Schneider, Inc.

National Labor Relations Board - Board Decisions

Jan 18, 1980

247 N.L.R.B. 415 (N.L.R.B. 1980)

SCHNEIDER, INC.
Schneider, Inc. and Robert J. Stoodt. Case 6-CA-
11699
January 18, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
PENELLO AND TRUESDALE
On September 28, 1979, Administrative Law Judge
Bernard Ness issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief, and the General Counsel filed
a brief in opposition to Respondent's exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings,' 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
Relations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the Respondent, Schneider, Inc., Pitts-
burgh, Pennsylvania, its officers, agents, successors,
and assigns, shall take the action set forth in the said
recommended Order, except that the attached notice
is substituted for that of the Administrative Law
Judge.
' Respondent has excepted 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 credibility unless the
clear preponderance of all of the relevant evidence convinces us that the
resolutions are incorrect. Standard Dry 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
After a hearing at which all sides had a chance to give
evidence, The National Labor Relations Board has
found that we violated The National Labor Relations
Act and has ordered us to post this notice and we
intend to carry out the Order of the Board and abide
by the following:
The Act gives all employees these rights:
To engage in self-organization
To form, join, or help unions
To bargain collectively through representa-
tives of their choosing
To act together for collective bargaining or
other mutual aid or protection
To refrain from any or all of these things.
WE WILL NOT discharge, lay off, or otherwise
discipline our employees because they exercise
their rights under Section 7 of the Act.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employees
in the exercise of the rights guaranteed them by
Section 7 of the Act.
WE WILL make whole Robert J. Stoodt for any
loss of earnings he may have suffered as a result
of our discrimination against him, together with
interest.
SCHNEIDER, INC.
DECISION
STATEMENT OF THE CASE
BERNARD NESS, Administrative Law Judge: Upon a
charge filed on October 10, 1978,' by Robert J. Stoodt, the
General Counsel issued a complaint on November 28,
alleging that Schneider, Inc., herein called Respondent,
unlawfully discharged Stoodt in violation of Section 8(a)(1)
and (3) of the National Labor Relations Act, as amended.
The complaint further alleges that Respondent engaged in
unlawful threats in violation of Section 8 (aX1) of the Act.
Respondent has denied the commission of any unfair labor
practices. A hearing was held before me at Pittsburgh,
Pennsylvania, on March 13, 1979.
Upon the entire record, including my observation of the
witnesses and after due consideration of the briefs filed by
the General Counsel and Respondent, I make the following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
Respondent, a Pennsylvania corporation, with its princi-
pal office located in Pittsburgh, Pennsylvania, is engaged in
the building and construction industry. During the 12-
month period preceding the issuance of the complaint it
received goods and materials valued in excess of $50,000 for
I Unless otherwise indicated all dates hereinafter refer to 1978.
247 NLRB No. 71
415
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
use at its Pennsylvania jobsites from points outside the
Commonwealth of Pennsylvania. Based on the foregoing and
as admitted by Respondent, I find that Respondent is
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
11. THE LABOR ORGANIZATION INVOLVED
United Association of Journeymen and Apprentices of the
Plumbing and Pipe Fitting Industry of the United States and
Canada, Local No. 449, AFL-CIO, herein called the Union,
is a labor organization within the meaning of Section 2(5) of
the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
At issue is whether Stoodt was laid off on September 14,
1978, because of his efforts to gain union membership for
other employees and himself. Beginning in 1974 Respondent
has performed construction work and then the maintenance
work at the coal gasification pilot plant in Bruceton,
Pennsylvania, as a subcontractor for the prime contractor,
The Lummus Company. In October 1976 Lummus entered
into a contract with four craft unions, including the Union
herein, under which the subcontractors were also bound.
The agreement was effective until October 22, 1978. (Jt. Ex.
1.) The contract contained a union-security clause which
provided employees become members of the appropriate
craft union within 30 days following the date of their
employment. Respondent employed about 74 individuals, of
whom approximately 30 were in the Union's unit. Of these
30, only 5 were union members. Respondent obtained its
employees through a referral system with the craft unions.
The Union never sought to enforce the union-security
clause.
To become a member a person first goes through an
apprenticeship program. In the alternative, an individual
with sufficient experience in the trade may apply to take a
written test. Upon qualifying and thereafter passing the test,
he becomes a member after paying his initiation fee.
Stoodt was one of the first employees hired by Respondent
in 1974. He had been referred by the Union but was not a
member. He began his employment as a maintenance fitter
in the field. After about 9 months he was transferred to the
instrument shop when it opened up.' He remained there
until his layoff on September 14. At the peak period there
were about 12 employees in the instrument shop, equally
divided between technicians and mechanics. At the time of
Stoodt's layoff there were three other fitters besides Stoodt in
the instrument shop. On September 13 Lummus directed
Respondent to cut back four mechanics from its comple-
ment.' Stoodt was one of the four selected by Palombini for
layoff. Respondent contends that Stoodt was selected as the
least efficient of the four fitters in the instrument shop. The
General Counsel's position is that Stoodt was discriminatori-
ly selected for layoff because of his efforts to obtain union
membership for the nonmembers and for himself.
I It is undisputed that he was transferred because Sam Palombini, the
maintenance superintendent, was dissatisfied with his work in the field.
' Respondent performed the work at the project under a cost plus
arrangement with Lummus, pursuant to which Lummus controlled the
maximum size of Respondent's work force and the size of its crews.
The maintenance superintendent, Palombini, has been a
union member for about 30 years. Robert Teti was hired as a
maintenance mechanic in February 1975 and became the
instrument shop foreman when it came into existence. He
was Stoodt's immediate supervisor. He is a union member
and the union steward at the plant.'
Stoodt and other nonunion employees were disturbed
because of their inability to obtain membership in the Union.
It is undisputed that Stoodt, from the time of his initial
employment, almost 4 years before his layoff, constantly
spoke with employees, supervisors, and union business agent
Walsh about obtaining membership. Other nonmembers also
expressed their dissatisfaction to the same channels. Stoodt
never filed an application for membership in the Union.
According to Stoodt, his reason was: "I never found out the
proper way to do it." He testified that he never received a
satisfactory response when he asked Teti and Walsh how he
could become a member. Teti testified that he explained the
procedures to Stoodt and heard Walsh tell Stoodt to take the
examination. I am satisfied that Stoodt was aware of the
union procedures but wanted to be accepted as a member
without having to follow the Union's prescribed procedures
to become a member.'
In early July, Stoodt was called into the office. Palombini
told him that he was spending too much time at the
Lummus office. Palombini told him he did not want Stoodt
airing to Lummus management the problems at Respondent
or talk about its employees. According to Stoodt, Palombini
also told him he should not have complained to Lummus
about not being able to become a union member but should
take up this problem with the Union. Stoodt testified that
once again, in the latter part of July or early August, he was
warned by Palombini that if he continued to keep visiting at
the Lummus office Respondent would take action against
him. Palombini testified that Respondent had received a
complaint from Lummus that Stoodt was spending too
much time at its office. He testified that he reprimanded
Stoodt for visiting the Lummus office and belittling Respon-
dent to the Lummus personnel and telling them of the
problems that arose at Respondent's operation and in the
instrument shop. At one point in his testimony he stated that
the Union was not mentioned in the discussion with Stoodt.
However, at another point he testified that Lummus had
reported that, among other tales related by Stoodt, "he was
also up there, bothering them about the union affiliation
stuff." I was not overly impressed with Stoodt's testimony
relating to his conversation with Palombini. He appeared to
relate in generalities what had occurred without any degree
of certitude. It was only after a series of questions relating to
the conversation with Palombini that he finally added that
Palombini referred to his efforts to attain union membership,
and that he should take up the problem with the Union
rather than with Lummus. With respect to the alleged threat
by Palombini to take disciplinary action, Stoodt first testified
that he was told to "cool it down," he then stated that he
was warned if he kept going to Lummus "they would
discharge me, they would discipline me, for talking to the
' He had failed the test to become a journeyman and carries a metal trades
book.
' He testified that employees of the other craft unions at the site were
automatically taken in as members after a certain period of time.
416
SCHNEIDER, INC.
Lummus people." After observing the witnesses and review-
ing their testimony, I believe that the basic thrust of
Palombini's displeasure voiced to Stoodt related to Stoodt's
airing to Lummus the problems concerning Respondent's
operation in the instrument shop and at the plant. I believe
that Palombini also told Stoodt he should not have told
Lummus about his problems in attaining union membership
but should be taking up this problem with the Union itself. I
am not convinced that Palombini threatened Stoodt with
any disciplinary action but rather, in substance, told him to
"cease and desist."'
In about mid-June a meeting was held among Respon-
dent's employees represented by the four craft unions to
prepare a list of demands to submit to the unions in
preparation for their negotiations for a new collective-
bargaining contract with Lummus following the one due to
expire in October. At this meeting Stoodt was conspicuous
in voicing his dissatisfaction because the nonunion employ-
ees were unable to become members of the Union. He said
that the employees should get an attorney to assist them and
complain to the International. He also said that the
employees should not approve a new contract unless they
received union books.' The meeting was chaired by John
Doleno, one of Respondent's foremen.' Seated alongside
Doleno was Teti.
Doleno credibly testified that one time in July he was in
the office and heard Palombini say on the telephone that he
had two troublemakers. After Palombini hung up Doleno
asked him who the troublemakers were. Palombini said that
Stoodt was one of the bad apples. Palombini testified that he
could not recall such conversation.
Joseph Majer, a millwright foreman and supervisor, called
as a witness for the General Counsel,' credibly testified that
"in the summer of '78" Palombini mentioned to him that
Stoodt "was always causing trouble by bringing up this
Union bit." Majer further testified to a conversation he had
with Palombini I or 2 days after Stoodt and three other
employees were laid off. Majer spoke to Palombini about the
layoffs, and when he asked Palombini why Stoodt was laid
off Palombini replied, "He's been shooting off his mouth
about the contract, about the men demanding Union books,
I don't think this is the time for that to be brought up, we
have enough trouble on this job the way it is. ... I had
three men going down the road, and no excuses were asked,
and he went with them." Palombini testified that he did not
remember any such conversation. I credit Majer's account.
Respondent's Defense
It is undisputed that Respondent was directed by Lum-
mus on September 13 to cut four mechanics from its work
force. Stoodt was one of the four laid off. The issue here is
whether Stoodt was discriminatorily selected because of his
* Foreman Doleno, a witnes for the General Counsel, testified that he was
going into Panombini's office s Stoodt was leaving and heard Palombini say,
"Lummus ha nothing to do about us down here." Doleno could not recall if
Palonbini threatened Stoodt with loas of his job.
' aed on the composite testimony of Stoodt, Doleno. Majer, and Teti.
" Although Respondent did not stipulate Doleno was a supervisor, the
records shows that he and the other foremen had the same responsibilities as
Teti, an admitted supervisor. Doleno was not a union member, and no
explanation was offered how he happened to be selected to preside at the
meeting. He was no longer employed by Respondent at the time of the
hearing.
protected concerted activities. Respondent contends that
Stoodt was selected because he was the least desirable to be
retained of the four fitters in the instrument shop. ' ° The
instrument shop later was discontinued. The General Coun-
sel, in his brief, concedes that Stoodt would have been laid
off in due course prior to the hearing without any opportuni-
ty for recall. At the time of the hearing the work force was
reduced to 7 from 74-78.
Stoodt had more seniority than the other three fitters in
the instrument shop, but he was the one chosen to be
terminated. Three other employees were laid off at the same
time. Seniority had not been followed in the past, it was not
followed here, and it was not followed in subsequent layoffs.
After Stoodt's layoff no fitter was added to the instrument
shop. Eight employees were hired later in September and
October, but they were skilled in other crafts and were hired
through the other three craft unions. None was hired to do
fitters work.
Foremen Doleno and Majer, witnesses for the General
Counsel, both testified that they had the opportunity to
observe the performance of the instrument shop employees.
Both considered Stoodt on a par with Fenton and more
experienced than either Carr or Krandel.
Palombini testified that he selected Stoodt for layoff after
consultation with Teti. Palombini testified that he selected
Stoodt because "nobody wanted to work with him, and he
did not want anybody else to work with him, and he had
some instruments that were put in wrong, it was brought to
his attention, and it didn't get any better, so we just added
him to the termination list." The only reference to Stoodt's
working relationship with other employees was Stoodt's
testimony that Palombini mentioned this to him when he
was transferred to the instrument shop about 3 years earlier.
Teti did not give this as a reason for recommending Stoodt
for layoff. Teti testified that he recommended Stoodt for
layoff because he was not satisfied with Stoodt's perfor-
mance. He testified that often when he left work for Stoodt
to do, he would come in the next day and the work would
not have been done properly or not done at all." He said that
Stoodt always had an excuse when Teti questioned him
about this work. In this connection he related incidents
which occurred on September 6, 8, and 12. On each of these
days Teti found fault with Stoodt's work performance and
was not satisfied with Stoodt's explanations. On September 6
Stoodt was directed to repair four valves on his shift. When
Teti discovered Stoodt had repaired only two of the four
valves, Stoodt gave an excuse and said that he was tired of
getting the dirty jobs. On September 8 Stoodt was directed
by Teti to finish installing a depth gauge into a coal storage
tank. Teti had begun this work with another employee on
the previous shift. When Teti discovered that Stoodt had not
done the work, Stoodt said that he had been told by a
Lummus supervisor not to bother doing it. On September
' He was no longer employed by Respondent at the time of the hearing. I
find that Majer, as well as Teti and Doleno, were supervisors within the
meaning of the Act.
'" Carr, Fenton, and Krandel. The transcript refers to the last named as
Crandall, but see Resp. Exh. 2.
" On those particular assignments Teti would be on the afternoon shift,
whereas Stoodt would be on the night shift without any immediate
supervision.
417
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
12, Teti directed Stoodt to install a flow system. Teti
discovered the next day that Stoodt had installed it back-
wards, and he had to have the system reinstalled. Stoodt's
excuse was that there had been a change that he had been
unaware of, and for this reason he had mistakenly installed it
improperly. Teti also testified that the other three fitters
were more generally qualified than Stoodt; they were more
experienced in heating and air-conditioning work.
Discussion
In his brief the General Counsel states that Stoodt's
attempts to obtain membership in the Union for the
nonmember employees, including himself, may have been an
internal union problem. He then, with persuasive argument,
points out that both Palombini and Teti were union
members themselves and resented Stoodt's attempts to
bypass the Union's prescribed procedures to attain member-
ship through examination. Palombini had told Doleno that
Stoodt was a "bad apple." He also told Majer that Stoodt
was causing trouble by always talking about "the Union
bit." The most critical testimony to support a finding of
unlawful motivation was Palombini's statement to Foreman
Majer when he was asked by Majer why Stoodt had been
selected for layoff. To repeat, at the time Palombini said,
"He's been shooting off his mouth about the contract, about
the men demanding Union books, I don't think this is the
time for that to be brought up, we have enough trouble on
this job the way it is.-I had three men going down the road,
and no excuses were asked, and he went with the." The
collective-bargaining contract was due to expire the follow-
ing month.
Palombini testified that Project Manager Turek and he
decided on the individuals to be laid off after consulting with
the foremen. Regarding reaching his decision to lay off
Stoodt he testified on direct examination as follows:
Q. Did anybody recommend to you that Stoodt be
laid off at that time?
A. Yes, I did talk to Mr. Teti.
Q. Did Teti tell you that he thought Stoodt should be
laid off?
A. Well, we talked it over, yes.
Teti testified that Palombini spoke to him before the layoff.
Teti testified on direct examination as follows: "He said,
well, we had been having an ongoing discussion, over Mr.
Stoodt, for quite some period of time, and I thought
personally, that Mr. Stoodt's work had deteriorated to the
point where he was a detriment to my crew, and Sam came
to me and said, how's he doing, we are going to have a cut,
and I said, well, you know, it's time." I am convinced that
Palombini had decided to lay off Stoodt even before
consulting with Teti. Palombini considered Stoodt a trouble-
maker because of his activities in attempting to attain union
membership for the nonmember employees. This was evi-
denced by his comments to Foremen Doleno and Majer not
long before the layoff and after the meeting of the employees
at which Doleno presided with Teti was alongside him. At
this meeting Stoodt spoke of getting an attorney to bring an
action so the nonmembers could attain membership and said
that the employees should not ratify any contract unless they
received union books. And immediately after the layoff
Palombini told Foreman Majer that he laid off Stoodt
because of Stoodt's activities concerning union membership.
His comments to Majer indicated that he was concerned
with Stoodt's activities at that particular time with bargain-
ing negotiations forthcoming shortly. His apprehension was
that Stoodt's activities would be disruptive to the labor
relations at the plant. I am mindful of the fact that no
additional fitters were added to the instrument shop. On the
other hand, I have also considered that there were over 70
employees at the time. Lummus had directed Respondent to
lay off four mechanics. Respondent was free to choose any of
the mechanics on the job, not necessarily any one from the
instrument shop. Yet Palombini was set on selecting Stoodt
when he talked to Teti. It should also be noted that
Palombini testified that one of the reasons for selecting
Stoodt was because of his difficulties in working with other
employees. This had been a reason for transferring him into
the instrument shop in 1975, but Teti, Stoodt's foreman for
more than 3 years, did not testify that this was a reason for
his dissatisfaction with Stoodt. Although Palombini attempt-
ed to downplay Stoodt's workmanship, at one point in his
testimony he stated, "He may have been doing a fair job in
the instrument shop, but overall general work, I don't think
that the man could do it."
Accordingly, I conclude that Respondent violated Section
8(a)(1) and (3) of the Act when it laid off Stoodt because of
his activities to gain membership in the Union for the
nonmember employees and for himself.
CONCLUSIONS OF LAW
I. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. By laying off Robert J. Stoodt on September 14, 1978,
because of his activities protected by the Act, Respondent
violated Section 8(a)(1) and (3) of the Act.
4. The aforesaid unfair labor practices are unfair labor
practices within the meaning of Section 2(6) and (7) of the
Act.
5. Except for the foregoing Respondent has committed no
unfair labor practices.
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, it shall be recommended that Respon-
dent cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act.
Having found that Respondent unlawfully laid off Robert
J. Stoodt, I recommend that Respondent be ordered to make
him whole for any loss of earnings he may have suffered
from the date of his layoff until such time as he would have
been laid off absent the unlawful discrimination against him,
such period to be determined in the compliance stage of this
proceeding. The amount of backpay shall be computed in
the manner set forth in F;: W. Woolworth Company, 90
NLRB 289 (1950), with interest thereon to be computed in
418
SCHNEIDER, INC.
the manner set forth in Florida Steel Corporation, 231 NLRB
651 (1977)."
Upon the foregoing findings of fact and conclusions of
law, and upon the entire record, and pursuant to Section
10(c) of the Act, I hereby issue the following recommended:
ORDER"
The Respondent, Schneider, Inc., Pittsburgh, Pennsylva-
nia, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discharging, laying off, or otherwise disciplining
employees because employees exercise their rights under
Section 7 of the Act.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of the
rights guaranteed them in Section 7 of the Act.
2. Take the following affirmative action to effectuate the
policies of the Act:
(a) Make whole Robert J. Stoodt for his loss of earnings in
the manner set forth in the section of this Decision entitled
"The Remedy."
" See, generally, Isis Plumbing A Heating Co.. 138 NLRB 716 (1962).
"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.
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all payroll
records, social security payment records, timecards, person-
nel records and reports, and all other records necessary to
analyze the amount of backpay due under the terms of this
Order.
(c) Post at its place of business in Bruceton, Pennsylvania,
copies of the attached notice marked "Appendix."' Copies
of said notice, on forms provided by the Regional Director
for Region 6, 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 are customarily posted.
Reasonable steps shall be taken by Respondent to insure that
said notices are not altered, defaced, or covered by any other
material.
(d) Notify the Regional Director for Region 6, in writing,
within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith.
" 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 Judgment
of the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."
419