions of employment, in viola- tion of Section 8(a)(3), (4), and (1) of the National Labor Relations Act, as amended. Respondent's answer denies the commission of the unfair labor practices alleged, but admits allegations of the complaint sufficient to justify as- sertion of jurisdiction under current standards of the Na- tional Labor Relations Board (Respondent. engaged in the sale and distribution of fuel, groceries, and related prod- ucts from its operations at Hartford, Illinois, during a re- cent annual period received directly in interstate commerce at its Hartford operations goods and materials valued in excess of $50,000) and to support a finding that the Union is a labor organization within the meaning of the Act. Upon the entire record in this case, from observation of the witnesses and their demeanor, and after due consider- ation of the briefs of the General Counsel and Respondent. I make the following: FINDINGS AND CONC ULISIONS I THE FACTS A. Respondent's Operations Respondent, which is located about midway between two locks on the Mississippi River. is engaged in supplying fuel, groceries, and other necessities to towboats towing barges up and down the river. Towboats requiring these services notify Respondent of their needs about an hour or an hour and a half in advance and Respondent endeavors to supply the boats while they are in between the two locks. so as not to cause them any delay in their passage. Respon- dent contends that if it should fail to do this, it will lose its customers. Respondent services these tows by boats and fuel barges of its own manned by an operator and a deckhand. Since Respondent does not know in advance when or how often it may need crews to go out and service these tows, it nor- mally operates on the following basis: Crew members. scheduled for 5 days a week. are required to be on 24-hour call during those days. This requires that they keep Re- spondent's dispatchers (who are supervisors within the meaning of the Act) constantly informed as to where the employee may be reached at any' time. When called, such crew members are expected to come in within an hour of the time of the call and accept the assignment. In return for being on constant callout during their scheduled days of work, the employees are guaranteed pay for 40 straight- time hours and 10 overtime hours, no matter how many hours thev actually work. An employee who loses a day from work for whatever reason (sickness, etc.) loses 10 hours from his guaranteed pay for each day that he misses, though no employee loses any' pay for time actually worked. Similarly, any employee who fails to clock in at Respondent's operations within I hour of the time he is called to come in is charged with a "missed call," and loses 10 hours from his guarantee for each such missed call, no matter what excuse he has therefor. B. Alleged Discrimination I. Background Wall was first employed by Respondent in 1971. At that time he was active in talking to the other employees about seeking union representation. During that period, respon- dent's president, John R. Ory (herein J. Ory), interrogated Wall concerning his activities on behalf of a union and told Wall that "he had seen [Wall's] type before, that they are just troublemakers." So far as the record shows, nothing further came of this union activity at this time. In mid- 1976. Wall quit Respondent's employ. However, he was rehired in September 1976. Nothing is shown of Wall's work record prior to that time. However, he had progressed from a deckhand to the position of an operator. Wall's record from September 1976 through January 13, 1977, shows the following: he called in sick on six occa- sions, Respondent was unable to contact him, or he refused or failed to work on five occasions, for various reasons, and was also charged with five missed calls (on these latter occasions. though he failed to come in within the required hour, he was available and did work so far as shown by the record). According to J. Ory, these frequent failures of Wall to come in to work created dissension among the other employees who were forced to come in to work in his place, thus causing them to work extra hours when they otherwise would not have had to in order to receive their weekly guarantee. On January 4 (all dates hereinafter in 1977 unless other- wise noted), J. Ory spoke to Wall about his job perfor- mance. When Ory commented that he did not believe that Wall had been sick on each occasion on which he reported ill, Wall admitted that he had not been sick on all of these occasions. Ory told Wall that his performance had to im- prove or Respondent would take away his weekly guaran- teed wage. J. Ory testified that Respondent had never re- sorted to this expedient before, but felt it was necessary to cause Wall to correct his performance. 2. The January 14 letter After Wall missed a call on January I . and missed two calls on January 13, J. Ory wrote the following letter to Wall, which was read at a safety meeting on January 14 after Wall refused to accept it: A check of your work record since your return to 75 DECISIONS OF NATIONAL LABOR RELATIONS BOARD work at Ory Bros. shows an increasing amount of ab- senteeism. For the past two months a combined total of II absences are recorded due to either Missed-Calls or sickness. At one time you made a statement that anybody would be a fool to believe anyone could be sick that much. On January 4th, after you had reported off sick, I personally talked to you and you admitted that you were not sick, but thought you had worked more than others and also that your car had slid off in a ditch and you had walked home. I told you to either work or quit. This week on Thursday you refused to work when you were here and left. Due to your repeated absenteeism we now find it necessary to take action to eliminate your guaranteed wages by paying you only for hours worked. You will be called to work a sufficient number of hours to al- low pay equal to that of other employees. You are further advised that if you continue to be unreliable you will be discharged. Ory advised Wall that if he performed as expected, his guarantee would be restored on April 17. 3. Union activity After January 14, talk about unionization accelerated among the employees. One of the employees, Dennis Barnes, contacted the Union and secured union authoriza- tion cards. Wall was involved in this activity and signed a union card in early March. The dispatchers were clearly aware of the employees' union activity. On one occasion, in mid-March, when a number of employees had advised dis- patcher Thomas that they were at Barnes' home, Thomas asked Wall if the employees were not having a union meet- ing there. About the same time, Thomas asked Wall what he thought about the Union. Wall evaded, saying that his views on the Union were well known. The Union filed a petition for certification as the em- ployees' bargaining representative on March 11. J. Ory states that his first knowledge of the employees' union ac- tivity occurred on March 14, when he received notice of the Union's petition. He attended a conference on the peti- tion at the Board's offices on March 15, and signed an agreement for a consent election. When this was rescinded because of union dissatisfaction with the scope of the unit, J. Ory, later on March 30, signed another consent election agreement more to the liking of the Union. At a meeting for the employees on March 18, J. Ory expressed surprise at learning of the union activity among the employees. 4. Wall's attendance at the Board's hearing After January 14, Wall called in sick on January 30, because of a toothache, which Respondent did not ques- tion, and was 17 minutes late for a call on March 18. for which he was docked 10 hours in accordance with Respon- dent's normal rule. A Board hearing on the Union's petition was scheduled to be held on March 30. The Union expected that Wall would be a witness in support of its position, and he was requested to meet with the Union's attorney on the af- ternoon of March 29 to prepare for the hearing. During the afternoon of March 28, when Wall and Barnes were per- forming tasks at Respondent's operations, Wall spoke with Jeffrey Ory, who assists J. Ory in managing Respondent's operations and is a statutory supervisor, concerning getting off from work the following day. According to Wall, he told Jeff Ory that he needed to take off the following af- ternoon, that he understood that he would not be paid for the time, and asked if it would be "all right" if he took off at 2 p.m. He says that Jeff Ory responded, "Sure. that will be fine. There will be no problem." Barnes, though he does not recall the words that were spoken, recalled that Jeff Ory gave Wall permission to be off. Jeff Ory testified that when Wall asked for permission to take off the following day for personal business, he responded only, "You know the penalty for it." Jeff Ory denied that he gave Wall per- mission to take off from work. In the circumstances, I credit Wall. He is corroborated by Barnes. Respondent objects that Barnes' recollection constitutes no more than his conclusion concerning the conversation since he does not recall the details. To a large extent this is so, but no more so than Jeff Ory's interpreta- tion of his own testimony to the effect that he did not give Wall permission to take off. On consideration of the testi- mony of the three witnesses, I find that Jeff Ory stated no objection to Wall's taking off-and thus granted permis- sion -if Wall were willing to accept the normal penalty for such an occurrence which, on this record, would normally be the loss of 10 hours pay. That such absence from work was a matter of no special concern to Respondent at the time is shown by the fact that Jeff Ory did nothing to prepare for Wall's absence of which he was advised and did not even speak to anyone in management about it. At 2 p.m., on March 29, Wall told the dispatcher that he had to take off at that time for personal business, that he had spoken to Jeff Ory the previous day and he had said that this would be "fine" and "no problem." The dispatch- er asked what Wall's personal business was, and the latter evaded the question. The dispatcher then wrote up Wall on a form normally used for a "missed call." The following day, March 30, Wall attended the Board hearing in the company of the union representatives. J. Ory and Wall saw one another at the Board hearing room and exchanged greetings. It was not necessary for Wall to testi- fy on this occasion as the parties signed a consent agree- ment for an election. 5. The March 31 letter When J. Ory returned from the meeting at the Board on March 30, late in the afternoon, he learned for the first time that Wall had taken off from work the previous af- ternoon. He then dictated the following letter addressed to Wall, which was typed and dated the next day: Reference is made to our letter of January 14. 1977, subject: Disciplinary Action, copy inclosed. I have become quite concerned in that you have missed two calls within an II day period from March 76 ORY BROS. MARINE SERVICE OF AMERICA, INC. 18 to March 29, 1977, which are unexcusable absen- ces. We find it necessary to advise you that any more unexcusable absences or missed calls will result in your discharge from Ory Bros. Marine Service of America, Inc. You are further advised that is [sic] you can work for two months without any unexcused absences or missed calls you will return to the guaranteed wage status of 50 hours of pay per week for on-call employ- ees. J. Ory testified that before sending this letter, he checked with Jeff Ory who said he had not given Wall permission to leave. J. Ory also insisted that this additional penalty was not in reality a 2-month extension of the previous with- drawal of Wall's guaranteed weekly wage, but only a 6- week extension, since it would become effective only on April 17, when the original penalty expired. J. Ory stated that he first learned of the reason for Wall's leaving work on March 29 at a conference with a Board agent on April 13. He further denied that Wall's union activity or his attendance at the scheduled Board hearing "had anything to do" with his sending the letter of March 31 to Wall. 6. Wall's problems after March 31 On the afternoon of April I (before Wall had received J. Ory's letter of March 31). Wall was ill and called in sick. The dispatcher said he would write Wall up as being sick. Later that evening, when he began feeling better, Wall in- formed the dispatcher that he would be available for call at 5:30 on the morning of April 2. The dispatcher advised Wall that he would need a doctor's excuse before coming back to work. When Wall exhibited surprise at this (the record shows that this was not a normal requirement), the dispatcher refused to discuss it "because it was a touchy subject." On April 2, Wall visited a doctor and obtained a certifi- cate of his illness. That evening, upon his return home, he found the March 31 letter from J. Ory. Wall called the dispatcher and advised that he had a doctor's excuse as required. The dispatcher told Wall to bring it in when he was called in to work. Wall was not called in to work on April 3. When he called the dispatcher about noon that day, the dispatcher said he had orders not to use Wall. The following day. when Wall called Respondent early in the morning, the dispatcher referred him to Jeff Ory. The latter told Wall that he had to bring in his doctor's excuse before he could return to work. Wall immediately took the doctor's excuse to Respondent's offices and presented it to Jeff Ory. Wall also complained to Jeff Ory that he did not understand the March 31 letter, inasmuch as it seemed to penalize him twice for his missed call of March 18, for which he had been penalized originally by loss of 10 hours' pay. Jeff Ory merely told Wall that the letter "means what it says." So far as the record shows, Wall has not had any further problems with his employment. 11 ANALYSIS AND CONCLUSIONS Employees have a protected right to participate in pro- ceedings before the Board, including reasonable prepara- tion for giving testimony in such proceedings. See. e.g., N.L.R.B. v. Robert Scrivener, d/b/a A A Electric Company. 405 U.S. 117 (1972): Burris Industries, Inc., 217 NLRB 91 (1975). Such activities continue to be protected even though engaged in during working hours so long as the employees' actions are reasonable in the circumstances and the employer does not show any overriding considerations which might curtail the exercise of employee rights to thus effectively participate in Board's proceedings. General Nu- trition Center, Inc., 221 NLRB 850(1975); Burris Industries, Inc.. supra. Cf. WKalt Disney World Co., 216 NLRB 836 (1975). Here employee Wall asked for and received permission to take off the afternoon of March 29, for the purpose, not revealed to Respondent, of being prepared by the union lawyer to testify at a Board's proceeding the following day.I Respondent's president J. Ory saw and spoke to Wall at the Board's proceeding the next day. That evening, J. Ory decided to discipline Wall because of his absence on March 29 by taking away his weekly wage guarantee, effec- tive April 17, for 6 weeks. It is not here necessary to determine whether Respon- dent, when it imposed such penalty on Wall, on March 30, knew or should have known that Wall was engaged on the 29th in protected activity., and that the penalty thus inter- fered with employee rights under the Act, cf. Diagnostic ('enter Hospital Corp. of 7Texa., 228 NLRB 1215 (1977), though it might be found that J. OrV knew or should have known in the circumstances that Wail's absence on the 29th was probably connected with his attendance at the Board hearing on the 30th, and that J. Ory acted in undue haste in imposing the penalty without speaking to Wall about the reason for his absence. In any event, J. Ory was informed of the reason for Wall's absence from work on March 29, prior to the date upon which the penalty became effective. on April 17 and, in spite of such knowledge, failed and refused to take appropnate action to rescind the penalty imposed before it became effective. By thus impos- ing such penalty on Wall on April 17, and failing and re- fusing to reinstate Wall to the terms and conditions of em- ployment, which he would have otherwise enjoyed, because of his participation in proceedings before the Board pro- tected by the Act, Respondent violated Section 8(a)(l) and (4) of the Act. See, e.g.. Air Surrec Corporation, 229 NLRB 1064. 1070 (1977), in which Judge Sherman noted that, in a similar situation in General Nutrition Center. supra (where it was alleged that the employer had discharged several em- ployees, for consulting with the Board) "[t]he Board held that assuming the employer did not know when discharg- i Rcpondcnl' prerrident -iught t,, Indicate Ihai such !coetlaking crealted a serious prhoblem in his husin n,, atifl .1 one pinl t "Nolb od ir alulwec. off for p.rsrial rearsonC., but, at another. ahertineg onlt that such permis- sion ,as, lneer given icrcert here Ihc emplosee iah assessed a penaltl of [,os of pa;, oppo ltunl I[n the pr~enl csie nol ,onin uas such permission gi ,cn. ot tihe I.eI, ,if ,uth pelalir huIt Ihe assInlIant to( IhT prei;dcent, ih gale u'lh. pernli-,m .. .a,, - lt lc iirned that he did northins to report the cxpcted abst ciI.c ~. 1 i loi,,;l er i ncceh. l vr.> tio c er for ii 77 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ing them that their purpose was to consult the Board. the employer's admitted knowledge of this protected purpose when he refused to reinstate them rendered such refusal a violation of Section 8(a)(l)." Since Respondent was aware that the conduct for which it thus penalized Wall, his participation in the representa- tion proceeding, was in assistance of the Union's organiza- tional effort, by such discrimination in regard to Wall's terms and conditions of employment Respondent discour- aged activities on behalf of and membership in the Union in violation of Section 8(a)(3) of the Act. 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 meaning of Section 2(5) of the Act. 3. Respondent, by withholding, effective April 17, 1977. the weekly guaranteed wage which Clyde Dwayne Wall would have otherwise received because Wall gave aid and assistance to the Union and participated in proceedings before the Board, violated Section 8(a)( I), (3), and (4) of the Act. 4. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY It having been found that Respondent has engaged in and is engaging in unfair labor practices in violation of Section 8(a)(l), (3), and (4) of the Act, it will be recom- mended that said Respondent cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. It having been found that Respondent has withheld from Clyde Dwayne Wall his weekly guaranteed wage, effective April 17, 1977, because Wall engaged in activities protect- ed under the Act, it will be recommended that Respondent restore, effective April 17, 1977, the guaranteed weekly wage which was withheld from Wall. and reimburse him for all losses which he has sustained by reason of the with- holding of such benefit. with interest thereon computed in accordance with the policies of the Board set forth in Flor- ida Steel Corporation, 231 NLRB 651 (1977). 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 2 The Respondent, Ory Bros. Marine Service of America, Inc., Hartford, Illinois, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Withholding or removing benefits, or otherwise pe- nalizing employees for participation in proceedings before the National Labor Relations Board, or for otherwise as- sisting the Board's processes, or for engaging in activities on behalf of the Union, or any other labor organization. (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 I find will effectuate the purposes of the Act: (a) Restore to Clyde Dwayne Wall, effective April 17, 1977, the weekly guaranteed wage which was withheld from him. (b) Reimburse Clyde Dwayne Wall for all losses which he has sustained by reason of the withholding of his guar- anteed weekly wage as of April 17, 1977, as provided in the section entitled "The Remedy," hereinabove. (c) 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 determine the amounts due under the terms of this Order. (d) Post at its place of business at Hartford, Illinois, copies of the attached notice marked "Appendix." 3 Copies of said notice, on forms provided by the Regional Director for Region 14, after being duly signed by its authorized representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 con- secutive days thereafter, in conspicuous places, including all places where notices to employees are customarily post- ed. Reasonable steps shall be taken by Respondent to in- sure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 14, in writ- ing, within 20 days from the date of this Order, what steps it has taken to comply herewith. 2 In the event no exceptions are filed as provided b) Sec. 102.46 of the Rules ,and Regulations of the National L abor Relations Board. the findings. conclusions, anid recommended Order herein shall, as provided in Sec. 102 48 of the Rules and Regulations. be adopted b) the Board and become its findings, conclusions. and Order. and all objections thereto shall be deemed wai;ed for all purposes. 3In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted b) Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." 78