Unit Rig & Equipment Co.

UNIT RIG & EQUIPMENT COMPANY 3 5 Unit Rig & Equipment Company and International Association of Machinists & Aerospace Work- ers, AFL-CIO. Case 16-CA-8637 August 20, 1980 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND PENEL.O On May 22, 1980, Administrative Law Judge David G. Heilbrun issued the attached Decision in this proceeding. Thereafter, the Respondent filed exceptions 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, as modi- fied below, and hereby orders that the Respondent, Unit Rig & Equipment Company, Tulsa, Oklaho- ma, its officers, agents, successors, and assigns, shall take the action set forth in the said recom- mended Order, as so modified: 1. Substitute the following for paragraph 2(a): "(a) Offer Charles Papen, Wayne Hoover, Dar- rell Varnell, and Jane Byars Kissire immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent po- sitions, without prejudice to their seniority or any other rights or privileges previously enjoyed, and make them whole for any loss of earnings incurred from being terminated on July 31 and August I or 2, 1979, as provided in F. W Woolworth Company, 90 NLRB 289 (1950), with interest thereon as pro- vided in Florida Steel Corporation, 231 NLRB 651 (1977). (See, generally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962).)" 2. Substitute the attached notice for that of the Administrative Law Judge. I In accordance with his dissent in Olympic Medical Corporation, 250 NLRB No I11 (1980), Member Jenkins would aard interest on the hack- pay due based on the formula set forth therein 2 We have modified the Administrative Law Judge's recommended Order to include the full reinstatement language traditionally provided hb the Board 251 NLRB No. 74 APPENDIX NOTICE To EMPI.OYEES POSTED BY ORDER OF THE NATIONAL LABOR REI.ATIONS BOARD An Agency of the United States Government WE WILL NOT discharge or in any other manner discriminate against employees because of membership in and activities on behalf of International Association of Machinists and Aerospace Workers of America, AFL-CIO, or any other labor organization. WE WILL NOT threaten employees with dis- charge for engaging in protected concerted ac- tivities. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employ- ees in the exercise of rights protected by the National Labor Relations Act. WE WILL offer Charles Papen, Wayne Hoover, Darrell Varnell, and Jane Byars Kis- sire immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without prej- udice to seniority or other rights and privi- leges previously enjoyed, and pay them for any loss of earnings incurred from being termi- nated on July 31 and August 1 or 2, 1979, with interest. UNIT RIG & EQUIPMENT COMPANY DECISION STATEMENT OF THE CASE I DAVID G. HEILBRUN, Administrative Law Judge: This case was heard in Tulsa, Oklahoma, on December 11, 12, and 13, based on a complaint alleging that Unit Rig & Equipment Company, herein called Respondent, violated Section 8(a)(1) and (3) of the Act by discharging Charles Papen, Wayne Hoover, Darrell Varnell, and Jane Byars Kissire, while contemporaneously threatening employees with discharge for engaging in protected concerted ac- tivities, and so informing them, creating the impression it was engaged in unlawful surveillance of its employees and interrogating employees concerning their union membership, activities, and desires. Upon the entire record, my observation of the wit- nesses and consideration of post-hearing briefs, I make the following: FINDINGS OF FACT Based on a collective-bargaining relationship of many years' duration Respondent and Local Lodge 790, Inter- national Association of Machinists and Aerospace Work- ' All dates are in 1979. unless,, other, Ise indicated 360 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ers, AFL-CIO, herein called the Union, are parties to a recently expired contract covering terms and conditions of employment for several hundred persons engaged in manufacturing.2 In 1970, a representation petition filed by the Union had resulted in a Decision and Direction of Election, whereby timekeepers and production control clerks were to vote self-determinedly on inclusion in an existing production and maintenance unit, while the clas- sification of dispatcher was found to be supervisory. Then, as now, dispatchers were an integral part of Re- spondent's departmentalized product control function. In February Harold Stalcup, former accounting man- ager, was designated as manager of production control. A personnel official introduced him to the department staff, he held an initial meeting with those now under his supervision, and within 2 weeks of his appointment he issued a memorandum on the subject "organization, re- sponsibility and procedure changes." These steps repre- sented Stalcup's immediate settling into this new manage- rial role, with Bob Pleasant and Val Zuniga continuing to occupy positions of day shift production control su- pervisors, and Jim Hanna ordinarily fulfilling this role on second shift. The classification of dispatcher falls next in the hierarchy, with several assigned to each production control supervisor and providing coverage for the prima- ry operational areas of assembly, machine shop, east welding shop and west welding shop. A final classifica- tion within the production control department is that of material handler. These are persons within the bargaining unit who physically locate and reposition raw material or parts in process, often using forklift trucks in performing this function. In late July the Union arranged a weekend meeting with the aim of stimulating representational interest among dispatchers. Approximately a dozen attended, in- cluding the four persons named in paragraph 8 of the complaint. Each of them signed authorization cards while at the meeting. Shortly thereafter, on the respec- tive late July and early August dates shown in the com- plaint, each was called to the office of Stalcup, and ad- vised of termination from employment for having attend- ed the meeting in disregard of prior instructions asserted- ly grounded on their supervisory status.3 The objective of Respondent's production control de- partment is to schedule, monitor, and expedite plant op- erations to the most efficient and profitable point. After 2 Respondent maintains a plant and place of business in Tulsa, Oklaho- ma, where it produces oil drilling machinery and off-highway wrheeled vehicles suitable to transport ore from deep-pit mining operations. In the course and conduct of such business, Respondent annually sells and ships finished goods and products valued in excess of $50,000 directly to points outside the State of Oklahoma, while receiving materials valued in excess of $50,000 directly from points outside Oklahoma. I find from these ad- mitted facts that Respondent is an employer engaged in commerce within the meaning of Sec. 2(6) and (7) of the Act, and otherwise that he Union is a labor organization within the meaning of Sec 2(5) of the Act. A harbinger of these events had occurred on July 30 when ware- house foreman Wendell Martin remarked to Papen and Hoover that he heard of their interest in the Union, and personally felt it a beneficial prospect. Additionally, on July 31 Stalcup had spoken to a gathering of most dispatchers stating that as supervisors they should know not to in- volve themselves in union activities, and anyone found so engaging would be fired. In discharging Varnell on August I Stalcup uttered the words "How did this all get started?" as the two waited in Respondent's personnel office. origination in design and methods engineering, as harmo- nized with a master scheduling function, a flow of multi- copy work process tickets appears in the production con- trol department. These are routed through the appropri- ate production control supervisor who validates them as to content and schedule completion date. This person in turn furnishes them to a dispatcher for the area in which welding, machining, or assembly work is required to ful- fill the ticket as a step in coherent product completion. The production ccntrol supervisors also prepare a daily "hot list," or statement of specific parts that must be worked on to avoid a shortage in the overall manufactur- ing plan. The dispatcher matches items on this priority list with pending job tickets to insure that immediate needs are completed during the first available capacity of machine, equipment, and production worker. These ob- jectives are appreciably aided by use of four control boards. Two of these, used for sequencing work through the machine shop and east welding shop, are located within production control's central office area. The con- trol boards for nearby assembly and for west welding shop, roughly one-half mile away, are situated in those areas. A control board is an apparatus in which job tick- ets may be placed, pigeonhole fashion, in association to each machine, welding station, or other identifiable man- ufacturing process of the department serviced. Prior to the terminations at issue, dispatcher Varnell worked off the centralized control boards for machine shop and east welding shop, while Kissire was also located there as a junior dispatcher performing engineering change follow- up, filing, and replacement coverage for other more ex- perienced dispatchers as needed. Dispatcher Papen worked separately in the assembly department, as did dispatcher Hoover even more distantly in west welding shop. In all instances dispatchers move in and shout their assigned departments, and randomly went into the cen- tral production control office when necessary. Varnell testified that during a typical day following his 7 a.m. arrival at work, he first familiarized himself with content of the hot list, then scanned pending job tickets for any conflict with scheduling goals before housing them in the control board. At about 7:30 a.m. production employees would begin to appear, removing the job tick- ets (the dispatcher keeping a control copy) as an adjunct to performing and recording the given machine or weld- ing operation, and then returning the ticket as a complet- ed work cycle in the flow of making finished compo- nents. Relatedly, material handlers would also approach the control board to observe whether jobs soon to start would need a bringing of material to work stations. Fur- ther, material handlers might be told directly by dis- patchers of need for material relocating, or be referred to the raw materials warehouse or ready bay (indefinite storage place for partially finished parts) to find and move material. Often material handlers were paged by dispatchers, causing them to appear at the office to be told of immediately needed action. Varnell's day would proceed to completion with constant attention to wheth- er projected manufacturing schedules were being achieved in timely manner. Similar tasks were carried out by Papen and Hoover in their respective areas. All UNIT RIG & EQUIPMENT COMPANY 161 of these experienced dispatchers asserted that department foremen and individual floorworkers commonly and suc- cessfully requested the assistance of material handlers in the ordinary course of work. Respondent does not contend that dispatchers partici- pate in hiring or firing of material handlers, the formal phases of any grievance handling, or the reward of mate- rial handlers by recommending merit pay increases. Rather, a contention that frames the central issue here of whether they are supervisors within the meaning of Sec- tion 2(11) of the Act is that they informally adjust griev- ances of material handlers, and responsibly direct their work in non-routine fashion using discretion and judg- ment in fashioning assignments. Stalcup testified that this is the case, particularly in view of describing how he had expressly informed material handlers that they take up matters of concern to them initially with their regular dispatcher. His view was supported by the long-service west welding shop foreman, Howard Pryor, who testi- fied that it was rare for any person other than a dispatch- er to direct the work of material handlers, and that he viewed it merely a courtesy when material handlers re- sponded to his own requests. There is little to suggest that statutory supervisory status attaches to dispatchers from general context of this workplace. As salaried nonexempt persons their hourly or "regular" (for Fair Labor Standards Act purposes) rate was, in all cases, below the automatic maximum to which material handlers were entitled under the collec- tive-bargaininq agreement. Were they held to be supervi- sors, the startling result would be managerial authority dispersed throughout a 3-tiered layer of about 16 super- visors within the production control department yielding a supervisor-subordinate ratio of about 1:3 relative to ma- terial handlers. There are no apparent indicia of the claimed status in terms of even screening interviews of applicants, authenticating hours worked by material han- dlers, or dealing with them other than as conduits of in- formation. On this threshold point of just how dispatch- ers interact with material handlers, I am persuaded to accept their own testimony, buttressed as it is by that of chief committeeman and assembly department employee Don Curran and co-dispatcher Gary Swarer. From this it is seen that material handlers actually look to produc- tion control supervisors as their superiors, that manufac- turing personnel frequently and predictably cause materi- al handlers to find and position items, and, most impor- tantly, that such direction as dispatchers impart to mate- rial handlers is utterly nondiscretionary because based on preordained scheduling documents or judgmental reclu- sion of particular questions by a production control su- pervisor. Beyond this overview of the matter, Respondent keyed to the aspects of authorizing overtime for material handlers and responsibility for mechanical maintenance of forklifts. Stalcup testified flatly that dispatchers could "require" material handlers to work overtime and that they had a supervisory role of "monitoring" the operat- ing condition of forklifts. The subject of approving over- time was implicitly traversed in testimony of the three male dispatchers, and credibly rebutted by current dis- patcher Swarer who testified that his production control supervisor and the affected departmental supervisor jointly determined production overtime, a judgment in which he has never participated. Swarer, corroborated by Hoover, also credibly described the actual details of programmed forklift maintenance objectives, clearly demonstrating by such testimony that dispatchers' in- volvement has been at a most routine level of handling, scanning, and forwarding vehicle maintenance docu- ments in a manner devoid of any responsible role. As to further particulars, the paging technique used in the plant barely warrants comment. This is no more than an extension of ordinary voice communication and is freely so used, including instances of material handlers paging each other. Respondent's several exhibits repre- senting company forms to which dispatchers affixed their signatures at several times past are utterly inconsequen- tial. On August 8, 1978, Varnell routinely confirmed a material handler's report of his physical symptoms fol- lowing injury, on May 23, 1977. Hoover signed as "fore- man" on a material handler's 3-day leave of absence re- quest after being expressly told to do so by his produc- tion control supervisor, and on two occasions Swarer completed "pass out" slips permitting an employee to leave the factory during a shift, again after no more sig- nificant prelude than the person requesting such an entry. Notably in this last instance the signature was over a space for control board operator. The overall tone of dispatcher/material handler contact is merely that of one coworker with another, and this finding is not disturbed by evidence that on a single occasion tem- pers were raised between Varnell and material handler Lynn Gaines to the point that a "chewing out" was di- rected at the latter. Respondent has at best mounted a frail case in terms of its affirmative defense to the allegations of discriminatory discharge, and I confidently reject such a claim on grounds of insufficient evidence showing any indicia of supervision within the meaning of Section 2(11). 4 While I make a characterization of dispatchers' importance in the overall scheme of this complex manufacturing set- ting, my controlling belief is that they are utterly with- out any true supervisory characteristics with respect to material handlers, the only classification (and a higher paying one) over which they could conceivably have do- minion.5 Curiously, no production control supervisors 4 Respecling par 7 of he conmlplaint. I find onl) a ,,iolatll under subpar c MNartin's renlark as litli_ more than passilng coin\ crl til. %shile he quoted ulltterance of Stalup to 'apen in August I a;s 111l rhetorical Remarks mode in the process of termillallng these idhid u a l d l "hich ga e unorll acti llles a Responderls mili li.ang reason for such acton do lno t con cy he inlpress on of ur clllancle otlher Ihan h a ir.aincd fIorm of logic and distortionI of language iin hich I decline to join Similarls the reasill statled to Kl sir h Staicup on August 2 (and tacitl I echoed hy perlonnel official t'ettrermil ho a;Is pr eent) il1nplJ mnierge into dnlamic% A' the di'crililnalor dLharge id do It lustilt the peculiar aillegatit of suhpar d (O11N StallciUp statemellt in Ihis 'till t1o aiseTlhbled dlspatchers itl Jls II i;s an ,cttlllahle s iolatilon ai a Ihrc;ll toi tlsc presient Ii iludilng Kl,,ire herself iho s 1 nill it then ac ll- ni] hbeing dischlarged I I dra\s .al tltnT Ii tapen's redilhc desc riptl)i of once hilg tld h5 1hc Iterill.r pr li ll sl s l nt ril ilrllger. Rccd Andll rsoll, t lt dlipilehrs Al gri t p l e 1i pllp il oerql;lli t ld I11 the rk Inl ,hlh the srn gageCd ;Inl :ss'es1s Ill Ill Isl lrlln s ,Itll ih ftilt i li gs A.ls) I 1iLc iniied ( !li w itsud 362 DECISIONS OF NATIONAL LABOR RELATIONS BOARD testified on behalf of Respondent as might have better supported its contentions, nor, conceding that they are bargaining unit members, did any material handler of' the several dozen now employed. Accordingly, I render con- clusions of law that Respondent, by discharging Papen, Hoover, Varnell, and Kissire because they manifested a desire for representation by the Union, and by threaten- ing employees with discharge for engaging in protected concerted activities, has engaged in unfair labor practices within the meaning of Section 8(a)(1) and (3) of the Act. Disposition Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER 6 The Respondent, Unit Rig & Equipment Company, Tulsa, Oklahoma, its officers, agents, successors, and as- signs, shall: 1. Cease and desist from: (a) Discharging or in any other manner discriminating against employees to discourage their membership and activities on behalf of the International Association of Machinists and Aerospace Workers of America, AFL- CIO, or any other labor organization. (b) Threatening employees with discharge for engag- ing in protected concerted activities. (c) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of rights guaranteed in Section 7 of the Act. Ihe cicept anpl pressed h SalcIup abou li hos R espondeit ' personnel should tailor their occupati onal fulnctios I a commit or appeal" rmode, and find his oltion irrelevant to the issue e In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National L[abor Relations Board, the find- ings, conclusions, and recommended Order herein shall, as provided ill Sec 1012.48 of the Rules and Regulatiolns he adopted by the Board aind become its findings, conclusions, and Order, and all objecti ons thereto shall be deemed aived for all purposes 2. Take the following affirmative action designed to ef- fectuate the policies of the Act: (a) Reinstate Charles Papen, Wayne Hoover, Darrell Varnell, and Jane Byars Kissire to their former positions of employment without prejudice to seniority or other rights and privileges, and make them whole for any loss of earnings incurred from being terminated on applicable dates from July 31 to August 2, 1979, as provided in F W Woolworth Company, 90 NLRB 289 (1950), with in- terest thereon as provided in Florida Steel Corporation, 231 NLRB 651 (1977). (See, generally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962).) (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 analyze the amount of backpay due under the terms of this Order. (c) Post the attached notice marked "Appendix " 7 at its Tulsa, Oklahoma, plant. Copies of this notice, on forms provided by the Regional Director for Region 16, after being duly signed by Respondent or an authorized repre- sentative, shall be conspicuously posted immediately upon receipt and be maintained by it for 60 consecutive days thereafter, in 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, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. IT IS FURTHIR ORDIRI{I) that the complaint be dis- missed in all other respects. 7 In the eent that this Order is enforced h a Judgerlcil of a ited States Court of Appeals, the word, irl he nolice reading "P'sted by Order of the Nati lonal I.abior RelaIllns Board" shall read "Posted Iursu- ant to a Judgment of the Unlited States Courl of Appeals tllforcinrg all Order of the National I.abor Relatllitis Bard"