Empire Steel Mfg. Co.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Empire Steel Manufacturing Company, Inc. and Local Union No. 3169, United Steelworkers of America, AFL-CIO. Case 19-CA-9311 January 27, 1978 DECISION AND ORDER BY MEMBERS PENELLO, MURPHY, AND TRUESDALE On October 5, 1977, Administrative Law Judge Richard J. Boyce issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached 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. 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 Administrative Law Judge, as modified below, and hereby orders that the Respon- dent, Empire Steel Manufacturing Company, Inc., Billings, Montana, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, as so modified: Substitute the following for paragraph 2(a): (a) Offer to Perry Hillner immediate and full reinstatement to his former job or, if that job no longer exists, to a substantially equivalent job, without prejudice to his seniority or other rights and privileges, and make him whole for any loss of earnings or benefits suffered by reason of his unlawful discharge, plus interest.9 B9 ackpay is to be computed in accordance with F. W. Woolworth Company, 90 NLRB 289 (1950), with interest to be computed in the manner set forth in Florida Steel Corporation, 231 NLRB 651 (1977). See, generally, Isis Plumbing &d Heating Co, 138 NLRB 716 (1962). The Respondent has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an Administrative Law Judge's resolutions with respect to credibili- ty unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have carefully examined the record and find no basis for reversing his findings. 234 NLRB No. 78 DECISION STATEMENT OF THE CASE RICHARD J. BOYCE, Administrative Law Judge: This case was heard before me in Billings, Montana, on July 28, 1977. The charge was filed March 14, 1977, by Local Union No. 3169, United Steelworkers of America, AFL- CIO (hereinafter the Union). The complaint issued April 26, 1977, alleging that Empire Steel Manufacturing Com- pany, Inc. (hereinafter the Respondent), has violated Section 8(a)( 1) of the National Labor Relations Act (hereinafter the Act). The parties were permitted during the hearing to intro- duce relevant evidence, examine and cross-examine wit- nesses, and argue orally. Posthearing briefs were filed for the General Counsel and for Respondent. I. JURISDICTION Respondent is a Montana corporation engaged in the fabrication of steel products at plants in Billings and Great Falls. Its annual gross revenue exceed $500,000, of which over $50,000 comes from customers outside the State of Montana. Respondent is an employer engaged in and affecting commerce within Section 2(2), (6), and (7) of the Act. 11. LABOR ORGANIZATION The Union is a labor organization within the meaning of Section 2(5) of the Act. Ill. ISSUE The complaint alleges that Respondent violated Section 8(a)(1) when it discharged its employee, Perry Hillner, on March 3, 1977, because he had called an employee meeting on March 2 "to discuss the accidental dismemberment of an employee while working at the Billings facility the previous day." The answer denies any wrongdoing. IV. THE ALLEGED UNFAIR LABOR PRACTICE A. Facts The production and maintenance employees at Respon- dent's Billings plant are represented by the Union. A bargaining agreement between the two was in effect at relevant times. Among its provisions was the following: ARTICLE 14. Strikes and Lockouts There shall be no lockouts on the part of the Company, or strikes, slow-downs or work stoppages on the part of the Union during the life of this contract or any renewal or extension thereof. Hillner, the dischargee, began working for Respondent in 1970, and was a leadman in the truck tank department when fired. He also was the Union's recording secretary and a member of its in-plant safety committee when fired. 530 EMPIRE STEEL MFG. CO., INC. The events leading to the discharge began March 1, 1977, when one of the bargaining unit employees caught his arm in a machine known as a plate bending roll, necessitating amputation. The next morning, March 2, 1977, presumably because on the Union's safety committee, Hillner partici- pated in a meeting with three management officials to discuss the accident and ways to improve the safety of the plate bending roll, and to make plans for resumption of the machine's operation. The management officials were Thomas Breen, vice president in charge of production; Rolland Weigum, shop superintendent; and Ron Traut- man, a shop foreman. A point of contention during the meeting was whether, upon resumption, the machine should be manned by two employees, as Hillner argued, or by one as had been the practice. A compromise finally was reached whereby Hillner would work with the new operator until the operator had developed enough proficiency and confi- dence to work alone. It also was decided, to minimize the psychological impact of the accident, that the machine be restored to operation that afternoon, if possible. The meeting ended about 11:30 a.m. The lunch period at the plant is from 12 m. to 12:30 p.m. During the lunch period following the meeting just de- scribed, various of the employees, individually, asked Hillner what had happened at the meeting. The record indicates that the employees generally were deeply affected by the accident. One such employee was Harvey Metzker, also the Union's treasurer. Hillner told Metzker what had been decided upon at the meeting, adding that "it would be up to the men to accept this." This troubled Metzker - "I couldn't see where it would be up to the men because we were elected officials of the Union to represent the men." Consequently, later in the lunch period, he proposed to Hillner that they call an employee meeting to "let them know what went on and find out some of their views on it." Hillner agreed, and they passed the word among the employees to gather in the shear room. The meeting began about 12:25 p.m., lasting until perhaps 12:40,1 after which the employees returned to work. The entire day shift of 38 attended. Hillner reported on the condition of the injured employee and described that morning's meeting with management. A question-and- answer session followed. No issues were put to employee vote, nor were the employees called upon in any other way to consider or pass upon alternative courses of action. Nothing was said before or during the meeting about its being, or being preliminary to, a work stoppage. A few minutes after the whistle marking the end of the lunch period, Shop Superintendent Weigum happened upon the assembled employees. He told Hillner it was time to return to work; that, if the employees had things to talk about, they could do it after 4:30. Hillner responded: "Well, you wanted to start this operation up this afternoon and these fellas were concerned about it and I felt they ought to know what's going to happen." Weigum then announced that those attending would be docked. I The precise extent to which the meeting intruded on worktime is inconclusive on the record, some estimating 5 or 6 minutes. some estimating longer. Those attending were docked 10 minutes. The meeting broke up at about that point, but Hillner and Weigum had further words. Weigum: "Perry, what in the hell do you think you're doing?" Hillner: "Well, the Union is running this f-ing shop and they've got a right to know what's going on." Weigum next asked why the meeting had not been held during the lunch period, to which Hillner said he "wanted a full body of people there." Not all of the employees eat lunch at the plant. No one from management was consulted about the meeting. Hillner explained: "I didn't want to have an argument about when we were going to have the meeting." At or about 5 p.m. that same day, Breen, Weigum, Trautman, and another shop foreman, Gary Hert, dis- cussed the employee meeting. Trautman declared that Hillner "had no business calling a meeting on company time" and should be fired. They "kicked it around pretty thoroughly" - Weigum's phraseology - eventually decid- ing to fire Hillner "first thing in the morning." The final decision was Breen's. He testified: The reason for the discharge was direct disrespect of authority, insubordination. .... [The plant superin- tendent was there and Mr. Hillner did not request permission from him to hold this meeting, and it just boils down to disrespect of authority against - I believe it's Section [Article] 14 of our union contract. The next morning, March 3, Hillner found that his timecard had been "pulled" when he reported for work. Weigum directed him to the conference room. There, in the presence of Trautman and Hert, Weigum told Hillner that he had "overstepped" his authority the day before by calling a "work stoppage," and was fired. Hillner respond- ed: "Well, I suppose you could call it a stoppage or a strike, but, as far as I was concerned, it was just a meeting. It was a meeting to inform the fellas what had taken place with management and that was all." Hillner shortly received his final paycheck and was gone. B. Analysis The General Counsel's central contention is that the employee meeting over which Hillner presided was a concerted activity protected in its inception by Section 7 of the Act; that it did not lose its protected status by intruding for a few minutes into production time; and, therefore, that Hillner's discharge was an 8(aX)(l) interference with his Section 7 rights. Respondent counters that the meeting was not of a nature bringing it within the protection of Section 7; and that, even if it was, its intrusion into working time stripped away the protective gloss both because of the attendant interference with production and because it thereby became a work stoppage in breach of the nostrike clause. Section 7 states: Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choos- ing, and to engage in other concerted activities for the 531 DECISIONS OF NATIONAL LABOR RELATIONS BOARD purpose of collective bargaining or other mutual aid or protection .... [Emphasis supplied.] The Supreme Court cautioned in N.L.R.B. v. Washington Aluminum Co., 370 U.S. 9, 14 (1962), that Section 7 is not to be interpreted and applied in a "restricted fashion" that "might place burdens upon employees so great that it would effectively nullify the right to engage in concerted activities which that section protects." In the same spirit, the Board stated in G & W Electric Specialty Company, 154 NLRB 1136, 1137-38 (1965): [T]he protection afforded by Section 7 is not strictly confined to activities which are immediately related to the employment relationship or working conditions . . . [A]lthough the mandatory sub- jects of collective bargaining designated in Sections 8(d) and 9(a) relate only to working conditions and the employment relationship, Section 7 provides that employ- ees shall have the right, inter alia, to engage in "concerted activities for the purpose of collective bargaining or other mutual aid or protection. " [Emphasis supplied.] To construe this provision as protecting only activities directly and immediately involving the employment relationship would therefore be to read the phrase "or other mutual aid or protection" out of the Act. Other decisions illustrative of the generous scope of Section 7 protection include N.L.R.B. v. Peter Cailler Kohler Swiss Chocolates Company, Inc., 130 F.2d 503 (C.A. 2, 1942) (an employee resolution criticizing the employer's posture relative to a strike of another employer's employ- ees); Bethlehem Shipbuilding Corporation Ltd., v. N.L.R.B., 114 F.2d 930 (C.A. 1, 1940) (employee appearances on behalf of their coworkers before legislative committees); Eastex Incorporated, 215 NLRB 271 (1974) (distribution to coworkers of a circular concerning minimum wage and right-to-work legislation); Kaiser Engineers, 213 NLRB 752 (1974) (employee letters to legislators opposing relaxation of immigration restrictions for engineers); and General Electric Company, 169 NLRB 1101 (1968) (employee collections for grape workers attempting to organize in Delano, California). The meeting in question plainly was a concerted activity. Employee meetings scarcely can be otherwise. And, given the liberality with which the Board and the courts bestow Section 7 protection upon concerted employee activities, it must be concluded that the meeting was a protected concerted activity - at least in its inception - since it dealt with matters of employee concern in the context of the workplace and might well have precipitated protest activity over job safety. Cf. Robertson Industries, 216 NLRB 361, 362 (1975).2 See also AMC Air Conditioning Co., 232 NLRB 283 (1977). Respondent's argument is rejected that the meeting was outside Section 7 because purely informational and not 2 Enfd. N. L R.B. v. Robertson Industries, 560 F.2d 396 (C.A. 9, 1976). 3 The Board, disagreeing with the circuits, found the activities to be protectedly concerted in each of the three underlying decisions. Buddies Supermarkets, 197 NLRB 407 (1972); Indiana Gear Works, 156 NLRB 397 (1965); Mushroom Transportation Co., 142 NLRB 1150 (1963). ' It perhaps is only proper to note that a test akin to those applied by the three circuits in Indiana Gear Works, Buddies Supermarkets, and Mushroom Transportation Co., has been applied, even to group situations, by at least one circuit, the Ninth. N.L.R.B. v. Robertson Industries, supra at 398; Shelly "for the purpose of inducing or preparing for group action to correct a grievance or a complaint." Respondent in its brief quoted from Indiana Gear Works, a Division of the Buehler Corporation v. N.LR.B., 371 F.2d 273, 276 (C.A. 7, 1967), and also citing N.LR.B. v. Buddies Supermarkets, Inc., 481 F.2d 714 (C.A. 5, 1973), and Mushroom Transpor- tation Company, Inc. v. N.LR.B., 330 F.2d 683 (C.A. 3, 1964), which embody much the same formulation. The critical issue in each of those cases was whether an individual's unstructured communications with others - by posting antiemployer cartoons around the plant in Indiana Gear Works, and orally in the other two - comprised concerted activity as distinct from individual "griping." Had the courts found concert in those cases, which they did not, it cannot be doubted that Section 7 immunity would have followed. Accepting for argument that the three circuits' test of concert in individual-action situations such as those reflects current Board doctrine,3 its application to the present situation, where concert inhered in the meeting, would be unduly technical and restrictive.4 Also rejected is Respondent's argument that the intru- sion into working time vitiated the meeting's protected status because of the attendant interference with produc- tion or because it thereby became a work stoppage in breach of the nostrike clause. There is no evidence of the extent, if any, that production was impaired. Without such a showing, and remembering the expansive reading to be given Section 7, it cannot be said that the brief interruption occasioned by the meeting bore sufficiently upon produc- tion to destroy the meeting's Section 7 standing. Shelly & Anderson Furniture Mfg. Co. v. N.LR.B., supra. See also District 1199-E, National Union of Hospital & Health Care Employees, Retail, Wholesale and Department Store Union, AFL-CIO (CHC Corporation), 229 NLRB 1010 (1977); Trustees of Boston University, 224 NLRB 1385 (1976); Masoneilan International, Inc., 223 NLRB 965 (1976); Serv- Air, Inc., 162 NLRB 1369 (1967). Michigan Lumber Fabricators, Inc., 111 NLRB 579 (1955), and Terri Lee, Inc., 107 NLRB 560 (1953), cited by Respondent, are distinguishable from the present case in both degree and kind. They involved employee meetings away from the plant cutting far more into production time - 1-1/2 hours in one and a full day in the other. Nor is there any evidence that the nostrike clause, in speaking of "strikes, slow-downs or work stoppages," contemplated interruptions of this sort. Therefore, since those terms normally envisage conduct intended to bring pressure upon an employer to change his ways (District 1199-E, Hospital Employees (CHC Corporation), supra; Eagle International, Inc., 221 NLRB 1291 (1975); Terri Lee, Inc., supra at 562); since the meeting in question had no such purport, instead being informational; and since Section 7 rights are not to be casually dealt away, it would & Anderson Furniture Manufacturing Co., Inc. v. N.LR.B., 497 F.2d 1200, 1203 (C.A. 9, 1974), enfg. Shelly & Anderson Furniture Mfg. Co., Inc., 199 NLRB 250 (1972). In reaching the same results, however, the underlying Board decisions did not use such a formulation - at least not expressly; and it is respectfully doubted that the Board would do so in the present situation. "Board law," as best it can be divined, governs at this juncture. E.g., Ford Motor Company (Chicago Stamping Plant), 230 NLRB 716 (1977). 1 A point repeatedly made by Respondent in its brief. 532 EMPIRE STEEL MFG. CO., INC. be overreaching to treat this interruption as covered by the nostrike proscription. Respondent makes the subsidiary argument that the meeting was unprotected because not in conformity with the grievance procedure outlined in the bargaining agree- ment. This argument conveniently ignores that fundamen- tal fact which Respondent elsewhere asserts so vigorously - namely, that the meeting was informational and not a grievance vehicle.6 Finally, it might be argued, based upon Emporium Capwell Co. v. Western Addition Community Organization, 420 U.S. 50 (1975), that the meeting was unprotected because it was not a function of the employees' bargaining representative. The short answer to this, of course, is that both Hillner and Harvey Metzker, who conceived of the meeting, were major officials of the Union.7 To summarize, the meeting for which Hillner was discharged was a protected concerted activity from start to finish. It is concluded, therefore, that the discharge violated Section 8(a)(1). CONCLUSIONS OF LAW 1. By discharging Perry Hillner as found herein, Re- spondent committed an unfair labor practice within Sec- tion 8(aX)(1) of the Act. 2. This unfair labor practice affects commerce within Section 2(6) and (7) of the Act. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER 8 The Respondent, Empire Steel Manufacturing Compa- ny, Inc., Billings, Montana, its officers, agents, successors, and assigns, shall: i. Cease and desist from: (a) Discharging its employees for conducting or engaging in meetings protected by Section 7 of the Act. (b) In any other manner interfering with, restraining, or coercing employees in the exercise of their rights under Section 7. 2. Take this affirmative action: (a) Offer to Perry Hillner immediate and full reinstate- ment to his former job or, if that job ao longer exists, to a substantially equivalent job, without prejudice to his seniority or other rights and privileges, and make him whole for any loss of earnings or benefits suffered by reason of his unlawful discharge. (b) Preserve and make available, upon request, to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all records necessary to analyze the amount of backpay and benefits owing under the terms of this Order. (c) Post at its plant in Billings, Montana, the notice which is attached and marked "Appendix." 'o Copies of the notice, on forms provided by the Regional Director for Region 19, after being duly signed by Respondent's authorized representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees customarily are posted. Reasonable steps shall be taken by Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 19, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. d Respondent makes other arguments, as well, none of which is of a substance warranting description or discussion. All have been considered, however, and rejected. 7 Indeed, while the point is neither alleged nor argued, the record might well support a finding that the meeting was a protected union activity, as well as a protected concerted activity. 8 All outstanding motions inconsistent with this recommended Order hereby are denied. 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, 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. g Backpay to be computed in accordance with F. W Wooworrth Compaony, 90 NLRB 289 (1950), and Florida Steel Corporation, 231 NLRB 651 (1977). io In the event the Board's Order is enforced by a Judgment of the United States Court of Appeals, the words in the notice reading "Posted by 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." APPENDIX NOTICE To EMPLoYEEs POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The hearing held in Billings, Montana, on July 28, 1977, in which we participated and had a chance to give evidence, resulted in a decision that we had committed an unfair labor practice in violation of Section 8(aXl) of the National Labor Relations Act, and this notice is posted pursuant to that decision. Section 7 of the National Labor Relations Act gives all employees the following rights: To organize themselves To form, join, or support unions To bargain as a group through a representative they choose To act together for collective bargaining or other mutual aid or protection To refrain from any or all such activity except to the extent that the employees' bargaining representative and employer have a collective- bargaining agreement which imposes a lawful requirement that employees become union mem- bers. WE WILL NOT discharge our employees for conduct- ing or engaging in meetings protected by Section 7 of the Act. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their Section 7 rights. 533 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL offer to Perry Hillner immediate and full reinstatement to his former job or, if that job no longer exists, to a substantially equivalent job, without preju- dice to his seniority or other rights and privileges; and make him whole for any loss of earnings or benefits suffered by reason of our unlawful discharge of him. EMPRE STEEL MANUFACTURING COMPANY, INC. 534