Stor-Rite Metal Products, Inc.

National Labor Relations Board - Board Decisions

Apr 30, 1987

283 N.L.R.B. 856 (N.L.R.B. 1987)

856 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Stor-Rite Metal Products , Inc. and Paul W. Martin.
Case 25-CA-17234
30 April 1987
DECISION AND ORDER
By MEMBERS JOHANSEN , STEPHENS, AND
CRACRAFT
On 18 February 1986 Administrative Law Judge
William F. Jacobs issued the attached decision. The
General Counsel filed exceptions and a supporting
brief, and the Respondent filed exceptions, a sup-
porting brief, and a brief in answer to the General
Counsel's exceptions.
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, 1 and
conclusions only to the extent consistent with this
Decision and Order.
I.
The judge found the Respondent did not violate
Section 8(aX3) and (1) by reducing its powder-line
employees' hours after employee Paul Martin con-
tacted the Indiana Human Rights Department and
filed charges with the National Labor Relations
Board contending that the Respondent unlawfully
denied powder-line employees contractual wages
and benefits, and that the Union failed properly to
represent them . 2 We disagree.
The parties' contract limits the contractual unit
to full-time production and maintenance employees
and plant clericals. Part-time employees are not in-
cluded in the unit. The contract also contains a 45-
day probationary period. According to Union
Chief Shop Steward Dwayne K. Norman's uncon-
tradicted testimony, anemployee would be regard-
ed as part of the unit only if he or she worked 40
hours or more each week for 45 days. Norman re-
garded employees who work 40 hours or more
i The General Counsel and the Respondent have excepted to some of
the judge's credibility findings. 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
find no basis for reversing the findings
In sec. IV,B, in the sixth paragraph under the heading "Analysis," the
reference to November 1973 in the second sentence should read "Novem-
ber 1983." In that same sentence, the word "now" should read "nor." We
correct these inadvertent errors.
S The General Counsel did not allege that the Respondent violated
Sec. 8(a)(4)
each week, but for less than 45 days, as excluded
from the unit.3
The Respondent established its powder line in
1983 to powder-coat the display shelving that it
manufactures with a pigment finish.4 The Respond-
ent expected that it would powder-coat products
far faster than it would produce them and thus in-
tended to seek contracts with other manufacturers
to powder-coat their products as well. Even with
outside contracts, however, it did not operate the
line full time. When it hired employees to work on
the powder line, it told them they would be part-
time employees. The Respondent did not regard
the powder-line employees as part of the contrac-
tual unit, did not pay them the contractual mini-
mum wage, and did not provide them with con-
tractual holiday pay, insurance, pension, or other
contractual benefits.
The Respondent hired employee Paul Martin for
its powder line in September 1984. From the time
the Respondent hired Martin through at, least Feb-
ruary 1985, the Respondent's powder-line employ-
ees, including Martin, often worked for 40 hours or
more per week, although none did so for 45 con-
secutive days. The powder line did not always op-
erate full time during this period. Finishing Depart-
ment Supervisor Gregory Jaques, who was respon-
sible for hiring and scheduling powder-line em-
ployees, gave the employees extra hours by assign-
ing them to maintenance and cleanup work and
work in other departments.
Martin believed almost from the start of his em-
ployment that because the powder-line employees
often worked 40 hours or more each week, they
should be included in the contractual unit. Martin
repeatedly complained to Union Steward Norman,
to two other powder-line employees, and to Super-
visor Jaques. The Union contacted the Respondent
in mid-October 1984 following Martin's complaints
and the Respondent thereafter established one full-
time unit job on the powder line: powder-line "op-
erator." Norman told Martin he could not other-
wise help him. He said he "couldn't get him in the
union because of the contract."
Employees Rick East and Tim Slayden, the
powder-line employees with whom Martin dis-
cussed his complaint, declined to help Martin press
the matter further. East, who expected to transfer
3 Thus, Norman testified that two part-time employees in the Respond-
ent's packing department worked 40 hours per week when enough work
was available When asked if they were therefore considered full-time
employees , Norman stated, "No, sir, they were part time "
4 The complaint, the judge, and some of the witnesses at the hearing
described the operation as a "paint-line" or as the "painting department "
In fact, the Respondent does not paint the components . It instead
"powder coat[s]" them, electrostatically bonding a powder finish to the
metal.
283 NLRB No. 123
STOR-RITE METAL PRODUCTS 857
into a unit position, told Martin he "didn't want to
get involved and mess his chances up of getting in
the union." Slayden told Martin he "didn't really
want to get involved because, at that time, he was
... averaging about 40 hours a week, and he
didn't want to mess that up."
When Martin again complained to Union Stew-
ard Norman in January 1985, Norman suggested
that Martin file a complaint with the Indiana De-
partment of Human Rights . In February, Martin
decided to do so and again asked East and Slayden
to help him. Both declined.
Martin had an appointment with the department
for the evening of 26 February 1985 . That day, he
told Supervisor Jaques of his plans and told many
other employees as well . Jaques told Martin, "Go
ahead and do what you have to do."
Jaques discussed Martin's plans with East and
Slayden . Jaques told them that if Martin filed a
complaint with the human rights department,
Jaques would "just have to reduce the hours" be-
cause he "was just doing [them] a favor by letting
[them] work that many hours a week because he
knew the employees] needed the money."
Martin went to the Indiana Human Rights De-
partment alone on 26 February .' A department at-
torney told Martin her department could not
handle his complaint , but that she would help him
fill out a National Labor Relations Board charge.
Martin made , plans to return to the department at a
later date to sign a Board charge.
The next morning, when Martin and Slayden re-
ported to work, Jaques told Martin , "You fucked
up by going to Human Rights . [Respondent Treas-
urer and Controller] Frank O'Brien told me I had
to cut everybody's hours." ' Jaques also said, "It
would not have been so bad if he hadn't gone and
blown off his mouth to everyone before he went,
but he had to do it, so nobody could work forty
hours."
Martin signed a Board charge against the Union
on 7 March 1985 , contending the Union denied him
representation "unfairly." The Regional Director
for Region 25 dismissed Martin's charge and, on 23
May 1985, Martin ' filed a charge against the Re-
spondent.
When Respondent Treasurer and Controller
O'Brien in March 1985 received a copy of the
charge Martin filed against the ' ' Union, he. again
contacted Jaques about the hours the powder-line
employees worked . This time O'Brien told Jaques
to eliminate unnecessary maintenance work and to
hire more employees. O'Brien reminded Jaques that
the powder-line employees were supposed to be
part time and said, "[L]et's try to keep it that
way."
In April, Martin and Slayden complained to
Jaques about the fact that their hours had been cut.
Jaques told them that they had been working too
many unproductive hours. He also stated that it
had been Martin who had brought to O'Brien's at-
tention that Jaques had been letting them work un-
necessary hours. He told Martin, "[Y]ou made your
bed, you're going to have to lie in it."
The Respondent through January and February
1985 operated its powder line with four, employees
and the employee complement averaged just under
40 hours per week per employee. In early March,
Jaques hired more employees and the average
number of weekly hours per employee fell to 30. In
April the employee complement dropped to four
and the weekly hours per employee briefly exceed-
ed 40, but Jaques quickly hired more employees
and the average dropped to less than 25. By June
the Respondent had nine employees for its powder
line. In July it had seven or eight and the average
number of weekly hours per employee dropped to
below 20. When asked why he hired the additional
employees, Jaques could not recall.
The judge found Martin had not engaged in con-
certed activity within the meaning of Section 7 of
the Act, relying on the Board's decision in Meyers
Industries.5 The Board in Meyers held that an em-
ployee who, by and on behalf of himself only, con-
tacted a state agency to make a statutory safety
complaint, had not acted- concertedly. There was
no applicable collective-bargaining agreement in
Meyers and the Board specifically distinguished the
facts in Meyers from those to which the Board's In-
terboro doctrine 6 might apply. Under the I»nterboro
doctrine, an employee who honestly and reason-
ably asserts a right grounded in a collective-bar-
gaining agreement acts concertedly within the
meaning of Section 7, even if the employee acts
alone The United States Supreme Court approved
the Interboro doctrine in NLRB v. City Disposal
Systems.7
Although Martin contacted a state agency, he
did so , contending the Respondent wrongfully
denied its powder-line employees contractual
wages and benefits and that the Union did not
properly represent them when it failed to secure
for them their contractual rights. Martin based his
contention on the fact that full-time employees
were included in the contractual unit and thus enti-
tled to contractual benefits. The Respondent's
powder-line employees, who often worked more
' 268 NLRB 493 (1984), remanded sub nom. Prill v. NLRB, 755 F.2d
941 (D.C. Cir. 1985), cert denied 474 U.S. 948 (1985).
6 Interboro Contractors, Inc., 157 NLRB 1295 (1966),^enfd 388 R2d 495
(2d Cir.,1967)
7 465 U S. 822 (1984).
858 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
than 40 hours each week, Martin argued , were full-
time employees . We fmd Martin's claim objectively
reasonable and there is no contention Martin
pressed his claim in bad faith. Accordingly, the
Board 's decision in Meyers Industries does not
apply in this case . Instead, we fmd Martin was en-
gaged in concerted activity when he went to the
Indiana Human Rights Department and when he
filed a charge with the Board, pursuant to the In-
terboro doctrine . Because we also find Martin acted
for the employees' mutual aid or protection, we
find Section 7 protected Martin when he individ-
ually pressed his claim.8
Although the judge found that the Respondent
reduced the powder-line employees' hours in' re-
sponse to Martin's claim, he concluded the, Re-
spondent had not done so unlawfully because he
found the Respondent had an economic justifica-
tion. The judge found the Respondent lawfully in-
tended to keep the powder-line employees part
time from the start because its business did not jus-
tify operating the -line full time . The Respondent,
the judge found, was fearful Martin - might succeed
in his effort to have the powder-line employees in-
cluded in the unit.
Jaques, however, did not simply reduce the em-
ployees' hours to just below 40 to make it clear
they were not full-time employees . By July he had
instead reduced their weekly hours to below 20. In
light of Jaques' statements to Martin that he had
"fucked up by going to Human Rights" and that he
had "made [his] bed" and was "going to have to lie
in it," we find that Jaques reduced the powder-line
employees ' hours so drastically in retaliation for
Martin's protected claim.9 Accordingly, we find
the Respondent violated Section 8 (a)(3) and (1).1°
8 City Disposal, supra, 465 U.S. at 830.
9 In sec. III,B ,_par. 18 the judge found that O'Brien "credibly" testified
that he had not retaliated against the powder-line employees in response
to Martin's claim . Whether we would be bound by that credibility deter-
mination if contradicted by other evidence independent of O'Brien's testi-
mony is questionable . Nonetheless, Jaques, not O'Brien, carried out
O'Brien's instructions and it is Jaques whom we rind tainted by unlawful
motives.
Because we find that Jaques reduced the powder-line employees' hours
so drastically solely in retaliation for Martin 's protected claim , and not
for any lawful reasons, we further find that the' Respondent necessarily
failed to carry its burden under Wright Line, 251 NLRB 1083 (1980),
enfd. 662 F.2d 899 (1st Cir. 1981), cent demed 455 U .S. 989 (1982), ap-
proved in NLRB v. Transportation Management Corp., 462 U.S. 393
(1983), to establish that it would have taken the same action even absent
the protected conduct.
ro The judge attempted to distinguish Akron General Medical Center,
226 NLRB 953, 956 (1976), but we find the facts in that case strikingly
similar. The contract in that case excluded part-time employees who
worked less than 20 hours per week . By practice , "oncall" employees
also were not covered by the contract. The employer placed a freeze on
adding further unit jobs early in 1975, but began to work oncall and
other part-time employees more than 20 hours per week after the freeze.
When the union and oncall and part-time employees filed grievances
seeking contractual wages and benefits , the employer cut their weekly
hours to less than 20. A hospital administrator said she had "tried to be a
II.
The judge concluded the Respondent did not
violate Section 8(a)(5) and/or (1) or Section 8(d)
by "fail[ing] and refus[ing] to assign full-time em-
ployment to certain of its [powder-coating] depart-
ment employees,"_ as the complaint alleged. We
agree, but we do not rely on the judge's factual
analysis.
The judge found the Respondent and the Union
agreed that powder-line employees would be ex-
cluded from the unit. More precisely, the ' parties
agreed that powder-line employees would be part-
time employees and, for that reason, would be ex-
cluded from the unit."
In finding the, parties agreed to exclude powder-
line employees from the unit, the judge evidently
relied on his further finding that the Union had
dropped its demand in, contract negotiations- that
the powder-line employees be included. In fact, ac-
cording to both Union Chief Shop Steward
Dwayne K. Norman's and Respondent Treasurer
and Controller Frank O'•Brien's uncontradicted tes-
timony, the Union proposed that all part-time em-
ployees be included in the unit. Both O'Brien and
Norman testified that they understood that the con-
tract excluded powder-line employees from the
unit because they were part time. There is no, indi-
cation they ever agreed that the contract excluded
powder-line employees whether or not they
worked full time. -
We nevertheless agree , that the Respondent did
not unlawfully fail or refuse to apply the, contract
to the powder-line employees. As discussed above,
the parties' contract included a 45-day probation-
ary period and Union Steward Norman understood
the- Respondent could thus work employees for 40
hours per week for less than 45 days and properly
exclude the employees from the unit. None of the
powder-line employees worked 40-hour weeks for-
45 consecutive days.
The-Union, in any-event, acquiesced to the Re-
spondent's'excluding the employees from the unit.
Norman became aware powder-line employees
worked 40 hours or more as early as mid-1984 and
employee Paul Martin from September 1984
through February 1985 persistently demanded they
be included in the unit. Although the Union met
with, the Respondent in mid-October 1984, after
which the Respondent established a full-time
nice guy" in giving the employees extra hours, but that the hospital ad-
ministration insisted she cut their hours because of the -grievances. 226
NLRB at 954-955. The Board found the employer violated Sec . 8(a)(3)
and (1). Id. at 956.
11 As discussed above, only full-time employees are included in the
unit.
STOR-RITE METAL PRODUCTS
powder-line position , the Union did not further
pursue the matter. 112
Accordingly, we shall dismiss this part of the
complaint.
CONCLUSIONS OF LAW
1. By reducing its powder-line employees' work
hours because an employee honestly and reason-
ably asserted a right grounded in the Union's col-
lective-bargaining agreement with the Respondent,
the Respondent violated Section 8(a)(3) and (1) of
the Act.
2. The Respondent has not otherwise violated
Section 8(a)(5), (3), and (1) or Section 8(d) of the
Act.
REMEDY
Having found that the Respondent has engaged
in certain unfair labor practices, we shall order it
to cease and desist and to take certain affirmative
action designed to effectuate the policies of the
Act.
We shall order the Respondent to make its em-
ployees whole for any loss of earnings and other
benefits, to be computed in the manner set forth in
F. W. Woolworth Co., 90 NLRB 289 (1950), with
interest as prescribed in Florida Steel Corp., 231
NLRB 651 (1977).13
ORDER
The National Labor Relations Board orders that
the Respondent, Stor-Rite Metal Products, Inc.,
Michigan City, Indiana, its officers, agents, succes-
sors, and assigns, shall
1. Cease and desist from
(a) Reducing its employees' work hours because
an employee honestly and reasonably asserted a
right grounded in -the Union's collective- bargaining
agreement with the Respondent.
(b) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them by Section 7
of the Act.
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act.
12 See City Hospital of East Liverpool, 234 NLRB 58 (1978); Ctarkwood
Corp., 233 NLRB 1172 (1977).
18 We find that the violation began in early March 1985 when Finish-
mg Department Supervisor Jaques hired additional employees and re-
duced the average number of weekly hours he assigned to powder-hne
employees to 30.
The General Counsel has requested that the Order include a "visitator-
ial clause" authorizing the Board , for compliance purposes , to obtain dis-
covery from the, Respondent under the Federal Rules of Civil Procedure
with supervision by the United States court of appeals enforcing this
Order. Under the circumstances of this case, we find it unnecessary , to
include such a clause. Accordingly, we deny the General Counsel's re-
quest:
859
(a) Make its employees whole for any loss of
earnings and other benefits suffered as a result of
the discrimination against them, in the manner set
forth in the remedy section of 'this decision.
(b) Preserve and, on request, make available to
the Board or its agents for examination and copy-
ing, all payroll records, social security payment
records, timecards, personnel 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 Michigan City, Indiana facility
copies of the attached notice marked ` Appen-
dix."14 Copies of the notice, on forms provided by
the Regional Director for Region 25, after being
signed by the Respondent's authorized representa-
tive, shall be posted by the Respondent immediate-
ly upon receipt and maintained for 60 consecutive
days in conspicuous 'places including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent
to ensure that the notices are not altered, defaced,
or covered by any other material.
(d) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply.
MEMBER STEPHENS , dissenting in part.
I agree, for the reasons stated by my colleagues,
that the Respondent did not violate Section 8(a)(5)
and' (1) of the Act by declining to apply the con-
tract to the powder-line employees. I also agree
that employee Martin's series of activities aimed at
securing the benefits of the collective-bargaining
agreement for himself and other powder-line em-
ployees was protected concerted activity. For the
reasons stated below, however, I would affirm the
judge's dismissal of the complaint.
I am willing to assume that the General Counsel
made out a prima facie case of discrimination in
violation of Section 8(a)(3), i.e., she produced evi-
dence from which we could infer that the Re-
spondent was,, motivated, at least in part, by a
desire to penalize the powder-line employees for
Martin's protests when it reduced their hours. Cer-
tainly the remarks of Supervisor ,Jaques provide
strong evidence of a discriminatory motive. Con-
troller O'Brien, however, is the official who made
the decision to reduce the employees' hours, and
the judge credited O'Brien's testimony that receipt
of the Board charge that Martin had filed regard-
14 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."
860 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ing denial of the contract benefits induced him to
order the reduction of hours because it then
became clear to him that Jaques was giving those
employees the equivalent of full-time work. Even
assuming (contrary to the judge's finding) that
O'Brien was ,also motivated by annoyance at Mar-
tin's .activities, I would find that the Respondent,
has carried its burden under Wright Line, 251
NLRB 1083 (1980),, enfd. on other grounds 662
F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989
(1982), approved in NLRB v. Transportation Man-
agement Corp., 462 U.S. 393, 400-403 (1983), of
showing that it would have taken the action' in
question even in the absence of the protected con-
certed conduct. Specifically, the record evidence
persuades me that it is more probable than not that
the Respondent would have reduced the powder-
line employees' hours even if the potential liability
for contractual benefits had come to its attention
from nonemployee sources and no employee had
ever protested the matter. It seems clear that the
Respondent wanted to protect what it regarded as
its bargain with the Union to exclude the powder-
line employees from the unit,' and the evidence in-
dicates to me that, for example, it would probably
have reduced the powder-line employees to the
status of irrefutably part-time employees even if it
was simply advised by its counsel that giving the
powder-line employees the equivalent of full-time
employment might raise a question whether they
should be included in the definition of "full-time
employees" entitled to contractual benefits.
That the Respondent did- not reduce the hours
before Martin's protests does not, in my view,
defeat the Wright Line defense. It seems clear to
me that not until then did O'Brien have reason to
think -there was any serious issue about the
powder-line' employees ' status, and hence he had
no reason to believe until then that changing their
hours might be advisable as a means of ensuring
that the 'Respondent's contractual bargain with the
Union over their, status would be protected.' The
fact that the Respondent eventually reduced the
powder-line employees' weekly hours to a greater
extent than was strictly necessary to reduce them
below the 40-hour average similarly does not per-
suade me to join my colleagues in the majority.
The record shows that the Respondent put in place
a procedure designed to ensure that it would not
thenceforth ever find itself in a position of needing
1 The union steward and O 'Brien had discussed the matter in October
and the result was the creation of one full -time position in the painting
department that would be deemed within the contractual unit. At that
point O'Brien reasonably could feel assured that the matter had been re-
solved and that the powder-line painting work could be done by the full-
tune employee and the other six powder -line employees working part
time.
to ask powder-line employees to work 40 hours a
week or more. This procedure resulted in much
less work for powder-line employees in July, but in
earlier months it simply fulfilled the goal of keep-
ing the employees' weekly hours below 40. The in-
stitution of such- a procedure is not inconsistent
with an aim of simply assuring that the powder-line
employees would not appear to be full,-time em-
ployees, arguably subject to the collective-bargain-
ing agreement.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that _we violated the-National Labor Relations Act
and has ordered us to post and abide by this notice.
WE WILL NOT reduce your work hours -because
one of you honestly and reasonably asserts a right
grounded in General Service Employees Union
Local No. 73's contract with us.
WE WILL NOT in, any like or related manner
interfere with, 'restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
WE WILL make our powder-line employees
whole for any loss of earnings and other benefits
resulting from our discrimination against them, plus
interest.
STOR-RITE METAL PRODUCTS, INC.
Walter Steele, Esq:, for the General Counsel.
J Charles Sheerin, Esq. (Hoeppner, Wagner & Evans), of
Valparaiso, Indiana, for the Respondent.
DECISION
STATEMENT OF THE CASE
WILLIAM F. JACOBS, Administrative Law Judge. This
case was tried before me on 30 September and 1 and 2
October 1985 at Michigan City, Indiana. The charge was
filed 28 May 1985 by Paul W. Martin. Complaint issued
31 July 1985 alleging that Stor-Rige Products, Inc. (Re-
spondent or Company) violated Section 8(axl), (3), and
(5)1 and Section 8(d) of the National Labor Relations
Act. More particularly the complaint alleges that,
1 Respondent, at the hearing, moved for dismissal of certain allegations
contained in the complaint on grounds that they had not been included in
the original charge. However, as stated in NLRB P. Font Milling Co., 360
U.S 301, 307-308 (1959):
A charge filed with the Labor Board is not to be measured by the
standards applicable to a pleading in a private lawsuit. Its purpose is
Continued
STOR-RITE METAL PRODUCTS
6(a)2 Certain painting department employees are full-
time production employees as described in and covered
by the existing collective-bargaining agreement.
(b) ]Full-time employees in the painting department did
not receive the benefits received by other full-time em-
ployees as required by the existing collective-bargaining
agreement.
(c) Between 25 September 1984 and 26 February 1985
certain employees of the painting department requested
the Union to' represent them and obtain for them the
benefits accorded other employees under the existing
collective-bargaining agreement.
(d) Between 25 September 1984 and 26 February 1985
the Union registered grievances with Respondent in an
attempt to obtain for certain employees of the painting
department the collective-bargaining agreement benefits.
(e) On 26 February 1985, Charging Party Martin filed
a National Labor Relations Boards charge to obtain for
the employees of the painting department, the benefits
accorded other employees under the existing collective-
bargaining agreement.
(f)4(g)
About 27 February 1985, Respondent reduced the
work hours of certain of its painting department employ-
ees.
(h) Since about 27 February 1985, Respondent failed
and refused to assign full-time employment to certain of
its painting department employees.
(i) Respondent reduced the work hours of and failed
and refused, to assign full-time employment to certain of
its painting department 'employees because Charging
Party Martin and other employees requested the Union
to represent them and obtain the benefits of the existing
collective bargaining contract for them; because Martin
filed the National Labor Relations Board charge; and be-
merely to set in motion the machinery of an inquiry NLRB v. I. of
M Electric Co, 318 U.S. 9, 18. The responsibility of making that in-
quiry, and of framing the issues in the ease is one that Congress has
imposed on the Board, not the charging party. To confine the Board
in its inquiry and in framing the complaint to the specific matters al-
leged in the charge would reduce the statutory machinery to a vehi-
cle for the vindication of private rights. This would be alien to the
basic purpose of the Act... .
Once its jurisdiction is invoked the Board must be left free to
make full inquiry under its broad investigatory power in order prop-
erly to discharge the duty of protecting public rights which Con-
gress has imposed on it. There can be no justification for confining
such an inquiry to the precise particularization of a charge.
The Supreme Court, in an earlier case , had remarked that it could find
no warrant in the language or purposes of the Act for saying that it pre-
cluded the Board from dealing adequately if initially with unfair labor
practices in the complaint and hearing stages of proceedings where those
unfair labor practices are related to those alleged in the charge. National
Licorice Co. v. NLRB; 309 U.S. 350, 369 (1940). ,
En the instant case, the charge was riled by an ordinary citizen, a work-
ing man, neither a lawyer nor a legal scholar . In sec 2 of the charge he
laid out fully and clearly the basis for his charge, quite sufficient to ap-
prise the Respondent of the underlying causes for the filing of the charge.
The fact that he failed to identify the specific, subsections of the Act
under which his alleged cause of action might fall does not warrant the
dismissal of his claim . Moreover, the inclusion in the complaint of the
identifying subsections cured the initial defect and adequately alerted Re-
spondent to the basis for all allegations . The motion is denied.
z The numbered paragraphs conform to those numbered paragraphs in
the complaint , each of which denotes a specific allegation,
3 Filed through the Indiana Human Rights Department..h
Par. 6(f) was conclusionary and was not a substantive allegation.
861
cause the Union registered grievances with Respondent
on behalf of Martin and other painting, department em-
ployees.
(i) ' Respondent reduced the work hours of certain of
its painting department employees and ,failed and refused
to assign them full-time employment in order to avoid its
obligation under the collectivebargaiping agreement-to
grant to all employees employed in its painting depart-
ment, all the rights and benefits accorded to full-time em-
ployees under the existing collective-bargaining agree-
ment.
In its answer, Respondent admitted some and denied
others of the above allegations . It denied, however, the
commission of any unfair labor practices.
The General Counsel and Respondent were represent-
ed at the hearing and were afforded full opportunity to
be heard, present evidence, and argument.5 Both the
General Counsel and Respondents filed briefs. On the
entire record, my observation of the demeanor of the
witnesses, and after giving due consideration of the
briefs, I make the following:'
5 Respondent at the hearing moved for dismissal of pars . 5 and 6 of the
complaint on grounds that these allegations "do not describe a violation
of the Act." Because the very purpose of these proceedings, i.e., the
taking of testimony and adducing of evidence at the hearing and the issu-
ance of a decision based thereon , is to determine whether the incidents
alleged actually occurred and, if so, whether singly or collectively they
amount to a violation of the Act, the motion, when made, was premature,
and, if granted, would have deprived the General Counsel of his right to
try his case. Whether the complaint describes a violation will be decided
herein. Motion denied.
6 Counsel for Respondent , in his brief, complained that his client was
"denied due process from the outset of the hearing," stating that "while
the Administrative Law Judge (ALJ) stated that the complaint was con-
fusing, thereafter General Counsel refused to described ' and the ALJ de-
clined to compel the General Counsel to described how the allegations of
the complaint described the violation of the Act."
According to the record , the General Counsel offered the formal docu-
ments and counsel for Respondent objected on several grounds including
his belief that the complaint was confusing and the allegations did not
state a violation within the meaning of the National Labor Relations Act.
In order to help Respondent's counsel understand the theory of the Gen-
eral Counsel, the General Counsel was invited to and in fact did make an
opening statement explaining his theory (Tr. 13-15). The fact that his ex-
planation was more than adequate to apprise Respondent of his theory of
the case is reflected in the adequacy of Respondent 's own brief in which
he capably argued his client's position . Moreover, if counsel for Respond-
ent found the complaint confusing, the time to do something about it was
at the time of receipt of the document when a 'mot ion for a bill of par-
ticulars would have been in order. The day of the hearing is a bit late.
Another complaint voiced by counsel for Respondent in his brief was
that, he had obtained certain 'documents from the General Counsel that
were identified and admitted, then withdrawn by the General Counsel for
copying. Respondent 's counsel complains in his brief that he never re-
ceived copies of these documents: R. Exh. 5, G.C. Exh. 7, G.C. Exh. 8,
G.C. 'Exh, 5(a), and G C. Exh. 12 . However, under standard Board hear-
ing procedures each attorney submitting exhibits is required to submit a
sufficient number of,copies to supply the administrative law judge and
each of the parties . That Respondent's counsel failed to submit a suffi-
cient number of R. Each . 5 can hardly be blamed on anyone but himself.
Regarding the General Counsel 's exhibits , the time to bring such deficien-
cies are first discovered so that the needed documents can be obtained in
time to be used in preparation of the brief. Respondent 's counsel took no
steps and made no attempt to communicate to me the fact that he had not
received copies of these documents. Because he,chose to submit his brief
without benefit of these documents, he can hardly effectively complain in
his brief about their absences.
862 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
In 1982 the plant moved from Chicago, Illinois, to
Michigan City, Indiana. Shortly after relocation, the Re-
spondent decided that it would create -its own, finishing
or painting department that previously had ,not existed. It
had been contracting out the painting of the parts it man-
ufactured. In addition to painting its own parts, Respond-
ent also planned-to seek contracts to paint parts manufac-
tured by other manufacturers. Even so, it was recognized
that there would not be sufficient work available for
painting department employees to keep them operating
on a full-time basis. Indeed, it was expected that the
painting department would probably operate only 2 or 3
days per week because under ordinary circumstances
that amount of time would be sufficient, to paint all the
parts manufactured by Respondent in a ' week. Conse-
quently, from its inception, and according to plan, the
new painting department operated on a part-time basis,
almost exclusively, running parts only 2 or 3 days per
week. This occurred despite Respondent's efforts to
obtain outside contracts to increase production in its
painting department.
As noted above the Union represented all full-time em-
ployees of Respondent since its certification in 1977. The
various departments employed a few part time employ-
ees who were neither represented by the Union nor
granted the wages and other 'benefits provided to the
full-time employees covered by the contract. However,
these part-time employees were permitted to bid on full-
time union jobs as they became available and were usual-
ly given preference over outsiders or union full-time em-
ployees, who under the contract, were not permitted "to
bid laterally on job openings.
In early 1983, when the painting department was being
set up, Gregory_ Jaques was hired to supervise that de-
partment. He was told' at the time by O'Brien that there
was no need for the painting department employees to
work over 40 hours per week `and that he should keep
the nonproductive hours down. Jaques, in turn, advised
each employee as hired that he would be working part-
time outside the unit but would be permitted to bid on
unit jobs as they became available. This procedure was
followed and as each painting department employee quit,
was terminated, or transferred into the unit, a new em-
ployee would be hired to take his place. Similarly, as
production fluctuated the painting department comple-
ment of employees would increase or decrease accord-
ingly between three and seven throughout 1983. The
same procedure was followed throughout 1984 during
which the complement of painting department employees
remained relatively steady, usually at four or five for the
first several months, then at six in the last few months
when production was high. Toward the end of Decem-
ber production dipped as did the available number of
hours. From late December through early March 1985
the complement of painting department employees re-
mained rather steady at four. When work was available
they worked over 40 hours and no attempt was made by
Jaques to keep them below 40,
As noted earlier, the Union represented only full-time
employees. The part-time employees in all departments
remained outside the unit. From its very inception, the
Respondent, an Indiana corporation,' maintains its
principal office and place of business in Michigan City,
Indiana, where it is engaged in the manufacture, sale, and
distribution of, metal shelving and related products.
During the past 12 months, a representative period, Re-
spondent sold and shipped from its Michigan City facili-
ty products, goods, and, materials valued in excess of
$50,000 directly to points located outside the state of In-
diana and purchased and received at its Michigan City
facility, products, goods, and 'materials valued in excess
of $50,000 directly from points located outside the State
of Indiana. I find that Respondent is an , employer en-
gaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The complaint alleges, the answer admits, and I find
that General Service Employees Union Local No. 73
(the Union) is a labor organization within the meaning of
Section 2(5) of the Act.
M. THE UNFAIR LABOR PRACTICES
The Facts
A. Background
The Respondent is a manufacturer of display shelving
and related products. Its operation is divided into four
departments: manufacturing, packaging, shipping and re-
ceiving, and finishing or painting. Management personnel
chiefly involved in the instant proceeding include Frank
O'Brien, controller and treasurer, who is in charge of the
day-to-day operations of the Company, and Gregory
Jaques, who is in charge of the painting department.8'
Respondent and the Union have negotiated and en-
tered into a succession of collective-bargaining agree-
ments since "1977 pursuant to the Union's certification
that year by the National Labor Relations Board. The
unit for which the Union is the bargaining representative
is described in the most recent (1983) contract as:
All full-time production and maintenance employees
and plant clerical -employees at the facilities and
unit described in the NLRB Certification Consent
Election Agreement Case 13-RC-14474, dated
August 2, '1977, Excluded office clerical shall in-
clude executive secretaries, accounting clerks, pay-
roll and timekeepers, receptionists, order control
clerks, sales, designers and computer workers. Set-
up men shall be included in the unit effective No-
vember 9, 1983, with full seniority credit from date
of hire for incumbent employees currently holding
those positions for all purposes.
Respondent amended its answer at the hearing to admit the state of
incorporation. 1
8 Both O'Brien and Jaques are admitted supervisors.
STOR-RITE METAL PRODUCTS
painting department was considered by both the Union
and Respondent to be outside the unit, primarily because
it was in operation only 2 or 3 days per week, it being
quite capable of finishing all Respondent's manufactured
production in that period of time. In 1983, although oc-
casionally a painting department employee might work
40 hours or more, the entire department averaged far
fewer hours. Therefore, when the parties negotiated a
new collective-bargaining agreement in November 1983
and the Union initially requested the inclusion of the
painting department in the unit and Respondent rejected
this demand, it was finally agreed that the entire painting
department would remain outside the bargaining unit
with its employees unrepresented and not subject to the
contractual provisions.
In mid-1984 the chief steward for the Union became
aware that occasionally some painting department em-
ployees would work over 40 hours. He approached man-
agement about bringing those employees into the unit,
but was told that there was still not enough work in the
painting department to make it full time. Although the
steward brought the subject up on several occasions with
management and informed his business agent about the
situation, the matter was never formally pursued through
the contractual grievance procedure.
B. The Alleged Unfair Labor Practices
On 25 September 19849 Jaques hired Paul Martin to
work on the paint line. Jaques told Martin, upon being
hired, that there would be some weeks when he would
not work 40 hours, that he would be considered a part-
time employee with a wage rate of $4, per hour. He also
advised him that, although his job was nonunion, he
would be eligible to transfer into a unit job as openings
occurred and that he would be considered for any avail-
able unit job before anyone on the street.*O Thereafter,
Martin worked-on the paint line as needed, sometimes 40
hours or more, sometimes less; depending on production
requirements.
In September or early October Martin, who at the
time was working 40-hour weeks, began to complain to
the union steward that although the painting department
employees were working full time, they-were still con-
sidered part-time employees being paid less than union
scale and receiving none of the contractual benefits of
the contract. He wanted to know why they were not in-
cluded in the unit. The steward advised Martin that they
were not included in the unit because of the contract,
that he was trying to get them' in 'but there was nothing
he could do. Despite the steward's explanation of the sit-
uation, Martin continued persistently to complain to him
about the situation almost daily.
Possibly as a result of Martin's complaints, a meeting
was held between the Union and management during
which the steward advised O'Brien that he was getting
flack about the part-tune employees not being in the
Union. Shortly thereafter, and probably' as a result of this
meeting, and the fact that production in the painting de-
9 Hereinafter all dates are in 1984 unless or until otherwise indicated
10 Jaques gave similar explanations of job conditions to- other new
hires.
863
partment dramatically increased and its complement ex-
panded, a new position was created in the department.
This position, a full-time paint operator, was to be the
only union job in the painting department. Clearly, man-
agement felt that the number of hours being worked by
the painting department, at the time, was sufficient to
support one full-time position, but that because of the er-
ratic nature of the paint department's production, it
would be economically more feasible to keep the rest of
the painting department employees working on a part-
time basis. Coinciding with the creation of the new full-
time position was the increase in October in the number
of painting department employees to an average of six.
As noted earlier, production hours increased dramatical-
ly at this time and the increase in the number of employ-
ees became necessary if the department were to remain
part-time. I 1
From early October through mid-December produc-
tion in the painting department remained high but in late
December it fell off dramatically. The complement in the
painting department fell to an average of four. With the
drop in paint line production some of the employees
would be sent home early. For those who did not want
to go home, Jaques would try to find work in other de-
partments for them in order to increase their hours.
Others would be given cleanup work to perform.
For 2 weeks in October, Martin worked in the packag-
ing department, still asapart-timer. When he returned to
the painting department, he began to discuss with other
employees, Ron East and Tim Slayden, their not being in
the Union and not getting union wages and benefits. He
argued that because he had been doing a unit job in
packaging, he should have received the benefits of the
contract. When he suggested talking to the shop steward
about it, however, East said that he did not want to get
involved because he was in the process of becoming a
union member and did not want to mess up his chances
of doing that. Slayden said he did not want to get in-
volved because he was working a 40-hour week and was
satisfied. Martin also aired his complaint to Jaques, but to
no avail.
In November Martin again talked to the chief steward
several times about getting the painting department into
the-Union. The steward told Martin that there was noth-
ing he could do until contract time, that his hands were
tied.
In, mid-November one of the painting department em-
ployees quit. Jaques, however, did not replace him as
was the usual practice in the past. Instead he had some
of the other remaining employees report in more often,
thus resulting in a greater number of hours worked, fre-
quently over 40. Instead of waiting to be called, these
employees were told to report every day. This continued
until Christmas. In mid-December Martin again com-
plained to Jaques about working 40 hours and not being
in the Union, but then with the sudden drop in produc-
tion around Christmas at least one' painting department
' In early October employees in the department averaged over 40
hours but with the hiring of additional employees in mid-October, the av-
erage dropped below 40.
864 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
employee, Slayden, was laid off for lack of work and the
complement dropped to three.
In January 198512 painting department production
again increased, but Jaques did not hire new employees,
although he did recall Slayden back.13 The complement
remained steady at four and with the increased number
of hours available Martin and the other painting depart-
ment employees began again to work a regular 40-hour
week.14 This prompted Martin once again to complain
to the steward that the paint department employees were
being discriminated against by allowing only one of them
to be in the Union when all were working over 40 hours
per week. The steward suggested that Martin take his
case to the Indiana Human Rights Department. Martin
also once again discussed getting into the Union with
East , and Slayden. Slayden agreed with Martin that it
would be nice to get into the Union and receive the
wages and benefits of the contract, but stated that he was
not going to protest his situation because he was work-
ing a 40-hour week and was lucky to have a job at all
because a lot of people did not have one. East agreed
with Slayden.
In January the Company installed some new equip-
ment in the painting department that made the paint line
run more efficiently. This, in turn, reduced the number
of available hours. The four painting department employ-
ees therefore shared fewer hours resulting in their receiv-
ing over 40 hours in just 1 week of 4 in February. About
5 February,, however, before the decrease in available
hours, Martin confided to Slayden that,-he had talked to
the chief steward once again about getting the painting
department employees into the Union, but that the stew-
ard had done nothing about it and was not going to do
anything about it. Martin said that because the steward
was doing nothing he was going to go to the Indiana
Department of Human Rights about the matter and file
charges against the Company and the Union to get the
paint line employees into the Union because they were
already working a 40-hour week.
In mid-February, the full-time paint operator was fired
for absenteeism and East was in line to replace him.
Slayden had been working over 40 hours in January and
averaging close to that in February. Therefore, when
Martin announced to Slayden and East about 26 Febru-
ary that he was going to file charges with Human Rights
and asked them to come with him, Slayden refused, stat-
ing once again that although it would be nice to be in
the Union and have all the benefits he was happy to be
working 40 to 45 hours per week. East also refused to
accompany Martin because he was in the probationary
period in ' the full-time paint operator's position and did
not wish to get involved.
In addition to telling East and Slayden of his intention
of going to Human Rights, Martin, on 26 February, also
told a number of other employees of his intentions. He
told Jaques that he had an appointment there later that
day to file a complaint against the Union and the Com-
12 Hereinafter, all dates are in 1985 unless otherwise indicated
is A few employees were hired for a couple of hours at night to work
on special orders.
14 Much of the work was maintenance and cleanup.
pany. He explained to Jaques that he felt it was discrimi-
natory to have one painting department employee in the
Union and the rest of the painting department out of the
Union, and the Company doing what it wants and the
Union letting the Company get away with it. Martin
argued that the painting department employees work 40
hours and just as hard as the union employees. Jaques re-
plied' that he would like to see the whole finishing de-
partment in the Union to end the bickering about it, but
that it was because the painting department could paint
parts faster than they could be produced that there was
no need to have it operating 40 hours per week. When
Martin stated that he was nevertheless going to file a
charge, Jaques replied, "Go ahead and do what you have
to do."
Slayden, East, and Jaques discussed Martin's plans to
file charges against the Respondent and the Union.
Jaques told Slayden that if Martin filed the complaint
with Human Rights he would just have to reduce the
hours of the painting department employees because he
had been just doing them a favor by letting them work
so many hours a week, knowing that they needed the
money. Later Slayden told Martin that if he went to the
Human Rights Department he would just mess it up for
all the painting department employees because their
hours were just going to be cut. He told Martin that the
Company would cut their hours so that the painting de-
partment employees would not be considered full time.
On the evening of 26 February Martin went down to
the Indiana Human Rights Department in Michigan City
to file his charge. He explained the situation to the indi-
vidual in authority who told him that her department did
not cover the problem but that she would obtain and fill
out for Martin the proper charge form for the National
Labor Relations Board.
On the morning of 27 February, when Martin and
Slayden reported for work Jaques told Martin, "You
fucked up by going to Human Rights. Frank O'Brien
told me I had to cut everybody's hours."15 Jaques said
that he had gotten a phone call the night before and that
he had been told to reduce the hours and hire more
people because Martin was stirring up such a ruckus by
taking the matter to Human Rights. He added, "It would
not have been so bad if Martin hadn't gone and blown
off his mouth to everyone before he went, but he had to
do it, so nobody could work 40 hours." Jaques went on
to explain that the painting department jobs were part-
time jobs and painting department employees were not
supposed to be working more than 40 hours per week.
On 7 March Martin returned to the Indiana Human
Rights Department and signed the charge against the
Union. The charge was forwarded to the Board's Indian-
apolis Regional Office, where on 13 March 1985 it was
docketed.16 Shortly thereafter a copy of the charge was
received by Respondent:
Meanwhile, whereas Martin had been averaging well
over 40 hours per week since the second week of Janu-
ary, and the painting department, as a whole, had been
is Martin's and Slayden's testimony is credited over Jaques' denial
16 Case 25-CB-5667.
STOR-RITE METAL PRODUCTS 865
averaging just under 40 hours since then , beginning in
the first week in March, average hours for painting de-
partment employees including Martin dropped so that
the average in March was approximately 30 hours per
person. Although the drop in average hours is partly due
to a decrease in production it was also , in part, due to
the increase in the number of painting department per-
sonnel from four in January and most of February to five
or six and at one time seven in March. Though in Janu-
ary and February the four painting department employ-
ees ran the paint line, as usual only two or three times
per week, they were given sufficient maintenance, clean-
up, and/or work in other departments on other days to
get their 40-hour, 5-day workweek in. However, after 27
February Martin and the other painting department em-
ployees were told by Jaques that because everybody's
hours had been cut, they would no longer automatically
report every day for work but would report in accord-
ance with a work schedule he intended to set up. The
schedule would advise his, employees which of them
were scheduled to work on what days.'' It is thus quite
clear that beginning in March available hours were dis-
tributed among a larger number of painting department
employees. In the first half of April Respondent main-
tained a complement of five or six painting department
employees who averaged less than 30 hours per week.
When, however, in mid-April the complement dropped
to four and the average number exceeded 40 hours, Re-
spondent quickly hired two additional employees and the
average hours worked dropped below 25. Thereafter,
when the average number of hours worked approached
or exceeded 40 hours Respondent hired additional em-
ployees.'8 In June there were as many as nine painting
department employees and in July, seven or eight were
employed, who averaged less than 20 hours each.
Whereas in 1984 Respondent maintained a sufficient
number of regular employees in the paint department to
get the work done, hiring additional employees to meet
production or to replace quit, terminated, or transferred
employees, and working them over 40 hours whenever
necessary, and whereas in late January and February
1985 Respondent consistently employed the same four
employees working them 40 or close to 40 hours per
week. By May and June Respondent had devised a rotat-
ing system whereby between six and nine employees
would be kept on the payroll, working one group on
Mondays, Wednesdays, and Fridays and another group
Tuesdays and Thursdays, reversing the procedure the
following week.' 9 This type of scheduling guaranteed
that rarely would any painting department employee
work a 40-hour week except for the union paint opera-
tor.
17 Jaques denied that there was any change in scheduling. When his
testimony differs from that of Martin and Slayden on this point, the latter
are credited.
is Although Jaques did all the hiring of the new paint line employees
in March and thereafter , he could not explain his reasons for doing so.
19 In his testimony O'Brien implied that a rotating system had histori-
cally been used and that six to eight employees were always kept on-call
to ensure there would be four or more available at any given time. Pay-
roll records supplied by Respondent do not support this testimony.
On several occasions after the painting department em-
ployees had their hours reduced, Slayden asked Jaques if
they could get their 40 hours back. Each time Jaques re-
plied that he was only supposed to work them part-time
because they were hired part-time. Indeed, O'Brien testi-
fied that after receiving a copy of the charge that Martin
filed against the Union in which Martin claimed to have
been working 40 hours, he asked Jaques about this claim.
When Jaques explained that he had been short-handed
and had a ,lot of maintenance, O'Brien told Jaques to cut
out the unnecessary maintenance and hire more employ-
ees. He told Jaques to remember that the paint depart-
ment employees were supposed to be part-time, and
"let's try to keep it that way." O'Brien testified credibly
that his instructions to Jaques on this occasion were not
in retaliation for Martin's filing of the charge against the
Union but rather as a result of O'Brien's getting a copy
of the charge and thus becoming more aware of the
problem; the problem being that Jaques had been work-
ing painting department employees' hours he should not
have been working them. Following O'Brien's instruc-
tions to Jaques, Jaques began hiring new, employees. This
began in March and continued, at least, through July.20
On one occasion in April, Martin and Slayden com-
plained to Jaques about the decrease in their hours.
Martin stated that they had not been making anything
'before and with the cut in hours they were now making
even less. He asked why the hours had been cut. Jaques
replied that the painting department had been working
'too many unproductive hours and that it had been
Martin who brought to O'Brien's attention that Jaques
had been letting them work unnecessary hours. He
added, "You made your bed, you're going to have to lie
in it."
As of the date of the hearing negotiations for a new
contract had begun. The Union, according to the chief
steward, was proposing , as it had in the past, inclusion in
'the unit of the painting department employees.
Analysis
Substantively, the General Counsel alleges21 that
Martin and certain other employees in the Respondent's
finishing/painting department have been full-time pro-
duction employees within the meaning of the unit de-
scription set forth in the 1983 collective- bargaining
agreement. The record reveals, however, that the status
of the painting department employees was the subject of
negotiations prior to the execution of the 1983 agree-
ment. During those negotiations, the Union proposed'the
inclusion of the painting department employees within
the unit of "All full-time production and maintenance
employees," which it represented. Respondent, however,
took the position that because the painting department
only operated two or three times per week and available
work fluctuated so drastically, it was never certain how
20 There is no inconsistency in finding, as I have, that O 'Brien learned
of Martin's planned visit to the Human Relations Department on 26 Feb-
ruary and took some action based thereon and learned additional facts
later in March upon receiving a copy of the charge against the Union
and thereafter took additional action based thereon.
21 Par. 6(a) of the complaint (G.C. Exh. 1(c))
866 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
many hours the painting department employees would
work, the entire department should be regarded as com-
posed of part-time employees,. outside the unit, not sub-
ject to-the-collective-bargaining agreement, and unrepre-
sented The Respondent's-position prevailed and the con-
tract was executed and ratified with the mutual under-
standing, never formally'nor seriously challenged by the
Union, that the painting department employees were not
covered,by the contract. It is not the Board's province
to_ insert itself in the, bargaining process by redefining the
terms- of a lawfully negotiated collective-bargaining
agreement in a way totally contrary to the intentions of
the parties. I find that the painting department employees
are not and never were intended to be covered by the
contract.
The General Counsel alleges22 that Respondent has
failed and refused to afford Martin and certain other
painting department employees all the rights and benefits
accorded full-time employees by the collective-bargain-
ing agreement. The record indicates that Respondent
did, in fact, refuse to afford painting department employ-
ees the wages and benefits that were provided for by the
contract However, inasmuch as I have found that, by
mutual agreement of the parties, these employees were
not covered by the contract, there was and is no require-
ment that Respondent extend its provisions to the paint-
ing'department employees.
The General Counsel alleges2S that on several occa-
sions Martin and certain other painting department em-
ployees requested that the Union assist them in obtaining
contractual rights and that the Union through the chief
steward registered grievances24 with Respondent in pur-
suance of these requests. The record reveals, however,
that Martin, acting alone, made numerous unsuccessful
requests of the steward to, try to obtain for painting de-
partment, employees the contractual 'benefits that unit
personnel were receiving, but was informed by the stew-
ard that nothing could be done, that his hands were tied
until it was time to renegotiate a new contract. Granted
that there occurred in late 1984 a meeting between the
Union and management in which it was agreed that one
new unit position be created in the painting department,
in my opinion Respondent was not obligated by the con-
tract to grant this concession, and its having done' so r'e-
flects well on its desire to negotiate in good'faith. I find
that the Union did not file formal grievances as alleged
and Martin ' did not act in concert with other painting de-
partment employees on this matter.
The General Counsel alleges that Martin on 26 Febru-
ary registered a complaint with the Indiana Human
Rights Department25 as a continuation of his previous
efforts26 to obtain contractual sights for the painting de-
partment -employees and that thereafter the hours of
these employees were reduced.27 The record clearly
22 Id., par. 6(b).
23 Id., par. 6(c).
s4 Id., par. 6(d).
25 Id., par. 6(e).
26 Id., par. 6(t).
27 Id ., par. 6(g).
supports these allegations to the extent that it reflects
that Martin did seek the aid at the Michigan City office
of the Human Rights Department for the purposes al-
leged. Further, I find that following Martin's visit to the
Human Rights Department the hours of painting depart-
ment employees were reduced by the expedient of hiring
additional employees,to work in-the painting department
and dividing the available work along the larger comple-
ment, thus reducing the number of hours that "would
have been worked had the total number of painting de-
partment employees not been enlarged.
The General Counsel alleges28 that Respondent re-
duced the hours of its painting. department employees
and has since about 27 February failed and refused to
assign full-time employment to these employees because
Martin and his fellow employees requested the Union to
assist them in obtaining contractual rights, because
Martin registered a complaint with the Indiana Human
Rights Department, and because the Union through the
chief steward registered grievances with Respondent on
behalf of Martin and other painting department employ-
ees to obtain contractual rights for them.29 But the
record contains no evidence that the hours-of the paint-
ing department employees were reduced, as described, in
retaliation for Martin's seeking to obtain contractual
rights for the painting department employees, either
through the Union or through the Indiana Human Rights
Department. If retaliation were the motivating factor for
the reduction in hours, I would find a violation. Akron
General Medical Center, 226 NLRB 953 (1976). Howev-
er, I do not find it so. Rather, the reason for the reduc-
tion in hours through the expansion of the painting de-
partment complement appears to be economic and most
easily understood through an analysis of the factual his-
tory of the problem as- discussed above.
Thus, the Respondent and the Union have enjoyed a
long history of amicable' labor management relations as
reflected in successive collective-bargaining agreements
dating from 1977. In negotiating their most recent con-
tract in November "1973, the Union and Respondent
agreed that the employees in the painting department
would be considered part-time and therefore neither'rep-
resented by the Union now subject to the provisions of
the contract. Jaques was instructed not to work his
people over 40 hours.
In '1983 and the first half of 1984 Respondent rangy its
painting department with whatever ' number of employees
were necessary to run the parts, do proper maintenance,
and cleanup. Although occasionally a painting depart-
ment employee might work a full 40-hour, 5-day week,
this was the exception rather, than the rule. In September
1984 business and production increased markedly, new
employees were hired and most of them worked over 40
hours. This continued through mid-December when busi-
ness and production once again dropped off. The drop in
production necessitated the layoff of one employee and a
decrease in the number of hours worked. In the second
week in January, production, again increased. Jaques re-
28 Id., par. 6(h).
29 Ibid.
STOR-RITE METAL PRODUCTS
called the laid-off employee but did not hire any new
people . Instead , he worked the four regular employees
regularly over 40 hours per week or very close to, 40
hours. To ensure that the painting department employees
received a maximum number of hours Jaques assigned
them maintenance and cleanup work that , in some cases,
was not absolutely necessary , and occasionally had some
temporarily assigned to other departments , again for the
purpose of giving them additional employment.
On '26 February , when Martin announced to East,
Slayden, Jaques, the chief steward , and anyone else who
would listen that he was going down to the Indiana
Human Rights Department to file a charge because he
and the other painting department employees were
working 40 hours but not receiving the contractual bene-
fits received by unit employees, word of his intention
must have gotten back ' to O'Brien because the following
day Jaques told Martin and Slayden that he had been
told the night before that he should reduce the number
of hours worked by the painting department employees
and hire additional employees because Martin was caus-
ing such a ruckus by filing the charge with the Human
Rights Department and blowing off his mouth to every-
one before he went . Clearly, from the very beginning
O'Brien intended the painting department to be part-time
so that it could remain flexible and meet the peculiar de-
mands of the erratic nature of its production . The Union
had agreed to this . But then Jaques , out of the kindness
of his heart, decided to give the painting department
people 40 hours and more because they needed the
work. That was all right until Martin announced to his
fellow workers , management, and the Union that because
the painting department employees were working 40
hours they should be considered full time , placed in the
unit, and given all the contractual benefits . Fearful 'that
Martin's activity would result in demands by the Union
that the paint line be made full time, thereby losing its
capacity to deal with the fluctuations in production,
O'Brien ordered that the hours worked by the painting
department employees be cut below 40 hours, by de-
creasing the number of nonproductive hours, and by
hiring additional employees and spreading the available
work out among the greater number so that each em-
ployee worked fewer hours . I conclude that the reduc-
tion of hours of the employees in the painting depart-
ment was economically motivated and not in retaliation
for the filing of the charge by Martin . Indeed, if retalia-
tion were the motive, the discriminatory act would most
likely have taken the form of an action against Martin,
867
not against all the employees in the department, all of
whom refused to join Martin in his singular crusade. I
find no violation of Section 8(a)(5) or Section 8(d) be-
cause from its very inception the painting department
was considered by the Union and Respondent to be part-
time, unrepresented , and not subject to the provisions of
the collective-bargaining agreement; the reduction of the
work hours of the painting department employees was
not violative of the Act; and the Respondent was never
obligated to assign full-time employment to the painting
department employees . Further, I fmd no violation of
Section 8 (a)(3) because the reduction of the hours of the
painting department employees and the hiring of -addi-
tional painting department employees were economically
motivated.
Finally , I fmd that although Martin acted on behalf of
the welfare of all the employees in the painting depart-
ment when he sought the help of the Union and of the
Indiana Human Relations Department to obtain for them
the benefits of representation and of the collective-bar-
gaining agreement, he did .so without obtaining authority
to act on their behalf. Indeed, both Slayden and East re-
jected his overtures to have them act in concert with
him, stating explicitly that they did not wish to become
involved. I fmd, therefore , that Meyers IndustriesSO is
controlling and that Martin's activity was not concerted.
Moreover, even if it were so considered, there is no evi-
dence that Respondent was aware of any employee other
than Martin who was so engaged and therefore no viola-
tion can be found . Center Ridge Co., 276 NLRB 105
(1985).
I have found that Respondent ' did not violate the Act
in any manner alleged in the complaint . Consequently, I
shall -recommend that the case be dismissed in its entire-
ty.
CONCLUSIONS OF LAw
1. 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 mean-
ing, of Section 2(5) of the Act.
3. Respondent has not engaged in unfair labor prac-
tices within the meaning of Section 8(a')(1), (3), and (5)
and Section 8(d) of the Act.
[Recommended Order for dismissal omitted from pub-
lication.]
30 268 NLRB 493 (1984) remanded sub nom . Frill x NLRB, 755 F.2d
941 (D C. Cir 1985).