Consolidated Aluminum Corporation

National Labor Relations Board - Board Decisions

Jun 3, 1981

256 N.L.R.B. 345 (N.L.R.B. 1981)

CONSOLIDATED ALUMINUM CORPORATION 345
Consolidated Aluminum Corporation and Aluminum
Workers International Union, Local No. 215.
Case 26-CA-8269
June 3, 1981
DECISION AND ORDER
On December 4, 1980, Administrative Law
Judge Claude R. Wolfe issued the attached Deci-
sion in this proceeding. Thereafter, the General
Counsel and Respondent filed exceptions and sup-
porting briefs.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,' and conclusions of the Administrative Law
Judge and to adopt his recommended Order.
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, Consolidated
Aluminum Corporation, Jackson, Tennessee, its of-
ficers, agents, successors, and assigns, shall take the
action set forth in the said recommended Order.
I Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to
overrule an administrative law judge's resolutions with respect to credi-
bility unless the clear preponderance of all of the relevant evidence con-
vinces us that the resolutions are incorrect. Standard Dry Wall Products,
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir 1951). We have
carefully examined the record and find no basis for reversing his findings.
DECISION
STATEMENT OF THE CASE
CLAUDE R. WOLFE, Administrative Law Judge: This
case' was heard before me at Jackson, Tennessee, on
June 19, 1980,2 pursuant to charges timely filed and
complaint duly issued. The complaint alleges a threat of
legal action for filing charges with the Board and a
threat of reprisals for failure to confer with Respondent
prior to filing grievances or unfair labor practice
charges, both in violation of Section 8(a)(1) of the Act.
The General Counsel, on July 29, 1980, filed a motion
to amend the complaint and reopen the record. Thereaf-
ter, on August 21 and 25, respectively, Respondent and
the General Counsel entered into a stipulation of facts as
to the new evidence to be considered, and waived the
filing of any amended charge, the introduction of any
other evidence, and reopening of the hearing.
This case, originally consolidated with Case 26-CA-8284 for hearing,
was severed therefrom by agreement of the parties. The formal docu-
ments in Case 26-CA-8284 bound in this record are therefore irrelevant
and to be ignored.
a All dates are 1980 unless otherwise indicated.
256 NLRB No. 53
The General Counsel's motion to amend the complaint
to allege violations of Section 8(a)(1), (3), and (4) by a
refusal to pay Dalton Hawkins pursuant to contractual
provision for wages lost through his absence from work
while appearing as a witness in this proceeding on June
19, 1980, was granted and the stipulation of facts re-
ceived in evidence on September 15, 1980. The General
Counsel's motion and Respondent's opposition thereto
have been placed in the official exhibits file as Adminis-
trative Law Judge's Exhibits I and 2, respectively.
Upon the entire record,3 including my observation of
the witnesses' demeanor as they testified, and with due
regard for the arguments of the parties, I make the fol-
lowing:
FINDINGS AND CONCLUSIONS
I. JURISDICTION
The complaint alleges, Respondent admits, and I find
that Respondent meets both the Board's $50,000 direct
inflow and $50,000 direct outflow standards for the as-
sertion of jurisdiction.
II. LABOR ORGANIZATION
The Union is now, and has been at all times material
herein, a labor organization within the meaning of Sec-
tion 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Threats by Mario Bognanno
There is a collective-bargaining agreement between
the parties. Dalton Hawkins is the union president and
Joel Benson is its vice president. Both are employees of
Respondent. At the time of the statements alleged in the
complaint, there were grievances and a charge with the
Board pending with regard to an employee named King,
who was subject to seizures, being required to return to
work. This was the second charge filed by the Union
against Respondent. The first was dismissed and the
second withdrawn.
On January 17, Employee Relations Superintendent
Rohret and Hawkins had finished discussing several
grievances when Hawkins remarked, "Bognanno has
bitten off more than he can handle this time," and "I re-
ceived my copy of the NLRB charge last Saturday and I
know you people must have your copy and you haven't
said anything about it, we must really have a case this
time." Rohret responded, "Well, we never respond to
anything unless we have all the facts and we're gathering
the facts." Rohret reported this conversation to Industri-
al Relations Manager Bognanno, and suggested that it
sounded like Hawkins wanted to talk to him.
At about 7:15 a.m. on January 18, Benson called
Rohret and advised him that there was imminent danger
to King and other employees because King, who had re-
turned to work that morning, was subject to seizures.
a Certain errors in the record have been noted and corrected.
_
346 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Bognanno came to Benson about 9 a.m.4 and a conversa-
tion ensued. Benson testified that Bognanno asked what
the imminent danger stuff with King was all about,
which Benson then explained. Bognanno, according to
Benson, said the Company would check it out and get
back to Benson, and then volunteered that the reason
Respondent had not mentioned the Board charges was
that its legal staff was checking to see whether Respond-
ent had any countercharges on Hawkins. Benson says
that he replied that had nothing to do with him, to
which Bognanno said he had been told Benson was in
the driver's seat. Benson's claimed response was a denial
that he was in charge.
Bognanno's version of this conversation is as follows.
He told Benson that Rohret had told him there was some
question as to why Respondent had not replied to the
Board charge. Bognanno explained Respondent's position
that the charge was without merit, the matter would be
resolved in the grievance procedure, the contract cov-
ered the matter, and Respondent was wondering what its
legal recourse was. He asked Benson to deliver that mes-
sage to Hawkins. Benson told him Hawkins was work-
ing, and he left to look again for Hawkins. He denies
saying anything about Benson being in charge.
After talking to Benson, Bognanno found Hawkins.
Hawkins claims that Bognanno told him this was the
second time charges had been filed against him; they
made him look bad; he was tired of Hawkins filing
charges; the next charge might be filed against Hawkins;
and he was warning Hawkins to talk things over with
him before filing charges.
Bognanno's version is that, after advising Hawkins of
the Company's position on the King matter, the two dis-
cussed conflicts Hawkins had with other employees on
work-related matters, and he told Hawkins he was will-
ing to have off-the-record discussions with Hawkins on
grievances before taking formal positions. Bognanno
avers he asked why Hawkins filed a charge on the King
matter when it was in the grievance procedure, received
the answer that it was on attorney's advice, and said no
more about it. Bognanno denies warning Hawkins.
On January 22, Bognanno called Benson aside, asked
what he had said to Benson on January 18, and, after
hearing Benson's version, said that the January 18 con-
versation was off the record.
Conclusions
Considering that Benson and Hawkins were employees
of Respondent at the time they testified and thus not
likely to deliberately fabricate testimony adverse to the
interests of their employer who controlled their work
future, and further considering that both gave detailed
and believable testimony without any apparent embroi-
dery or evasion, I credit their versions of their respective
conversations with Bognanno, who did not appear to me
to be testifying as freely and forthrightly as they, with
the exception that I believe it most likely and therefore
credit Bognanno that he and Hawkins first discussed the
King matter. I also note that Hawkins' January 17 corn-
4 I credit Bognanno that he was looking for Hawkins when he found
Benson.
ments to Rohret, reported to Bognanno, were not likely
to encourage a kindly feeling in Bognanno toward Haw-
kins, and Bognanno's suggestion to Benson on January
22 that their January 18 conversation be off-the-record
suggests some misgivings on his part regarding the pru-
dence of his remarks, as repeated back to him on request
by Benson, and a desire to conceal them from others
which tends to further corroborate Benson's version of
what Bognanno said on January 18.
I conclude and find that Bognanno was irritated by
Hawkins' remarks to Rohret and the filing of two
charges against Respondent which he considered reflect-
ed on him. This is a reasonably probable explanation for
his statement to Benson that Respondent was exploring
the possibility of charges against Hawkins and his warn-
ing to Hawkins of possible charges if Hawkins did not
discuss matters with him before filing charges. These
statements to Benson and Hawkins were reasonably cal-
culated to interfere with, restrain, and coerce employees
in the exercise of their statutory right to file and press
charges with the Board and both statements therefore
violated Section 8(a)(1) of the Act.5
B. The Refusal To Give Witness Pay to Dalton
Hawkins
The parties stipulated the facts are as follows:
1. The following is a clause (art. 18(c)) in a current
collective-bargaining agreement between Respondent
and the Union:
An employee who is called to Jury service or
subpoenaed as a witness in a court of law shall be
excused from work for the days on which he serves
and he shall receive for each day of Jury service,
on which he otherwise would have worked, the dif-
ference between eight (8) times his straight-time
base hourly rate, exclusive of shift differential, and
the payment he receives for Jury service. The em-
ployee will present proof of service and of the total
amount of money received therefrom. Employees
called for Jury service or subpoenaed as a witness
in a court of law shall promptly notify the Person-
nel Department of such call.
2. On or about June 30, 1980, Dalton Hawkins, who
testified in this case pursuant to subpena, requested from
Respondent witness fees, pursuant to article 18(c), for ap-
pearing in this proceeding.
3. The request of Dalton Hawkins was in accord with
procedures required by article 18(c).
4. The request of Dalton Hawkins was denied by Re-
spondent.
The General Counsel contends that the refusal to give
Hawkins witness pay is the fruition of Bognanno's state-
ments found hereinabove to be unlawful threats, and was
(1) "designed to punish and discourage resort to Board
procedures" in violation of Section 8(a)(1) and (4) of the
Act, and (2) "punishment for Hawkins' union activities"
in violation of Section 8(a)(1) and (3).
I am persuaded the threats were directed at filing charges, not griev-
ances.
CONSOLIDATED ALUMINUM CORPORATION 347
Respondent answers that there is no showing of any
discriminatory motive for not paying Hawkins, and that
"a Board proceeding, or any other Federal or State ad-
ministrative hearing," is not a "court of law" which ac-
tuates the witness pay clause of the contract.
I do not agree with the General Counsel that Bognan-
no's unlawful threats are proof of unlawful motivation in
denying Hawkins his regular pay for time lost while ap-
pearing as a witness for the General Counsel and against
Respondent. Although Bognanno's statements betray an
extremely hostile attitude toward Hawkins' conduct in
filing charges, I am not persuaded that, without more, a
tenable inference can or must be drawn that Bognanno's
hostility toward this activity ripened into an intent to de-
prive Hawkins of pay because he testified adversely to
Respondent and thence an actual discriminatory depriva-
tion of the pay. In Electronic Research II,6 the Board
found a violation of Section 8(a)(4) and (1) in the denial
of a perfect attendance award to an employee who was
absent from work in obedience to a Board subpena,
while granting the same award to an employee appearing
at the same Board hearing at the respondent's request.
Nevertheless, the Board found no violation of the Act by
the respondent's failure to pay regular wages for time
lost by employees who attended the hearing pursuant to
Board subpena, even though the respondent paid regular
wages to the employees it caused to be present at the
hearing on its behalf. It is apparent that the Board in
Electronic Research II did not draw an inference of un-
lawful discrimination or transferred motivation in the
failure to pay wages from the finding of unlawful dis-
crimination in the denial of the perfect attendance award.
The Board's general approach to the type of situation
now before me vis-a-vis pay by an employer for time lost
was stated in Electronic Research 11, 190 NLRB at 778, as
follows:
The earlier unfair labor practice proceeding was
an adversary one in which each side subpenaed or
called its own witnesses and compensated them for
their time. In these circumstances to order Re-
spondent to pay the employees for time lost from
work in testifying against it is to require a litigant in
effect to subsidize its opponent. In our view, Sec-
tion 8(a)(4) was never intended by Congress to
impose such burden upon respondent employer.
Inasmuch as the parties stipulated that Hawkins testi-
fied pursuant to subpena, I must conclude that Hawkins
was compensated by the General Counsel to the extent
of the statutorily required amount. Whether or not he re-
ceived additional compensation from the Union is not in
the record.
The Board further explained its Electronic Research II
decision in General Electric Company7 as follows:
The Board in reaching opposite results in the two
different situations presented in Electronic Research
II was not drawing a distinction based on any inci-
dental monetary or other disadvantage which might
6 Electronic Research Co., 190 NLRB 778 (1971).
7230 NLRB 683, 684-685 (1977)
have resulted. Rather, it was distinguishing between
those situations where the employer's actions are di-
rected at the employment relationship, as in the per-
fect attendance award matter therein, and those
where they are note [sic], as in the witness fee situa-
tion. In the latter instance, the obligation to pay
witness fees is imposed by statute or fiat and not by
the employment relationship. Whether summoned
by an employer, a union, an individual party, or the
General Counsel, the witnesses must be compensat-
ed by "the party at whose instance the witnesses
appear," and the minimum amount of such compen-
sation is fixed, as here, by the agency under its ap-
plicable rule....
The facts in General Electric, with respect to the refus-
al to pay regular wages to employee Borbely who ap-
peared as a witness for the General Counsel pursuant to
Board subpena in an unfair labor practice proceeding
where General Electric was the respondent, follow. Bor-
bely received the statutory witness fee, but General
Electric refused to pay him the difference between the
witness fee and his regular wage for the day he was
absent from work to attend the hearing. General Electric
did however pay its employee witness Bartko 11 hours'
wages. With respect to Borbely it took the position he
was not entitled to payment of the difference under the
terms of a provision of the collective-bargaining agree-
ment in effect, which is quite similar to article 18(c) in
the instant case,8 because his appearance at an adminis-
trative hearing was not at a court proceeding.
The Board, in its General Electric decision, found it un-
necessary to pass on the contention that an administra-
tive hearing is not a court proceeding, but dismissed the
complaint, explaining its rationale as follows, in pertinent
part:
.. In short, no party stands as the guarantor for
equal payment to all witnesses summoned by all
parties to the proceeding. A fortiori, an employer, as
here,-or a union in a case not involving an em-
ployer as a party-is not as a general proposition
obligated to pay opposition witnesses anything in
connection with witness fees. Consequently, we
conclude that an employer is not discriminating
with respect to the employment relationship by not
paying an employee called as a witness against it
the difference between what such witness would
have earned had he worked and what the party
calling him as a witness is willing to pay. Nor do
we believe that the failure of the employer to pay
General Electric's contract with the union read in pertinent part:
Jury Duty
1. When an hourly-paid employee is called for service as a juror,
he will be paid the difference between the fee he receives for such
service and the amount of straightime earnings lost by him by reason
of such service, up to a limit of 8 hours per day
3. Similar makeup pay . will be granted to an employee who
loses time from work because of his appearance in court pursuant to
proper subpoena .
._
348 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
such difference to employees testifying against it is
otherwise per se discriminatory .... As we have
previously stated, to hold that an employer must
pay this difference would result in making employer
liability dependent on what others are willing to
pay, something we are unwilling to do.
On the other hand, the situation is quite different
where, apart from the matter of payment of witness
fees and/or the amount thereof, the witnesses called
by an opposing party are additionally denied the
benefit of a term or condition of employment with
which witnesses called by the employer neverthe-
less receive .... Clearly, in such a situation the
employer is penalizing those employees who are
summoned to testify by the other side concerning a
term and condition of their employment. Conse-
quently, the prospect of being treated in such a dis-
advantageous manner concerning their employment
relationship makes employees reluctant to testify
against their employer, or for an opposing party,
thereby obstructing the Board's processes irrespec-
tive of proof of a discriminatory motive or union
animus.
True, in the witness fee situation the disparity in
fees created by one party paying its witnesses more
than another party is willing, or allowed, to com-
pensate its own, does result in the monetary disad-
vantage of the latter. But that is not the fault of the
higher paying party or within its immediate control.
Nor is such a disparity due to actions aimed at the
employment relationship. Consequently, whatever
similarities superficially appear to exist between the
two different situations, result, as we have found,
from different obligations, considerations, and mo-
tives, and hence in reality are unrelated in applica-
tion and meaning.
Thus, in sum, we find that there is nothing unlawful
in an employer using the wages of witnesses as the
measure of his compensating them for witness fees
while not also paying employees called by other parties
the difference between witness fees they receive from
such parties and what they would have been paid as
wages for the time they testified, since the employer's
actions are not directed at the employment relation-
ship. However, if an employer distinguishes between
its employees in their employment relationship on
the basis of whether they were summoned as wit-
nesses by it or by the opposition, it acts unlawfully.
Accordingly, for all reasons discussed above, we
conclude that the principle established by the Board
in Electronic Research HI with respect to the pay-
ment of witness fees is dispositive of the issue in the
instant case. We therefore find Respondent has not
violated the Act and shall dismiss the complaint
herein. [Emphasis supplied.]
Conclusions
Viewing the facts herein in the light of General Elec-
tric and Electronic Research 11, I conclude that Respond-
" Cf. Golden Arrow Dairy, 194 NLRB 474, 478-479 (1971), for an appli-
cation of Electronic Research II to the payment of election observers.
ent's refusal to pay Hawkins the difference between the
fee received from the party at whose instance he ap-
peared as a witness and the wages he would have re-
ceived had he worked rather than testifying was not an
"action aimed at the employment relationship." More-
over, Respondent called no employee witnesses and
Hawkins was not "denied the benefit of a term or condi-
tion of employment . . . which witnesses called by the
employer nevertheless received."1 0 Accordingly, I find
that the allegation that Dalton Hawkins was unlawfully
refused payment for wages lost through his appearance
as a witness for the General Counsel before me must be
dismissed.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
and in operations affecting commerce within the meaning
of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. By threatening employees with reprisals for filing
unfair labor practice charges without first consulting
with Respondent, Respondent has violated Section
8(a)(l) of the Act.
4. The foregoing unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
5. Respondent has not committed any other unfair
labor practices alleged in the amended complaint.
Pursuant to Section 10(c) of the Act, I hereby issue
the following recommended:
ORDER' 2
The Respondent, Consolidated Aluminum Corpora-
tion, Jackson, Tennessee, its officers, agents, successors,
and assigns, shall:
1. Cease and desist from:
(a) Threatening employees with reprisals because they
file unfair labor practice charges without prior consulta-
tion with Respondent.
Io Cf. Ledford Construction Company. Inc., 251 NLRB 1461 (1980), vio-
lations of Sec. 8(a)(1), (3), and (4) found where employees were suspend-
ed for I day because they testified on behalf of the union at a Board
hearing; Western Clinical Laboratory. Inc., 225 NLRB 725 (1976), Sec.
8(3), (4), and (1) violated where employee witness, subpenaed by the
General Counsel at Board hearing, was forced to use accrued vacation
time when he wanted to take leave without pay; and the finding of
8(a)(4) and (1) violations in Electronic Research Co., 187 NLRB 733
(1971), and Electronic Research II consisting of the employer refusing a
perfect attendance award to the General Counsel's witnesses while grant-
ing such awards to its own employee witnesses.
II Like the Board in General Electric, I find it unnecessary to pass on
Respondent's contention that its refusal to pay Hawkins is valid under
art 18(c) of the collective-bargaining agreement Whether or not Re-
spondent's interpretation of art. 18(c) is valid is, in my view, an issue that
might more appropriately be resolved through the contractual grievance
procedure.
12 In the event no exceptions are filed as provided by Sec. 102.46 of
Rules and Regulations of the National Labor Relations Board, the find-
ings, conclusions, and recommended Order herein shall, as provided in
Sec. 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes.
---
CONSOLIDATED ALUMINUM CORPORATION 349
(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 designed to ef-
fectuate the purposes of the Act:
(a) Post at its Jackson, Tennessee, facility copies of the
attached notice marked "Appendix." s3 Copies of said
notice, on forms provided by the Regional Director for
Region 26, after being duly signed by Respondent's rep-
resentative, shall be posted by Respondent immediately
upon receipt thereof, and be maintained by it for 60 con-
secutive 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 cov-
ered by any other material.
13 In the event this Order is enforced by a Judgment of the United
States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
(b) Notify the Regional Director for Region 26, in
writing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT threaten you with reprisals be-
cause you file unfair labor practice charges without
prior consultation with us.
WE WILL NOT in any like or related manner in-
terfere with, restrain, or coerce our employees in
the exercise of the rights guaranteed them by Sec-
tion 7 of the Act.
CONSOLIDATED ALUMINUM CORPORATION