L. B. Foster Co.

L. B FOSTER COMPANY 401 L. B. Foster Company and John W. Eakes and Roy Lee Sparks. Cases 10-CA-8830-1 and 10-CA-8830-2 September 28, 1971 DECISION AND ORDER BY MEMBERS FANNING, JLNKINS, AND KENNLDY TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE ALBA B. MARTIN, Trial Examiner: This case was heard in Birmingham, Alabama, on April 20, 1971, pursuant to a charge duly filed and served,' and a complaint issued on March 10, 1971. The issue litigated was whether Respon- dent violated Section 8(a)(3) and (1) of the Act2 on January 21 and 22, 1971. At the close of the hearing the General Counsel made a short oral summation. After the hearing Respondent filed a brief which has been duly considered. Upon the entire record in the case and my observation of the witnesses, I hereby make the following: FINDINGS AND CONCLUSIONS On August 6, 1971, Trial Examiner Alba B. Martin issued his Decision in the above-entitled proceeding, finding that Respondent had engaged in and was engaging in certain unfair labor practices alleged in the complaint and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, Respondent filed exceptions and a sup- porting 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 proceeding 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 brief, and the entire record in this proceeding, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner. i ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Trial Examiner and hereby orders that Respondent L. B. Foster Company, Birmingham, Alabama, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's recommended Order. I The Respondent has excepted to certain credibility findings made by the Trial Examiner It is the Board's established policy not to overrule a Trial Examiner's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions were incorrect Standard Dry Wall Products, Inc, 91 NLRB 544, enfd 188 F 2d 362 (C A 3) We have carefully examined the record and find no basis for reversing his findings 1. THE BUSINESS OF THE RESPONDENT L. B Foster Company, Respondent herein, sometimes referred to as Foster and the Company, is a Pennsylvania corporation which has an office and place of business in Pawnee, Alabama, its sole facility involved herein, where it is engaged in the storing, fabrication, and sale of steel piping. During the calendar year prior to the issuance of the complaint, a representative period, Respondent sold and shipped finished products valued in excess of $50,000 from its Pawnee facility directly to customers located outside the State of Alabama. II. THE LABOR ORGANIZATION INVOLVED Teamsters Local Union 612, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, herein called the Union, is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. The Discharges, the Promise, and the Threats At Respondent's Pawnee facility, hereinafter referred to as the yard, Respondent had only its general foreman, Jerry Plyler, and two employees, John Wayne Eakes and Roy Sparks. Eakes had worked at the yard from almost the opening of the yard in March 1970. Sparks had worked there since April 1970. Plyler discharged both employees simultaneously on January 22, 1971. Eakes had contacted the Union in early January 1971,3 and both employees had signed cards for the Union on January 14. At 8:53 a.m. on January 21 the Union sent Respondent a telegram reading as follows: Please be advised that Roy Sparks and John Eakes have requested that Teamsters Local 612 be their bargaining agent. We would like for you to give these people the consideration guaranteed under the National Labor Relations Act. According to the credited testimony of the Union's secretary-treasurer, Gunning, a credible witness, he called Fakes, an individual, filed the charge in Case 10-CA-8830-1 on January 27, 1971 Sparks, an individual, filed the charge in Case 10-CA-8830-2 on January 27, 1971 2 "The Act" refers to the National Labor Relations Act, as amended, 29 U.S C Sec 151, et seq 3 All events herein occurred in 1971. 193 NLRB No. 68 402 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Plyler about 10 a.m. on January 21, told him that Eakes and Sparks had signed up with the Union, and requested recognition of the Union. Plyler replied that he didn't believe it, and that "besides, you can't do this, this is a nonunion company."4 Gunning replied that he would "pursue the matter through the process of the NLRB." Shortly before lunchtime that day, January 21, when Eakes and Sparks went into the yard office, a trailer, to wash up, Plyler referred to the fact that someone from the yard had contacted a labor union, and added words to the effect that when you mess with a union you are messing up at Foster, that when they started talking union around there they were talking trouble. This, according to the credited testimony of Eakes and Sparks, who by their demeanor as witnesses impressed me as credible witnesses. Just after the two employees returned from lunch that noon, January 21, Plyler read the substance of the above telegram to them, and added, according to the credited testimony of Eakes and Sparks, that they could join the Union if they wanted to but that they couldn't belong to the Union and work for Foster. Eakes said that they had signed cards for the Teamsters. Plyler told them they could continue working for Foster if they dropped or voided the cards, but that otherwise the next day would be their last day with the Company Plyler testified that after reading the telegram he told Eakes that the next day would be his last, that it was not because he joined the Union, but that "tomorrow you are being fired for being insubordinate." Plyler testified also that although at that time he was not familiar with the protections of the Act, "I was aware since I was 15 years old that you can't come out and tell a man he's fired for joining a union." During coffee break time that afternoon, Thursday, January 21, according to the credited testimony of Eakes, Plyler came up to the two employees and asked them if they were going to drop the union cards. After he asked Eakes several times, the latter replied that he was not dropping his card. Sparks replied that he could not drop his. Plyler then repeated his earlier statement that if they didn't drop them, the next day would be their last with the Company. Just after the two employees clocked out about 5 o'clock that afternoon, Plyler called Sparks back into the office and, according to Sparks' credited testimony, talked to him further about withdrawing from the Union. He told him he would get a raise if he withdrew, and that he had until the next morning, Friday, to decide whether to withdraw, quit, or get fired. Plyler told Sparks that Eakes was definitely finished, that if Sparks wanted to act like Eakes, Plyler thought it was a mistake. Plyler's testimony concerning Sparks was that Sparks had not given him much trouble and was a satisfactory employee except for Eakes' influence upon him. Sparks and Eakes were brothers-in-law and Sparks rode to and from work with Eakes. Plyler testified he was willing to keep Sparks as an employee once Eakes was gone. Sometime on January 21 Plyler wrote and signed a memorandum concerning Sparks for the company payroll clerk, dated January 21, and reading as follows: 4 Plyler testified that the Company 's southeastern district is nonunion This district is comprised of the Company's facilities in Georgia , Alabama, Roy has been told that he has been fired as of 1/22/71, after conversation with Roy he was told he could still work if he wanted to, he told me that he did not want it (hisjob) back. At the beginning of the following workday, Friday, January 22, Plyler had papers for the two employees to sign, stating that they had quit their jobs. Eakes and Sparks refused to sign. Sometime that morning the Umon's secretary-treasurer, Gunning, telephoned Plyler, told him he understood the latter was going to terminate Eakes and Sparks at the end of that day, and asked him why. Plyler said it was because of their "insubordination in the past." Just before quitting time that afternoon, Plyler dis- charged Eakes and Sparks, giving as the reason "insubordination." According to the uncontradicted and credited testimony of the two employees, Sparks asked what "insubordination" meant, and Plyler replied, going behind his back and signing up with the Union. On January 22, Plyler wrote on the above-quoted memorandum relating to Sparks: Note: Roy was asked today (Friday-22) if he wanted to stay with the Company. He said no. On January 22 also, Plyler signed forms for the payroll department giving as the reason for the discharge of Eakes, "Insubordinate, constant gripe about work and pay"; and stating, "Wayne was explained to that the reason for his termination was for insobination [sic] and constant reprimand." On that day Plyler signed a form for the payroll department concerning Sparks' discharge, stating, "Roy was explained to that the reason for his termination was for insobination [sic] and constant reprimanded [sic]." Respondent's basic defense to the discharges was that the two employees were unsatisfactory workers, that Plyler put up with them as long as he could, and that he decided to get rid of them prior to his knowledge of their affiliation with the Union. The credible evidence does not sustain this defense. During his 10 or 1I months with the Company Eakes received six raises in pay (two of which were cost-of-living raises) and during his 9 or 10 months Sparks received four raises in pay; wage records which in my judgment show them to have been better workers than Plyler allowed in his testimony. On January 6, 1971, 12 workdays before his discharge, Eakes advised Plyler that he was quitting and giving a week's notice because he was not making enough money. The following morning Eakes advised Plyler that he had changed his mind, that he wanted to stay. Plyler let him stay although Plyler was already in contact with a possible replacement. If Eakes had approached being as bad an employee as Plyler pictured him to be in his testimony, it is inconceivable that he would have let him continue to work on this occasion. Plyler wrote on a memorandum for the company records: "Wayne has told me he does not want to quit. Was told he could keep his job as long as he did his work." There was no credible evidence that Eakes did not do his work during the 11 remaining days before his discharge. Even after he had discharged Sparks on January 21, Florida, and Tennessee L. B. FOSTER COMPANY 403 Plyler was ready to keep him as an employee, once Eakes was gone . It is inconceivable to me that under these circumstances Sparks was an unsatisfactory worker. The record contains some memoranda concerning the two employees which Plyler wrote and put in their personnel files. He did not tell the employees he was doing this. These, plus testimony, showed that Eakes' alleged insubordination, as Plyler allegedly saw it, was his failure always to wear his hard (safety) hat, and his complaints about not getting enough pay to be able to take care of his family. Sparks' alleged insubordination was that he was a slow worker and did not always wear the required safety goggles. Also, on November 30, 1970, when Plyler was out of town, the two employees had punched out an hour early, at 4 p.m., without Plyler's approval. As has been seen above, in his forms for the payroll department after the discharges, Plyler referred not only to insubordination but also to constant reprimands to the employees. The record did not justify the conclusion that the employees were being constantly reprimanded. The only conclusion borne out by the record was that he reminded them from time to time to wear their safety equipment; but he never told them they were receiving written reprimands, never showed them a written repri- mand, and never threatened them with loss of their jobs for any reason. Evidence that Plyler was thinking of replacing one or both of his employees earlier during the week of the discharges was his request at that time of a neighboring employer if he knew where Plyler could find some men. Plyler began looking for a replacement for Eakes earlier that week because shortly before that the latter allegedly complained about the coldness of the weather in which they were doing some outside work,5 which Plyler allegedly deemed to be insubordinate. Eakes credibly denied complaining. But in fact Plyler did not hire any replace- ment until January 23, the day after the discharges, and the record did not support the conclusion that Plyler would have hired the replacement at that time if the vacancy had not already arisen . Any such conclusion would have to be based on Plyler's testimony concerning his intentions, which testimony I do not find credible. By his testimony generally and by his demeanor as a witness Plyler did not impress me as a credible witness. Also, weighty evidence, in my view, that Plyler would not necessarily have hired the replacement the day after Eakes' discharge if the vacancy had not existed is the fact that he had never, prior to the Union, warned or threatened either employee that they were about to be discharged. Conclusions: Plyler was not fully satisfied with the work of the two employees, but never prior to the Union did he ever indicate to them an intent to discharge them, and when he did make such threat on January 21, 1971, it was in the context of their union affiliation which he likened unto "messing up with Foster" and "talking trouble." After reading the Union's telegram to them that day, Plyler told them they could not belong to a union and work for Foster and threatened discharge the next day unless they withdrew from the Union. He tried with a promise of a raise to induce Sparks to leave the Union and stay with the Company. On January 22 he tried to get the employees to sign a paper stating that they were quitting, and failing that he discharged them allegedly for "insubordination," which he defined to them as going behind his back and signing up with the Union. Under all the circumstances of this case insubordination was palpably a pretext and not the precipitating cause of the discharges. Whatever the employees' shortcomings and whatever Plyler's intent towards them, the evidence shows that at least one of the reasons he discharged them on January 22, 1971, was because of their union affiliation and activity. Upon the preponderance of the credible evidence in the entire record considered as a whole, I conclude that by these discharges Respondent violated Section 8(a)(3) and (1) of the Act. I conclude further that Plyler's threats that they were messing up with Foster and talking trouble; his threats of discharge the following day unless they withdrew from the Union; and his promise of a raise to Sparks if Sparks would leave the Union and remain with the Company; amounted to further violations by Respondent of Section 8(a)(1) of the Act. CONCLUSIONS OF LAW 1. L. B. Foster Company is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Teamsters Local Union 612, affiliated with Interna- tional Brotherhood of Teamsters, Chauffeurs, Warehouse- men and Helpers of America, is a labor organization within the meaning of Section 2(5) of the Act. 3. By discriminatorily discharging John Wayne Eakes and Roy Sparks on January 22, 1971, because of their union affiliation and activity, thereby discouraging membership and activity in the Union, Respondent has violated and is violating Section 8(a)(3) and (1) of the Act. 4. By threatening employees that they are in trouble because of the Union, that they could not belong to a union and work for Foster, and by threatening discharge unless the employees withdrew from the Union, Respondent has violated and is violating Section 8(a)(1) of the Act. 5. By promising an employee a raise to try to induce him to leave the Union and stay with the Company, Respondent has violated and is violating Section 8(a)(1) of the Act. 6. The aforesaid labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. REMEDY In order to effectuate the policies of the Act, I recommend the customary broad cease-and-desist order and the affirmative relief conventionally ordered in cases of this nature, where Respondent's unfair labor practices were of a character which struck at the roots of employee rights safeguarded by the Act. To remedy its discriminatory discharge of the two employees Respondent will be required to offer John Wayne Eakes and Roy Sparks reinstatement to their former 5 On direct examination Plyler testified they were cutting pipe. On cross-examination he testified they were spreading stone. 404 DECISIONS OF NATIONAL LABOR RELATIONS BOARD or substantially equivalent positions, without prejudice to their seniority or other rights and privileges, and to pay each of them backpay (less net interim earnings) computed on a quarterly basis, plus interest at 6 percent per annum, as prescribed in F. W. Woolworth Company, 90 NLRB 289 (1950), and Isis Plumbing & Heating Co., 138 NLRB 716 (1962), from the date of the discharge, January 22, 1971, to the date when Respondent offers him reinstatement. Upon the foregoing findings of fact and conclusions of law, upon the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended- 6 ORDER 6 In the event no exceptions are filed as provided by Sec. 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, recommendations, and recommended Order herein shall, as provided in Sec 102 48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and order, and all objections thereto shall be deemed waived for all purposes 7 In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall be changed to read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " s In the event that this recommended Order is adopted by the Board after exceptions have been filed, notify the Regional Director for Region 10, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith Respondent, L.B. Foster Company, of Birmingham, Alabama, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discriminatorily discharging employees because of their union affiliation and activity in order to discourage membership in the Union. (b) Threatening employees that they are in trouble because of the Union, and that they cannot belong to a union and work for Foster. (c) Threatening discharge unless employees withdraw from the Union. (d) Promising employees a raise to induce them to leave the Union and stay with the Company. 2. Take the following affirmative action, which I find will effectuate the policies of the Act: (a) Offer to John Wayne Eakes and Roy Sparks reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges, and pay them backpay in the manner prescribed in the portion of the Trial Examiner's Decision entitled "Remedy" for any loss of earnings suffered by reason of the discrimination against them (b) Notify John Wayne Eakes and Roy Sparks if presently serving in the Armed Forces of the United States of their right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. (c) 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 backpay due under the terms of this recommended Order. (d) Post at its yard in Birmingham, Alabama, copies of the attached notice marked "Appendix." 7 Copies of said notice, on forms provided by the Regional Director for Region 10 (Atlanta, Georgia), after being duly signed by Respondent's authorized representative, shall be posted by it 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 said notices are not altered, defaced, or covered by any other material. (e) Notify said Regional Director, in writing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith.8 APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Act gives all employees these rights: To engage in self-organization To form, join, or help unions To bargain collectively through a representative of their own choosing To act together for collective bargaining or other aid or protection To refrain from any or all of these things WE WILL offer to John Wayne Eakes and Roy Sparks immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority and other rights and privileges previously enjoyed, in accordance with the recommendations of the Trial Examiner's Decision. WE WILL pay to John Wayne Eakes and Roy Sparks backpay for any loss of pay they may have suffered as a result of our discrimination against them, in accordance with the recommendation of the Trial Examiner's Decision. WE WILL notify John Wayne Eakes and Roy Sparks if presently serving in the Armed Forces of the United States of their right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. WE WILL NOT discharge or in any other way discriminate against any employee because of his union affiliation or activity. WE WILL NOT threaten employees that they are in trouble because of the Union, and that they cannot belong to the Union and work for Foster. WE WILL NOT threaten discharge to employees unless they withdraw from the Union. WE WILL NOT promise employees a raise to induce them to leave the Union and stay with the Company. 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 Teamsters Local Union 612, affiliated with International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America, or any L. B. FOSTER COMPANY other labor organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purposes of collective bargaining or other mutual aid or protection, or to refrain from any and all such activity All our employees are free to become, or to refrain from becoming, members of any labor organization. L. B. FOSTER COMPANY (Employer) Dated By 405 (Representative) (Title) This is an official notice and must not be defaced by anyone. 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. Any questions concerning this notice or compliance with its provisions may be directed to the Board's Office, Peachtree Building, Room 701, 730 Peachtree Street, NE., Atlanta, Georgia 30308, Telephone 404-526-5760.