General Fireproofing Co.

732 DECISIONS OF NATIONAL LABOR RELATIONS BOARD General Fireproofing Company and United Steelworkers of America, AFL-CIO. Case 11-CA-3610 June 17, 1969 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING AND JENKINS On January 27, 1969, Trial Examiner George L. Powell issued his Decision 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 Trial Examiner's Decision. Thereafter, the Respondent filed exceptions to the Trial Examiner's Decision with supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and brief, and the entire record in this proceeding, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner. and Service Act, as amended, after discharge from the Armed Forces. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE GEORGE L. POWELL, Trial Examiner: This case was tried' before me on July 31 and August 1, 1968, in the auditorium of the county office building in Shelby, North Carolina. The complaint, issued June 20, 1968, was based upon a charge filed on May 2, 1968. The complaint, as amended at the hearing, presented questions of whether the Respondent threatened employees with discharge because of their union membership, sympathies, and activities; whether Respondent maintained an invalid no-solicitation rule in its employee handbook, and whether Respondent discriminatorily discharged employee Leroy D. Young to discourage union activities in the plant. All parties appeared and were heard at the trial, and briefs were filed on September 16, 1968, by the General Counsel, Respondent, and Charging Party. On the entire record of evidence, my observation of the witnesses as they testified, and on due consideration of the briefs, I find, for the reasons hereinafter set forth, that the General Counsel has established by a preponderance of the evidence that Respondent: violated Section 8(a)(l) and (3) of the Act' by discharging employee Leroy D. Young because he engaged in union activities; and violated Section 8(a)(1) of the Act by promulgating an unlawful no-solicitation rule and by threatening an employee with discharge for making a speech sympathetic to the union's activities to an assembled group of employees during their lunch break. FINDINGS OF FACT AND CONCLUSIONS OF LAW ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recommended Order of the Trial Examiner, as modified herein, and hereby orders that the Respondent, General Fireproofing Company, Forrest City, North Carolina, its officers, agents, successors, and assigns , shall take the action set forth in the Trial Examiner's Recommended Order, as so modified: 1. Add the following as paragraph 2(b), and reletter the following paragraphs accordingly: (b) Notify the above-named employee if presently serving in the Armed Forces of the United States of his right to full reinstatement, upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. 2. Add the following as the last indented paragraph of the Appendix: WE WILL notify the above-named employee if presently serving in the Armed Forces of the United States of his right to full reinstatement, upon application in accordance with the Selective Service Act and the Universal Military Training 176 NLRB No. 99 1. THE EMPLOYER AND THE LABOR ORGANIZATION I find that the allegations of paragraphs 2 and 3 of the complaint, respecting the nature and volume of business carried on by the Respondent, General Fireproofing Company, an Ohio Corporation manufacturing business furniture in a plant near Forrest City, North Carolina, is true and conclude therefrom that Respondent is an employer engaged in commerce within the meaning of Section 2(6) of the Act.' The parties stipulated, and I find and conclude, that the United Steelworkers of America, AFL-CIO , herein called Charging Party or Union, is a labor organization within the meaning of Section 2(5) of the Act. II. THE UNFAIR LABOR PRACTICES A. The Discharge of Leroy Young Leroy Young began working for Respondent in August 'On January 2, 1969, Glenn L. Greene, Jr., Esq., counsel for the Respondent, established a law practice under his own name in Miami, Florida. '29 U.S.C. Sec. 151, et seq. 'The parties stipulated that during the past 12 months Respondent received raw materials at its plant it Forrest City valued in excess of $50,000 from points outside the State of North Carolina. Also that during the same period of time Respondent manufactured , and shipped from its plant finished products valued it excess of $50,000 to points outside the State of North Carolina. GENERAL FIREPROOFING COMPANY 1966 in its finishing department . When discharged on April 30, 1968, he was in the maintenance department receiving in wages only 5 cents short of the top rate of $2.36 per hour . Near the end of the day on April 30, 1968, Maintenance Supervisor Fred McDowell took Young to Personnel Manager Thomas Edmundson's office, where Young was summarily discharged . Later on Young obtained a discharge slip from Respondent which stated as a reason, "Performance and attitude on job not consistent with company policies ." No explanation was given to Young concerning the meaning of the reason given on this separation notice. B. Union Activities The Charging Party had already begun its organizing campaign in Respondent' s plant when Young began assisting it in about the middle of March 1967. And except for a slack period during the last 3 or 4 months of 1967, the campaign had continued to the date of the hearing . Young served as the Chairman of the Employees Organizing Committee directing the distribution and receipt of authorization cards to and from committee members and maintaining liaison between Union Representative Claude Hall and the other members of the organizing committee . Solicitations were not made in view of supervisors although they were made on Company property during break periods on the employees' own time . The only direct evidence of Company knowledge of Young's union activity is the fact that some twelve to fifteen authorization cards fell from Young's shirt pocket in the presence of Maintenance Supervisor McDowell. They fell to the floor and some hit the foot of McDowell. This was "somewhere in March," 1968 according to Young's credited testimony. C. Young's Efforts to Advance . From the time he was hired in August 1966 until October 1966 Young had progressed from the starting rate of $1.51 per hour to $1.91 per hour . In February 1967, Young began seeking a transfer to the maintenance department, wherein the highest wages were paid, and several discussions with Respondent's supervisors took place. In May 1967, after the advent of his union activities and in response to Young's latest request for a transfer to maintenance made in April 1967, Young was called to Personnel Manager Power's office. He was told, in the presence of Plant Superintendent Easterbrook, that if he wanted a better job he should quit making "an ass out of yourself like you have." The record of Young's credited testimony as to this instance follows:' Q. All right, what was said in the office between you all? A. Well, I walked in and Mr . Powers, Hi, Leroy, we want to talk to you a little bit . And he said, what is wrong with you? And I said , not anything is wrong with me. And he said , well, are you satisfied with your work? And I said, yes sir. He said your job? And I said , yes sir. And he said, your boss man? And I said, yes sir. He said, are you making enough money? And I said, no sir. And he said, well, none of us are, but that wasn't any reason to show your ass like you did . And I said, 'Power's denial of this conversation is not credited. 733 WHAT DO YOU MEAN? And he said, well, you know damn well what I mean, I am not going to spell it out for you. And I said, Mr. Powers, when I asked for a job, I said, I told you I was a union member . And he said, yeah, I know you did, but he said, I didn't think that you would make an ass out of yourself like you have. And he said, what you need is a better job. I said, well I tried to get one back in February, and I said, Mr. McDowell said I wasn 't qualified, but he found somebody outside that was better qualified. And I said I thought it was a dirty deal. And Mr. Powers and Mr. Easterbrook said both that they agreed on it. And Mr. Easterbrook turned to Mr. Powers and said, they need somebody in the shop now, don't they? And Mr . Powers said, we can always use a good hand, in the shop . And I said, no, I won't take a job in the shop under those conditions. I said I wouldn't be forced on Mr . McDowell or Mr. Scruggs either one. Q. Who is Mr. Scruggs? A. Mr. Scruggs was the foreman or leadman in the shop. I find from the above evidence that Respondent's supervisors were telling Young, in effect, to quit making an ass out of himself over the Union if he wanted to make progress in the Company . However no finding of a violation of the Act can be made based on this incident under Section 10(b), as it occurred more than 6 months before the charge was filed in May 1968. Young continued seeking opportunities for self improvement. He took a test, some "two or three weeks" after the above incident, with some other employees and he and Jack Metcalf made the two highest scores. Easterbrook offered him the tool and die job in the shop, but he deferred to Metcalf. Later the same day McDowell called Young to his office and asked him if he wanted the job as Metcalf had turned it down . Young refused the job at the time and in reply to McDowell's question of "why?" told him, "I think you are setting me up on the roost to shoot me off because I am working for the Union." McDowell denied this charge. The following morning, Plant Manager Ruehl called Young into his office and told him , "I am tired of hearing the talk that you have been set up to be shot off the roost." Young told him that is what he believed, and that he had been a union member for 25 years . Ruehl told him, "Well, if you want to organize somebody, why don't you go to Stonecutter Mills and organize them?" Ruehl then told him to tell Easterbrook and McDowell that he would take the job "and keep your nose clean, and we will get along." When Young told McDowell he would take the job if it would make everyone happy, McDowell asked him if he would give up his union book as it wouldn't be needed any longer . Young refused this saying if he ever were fired he would need the book to get another job. After some conversation about how long Young would work on the second shift he began in maintenance around the first of July 1967 at $2.11 per hour. In February 1968, Young, after receiving several increases , was only 5 cents short of the top wage of $2.36 per hour . At that time McDowell told him, "You are better than the most, but not quite as good as the best." When Young asked how he could get the top rate, McDowell told him , "Just keep 734 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the good work up that you are doing, right now." McDowell was Young's instructor in two voluntary courses that Respondent offered interested employees after hours. The first course Young took involved blueprint reading and Young was told by McDowell he finished among the first three of the five or six who completed the course. The second course involved precision measurements and again Young was among the four or five to complete the course. This course was completed on Monday, the day before he was discharged. D. Employer's Reasons for the Discharge Personnel Manager Thomas E. Edmundson testified that the reasons why he fired Young were linked to reports from McDowell over a period of 2 to 3 months before the discharge that Young "had probably gone as far as he could possibly go" as a tool and die man plus the events of April 29, 1968. However no blue slips warning Young of his work, as regularly used in the plant, were given Young before April 30, 1968. Edmundson testified that McDowell told him Young's failures were not "serious enough for blue slipping." On April 30, 1968, however, Edmundson, according to his testimony, received a blue slip on Young. The report he had was that Young had been assigned to fix a tube bender on April 29, 1968. It was a crucial job and the machine had to be fixed by "noon on the 30th." Young quit work on it at 3:30 April 29 and did not begin on it the first thing April 30. About 7:30 a.m. on that day, the press room called for the machine to be running and when McDowell checked into it he found Young "doing nothing, just chatting and shooting the breeze with some of his fellow employees." Hence the blue slip was made up. Scruggs, Young's supervisor, told him to go ahead and fix the bender. By 9 o'clock on April 30, it was fixed and running. Edmundson called Young in to his office and, according to Edmundson, told Young, "because of his overall performance and attitude, I thought it had just reached a point where it would serve our mutual benefit to have a parting of the ways at this time." He had to remove his tools and leave that same day. A separation slip was given Young the following day. It read, "Performance and attitude on job not consistent with company policies." Young's testimony was somewhat similar but there was an additional bit of testimony which has importance in the case. Young testified that it was the practice when working under Scruggs not to begin work in the morning, even on unfinished work, until Scruggs assigned it and that was all he was waiting for on the 30th. Scruggs was not called to testify, this was not denied by Respondent, and Young was not asked by Edmundson or McDowell why he wasn't working on the bender even though Edmundson said he "wanted the full facts." McDowell was the one who brought in the blue slip to Edmundson, and the slip had been made out without checking with Scruggs. McDowell, when questioned about when he talked to Young, how often he talked to him and what he said to him, testified that Young's work progressed "rather well" until about 2 months before his discharge (about the time the union authorization cards fell at his feet from Young's pocket). He could not remember the number of times the talks took place nor when they took place but did testify of telling Young on these occasions that "this looks all right, but would't it work better if it went some other way." McDowell also testified that he reported to Edmundson at the times he had these discussions with Young. E. Concluding Findings on the Discharge I find from the above evidence that Young engaged in union activities and that Respondent had knowledge of Young' s union activities. Mindful of the fact that an employer is protected in discharging an employee for any reason or no reason at all provided the real reason is not to encourage or discourage union activities (and a discharge of an employee because he engaged in activities protected under Section 7 of the Act does discourage union activities under authorities too numerous to list), it is necessary to carefully examine any reasons given for discharge. The law is also well known that if the reason given for the discharge does not stand up under scrutiny of the, surrounding circumstances, an inference can be made that the real reason for the discharge was union activities and not the reason given . And this is not to say that Respondent is under any burden to prove its reason for discharge. The burden of proof is always on the General Counsel to establish violations by a preponderance of the evidence. With these guidelines in mind, a recapitulation of the evidence discloses an employee, Young, active in the Union and known by his employer to be active in the Union is summarily discharged because he was found "doing nothing, just chatting and shooting the breeze with some of his fellow employees" early in the morning of April 30, 1968, when a tube bender he had been working on was to be completed by noon of the same day. No effort was made by supervision to check into why Young was not diligently working on the repair of the tube bender although if made it would have been determined that supervisor Scruggs had not yet assigned the daily task to Young in accordance with custom. Apparently it was immaterial to Respondent that Young, when assigned the task, completed the repairs by 9 a.m., some 3 hours before the deadline of noon for its completion. Also this employee had shown an extra dimension in his work by voluntarily taking and completing two courses of training on his own time which training would make him more valuable to the employer. The last course of training had been successfully completed only the day before his discharge. When these facts are considered in the light of evidence that Young's "rather well" progress in the plant stopped about the time the union authorization cards fell out of his pocket and made contact with the foot of a top supervisor, McDowell, some 6 weeks before his discharge; it strains credulity to believe that Respondent discharged Young for reasons stated. It seems far more reasonable to infer, and I so conclude, that Young's union activity was the real reason for the discharge with the happenings of April 30, 1968, serving only as an excuse - a pretext. This violates Section 8(a)(3) of the Act, and, derivatively, Section 8(a)(l) of the Act.' 'It is unnecessary to consider and decide whether supervisor Conner in fact told ex-employee Wilkie that Young was fired for his union activities. No connection was made as to how Conner came by this knowledge or whether it was only his opinion, assuming without deciding the credibility issue of whether the remark was ever made. GENERAL FIREPROOFING COMPANY 735 F. The Speech to Employees Employee James Torvinn credibly testified that he made an extemporaneous speech in favor of the Union to a group of about 30 employees during a lunch break about 2 days after the Respondent had fired Young. Following this speech, Edmundson threatened to discharge Torvinn if he ever did it again . I conclude that the speech was a protected concerted activity under Section 7 of the Act and that the threat by Edmundson interfered with employee Torvinn' s right to engage in concerted activities not on working time and accordingly the threat violated Section 8(a)(1) of the Act. Ford Motor Company, 131 NLRB 1462, 1464,'1472-76. G. The Employee 's Booklet Respondent's "Employee's Booklet" contained a section headed "Rules and Regulations" on pages 15-16 (GC Exh. 2). Rule 13 on page 16 states, "Soliciting or selling of any kind on Company property or Company time is prohibited ." Such wording has been held to be in violation of Section 8(a)(l) of the Act and I so find. Mason & Hanger, 405 F.2d I (C.A. 5).' 111. THE REMEDY Having found that the Respondent violated Sections 8(bXl) and (3) of the Act, I shall recommend that it cease and desist therefrom and that it take certain affirmative action designed to effectuate the policies of the Act in the particulars set forth in the Recommended Order herein. For the reasons which are stated in Consolidated Industries, Inc., 118 NLRB 60,61, and cases cited therein, I shall recommend a broad cease-and -desist order. Where the recommendation is to make an employee whole for any loss of earnings suffered as a result of discharge, the sum to be paid to him shall be computed in accordance with the formula set in F. W. Woolworth Company, 90 NLRB 289, with interest thereon at 6 percent per annum, as provided in Isis Plumbing & Heating Co., 138 NLRB 716. On the basis of the foregoing and the entire record, I hereby state the following: CONCLUSIONS OF LAW 1. Respondent is, and during all times material has been, an employer engaged in commerce and in the business affecting commerce within the meaning of Section 2(6) and (7) of the Act. 2. The United Steelworkers of America, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. The General Counsel has established by a preponderance of the evidence that Respondent has violated Sections 8(a)(1) and (3) of the Act as set forth 'Respondent's brief pointed out to the Trial Examiner that this rule had been redrafted and reprinted in the Employee Handbook and that it is currently a valid rule under present Board standards. General Counsel moved to strike this allegation in the brief on the grounds that there was no evidence offered in the record as to the redrafting of the rule. It is unnecessary to consider this allegation in the brief or to pass on the motion to strike made by the General Counsel inasmuch as the correction of an invalid rule does not moot the problem . However, a valid rule substituted for an invalid rule evidences a good faith compliance with the Act and with my proposed order. above. The remedy therefore has been provided above. RECOMMENDED ORDER Upon the basis of the above findings of fact and conclusions of law and upon the entire record in the case, it is recommended that the Respondent , General Fireproofing Company , its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discharging or otherwise discriminating against employees in order to discourage membership in United Steelworkers of America , AFL-CIO, or any other labor organization. (b) Threatening employees with discharge if they speak in favor of the Union. (c) Promulgating and maintaining an unlawful no-solicitation rule. (d) In any other manner interfering with, restraining, or coercing its employees in the exercise of their right to self-organization , to form, join, or assist United Steelworkers of America , AFL-CIO, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or mutual aid or protection, or to refrain from any and all such activities. 2. Take the following affirmative action which I find will effectuate the purposes of the Act: (a) Offer to Leroy Young, reinstatement to his former position or substantially equivalent position, without prejudice to his seniority or other rights and privileges previously enjoyed; and make him whole for any loss of pay he may have suffered by reason of the Respondent's discrimination against him, in the matter described in "The Remedy" section of this Decision. (b) Preserve and, upon request , make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records, and reports and all other records necessary to analyze the amount of back pay due. (c) Post at its plant in Forrest City, North Carolina, copies of the attached notice marked "Appendix".' Copies of said notice , on forms provided by the Regional Director for Region 11, shall be signed by a representative of the Respondent . The posting shall take place immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that such notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 11, in writing, within 20 days from the receipt of this Decision, what steps it has taken to comply herewith.' 'In the event that this Recommended Order is 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 is enforced by a decree of a United States Court of Appeals, the words "a Decree of The United States Court of Appeals Enforcing an Order" shall be substituted for the words "a Decision and Order." 'In the event that this Recommended Order is 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." 736 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 our employees that: WE WILL NOT discharge, or otherwise discriminate against employees in order to discourage membership in or support of United Steelworkers of America, AFL-CIO, or any other labor organization. WE WILL NOT threaten our employees with discharge if they speak in favor of the Union or give assistance or support to it. WE WILL NOT maintain an unlawful no-solicitation clause in our employees' handbook. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of the right to self-organization, to form labor organizations, to join or assist the above Union, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other such mutual aid or protection and to refrain from any and all such activities. WE WILL offer to Leroy Young full reinstatement to his former or substantially equivalent position, without loss of seniority or other rights or privileges, and make him whole for any pay he lost because of the discrimination against him with interest at 6 percent per annum. All our employees are free to become , remain or refrain from becoming or remaining , members of United Steelworkers of America, AFL-CIO, or any other labor organization. GENERAL FIREPROOFING COMPANY (Employer) Dated By (Representative) (Title) This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board' s Regional Office, 1624 Wachovia Building, 301 North Main Street, Winston-Salem, North Carolina 27101, Telephone 919-723-2303.