R & S Steel Corp.

R & S STEEL CORP. 69 R & S Steel Corp. and Barry Henry. Case 8-CA-8585 January 9, 1976 DECISION AND ORDER BY CHAIRMAN MURPHY AND MEMBERS FANNING AND PENELLO On June 30, 1975, Administrative Law Judge Well- ington A. Gillis issued the attached Decision in this proceeding. Thereafter, General Counsel filed excep- tions and a supporting brief, and Respondent filed an answering 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 has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings,' and conclusions of the Administrative Law Judge only to the extent consistent herewith. The Administrative Law Judge found that the al- leged discriminatees, Barry Henry, Ralph Williams, and John Chandler, quit their employment with Re- spondent, and he recommended dismissal of the complaint. We find, to the contrary, that Respondent unlawfully discharged these employees for presenting their grievances. The facts are fully set forth in the Administrative Law Judge's Decision. In summary, the credited evi- dence is as follows: on September 3, 1974,2 Henry, Williams, and Chandler decided to protest what they considered to be favoritism in the shop .3 They first talked to Foreman Larry Lutsy about their com- plaints. As they were not satisfied with Lutsy's re- sponse they decided to present their grievance to Howard Seabeck, Respondent's owner and presi- dent. The employees chose Henry to be spokesman. Henry entered Seabeck's office and, according to Seabeck's testimony, announced that he, Williams, and Chandler were "walking out" because of "all this favoritism." 4 During a discussion of the specifics of i The General Counsel 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. 2 All dates are 1974 unless otherwise indicated 3 As is more fully detailed by the Administrative Law Judge , the three employees objected to management's failure to "dock" fellow employee Scott Seabeck, the owner's son, for arriving late to work. They believed that management's action in this regard was at variance with its policies as ap- plied to them the employees' complaints Seabeck told Henry that if he had to leave to go ahead and leave, that it was his shop, and that if it was not to their liking they could leave. Henry then left Seabeck's office and met Wil- liams and Chandler in the washroom. Seabeck fol- lowed Henry into the washroom where the four of them further discussed the employees' grievances. During the conversation in the washroom, Henry said, "We better leave." As the employees were leav- ing, Seabeck admittedly stated, "Fellows, if you walk out, don't plan on coming back." The Administrative Law Judge found that the em- ployees quit their employment when they left Respondent's shop,5 that Respondent had not dis- charged them, and that Respondent had therefore committed no violation of the Act. General Counsel contends that the facts reveal that Respondent dis- charged the three employees for presenting griev- ances to Seabeck. We agree with the General Coun- sel. In the normal employer-employee exchange, the conversation between the employees and Seabeck would be intended and understood to mean that Sea- beck was telling his employees to stop pressing their grievances or leave the plant. From the first conver- sation in his office until the time the employees actu- ally decided to leave the plant, Seabeck insisted that they either stop their actions or leave. The employees chose the latter alternative, and Respondent there- upon told them not to come back, i.e., that they, were permanently terminated. This was clearly a discharge for acting concertedly in the presentation of their grievances, as the General Counsel alleged. We find, therefore, that Respondent violated Section 8(a)(1) of the Act when it discharged Henry, Williams, and Chandler, because of their protected concerted activ- ity in presenting their grievances to Respondent. The Remedy We have found Henry, Williams, and Chandler were engaged in protected concerted activity when they presented their grievances to Respondent and that their discharge for engaging in such activity vio- lated Section 8(a)(1) of the Act. We shall, therefore, order Respondent to offer them immediate and full reinstatement to their former jobs or, if those jobs no 4 The employees were clearly engaging in protected concerted activity in presenting such a protest i Thus, the Administrative Law Judge concluded that when the employ- ees said "We better leave " they were upset over Seabeck's refusal to agree with them as to their "beefs" and decided "to quit" their employment and to walk out, and that their decision was based upon what they considered favoritism and other adverse conditions in the shop and not upon the Respondent's refusal to listen to their grievances . We cannot accept that line of reasoning because it attributes to the employees intentions which they did not express and which are based on no additional evidence. 222 NLRB No. 12 70 DECISIONS OF NATIONAL LABOR RELATIONS BOARD longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights and privileges, and make them whole for any loss of earnings they may have suffered by payment to them of the amount they normally would have earned as wages from September 3, 1974, to the date of an offer of reinstatement, less net earnings. Backpay shall be computed on a quarterly basis in the manner estab- lished by the Board in F. W. Woolworth Company, 90 NLRB -289, 291-294 (1950), and shall include the payment of interest at the rate of 6 percent per an- num to be computed in the manner set forth in Isis Plumbing & Heating Co., 138 NLRB 716 (1962). As the unlawful discharges of -employees Henry; Williams, and Chandler, who together constituted over half of Respondent's work force, are of such serious-nature- and strike at the very heart of rights intended to be protected by theAct, we shall issue a "broad" -cease-and-desist order requiring Respon- dent to cease and desist in any manner from infring- ing upon employee_rights.6 (c) Post _at its Cleveland, Ohio, facility copies of the attached notice marked "Appendix."7 Copies of said notice, on forms provided by the Regional Di- rector for Region 8, after being duly signed by Respondent's representative, shall be posted by it im- mediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicu- ous places, including all places where notices to em- ployees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said no- tices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 8, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply here- with. 6 N L R B v Entwistle Mfg Co, 120 F.2d 532, 536-537 (C A. 4, 1941). 7 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 Enforcing an Order of the National Labor Relations Board." ORDER - Pursuant to Section 19(c) of the National Labor Relations Act, as amended, the National Labor Re- lations- Board hereby orders that the Respondent, R & S Steel Corp., Cleveland, Ohio, its officers, agents, successors, and assigns, shall: 1. Cease and desist'from: .(a) Interfering with, restraining, or coercing em- ployees by discharging employees, for engaging in the protected concerted activity of presenting grievances--. (b) In any other, manner interfering with, restrain- ing, or coercing employees in_ the exercise of rights guaranteed in Section 7 of the Act, as amended. 2. Take the following affirmative action designed to effectuate the policies of the Act: (a) Offer Barry Henry, Ralph Williams, and John Chandler immediate and full reinstatement to their former positions or, if those positions are no longer available, to substantially equivalent positions with- out prejudice to their seniority or other -rights and privileges, discharging if necessary any employees hired to replace them, and'make them whole for any loss of earnings-they may have suffered as a result of the unlawful action taken against them, in the man- ner set forth in the section 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, timecards, personnel records and reports, and all other records necessary to analyze the amounts of backpay due under the terms of this Order. , - APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing in which all sides had the opportunity to present their evidence, the National Labor Rela- tions Board has-found that we have violated the law and has ordered us to post this notice. WE WILL NOT interfere with, restrain, or coerce our employees by discharging them for engaging in the protected concerted activity of presenting grievances. WE WILL offer Barry Henry, Ralph Williams, and John Chandler reinstatement to their for- mer positions or, if those positions are no longer available, to substantially equivalent positions without prejudice to their seniority or other rights and privileges. WE WILL make Barry Henry, Ralph Williams, and John Chandler whole for any loss of earn- ings they may have suffered as a result of our unlawful action against them. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the, exercise of rights guaranteed them by Section ,7 of the National Labor Relations Act, as amend- ed. R & S STEEL CORP. DECISION STATEMENT OF THE CASE R & -S STEEL CORP. 71 WELLINGTON A. GILLIS, Administrative Law Judge: This case was heard before me at Cleveland, Ohio, and is based upon a charge and an amended charge filed on September 4 and October 7, 1974, respectively, by Barry Henry, an individual, upon a complaint issued on October 18, 1974, by the General Counsel for the National Labor -Relations Board, hereinafter referred to as the Board, against R & S Steel Corp., hereinafter referred to as the Respondent or the Company, alleging violations of Section 8(a)(1) and Section 2(6) and (7) of the National Labor Relations Act, as amended (61 Stat. 136), and upon an answer timely filed by the Respondent denying the commission of any unfair labor practices. All parties were represented by counsel and were afford- ed full opportunity to examine and cross-examine witness- es, to introduce evidence pertinent to the issues, and to engage in oral argument. Subsequent to the close of the hearing, timely briefs were submitted by counsel for the General Counsel and for the Respondent. Upon the entire record in this case, and from my obser- vation of the witnesses and their demeanor on the witness stand, and upon substantial, reliable evidence "considered along with_the consistency and inherent probability of tes- timony" (Universal Camera Corporation v. N.L.R.B., 340 U.S. 474,-496 (1950) ), I make the following: FINDINGS AND CONCLUSIONS 1. THE BUSINESS OF THE RESPONDENT R & S; Steel Corp. is an Ohio corporation with its only place of business located in Cleveland, Ohio; where it is engaged in the business of slitting metal. Annually- the Re- spondent ships goods valued in excess of $50,000 to enter- prises which in turn ship goods valued in excess of $50,000 directly to points located outside the State of Ohio. The parties admit, and_.I find, that the Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the, Act. - n. THE ALLEGED UNFAIR LABOR PRACTICES -A. Issue The issue in this proceeding concerns whether employees Barry Henry, John Chandler, and Ralph Williams were discharged-on September 3, 1974, and, if so,-were they dis- charged because they had engaged in a protected concert- ed activity in violation of Section 8(a)(1) of the Act. - B. The Facts In September 1974, 1 the Respondent's employee comple- ment consisted of four employees and a working foreman. On September 3, employee Scott Seabeck, son of Company President Howard Seabeck, had a 9 a.m. dental appoint- ment, -and arrived at work around 9:55 a.m. Upon entering the shop,-employee Barry Henry and then employee Ralph Williams asked Scott Seabeck where he had been. Seabeck told each one, in turn,, that he had been to the dentist of- fice. Seabeck proceeded to the-large slitter machine at the back of the shop which was being operated by Foreman Larry Lutsy. A few minutes later, while Lutsy had the ma- chine shut down and was replacing a coil, Henry ap- proached-Lutsy and asked him why Seabeck was late. Lut- sy, who had been apprised earlier by Scott's father that Scott had a dental appointment and would be late, told Henry that Scott had a dental appointment and that his father had called ,him earlier about it. Henry, upset over the fact that Seabeck had not.-been disciplined for report- ing late, told Lutsy, "if you- want any work out of me you would have to fire me if Scott wasn't punished for being late." Henry left, went back to his machine, and a,few minutes later engaged in a discussion concerning the matter up in front of the shop with the other two shop employees, Ralph Williams and John Chandler. According to Williams, they "had a discussion-about it because-he (Scott Seabeck) nev- er got punished in no way, and we decided that the best thing to do was to call the Labor Board and see- what we could do about it." Chandler testified on cross-examina- tion that, in addition to their complaint about, favoritism being shown Scott Seabeclc„ they -also discussed the fact that, at some earlier time, he (Chandler)-had had 2 hours' pay deducted when he was ,tardy only 1 hour. Henry testi- fied on direct examination that they discussed Scott Seabeck's reporting late, and on- cross-examination that Chandler had at some point been docked for being late, whereas a George Burkett had not-, and "about how Sea- beck treated (Williams) rude all the time and not treating anybody else rude." In any event, the three agreed that they should talk with the Labor Board to find out if there was anything that could be done, and chose Henry to do it_ Henry immediately went to a telephone and called the National Labor Relations Board, inquiring if there- were anything that could be done "about favoritism happening at the shop." In reply to the query as to whether it were a union shop, Henry told the Board person that it was not. Henry was then told that there was not much that could be done, other than for the employees to go into the office as a group and have a discussion with the owner. Henry returned and briefly told Williams and Chandler what the response had been. The three employees then de- cided that they would go to the=office and talk with How- ard Seabeck, and that Henry would do-the talking. Henry's version of the brief visit that followed with Howard Seabeck is that he went into the front part of the office, with Williams and Chandler remaining in the sec- ond part of the office close to the shop. Howard spoke, telling Seabeck that "we would like to talk to him about conditions in the shop." When Seabeck inquired as to "who was we," Henry said, Ralph Williams, John Chan- dler, and himself. In reply to Seabeck's query as to what he 1 All dates refer to the year 1974. 72 DECISIONS OF NATIONAL LABOR RELATIONS BOARD wanted to talk about, Henry mentioned Scott's coming to work late without an excuse and not being disciplined for it, as he (Henry) had been. -Seabeck, according to Henry, then told him that Scott was his son and that he did not need an excuse, that it was his shop and he would run it the way he wanted to. Henry then made reference to the inci- dent when Larry Lutsy had quit for 2 days and Seabeck had hired him back and paid him for it. Seabeck then alleg- edly said that "he didn't care if they liked it or not, that he would run the shop the way he wanted to and if we didn't like it we were fired." Henry then left the office? Seabeck's testimony differs from that of Henry, the for- mer testifying that Henry entered, stood at the door, and said that three of us are walking out. When Seabeck asked, which three, and was told, Seabeck inquired, "Over what?" Henry answered, the way people are treated around here. Upon further inquiry Henry replied "Well, there is all this favoritism." When Seabeck proclaimed ignorance and as- serted that he tried to be fair with everyone, Seabeck told Henry that if he had to leave, to go ahead and leave, that it was his shop and if it was not to their liking they could leave. Henry left the office and met Chandler and Williams out in the shop by the washroom. Very shortly thereafter, Sea- beck followed him out and engaged in a brief conversation with the three employees. Seabeck asked the boys what the trouble was, to which Chandler complained that the Com- pany was docking some employees and not docking others. Seabeck stated that he was unaware of it, at which point Williams spoke, saying that Seabeck had promised him a raise. Seabeck denied having made such a promise and Williams accused Seabeck of lying. Williams then told Sea- beck that his foreman had informed him that he was sup- pose to'get a raise. Seabeck, who had recently loaned mon- ey to Chandler to purchase a car, then told the boys they were being unfair to him. At the conclusion of this brief encounter on the shop floor, according to Henry, Seabeck said, "It was his shop and if we didn't like it we were fired." According to Chandler and Williams, Seabeck said, "That's my son, that's my shop. I will run it the way I want to. You are fired." Seabeck testified that, at this point he said, "Fellows, I don't know why this is all transpiring." When Henry admittedly said, "we better leave," and the three employees started out, Seabeck, apparently in an ele- vated voice, told the three that if they left, "Don't plan on coming back." With this the three employees, Henry, Chandler, and Williams, left the plant.3 The following day, September 4, Williams called Sea- beck and asked him if he could come in and get his check. Seabeck told him he would have to wait until Friday. On this date, September 6, the three employees together went to the office to get their checks. In picking them up, Sea- beck had prepared a form for signature indicating that the three employees had quit their employment. In reply to a 2 Williams corroborated Henry as to the latter, but Chandler testified that they both had left before and did not hear the last part of the conversation. Seabeck, corroborated by Lutsy and Scott Seabeck, who had witnessed from a distance, testified that only Henry went into the office 3 Seabeck's corroborated admonition in this regard was overheard by Lutsy and Scott Seabeck. question by one of them, Seabeck stated that the boys had not been fired, that they had quit, and that Lutsy was a witness to the fact. When Henry scratched his signature off, Seabeck told them he did not care whether or not they signed it. Analysis and Conclusions In support of the narrow 8(a)(l) complaint allegation that the Respondent unlawfully discharged the three em- ployees for engaging in protected concerted activity when "they protested the disparate disciplinary policy of the Re- spondent with respect to employees who arrived late for work," the General Counsel argues in its brief that the rec- ord herein discloses "a patent attempt by the Respondent to prevent a group of employees from presenting through their spokesman their dissatisfaction with conditions at Respondent's plant." The Respondent, asserting that Hen- ry was not engaged in a protected concerted activity in approaching Seabeck and that there was no legitimate grievance presented to management, argues in the main that these employees were at no time discharged, but rather that they quit their employment when the Respondent failed to act upon their grievance. In resolving the issue presented, it must be made clear that this is not, the usual union activity case arising under Section 8(a)(3), for there is no union involved. What is presented is the question of whether the Respondent, spe- cifically Company President Seabeck, interfered with, re- strained, or coerced its employees in the exercise of their Section 7 rights, specifically, the right to engage in concert- ed activities for the purposes of collective bargaining or other aid or protection, in violation of Section 8(a)(1) of the Act. Under the facts of this case, the inferences to be drawn from these facts, and the record as a whole, I find that the three employees Henry, Williams, and Chandler on the morning of September 3 became disgruntled over the tardy arrival of the boss' son, and, having received no comfort from the foreman or the Labor Board, decided that Henry, speaking for all three employees, would pre- sent to Seabeck their grievance in this regard, with the ex- press purpose of his doing something about- such favorit- ism.4 After listening to Henry and refusing to agree to take corrective action, Seabeck gave Henry and his two fellow employees the alternative of continuing to work or leav- ing.5 Thus, while I agree with the General Counsel that Henry was in fact representing other employees and, therefore, engaged in a concerted activity, and that the subject matter raised by Henry constitutes a grievance and, thus, its pre- sentation to the Respondent renders it a protected activity, I do not agree with the General Counsel that Seabeck pre- 4 The one or two other petty gripes I feel were secondary to the true reasons for approaching Seabeck 5 In making this finding I do not credit record testimony that would indi- cate that, at any time on September 3, Seabeck unqualifiedly told the em- ployees outright that they were fired I do not credit Seabeck's categorical denial in this regard. Whether, as testified to by Henry , Seabeck told him that if he did not like the way he ran the shop they were fired , or, as testified to by Seabeck , he told Henry "that it was his shop and if it was not to their liking they could leave," I find that Seabeck was rejecting the grievance but giving them the option as to their employment. R & S STEEL CORP. vented Henry and his fellow employees from presenting to him their grievances. I find that, in fact, the three employ- ees, upset over Seabeck's refusal to agree with them as to their beefs, decided to quit their employment and to walk out; that their decision was based upon what they consid- ered favoritism and other adverse conditions in the shop and not upon the Respondent's refusal to listen to their grievances. The fact that, after they indicated they were leaving the Company and were on the way out, Seabeck admonished them not to plan to return if they left, does not alter the conclusion that the employees quit rather than were fired .6 On the record as a whole, I find that the Gen- eral Counsel has failed to establish by a preponderance of 6 Unrefuted is the testimony of Lutsy to the effect that a couple of months after the termination, during a chance meeting with Chandler, the latter in casual conversation told him that "he wished he hadn't left, but he did " 73 the credible evidence that the Respondent on September 3, or any other time, interfered with, restrained, or coerced its employees in the exercise of their Section 7 rights by dis- charging employees Barry Henry, John Chandler, and Ralph Williams in violation of Section 8(a)(1) of the Act.7 Upon the basis of the foregoing findings of fact and con- clusions of law, I make the following: CONCLUSIONS OF LAW 1. R & S Steel Corp. is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Respondent has not engaged in any unfair labor practices as alleged in the-complaint. [Recommended Order for dismissal omitted from publi- cation.] 7 The record contains no credible evidence , nor is it alleged , that the employees intended their action in leaving the plant to constitute a protest, as distinguished from an alleged discharge or a permanent quitting.