Schneider, Inc.

National Labor Relations Board - Board Decisions

Apr 13, 1979

241 N.L.R.B. 850 (N.L.R.B. 1979)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Schneider, Inc. and Donald E. Rained. Case 33-CA-
3749
April 13, 1979
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS JENKINS
AND PENELLO
On February 6, 1979, Administrative Law Judge
Claude R. Wolfe issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief, and the General Counsel filed
an answering 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 briefs
and has decided to affirm the rulings, findings,2 and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended Or-
der of the Administrative Law Judge and hereby or-
ders that the Respondent, Schneider, Inc., Pittsburgh,
Pennsylvania, its officers, agents, successors, and as-
signs, shall take the action set forth in said recom-
mended Order, except that the attached notice is sub-
stituted for that of the Administrative Law Judge.
I Respondent filed a motion for new hearing and motion in the alternative
for admission of exhibits into evidence wherein it contends that a new hear-
ing should be held "in order to develop an accurate and complete record."
Respondent further contends that, in the event the Board denies its motion
for a new hearing, the Board should, in the alternative, admit into the record
the field construction agreement and the national construction agreement
which Respondent and the Union applied to the construction site in question
in this case. The motions fail to state what evidence would be adduced at a
new hearing. Nor do they state that such evidence is newly discovered or
previously unavailable. While the field construction agreement was identified
at the hearing, it was not offered into evidence. The national construction
agreement was neither identified nor offered and there is no explanation
offered as to why this document was not available at the time of the hearing.
Accordingly, we hereby deny Respondent's motion for a new hearing and its
motion, in the alternative, to admit into the record the two agreements.
2 Respondent has excepted to certain credibility findings made by the Ad-
ministrative Law Judge. It is the Board's established policy not to overrule
an Administrative Law Judge's resolutions with respect to credibility unless
the clear preponderance of all of the relevant evidence convinces us that the
resolutions are incorrect. Standard Drv Wall Products, Inc., 91 NLRB 544
(1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the
record and find no basis for reversing his findings.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discharge or otherwise discrimi-
nate against you because you engage in con-
certed activities protected under Section 7 of the
National Labor Relations Act.
WE WILL NOT in any other manner interfere
with, restrain, or coerce you in the exercise of
rights guaranteed you under Section 7 of the Na-
tional Labor Relations Act.
WE WILL offer Donald E. Raineri immediate
and full reinstatement to his former job or, if his
former job no longer exists, to a substantially
equivalent job, wihout prejudice to his seniority
or other rights and privileges previously enjoyed,
and make him whole for any loss of earnings he
may have suffered as a result of our discrimina-
tion against him, with interest computed thereon.
SCHNEIDER, INC.
DECISION
STATEMENT OF THE CASE
CLAUDE R. WOLFE, Administrative Law Judge: This pro-
ceeding was tried before me at Peoria, Illinois, on Novem-
ber 20, 1978, pursuant to a charge filed on May 30, 1978,
and complaint issued on July 7, 1978. The complaint alleges
the discharge of Donald E. Raineri on April 13, 1978, in
violation of Section 8(a)(3) and (1) of the Act. The Respon-
dent, Schneider, Inc., duly denied the commission of unfair
labor practices.
Upon the entire record, including my observation of the
witnesses as they testified, and after due consideration of
the parties' post-trial briefs, I make the following:
FINDINGS OF FACT
1. JURISDICTION
Respondent, a Pennsylvania corporation doing business
at Pekin, Illinois, is a mechanical contractor engaged in the
installation of piping systems and other commercial and
mechanical contracting work. Respondent, during the 12
months preceding the complaint, a representative period,
purchased and caused to be transferred and delivered to its
Pekin facility, goods and materials valued in excess of
$50,000 which were transported to said facility directly
from States other than the State of Illinois. Respondent is,
and has been at all times material herein, an employer en-
gaged in commerce within the meaning of Section 2(6) and
(7) of the Act.
241 NLRB No. 134
850
SCHNEIDER, INC.
II. LABOR ORGANIZATION
International Brotherhood of Boilermakers, Iron Ship
Builders, Blacksmiths, Forgers and Helpers, AFL-CIO, Lo-
cal No. 60, is, and has been at all times material herein, a
labor organization within the meaning of Section 2(5) of the
Act.
Ill. THE DISCHARGE OF DONALD E. RAINERI
A. The Facts
Respondent has a national contract with the Boilermak-
ers Union under which it operates and has, at all times
material herein, conducted its work at the Pekin, Illinois,
jobsite in accordance with a construction collective-bar-
gaining agreement of International Brotherhood of Boiler-
makers, Iron Ship Builders, Blacksmiths, Forgers and Help-
ers, AFL-CIO, Local No. 60, of Peoria and Central Illinois.
This contract covered Raineri while he was employed by
Respondent.
Raineri, who had been working about 6 weeks, was dis-
charged on April 13, 1978. The General Counsel elected not
to call Raineri as a witness and relies on the testimony of
the general foreman of Boilermakers, Mick Nelsen, and
Erection Superintendent W. V. Peterson, a signed statement
of General Superintendent Joe Carmello' regarding the rea-
sons for Raineri's discharge, a signed statement by Nelsen,
and the notice of termination of employment for Donald E.
Raineri. The notice of termination, signed by W. V. Peter-
son,2 states the reason for discharge as "insubordination,"
and contains the following explanation:
Schneider Inc is terminating the above named em-
ployee due to his adgitating (sic) fellow workers and
habitual complaining of working conditions is lowering
the productivity of other men on the job.
This man is not for re-hire.
Peterson gave this paper to General Foreman Nelsen.
who then gave it to Raineri, with a copy to the union stew-
ard.
That Respondent was unhappy with Raineri is clear. The
reasons for that disenchantment were voiced by Nelsen.
According to Nelsen, Raineri was a constant complainer
who could not be satisfied, continually questioned and criti-
cized his foreman, and loafed on the job. Nelsen cites an
instance when Raineri complained that his welding leath-
ers, fire protective sleeves furnished employees by the em-
I General Counsel was unsuccessful in secunng Carmello as a witness, and
it appears that Carmello did not receive General Counsel's subpena. Respon-
dent did not call Carmello. Neither party requested a continuance to so do.
It was stipulated that Carmello's statement. on Respondent's letterhead, was
prepared by him and submitted to the Board's Regional Office during the
investigation of the case. I conclude that Carmello's statement is admissable
into evidence and may be properly considered under Rule 801(d)(2) of the
Federal Rules of Evidence for any admissions by Respondent therein con-
cerning the subject matter before me.
2 1 credit Peterson's testimony that he prepared and sigied the termination
notice. Nelsen's testimony with respect to the notice is so vague and evasive
that it is generally not worthy of credit. However, I do credit his claim,
complimentary to Peterson's testimony, that Peterson secured his agreement
with the notice and told him it was worded in a fashion acceptable to Car-
mello.
ployer pursuant to contractual provision,' did not fit even
though Respondent procured the largest size available. Rai-
neri was transferred from welding to other work because
Respondent was unable to provide him with welding leath-
ers that fit him. Nelsen asserts that this problem with Rai-
neri over the welding leathers had nothing to do with Rai-
neri's discharge, but it was plain from the tone of his voice
and his exasperated expression when he testified about it
that Nelsen was still unhappy about his dealings with Rai-
neri over the leathers. Additionally, his written account of
Raineri's complaints leading up to his termination includes
a description of the welding sleeve incident. I conclude that
although this impasse over the sleeves may not have been
the sole precipitating factor in the discharge. Nelsen still
harbored resentment toward Raineri over this affair and
considered it together with other matters as a reason for
discharge.
Nelsen concedes that Raineri never outright refused to
work, but claims he would "drag his feet" and not do his
share of the work. As an example, Nelsen points to hearsay
information that Raineri did not help other employees
manually carry four-by-four timbers but instead demanded
that a machine be used to carry them, all of which caused
other employees to be unhappy with Raineri because he did
not work as they did. The only direct evidence of loafing
that Nelsen has is his personal observation of Raineri
standing with his arms folded while others worked.' I credit
Nelsen's unrebutted testimony that he saw Raineri standing
idly by when his companions were working, and I am per-
suaded that this was part of the incident of the four-by-
fours. I do not think it unnatural or unbelievable that Nel-
sen should accept hearsay reports from others on the job
with regard to Raineri's performance when that hearsay is
buttressed by his personal observation of what appears to
have been loafing by Raineri. Similarly, I have no reason to
doubt Nelsen's claim that other employees complained
about Raineri's loafing, and I credit his testimony that em-
ployee Gary Gold was angry and said, with reference to
Raineri. "Hey, I don't have to work with a guy like this. If
he doesn't want to do the work, tell him to go sit it out in a
corner someplace. I'll do mine and his work both." I further
credit Nelsen that other employees told him they did not
want to work with Raineri, did not need his aggravation,
and requested to be laid off rather than work with him.5
Another situation involving Raineri, which also appears
to have occurred after his transfer, revolves around the
question of work during or between rain showers. I credit
Peterson that when it rains "its all work or no work," and
construe that to mean that if there is enough work unaf-
' The contract reads:
Fire protective clothing shall be made available for welder's use, when
at the discretion of the superintendent, foreman and steward, the) are
necessary for welders' safety and protection. Such clothing shall remain
the property of the employer. Each employer will purchase welding
gloves which will be available for sale to the man on the job at the
company's cost.
4It appears that the four-by-four incident and Nelsen's observation of
Raineri standing with his arms folded occurred after he was transferred from
welding.
Raineri was present at the hearing, and his failure to testify leads me to
believe that he could not rebut the allegations of loafing testified to by Nel-
sen.
851
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
fected by rain for the entire crew they will work, but none
will work if there is insufficient work for all. Peterson gives
his reason for being involved in Raineri's discharge as Rai-
neri's challenge of his authority to shut down the job on a
rainy day. Peterson did so and Raineri told him he was
wrong for shutting down the job, and questioned whether it
was Peterson or the general foreman who made the deci-
sion. Peterson replied it was his decision. Raineri did not
agree with the decision and went off to the trailer.6 Raineri
did not attempt to make any arrangement with Peterson for
work during the rain, but questioned his authority to shut
down the job when it rained. Contrary to Respondent who
views this as insubordination, Raineri's complaint about no
work, even if he is wrong that such work was possible, was
not a refusal to do anything ordered by supervision or a
threat to do anything contrary to supervisory instruction. I
view Raineri's complaint as similar to a grievance concern-
ing hours and working conditions. The response of manage-
ment to his complaint would likely have an effect on
whether or not other employees would work, and thus his
protest, if remedied, had potential benefit for those employ-
ees. Accordingly, I am persuaded that his complaint about
no work on a rainy day was protected activity under the
Act.'
Relying on Carmello's written statement, General Coun-
sel seeks to convert a reference to Raineri's complaining to
fellow workers that the job shut down was a lockout into
evidence that Raineri had "discussed the rain-out problem
with other employees." From this, General Counsel draws
another conclusion that Respondent was concerned with
"this concerted aspect of Rainer's conduct." I disagree.
Carmello's mention of a complaint by Raineri does not con-
vert that complaint to other employees into protected ac-
tivity or show concern about the "concerted aspects" of
such conduct. General Counsel's argument is based on
weak evidence when stronger evidence, the testimony of
Raineri, was readily available if it supported the argument.
I conclude that Raineri's testimony, if proffered, would not
have supported the argument because no reason was given
or even intimated for the absence of Raineri as a witness
even though he was present at the hearing. General Coun-
sel's conclusions are not warranted by the evidence of rec-
ord.
The General Counsel extracts a recitation from Car-
mello's written statement to the effect that Raineri told him
he had a doctor's appointment for a checkup on a previous
work-related injury, but could not go because the job was
shut down and the steward was not present to take him.
Carmello told Raineri that an employee was supposed to be
accompanied by the steward on his first trip for medical
aid, but thereafter was obligated to take himself. When Rai-
neri said he could not find the doctor's office, Carmello sent
an office employee to guide Raineri. I do not agree that this
statement by Carmello is to be viewed as an admission that
part of the reason for Raineri's discharge was for requesting
a union steward. The talk about the steward occurs as part
of a narrative by Carmello relating his contacts with Rai-
neri, not as a reason for discharge.
6 Apparently a construction office at the jobsite.
'ARO, Inc., 227 NLRB 243, 244 (1976).
I am persuaded that Raineri loafed on the job, com-
plained a lot, and was not liked by fellow employees. A
picture emerges of an employee interested in furthering his
own welfare, and is argumentative, irritating, and not too
pleasant to work with. If, however, his discharge was based
partly on protected activities a violation of the Act is estab-
lished, whether or not he is a disquieting employee. In my
judgment, Raineri was not discharged for requesting a stew-
ard or discussing the rain-out problem with other employ-
ees. I have, however, found that Nelsen considered the mat-
ter of the welding sleeves as one of his reasons for
recommending discharge From the evidence before me, I
conclude that the welding sleeves furnished were not large
enough to fit Raineri. He was clearly entitled to appropriate
fire protective clothing by virtue of the contract, and his
refusal to accept welding sleeves that did not fit him consti-
tuted protected activity because his insistence on sleeves
that fit him is, in effect, a demand that Respondent abide by
its collective-bargaining agreement to furnish such clothing.
Such insistence has been viewed as "an extension of the
concerted activity giving rise to the agreement."9 and efforts
by one employee to enforce collective-bargaining agree-
ment provisions have been long held by the Board and
courts to be protected activity. °0
I have also found that Raineri's complaint to Peterson
about not working on rain days was protected activity, and
Peterson's testimony that this complaint and accompanying
conversation with Raineri was the reason he got involved in
the discharge warrants a finding that this was a reason he
entertained for approving the discharge.
I conclude that the discharge of Raineri was in large part
motivated by Respondent's displeasure with his request for
proper fitting sleeves, which he was entitled to under the
collective-bargaining agreement as Respondent well knew,
and Raineri's complaint about being laid off when it rained.
I have found both the insistence on welding sleeves ("leath-
ers") and the complaint to Peterson to be protected activity
under Section 7 of the Act. Accordingly, the discharge of
Raineri violated Section 8(a)(1) of the Act."
Upon the foregoing findings of fact and conclusions
based thereon, and upon the record as a whole, I make the
following:
CONCLUSIONS OF LAW
I. The Respondent, Schneider, Inc., is an employer en-
gaged in commerce within the meaning of Section 2(6) and
(7) of the Act.
2. The Union, International Brotherhood of Boilermak-
ers, Iron Ship Builders, Blacksmiths, Forgers and Helpers,
AFL-CIO, Local No. 60, is a labor organization within the
meaning of Section 2(5) of the Act.
I consider it unnecessary to comment on the various drafts of the termi-
nation notice testified to by Nelsen. It is sufficient that his recommendation
was apparently the generating spark of and a significant contribution to the
discharge.
9 Key Cir Mechanical Contractors Inc., 227 NLRB 1884, 1887 (1977).
10 Inierboro Contractors. Inc., 157 NLRB 1295, 1298 (1966), enfd. 338 F.2d
495 (2d Cir. 1967).
" In view of the fact that the remedy would be the same, I find it unnec-
essary to determine whether Raineri's discharge also violated Sec. 8(aX3) of
the Act.
852
SCHNEIDER, INC.
3. By discharging Donald E. Raineri because he engaged
in protected, concerted activity, Respondent has violated
Section 8(a)( ) of the Act.
4. The unfair labor practice set forth above is an unfair
labor practice affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
THE REMEDY
In order to remedy the unfair labor practice found
herein, my recommended Order will require Respondent to
cease and desist from further violations, to post an appro-
priate notice to employees, and to offer Donald E. Raineri
unconditional reinstatement to his former job, or to a sub-
stantially equivalent job at the same jobsite if his former job
no longer exists, and make him whole for all wages lost as a
result of his unlawful discharge, such backpay and interest
thereon to be computed in the manner prescribed in F. W.
Woolworth Company, 90 NLRB 289 (1950), and Florida
Steel Corporation, 231 NLRB 651 (1977)."2
The General Counsel requests an order that interest of 9
percent be computed on Raineri's backpay. The Board de-
clined to adopt a fixed percentage rate of 9 percent in Flor-
ida Steel Corporation, supra, and that decision is binding
precedent which I shall adhere to unless and until the
Board modifies it.
Pursuant to Section 10(c) of the Act, I hereby issue the
following recommended:
ORDER"
The Respondent, Schneider, Inc., its agents, officers, suc-
cessors, and assigns, shall:
1. Cease and desist from:
2 See generally, Ismi Pluming & Heating Co., 138 NLRB 716 (1962).
3 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,
conclusiona 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.
(a) Discharging employees or otherwise discriminating
in any manner with respect to their tenure of employment
or any term or condition of employment because they en-
gage in concerted activities protected under Section 7 of the
Act.
(b) In any other manner interfering with, restraining, or
coercing its employees in the exercise of rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action designed to ef-
fectuate the purposes of the Act:
(a) Offer to Donald E. Raineri immediate and full rein-
statement to his former job or, if his former job no longer
exists, to a substantially equivalent job, without prejudice
to his seniority or other rights and privileges, and make him
whole for any loss of earnings he may have suffered by
reason of the discrimination against him in the manner set
forth in the section of this Decision entitled "The Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all pay-
roll records, social security payroll records, timecards, per-
sonnel records and reports, and all other records required to
analyze the amount, if any, of backpay due under the terms
of this Order.
(c) Post at its Pekin, Illinois, offices and facilities, copies
of the attached notice marked "Appendix."" Copies of the
notice, on forms provided by the Regional Director for Re-
gion 33, after being duly signed by Respondent's authorized
representative, shall be posted by it for 60 consecutive days
thereafter, in conspicuous places, including all places where
notices to employees are customarily posted. Reasonable
steps shall be taken by Respondent to insure that said no-
tices are not altered, defaced, or covered by any other mate-
rial.
(d) Notify the Regional Director for Region 33, in writ-
ing, within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith.
'4 In the event that 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 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."
853