Feldkamp Sheet Metal, Inc.

712 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Feldkamp Sheet Metal, Inc. and Ronald E. Easton. Case 9-CA-4885 June 16, 1969 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING AND JENKINS On April 3, 1969, Trial Examiner Marion C. Ladwig issued his Decision in the above-entitled case, finding that Respondent had not engaged in the unfair labor practices alleged in the complaint and recommending that the complaint be dismissed in its entirety, as set forth in the attached Trial Examiner's Decision . Thereafter, the General Counsel filed exceptions to the Trial Examiner's Decision and a supporting brief. Respondent filed a brief in opposition to the General Counsel's exceptions. 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, the briefs, and the entire record in this case, and hereby adopts the findings,' conclusions, and recommendations of the Trial Examiner. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE MARION C. LADwIG, Trial Examiner: This case was tried at Cincinnati, Ohio, on January 21-23, 1969, pursuant to a charge filed on September 19, 1968,' by an individual, Ronald E. Easton, against the Respondent, Feldkamp Sheet Metal, Inc., herein called the Company, and pursuant to a complaint issued on December 4. The primary issues are whether the Company (a) discriminatorily discharged Easton , a union steward, on July 29 and again on September 13, and (b) made unlawful statements to another employee, Union President George Huesman, in violation of Section 8(aXI) and (3) of the National Labor Relations Act, as amended. Upon the entire record, including my observation of the demeanor of the witnesses, and after due consideration of the briefs filed by the General Counsel and the Company, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY AND THE UNION INVOLVED The Company, an Ohio corporation engaged in the business of sheet metal construction and erection at Cincinnati, receives annually goods and materials valued in excess of $50,000 directly from outside the State, and performs services valued in excess of $50,000 for customers located outside the State. The Company admits, and I find , that the Company is engaged in commerce within the meaning of Section 2(6) and (7) of the Act, and that Sheet Metal Workers International Association, AFL-CIO, Local Union No. 141, herein called the Union, is a labor organization within the meaning of Section 2(5) of the Act. 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, and hereby orders that the complaint herein be, and it hereby is, dismissed in its entirety. 'In the absence of exceptions thereto, we adopt pro forma the Trial Examiner's finding that Respondent did not violate Section 8(aX3) of the Act in discharging Ronald E . Easton. Contrary to the Trial Examiner, we find that the statements by Respondent's President Feldkamp to employee Huesman that Feldkamp would not have hired him had he known Hussman was president of the Union and that Hussman would be transferred to a single jobsite were unlawful. These remarks were evoked by Huesman's refusal to haul tools from one jobsite to another, but in so doing, Hussman, correctly or incorrectly, was attempting to implement the terms of the collective-bargaining agreement. Such activity is protected by Section 7 of the Act . (See State Wide Painting A Decorating Co., 174 NLRB No. 2.) However, since Huesman was not harmed by the remarks or the subsequent job transfer and since there is an absence of union animus by Respondent, we do not find that a remedial order is warranted. Accordingly, we adopt the Trial Examiner's recommendation that the complaint be dismissed in its entirety. 176 NLRB No. 100 II. THE ALLEGED UNFAIR LABOR PRACTICES A. Background The Company is a union contractor , employing two relatives of Union Business Manager Ray Bickers. One of the relatives is Shop Foreman Lawrence McDaniels, a union member and Bickers' nephew . The other is Bickers' son, who works there as a third-year apprentice . Company President James E. Feldkamp, a former member of the Union, signed a union agreement in 1963, shortly after the Company began operations. The business has grown from two employees (McDaniel and another) in 1963, to from 10 to 13 employees in 1968. In the absence of a union steward at the shop, Business Manager Bickers contacted the union members through McDaniel. There is no evidence of union animus. Easton was hired in September 1967, upon the recommendation of Foreman McDaniel, who had known Easton socially for a number of years . About February 1, the Company assigned Easton to be leadman on a school air-conditioning job, replacing a more experienced employee, leadman Ernest Summers, who went to the hospital and was off from work about 3 months. Easton, age 27, became leadman (over two journeymen) on four additional school jobs during Summers ' absence, and continued as leadman after Summers returned to work. 'All dates, unless otherwise indicated , are in 1968. FELDKAMP SHEET METAL, INC. 713 In April, Business Manager Bickers informally appointed Easton to be "shop steward," with the duties of "looking out for" the Union's work and calling the Union "whenever he sees something wrong on the job." Bickers did not notify the Company of Easton's appointment, nor advise the other employees that Easton was their steward. B. Easton Twice Discharged On Friday, July 26, while President Feldkamp was in the hospital, Foreman McDaniel received information that leadman Easton had gone to Canada on an unauthorized vacation, leaving two new employees on the four school jobs to work without any direction. McDaniel recommended that he be discharged. The next Monday morning, July 29, Easton did not report to work. When he called in about midmorning, President Feldkamp discharged him. Following this first discharge, Easton did not go to the union hall until 2 weeks later, on Monday, August 12, when he complained about not receiving his full pay and about the wording of his discharge slip. Union Business Representative Edward Annis went to the Company with him to get these matters adjusted. In their conversation with President Feldkamp, nothing was said about Easton being unjustly discharged, or being discharged because he was a steward. The next day, August 13, at Annis' request, Feldkamp agreed to talk to Easton about returning to work. There was no contention at that time that Easton was entitled to backpay for the 12 workdays he was off. Feldkamp rehired him on August 14. About a month later, on Friday, September 13, Foreman McDaniel notified Business Manager Bickers that the Company again wanted to discharge Easton, and requested a meeting to discuss it. No meeting was arranged, and McDaniel discharged Easton that afternoon. The following Monday evening, September 16, the Union held a special meeting of the executive board to discuss the merits of the discharge. The Union took no action to complain about the discharge - not filing either a grievance or an NLRB charge. Three days later, Easton himself filed the charge herein, claiming that he was discharged both times because of his activities on behalf of the Union. 1. The July 29 discharge Foreman McDaniel (who impressed me as an honest, trustworthy witness) testified that on Friday, July 26, employee Summers (then working on a different job) reported hearing that Easton had left the school jobs and gone "on a little vacation and told the men on the job to cover for him." Later that day, when the truckdriver returned from making deliveries to the four school jobs, McDaniel asked him if he had seen Easton. The truckdriver, in McDaniel's words, "kind of smiles, and he says, `I don't want to get involved in this.' And I says, `All you've got to do is tell me if you seen Ron Easton on the job or not.' And he says, 'No, I didn't.' " That evening, McDaniel talked over the telephone to President Feeidkamp in the hospital, and recommended Easton's discharge, stating "Nobody else wants to work with him anyway." McDaniel credibly testified that several of the other union sheet metal workers had been complaining about Easton and had stated that they did not care to work with him. McDaniel and employees Summers, Elmer Kuhn, and Donald Androne credibly testified about a number of incidents in which Easton had caused trouble with other crafts, taken other employees' tools, continually complained about not getting enough overtime, wanted to be "No. 1" in the shop and whenever assigned to assist on a job, been careless in his work, caused difficulty with the architect's representative, and failed to do his best work. None of the employees testified on Easton's behalf except Union President Huesman, who admitted that at the September 16 executive board meeting, Foreman McDaniel and employees Kuhn and Androne said they would not work with Easton. (I discredit Business Manager Bickers' rebuttal testimony that "they never said that" in the meeting.) Concerning the trip to Canada, the General Counsel elicited from employee Summers (on cross-examination) that on July 26, employee George Rudd came to the job where Summers was working. Rudd stated that he had been talking to employee Huesman on the phone and that Huesman had said that Easton had gone on vacation. Later, when Summers telephoned McDaniel for materials, he "just, without thinking" asked McDaniel, "How long is Ron going to be in Canada on vacation?" (This corroborates Foreman McDaniel's testimony.) Several days later, following Easton's July 29 discharge, Huesman was complaining to Summers about Easton "taking off" and having Huesman "cover" for him on the job. Huesman told Summers that he had tried to contact Easton in Canada, where Easton's mother-in-law lives, but was unable to reach him. (I discredit Huesman's denials that he made these statements, and credit Summers' testimony.) Easton denied that he went to Canada on July 26 (claiming that he re-hurt his back and left work early that day), and denied virtually every one of the above-mentioned incidents. He did not impress me as a reliable witness, and I discredit his denials. I further discredit, as a pure fabrication, his testimony that before his July 26 absence, he had informed President Feldkamp and Foreman McDaniel that he was the union steward. (In Easton's pretrial affidavit, he stated that when he telephoned Feldkamp on Monday morning, July 29, Feldkamp "told me that he had found out that I was a shop steward and gone and called my business manager on him ... and therefore he was sending me my check in the mail . . ... Yet, at the trial, Easton testified that months earlier, .in May, he had advised both Feldkamp and McDaniel that he was the union steward.) Easton had told some of the employees that he was the steward, but other employees had not heard this "rumor." Easton had spoken to Foreman McDaniel about getting more overtime, but he had done so as an individual employee, not as a steward. Easton admitted that none of the employees had complained to him about the distribution of overtime. From all the credible evidence, I find that Easton's only activity as a steward had been reporting to the Union. (Business Manager Bickers testified that he never divulges a steward's name to the employer when the steward reports an incident on the job.) The General Counsel contends that "Easton's discharge on July 29 was not for disciplinary reasons for an unexplained absence," or for "an accumulation of offenses," but "rather was designed to eliminate a steward who was diligently performing the duties of his office contrary to the Respondent's interest." However, in making this contention, the General Counsel ignores the conflict between Easton's pretrial affidavit and his testimony at the trial, and also the fact that neither Easton nor the Union contended at the time that the 714 DECISIONS OF NATIONAL LABOR RELATIONS BOARD discharge was discriminatorily motivated . I find that Easton's claim , that his first discharge resulted from his union activity as a steward, was fabricated as an afterthought. 2. The September 13 discharge Shortly after Easton was rehired on August 14, the Company assigned him and employee Summers to work over the weekend on an overtime job. Because of an error in measurement, excessive overtime was worked, resulting in a substantial loss to the Company. The following week, a pipefitter complained to Foreman McDaniel about Easton's conduct on the job, saying, "Don't ever send that guy down on a job with us again " - calling Easton a "loud-mouth young punk." (Summers credibly testified that Easton was "bossing them around," trying to tell the pipefitters how to do their work.) The work on the school jobs proceeded slower than expected, and the Company lost about $2,000 on one of the jobs. The Company reached the opinion that Easton, as the leadman, was not performing at the best of his ability. In the meantime, according to Foreman McDaniel's credited testimony, Easton refused to speak to McDaniel - even to give McDaniel orders for materials over the telephone . One day, when McDaniel visited a job where employees Summers and Huesman were working, Huesman (in McDaniel's words) "told me to tell Jim [Feldkamp] not to send him back up . . . to work with Ron Easton because he would not work with Ron Easton." Employees Kuhn , Rudd , Summers, and Androne had already told McDaniel they did not want to work again with Easton. Complaints against Easton continued to accumulate, and on September 13, after notifying the Union , Foreman McDaniel discharged him. The following Monday, the Union called McDaniel and other members working at the Company to appear before the executive board. After hearing the employees' complaints against Easton, the Union took no action to get his job back. Having considered all the evidence , I find that the General Counsel has failed to prove that Easton was discharged for any reason other than his misconduct, his failure to do his best work , and his inability to work in harmony with others. I therefore find that the General Counsel has failed to prove by a preponderance of the evidence that Easton was discriminatorily discharged. C. Statements Made to Union President 1. Dispute over interpretation of agreement The Sheet Metal Workers Agreement, between the Union and the Contractor's Association, had for years provided that employees "shall not be permitted or required as a condition of employment ... to transport . . . tools, equipment or materials from shop to job , from job to job, or from job to shop," provided that they could "transport ... personal tools from home to shop or job at starting time or from job to home at quitting time." The 1967 Addenda to the Agreement listed 13 "necessary hand tools" which the employees must furnish. Interpreting these contractual provisions , the Union took the position that the only "personal tools " which the employees could transport in their cars were the 13 listed hand tools, and that it would be necessary for a company truck to be called to transport from job to job such commonly used company-furnished tools as a 2 1/2- or 3-pound electric drill and cord. For purposes of this decision, I find it unnecessary to rule on the merits, or reasonableness, of this position. 2. Statements to Huesman About 2 weeks before Easton's July 29 discharge, the Union referred its president, George Huesman, to work under leadman Easton on the four school air-conditioning jobs. Huesman reported directly to the job, and did not meet President Feldkamp until about the first week in August, after leadman Kuhn had replaced Easton. Vigorously adhering to the Union's interpretation of the Agreement, Huesman refused to transport the necessary drill and cord when traveling from one school job to another. On one occasion, he walked - on company - the 4 miles between two of the jobs, carrying the light-weight tool in his hand, rather than transport it in his car . On another occasion, leadman Kuhn said he was going to haul the drill and cord over to another school, and Huesman told him (in Huesman ' s words), "I'll drive over, but you're not taking no drill and cord over." It was necessary for leadman Kuhn to telephone the shop, located about 15 miles away, to get a truck dispatched to haul the small tool. (I note that at a later time, when assigned to work with leadman Summers, Huesman admittedly threatened to prefer charges against Summers if he put the drill and cord in his car.) About the first week in August, President Feldkamp went to the job where Huesman was working and (in Huesman's words) "told me had he known I was president of Sheet Metal Workers Union, that he would not have hired me as I was running his business." Feldkamp then notified Huesman that he was being transferred from the four school jobs to a single jobsite, where he would not have to travel from one job to another. 3. Alleged Section 7 violation The complaint alleges that President Feldkamp violated Section 7 of the Act by stating to the employee that he would have never hired the employee if he had known the employee was the union president, and by stating that he was transferring the employee to a single jobsite, "because the employee refused to haul tools to and from the present jobsite, which would be in violation of the existing collective bargaining agreement between the Union and Respondent." In its brief, the Company contends that "Huesman was not harmed in any way; Feldkamp's statement at worst was a minor outburst ." (Feldkamp admitted telling Huesman, "George, if I had known you were president of the Local I wouldn't have hired you," but claimed he made the statement because of Huesman's "bad reputation" for not being a good worker. This obviously fabricated excuse reflects adversely on Feldkamp's credibility.) Ordinarily, a statement by an employer that he would not have hired an employee if he had known the employee held a union office, would constitute unlawful restraint in violation of Section 8(a)(1) of the Act. However, in the circumstances of this case , I find that Feldkamp's statement to Huesman to that effect was not coercive. Union President Huesman had interfered with the operation of the Company' s business, by directing FELDKAMP SHEET METAL, INC. leadman Kuhn not to transport the drill and cord, instead of permitting the work to proceed and filing a grievance. Such an interference with the work - whether or not the Union's interpretation of the Agreement was correct - was not a protected activity . Feldkamp's statement clearly referred to Huesman's interfering with, or "running," the business. The additional statement , that Feldkamp was transferring Huesman to a single jobsite, did not threaten a reprisal for holding the union, office. There was no antiunion motivation; the transfer was for the nondiscriminatory purpose of avoiding or curtailing such interferences with the work . I therefore find that, in the absence of any union animus and any unfair labor practices on the part of the Company , the statements to Huesman did not violate the Act. (I express no opinion on 715 whether the Company 's conduct violated the collective bargaining agreement.) CONCLUSIONS OF LAW The General Counsel has failed to prove that the Company violated Section 8(a)(3) and ( 1) of the Act. Accordingly, on the basis of the foregoing findings and conclusions, and on the entire record, I recommend pursuant to Section 10(c) of the Act, issuance of the following: RECOMMENDED ORDER The complaint is hereby dismissed in its entirety.