Interlake, Inc.

National Labor Relations Board - Board Decisions

Dec 9, 1980

253 N.L.R.B. 638 (N.L.R.B. 1980)

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