L. B. Foster Co.

National Labor Relations Board - Board Decisions

Sep 28, 1971

193 N.L.R.B. 401 (N.L.R.B. 1971)

L. B FOSTER COMPANY 401
L. B. Foster Company and John W . Eakes and Roy
Lee Sparks . Cases 10-CA-8830-1 and
10-CA-8830-2
September 28, 1971
DECISION AND ORDER
BY MEMBERS FANNING, JLNKINS, AND
KENNLDY
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
ALBA B. MARTIN, Trial Examiner: This case was heard in
Birmingham, Alabama, on April 20, 1971, pursuant to a
charge duly filed and served,' and a complaint issued on
March 10, 1971. The issue litigated was whether Respon-
dent violated Section 8(a)(3) and (1) of the Act2 on January
21 and 22, 1971. At the close of the hearing the General
Counsel made a short oral summation. After the hearing
Respondent filed a brief which has been duly considered.
Upon the entire record in the case and my observation of
the witnesses, I hereby make the following:
FINDINGS AND CONCLUSIONS
On August 6, 1971, Trial Examiner Alba B. Martin
issued his Decision in the above-entitled proceeding,
finding that Respondent had engaged in and was
engaging in certain unfair labor practices alleged in
the complaint and recommending that it cease and
desist therefrom and take certain affirmative action,
as set forth in the attached Trial Examiner's Decision.
Thereafter, Respondent filed exceptions and a sup-
porting 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
powers in connection with this proceeding to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions, the brief, and
the entire record in this proceeding, and hereby
adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner. i
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Trial Examiner and hereby orders that
Respondent L. B. Foster Company, Birmingham,
Alabama, its officers, agents, successors, and assigns,
shall take the action set forth in the Trial Examiner's
recommended Order.
I The Respondent has excepted to certain credibility findings made by
the Trial Examiner It is the Board's established policy not to overrule a
Trial Examiner's resolutions with respect to credibility unless the clear
preponderance of all of the relevant evidence convinces us that the
resolutions were incorrect Standard Dry Wall Products, Inc, 91 NLRB 544,
enfd 188 F 2d 362 (C A 3) We have carefully examined the record and
find no basis for reversing his findings
1. THE BUSINESS OF THE RESPONDENT
L. B Foster Company, Respondent herein, sometimes
referred to as Foster and the Company, is a Pennsylvania
corporation which has an office and place of business in
Pawnee, Alabama, its sole facility involved herein, where it
is engaged in the storing, fabrication, and sale of steel
piping. During the calendar year prior to the issuance of the
complaint, a representative period, Respondent sold and
shipped finished products valued in excess of $50,000 from
its Pawnee facility directly to customers located outside the
State of Alabama.
II. THE LABOR ORGANIZATION INVOLVED
Teamsters Local Union 612, affiliated with International
Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, herein called the Union, is a labor
organization within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Discharges, the Promise, and the Threats
At Respondent's Pawnee facility, hereinafter referred to
as the yard, Respondent had only its general foreman, Jerry
Plyler, and two employees, John Wayne Eakes and Roy
Sparks. Eakes had worked at the yard from almost the
opening of the yard in March 1970. Sparks had worked
there since April 1970. Plyler discharged both employees
simultaneously on January 22, 1971.
Eakes had contacted the Union in early January 1971,3
and both employees had signed cards for the Union on
January 14. At 8:53 a.m. on January 21 the Union sent
Respondent a telegram reading as follows:
Please be advised that Roy Sparks and John Eakes have
requested that Teamsters Local 612 be their bargaining
agent. We would like for you to give these people the
consideration guaranteed under the National Labor
Relations Act.
According to the credited testimony of the Union's
secretary-treasurer, Gunning, a credible witness, he called
Fakes, an individual, filed the charge in Case 10-CA-8830-1 on
January 27, 1971 Sparks, an individual, filed the charge in Case
10-CA-8830-2 on January 27, 1971
2 "The Act" refers to the National Labor Relations Act, as amended, 29
U.S C Sec 151, et seq
3 All events herein occurred in 1971.
193 NLRB No. 68
402 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Plyler about 10 a.m. on January 21, told him that Eakes and
Sparks had signed up with the Union, and requested
recognition of the Union. Plyler replied that he didn't
believe it, and that "besides, you can't do this, this is a
nonunion company."4 Gunning replied that he would
"pursue the matter through the process of the NLRB."
Shortly before lunchtime that day, January 21, when
Eakes and Sparks went into the yard office, a trailer, to
wash up, Plyler referred to the fact that someone from the
yard had contacted a labor union , and added words to the
effect that when you mess with a union you are messing up
at Foster, that when they started talking union around there
they were talking trouble. This, according to the credited
testimony of Eakes and Sparks, who by their demeanor as
witnesses impressed me as credible witnesses.
Just after the two employees returned from lunch that
noon, January 21, Plyler read the substance of the above
telegram to them, and added, according to the credited
testimony of Eakes and Sparks, that they could join the
Union if they wanted to but that they couldn't belong to the
Union and work for Foster. Eakes said that they had signed
cards for the Teamsters. Plyler told them they could
continue working for Foster if they dropped or voided the
cards, but that otherwise the next day would be their last
day with the Company
Plyler testified that after reading the telegram he told
Eakes that the next day would be his last, that it was not
because he joined the Union, but that "tomorrow you are
being fired for being insubordinate." Plyler testified also
that although at that time he was not familiar with the
protections of the Act, "I was aware since I was 15 years old
that you can't come out and tell a man he's fired for joining
a union."
During coffee break time that afternoon, Thursday,
January 21, according to the credited testimony of Eakes,
Plyler came up to the two employees and asked them if they
were going to drop the union cards. After he asked Eakes
several times , the latter replied that he was not dropping his
card. Sparks replied that he could not drop his. Plyler then
repeated his earlier statement that if they didn't drop them,
the next day would be their last with the Company.
Just after the two employees clocked out about 5 o'clock
that afternoon, Plyler called Sparks back into the office
and, according to Sparks' credited testimony, talked to him
further about withdrawing from the Union. He told him he
would get a raise if he withdrew, and that he had until the
next morning , Friday, to decide whether to withdraw, quit,
or get fired. Plyler told Sparks that Eakes was definitely
finished, that if Sparks wanted to act like Eakes, Plyler
thought it was a mistake.
Plyler's testimony concerning Sparks was that Sparks had
not given him much trouble and was a satisfactory
employee except for Eakes' influence upon him. Sparks and
Eakes were brothers-in-law and Sparks rode to and from
work with Eakes. Plyler testified he was willing to keep
Sparks as an employee once Eakes was gone. Sometime on
January 21 Plyler wrote and signed a memorandum
concerning Sparks for the company payroll clerk, dated
January 21, and reading as follows:
4 Plyler testified that the Company 's southeastern district is nonunion
This district is comprised of the Company's facilities in Georgia , Alabama,
Roy has been told that he has been fired as of 1/22/71,
after conversation with Roy he was told he could still
work if he wanted to, he told me that he did not want it
(hisjob) back.
At the beginning of the following workday, Friday,
January 22, Plyler had papers for the two employees to sign,
stating that they had quit their jobs. Eakes and Sparks
refused to sign. Sometime that morning the Umon's
secretary-treasurer, Gunning, telephoned Plyler, told him
he understood the latter was going to terminate Eakes and
Sparks at the end of that day, and asked him why. Plyler
said it was because of their "insubordination in the past."
Just before quitting time that afternoon, Plyler dis-
charged Eakes and Sparks, giving as the reason
"insubordination." According to the uncontradicted and
credited testimony of the two employees, Sparks asked
what "insubordination" meant , and Plyler replied, going
behind his back and signing up with the Union.
On January 22, Plyler wrote on the above-quoted
memorandum relating to Sparks:
Note: Roy was asked today (Friday-22) if he wanted to
stay with the Company. He said no.
On January 22 also, Plyler signed forms for the payroll
department giving as the reason for the discharge of Eakes,
"Insubordinate, constant gripe about work and pay"; and
stating, "Wayne was explained to that the reason for his
termination was for insobination [sic] and constant
reprimand." On that day Plyler signed a form for the
payroll department concerning Sparks' discharge, stating,
"Roy was explained to that the reason for his termination
was for insobination [sic] and constant reprimanded [sic]."
Respondent's basic defense to the discharges was that the
two employees were unsatisfactory workers, that Plyler put
up with them as long as he could, and that he decided to get
rid of them prior to his knowledge of their affiliation with
the Union. The credible evidence does not sustain this
defense.
During his 10 or 1I months with the Company Eakes
received six raises in pay (two of which were cost-of-living
raises) and during his 9 or 10 months Sparks received four
raises in pay; wage records which in my judgment show
them to have been better workers than Plyler allowed in his
testimony.
On January 6, 1971, 12 workdays before his discharge,
Eakes advised Plyler that he was quitting and giving a
week's notice because he was not making enough money.
The following morning Eakes advised Plyler that he had
changed his mind, that he wanted to stay. Plyler let him stay
although Plyler was already in contact with a possible
replacement. If Eakes had approached being as bad an
employee as Plyler pictured him to be in his testimony, it is
inconceivable that he would have let him continue to work
on this occasion. Plyler wrote on a memorandum for the
company records: "Wayne has told me he does not want to
quit. Was told he could keep his job as long as he did his
work." There was no credible evidence that Eakes did not
do his work during the 11 remaining days before his
discharge.
Even after he had discharged Sparks on January 21,
Florida, and Tennessee
L. B. FOSTER COMPANY 403
Plyler was ready to keep him as an employee, once Eakes
was gone . It is inconceivable to me that under these
circumstances Sparks was an unsatisfactory worker.
The record contains some memoranda concerning the
two employees which Plyler wrote and put in their
personnel files. He did not tell the employees he was doing
this. These, plus testimony, showed that Eakes' alleged
insubordination, as Plyler allegedly saw it, was his failure
always to wear his hard (safety) hat, and his complaints
about not getting enough pay to be able to take care of his
family. Sparks' alleged insubordination was that he was a
slow worker and did not always wear the required safety
goggles. Also, on November 30, 1970, when Plyler was out
of town, the two employees had punched out an hour early,
at 4 p.m., without Plyler's approval.
As has been seen above, in his forms for the payroll
department after the discharges, Plyler referred not only to
insubordination but also to constant reprimands to the
employees. The record did not justify the conclusion that
the employees were being constantly reprimanded. The
only conclusion borne out by the record was that he
reminded them from time to time to wear their safety
equipment; but he never told them they were receiving
written reprimands, never showed them a written repri-
mand , and never threatened them with loss of their jobs for
any reason.
Evidence that Plyler was thinking of replacing one or
both of his employees earlier during the week of the
discharges was his request at that time of a neighboring
employer if he knew where Plyler could find some men.
Plyler began looking for a replacement for Eakes earlier
that week because shortly before that the latter allegedly
complained about the coldness of the weather in which they
were doing some outside work,5 which Plyler allegedly
deemed to be insubordinate. Eakes credibly denied
complaining . But in fact Plyler did not hire any replace-
ment until January 23, the day after the discharges, and the
record did not support the conclusion that Plyler would
have hired the replacement at that time if the vacancy had
not already arisen . Any such conclusion would have to be
based on Plyler's testimony concerning his intentions,
which testimony I do not find credible. By his testimony
generally and by his demeanor as a witness Plyler did not
impress me as a credible witness. Also, weighty evidence, in
my view, that Plyler would not necessarily have hired the
replacement the day after Eakes' discharge if the vacancy
had not existed is the fact that he had never, prior to the
Union, warned or threatened either employee that they
were about to be discharged.
Conclusions: Plyler was not fully satisfied with the work
of the two employees, but never prior to the Union did he
ever indicate to them an intent to discharge them, and when
he did make such threat on January 21, 1971, it was in the
context of their union affiliation which he likened unto
"messing up with Foster" and "talking trouble." After
reading the Union's telegram to them that day, Plyler told
them they could not belong to a union and work for Foster
and threatened discharge the next day unless they withdrew
from the Union. He tried with a promise of a raise to induce
Sparks to leave the Union and stay with the Company. On
January 22 he tried to get the employees to sign a paper
stating that they were quitting, and failing that he
discharged them allegedly for "insubordination," which he
defined to them as going behind his back and signing up
with the Union. Under all the circumstances of this case
insubordination was palpably a pretext and not the
precipitating cause of the discharges. Whatever the
employees' shortcomings and whatever Plyler's intent
towards them, the evidence shows that at least one of the
reasons he discharged them on January 22, 1971, was
because of their union affiliation and activity. Upon the
preponderance of the credible evidence in the entire record
considered as a whole, I conclude that by these discharges
Respondent violated Section 8(a)(3) and (1) of the Act. I
conclude further that Plyler's threats that they were messing
up with Foster and talking trouble; his threats of discharge
the following day unless they withdrew from the Union;
and his promise of a raise to Sparks if Sparks would leave
the Union and remain with the Company; amounted to
further violations by Respondent of Section 8(a)(1) of the
Act.
CONCLUSIONS OF LAW
1. L. B. Foster Company is engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
2. Teamsters Local Union 612, affiliated with Interna-
tional Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, is a labor organization within
the meaning of Section 2(5) of the Act.
3. By discriminatorily discharging John Wayne Eakes
and Roy Sparks on January 22, 1971, because of their union
affiliation and activity, thereby discouraging membership
and activity in the Union, Respondent has violated and is
violating Section 8(a)(3) and (1) of the Act.
4. By threatening employees that they are in trouble
because of the Union, that they could not belong to a union
and work for Foster, and by threatening discharge unless
the employees withdrew from the Union, Respondent has
violated and is violating Section 8(a)(1) of the Act.
5. By promising an employee a raise to try to induce
him to leave the Union and stay with the Company,
Respondent has violated and is violating Section 8(a)(1) of
the Act.
6. The aforesaid labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
REMEDY
In order to effectuate the policies of the Act, I
recommend the customary broad cease-and-desist order
and the affirmative relief conventionally ordered in cases of
this nature, where Respondent's unfair labor practices were
of a character which struck at the roots of employee rights
safeguarded by the Act.
To remedy its discriminatory discharge of the two
employees Respondent will be required to offer John
Wayne Eakes and Roy Sparks reinstatement to their former
5 On direct examination Plyler testified they were cutting pipe. On
cross-examination he testified they were spreading stone.
404 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
or substantially equivalent positions, without prejudice to
their seniority or other rights and privileges, and to pay
each of them backpay (less net interim earnings) computed
on a quarterly basis, plus interest at 6 percent per annum, as
prescribed in F. W. Woolworth Company, 90 NLRB 289
(1950), and Isis Plumbing & Heating Co., 138 NLRB 716
(1962), from the date of the discharge, January 22, 1971, to
the date when Respondent offers him reinstatement.
Upon the foregoing findings of fact and conclusions of
law, upon the entire record, and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended- 6
ORDER
6 In the event no exceptions are filed as provided by Sec. 102 46 of the
Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, recommendations, and recommended Order herein
shall, as provided in Sec 102 48 of the Rules and Regulations, be adopted
by the Board and become its findings, conclusions, and order, and all
objections thereto shall be deemed waived for all purposes
7 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall be changed to read
"Posted Pursuant to a Judgment of the United States Court of Appeals
Enforcing an Order of the National Labor Relations Board "
s In the event that this recommended Order is adopted by the Board
after exceptions have been filed, notify the Regional Director for Region
10, in writing, within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith
Respondent, L.B. Foster Company, of Birmingham,
Alabama, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discriminatorily discharging employees because of
their union affiliation and activity in order to discourage
membership in the Union.
(b) Threatening employees that they are in trouble
because of the Union, and that they cannot belong to a
union and work for Foster.
(c) Threatening discharge unless employees withdraw
from the Union.
(d) Promising employees a raise to induce them to leave
the Union and stay with the Company.
2. Take the following affirmative action, which I find
will effectuate the policies of the Act:
(a) Offer to John Wayne Eakes and Roy Sparks
reinstatement to their former or substantially equivalent
positions, without prejudice to their seniority or other rights
and privileges, and pay them backpay in the manner
prescribed in the portion of the Trial Examiner's Decision
entitled "Remedy" for any loss of earnings suffered by
reason of the discrimination against them
(b) Notify John Wayne Eakes and Roy Sparks if
presently serving in the Armed Forces of the United States
of their right to full reinstatement upon application in
accordance with the Selective Service Act and the
Universal Military Training and Service Act, as amended,
after discharge from the Armed Forces.
(c) 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 under the
terms of this recommended Order.
(d) Post at its yard in Birmingham, Alabama, copies of
the attached notice marked "Appendix." 7 Copies of said
notice, on forms provided by the Regional Director for
Region 10 (Atlanta, Georgia), after being duly signed by
Respondent's authorized representative, shall be posted by
it immediately upon receipt thereof, and be maintained by
it for 60 consecutive days thereafter, 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.
(e) Notify said Regional Director, in writing, within 20
days from the receipt of this Decision, what steps have been
taken to comply herewith.8
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Act gives all employees these
rights:
To engage in self-organization
To form, join, or help unions
To bargain collectively through a representative
of their own choosing
To act together for collective bargaining or other
aid or protection
To refrain from any or all of these things
WE WILL offer to John Wayne Eakes and Roy Sparks
immediate and full reinstatement to their former or
substantially equivalent positions, without prejudice to
their seniority and other rights and privileges previously
enjoyed, in accordance with the recommendations of
the Trial Examiner's Decision.
WE WILL pay to John Wayne Eakes and Roy Sparks
backpay for any loss of pay they may have suffered as a
result of our discrimination against them, in accordance
with the recommendation of the Trial Examiner's
Decision.
WE WILL notify John Wayne Eakes and Roy Sparks
if presently serving in the Armed Forces of the United
States of their right to full reinstatement upon
application in accordance with the Selective Service Act
and the Universal Military Training and Service Act, as
amended, after discharge from the Armed Forces.
WE WILL NOT discharge or in any other way
discriminate against any employee because of his union
affiliation or activity.
WE WILL NOT threaten employees that they are in
trouble because of the Union, and that they cannot
belong to the Union and work for Foster.
WE WILL NOT threaten discharge to employees unless
they withdraw from the Union.
WE WILL NOT promise employees a raise to induce
them to leave the Union and stay with the Company.
WE WILL NOT in any other manner interfere with,
restrain, or coerce our employees in the exercise of the
right to self-organization, to form labor organizations,
to join or assist Teamsters Local Union 612, affiliated
with International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America, or any
L. B. FOSTER COMPANY
other labor organization, to bargain collectively
through representatives of their own choosing, and to
engage in other concerted activities for the purposes of
collective bargaining or other mutual aid or protection,
or to refrain from any and all such activity
All our employees are free to become, or to refrain from
becoming, members of any labor organization.
L. B. FOSTER COMPANY
(Employer)
Dated By
405
(Representative ) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered , defaced,
or covered by any other material.
Any questions concerning this notice or compliance with
its provisions may be directed to the Board's Office,
Peachtree Building, Room 701, 730 Peachtree Street, NE.,
Atlanta, Georgia 30308, Telephone 404-526-5760.