Specialty Steel Treating, Inc.

670 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Specialty Steel Treating, Inc. and Patrick Michaels and International Union, United Automobile, Aerospace & Agricultural Implement Workers of America (UAW). Cases 7-CA-23780(1), 7- CA-23780(4), 7-CA-23858, 7-CA-23907, 7- CA-24102, 7-CA-24116, 7-CA-24263, and 7- CA-24279 30 April 1986 DECISION AND ORDER BY MEMBERS JOHANSEN, BABSON, AND STEPHENS On 16 December 1985 Administrative Law Judge Burton S. Kolko issued the attached deci- sion . The General Counsel filed exceptions and a supporting brief, and the Respondent filed an an- swering brief. 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,' and conclusions as modified2 and set forth in full below. The judge found, and we agree, that the written reprimands the Respondent gave employee William Urban for tardiness and insubordination were unre- lated to his union activity and therefore did not violate the Act. We disagree with the judge, how- ever, that Urban's third written reprimand (for un- excused absence) was also lawful. We also con- clude, contrary to the judge, that the Respondent violated the Act by refusing to bargain with the Union over discretionary wage increases and bo- nuses. 1. The judge found that on 11 December 19843 employee William Urban informed Plant Manager Gary Parker he would not be at work the next day. According to Parker's credited testimony, Parker did not deny Urban's request. On 12 De- cember Urban testified at a Board hearing concern- ing the Respondent's objections to a Board election held 1 October. The hearing concluded at 11:30 a.m. Parker, who attended the hearing, did not ask Urban to return to work that day. Nevertheless, on 13 December Parker issued a written reprimand to Urban for being absent the previous afternoon.4 ' No exceptions were filed to the judge's finding that the Respondent violated Sec 8(a)(1) of the Act by discriminatorily enforcing its no-solici- tation policy 2 We disavow the judge's speculation, at fn 9 of his decision, that em- ployee William Urban's "deteriorating relationship with Respondent prompted the filing of the charges and then the complaint " 2 All dates are in 1984 unless otherwise indicated 4 The judge incorrectly stated that Parker issued the reprimand on 12 December The judge reasoned that because Urban failed to tell Parker he did not intend to return to work after the hearing concluded, Parker reprimanded him for legitimate business reasons. The record shows, however, that Urban, having taken the entire day off, was not scheduled to work, and Parker did not tell him at the hearing to return to work in the afternoon. In these circumstances, con- trary to the judge's finding that the reprimand was for legitimate business concern, we conclude that the Respondent issued the 13 December reprimand to retaliate against Urban for testifying at a Board hearing and thereby violated Section 8(a)(4) and (1). 5 2. The General Counsel further contends that the Respondent's unilaterally implemented wage in- creases and bonuses were also unlawful. Although the election was held 1 October, the Union was not certified until 29 March 1985. On 5 December, while the objections were pending, the Respondent gave wage increases and bonuses to unit employees without consulting the Union. The Board has long held that an employer acts at its peril in making unilateral changes in terms and conditions of em- ployment while election objections are pending. Mike O'Connor Chevrolet, 209 NLRB 701, 703 (1974). Although the judge recognized the Re- spondent's obligation to bargain over postelection changes, he concluded that the Respondent had not changed working conditions but rather maintained the status quo by continuing its policy of confer- ring increases and bonuses in December as it had done in past years. The Respondent's president, Donald Cox, testi- fied, however, that the increases and bonuses were discretionary, and additional record evidence con- firms his testimony. An employer may not unilater- ally grant discretionary increases and bonuses under these circumstances. NLRB v. Katz, 369 U.S. 736, 746-747 (1962); Oneita Knitting Mills, 205 NLRB 500 fn. 1 (1973). Consequently, we con- clude that the Respondent's unilateral granting of wage increases and bonuses, without providing the Union notice and an opportunity to bargain, violat- ed Section 8(a)(5). Having found additional violations, we shall amend the Conclusions of Law, and issue a new Order and notice to employees. AMENDED CONCLUSIONS OF LAW Add the following as Conclusions of Law 4 and 5. 5 Although the General Counsel alleged an 8(aX4) violation , the judge inadvertently referred to Sec 8(a)(3) in his decision 279 NLRB No. 67 SPECIALTY STEEL TREATING "4. The Respondent violated Section 8(a)(4) and (1) of the Act by issuing a written reprimand to employee William Urban because he testified at a Board hearing. "5. The Respondent violated Section 8(a)(5) and (1) of the Act by, without providing the Union notice and an opportunity to bargain, granting wage increases and bonuses to unit employees." ORDER The National Labor Relations Board orders that the Respondent, Specialty Steel Treating, Inc., De- troit, Michigan, its officers, agents, successors., and assigns, shall 1. Cease and desist from (a) Discriminatorily enforcing a no-solicitation policy that prevents the distribution of union litera- ture. (b) Issuing written reprimands to employees for testifying at Board hearings. (c) Without giving the Union notice and an op- portunity to bargain, granting wages increases and bonuses to bargaining unit employees. (d) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action neces- sary to effectuate the policies of the Act. (a) Remove from its files any reference to the 13 December 1984 written warning issued to employ- ee William Urban, and notify him in writing that this has been done and that the warning will not be used against him in any way. (b) On request, bargain with the Union concern- ing wage increases and bonuses for employees in the following unit: All full time and regular part time production and maintenance employees employed by the Respondent at its facility located in Farming- ton Hills, Michigan, but excluding office cleri- cal employees, confidential employees, mana- gerial employees and guards and supervisors as defined in the Act. (c) Post at its plant in Detroit, Michigan, copies of the attached notice marked "Appendix."e Copies of the notice, on forms provided by the Re- gional Director for Region 7, after being signed by the Respondent's authorized representative, shall be posted by the Respondent immediately upon re- 6 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 " 671 ceipt and maintained for 60 consecutive days in conspicuous places including all places where no- tices to employees are customarily posted. Reason- able steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. WE WILL NOT discriminatorily enforce a no-so- licitation policy in order to prevent distribution of union literature. WE WILL NOT reprimand you for testifying at National Labor Relations Board hearings. WE WILL NOT, without giving the Union notice and an opportunity to bargain, grant you wage in- creases and bonuses. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of the rights guaranteed you by Section 7 of the Act. WE WILL notify employee William Urban that we have removed from our files any reference to his written reprimand and that the reprimand will not be used against him in any way. WE WILL, on request, bargain with the Union concerning wage increases and bonuses for em- ployees in the following unit: All full time and regular part time production and maintenance employees employed by us at our facility located in Farmington Hills, Michigan, but excluding office clerical em- ployees, confidential employees, managerial employees and guards and supervisors as de- fined in the Act. SPECIALTY STEEL TREATING, INC. Dwight R. Kirksey, Esq., for the General Counsel. Douglass A. Witters, Esq. (Clark, Hardy, Lewis, Pollard & Page, P. C), of Bermingham, Michigan, for the Re- spondent Herbert Zalopany, Esq., of Detriot, Michigan, for the Charging Party. 672 DECISIONS OF NATIONAL LABOR RELATIONS BOARD DECISION STATEMENT OF THE CASE BURTON S. KOLKO, Administrative Law Judge. The General Counsel's complaint' alleges that Specialty Steel Treating Inc. (Respondent) engaged in unfair labor prac- tices under the Act2 by implementing a discriminatory solicitation policy in violation of Section 8(a)(1), and by failing to bargain with International Union, United Auto- mobile, Aerospace & Agricultural Implement Workers of America (UAW) in violation of Section 8(a)(5). The complaint also alleges several violations of Section 8(a)(3) for the discriminatory treatment of Bill Urban, an employee and union organizer, through reprimands, low wage increases, and demotion.3 Respondent's answer denies the allegations as being untrue. I find for Re- spondent on all alleged violations except the implementa- tion of a discriminatory solicitation policy. On this issue I find a violation of Section 8(a)(1).4 1. ALLEGED UNFAIR LABOR PRACTICES A. The 8(a)(1) Violations 1. Solicitation policy UAW began its organizational effort at Specialty Steel on 15 August 1984.5 After meeting with the Union's agent, Herb Zalopany, Bill Urban distributed union liter- ature and authorization cards. On 20 August Urban de- livered a letter drafted by Zalopany to Gary Parker, Specialty Steel's plant manager The letter informed Parker of the organizational effort and the Union's pro- cedure of solicitation. On 21 August Parker approached Urban at work and told him that he would be dismissed unless he ceased dis- tributing cards and discussing the Union with other em- ployees. Later that day Parker gave Urban a letter ex- plaining the Company's solicitation policy The letter stated that if the Union conducted its activity on non- working time and in nonworking areas of the plant, no problems would occur The letter clarified nonworking time as being when either employee is on the clock or performing work tasks. Violations of this policy could result in discipline up through and/or including dis- charge The written work rules of the plant also contain a so- licitation policy. The rules, which are directed at all types of solicitation, limit solicitation to nonworking times Reprimands are received for the first two offenses, followed by suspension, with discharge occurring only after a fifth offense. ' The complaint was filed on 25 March 1985, based on charges that the Union filed between 27 August 1984 and I I March 1985 The hearing was held before me on 15, 16, and 17 April 1985 in Detroit, Michigan 2 Labor Management Relations Act, 1947, as amended, 29 U S C § 151 et seq 9 Various other charges listed in the complaint were settled at the outset of the hearing 4 Respondent is an employer engaged in commerce within the meaning of Sec 2(2), (6), and (7) of the Act, and the Charging Party is a labor organization within the meaning of Sec 2(5) of the Act 5 All dates hereinafter are 1984 unless otherwise indicated When an employer implements a solicitation policy it must not impinge on employees' Section 7 rights to orga- nize. Employers cannot enforce a rule which prohibits distribution on nonworking time and/or in nonworking areas without creating an interference with the employ- ees' right to organize. United Aircraft, 139 NLRB 39 (1962). However, a policy banning solicitation on work- ing time, such as here, is valid because the term states with sufficient clarity that employees may solicit on their own time. Our Way Inc., 268 NLRB 394 (1983). On its face Specialty Steel's policy did not violate the Act, however, a deeper analysis shows that the discnmi- natory application of the rule did violate Section 8(a)(1) Parker singled out the Union in both the oral statement and the letter given to Urban. Although other types of solicitation occurred at the plant,6 no oral warning or letter was given to other employees. An employer may not discriminate in its enforcement of a solicitation policy. The discriminatory enforcement of a facially valid no-solicitation policy violates Section 8(a)(1). Mont- gomery Ward & Co., 269 NLRB 598 (1984). Because Spe- cialty Steel discriminatorily enforced its policy to prohib- it the Union from soliciting, it violated Section 8(a)(1). 2. Interrogation/threat On 22 August, shortly after the union activity began, Respondent's owner, Donald Cox, approached Urban, asking him what the problems were in the plant that mo- tivated him to organize for the Union. Urban explained some problems he had, and the conversation ended. Later that day Cox again approached Urban, telling him that things were going to get tough around the plant. Cox denied making this statement. I credit Cox on this point. Although both witnesses appeared credible, Cox was more straightforward in his testimony of the inci- dent. The General Counsel alleges that the statements of Cox violate Section (8)(a)(1). The Board has recently changed the precedent of PPG Industries, 251 NLRB 1146 (1980), which held that the questioning of union supporters implied discrimination in the form of a threat or coercive action. The new rule formulated in Rossmore House, 269 NLRB 1176 (1984), stated that employers' questioning of open and active union supporters about their sentiments, absent threats or promises of benefit, is not necessarily a violation of Section 8(a)(1). If under the circumstances of the case the interrogation reasonably tended to interfere with the employee's exercise of his rights, then a violation has occurred. Spartan Plastics, 269 NLRB 546 (1984). The alleged interrogation in this case was composed of one question by the owner, Cox, to Urban, the union or- ganizer . The statement was not a threat or promise of benefit; rather it was a question of concerned interest. In the overall context of the situation this one statement did not rise to the level of interference necessary to find a 8 Urban testified that, during the course of his employment, various types of solicitation occurred at the plant Cookies, candy, and other arti- cles were sold to employees , including Manager Parker Sales occurred during working as well as nonworking time The statement was not con- tested by Respondent and I therefore credit Urban on this point SPECIALTY STEEL TREATING violation of Section 8(a)(1). Because I credit Cox on the alleged threat, an 8(a)( 1) analysis is not necessary. B. The 8(a)(3) Violations 1. Reprimands Urban received his first reprimand on 23 August 1984. According to the warning slip, Urban was late 13 times during July and August. Urban testified that being late was a common occurrence for him because he was often called out at night Parker stated that, although Urban had been a few minutes late at times, he was never as late as he had become during the summer in question. David Andrejewski, another employee at the plant, re- ceived a reprimand similar to Urban's. Parker testified that late in July he gave Urban and Andrejewski verbal warnings about their tardiness. He told the employees they had 30 days to straighten up or they would be disci- plined Urban denies this conversation occurred. On 3 December a meeting was held between Parker, Urban, and Kelly Burgess, another maintence man at the plant. Parker informed Urban that Burgess would be given the title of maintenance supervisor. He told them the move was made because Burgess was highly quali- fied for the job, and because Urban's work had "slacked off " Urban then told Parker "bullshit." Parker testified that Urban began yelling at him, telling him he could run the business better than Parker. A reprimand was deliv- ered to Urban the following day, citing insubordination for the reason. Urban denies the statement was made; however, Parker gave this statement as the reason for Urban's reprimand A third reprimand was issued to Urban on 12 Decem- ber for an unexcused absence. A NLRB hearing on elec- tion objections was held on that date and Urban was called to testify at the hearing. Urban informed Parker the previous day at quitting time that he would not be in on 12 December. Parker shook his head and Urban left work. Urban attended the hearing the next day. Al- though the hearing ended at 11:30, Urban did not report back to work After having lunch Urban drove another employee home, then proceeded home with his wife. Urban testified that he would not have been able to take the employee and his wife home and arrive at work before quitting time. According to Urban's and Parker's testimony, Parker did not learn this information until Urban testified at the current hearing. No explanation was given to Parker earlier, and therefore he reprimand- ed Urban for his absence the afternoon of 12 December. To find violations of Section 8(a)(3) in this case, the General Counsel must establish a prima facie case of union animus as a motivating factor for the reprimands. Wright Line, 251 NLRB 1083 (1980). The evidence does not show anything more than a business judgment for Urban's three reprimands. The first reprimand given to Urban was for excessive tardiness. A verbal warning was given before the union activity began The written reprimand was a followup to the July verbal warning and a threat to straighten up. There is no disparate treatment between Urban and other employees The only other employee with an excessive tardiness record was Andrejewski, who also received a 673 reprimand There appears to be no animus motivating Parker to give this reprimand. The second reprimand given for insubordination is also absent a showing of animus. Parker gave Urban the rep- rimand for telling him he could run the business better than Parker. Although the statement may not appear of- fensive to the extent a reprimand was warranted, an em- ployer may take action for good reason, bad reason, or no reason at all so long as there is no showing of antiun- ion motivation. Boren Packing Co., 208 NLRB 280 (1974). Such is the case here. The final reprimand was given for Urban's failure to return to work after the NLRB hearing. Parker gave Urban the reprimand using the facts he had concerning the hearing. Urban never informed Parker of the circum- stances causing him not to return to work after the hear- ing. All Parker knew was that the hearing ended at 11:30 a.m and that Urban did not report to work that after- noon. There is no showing that Parker was motivated by more than a legitimate business concern. Absent a direct or circumstantial showing of animus motivating the rep- rimands, I find no violation of Section 8(a)(3).7 2. Smaller increase and bonus To continue a practice that was implemented when the Company began operating, Specialty Steel awarded its employees a wage increase and Christmas bonus on 5 December 1984. Wage increases were given twice a year, in May or June and December, while bonuses were given at Christmas time. On 5 December Urban received a 10-cent wage increase and a $200 bonus. According to Urban, this was the lowest increase and bonus he had re- ceived during his employment at Specialty Steel. Parker stated various reasons for Urban's lower wage increase First, Urban had received two increases for the year prior to 5 December, while the other employees only received one. Second, Urban was already the high- est paid nonmanagement personnel at the plant. Last, Urban's work had slacked off, and he did not deserve a higher raise 8 Urban claims his work was sufficient and that the smaller increases were due to his union activity Again there must be a showing of antiunion motiva- tion for there to be a violation of Section 8(a)(3). There is no showing of direct union animus or circumstantial evidence such as disparate treatment of Urban Respond- ent also offers a legitimate business justification for its ac- tions. Parker did not feel Urban should be rewarded for work that was not up to par, and felt Urban was already adequately compensated for his current work perform- ance. Because an employee may not use his union activi- ty to hide behind when his work is inadequate, see TRW, Inc. v. NLRB, 654 F.2d 307 (5th Cir. 1981), and because the General Counsel has not met her burden for a prima facie case, I therefore find no violations. I When there is a discrepancy between Parker and Urban about the events leading to the reprimands, I credit Parker Urban was shaky and a bit evasive on cross-examination when questioned about his conduct 8 I credit Parker's testimony concerning Urban's work performance Burgess also testified that many projects were left undone it appears from the evidence that when the controversy began, Urban did not have the good work attitude or performance level he had previously 674 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 3. Demotion On 3 December Parker informed Urban that Burgess would be the maintenance supervisor . Burgess was hired in October to work with Urban on the maintenance of the plant . Burgess had previously worked in a mainte- nance capacity at other plant in the area and had a sub- stantial amount of electrical experience . After working at the plant for a period of time , Burgess noticed various problems with the electrical equipment . Many repairs were left incomplete , creating safety hazards which Bur- gess had to correct. Parker testified that Burgess was placed in charge of maintenance because of his experience and the incom- plete work Urban was leaving around the plant. Urban contends that by placing Burgess as supervisor, Respond- ent demoted him. The evidence does not support this contention. Contrary to his perception that he was "head of maintenance," Urban was never given the title or re- sponsibility of maintenance supervisor, nor was he com- pensated as such. Although Urban felt he was head of maintenance because other workers helped him, manage- ment never acknowledged this contention. The record does not warrant a finding of discrimination in this in- stance.9 C. The 8(a)(5) Violations An election in the appropriate bargaining unit was held on 1 October . Respondent filed objections to the election and a hearing was held ; however, the Union was installed as the bargaining representative on 29 March 1985. On 5 December Specialty Steel distributed the usual December wage increases and Christmas bonuses. 9 The coincidence of Urban's problems with the management of Re- spondent and the timing of his union activity has not gone unnoticed Doubtless it was the timing of Urban's deteriorating relationship with Re- spondent that prompted the filing of the charges and then the complaint But given the findings that I have made above, I view the sequence of events that befell Urban not so motivated by antiunion animus to render Respondent's actions toward Urban and the Union violative of the Act This was a consistent practice throughout the current ownership of Specialty Steel. On 21 November Parker gave Urban a letter notifying him of the increases and a table showing where the in- creases would occur . Urban admits receiving some type of paper, but states he never saw the letter and table. (R. Exhs. 4 and 5.) 10 No notification was given to the union agent, Zalopany, or any other person from UAW. UAW contends that Specialty Steel failed to notify and bargain with it concerning the wage increases and Christmas bonuses. The election itself created the Em- ployer's obligation to bargain prior to making postelec- tion changes in conditions of employment. Injected Rubber Products, 258 NLRB 687 (1981). ii However, the key to the obligation is "changes ," because an employer may not change conditions of employment without bar- gaining, and in fact is required to maintain the status quo. See House of the Good Samaritan , 268 NLRB 236 (1983). But here Specialty Steel did exactly as it was legally re- quired to do by maintaining the policy of giving wage increases and Christmas bonuses that had been in effect throughout the current management's control . I find no violation of Section 8(a)(5). CONCLUSIONS OF LAW 1. The Respondent, Specialty Steel Treating, Inc., is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2 International Union , United Automobile, Aerospace & Agricultural Implement Workers of America (UAW) is a labor organization within the meaning of the Act. 3. Respondent violated Section 8(a)(1) of the Act by discirminatorily enforcing a no-solicitation policy that prevent the Union from distributing its literature. [Recommended Order omitted from publication.] i° I credit Parker on this discrepancy Urban was evasive when ques- tioned about the papers he received He could not remember where they were or what was contained in them, although, he did remember not re- ceiving R Exhs 4 and 5 11 This obligation remains even if the employer is contesting the elec- tion Medical Center at Princeton, 269 NLRB 948 (1984)