Asko, Inc.

National Labor Relations Board - Board Decisions

Mar 12, 1973

202 N.L.R.B. 330 (N.L.R.B. 1973)

330 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Hunter Saw Division of Asko, Inc. and Lonnie H.
Keener, Jr. Case 6-CA-5976
March 12, 1973
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND JENKINS
On October 17; 1972, Administrative Law Judge
Robert E . Mullin issued the attached Decision in this
proceeding . Thereafter , the Respondent filed excep-
tions and a supporting brief , and the General
Counsel filed exceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, findings
and conclusions ' of the Administrative Law Judge
and to adopt his recommended Order.2
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that Hunter Saw Division of Asko,
Inc., Pittsburgh, Pennsylvania, its officers, agents,
successors, and assigns, shall take the action set forth
in the Administrative Law Judge's recommended
Order.
1 In reaching our conclusion herein, we find it unnecessary to pass on the
Administrative Law Judge's findings and conclusions with respect to the
legality of the November 5, 1971, layoff and the General Counsel's
exceptions to his findings and conclusions The record shows that the
original charge filed March 23, 1972, only related to the failure to recall in
January 1972 and made no reference, direct or indirect, to any other
unlawful conduct The amended charge, alleging, for the first time, the
illegality of the November layoff was filed on July 19, 1972 In these
circumstances, and since more than 6 months had elapsed prior to the filing
of the amended charge, further proceedings with respect to the November
layoff are precluded by the provisions of Sec. 10(b) of the Act.
2 Respondent, in its exceptions to the Decision of the Administrative
Law Judge, contends for the first time herein that we ought to defer to the
available contractual grievance and arbitration machinery pursuant to the
policy announced in Collyer Insulated Wire, A Gulf and Western Systems
Co, 192 NLRB No 150 Such a Collyer defense was not raised or litigated
at the hearing In Chairman Miller's view , a respondent seeking to assert
this defense has the burden of establishing it by pleading and proving facts
sufficient to show the applicability of the principles established in the
Collyer line of cases Respondent , in his opinion , has not met that burden
here . Members Fanning and Jenkins would in any event , in accordance with
their dissents in Collyer, not defer this case to arbitration , even had
Respondent shown the applicability of Collyer
DECISION
STATEMENT OF THE CASE
ROBERT E. MULLIN, Administrative Law Judge: This
case was heard in Pittsburgh, Pennsylvania, on September
8, 1972, pursuant to charges duly filed and served.' The
original complaint was issued on May 26, 1972. Thereafter,
an amended complaint and a notice of hearing were issued
on July 20, 1972. In its answers, duly filed, the Respondent
conceded certain facts as to its business operations, but
denied all allegations that it had committed any unfair
labor practices.
At the trial, the General Counsel and the Respondent
were represented by counsel. All parties were given full
opportunity to examine and cross-examine witnesses, and
to file briefs. A motion to dismiss, made by Respondent at
the close of the hearing, is disposed of as appears
hereinafter in this Decision. The parties waived oral
argument and, on September 25, 1972, both the General
Counsel and the Respondent submitted briefs.
Upon the entire record in the case, including the briefs of
counsel, and from my observation of the witnesses, I make
the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent, a Pennsylvania corporation with its
principal office and plant located in Pittsburgh in that
State, is engaged in the manufacture and nonretail sale of
industrial saws and spacers for the steel industry. During
the 12-month period preceding the issuance of the
complaint, the Respondent shipped goods and materials
valued in excess of $50,000 from its Pittsburgh plant
directly to points outside the Commonwealth of Pennsylva-
nia. Upon the foregoing facts, the Respondent concedes,
and I find, that Hunter Saw Division of Asko, Inc., is
engaged in commerce within the meaning of the Act.
H. THE LABOR ORGANIZATION INVOLVED
United Steelworkers of America, Local 3714, AFL-CIO,
herein called the Union, or Steelworkers, is a labor
organization within the meaning of the Act.
1 The original charge was filed on March 23, 1972. An amended charge
was filed on July 19, 1972.
202 NLRB No. 30
HUNTER SAW DIV. OF ASKO, INC. 331
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background and Sequence of Events
The Respondent has a small plant in the Pittsburgh area
with about 25 employees. It has had collective-bargaining
relations with the Union for many years. Shortly after his
employment in September 1971, Lonnie H. Keener, Jr., the
Charging Party herein, joined the Steelworkers. Early in
November, the Respondent laid off Keener and two other
recent hires. In January, the latter were recalled, but
Keener was not. The General Counsel alleges that this was
because Keener had invoked the Union's grievance
procedures during the course of his employment and
further that his original layoff was also discriminatory.
These allegations are denied by the Respondent in their
entirety.
B. The Facts
Keener went to work for the Respondent as a laborer on
or about September 13, 1971. He had previously had
several job interviews with Bernard F. Carroll, plant
superintendent, and, after his employment, Carroll as-
signed Keener to work as a "holdup" man in what was
known as the holdup room.2 Subsequent to Keener's
employment, the Respondent hired Stanley Lingelbach
and Thomas Milanek.
Not long thereafter, the Respondent experienced a
business downturn and Superintendent Carroll found that
to keep all the employees occupied during the day it was
necessary that he assign some of the men to work outside
their classification. During the course of this period,
Lingelbach and Milanek were both assigned to various
jobs, some of which, apparently, were less arduous than the
holdup work which Keener was performing. Late in
October, or early in November, Keener complained to
Carroll about his continued assignment as a laborer while
others, hired subsequent to his employment, were getting
lighter work. Carroll's answer was that there was not much
work for anybody and that he hoped that the situation in
the shop at that time would be only temporary.
Keener was not satisfied with Carroll's response. At this
time, having become a union member,3 Keener filed an
oral grievance with the Union. Shortly thereafter, Robert
Stenett, president of Local 3714, and Donald Brown,
Bartley Riley, and Edmund Budziszewski, members of the
Steelworkers' grievance committee, met with the plant
superintendent to discuss Keener's complaint. At that time,
Carroll repeated, in substance, what he had told Keener
previously, namely, that the lack of work in the shop was,
he believed, a temporary matter and that up to that point
he had endeavored to avoid a layoff by assigning the
2 The "holdup man" was an assistant to a sawsmith The latter was a
skilled workman responsible for removing irregularities on the surface of
saw blades after they had received heat treat processing The holdup man
held the saw blade on a large, flat anvil and kept it level while the sawsmith,
or hammerman, hammered and flattened the blade
3 A union shop clause in the Steelworkers contract required new
employees tojoin the Union on the 31st day of their employment
4 The General Counsel did not establish a specific date as to when this
conversation occurred. The witnesses were in substantial accord as to the
approximate time Carroll testified that he talked with Keener late in
employees wherever he could use them. Before concluding
the conference, however, Carroll expressed his irritation at
having to justify his effort to provide employment for
everyone and announced that if the men were going to
engage in petty bickering as to what men should be
cleaning which machine, he would lay off the three
youngest men. The collective-bargaining agreement re-
quired that the Union receive at least 1 week's notice of
any reduction in force. Carroll told the committee that he
was giving the Steelworkers the requisite notice. That
Friday, Carroll notified Keener, Milanek, and Lingelbach
that they would be laid off the following Friday. At the
hearing, Carroll conceded that he made this decision at the
time that the Union's committee came to him with
Keener's grievance. A short while later, he laid off Carl
Cervice, another employee.
In January, Keener learned that both Lingelbach and
Milanek had been rehired. Thereafter he telephoned
Carroll to mquire as to when he could return to work.
Carroll offered no encouragement .4 According to the
latter, he told Keener that under the contract he was no
longer obligated to recall any who had been laid off,5 and
that, in any event, he could not use Keener because of
absenteeism and because Keener had had trouble doing
the job assigned to him. Carroll testified that, at this point
in their conversation, Keener declared that he was
appealing the matter to the NLRB and that he needed
reasons as to why he was not being reemployed. According
to Carroll, he thereupon told Keener that he would not
take him back because of his unreliability, incapability,
and "attitude."6 Carroll testified, in connection with the
latter term, that he also told the employee that he did not
like the way in which Keener had involved the Union's
grievance committee in his problems. According to the
superintendent, he stated to Keener that "when things were
tough and I was trying to keep everybody occupied .. .
You had to come in with a committee . . . when I
explained to you like a gentleman what the conditions were
... the committee bounces on my back . . . at this time I
don't need aggravation."
C. Concluding Findings
The General Counsel alleged that the November layoff
was triggered by the Union's action in connection with
Keener's grievance and, therefore, discriminatory. This
was denied by the Respondent, according to whom the
layoff was dictated solely by economic considerations.
Carroll, a longtime employee of the Respondent, who
had been superintendent for over 5 years, testified that he
could not recall any earlier layoff, although in 1968 it had
been necessary to put the shop employees on a 4-day week.
However, he testified that for sometime before the layoff in
January or early in February, and the latter testified that he made the
telephone call in February
5 This appears to have been correct The seniority clause in the
collective-bargaining agreement provided that a laid-off employee retained
seniority only for so long a period after the layoff as he had been employed
by the Respondent In Keener's case this was approximately 2 months, a
period that expired at the latest, in mid-January Of course, Lingelbach and
Milanek had even less seniority than Keener
6 The quotation is from Carroll's testimony
332 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
November 1971, the shop had little work and that it was
his effort to spread the available work which precipitated
the Union's grievance. Arien Metzelaar, assistant to the
president, and Richard T. Williams, the corporate-director
of industrial relations, credibly testified that before the
Union came into the picture they had discussed the
likelihood of a layoff with Carroll. According to Williams,
about 2 weeks before the layoff was effectuated, he had a
conversation with Carroll in which the necessity of a
cutback was discussed. Williams testified that he told the
plant superintendent at this time that the decision as to a
layoff would be left entirely to him.
The "management clause" in the collective-bargaining
agreement clearly accorded to the Respondent the right to
relieve employees from duty for lack of work. The
testimony of Carroll, Metzelaar, and Williams as to the
work shortage in mid-November was credible. The General
Counsel offered no refutation of this line other than
surmise and speculation. In his brief, the General Counsel
contends that Carroll laid off Lingelbach and Milanek
solely to reach Keener who had the most seniority. This
argument, however, ignores the fact that shortly after the
three above named were laid off, the Respondent also laid
off another employee, Carl Cervice, who was senior to all
three of them.? Consequently, it is my conclusion that not
only does the record establish that the Respondent had an
economic justification for the layoff, but that when faced
with a choice between a make-work program that required
using employees outside their classifications in order to
keep them busy and a reduction in force in accordance
with shop seniority, the Respondent could elect, as it did,
to follow the latter course. As a result I conclude that the
General Counsel has not proved that the layoff in
November was ordered for discriminatory reasons.
The Respondent's refusal to recall Keener, however,
presents a different question. According to Carroll, he did
not wish to recall Keener because of his absenteeism, his
stature, and his attitude. Neither of the first two reasons
withstands scrutiny. Keener testified, credibly and without
contradiction, that he had never been reprimanded while
on the job, either orally or in writing. He also testified
credibly that his absences from work were necessitated
largely because of an automobile accident which he had
had and because of the serious illness of one of his
children. Apparently, his explanations, made at the plant
during the period of his employment, were satisfactory, for
as found earlier, he had never been reprimanded for
absenteeism or for any other reason. Moreover, his
absenteeism was not as great as at least two other
employees who were retained.8 At the hearing, Carroll
testified that because Keener was not a tall man, but short
of stature, a special platform, or skid, had to be built in the
holdup room to enable Keener to perform his work for the
sawsmith. According to Carroll, this decreased the employ-
ee's utility to the Respondent. As found above, Carroll had
hired Keener when the latter was seeking employment.
Keener's stature, manifestly apparent then, had not been
considered a handicap to his employment at that time by
the superintendent , a man with many years experience in
every phase of the Respondent's operations .9 Moreover, if,
in fact, Keener 's stature had constituted a problem it
would have been evident during his 30-day probationary
period and Keener would have been either discharged or
reassigned . Since neither action was taken , the logical
conclusion must be that the Respondent kept him after the
completion of the probationary period because he had
proved himself, physically, as well as otherwise, to be
capable of doing the job assigned him. It is my conclusion
that Carroll's criticism of Keener's physique was an
afterthought which developed after the charges in the
instant case were filed.
Carroll openly disdained Keener for having resorted to
the union grievance procedure in protesting the superin-
tendent's methods for assigning work in the shop. This was
evident in his conversation with Keener in February and it
was patently clear at the time he testified. In November
1971, Carroll had been making every effort to avoid a
layoff in the shop by having even the more highly skilled
employees perform routine maintenance work when there
was nothing else for them to do. At this juncture, Keener, a
brash newcomer, filed a grievance which confronted
Carroll with the necessity of becoming involved in a breach
of contract problem or of effectuating a reduction in force.
As he testified, Keener 's action was an "aggravation . . . I
don't need... .
The guarantee in Section 7 of the Act of the right to
engage in protected concerted activities for the purpose of
mutual aid and protection establishes not only the right of
employees to engage in union -related activities but also the
fundamental right of employees to present grievances to
their employers over terms and conditions of employment.
N.L.R.B. v. Washington Aluminum Company, 370 U.S. 9,
14; Hugh H. Wilson Co. v. N.L.R.B., 414 F.2d 1345,
1347-48 (C.A. 3), cert. denied , 397 U.S. 935 . Keener's
complaint to Carroll that he was not being assigned any
lighter work in the shop and the subsequent action of the
Union's grievance committee in protesting, on Keener's
behalf, about the superintendent's method of assigning
work, clearly constituted concerted activity. Carroll's
dismay with Keener for having frustrated the superintend-
ent's well-intentioned efforts to keep all the employees on
the payroll is understandable. Nevertheless, Keener was
entitled to exercise his right to invoke the Union's
grievance procedure and, under the Act here involved, that
right was a protected concerted activity. John Klann
Moving and Trucking Company v. N.L.R.B., 411 F.2d 261,
263 (C.A. 6), enfg. 170 NLRB 1207, 1212; N.L.R.B. v.
Pruden Products Co., 422 F.2d 855, 856 (C.A. 7); Bowman
Transportation, Inc., 134 NLRB 1419, 1420 (Reeves), enfd.
as to this point, 314 F.2d 497, 498 (C.A. 5); Interboro
Contractors, Inc., 157 NLRB 1295, 1301-02, enfd. 388 F.2d
495 (C.A. 2).
When Keener sought reemployment, Carroll refused to
rehire him, alleging, inter alia, that Keener did not have the
7 Cervice was reemployed in December 1971 This recall was in extended periods due to illness
accordance with the terms of the contract because Cervice had over a year's 9 Carroll testified that he had been working at the plant for almost 35
seniority at the time of the layoff years
8 Eg, Cervice and Astronich, both of whom had been absent for
HUNTER SAW DIV. OF ASKO, INC. 333
right "attitude." As he described it, Keener's complaint,
voiced both by the employee himself and through the
Union's grievance committee, had been an "aggravation
I don't need...." These remarks to Keener reveal
the true motive for the Respondent's failure to recall the
employee.10 It is my conclusion that Carroll's refusal to
reemploy Keener was motivated by his antipathy for the
latter which developed when Keener exercised his right,
before the layoff, to engage in protected concerted activity.
Such action by the Respondent's plant superintendent
constituted discrimination within the meaning of Section
8(a)(3) and (1) of the Act. It is so found.
Respondent be required to preserve and make available to
the Board, or its agents , on request, payroll and other
records to facilitate the computation of backpay due.
Since a discriminatory discharge , or refusal to reemploy,
"goes to the very heart of the Act" (N.L.R.B. v. Entwistle
Mfg. Co., 120 F.2d 532, 536 (C.A. 4)), it will be
recommended that the Respondent be ordered to cease
and desist from infringing in any manner upon the rights
guaranteed in Section 7.
Upon the foregoing findings and conclusions and the
entire record , and pursuant to Section 10(c) of the Act, I
hereby issue the following recommended:
CONCLUSIONS OF LAW
1. The Respondent is engaged in commerce and 'the
Union is a labor organization, all within the meaning of the
Act.
2. By discriminating in regard to the hire and tenure of
Lonnie H. Keener, Jr., thereby discouraging union or
concerted activities, the Respondent has engaged, and is
engaging, in unfair labor practices within the meaning of
Section 8(a)(3) and (1) of the Act.
3. By interfering with, restraining, and coercing its
employees in the exercise of the rights guaranteed in
Section 7 of the Act, the Respondent has engaged, and is
engaging, in unfair labor practices within the meaning of
Section 8(a)(1) of the Act.
4. The General Counsel did not prove by a preponder-
ance of the evidence that the Respondent's layoff of
employees in November 1971 was violative of the Act.
THE REMEDY
Having found that the Respondent has engaged in
certain unfair labor practices , I will recommend that the
Respondent be ordered to cease and desist therefrom and
to take certain affirmative action designed to effectuate the
policies of the Act.
Having found that the Respondent discriminatonly
refused to reemploy Lonnie H. Keener , Jr., I will
recommend that the Respondent be ordered to offer
Keener immediate and full reinstatement without prejudice
to his seniority or other rights and privileges , and make
him whole for any loss of earnings that he may have
suffered from the time that the Respondent failed to
reemploy him" to the date of the Respondent 's offer of
reinstatement . The backpay for the above-named employ-
ee shall be computed in accordance with the formula
approved in F. W. Woolworth Company, 90 NLRB 289,
with interest thereon computed in the manner and amount
prescribed in Isis Plumbing & Heating Co., 138 NLRB 716,
717-721. It will also be recommended that the said
10 As for Carroll's words to Keener on this occasion, it may be said, as
the Fifth Circuit Court of Appeals said in another case: "If the words
attributed to those authorized to speak for management are credited as
having been said, their form and content and context eliminate all doubt on
motive." N L R B v Ferguson, 257 F 2d 88, 90 (C A 5, 1958).
11 Other than ascribing it to sometime in February 1972, the record does
not establish a more accurate date of the telephone conversation in which
Superintendent Carroll refused to rehire Keener Carroll testified that he
hired a new employee, one Dan Brown, in the latter part of February The
Respondent's backpay liability as to Keener is found to begin no later than
the date on which Brown was hired
ORDER 12
Respondent, Hunter Saw Division of Asko, Inc., its
officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to reemploy or otherwise discriminating
against any employee because of his concerted or union
activity.
(b) In any other manner interfering with, restraining, or
coercing its employees in the exercise of their right to self-
organization, to form, loin, or assist any labor organiza-
tion, to bargain collectively through representatives of their
own choosing, or to engage in concerted activities for the
purpose of collective bargaining or other mutual aid, or to
refrain from any or all such activities.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Offer to Lonnie H. Keener, Jr., immediate and full
reinstatement to his former job or, if that job no longer
exists, to a substantially equivalent position, without
prejudice to his seniority or other rights and privileges and
make him whole in the manner set forth in the section of
this Decision entitled "The Remedy."
(b) Preserve, and upon request, make available to the
Board, or its agents, for examination and copying, all
payroll records, social security payment records, timecards,
personnel records and reports, and all other records
necessary, or appropriate, to analyze the amount of
backpay due.
(c) Notify immediately 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 and the Universal Military Training
and Service Act.
(d) Post at its plant in Pittsburgh, Pennsylvania, copies of
the attached notice marked "Appendix." 13 Copies of the
notice, on forms provided by the Regional Director for
Region 6, after being duly signed by the Respondent's
12 In the event no exceptions are filed, as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board , the findings,
conclusions , and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations , be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes.
13 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 read "Posted pursuant
to a judgment of the United States Court of Appeals enforcing an Order of
the National Labor Relations Board."
334 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
authorized representative, shall be posted by it for a period
of 60 consecutive days thereafter, in conspicuous places,
including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the
Respondent to ensure 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 the receipt of this decision,
what steps the Respondent has taken to comply herewith.14
IT IS ALSO ORDERED that the complaint be dismissed
insofar as it alleges violations of the Act not specifically
found.
14 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 "
concerted activities for the purpose of ' collective
bargaining or other mutual aid or protection, or to
refrain from any or all such activities.
WE WILL offer Lonnie H. Keener, Jr., immediate and
full reinstatement to his former job or, if that job no
longer exists, to a substantially equivalent position,
without prejudice to his seniority or other rights and
privileges, and make him whole for any loss of pay
suffered as a result of the discrimination against him.
Dated By
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discourage union or concerted
activities by refusing to reemploy or otherwise discrimi-
nating against our employees.
WE WILL NOT in any other manner, interfere with,
restrain, or coerce employees in the exercise of their
right to self-organization, to form, join, or assist any
labor organization, to bargain collectively through
representatives of their own choosing, and to engage in
HUNTER SAW DIVISION OF
ASKO, INC.
(Employer)
(Representative) (Title)
We will notify immediately the above-named individual, if
presently serving in the Armed Forces of the United States,
of the 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
anyone.
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 concern-
ing this notice or compliance with its provisions may be
directed to the Board's Office, 1536 Federal Building, 1000
Liberty Avenue, Pittsburgh, Pennsylvania 15222, Tele-
phone 412-644-2977.