Michigan Screw ProductsDownload PDFNational Labor Relations Board - Board DecisionsJun 6, 1979242 N.L.R.B. 811 (N.L.R.B. 1979) Copy Citation Michigan Screw Products Division of MSP Industries Corporation and Michael Ross. Case 7 CA- 14963 June 6, 1979 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND MURPHY On March 7, 1979, Administrative Law Judge Da- vid L. Evans issued the attached Decision in this pro- ceeding. Thereafter. Respondent filed exceptions 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 I.aw 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- t Respondent has taken exception 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 credlbility unless the clear preponderance of all of the relevant evidence cns inces us that the resolutions are incorrect Standard Dry Wall Products, In 91 NLRB 544 (19501. enfd. 188 F.2d 362 3d Cir 1951). We have examined the record carefully and find no basis for reversing his findings We also find totally without merit Respondent's allegations of bias and prejudice on the part of the Administrative I.aw Judge. pon our full consideration of the record and the Administrative Law Judge's Decision, we perceive no esi- dence that the Administrative l.aw Judge prejudged the case. made prejudi- cial rulings, or demonstrated a bias against Respondent in his analysis or discussion of the evidence. Respondent specifically takes exception to the Administrative Law Judge's discrediting of Operations Manager William Buhler in part on the basis that his testimony concerning the date of receipt of the Federal Screw wire con- flicted with that of the General Counsel's witnesses. Respondent contends that General Counsel's witnesses. Daniel Ross and Robert Allen. did not testify at all as to when the wire was received. However. contrary to this contention, the record establishes that all of General Counsel's witnesses did testify that said wire was received in October 1977. Nevertheless. we agree with Respondent that Buhler's testimony about the date of receipt of the wire did not reflect negatively on his credibility. inasmuch as it was not necessarily inconsistent with the testimony of General Counsel's credited witnesses. Respondent also contends that the Administrative Law Judge was incon- sistent In discrediting Buhler for testifying that Ross stated on October 24 that drawing the Federal Screw wire was onerous while also testifying that no Feucral Screw reduction work was perfotlmed until October 25, while the Administrative Law Judge found candid Ross' testimony that as of October 25, when he refused the work, he considered the work "backbreaking." al- though he admittedly had not worked on October 24. Contrary to Buhler's testimony, however Ross testified that he had worked on the wire during the week prior to October 24. and he specifically testified that, when called to come in early, he did not say that the work was backbreaking. Rather. Ross' statement characterizing the work as backbreaking was made at the hearing In contrast to the explanation for Ross' testimony, Buhler's statement that Ross commented on October 24 that the work was too onerous contradicted his own testimony that no such work had been performed as of that date MICHIGAN SCREW PRODUCTS tions Board adopts as its Order the recommended Or- der of the Administrative Law Judge and hereby or- ders that the Respondent, Michigan Screw Products Division of MSP Industries Corporation, Center Line, Michigan, its officers, agents, successors, and assigns, shall take the action set forth in the said recommend- ed Order, except that the attached notice is substi- tuted for that of the Administrative Law Judge. APPENDIX NoricE To EMPLOYEES POSTED BY ORDER OF IHi. NATIONAL. LABOR RELATIONS BOARD An Agency of the United States Government After a hearing at which both sides had the opportu- nity to present their evidence, the National Labor Re- lations Board has found that we violated the law and has ordered us to post this notice. WtL \\il.. NotI discharge employees because they engage in protected concerted activity. WE WIll NOT in any like or related manner interfere with, restrain, or coerce employees in the excercise of the rights guaranteed them in Section 7 of the National Labor Relations Act. WE w. offer Michael Ross immediate and full reinstatement to his former job or, if that job no longer exists, to a substantially equivalent po- sition, without prejudice to his seniority or other rights and privileges. WE will. make Michael Ross whole for any loss of pay. with interest, which he may have suffered as a result of our discrimination against him. MIC('HI(GAN S('RI-\' ROI)t( IS DI\ ISI()N ()OF MSP INDtUSIRIES CORP()RAI'ION DECISION SIArl MI-NI OF It1E C(As DAVID 1.. EANS. Administrative Law Judge: Upon a charge filed on March 15. 1978, by Michael Ross. an indi- vidual. against Michigan Screws Products Division of MSP Industries, herein called Respondent. the General Counsel issued a complaint alleging that Respondent has committed a violation of Section 8(a)(I) of the Act hb discharging the Charging Party on November 1. 1977.' Respondent filed an answer to the complaint denying commission of any unfair labor practices. Hearing was held betfore me on October 6. 1978. General ('ounsel and Respondent have filed briefs which have been considered carefully. Upon the entire record and from my observation of the demeanor of the witnesses and the inherent probabilities IUnless otherwise specified all dates are of the ear 1977 242 NLRB No. 132 811 DIECISIONS OF NATIONAL LABOR RELATIONS BOARD and improbabilities of the testimony of each witness, I make the following findings and conclusions: I. I OPiRA I IONS O1 RSPO)Ni)tN I Respondent has had in effect at all times material herein employee rules of conduct which specify as grounds for dis- cipline, up to and including discharge, the following: 13. Unauthorized or unexcused absence or lateness. Respondent is. and has been at all times material herein, a Delaware corporation maintaining its principal office and place of business in the City of Center Line, Michigan, where it is engaged in the manufacture, sale, and distribu- tion of industrial fasteners and related products, including wire rod. During the calendar year 1977, Respondent pur- chased and caused to be transported and delivered to its Center Line, Michigan, plant directly from points outside the State of Michigan, goods and materials alued in excess of $50,000. Upon these admitted facts, I find that at all times mate- rial herein Respondent has been an employer engaged in commerce and in operations affecting commerce within the meaning of Section 2(6) and (7) of the Act. 11. FINI)IN(iS 01 I A( I Respondent's production and maintenance employees are represented by International Union, United Automo- bile, Aerospace and Agricultural Implement Workers of America (UAW). and its Local 189. The labor agreement in force and effect at all times material herein contains a griev- ance and binding arbitration provision and the following paragraphs regarding overtime at article VI: * * Section 3. (a) Except by agreement between the Union Representative and Management, no employee shall be required to start before the regular starting time of his or her shift unless he be paid time and one-half for such prior hours. (e) Although overtime is not compulsory, the Union will not restrict overtime in any' manner: the employ- ees will cooperate when requested by the Management to perform overtime work. Section 4. Employees are expected to work all regular scheduled hours. Employees unable to work in excess of eight (8) hours per day, when so scheduled, must have evidence of physical disability by qualified physi- cian, verified by a Company physician, and will be excused from such excess hours for a period not to exceed two (2) months, such excuse to be valid only it it does not interfere with the efficient operation of the em.ployee's department such vidence to be renewed not later than ten ( 10) working days following the two month period. If evidence is not submitted as required the excuse will be withdrawn. The Company is not obligated to continue the employment of employees unable to meet production standards and/or unable to work the assigned number of work hours. This does not apply to employees excused under this section prior to February I. 1971. 28. An employee shall not restrict production or inter- fere with others in the performance of their jobs or engage or participate in any interruption of work as- signed to him. * 31. An employee shall not neglect his job, duties and responsibilities nor fall to refuse to pertform work as- signed to him. 32. An employee must be available and report for work as scheduled or overtime work as required or assigned to him. It is undisputed that at all times preceding the event of this case. Respondent's attendance policy was as follows: sched- ules were posted by Thursday for the following week. If by this posting an employee was scheduled to report before his regular shift, he was subject to discipline it he tiled to do so. If during the week covered by the posting an employee was needed before this shift. and Respondent was aware of the fact by the day before, there was another posting. and the additional overtime was also mandatory. A third type of overtime, and that directly involved herein, was referred to as "call-in" overtime. If the day came when an employee was needed before his shift, and the overtime had not been posted previously. he was called at home. usually by office secretary Janice Vanker, and asked to report early. It the employee refused, he was not disciplined. (However, be- cause by the labor agreement Respondent was required to equalize overtime. the employee was charged with the hours as if he had worked them.) The employees were first called by job, then seniority. It the employee held a specific job. and there was a need therefor, he was called first: if he refused. Respondent called other employees qualified to do the work required in order of seniority. One of the more senior employees was Daniel Ross. father of the Charging Party. A few months before the hearing. Daniel Ross told William Buhler, Respondent's operations manager, that he no longer wanted any more call-in overtime unless it were for his specific classification, scale-hi-lo driver. Buhler agreed, but stated that the employee would be charged for the time because of the equalization requirement. Michael Ross was classified as a draw-block operator, although he had other duties, and there were other employ- ees as experienced as he on the draw-block. The draw-block was a machine designed to accept wire or rod and reduce its diameter as it was drawn through. Especially large wire or rod required two employees to pull the wire through the machine. At some time during the week of October 17 through 21, Respondent received an order to reduce 50,000 pounds of wire rod. This order was unprecedented in several respects. 812 . rr MICHIGAN SCREW PRODUCTS The order was placed by Federal Screw Company, a com- petitor of Respondent. It has a larger gross weight than most orders, but its most salient aspect was the diameter of the rod: it was 61/64 inches in diameter, much larger than any that had been seen before at the plant. There is sharp conflict as to just when the Federal Screw wire was received and when the drawing of it began: em- ployees Stephen Smith, Michael Ross, Daniel Ross, and Robert Allen testified that the wire was received early in the week of October 16 and "sat around" before anything was done with it. They testified that the wire was dipped in an oxidization vat and some drawing was done that week. Buhler testified that the order was received Thursday, Octo- ber 19, and was dipped in the oxidizing agent on October 20; Federal Screw demanded that the job be rushed on Monday, October 24, and drawing did not begin until Octo- ber 25. As discussed herein, on October 24 and 25 dis- chargee Ross refused to report early. Respondent contends that on each of those days Ross cited as a reason the fact that drawing the Federal Screw wire was too onerous. How Ross could have said on October 24 that the work was too onerous, when, according to Buhler, no drawing was done until October 25, is not explained. At any rate, on the morning of Monday, October 24. Ross was awakened by a telephone call from Vanker2 who asked if he could report before his scheduled starting time of 3:00 p.m. Ross agreed to do so. Within a half-hour, Ross called Buhler and stated that he could not come early as he had not finished repairing his automobile, a job he had begun the day before. Buhler thanked Ross for calling he did not order Ross to come in early. Later in the afternoon, Ross called Buhler again and stated that the auto repair job was still not completed and asked if he could be excused from coming in the entire day. Buhler stated that he could.' On Tuesday, October 25, Vanker again called Ross and asked him if he would come to work early. It is undisputed that Ross asked Vanker if he were being called in to work on the Federal Screw rod. When Vanker replied in the affir- mative, Ross responded, "no, thank you." Ross did not ap- pear that date until his usual starting time; nothing was said about his refusal of call-in time that date or his refusal of overtime and failure to report on the day before, nor was he requested to report early the following day. When asked at trial why he refused the call-in time on Tuesday, Ross candidly replied that he considered the work on that par- ticular order to be "back breaking," and he did not wish to do any more of it than that which he was required to do on his regularly scheduled shift. On Wednesday, October 26, Ross again declined to re- port early after another morning's call and request from Vanker did not testify. 'I discredit Buhler who denied that either of these telephone calls oc- curred. Ross impressed me as the more candid witness, and Buhler's unrelia- bility is demonstrated in his account of the receipt of the Federal Screw wire In addition, when Ross was ultimately discharged, no reference was made to Respondent's thirteenth rule of conduct. Quite apparently, the reason for this was that Respondent, through Buhler, had given Ross the required permis- sion to be absent, and Respondent knew it. Moreover, as discussed below, Respondent had previously, in writing, categorically warned Buhler that any further unexcused absences would result in his discharge. Had Ross been absent without permission for his regularly scheduled shift, on October 24, presumably Respondent would have disciplined him pursuant to Rule 13; it did not. Vanker, Again he reported at his regularly scheduled time; again nothing was said of his refusal of call-in overtime. Ross testified that in none of the calls from Vanker did she state that there was any particular urgency about her request. Vanker did not testify, but Buhler and Raymond Miles. Respondent's director of labor relations. acknowl- edged that Ross was not informed of the existence of any such urgency. The testimony advanced by Respondent was, however. that the urgency was dire, and that Ross was singularly responsible for its loss of a potential customer, Federal Screw. Buhler testified that on October 24. Federal Screw noti- fied Respondent that it wanted its order filled immediately. When Ross declined to appear on Monday, employees Al- len and Smith were called in early to draw the wire. Smith was unable to help Allen with the heavy wire because he had an injured shoulder. Rather than call in another eve- ning shift employee, or ask a capable day shift employee to help Allen, Respondent assigned Allen and Smith to do clean-up duties while the wire sat. If there were other pro- duction emergencies preventing Respondent from using the other employees qualified to operate the draw-block in Ross' absence, their existence is not disclosed by the record. Buhler testified that Ross did draw the wire on his regu- lar shift of Tuesday and Wednesday, but that on that Wednesday Federal Screw called and stated that it was coming to get its wire. On Thursday morning, Federal Screw picked up the 35,000 pounds which had been com- pleted and has not been back with more orders since.4 On Thursday and Friday Ross was assigned other duties. and nothing was said to him about his conduct. Buhler testified that on Monday, October 31, he met with personnel director Miles. They decided that Ross' declining call-in time had caused the company to lose a potential customer. The men further reviewed Ross' personnel file, which contained a written warning notice and a letter of reprimand. The written warning notice dated May 13 states: "Due to your frequent absences, we are issuing this written notice. If your absences continue, it will result in further disciplinary action up to and including discharge." The letter, dated July 28, was notice of a ten-day suspen- sion for leaving the plant for 50 minutes without punching out and, upon his return, threatening bodily harm to a guard if the absence were reported. Taking the three inci- dents together, Buhler and Miles decided that Ross should be discharged. A telegram was dispatched stating: "Effec- tive immediately you are hereby terminated for your fla- grant violation of company Rules number 28, number 31 and number 32." As noted above, Rule 13, "unauthorized or unexcused absence or lateness," was not mentioned. 1. CONCLUSIONS Invoking a contractually provided right is activity pro- tected by the Act, because doing so is necessarily an at- tempt to implement and enforce the agreement which is the product of the exercise of rights guaranteed by Section 7 of This failure of Federal Screw to reappear with more orders is what Re- spondent calls loss of a potential customer. Since Federal Screw is a competi- tor of Respondent. the extent of this potential loss is unclear 813 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Act.' To hold otherwise would be to render nugatory the exercise of those rights. Resolution of whether Ross or Buhler was "right" in their respective interpretations is an issue which is unnecessary to resolve. If an employee must invoke contractual rights at the peril of discharge for misin- terpretation, as Respondent appears to contend, the exer- cise of the statutory rights would indeed be stultified. An employee is neither required to say the magic word "con- tract," as Respondent seems to further contend.7 If this were not so, the invocation would depend on not only the acumen and articulateness of the employee, but an aware- ness that his action is subject to challenge. Since Ross' re- fusal was not questioned at the time he made it, there was no reason for him to advance the argument that he was aware of, and was invoking, the section to the contract which states that overtime is voluntary. As it happened, Ross had, and knew he had, more than past practice to support his refusal of call-in overtime. On the preceding February 14, as Ross knew, Foreman Harold F. Skeels de- nied the grievance of employee Steve Gray who had been called in early, but was not paid time and one-half premium stating thusly: The employee, Steve Gray, was contacted after two other employees had declined to come in early to cover for absenteeism. Article V Section 3(a) states that no employee shall be required to start before the regular starting time of their shift, unless they be paid time and one-half for such prior hours. The employee, Steve Gray, was not required to start before his regular start- ing time. He was asked and could have turned the re- quest down. Therefore, the request to pay four hours at time and one-half is rejected. Respondent in no way attempted to convey to Ross that he was in any manner required to accept the call-in time. Therefore Ross had no reason to believe that his case dif- fered in any significant respect from that of Gray's.' Respondent relies upon the final clause of article VI, sec- tion 3(a): "The employees will cooperate when requested by the Management to perform overtime work." Respon- dent asserts that Ross was not cooperating in meeting the emergency at hand and, therefore was in violation of the contract, thus engaging in unprotected conduct in refusing the call-in time. In addition to charging the employee with Respondent's unprecedented interpretation of this provi- sion, this contention ignores the fact that it takes two to cooperate; Ross could not have known that his cooperation in meeting an emergency was desired if he did not know that an emergency existed, and it is undisputed that no one had told him of the "emergency" until after his discharge. Roo.wvay Express. Inc., 217 NLRB 278 (1975) C & I Air Conditioning, Inc., McKeon Construction, 193 NLRB 911 (1971). 6Anaconda Aluminum Company, 160 NLRB 35 (1966). 7 John Sexton & Company, A Division of Beatrice Food Co.. 217 NLRB 80 (1975); Roadway Express, Inc., supra. Had Buhler expressed the slightest indication that Ross' acceptance of call-in overtime was mandatory, perhaps this case would have been in an obey-and-grieve posture and appropriately in the province of an arbitrator. Buhler failed to do so. Instead he discharged the employee for his good-faith invocation of a contractually guaranteed right, and the case is appropriately before the Board. While three consecutive refusals of call-in time may seem excessive to Respondent,9 it should be remembered that Ross' father was granted a standing refusal of all call-in time for jobs outside his classification. If Respondent actu- ally distinguished the Ross cases on the basis that the youn- ger was being called for a job within his classification, as it contends, it did not so state at the time. These responses to Respondent's arguments of contract interpretations are not delineated here in an attempt ulti- mately to arbitrate which interpretation of the contract was correct. What they show is that Ross' action was not utterly without contractual foundation and was, in fact, taken in good faith.'0 Respondent invoked its retroactive interpreta- tion of the second sentence of Article 8(a) to punish Ross for his good faith invocation of the first. In doing so, Re- spondent violated Section 8(a)(1) of the Act, and I so find and conclude. CONCLUSIONS OF LANW I. Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. By discharging employee Michael Ross because he en- gaged in protected concerted activities, Respondent inter- fered with, restrained, and coerced its employees in the ex- ercise of rights guaranteed in Section 7 of the Act and thereby has engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 3. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. REMEDY Having found that Respondent has engaged in unfair la- bor practices in violation of Section 8(a)(1) of the Act, I shall recommend that it be ordered to cease and desist therefrom and take certain affirmative action designed to implement the policies of the Act. 1 recommend that Re- spondent be ordered to offer Michael Ross immediate and full reinstatement to his former job or, if that job no longer exists, to a substantially equivalent position, without preju- dice to his seniority or other rights and privileges, and make him whole for any loss of pay suffered as a result of his unlawful discharge, with backpay computed as prescribed in F. W. Woolworth Company, 90 NLRB 289 (1950); Florida Steel Corporation, 231 NLRB 651 (1977); see, generally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962). Upon the basis of the foregoing findings of fact, conclu- sions of law, and the entire record, and in accordance with Section 10(c) of the Act, I hereby issue the following recom- mended: 9 One could ask the following questions: When does a repeated refusal become excessive and therefore constitute a lack of cooperation? Would twice be enough? Whether it is three, or less, or more, this is precisely the type of matter that is subject to delineation in a collective-bargaining agree- ment; see, for example, the stringent requirements of art. VI, sec. 4 of the contract which must be met for an employee to be excused from missing scheduled overtime. ' 0 Cf. Snap-on Tools Corporation. 207 NLRB 238 (1973). 814 MICHIGAN SCREW PRODUCTS ORDER" Respondent. Michigan Screw Products Division of MSP Industries Corporation, Center Line. Michigan. its officers, agents, successors. and assigns, shall: 1. Cease and desist from: (a) Discharging employees because they engage in pro- tected concerted activity. (b) In any like or related manner interfering with, re- straining. or coercing its employees in the exercise of the rights guaranteed to them in Section 7 of the Act. 2. Take the following affirmative action necessary to im- plement the policies of the Act: (a) Offer to Michael Ross immediate and full reinstate- ment to his former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to his seniority or other rights and privileges. (b) Make Michael Ross whole for any loss of pay he may have suffered as a result of his unlawful discharge in the " 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. manner set forth above in the section entitled "The Rem- edv." (c) Preserve and, upon request. make available to the Board or its agents, for examination and copying, all pa- roll records, social security payment records. timecards, personnel records and reports. and all other records neces- sary to analyze the amount of backpa) due under the terms of this Order. (d) Post at its place of business and office at C'enter Line. Michigan, copies of the attached notice marked "Appen- dix."" Copies of said notice. on forms provided bh) the Re- gional Director for Region 7, after being duly signed by Respondent's 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 customarily are posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced. or cov- ered by any other material. (e) Notify the Regional Director for Region 7, in writing, within 20 days from the date of this Order, what steps Re- spondent has taken to comply herewith. 11 In the event that this Order is enforced b) 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 to a Judg- ment of the United States Court of Appeals Enforcing an Order of the Na- tional Labor Relations Board." 815 Copy with citationCopy as parenthetical citation