Marion Steel Co., Inc.Download PDFNational Labor Relations Board - Board DecisionsFeb 26, 1986278 N.L.R.B. 897 (N.L.R.B. 1986) Copy Citation MARION STEEL CO. Marion Steel Company , Inc. and United Steelwork- ers of America, AFL-CIO-CLC. Case 8-CA- 18075 26 February 1986 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS DENNIS AND BABSON On 19 August 1985 Administrative Law Judge Walter H. Maloney Jr. issued the attached decision. The Respondent filed exceptions and a supporting brief, and the General Counsel filed an answering brief to the Respondent's exceptions. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings,' findings,2 and conclusions and to adopt the recommended Order as modified. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified • below and orders that the Re- spondent, Marion Steel Company , Inc., Marion, Ohio, its officers, agents, successors, and assigns, shall take the action set forth in the Order as modi- fied. 1. Substitute the following for paragraph 1(c). "(c) In any like or related manner interfering with, restraining , or coercing employees in the ex- ercise of the rights guaranteed them by Section 7 of the Act." 2. Substitute the attached notice for that of the administrative law judge. ' The Respondent has excepted to some of the judge 's credibility find- ings. The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect . Standard Dry Wall Products , 91 NLRB 544 (1950), enfd . 188 F.2d 362 (3d Cir . 1951). We have carefully examined the record and find no basis for reversing the findings. 2 Chairman Dotson and Member Babson disavow the judge's above finding to the extent it suggests that a company 's complaint about an em- ployee's "bad attitude" is necessarily a euphemism for a prounion atti- tude. See, e.g., Guarantee Savings & Loan , 274 NLRB 676, 679 ( 1985); Orba Transshipment of Alabama , 266 NLRB 917, 932 (1983). Chairman Dotson and Member Babson find , however , that in the context of this case it is clear that the Respondent 's use of the term "bad attitude" was a reference to employee Williams' prounion activities . Member Dennis finds it unnecessary to comment on this aspect of the judge 's decision. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government 897 The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. WE WILL NOT threaten to discipline or discharge employees because of their. union sympathies and activities. WE WILL NOT discourage membership in any labor organization by discharging employees or otherwise discriminating against them in their hire or tenure. WE WILL NOT in any like or related manner interfere with, restrain , or coerce you in the exer- cise of the rights guaranteed you by Section 7 of the Act. WE WILL offer to Donald Williams full and im- mediate reinstatement to his former or substantially equivalent position, and WE WILL make him whole of any loss of pay or benefits which he may have suffered by reason of the discrimination practiced against him , with interest. MARION STEEL COMPANY, INC. Steven D. Wilson, Esq., for the General Counsel. Edward J. Dowd Jr., of North Myrtle Beach, South Carolina, for the Respondent. L. T. Johnson, of Canton, Ohio, for the Charging Party. DECISION FINDINGS OF FACT A. Statement of the Case WALTER H . MALONEY JR ., Administrative Law Judge. This came came on for hearing before me at Marion, Ohio, on an unfair labor practice complaint,' issued by the Regional Director for Region 8, which alleges that Respondent Marion Steel Company , Inc.2 violated Sec- 1 The principal docket entries in this case are as follows: Charge filed by United Steelworkers of America , AFL-CIO-CLC (Union), against the Respondent on February 19, 1985 ; complaint issued by the Regional Director for Region 8 against the Respondent on April 5, 1985 ; the Respondent 's answer filed April 17, 1985; hearing held in Marion, Ohio, on July 18, 1985; brief filed with me by the General Coun- sel on or before August 12, 1985. 2 The Respondent admits , and I find , that it is an Ohio corporation which maintains an office and place of business in Marion , Ohio, where it is engaged in the production of steel products. In the course and conduct of its business , the Respondent annually ships goods and materials valued in excess of $50 ,000 from its Marion, Ohio plant to points and places lo- cated outside the State of Ohio. Accordingly , the Respondent is an em- ployer engaged in commerce within the meaning of Sec. 2(2), (6), and (7) of the Act. The Union is a labor organization within the meaning of Sec. 2(5) of the Act. 278 NLRB No. 127 898 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tion 8(a)(1) and (3) of the Act. More particularly, the complaint alleges that the Respondent threatened em- ployees with discipline and discharge if they continued to engage in union activities and that it discriminatorily discharged Donald Williams . The Respondent denies the commission of any independent violations of Section 8(a)(1) of the Act and maintains that Williams was dis- charged because he verbally abused a supervisor. Upon these contentions the issues herein were joined.3 B. The Unfair Labor Practices Alleged The Respondent operates a steel mill in Marion, Ohio, where it processes scrap steel into usable steel items. It has been in business about 4 years and occupies premises formerly owned and operated as a steel mill by Armco. Many of its supervisory and bargaining unit employees are former Armco employees. The Respondent employs about 230 production and maintenance employees . They are not represented by any labor organization . In the past 2 years, the Union has commenced two organizing campaigns at this plant but neither has come to any fruition . Discriminatee Donald Williams was the in-plant leader in each of these cam- paigns . The first campaign , which began in August 1983, abated when the Company filed for bankruptcy under Chapter 11 of the Bankruptcy Act. The second campaign began in the fall of 1984 and is currently "on hold." Williams came to work for the Respondent on March 15, 1982 . He had considerable experience in the steel in- dustry and was a supervisor for a previous employer. Until his discharge on February 14, 1985 , Williams was employed as a welder on maintenance crew "A."4 Early in 1984, Williams went on sick leave . When he returned to work, he found that he had been transferred to a dif- ferent maintenance crew. He complained about the trans- fer to Maintenance Superintendent Eblin and asked him why he had been transferred. Eblin's reply was that Wil- liams "had a poor attitude and needed supervision." Wil- liams replied that he felt the transfer had been prompted by his previous union activities and threatened to file an unfair labor practice charge . He did not carry through on this threat . However, he did speak to James Conway, the company president , and Quell Luce, the vice presi- dent for manufacturing , and repeated to them the sub- stance of the conversation which had taken place in Eblin's office. Williams reiterated to them that he felt that the transfer was the result of his union activities. Luce's only reply was that whatever Williams did out- side the plant was his own business . Williams told Luce on this occasion that he was well aware of his legal rights and that he had the right to talk union on lunch- breaks or coffeebreaks . As he put it, any time he could talk about cars or women, he could talk union. The second campaign began in November 1984, and Williams was the in-plant leader. There is no factual dis- pute that the Respondent was aware of the incipient ' Errors in the transcript have been noted and corrected. 4 At the Respondent 's plant, maintenance crews work rotating shifts, so Williams was at the plant during the events here in question at various hours of the day or night , depending on which shift or "turn" assignment crew "A" had been given on the week in question. union drive and that Williams was active in it. However, none of the Respondent 's witnesses admitted that they were aware that Williams was the leader of the union effort. Williams ' activities took several forms. He held several meetings at the I. W. Abel Hall, a Steelworkers meeting place located about 8 blocks from the Respond- ent's plant . He solicited support for the Union from vari- ous employees at the plant , and he was not reluctant to make his views known to supervisors . He was preparing to go ahead with a second card-signing effort when the events in this case began to unfold. Shortly after January 1 , 1985, Williams was given a special job which confined his daily routine to the weld shop . As a maintenance welder , Williams had been on call to go to any part of the plant as needed . When not engaged in a particular repair assignment , Williams and all other welders spent time in the weld shop repairing spindles and couplings . This repair work was ongoing. As one management official put it, the welding of cou- plings and spindles never gets caught up . Until this time, this assignment had never been the full -time assignment of any maintenance man. It was, among other things, an undesirable job. As Eblin put it , the work is boring. Wil- liams also complained that being confined to the weld shop was, in effect , an isolation from other employees. In his new assignment, Williams was still on the main- tenance crew supervised by Foreman Leonard Rollinson. Whereas formerly he saw Rollinson only occasionally during a turn , Rollinson now was with him in the weld shop on a constant basis. Williams estimated that , during the 6 weeks which elapsed between this assignment and his discharge, Rollinson was with him about 90 percent of each working day. Rollinson put this estimate about 30-50 percent of each day . Eblin testified at the hearing that it was his intention to rotate this assignment on a 3- to 6-month basis among all of the welders , but he was the only one who knew of this intention . Williams testi- fied credibly that he was told that the assignment in the weld shop was permanent . Upon making this assignment, Rollinson assigned George Pheasant , a millwright, to perform general maintenance welding jobs on his crew, although Williams was occasionally dispatched on weld- ing assignment if there was no one else available or if the welding work was too complicated for others to handle. About January 31, 1985, Eblin came over to Williams' work station and began to talk . He questioned Williams about rumors which Williams had assertedly been circu- lating throughout the plant to the effect that the Compa- ny was maintaining what Eblin termed a "hit list." His reference was to an alleged list of employees who were using drugs and whom the Company was preparing to discharge for that reason . Williams admitted to Eblin that he had told other employees of the existence of such a list and observed that it was peculiar that none of the sons of management officials were on the list. Eblin re- acted angrily, saying that the Company had no such list and that he was tired of Williams spreading lies about the Company . Williams admitted that he had suggested to others that Scott Plaster , a discharged employee, would not have been fired as he had been if there was a union in the - plant, and he repeated this statement to MARION STEEL CO. Eblin . I credit Williams' testimony to, the effect that Eblin told him that he had better stop his union activities and change his attitude or his employment with Marion Steel would be short lived . Not long thereafter, Williams repeated his conversation with Eblin to maintenance crewmember Larry O'Dell. About a week later , on February 8, Williams had a private conversation at the plant with Rollinson . Rollin- son told Williams on this occasion that he had been in- structed by Larry Eblin to send him home if he saw him with any union cards at the plant . 5 Williams' reply was that he respected Rollinson and would not talk union with him or place him in a position where he would see Williams with a union card in the plant . On the same evening, Williams had conducted a meeting at the Steel- workers hall at which plans were laid for soliciting union authorization cards from unit employees. On February 11, Williams took his lunchbreak in the breakroom with several other employees . He was work- ing the swing shift and had paused for lunch about 3 a.m. Foreman Tom Blankenship and employee Jim Brad- shaw were drinking coffee in the next booth. Williams was engaged in discussion with employee Potts, who was sitting in the same -booth, concerning unionization and its effect in a nearby plant . Williams turned and asked Blankenship if Blankenship would like to sign a union card "when the cards come in." Blankenship made no reply but became red in the face . Williams went on with his conversation with Potts and stated , in the course of it, that he felt that the supervisors in the plant did not work very hard. These remarks were loud enough to be overheard . Williams then went on to say. that, if the Union came in, the "swinging dick" supervisors at the plant would have to go back to work. Blankenship heard this remark but said nothing and left the room at the end of his break. Bradshaw reported this incident to his supervisor, James Marcus , and Marcus called Blankenship into his office to discuss it. After Blankenship related his discus- sion with Williams to Marcus, Marcus brought the matter to the attention of Quell Luce. On February 14, Luce phoned Williams at his home after the end of the shift and fired him. He told Williams on this occasion that he felt that Williams did not like working at Marion Steel any longer and accused him of using abusive language to a supervisor and to manage- ment as a whole . He made reference in the course of the phone conversation to another run-in which Williams had with Foreman Mick Wells in June 1984 . Luce then sent Williams a discharge memo , dated February 14, which read: On February 11, 1985 , your misconduct again has gone beyond limits that can reasonably be accepted by Management in maintaining an essential dimen- a Rollinson admits that a conversation of this general nature took place but denies that he mentioned Eblin by name or that he used the words "union cards." He used the words, "foreign material" in his argumentative and evasive testimony . He further testified that Williams was the only member of his crew to whom he gave this warning and offered no expla- nation why he had singled out Williams for a warning. 899 sion of co-operation which serves our mutual inter- ests. The continued problem was brought to my atten- tion concerning an incident in the lunchroom in which you verbally assaulted and abused a supervi- sor and management as a whole. On previous occasions you have been the aggres- sor in hostile acts calculated to provoke violence and retaliation which is very disruptive of the workforce. Remedial and constructive discussions were held to improve your attitude and you were directed to use the proper channels to air your complaints. You have deliberately and persistently refused to follow those directions . Because of the above facts, and due to our repeated effort of trying to work with you to straighten out your attitude problem, we fmd no other alternative but to terminate your employ- ment effective today, February 14, 1985. All benefits will cease as of midnight tonight, February 14, 1985. Your final paychecks will be available on Monday , February 18, 1985, at 1:00 p .m. Please stop by the Personnel Department on that date to get those checks, and make arrangements to pick up your tools and personal belongings. C. Analysis and Conclusions Williams has long been regarded by the Respondent as an employee with an attitude problem . When he was transferred from one supervisor to another early in 1984, he was told that the unwelcomed change was brought about -because he had a "poor attitude and needed super- vision." A year later , his discharge letter recited the con- tention that the Company had given up on him after "re- peated effort ... to straighten out your attitude prob- lem" had proved fruitless. There is no doubt in this record that Williams was the leader of the Union's orga- nizing drive and that the Respondent knew it . The Board has repeatedly found, with court approval , that, in a labor relations context, company complaints about "bad attitude" are merely euphemisms for a prounion attitude, and there is every reason to make the same assessment here . Minnesota (3M) of Puerto Rico, 214 NLRB 468 (1974); Ram, Inc.,. 218 NLRB 430 (1975); L. S. Ayres & Ca, 221 NLRB 1344 (1976); Helena Laboratories Corp., 225 NLRB 257 (1976), enfd . 557 F .2d 1183 (5th Cir. 1977); Del Rey Tortilleria, 272 NLRB 1106 fn . 21 (1984). Accordingly, I fmd that these actions were both taken for antiunion considerations . In one instance, the Compa- ny imposed stricter supervision on Williams because of his union leanings . This event, barred from active pros- ecution because of limitations , is still available to illus- trate animus and the Respondent's disposition toward Williams . The Respondent's more recent statement goes to the heart of the principal issue in this case. When its first effort to reform Williams ' attitude failed, the Respondent attempted to isolate him from other em- ployees on the job . This move took place not long after the Respondent learned that a second organizing drive was underway . The new job in a new worksite subjected 900 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Williams to greatly increased supervisory surveillance and removed him from the casual daily contact of fellow crewmembers and others which he previously enjoyed. It materially inhibited Williams' ability to go about the plant and greatly limited the occasions on which he might speak with other employees during a workday. While the new workplace is a matter of considerable tes- timony in the record, the selection of Williams for this job rather than some other welder is unexplained in the record, despite the fact that the Respondent was called on to explain this selection . The fact that the Respondent would select one of its best welders for a routine, boring chore and leave general maintenance welding on his turn to other less skilled welders in his crew more sharply il- lustrates the nature of this move . I conclude that this action was taken to isolate Williams and hamper him in his effort to organize the plant , not for the administrative or production purposes described by Eblin and others in their testimony. Eblin's statement to Williams, made in anger on Janu- ary 31, to the effect that he had better stop his union ac- tivities and mend his ways or his employment at Marion Steel would be short lived, is a threat which violates Section 8(a)(1) of the Act and was a harbinger of future action which occurred within 3 weeks thereafter . Rollin- son's threat, which took place about 10 days later, to the. effect that he had been instructed to send Williams home if he caught him with union cards in the plant, is also a violation of Section 8(a)(1) of the Act. The statements for which Williams was discharged were union-related statements and were uttered in the context of protected and union activities . They were also uttered in the context of plant practice and conversation- al usage which regularly indulged the use of profanity and vulgarity, on the part of both supervisors and unit employees , and by unit employees to supervisors. The general rule followed by the Board and the courts is that, where an employee utters profanity or vulgarity to a supervisor, including statements which could be con- strued to be threats, the Board will extend a mantle of protection over such statements unless the statements are so egregious and so opprobrious that they render the em- ployee unfit for further service . These issues normally arise in the context of grievance proceedings or state- ments uttered on a picket line , but such instances are merely examples of the situations in which offensive re- marks have been made to supervisory personnel by em- ployees engaged in protected activity. They do not limit "s.o.b.,"T a "horse's ass,"s or an "asshole"9 have been deemed to be within the pale of permitted utterances by irritated employees in voicing their opinions and feelings about the merits of a labor dispute . Measured by these standards, what Williams said to Blankenship on the morning of February 11 was mild indeed. As a makeweight argument supporting its insubordina- tion charge , the Respondent talked about other instances of misbehavior by Williams toward supervisors. When pressed , "other incidents" became "one incident" which occurred in June 1984, between Foreman Mick Wells and Williams. On this occasion, Wells interrupted Wil- liams' coffeebreak to summon him to the melt shop to weld the number one dummy head to the starter bar. Wells' regular welder had burned himself in the process of performing this job and had been taken to the hospi- tal. When Wells told Williams to come immediately to the job, Williams cursed him, complained that Wells was always hassling him, and asked what had happened to Wells' '.fly-by-night welders out there." Wells replied that he wanted a good welding job, not a job done by a "fly-by=night welder." Williams performed the job but Wells gave him a written reprimand . Williams appealed the reprimand through an in-house grievance procedure. Apparently the Company agreed to remove the repri- mand from Williams ' personnel file but it did not do so. Luce , who took the responsibility for firing Williams, testified that the February 11 incident involving Blanken- ship was the straw that broke the camel 's back. Since earlier incidents were admittedly not a part of the actual motivation for the discharge , they are essentially irrele- vant to this issue , and the assessment of motivation must focus on the events of February 11 rather than on a stale complaint which was dredged up in justification for an action which the Respondent took at a much later point in time. Asking Blankenship if he would like to sign a union card was merely a bit of good-natured needling , coupled with a touch of braggadocio on the part of Williams. Williams' next statement was uttered to other employees, not to Blankenship nor about Blankenship in particular. It was certainly vulgar and offensive but that is the worst that could be said about it . It was not personal, it was not uttered in anger nor in the course of a work-re- lated situation, and little note was made of it at the time it was uttered . Indeed, it was not Blankenship who pur- sued the matter with higher management. It was higher , the occasions on which the underlying rule should be in- , motivating cause of the discharge of Donald Williams. yoked. `The-fact that the Respondent's management made such a For instance , a threat leveled against a supervisor to "return and whip the ass of that bald-headed . . . if he did not like" what the employee was doing was consid- ered protected since it was uttered in the context of pro- tected activity. Norton Concrete Co., 249 NLRB 1270 (1980). Calling an employer "a damned liar," an 6 Crown Central Petroleum Corp. Y. NLRB, 430 F .2d 724 (5th Cir. 1970). management who solicited Blankenship's account after first learning about the incident from another source. In this momentary exchange of words was not theshort desultory investigation of the event suggests strongly that- it was merely looking for an event such as this one to use as an excuse for getting rid of a known union ac- tivist. This event was a pretext for the real reason for the discharge of Williams, which, as stated in the discharge 7 NLRB v. Cement Transport Ca, 490 F.2d 1024 (6th Cir . 1974). 8 Thor Power Tool Co., 148 NLRB 1379 (1964), enfg. 351 F.2d 584 (7th Cir. 1965). 8 Postal Service, 241 NLRB 389 (1979). MARION STEEL CO. letter, was Williams ' "bad attitude," i.e., his prounion at- titude , an attitude about which he had been warned to no avail and which was just about to ripen into action in the form of distributing union cards . Having discharged Donald Williams because of his sympathies for and ac- tivities on behalf of the Union, the Respondent herein violated Section 8(a)(1) and (3) of the Act. On the foregoing findings of fact and on the entire record , I make the following CONCLUSIONS OF LAW 1. Respondent Marion Steel Company, Inc. is now and at all times material herein has been an employer en- gaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. United Steelworkers of America, AFL-CIO-CLC is a labor organization within the meaning of Section 2(5) of the Act. 3. By discharging Donald Williams because of his union sympathies and union activities, the Respondent violated Section 8(a)(3) of the Act. 4. By the acts and conduct set forth above in Conclu- sion of Law 3, and by threatening employees with disci- pline or discharge if they engage in union or protected concerted activities, the Respondent violated Section 8(a)(1) of the Act. 5. The aforesaid unfair labor practices have a close, in- timate, and adverse effect on the free flow of commerce within the meaning of Section 2(6) and (7) of the Act. REMEDY Having found that the Respondent engaged in certain unfair labor practices, I will recommend that it be re- quired to cease and desist therefrom and to take certain affirmative action necessary to effectuate the purposes and policies of the Act. Because the unfair labor prac- tices found herein demonstrate an abiding disregard by this Respondent for the fundamental rights of its employ- ees, I will recommend to the Board a so-called broad 8(a)(1) remedy designed to suppress any and all viola- tions of that section of the Act. Hickmott Foods, 242 NLRB 1357 (1979). I will further recommend that the Respondent be required to offer to Donald Williams full and immediate reinstatement to his former or substantial- ly equivalent employment and to make him whole for any loss of earnings he may have suffered by reason of the discrimination found herein , in accordance with the Woolworth formula, 10 with interest thereon at the adjust- ed prime rate used by the Internal Revenue Service for computing interest on tax payments . Olympic Medical Corp., 250 NLRB 146 (1980); Isis Plumbing Co., 138 NLRB 716 (1962). I will also recommend that the Re- spondent be required to post the usual notice , advising its employees of their rights and of the remedy in this case. On these findings of fact and conclusions of law and on the entire record , I issue the following recommend- ed" 10 F. W. Woolworth Corp., 90 NLRB 289 (1950). 11 If no exceptions are filed as provided by Sec. 102.46 of the Board's Rules and Regulations , the findings, conclusions, and recommended Order shall, as provided in Sec . 102.48 of the Rules, be adopted by the 901 ORDER The Respondent Marion Steel Company , Inc., Marion, Ohio, and its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Threatening employees with discipline or discharge because of their sympathies with or activities on behalf of a labor organization. (b) Discouraging membership in or activities on behalf of the United Steelworkers of America, AFL-CIO- CLC, or any labor organization , by discharging or disci- plining employees or otherwise discriminating against them in their hire or tenure. (c) By any other means or in any manner interfering with, restraining , or coercing employees in the exercise of rights guaranteed to them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Offer Donald Williams immediate and full rein- statement to his former job or, if that job no longer exists, to a substantially equivalent position , without prej- udice to his seniority or any other rights or privileges previously enjoyed, and make him whole for any loss of earnings and other benefits suffered as a result of the dis- crimination against him, in the manner set forth in the remedy section of the decision. (b) Remove from its files any reference to the unlawful discharge of Donald Williams and notify him in writing that this has been done and that the discharge will not be used against him in any way. (c) Preserve and, on request, make available to the Board or its agents for examination and copying , all pay- roll records , social security payment records, timecards, personnel records and reports, and all other records nec- essary to analyze the amount of backpay due under the terms of this Order. (d) Post at the Respondent 's Marion, Ohio plant copies of the attached notice marked "Appendix ." 12 Copies of the notice, on forms provided by the Regional Director for Region 8, after being signed by the Respondent's au- thorized representative, shall be posted by the Respond- ent immediately upon receipt and maintained for 60 con- secutive days in conspicuous places including all places where notices to employees are customarily posted. Rea- sonable steps shall be taken by the Respondent to ensure that the notices are not altered , defaced, or covered by any other material. (e) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. Board and all objections to them shall be deemed waived for all pur- poses. 12 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading "Posted by Order of the Nation- al Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." Copy with citationCopy as parenthetical citation