Reliance Electric Co.

TOLEDO SCALE DIV. OF RELIANCE ELECTRIC CO. 383 Toledo Scale Division of Reliance Electric Company and Glen Larry Morgan. Case 8-CA-9022 Upon the entire record in this case, including my obser- vation of the witnesses and their demeanor, I make the following: January 16, 1976 DECISION AND ORDER By CHAIRMAN MURPHY AND MEMBERS JENKINS AND PENELLO On September 29, 1975, Administrative Law Judge David S. Davidson issued the attached Decision in this proceeding. Thereafter, Respondent filed excep- tions 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 has 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. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the Respondent, Toledo Scale Division of Reliance Electric Company, Toledo, Ohio, its offi- cers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. 1, In the absence of exceptions thereto, we adopt, pro forma, the Adminis- tiative Law Judge's dismissal of 8(a)(3) allegations concerning the discharge of Glen Larry Morgan DECISION STATEMENT OF THE CASE DAVID S. DAVIDSON, Administrative Law Judge: On April 16, 1975, a complaint issued pursuant to a charge filed on March 14, 1975, by Glen Larry Morgan. The complaint alleges that Respondent violated Section 8(a)(1) and (3) of the Act by issuing disciplinary reprimands to employees Glen Larry Morgan and Robert Turvey and by laying off Glen Larry Morgan because of union activities. In its an- swer the Respondent denies the commission of any unfair labor practices. A hearing in this case was held before me on June 10, 1975, in Toledo, Ohio. At the conclusion of the hearing oral argument was waived and the parties were given leave to file briefs which have been received from the General Counsel and Respondent. FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT The Respondent is a division of Reliance Electric Com- pany, a Delaware corporation. It-operates plants and facili- ties in a number of locations, including a facility in Toledo, Ohio, from which it annually ships finished products val- ued in excess of $50,000 to points outside the State of Ohio. I find that Respondent is an employer engaged in com- merce within the meaning of the Act and that it will effec- tuate the policies of the Act to assert jurisdiction herein. H. THE LABOR ORGANIZATION INVOLVED International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, UAW, referred to herein as the Union, is a labor organization within the meaning of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Facts 1. Introduction The instant case arose at a service facility operated by Respondent in Toledo, Ohio. At the time of the events here involved Respondent employed approximately 14 employ- ees at this facility who performed service work for Respon- dent for customers located within a radius of approximate- ly 100 miles from Toledo. These employees were directly supervised by Service Manager Ernest Eccleston who in turn answered to Zone Service Administrator Daniel Kas- par. During early 1974 the Union conducted an organizing campaign among the Toledo service employees, and as a result of an election conducted on May' 10, 1974, the Union was certified in July 1974, as their collective-bar- gaining representative. Following the Union's certification, a bargaining com- mittee was elected to negotiate for the Union and negotia- tions commenced. Glen Larry Morgan, who had been in- strumental in starting the organizing campaign, was one of three elected to the bargaining committee. Robert Turvey, who had assisted Morgan in soliciting authorization cards before the election, also ran for election to the bargaining committee but lost. Other employees were elected to the committee along with Morgan. Negotiations continued un- til May 1975, when after a strike an agreement was reached. 2. Respondent's alleged union animus There is evidence, only partially contradicted, of expres- sions of hostility to the Union and its supporters by Kaspar 222 NLRB No. 64 384 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and Eccleston both before and after the election. Before the election Kaspar asked employee Dan Wilson what he had to gain by joining the Union. Wilson replied that he had nothing to lose, that it didn't cost anything to join, and that he thought it would be good for the shop. Kaspar responded that the employees had something to lose, their jobs.' Somewhat earlier Kaspar told employees that if the Union were brought in, there would be layoffs? Before the election Kaspar told Turvey that there was no way that the Company would allow 14 men to dictate terms to it and that there was nothing to be gained by joining a union. Several times after the election Kaspar told Turvey that if the Union went on strike the shop would close and there would be no more service.' Following Morgan's election as a member of the negoti- ating committee in July 1974, Eccleston told Morgan that he would like to get rid of him and the Union if possible .4 3. The October reprimands of Morgan and Turvey On or about October 18 Morgan and Turvey were called in separately to Zone Service Administrator Kaspar's of- fice where Kaspar and Eccleston informed them that they were being placed on probation for a variety of reasons which they read to them from notes. Each was told that if there were any recurrences of the conduct on which the action was based, he would be dismissed without further warning. Thereafter Eccleston prepared written memos set- ting forth the reasons for the probation which were placed in Morgan's and Turvey's personnel records. The written memos placed in the employees' files contained in outline form five principal headings, each with subpoints, as the reasons for the probation. Four principal headings were common to both memos. These were absenteeism, falsify- ing service reports and timesheets, written and verbal cus- tomer complaints, and poor attitude towards Respondent and its supervision. A fifth category in Morgan's memo was not communicating with supervisors and in Turvey's memo not giving Eccleston sufficient information to quote overhaul jobs. Most of the evidence as to the reprimands and the con- duct to which they referred came from Morgan and Tur- vey. Respondent's Employee Relations Manager Hitch- ings, who testified as to what he was told by Eccleston and Kaspar, had no firsthand knowledge of the facts on which 1 Employees Wilson, Morgan, and Okorowski each testified with insignif- icant variations to this exchange. Kaspar did not specifically deny that it occurred, and in response to a question as to whether he recalled any of the statements attributed to him he testified that recalling a specific conversa- tion with employees was very difficult for him but that during the preelec- tion period he took a response type posture. Kaspar's testimony fell far short of meeting the specific testimony of the employee witnesses, all of whom were employed by Respondent at the time of the hearing and two of whom had no direct interest in the outcome of the proceeding I have cred- ited the employee witnesses 2 Wilson so testified. Kaspar testified that he absolutely did not recall making such a statement. 3 Apart from Kaspar's general testimony as to his difficulty in recalling conversations with employees, Turvey's testimony as to these statements by Kaspar was undemed. 4 Morgan so testified without contradiction Eccleston was not called as a witness the reprimands were based. Kaspar, who participated in the reprimands, had firsthand knowledge of only one or two of the incidents on which they were based, and the other reasons for the reprimands, he testified, he learned about from Eccleston. Eccleston who presumably had first- hand knowledge of the incidents on which the reprimands were based was not called as a witness. There is evidence that there were customer complaints about Morgan and Turvey and indeed that one such com- plaint was received by Respondent from a customer, Road- way Express, about a week before Morgan and Turvey were placed on probation. Morgan and Turvey offered ex- planations for these criticisms at the hearing, which were uncontradicted, and testified that at least some of the inci- dents referred to had happened some time before the Octo- ber 18 warnings and had not been previously mentioned to them. Morgan and Turvey did not dispute that they were ab- sent as stated by Eccleston, but both testified that they believed others had been absent to the same extent without being required to furnish proof of cause, which Eccleston told them would be required of them at the time of the reprimand. Their testimony in this respect was supported by that of Wilson and McDonald and was not contra- dicted. With respect to falsifying service reports and timesheets both were accused of arriving at jobs late, leaving early, and charging customers for a full day of work. Both were also charged with having breakfast after being dispatched from the shop for a job. As for the former, Morgan and Turvey testified that they were given no details and did not know what Kaspar and Eccleston were talking about. As for the latter they conceded that they often stopped for coffee or breakfast after being dispatched to customers from the shop but contended that it was common practice for which no one else was reprimanded. Their testimony to this effect was corroborated by a number of witnesses, in- cluding employee Gargac, who was with them when dis- covered at breakfast by Kaspar and Eccleston not long before the October 18 reprimands but was not similarly reprimanded. Respondent presented no evidence of falsification of ser- vice reports and timesheets by Morgan and Turvey, but Kaspar testified that he was unaware of any practice with respect to employees eating breakfast after leaving the shop and that this practice would result in false billing of customers. Employees testified, however, that they were al- lowed an hour for lunch, part of which they used for break- fast, and that they did not charge customers for time spent at breakfast. Although Kaspar sought to refute that expla- nation asserting that employees were allowed only half an hour for lunch, that testimony was patently incredible. Kaspar himself ultimately conceded that some employees may have taken an hour and that his knowledge was uncer- tain as to what employees had been told about the length of their lunch hour. He also testified that the normal work- day was from 7:30 a.m. to 4:30 p.m. Company records in evidence confirm that this was a normal workday and that employees were credited for 8 hours work during that workday, making it clear that an hour was allowed for lunch. In the light of the refutation of Kaspar's testimony TOLEDO SCALE DIV. OF RELIANCE ELECTRIC CO. in this regard and the evidence that the practice of stopping for breakfast was widespread, I also do not credit Kaspar's related testimony that he was unaware of the practice. With respect to the alleged poor attitude, the first point mentioned in both memos was that customers and fellow workers had complained about their attitude .5 The custom- er complaints referred to were apparently the same as those referred to separately in the reprimands. With respect to complaints by fellow employees, Morgan and Turvey testi- fied that they knew of no such complaints. Kaspar testified that Eccleston had told him that other employees com- plained that if Morgan and Turvey could get away with "it," why couldn't they. There was, however, no direct evi- dence of complaints by other employees about Morgan and Turvey. The second alleged particular of Morgan's poor attitude was that he constantly talked negatively about the Compa- ny, working conditions, and the condition of rental scales. In Turvey's case it was confined to constantly talking nega- tively about the Company. Morgan testified that he had talked negatively about working conditions and had com- plained to Eccleston about conditions in the hope that they would be cleared up. Turvey testified that the only thing he knew of that his alleged constant complaining could refer to was his campaigning for the Union. Respondent gave no explanation for the inclusion of these reasons among the list given for the reprimands. As a further specification of poor attitude both memos listed that Morgan and Turvey all but refused to take di- rect orders from supervisors. Morgan testified that he could only relate this charge to occasions when he asked Eccleston for help or other things and Eccleston asked him if he was going to refuse to do the job to which he replied negatively.6 Turvey testified that he could only relate this charge and another charge made only with respect to him-that he always found a reason to get out of doing jobs-to occasions on which he tried to tell Eccleston that his particular job could not be done on windy or rainy days and that some customers required advance notice that he was coming. Turvey testified that he pointed this out to Eccleston to try to avoid wasted trips. Respondent present- ed no evidence to show any other basis for these charges against Morgan and Turvey. The final element of Morgan's poor attitude alleged in the memo pertaining to him was that he did not cooperate with fellow workers. Morgan testified that he had no idea of what this charge pertained to, and Respondent present- ed no evidence to support it. The final element of Turvey's poor attitude alleged in the memo pertaining to him was that he failed to bring in a doctor's statement when one was requested after Turvey complained that he was allergic to fiberglass after being assigned to make a delivery to Johns Mansville. Turvey conceded that he had been asked 5 Morgan testified that when he was orally told of his probation none of the items in the memo placed in his file relating to his alleged poor attitude were covered. According to Kaspar all points in the memo were covered. Whether or not mentioned orally, it is clear that this was one of the alleged reasons for placing Morgan on probation 6 Morgan also testified without contradiction that after the election Re- spondent started to assign him to work individually on jobs that had previ- ously been two-man jobs 385 to get the excuse but failed to do so when Eccleston said nothing further to him about it. The final major point in the memo pertaining to Morgan was that he did not communicate with supervisors. The first particular alleged was that he would not call in after completing jobs but drove back to the shop for assign- ments. Morgan was corroborated in his testimony that the requirement that employees call in was not generally en- forced, and testified further that when he tried to call in he was only able to reach Eccleston about half the time. A second element under this point was that he did not wait for a return phone call after the office girl told Morgan that Eccleston would call him back. Morgan testified that the only incident he could relate this charge to was an occasion when he called in, was placed on hold, and hung up after 3 or 4 minutes. The final particular alleged was that Morgan got nasty over the telephone with the office girl. Morgan testified that he could only relate this charge to the fact that when he called in the office girl often-asked what he wanted only to tell him after he explained that he would have to talk to Eccleston. As a result he testified that he started telling her that he wanted to talk to Eccleston and not to her and that if he wanted to talk to her he would ask for her. Morgan's testimony was uncontradicted, and no different explanations were given. The final point mentioned in the Turvey memo was that Turvey did not give Eccleston enough information to quote overhaul jobs such as the condition of the steel, lever num- bers, and style of bearings. Turvey testified that he knew of only one job where he failed to give Eccleston this informa- tion and that it was impossible to do so because of accu- mulated mud in the scale pit which had to be dug out 7 He testified that he told Eccleston about it at the time. No contrary explanation was offered. On the basis of the above facts there is basis to conclude that in placing Morgan and Turvey on probation Respon- dent reached to find and include tenuous grounds for crit- icizing their work and singled them out for criticism for conduct which others engaged in without criticism and for conduct which was hardly a basis for censure. Thus, the evidence shows that they were criticized for absenteeism, failing to call in after completion of jobs, and stopping for breakfast or coffee enroute to jobs while other employees in similar circumstances were not. Given the uncontradict- ed explanations of Morgan and Turvey the evidence also shows that the charges that they overcharged customers, were the subject of complaints of fellow workers, did not cooperate with fellow workers and all but refused to take orders were baseless, as were the separate charges with re- spect to Morgan's telephone practices and Turvey's failure to supply adequate information for quotations. Even 'as- suming that some or all of the customer complaints about Morgan and Turvey were valid and were proper' cause for reprimands the inclusion of so many insubstantial grounds is strong evidence that those grounds were intended to 7 Removal of mud required a substantial effort which became part of the job performed by Respondent. 8 In reaching this conclusion, I have found it unnecessary to decide whether Respondent also treated Morgan and Turvey disparately or with- out foundation in the particulars advanced as supporting their discipline based on customer complaints 386 DECISIONS OF NATIONAL LABOR RELATIONS BOARD shore up a disciplinary action taken for other reasons. In the case of Morgan there is substantial evidence from which to infer the other reasons. Morgan was a leader in organizing the shop and became a member of the negotiat- ing committee. After the election Eccleston told him that he would like to get rid of him and the Union. In the case of Turvey the evidence is less strong. Although Turvey handed out some cards before the election, there is no di- rect evidence of Respondent's knowledge of that activity, and he failed to become a member of the negotiating com- mittee. However, a significant indication of the motivation for the probation imposed on both appears directly in the memos placed in their files in the charge that they con- stantly talked negatively about the Company. Turvey could relate this only to his union activity, and Morgan to the fact that he complained to Eccleston about conditions in the hope they could be cleared up. In the absence of any other explanation for this charge, in the light of Eccleston's postelection threat to Morgan, and in the light of the pat- ently overdrawn nature of the bills of particulars set forth in both memos, I conclude that whatever stimulus custom- er complaints may have provided in the decision to place Morgan and Turvey on probation, a substantial factor in the decision was their union adherence and concerted ac- tivity and the desire to inhibit its further expression.9 I find accordingly that the reprimands and probation given Mor- gan and Turvey violated Section 8(a)(1) of the Act. B. The Layoff of Morgan Morgan was laid off on January 16, 1974. Morgan con- tmued to serve on the negotiating committee after his lay- off. Around April 28, a second employee, Rejent, was also laid off. When the contract became effective, it provided super seniority for the shop steward. As Morgan was shop steward, he was recalled. At the time of his layoff, Morgan had the least unbroken service at the Toledo facility, although he had more total company service than two employees hired before him. Re- jent had the next least unbroken service. There had been no prior layoff at the Toledo service facility location, and employees testified that previously during slow periods the Company had made efforts to keep technicians occupied by finding work for them in the shop or at service facilities in other areas. Despite this evidence and suspicion generated by the findings above as to Morgan's reprimand, the evidence is persuasive that the January layoff was pursuant to an over- all company decision to cut expenses because of a down- turn in the economy and a decline in business. Thus, Ron Morgan, national administrative officer and financial man- ager of Respondent's service operations, identified a plan adopted shortly before the layoff which called for a na- tionwide reduction of 26 clerical and service technicians, including service technicians at Boston/Lawrence, Atlanta, Chattanooga, Memphis, and Chicago, as well as at Toledo. It also provided that two technicians who were about to retire at Pittsburgh and Youngstown would not be re- 9 See Virginia Metalcrafters, Inc., 158 NLRB 958, 962, enfd 387 F 2d 379 (C A. 4, 1967) placed, that the reduction of one service technician at Monroe, Louisiana, be considered, that the planned addi- tion of a service technician at Tulsa, Oklahoma, be post- poned, and that vacancies in Green Bay and Fond du Lac and Lincoln, Nebraska, not be filled. Morgan testified without contradiction that all actions recommended in the plan were taken. Kaspar gave further testimony to show that there was a decline in billable hours at Toledo which warranted a reduction of force. Kaspar also explained that although overtime work continued, during the period that Morgan was laid off, there was 20 percent less overtime worked than during the comparable period a year earlier. Although the amount of overtime worked after Morgan's layoff remained considerable, Ron Morgan and Kaspar credibly testified that much of the overtime was billable and could not be eliminated because some customers re- quired service outside their normal working hours.10 I con- clude in these circumstances that the evidence fails to es- tablish that the decision to layoff a service technician at the Toledo service facility was motivated by antiunion consid- erations. The question remains whether the selection of Glen Lar- ry Morgan as the technician to be laid off was discrimina- tory. Again the circumstances of the October reprimand raise suspicion, but are not sufficient to support a conclu- sion of discrimination. Morgan had the least unbroken ser- vice of the Toledo technicians, and Respondent contends he was chosen for layoff on that basis. While Respondent was not required to follow seniority at all in the absence of a contract and could have considered total service rather than continuous service, there is nothing to show that the criterion used by Respondent for selecting Morgan was arbitrarily, capricioulsy, or discriminatorily selected. In particular, there is no showing that Respondent used any different basis of selection at other locations where techni- cians were concurrently laid off or that it sought any differ- ent criterion for selecting employees for layoffs in the ne- gotiations with the Union then in progress. Clearly if the decision to lay off one technician was not discriminatorily motivated, Respondent had the right to pick one to lay off. The facts that Morgan had been previously threatened by Eccleston and had been unlawfully reprimanded and placed on probation are not sufficient to support a conclu- sion that his selection for layoff was discriminatory in the absence of some showing that Respondent would not have relied on unbroken service as the criterion for layoff but for the fact that Morgan had the least such service. Accordingly, I find that the General Counsel has failed to establish that Morgan was discriminatorily selected,for layoff and shall recommend that the allegation of the com- plaint based on his layoff be dismissed. IV. THE REMEDY Having found that Respondent has engaged in unfair labor practices in violation of Section 8(a)(1) of the Act, I shall recommend that Respondent be ordered to cease and desist therefrom and to take certain affirmative action de- 10 Overtime records in evidence support this testimony showing that dur- ing the period of Morgan's layoff close to 70 percent of the overtime was accrued on weekends TOLEDO SCALE DIV. OF RELIANCE ELECTRIC CO. signed to effectuate the policies of the Act. Upon the basis of the above findings of fact and the entire record in this case, I make the following: CONCLUSIONS OF LAW 1. Toledo Scale Division of Reliance Electric Company is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. By reprimanding Glen Larry Morgan and Robert Turvey and placing them on probation because of their union and concerted activities, Respondent has engaged in and is engaging in unfair labor practices affecting com- merce within the meaning of Section 8(a)(1) of the Act. Upon the basis of the above findings of fact, conclusions of law, and the entire record in this case, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, I hereby issue the following recommended: 387 gion 8, after being duly signed by Respondent's representa- tive, shall be posted by it 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. (c) Notify the Regional Director for Region 8, in writ- ing, within 20 days from the date of this Order, what steps have been taken to comply herewith. 11 In the event no exceptions are filed as provided by Sec 10246 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. 12 In the event that the' Board's 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 II The Respondent, Toledo Scale Division of Reliance Electric Company, Toledo, Ohio, its officers, agents, suc- cessors, and assigns, shall: 1. Cease and desist from reprimanding employees or placing them on probation because of their union or con- certed activities or in any like or related manner interfering with, restraining, or coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action which is neces- sary to effectuate the policies of the Act: (a) Rescind the reprimands issued to Glen Larry Mor- gan and Robert Turvey on or about October 18, 1974, and the probation imposed upon them, and remove all records thereof from its personnel files. (b) Post at its Toledo, Ohio, service facility, copies of the attached notice marked "Appendix." 12 Copies of said no- tice on forms provided by the Regional Director for Re- APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT reprimand employees or place them on probation because of their union or concerted activi- ties and WE WILL NOT in any other like or related man- ner interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed in Section 7 of the Act. TOLEDO SCALE DIVISION OF RELIANCE ELECTRIC COMPANY