Wheeling-Pittsburgh Steel Corp.

National Labor Relations Board - Board Decisions

Sep 12, 1979

244 N.L.R.B. 1015 (N.L.R.B. 1979)

WHEELING-PITTSBURGH STEEL CORPORATION
Wheeling-Pittsburgh Steel Corporation and United
Steelworkers of America, AFL-CIO-CLC. Case 6
CA- 10977
September 12, 1979
DECISION AND ORDER
By CHAIRMAN FANNING AND MEMBERS JENKINS
AND PFLNEI.O
On May 30, 1979, Administrative Law Judge Rob-
ert A. Gritta issued the attached Decision in this pro-
ceeding. Thereafter, the Charging Party filed excep-
tions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended Or-
der of the Administrative Law Judge and hereby or-
ders that the complaint be, and it hereby is, dismissed
in its entirety.
I In adopting the Administrative Law Judge's Decisions Chairman Fan-
ning does not adopt the conclusion that Sec. lO(b) precludes a finding that
certain conduct, alleged as background, took place since such conduct, if
found, would constitute untimely unfair labor practices.
DECISION
Statement of the Case
ROHERT A. GRITTA, Administrative Law Judge: This case
was heard on September 11. 12, and 13, 1978, in Wheeling,
West Virginia, based upon a charge filed by the United
Steelworkers of America, AFL-CIO-CLC (herein "the
Union"). on charges filed on February 21. May 12, and
June 13, 1978, and a complaint issued by the Acting Re-
gional Director for Region 6 of the National Labor Rela-
tions Board on June 20. 1978.' The complaint alleged that
Wheeling-Pittsburgh Steel Corporation (herein Respon-
dent). violated Section 8(a)( I1) and (3) of the National Labor
Relations Act by: (1) restricting the movements of prounion
employees; (2) instructing employees to refrain from union
I All dates herein are 1977 unless otherwise specified.
activities; (3) threatening employees tor engaging in union
activities; and (4) discharging employees for engaging in
union activities. Respondent's timely answer denied the
commission of any' unfair labor practices.
All parties hereto were afforded full opportunity to be
heard, to examine and cross-examine witnesses, to intro-
duce evidence, and to argue orally. Briefs were submitted
by General Counsel and Respondent and. it timely, were
duly considered.'
Upon the entire record in this case,' from my ohbsrvation
of the witnesses and their demeanor on the witness stand.
and upon substantial reliable evidence considered along
with the consistency and inherent probability of testimony,
I make the following:
FINDINGS OF FACI
1. JURISDICTION ANt) STATUS OF ABOR ORGANIZATION-
PREIIMINARY (ONCLUSIONS OF LAW
The complaint alleges. Respondent admits, and I find
that Wheeling-Pittsburgh Steel Corporation is a Delaware
corporation engaged in the manufacture and nonretail sale
of steel products in Pittsburgh, Pennsylvania, and Wheel-
ing, West Virginia. Jurisdiction is not in issue. Wheeling-
Pittsburgh Steel Corporation. in the past 12 months, in the
course and conduct of its business operations shipped prod-
ucts valued in excess of $50,000 from its West Virginia and
Pennsylvania locations directly to points located outside the
respective States. I conclude and find that Wheeling-Pitts-
burgh Steel Corporation is an Employer engaged in com-
merce and in operations affecting commerce within the
meaning of Section 2(2), 6), and (7) of the Act.
The complaint alleges, Respondent admits, and I con-
clude and find that the Union is a labor organization within
the meaning of Section 2(5) of the Act.
II. TE ALLEGED UNFAIR LABOR PRA('II(ES
A. Relevant Business of Respondent
This case involves the operation of Respondent's Duvall
computer Center in Wheeling. West Virginia. The center
consist of several departments; however, the systems and
data processing department, composed of the data section
and systems section, is in focus here. The department devel-
ops, designs, prepares, and operates computer systems and
programs for Respondent's entire manufacturing, sales, and
administration as well as systems and programs of produc-
tion for specialty customers. The two sections have the re-
sponsibility of development and revision of systems and
procedures so that the computers can solve problems, store
data, integrate and simplify methods of accumulating data
for management decisions, and perform functions that oth-
erwise would be done manually for inventory control, pur-
2 Respondent submitted what is entitled a reply brief, duly opposed b)
General Counsel. Without regard for the title I have not considered Respon-
dent's brief due to the unexplained 12-day late submission.
Respondent's unopposed motion to correct the record is granted and is
received in evidence as Resp. Exh. 21.
244 NLRB No. 166
1015
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
chasing. production scheduling and control. and adminis-
trative programs. The computer functions are performed by
computer operators, and its supporting operations are per-
formed by professional employees classified as analysts,
programmers, designers, and systems programers. Much of
the work is integrated between classifications and necessar-
ily requires cross-trained experience. In addition, the nor-
mal progression may overlap classification lines.
B. The Alleged 8(a)(l) Conduct
I. Instructions to refrain from union activities
Charles English testified that he engaged in solicitation
since sometime in June. Hie handed out cards in virtually all
sections in the center including keypunch operation of data
processing. English was working the night shift sometime in
August and at lunchtime he went down to the lunchroom in
the keypunch area, and one of the keypunch girls told him
that another girl stated she intended to turn her card into
her supervisor. English knew that the girl in question was
Suzanne Templin. When Suzanne came into the lunchroom
English confronted her with her intentions. English testified
that Suzanne yelled at him that it was none of his business
and to stop giving her dirty looks. Suzanne then became
upset and started to leave the area. English told her it was
his business, that he was trying to get her interested in orga-
nizing the union. Suzanne thereupon ran down the hall to
her supervisor, Pat Freismuth, and complained of English's
harassment. Freismuth came into the lunchroom and told
English to shut his mouth and not to talk to the women in
the area, that he had no right to talk to them. English told
Freismuth that he thought he had every right since every-
one was on lunchbreak, and he was trying to campaign for
the Union.
Freismuth testified that the Templin incident occurred on
August I I, and her involvement started with Suzanne com-
ing to her crying and saying that English had harassed her.
Suzanne stated that she did not have to take it, and that
what she did with her own card was her own business.
Freismuth then went to the lunchroom and told English not
to upset the girls, "I told him a direct quote, 'You do not
have the right to upset the girls.' " Freismuth did not ask
English to leave the lunchroom, but when English told her
that he had every right Freismuth got her girls together and
went back to work. Freismuth then called English's supervi-
sor and asked that English be kept out of her department
because he upset the girls.
Graeb, English's supervisor, testified that Freismuth
called him stating, "she was having a little trouble down-
stairs, that Ernie was causing-or he was disrupting the
girls, he had one girl crying down there and she asked me to
please try to keep him upstairs if I could. When Ernie came
back upstairs I asked him, don't cause any waves or no
problems, just try to stay away from the girls downstairs."
Graeb further testified, "I think the impression that I had
was that Ernie was down there trying to make out with the
girls. That night I don't think why Ernie was downstairs
came out in the conversation. Probably within the next day
or so I talked to Pat again. I think that's when it came out
that he had been passing cards out."
Discussion and Conclusions
The General Counsel argues that English's remarks to
Templin were not of such an offensive nature so as to be
outside the protection of the Act, but that Respondent's
instructions to English were violative of Section 8(a)( I) of
the Act. General Counsel overlooks the date of the occur-
rence, testified to by Freismuth as August 11. English could
not fix a date nor could Graeb fix a date of the incident. In
addition, the only variance in the total testimony of this
incident is that English attributed to Freismuth "you have
no right to talk to the girls." Freismuth said that she stated
"no right to upset the girls." There is no dispute that Eng-
lish had frequented the keypunch lunchroom both before
and after the incident with the knowledge of Freismuth and
Graeb. I credit Freismuth on the use of the word "upset" as
being more plausible under all the circumstances, noting
that the edict as testified to by English has no support,
prospectively, from the time of the incident. Additionally, I
cannot assign to the incident any substance that approaches
interference, restraint, or coercion. Further, the only testi-
mony establishing the date the incident occurred places it
ouside the 10(b) period. Therefore. I conclude and find that
Respondent has not violated the Act by its remarks to Eng-
lish through supervisors Freismuth and Graeb.
2. Threats of layoff
The complaint, in paragraph 7b, alleges "threatening to
lay off employees if' they selected the union as their collec-
tive bargaining representative," through supervisor Doep-
ken. General Counsel offered the following through witness
Goddard to support the threat allegation:
Q. Following your termination on September I, did
you ever have occasion to visit the plant again?
A. Yes I did.
Q. When was that?
A. On September 30 I went back to Duvall Center.
Q. Did you see anybody-Why did you go back to
the Duvall Center on that date?
A. That was the day or the day after I received my
severance pay and there was an error in mv check. I
went back and talked to the manager of the credit
union about that and after I finished I went up and
talked to Dave Doepken.
Q. What do you recall what subject did you talk
about with Mr. Doepken?
A. A lot of things, the project I was working on, but
I asked Dave, specifically, I asked him what he
thought--what was happening with the union at Du-
vail Center and Dave told me at that time that he
thought there would be no union at Duvall Center.
Q. Did he say why?
A. He said if there is a union Carney will simply lay
people off.
Doepken testified that he and Goddard go back a long
way, to the sixth grade in school. In addition they have a
4 The case cited by General C(ounsel contains a much stronger set of timels
facts and consequently was not dispositive of this issue.
1016
WHEELING-PI'TTSBURGH SEEL CORPORATION
common family relationship, and the conversation with
Goddard was very emotional, Doepken denied threatening
any employees with layoff if they selected the Union. The
conversation lasted about 10 minutes and was mostly con-
cerned with discussion of other fields for Goddard to go
into based upon Doepken's appraisal of Goddard's skills
and talents. It was a personal meeting between friends
rather than a business meeting between subordinate and
supervisor.
Discussion and Conclusions
General Counsel's single witness on the alleged threat did
not impress me with his demeanor. His testimony was
vague, and his manner was argumentative as though he had
an axe to grind. Doepken impressed me as a man attempt-
ing to genuinely recall what was said and relate it in a
straightforward manner. The conversation as stated does
not contain a threat, either expressed or implied. Doepken
responded with an opinion to a friend no longer employed
by the Company at a time after the Union had filed its
representation petition. In addition, the expression in sub-
stance related to a circumstance after a union has represent-
ative status. Doepken's opinion had been solicited by God-
dard ostensibly because Goddard no longer was in the main
stream and sought Doepken's appraisal of the current sta-
tus. Only in response to a suggestive question did Goddard
supply any suspect utterance relative to layoff. I do not
credit Goddard's testimony as the truthful response of
Doepken, but rather I find it to be a contrivance. Assuming
the truth of the discredited utterance, General Counsel
would have it applied retrospectively to the economic layoff
which he is not disputing. I conclude and find that Respon-
dent did not violate the Act through Doepken's remarks to
Goddard on September 30.
C. The Alleged 8(a)(3) Conduct
1. Restrictions on movements
English testified that Knoyer called him in late in August
and said that he had been called by systems development
people and had been told to stay out of the system develop-
ment area. English asked why, and he stated that Knoyer
said because he was passing out cards. English told Knoyer
he was not passing out cards, and Knoyer responded, "yes
you are, we know what you're doing." English then said
fine, and that he would stay out of the area.
Knoyer testified that Flenniken, the supervisor of the sys-
tems area, said to keep English out of the area because he
was disturbing the professional employees. Knoyer told
English to stay out, and he did.
Flenniken testified that an employee in systems reported
to him that English was causing a disturbance by conduct-
ing loud discussions in systems. Flenniken stated that since
systems was a separate building from English's work station
that English had no business in systems, particularly if he
was disturbing people there. On that basis he called Knoyer
and asked that English be kept out of the area. Flenniken
did not investigate to determine what discussions were con-
ducted b English.
Goddard testified that on August 9 Doepken told him
not to go into the distribution area. Doepken said that the
group in distribution was complaining because it had too
much work to do and did not want anyone interfering.
Goddard said that he had not interfered with anyone, and it
was unfair and discriminatory to keep him out of the area.
Goddard then went to Flenniken for relief from the restric-
tion, but Flenniken said that since English was restricted
from the systems area Knoyer no longer wanted Goddard
in the distribution area. Goddard next saw Knoyer and
asked why he was restricted from the distribution area.
Knoser responded. with a chuckle. "that's may revenge
since Ernie (English) isn't allowed in the professional area."
Discussion and Conclusions
English and Goddard work in separate buildings and
separate areas. They are not commonly supervised and did
not alwas work the same hours. The credible testimonies
of Knoyer and Flenniken established that English was dis-
turbing another area's employees with loud discussions. It is
reasonable that an employee would be denied access to
other work areas where he does not belong during the
working hours of other employees. particularly when the
foreign employee causes disturbances. English seemed to
seize upon the "passing out cards" phrase as a carte
blanche to do whatever he desired, but according to his
testimony when he was ordered to stay out of the systems
area he did so without question. This was a considerably
different tack from his encounter in the keypunch lunch-
room where he advocated his rights of activity. The sub-
stance of English's testimony is an attempt to clothe all his
actions in union activity.
I do not credit English's testimony that Knoyer kept him
out of the area because he was passing out cards. I found
his demeanor on the stand and his proclivity to tailor his
testimony in keeping with his characteristics and conduct as
testified to by other witnesses. I note particularly the dis-
crepancy in his testimony as to when he started passing out
cards. At one point he started soliciting I week after the
wage reduction, admittedly in retaliation for the reduction.
And at another point he stated that he was passing out
cards the day after the reduction. Also, it is more plausible
from all the testimony that Goddard was, in fact, kept out
of the distribution area by English's supervisor in retali-
ation for English's restriction from the systems area. Simple
jealousy among supervisors of different departments is all
too common. I also note that at the time Goddard was
restricted he was admittedly known as an antiunion em-
ployee. No evidence even suggests that Goddard's restric-
tion was based on his nonexistent union activity. If, as Gen-
eral Counsel argues. Goddard was restricted because he
was a "good friend" of English that fact, in and of itself.
would not evince a discriminatory motivation. I conclude
and find that the alleged movement restriction of English
and Goddard was not based upon either employee's union
activity but rather upon legitimate business considerations
and therefore was not in violation of the Act even if the
occurrence were within 10(b).
1017
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. Background and discharges
a. Charles E. English
Early in January 1977 English was reclassified from tape
librarian to computer operator and received an increase in
wages. In June Respondent began a series of economic cuts
throughout the corporation. One such cut came June 8
when four computer operators were terminated, and three
were reduced in wages. The terminated operators were the
least senior in computer operations. Those receiving cuts in
wages were Charles English, Melvin Lees, and Roger Grif-
fin.
English was informed of his reduction by Supervisor
Knoyer. English questioned Knoyer about the reduction
and was told by Knoyer that it was a forced reduction and
that he was reduced for attitude reasons. English thereupon
told Knoyer that Border and he were trying to force Eng-
lish out of the Company, and that he was not going to sit
back and take the cuts like everyone else. English testified
that he told Knoyer he was going to the Union. He stated
to Knoyer that his involvement with union had been mini-
mal, but now it would be up front, and they would know
about it and that, he would be at the beginning at the head
of the Union. English then left the area.
English testified that immediately thereafter he contacted
the Union and discussed with the Union how much interest
there was at the center for the Union; what to do to orga-
nize; the reasons why people were cut; and if there were
going to be more cuts and what the employees could do in
general to protect their jobs, because that seemed to be
what the employees had to do. He received 100 authoriza-
tion cards that day and took them to work the following
day. He also enlisted the aid of several employees to distrib-
ute cards throughout the center in hallways, lunchrooms,
and parking lots during nonwork time. In addition, he
talked with employees Gooch and Barczak about the
Union.
One week later English, Gooch, John Matyja, and Bar-
czak met with the union representative downtown to dis-
cuss the campaign.
English attended several more union meetings for center
employees held downtown.
English testified further that he had several conversations
with Knoyer about the Union. The first occurred about I
week after his wage reduction in which Knoyer asked what
English was up to and called him a troublemaker. English
said, "I don't know what you're talking about," and
Knoyer said, "you know, the Union." English denied any
union involvement. The second occurred sometime later in
the hall, and Knoyer asked English how his Union was
going. English replied questioningly, "my Union," and
Knoyer then asked if English intended including the sys-
tems development people in the Union. English did not re-
spond but rather walked off. The next confrontation oc-
curred in late June or early or mid-July in Knoyer's office
when English was confronted with nonconformance with
the dress code. Knoyer said, "I was pressing the dress code
that Mr. Border had instituted a couple months back and
that Border didn't like it and he wanted me to clean up my
act. These had been the same clothes I had been wearing to
work for that time." Knoyer again asked me how "my
Union" was doing. English asked why it was "my Union."
Knoyer said, "they knew that I was part of a coalition start-
ing the Union." English again professed ignorance and left.
On cross-examination English stated that Knoyer's opinion
of the Union was that he had no opinion other than why
would we want the Union in there. He did not see any need
for the union in there. He thought that we had a good
environment, good working area, and good conditions.
English also testified that on August 12 a meeting was
held for night-shift computer operators and day-shift and
night-shift keypunch operators in the center's conference
room. Scalise. the manager of labor relations, chaired most
of the meeting; however the meeting was opened by How-
ard, vice president of finance. Scalise opened the floor to
questions, and English asked why the four computer em-
ployees were terminated on June 8 and if they would be
recalled. Scalise said that they were terminated because the
Company had to make costs cuts, but that the Company
was going to try to keep from terminating any more person-
nel. Scalise stated that the four in question were terminated
by seniority after evaluations showed everyone at the center
to be equal.
On September I English was notified of his termination
by Knoyer. English testified that Knoyer told him, "we had
a cost reduction and I had an evaluation and I had come
out low." "I really didn't let him finish his interpretation of
why I was being fired. As I saw it, it was his interpretation."
English stated that he was not aware of any evaluation, not
was he ever counselled. English's testimony was, "No one
ever knew whether there were any evaluations or how you
stood there. You didn't know whether you were doing your
job. No one told you that, whether you were or you
weren't." Knoyer always acted friendly to English and
seemed to like English, but Border had a distinct dislike for
English and was always on Knoyer about English's per-
formance. Knoyer did not want to discharge anyone but
always said, "its coming from Mr. Border." English testi-
fied, "I had the feeling that it was inevitable, they were
getting rid of people."
b. Frank Barczak
Barczak was informed by English that he had contacted
the Union, and that they were in the process of starting
another organizing campaign. In June, on either the 19, 25
or 26, the first union meeting was held to get everything
together. In early July the second meeting was held, and the
Union passed out 10 cards to everyone present with instruc-
tions to solicit employees and return the cards. Barczak dis-
tributed his cards in the computer section. Barczak stated
that no supervisor saw him distributing cards or heard him
discussing union cards or the Union. Neither did he wear
any union insignia or see anyone else wearing union insig-
nia. Toward the end of August Barczak attended a meeting
of company officials where Scalise said that the four com-
puter operators terminated in June were selected by senior-
ity. Seniority was used because everyone in the computer
department had been evaluated and found to be equal. Sev-
eral days later Border met with employees in the break-
room and said, "this is all the shake up and let's get back on
1018
WHEELING-PITTSBURGH STEEL CORPORATION
track here." Barczak again questioned the selection of the
four, and Border replied that it was because of seniority. On
September I Barczak was on vacation and Knoyer called
him at home saying that he wanted to talk to Barczak.
Barczak testified. "He never talks to me, so I knew what it
was about, and I came right in. and he told me that I had
been terminated, and I asked him why, and he said attitude.
and that was basically the jest [sic] of the whole conversa-
tion, there wasn't many questions asked."
On cross-examination Barczak stated that he had been
criticized and reprimanded by Supervisor Knoyer in the
past for not doing what he was told to do and for shirking
his responsibilities. In addition, at times he determined
what was the most important job, contrary to what his su-
pervisor told him, and was criticized for being argumenta-
tive with supervisors. At times Barczak lost his temper with
supervisors.
Barczak did not know the job classifications in the com-
puter section, but he did know that he and English were the
least senior employees in the section prior to terminations.
and that Lees was in a higher salary grade and classification
than either of them. Classifications were not clear to every-
one because in the last 1-1/2 years before his termination
there was an effort to get everyone to do everything.
Larry Gooch attended the union meeting where cards
were distributed. Gooch testified, "as Mr. Barczak stated,
we were each kind of assigned a certain group of people to
collect cards from, all of the cards were collected and
turned in to one man, then he took them down to Mr. Bussa
at the union building." In late August the inplant organiz-
ing committee was formed, and union buttons were distrib-
uted to each committeeman. That same day Gooch wore
his button to work. His supervisor, Graeb. saw the button
and asked what it meant. Gooch testified, "I told him that
we had formed a committee of people within the Duvall
Center to organize the union. Graeb said, 'well I think I can
guess who is on the committee.' I said, well, who do you
think is on it. He said, 'in addition to yourself. I believe
John Matyja, Ernie English, and Frank Barczak.' I said he
was wrong, that Frank was not on the committee." Gooch
wore his button for about I week at work. The only other
committeeman to wear his button to work was Matyja, who
wore his on at least one occasion.
John Matyja stated that it was his belief that a meeting
he attended for nonprofessionals in a local motel was held
late in August. The following morning Knoyer asked him if
he had gone to the meeting. Matyja responded, "Tom, you
know I was there." Knoyer mentioned the question of the
thrift plan being brought up and said, "I hope you also
know that if you do become a union employee, that the
thrift plan will no longer be available to union employees."
Matyja testified, "He mentioned that he knew more or less
what went on, and he was there. He seemed to know the
questions and the answers what went on, and the people
that was there."
On cross-examination Matyja acknowledged that he
knew the thrift plan was from inception for nonunit em-
ployees as compensation for benefits negotiated by the
Union for plant employees, also that the center was the
only group of salaried employees that the Union did not
represent.
c. John Goddard
Goddard worked as a programmer and analyst in the
systems section since 1972. His most recent function was as
an analyst. During the course of his employment he func-
tioned as a project leader on several programs. Goddard
was admittedly selected as project leader because of his
ability to communicate and exchange ideas with others. A
project leader has the responsibility of coordinating the
separate efforts of several people engaged in putting the
program together in workable fashion. Project leadership is
not necessarily a function of seniority or knowledge but
rather is a function of individual growth. Occasionally em-
ployees are project leaders on several programs at the same
time. Goddard's last assignment as project leader was on
"metrication" which was designed to install metrics
throughout the corporation. Late in July and August God-
dard attended two union meetings. At the second meeting
Goddard received some authorization cards and later put
them in his desk. Still later in August Goddard distributed
several of the cards to employees in his office at the center.
Between the two meetings Goddard discussed the Union
with Manager Flenniken and informed Flenniken that he
(Goddard) was totally opposed to the Union. Goddard
stated that he did not think that the Union could do him
any good, and Flenniken agreed. Goddard testified that
Flenniken stated. "If we do have a union Carney will just
do something to make our working conditions not so nice.
... I specifically remember him mentioning, like moving
Duvall Center to Steubenville." Goddard stated that Car-
ney is president of the corporation. Sometime later in Au-
gust Goddard changed his mind about the Union, deciding
to support it. He felt that the center was being discrimi-
nated against by corporate management, and that the only
recourse was to have a union. On August 25 Goddard told
Supervisor Deopken of his new allegiance but could not
recall any response from Deopken. Goddard then went to
Flenniken and told him of his change toward the Union.
Goddard testified. "Flenniken's response was ver\. ver3
short. He said I don't think it will help us."
On September I at 1:15 p.m. Flenniken met with the
group and said that he decided to cut 12 people. fie said
that no one deserved to be terminated, and that he had
protected certain people because of their seniority and oth-
ers because he thought they were necessary for the center or
for his plans for the center. Goddard was one of the 12
selected for termination in the systems section.
Border, manager of the data processing section. was re-
sponsible to the assistant comptroller. Otto. for evaluation
of data preparation and computer operations employees in
preparing for cost cuts that were forthcoming. In mid-Au-
gust Otto and Border discussed the evaluations and decided
to use the same form as was used in 1975. Border instructed
his supervisors that the period of evaluation wa;s to he as
long as each had known the subject. The evaluations were
completed August 26. Border checked the evaluations tfr
bias and prejudice of the supervisors. His technique was to
compare the scores of each employee evaluated by given
supervisor to ascertain if any employee was suggestively
lower or higher than others. Border stated that to him such
a difference would indicate that the supers isor was not oh-
1019
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
jective with the employee. All evaluations were checked,
and none showed bias and prejudice. As a result of the cost
cuts two computer operators and four support employees in
data preparation were terminated, with selections based
upon the evaluations.
Graeb made his evaluations of computer operations and
turned them in to Manager Knoyer. Graeb's evaluations
resulted in English and Barczak having the lowest scores.
Graeb stated that he knew of English's union activity at the
time of the evaluations but had no knowledge of any ac-
tivity on the part of Barczak. Although Graeb knew what
his evaluations showed he did not know who was selected
for termination until September 2.
Kolvek also evaluated all employees in computer opera-
tions and submitted them to Knoyer. Kolvek's evaluations
resulted in English and Barczak receiving the lowest scores
among those evaluated. Kolvek stated that although he had
supervised English and Barczak on several turns he had no
knowledge of union activity by either employee. Kolvek did
not know who had been selected for termination until Sep-
tember 1 after they were announced.
Knoyer, as manager of computer operations, had no in-
put to the evaluations performed by his supervisors. He left
the evaluations up to the men on the floor. Knoyer denied
any interrogations of or threats to English; however, he
admitted knowledge that English was engaged in card so-
licitation. Knoyer also admitted that he did admonish Eng-
lish for his sloppy appearance which he point out to English
was not in keeping, nor had it been, with Border's recent
dress code. The so-called dress code originated approxi-
mately mid-May and applied to the data processing section.
English had always worn the same clothes and was the only
employee Knoyer had said anything to about the code.
Carella stated that in June after the limited terminations
the systems section began meetings of supervisors with
Flenniken. The meetings centered around the department
projects and what must be continued in any eventuality,
which employees were absolutely necessary to maintain
those projects; and which candidates were designated for
termination, including a numerical list in order of termina-
tion prospects. The meetings began with a list of all em-
ployees. As a given employee was decided to be necessary
to the department regardless of probable terminations his
name was scratched from the list. Age, length of service,
and experience were also considered in deciding an employ-
ee's need to remain. After scratching all employees neces-
sary to the department the remaining names were the can-
didates for termination. The candidates were then rated by
number based upon past job performances. Each supervisor
had input to the discussions, and the final rating was by
consensus. The first person on the list would be the first to
go. The list was finalized on August 23 with 15 names.
Goddard was sixth on the list. Carella stated that he did not
have any knowledge of Goddard's union activity and did
not know how many people were to be terminated until
September I.
Doepken participated in the meetings and contributed to
the evaluations of candidates for termination. He did not
disagree with Goddard's sixth position on the list. In June
Doepken had lost two of his seven analysts through cost cut
terminations and now more than ever was concerned with
keeping his best people. With regard to the metrication
project team, three were terminated as a result of the latest
cost cuts, and the project was shelved at the same time.
Zwicker was the only metrication professional retained.
Doepken knew that Goddard was against the Union in
June, July, and most of August and also knew that on Au-
gust 25 that Goddard had stated that he had changed his
mind and was now for the Union.
Boyers also contributed to the evaluations of candidates
for termination as well a those necessary to the future of the
section. The yardstick used was who would contribute most
to the section in terms of team effort. In addition, each had
to be a person who could be assigned to handle any type of
work that the section needed. Boyers' personal evaluation
of Goddard placed him fourth on the list of terminations.
Boyers had previously counseled Goddard in 1974 when
Goddard had been slated for discharge but was given an-
other chance under Boyers' supervision. Within six months
Goddard was transferred to Carella's supervision. Boyers
stated that he had no knowledge of union activity on the
part of Goddard and did not know how many were actually
terminated until September I.
Kropp, supervisor of business programmers, attended the
meetings of the systems section and participated in the
evaluations of job performances of the professionals. Kropp
had viewed Goddard's performance over the years and oft
fered to the supervisors assembled that Goddard had gone
up and down. He agreed with Goddard's placement on the
termination list finalized on August 23. Kropp stated that
he had no knowledge of union activity by Goddard. As a
result of the September I terminations and reorganizations
his programmer division was unsupervised. He was trans-
ferred to data as computer operations manager, and the
incumbent Knoyer was downgraded to programmer in sys-
tems. Kropp as computer operations manager graphed the
evaluations that had been made in that division specifically
to check the status of English and Barczak. The result was
that English received the lowest evaluation and Barczak the
next lowest overall, even if the lowest intermediate score for
each was deleted.
Flenniken, systems manager, stated that the cost cuts
made by the corporation in late 1976 and early 1977 proved
to be inadequate. In May the cost cuts were expedited and
at the center culminated in terminations of three business
analysts in systems and fbur employees in computer opera-
tions on June 8. The following evening Flenniken told his
supervisors that with the expection of more cuts he wanted
a better selection method for terminations. He wanted his
section to be aware, on a continuing basis, of who were the
best performers so that they would always be prepared. The
very next day Otto told Flenniken that Comptroller Kle-
mens had said that the three prior terminations in systems
would not be enough. Flenniken then met regularly with his
supervisors to decide the critical programs and systemati-
cally to select the employees needed to continue perform-
ance of those programs. Flenniken told his supervisors that
age and length of service should be factors, assuming that
the subject had the ability to perform on the critical sys-
tems.
In mid-August Otto told Flenniken that some additional
employees would be terminated, and since the sections
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WIFIWI.IN(-PITISBlR(}H STEFI. CORPORATION
would in a critical operating stage he wanted all employees
evaluated on joh performance alone. IFlenniken's group dis-
cussions did not include the use of' past annual evaluations
because mans of the past programs were to he eliminated
so evaluations had to be based on overall performance and
limited programs. The evaluations were to he in list form
from which terminations would he selected. Flenniken's su-
pervisors finalized the list on August 23. and the next das
Flenniken infiormed Otto he had the list. Otto requested 12
names, and Flenniken responded from the list. Flenniken
did not revise the list arrived at in meetings with his super-
visors hefore responding to Otto.
Flenniken admitted that Goddard informed him of his
support for the Union on August 25, but Goddard's name
had already been given to Otto. In addition, on several oc-
casions prior to August Goddard had expressed to Flenni-
ken his dislike for the Union and professed no support for it
in the campaign.
As a result of the cost cuts, on September I. 2 computer
operators. 4 data preparation employees. 3 Steubenville
plant support employees, I Benwood plant support em-
ployee, 1 Yorkville plant support employee. and 12 systems
employees were terminated. In addition, Border and Otto
were discharged the same day. On October 31 seven more
supervisors were terminated and four were downgraded to
nonsupervisor, classifications. Knoyer, Boyers. and Hall
were included in those downgraded.
Flenniken, at a meeting of the department. advised all
terminated employees of any job openings he was aware of
and instructed his supervisors to help those terminated to
seek other employment if possible.
Discussion and Conclusions
General Counsel argues that several incidents occurring
before the IO(b) periodS and alleged in the complaint consti-
tute background to demonstrate Respondent's animus
toward the Union and to place the alleged unfair labor
practices in perspective. The background is alleged as inter-
rogation. impression of surveillance, threats constituting in-
terference, restraint, and coercion proscribed by Section
8(a)() of the Act. As background, incidents can supply
motivation or intent for acts that occur timely and are al-
leged to be unfair labor practices. Here General Counsel's
evidence is offered to prove untimely unfair labor practices
involving the same employees named in timely unfair labor
practices. If General Counsel's evidence on the so-called
background incidents were credible it would be procedural
error to make the finding he requests due to the fact that
Section 10(b) is a statute of limitations. As such, a finding
of an unfair labor practice is time barred. Notwithstanding
the bar and assuming admissability of the evidence offered
it is either discredited or insubstantial.
English's testimony relative to the alleged interrogation
and impression of surveillance is wholly discredited. Eng-
lish's recount of the events begin with his admitted determi-
5 Sec. I(b of the act states. irer ala, that no complaint shall based upon
any unfair labor practice occurring more than 6 monihs prior o the filing of
the charge with the Board and the service of a cop) thereof upon the person
against whom such charge is made
nation to resist the undisputed economic cuts planned h,
the Compan>. His stated intent to his supervisor was one of
leadership, yet on several occasions later in discussions with
this same supervisor he professed ignorance of his o' n
stated intent. English's testimon' of his union activity is not
consistent with that of other emplo\ees engaged in union
activity nor with that of' the union representative who
chaired the employee meetings and planned the campaign
strategy. English would hae one believe that he received
and distributed 100 authorization cards, whereas his fellow
employees testified that each committee member received
10 cards to distribute in his own area. Additionall 3y English
places the receipt of the authorization cards from the Union
more strategically in time than the union representative and
other employees. Based upon the patent inconsistencies
which bear directly on the issues and English's over sugges-
tive nature on the stand I discredit his testimony unless
stated otherwise. Accordingly, the background allegations
of interrogation and surveillance have no evidentiar sup-
port. English further testified that his supervisor singled
him out of admonish him fior noncontirmance ,With the
dress code instituted 2 months prior. English testified that
Supervisor Knoyer was the only one who said an'thing to
him about the code. He could not understand h! because
he had worn the same clothes since the dress code was es-
tablished. I credit English as to what Knoyer said to him
about the dress code, but I conclude and find that the re-
marks were based upon legitimate business considerations
as reflected by all the evidence and not the union acti' its of'
English. Therefore. the incident does not constitute back-
ground as alleged by General Counsel.
Matyja's testimony to the incident alleging a threat of
loss of the profit sharing plan reveals nothing more than a
discussion of a known benefit for unrepresented employees
that is not ordinarily available to bargaining unit emplo\!-
ees. Neither the atmosphere nor the language suggests a
threat but rather evinces a campaign conversation of' little
magnitude and no probative value. I conclude and find.
therefore, that the incident is not background as alleged by
General Counsel.
Goddard's testimony of his conversation with lenniken
alleged as threats to change existing working conditions to
conditions less desirable and to move the computer center
to a distant location creates an unusual setting. An admit-
ted union antagonist discusses the futility of unionism with
his supervisor, and during the discussion the supervisor
opines what the president of the Company would do if he
had a union. Later, when the same employee admits to the
same supervisor that his mind has changed and no he
supports the Union. the supervisor's only response is. "I
don't think it will help us." Goddard admitted that period-
ically in the past a rumor of moving the center again sur-
faced, but employees always recognized its worth and isre-
garded it. Goddard's testimony as elicited was confused.
and even though his assertion of Flenniken's opinion wias
positive I find his testimony so diluted and qualified hb his
other testimony as to render the total of no probative value.
I therefore conclude and find that the background incident
alleged is not supported bh substantive evidence.
Absent the background as alleged there is no demon-
strated animus b the ('ompan! toward either ther ni on or
indivdual union supporters.
1(21
)DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Companx witnesses credibly testified to the need for eco-
nomic cuts throughout the organization. General Counsel
does not dispute the ('ompany's financial straits but argues
that English, Barczk. and Goddard were selected for ter-
mination because of their union activity.
The undisputed evidence shows that as a result of the
first economic cut prior to any union activity English was
one of three selected for a decrease in wages. English was
chosen for the decrease due to attitude and job perfiorm-
ance. English's admitted disregard for the dress code
evinces somewhat the validity of the decrease. Contrary to
General Counsel's argument of seniority, the record shows
that English and Barczak were the least senior operators in
their classification. The operators retained were in a higher
grade with one operator having assumed the higher grade
although hired after both English and Barczak. Although
English did engage in some union activity, it was consider-
ably less than he attempted to show in his testimony. Eng-
lish knew his job security was tenuous because of his job
performance and his testimony reflects that he knew. It is
obvious that his attempt at union activity was to forestall
the inevitable. General Counsel offered no evidence to dis-
pute the on going economic adjustments the Company was
making at the time of the union campaign, nor did General
Counsel offer any credible independent evidence of interfer-
ence, restraint, or coercion. The record does show that
other employees such as Gooch and Matyja with demon-
strated union activity in the present and past union cam-
paign were not selected for economic termination but
rather were passed over.
Barczak's only union activity was to attend several union
meetings and distribute several cards. Although Barczak
was involved openly in the prior campaign, he was limited
in his involvement in the current campaign and was secre-
tive to the point of anonymity. The Company was, in fact,
informed by the in plant organizing committee that Bar-
czak was not one of them. No evidence was offered to dis-
pute the Company's selection of Barczak for termination as
a result of the program to implement the economic cut
backs.
Goddard was not engaged in union activity prior to his
selection for termination. The Company had made the se-
lections before Goddard informed supervision that he sup-
ported the Union. In fact, when Goddard was selected for
termination was known to the Company as antiunion. Gen-
eral Counsel argues that Goddard's selection is linked to his
friendship with English, the alleged leading union adherent.
The evidence shows that Goddard had previously been se-
lected for discharge due to job performance but was given
another chance under two separate supervisors in different
areas of the center. In the instant terminations Goddard
ranked sixth on the list of 15, which indicates that his job
performance was in the midrange of professional employees
and additionally shows little or no improvement since his
prior candidacy fr termination.
General Counsel offered only a scintilla of evidence to
support his theory of discrimination in the selection of Eng-
lish, Barczak, and Goddard for termination. Additionally,
that evidence presented by General Counsel was too depen-
dent upon suggestions and generalizations a to substance
to be probative. I am not persuaded by General Counsel's
evidence but rather am convinced that the overwhelming
evidence supports a legitimate basis of selection by Respon-
dent. From the evidence before me it is clear that employ-
ees more engaged in union activity than English, Barczak.
and Goddard and with such activity known to management
were retained as a result of the Company's reduction in
force. Further, the total number of 23 employees termi-
nated and the classifications comprising such group suggest
legitimacy of all, rather than discrimination against three. It
is not inconsequential that subsequent to the September I
terminations several more cost reductions took place in-
cluding terminations of three supervisors and the down-
grading of four. Therefore. I conclude and find that Re-
spondent has not violated the Act by terminating
employees English, Barczak, and Goddard.
AI)DIIIONAL CON(CI.USIONS OF LAW
I. The Company did not violate the Act by admonishing
English to refrain from upsetting the girls in keypunch.
2. The Company did not threaten employees in violation
of the Act.
3. The Company's restrictions on inplant movements of
English and Goddard were not discriminatorily motivated
and therefore did not violate the Act.
4. The Company did not violate the Act by discharging
employees English, Barczak, and Goddard.
5. The General Counsel has failed to sustain his proce-
dural and evidentiary burdens of proving the background
allegations of paragraph 6 of the complaint.
Upon the foregoing findings of fact, conclusions of law,
and upon the entire record and pursuant to Section 10(c) of
the Act I hereby issue the following recommended:
ORDER6
The complaint is dismissed in its entirety.
6 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, he 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.
10()22