Interlake, Inc.

National Labor Relations Board - Board Decisions

Jun 30, 1975

218 N.L.R.B. 1043 (N.L.R.B. 1975)

INTERLAKE, INC. 1043
Interlakke, Inc. and Dennis L. Jensen . Case 13-CA-
13399
June 30, 1975
DECISION AND ORDER
]BY CHAIRMAN MURPHY AND MEMBERS
JENKINS AND KENNEDY
On January 28, 1975, Administrative Law Judge
Irving M. Herman issued the attached Decision in
this proceeding. Thereafter, the General Counsel
filed exceptions and a supporting brief, and the
Respondent filed cross-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
only to the extent consistent herewith.
We agree with the Administrative Law Judge that
Respondent violated Section 8(a)(1) of the Act when
Supervisor William Toschi told employee Dennis
Jensen, "I don't want you talking to any union" and
"complaining to the people on the other side." Like
him, we find that Toschi's admonitions constituted a
threat of discipline if he failed to obey. Unlike him,
however, we believe a cease-and-desist order is
required to remedy this violation. We do not agree
with his conclusion that such an order is unwarrant-
ed in view of the isolated nature of the violation. We
consider this threat far too serious both in import
and impact to be so cavalierly dismissed. A threat of
this nature seeks to coerce employees from seeking
the assistance of their recognized bargaining agent
and impairs their resort to rights protected under
Section 7 of the Act. That it appears here as an
"isolated" violation of the Act does not lessen its
adverse and far-reaching effect. Accordingly, we
shall issue an appropriate remedial order for the
violation found.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent,
Interlake, Inc., Riverdale, Illinois, its officers, agents,
successors, and assigns, shall:
1. Cease and desist from:
(a) Threatening its employees with discharge or
other disciplinary action if they go to, complain to,
218 NLRB No. 154
talk with, or otherwise seek the assistance of
representatives of a labor organization.
(b) In any other like or related manner interfering
with, restraining, or coercing its employees in the
exercise of their right to self-organization, to form
labor organizations, to bargain collectively through
representatives of their own choosing, and to engage
in other concerted activities for the purpose of
collective bargaining or other mutual aid or protec-
tion.
2. Take the following affirmative action which
will effectuate the policies of the Act:
(a) Post at its place of business in Riverdale,
Illinois, copies of the attached notice marked
"Appendix."' Copies of said notice, on forms
provided by the Regional Director for Region 13,
after being duly signed by Respondent's authorized
representative, shall be posted by Respondent
immediately upon receipt thereof, and be maintained
by it for 60 consecutive days thereafter, in conspicu-
ous places, including all places where notices to
employees are customarily posted. Reasonable steps
shall be taken by the Respondent to insure that said
notices are not altered, defaced, or covered by any
other material.
(b) Notify the Regional Director for Region 13,-in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply
herewith.
MEMBER KENNEDY, dissenting:
I would adopt the Administrative Law Judge's
recommendation to dismiss the complaint in its
entirety. A cease-and-desist order is unwarranted in
view of the isolated and de minimis nature of the
alleged unlawful conduct.
In this unit of 2,500 employees covered by a union
contract, my colleagues are concerned with one
threat, which allegedly was meant to coerce employ-
ees from seeking the assistance of a labor organiza-
tion.
In my view, this is one of those isolated matters
which has already held our attention too long to
warrant the expense it has generated. Dallas Mailers
Union, Local No. 143 v. N.L.R.B. 445 F.2d 730
(C.A.D.C., 1971). I cannot justify the expense which
this Agency will incur in attempting to enforce the
majority's order in the courts. I find the quantum of
misconduct here insufficient to constitute a violation,
and therefore I would dismiss the complaint.
1 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."
1044 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 WILL NOT threaten our employees with
discharge or other disciplinary action if they go
to, complain to, talk with, or otherwise seek the
assistance of representatives of a labor organiza-
tion.
WE WILL NOT in any other like or related
manner interfere with, restrain, or coerce our
employees in the exercise of their right to self-
organization, to form labor organizations, to
bargain collectively through representatives of
their own choosing, and to engage in other
concerted activities for the purpose of collective
bargaining or other mutual aid or protection.
INTERLAKE, INC.
DECISION
STATEMENT OF THE CASE
IRVING M. HERMAN, Administrative Law Judge: This
case was heard before me on October 17, 1974,1 at
Chicago, Illinois . The charge was filed on July 8 by Dennis
L. Jensen, an individual, and duly served on Respondent
on July 10. Complaint issued August 27. The primary
issues are whether Respondent violated Section 8(a)(1) of
the National Labor Relations Act, as amended (29 U.S.C.,
Sec. 151 et seq.),2 herem called the Act, by threatening
employees for protesting abnormally dangerous working
conditions and for complaining to their bargaining
representative about working conditions.
Upon the entire record3, including my observation of the
witnesses , and after due consideration of the briefs filed on
behalf of the General Counsel and Respondent, I make the
following:
FINDINGS AND CONCLUSIONS
I. RESPONDENT'S BUSINESS
The complaint alleges, the answer admits, and I fmd that
Respondent is a Delaware corporation maintaining a place
of business in Riverdale, Illinois, where it is engaged in the
manufacture of steel; that during the year immediately
preceding the issuance of complaint Respondent received
at said location materials valued in excess of $50,000
directly from points outside Illinois, and manufactured
products valued in excess of $50,000 which it shipped
directly to points outside Illinois; and that Respondent is
an employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
i All dates are in 1974.
2 Title I of the Labor Management Relations Act, 1947.
II. THE LABOR ORGANIZATION INVOLVED
The complaint alleges, the answer admits, and I find that
the Union (United Steelworkers of America , AFL-CIO) is
a labor organization within the meaning of Section 2(5) of
the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Facts
1. Respondent's contract with the Union
At all relevant times Respondent has had a contract with
the Union covering the approximately 2,500 unit employ-
ees at the Riverdale plant and containing the following
pertinent provisions:
Complaint and Grievance Procedure
Any employee who believes that he has a justifiable
complaint shall discuss the complaint with his foreman,
with or without the Grievance or Assistant Grievance
Committeeman being present, as the employee may
elect, in an attempt to settle same. However, any such
employee may instead, if he so desires, report the
matter directly to his Gnevance or Assistant Grievance
Committeeman and in such event the Grievance or
Assistant Grievance Committeeman, if he believes the
complaint merits discussion shall take it up with the
employee's foreman in a sincere effort to resolve the
problem. The employee involved should be present in
such discussion if he is available. (Article V, Section 4,
Step 1)
No Strikes or Lockouts
The Union shall not instigate, promote, cause or
authorize its members to instigate, promote or cause
any strike, shutdown, slowdown, or any other stoppage
of work or interference of any kind with production.
Participation in a strike, shutdown, slowdown,or any
other stoppage of work or interference of any kind with
production brought about either by the action of the
Union or individuals or groups of employees covered
by this Agreement, with or without Union authority or
support, shall be grounds for disciplinary action of one
or more of the participants by the Company. (Article
VI)
Safety Hazards
When an employee or group of employees believe
that he or they are being required to work under
conditions which are unsafe or unhealthy beyond the
normal hazard inherent in the operation in question,
and which creates a serious immediate threat of injury
to his or their person, he or they shall immediately
notify his or their foreman of such danger so that any
condition which does in fact constitute such a threat
may promptly be eliminated. The employee may
3 Obvious errors in the transcript of testimony have been noted.
INTERLAKE, INC. 1045
request permission to contact his grievance committee-
man or a member of the Safety Committee. Such
request shall be granted, unless to do so would
seriously impair, the operation, in which case it will be
granted as soon as the impairment no longer exists. At
the request of the Grievance Committeeman, the
Superintendent or his designated representative will be
called into this discussion. Following this investigation,
if an employee and the committeeman are convinced
an employee is in grave danger by continuing to work
on the job, the employee may ask to be relieved until
the danger is removed. Should the Superintendent or
his designated representative not grant this request, the
employee may immediately file a grievance in the Third
Step of the grievance procedure. Where the Company
representative agrees that the employee should be
relieved from work until the danger is removed, he shall
be transferred to another job (without any loss in
(earnings) until said danger is removed. (Article IX,
Section 3)
Probationary Employees
New employees and those hired after a break in
continuity of service will be regarded as probationary
employees for the first two hundred and sixty (260)
hours of actual work and will receive no continuous
service credit during such period. Probationary em-
ployees may initiate complaints under this Agreement
but may be laid off, discharged, or terminated as
exclusively determined by Management. Probationary
employees continued in the service of the Company
subsequent to the first two hundred and sixty (260)
hours of actual work shall receive full continuous
service credit from date of original hiring. (Article XVI,
Section 7)
2. Griffin's threat of June 22
Robert Griffin is a general foreman of the melt shop
where over 100 of the unit employees work. He has four
foremen under him including William Toschi, the hot
metal foreman, who supervises the labor gang. On June 22,
Jensen, the Charging Party, was assigned, together with
another probationary summer employee, Bruce De Young,
and two regular general laborers, Mark Nagan and Wayne
Nordin,4 to the 8-hour shift ending at 8 a.m. Their specific
assignment was to seal a crack on a damper door inside a
furnace duct located on the roof of the melt shop. The door
is at the juncture where two ducts leading from the two
basic oxygen furnaces (BOF) enter the pollution retarding
system. The ducts are between 12 and 25 feet in diameter
and are lined with layers of brick. The two furnaces are
operated alternately, and the function of the damper door,
which pivots on a hinge , is to seal off the duct from the
furnace not in use so as to prevent seepage thereinto of
smoke and heat from the operating furnace which would
interfere with the periodically necessary rebricking, wash-
4 All hourly paid employees.
5 which included fire-resistant coats and pants, special shoes , gloves,
glasses, and helmets. Nagan and De Young also wore dust masks , Jensen a
special respirator ; Nordin had no face covering.
ing, and cleaning out of the interior of the duct leading
from the nonoperating furnace. Sealing or "ramming up"
the door is done fairly regularly, when a furnace goes
down, which occurs about every 3 to 4 weeks. It requires
filling the cracks with a refractory mix, a high heat clay-like
compound. The length of time needed for the job depends
on the size of the crack. On this occasion it was 3 to 4
inches wide, which is considered minor and would have
taken only about 15 or 20 minutes to repair under normal
conditions. Usually the furnace whose duct has to be
entered must be down about 8 hours to be cool enough to
enable the men to perform the work, which is normally
done by a two-man team. On the morning here involved,
the particular furnace had been down about 2 days
because the whole melt shop had been forced down by a
breakdown in the separately located blast furnaces which
resulted in their inability to supply the necessary iron to the
melt shop.
Superintendent Batka of the melt shop sought to take
advantage of this downtime by also ordering a number of
additional jobs done which evidently could be performed
only at such a time. These orders were communicated to
General Foreman Griffin and he passed them on in turn to
Toschi, who, as indicated above, assigned the job of sealing
the door inside the No. 1 BOF duct to the four employees
named. It was anticipated by management that production
would resume at 11 o'clock that morning, and Nagan
admitted that he understood the door repair was "a rush
job."
Upon receiving the assignment shortly after midnight,
the four employees donned their safety gears and proceed-
ed to the roof carrying boxes of the patching material and
an air "ram" or "rammer," a pneumatic device to tamp it
into place. Before they arrived there, Griffin testified on
direct examination, he went up to check over the extent of
the job; he entered the duct, wearing protective clothing,
and walked from the hatch opening to the door that
needed repair; he found the interior "good and hot. It was
very uncomfortable"; 6 and he then left that area to check
on other jobs. And although he replied affirmatively to
Respondent's counsel's question whether in his opinion the
door job could have been done "that evening" (sic), he
testified immediately after that that he returned to the
scene about 2 hours later, as follows:
It is 2:30 or very close to it. I walked up there, I
didn't know whether the job could have been complet-
ed, for all I know. But I went up to check if it was
completed and see if the crew had been changed to
some of the other jobs we had going.
When the men reached the roof, Nagan entered the duct
to see the extent of the work required. The door to be
repaired was located some 20 feet from the entrance, but
Nagan did not get there. Instead he retreated within a
minute, after his dust mask had, fallen off as a result of the
melting of the elastic straps.? Upon emerging he suggested
that Toschi be called, and, upon the latter's arrival at about
6 Griffin later testified, "I didn't say I didn't find it unbearably hot. I
said it was very hot."
7 The masks, worn by him and De Young, were of a flimsy and
disposable surgical type, but this had never happened before.
1046 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
12:40, Nagan told him the duct was too hot to work in.
Toschi replied that the work had to be done. He observed,
however, that some of the equipment to be used needed
repair and arranged therefor. This took about 40 minutes,
after which Toschi ordered the equipment to be put into
the duct and for the men to prepare to enter. Nagan put on
another mask and reentered the duct, this time accompa-
nied by Nordin. Nagan's second mask also fell off, and he
and Nordin agreed it was still too hot, got back out again,
and so informed Toschi.8 Nagan suggested that they might
be able to do the job if they had an asbestos helmet or heat
shield, that he had seen used once before, to protect their
faces. Toschi went to look for it but was unable to find it.
On the way, however, he ran into Griffin whom he
informed of the complaints about the excessive heat, and
Giffin said, "Let's go back up there on the roof," and
followed him up.
When they reached the platform at the entrance to the
duct, about 4 feet above the roof level, the following
occurred, according to Toschi:
A. He said, "Bill, what is the problem?" I said, "the
men are refusing to go in there, they say it is too hot."
He was in a sort of an angry mood, he looked at me
and he said, "If they are not going to do the work, let's
send them home." I told Bob, I said, "Bob, there are
other jobs on that list. The duct is hot, it seems
extremely hot to me .9 Let's put the men on the other
jobs" and he agreed.
Q. What did he say?
A. He says, "Okay, but I am going to tell Louis
Burr about it." Louie Burr is the Assistant Superinten-
dent.
Q. - What did Mr. Griffin then do?
A. Then he left the area.
Griffin, who admitted that his purpose in ordering the
men sent home was disciplinary, essentially confirmed this.
The employees' testimony,10 unanimous that on the
occasion in question the duct was the hottest it had ever
been in their experience,11 diverges here, however. In
substance, according to them, when Griffin arrived at the
scene, he insisted, as had Toschi, that the job had to be
done, and all four of the employees went into the duct;
Nagan's mask fell off again, their shoes became hot,12 their
faces started to bum, and their breathing became difficult;
they agreed it was too hot to remain and they came back
out.13 At this point, Nagan testified, he announced the job
was unsafe and he would not do it. Griffin repeated that it
had to be done, Nagan asked Griffin to call Assistant
Superintendent Burr about the matter, and then he went
downstairs to wash the red dust off because it was irritating
his skin . According to Nordin, when the four emerged
a According to Toschi, all four of the men went in and came out at this
time.
9 Toschi also attested to the intensity of the heat with the statement, "I
was in there maybe as fast as I could get .m, as fast as I could get out I
wasn't keeping time.'
10 Nagan , Nordin , and Jensen, the latter a student at the University of
Houston Law Sehool . De Young, apparently away at school, did not testify.
11 None had ever before claimed the heat to be too great to work in.
12 Nagan, who testified to his shoes starting to smoke, admitted that this
had happened before without his claiming excessive heat.
from the duct, Toschi said they would have to go back in
and finish the job, Nordin said it was unsafe and that they
would not go in, Griffin said to Toschi in a loud voice 14
"that if we wouldn't go inside the duct, that he should give
the union guys 5 days off and nonunion guys should be
fired," and Toschi did not reply.15 Jensen's testimony was
that when the men came out of the duct, Griffin said, "Get
back in there, you are going to have to go back and do the
job," and that their failure to return would constitute a
refusal to do the work, that various suggestions were made
for cooling equipment but were rejected for one reason or
another, and that
Mr. Griffin said, "If you are going to refuse to
work, we are going to have to fire Jensen and De
Young and give five days' suspension to you two union
guys. Mr. Nordin's reply was, "It is unsafe in there."
Then, Toschi said - excuse me, Mr. Griffin said, "We
are going to fire you." Turned to Mr. Toschi and said,
"Aren't we, Toschi?" Mr. Toschi didn't reply. He was
hollering this. And he said, "Well, aren't we?" And
Toschi still didn't reply.
Q. Did Griffin say anything else?
A. There was some talk that, I don't remember,
after the threat to fire us and Mr. Toschi's refusal (sic).
I was very upset at the time and there may have been a
'little more conversation, I don't remember.
Q. Did Mr. Toschi say anything else?
A. To my memory, no.
Jensen added that everybody then went downstairs where,
about 5 minutes later, he told Toschi,
"Mr. Toschi, I haven't refused to work. I am
willing to go in there until I am not able to work. I want
you to understand I am not refusing to work."
He said, "Don't worry about it, I have taken care of
it." I looked at him and he nodded, and I just kind of
shook my head and said, "Okay" and walked out.
A short time later, with Assistant Superintendent Burr's
approval, the men were reassigned to some of the other
work that needed doing and suffered no discipline
whatever for their conduct. The door was repaired on the
succeeding shift.
At the end of their shift, while waiting to punch the
timeclock, Jensen, Nordin, and De Young related the
incident to Union President Chandler who was passing
by.16 Chandler promised to look into it but about a week
later, after talking to De Young, told Jensen he did not
believe Jensen's story about the threat to fire the
probationary employees.17 Early on the morning of June
23, Jensen also related the incident to Union Vice
13 Their estimates of the tune they were in the duct ranged from less than
a minute (Nagan and Jensen) to Nordin's 2 to 3 minutes.
14 Griffin's normal tone is deep and loud.
15 On cross-examination, Nordin stated that it was possible Toschi did
reply although he did not hear any.
16 They used the same occasion to complain about not having been
permitted to stop for lunch that morning.
17 The result of Chandler's inquiry into the matter was not mentioned by
Jensen until he was confronted on cross-examination with the affidavit he
had given the General Counsel during the investigation of the instant case.
INTERLAKE, INC. 1047
President Cephus whose functions included the processing
of grievances. Griffin, who was passing by at the time, was
called over by Cephus who told him that he had no right to
threaten the employees. Griffin replied that he had not
threatened anyone but that the men had refused to work,
and that Respondent could not have men around who
refuse to do their jobs. Griffin testified he had no authority
to impose any discipline other than to send the men home
for the remainder of the particular shift, and that further
discipline was within the exclusive province of the shop
superintendent.
3. Toschi's threat of June 2318
Shortly after his conversation with Cephus on the
morning of June 23, Jensen, who had been assigned to
sweeping the coffee shop area, paused to talk with two
fellow-employees 19 who were walking by. After watching
them for about 10 minutes, Toschi called Jensen aside.
According to Jensen, Toschi asked him if he knew "how
many hours it takes to be in the union," Jensen said 260,
and Toschi replied that it had been changed to 525, and
that Jensen probably would not accumulate enough for
that purpose before returning to school; and Jensen's
direct testimony continued as follows:
Q. (By Mr. Dube) What, if anything, did Mr.
Toschi [say] beyond what you have already described?
A. He told me I wasn't in the union, then he said
-- this is pretty near a direct quote - he said, I don't
want you complaining to the people on the other side."
He said, "I don't want you complaining to the people
on the other side."
There were two or three things he said about the
same time. He said that if you - I remember now -
he said that if you complain to these people, certain
people are going to get irritated, then he kept using the
words "certain people" and then he said, "If certain
people get `irritated, , things are going to be difficult
around here." He said, and I remember this very
distinctly, "I don't want you talking to any union." He
said, "They won't do you any good because you are not
in the union."
Q. What, if anything, did you say?
A. I didn't say anything, and then he paused a
second and he said, "Now, I know you know the law,
but you are not in the union and they won't do you any
good because you are on probation."
He' said if certain people get irritated at you, they
may try and fmd a way to get rid of you. They can
always fmd a reason. He said, "If you keep causing
trouble, this may happen."
He gave an example, he said, "Now, let me give an
example." He said, "Let's say you come in one day
feeling lazy, and everybody does, and instead of taking
a 20 minute break, you go for an hour or so and talk to
;someone in the plant, the foreman can fire you for not
bemg in your work area. If a certain foreman wants to
1s The complaint , which had inadvertently misstated the date as June 13,
was appropriately amended at the hearing.
19 De Young and Brower, another student.
20 Toschi went on to testify that he had heard the `rumor" about the
get you, he can always find a way." He said, "Now, this
is just an example."
Q. Did Mr. Toschi say anything else?
A. Yes. About this point he noticed that Mr. De
Young and Brower were there , and he kind of moved
around and faced all three of us. He continued, "Now,
I know you guys are going to go to some plush office
somewhere and are going to leave here and you are
here only for the summer, but I have to stay here and
put up with it; and I am not going to stand for anyone
getting upset at me , because I have to stay here after
you leave."
He looked at me and he said , "Now Jensen, I am not
going to go into the subtleties and details of this, but I
am sure you understand and know what I mean."
Q. What happened next?
A. At that point I said, "Are you threatening me?"
And he backed away and said, "No, I am not
threatening you" and hastily left.
On cross-examination , Jensen conceded that Toschi
"had gone to bat" for him the previous morning but said he
felt that Toschi was speaking for Griffin on June 23. At one
point, however, he testified that he felt that both were
threatening him.
Toschi testified on direct examination to his conversa-
tion with Jensen on June 23 as follows:
I called him over to the side and said, "You know,
Mr. Jensen, your work has been getting a little lax and I
heard through the grapevine, through the shop that you
were going to try to put a lawsuit against me and the
company."
I said, "If you have any problems, before always
running to the Union and to other people starting
rumors, come and see me, and maybe we can settle the
problem." 20
And, at that time, there was a crowd that came
around, people walking by, and there was some other
summer help and they were standing around. And
meaning to all of them , I said, "You know, I know
there are some days when you sort of are tired and lax
and you just don't feel like working, everyone has days
like that and I know it, but the work has to be done and
we are going to have to do it. That is all there is to it."
He concluded his direct testimony as follows:
Q. (By Mr. Biggert) During this conversation with
Jensen on the 23rd near the end of the shift around the
coffee area, did you say to him that you are not in the
Union and I don't want you complaining to people on
the other side?
A. No.
Q. Did you say to him, if you complain, certain
people are going to get upset, or words to this effect,
and are going to be difficult. I don't want you talking to
Union men, it is no good because you are not in the
lawsuit from Union President Chandler who had reported to him a
conversation in which Jensen had informed Chandler that he was going to
file a lawsuit against the Union and Toschi.
1048 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Union . Did you make that statement or words to that
effect to Jensen?
A. No.
Q. Did you threaten Mr. Jensen with termination if
he continued activities of going to the Union or related
activities?
A. No.
Q. Did you tell him that other people would get
agitated if he did so and get rid of him?
A. No.
On cross, Toschi testified:
Q. (By Mr. Duke') Mr. Toschi, do you recall
discussing the length of the probationary, period at
Interlake in this conversation with Mr: Jensen?
A. Yes.
Q. You recall telling him something to the effect
that the required hours had been increased and it was
no longer 260 hours, but 500 some hours to be a
member?
A. I told him I believed the hours were changed.
* *
Q. What was the occasion for informing Mr.
Jensen of that on the 23rd of June?
A. I was talking to Mr. Jensen and I heard through
Bob that he went up to Mr. Cephus, and we were
talking over there, and I said, "You know, Mr. Jensen,"
- I says - "If you got a problem, come and see me. I
don't think you are even really in the Union, I don't
think you got 525 hours to be" in it."
I said, "If you have a problem, come see me."
Q. Did you say anthing to Mr. Jensen about other
supervisors, that other supervisors might take any kind
of action?
A. I said that if his job keeps getting lax like it was,
he keeps getting worse, that other supervisors might
take disciplinary action.
Q. Did you say anything about foremen having a
lot of discretion on that kind of judgment?
A. No.
Q. What was it that caused you to go up and pull
Mr. Jensen aside to talk to him at that point?
A. Because he was not doing his work, his assigned
work.
Q. What were the other two employees doing? I
believe you testified that Jensen was standing with two
others?
A. They were standing and those, the others, were
right next to him.
Q. What were they doing?
A. They were assigned, I believe, outside on the
loading dock.
Q. Where were they standing?
A. Standing right with Mr. Jensen.
Q. Why weren't they outside on the loading dock?
A. They were coming in to go to the washroom, I
believe.
Q. What was Mr. Jensen doing?
A. He was just standing there.
Q. What were the employees doing?
A. They just came up to him and were talking.
Q. How long did you observe Mr. Jensen standing
there?
A. Ten minutes.
Q. You stood there and watched him for ten
minutes?
A. I was in the immediate area. I seen him standing
over there, with the rest of the guys.
Q. Did you, say anything to the other employees
about their standing for ten minutes and talking?
A. When they were standing there and came up to
them in general I said, what is the problem? At this
time, Mr. Jensen said, "We are on a break."
Q. But that wasn't true?
A. Must have been on a break, they were just
standing there.
Q. I'm not sure I understand. Were you dissatisfied
with the fact that Mr. Jensen was just standing there?
A. 'I wanted to know if there was a problem.
Q. Were you satisfied with his answer that he was
on a break as a justification for his standing there?
A. At that time, yes.
Q. But yet you pulled him over and made some
observations about not working hard enough and
possible trouble with supervisors?
A. Well, I am just taking this on previous, you
know, on his past work performance with me.
Q. The problem wasn't then something he was
doing that day that prompted you to, go over to him, it
was just regarding previous work?
A. Counting that day, too.
Q. Counting that day, too. What had gone wrong
that day?
A. I mean, the man was on the job for two hours
and really didn't accomplish anything.
Q. The man was on the job for two hours and the
task you had assigned him hadn't progressed as far as
you thought it should have?
A. Yes.
Q. What is the evidence of that that you saw?
A. I have other employees do that job a lot sooner.
Q. But you didn't mention that to him' specifically?
A. That is why I asked them if there was a
problem.
B. Analysis
1. Respondent's discovery demand
On October 11, Respondent's attorney mailed to the
General Counsel a letter demanding a list of all persons
whom the latter intended to call as witnesses at the hearing
INTERLAKE, INC. 1049
herein "[i]n accordance with . . . McClain Industries v.
N.L. R.B., et at "21 The letter was received on October 15,22
and General Counsel served and filed at the hearing his
"response and opposition to Respondent's motion for a bill
of particulars," citing numerous Board and court decisions
for the proposition "that the pretrial discovery rules of the
Federal Rules of Civil Procedure are not applicable in
Board complaint proceedings." At the hearing, Respon-
dent moved "that the hearing be postponed for 45 days to
allow General Counsel to supply me with the names of
witnesses and to determine what, if any, discovery I would
like to engage in and to complete that discovery within the
45 days." I denied the motion as contrary to the weight of
applicable authority. Respondent renewed the motion in its
brief, urging that denial of its demand deprived it of "a
right provided by the Federal Rules of Civil Procedure." 23
I adhere to my original ruling which conforms to Board
precedent24 as approved by the Second, Ninth, and Tenth
Circuit Courts of Appeals.25 See also Raser Tanning
Company v. N.LR.B., 276 F.2d 80, 83 (C.A. 6, 1960),
stating that "Administrative hearings of the Labor Board
are governed by the Administrative Procedure Act rather
than the Federal Rules of Civil Procedure." Moreover,
since Respondent did not seek discovery prior to learning
of the. McClain decision by the district court, it is fair to
assume that it did not deem N.LRB. v. Vapor Blast
Manufacturing Company, 287 F.2d 402 (C.A. 7, 1960), as
helpful to its position as it now urges. As in Vapor Blast
(287 F.2d at 408), Respondent has failed to demonstrate a
need for the discovery or showing of prejudice by its denial
other than the bare general assertion that it was deprived
of the opportunity to prepare its best defense. Respondent
could hardly demonstrate prejudice here in the General
Counsel's refusal to identify his witnesses in advance since
the only witnesses called by the General Counsel were
those whom Respondent had every reason to expect to be
called.26
2. Griffin's threat
Despite considerable testimonial disagreement as to the
details of the June 22 incident, there is no essential
difference concerning the crucial facts that the employees
here involved concertedly27 refused to perform the work
21 381 F.Supp. 187 (D.C. Mich, 1974), reversed on other grounds on 88
LRRM 2071 (C.A. 6, Dec. 19, 1974).
22 The letter followed rejection of a telephonic request made on or about
October S.
23 Earlier its brief claimed deprivation of "a fair hearing basic to due
process" to which the short answer is that pretrial discovery is not "a matter
of constitutional right" N.L.RB. v. Interboro Contractors, Inc, 432 F.2d
854, 857-858 (C.A. 2, 1970), and cases there cited.
24 By which I am bound in any event until the Supreme Court speaks to
the contrary. Whitney Stores Inc., 185 NLRB 625, 627, fn. 7 (1970), and
cases there cited.
25 N.L.R.B. v. Interboro Contractors, Inc, supra at 857-860; AL R.B v.
Globe Wireless, Ltd., 193 F.2d 748, 741 (C.A. 9, 1951); North American
Rockwell Corporation v.,N.L.R.B, '382 F 2d 866, 871-872 (C.A. 10, 1969).
26 Indeed, at the very time the motion was made at the heaniig, all three
of the General Counsel's witnesses were not only present in the hearing
room but were seated at counsel table.
27 Respondent's brief concedes the concerted character of the conduct.
26 Contrary tb the complaint (and General Counsel's brief), there was no
evidence of any threat "for protesting" working conditions . Jensen's post
facto protestations to Toschi that he had not refused to work and was
assigned them because they believed the interior of the
duct to be too hot and that Griffin at least told Toschi, in
the employees' hearing, to discipline them if they would
not do the job by sending them home.28 To Respondent's
contention that the stoppage was unprotected as in
violation of the contract's no-strike clause noted , above,
General Counsel argues an exemption from the no-strike
clause based on "abnormally dangerous conditions for
work" within the meaning of Section 502 of the Labor
Management Relations Act.29 Respondent disputes the
"abnormally dangerous" character of the working condi-
tions and additionally urges that in no event were the
employees threatened for their concerted activity and that
in any event the quick repudiation of any threat neutral-
ized whatever coercive effect there might have been.
a. The nature of the working conditions
It is settled, as urged by Respondent, that the test of
whether a work stoppage qualifies for the exception
provided by Section 502 is an objective rather than a
subjective one. Gateway Coal Company v_ United Mine
Workers, District 4, Local 6330, 414 U.S. 368(1974). In my
opinion, the objective evidence here satisfies the required
standard. Although the employees' work, and particularly
that inside the duct, is usually hot and dirty, obviously the
situation here involved some departure from the norm.
While 8 hours normally suffice to cool the duct enough to
enable the work to be performed, the furnace here had
been down 2 days, and yet, according to the, uncontradict-
ed testimony of the employee witnesses , the duct was the
hottest they had ever experienced. I credit this testimony
not only because it was uncontradicted and unanimous but
also because one of the employees (Nordin) is still on
Respondent's payroll (Federal Stainless Sink Div. of Unarco
Industries, Inc., 197 NLRB 489, 491 (1972)), and because
corroboration appears in Toschi's testimony that he told
Griffin the duct was "extremely hot" as a predicate for
abandoning their insistence on the performance of the
work, Griffin's acknowledgment that it was "good and
hot," that "I didn't say I didn't find it unbearably hot"
(emphasis supplied), and "that I didn't know whether the
job could have beeli completed," and his and Burr's ready
acquiescence in Toschi's recommendation to assign other
"willing to go in the until I am not able to work" came after the wheelsm
had already been set in motion for a reassignment to other work, and in any
event did not alter the fact that Jensen, along with the others, none of whom
uttered similar disclaimers, had refused to remain in the duct and thus
engaged in a wdrk stoppage, i.e., a refusal to do the assigned job under the
conditions prescribed by their employer. Respondent does not claim any
fatal variance between pleading and proof but meets the broader issue,
which has been fully litigated, on the merits.
29 I find utterly without merit the General Counsel's argument of a
further exemption for Jensen and De Young on the ground that, as
probationary employees admittedly given certain specific rights under the
contract, includiiIg , the right to grieve, "they were not yet members of the
bargaimfig unit bound to the terms of the no-strike clause " Quite apart from
the anomaly of giving probationers subject to summary discharge at the
exclusive discretion of,mana,ement (art. XVI, sec. 7) greater rights than
regular employees, the no-strike clause extends to "individuals or group of
employees covered by this Agreement"; and the term "employee" expressly
covers "all hourly id employees" with stated exceptions not here pertinent
(art. II, sec. 2(A)).
pa
In Curtis Mathes Manufacturing Company, 145 NLRB 473
(1963), relied on by General Counsel, the leadmen involved were expressly
excluded from the contract's coverage . Id at 474-475
1050 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
duties. Moreover, additional evidence of Respondent's
initial awareness of the abnormality of the danger resides
in the assignment of four men to the job which normally is
done by two, so that they could function in relays. I also
credit the employees' accounts of the unprecedented
disintegration of the elastic bands on the masks as well as
of the severe physical discomfort they encountered, and
note the absence of any evidence suggesting that such
symptoms were not unusual.30 In all these circumstances, I
find that the working conditions in the No. 1 BOF duct
between midnight and approximately 3 a.m. on the
morning of June 22 were "abnormally dangerous" within
the meaning of Section 502.31
b. The nature of the threat
At the hearing Respondent argued that Griffin had not
threatened to send the men home but only instructed
Toschi to do so, and that such a statement could constitute
a statutory threat only if "directed to the employees
involved". That contention, even if supported by the
evidence, has been abandoned in Respondent's brief32
which urges instead, citing Walls Manufacturing Company,
Inc., 128 NLRB 487 (1960), that his remarks were not "a
reaction to the employees' concerted activity as opposed to
a response to each individual's refusal" to work. This
argument borders on frivolity. The instant case is not at all
like Walls, where the employer had no reason to believe
that the employer had engaged' in anything but an
individual act. Here, Griffin must be deemed to have
known, because Toschi knew, that the men had gone in
and come out together, making known the feeling of all
that it was too hot to work, and that all had been present at
the discussion of the feasibility of various suggestions for
getting the job done. Besides, Toschi testified he told
Griffin "that the hourly people are complaining it is too
hot" and "the men are refusing to go in there, they say it is
too hot"; and Griffin testified Toschi told him that "they
don't want to work in there. They aren't going to work,
they *say it is too hot." If, on these facts, an employer can
successfully deny knowing the activity was concerted,
language has lost its meaning. Accordingly, Griffin's
statement of June 22 about disciplining the men for
refusing to work in the BOF duct violated Section 8(a)(1)
of the Act unless its coercive effect may be deemed to have
been dissipated or neutralized by its subsequent repudia-
tion.
3° Since the unusual discomfort thus suffered forced the men out in
about a minute on each occasion - hardly an exaggeration in view of
Toschi's admission that he had rushed out "as fast as [he] could" - I am
unable to accept Respondent' s argument that having four men work in
teams of two compensated for the excessive heat so as to maintain the
danger at its normal level, even assuming that such an arrangement,
involving work some 20 feet from the entrance , were practical.
32 This finding does not suffer from the fact that "the employees, either
singularly or in a group , entered the duct three times." Respondent's
wonderment "why anyone would place himself in a situation [of imminent
serious danger] once , let alone three times," ignores the normal desire of an
employee to please his employer in order to keep his job in light of the
employer's insistence that the work had to be done. Nor is the finding
affected by the completion of the job on the next shift absent evidence of
the working conditions at that time, i.e., about 8 hours later, the normal
c. Neutralization of the threat
Citing Board decisions supporting a policy in the nature
of locus poenitentiae, Respondent contends that whatever
coercive effect may have, flowed from the June 22 incident
was dissipated by Respondent's prompt retraction by both
word and deed. I find merit in the contention. In Crystal
Laundry and Dry Cleaning Company, 132 NLRB 222 (1961),
e.g., where the company president had threatened to "close
the place down and rent the place out for storage" before
recognizing the union, the Board found the statement to
have "lost its coercive effect in- light of [his] subsequent
repeated statements that he would keep the plant operating
so long as he was physically and financially able to do so."
Id at fn. 1. See also Tunica Manufacturing Company, Inc.,
182 NLRB 729, 733 (1970); RidgewoodArt Woodcraft, 181
NLRB 761, 764 (1970).33
According to both Griffin's and Toschi's testimony here,
Toschi immediately responded toGriffn's angry outburst
by suggesting the availability of other work, and Griffin
.readily agreed, subject to Burr's approval, in light of the
extreme heat. I credit this because certain elements in the
employees' testimony concerning this event tend to
corroborate Respondent's evidence. Thus, while Nordin
testified on direct examination that Griffin told Toschi to
discipline the employees (as testified by Griffin and
Toschi) and that Toschi did not reply, he, conceded on
cross that Toschi might have replied. Jensen testified,
contrary to Nordin, that Griffin threatened the men
directly but that Griffin then sought confirmation from
Toschi which was not forthcoming; Jensen then, however,
referred to Toschi's "refusal." Nagan testified that he
suggested that Griffin call Burr.
What is undisputed, in any event, is that the employees
here involved were certainly made aware of the emptiness
of Griffin's coercive statements very shortly after their
utterance when they were reassigned to other duties, so
that quite apart from any verbal retraction they knew that
whatever disciplinary threats had been made no longer
hung over them. Indeed, Jensen admittedly received
specific assurance thereof from Toschi within minutes of
the incident.
Since discipline would have been justified here absent
the extreme heat, and since the employees were so quickly
reassigned and no discipline was ever imposed, it would
not, in my opinion, under the case authority cited above,
effectuate the purposes of the Act to issue an order in
respect to this matter. General Counsel argues that "the
clear implication of [Griffin's ] statement was that employ-
waiting period after the shutdown of the furnace . Cf. Union Boiler Company,
213 NLRB No. 113 (1974). The failure of Respondent to offer such
evidence, which was uniquely in its possession , indicates that it would not
have been favorable to Respondent's position. Ca1ip Dairies, Inc., and
Cosmopolitan Ice Cream Co., Inc. 204 NLRB 257 (1973).
32 An otherwise coercive statement, even if unintentionally communicat-
ed to employees, violates Sec. 8(aXl) if actually overheard by them. Owego
Street Supermarkets, Inc., 159 NLRB 1735, 1736 (1966); Ford Radio & Mica
Corporation, 115 NLRB 1046, 1047 (1956). Here the statement was
knowingly made in the employees ' presence in Griffin's usual loud voice.
33 Springfield Garment Manufacturing Company, 152 NLRB 1043, 1048
(1965), also cited by Respondent, stands for the same proposition but only
as a holding by the Trial Examiner, his conclusion in this respect having
been adopted pro forma in the absence of exceptions thereto . Id at 1044,
fn.l.
INTERLAKE, INC. 1051
ees could protest safety conditions only at their own risk -
and that the more prudent course would be to tolerate a
safety hazard." However, any lingering effect of the
incident on the employees here would be the knowledge
that no discipline will be visited upon them if the
"abnormally dangerous" condition for the Act's protection
is satisfied, or, in other words, that only unprotected
conduct would constitute an occasion for discipline. True,
the employees would know that they risk erring as to
whether the particular working conditions are abnormally
dangerous, but that risk is inherent in the exemption
Section 502 provides from the normal consequences of a
strike in breach of contract. This is what distinguishes the
Section 502 situation from the general rule that the Act
ignores objectivity and imposes liability for discrimination
against concerted activity otherwise protected, however
unreasonable it may be. See N.LA.B. v. Washington
Aluminum Co., 370 U.S. 9, 16 (1962).
3. Toschi's threat
a. The nature of the threat
As indicated above, Jensen testified that Toschi told him
on June 23, "I don't want you talking to any union," 34 that
"They won't do you any good because you are not in the
union"; that the number of "hours it takes to be in the
union" had been increased from 260 to 525, which Jensen
would probably not be able to accumulate before returning
to school; and that his complaining to the Union would
irritate "certain people" who, as long as Jensen was on
probation, could always find a reason for getting rid of
him. On his direct examination, Toschi made no reference
to the increase in hours mentioned in Jensen's testimony,
and responded negatively to counsel's questions whether
he had told Jensen "that you are not in the Union and I
don't want you complaining to people on the other side,"
"if you complain, certain people are going to get upset, or
words to that effect, and going to be difficult. I don't want
you talking to Union men, it is no good because you are
not in the Union," or whether he had "threaten[ed] Mr.
Jensen with termination if he continued activities of going
to the Union or related activities," or "that other people
would get agitated if he did so and get rid of him." " He did
testify, however, to telling Jensen that
Your work has been getting a little lax and I heard
through the grapevine, through the shop, that you were
going to try to put a lawsuit against me and the
company.
I said, "If you have any problems, before always
running to the Union and to other people starting
rumors, come and see me, and maybe we can settle the
problem."
On cross, Toschi admitted telling Jensen that the
contractual probationary period had been changed from
260 hours to 525 although he did not know if they had
been,35 and to the question of how he happened to mention
it to Jensen on that particular occasion, Toschi replied,
I was talking to Mr. Jensen and I heard through Bob
[Griffin] that he went up to Mr. Cephus and we were
talking over there, and I said, "You know, Mr. Jensen,"
- I says - "if you got a problem, come and see me. I
don't think you are even really in the Union, I don't
think you got 525 hours to be in it."
I said, "If you have a problem, come see me."
Toschi also admitted telling Jensen that other supervisors
might discipline him but stated that that was in connection
with Jensen's "getting lax." And Toschi admitted that his
conversation with Jensen about laxity was not precipitated
by Jensen's pause to talk to his two fellows (since he
regarded that as a valid work break) but "just" because of
"his past work performance with me," to which, on
counsel's pressing that "the problem wasn't then something
he was doing that day that prompted you to go over to
him, it was just regarding previous work," Toschi added,
"Counting that day, too," because Jensen had been on that
job for 2 hours, longer than the job normally takes, "and
really didn't accomplish anything."
I credit Jensen's version of the June 23 conversation over
Toschi's as more straightforward and internally consistent.
Not only did Toschi's denial that he had told Jensen not to
talk to the Union contradict his earlier testimony that he
had told Jensen to see him "before always running to the
Union," but his description of the conversation seemed
contrived. Although testifying that the conversation was
occasioned by Jensen's laxness (which initially appeared to
reside in Jensen's pausing to talk to two other employees),
he related that laxness "just" to Jensen's "past work
performance" 36 until , afforded another opportunity, he
mentioned for the first time at the very end of his cross-
examination that he was also referring to his belief that
Jensen had accomplished little in his 2 hours of work. Yet
according to his own testimony, he had watched Jensen for
some 10 minutes before calling him aside. I find it hard to
believe that, having determined that Jensen had barely
"accomplish[ed] anything" in 2 hours, Toschi would have
watched Jensen's idling for 10 minutes before interrupting.
Moreover, Toschi's account of his remarks is too disjointed
for crediting if the laxness constituted the motive for the
conversation, for beyond the alleged statement that "your
work has been getting a little lax" that subject received no
further mention,37 but indeed was followed immediately by
Toschi's reference to the report that Jensen was instituting
a lawsuit "against [him] and the company" and Toschi's
admonition to Jensen to bring his problems to Toschi
"before always running to the Union," matters quite
unrelated to Toschi's claimed reason for the conversation.
Similarly dubious was Toschi's reference to the report of
the lawsuit as a predicate for the admonition against
"running to the Union," because the report, as set out in
Toschi's own testimony, had allegedly been received from
Union President Chandler and was to the effect that
Jensen had threatened the Union as well as Respondent
34 And "complaining to the people on the other side." dissatisfaction with Jensen's work.
35 The record shows no such change . 37 Save in respect to "all" of the "crowd that came around, people
3e The record is barren of evidence of any previous expression of walking by."
1052 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
with lawsuits. Finally, Toschi conceded on cross-examina-
tion that when he told Jensen to bring his problems to him
rather than to the Union he also said, "I don't think you
are even really in the Union, I don't think you got 525
hours to be in it." In my opinion this is compatible only
with an attempt to convince Jensen, contrary to article
XVI, section 7, of the contract, that his probationary
status 38 precluded resort to the Union.39 And, perhaps of
greater significance, this reference to the hours needed to
be "in the Union" was occasioned, according to Toschi's
cross-examination, by Griffin's having informed him of
Jensen's complaint to Cephus about the June 22 incident.
This testimony, together with his earlier testimony about
Chandler's report of the lawsuit inexorably lead to the
inference that the conversation of June 23 stemmed not
from Jensen's alleged laxity but from his "running to the
Union."
I also find, in accordance with Jensen's testimony, that
Toschi's admitted admonition against complaining to the
Union was in reality something more, i.e., a threat that
Jensen would be disciplined if he failed to obey. Toschi did
admit warning Jensen of discipline but testified that the
warning related only to Jensen's alleged laxness. This is
impossible to reconcile with the fact, as found above, that
the entire thrust of the conversation was not Jensen's
laxness but rather his "running to the Union."
b. The illegality of the threat
Respondent urges that if Toschi uttered any threats they
"relate solely to Jensen and his lunch break complaint"
which involved "unprotected, individual action." 40 But, as
I have already found, Toschi was admittedly aware of
Jensen's complaining to Union President Chandler and to
Vice President Cephus, the latter complaint having dealt
with the duct incident exclusively, and the former having
38 Whether or not intentionally exaggerated.
39 Nor, contrary to Respondent's brief, does step one of the grievance
procedure "require that an employee discuss his complaints initially with his
foreman." Under the contract the employee "may instead, if he so desires,
report the matter directly to his Grievance or Assistance Grievance
Committeeman... .
involved both. Moreover, in view of the warning against
complaining to the Union, Respondent errs in attempting
to maintain that the lunchbreak matter, even if it was the
sole source of the threat, simply concerned a complaint
registered by Jensen with Toschi on the previous day. If the
threat indeed related only to the matter of the lunchbreak
it was still the result of Jensen's having raised that matter
not with Toschi but with the Union. Accordingly, neither
N.L.R.B. v. Northern Metal Company, 440 F.2d 881 (C.A. 3,
1971), nor N.LRB. v. Office Towel Supply Company, Inc.,
201 F.2d 838 (C.A. 2, 1953), is applicable here because
neither case involved, as does the instant one, employer
action to coerce employees from seeking the assistance of a
labor organization, a clear violation of Section 8(a)(1).
Even giving Jensen's complaint to the Union Respondent's
characterization of "mere griping" detracts in no way from
its protected nature. Section 7 confers the right to "gripe"
to a labor organization even if the gripe be an individual
one.
Despite the foregoing, I believe a cease-and-desist order
to be unwarranted herein in view of the isolated nature of
the violation. Cf. Consolidated Freightways Corporation of
Delaware, 181 NLRB 856, 862 (1970); The Great Atlantic &
Pacific Tea Company, Inc., 129 NLRB 757, 760 (1960).
CONCLUSIONS OF LAW
1. Interlake, Inc., is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. United Steelworkers of America, AFL-CIO, is a
labor organization within the meaning of Section 2(5) of
the Act.
3. Respondent has engaged in no unfair labor practices
which would warrant the issuance of a remedial order.
[Recommended Order for dismissal omitted from publi-
cation.]
40 According to Respondent , the lunchbreak complaint concerned
Respondent's failure to comply with a statute rather than with its collective-
bargaining agreement