Michigan Screw Products

National Labor Relations Board - Board Decisions

Jun 6, 1979

242 N.L.R.B. 811 (N.L.R.B. 1979)

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