American Steel Line Co.

AMERICAN STEEL LINE CO. 811 Helen S. Pasko, d/b/a American Steel Line Co. and General Teamsters Union, Local 406, International Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America, Ind. Case 7-CA-10364 May 22, 1974 DECISION AND ORDER BY MEMBERS FANNING, KENNEDY, AND PENELLO judge the merits of the allegations of the complaint without a record prepared in accordance with the Act. DECISION SIDNEY SHERMAN, Administrative Law Judge: The original charge herein was served on June 21, 1973,i the complaint issued on July 27, and the case was heard on September ll. Briefs were filed by Respondent and the General Counsel.2 Upon the entire record,3 the following findings and recommendations are made: On January 30, 1974, Administrative Law Judge Sidney Sherman issued the attached Decision in this proceeding. Thereafter, the Charging Party filed 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 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 has decided to affirm the rulings, findings, and conclu- sions of the Administrative Law Judge and to adopt his recommended Order. 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 and hereby orders that Respondent, Helen S. Pasko, d/b/a American Steel Line Co., Grand Rapids, Michigan, her agents, sucessors, and assigns, shall take the action set forth in the said recommended Order. MEMBER KENNEDY, dissenting: The Charging Party excepts to the dismissal of the 8(a)(5) allegation in the complaint by the Adminis- trative Law Judge in his Decision. No transcript is available in this case. Under these circumstances, I have absolutely no way of determining whether the Administrative Law Judge's findings of fact are "supported by substantial evidence on the record considered as a whole" as required by the National Labor Relations Act and the Administrative Proce- dure Act. Since I cannot discharge my responsibili- ties under the statute without a transcript of the testimony, I would remand this case for a new hearing. For the reasons set forth in my dissent in George Williams Sheet Metal Co., 201 NLRB 1050, I am of the view that this Board cannot now pass upon the merits of this case. In my view, the Board cannot 1. RESPONDENT'S OPERATIONS IN COMMERCE Helen S. Pasko, herein called Respondent, is an individual proprietor doing business as American Steel Line Co. Engaged at various locations in Michigan in the business of fabricating steel handling equipment, Respon- dent annually ships to out-of-state customers products valued at more than $50,000. Respondent is engaged in commerce within the meaning of the Act. II. THE UNION General Teamsters Union, Local 406, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, herein called the Union, is a labor organization under the Act. III. THE MERITS The pleadings raise the following issues: 1. Whether Respondent violated Section 8(a)(3) and (1) by withholding a wage increase from an employee because of his prounion sentiments? 2. Whether Respondent violated Section 8(a)(5) and (1) by refusing to execute a document containing the agree- ment reached with the Union on terms and conditions of employment? 4 A. Sequence of Events Respondent has three plants, two in Grand Rapids (at 76th Street, and at Monroe Street) and one in Muskegon Heights, Michigan. Only the Grand Rapids plants are involved herein. They are managed by J. E. Pasko with the assistance of his son, J. P. Pasko. A representation election held at these two plants on February 16 was won by the Union, and it was certified on February 27. Negotiations for an initial contract were conducted on various dates in March and April, and on April 23 the Union presented to Respondent for execution I All dates hereinafter are in 1973, unless otherwise indicated 2 The Charging Party filed a statement adopting the General Counsel's brief. 3 For various interlocutory actions, including a correction of the record, see the orders of October 25, November 9 and 15 , and December 27, and the letter to the parties of November 16 4 Other allegations of the complaint were not litigated because of the execution at the hearing of a settlement agreement disposing of those matters. See the order of January 25, 1974, striking those allegations. 210 NLRB No. 137 812 DECISIONS OF NATIONAL LABOR RELATIONS BOARD a document which allegedly reflected the complete agreement reached in such negotiations . However, Respon- dent refused to execute that document, contending that it did not conform in various respects to the parties' agreement. The parties met again on May 29 and June 8 to discuss the alleged discrepancies, and it is undisputed that on June 8 agreement was reached on all outstanding issues except for the matter of the retroactivity of an agreed-upon wage increase. Respondent has since refused to sign any contract. Early in June, employee Pence asked his leadman, Byxbe, for a raise, and the latter promised to take it up with higher management. A week or so later Pence refused to sign a petition to decertify the Union, which was being circulated in the plant. He has not received the requested raise. B. Discussion Respondent contends that, even if Byxbe did make such an announcement, it was not binding on Respondent because he was not a supervisor. However, he ackndwl- edged that he has the authority to hire job applicants, and that, while the Paskos may countermand such action, they have done so in only one case out of five. Whether the foregoing authority be viewed as a power to hire or a power effectively to recommend hiring, it is clear that on the basis thereof Byxbe qualifies as a statutory supervisor. It is deemed significant, moreover, that, although testifying about other matters, neither of the Paskos corroborated Byxbe's assertion that they were not apprised of Pence's request for a raise, nor did they deny that they did, in fact, grant and subsequently rescind the increase. It is accordingly found that Pence was awarded a 15- cent-per-hour increase effective June 11, which action was rescinded several days later because of his refusal to support the decertification movement and that Respondent thereby violated Section 8(a)(3) and (I) of the Act.5 1. The 8(a)(3) issue Since November 1972, Pence has worked as a lathe operator at the Monroe Street plant. He testified that on June 1, when he asked his leadman, Byxbe, about a raise, the latter promised to talk to one of the Paskos about it; that on June 7 Byxbe notified the witness that he had been granted a 15-cent-per-hour raise effective June 11; that on June 13, after the witness refused to sign a petition for decertification of the Union, which was being circulated in the plant, he was asked by Byxbe the reason for his refusal; that he answered that it was not the right thing to do; and that Byxbe then asserted that the promised raise would be withheld because of Pence's refusal to sign the petition. Although acknowledging that he offered to talk to one of the Paskos about a 15-cent raise for Pence, Byxbe denied that he ever told Pence that he had been granted a raise, the witness insisting that he did not even broach the matter to Pence's raise to the Paskos. However, he admitted that he refrained from taking the matter up with them because of Pence's refusal to sign the decertification petition. Thus, even if one credits Byxbe, it would be necessary to find that, while he did not transmit to the Paskos Pence's request for a raise, the sole reason therefor was the latter's loyalty to the Union. Such treatment of Pence would, in itself, be discriminatory, whether or not it could be shown that the raise would actually have been granted. To eliminate an employee from being even considered for a wage increase solely because of his prounion sentiments is action clearly calculated to stifle such sentiments. In any event, on the basis of demeanor, Pence is credited and it is found that he was notified by Byxbe early in June that he would be granted a 15-cent-per-hour raise effective June 11, but that a few days later Byxbe announced that the raise had been rescinded because of Pence's refusal to sign the decertification petition. 5 Byxbe further violated Sec 8(a)(l) by ascribing the denial of the raise to Pence's loyalty to the Union 6 Beverly insisted that such agreement was reached on April 18, and that the younger Pasko acknowledged on that date that such was the case. The latter demurred to this at the hearing, contending that there were four issues unresolved on April 18, including the effective date of the negotiated raise, and that, while two of those issues were settled the next day in a telephone 2. The 8(a)(5) issue a. The appropriate unit; majority status On the basis of a Board certification, the Union has been, since February 27, the statutory representative of the Respondent's employees in the following appropriate unit: All full-time and regular part- time production and maintenance employees, warehouse employees, and truckdrivers at Respondent's plants at 235-76th St., S.W., and 1340 Monroe Avenue, N.W., Grand Rapids, Michigan, excluding sales employees, office clerical employees, guards, and supervisors as defined in the Act. b. The alleged refusals to sign a contract The General Counsel contends that Respondent violated Section 8(a)(5) of the Act by (1) refusing on April 23 to sign a contract submitted to it by the Union, embodying the complete agreement between the parties, and (2) refusing on or about June 8 to sign a second contract after the parties had agreed on modifications of the first contract. These contentions will be considered seriatim. (I) The "first contract" Negotiations for the first contract were conducted from February 27 to April 18, the Union's spokesman being Beverly and the Respondent's being its assistant manager, J. P. Pasko, to whom that role had been delegated by his father, J. E. Pasko, who was Respondent's manager. There seems to be no serious dispute that not later than April 19 the parties reached substantial agreement on the terms of a contract,6 subject to ratification by the Union's membership. However, it appears that such agreement was conversation, the parties remained apart on the question of extending insurance coverage to employees' dependents and the wording of a clause defining Respondent's obligations to the Union in case of a sale of business (the "successorship clause") However, the draft contract submitted by the Union on April 23 reflects adoption by the Union of Respondent's position on insurance coverage (see p 6B of schedule "B" attached to G C. Exh. 3). At any rate, it is inferrable that whatever differences may have remained on AMERICAN STEEL LINE CO. 813 partly in the form of oral understandings and partly in the form of unassembled notes and documents and no effort was made to incorporate such agreement in a single integrated instrument until April 20, when the Union prepared a typewritten draft of a contract, which it submitted to its members for ratification the next day. The employees having voted in favor of ratification, Beverly on April 23 presented the typewritten draft for signature to the elder Pasko, who promised to look it over. The next day he advised Beverly that he would not sign the contract, because he had been told by his son that it omitted certain agreed-upon items, and at the hearing the elder Pasko insisted that he refused to sign the contract only because it did not accurately reflect the parties' understanding. When, on April 29, Beverly again pressed for execution of the contract, he was referred to Respondent's counsel, Price, with whom he subsequently met and discussed some of the "omitted" matters. Those discussions and the upshot thereof will be considered in more detail at a later point in this Decision. At the present juncture the issue joined by the parties is whether the draft submitted by the Union on April 23 embodied all the terms and conditions negotiated by the parties up to that point. As to the specific matters allegedly omitted from the Union's draft, the younger Pasko testified they consisted of the following: (1) A provision authorizing the disciplining of hi-lo operators for negligent driving. (2) A provision adopting June 1, of each year as the cut-off date for determining vacation seniority. (3) A limitation on the total number of shop stewards. (4) A provision authorizing the disciplining of employees for failure to report for scheduled overtime. (5) A document entitled "Schedule C," which prescribed the qualifications for certain job classifica- tions and set forth job bidding procedures While denying that any agreement had been reached on items (1) and (4), above, Beverly was silent as to (2) and (3), and he acknowledged that, although schedule C had been agreed upon before April 18, it was not attached to the draft tendered by the Union on April 23. In view of this, and, absent any contradiction of the younger Pasko's testimony as to items (2) and (3), it is found that those items, as well as item (5), were omitted from the draft presented by the Union on April 23. It is, accordingly, found that such draft did not contain the entire agreement of the parties. The Act does not require an employer to sign a contract, the terms of which vary in any material respect from those negotiated by the April 23 were not considered by Respondent sufficient reason, in themselves , for not executing the contract Thus, in his letter of August 30. to the Union (G C Exh. 2), the elder Pasko acknowledged that in April the parties "agreed on the contents of the contract," and, as related below in the text, his position at the hearing was that the only reason he did not sign the draft presented by the Union on April 23 was that it did not conform to the agreement reached by the parties r Of the three, Schedule C appears to be the most significant. Beverly explained that it was not submitted to Respondent on April 23, because he had not yet prepared a copy thereof However, there was no evidence that parties. Here, the variance consisted in the omission of at least three items that had been so negotiated, and it is not contended, nor is there any basis for inferring, that the variance was immaterial .7 It is found therefore that there was no violation of the Act in Respondent's refusal to execute the contract in the form in which it was presented on April 23. (2) The "second contract" Beverly testified without contradiction, and it is found, that, after being referred to Respondent's counsel, Price, the two met on May 29 and June 8 and discussed a number of items, including the annexation to the contract of schedule "C," the inclusion of provisions limiting the total number of shop stewards and authorizing the disciplining of employees for failure to report for scheduled overtime, and that at these meetings all matters were resolved, except for the Union's demand for retroactivity of wage increases to April 23. Price promised on June 8 to refer that matter to his client. Respondent concededly has not yet signed any contract. The younger Pasko explained that, when Price reported on the outcome of the last round of negotiations, the witness advised his father not to sign any contract on the basis thereof because (1) the clauses negotiated by Price had not been reduced to writing, and (2) the Union's demand for retroactivity of wage increases to April 23 was unacceptable. As to (1), above, Beverly testified that on June 11 he was told by Price that he was trying to get the elder Pasko to sign the contract but did not think that he would. However, as noted above, the younger Pasko's uncontradicted testimony was to the effect that Price never actually submitted a draft of the clauses negotiated by him with Beverly, and, in his brief, the General Counsel appears to concede that no complete draft of a contract was tendered by the Union to Respondent in June for its signature.8 As for the retroactivity issue, the General Counsel contends that that matter was settled on April 18, when, according to the testimony of Beverly, the younger Pasko agreed that, if the contract were ratified, the negotiated wage increases would be effective from April 23. However, the younger Pasko testified that he did not agree that such raises would be effective from any specific date but only that they would be effective from the date the contract was signed. On the basis of demeanor, he is credited and it is found that the issue of retroactivity was not settled in the first round of negotiations by agreement on April 23 as the effective date of the raise. Moreover, even if that issue had been settled initially by Respondent's assenting to the April 23 date, it has already been found that the first round of negotiations did not he so advised the elder Pasko or gave any assurance that a copy would be prepared Nor, is it clear why he could not have remedied this defect within a few days. R The General Counsel's only contention at this Juncture was that certain events occurring after the hearing (an unsuccessful effort by the parties to reach a settlement by negotiating a contract) demonstrated that it would have been futile for the Union to have submitted a complete contract to Respondent in June for signature However, apart from anything else, it is clear that no finding to that effect may be made on the basis of matters dehors the record. 814 DECISIONS OF NATIONAL LABOR RELATIONS BOARD culminate in a written contract binding on Respondent. It follows that Respondent was free to continue to negotiate not only about those matters which were not covered by the Union's draft contract but also about items that were dealt with therein and concerning which Respondent has experienced a change of heart .9 I find no unlawful refusal to sign a second contract. IV. THE REMEDY It having been found that Respondent violated Section 8(a)(3) and (1) of the Act by discriminatorily rescinding the 15-cent-an-hour raise granted Pence effective June 11, it will be recommended that Respondent be ordered to cease and desist from such discrimination in the future and take appropriate, affirmative action, including the payment of backpay to Pence in a sum sufficient to make him whole for any monetary loss suffered by reason of such discrimination. There shall be added to such backpay interest at the rate of 6 percent per annum (Isis Plumbing & Heating Co., 138 NLRB 716). CONCLUSIONS 1. Respondent is an employer engaged in commerce under the Act. 2. Respondent violated Section 8(a)(3) and (1) of the Act by rescinding for discriminatory reasons a wage increase granted to Donald Pence, and violated Section 8(a)(1) by ascribing its action to such reasons. 3. Such violations constituted unfair labor practices affecting commerce. 4. Respondent did not violate Section 8(a)(5) of the Act. Upon the above findings of fact and the entire record in the case, and pursuant to Section 10(c) of the Act, there is hereby issued the following recommended: ORDER 10 Respondent, Helen Pasko, d/b/a American Steel Line Co., Grand Rapids, Michigan, her agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discriminating against employees with respect to wage increases or any other terms or conditions of employment because of their allegiance to General Teamsters Union, Local 406, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or any other union. (b) In any other manner, interfering with, restraining, or coercing its employees in the exercise of their right to self- organization, to form, join, or assist the above-named Union, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities. 2. Take the following affirmative action, which is deemed necessary to effectuate the policies of the Act: (a) In the manner prescribed in the "Remedy" section of the Administrative Law Judge's Decision, make Donald Pence whole for any monetary loss suffered as a result of Respondent's discrimination against him. (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amounts of backpay due under the terms of this Order. (c) Post at its places of business in Grand Rapids, Michigan, copies of the attached notice marked "Appen- dix." 11 Copies of said notice, on forms to be provided by the Regional Director for Region 7, after being duly signed by Respondent's representative, shall be posted immediate- ly upon receipt thereof, and maintained for a period of at least 60 consecutive days thereafter in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that such notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 7, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. IT IS FURTHER ORDERED that all those allegations of the complaint not sustained herein be dismissed. 9 Whether such a change of heart would be evidence of bad faith need not be considered here, since, inter a/a, the case was not litigated on the theory of bad-faith bargaining 'o 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 II 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 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 representa- tive of their own choosing To act together for collective bargaining or other mutual aid or protection To refrain from any or all these things. WE WILL NOT do anything that interferes with these rights. WE WILL NOT discriminate against our employees with respect to pay raises or any other terms or conditions of employment because of their support of, or loyalty to, General Teamsters Union, Local 406, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or any other union. AMERICAN STEEL LINE CO. WE WILL compensate Donald Pence for any wages lost as a result of our discrimination against him. All our employees are free to join or not to join General Teamsters Union , Local 406, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. HELEN PASKO, D/B/A AMERICAN STEEL LINE CO. (Employer) Dated By 815 (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, 500 Book Building, 1249 Washington Boulevard, Detroit, Michigan 48226, Telephone 313-226-3200.