Interlake, Inc.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Interlake, Inc. and Ray L. Maschinot. Case 9-CA- 14192-2 December 9, 1980 DECISION AND ORDER By CHAIRMAN FANNING AND MEMBERS JENKINS AND PENELLO On June 27, 1980, Administrative Law Judge Karl H. Buschmann issued the attached Decision in this proceeding. Thereafter, Respondent filed ex- ceptions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings,' and conclusions of the Administrative Law Judge and to adopt his recommended Order, as modified herein. 2 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the Respondent, Interlake, Inc., Newport, Kentucky, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, as so modified: 1. Insert the following as paragraph 2(b) and re- letter the remaining paragraphs accordingly: "(b) Remove and expunge from its personnel re- cords all documentations of and references to the disciplinary action against Ray L. Maschinot be- cause he engaged in the protected concerted activi- ty involved herein." 2. Substitute the attached notice for that of the Administrative Law Judge. MEMBER PENELLO, dissenting: In his "Analysis," the Administrative l.aw Judge at one point inad- vertently referred to August 9 as the date of Maschinot's absence. The correct date is August 8. The Administrative Law Judge found that Respondent gave Mas- chinot a written notice of suspension. Therefore, we modify his recom- mended Order to require Respondent to expunge any records it has of the disciplinary action against Maschinot. Member Jenkins notes that he would award interest on backpa in accord with his dissent in Olympic Medical Corporation, 250 NLRB 146 (1980). We agree with the Administrative Law Judge's refusal to defer this proceeding. alleging a violation of Sec 8(aX(4) of the Act, to arbitration. See, e.g., McKinlev Transport Limited, 219 NLRB 1148 (1975); US. Povral Service, 227 NLRB 1826 (1977); Narragunsti Restauranr Corp.., 243 NLRB 125 (1979). 253 NLRB No. 76 I would defer to the grievance and arbitration procedures agreed upon by the parties in their col- lective-bargaining agreement for the reasons set forth in my dissenting opinion in U.S. Postal Serv- ice, 227 NLRB 1826 (1977). See also Roy Robinson, Inc. d/b/a Roy Robinson Chevrolet, 228 NLRB 828 (1977), and former Member Walther's and my dis- senting opinion in General American Transportation Corporation, 228 NLRB 808 (1977). APPENDIX NOTICE TO EMPI OYiEES POSTED BY ORDIR OF THE NATIONAI. LABOR RELATIONS BOARD An Agency of the United States Government After a hearing at which all sides had an opportu- nity to present evidence and state their positions, the National Labor Relations Board found that we have violated the National Labor Relations Act, as amended, and has ordered us to post this notice. The Act gives employees the following rights: To engage in self-organization To form, join, or assist any union To bargain collectively through repre- sentatives of their own choice To engage in activities together for the purpose of collective bargaining or other mutual aid or protection To refrain from the exercise of any or all such activities. WE wiLL NOT discriminate against our em- ployees because they have filed unfair labor practice charges with the Board. WE WIL. NOT in any like or related manner interfere with, restrain, or coerce our employ- ees in the exercise of the rights guaranteed them by Section 7 of the Act. WE WILL make Ray L. Maschinot whole, with interest, for any loss of pay he may have suffered by reason of our discrimination against him. WE WIl. remove and expunge from our personnel records all documentations of and references to the disciplinary action against Ray L. Maschinot because he engaged in pro- tected concerted activity. INTERI.AKE, INC. DECISION STATEMEN'I OF THE CASE KAR. H. BUSCHMANN, Administrative Law Judge: This case arose upon the filing of an unfair labor practice INTERLAKE. INC charge against Respondent, Interlake, Inc. The resulting complaint, dated September 14, 1979, charges Respond- ent with violations of Section 8(a)(1) and (4) of the Na- tional Labor Relations Act (the Act).' Respondent timely filed an answer on September 24, 1979, admitting all jurisdictional allegations in the complaint but denying the substantive allegations of unfair labor practices. The complaint was the subject of a hearing held on April 7, 1980, at Cincinnati. Ohio. Post-hearing briefs were filed by both sides. FINDINGS Or FACT I. THE BUSINESS 01F RESPONDENT AND) THE ABOR ORGANIZATION IN VOL.VED) Respondent Interlake, Inc., is, and was at all times ma- terial, a Delaware corporation, engaged in the manufac- ture of steel at its facility in Newport, Kentucky. Admit- tedly, Respondent is, and was at all times material, an employer within the meaning of Section 2(2) of the Act, engaged in commerce and operations affecting commerce within the meaning of Section 2(6) and (7) of the Act. Local 1870, United Steelworkers of America, AFL- CIO-CLC, is admittedly a labor organization within the meaning of Section 2(5) of the Act. II. THE ALL.EGEI) UNFAIR I.ABOR PRACTICES Respondent is charged with violating Section 8(a)(l) and (4) of the Act by interfering with, restraining, and coercing its employees' exercise of their rights under Section 7 of the Act, and by discriminating against em- ployees for filing charges under the Act. Specifically, it is alleged that on August 8, 1979, Respondent, through its general foreman for the mechanical department, sus- pended employee Ray L. Maschinot for a period of 3 days without pay for exercising his right to file unfair labor practice charges with the Board. The issue to be resolved is whether Maschinot's suspension was directly attributable to his intention to file unfair labor practice charges, or whether it can be attributed to his leaving the plant facility without permission and in violation of Respondent's plant rules and practices. Respondent and the Union have had a long history of collective bargaining. This collective-bargaining relation- ship has established, inter alia, a general practice of per- mitting employees to leave their work in order to attend union "business." The normal procedure for an employee seeking to be released for union business was for the em- ployee to give advance notice to his immediate supervi- sor. However, the record shows that requests for leave on union business have always been granted. Also, there have been occasions when employees have taken time off on union business without authorized approval from an immediate supervisor and no subsequent disciplinary action was taken. Furthermore, the parties stipulated that Respondent has knowingly approved time off for union business so employees could attend union-sponsored The Charging Party had also complained that Respondent had violat- ed Sec 8(aX3) of the Act. However, upon investigation by the oard, it was concluded that further proceedings were unwarranted with regard to the 8(aX3) allegation sporting events, conventions, and training sessions. It ap- pears from the record as a whole that prior to August 8, 1979, no employee had ever been denied permission to leave work on union business. Moreover, the parties stip- ulated that no employee had ever been disciplined for absence from work while on union business. The Charging Party, Ray L. Maschinot. has been em- ployed by Respondent for approximately 8 years, and for the past 3 years he has held the position of rigger in the mechanical department. Maschinot has held union posi- tions in the past, including assistant committeeman, and chairman of the safety committee, and, since May 1979, he has been the treasurer of Local 1870. A. The Events of August 7, 1979. On August 7, 1979,2 Maschinot, along with another rigger and two welders, was working on relining the B furnance in the melt shop. At about 11:30 a.m., Mas- chinot asked his section foreman, Tom Herring, if he wanted the crew to work through their lunch break. Herring replied that he did not know but would get back to Maschinot. At 11:45 a.m., Steve King, a welder work- ing with Maschinot, relayed to Maschitiot Herring's re- quest that one rigger and one welder go to lunch and, upon their return the other rigger and welder were to go to lunch. At that time Maschinot, as the most senior among the crew, sent rigger Mike Bebe and welder Steve King to lunch. Maschinot in turn went to lunch from 12:20 p.m., until 12:40 p.m. It was ordinary practice for employees to take an unpaid lunch break from 12 noon until 12:30 p.m. How- ever, if an employee worked beyond the 12 noon break, he was then permitted to take a 20-minute break and clock out at 4 p.m. instead of the scheduled shift-ending time of 4:30 p.m. In effect, once an employee worked beyond the 12 p.m. lunch break, his lunch period was converted to paid time. 3 Maschinot informed his supervisor for that day, George Meiman, general foreman for the mechanical de- partment, that he was leaving at 4 p.m. because he had worked through his scheduled lunch break and wanted his timecard to reflect the converted lunch period. Meiman objected and said that this practice had to stop. Nevertheless, that afternoon Maschinot clocked out at 4 p.m. B. The Events of August 8. 1979 On August 8, Maschinot began his regularly scheduled workday, and was assigned to a crew that was relining the plant's primary furnace. The relining of the A fur- nance was a normal monthly operation which required the A furnance to be shut down. Due to the importance of the A furnace to the plant's productivity, Respondent 2 Events surrounding the dispute of August 7, 1979, merely serve as background to the specific allegation of an unfair labor practice by Re- spondent occurring on August 8 and 9 3 The record is inconsistent as to whether this practice was established company policy. A resolution of this conflict is, however, not necessary suffice it to say that ths caused the disagreement hbtween Maschinot and Meiman 639 DECISIONS OF NATIONAL LABOR RELAIONS BOARD) usually sought to have the A furnace operational as soon as possible. During the morning break, at 9:30, Maschinot was told that he had been docked 30 minutes for leaving work early on the previous day. He immediately asked Fore- man Tom Herring in the plant restaurant about it. Her- ring, unfamiliar with the matter, said he would see Meiman about it. Later that morning, at 11 o'clock, Her- ring told Maschinot that Meiman would not pay him for the 30 minutes. Maschinot replied that he would go over to the NLRB to file charges. At 11:20 a.m., Maschinot had another conversation with Herring when he repeat- ed that he would file charges, but Herring told Mas- chinot that he should just forget about things like this. At 12 noon, Maschinot took his regularly scheduled lunch break, when he met with Larry Workman, assist- ant committeeman for the mechanical department. They decided to speak to Meiman's superior, Ralph Parnell, superintendent for mechanical and maintenance depart- ments. On the way to Parnell's office, Maschinot spoke briefly with Gary Strauss, the Union's vice president. Maschinot explained to him the events of August 7 and 8 and told Strauss that he wanted to go to the NLRB to file charges. Strauss, as the highest ranking union official at the plant on August 8, gave Maschinot authorization to take off on union business.4 After the brief discussion with Strauss, Maschinot and Workman explained the dispute to Parnell and demanded that Respondent pay the 30 minutes Maschinot had been docked. Parnell said he would not go over Meiman's head, but would look into the dispute and get back to them. At 12:30 p.m., after he had returned to work on the A furnace, Maschinot saw Meiman and asked him if he would be paid for the 30 minutes. Meiman said "no." Maschinot then demanded: "Mark me off on union busi- ness." Meiman said: "No. We need you on the job." Meiman then turned and proceeded to walk away from the A furnace towards the exit stairway. Maschinot walked with Meiman and told him that he was going over to the National Labor Relations Board and file charges against him. Meiman replied: "If you leave this plant, you're subject to disciplinary action." Maschinot responded: "Give it to me now, because I'm leaving." Maschinot then showered and upon leaving the plant re- ported to the guard at the gate that he was off on union business. Maschinot then proceeded directly to the NLRB and filed charges against Respondent.' After Maschinot's departure, the work on relining the A furnace was continued by the remaining three riggers. They worked approximately 4 hours in overtime so that 4 While an employee is on union business, his time is paid by the Union. Strauss did not give Maschinot authority to leave the plant to file chargcs ralher, the authority gisen was to "lay off" on union business for the purpose of filing charges with the NLRB. ' he testimony of Maschinot and Meiman is virtually identical in this regard. except that Maschinot's version had Meiman deny his request for leave only after he had told Meiman that he intended to file charges against hintm lut even if that were credited, I cannot attach the same sig- nificance to that distinction as the General Counsel has done, for Met- man's initial comment such as "well" or "well, what time," still does not establish his consent or acquiescence to a request for leave on union busi- ness as opposed to file a charge with the Board. it could return to operation on the same day. The record does not support any suggestion that the overtime put in by the three riggers resulted from Maschinot's absence, or that his absence caused any disruption of the work on the A furnace. There were no complaints by any of Re- spondent's supervisory personnel that Maschinot's depar- ture injured the plant's operation.' C. The Events of .lugust 9. 1979 Upon his return to work on the morning of August 9, Maschinot discovered that his timecard was missing from its usual space. He was told by Foreman Goul that it was under industrial investigation. At 7:30 a.m., Meiman approached Maschinot in the plant restaurant and re- quested to see him. At 8 a.m., Maschinot, accompanied by Assistant Committeeman Workman, went to Mei- man's office. Meiman informed Maschinot that he was suspended for 3 days "for leaving the plant without per- mission," and handed him a written notice of suspension which Maschinot was requested to sign. Analysis Because the implementation of the Act is dependent upon the initiative of individuals who as Maschinot has done here, invoke the Board's process through the filing of an unfair labor practice charge, "Congress has made it clear that it wishes all persons with information about such [unfair labor] practices to be completely free from coercion against reporting them to the Board." Nash v. Florida Industrial Commis.sion, et al., 389 U.S. 235, 238 (1967). The Board and the courts have recognized that for the Board to perform its statutory function of reme- dying unfair labor practices "[t]he approach to Section 8(a)(4) generally has been a liberal one in order fully to effectuate the section's remedial purpose." N.L.R.B. v. Robert Scrivener, d/b/a AA Electric Company, 405 U.S. 117, 124 (1972). The Board has accordingly not deferred complaints alleging violations of Section 8(a)(4) of the Act to contractual grievance and arbitration procedures. See McKinley Transport Limited, 219 NLRB 1148 (1975); U.S. Postal Service, 227 NLRB 1826 (1977). Respondent contends that Maschinot was justifiably disciplined for leaving the plant without permission, and that he was disciplined in accordance with Respondent's usual penalty for this type of infraction; the 3-day sus- pension, therefore, did not constitute disparate treatment and shows no discriminatory conduct by Respondent. Moreover, according to Respondent, the General Coun- sel has failed to present any compelling reason for Mas- chinot's departure to file unfair labor practice charges during normal working time. Upon consideration of the record as a whole, Re- spondent's contentions must be rejected. Respondent has consistently permitted employees to leave work on union business during regular working hours and, whenever re- 6 The record shows that during the afternoon of the same day and the early morning of the following day, certain supervisors requested Mas- chinot to work 2 hours early on August 9. Meiman, however, told Mas- chinot that he could not do so, because he was laid off on "union busi- ness." This brief espisode appears inconsequential and is not contained as an allegation i the complaint 64() INTERLAKE, INC. quested, Respondent has excused employees for that pur- pose. Indeed, the record indicates that prior to August 8, 1979. Respondent had never denied an employee's re- quest for leave on union business. The parties stipulated that no employee had ever been disciplined for being absent from work while the employee was off on union business. Maschinot, as treasurer of the Union, routinely attended the monthly union meetings by merely inform- ing his immediate foreman shortly before he left. Al- though the record shows that employees would not leave their work station at a whim on union business, in a situation for example when it would have affected the safety of a fellow worker, or where a particular job re- quired a relief man, Respondent had never withheld per- mission to afford "such time off without pay as may be required for the purpose of investigating the facts essen- tial to the settlement of any complaint or grievance" as provided in paragraph 67 of its union agreement (Resp. Exh. 2). Yet, even though Meiman was aware of the reason for Maschinot's request to take off on union busi- ness, and in spite of the Union's vice president's authori- zation to take off on union business for the specific pur- pose of filing unfair labor practice charges, Respondent refused to give Maschinot permission to leave. It is, ac- cordingly, clear that this was the only instance where Respondent, when confronted with Maschinot's request for leave to file a charge with the Board, not only re- fused to grant permission but also disciplined an employ- ee. The General Counsel has sustained the burden of proving discrimination by showing that Maschinot was "treated differently than other employees under like cir- cumstances." John Wanamaker. Philadelphia. Inc., 199 NLRB 1266, 1275 (1972). Respondent's defense is also directed at the principle of accommodation between the protection of Board processes and the business interests of employers. John Wanamaker, Philadelphia, Inc.. supra; General Nutrition Center, Inc., 221 NLRB 850 (1975); E. H. Limited d/b/a Earringhouse Imports, 227 NLRB 1107 (1977), enforce- ment denied 600 F.2d 930 (D.C. Cir. 1979). In this regard, the record does not support a finding that Mas- chinot's absence during tne afternoon on August 9, had a disruptive effect on the business operations of Respond- ent. It suffered no business injury and was able to main- tain normal operations. Indeed, Respondent has failed to establish any business necessity to justify its refusal to give Maschinot permission to take off and file a charge with the Board. Accordingly, I find that Respondent's denial of Mas- chinot's request to leave on union business for the pur- pose of filing unfair labor practice charges with the Board and Respondent's subsequent 3-day suspension of Maschinot for leaving the plant premises violated Sec- tion 8(a)(1) and (4) of the Act. CONCUSIONS OF LAW 1. Respondent Interlake, Inc., is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. By its failure to permit Maschinot to take off work to file a charge with the Board and by suspending him because he left work to file a charge, Respondent deviat- ed from its normal practice which freely permitted em- ployees to take off on union business. 3. Respondent's discriminatory conduct violated Sec- tion 8(a)(4) and (1) of the Act. THE REMEDY Having found that Respondent engaged in unfair labor practices in violation of Section 8(a)( ) and (4) of the Act, I recommend that Respondent be ordered to cease and desist from its unlawful practices. I further recom- mend that Respondent be ordered to post an appropriate notice and take affirmative action in order to effectuate the policies of the Act. In addition, I recommend that Respondent be required to make Ray L. Maschinot whole for any loss of earn- ings sustained by him as a result of the discrimination with interest thereon, to be computed in the manner pre- scribed in Woolworth Company, 90 NLRB 289 (1950), and Florida Steel Corporation, 231 NLRB 651 (1977).7 Upon the basis of the foregoing findings of fact, con- clusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I recommend the issuance of the following: ORDER8 The Respondent, Interlake, Inc., its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discriminating against any employees because they filed unfair labor practice charges with the Board. (b) 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 which will ef- fectuate the policies of the Act. (a) Make Ray L. Maschinot whole for any loss of pay or other benefits that he may have suffered by reason of Respondent's discrimination against him in accordance with the recommendations set forth under "The Remedy" section of this Decision. (b) Preserve and, upon 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 re- cords necessary to a determination of compliance with paragraph (a) above. (c) Post at its Newport, Kentucky, office and plant copies of the attached notice marked "Appendix." 9 Copies of said notice, on forms provided by the Regional See, generally, Is Plumbing &d ealing C(o.. 138 NL.RB 716 (192) s In the event no exceptions are filed as provided hb Sec 102 40 of the Rules and Regulations of he National Labor Relations Board. the find- ings, conclusion, and recommended Order herein shall. as pros ded in Sec 102 48 of the Rules and Regulations, he adopted by the Board and become its findings, conclusions, and Order. and all obhject ions thereto shall he deemed sali'ed fir all purposes t In the evenl this Order is enforced hy a Judgment of a Utnited Stale, Court of Appeals., the swords in the notice reading "'o,ted h Order of the National abor Relatlons Board" shall read Posted P'urinl to a Judgment of the tInited State, Court of Appeals nfircing al Order of the National l.abohr Reltil, Ioard " 641 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Director for Region 9, after being duly signed by Re- spondent's authorized representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 9, in writ- ing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. 642