Detroit Tubing Mill

National Labor Relations Board - Board Decisions

Feb 24, 1984

268 N.L.R.B. 1104 (N.L.R.B. 1984)

DECISIONS OF NATIONAL LABOR RELATIONS
Detroit Tubing Mill, Inc. and Local 299, Interna-
tional Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America. Case
7-CA-21004
24 February 1984
DECISION AND ORDER
BY MEMBERS ZIMMERMAN, HUNTER, AND
DENNIS
On 23 September 1983 Administrative Law
Judge Stephen J. Gross issued the attached deci-
sion. The Respondent filed exceptions and a sup-
porting 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 and brief and has
decided to affirm the judge's rulings, findings, and
conclusions and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Detroit
Tubing Mill, Inc., Detroit, Michigan, its officers,
agents, successors, and assigns, shall take the action
set forth in the Order, except that the attached
notice is substituted for that of the administrative
law judge.
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 question employees about union
activity.
WE WILL NOT discourage membership in, or
lawful strike activity on behalf of, Teamsters Local
299, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of Amer-
ica, or any other labor organization, by unlawfully
refusing to recall striking employees to existing va-
cancies after they have made unconditional offers
to return to work.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
268 NLRB No. 170
WE WILL reinstate those employees who en-
gaged in the 22 and 26 July 1982 strike against us
who have not been recalled because we filled their
positions with new employees hired on 27 July
1982.
WE WILL reimburse, with interest, those employ-
ees who engaged in the 22 and 26 July 1982 strike
against us who suffered any losses because we
filled their positions with new employees hired on
27 July 1982.
DETROIT TUBING MILL, INC.
DECISION
STEPHEN J. GROSS, Administrative Law Judge: The
complaint alleges that the Respondent Detroit Tubing
Mill (the Company): (1) unlawfully failed to recall em-
ployees who had been on strike and who had made un-
conditional offers to return; and (2) interrogated and
threatened employees concerning protected concerted
activities. The Company, while admitting the complaint's
jurisdictional allegations, denies that it violated the Na-
tional Labor Relations Act in any respect.
The Company's Replacement of Striking
Employees
On July 22, 1982, the Company's employees engaged
in an economic strike for the purpose of compelling the
Company to recognize Teamsters Local 299 as their ex-
clusive collective-bargaining representative. On July 26
the striking employees made a written unconditional
offer to return to work.
On July 27-one day after the strikers' unconditional
offer to return-Douglas Crockett, Calvin Crum, and
Dale Warner applied to Detroit Tubing for work. None
of the three had previously been employed by the Com-
pany, and the Company had not made any job commit-
ments to them. The Company offered jobs to the three
that same day, July 27. Crockett, Crum, and Warner
began working at Detroit Tubing on August 2, perform-
ing work previously done by the striking employees. The
Company did not recall three strikers because Crockett,
Crum, and Warner occupied the jobs the strikers other-
wise would have returned to.
Since the Company filled job vacancies that existed at
the time of the strikers' offer to return by hiring new em-
ployees rather than by recalling strikers, the Company
violated Section 8(a)(3) and (1) of the National Labor
Relations Act. NLRB v. Fleetwood Trailer Co., 389 U.S.
375 (1967).
The Interrogation of Employees
On July 19, 1982, employee Kenneth Eberle was ap-
proached by his immediate supervisor, Plant Manager
Edwin Sipowicz. Sipowicz, who earlier that day had
x The Company has admitted that Sipowicz is a supervisor within the
meaning of Sec. 2(11) of the Act.
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DETROIT TUBING MILL
been informed by another employee that the Company's
employees were attempting to organize, asked Eberle if
he had been approached about joining a union. Eberle
said that he had been. Sipowicz then asked how many
other employees had been approached and if anyone had
been harassed into signing a card. Finally, Sipowicz
stated that he was concerned with employee discontent,
and asked Eberle if Sipowicz had done "something
wrong" or if Eberle had any "problems or concerns"
that Sipowicz did not know about and might correct. 2
Sipowicz' questioning of Eberle about union activity
amounted to coercive interrogation and thus violated
Section 8 (a)(1) of the Act. As of July 19 organizing ac-
tivity had only recently begun, and no union had made
any claim of majority status. The questioning thus had
no legitimate purpose. Moreover such inquiries have
long been held to interfere with the employees' free exer-
cise of their Section 7 rights. See Bin-Dicator Co., 143
NLRB 964, 969-970, 980 (1963), enfd. in pertinent part
356 F.2d 210 (6th Cir. 1966).3
THE REMEDY
In respect to those employees who went out on strike
and whom the Company failed to recall or delayed re-
calling by reason of its hiring of Crockett, Crum, and
Warner, the Company will be required to: (1) make all
such employees whole for any loss of earnings they may
have suffered by reason of the Company's discrimination
against them; and (2) reinstate all such employees not yet
recalled to their former positions or, if those positions no
longer exist, to substantially equivalent positions, without
prejudice to their seniority or other rights and privileges.
Backpay shall be calculated in accordance with F WV
Woolworth Co., 90 NLRB 289 (1950), with interest as
computed in Florida Steel Corp., 231 NLRB 651 (1977).
The Company will also be required to cease and desist
from its unlawful acts, to notify its employees of the
Board's order, and to take various other actions relating
to the above requirements.
ORDER4
The Respondent, Detroit Tubing Mill, Inc., Detroit,
Michigan, its officers, agents, successors, and assigns,
shall
2 The foregoing represents a composite of the testimony of Eberle and
Sipowicz. Eberle testified that Sipowicz asked him if he had signed an
authorization card. But I do not credit that testimony. Employee George
Chestnut also testified about interrogation by Sipowicz, but I do not
credit any of Chestnut's testimony in that regard.
3 The complaint does not allege unlawful solicitation of grievances,
and I accordingly do not pass on whether Sipowicz' questions about
whether he had done "something wrong" and about whether Eberle had
any "problems or concerns" violated the Act.
4 If no exceptions are filed as provided by Sec. 102.46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
1. Cease and desist from
(a) Interrogating its employees concerning union ac-
tivities.
(b) Discouraging membership in or lawful strike activi-
ty on behalf of Local 299, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of
America, or any other labor organization, by unlawfully
refusing to recall striking employees to existing vacancies
after they have made unconditional offers to return to
work.
(c) In any like or related manner interfering with, re-
straining, or coercing its employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action which is nec-
essary to effectuate the policies of the Act.
(a) Reinstate immediately to their former positions or,
if those positions no longer exist, to substantially equiva-
lent positions, without prejudice to their seniority or
other rights and privileges, those employees who partici-
pated in the strike against the Company in July 1982 and
who have not been recalled because of the Company's
hiring of replacements on July 27, 1982.
(b) Make whole any employee who participated in the
strike against the Company in July 1982 and who suf-
fered any losses because of the Company's hiring of re-
placements on July 27 in the manner set forth in the sec-
tion of this Decision entitled "The Remedy."
(c) Post at the Respondent's plant copies of the at-
tached notice marked "Appendix." 5 Copies of the notice,
on forms provided by the Regional Director for Region
7, after being signed by the Respondent's authorized rep-
resentative, shall be posted by the Respondent immedi-
ately upon receipt and maintained for 60 consecutive
days in conspicuous places including all places where no-
tices to employees are customarily posted. Reasonable
steps shall be taken to ensure that the notices are not al-
tered, defaced, or covered by any other material.
(d) 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 amounts due employees under the
terms of this Order.
(e) Notify the Regional Director for Region 7 in writ-
ing within 20 days from the date of this Order what
steps the Respondent has taken to comply.
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.
' 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 Na-
tional Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board."
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