Firestone Tires and Rubber Co.

1040 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Firestone Steel Products Company, a Division of Firestone Tire and Rubber Company and David R. Stafford. Case 7-CA-12568 March 24, 1977 DECISION AND ORDER BY MEMBERS FANNING, PENELLO, AND WALTHER On December 28, 1976, Administrative Law Judge Leonard M. Wagman issued the attached Decision in this proceeding. Thereafter, the Respondent filed exceptions and a supporting 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 brief and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order, as modified herein. The Administrative Law Judge found that the Respondent violated Section 8(a)(1) of the Act by suspending employee David R. Stafford because of his activities as a union safety representative and by attempting to obstruct and interfere with the Board's processes. The Respondent excepted, claiming that Stafford was suspended solely for his refusal to perform an assigned task and that the statements by a company attorney to Stafford and another employ- ee were neither coercive nor intended to interfere with their attendance at the hearing. For the reasons set out in his decision, in addition to the factors set forth below, we agree with the Administrative Law Judge. The dispute arose over the assignment of the job of pumping oil from an overflowing drum back into a leaking machine. The evidence discloses that al- though Stafford stated that a junior oiler should be given the assignment, he never explicitly refused to pump the oil.' He merely stated that he could not do it safely until a large pile of tire rims was moved out of the way. Robert Allerie, Stafford's immediate supervisor, agreed to have the rims moved. Stafford went to the union office to discuss the assignment with his chief steward, then took his normal rest break at 5:30. After his rest break, Stafford was given i Stafford initially was asked to move the full barrel and replace it with an empty one . This he refused to do, stating that he could not safely move the heavy drum because he had a back ailment and might slip in the oil that had overflowed onto the floor. Superintendent Allene did not make an issue of this work refusal , but instead merely told Stafford to pump the oil. 2 A recent case which read the implementing regulations in conjunction with the Occupational Safety and Health Act held that there is a linuted right to refuse work under certain conditions, noting that arbitration and 228 NLRB No. 117 a pass by Allerie which stated that he was suspended as of 5:30 for refusal to pump the oil. When Stafford protested that he could not be suspended while on his rest break, Allerie changed the time marked on the pass to 5:40. After consultation with Allerie, Industrial Relations Manager Wukovits extended the suspension by 2 days. It is important at the outset to characterize correctly the issue presented by this case. This is not a safety case. It does not present any issues arising under Section 502 of the Act, which excludes from the definition of "strike" a work stoppage due to abnormally dangerous conditions. Nor does it present the issue of whether such a work stoppage by an individual employee is protected activity.2 The issue in this case is not whether Firestone lawfully could have suspended Stafford for a refusal to move the overflowing drum or pump the oil without having the rims moved.3 Rather, the sole issue is whether Firestone used the alleged work refusal as a pretext for punishing Stafford's protected activities as a safety committeeman. The record fully supports Administrative Law Judge Wagman's finding that the Respondent's hostility toward Stafford because of his safety activities was the real cause of the suspension. The testimony indicates that of six employees on the union safety committee, Stafford was the only militant. The evidence further establishes that this militancy resulted in hostility toward Stafford. For example, the Respondent does not deny that both Allerie and Safety Inspector Angebrandt expressed to Stafford their displeasure with his manner of handling safety complaints, and one employee testified that it was common knowledge around the plant that Allerie was after Stafford. Moreover, the timing of the suspension casts doubt on the Respon- dent's asserted reason. Testimony indicates that the rims were not moved out of the way until after 5:45, 5 minutes after Stafford was suspended. In light of this fact, it is Allerie's angry reaction rather than Stafford's decision to take his normal break that seems unreasonable. We therefore conclude that the Respondent's motive in suspending Stafford was to discourage his safety activities. We additionally concur with Administrative Law Judge Wagman's conclusion that in the context of the Respondent's hostility to safety activity,4 the statements made by the Respondent's attorney grievance procedures are no help to a dead employee . Usery v. The Babcock and Wilcox Company, 1976-1977 OSHD ¶21, 423,4 OSHC 1857. 3 We note that Allerie did not suspend Stafford for those earlier protests, but rather agreed to modify the assignment to comply with Stafford's safety concerns. 4 The Respondent urges that the court's finding in The Firestone Tire and Rubber Company v. N.LR.B., 539 F.2d 1335, 1338 (CA. 4, 1976), of "no antiunion animus whatsoever" in the plant herein involved is relevant to the FIRESTONE STEEL violated Section 8(a)(1). The first incident involved the Respondent's attorney telling an employee witness on the day before the hearing, "Well, if I was you I would just keep my nose out of it." Although the statement was made in a laughing and joking manner, the words convey a clear warning not to attend the hearing. Moreover, the statement was not immediately retracted. Only later was the employee told by another of Respondent's attorneys that he must testify because he had been subpenaed. The second incident, which also occurred shortly before the hearing, involved the same attorney asking Stafford to drop his case. The Respondent attempted to characterize this as a mere attempt to reach a settlement. However, nothing was offered to Stafford in return for dropping the case, and there is no evidence that any settlement negotiations followed the request. In view of Stafford's persistent attempts to vindicate himself through all available channels,5 it seems odd that the Respondent would expect that he would simply give up unless he thought that there was a real danger in continuing. In sum, we find that the Respondent committed the unfair labor practices as found by Administrative Law Judge Wagman. Because of the seriousness of the violations, we shall, however, modify his recom- mended Order to provide that the Respondent shall not in any other manner interfere with, restrain, or coerce employees in the exercise of rights guaranteed them in Section 7 of the Act. 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, as modified below, and hereby orders that the Respon- dent, Firestone Steel Products Company, a Division of Firestone Tire and Rubber Company, Wyandotte, Michigan, its officers, agents, successors, and assigns, shall take the action set forth in the said recommend- ed Order, as so modified: 1. Substitute the following for paragraph 1(c): "(c) In any other manner interfering with, restrain- ing, or coercing employees in the exercise of rights guaranteed them in Section 7 of the Act." 2. Substitute the attached notice for that of the Administrative Law Judge. instant case. However, we are here concerned with hostility to safety activity, not union animus. Indeed, there is evidence indicating that the Union was disturbed about the possibility that Stafford's tendency to "rock the boat" might disrupt its "harmonious" relationship with the Respondent. 5 He additionally filed a grievance and an OSHA complaint. PRODUCTS COMPANY 1041 APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT suspend employees because they engage in protected, concerted activity. WE WILL NOT attempt to obstruct or interfere with the Board's processes. WE WILL NOT in any other manner interfere with, restrain, or coerce employees in the exercise of the rights guaranteed them in Section 7 of the Act. WE WILL rescind the suspension inflicted upon employee David R. Stafford on July 28, 1975, and expunge from his personnel file any reference thereto. WE WILL make David R. Stafford whole for any loss of pay he may have suffered as a result of the discrimination against him. FIRESTONE STEEL PRODUCTS COMPANY, A DIVISION OF FIRESTONE TIRE AND RUBBER COMPANY DECISION STATEMENT OF THE CASE LEONARD M. WAGMAN, Administrative Law Judge: This case was heard before me at Detroit, Michigan, on August 26, 1976. David R. Stafford, an individual, filed a charge on December 9, 1975, and the General Counsel of the National Labor Relations Board by the Regional Director for Region 7 issued a complaint on January 30, 1976. The primary issues in this case are whether Respondent, Firestone Steel Products Company, a Division of Firestone Tire and Rubber Company, referred to herein as the Company, suspended David R. Stafford from his employ- ment because he made safety complaints to company supervisors or threatened to make or made similar complaints to the Occupational Safety and Health Admin- istration of the United States Department of Labor (referred to herein as OSHA). In its timely filed answer, the Company denied committing the alleged unfair labor practices. Upon the entire record, including my observation of the demeanor of the witnesses, and after due consideration of the brief' filed by the Company, I make the following: I Neither the counsel for the General Counsel nor the Charging Party filed a brief 1042 DECISIONS OF NATIONAL LABOR RELATIONS BOARD FINDINGS OF FACT I. JURISDICTION Firestone Tire and Rubber Company, of which Firestone Steel Products Company is a division, is, and has been at all times material herein, an Ohio corporation engaged in the manufacture, sale, and distribution of rims and wheels for motor vehicles at its Wyandotte, Michigan, plant, the only facility involved in this proceeding. During the year ending December 31, 1975, a period representative of its operations, the Company, in the course and conduct of its business operations, purchased, and caused to be trans- ported and delivered to its Wyandotte plant, steel and other goods and materials valued in excess of $50,000 which were transported and delivered to its Wyandotte plant directly from points located outside the State of Michigan. The Company admits, and I find, that it is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICES A. David R. Stafford's Suspension 2 At the time of his suspension for 2 days and 6 hours commencing on July 18, 1975, David R. Stafford was an afternoon shift (3 to 11 p.m.) oiler in the Company's mechanical department. For the 6 or 7 years preceding his suspension, Stafford was also a plant safety representative for Local Union No. 174, United Automobile, Aerospace and Agricultural Implement Workers of America, UAW (hereafter referred to as the Union), the recognized collective-bargaining representative of the Company's Wyandotte plant employees. In 1975, Stafford presented approximately a dozen safety complaints to the Company. In some instances Stafford's complaints were repetitious. The Company would attempt to resolve the situation. The same problem would occur again, followed closely by Stafford's complaints and a second attempt by the Company to satisfy his complaint. It also appears that Stafford's complaints annoyed his superiors. Approximately I month prior to Stafford's suspension, an admitted supervisor, Company Safety Inspector Joseph Angebrandt warned Stafford and another employee, Lazarowitz, saying: "You guys are either going to cooperate or we are going to get rid of you." During the few months just prior to Stafford's suspension his immedi- ate supervisor, Robert F. Allerie, repeatedly warned Stafford that he was "digging [himself] a hole and that [he] had better cool down on these safety complaints.... " However, Stafford persisted in his efforts as the Union's safety representative. Approximately I week before his suspension, Stafford complained to Supervisor Allerie and Safety Inspector Angebrandt that electric lines immersed in water posed a threat to employees working on the production line. Within 20 minutes after Stafford threat- ened to bring this dangerous situation to the attention of 2 Except as specifically discussed below , the facts regarding Stafford's suspension are undisputed. 3 From this point until Stafford's suspension, his testimony and that of Allerie is in substantial conflict . However, I have concluded that Stafford is the more reliable witness. Of the two, Stafford appeared to be giving a full OSHA, Angebrandt and Allerie complied with his request to shut the production line down. On the afternoon of July 28, Safety Inspector Ange- brandt noticed that oil leaking from a machine had filled a nearby 55 gallon drum and was now overflowing onto the floor of the plant. He located Allerie and apprised him of this circumstance. Stafford appeared on the scene , Allerie instructed him to move the drum and put another empty one in its place. Stafford refused the assignment saying that this was not his department, that he could not move the barrel because of an infirmity in his back, and that he might slip in the oil. Allerie instructed Stafford to obtain a pump and pump the oil back into the machine . Stafford pointed out that he couldn't reach the machine with a pump because there was a large quantity of tire rims piled around the machine. Allerie agreed to have the rims removed. At this, Stafford agreed to pump the oil back into the machine.3 Stafford then went to the Union's plant office to discuss the assignment with his chief steward. Allerie soon entered the office and asked Stafford if he intended to get on the job. When Stafford asked if the rims had been removed Allerie replied, "No, but I am getting them moved." Stafford replied, "Well, when you get the rims moved I'd gladly do it." Allerie insisted that Stafford take a pump to the site of the oil leak and prepare to pump the overflowed oil into the machine. Stafford left the office to obtain the pump. As he was preceding to the work area Stafford noticed that it was 5:30 p.m. He then went back to the union office with a Coke to sit down and observe his normal rest break . Following his rest break, Stafford left the union office and came upon Allerie. Allerie handed Stafford a pass and said , "You are suspended." The pass stated that the reason for issuance was a refusal of assigned work. When Stafford noticed that the pass indicated that the suspension occurred at 5:30 p.m., he protested that Allerie could not suspend him during his rest period. Allerie changed the time to read 5:40. When Stafford requested a union steward , Allerie said, "Get him, it don't matter. You're going home anyway." Stafford sought out his steward , Harold Mink. In the discussion which ensued between Steward Mink, Mr. Allerie, and Chief Steward Stevens, in Stafford's presence, Allerie told Mink that the reason for Stafford's suspension was his refusal to pump the oil. Following Stafford's suspension, Allerie telephoned his general foreman, Moscynski to report Stafford's suspen- sion. Employee Ben Citchen credibly testified that in making his report, Allerie declared : "I have no alternative but to give Dave Stafford time off. I want to let him know that OSHA don't run the place , we do." At the end of the afternoon shift on July 28, Industrial Relations Manager Wukovits, after consultation with Supervisor Allerie and Safety Inspector Angebrandt, and without affording Stafford opportunity to offer testimony, extended Staf- ford's suspension for 2 days. Wukovits testified that he and forthright account of the incident . In contrast, Allene appeared reluctant to testify about his knowledge of Stafford's activity as the Union's safety representative . Moreover, Stafford's version is in substantial part corroborated by the change of time from 5:30 p .m. to 5.40 p.m., as shown on the pass issued to him by Allene on July 28. FIRESTONE STEEL PRODUCTS COMPANY extended Stafford's suspension to a total of 2 days and 6 hours because of. "His refusal to work, period...." B. Analysis and Concluding Findings Regarding Stafford's Suspension The Company concedes in its brief that Stafford's activities as a union safety representative was protected and concerted. It follows, therefore, that if the Company suspended Stafford because of those activities such suspension was unlawful . See Wray Electric Contracting, Inc., 210 NLRB 757, 762 (1974); C & I Air Conditioning, Inc., McKeon Construction, 193 NLRB 911, 912 (1971). However, the Company contends that the evidence here is insufficient to support the contention that the Company suspended Stafford because of his activities as a union safety representative. Instead, the Company insists that the record shows that it punished Stafford for refusing a work assignment. For the reasons stated below , I find a preponderance of the evidence supports the complaint allegation that the Company suspended Stafford on July 28, 1975, because of his activities as a union safety representative. The record leaves little doubt of the Company's growing hostility towards Stafford's conscientious activities as the union's safety representative . On several occasions during the months prior to Stafford's suspension, Supervisor Allerie warned Stafford that his continued pursuit of safety complaints was jeopardizing his job. Approximately a month before the suspension another supervisor , Company Safety Inspector Angebrandt, warned Stafford that his conscientious pursuit of safety problems might lead to his discharge. Undaunted by the Company's warnings, Staf- ford continued to pursue his job as union safety representa- tive. A week prior to his suspension, he warned the Company of an electrical hazard and threatened to report the problem to OSHA . At about the same time, Allerie, according to his testimony, heard a rumor that Stafford had in fact complained against the Company to OSHA. Against this background, Allerie's report to General Foreman Moscynski following Stafford's suspension on July 28 demonstrates that the Company's hostility had gone beyond mere threats. Confronted on July 28 with yet another safety complaint from Stafford, the Company reacted with a real show of strength, a suspension. For as Allerie explained, the Company wanted to show Stafford that neither he nor OSHA would interfere with the plant's operations. In view of Industrial Relations Manager Wukovits' admission that he consulted with Allerie prior to extending Stafford's suspension, I find that the hostility expressed in Allerie's report to Moscynski was shared by Wukovits. I also find that Wukovits was well aware of Stafford's well known activities as the union safety representative. Thus, even assuming that the reason stated on the suspension notice to Stafford on July 28 were borne out by the evidence, Allerie's words reveal it as being a pretext. I fmd that the overriding and only real motive for the suspension 4 That counsel was laughing and smiling when he made the quoted remarks did not cure the coercive effect likely to flow from his words. Nor was the unfair labor practice remedied by a second company attorney's 1043 was Stafford's continued conscientious pursuit of safety problems at the Company plant. However, I fmd that the reason advanced by the Company does not withstand analysis. The suspension notice recites that Stafford refused to perform a work assignment. However, at the time Allerie handed him the suspension notice Stafford had agreed to perform the assigned task and had just completed his 10-minute rest period. Thus, the stated reason for Stafford's suspension is not borne out by the facts. In sum, I fmd that the Company suspended Stafford because of his vigorous pursuit of his role as a union safety representative, and thereby violated Section 8(a)(1) of the Act. C. Additional Interference, Restraint, and Coercion The General Counsel amended the complaint to allege that the Company further violated Section 8(a)(1) of the Act by obstructing and interfering with the hearing of the complaint herein. The Company denied this additional allegation. There are two incidents which sustain the amendment. The first occurred 1 or 2 days before employee Ben Citchen was scheduled to appear as a witness in this proceeding. I fmd from Citchen's testimony that a company attorney approached him at the plant and asked: "You're going downtown tomorrow?" When Citchen said "yes, I am going," the attorney replied, "Well, if I was you I would just keep my nose out of it .114 The second incident is depicted in David Stafford's undisputed testimony. On May 12, the same company attorney asked Stafford "to drop the case." A third incident is set forth in employee Billy L. Perry's uncontradicted testimony. I find that shortly before he was scheduled to appear as a witness in this proceeding a company attorney questioned him. However, the questioning related only to Stafford's July 28 suspension. Present at this questioning were Allerie, Angebrandt, and Union Steward Stevens. Before question- ing Perry, counsel assured him that he was free to leave and could refuse to answer counsel's questions. I find, in agreement with the General Counsel, that in the first two incidents recited above, the Company by its attorney's conduct violated Section 8(a)(1) of the Act. For, in these instances the attorney, who was clearly a company spokesman, attempted to interfere with the vindication of employee rights under Section 7 of the Act. See Grand- Central Chrysler, Inc., 155 NLRB 185, 188 (1965); Stemun Manufacturing Company, Inc., 153 NLRB 1278, 1283 (1965). However, I fmd that the atmosphere surrounding the Company's questioning of employee Perry was not coercive. Accordingly, I fmd that the Company did not violate Section 8(aXl) of the Act in that incident. CONCLUSIONS OF LAW 1. The Respondent, Firestone Steel Products Company, a Division of Firestone Tire and Rubber Company, is advice to Citchen that he must comply with the Board's subpena . For there was no concomitant retraction of the earlier remarks indicating company hostility towards Citchen's attendance at the hearing 1044 DECISIONS OF NATIONAL LABOR RELATIONS BOARD engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. By suspending employee David R. Stafford because of his complaints concerning safety at the Company's plant, and by attempting to obstruct and interfere with the Board's processes, Respondent Firestone Steel Products Company, a Division of Firestone Tire and Rubber Company, interfered with, restrained, and coerced its employees in the exercise of rights guaranteed to them by Section 7 of the Act, thereby engaging in unfair labor practices within the meaning of Section 8(axl) of the Act. 3. The aforesaid unfair labor practices effect commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondent engaged in unfair labor practices by suspending David R. Stafford because he engaged in protected, concerted activity, and by attempt- ing to interfere with and obstruct the Board's processes, I shall recommend that it be ordered to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act. I shall also recommend that Respondent be ordered to rescind the suspension inflicted upon employee David R. Stafford and delete from his personnel file any reference thereto. I shall further recommend that Respondent make David R. Stafford whole for any loss of pay suffered as a result of his unlawful suspension, with backpay to be computed as prescribed in F. W. Woolworth Company, 90 NLRB 289 (1950), and with interest at 6 percent per annum as provided in Isis Plumbing & Heating Co., 138 NLRB 716 (1962). Upon the foregoing findings of fact, conclusions of law, and the entire record and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: 5 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. ORDERS The Respondent, Firestone Steel Products Company, a Division of Firestone Tire and Rubber Company, Wyan- dotte, Michigan, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Suspending employees because they engage in concerted activity. (b) Attempting to obstruct and interfere with the Board's processes. (c) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of the rights guaranteed to them in Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act: (a) Rescind the suspension inflicted upon David R. Stafford on July 28, 1975, and delete from his personnel file any reference thereto. (b) Make David R. Stafford whole for any loss of pay he may have suffered as a result of his unlawful suspension, in the manner set forth in the section of this Decision entitled "The Remedy." (c) Post in conspicuous places, at its plant in Wyandotte, Michigan, copies of the attached notice marked "Appen- dix."6 Copies of said notice, on forms provided by the Regional Director for Region 7, after being duly signed by the Company's representative, shall be posted by the Company immediately upon receipt thereof, and main- tained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Company to ensure that said 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. 8 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."