Pittsburgh Metal Processing Co., Inc.

734 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Pittsburgh Metal Processing Co., Inc. and United Electrical, Radio and Machine Workers of America, Local 623. Case 6-CA-18987 15 October 1987 DECISION AND ORDER By MEMBERS BABSON, STEPHENS, AND CRACRAFT On 5 March 1987 Administrative Law Judge Thomas A. Ricci issued the attached decision. The General Counsel filed exceptions and a supporting brief, and the Respondent 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 conclusionsz and to adopt the recommended Order. ORDER The recommended Order of the administrative law judge is adopted and the complaint is dis- missed. ' In agreeing with the judge that the complaint should be dismissed, we do not rely on the following portions of the judge's decision the last sentence of sec. III, par. 10; the last sentence of sec III, par 11, and sec III, par 19 2 The General Counsel contends that the Respondent violated Sec 8(aX5) and (1) of the Act by failing to bargain over the promotions of two bargaining unit employees to supervisory positions because such pro- motions were mandatory subjects of bargaining We disagree We find that the General Counsel failed to prove that the promotions resulted in the elimination of any unit classifications On the contrary, the evidence indicates that bargaining unit jobs were not eliminated , but were merely left unfilled. Burkhart was able to return to his bargaining unit position 2 weeks after his promotion , and the Respondent anticipates replacing Huerbm and hiring additional production employees as business increases We conclude, under the circumstances, that the Respondent's promotions did not have such a substantial impact on the bargaining unit to be a mandatory subject of bargaining and that the Respondent did not have an obligation to bargain with the Union over the promotions Accordingly, we agree with the judge that the complaint should be dismissed See St Louis Telephone Employees Credit Union, 273 NLRB 625, 627-628 (1984) Joseph M. McDermott, Esq. and Charles H. Saul, Esq., for the General Counsel. Edward J. Van Allen, Esq. (Kirkpatrick & Lockhart), of Pittsburgh, Pennsylvania, for the Respondent. Marion J. Washington, Field Organizer, of North Ver- sailles, Pennsylvania, for the Charging Party. DECISION STATEMENT OF THE CASE THOMAS A. Ricci, Administrative Law Judge. A hear- ing in this proceeding was held in Pittsburgh, Pennsylva- nia, on 10 November 1986, on complaint of the General Counsel against Pittsburgh Metal Processing Co., Inc. (Respondent or the Company). The complaint issued on 11 August 1986, on a charge filed on 26 March 1986, by United Electrical, Radio and Machine Workers of Amer- ica, Local 623 (the Union or the Charging Party). Essen- tially the issue presented is whether the Respondent dealt directly with its employees on matters relating to their conditions of employment and thereby violated Section 8(a)(5) of the statute because it ignored their established collective-bargaining representative. Briefs were filed after the close of the hearing by the General Counsel and the Respondent. On the entire record, and from my observation of the witnesses, I make the following FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT This Company is engaged in the heat treatment of metal products in its business location in Pittsburgh, Pennsylvania. During the 12-month period ending Febru- ary 1986, in the course of its business it derived gross revenues in excess of $500,000. During that same period it performed services valued in excess of $50,000 within the Commonwealth of Pennsylvania for various enter- prises, including Combustion Engineering, Inc., which are directly engaged in interstate commerce. During that same 12-month period Combustion Engineering pur- chased and received at its Pennsylvania facility goods and materials valued in excess of $50,000 directly from points outside the Commonwealth of Pennsylvania. I find that the Respondent is an employer within the meaning of the Act. II. THE LABOR ORGANIZATION INVOLVED I find that United Electrical, Radio and Machine Workers of America, Local 623, is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES In March 1986 John Howat Jr, who owns and runs this Company, offered two of his employees promotions to what he then called a managerial position, at a very substantial increase in pay. They both accepted. One re- turned to his old position 2 weeks later, abandoning the higher pay. The other remained and is still on what the Respondent contends is a supervisory or managerial job. The complaint alleges that neither of these two men ever ceased being anything but ordinary production and main- tenance workers, that they never were supervisors, or managerial at all. And because the Respondent has long been under contract with the Union, and Howat did what he did without consulting the Union first, his act of promoting the two men is called a violation of Section 8(a)(5) of the Act. The only real question to be decided now is whether John Huerbin, the man who accepted the promotion and still holds the job, is or is not a supervisor. If he is, all the variously phrased allegations of the complaint-each labeled a separate unfair labor practice-fall by the way- side. These include such allegations as- that Huerbin was given a false title; that the Employer negotiated a per- 286 NLRB No. 74 PITTSBURGH METAL PROCESSING CO. sonal contract with a production worker represented by the bargaining agent ; that the Employer illegally disrupt- ed the bargaining unit; and that it bribed an employee to get him out of the Union , among others. If, instead, the General Counsel is right , and Huerbin never did rise above the status of a rank-and-file worker, the complaint stands up only if the Respondent admits it acted unilaterally, behind the Union 's back, as it were, in giving the man the raise. John Howat is also the president of the Company and works at the place of business , mostly, of course, in the office. His two sons, Cameron and John (Jay) Howat III, are the supervisors in charge of the regular plant work. Because of his advancing years, Howat is preparing for the day he will retire, and therefore gave thought to ob- taining another managerial assistant for his sons to run the business. His thinking was that a qualified man, with training and progressive experience as a supervisor, would be a desirable thing . His intentions, as he stated at the hearing, were to move his son John up to his posi- tion when he left. His other son, an engineer , has little experience at this kind of work, and therefore would eventually need someone to do the work with him. As Robert Burkhart, one of the men offered the promotion in 1986, recalled : "He [Howat] said, Bob, I really need you in management, I can't rely on my sons." At the time of the events Burkhart and ]Huerbin were earning about $ 10 per hour, as provided in the current union contract. When Howat spoke to each of them in March he offered them a $30,000 annual guaranteed salary in writing. Huerbin took the job and is still on it Burkhart, although he too accepted, left that job after 2 weeks. His testimony as a principal witness in support of the complaint, is virtually enough to decide the entire case. He started by saying that when Flowat first opened the subject to him it began with "[B]ow I would like to wear a white shirt . . . I would like you as part of man- agement . . . how I would like to make the sum of thirty thousand dollars [$30,000], a year salary." When Burk- hart told Howat a week later that he would accept the offer, Howat said to him, still according to Burkhart's direct testimony : "He told me it would be for the same contract as the union contract. I'd get $ 30,000 a year with the same benefits as the Union." Two weeks after starting on the new job there was a crane breakdown in the shop about 5 p.m. The supervi- sors hastened to make changes to repair it, as it would have been impossible to get the work done the following day. It took some time , with Burkhart and Huerbin also staying and solving the problem. As a consequence of the delay, Burkhart was late in picking up his wife with his car, where he had arranged to meet her. That same night, he telephoned Howat to complain that it was not right to assume "he would work so late." From his testi- mony : "I asked him about a 40 hour workweek, and he told me he said nothing about a 40 hour workweek. My understanding was the same as the union contract, a 40- hour workweek." Q. What was his response to that? A. He made no reply. 735 Q. Did you tell him anything further , or did he tell you anything further? A. I told him that I think Jay [Howat's son] should ask us, you know , if we can work late in- stead of assuming that we can work. Q. Did Mr. Howat have any response to that? A. No. I can only believe Howat did not answer the man on the telephone because he could not believe what he was hearing. The next morning Burkhart and Huerbin were called into Howat's office. Again by Burkhart: "Mr. Howat read off a few figures of what we were making and what we were making, you know, compared to being in the Union . . . he told us . . . about the amounts we were making and that I had brought up about , well, why couldn't Jay ask us to work late instead of assuming that we could work late . . . why didn't he ask us, you know. I said, well, you know, I had to be somewhere and he said, I talk too much like a union man, thinking about the 40-hour workweek." Howat first thought of firing the man, but then relent- ed and permitted him to go back to his old job the next morning. In August 1986 Burkhart quit the Company himself. The General Counsel sees this testimony by Burkhart as proof of antiunion animus in the Respondent , because Howat criticized the man for thinking like a union man. I see it as something quite different. To me it is the clear- est indication that the new job to which the man had been promoted was in fact a managerial position. The most significant reality is the changed rate of pay. Burk- hart's pay used to be $10.20 an hour, meaning $21,800 a year if he worked without missing a single hour. His new pay now was a guaranteed salary of $30,000 a year. In the face of this fact he argued with the Employer that he had a right to enjoy the terms and conditions of the union contract. Burkhart also said, at the hearing, that during those 2 weeks he did no more than the very same work he had always done . Did he really believe his em- ployer was just making him an $8000 a year gift for no reason at all? But the killer in this man's testimony is his further admission that when telling him about the new, proposed arrangement, Howat told him there would be a separate, personal contract with him, and that Burkhart could take it to his own lawyer for approval! Clearly, Burkhart was not telling the truth as a witness in this case; he was merely attempting to paraphrase the complaint. Wherever he is contradicted by a company witness, I do not credit him at all. He should be grateful for not having been discharged when he tried to back out of his deal with Howat. There is more. Am I to believe an employer would give a man an $8000 raise just for the purpose of getting him out of the Union? The Union has been established in this plant since 1961 , with successive contracts. The steward testified there was not even a grievance filed since 1971. This can only mean the Company and the Union got along well . And, finally, there is no evidence at all, indeed it is not even claimed , that this record con- tains any direct evidence of 8(a)(1) violations by the Re- 736 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD spondent. If I am to find, as the complaint says, that the Respondent paid $8000 a year more to each of two pro- duction and maintenance employees with the sole pur- pose of getting them to stop paying their own money as union dues, it would be a finding that management in this case is purely irrational. I listened to the witnesses, and I cannot come to such a conclusion. To help prove the complaint allegations of antiunion purpose in these matters, the General Counsel called two employees who were also offered the promotion but re- fused it-Paul Trautman and Raymond Dubas. Each of them tried to make it appear that Howat, who spoke to them, always started the conversations by conditioning the proposals with their resignation from the Union. By Trautman: "He called on the phone, at work, you know, and he asked me about leaving the union, you know, if I leave the union, and he offered me a job, like, more or less, a boss, or whatever, you know. And that he'd give me $30,000 a year and the same contract that we have, like, now, only with the union." By Dubas: "He asked me-we had a conversation over the phone, in the shop, about if I will be willing to drop out of the union and have the same contract, but without the union, and was offered $30,000 a year." Howat's testimony is different. He denied telling Dubas anything about leaving the Union because the man did not accept the offer at all. His testimony is that he only brought up the subject of discontinuing dues checkoff with Burkhart and Huerbin after the two men had accepted the offer of a managerial job. If in fact, as the record amply proves, the new jobs were supervisory positions, there was nothing wrong in the owner telling them they would no longer have to have union dues deducted from their salaries . I absolute- ly credit Howat against the General Counsel's witnesses on this point. There is one other reality quite clear on this record, and it is that for some time the ratio between supervisory and nonsupervisory employees in this plant's place of business has been rather disproportionate, according to Board precedent. If that fact is viewed out of context, a certain conclusion is suggested. When Burkhart and Huerbin were offered the promotions they were two of only four production and maintenance employees in the plant. Over them at that time there were three admitted supervisors-Howat and his two sons. There is Board precedent saying that such a ratio is very strong indica- tion that all the so-called supervisors are really not su- pervisors at all. Even more revealing is the fact that at the time of the hearing, after Huerbin had become a su- pervisor, there were four supervisors-Howat, his two sons, and Huerbin-over only two production and main- tenance workers. If one looks only at these facts then certainly Huerbin could not easily be held to be a super- visor. But there are other facts of record that relate to the question at issue . This Company has always operated in this fashion, using its supervisors to do some regular pro- duction work part of their time. There is uncontradicted and documented evidence that as far back as early 1960s after the Union had been recognized, the Company always had at least one supervisor who also did regular production and maintenance work. Of course the Union knew it, for the men worked with union members. The Union never complained, and no grievance was ever filed about that fact. In short, it was an accepted way of doing business in this plant. The final question is: How did Huerbin's duties change, if they did change, after his promotion? Again, the General Counsel relies on simple, conclusionary statements by his witnesses. Trautman, a regular employ- ee, was asked: "Were there any changes in job duties that were being performed by Huerbin and Burkhart at this time? A. None." Trautman left the Company on 13 April, and of course knows nothing of what has since been going on in that place. Burkhart said that during his 2 weeks in the higher paying job his work duties changed "none at all " The same answer from employee Dubas, with only a "no" in response to the question As already stated, these were not credible witnesses. In any event, I do not think these simple negatives cover the question at issue I believe, instead, the testimony of both Howat and Huerbin. Huerbin no longer punches the timeclock. His hours have changed, and, if Burkhart's explanation means anything, it says that Huerbin too is subject to duty as the problems of management demand from time to time. He wears a white shirt and blue pants, as super- visors have always worn. Every day, after the regular work hours, he attends a meeting of all supervisors, where the needs of the next day's work are studied and programmed. There, lie, as part of the group, joins in formulating the production policy to be followed. He signs for materials received on behalf of the Company, as supervisors have always done. He has interviewed two applicants for employment who answered newspaper ads; he recommended that one be hired, and that the other be sent away as unqualified. It was he who recom- mended the recall of Burkhart from layoff status, and who sent several mailgrams to the man calling him back to work. He buys parts for the various furnaces and ma- chines when needed, using the Company's credit card. He is taking a correspondence course in engineering nec- essary for this Company's special kind of mental treat- ment. The Company is paying for that cost of study. All these are facts undisputed on this record. And, finally, as already explained, unlike the rank-and-file he is salaried, and is paid much more than the employees under him. There is no question but that Huerbin is today a supervi- sor within the meaning of the Act. Interesting questions come to mind in a case of this kind. It is admitted that Huerbin, like the many other su- pervisors who preceded him, spends part of his time doing regular production work. Does that fact mean he may not be held to be a supervisor under the statute? Re- stated. If a man operates a dress shop with 10 machine operators, can he sit down, when he has time on his hands, and produce a few dresses himself on a Singer sewing machine? Can the ILGWU file a valid 8(a)(5) charge with the NLRB because of that independent action by the dressmaker? Where an admitted supervisor does both kinds of work-being a boss and working on a machine, can the union compel him to pay union dues because of a contract that makes membership compulso- PITTSBURGH METAL PROCESSING CO. ry on the rank and file . In my considered judgment the answer to those questions is a negative . But I do not ad- dress them here because the General Counsel does not raise any of them. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed' ORDER 737 I recommend that the complaint is dismissed in its en- tirety. Order shall , as provided in Sec 102 48 of the Rules, be adopted by the If no exceptions are filed as provided by Sec 102 46 of the Board's Board and all objections to them shall be deemed waived for all pur- Rules and Regulations, the findings , conclusions, and recommended poses.