Rescue Systems Inc.

694 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Rescue Systems Incorporated and David Ice. Case 6-CA-19296 30 June 1987 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS JOHANSEN AND BABSON On 25 March 1987 Administrative Law Judge Irwin H. Socoloff issued the attached decision. The Respondent filed exceptions and a supporting brief, and the General Counsel filed an answering 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 and to adopt the recommended Order.1 ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, Rescue Sys- tems Incorporated, Shinnston, West Virginia, its of- ficers, agents, successors, and assigns, shall take the action set forth in the Order, except that the at- tached notice is substituted for that of the adminis- trative law judge.2 1 In accordance with our decision in New Horizons for the Retarded, 283 NLRB 1173 (1987), interest will be computed at the "short-term Fed- eral rate" for the underpayment of taxes as set out in the 1986 amend- ment to 26 U.S.C. § 6621. 2 We will issue a new notice to more fully conform to the judge's find- ings. 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 threaten employees with dis- charge because they engaged in protected concert- ed activities or inform employees that they were discharged because they engaged in such activities. WE WILL NOT discharge employees because they engaged in protected concerted activities. WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of the rights guaranteed them in Section 7 of the Act. WE WILL offer to David Ice and Gary Fluharty immediate and full reinstatement to their former positions or, if those positions no longer exist, to substantially equivalent positions, without prejudice to their seniority and other rights and privileges. WE WILL make them whole for any loss of earn- ings they may have suffered because of the dis- crimination against them, plus interest. WE WILL notify each of them that we have re- moved from our files any reference to his dis- charge and that the discharge will not be used against him in any way. RESCUE SYSTEMS INCORPORATED Kim Siegert, Esq., for the General Counsel. John C. Higginbotham, Esq., of Fairmont, West Virginia, for the Respondent. DECISION STATEMENT OF THE CASE IRWIN H. SOCOLOFF, Administrative Law Judge. On a charge filed on 2 July 1986 by David Ice, an individual, against Rescue Systems Incorporated (the Respondent), the General Counsel of the National Labor Relations Board, by the Regional Director for Region 6, issued a complaint dated 29 August 1986 alleging violations by Respondent of Section 8(a)(1) and Section 2(6) and (7) of the National Labor Relations Act. Respondent, by its answer, denied the commission of any unfair labor prac- tices. Pursuant to notice, trial was held before me in Fair- mont, West Virginia, on 16 December 1986, at which the General Counsel and the Respondent were represented by counsel and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to in- troduce evidence. Thereafter, the parties filed briefs that have been duly considered. On the entire record in this case, and from my obser- vation of the witnesses, / make the following FINDINGS OF FACT I. JURISDICTION Respondent, a West Virginia corporation, is engaged at its Shinnston, West Virginia facility in the manufac- ture and nonretail sale of fire and rescue vehicles and equipment. Annually, Respondent, in the course and con- duct of its business operations, sells and ships goods and materials valued in excess of $50,000 directly to points located outside the State of West Virginia. Annually, Re- spondent purchases and receives, at its West Virginia fa- cility, products, goods, and materials valued in excess of $50,000 directly from points located outside the State. I find that Respondent is an employer engaged m com- merce within the meaning of Section 2(2), (6), and (7) of the Act. 284 NLRB No. 80 RESCUE SYSTEMS 695 II. THE UNFAIR LABOR PRACTICES A. Background Respondent employs some 20 production workers in- cluding 6 leadmen, 1 for each of its 6 departments. As of June 1986, David Ice was the leadman in the welding de- partment where he worked along with three other em- ployees. At that time, Gary Fluharty was the leadman in the paint and body shop and he too worked with three other employees. The six departments function under the supervision of the chief executive officer, Daniel Mimics Sr.; the president, David Jones; and the production man- ager, Lawrence Hays.' The leadmen are, generally, the most senior employees in their respective departments. They are hourly paid and spend the vast majority of their time performing the same work done by the other departmental employees. They also take care of the timecards of the workers in their respective departments, distribute the work, and act as "go-between" for the departmental employees and Hays. The leadmen are paid an extra 25 cents per hour for performance of these additional duties.2 In the instant case, the General Counsel contends that, in late June 1986, Respondent violated Section 8(a)(1) of the Act by discharging leadmen David Ice and Gary Fluharty because they had engaged in concerted activi- ties, protected by Section 7 of the Act, namely, protest- ing the wage scale of the leadmen. Respondent asserts that Ice was discharged for violating a lawful company policy that prohibits an employee from disclosing the wages of a second employee to a third person. It further contends that Fluharty was not discharged but, rather, that he voluntarily quit. Also at issue is whether Re- spondent violated Section 8(a)(1) of the Act by threaten- ing employees with discharge for having engaged in pro- tected concerted activities and by informing Ice and Flu- harty that they were discharged because they had en- gaged in such activities. B. Facts3 In early June 1986, leadman Ice was approached by two of the employees in the welding department who re- quested pay increases. As Ice lacked authority to act on the matter, he told them that he would transmit their re- quests to Hays. When Ice approached Hays, the produc- tion manager stated that he did not know what the exist- ing pay rates were for those employees and he directed 1 It is undisputed that Mimucs Sr., Jones, and Hays are statutory super- visors. Also, the parties agree that Respondent's purchasing agent, Daniel Musics Jr., is its agent within the meaning of Sec. 2(13) of the Act. At trial, Respondent appeared to suggest that the leadmen were su- perVisors within the meaning of Sec. 2(11) of the Act. However, Re- spondent made no such contention in its brief and, in any event, the recdrd evidence would entirely fail to support such a claim. 3 The factfuuhngs contained herein are based on a composite of the documentary and testimonial evidence introduced at trial. The record is, for the most part, free of significant evidentiary conflict. What credibility issues there are have been resolved in favor of the versions of events of- fered by David Ice and Gary Fluharty, both of whom impressed me as entirely honest and forthright witnesses in possession of clear and certain recollections of events Production Manager Lawrence Hays testified in a manner that was less than crisp and clear and his recollection of facts seemed decidedly influenced by his perceptions of Respondent's interests in this case. Ice to go to the office secretary, Cathy Greza, and obtain the employees' rates of pay. Ice asked the secre- tary for that information and was supplied with a sheet of paper. As Ice was returning to Hays' office, he glanced at the paper and noticed that his own name was on it as well as that of Chuck Satterfield, the leadman in the plumbing department. Ice observed that Satterfield, Hays' nephew, was earning 25 or 30 cents per hour more than Ice and the other leadmen. Realizing that Greza had given him the wrong paysheet, Ice returned it and obtained the paysheet for the employees in his depart- ment. He took that information to Hays and Hays denied increases for the welding department employees who had requested it. Following his meeting with the production manager, Ice approached leadman Gary Fluharty and told him that Satterfield was receiving an hourly rate higher than the other leadmen. Fluharty and Ice then spoke with leadmen Chris Brookover and Gary Davis and informed them about the matter. The four leadmen decided to confront Hays and they appointed Fluharty as their spokesman. They went to Hays' office and requested a meeting. Hays said that he wanted all six leadmen present, and so leadmen Satterfield and Price were brought to the office. Fluharty expressed the discontent of the leadmen and asked Hays why Satterfield was making more money than the others. Hays stated that Satterfield had been given additional duties and responsi- bilities. During the course of the meeting, the production manager became loud and angry. Later in the day, Hays summoned the leadmen, individually, to appear in his office and the matter was further discussed. The leadmen reminded Hays that he had previously informed them that they were all being paid the same hourly rate. In the period prior to 18 June 1986, the subject of wages became a frequent matter of conversation among Respondent's lead and nonlead employees, particularly during lunch periods. In addition to the Satterfield situa- tion, the employees became upset when they learned that employee David Ott, Hays' brother-in-law, had been sin- gled out to receive a cost-of-living increase. During the week of 16 June, Minnics Sr., Jones, and Hays were out of town, attending a meeting, and Respondent's purchas- ing agent, Daniel Minnics Jr., was left in charge of the facility. On 18 June, Minnics Jr. called the employees to- gether for a meeting and complained that the workers were standing about on the production floor and not working. The subject of pay became the major topic of conversation, particularly the Satterfield and Ott matters. The meeting lasted for more than 2 hours. On 19 June, Minnics Sr., Jones, and Hays returned to the facility and another meeting with the employees was held. Hays told the employees that he was disappointed to learn that they had not been working while he, Min- nics Sr., and Jones were away. Fluharty asked Hays to specify which employees had not been doing their jobs. Hays said that his comments applied to all the employ- ees. Fluharty interrupted, stating that he and the other employees in his department had done their work. Min- nics Sr. then told Fluharty to "shut up" and allow Hays to continue to talk. Hays told Fluharty that if he did not 696 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD "want to listen to what's going on, get out." Fluharty re- sponded, stating, "Larry, you know that's up to you." Hays told Fluharty, "Get your stuff and get the hell out." After Fluharty left the room, Minnics Sr. stated that there was no money for pay increases and that if the employees wanted better jobs they should look for them on Route 19. Hays told the employees that "if he ever caught or found out who else was involved with Gary Fluharty on the pay scales, that they would be terminat- ed as well as Gary." After the meeting concluded, Fluharty approached Hays and stated that he had not meant to get anyone angry but, simply, had wanted to state that the men in his department had been doing their jobs. Hays told Flu- harty to go home and let everyone cool off. He told Flu- harty to call him on the next day. On 20 June, when Fluharty, as instructed, called Hays, the production manager told him that "they won't take you back. After a guy quits they won't take them back." Fluharty said that Hays knew that he, Fluharty, had not quit but, rather, had been fired. Hays responded, stating, "Well, fired or quit, they won't take you back." Later that day, Fluharty and his wife went to the facil- ity and saw Respondent's president, David Jones. Flu- harty told Jones that it was not his intention to cause anger and that he had only wanted to say that he and the men in his department had kept busy. Jones stated that Fluharty had "opened his mouth at the wrong time" and that, while the matter was up to Minnics Sr., he, Jones, did not think Minnics Sr. would take Fluharty back. When Fluharty approached Respondent's chief executive officer, Daniel Minnics Sr., he was again advised that he would not be taken back as he had opened his mouth at the wrong time. Several days later, on 23 June, Ice was directed to go to Hays' office. At that time, Hays asked Ice if the em- ployee remembered Hays' statement at the 19 June meet- ing, that if he "caught anyone else in the scandal with Gary Fluharty about these pay raises they would be fired also." Ice said that he recalled the statement. Flu- harty told Ice, "You're my man." Hays further stated that he had knowledge that Ice was "in on it with Gary Fluharty." When Ice refused to quit, he was terminated. At the time of the discharge, Ice, like Fluharty, had an unblemished work record without prior reprimands. It is undisputed that Respondent conducts frequent meetings of its employees and that, at such meetings, em- ployees often speak out. Prior to 19 June 1986, Respond- ent had never disciplined an employee for doing so. As noted, Respondent contends that Fluharty was not discharged but, rather, that he voluntarily quit. Nonethe- less, Respondent informed the unemployment bureau that Fluharty had been fired and, at trial, Hays initially testi- fied that this employee was terminated for insubordina- tion at the 19 June meeting. As to Ice, it is Respondent's contention that he was discharged because he violated company policy by revealing Satterfield's wage rate to other employees. In this connection, Hays testified that Respondent's policy is to prohibit an employee from dis- cussing a second employee's wage rate with a third em- ployee. This policy is not set forth in writing and there is an entire lack of evidence that its existence was ever re- vealed orally to Respondent's employees. Ice's testimony that, theretofore, he had not been told not to reveal wage rates to other employees is, essentially, uncontra- dieted. C. Conclusions Ice and Fluharty discussed among themselves the fact that their fellow leadman, Satterfield, was receiving a higher rate of pay than Respondent's other leadmen. They further engaged in such discussions with other leadmen. They decided to, and did, confront Hays about the matter, with Fluharty acting as their spokesman. These activities, in June 1986, were concerted in nature, protected by Section 7 of the Act. At the 19 June meeting, when Fluharty interjected comments, he was conducting himself in a manner there- tofore tolerated by Respondent. No employee had ever been disciplined for such conduct. In any event, after Fluharty complied with Hays' directive to leave the meeting room, Respondent's officials made clear to the employees that Fluharty had been discharged and that the reason for that action was Fluharty's activities in protesting, along with other leadmen, Respondent's pay scales. Thus, Minnics Sr. told the employees that there was no money for pay increases and that, if they wanted better jobs, to look for them elsewhere. Then, Hays stated that "if he ever caught or found out who else was involved with Gary Fluharty on the pay scales, that they would be terminated as well as Gary." Following the meeting, Respondent's officials told Fluharty that he could not return to work as he had "opened his mouth at the wrong time." In these circumstances, Respondent's contention that 1Fluharty voluntarily quit is not tenable. 23 June, Respondent had learned of the leading role played by Ice in the pay protest matter. On that day, Hays reminded Ice of the production manager's ear- lier threat to discharge anyone else who was found to be involved "in the scandal with Gary Fluharty about these pay raises." Hays told Ice, "you're my man" and that he, Hays, had knoWledge that Ice was "in on it with Gary Fluharty." True to his word, Hays discharged Ice. Re- spondent's reliance, in support of the discharge, on a policy prohibiting an employee from discussing a second employee's wages with a third employee, is likewise not tenable. The policy was not set forth in writing, nor was it ever communicated orally to Respondent's employees. Indeed, there is no evidence at all to support its claimed existence. I need not assess the legality of such a policy, for I conclude that it did not exist at all. I find and conclude that Respondent violated Section 8(a)(1) of the Act by discharging Fluharty and Ice be- cause they had engaged in protected concerted activities. Respondent engaged in further violations of Section 8(a)(1) of the Act when, on 19 June, Hays threatened employees that Respondent would discharge those "in- volved with Gary Fluharty on the pay scales"; when, on 20 June, Minnics Sr. and Jones told Fluharty that he had been discharged for having' led the concerted protest, that is, for having "opened his mouth at the wrong time"; when, on 23 June, Hays told Ice that he had been RESCUE SYSTEMS 697 discharged for having engaged in the pay protest along with Fluharty. HI. THE El-t•ECT OF THE UNFAIR LABOR PRACTICES ON COMMERCE The activities of Respondent set forth in section II, above, occurring in connection with its operations de- scribed in section 1, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor dis- putes burdening and obstructing commerce and the free flow of commerce. IV. THE REMEDY Having found that Respondent has engaged in certain unfair labor practice conduct in violation of Section 8(a)(1) of the Act, I shall recommend that it be ordered to cease and desist therefrom and to take certain affirma- tive action designed to effectuate the policies of the Act. CONCLUSIONS OF LAW 1.Respondent Rescue Systems Incorporated is an em- ployer engaged in commerce, and in operations affecting commerce, within the meaning of Section 2(2), (6), and (7) of the Act. 2. By threatening employees with discharge because they engaged in protected concerted activities, and by informing employees that they were discharged because they engaged in such activities, Respondent has engaged in unfair labor practice conduct within the meaning of Section 8(a)(1) of the Act. 3. By discharging employees David Ice and Gary Flu- harty because they engaged in protected concerted ac- tivities, Respondent has engaged in unfair labor practice conduct within the meaning of Section 8(a)(1) of the Act. 4. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed4 ORDER The Respondent, Rescue Systems Incorporated, Shinn- ston, West Virginia, its officers, agents, successors, and assigns, shall 1. Cease and desist from 4 If no exceptions are filed as provided by Sec. 102 46 of the Board's Rules and Regulations, the fmdmgs, 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. (a) Threatening employees with discharge because they engaged in protected concerted activities, and in- forming employees that they were discharged because they engaged in such activities. (b) Discharging employees because they engaged in protected concerted activities. (c) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them in Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Offer to David Ice and Gary Fluharty immediate and full reinstatement to their former positions or, if those positions no longer exist, to substantially equivalent positions, without prejudice to their seniority and other rights and privileges. Make them whole for any loss of pay they may have suffered by reason of the discrimina- tion against them by payment to each of them of a sum of money equal to that which each normally would have earned as wages, from the date of the discrimination to the date of Respondent's offer of reinstatement, less net earnings during such period, with backpay to be comput- ed in the manner prescribed in E W. Woolworth Co., 90 NLRB 289 (1950), with interest as set forth in Florida Steel Corp., 231 NLRB 651 (1977) (see generally Isis Plumbing Co., 138 NLRB 716 (1962). (b) Remove from its files any reference to the dis- charges and notify the employees that this has been done and that the discharges will not be used against them in any way. (c) Preserve and, on request, make available to the Board, or its agents, for examination and copying, all payroll records, social security payment records, time- cards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (d) Post at its Shinnston, West Virginia facility copies of the attached notice marked "Appendix." 5 Copies of said notice, on forms provided by the Regional Director for Region 6, after being signed by Respondent's author- ized representative, shall be posted by it immediately upon receipt and maintained for 60 consecutive days thereafter in conspicuous places, including all places where notices to employees are customarily posted, Rea- sonable steps shall be taken by Respondent to ensure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director in writing within 20 days from the date of this Order what steps Respondent has taken to comply. 5 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."