Roemer Industries, Inc.

ROEMER INDUSTRIES, INC. 63 Roemer Industries, Inc. and United Steelworkers of America, AFL-CIO . Case 6-CA-6441 July 26, 1973 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS On April 27, 1973, Administrative Law Judge Thomas D. Johnston issued the attached Decision in this proceeding. Thereafter , Respondent, Roemer In- dustries, Inc., filed exceptions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three -member panel. The Board had considered the record and the at- tached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings,' and conclusions of the Administrative Law Judge and to adopt his recommended Order. and (3) of the National Labor Relations Act, as amended (herein referred to as the Act), by discriminatorily discharg- ing and refusing to reinstate Edward Rimko and John Saul because they had engaged in concerted activities with other employees for the purpose of mutual aid and protection and by such acts had discriminated in regard to the hire or tenure or terms or conditions of employment of its employ- ees thereby discouraging membership in labor organiza- tions. Respondent in its answer filed on February 9, 1973, de- nied having violated the Act and averred that Edward Rim- ko and John Saul had not been discharged but had quit their employment on or about October 13, 1972.2 The issues involved are whether Respondent violated Section 8(a)(1) or (3) of the Act by discriminatorily dis- charging and denying reinstatement to Edward Rimko and John Saul. The parties at the hearing were afforded full opportunity to introduce relevant evidence, to examine and cross-exam- ine witnesses, to argue orally on the record, and to submit briefs. Upon the entire record in this case and from my observa- tion of the witnesses, and after due consideration of the oral argument made by the General Counsel and the brief filed by the Respondent, I hereby make the following: ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that Respondent, Roemer Industries, Inc., Sharon, Pennsylvania, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. 1 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 credibility 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, enfd 188 F 2d 362 (C A 3, 1951) We have carefully examined the record and find no basis for reversing his findings DECISION STATEMENT OF THE CASE THOMAS D. JOHNSTON , Administrative Law Judge: This case was heard at Pittsburgh , Pennsylvania, on March 15, 1973, pursuant to an amended charge filed on January 30, 1973,' by the United Steelworkers of America , AFL-CIO (herein referred to as the Union), and a complaint issued on January 31, 1973. The complaint alleged that Roemer Industries, Inc. (here- in referred to as the Respondent), violated Section 8(a)(1) ' The original charge was filed on December I, 1972 FINDINGS OF FACT I THE BUSINESS OF THE RESPONDENT Respondent, a Pennsylvania corporation with its princi- pal office and plant located at Sharon, Pennsylvania, is engaged in the business of the manufacturing of industrial name plates. During the 12-month period preceeding Janu- ary 31, 1973, Respondent shipped goods and products val- ued in excess of $50,000 from its Sharon plant directly to points located outside the State of Pennsylvania and in addition received goods and materials valued in excess of $50,000 directly from outside the State of Pennsylvania. Respondent admits, and I find that it is engaged in com- merce within the meaning of Section 2(6) and (7) of the Act. II THE LABOR ORGANIZATION INVOLVED Respondent admits, and I find , that the United Steel- workers of America, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. III THE UNFAIR LABOR PRACTICES A. Walkout On October 13, Respondent's employees Robert Sanata, Dallas Oliver, Gary Wilson, Cal Kupinski, McQuiston, and the two discriminatees John Saul and Edward Rimko took their lunchbreak 3 in the stockroom. Grace Greenawalt, who is Respondent's vice president and general manager, having an occasion to visit the stock- 2 All the dates referred to are in 1972 unless otherwise stated. 3 The lunchbreak was from 12 noon to 12:30 p.m 205 NLRB No. 25 64 DECISIONS OF NATIONAL LABOR RELATIONS BOARD room immediately after the lunchbreak that day observed the steel piles in the room were disheveled and the materials which were paper interleaved were marked and appeared to have been trampled upon. After McQuiston, who had ac- companied Greenawalt, in response to her inquiries con- cerning what had happened, advised Greenawalt that there had been a lot of horseplay in the stockroom during the lunchbreak, she gave instructions for those employees who had used the stockroom during the lunchbreak to assemble there. Upon their reporting, Greenawalt asked them who had damaged the metal, whereupon no one replied. Accord- ing to Saul and Rimko, Greenawalt informed them if no one told her who did it she was going to send them all home. Greenawalt then instructed each employee to resume the positions which they had occupied during the lunchbreak, which they did. Saul and Rimko, whose testimonies were corroborated by Sanata, testified that after the positions which they had occupied had been confirmed Greenawalt instructed them to return to work, whereupon they left the room and returned to work. Frances Shaw another employ- ee working nearby testified she observed Saul and Rimko leave the stockroom before the other employees. Sanata testified that after Saul and Rimko had been excused Gree- nawalt again asked Wilson, Oliver, and himself who had damaged the metal. When no one answered Greenawalt told them to go home until they could learn how to be responsible for other people's property. Greenawalt's version of the conversation was that when the employees had resumed their positions she told Oliver, Sanata, and Wilson, who had been sitting in the area where she had observed the damaged metal, they were fired and to punch their timecards and leave. She repeated her in- structions when they did not respond. Greenawalt stated she then instructed the other employees including Rimko and Saul that they were not involved and for them to report back to their work areas. Delbert Rupe, who was a die setter-press operator and had been asked by Greenawalt to witness the conversation, corroborated her testimony. While I credit the versions of Saul, Rimko, and Sanata, partially corroborated by Shaw who had observed Saul and Rimko leave the stockroom first, the fact Oliver, Sanata, and Wilson were instructed to leave the plant while Saul and Rimko were instructed to return to work is really not disput- ed. Sanata, Wilson, and Oliver then got their coats and lunch buckets and left the plant. Saul testified that when he observed Sanata getting ready to leave the plant, he inquired whether Greenawalt was sending him home. After Sanata had informed him that Wilson, Oliver, and himself were being sent home, he told Sanata he was leaving too because he didn't think it was fair. I credit Saul's testimony which was corroborated by Sanata. Saul stated after talking with Sanata that he informed Rimko he was leaving because Oliver, Sanata, and Wilson were being sent home, whereupon Rimko replied he was going to leave with him. According to Rimko, after Saul had told him he was leaving because Greenawalt had sent Sana- ta, Oliver, and Wilson home and didn't think it was fair, he told Saul he was also leaving. I credit the testimonies of both Saul and Rimko concerning their reasons for leaving the plant. Saul and Rimko, who were scheduled to work until 4 p.m., then punched their timecards and left the plant with- out telling any of the Respondent's officials or supervisors why they were leaving. Greenawalt, who they stated they saw as they were leaving the plant, acknowledged seeing Saul and Rimko with their coats leaving the plant a few minutes after Wilson, Sanata, and Oliver had left the plant. B. The Discharges of Saul and Rimko On Monday morning, October 16, Saul and Rimko testi- fied they reported to the plant to return to work. Sanata, Wilson, and Oliver were also there. However, the timecards of Saul and Rimko as well as the other three employees were not in the rack. Rimko and Sanata testified that Greenawalt approached the five employees, asked what they were doing there, and told them they did not work there anymore. Frances Shaw, who overheard the conversation, and Saul, although unable to recall Greenawalt's exact words, sub- stantially corroborated the testimonies of Rimko and Sana- ta. When Sanata inquired about getting paid Greenawalt informed them to come back at 10 a.m. Greenawalt's version was that on the morning of October 16, she observed Sanata, Wilson, Oliver, Rimko, and Saul reporting in for work. She went over and told Wilson, Oli- ver, and Sanata they had been fired on Friday and stated to Rimko and Saul "You two walked off the job and I thought you had quit," whereupon neither Rimko or Saul made any comment. When Oliver asked for his check Gree- nawalt looked at Rimko and Saul and asked them if they wanted their checks. They replied they did. Greenawalt then informed the employees their checks would be ready at 10:30 a.m. I credit the testimonies of Rimko and Sanata, corroborat- ed by Saul and Shaw, rather than Greenawalt's version and find that Greenawalt informed both Rimko and Saul they did not work there any more. Greenawalt acknowledged they had reported in for work and their timecards were not in the rack. Apart from my observation of the witnesses I do not find plausible, as discussed infra, Greenawalt's con- tention that Saul and Rimko had quit theirjobs on October 13 C. Analysis and Conclusions General Counsel contends the Respondent violated Sec- tion 8(a)(1) and (3) of the Act by discharging and refusing to reinstate Edward Rimko and John Saul because they had engaged in concerted activities with other employees for the purpose of mutual aid and protection, and by such acts had discriminated in regard to the hire or tenure or terms or conditions of employment of its employees, thereby dis- couraging membership in labor organizations. Respondent denied having violated the Act or terminating Rimko or Saul and asserted both employees had quit their jobs. Section 8(a)(1) of the Act prohibits an employer from interfering with, restraining, or coercing its employees in the exercise of their rights guaranteed in Section 7 4 of the Act. Section 7 of the Act provides as follows Employees shall have the right to self-organization, to form, join, or ROEMER INDUSTRIES, INC. The protection afforded employees by this section ex- tends to employees concertedly engaged in walkouts and work stoppages to protest against an employer's discharges of their fellow employees. N.L.R.B. v. Phaostron Instrument and Electronic Co., 344 F.2d 855, 858 (C.A. 9, 1965); N.L.R. B. v. J. Mitchko, Inc., 284 F.2d 573, 576 (C.A. 3, 1960); N.L.R B. v. Solo Cup Company, 237 F.2d 521, 526 (C.A. 8, 1956); N L R.B. v. J I Case Company, Bettendorf Works, 198 F.2d 919, 922 (C.A. 8), cert. denied 345 U.S. 917. To be entitled to such protection, employees engaged in concerted activities do not first have to make a demand upon the employer to remedy a condition they find objec- tionable. N. L. R. B v. Washington Aluminum Company, Inc, 370 U.S. 9 (1962). Further, it is not necessary to establish the employer has actual knowledge its employees are engaged in a protected work stoppage. Electromec Design and Devel- opment Co., Inc, 168 NLRB 763, enfd. 409 F.2d 631 (C.A. 9, 1969); N.L.R.B. v. Pioneer Plastics Corp., 379 F.2d 301 (C.A. 1, 1967), cert. denied 389 U.S. 929 (1967). Applying these principles, the evidence supra, established after the employees who had been questioned as a group by Greenawalt had refused to disclose those employees among them responsible for having caused the damage to the met- al, three of them, Oliver, Sanata, and Wilson were sent home. Saul and Rimko, who were included in the group questioned but had returned to work as instructed upon learning of the action taken against the three employees, discussed the matter with each other and decided to leave with them and did so. This evidence clearly established both Saul and Rimko together had walked off their jobs in pro- test of the action taken against Oliver, Sanata, and Wilson and were therefore engaged in concerted activities within the meaning of Section 7 of the Act. When they attempted to return to work on October 16, they were informed by Respondent they did not work there anymore. Contrary to Respondent's assertion neither Saul or Rim- ko quit their jobs by leaving work on October 13. While no reason was given by them for leaving, Greenawalt admitted observing them leave the plant immediately after the other three employees who were questioned with them about the damaged metal, which all of them had denied causing, had been sent home by her. Under these circumstances, a rea- sonable basis was established for Greenawalt to infer that Saul and Rimko, who never informed the Respondent they were quitting their jobs, had together walked off their jobs to protest the action taken against their fellow employees, in a matter in which they themselves had been involved. Regardless of these circumstances upon which knowledge of the reason for their action could reasonably be inferred, any doubt entertained by Greenawalt concerning whether they had quit their jobs was disproved by her own admis- sions they had reported to work on October 16 and their timecards had been removed from the rack. assist labor organizations , to bargain collectively through representa- tives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protec- tion, and shall also have the right to refrain from any or all such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employ- ment as authorized in section 8(a)(3) 65 Therefore for the reasons stated, I find the General Coun- sel has established by a preponderance of the evidence that Saul and Rimko were discharged by Respondent for their having engaged in concerted activities protesting the action taken against Oliver, Sanata, and Wilson and Respondent thereby violated Section 8(a)(1) of the Act.5 The only remaining issue is whether Respondent also violated Section 8(a)(3) of the Act by discharging and refus- ing to reinstate Rimko and Saul. Section 8(a)(3) of the Act provides in pertinent part "It shall be an unfair labor prac- tices for an employer . . . by discrimination in regard to hire or tenure of employment or any term or conditions of employment to encourage or discourage membership in any labor organization:...." The General Counsel's theory as expressed in oral argument in that Respondent by terminat- ing employees for having engaged in concerted activities also violated Section 8(a)(3) of the Act because it had a chilling effect on any type of union activity at the plant. Absent, as here, any evidence of union activities among Respondent's employees, and having found Rirnko and Saul were discriminatorily discharged for having engaged in concerted activities, I do not find that a sufficient basis has been established to prove Respondent also violated Section 8(a)(3) of the Act by discharging or refusing to reinstate Rimko and Saul. IV THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, found to constitute unfair labor practices occurring in connection with the operations of Respondent described in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce and tend to lead to labor disputes burdening and obstructing commerce and the free flow thereof. CONCLUSIONS OF LAW 1. Roemer Industries, Inc., is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. United Steelworkers of America, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. By discharging Edward Rimko and John Saul on or about October 16, 1972, and refusing to reinstate them for their having engaged in concerted activities for purposes of mutual aid and protection, Respondent has interfered with, restrained, and coerced them in the exercise of their rights guaranteed by Section 7 of the Act and has thereby engaged in unfair labor practices proscribed by Section 8(a)(1) of the Act. 4. Respondent by discharging and refusing to reinstate Edward Rimko and John Saul did not violate Section 8(a)(3) of the Act. 5 Having been discriminatorily discharged for engaging in concerted activ- ities while engaged in such activities it is not necessary to find as Respondent urges in its brief that Saul and Rimko must first have made an unconditional offer to return to work However, I find they did report to work on October 16 as Greenawalt admitted and their return was not conditional upon the reinstatement of the other three employees 66 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 5. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that the Respondent has engaged in certain unfair labor practices within the meaning of Section 8(a)(1) of the Act, I shall recommend that it cease and desist there- from and to take certain affirmative action to effectuate the policies of the Act. Accordingly, the Respondent shall be ordered to immediately reinstate Edward Rimko and John Saul to their former jobs or, if those jobs no longer exist, to substantially equivalentjobs without prejudice to their sen- iority and other rights and privileges, and to make them whole for any loss of earnings and compensation they may have suffered because of the illegal discrimination against them in their employment. Backpay shall be computed in accordance with the formula and methods prescribed by the Board in F. W. Woolworth Company, 90 NLRB 289, and payment of 6-percent interest per annum shall be computed in the manner prescribed by the Board in Isis Plumbing & Heating Co., 138 NLRB 716. 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: ORDER6 Respondent, Roemer Industries, Inc., its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discouraging concerted activities of its employees within the protection of Section 7 of the Act by discharging, or in any other manner discriminating against, an employee or employees for engaging in such activity. (b) In any like or related manner interfering with, re- straining, or coercing its employees in the exercise of their rights under Section 7 of the Act to engage in concerted activities for their mutual aid and protection, or to refrain from such activities, except to the extent such right may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Section 8(a)(3) of the Act, as amended by the Labor-Man- agement Reporting and Disclosure Act of 1959. 2. Take the following affirmative action necessary to ef- fectuate the policies of the Act- (a) Offer immediate reinstatement to Edward Rimko and John Saul to their former jobs or, if those jobs no longer exist, to substantially equivalent jobs, without prejudice to their seniority and other rights and privileges, and make them whole for any loss of pay or other compensation they may have suffered by reason of the discrimination against them, in the manner set forth in that portion of this Decision entitled "The Remedy." (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, personnel records and reports, and all other records necessary to analyze and determine the amount of backpay due under the terms of this Order. (c) Post at its Sharon, Pennsylvania, facilities, copies of the attached notice marked "Appendix." ' Copies of said notice, on forms furnished by the Regional Director for Region 6, shall, after being duly signed by the Respondent's authorized representative, be posted immediately upon re- ceipt thereof, and 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 the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 6, in writing, within 20 days from the date of this Order, what steps Re- spondent has taken to comply herewith. IT IS FURTHER ORDERED that the complaint be, and it hereby is, dismissed insofar as it alleged unfair labor practices not specifically found herein. 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 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 the 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" APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT discharge or otherwise discriminate against our employees for engaging in concerted, protected activi- ties for the purpose of mutual aid or protection. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of their right under Section 7 of the Act, to engage in concerted activities for their mutual aid or protection, or to refrain from any or all such activities, except to the extent that such right may be affected by an agreement requiring member- ship in a labor organization as a condition of employment in accordance with Section 8(a)(3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. WE WILL offer Edward Rimko and John Saul immediate and full reinstatement to their former jobs or if those jobs no longer exist, substantially equivalent jobs without preju- dice to their seniority and other rights and privileges previ- ously enjoyed and WE WILL make them whole for any loss of earnings they may have suffered as a result of the discri- mination against them. ROEMER INDUSTRIES, INC (Employer) ROEMER INDUSTRIES , INC. 67 Dated By This notice must remain posted for 60 consecutive days (Representative) (Title) 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 direct- This is an official notice and must not be defaced by ed to the Board's Office, 1536 Federal Building, 1000 Liber- anyone. ty Ave., Pittsburgh, Pennsylvania 15222, Telephone 412-644-2977.