Florida Steel Corp.

FLORIDA STEEL CORPORATION Florida Steel Corporation and United Steelworkers of America, AFL-CIO. Case 12-CA-7257 November 15, 1977 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND MURPHY On June 30, 1977, Administrative Law Judge Irwin H. Socoloff issued the attached Decision in this proceeding. Thereafter, the General Counsel, the Charging Party, and Respondent filed exceptions and supporting briefs and Respondent filed a reply 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 briefs and has decided to affirm the rulings, find- ings,' and conclusions of the Administrative Law Judge. The General Counsel and the Charging Party have excepted to the failure of the Administrative Law Judge to grant a number of additional remedies. In light of the clear tendency of Respondent to commit the same types of violations at each of its locations in response to organizing efforts by the Union, and for the reasons set forth in Florida Steel Corporation, 231 NLRB 651 (1977),2 we agree that additional remed- ies are warranted. Therefore, in accordance with our decision in Florida Steel Corporation, cited above, we shall modify the Administrative Law Judge's recommend- ed cease-and-desist provisions to explicitly include all of the companywide facilities. 3 We additionally shall order that Respondent mail the notice to all company employees, read the notice to all company employees, and include the notice in appropriate company publications, such as employee newsletters. Finally, we find that it will effectuate the purposes of the Act to require Respondent to provide the Union I 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 NI.RB 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. In sec. Ill, B. of his Decision, the Administrative Law Judge erroneously cited a pnor proceeding involving Florida Steel Corporation as appearing at 224 NLRB No. 68. The correct citation is 224 NLRB 587 (1976). 2 As indicated in that case, and as noted by Administrative Law Judge Socoloff herein, Respondent repeatedly has been found by the Board to have engaged in ,arious unfair labor practices. 3 We also shall clarify par. I(c) of the recommended Order to provide that Respondent cease and desist from informing employees that they can 233 NLRB No. 74 with companywide access for I year to bulletin boards, and furnish the Union with a list of the names and addresses of all employees on a company- wide basis. 4 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Florida Steel Corporation, Tampa, Florida, its officers, agents, successors, and assigns, shall: i. Cease and desist from: (a) Discharging employees employed throughout its corporate facilities because they engage in union activities. (b) Discharging employees employed throughout its corporate facilities because they have given testimony under the Act. (c) Informing employees employed throughout its corporate facilities that they can obtain legal counsel before talking to a Board agent, or that Respondent will assist them in obtaining such counsel, for the purpose of obstructing Board investigations. (d) In any other manner interfering with, restrain- ing, or coercing employees employed throughout its corporate facilities 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 activity. 2. Take the following affirmative action necessary to effectuate the policies of the Act: (a) Offer Donald Brans immediate and full reinstatement to a position suitable to his experience and abilities, without prejudice to his seniority and other rights and privileges. (b) Make Donald Brans whole for any loss of pay he may have suffered by reason of Respondent's discrimination against him by payment to him of a sum of money equal to that which he normally would have earned as wages from the date of the discrimi- nation to the date of Respondent's offer of reinstate- ment, less his net earnings during such period, in the manner set forth in F. W. Woolworth Company, 90 NLRB 289 (1950), with interest thereon to be obtain legal counsel before talking to a Board agent, or that Respondent will assist them in obtaining such counsel, for the purpose of obstructing Board investigations. We additionally shall modify the recommended make-whole order by applying, in accordance with our decision in Florida Steel Corporation. 231 NLRB 651 (1977), the current 7-percent rate for periods prior to August 25, 1977. in which the "adjusted prime interest rate" as used by the Internal Revenue Service in calculating interest on tax payments was at least 7 percent. 4 In Florida Steel Corporation, supra. Member Murphy restricted to the Tampa plant the remedy of providing the Union with access to company bulletin boards and a list of the names and addresses of employees. In light of the Respondent's continued rejection of the principles of the Act as reflected herein, she is now convinced that the broadening of the remedy to a companywide basis as to these matters is warranted. 491 DECISIONS OF NATIONAL LABOR RELATIONS BOARD computed in the manner prescribed in Florida Steel Corporation, 231 NLRB 651 (1977). 5 (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 Order. (d) Mail a copy of the attached notice marked "Appendix" 6 to each employee employed through- out its corporate facilities, post copies at each of its corporate facilities, and include it in appropriate company publications. Copies of said notice, on forms provided by the Regional Director for Region 12, after being duly signed by Respondent's represen- tative, shall be posted by Respondent 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) Convene during working time all of its employees throughout its corporate facilities at assembled meetings, either by shifts or departments or otherwise, and have a responsible official of Respondent, at department supervisor level or above, read to the assembled employees the contents of the attached Appendix. (f) Upon request by the Union, immediately grant the Union and its representatives reasonable access for a I-year period, beginning with the issuance date of this Decision and Order, to its bulletin boards and all places where notices to employees are customarily posted throughout its corporate facilities. (g) Upon request by the Union, made within I year of the issuance date of the Decision and Order, immediately give to the Union a list of names and addresses of all employees employed throughout its corporate facilities. (h) Notify the Regional Director for Region 12, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. I See, generally, Isis Plumbing & Hearing Co., 138 NLRB 716(1962). 6 In the event that this 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 read "Posted Pursuant to a Judgment of the United States Court of Appeals Enborcing 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 employees employed throughout our corporate facilities because they engage in union activities. WE WILL NOT discharge employees employed throughout our corporate facilities because they have given testimony under the Act. WE WILL NOT inform employees that they can obtain legal counsel before talking to a Board agent, or that we will assist them in obtaining such counsel, for the purpose of obstructing Board investigations. WE WILL NOT in any other manner interfere with, restrain, or coerce employees employed throughout our corporate facilities in the exercise of the rights guaranteed in the National Labor Relations Act. WE WILL offer Donald Brans immediate and full reinstatement to a position suitable to his experience and abilities, without prejudice to his seniority or other rights and privileges. WE WILL make Donald Brans whole for any loss of earnings he may have suffered because of our discrimination against him, plus interest. Upon request by the United Steelworkers of America, AFL-CIO, WE WILL immediately grant it access for a 1-year period, beginning with the issuance date of the Board's Decision and Order to our bulletin boards and all places where notices are customarily posted throughout our corporate facilities. Upon request by the above-named Union, made within the I-year period from the issuance date of the Board's Decision and Order, WE WILL immediately give to the Union a list of the names and addresses of all employees employed throughout our corporate facilities. All of our employees are free to become or remain members of United Steelworkers of America, AFL- CIO, or any other labor organization of their choosing, or to refrain from doing so. FLORIDA STEEL CORPORATION DECISION STATEMENT OF THE CASE IRWIN H. SOCOLOFF, Administrative Law Judge: Upon charges filed June 16 and July 23. 1976, by United Steelworkers of America, AFL-CIO, herein referred to as 492 FLORIDA STEEL CORPORATION the Union, against Florida Steel Corporation, herein called Respondent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 12, issued a complaint dated July 29, 1976, alleging violations by Respondent of Section 8(a)(1), (3), and (4) and Section 2(6) and (7) of the National Labor Relations Act, as amended, herein called the Act. Respondent, by its answer, denied the commission of any unfair labor practices. Pursuant to notice, a hearing was held before me in Tampa, Florida, on October 6 and 7, 1976, at which the General Counsel and Respondent were represented by counsel and all parties were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence. Thereafter, the parties filed briefs which have been duly considered. Upon the entire record in this case, and from my observation of the witnesses, I make the following: FINDINGS OF FACT I. JURISDIICTION Respondent is a Florida corporation engaged in the business of making and fabricating steel at its Tampa, Florida, mill. During the year preceding issuance of the complaint, a representative period, Respondent received at its Tampa, Florida, facilities goods, supplies, and materials valued in excess of $50,000 which were shipped from points located outside the State of Florida. In that same time period, Respondent shipped goods, supplies, and materials valued in excess of $50,000 directly to points located outside the State of Florida. I find that Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. LABOR ORGANIZATION United Steelworkers of America, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. Background On April 21, 1976, Respondent discharged its crane operator, Donald F. Brans. The General Counsel contends that the discharge occurred as a result of the union activities of that employee, and because he had previously testified against Respondent at an unfair labor practice proceeding before the Board.' Respondent, while conced- ing that it knew, at the time of the discharge, that Brans was a union supporter, and that its union animus may be inferred from its conduct in prior cases, 2 contends that Brans was discharged for careless and negligent operation I Florida Steel Corp., 224 NLRB 587 (1976). 2 See e.g., cases reported at 214 NLRB 264 (1974); 215 NLRB 97 (1974). enfd. as modified 529 F.2d 1225 (C.A. 5. 1976): 220 NLRB 225 (1975): 220 NLRB 260 (1975): 220 NLRB 1201 (1975). enfd. 538 F.2d 324 (C.A. 4, 1976); 221 NLRB 371 (1975), enfd. 542 F.2d 1165 (C.A. 5. 1976); 221 NLRB 554 (1975); 221 NLRB 1008 (1975): 222 NLRB 95s (1976). enfd. 536 F.2d 1385 (C.A. 5, 1976); 223 NLRB 174 (1976); 224 NLRB 45 (1976); 224 NLRB 587 (1976); 226 NLRB 123 (1976). In those cases, the Board found that Respondent, at its Tampa and other locations, engaged in numerous violations of Sec. 8(a) I) and (3) of the Act. of his crane. Also at issue is whether Respondent violated Section 8(a)(1) of the Act when, on March 18, 1976, it insisted that Brans complete a training and safety program and when, on April 20, 1976, it informed its employees, by written notice, that they could obtain legal counsel before talking to a Board agent and that Respondent would aid employees so desiring such counsel. B. Facts3 Donald F. Brans was employed by Respondent from April 1968, until April 21, 1976, when he was discharged. In that period, he worked at numerous jobs including janitor, truckdriver, saw helper, angle shearer, painter, gantry crane operator, sandblaster, truckloader, tundish repairman, ladle worker, and cleanup worker. Each time a change of position occurred, Brans also received an increase in wages. On March 16, 1975, Brans was promoted to the position of overhead crane operator. After an initial period of satisfactory performance, he encountered a series of accidents caused by his faulty operation of the crane. Thus, in October 1975, January 1976, March 1976, and April 1976, Brans' improper operation of equipment resulted in serious accidents, in one case causing physical injury to another employee and, in a second case, nearly killing a fellow employee. Also, in the October 1975 to April 1976 period, Brans' operation of his crane resulted in other, more minor, accidents. After each of the major accidents, Brans was disciplined. Thus, the October 1975 accident was followed by an oral reprimand while the January 1976 incident resulted in a written disciplinary warning. Following the accident in March of that year, Brans received a 2-day suspension and, upon his return to work, was required to complete a 3-day training program. 4 As noted, after the April accident he was discharged. A number of crane operators, currently employed by Respondent, testified with respect to accidents which occurred in preceding years and which did not result in the suspension or discharge of the operator. However, with a single exception, not one of those crane operators had compiled a record comparable to that of Brans, that is, a series of major accidents all occurring within a short span of time. The exception, employee Walter Hill, whose numerous 1975 and 1976 accidents as an overhead and D.E. crane operator resulted in receipt of oral and written warnings and a threat of discharge, was ultimately transferred to the job of utilityman, at the same rate of pay. When Brans was discharged on April 21, he also requested a transfer to "any other job." He told his supervisor, David Davis, "I said, 'Mr. Davis, if you all don't want me up crane,' I says, 'if there's any other job 3 Unless otherwise indicated, the fact findings contained herein are based upon a composite of the testimony of Donald Brans, employee Walter Hill. Supervisor James Hetrick, Supervisor David Davis, and Industrial Relations Representative James Rogers. 4 While Brans was the first crane operator required to take the training course, it has since been administered to new operators. In addition, expenenced crane operators who fail to demonstrate their competence on a "pretest" are also required to take the course. Brans. as other operators. was paid at his normal wage rate for the time so spent. He successfully completed the course. 493 DECISIONS OF NATIONAL LABOR RELATIONS BOARD here in the plant,' I says, 'I'll take it instead of getting fired.' " Davis replied, stating, "Well, with your record where would we put you?" Thus, contrary to its actions with respect to Hill, Respondent declined to transfer Brans although, at the time of Brans' discharge, it was actively seeking new employees. James Rogers, Respondent's industrial relations repre- sentative, testified that Respondent was willing to transfer Hill, but declined to do so in the case of Brans because the former had demonstrated a lack of ability to handle the crane operator job, while Brans had the ability but did not satisfactorily perform. Also, according to Rogers, Brans' "past negligence" precluded another assignment. However, in that connection, Rogers could point to only one instance of negligence in Brans' 7 years of service with Respondent preceding his promotion to crane operator. As indicated, Respondent concedes that, at the time of the discharge, it was aware of Brans' union sympathies and activities. Thus, during the period preceding a Board- conducted election held on February 26, 1976, Brans signed a union committee sheet, distributed leaflets at the plant gate and in the shop, wore union buttons and other insignia to work, and attached a union bumper sticker to the vehicle he drove to and from work. In December 1975, Brans testified against Respondent at a Board hearing, resulting in a finding by the Board that Respondent had coercively interrogated Brans with respect to his union activities. 5 On April 20, 1976, while union objections to the February 26 election were pending, 6 Respondent sent letters to its employees stating, inter alia, that: . . . In addition, if a National Labor Relations Board agent should drop in on you, you may ask for an opportunity to obtain legal counsel before you talk to him. If you should want some legal counsel, or just help in handling any of the situations described above, all you need do is let your supervisor know. He will put you in touch with someone who can help you. C. Conclusions Notwithstanding Respondent's knowledge of Brans' considerable activities in support of the Union, and Florida Steel Corporation's demonstrated willingness to oppose the Union by unlawful means, I conclude, on the state of this record, that Respondent was fully justified in its April 21, 1976, decision to remove Brans as a crane operator. In view of the number of accidents, major and minor, which were caused by Brans' negligent operation of his crane, all occurring within a relatively short timespan, Respondent's need to take action was obvious. This was particularly so in view of the safety hazard to other employees created by those accidents. In the only similar case, that of employee Hill, Respondent also removed the employee from opera- tion of a crane.7 5 Florida Steel Corp.. 224 NLRB 587 (1976). 6 On October 14. 1976. the Board issued its Order setting aside the election (Case 12- RC-4844). 7 For the same reasons. I find that Respondent was warranted in requiring that Brans complete a training program following the March 1976 Respondent's decision to discharge Brans, rather than grant his request for assignment to another position, stands on a very different footing. Respondent's action in that regard was in conflict with its treatment of Hill. Since Brans had served Respondent in a number of positions over an 8-year period, performing ably enough to earn successive promotions, and since Respondent was in need of additional employees at the time it discharged Brans, the disparate treatment of Hill and Brans is not easily explained. Rogers' testimony, that Brans' history of negligence precluded further assignment, is belied by the fact that in the years preceding his assignment as a crane operator Brans was accused of negligent action on only one occasion. Rogers' further attempt to distinguish the cases of Hill and Brans, by the claim that Hill was transferred because he lacked the ability to operate a crane while Brans was discharged because he had the ability to operate a crane, is inherently incredible. I find that the reasons advanced by Rogers to explain Respondent's actions are pretextual. In light of that circumstance, as well as the disparate treatment of Hill and Brans, and in view of Respondent's history of opposing the Union by actions in violation of Section 8(aXI) and (3) of the Act, I conclude that Respondent discharged Brans, rather than assign him to another position, in reprisal for his union activities and his earlier testimony under the Act. Respondent thus violated Section 8(a)(3) and (4) of the Act. I further conclude that Respondent violated Section 8(a)(1) of the Act by its April 20, 1976, letter to employees advising them of their right to obtain legal counsel before talking to a Board agent and of Respondent's willingness to assist employees in obtaining such counsel. In light of all the circumstances, including Respondent's pattern of unlawful conduct, as shown in this and previous cases, the letter seems a patent attempt to obstruct the investigations of the Board by discouraging employees from supplying information to Board agents. 8 IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with Respondent's opera- tions described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening commerce and the free flow of commerce. THE REMEDY Having found that Respondent has engaged in unfair labor practices in violation of Section 8(aX 1), (3), and (4) of the Act, I shall recommend that it be ordered to cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. accident. Brans' third major accident within a 5-month penod. Respon- dent's actions in that regard were not in violation of Sec. 8(aXH ) of the Act, as alleged in the complaint. I See Certain-leed Products Corporation, 147 NLRB 1517 (1964); R. G. Barry Corp., 162 NLRB 1472 (1967). 494 FLORIDA STEEL CORPORATION CONCLUSIONS OF LAW 1. The Respondent, Florida Steel Corporation, is an employer engaged in commerce, and in operations affect- ing commerce, within the meaning of Section 2(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 Donald F. Brans, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(aX4 ), (3), and (I) of the Act. 4. By advising its employees that they can obtain legal counsel before talking to a Board agent, and by further advising said employees that Respondent will aid them in obtaining such counsel, Respondent violated Section 8(a)(1) of the Act. 5. Respondent has not otherwise engaged in unfair labor practices within the meaning of the Act. [Recommended Order omitted from publication.] 495