281 N.L.R.B. 1119 (N.L.R.B. 1986)

Modern Iron Works, Inc.

National Labor Relations Board - Board DecisionsSep 30, 1986

281 N.L.R.B. 1119 (N.L.R.B. 1986)

MODERN IRON WORKS Modern Iron Works, Inc. and Ramon Rodriguez. Case 22-CA-13337 30 September 1986 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS JOHANSEN AND STEPHENS On 7 March 1985 Administrative Law Judge James F. Morton issued the attached decision. The Respondent filed exceptions and a supporting brief, the Charging Party filed an answering brief and cross-exceptions and supporting brief, and the Re- spondent filed an answering brief.' The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions, cross-exceptions, and briefs and has decided to affirm the judge's rul- ings , findings, 2 and conclusions and to adopt the recommended Order. We adopt the judge's recommended Order in its entirety, including the provision directing the Re- spondent to make the 10 employees whole by paying them backpay for any earnings lost as a result of the Respondent's unlawful discharge of them from the date of the unlawful discharge to the date of an offer of reinstatement. Abilities & Goodwill, 241 NLRB 27 (1979), enf. denied on other grounds 612 F.2d 6 (1st Cir. 1979).3 In ac- cordance with our normal practice, we defer to subsequent compliance proceedings the question whether the Respondent at some later date tolled its backpay liability to any of the employees by of- fering them reinstatement to their former positions, without prejudice to their seniority and other rights and privileges. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, Modern Iron Works, Inc., Trenton, New Jersey, its officers, ' The Respondent has requested oral argument The request is denied as the record , exceptions, and briefs adequately present the issues and the positions of the parties. 2 The Respondent and the Charging Party have excepted to some of the judge 's credibility findings. The Board 's established policy is not to overrule an administrative law judge 's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect . Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing the findings. 9 Chairman Dotson would overrule Abilities & Goodwill, and would date the Respondent 's backpay obligation to the discharged strikers from the time they made an unconditional offer to return to work. 1119 agents, successors, and assigns, shall take the action set forth in the Order. Susan K. Anderson, Esq., for the General Counsel. Curtis A. Woods, Esq. (Teich, Groh, Robinson, Kline and Frost), of Trenton, New Jersey, for the Respondent. Ms Mary Cowley, of the New Jersey Labor Defense Committee, Trenton, New Jersey, for the Charging Party. DECISION STATEMENT OF THE CASE JAMES F. MORTON, Administrative Law Judge. The General Counsel alleges in substance that Modem Iron Works, Inc. (Respondent) violated Section 8(a)(1) of the National Labor Relations Act, by having discharged 10 employees because they sought a larger wage increase than they received. Respondent contends that those em- ployees quit its employ. The hearing was held before me in Newark, New Jersey, on December 10, 1984. On the entire record in- cluding my observation of the demeanor of the wit- nesses, and after full consideration of the briefs filed on behalf of the General Counsel, Respondent, and the Charging Party, I make the following FINDINGS OF FACT I. JURISDICTION The pleadings establish that Respondent is a corpora- tion engaged at its plant in Trenton, New Jersey, in making fire escapes, railings, and steel and aluminum products. Its operations meet the Board's nonretail juris- dictional standard. II. THE ALLEGED UNFAIR LABOR PRACTICE A. Background None of Respondent's approximately 19 employees are represented by a labor organization for purposes of col- lective bargaining . In her brief, the Charging Party's rep- resentative has asserted that Respondent should be re- quired to recognize and bargain collectively with "the Committee of Welders, Braziers , Grinders and Labor- ers." That contention is considered below under the heading, "Analysis." In early June 1984 (all dates herein are for 1984 unless specified otherwise), Respondent gave its shop employ- ees a 5 -percent wage increase. B. The Allegedly Unlawful Discharges The names of the 10 employees involved in this case are, Ramon Rodriguez Carlos Colon Ruben Ortiz Angel Rodriguez Robert Phillips Jose Roman Angel Rios Lennard Smith Rafael Rivera Luis F. Torres 281 NLRB No. 151 1120 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On Wednesday, June 27, they discussed among them- selves their dissatisfaction with the raise they had re- ceived. One of them, a welder, Ruben Ortiz, was chosen by the group to talk to Respondent 's president about this matter. At the end of the lunch hour on the next day Ortiz told Respondent's president that the workers were not happy with the raise they received. Another welder, Ramon Rodriguez, joined the discussion. It appears that Respondent's president had used these two employees for the purposes of "getting through" to the non-English speaking employees whenever he had difficulty in making himself understood. Respondent's president, Steve Sierocinski, asked Ortiz and Rodriguez to accompany him outside the plant. The other employees involved herein followed them out. Sierocinski then told them that Respondent could not afford to give them more money. He suggested that they talk to Respondent's secretary- treasurer , John Tichy, who is also coowner of Respondent, with Sierocinski. The employees and Sierocinski went back inside the plant . Sierocinski met briefly with Tichy in the office. Thereupon Tichy came out and met with the employees. Essentially, he gave them the same information that Sier- ocinski had. Sierocinski then told the employees that, if they can find work for more money elsewhere, that would be fine or they can work for Respondent for the wages being paid them. There is a factual dispute about what transpired next. The General Counsel 's witnesses related that, while the employees then stood there, Tichy punched out their timecards. Respondent 's officers testified that the em- ployees walked toward the locker room and returned several minutes later when they punched their own cards out. I find it does not matter which account is accurate as Respondent should not be charged with their time while they were not at their workplace. In the event the Board were to hold that a credibility resolution thereon should have been made, I would credit Respondent's witnesses . In particular, I credit the account of Lennard Smith, 1 of the 10 employees involved in the discussion that day and whom Respondent called to corroborate the accounts of its officers. Smith testified that, after the meeting with Sierocinski and Tichy, the 10 employees got together, discussed whether to walk out or stay and, when the majority decided to walk out, the employees punched out their timecards and left. Smith's account that the 10 employees discussed among themselves what to do was corroborated in material part by the General Counsel's witness , Ortiz, who related that the employees were talking among themselves for 15 minutes shortly before they left the building on June 28. A dispute exists whether the 10 employees returned at 7:30 a.m., on the following day, as the General Counsel's first two witnesses testified or about noon, as Respondent contends. It appears that some of the 10 employees were in work clothes and others in leisure clothes. Concerning the latter, the evidence indicates that some employees, in the past, had changed into work clothes at Respondent's premises. There was a meeting of Respondent's officers with the 10 employees on June 29 after those employees arrived. Ramon Rodriguez and Ruben Ortiz entered the office. The other employees clustered at the entrance. The office area is very small, barely enough to accommodate Respondent's officials, Sierocinski and Tichy, who were inside then, along with a secretary. Counsel for Respondent asserts that a material credi- bility issue exists regarding certain events on June 29, in- cluding what was said, or rather not said, by Respond- ent's officers. In particular, he asserts that Respondent did not inform any of the employees that they no longer had jobs with Respondent or used any words to that effect. The General Counsel contends that there is no material variance in the respective accounts of the Gen- eral Counsel's witnesses and those of Respondent's wit- nesses. Rodriguez and Ortiz testified for the General Counsel that they and the other employees came to Respondent's plant about 7:30 a.m. on June 29. Respondent's witnesses state that Rodriguez and the others did not appear at its premises until about 11 a.m. that morning. I credit Re- spondent's witnesses. In that regard, I note that Robert Phillips, one of the General Counsel' s witnesses , did not corroborate Rodriguez' or Ortiz' version and that three employees called by Respondent, whom I credit, placed the time about noon. Ramon Rodriguez testified for the General Counsel that the employees met with Respondent's officials in the office and asked them "what happened with the thing about the raise" and that Tichy replied "No raise and no job because you quit." Rodriguez testified that he pro- tested that he did not quit because he had a mortgage to pay, a car to pay for, and a family and that he worked 10 years for Respondent. According to Rodriguez, Siero- cinski replied that he did not care how long Rodriguez worked and also said that Sierocinski stated that he "don't want [us] no more over here." At that point, ac- cording to Rodriguez, the 10 employees left Respond- ent's premises. Ortiz testified for the General Counsel as follows. When Rodriguez asked Sierocinski "what they do with the raise," Sierocinski replied, "[You] don't got no raise. [You] don't got no job." and that "[y]ou quit, you quit." Ortiz further related that Rodriguez protested that he could not "quit like that," that Sierocinski then handed to the employees their paychecks and that the employees all left. General Counsel's witness Robert Phillips testified he was standing by the doorway and heard Rodriguez say he did not quit and that Tichy said the employees "had no more jobs." Sierocinski testified for Respondent on direct examina- tion that the employees came to the office as a group and asked for more money and were informed that Re- spondent did not have it to give to them, and that the employees shrugged their shoulders, "dummied up . . . walked out . . . and never returned." On cross-examina- tion, Sierocinski recalled that he told the employees then that, "as you fellows didn't come to work this morning . . . as far as I'm concerned I say I thought you guys quit." Sierocinski related that Rodriguez then said that he did not quit but that he did not answer when Siero- MODERN IRON WORKS 1121 cinski asked him why he had not reported for work that morning. In a prehearing affidavit, Sierocinski stated that, when he was asked by Rodriguez and Ortiz on June 29 what he was going to do, he responded that, "as far as he was concerned, you quit." In that affidavit, Siero- cinski also stated that Tichy informed the employees that they would receive their final paychecks and their vaca- tion pay on the following Friday. Tichy testified for Respondent that when the employ- ees came to the office on June 29, he told them there was nothing to talk about, that they could work if they wanted to or if they wanted to quit and go somewhere else they could do that. Tichy further testified that Ro- driguez said, "I no quit, I no quit," and that the employ- ees then left. Several days later, Tichy wrote on the timecards of the employees that they each had quit be- cause they did not report for work when they left the shop on Thursday, June 28. On further cross- examina- tion, Tichy was asked about subsequent requests on behalf of these employees to be put back to work. Those questions were received not for the purpose of showing that Respondent may have rejected an unconditional offer of reinstatement because no such allegation was contained in the complaint. Rather, the questions were allowed insofar as the responses might throw light on the events of June 29. Tichy testified on cross-examination that on the Friday following June 29, he received a tele- phone call from an intermediary who asked him if any- thing could be done to take back half the workers. Tichy responded that he replied that he could not do anything, that they had quit. Tichy also related that, on another occasion about 2 weeks later, four of the employees in- volved in this case offered to return to work and that Tichy "said no." As noted earlier, Respondent also had called employee Lennard Smith to testify. He testified, respecting the June 29 meeting, that Tichy "was saying he will take none of us back, so I assume we was fired." Based on the totality of the evidence, I find that on June 29 Rodriguez and the other employees came to the office about noon to find out if Respondent would be amenable to giving them a bigger pay increase and that Respondent informed them then that insofar as it was concerned they had quit their jobs by not having worked and that they no longer were in Respondent's employ. uncontroverted evidence that the employees' spokesman on June 29, Rodriguez, expressly stated that he had not quit. Respondent has argued that, as none of the others repeated Rodriguez' statement, it must be concluded that they did not join in it and that it must be concluded that they did quit. That contention overlooks the fact that Rodriguez was acting as spokesman, the fact that Re- spondent has treated Rodriguez the same as the others and the fact that a good number of the other employees have little or no command of English. In another recent decision, Carriage Ford, 272 NLRB 318 (1984), the Board, in the majority opinion, held that six used-car salesmen had quit their employ and had not been unlawfully discharged. There, the Board observed that the "voluntary nature of their decision [i.e., their having quit] was demonstrated by the deliberate manner in which they departed, thanking [the employer' s presi- dent] and wishing him well." In the case before me, there is no evidence that the employees voluntarily relin- quished their employment with Respondent; the evidence is clear that they did not as their spokesman expressly disclaimed having quit. The Board's holding in Seminole Mfg., supra, controls and I thus find that 10 employees in the case before me were discharged because they en- gaged in a concerted protested work stoppage. As noted earlier, the Charging Party's representative, in her brief, has urged that Respondent should be com- pelled, as part of the remedy, to bargain collectively with "the Committee of Welders, Braziers, Grinders and Laborers." There is no reference in the complaint to such a committee, to the appropriateness of the bargain- ing unit for which the bargaining order remedy is sought by the Charging Party, or to majority status therein. The bargaining order request was alluded to, for the first time in this case, in the Charging Party's brief. As such, no issue thereon had been framed by the parties for consid- eration by me. As Respondent has had no adequate notice that such relief would be sought or the basis therefore, it would be improper for me now to expand the complaint to consider this request. See Laborers Local 135 (Bechtel Power Corp.), 271 NLRB 777 (1984). For that reason, I deny the Charging Party's request. CONCLUSIONS OF LAW C. Analysis The events of June 28 and 29 closely track the Board's findings in Seminole Mfg. Co., 272 NLRB 365 (1984). In that case, the Board held that the employer there, in vio- lation of Section 8(a)(1) of the Act, had discharged 13 pressers for having participated in a work stoppage in an effort to obtain an improvement in their piece-rate earn- ings; the Board there rejected the employer's contention that it lawfully concluded that the employees had quit. In Seminole, the pressers left their workplaces to show that they were serious about their demand ; they were told that if they "can't go back to work then that's it"; then they left the plant en masse and they were all marked by the employer as voluntary quits , despite their statement that they had not quit. In the case before me, a virtually identical fact pattern is presented including the 1. Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act and it will effectuate the purposes of the Act to assert jurisdiction herein. 2. Respondent, in violation of Section 8(a)(1) of the Act, has interfered with, restrained, and coerced employ- ees in the exercise of the rights guaranteed them by Sec- tion 7 of the Act by having, on June 29, 1984, dis- charged the employees named below, because they were engaged in a work stoppage protected by Section 7: Ramon Rodriguez Carlos Colon Ruben Ortiz Angel Rodriguez Robert Phillips Jose Roman Angel Rios Lennard Smith Rafael Rivera Luis F. Torres 1122 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 3. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. THE REMEDY It having been found that the Respondent has engaged in certain unfair labor pracitces , it is recommended that it cease and desist therefrom and take certain affirmative actions designed to effectuate the policies of the Act. It having been found that Respondent unlawfully dis- charged Ramon Rodriguez, Ruben Ortiz, Robert Phil- lips, Angel Rios, Rafael Rivera, Carlos Colon, Angel Ro- driguez, Jose Roman, Lennard Smith, and Luis F. Torres, and that it has since failed and refused to rein- state them to their former positions or equivalent posi- tions in violations of Section 8(a)(1) of the Act, it is rec- ommended that the Respondent be ordered to remedy such unlawful conduct. In accordance with Board policy, it is recommended that the Respondent be ordered to offer the above-named employees immediate and full reinstatement to their former positions or, if such positions no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights and privileges previously enjoyed, dismissing , if necessary, any employees hired on or since the date of their discharges to fill said positions and to make them whole for any loss of earnings they may have suffered by reason of the Respondent's unlaw- ful conduct, by payment to them of sums of money equal to the amount they would have earned from the date of their unlawful discharges to the date of an offer of rein- statement , less net earnings during such period , with in- terest thereon, to be computed on a quarterly basis in the manner established by the Board in F. W. Woolworth Co., 90 NLRB 289 (1950), and Florida Steel Corp., 231 NLRB 651 (1977). See also Isis Plumbing Co., 138 NLRB 716 (1962). On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed' ORDER The Respondent, Modem Iron Works, Inc., Trenton, New Jersey, its officers, agents , successors , and assigns, shall 1. Cease and desist from (a) Discouraging concerted activities of its employees in violation of Section 8(a)(1) of the Act by discharging its employees for engaging in a lawful work stoppage. (b) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Offer Ramon Rodriguez, Ruben Ortiz, Robert Phil- lips, Angel Rios, Rafael Rivera, Carlos Colon, Angel Ro- i If no exceptions are filed as provided by Sec 102 46 of the Board's Rules and Regulations, the findings, conclusions , and recommended Order shall, as provided in Sec 102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses driguez, Jose Roman, Lennard Smith, and Luis F. Torres immediate and full reinstatement to their former positions or, if such positions no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights and privileges previously enjoyed, dis- charging, if necessary, any employees hired to replace them, and make them whole for any loss of pay they may have suffered by reason of the Respondent's unlaw- ful discharge of them in accordance with the recommen- dations set forth in the remedy section of this decision. (b) Preserve and, on request , make available to the Board or its agents for examination and copying, all pay- roll records, social security payment records, timecards, personnel records and reports, and all other records nec- essary to analyze the amount of backpay due under the terms of this Order. (c) Remove from the files of Respondent any reference to the discharges of Ramon Rodriguez, Ruben Ortiz, Robert Phillips, Angel Rios, Rafael Rivera, Carlos Colon, Angel Rodrigez, Jose Roman, Lennard Smith, and Luis F. Torres, and notify them in writing that this has been done and that evidence of those unlawful activi- ties will not be used as a basis for future discipline against them. (d) Post at its facility in Trenton, New Jersey, copies of the attached notice marked "Appendix."2 Copies of the notice, on forms provided by the Regional Director for Region 22, after being signed by the Respondent's authorized representative, shall be posted by the Re- spondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respond- ent to ensure that the notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. 2 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading "Posted by Order of the Nation- al Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. WE WILL NOT discourage concerted activities of our employees in violation of Section 8(a)(1) of the National Labor Relations Act, by discharging them for engaging in a lawful work stoppage. MODERN IRON WORKS WE WILL NOT in any like or related manner interfere with , restrain , or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. WE WILL offer Ramon Rodriguez , Ruben Ortiz, Robert Phillips, Angel Rios, Rafael Rivera, Carlos Colon, Angel Rodriguez, Jose Roman , Lennard Smith, and Luis F. Torres immediate and full reinstatement to their former jobs, discharging , if necessary, any employ- ees hired to replace them ; WE WILL restore their seniori- ty and other rights and privileges previously enjoyed; 1123 and WE WILL pay them backpay they lost because we discriminatorily discharged them, with interest. WE WILL remove from our files any reference to the discharges of the above-named employees and WE WILL notify them in writing that this has been done and that evidence of these unlawful actions will not be used as a basis for future discipline against them. MODERN IRON WORKS, INC.