Keystone Consolidated Industries, Inc.

National Labor Relations Board - Board Decisions

May 16, 1975

217 N.L.R.B. 995 (N.L.R.B. 1975)

KEYSTONE STEEL & WIRE -
Keystone Steel & Wire, Division of Keystone Con-
solidated Industries, Inc. and Independent Steel
Workers' Alliance. Case 38-CA-1914
May 16, 1975
DECISION AND ORDER
By MEMBERS JENKINS, KENNEDY, AND PENELLO
On May 31, 1974, Administrative Law Judge Paul E.
Weil issued the attached Decision in this proceeding.
Thereafter, Respondent filed exceptions and a brief in
support thereof, and the General Counsel filed a brief
in support of the Administrative Law Judge's Decision.
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
briefs' and has decided to affirm the rulings, findings,
and conclusions2 of the Administrative Law Judge
and to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor Re-
lations Act, as amended, the National Labor Relations
Board adopts as its Order the recommended Order of
the Administrative Law Judge and hereby orders that
Respondent, Keystone Steel & Wire, Division of Key-
stone Consolidated Industries, Inc., Bartonville, Il-
linois, its officers, agents, successors, and assigns, shall
take the action set forth in the said recommended Or-
der.
I The parties were given the opportunity to file statements , which they
did, regarding the impact of NL.R.B. v J Weingarten , Inc., 420 U S. 251
(1975), and International Ladies' Garment Workers Union , Upper South
Department, AFL-CIO v. Quality Manufacturing Company, 420 U.S 276
(1975), which issued subsequent to the Administrative Law Judge 's Deci-
sion
2 See NL R B v Weingarten , Inc, and Ladies ' Garment Workers v.
Quality Mfg. Co., supra
DECISION
STATEMENT OF THE CASE
PAUL E. WEIL, Administrative Law Judge: On February
5,1 Independent Steel Workers' Alliance, hereinafter called
the Union, filed with the Officer-in-Charge for Subregion 38
of the National Labor Relations Board, hereinafter called the
Board, a charge alleging that Keystone Steel &_Wire, Divi-
995
Sion of Keystone Consolidated Industries, Inc.,, hereinafter
called Respondent, violated Section 8(a)(1) and (4) of the
National Labor Relations Act, as amended, by filing written
"infractions" against two employees and by refusing their
request to have union representation in a confrontation with
their supervisors at which time disciplinary actions were lev-
eled against them. On March 15 the said Officer-in-Charge
on behalf of the Board's General Counsel filed a complaint
and notice of hearing. The complaint alleges that Respondent
violated Section 8(a)(1) of the Act by conducting interviews
which its employees reasonably believed might put their jobs
in jeopardy without granting the employees' request for the
presence of a union representative. By its duly filed answer
Respondent denied the commission of any unfair labor prac-
tice and as an affirmative defense suggested that the dispute
should be deferred to arbitration pursuant to the terms of the
collective-bargaining agreement between Respondent and the
Union. On the issues thus joined, the matter came on for
hearing before me at Peoria, Illinois. All parties were present
and represented by counsel and had an opportunity to call
and examine witnesses and represent relevant and material
evidence. All parties waived oral argument after the close of
the hearing. Briefs have been received from the General
Counsel, the Union, and Respondent.
Upon the entire record in this matter and in contemplation
of the briefs, I make the following:
FINDINGS OF FACT
I JURISDICTION
Respondent, a corporation, is engaged at Bartonville, 11-
limos, in the business of manufacturing steel, wire and wire
products of which products valued in excess of $50,000 are
annually shipped from its Bartonville, Illinois, plant to
points located outside the State of Illinois. Respondent is
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
II THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of
Section 2(5) of the Act.
III THE UNFAIR LABOR PRACTICES
A. Background
At all times relevant hereto Respondent and the Union
have had a collective-bargaining agreement in effect covering
production and maintenance employees. Respondent's plant
has approximately 2,300 employees divided into 59 or 60
departments. The incidents involved in the instant case took
place in the wire mill millwright department. This depart-
ment has a plant committee consisting of three employees,
Louis Tomhanovich, Phillip Molleck and Thomas Singer.
Molleck and Singer work under the immediate supervision of
i All dates herein are in the year 1974 unless otherwise specified
217 NLRB No. 167
996 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Foreman Robert Bennett, whose immediate supervisor is Ar-
-thur Ball.
It appears that the grievance machinery at Respondent's
plant is actively used. It was estimated at the hearing that
between 500 and 600 grievances were filed annually in the
plant. Molleck testified that he participated in over 100 griev-
ance meetings during the 8 months preceding the hearing,
during which time he was a union committeeman.
On Friday, January 25, Molleck and Singer worked over-
time repairing a machine from 3 p.m. until 10:50 p in.
On the following day a foreman named Foster complained
to Foreman Bennett about the work done by the two men. On
Monday, January 28, Foster drafted a written memorandum
to Bennett setting forth his complaints which Bennett then
passed up to his supervisor, Ball. On Tuesday, Ball read the
report and concluded that the men should have a written
warning concerning the alleged infraction of the Employer's
working rules. On that day he took the matter up with his
superintendent of maintenance, West, and talked it over with
him. West agreed that the men should be given a written
warning. According to Ball's testimony:
[W]e talked it over and both agreed that they should be
brought in and talked to before given the written warn-
ing and - we felt that they should receive the written
warning, it would be given to them. If we felt that they
come up with reasonable evidence that they done their
job and did not take too long to get these parts to the
machine shop, then we would tear it up, the written
warning.
The following morning, January 30, Molleck and Singer were
sent by Foreman Abbey to Ball's office where they were met
by Foreman Bennett. It appears that they were accompanied
by the third member of the departmental committee, Tom-
lianovich. Bennett told Tomlianovich that this was not a
committee meeting and that the men were to talk to Ball
individually. Singer asked Bennett to call Jack Slater, the
Union's president or Attorney Koos and Bennett declined to
do so.' Singer suggested to Molleck that he should not go in
by himself and that he did not have to but Bennett told him
to go into Ball's office and Singer did so. Molleck went to the
locker room to wait his turn. Inside Ball's office Ball asked
Singer to account for his time on Friday, January 25, between
6:30 p.m. and 9:30 p.m. Singer asked why he wanted to
know and Ball told him to answer the question. Singer stated,
"no matter what I tell you, you told us at previous meetings
you were going to take the foreman's, word for it." Ball again
told Singer he wanted to know his answer. According to
Singer's testimony he then asked to have a union representa-
tive present during the interview and Ball told him he just
wanted to talk to him. Singer then gave his side of the story
and without further consultation Ball then handed him a
written record of infraction of general regulations governing
employee conduct, which is known in the plant simply as an
infraction, stating the nature of the infraction "unsatisfactory
workmanship or work methods." In place of an explanation
of the infraction the following appears:
I Bennett did not deny that Singer asked for the presence of Slater or Koos
but testified that he did not recall. I credit Singer's and Molleck's testimony.
This is to advise you that your work performance is
unsatisfactory. You will be expected to start improve-
ment immediately. Failure to comply will warrant fur-
ther action on our part in line with 18.4 of the contract.
Singer asked how many days he got off and Ball told him
"none at this time." Singer left the office.
Bennett then ushered Molleck into the office Molleck
asked what Ball wanted but Bennett refused to tell him.
Molleck said he had not decided whether or not he wanted
to go in the office and Bennett advised him to go in for his
own good. On entering Ball's office substantially the same
interview took place with Ball asking for an explanation of
Molleck's actions between 6:30 and 9:30 and then Ball hand-
ing Molleck the written infraction.
B. Discussion and Conclusions
First, the Respondent contends that under the Collyer
rule3 this matter should be taken to arbitration and the
Board should defer consideration until the arbitration has
been completed. The contract is in evidence and I find no
provision in the contract dealing in any way with the issue of
union representation of an employee called into the foreman's
office for disciplinary action. The record reveals that at no
time in the experience of any of the witnesses to this proceed-
ing has any employee under such circumstances sought repre-
sentation by the Union; accordingly there is no "past prac-
tice" to bring the issue within the contract in that guise. The
contract requires that the arbitrator should have no authority
to amend, delete, or add to the provisions of the agreement.
Accordingly it does not appear that the issue comes within
the ambit of the arbitration provision of the contract. The
General Counsel contends in addition that the record reveals
that the average case that goes to arbitration takes 2 or 3 years
to be resolved and that accordingly under the Collyer rule a
quick resolution, one of the factors which the Board has
considered in deferring to the arbitration procedure, could
not be expected.
I find that this is not a case in which the Board should defer
to the parties' contractual grievance and arbitration proce-
dures.
With regard to the issue that remains, the Board's rule, set
down in many cases, is that it is a violation of employees'
rights to engage in concerted activity to deny an employee's
request for union representation at an interview which the
employee reasonably believes might put his job in
jeopardy'
The Board commonly distinguishes situations where an
employer calls an employee into the office for investigatory
purposes even though such investigation may lead the em-
ployer to a decision to discipline the employee under investi-
gation. As the Board pointed out in Texaco, Inc., Houston
Producing Division, 168 NLRB 361 (1967), the employees
seek by selecting a union to use the union as an intermediary
3 Collyer Insulated Wire, A Gulf and Western Systems Co., 192 NLRB 837
(1971).
'Mobil Oil Corporation, 196 NLRB 1052 (1972); Quality Manufactur-
ing Company, 195 NLRB 197 (1972); J. Weingarten, Inc, 202 NLRB 446
(1973). Respondent points out that each of these cases has been reversed
by the courts. I am however bound by Board precedent unless and until the
Board changes its rule or the U.S. Supreme Court has spoken
KEYSTONE STEEL & WIRE
when the employer wishes to deal with the employee concern-
ing matters affecting his terms and conditions of employ-
ment. The refusal to deal with the umon transgresses the
respondent's statutory obligation to bargain with the union
concerning the terms and conditions of employment of the
employees and violates Section 8(a)(1) and (5) of the Act.
I reject Respondent's position that since each of the men
disciplined were themselves union agents and would nor-
mally be the representatives of the union if an employee were
to seek representation, their requests were satisfied, The argu-
ment avails nothing since the thrust of the provision is, as the
General Counsel points out, to afford the employees' con-
certed protection when it is sought. To put it in its simplest
teens, where the employee has reason to fear disciplinary
action he has a right to a witness as much as does the em-
ployer.
Respondent also contends that this was an investigatory
meeting and that neither Molleck nor Singer had any basis for
apprehension, which the Board seems to have said is a
prerequisite to a finding of a violation. This position is fairly
well destroyed by the facts on the record. Ball testified that
the infraction was typed up the day before the interview and
he did not deny the implication in the testimony that he had
theretofore refused to consider the story presented by the
Union when it differed from that presented by his supervisor.
Indeed at each of the interviews after listening to the em-
ployee's story, Ball without consultation with Bennett simply
handed each employee his infraction and dismissed him to go
back to work. Obviously this was more than an investigatory
meeting. Ball did not see fit to write the infraction without
consulting with the supervisor below and that above him in
the managerial hierarchy, yet he distributed the disciplinary
notice without consultation after the meeting with each em-
ployee. I find that this was a meeting engaged in for the
purpose of administering discipline and not an investigatory
meeting.
Nor do I go along with Respondent's argument that the
employees had no reasonable basis for fear when they entered
the office. Singer and Molleck testified without contradiction
that they had never been called in to Ball's office to discuss
their work. On every occasion that they had been called in
they were a part of a group of committeemen on a grievance
matter. In this instance the supervisor who conducted them
to Ball's presence refused or was unable to tell them why they
were being called in and they were required to meet with Ball
alone rather than together. Add this to their testimony which
is not rebutted that Bennett, when he talked to them, ap-
peared to be somewhat flustered, and I believe it is clear that
they knew that they were not being called in simply to talk
about the work or about any other union matter. That their
apprehension was justified is clear since each of them walked
out with a written warning. These warnings do not in them-
selves convey any sanctions to the employees. However, un-
der the terms of the contractual provision under which they
were issued, an employee receiving two such warnings within
a 6-month period is subject to discharge and it is clear that
all the participants in this procedure were well aware of that
fact at all times.
I find, pursuant to the discussion above, that by refusing
Singer's and Molleck's request for union representation, Re-
spondent violated Section 8(a)(1) of the Act.
997
Upon the foregoing findings of fact and the entire record
in the case, I make the following:
CONCLUSIONS OF LAW
1. Respondent is an employer within the meaning of Sec-
tion 2(2) of the Act and is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3 By denying the requests of Thomas L. Singer and Phil
Molleck for union representation at an interview conducted
by Respondent under circumstances from which said em-
ployees could reasonably conclude that their jobs were in
jeopardy, Respondent interfered with, coerced, and re-
strained employees in the exercise of rights guaranteed by
Section 7 of the Act and thereby engaged in and is engaging
in unfair labor practices proscribed by Section 8(a)(1) of the
Act.
4. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent engaged in unfair labor
practices I shall recommend that it be required to cease and
desist therefrom and take certain affirmative action designed
and found necessary to effectuate the policies of the Act.
Upon the basis of the foregoing findings of fact, conclu-
sions of law, and the entire record in this proceeding, and
pursuant to Section 10(c) of the Act, I hereby issue the fol-
lowing recommended:
ORDERS
Respondent, Keystone Steel & Wire, Division of Keystone
Consolidated Industries, Inc., Bartonville, Illinois, its offi-
cers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Requiring any employee to take part in an interview or
meeting without union representation, if such representation
has been requested by the employees and if the employee has
reasonable grounds to believe that the matters to be discussed
may result in his being subjected to disciplinary action.
(b) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of rights guaran-
teed to them by Section 7 of the Act.
2. Take the following affirmative action designed and
found necessary to effectuate the policies of the Act:
(a) Post at its place of business in Bartonville, Illinois,
copies of the attached notice marked "Appendix."6 Copies
5 In the event no exceptions are filed as provided by Sec. 102 46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
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
6 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
(Continued)
998 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of said notice, on forms provided by the Officer-in-Charge for
Subregion 38 of the National Labor Relations Board, after
being duly signed by Respondent's authorized representative,
shall be posted by it immediately upon receipt thereof, and
be maintained by it for 60 consecutive days thereafter, in
conspicuous places, including all places where notices to em-
ployees are customarily posted. Reasonable steps shall be
taken by Respondent to insure that said notices are not al-
tered, defaced, or covered by any other material.
(b) Notify the aforesaid Officer-in-Charge, in writing,
within 20 days from the date of this Order, what steps the
Respondent has taken to comply herewith.
to a Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had a chance to give evi-
dence, the National Labor Relations Board has found that we
violated the National Labor Relations Act and has ordered
us to post this notice and we intend to carry out the Order
of the Board and-abide by the following:
The Act gives all employees these rights:
To engage in self-organization
To form, join, or help unions
To bargain collectively through representatives of
their choosing
To act together for collective bargaining or other
mutual aid or protection
To refrain from any or all of these things.
WE WILL NOT do anything that interferes with, re-
strains, or coerces employees with respect to these rights.
WE WILL NOT require that any employee take part in
an interview or meeting without union representation if
the employee requests such representation and if the
employee has reasonable grounds to believe that the mat-
ters to be discussed at such interview or meeting may
result in his being subject to disciplinary action.
KEYSTONE STEEL & WIRE, DIVISION OF
KEYSTONE CONSOLIDATED INDUSTRIES,
INC