North Vernon Forge, Inc.

708 DECISIONS OF NATIONAL LABOR RELATIONS BOARD North Vernon Forge, Inc. and Robert Roberts. Case 25-CA-16370 25 February 1986 DECISION AND ORDER By CHAIRMAN DOTSON AND MEMBERS JOHANSEN AND STEPHENS On 13 November 1985 Administrative Law Judge Steven M. Charno issued the attached deci- sion. The Respondent filed exceptions and a sup- porting brief, and the General Counsel filed a brief in support of the judge's decision. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings, I and conclusions2 and to adopt the recommended Order. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, North Vernon Forge, Inc., North Vernon, Indiana, its of- ficers, agents, successors, and assigns, shall take the action set forth in the Order. i The Respondent has excepted to some of the judge's credibility find- ings The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd 188 F.2d 362 (3d Cir. 1951) We have carefully examined the record and fmd no basis for reversing the findings. We note the inadvertent omission of a footnote number to correspond with the substantive contents of fn . 5 in the judge's decision. It is clear from the judge's discussion that fn. 5 should read "These findings are based on Waldon's uncontroverted testimony " 2 In his Conclusions of Law, the judge found that the Respondent vio- lated Sec. 8(a)(1) of the Act "by informing its employees that Robert Roberts was discharged because he engaged in protected concerted ac- tivities " In adopting that finding of a violation , as separately alleged in the complaint, we note that the judge's conclusion is supported by a statement made by Supervisor Glen Waldon to Roberts and Union Stew- ard Woodrow Sandlin on 6 April 1984 during Roberts' discharge confer- ence. Waldon, in providing Roberts with the reasons for his termination, cited Roberts' complaints about his job assignments, including complaints to the Union Robert E. Hayes, Esq., for the General Counsel. Steven V Shoup, Esq. (Peterson, Haramy, Cline & Shoup), of Indianapolis, Indiana, for the Respondent. DECISION STEVEN M. CHARNO, Administrative Law Judge. In response to a timely filed charge, a complaint was issued on 26 March 1985 alleging that North Vernon Forge, Inc. (Respondent), violated Section 8(a)(1) and (3) of the National Labor Relations Act, by discharging Robert Roberts for engaging in protected concerted activity. Respondent's amended answer denied the commission of any unfair labor practice. A hearing was held before me in Seymour, Indiana, on 30 April 1985.1 Briefs were thereafter filed by the Gen- eral Counsel and Respondent under extended due date of 14 June 1985. FINDINGS OF FACT I. JURISDICTION Respondent is an Indiana corporation which manufac- tures steel forging at a facility in North Vernon, Indiana. During the 12-month period ending 31 March 1984, Re- spondent, in the course and conduct of its business oper- ations within Indiana, sold and shipped products valued in excess of $50,000 to points outside the State and pur- chased and received goods valued in excess of $50,000 from points outside the State. It is admitted, and I find, that Respondent is an employer engaged in commerce within the meaning of the Act. Metal Polishers, Buffers, Platers and Allied Workers International Union, AFL-CIO, Local No. 15 (Union) is admitted to be, and I fmd is, a labor organization within the meaning of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICES A. Background Respondent's manufacturing process involves several stages which are divided among five plants numbered 1, 2, 3A, 3B, and 5. The various job functions required by the process of forging steel are remunerated at different levels. At Plant 3-A, forgings are pounded into shape by drop hammers which are manned by crews of three. The hammer operator is the most skilled member of a crew and is responsible for the other members, the heater and trim press operators. Production jobs performed by a hammer crew pay an incentive wage based on the number of pieces produced, which usually results in higher pay than other jobs required of the crew, such as stacking, which pay a straight hourly wage. Respondent and the Union were parties to a collec- tive-bargaining agreement which was in effect from 18 June 1982 to 19 June 1985. That agreement defined job classifications, set rates and types of pay, and established a seniority system. With reference to the status of new employees, the agreement stated: New employees shall be considered probationary employees until they have completed ninety (90) calendar days of continuous service, after which time their seniority shall revert back to the date and hour of their employment. During this probationary period, such employees may be laid off, transferred or dismissed at the sole discretion of the Company. i The portion of the motion seeking to correct p. 256, L. 21 is denied since that line does not contain the work the General Counsel proposes to correct. App A "Transcript Corrections" omitted from publication. 278 NLRB No. 106 NORTH VERNON FORGE Article VIII, section 6, of the agreement contained a provision which allowed an employee to "bump" into a job being performed by a more junior employee In the event a piece of equipment is shut down for a period of five (5) days and there is no job open in the affected employee's classification and shift, such employee shall be entitled to exercise their seniority on their shift and in their classification only on the sixth (6th) work day to bump a junior employee re- gardless of whether or not the junior employee is working on a three throusand (3000#) pound or four thousand (4000#) pound hammer This provision and related portions of the agreement are ambiguous in that they do not clearly indicate whether they apply to probationary employees At all times material herein , Robert Roberts was a member of the Union and of the bargaining unit repre- sented by it pursuant to the collective-bargaining agree- ment B The Alleged Discrimination Roberts was first hired by Respondent in November 1983 as a part-time employee and assigned to set up shelving in Plant 5 On 8 December 1983 he was con- verted to full-time status and assigned to Plant 3-A as a lift truck operator. On 24 January 1984,2 Roberts was laid off as part of a general reduction in force On 13 February Paul Belding, Respondent's personnel manager, rehired Roberts to work as a cold inspector in Plant 5 At that time, Roberts asked whether his prior period of employment would be credited toward the completion of the required 90-day probationary period. Belding replied that it would not S Thus, on the date of his rehire, Roberts was aware that he would be a proba- tionary employee for the next 90 days.4 On 5 March Roberts and two probationary employees were transferred to Plant 3-A as trainees on the second shift under the supervision of Glen Waldon, production supervisor Because Waldon recalled seeing Roberts at Respondent's facility some months previously, he mistak- enly assumed that Roberts was a "senior" employee who had completed a probationary period. Based on this as- sumption, Waldon did not initially rotate Roberts' work assignments nor closely observe Roberts' performance as he usually did with probationary employees. 5 2 All dates hereinafter are 1984 unless otherwise specified I credit Belding's testimony on this matter Roberts' testimony that Belding said he would think the matter over is unlikely in light of the language of the collective-bargaining agreement which explicitly requires continuity of service Furthermore, Roberts' memory concerning this period was exceptionally poor as demonstrated by his testimony regard- ing his work assignments , the identity of coworkers, and other work-re- lated events, much of which was contradicted by documentary evidence and other testimony which I credit The General Counsel's contention on brief that Roberts maintained a belief for an extended period that he was being asked to work as a proba- tionary employee past the point required by the collective-bargaining agreement is without any record support Indeed , Roberts himself testi- fied that, about a week after his reemployment, Union Steward Richard Lucas informed him that his prior employment by Respondent would not be credited toward his probationary period a These findings are based on Waldon's uncontroverted testimony 709 Waldon initially assigned Roberts to work as a trim press operator on an incentive pay job. On 12 March Roberts' work assignment changed to stacking Because Roberts knew that his wages would decrease without in- centive pay, he spoke with Waldon and Union Steward Woodrow Sandlin about bumping into an incentive pay job which was assigned to Robert Stout, a probationary employee junior to Roberts In seeking to bump into Stout's assignment, Roberts mistakenly relied on article VIII, section 6, of the collective-bargaining agreement.6 Sandlin, who erroneously believed that Roberts was a "senior" employee, presented Roberts' requests to Waldon who arranged for Roberts to take over Stout's assignment, effective the following Monday - On 19 March Roberts reported to work as a trim press operator on a crew with Hammer Operator William Vin- cent and Heater Operator David Barker.' During the week that followed, Waldon learned for the first time that Roberts had not completed a probationary period and became irritated with Roberts for trying to assert rights which he did not have Waldon felt that a proba- tionary employee should do what his employer tells him without questioning and viewed Roberts as failing to live up to this obligation. Following Roberts' "complaints," Waldon informed Roberts that, until the latter completed his probationary period, he could be assigned to any job and did not have any bumping rights under the collec- tive-bargaining agreement 8 Roberts thereafter discussed the matter with Sandlin who agreed with Waldon's inter- pretation of the contract Beginning Monday 26 March, Roberts was assigned to a crew headed by David Johnson for 2 days During the remainder of the week, Roberts was the trim press oper- ator on a crew composed of Hammer Operator Daniel Brauer9 and Heater Operator Tony Cutsinger 10 On Monday, 2 April, Roberts was assigned to work as a trim press operator . i r On the following Wednesday, 4 6 Although I credit Roberts' testimony concerning his interpretation of the ambiguous contract language, his testimony that Sandlin later enter- tained the possibility of filing a grievance over Roberts' bumping rights cannot be accepted Sandlin testified credibly that he agreed with man- agement's interpretation of the bumping provision and that he had tried to enforce Roberts' bumping rights only because he thought Roberts was a "senior" employee r Barker testified that Roberts had failed to clean up while working with the crew and, as a result, Waldon had heatedly reprimanded Vin- cent who had replied that Roberts was responsible Neither Vincent nor Waldon corroborated Barker, and it is undisputed that Waldon , who was characterized by Barker as a stern task master, never spoke with Roberts concerning the matter For these reasons and because Barker expressed antipathy toward Roberts while testifying, I do not credit the testimony concerning Roberts' alleged failure to clean up 6 These findings are based on Waldon's testimony and affidavit 9 Brauer was incorrectly identified in the transcript as "Bower " 'a Walden testified that he assigned Roberts as a heater operator on 30 March but replaced him with Cutsmger after a short period in response to Brauer's complaints While the job tickets for that date neither confirm nor rebut such an assignment, Roberts denied acting as a heater operator Roberts' testimony to this effect was corroborated by Brauer and Cut- singer, and Brauer denied that he had ever complained about Roberts For these reasons, and based on my observation of the demeanor of the various witnesses while testifying , I do not credit Waldon's testimony that Roberts unsuccessfully worked as a heater operator on 30 March i i Waldon's uncorroborated testimony that Roberts called on 2 and 3 April and said he would be unable to work, yet showed up in time for work, was denied by Roberts I do not credit Waldon on this point 710 DECISIONS OF NATIONAL LABOR RELATIONS BOARD April, Waldon met with Belding and Respondent 's plant supervisor, Jordan, and discussed his dissatisfaction with Roberts Belding and Jordan told Waldon that the deci- sion of whether to fire Roberts was entirely up to him 12 About 2 30 p in that day, Roberts called and stated that he would be late for work He reported in about 4 p.m and gave Waldon a doctor 's slip which indicated that Roberts should be excused from work that day and the following day for health reasons. i a Roberts asked Waldon if an absence would affect his job status, and Waldon replied that Respondent would not fire Roberts for being sick Roberts remained away from work on Thursday 14 On the evening of Friday, 6 April, Waldon decided to discharge Roberts At approximately 7.30 p.m, Waldon called Belding at the latter's home, told him of the deci- sion, and asked Belding to inform Roberts of the dis- charge on the following Monday The two agreed that Waldon would discuss the reasons for the discharge with Belding before the beginning of the second shift on Monday 15 When Roberts reported on 6 April, he was assigned to work as a trim press operator Roberts and the two other members of the crew spent 4 -1/2 hours setting up the job.16 At approximately 8 p in, Roberts' crew began to produce forgings Shortly thereafter , Roberts noticed that the ram on his press was hitting too hard Produc- tion was halted, and Waldon and, the die repairman, Wil- liam Hardy, were called to check the equipment . Waldon adjusted the trim press by tightening the bolts on the ram with a large wrench, and the press began to produce good forgings About half an hour later, Waldon and Hardy were called back to the press which was again malfunctioning They noted that the press was no longer properly adjusted and that the bolts on the ram were 12 Weldon testified inconsistently as to the date or dates on which such a meeting took place Belding corroborated the occurrence of a single meeting which he initially testified took place on 30 March and later, when recalled by Respondent, on 4 April Since such a change of testimony would tend to be thought to reflect adversely upon Belding's overall credibility and since the date of such a meeting is of little signifi- cance in that it is not dispositive of any issue in this case , I infer that Belding's testimony that the meeting took place on 4 April represented his certain recollection reached after an opportunity to reflect on the question In addition, Waldon's undisputed comments to Roberts later on 4 April regarding Respondent's policy of not firing an employee for being ill make the most sense in light of a meeting earlier that day in which Weldon had discussed firing Roberts for other reasons 1s Waldon testified that he smelled alcohol on Roberts ' breath on this occasion and reported the matter to Belding Belding did not corroborate Waldon's testimony, and Roberts denied that he had been drinking on 4 April The uncontested fact that Waldon, an admittedly stern task master, who was already thinking of discharging Roberts, did not mention the matter directly to Roberts on 4 April is unexplained and inexplicable I do not credit Waldon on this point 14 Waldon's testimony that Roberts said he would report to work on Thursday is not credited Roberts denied making such a statement and Waldon admitted that the doctor's note specified 2 days of leave 1s Given the foregoing findings which are based on the mutually cor- roborative testimony of Belding and Weldon , I do not credit Waldon's later inconsistent testimony that he decided to fire Roberts at 1145 p in on 6 April 16 Roberts' testified that the job had been set up by a first-shift crew who had experienced trouble with the press The work records for 6 April establish that the first-shift crew had manufactured a different type of forging and that Roberts was paid for 4-1/2 hours of setup time I do not credit Roberts' testimony again loose 17 Once the press had been correctly adjust- ed it would have been impossible for the bolts to work loose without human intervention 18 At approximately 11 p m. that day Waldon sent Sand- lin to bring Roberts into the supervisor's office. When Roberts arrived, Waldon, in the presence of Sandlin, in- formed Roberts that he was discharged . 19 When Roberts pressed him for reasons, Waldon replied that there were several When pressed further by Roberts, Waldon cited Roberts' "complaints" about his job assignments, includ- ing complaints to the Union.80 The following Monday Roberts met with Belding, who stated that Roberts had been discharged for being an unsatisfactory probationary employee. 21 C Discussion The collective-bargaining agreement clearly establishes that Roberts, as a probationary employee, could have been discharged for any lawful reason or for no reason at all Roberts could not, however, be terminated for en- gaging in concerted activity protected by the Act Thus, the outcome of this case turns on two questions- did Roberts engage in protected concerted activity and, if so, was that activity the reason for his discharge? The Board has consistently held that attempts by an individual to enforce the provisions of an existing collec- tive-bargaining agreement are protected concerted activi- ty under the Act, as long as the employee's interpreta- tion of the agreement has a reasonable basis E.g., Regen- cy Electronics, 276 NLRB 4 (1985), Interboro Contractors, 17 Roberts' testimony that he could not adjust the press because he did not have a wrench is not credited Cutsinger , a friend of Roberts and a witness for the General Counsel, testified credibly that it is the trim press operator's responsibility to adjust the press and that the wrench necessary for this purpose is kept on or close by the press 18 I credit the testimony of Waldon and Hardy to this effect 19 Weldon testified that he observed during the interview that Roberts was not wearing safety shoes and commented on the fact Waldon further testified that this safety rule violation was one of his reasons for discharg- ing Roberts Such an observation during the exit interview could hardly have contributed to Waldon's decision to discharge Roberts since that de- cision was admittedly made at least 3-1/2 hours before the interview took place Neither Roberts nor Sandlin corroborated Waldon's testimony concerning the comment and Roberts testified that he was wearing shoes with metal toes on 6 April For the foregoing reasons, I do not credit Waldon's version of what occurred 40 This finding has several evidentiary bases Roberts and Sandlin both testified that Waldon mentioned Roberts' going to the Union I found Sandlm to be an exceptionally credible witness-indeed, one who showed no hesitation in testifying strongly in Respondent's favor on other mat- ters In addition, Waldon's 8 May 1984 affidavit contains the following admission which I find more probative than Waldon's professed uncer- tainty on the stand as to whether he had mentioned the Union during the exit interview When I told Roberts that one of the reasons for letting him go was because I had had trouble with the union coming to me and com- plaining about the jobs he had, I meant that Roberts had been com- plaining about the jobs that I had been assigning him to do and I didn't like him complaining about what jobs he was assigned to and I thought he should feel lucky that he even had a job ' 1 Testifying as an adverse witness on behalf of the General Counsel, Belding gave a number of reasons for Roberts' termination It is clear that Waldon had and exercised the authority to fire Roberts for reasons which Belding did not know at the time of the discharge Accordingly, I do not find Belding's later recitation of reasons for that discharge, which were presumably obtained from Waldon, to be probative on the question of Respondent's motivation NORTH VERNON FORGE 157 NLRB 1295 (1966), enfd 388 F 2d 495 (2d Cir 1967) Here, the ambiguous language of the collective- bargaining agreement made it reasonable for Roberts to believe that he had bumping rights His efforts to enforce those rights by complaining to the Union and his super- visor are therefore protected. Walden in his testimony and affidavit advanced a number of purported reasons why he fired Roberts. Sev- eral of these are simply not supported by the record Al- legations concerning Roberts' failure as a heater opera- tor, his erratic attendance, his slowness in performing nonincentive pay jobs, his drinking on 4 April, his viola- tion of safety rules, and complaints about him from fellow employees are almost exclusively supported by Waldon's uncorroborated testimony which I did not credit on these points Waldon's other purported reason for the discharge, the trim press incident on 6 April, clearly occurred after Waldon had admittedly decided to discharge Roberts and appears to be a post hoc rational- ization 22 The only reason which remains is Roberts' "complaint" to the Union and Waldon in a mistaken at- tempt to invoke the collective-bargaining agreement Ac- cordingly, I find that Waldon discharged Roberts for en- gaging in activity protected by the Act and that Roberts' termination therefore violated the Act CONCLUSIONS OF LAW 1 Respondent 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 mean- ing of Section 2(5) of the Act 3 By informing its employees that Robert Roberts was discharged because he engaged in protected concerted activities, Respondent engaged in an unfair labor practice in violation of Section 8(a)(1) of the Act 4 By discharging Robert Roberts because he engaged in protected concerted activities, Respondent engaged in an unfair labor practice in violation of Section 8(a)(1) and (3) of the Act 5 The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act REMEDY Because Respondent engaged in unfair labor practices, it shall be ordered to cease and desist therefrom and to take certain affirmative action necessary to effectuate the purposes of the Act Such affirmative action shall in- clude an offer to Roberts of immediate and full reinstate- ment to his former job, discharging any replacement if necessary or, if that job no longer exists, to a substantial- ly equivalent job, without prejudice to his seniority or other rights or privileges previously enjoyed Roberts shall be made whole for any loss that he may have suf- fered as a result of Respondent's discrimination against 22 In addition, the record offers no proof that Roberts was the individ- ual who misadjusted the press Even if the record did establish that Rob- erts had tampered with the press , Respondent presented no evidence that Roberts would have been fired for such an act, absent protected concert- ed activity See Wright Line, 251 NLRB 1083 (1980), enfd 662 F 2d 899 (1st Cir 1981), cert denied 455 U S 989 (1982) 711 him Backpay will be calculated in accordance with the formula set forth in F W Woolworth Co, 90 NLRB 289 (1950), to which interest shall be added in the manner provided in Florida Steel Corp, 231 NLRB 651 (1977).23 On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed24 ORDER The Respondent, North Vernon Forge, Inc. North Vernon, Indiana, its officers, agents, successors, and as- signs, shall 1 Cease and desist from (a) Informing its employees that an employee was dis- charged because he engaged in union or other protected concerted activities (b) Discharging or otherwise discriminating against its employees because they engage in union or other con- certed protected activities (c) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act 2 Take the following affirmative action necessary to effectuate the policies of the Act (a) Offer Robert Roberts immediate and full reinstate- ment to his former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to his seniority or any other rights and privileges (b) Make Robert Roberts whole for any loss of earn- ings he may have suffered as a result of Respondent's discrimination against him in the manner set forth in the remedy section of this decision (c) Preserve and, on request, make available to the Board or its agents for examination and copying, all pay- roll records, social security payment records, timecards, personnel records and reports, and all other records nec- essary to analyze the amount of backpay due under the terms of this Order (d) Remove from its files any reference to the dis- charge of Robert Roberts on 6 April 1984, and notify him in writing that this has been done and that evidence of that unlawful discharge will not be used as a basis for future personnel action against him (e) Post at its North Vernon, Indiana facility, copies of the attached notice marked "Appendix "25 Copies of the notice, on forms provided by the Regional Director for Region 25, after being signed by the Respondent's au- thorized representative, shall be posted by the Respond- ent immediately upon receipt and maintained for 60 con- secutive days in conspicuous places including all places where notices to employees are customarily posted. Rea- 88 See generally Isis Plumbing Co, 138 NLRB 716 (1962) s4 If no exceptions are filed as provided by Sec 102 46 of the Board's Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec 102 48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses 25 If 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 Nation- al 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 " 712 DECISIONS OF NATIONAL LABOR RELATIONS BOARD sonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (f) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT inform you that an employee was dis- charged because he engaged in union or other protected concerted activities. WE WILL NOT discharge or otherwise discriminate against you because you engage in union or other pro- tected concerted activities. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the free exercise of your rights under Section 7 of the National Labor Relations Act. WE WILL immediately offer to reinstate Robert Rob- erts to his former job or, if that job no longer exists, to a substantially equivalent job, and make him whole, with interest, for any loss of pay resulting from his unlawful discharge. WE WILL remove from our files any reference to the unlawful discharge of Robert Roberts on 6 April 1984, and WE WILL notify him that this has been done and that evidence of this unlawful conduct will not be used for future personnel action against him. NORTH VERNON FORGE, INC.