Vulcan Engineering Co.

National Labor Relations Board - Board Decisions

Mar 13, 1972

195 N.L.R.B. 859 (N.L.R.B. 1972)

VULCAN ENGINEERING CO.
Vulcan Engineering Co. and Shopmen 's Local Union
No. 527 of the International Association of Bridge,
Structural and Ornamental Iron Workers, AFL-
CIO. Case 6-CA-5622
March 13, 1972
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS JENKINS
AND KENNEDY
On January 28, 1972, Trial Examiner Milton Janus
issued the attached Decision in this proceeding. There-
after, Respondent filed a brief in support of exceptions.
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 Trial
Examiner's Decision in light of the exceptions and brief
and has decided to affirm the Trial Examiner's rulings,
findings, and conclusions and to adopt his recom-
mended Order.'
ORDER
Pursuant to Section 10(c) of the National Labor Re-
lations Act, as amended, the National Labor Relations
Board adopts as its Order the recommended Order of
the Trial Examiner and hereby orders that the Re-
spondent, Vulcan Engineering Co., Pittsburgh, Penn-
sylvania, its officers, agents, successors, and assigns,
shall take the action set forth in the Trial Examiner's
recommended Order.
I As the record and the brief in support of exceptions adequately present
the issues and the positions of the parties, Respondent's request for oral
argument is hereby denied
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
MILTON JANUS, Trial Examiner: This case was heard at
Pittsburgh, Pennsylvania, on December 8, 1971, pursuant to
a charge filed on August 18, 1971, and a complaint issued on
October 27, 1971. The complaint alleges that Respondent
discharged an employee, Robert Stewart, on August 16, 1971,
for discriminatory reasons, in violation of Section 8(a)(3) and
(1), and that it interrogated and threatened its employees
because of their activities on behalf of the Charging Union,
in violation of Section 8(a)(1). At the hearing, I granted the
motion of the General Counsel to amend the complaint by
adding another incident to the Section 8(a)(1) allegations.
Upon the entire record, including my observation of the
demeanor of the witnesses, and the briefs received from the
General Counsel and the Respondent, I make the following:
195 NLRB No. 160
FINDINGS OF FACT
I THE BUSINESS OF THE RESPONDENT
859
Respondent, a Pennsylvania corporation with its principal
office located in Pittsburgh, Pennsylvania, is a wholly owned
subsidiary of Vulcan, Inc., and is engaged in the design and
fabrication of specialized equipment for steel mills During a
recent representative 12-month period, it received at its facili-
ties in Pennsylvania goods and products valued in excess of
$50,000 directly from points located outside of Pennsylvania,
and shipped goods and material valued in excess of $50,000
directly to points outside Pennsylvania. The Respondent ad-
mits, and I find, that it is an employer engaged in commerce
within the meaning of the Act.
II THE LABOR ORGANIZATION INVOLVED
I find that the Charging Union (referred to hereafter as the
Union or Local 527) is a labor organization within the mean-
ing of the Act.
III THE UNFAIR LABOR PRACTICES
Introduction
The Respondent is in the business of designing and engi-
neering specialized equipment for steel mills. As part of its
operations it has a small fabrication or production shop, a
mile or more from its main office, where parts and compo-
nents are machined, welded, and assembled. The shop is an
amalgamation of certain recent acquisitions of the Employer,
and has been in business at its present location only since June
1971. The shop superintendent is Felix Daniels, admittedly a
supervisor. The shop employed from six' to eight employees
during the period relevant here, August-December 1971.
Work that could not be done at the shop because of lack of
equipment or space was subcontracted.
Sequence of Events
Robert Stewart, the alleged discriminatee, is a long-time
member of the Charging Union, Local 527. He was being laid
off by his previous employer, Safety-Guard, and was seeking
a new job. He called Daniels, Respondent's shop superinten-
dent, on Friday, August 6, and asked him if he needed a
welder. Daniels told him to come by on Monday, August 9.
In their interview on Monday, Daniels hired Stewart and told
him, according to Stewart, that there was enough work in the
shop to last until the first of the year, and that if he wanted
to, he could stay with Vulcan instead of going back to Safety-
Guard. Stewart began working for Vulcan as a welder the
next day, August 10.
The other men in the shop, learning that Stewart was a
union member expressed interest in the Union's wage and
fringe benefit program. Stewart called the Union's assistant
business agent, DeSarno, that evening, and the next day
DeSarno came over to the shop during working hours. Stew-
art told him they were busy then, and asked him to come back
some other time. Daniels saw DeSarno in the shop, recog-
nized him, and waved to him, but after he left, Daniels came
over to Stewart and asked him, according to Stewart, what
DeSarno was doing there. Stewart told him that DeSarno
would be back the next day, at which Daniels said that he
should punch DeSarno in the nose for coming into the shop.
About noon the next day, Friday, August 13, DeSarno
returned and met with all the employees outside the shop
during lunchtime. He explained the Union's program, passed
out authorization cards, and asked them to return the cards
to Stewart or mail them into the union office if they wanted
860 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to be represented by the Union.' Daniels had joined the group
and heard DeSarno's presentation and his request for signed
authorization cards. After the men returned to work, he
asked DeSarno to come into his office. They talked there for
at least a half hour about the Union and, according to
DeSarno, Daniels told him he would like to join the Union
himself.
One of the employees, Raymond Miller, who attended the
lunchtime meeting with DeSarno, testified that as he was
about to sign his card, Daniels told him to stop and think it
over. Miller and Stewart also testified about a meeting of the
employees in Daniels' office about 15 minutes before quitting
time that day, which would put it at or about 3:15 p.m. A
composite of their testimony is that Daniels told the shop
employees that he had enough work to keep everyone going
until the first of the year, but after that he did not know; that
it did not matter to him whether they joined the Union; and
that he had been to the main office, had told them about
DeSarno being there earlier that day, and that the office
(Daniels did not identify who specifically) had said they had
been expecting the men to join the Union.
Daniels admitted that he had called a meeting of the men
shortly before quitting time on Friday and had told them in
effect that he thought there was enough work in the shop to
keep them going for the next few months. He was not asked
whether he had gone to the main office earlier that afternoon,
after DeSarno's departure, as Miller and Stewart had testified
to, to inform the office about the Union's drive to get signed
authorization cards. Daniels did testify however about a later
meeting at the main office after the men had quit for the day,
with the Company's general manager, Kania.
According to Kania, it was he who called Daniels to come
to his office sometime after 3:30 p.m. to discuss the workload
and scheduling for the shop. He told Daniels that it was not
necessary to push too hard on certain jobs then being worked
on in the shop because new work was not coming in as they
had expected it to, and that Daniels should cut back his force
since the amount of work foreseeably available did not justify
his present payroll. Kania also testified that he had no
thought of Stewart when he told Daniels to cut down employ-
ment at the shop, and in fact did not even know that Stewart
had been hired just a few days before. Daniels' testimony is
in accord with Kania's, that he was told about the need to lay
someone off because the production schedule could be
stretched out.
On Monday morning, August 16, Daniels came to the shop
before 7 a.m. when the men were scheduled to start work
(before Daniels' normal starting time), told Stewart that he
would not have any more welding for awhile, and laid him
off. Stewart left immediately. A few minutes later, employee
Miller came into Daniels' office, and Daniels asked him, ac-
cording to Miller, if he had wised up over the weekend about
the Union. Miller says he told Daniels that he liked the
Union's fringe benefit program, and that Daniels then said
that he had just laid Stewart of because he was mad at him
for taking the union cards. Daniels denied telling Miller that
he had laid Stewart off because of his union activities.
Later that day, employee Davis had a conversation with
Daniels in which Daniels asked him, according to Davis, if
he had come to his senses. Davis asked him about what, and
Daniels replied in effect that the Union might put them all out
of work and close the shop down.
The following Thursday, August 19, Daniels asked the
employees to sign a prepared statement withdrawing their
authorizations for representation by Local 527 (G C Exh. 3).
They all signed it, but later that day Daniels told Miller, one
of those who had signed, to disregard the statement, that he
was washing his hands of the whole matter. None of this was
denied or explained by Daniels. '
No one was hired to replace Stewart. From August to the
time of the hearing in December, the remaining employees
have not worked any overtime, two or three employees took
a few days vacation around Thanksgiving day, and another
employee who quit then has also not been replaced. Kania
testified that the workload in the shop has fallen since Stew-
art's layoff, and that the Company has not subcontracted out
any work which could have been performed in the shop. The
engineering staff, Kania testified, has been sharply reduced in
1971, so that its present complement is about half what it was
at the beginning of the year.
At the hearing, the General Counsel amended the com-
plaint to allege that Respondent, through Daniels, had en-
gaged in a further violation of Section 8(a)(1) by interrogating
an employee, Sculli, with regard to giving testimony to the
Board. Sculli's testimony on this matter shows that he was
served with a subpena by the Board a week' or so before the
scheduled hearing. When he told Daniels that he had to
appear at the hearing, Daniels asked him why. Sculli then
told him for the first time that he had given a statement to
a Board agent. Daniels did not ask him what he had told the
Board agent, telling Sculli only that he could say what he
wanted at the hearing.
Analysis and Conclusions
The complaint alleges that Respondent violated Section
8(a)(1) in that Daniels interrogated employees about their
union membership or sympathies; threatened them with ter-
mination or closure of the plant if they engaged in union
activities or selected the union as their bargaining representa-
tive; solicited employees to withdraw their support from the
Union; and interrogated employees with regard to their giv-
ing testimony to a Board agent.
Daniels was not asked and therefore had no occasion either
to admit or deny Miller's testimony that Daniels had asked
him, shortly after Stewart was discharged, whether he had
wised up about the Union over the weekend, nor did he admit
or deny Davis' testimony that he (Daniels) had asked him
later that day if he had come to his senses, and that the Union
might put them all out of work and cause the shop to shut
down. Finally, Daniels did not deny that he had asked the
employees to sign a statement on August 19, that they were
withdrawing their union authorizations.
For a supervisor to ask an employee whether he has wised
up, or has come to his senses about a union bears the implica-
tion that the employee has been deluded into supporting the
union, and that his supervisor considers him as someone who
bears watching. I would find such interrogation to be coercive
even if it had not been accompained by the threats of loss of
work or plant shutdown which in fact occurred. And to
solicit employees to withdraw their authorizations to the
Union to represent them, which in itself interferes with the
employees' right to seek union representation," merely
confirms the coercive character of the previous interrogation.
However, Daniels' question of Sculli as to why he had been
subpenaed to attend the hearing strikes me as a reasonable,
noncoercive inquiry under the circumstances since there had
been no previous indication that Sculli was involved in the
case When Sculli told Daniels that he had given a statement
to a Board agent, Daniels then dropped the matter by prop-
erly telling him to say whatever he wanted to at the hearing.
' Five of the shop employees gave Stewart their signed authorization
cards sometime that day ' River Togs, Inc, 160 NLRB 58, 60
VULCAN ENGINEERING CO. 861
I shall recommend that this allegation of the complaint be
dismissed.
The only disputed issue in connection with the various
statements made by Daniels to certain employees is whether
Daniels told Miller that he had laid Stewart off for receiving
the employees' authorization cards. Miller testified that Dan-
iels had told him that, while Daniels denied it. If Miller is to
be believed, I would have that direct evidence of an intent to
discriminate which is so rarely found in Labor Board cases.'
Although I credit Miller over Daniels, I consider it appropri-
ate nevertheless to comment on the other evidence which is
available as to Respondent's motivation.
If Daniels alone had been responsible for Stewart's dis-
charge, I would find that the only reasonable inference to be
drawn therefrom is that it was due to Daniels' opposition to
the fact that Stewart had introduced the Union to the em-
ployees. A more difficult question is raised however by the
testimony of General Manager Kania that he was responsible
for Stewart's layoff, and that he ordered it for the legitimate
business reason that the Company's production forecast
necessitated a cutback in employment. But here also, the
circumstantial evidence as to motivation preponderates
against the Respondent. I consider it unlikely, and contrary
to the expectation of regular communication between a shop
superintendent and his superior, the general manager, that
Daniels would not have told Kania, on Friday, August 16,
that the Union had openly solicited the shop employees for
authorization cards, and that the sentiment of all or most of
the employees was favorable to the Union. Whether Daniels
passed this information on to Kania before the shop em-
ployees' meeting at 3:15 p.m., or after they had left at the end
of the day is not material. The issue in either event is whether
Kania knew, when he ordered Daniels to stretch out his
production schedule and cut his payroll costs, that the Union
had made its entrance on the scene. Kania's testimony on the
matter does not convince me that he was unaware on Friday
afternoon about the Union's organizing efforts. He testified
that he had no thought of Stewart when he told Daniels to
lay someone off, but that is not inconsistent with knowledge
that the Union had held a meeting which all the shop em-
ployees had attended and where it had passed out authoriza-
tion cards. Kania's sudden concern about slowing down the
pace of production in the shop, just a week after a new
employee was hired, and almost simultaneously with Daniels'
statement that he had enough work to keep everyone busy till
the first of the year, indicates an intent to dampen the en-
thusiasm of the employees for representation by the Union.
Kania's instruction to Daniel's to lay someone off immediately
was calculated, I find, to chili and deflate the newly expressed
interest of the employees in the Union. This new policy could
best be implemented by discharging the man responsible for
introducing the employees to the Union. It is true, of course,
that if union considerations had not entered into Kania's
instruction to lay someone off, Stewart, as the newest em-
ployee, would be the natural person to let go, but the coinci-
dence that Stewart was the employee with the least seniority
does not erase the fact that it was he who had brought the
Union to the Respondent's plant. There is no evidence one
way or the other as to Kania's personal feelings toward the
Union, but Daniels union animus, shown by his coercive
interrogation, threats, and successful attempt to have the
employees repudiate their authorizations to the Union, is
clearly imputable to the Respondent.
3 See N.L R B. v Melrose Processing Co, 351 F 2d 693, 698 (C A 8)
I therefore find that Respondent discharged Stewart in
whole or in part for discriminatory reasons, thereby violating
Section 8(a)(3).4
IV. THE REMEDY
In order to effectuate the policies of the Act, I find it
necessary that the Respondent be ordered to cease and desist
from the unfair labor practices found and from other inva-
sions of employees' Section 7 rights; to take certain affirma-
tive action, including the offer of reinstatement to Robert
Stewart, with backpay computed on a quarterly basis from
the date of his discharge to the date on which the Company
offers him reinstatement, as prescribed in F. W. Woolworth
'Company, 90 NLRB 289, plus interest at 6 percent per an-
num; and to post appropriate notices.
Upon the basis of the foregoing findings of fact, and upon
the entire record in the case, I make the following:
CONCLUSIONS OF LAW
1. Vulcan Engineering Co. is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of the Act.
2. Shopmen's Local Union No. 527 of the International
Association of Bridge, Structural and Ornamental Iron
Workers, AFL-CIO, is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. By discriminatorily discharging Robert Steward on Au-
gust 16, 1971, thereby discouraging membership in the
Union, the Respondent has engaged in unfair labor practices
within the meaning of Section 8(a)(3) and (1) of the Act.
4. By interrogating employees Raymond Miller and Robert
Davis in a coercive manner; by threatening Davis that the
shop might close down if the employees chose to have the
Union represent them; and by asking the employees to
repudiate their authorization to the U ion to represent them,
the Respondent has engaged in unfair labor practices within
the meaning of Section 8(a)(1) of thei Act,
5. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
6. Respondent did not violate Section 8(a)(1) when super-
visor Daniels asked employee Julio Sculli why he had been
served a subpena to appear at the hearing in this case.
Upon the foregoing findings of fact, onclusions of law, and
the entire record, and pursuant to Setion 10(c) of the Act,
I hereby issue the following recommended:s
ORDER
Respondent, Vulcan Engineering Co., its officers, agents,
successors, and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in Shopmen's Local Union
No. 527 of the International Association of Bridge, Structural
and Ornamental Iron Workers, AFL-CIO, or in any other
labor organization of its employees, by discriminatorily dis-
charging, or in any other manner discriminating against, any
employee in regard to hire, tenure, or any other term or
condition of employment.
(b) Interrogating employees in a coercive manner, threat-
ening them that the shop might close ldown if the employees
chose to have the Union represent them, and asking them to
4 Consolidated Supply Co, Inc, 192 NLRB No 134
' In the event no exceptions are filed as provided by Section 102 46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, recommendations, and recommended Order herein
shall, as provided in Section 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
862 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
repudiate their authorization to the Union to represent them. IT IS FURTHER RECOMMENDED that the complaint be dis-
(c) In any other manner interfering with, restraining, or missed insofar as it alleges unfair labor practices not found
coercing its employees in the exercise of their right to self- herein.
organization, to form labor organizations, to join or assist the
above-named labor organization, or any other labor organiza-
tion, to bargain collectively through representatives of their
own choosing, to engage in other concerted activities for the
purpose of mutual aid or protection as guaranteed in Section
7 of the Act, or to refrain from any or all such activities.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act:
(a) Offer to Robert Stewart immediate and full reinstate-
ment to his former or substantially equivalent position, with-
out prejudice to his seniority or other rights and privileges,
and make him whole for any loss of earnings suffered by
reason of the discrimination practiced against him, in the
manner set forth in the section entitled "The Remedy."
(b) Notify the above-named individual immediately, if he
is presently serving in the Armed Forces of the United States,
of his right to full reinstatement upon application after dis-
charge from the Armed Forces, in accordance with the Selec-
tive Service Act and the Universal Military Training and
Service Act.
(c) Preserve and upon request make available to the Board
or its agents for examination and copying, all payroll records,
social security payment records, timecards, personnel records
and reports, and all other reports necessary to analyze the
amount of backpay due, and the right to reinstatement.
(d) Post at its plant and office in Pittsburgh, Pennsylvania,
copies of the attached notice marked "Appendix."6 Copies of
the notice, on forms provided by the Regional Director for
Region 6, after being duly signed by an authorized represent-
ative of the Respondent, shall be posted immediately upon
receipt thereof, and be maintained for 60 consecutive days
thereafter, in conspicuous places, including all places where
notices to employees are customarily posted. Reasonable
steps shall be taken by Respondent to insure that said notices
are not altered, defaced, or covered by any other material.
(e) Notify the Regional Director for Region 6, in writing,
within 20 days from the date of receipt of this Decision, what
steps Respondent has taken to comply herewith.'
6 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall be changed to read
"Posted Pursuant to a Judgment of the United States Court of Appeals
Enforcing an Order of the National Labor Relations Board."
' In the event that this recommended Order is adopted by the Board after
exceptions have been filed, this provision shall be modified to read "Notify
the Regional Director for Region 6, in writing, within 20 days from the date
of this Order, what steps the Respondent has taken to comply herewith "
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Act protects employees in
their right to form, loin, or assist labor unions or to refrain
from such activity.
WE WILL offer Robert Stewart full reinstatement, and
we will pay him for the earnings he lost as a result of his
discharge on August 16, 1971, plus 6 percent interest.
WE WILL NOT discharge or discriminate against any
employee for joining or supporting Shopmen's Local
Union No. 527 of the International Association of
Bridge, Structural and Ornamental Iron Workers,
AFL-CIO, or any other Union.
WE WILL NOT question our employees in a coercive
manner about the Union, nor will we threaten them that
the shop might close down if they choose the Union to
represent them, nor will we ask them to repudiate their
authorizations to the Union to represent them.
VULCAN
ENGINEERING CO.
(Employer)
Dated By
(Representative) (Title)
WE WILL immediately notify the above-named individual, if
he is presently serving in the Armed Forces of the United
States of his right to full reinstatement, upon application after
discharge from the Armed Forces, in accordance with the
Selective Service Act and the Universal Military Training and
Service Act.
This is an official notice and must not be defaced by any-
one.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced, or
covered by any other material. Any questions concerning this
notice or compliance with its provisions may be directed to
the Board's Office, 1536 Federal Building, 1000 Liberty Ave-
nue, Pittsburgh, Pennsylvania 15222, Telephone 412-644-
2977.