Keystone-Sencca Wire Cloth Co.

National Labor Relations Board - Board Decisions

Aug 20, 1979

244 N.L.R.B. 398 (N.L.R.B. 1979)

I)ECISIONS OF NATIONAl. LABOR RELATIONS BOARD
Keystone-Seneca Wire Cloth Co. and Charles F.
Leese, Jr. Case 4-CA-9318
August 20, 1979
DECISION AND ORDER
BY MEMBERS JENKINS, MURPHY, AND TRUESDALE
On March 7, 1979, Administrative Law Judge Mi-
chael O. Miller issued the attached Decision in this
proceeding. Thereafter, the Charging Party filed ex-
ceptions and a supporting brief, and Respondent filed
cross-exceptions and a brief in answer to the Charg-
ing Party's exceptions and in support of its cross-ex-
ceptions.
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, findings2 and
conclusions3 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 Rela-
tions Board adopts as its Order the recommended Or-
der of the Administrative Law Judge and hereby or-
ders that the complaint herein be, and it hereby is,
dismissed in its entirety.
DECISION
STATEMENT OF THE CASE
MICHAEL O. MILLER, Administrative Law Judge: This
case was heard in York, Pennsylvania. on December 18.
The Charging Party's request for oral argument is hereby denied inas-
much as the record and the briefs adequately state the positions of the par-
ties.
2 The Charging Party and 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 credibility unless the clear preponderance of all of the relevant evidence
convinces 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.
We find it unnecessary to pass on the Administrative Law Judge's finding
that there is no probative evidence to establish that Plant Manager Kohr was
aware of employee Leese's protests relating to the purported unsafe operat-
ing condition of the press on which Leese was assigned to work at the time
Kohr made the decision to discharge Leese. During the meeting between
Leese and Kohr, Leese said nothing about the safety protest. Rather, he only
expressed his desire to be transferred from the punch press back to the
galvanizing line. When Kohr declined to make the transfer. Leese. still with-
out mentioning anything concerning safety, refused to work. Thus. even if
Kohr was aware of the earlier safety protest, he was justified in his belief that
Leese was not refusing to work because of any concern for safety, but rather
was seeking to force a transfer. In these circumstances, we find that Respon-
dent did not act unlawfully in discharging Leese.
1978. upon a charge and amended charge. filed on April 4,
1978, and May 30. 1978. respectively, and a complaint is-
sued by the Regional Director for Region 4 of the National
Labor Relations Board, herein the Board, on July 27. 1978.
At issue was whether Charles F. Leese. Jr.. an individual,
was discharged in violation of Section 8(a)( 1) of the Na-
tional Labor Relations Act. herein the Act. because he en-
gaged in the protected. concerted activity of protesting un-
safe working conditions. The answer, timely filed by
Keystone-Seneca Wire Cloth Co.. herein Respondent. de-
nied the substantive allegations of the complaint. Respon-
dent further contended that the complaint's allegations
were time-barred by the Act's statutory limitations period.
All parties were given full opportunity to participate, to
introduce relevant evidence, to examine and to cross-exam-
ine witnesses, and to argue orally. Briefs, which have been
carefully considered, were filed by the General Counsel and
Respondent.
Upon the entire record, including my observation of the
witnesses and their demeanor. I make the following:
FINDIN(;S ()I FA( I
I. RSPONDENI'S BUSINESS
Respondent is a Pennsylvania corporation engaged in the
manufacture and sale of wire mesh products in Hanover,
Pennsylvania. The complaint alleges, Respondent admits,
and I find and conclude that Respondent is, and has been at
all times material herein, an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of the Act.
Respondent's employees are not represented by any col-
lective-bargaining representative, there is no collective-bar-
gaining agreement. and there is no union activity involved
in the instant case.
n. I l 10lth) ISSUE
Respondent contends that the complaint herein is barred
by Section I0(b) of the Act, which provides in pertinent
part:
[T]hat no complaint shall issue based upon any unfair
labor practices occurring more than six months prior
to the filing of the charge with the Board ....
In support of this contention. Respondent argues that the
original charge only made reference to a termination based
upon alleged union activity and it was not until May 30.
1978, beyond the 10(b) period, that it was alleged that the
same termination was caused by Leese having engaged in
protected. concerted activity. Respondent contended that
the two allegations were not so closely related that the ini-
tial charge supported the complaint's allegations. Respon-
dent's contention is without merit.
Contrary to Respondent's assertion in brief. the initial
charge did contain the "catch-all" provision. stating:
By these and other acts, the above-named employer
has interfered with, restrained. and coerced employees
in the exercise of the rights guaranteed in Section 7 of
the Act.
244 NLRB No. 62
398
K I YS I O)Nt -S N t(A VW IRI () I 11i CO.
'his language is sullicient to arrant the inclusion of alls
8(at(l) allegation in the cornpltlint. See (i'ew Plhim. Scl
( orp.. 183 NRB 968. 974 (1970). ald cases cited therein.
Moreover. as the Board stated in Iugentl andl I com i'at'l al -
altusc, (o-parlters (1 //I/ a Sunlr'ow ,tmo{lli r N;usinl' h111c.
199 NLRB I 120. 1121 (1972):
.. an aended charge. although iled more than 6
months alter the occurrence of an unltlir labor prac-
ice,. will he timnely it' it relates to a unfair labor pr;lc-
tice inherent in or connected Aith the original charge.
In that case an original charge. alleging violations of' Sec-
tion 8(a)(I) and (5) by certain conduct on a iven date atnd
containing at "catch-all" provision. was held sufficient to
support a complaint allegation that the employer's conduct
on that date also violated Section 8(a)(2) of the Act. The
Board further pointed out that even if it deemed the charge
not to be broad enough to support the 8(a)(2) violation, it
would still find the employer's conduct viola tie of Section
8(a)( I).
In the instant case, the original charge alleged that l.cese'
termination violated Section 8(a)(1); that was not chainged
by the amended charge, and that w;as the allegation as it
appeared in the complaint. Onl the allegation of motiv;a-
tion was amended. Clearly,. the allegation as pleaded in tle
complaint was inherent in. or connected with. the original
charge.'
Ill. I[tE AIA,.l(it) I'N IAIR IABOR It I(
Charles F. I.eese, Jr.. the Charging Party, began working
for Respondent in November 1974. Shortly after he began.
he bid on and was assigned to the galvanizing line. where
coatings or paint is applied to wire. This job entailed some
regular. but not continuous. heavy lilting. In August 1977:
Leese sustained an injury to his hack which temporaril>
prevented him from working.
On October 10 Leese' doctor released him to return to
work as of October 12. but specified that he was not to do
any manual lifting of over 50 pounds without assistance.
Leese turned the doctor's note into Respondent's office and
asked to be put back on the galvanizing line. He was. in-
stead, given a temporary assignment in the punch press de-
partment. tHe was assigned the "rat trap" press, which, as
its name implied, is used to cut wire for animal traps. The
work in the punch press department is considered the light-
est work in the plant: it is performed from a seated position
and involves much lighter lifting than the galvanizing line.
The "rat trap" press is operated by simultaneously press-
ing two buttons, causing the die or blade to fall and cut
wire which is automatically fed through the press. The two-
button system is a safety measure intended to prevent an
operator from having a hand near the blade as it descends.
Additionally. all press operators have been directed to nev-
er place their hands into the area of the blade.
I The Lynn Pacific Corporaion 187 Nt.RB 589. 598 1970). The charge, of
course, is not a pleading. "It merely sets in motion the machinery of an
inquiry to determine whether a complaint shall issue." Kanw, Milling (Co
N.L.R.B., 185 F.2d 413. 415 (t10th Cr. 1950); & MaIthSine ('olpani.
Inc.. 162 NLRB 83. 92 (19661
2 All dales hereinafter are 1977. unless otherwise specified
I.eeCe IcttifiCd t at. ccasion, 'h. hcIe , Ittld press the
buttonis. the blatC woutld c~cle twice. lie helie.ed that this
a.is 1 detlct rendering the machine danl UgerouI to operate.'
On his third da 5 back at s.ork. L.ese cuiplained to his
foreman, (len linger. about this charalctlerisic of his ma-
chline. Linger promised t ae someoneIC take a look at it.
but sentl no one.4 l)uring tle ¢eck of October 17 I.eese
againll complained to !inger, requesting that L tiget have
s(onileoll check his press oer "becaiuse sonleboid's oingl to
get hurt on it, and . . I don't l anlt to get hurt al;in."
tngcr bro-ught .t mechanic in ho spent an hour s,orking
on the press. I lo eser. accordilg to I .cee. te problem. as
he percei'sed it. \5as lnot co-rrected.
D)uring this samlie period of ime .ese .as esxperiencing
somlle hack pain rom sitting .it thile pilllt IC press a;nd (doing
the turing and tisting required of the 1oh. t reported
this to I nger and told I:nger hliit he \tiuld he better off
back at Ihe g;lla;nili n iig slc hcrl- he sril n hbe salking
rather tlhan sitting.
()n ()ctober 4 I.eese went back t his phsician who
%rote Ilie t;lo ing note:
Mr. Ieese still has back problems requi'iig ontin-
ued entfoiceimnt o pre ious Imitiions Of liltinsg.
Ilc Ifels hlie would do better hack on hi ,s old m;lchine
with assistance in the hea. lifting.
I.eese gave this note to l.arr IFreet. department fltienlan.
and asked that he he placed back on the gallatni/er. hIree
told him that Mr. Kohr. the plant manager. was not going
to put him back in that department.'
On October 2h. after his press double cs cled flr the third
ltime (and hile he Aas pulting a hand into the machine. he
claimed). I.eese went to linger. Ieese told nger that he
had nearlI lost his hand a nd w ould not continue to run the
machine until it was fixed. linger told him to wait. Some-
time la;ter. reet camle and took l.eese to Kohr's office.
There. accordilg t I I.eese' teslntimon on direct examina;tion.
Kohr told hi I that he ould he perniaienl tl laid iffl be-
cause he had been hurt on the job."
As Kohr recalled the events. he became involved when
Freet called him requestilg a meeting because Leese was
refusing to work o(n the punch press. At the meeting of
Iheese. Kohr. and the supervisors. according to Kohr. Kohr
said that he understood that Leese w;as refusing to pertfIrm
his work as it punch press operator. l.eese admitted that
that was correct and told Kohr that because of his hack
injury and the twisting, turning, and bending inolsed in
operating the punch press. he would be better off working
on the galvanizing line. Kohr told Leese that the punch
press was the lightest possible work the) could give him
and. because of his medical restriction, refused to return
i w eperienced punch press .oper.tors eilied Ihlt double csclng o
the hlaie could he cau:lvd h) n operlator pressing the hultons for t, Ing
time
4 inger w sr nlt c;lled ;is a i ullle
t' reet ils ) not called to lestl',
6bn cross-examinillon. t.eese irs t tesitied thatl he told Khr that he
would not sork on the press until It sas fixed Ie subsequtentls ttlied Ih-ll
he did not recall whether he and Kohr dtic ullsted Ile punch press Ilc admil-
led telling Kohr hat he preferred it, go hack Io the gal anuilng line and
heing told hal Respondent wouldd nt ge hilm the .laslst.e lie *ould
require to ork here.
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
him to galvanizing. Leese refused to return to the punch
press. repeating that he wanted to work on the galvanizing
line, with assistance being given him for the lifting required.
Kohr again refused to reassign him or to give him the assist-
ance he would have needed and finally told Leese that he
was permanently laying him off because of' his refusal to
perform his assigned work. Kohr, alone, made the decision
to terminate Leese, and testified that Leese's refusal to work
on his assigned machine was the only reason that he was
terminated. Kohr denied that Leese said anything about
safety problems on the punch press and denied that anyone
else had told him that Leese was refusing to operate the
press because of alleged safety problems.7
Leese contended that during the 2 weeks he had worked
in the punch press department he had discussions with the
other employees therein concerning the safety of the equip-
ment. He testified that these other employees complained
that the "rat trap" press was unsafe, that at least one other
employee was afraid of the machine. and that one employee
had been injured while working on it. Leese's testimony is
not supported by the other employees in that department.
Three of the four employees who worked in the punch press
department testified. One recalled Leese saying he did not
like the "rat trap" press, another testified that Leese com-
plained about something but she did not recall what, and
only the third recalled Leese complaining that his machine
was unsafe. None of them had complained to him about, or
had discussed with him, any safety problems on the presses.
The employee allegedly injured on the "rat trap" press tes-
tified that she had been injured on another machine as a
result of her own negligence.
The General Counsel contended that Leese was engaged
in protected, concerted activity when he refused to work on
the "rat trap" press in protest of its alleged unsafe operating
condition and that he was discharged because of that pro-
test. General Counsel's first contention is well founded. In
protesting what Leese deemed to be the unsafe operation of
the "rat trap" press, he was pursuing a matter of legitimate
concern to employees in addition to himself. Leese was not
the only punch press operator; indeed, other employees op-
erated that same press on other shifts and other employees
would be assigned to operate that press when Leese was
reassigned to his original department as he would have
been upon the elimination of the medical restriction, had he
not been terminated first. In such circumstances, it is not
material that Leese had not secured the agreement of others
to represent them. See Alleluia Cushion Co., Inc., 221
NLRB 999 (1975). As the Board recently stated in Diagnos-
tic Center Hospital Corp. of Texas. 228 NLRB 1215. 1217
(1977):
A correct reading of [Alleluia Cushion] is that activity
will be deemed concerted in nature if it relates to a
matter of common concern and this common concern
Noting Lesse' omission of any reference to the alleged safety problem
when he described this conversation on direct examination and the contra-dictions in his testimony between direct and cross-examination. as described,infra I find Kohr to be the more credible witness of the two and I findKohr's description of this meeting to be more accurate than Leese's. I rely on
it herein.
will be found with respect to violations of a safety stat-
ute which created a general hazard for employees.
See also Air Surreo Corporation. 229 NLRB 1064 (1977):
Dawson Cabinet Company. Inc., 228 NLRB 290 (1977). and
Pink Moody, Inc.. 237 NLRB 39 (1978). which contains an
excellent discussion of the earlier cases.
Moreover, while it may be argued that any safety viola-
tion involves state or federal safety statutes, the direct in-
volvement of such a statute or a complaint to a state or
federal agency is not a prerequisite to a finding of concerted
activity. See AAron General Medical ('enter, 232 NI.RB 920
(1977).
Respondent contended that the Board should require
"objective. ascertainable evidence supporting [the] claim of
unsafe working conditions" as a prerequisite to a finding of
protected, concerted activity. This position has been consis-
tently rejected by the Board and the courts. See, for exam-
ple. N.L.R.B. v. Was.hington A luntintnl Conpan',. rnc., 370
U.S. 9. 16 (1962); N.L.R.B. . Ben Pekin Copany, 452
F.2d 205. 206 (7th Cir. 1971): N'.L. R. B. v. Inleroro Co,-
tractors, ,c1.. 388 F.2d 495. 500 (2d Cir. 1967): and Young.s-
town Sheet atnd Tube Cotnpanv, 235 NLRB 572 (1978). As
noted in the latter case. "the claim does not have to be
meritorious to be protected, merely 'reasonable' ... " In
the absence of any testimony by either Leese's foremian.
Unger, or the mechanic assigned by Unger to work on the
"rat trap" press, concerning the operation or condition of
the press, and with evidence that the machine could double
cycle and that employees were directed to keep their hands
out of the machine, it cannot be said that Leese's complaint
was not reasonable. The Board's policy is clearly a wise
one. It is in the interest of' employees and employers alike
that concerns such as potential safety problems be brought
to light: a requirement that a complaint be meritorious in
order to be protected would discourage such concerns from
being surfaced. Moreover. the employer is not without re-
course in the face of' such protected activity: while he can-
not discharge employees so engaged. he is not precluded
from treating them as economic strikers, subject to replace-
ment.?
It does not follow from the foregoing, however, that
Leese's discharge violated the Act. The decision to termi-
nate Leese was made by Kohr. alone, and there is no proba-
tive evidence to establish that Kohr was aware of Leese's
protected protest at the time he made his decision.' At the
time he made his decision, Kohr was faced with a situation
of an employee who appeared to be refusing to work on his
assigned machine in order to force a transfer back to a
I The case cited by Respondent. Gaewv Coal (5, unired ; Mir Worlvcri
of America. 414 U.S. 368 (1974). is inapposile. That case dealt with a ques-
tion involving the application of Section 502 of the Act. That section pro-
vides a limited exception to contractual no-strike obligatilns for work stop-
pages caused by "abnormally dangerous conditions flir work" and does not
deal with the question of whether work stoppages are "protected concerted
activity" in the absence of a contract.
9 While it might b e inlerred ihat Unger would have reported the nature o o
L.eese's protest to Freet and furher inferred that Freet wiould have repeated
it to Kohr. such a piling of one inference on another is impermissible. See
Diagostic Center Horpital. qpira at 1216. Moreover, an interence that Unger
would have reported that Leese was seeking to return to the galvanizing line
by refusing to work on the "rat trap" press is equall warranted from the
events herein.
400
KEYSTONE-SENECA WIRE 'I.OTH CO.
preferred job. Ilis entire conversation with eese preceding
the decision to discharge him lead onl tlo such a conclu-
sion: Leese did not complain to Kohr of the alleged danger-
ous condition of his machine. Rather, he spoke only of his
preference for the galvanizing line.
Knowledge of the protected. concerted activity is essen-
tial to a finding that such activity motivated the discharge.
Diagnostic (enter Hospital. sprla, at 1216. There being no
probative evidence that Kohr. who was solely responsible
for the decision to discharge Leese, possessed such knowl-
edge. I must find that the burden of proof required of the
General Counsel has not been met.
CoN( I.usioNs O[ L\w
I. Respondeni LN an employei engaged in commerce
within the meaning of Section 2(6) and (7} of the Act.
2. Respondent has not engaged in the unfair labor prac-
tice alleged in the complaint.
On the foregoing Facts and conclusions. I make the fol-
lowing recommended:
ORI)ER'"
The complaint in this matter is hereby dismissed in its
entirety.
;0 In the eent no exceptions are filed as prov ided b 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 b the Board and become its
findings. conclusions, and Order. and all objections thereto shall be deemed
waived for all purposes.
401