Florida Steel Corp.

National Labor Relations Board - Board Decisions

Nov 20, 1975

221 N.L.R.B. 554 (N.L.R.B. 1975)

554 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Florida Steel Corporation and United Steelworkers of
America, AFL-CIO. Cases 11-CA-5943 and 11-
CA-5949
November 20, 1975
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
PENELLO
On August 11, 1975 , Administrative Law Judge
James V . Constantine issued the attached Decision in
this proceeding. Thereafter , 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 as
amplified herein.
The Charging Party, United Steelworkers of
America, AFL-CIO, and Respondent, Florida Steel
Corporation, introduced a stipulation' at the hearing
in which Respondent admitted that it had refused to
implement its new "TEAM" wage review policy 2
and grant wage increases thereunder and to grant
certain fringe benefit increases 3 to bargaining unit
employees at its Charlotte , North Carolina, plant.
Respondent refused to grant the increases at issue
because of its policy that it will not grant an increase
in wages or change working conditions of employees
where there is a union petition pending or where the
employees have selected a union as their collective-
bargaining agent.4
The complaint alleged that Respondent , by refus-
ing to implement its subsequent TEAM review policy
and grant wage increases thereunder and by with-
holding certain fringe benefit increases from the unit
employees at Charlotte , violated Section 8(a)(1) and
i Joint Exh. 1.
2 Prior to the announcement of the new TEAM review policy on August
15, 1974, Respondent's policy was to have its wage survey administrator
take an annual survey in the area where each of its I 1 facilities is located in
order to determine the economic conditions at each area . The survey
consisted , inter alit; of a review of the annual rate of inflation in each area
as well as a comparison of the wages paid by the other employers in those
areas. Based on this survey, Respondent granted different general wage
increases, at different times, at its various plants . The amount of the
increase depended on what Respondent determined was necessary in order
to remain competitive at each location
Under the TEAM policy, wages were reviewed every 3 months, using the
same factors previously used annually and increases were given quarterly.
3 The stipulation , as amended at the hearing , stated that Respondent had
refused to grant the following benefit increases to the bargaining unit
employees at Charlotte: Improvements in Respondent's (a) call-in pay
221 NLRB No. 112
(3). The Administrative Law Judge, finding that the
parties had stipulated at the hearing that the Board's
decision in JD-743-745 when issued would be res
judicata in the instant case, did not decide the issues
raised by the aforementioned portion of the com-
plaint. The General Counsel excepts to the finding
that a stipulation to that effect was reached and to
the finding that no evidence was received on those
issues . Whether or not the stipulation with respect to
the binding effect of another case was agreed upon,
the record is clear that sufficient documentary and
otherwise stipulated evidence exists for the Board to
decide the issues left undecided by the Administra-
tive Law Judge.
Admittedly, Respondent refused to implement its
new quarterly review policy and grant wage increases
thereunder and withheld certain fringe benefit
increases from the Charlotte employees because they
had selected the Union as their bargaining represent-
ative. In Florida Steel Corporation, 220 NLRB No.
169 (1975), a stipulated case involving a production
and maintenance unit at Respondent's Indiantown,
Florida, facility, where the same company policy was
at issue, the Board found that Respondent violated
Section 8(a)(1) and (3) by withholding quarterly
wage reviews, wage raises thereunder, and, benefit
increases from unit employees because of the Union.
Without further explication, we find, for the reasons
set forth, in that decision, which refers to the earlier
Charlotte decision reported at 220 NLRB No. 57,
that Respondent has violated Section 8(a)(1) and (3)
by refusing to institute its new quarterly wage review
policy and grant wage increases , and by withholding
fringe benefit increases from the Charlotte unit
employees.
On the basis of the foregoing findings of fact and
on the entire record in this case, we make the
following additional conclusion of law as to those
issues left undecided by the Administrative Law
Judge. Insert the following as Conclusion of Law 5
and renumber present Conclusion of Law 5 as 6,
"5. By refusing to institute its new quarterly wage
review policy and to grant increases thereunder, and
allowance , (b) tuition refund plan, (c) retirement plan, (d) salaried
continuance insurance plan , (e) life and medical insurance plan, (f)
termination policy, and (g) emergency leave program.
4 On August 30, 1973, after wage increases and benefits were withheld,
the P & M employees at Charlotte selected the Union as their collective-
bargaining representative.
5 This case, Florida Steel Corporation, 220 NLRB No. 57 (1975), involved
the same parties and essentially the same issues . There, the Board found
that Respondent had violated Sec 8 (a)(1) and (3) by withholding wage and
benefit increases from its Charlotte employees because of the Union.
The factual stipulation herein also indicates that the Union on November
7, 1974, during bargaining sessions with Respondent for a contract covering
the Charlotte employees, requested that Respondent grant the wage
increases granted under its new wage review policy and the fringe benefit
increases granted corporatewide.
FLORIDA STEEL CORPORATION
by withholding certain fringe benefit increases from
unit employees at, its Charlotte plant, Respondent
has engaged in and is engaging in unfair labor
practices in violation of Section 8(a)(1) and (3) of the
Act."
THE REMEDY
Having found that the Respondent violated Sec-
tion 8(a)(1) and (3) by refusing to institute its new
quarterly wage review policy and grant wage increas-
es thereunder and by withholding fringe benefit
increases from Charlotte employees, we shall order
Respondent to make whole all those employees in
the appropriate unit at - Charlotte so deprived,
retroactive to the date the fringe benefits should have
been granted to the affected Charlotte employees
with interest thereon at 6 percent per annum as set
forth in Isis Plumbing & Heating Co., 138 NLRB 716
(1962).
With respect to the quarterly review policy and the
wage increases which would have been granted
thereunder, we shall order that, if Respondent gave
across-the-board wage increases to Charlotte em-
ployees not in the bargaining unit, it grant the same
increases to unit employees, retroactive to the date
said wage increases were granted to nonunit Char-
lotte employees. However, if the wage increases to
nonunit Charlotte employees were granted on some
other basis, we shall not set a specific hourly amount
to be granted the unit employees. In that event, if
Respondent and the Union ''cannot agree on the
amount of the general increases , it shall be left to the
compliance stage of these proceedings to determine
such amounts, or , if agreement cannot there be
reached, to a; backpay proceeding. The amounts
found due shall be retroactive to the dates the
nonunit Charlotte employees' received their wage
increases and interest thereon shall be fixed at 6
percent per annum from the appropriate retroactive
dates.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent,
Florida Steel Corporation,. Croft, North Carolina, its
officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Giving disciplinary warnings or suspensions to
its employees for engaging in valid strikes-or other
concerted activities protected by Section 8(a)(1) of
the Act.
(b) Refusing to institute its new quarterly wage
review policy and to grant wage increases thereunder
to bargaining unit employees at the Charlotte plant,
555
Croft, North Carolina, and withholding increases
pursuant to such review and the fringe benefits listed
in footnote 3 of this Decision.
(c) In any like or related manner interfering with,
restraining, or coercing its employees in the exercise
of rights guaranteed to them by Section 7 of the Act.
2. Take the following affirmative action designed
to effectuate the policies of the Act:
(a) Cancel the seven written disciplinary warnings
and one written suspension given to employees for
not working on Sunday, July 7, 1974.
(b) Expunge from its records the foregoing seven
written warnings and one written suspension.
(c) Make whole James Reid for any loss of pay he
may have suffered by reason of Respondent's
suspending him for 3 days, with interest at the rate of
6 percent per annum.
(d) Grant to all employees in the appropriate unit
at Charlotte all the fringe benefit increases granted to
the employees of Respondent corporatewide, retro-
active to the time such grants were originally made.
(e) Make whole all those employees in the
appropriate unit at Charlotte for any loss of pay they
may have suffered by reason of the discrimination
practiced against them by refusing to implement the
new quarterly wage review policy and grant wage
increases as provided in the Remedy section of this
Decision.
(f) 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 to analyze the amount of
backpay due to James Reid and other bargaining
unit employees at Charlotte under the terms of this
Order.
(g) Post at its premises at Croft, North Carolina,
copies of the attached notice marked "Appendix." 6
Copies of said notice, on forms provided by the
Regional Director for Region 11, after being duly
signed by Respondent's representative, shall be
posted by it immediately upon receipt thereof, and
be maintained by it for 60 consecutive days there-
after, 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.
6 In the event that 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 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 "
556 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
We hereby notify our employees that:
WE WILL NOT discipline our employees by
warnings , suspensions , or otherwise for engaging
in lawful strikes or other concerted activities
protected by Section 7 of the National Labor
Relations Act.
WE WILL NOT refuse to institute our new
quarterly wage review policy and to grant wage
increases thereunder or withhold fringe benefit
increases from unit employees at our Charlotte
plant, Croft, North Carolina, because the Char-
lotte unit employees voted for the Union, United
Steelworkers of America, AFL-CIO.
WE WILL expunge from our records the written
disciplinary reports given on July 8, 1974, to the
following employees for engaging in a lawful
strike on July 7, 1974:
Willie Daniels Willis Alexander
Crayton Hunt Mike Baier
Danny Sigmon John Robinson
Levon Caldwell James Reid
WE WILL compensate James Reid for any loss
of pay he may have suffered by reason of our
suspending him for 3 days because he participat-
ed in a lawful strike, with interest thereon at the
rate of 6 percent per annum.
WE WILL make whole all the employees in the
Charlotte plant appropriate unit for the wage
increases and fringe benefit increases which we
withheld because of the Union, with interest
thereon at the rate of 6 percent per annum.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employees
in the exercise of rights guaranteed to them by
Section 7 of the Act.
FLORIDA STEEL
CORPORATION
DECISION
STATEMENT OF THE CASE
JAMES V. CONSTANTINE , Administrative Law Judge: This
is a consolidated unfair labor practice case litigated
pursuant to the provisions of Section 10(b) of the National
Labor Relations Act, as amended , herein called the Act. 29
U.S.C. 160(b). In Case 11 -CA-5943 a charge was filed on
November 22 and amended on December 9, 1974, by
United Steelworkers of America, AFL-CIO, herein called
the Union, against Florida Steel Corporation, herein called
Respondent. Another charge filed by the Union (Case 11-
CA-5946) against Respondent on November 22, 1974.
On January 20, 1975, said charges were consolidated for
the purpose of a hearing and a consolidated complaint was
issued on the same day, by the Regional Director for
Region 11. Said complaint was amended on April 9, 1975.
Said amended complaint alleged violations of Section
8(a)(1) and (3) of the Act by Respondent. The latter has
answered admitting some facts in said complaint, as
amended, but denying that any unfair labor practices were
committed. Said complaint was further amended at the
hearing. Respondent denied the facts set out in said latter
amendment.
Pursuant to due notice, this consolidated case was heard
before me at Gastonia„ North Carolina, on April 23, 1975.
All parties were represented at and participated in the
hearing, and had full opportunity to adduce evidence,
examine and cross-examine witnesses , file briefs, and
present oral argument. Briefs have been received from the
General Counsel and Respondent.
Upon the entire record in this consolidated case, and
from my observation of the witnesses, I make the
following:
FINDINGS OF FACT
I. AS TO JURISDICTION
Respondent, a Florida corporation, has a plant in Croft,
North Carolina, where it manufactures steel and reinforced
rods. During the past year, a representative period,
Respondent received goods and raw materials valued in
excess of $50,000 directly from, and during the same period
sold and shipped products valued in excess of $50,000
directly to, points outside the State of North Carolina. I
find that Respondent is an Employer within the meaning
of Section 2(2) and is engaged in commerce within the
purview of Section 2(6) and (7), of the Act, and that it will
effectuate the purposes of the Act to assert jurisdiction
over Respondent in this proceeding.
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of
Section 2(5) of the Act.
IIl. THE UNFAIR LABOR PRACTICES
At the hearing it was stipulated that Administrative Law
Judge Wilson's decision involving Respondent in case
numbered JD-743-74, now pending before the Board on
exceptions, will be binding on the parties in the instant case
with respect to paragraphs 12, 13, 14, 15, and 16 of the
complaint, as amended, after said exceptions have been
disposed of. Hence no evidence was received on the issues
raised in said paragraphs at the hearing. As a result of said
stipulation the Board's decision in Administrative Law
Judge Wilson's case will automatically apply to the issues
in said paragraphs as resjudicata in the instant case.
FLORIDA STEEL CORPORATION
A. General Counsel's Evidence
James W. Reid , a utility man in Respondent 's roller mill,
testified substantially as follows for the General Counsel.
On July 6, 1974, he "took part in a petition to
[Respondent ] about Sunday work ." He and other employ-
ees had been scheduled to work 6 days that week; but
when said schedule was changed on Friday, July 5, to work
7 days, including Sunday, the employees involved, eight in
all, "wrote up this petition , and we all signed it." Said
petition was then given to John Carey, their foreman and
supervisor . The eight who signed are those mentioned in
paragraph 8 of the amended complaint (i.e., G.C. Exh.
1(p)).
Carey brought said petition to Superintendent Don
Shumake's office. It is General Counsel 's Exhibit 23, and
states "We will work Sunday providing we get double time,
or we will- not work." Shortly thereafter, Reid asked Carey
whether - said employees would receive an answer to said
petition , but the latter replied that he did not know.
However, Reid never received an answer and, consequent-
ly, did not work on Sunday, July 7. Nor did any of the
other seven employees signing said petition work on said
July 7.
In the late afternoon of Monday, July 8, Personnel
Manager Joe Menendez spoke to the foregoing employees
as a group . Carey was also present on this occasion. When
Carey asked Reid for an "opinion about not working that
Sunday," Reid replied that he "did not think it was fair for
us to work that Sunday because it wasn't a scheduled work
day." And Menendez "explained the company rules about
work . . . and we would have to work when scheduled."
Thereupon Reid stated that Sunday "was not a scheduled
work day, that most people who worked people on
Sundays paid double time for working on Sunday."
On July 8 the other seven employees who did not work
on Sunday were given disciplinary warnings for such
conduct. (See G .C. Exhs. 25-31.) But on said July 8 Reid
was given a written notice that he was suspended for 3 days
without pay beginning on July 9 for not working on said
Sunday. (See G.C. Exh. 24.)
According to Reid, employees "were selected for Sunday
work [by ] ... a schedule posted every week as to who was
to work and who wasn 't to work : In the past ... they
[Respondent] would ask for volunteers . . . and if
employees didn't want to work, they didn't have to. At this
time [i .e., July 1974] it was more like a demand . It was who
they [Respondent] wanted to." Prior to July 7, 1974, Reid's
shift had worked "4, or 5 or 6 Sundays." There had been
no refusal to work on any Sunday ' prior to the petition in
evidence as General Counsel 's Exhibit 23, and no employ-
ee in Reid's crew has been asked to work on any Sunday
since said petition was executed.
Reid was elected on April 24, 1974, as an alternate on the
Union's bargaining committee , and attended several
bargaining sessions . He wore the Union's pocket holders,
buttons, and the Union's stickers . But this occurred only
prior to the "election." He also had appeared in two NLRB
cases involving Respondent, i.e., 214 NLRB No. 59 and
Case 1l -CA--5776.
On cross, Reid asserted that the "weekend schedule"
containing the names of those who were to work on
557
Saturday was usually posted on Thursday of each week.
However, the schedule posted on Wednesday, July 3, 1974,
containing the names, including Reid's, of those who were
to work on the following Saturday, July 6, was changed on
Friday, July 5. (The July 3 schedule came out on that day
because the men did not work on July 4, a holiday.) Such
change notified the men in Reid 's crew that they were to
work on Sunday , July 7. (See Resp . Exh. 1.)
Also on cross Reid stated he had worked on "quite a
few" Sundays previously to July 7, 1974. On these
occasions Respondent informed him "in the same manner
as shown on Respondent's Exhibit 1"; i.e., by posting the
names of those who were to work on Sunday.
Another witness for the General Counsel ` was Willie
Frank Daniels . An adequate condensation of his testimony
is set forth at this point. He formerly was employed as a
peel bar operator in Respondent's roller mill under
Supervisor John Carey. During 1974 , but before July, he
was requested to work on Sunday, but he refused.
Nevertheless he received no warning or reprimand for such
refusal. Although he was one of those who, like Reid, was
directed to work on July 7, 1974, a Sunday , he did not
work on that day. The next day, July 8, Supervisor Carey
and Personnel Manager Joe Menendez asked Daniels why
Daniels failed to report to work on Sunday, July 7. Daniels
answered that he "wasn't working no more on ' Sunday
without double time." Mendendez then said that Carey did
not desire to work on Sunday any more than Daniels did
but "we was scheduled to work on account of the hot bed
was behind." Daniels received a written "warning" for
such failure to work on Sunday (see G .C. Exh . 28) but he
was not otherwise disciplined.
On cross, Daniels claimed that Respondent ; "back in
... July of '74" operated three shifts and he had "been
asked to work over on another shift ." Although he
sometimes refused to "work over" on another shift
"nothing happened"; i.e., he was not reprimanded or
disciplined therefor . Also, on cross, he stated that he had in
1973 been given a written warning for "unexcused
absence" similar , to the one (G .C. Exh. 28) he received for
not working on July 7, 1974.
Levon Caldwell also gave testimony for the General
Counsel. A synopsis thereof follows. On July 6 he
presented General Counsel 's Exhibit 23, the petition for
double time for working on Sunday , July 7, 1974, to
Supervisor John Carey. No answer was ever received to
said petition.
B. Respondent's Defense
Respondent's production supervisor in its rolling mill,
John Carey , testified on its behalf. His testimony may be
adequately abridged as follows. In the early afternoon of
Saturday, July 6, 1974, employee Levon Caldwell handed
him the petition relating to double time for working the
next day. (See G.C. Exh . 23.) In addition to those signing
said petition employees Dave Frye and Carl Cochran also
were scheduled to come in on Sunday July 7 . The notice
requiring employees to work on said July 7, i.e., Respon-
dent's Exhibit 1, was posted on Wednesday , July 3,
because all "production schedules are posted on Wednes-
days." " No other notice was posted that week.
558 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On Sunday, July 7, Carey arrived at work about 7:30
a.m. So did employees Frye and Cochran, but none of
those signing the petition (G.C. Exh. 23) showed up. The
work scheduled for said Sunday was completed by the
noon to 8 p.m. crew. On Monday, July 8, Carey asked
employee Crayton Hunt in the presence of Menendez why
Hunt failed to work the day before and "explained to
[Hunt] the seriousness of not showing up." Hunt replied
"too much Sunday work" and he "wanted double time on
Sunday." Then Carey used substantially the same language
in talking to the other employees who failed to work on
that Sunday. Their names appear on General Counsel's
Exhibit 23. Each gave the same reply as Hunt.
Then Carey and Menendez "got out personnel records,
and went through attendance records to decide the extent
of the disciplinary action." Seven were given written
warning notices (see G.C. Exhs. 25-31) because they had
no offense recorded against them within the previous year.
But Reid, the eighth one, was suspended for 3 days as he
had been given a written warning in December 1973, for
excessive absenteeism, and "a little over a couple of
months later, I [Carey] guess, the same problem arose
again ." In handing Reid a written notice of being
suspended for 3 days Carey told Reid "the seriousness of
his [Reid 's] not reporting and the hardship it puts on the
rest of the guys in the crew" and orally warned Reid that
Carey "didn't want it to happen again."
Carey further stated on direct that the seven in General
Counsel's Exhibit, 23 who were given warnings (see G.C.
Exhs. 25-31 for such warnings) had also received warnings
before July 8, 1974. He claimed "an unexcused absence
will get a man a written warning," but if it is repeated then
a suspension occurs. However, if the previous warning was
not for absenteeism then the first unexcused absenteeism
only merits. a warning and not a suspension.
Carey stated that the other seven employees, but not
Reid, were given warnings only because "they had clean
attendance records" even though they had broken other
rules not pertaining to absenteeism. It is Respondent's
policy, according to him, not to "commingle ... an
infraction of one rule and combine it with an infraction of
another rule, and get a suspension." Carey admitted he had
"general knowledge , that ... Mr. Reid [was] on [the
Union's] negotiating committee."
During Carey's cross he admitted that documentary
evidence which he kept disclosed that Reid "was trying to
improve himself." (See G.C. Exhs. 32 and 33.)
C. Concluding Findings and Discussion
It is my opinion that the eight employees who signed
General Counsel's Exhibit 23 to the effect that they would
not work on Sunday, July 7, 1974,, unless they "got double
time," ( 1) were engaged in concerted activity protected by
the Act, (2) that the seven who received written warnings
for not working on said Sunday were unlawfully disci-
plined in violation of Section 8(a)(1) of the Act, and (3)
that the 3-day suspension imposed on Reid for failing to
work on said Sunday also contravened said Section 8(a)(1,).
These ultimate findings are based on the entire record and
the subsidiary findings which ensue and which I hereby
find as facts.
Initially I find that the request to be paid double time on
Sunday, July 7, constitutes protected concerted activity. In
this connection I find that the eight employees involved
were engaged only in a single strike which lasted only one
day and not in an intermittent or recurrent strike. Further,
I find that said employees were never warned to cease
refusing to work on said Sunday. And I further find that
said employees were not attempting to impose their own
working schedule for that adopted by their Employer, for I
find that they did' not indicate that they intended to renew
said demand if they were again asked to work on a Sunday
in the future.
Notwithstanding that the employees resumed work on
Monday, July 8, 1974, the Employer did not seek to
ascertain what their intentions for the future were, or
instruct them to remain on strike or else return to work
under the conditions which the Employer insisted should
be observed. First National Bank of Omaha, 171 NLRB
1145, 1151 (1968), enfd. 413 F.2d 921 (C.A. 8, 1969),
supports this conclusion. I do not consider Mt. Clemens
Pottery Company, 46 NLRB 714,715-716 (1943), to require
a contrary result.
"Employees have the same right to engage in concerted
activity to bring about a change in overtime policy as they
do to bring about a change in wages or other working
conditions. They have as much right to strike on this issue
as any other . . . The test in each case is whether the
employees have assumed,the status of strikers. They cannot
continue to work the regular hours of employment and
refuse to work overtime." First National Bank of Omaha v.
N.L.R.B., supra at 925.
That the decision not to work overtime unless paid
double time was concerted seems well established by
Leprino Cheese Co., 170 NLRB 601, 605 (1968). And "a
single concerted work stoppage, whether of predetermined
duration, as here, or spontaneous,' to protest or secure
terms, and conditions of employment, is not a `partial'
strike . . . and is within the protection of Section 7" of the
Act. Id, p. 606. John S. Swift Company, Inc., 124 NLRB,
394, 396 (1959), enfd. 277 F.2d 641 (C.A. 7, 1960), is not
inconsistent with the foregoing finding that the strike in the
principal case was not "an intermittent or recurring strike"
as the Board noted in Polytech, Incorporated, 195 NLRB
695, 696 (1972).
On, this issue I find that said eight striking employees, (a)
did not indicate they would strike in the future in case they
were again asked to work on a Sunday (cf. Polytech, supra,
at 696); (b) that they at no time in the past engaged in any
work stoppages when asked to work on a Sunday; and (c)
"their decision to walk out was made for that single day
and included no discussion of future plans." Polytechr supra
at 696. See N.L.R.B. v. Washington Aluminum Company,
Inc., 370 U.S. 9, 12-13 (1962). Consequently, I find that the
record warrants "the existence of a presumption that a
single concerted refusal to work overtime is a protected
strike activity; and that such presumption should be
deemed rebutted when and only when the evidence
demonstrates that the stoppage is part of a plan of
intermittent action which is inconsistent with a genuine
strike . . ." Polytech, supra at 696. And I find that the
evidence in this case does not demonstrate any action
FLORIDA STEEL CORPORATION
inconsistent with a genuine strike for one day, i.e., Sunday,
July 7 Cf. A. Lasaponara & Sons, Inc, 218 NLRB No. 168
(1975)
Also, even if the action of eight employees in not
working on Sunday, July 7, 1974, amounted to disobedi-
ence, the question still remains whether such conduct was
protected. In ascertaining whether there was merit in the
action of said employees (Union Boiler Company, 213
NLRB 818 (1974)), "even though such activity embraces
the disobedience of an order of management " Bob Henry
Dodge, Inc., 203 NLRB 78 (1973). I find that the refusal to
work on the Sunday was a valid one day strike and
therefore attained the status of protected concerted
activity. Cf. Schultz, Snyder, & Steel Lumber Company, 198
NLRB 431 (1972). United States Metals Refining Company,
218 NLRB No. 133 (1975), suggests, but does not decide, a
similar conclusion.
In view of the above findings, I am of the opinion that
Reid's rights are adequately protected. Consequently, I
believe that it is not necessary to discuss separately the fact
that the discipline imposed upon him was more severe than
that of the other seven who refused to work on Sunday,
July 7, 1974. This is because I have found that the strike on
said July 7 was lawful. It follows that any penalty inflicted,
regardless of its nature, infringes Section 8(a)(1) of the Act
Only the remedy recommended to restore Reid's rights will
differ from that recommended for the other seven
employees who struck on said July 7.
At the hearing it was stipulated that the remainder of the
instant case was to be controlled by the Board's decision in
two other cases now before it. Said decision has not yet
been rendered. Rather than delay the instant case further it
seems advisable to issue the decision in the instant case.
Any party may thereafter request the Board, when it
decides the instant case, to have its decision based not only
on the record herein, but also on its decisions in the two
cases currently under consideration by it on exceptions.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section III,
above, found to constitute unfair labor practices, occurring
in connection with its operations described in section I,
above, have a close, intimate, and substantial relation to
trade, traffic, and commerce among the several States and
tend to lead to labor disputes burdening and obstructing
commerce and the free flow of commerce.
V. THE REMEDY
559
As Respondent has been found to have engaged in
certain unfair labor practices I shall recommend that it be
ordered to cease and desist therefrom and that it take
specific action, as set forth below, designed to effectuate
the policies of the Act.
In view of the finding that Respondent unlawfully
suspended James Reid for 3 days, it will be recommended
that he be compensated for any loss of earnings he
suffered, with interest thereon at 6 percent per annum, by
reason of his being suspended. It will also be recommended
that Respondent preserve and, upon request, make
available to the Board or its agents all pertinent records
and data necessary to ascertain whatever backpay may be
due. And it will further be recommended that Respondent
be ordered to expunge from its personnel records the
disciplinary records in evidence as General Counsel's
Exhibits 24 to 31 Finally, it will be recommended that
Respondent post appropriate notices.
The foregoing violations do not reflect a general
disregard or hostility to the Act, and I so find. Accordingly,
I find that a broad remedial order against Respondent is
not warranted Rather, I find that it will effectuate the
policies of the Act to enjoin Respondent from repeating the
transgressions found above to constitute unfair labor
practices and similar or like conduct.
Upon the foregoing findings of fact and the entire record
in this case, I make the following:
CONCLUSIONS OF LAW
1. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
2. Respondent is an employer within the meaning of
Section 2(2), and is engaged in commerce as defined in
Section 2(6) and (7), of the Act.
3. By giving written disciplinary warnings to the
following employees for engaging in a concerted activity
protected by the Act, Respondent had engaged in unfair
labor practices condemned by Section 8(a)(1) of the Act.
Willie Daniels, Crayton Hunt, Danny Sigmon, Mike Baier,
Levon Caldwell, Willis Alexander, and John Robinson.
4. By giving James Reid a 3-day suspension for
participating in a concerted activity protected by the Act
Respondent had committed an unfair labor practice
forbidden by Section 8(a)(1) of the Act.
5. The unfair labor practices recounted above affect
commerce within the purview of Section 2(6) and (7) of the
Act.
[Recommended Order omitted from publication.]