North Vernon Forge, Inc.

National Labor Relations Board - Board Decisions

Feb 25, 1986

278 N.L.R.B. 708 (N.L.R.B. 1986)

708 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
North Vernon Forge, Inc. and Robert Roberts. Case
25-CA-16370
25 February 1986
DECISION AND ORDER
By CHAIRMAN DOTSON AND MEMBERS
JOHANSEN AND STEPHENS
On 13 November 1985 Administrative Law
Judge Steven M. Charno issued the attached deci-
sion. The Respondent filed exceptions and a sup-
porting brief, and the General Counsel filed a brief
in support of the judge's decision.
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, I and
conclusions2 and to adopt the recommended
Order.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, North
Vernon Forge, Inc., North Vernon, Indiana, its of-
ficers, agents , successors, and assigns , shall take the
action set forth in the Order.
i 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 fmd no basis for reversing
the findings.
We note the inadvertent omission of a footnote number to correspond
with the substantive contents of fn . 5 in the judge's decision . It is clear
from the judge's discussion that fn. 5 should read "These findings are
based on Waldon's uncontroverted testimony "
2 In his Conclusions of Law, the judge found that the Respondent vio-
lated Sec. 8(a)(1) of the Act "by informing its employees that Robert
Roberts was discharged because he engaged in protected concerted ac-
tivities " In adopting that finding of a violation , as separately alleged in
the complaint, we note that the judge's conclusion is supported by a
statement made by Supervisor Glen Waldon to Roberts and Union Stew-
ard Woodrow Sandlin on 6 April 1984 during Roberts' discharge confer-
ence. Waldon, in providing Roberts with the reasons for his termination,
cited Roberts' complaints about his job assignments, including complaints
to the Union
Robert E. Hayes, Esq., for the General Counsel.
Steven V Shoup, Esq. (Peterson, Haramy, Cline & Shoup),
of Indianapolis, Indiana, for the Respondent.
DECISION
STEVEN M. CHARNO, Administrative Law Judge. In
response to a timely filed charge, a complaint was issued
on 26 March 1985 alleging that North Vernon Forge,
Inc. (Respondent), violated Section 8(a)(1) and (3) of the
National Labor Relations Act, by discharging Robert
Roberts for engaging in protected concerted activity.
Respondent's amended answer denied the commission of
any unfair labor practice.
A hearing was held before me in Seymour, Indiana, on
30 April 1985.1 Briefs were thereafter filed by the Gen-
eral Counsel and Respondent under extended due date of
14 June 1985.
FINDINGS OF FACT
I. JURISDICTION
Respondent is an Indiana corporation which manufac-
tures steel forging at a facility in North Vernon, Indiana.
During the 12-month period ending 31 March 1984, Re-
spondent, in the course and conduct of its business oper-
ations within Indiana, sold and shipped products valued
in excess of $50,000 to points outside the State and pur-
chased and received goods valued in excess of $50,000
from points outside the State. It is admitted, and I find,
that Respondent is an employer engaged in commerce
within the meaning of the Act.
Metal Polishers, Buffers, Platers and Allied Workers
International Union, AFL-CIO, Local No. 15 (Union) is
admitted to be, and I fmd is, a labor organization within
the meaning of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
Respondent's manufacturing process involves several
stages which are divided among five plants numbered 1,
2, 3A, 3B, and 5. The various job functions required by
the process of forging steel are remunerated at different
levels. At Plant 3-A, forgings are pounded into shape by
drop hammers which are manned by crews of three. The
hammer operator is the most skilled member of a crew
and is responsible for the other members, the heater and
trim press operators. Production jobs performed by a
hammer crew pay an incentive wage based on the
number of pieces produced, which usually results in
higher pay than other jobs required of the crew, such as
stacking, which pay a straight hourly wage.
Respondent and the Union were parties to a collec-
tive-bargaining agreement which was in effect from 18
June 1982 to 19 June 1985. That agreement defined job
classifications, set rates and types of pay, and established
a seniority system. With reference to the status of new
employees, the agreement stated:
New employees shall be considered probationary
employees until they have completed ninety (90)
calendar days of continuous service, after which
time their seniority shall revert back to the date and
hour of their employment. During this probationary
period, such employees may be laid off, transferred
or dismissed at the sole discretion of the Company.
i The portion of the motion seeking to correct p. 256, L. 21 is denied
since that line does not contain the work the General Counsel proposes
to correct . App A "Transcript Corrections" omitted from publication.
278 NLRB No. 106
NORTH VERNON FORGE
Article VIII, section 6, of the agreement contained a
provision which allowed an employee to "bump" into a
job being performed by a more junior employee
In the event a piece of equipment is shut down for
a period of five (5) days and there is no job open in
the affected employee's classification and shift, such
employee shall be entitled to exercise their seniority
on their shift and in their classification only on the
sixth (6th) work day to bump a junior employee re-
gardless of whether or not the junior employee is
working on a three throusand (3000#) pound or
four thousand (4000#) pound hammer
This provision and related portions of the agreement are
ambiguous in that they do not clearly indicate whether
they apply to probationary employees
At all times material herein , Robert Roberts was a
member of the Union and of the bargaining unit repre-
sented by it pursuant to the collective-bargaining agree-
ment
B The Alleged Discrimination
Roberts was first hired by Respondent in November
1983 as a part-time employee and assigned to set up
shelving in Plant 5 On 8 December 1983 he was con-
verted to full-time status and assigned to Plant 3-A as a
lift truck operator. On 24 January 1984 , 2 Roberts was
laid off as part of a general reduction in force
On 13 February Paul Belding , Respondent's personnel
manager, rehired Roberts to work as a cold inspector in
Plant 5 At that time , Roberts asked whether his prior
period of employment would be credited toward the
completion of the required 90-day probationary period.
Belding replied that it would not S Thus, on the date of
his rehire, Roberts was aware that he would be a proba-
tionary employee for the next 90 days.4
On 5 March Roberts and two probationary employees
were transferred to Plant 3-A as trainees on the second
shift under the supervision of Glen Waldon , production
supervisor Because Waldon recalled seeing Roberts at
Respondent 's facility some months previously, he mistak-
enly assumed that Roberts was a "senior" employee who
had completed a probationary period . Based on this as-
sumption, Waldon did not initially rotate Roberts' work
assignments nor closely observe Roberts' performance as
he usually did with probationary employees. 5
2 All dates hereinafter are 1984 unless otherwise specified
I credit Belding 's testimony on this matter Roberts' testimony that
Belding said he would think the matter over is unlikely in light of the
language of the collective -bargaining agreement which explicitly requires
continuity of service Furthermore, Roberts' memory concerning this
period was exceptionally poor as demonstrated by his testimony regard-
ing his work assignments , the identity of coworkers, and other work-re-
lated events, much of which was contradicted by documentary evidence
and other testimony which I credit
The General Counsel's contention on brief that Roberts maintained a
belief for an extended period that he was being asked to work as a proba-
tionary employee past the point required by the collective-bargaining
agreement is without any record support Indeed , Roberts himself testi-
fied that, about a week after his reemployment, Union Steward Richard
Lucas informed him that his prior employment by Respondent would not
be credited toward his probationary period
a These findings are based on Waldon 's uncontroverted testimony
709
Waldon initially assigned Roberts to work as a trim
press operator on an incentive pay job . On 12 March
Roberts' work assignment changed to stacking Because
Roberts knew that his wages would decrease without in-
centive pay, he spoke with Waldon and Union Steward
Woodrow Sandlin about bumping into an incentive pay
job which was assigned to Robert Stout , a probationary
employee junior to Roberts In seeking to bump into
Stout 's assignment , Roberts mistakenly relied on article
VIII , section 6, of the collective-bargaining agreement.6
Sandlin, who erroneously believed that Roberts was a
"senior" employee , presented Roberts ' requests to
Waldon who arranged for Roberts to take over Stout's
assignment, effective the following Monday -
On 19 March Roberts reported to work as a trim press
operator on a crew with Hammer Operator William Vin-
cent and Heater Operator David Barker .' During the
week that followed , Waldon learned for the first time
that Roberts had not completed a probationary period
and became irritated with Roberts for trying to assert
rights which he did not have Waldon felt that a proba-
tionary employee should do what his employer tells him
without questioning and viewed Roberts as failing to live
up to this obligation . Following Roberts ' "complaints,"
Waldon informed Roberts that , until the latter completed
his probationary period , he could be assigned to any job
and did not have any bumping rights under the collec-
tive-bargaining agreement 8 Roberts thereafter discussed
the matter with Sandlin who agreed with Waldon 's inter-
pretation of the contract
Beginning Monday 26 March, Roberts was assigned to
a crew headed by David Johnson for 2 days During the
remainder of the week, Roberts was the trim press oper-
ator on a crew composed of Hammer Operator Daniel
Brauer9 and Heater Operator Tony Cutsinger 10
On Monday, 2 April , Roberts was assigned to work as
a trim press operator . i r On the following Wednesday, 4
6 Although I credit Roberts' testimony concerning his interpretation of
the ambiguous contract language, his testimony that Sandlin later enter-
tained the possibility of filing a grievance over Roberts' bumping rights
cannot be accepted Sandlin testified credibly that he agreed with man-
agement's interpretation of the bumping provision and that he had tried
to enforce Roberts' bumping rights only because he thought Roberts was
a "senior" employee
r Barker testified that Roberts had failed to clean up while working
with the crew and , as a result, Waldon had heatedly reprimanded Vin-
cent who had replied that Roberts was responsible Neither Vincent nor
Waldon corroborated Barker, and it is undisputed that Waldon , who was
characterized by Barker as a stern task master, never spoke with Roberts
concerning the matter For these reasons and because Barker expressed
antipathy toward Roberts while testifying, I do not credit the testimony
concerning Roberts ' alleged failure to clean up
6 These findings are based on Waldon 's testimony and affidavit
9 Brauer was incorrectly identified in the transcript as "Bower "
'a Walden testified that he assigned Roberts as a heater operator on 30
March but replaced him with Cutsmger after a short period in response
to Brauer's complaints While the job tickets for that date neither confirm
nor rebut such an assignment, Roberts denied acting as a heater operator
Roberts' testimony to this effect was corroborated by Brauer and Cut-
singer, and Brauer denied that he had ever complained about Roberts
For these reasons, and based on my observation of the demeanor of the
various witnesses while testifying , I do not credit Waldon's testimony
that Roberts unsuccessfully worked as a heater operator on 30 March
i i Waldon's uncorroborated testimony that Roberts called on 2 and 3
April and said he would be unable to work, yet showed up in time for
work, was denied by Roberts I do not credit Waldon on this point
710 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
April, Waldon met with Belding and Respondent 's plant
supervisor, Jordan , and discussed his dissatisfaction with
Roberts Belding and Jordan told Waldon that the deci-
sion of whether to fire Roberts was entirely up to him 12
About 2 30 p in that day , Roberts called and stated
that he would be late for work He reported in about 4
p.m and gave Waldon a doctor 's slip which indicated
that Roberts should be excused from work that day and
the following day for health reasons . i a Roberts asked
Waldon if an absence would affect his job status, and
Waldon replied that Respondent would not fire Roberts
for being sick Roberts remained away from work on
Thursday 14
On the evening of Friday , 6 April , Waldon decided to
discharge Roberts At approximately 7.30 p .m, Waldon
called Belding at the latter 's home , told him of the deci-
sion, and asked Belding to inform Roberts of the dis-
charge on the following Monday The two agreed that
Waldon would discuss the reasons for the discharge with
Belding before the beginning of the second shift on
Monday 15
When Roberts reported on 6 April, he was assigned to
work as a trim press operator Roberts and the two other
members of the crew spent 4 - 1/2 hours setting up the
job.16 At approximately 8 p in, Roberts' crew began to
produce forgings Shortly thereafter , Roberts noticed
that the ram on his press was hitting too hard Produc-
tion was halted, and Waldon and, the die repairman, Wil-
liam Hardy , were called to check the equipment . Waldon
adjusted the trim press by tightening the bolts on the
ram with a large wrench , and the press began to produce
good forgings About half an hour later, Waldon and
Hardy were called back to the press which was again
malfunctioning They noted that the press was no longer
properly adjusted and that the bolts on the ram were
12 Weldon testified inconsistently as to the date or dates on which
such a meeting took place Belding corroborated the occurrence of a
single meeting which he initially testified took place on 30 March and
later, when recalled by Respondent , on 4 April Since such a change of
testimony would tend to be thought to reflect adversely upon Belding's
overall credibility and since the date of such a meeting is of little signifi-
cance in that it is not dispositive of any issue in this case , I infer that
Belding 's testimony that the meeting took place on 4 April represented
his certain recollection reached after an opportunity to reflect on the
question In addition , Waldon's undisputed comments to Roberts later on
4 April regarding Respondent 's policy of not firing an employee for
being ill make the most sense in light of a meeting earlier that day in
which Weldon had discussed firing Roberts for other reasons
1s Waldon testified that he smelled alcohol on Roberts ' breath on this
occasion and reported the matter to Belding Belding did not corroborate
Waldon's testimony , and Roberts denied that he had been drinking on 4
April The uncontested fact that Waldon, an admittedly stern task master,
who was already thinking of discharging Roberts, did not mention the
matter directly to Roberts on 4 April is unexplained and inexplicable I
do not credit Waldon on this point
14 Waldon 's testimony that Roberts said he would report to work on
Thursday is not credited Roberts denied making such a statement and
Waldon admitted that the doctor 's note specified 2 days of leave
1s Given the foregoing findings which are based on the mutually cor-
roborative testimony of Belding and Weldon , I do not credit Waldon's
later inconsistent testimony that he decided to fire Roberts at 1145 p in
on 6 April
16 Roberts ' testified that the job had been set up by a first-shift crew
who had experienced trouble with the press The work records for 6
April establish that the first-shift crew had manufactured a different type
of forging and that Roberts was paid for 4 - 1/2 hours of setup time I do
not credit Roberts' testimony
again loose 17 Once the press had been correctly adjust-
ed it would have been impossible for the bolts to work
loose without human intervention 18
At approximately 11 p m. that day Waldon sent Sand-
lin to bring Roberts into the supervisor's office. When
Roberts arrived , Waldon, in the presence of Sandlin, in-
formed Roberts that he was discharged . 19 When Roberts
pressed him for reasons , Waldon replied that there were
several When pressed further by Roberts , Waldon cited
Roberts' "complaints" about his job assignments , includ-
ing complaints to the Union.80
The following Monday Roberts met with Belding,
who stated that Roberts had been discharged for being
an unsatisfactory probationary employee. 21
C Discussion
The collective-bargaining agreement clearly establishes
that Roberts, as a probationary employee , could have
been discharged for any lawful reason or for no reason
at all Roberts could not, however, be terminated for en-
gaging in concerted activity protected by the Act Thus,
the outcome of this case turns on two questions- did
Roberts engage in protected concerted activity and, if so,
was that activity the reason for his discharge?
The Board has consistently held that attempts by an
individual to enforce the provisions of an existing collec-
tive-bargaining agreement are protected concerted activi-
ty under the Act, as long as the employee 's interpreta-
tion of the agreement has a reasonable basis E.g., Regen-
cy Electronics, 276 NLRB 4 (1985), Interboro Contractors,
17 Roberts' testimony that he could not adjust the press because he did
not have a wrench is not credited Cutsinger , a friend of Roberts and a
witness for the General Counsel , testified credibly that it is the trim press
operator's responsibility to adjust the press and that the wrench necessary
for this purpose is kept on or close by the press
18 I credit the testimony of Waldon and Hardy to this effect
19 Weldon testified that he observed during the interview that Roberts
was not wearing safety shoes and commented on the fact Waldon further
testified that this safety rule violation was one of his reasons for discharg-
ing Roberts Such an observation during the exit interview could hardly
have contributed to Waldon's decision to discharge Roberts since that de-
cision was admittedly made at least 3-1/2 hours before the interview took
place Neither Roberts nor Sandlin corroborated Waldon's testimony
concerning the comment and Roberts testified that he was wearing shoes
with metal toes on 6 April For the foregoing reasons, I do not credit
Waldon's version of what occurred
40 This finding has several evidentiary bases Roberts and Sandlin both
testified that Waldon mentioned Roberts' going to the Union I found
Sandlm to be an exceptionally credible witness-indeed , one who showed
no hesitation in testifying strongly in Respondent 's favor on other mat-
ters In addition , Waldon's 8 May 1984 affidavit contains the following
admission which I find more probative than Waldon's professed uncer-
tainty on the stand as to whether he had mentioned the Union during the
exit interview
When I told Roberts that one of the reasons for letting him go was
because I had had trouble with the union coming to me and com-
plaining about the jobs he had, I meant that Roberts had been com-
plaining about the jobs that I had been assigning him to do and I
didn't like him complaining about what jobs he was assigned to and I
thought he should feel lucky that he even had a job
' 1 Testifying as an adverse witness on behalf of the General Counsel,
Belding gave a number of reasons for Roberts' termination It is clear
that Waldon had and exercised the authority to fire Roberts for reasons
which Belding did not know at the time of the discharge Accordingly, I
do not find Belding's later recitation of reasons for that discharge, which
were presumably obtained from Waldon, to be probative on the question
of Respondent's motivation
NORTH VERNON FORGE
157 NLRB 1295 (1966), enfd 388 F 2d 495 (2d Cir
1967) Here, the ambiguous language of the collective-
bargaining agreement made it reasonable for Roberts to
believe that he had bumping rights His efforts to enforce
those rights by complaining to the Union and his super-
visor are therefore protected.
Walden in his testimony and affidavit advanced a
number of purported reasons why he fired Roberts. Sev-
eral of these are simply not supported by the record Al-
legations concerning Roberts' failure as a heater opera-
tor, his erratic attendance, his slowness in performing
nonincentive pay jobs, his drinking on 4 April, his viola-
tion of safety rules, and complaints about him from
fellow employees are almost exclusively supported by
Waldon's uncorroborated testimony which I did not
credit on these points Waldon's other purported reason
for the discharge, the trim press incident on 6 April,
clearly occurred after Waldon had admittedly decided to
discharge Roberts and appears to be a post hoc rational-
ization 22 The only reason which remains is Roberts'
"complaint" to the Union and Waldon in a mistaken at-
tempt to invoke the collective-bargaining agreement Ac-
cordingly, I find that Waldon discharged Roberts for en-
gaging in activity protected by the Act and that Roberts'
termination therefore violated the Act
CONCLUSIONS OF LAW
1 Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act
2 The Union is a labor organization within the mean-
ing of Section 2(5) of the Act
3 By informing its employees that Robert Roberts was
discharged because he engaged in protected concerted
activities, Respondent engaged in an unfair labor practice
in violation of Section 8(a)(1) of the Act
4 By discharging Robert Roberts because he engaged
in protected concerted activities, Respondent engaged in
an unfair labor practice in violation of Section 8(a)(1)
and (3) of the Act
5 The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act
REMEDY
Because Respondent engaged in unfair labor practices,
it shall be ordered to cease and desist therefrom and to
take certain affirmative action necessary to effectuate the
purposes of the Act Such affirmative action shall in-
clude an offer to Roberts of immediate and full reinstate-
ment to his former job, discharging any replacement if
necessary or, if that job no longer exists, to a substantial-
ly equivalent job, without prejudice to his seniority or
other rights or privileges previously enjoyed Roberts
shall be made whole for any loss that he may have suf-
fered as a result of Respondent's discrimination against
22 In addition , the record offers no proof that Roberts was the individ-
ual who misadjusted the press Even if the record did establish that Rob-
erts had tampered with the press , Respondent presented no evidence that
Roberts would have been fired for such an act, absent protected concert-
ed activity See Wright Line, 251 NLRB 1083 (1980), enfd 662 F 2d 899
(1st Cir 1981), cert denied 455 U S 989 (1982)
711
him Backpay will be calculated in accordance with the
formula set forth in F W Woolworth Co, 90 NLRB 289
(1950), to which interest shall be added in the manner
provided in Florida Steel Corp, 231 NLRB 651 (1977).23
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed24
ORDER
The Respondent, North Vernon Forge, Inc. North
Vernon, Indiana, its officers, agents, successors, and as-
signs, shall
1 Cease and desist from
(a) Informing its employees that an employee was dis-
charged because he engaged in union or other protected
concerted activities
(b) Discharging or otherwise discriminating against its
employees because they engage in union or other con-
certed protected activities
(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act
2 Take the following affirmative action necessary to
effectuate the policies of the Act
(a) Offer Robert Roberts 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 any other rights and privileges
(b) Make Robert Roberts whole for any loss of earn-
ings he may have suffered as a result of Respondent's
discrimination against him in the manner set forth in the
remedy section of this decision
(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) Remove from its files any reference to the dis-
charge of Robert Roberts on 6 April 1984, and notify
him in writing that this has been done and that evidence
of that unlawful discharge will not be used as a basis for
future personnel action against him
(e) Post at its North Vernon, Indiana facility, copies of
the attached notice marked "Appendix "25 Copies of the
notice, on forms provided by the Regional Director for
Region 25, 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-
88 See generally Isis Plumbing Co, 138 NLRB 716 (1962)
s4 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
Board and all objections to them shall be deemed waived for all pur-
poses
25 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 "
712 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered , defaced , or covered by
any other material.
(f) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT inform you that an employee was dis-
charged because he engaged in union or other protected
concerted activities.
WE WILL NOT discharge or otherwise discriminate
against you because you engage in union or other pro-
tected concerted activities.
WE WILL NOT in any like or related manner interfere
with, restrain , or coerce you in the free exercise of your
rights under Section 7 of the National Labor Relations
Act.
WE WILL immediately offer to reinstate Robert Rob-
erts to his former job or, if that job no longer exists, to a
substantially equivalent job, and make him whole, with
interest, for any loss of pay resulting from his unlawful
discharge.
WE WILL remove from our files any reference to the
unlawful discharge of Robert Roberts on 6 April 1984,
and WE WILL notify him that this has been done and that
evidence of this unlawful conduct will not be used for
future personnel action against him.
NORTH VERNON FORGE, INC.