United States Metals Refining Co.

National Labor Relations Board - Board Decisions

Jun 25, 1975

218 N.L.R.B. 841 (N.L.R.B. 1975)

U.S. METALS REFINING COMPANY 841
United States Metals Refining Company and David
Rubin. Case 22-CA-6005
Party. Respondent filed an answer denying the commission
of unfair labor practices.2
June 25, 1975
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
KENNEDY
On February 25, 1975, Administrative Law Judge
Julius Cohn issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief, General Counsel filed an
answering brief, and Charging Party filed a brief in
support of the Administrative Law Judge's Decision.
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
and to adopt his recommended Order.
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 Administrative Law Judge and
hereby orders that Respondent, United States Metals
Refining Company, Carteret, New Jersey, its officers,
agents, successors, and assigns, shall take the action
set forth in the said recommended Order.
DECISION
STATEMENT OF THE CASE
Juuus COHN, Administrative Law Judge: This case was
heard at Newark, New Jersey, on November 25 and 26,
1974. The charge in this proceeding was filed on July 30
and served on July 31, 1974. Thereafter on October 16,
1974, the Regional Director for Region' 22 issued a
complaint alleging that United States Metals Refining
Company, herein called the Respondent or the Company,
violated Section 8(a)(1) and (3), of the Act by unlawfully
terminating David Rubin,' herein called the Charging
i The name of the Charging Party appears as amended at the hearing.
2 In its answer and at the hearing, Respondent urged that the complaint
be dismissed and the charge be deferred to arbitration in accordance with
the ¢,rievance and arbitration procedures of the collective-bargaining
agreement . Subsequent to the hearing , by letter dated December 12, 1974,
addressed to counsel for the General Counsel , and in its beef, Respondent
withdrew any plea in bar to the complaint based on the arbitrability of the
Changing Party's discharge under the collective-bargaining agreement.
3 After the close of hearing, by motion dated January 13, 1975,
Respondent moved to correct the transcript of th is proceeding. By letter
Issues
Whether the Charging Party was engaged in concerted,
protected activity on July 3, 1974.
If so, whether the Respondent discharged the Charging
Party because of the protected activity in which he had
been engaged.
All parties were given full opportunity to participate, to
introduce relevant evidence, to examine and cross-examine
witnesses, to argue orally, and to file briefs. All parties
submitted briefs which have been carefully considered.
Upon the entire record of the case,3 and from my
observation of witnesses and their demeanor, I make the
following:
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
The Company, a New Jersey corporation, maintains an
office and plant at Carteret, New Jersey, where it is
engaged in smelting, refining, and shipping nonferrous
metals and related products. During the 12 months
preceding the issuance of the complaint herein, the
Company caused to be manufactured at and distributed
from its Carteret plant products valued in excess of
$50,000, of which products valued in excess of $50,000
were shipped from said Carteret plant in interstate
commerce directly to States of the United States other than
New Jersey. The parties have stipulated and I find that the
Company is an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
H. THE LABOR ORGANIZATION INVOLVED
Local 837, United Steelworkers of America, AFL-CIO,
herein called the Union, is a labor organization within the
meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
The Company operates a refinery in Carteret, New
Jersey, where it is engaged as a smelter and refiner of
nonferrous metals, principally copper. The various process-
es are divided among 17 different departments, of which
the electrolytic department, located in the tankhouse and
described by company officials as the "heart of the plant,"
is the department involved in this case. The Company
employs some 1,600 hourly employees, 300 in the tank-
house. As indicated by the name of the department, the
dated January 23, 1975, counsel for the Charging Party objected to four
items of the many proposed changes . Finally by letter dated January 28,
1975, counsel for the Respondent replied to the objections set forth in the
Charging Party's letter . I have marked these documents ALJ Exhs. 1, 2, and
3, respectively, and hereby make them part of the record . I shall grant
Respondent's motion to correct the transcript except as to the four items to
which objection has been made. In agreement with counsel for the Charging
Party, I find that those suggested changes appear to involve a desire to
change testimony rather than a correction of erroneously transcribed
testimony.
218 NLRB No. 133
842 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
operation conducted there is an electrolytic-plating one in
which 500-pound anodes of impure copper are placed in
tanks containing an acid solution. Copper from the anodes
goes into the electrically charged acid solution and is
deposited on a starting sheet which becomes a cathode.
The floormen in the tankhouse are responsible for placing
the anodes into the tanks, positioning, and finally remov-
ing them. Section men insert the starting sheets, line them
up, and generally service the tanks so that short circuits do
not occur. The operation is a constant one, and to properly
service it, overtime is required daily in the tankhouse.
The hourly employees of Respondent have been repre-
sented since 1941 and the Union has been the collective-
bargaining representative since 1967.
During the morning of June 3 4 it became apparent that
the employees in the tankhouse were refusing to work
overtime. Employees were aggrieved by the Company's
omission of certain classifications from the overtime work
scheduled on the Saturday following the Memorial Day
holiday, and, as a result, during the week of June 3 all
tankhouse employees refused overtime work. Efforts to
resolve the grievance that week were fruitless and, on June
11, company officials met with the officers and executive
board of the Union and pointed out that the concerted
boycott was a contract violation which could render the
Union liable for damages.5 Officials of the Union then met
with the employees in the tankhouse and urged them to
discontinue the boycott, of overtime which was violative of
article XXI of the contract. The Union took further action
by removing the tankhouse steward, Slater, from his
position. Slater apparently opposed the Union's view and
advocated continuation of the ban on overtime. The
background and the facts in this case are in the main
uncontroverted but there is some difference among the
witnesses as to the duration of the boycott. A distillation of
the testimony indicates that, after the meeting of union
officials and rank-and-file, the floormen began accepting
overtime assignments while many section men continued
their refusal. The Charging Party, Rubin, asserts that
section men refused to work during the first and third
weeks in June, while he admits personally refusing
overtime during the second and fourth weeks as well.
There is no question, however, that the boycott was over
by July 1.
The collective-bargaining agreement expired June 30.
Negotiations for a new contract commenced in May and
culminated in agreement on June 29. A memorandum of
agreement was signed providing for ratification by the
membership of the Local on July 3 and, further, that upon
ratification the new agreement be effective as of July 1.
The agreement was first approved by the steering commit-
tee of the International and then ratified by the member-
ship on July 3. At the time of signing of the memorandum,
4 All dates hereinafter will refer to 1974 unless otherwise specified.
5 Art. XXI of the collective-bargaining agreement is a broad no-strike
provision which includes, "work stoppage , slowdown, boycott or any other
interference with the Company's business."
6 This according to the uncontradicted testimony of Schein. Counsel for
the General Counsel and the Charging Party contend that no contract was
in effect after June 30 and consequently art. XXI would not operate.
However , I credit Schein in this connection as there is no contrary evidence
and his statement is very plausible. Oral understandings of this nature are
William Moran, district director of the Union's Interna-
tional and John Schein, Respondent's director of industrial
and public relations, orally agreed that the old contract
would be continued in effect until the ratification.6
B. Facts
David Rubin was employed since January 3 as a section
man in the tankhouse. After several months he became
active with a group or caucus called "Fighting Times."
This is a group of employees having no formal organiza-
tion or membership; there are no elected officers; meetings
are held but not according to a particular schedule. No
dues are collected and expenses are defrayed by donations
received from employees. The participants write and
distribute pamphlets and leaflets among the employees.
According to Rubin, the purpose is to obtain a better
contract and create a fighting, democratic union. Rubin
testified, that, during the month of June, he brought copies
of four leaflets into the plant and distributed them among
tankhouse employees. The first three of these leaflets
clearly advocate the overtime boycott and exhort employ-
ees to refuse overtime. The fourth leaflet, dated June 28,
does not refer to the overtime question and relates to the
ongoing contract negotiations. While Rubin stated that, in
addition to his distributions, he urged people not to work
overtime, neither he nor any other employee received
discipline for their refusal to work overtime. Nor was
Rubin or anyone else involved in the distribution of leaflets
urging the boycott of overtime disciplined for their
participation. On at least one occasion, June 20, Rubin was
observed by Refinery Superintendent Ziro in the tank-
house distributing leaflets.? During his distribution of the
June 28 leaflet, Foreman Osolinski asked Rubin for a
leaflet and was given one .8
Rubin worked on a shift commencing at 9:30 a.m. On
July 3, he went to the union hall, voted in the ratification
referendum, and, at 9 a.m., went through the plant gates
carrying a brown paper shopping bag which contained 300
leaflets . A security guard stopped him and asked to look
into the bag.9 Rubin showed him the bag and its contents
and was then detained while Chief of Security Sanders
brought one of the leaflets to F. R. Whiting, assistant
director of industrial and public relations. Whiting testified
that, after the second leaflet had been distributed in June,
he instructed Sanders to look for men bringing in leaflets.
Rubin was the first to be apprehended. After reading the
leaflets, Whiting directed Sanders to inform Rubin he was
suspended for 5 days subject to discharge. This was done
and confirmed by telegram and thereafter Rubin was
advised by telegram dated July 8 of his discharge. Whiting
stated that he made the decision in this regard after
discussion with Ziro and Schein. There is no conflict as to
not uncommon and the parties thereto were not exactly neophytes.
Accordingly, I find that art . XXI was effective from July 1 until ratification
on July 3.
7 Ziro so testified.
B This uncontradicted testimony of Rubin is credited; Osolinski did not
testify at the hearing.
9 Company witnesses testified that this was standard procedure because
of problems with alcohol and drugs.
U.S. METALS REFINING COMPANY 843
the essential facts and circumstances of Rubin's discharge
as related above.
The leaflet brought into the plant by Rubin on July 3 is a
single sheet headed by the words "VOTE NO!". The first
paragraph castigates the union leaders upon the results
obtained in the proposed contract. The second paragraph
compares the gains achieved with what Fighting Times
believed should have been obtained. The next portion of
the leaflet is headed by the words "FIGHT FOR A GOOD
CONTRACT" and then reads as follows:
It is becoming clearer and clearer where the union
leaders stand. They kept us in the dark all through the
negotiations and refused to let us get involved. When
the Tank House workers started the contract fight early
by banning overtime, the union leaders jumped to the
company's defense. And at Local 365 (ASARCO) it was
the same story. The union gave the company a 2 week
extension, knowing that extensions only benefit the
company, the workers there wildcatted. To win a good
contract the rank and file has to be involved, and it's
not too late for us to do that. VOTE NO! Turn down
this sell out! [Emphasis supplied.]
We must stand united against this company and any
sellout union leaders. We must go on strike! ! We can
only win real gains if we rely on our own strength.
Because of lack of time, this is our first and hopefully
last leaflet that's not in Spanish.
FIGHTING TIMES
Whiting testified that the leaflet, particularly as it
contained a reference to the overtime ban, provided him
with sufficient evidence "to tie an individual in with aiding
and abetting encouraging . . . overtime boycott in the
plant." He decided that he had proof of a violation of
article XXI of the contract and ordered Rubin's suspension
and finally his discharge.
C. Analysis
Section 7 of the Act guarantees employees the right to
engage in "concerted activities for the purpose of collective
bargaining or other mutual aid or protection." The initial
question presented is whether Rubin's activity on July 3 in
distributing the leaflet entitled "VOTE NO" was protected
under the Act. It has been held that attempts by union
members to bring about changes in a union's attitude
concerning negotiations for a contractor to urge the union
to seek greater benefits constitute concerted activity
protected by the Act.10 Respondent not only recognizes
this to be so, but also does not contend that Rubin violated
any rule with respect to distribution of literature. Respon-
dent does contend, however, that the leaflet in question
contained material which rendered its distribution unpro-
tected. It relies on the sentence in the leaflet referring to the
overtime ban which reads "When the Tank House workers
started the contract fight early by banning overtime, the
union leaders jumped to the company's defense." Respon-
dent argues that this is an "approving" reference to the
10 N.L.R.B. v. Nu-Car Carriers, Inc., 189 F 2d 756, 760 (C.A 3, 1951);
Samsonite Corporation, 206 NLRB 343 (1973).
11 I have previously found the contract to have continued in effect on
July 3.
overtime boycott, a call for its renewal. In addition, it
contends that a further reference in the leaflet to a wildcat
strike at a competitor's plant constitutes encouragement of
a wildcat at Respondent. To urge employees to engage in a
concerted refusal to boycott overtime and, in addition, to
call upon them to engage in a wildcat strike, would be
violations of article XXI of the contract,11 and therefore
the distribution of a leaflet containing such material would
not be a protected activity. I have read the leaflet carefully
and do not so construe its language. The leaflet strongly
appeals to the employees to "vote no" and reject the
proposed contract. In doing so, it engages in a diatribe
against the union leaders. The quoted reference to the
overtime ban is only in connection with the claim of
"Fighting Times" that the union leaders support the
Company rather than the employees. There is no language
in the leaflet calling for a revival of the overtime boycott.
Indeed, all parties agree that this activity had ceased by
July 1, and Refinery Superintendent Ziro testified that by
July 3 it was over and dead. The issue before the employees
at this point was the proposed agreement, not overtime.
Nor do I deem the reference to a wildcat at a competitor a
call for illegal strike activity at Respondent's plant. The
leaflet does, in fact, call for a strike. But in the chronology
of events as they were scheduled in this case, a strike would
not be illegal. The leaflet appeals for a "No Vote" in the
referendum on July 3. While I have found that the parties
agreed to a continuance of the contract until the ratifica-
tion vote, the old contract would expire at the conclusion
of the poll in either event. Thus a no vote would leave the
Union free to strike.12 Of course, if the proposed
agreement were ratified, article XXI would be viable as it
carried over and a strike would be illegal. The appeal to
strike, in the context of the language as used in the leaflet is
the result of a no vote, its principal theme. Accordingly, I
find that the material and subject matter contained in the
leaflet is not such as to render its distribution unprotected.
Rubin, therefore, was engaged in protected activity on July
3.
The principal contention of Respondent does not,
however, rest on whether Rubin was engaged in an
unprotected activity on July 3, but rather that such activity,
coupled with the substance of the leaflet, provided the
evidence of his responsibility for the ban on overtime
earlier in the month. Thus, Respondent claims that it
discharged Rubin for his participation and his appeals to
other employees to join in the boycott of overtime during
the month of June. It states that, while supervisors and
managers suspected Rubin before, it now had concrete
evidence of his involvement in activity violative of article
XXI. I am not persuaded by this argument.
Respondent admits that it was long suspicious of Rubin's
activity and that of other employees in promoting the
overtime ban. It claims it could not proceed against them
because its information was based on ^ hearsay from
employees and it would be unwise to rely on them as
witnesses in any proceeding. However, the testimony of
Respondent's witnesses goes beyond this. Thus, Refinery
12 The Union had been previously authorized to strike if agreement was
not concluded.
844 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Superintendent Ziro personally saw Rubin pass out three
or four copies of the June 20 "Fighting Times" leaflet and
thereafter Osolinski, his foreman, observed Rubin with a
quantity of the June 28 leaflet and obtained a copy from
him. This evidence is direct, not hearsay. Moreover, these
leaflets , particularly the one of June 20, specifically
advocated the ban on overtime. Respondent did not seek
to punish Rubin after those occasions, nor did it discipline
any employee for either advocating or engaging in the June
boycott. Indeed, none of Respondent's witnesses could
recall any instance of an employee being disciplined for
refusal to work overtime although all remembered over-
time boycotts which occurred prior to June. It is quite
clear, therefore, that the Respondent for its own reasons
had determined not to invoke article XXI with respect to
the employees' refusal to work overtime in June, and I do
not credit the assertions of its witnesses that such decision
was based on insufficiency of evidence. In view of its
reluctance to use the direct evidence of Rubin's involve-
ment, Respondent's later reliance on the language of the
leaflet of July 3, which I have found to be concerned with
ratification, to provide evidence of his involvement in the
overtime boycott, appears somewhat strained.
I have already found that the activity in which Rubin
engaged on July 3 was protected; I now find, in view of the
above, that Respondent discharged him because he sought
to bring into, the plant 300 leaflets urging employees to vote
against ratification of the proposed contract, rather than a
belated reaction to his conduct in distributing leaflets
earlier in June which advocated the ban on overtime. By so
doing, Respondent violated Section 8(a)(1) and (3) of the
Act.
that period. Such backpay shall be computed on a
quarterly basis in the manner prescribed in F. W.
Woolworth Company, 90 NLRB 289 (1950), and shall
include interest at 6 percent as provided in Isis Plumbing &
Heating Co., 138 NLRB 716 (1962).
It is further recommended that Respondent be ordered
to preserve and, upon request, make available to the Board
or its agents, for examination and copying, all payroll
records, social security payment records, timecards, per-
sonnel records and reports, and all other records necessary
to analyze the amount of backpay due.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. By discharging and discriminating against David
Rubin because of his union or other concerted activities,
Respondent violated Section 8(a)(3) of the Act.
4. By the foregoing conduct, Respondent has interfered
with, restrained, and coerced employees in the exercise of
their rights guaranteed to them by Section 7 of the Act, in
violation of Section 8(a)(l) of the Act.
5. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
Upon the foregoing fmdings of fact and conclusions of
law, and upon the entire record, and pursuant to Section
10(c) of the Act, I hereby issue the following recommend-
ed:
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section III,
above, occurring in connection with the operations of
Respondent 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
Having found that Respondent has engaged in certain
unfair labor practices, I shall recommend that it be ordered
to cease and desist therefrom and to take certain
affirmative action designed to effectuate the policies of the
Act.
Having found that Respondent discharged David Rubin
in violation of Section 8(a)(3) and (1) of the Act, I shall
recommend that Respondent be ordered to offer him
reinstatement and make him whole for any loss of pay
resulting from his discharge, by payment to him of a sum
of money equal to the amount he normally would have
earned as wages from the date of his discharge to the date
on which reinstatement is offered , less net earnings during
ORDER 13
Respondent, United States Metals Refining Company,
Carteret, New Jersey, its officers, agents, successors, and
assigns, shall:
1. Cease and desist from:
(a) Discharging or otherwise discriminating against any
employee because of his union or other concerted
activities.
(b) In any like or related manner interfering with,
restraining, or coercing its employees in the exercise -of
their rights guaranteed to them in Section 7 of the Act.
2. Take the following affirmative action to effectuate
the policies of the Act:
(a) Offer David Rubin immediate and full reinstatement
to his former job or, if his job no longer exists, to a
substantially equivalent position, without prejudice to his
seniority or other rights and privileges, and make him
whole for his loss of earnings in the manner set forth in the
section of this Decision entitled "The Remedy."
(b) 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.
13 In the event no exceptions are filed as provided by Sec. 102.46 of the 102.48 of the Rules and Regulations , be adopted by the Board and become
Rules and Regulations of the National Labor Relations Board , the findings , its findings, conclusions, and Order , and all objections thereto shall be
conclusions , and recommended Order herein shall, as provided in Sec. deemed waived for all purposes.
U.S. METALS REFINING COMPANY
(c) Post at its Carteret, New Jersey, plant copies of the
attached notice marked "Appendix."1414 Copies of said
notice, on forms provided by the Regional Director for
Region 22, 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 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.
(d) Notify the Regional Director for Region 22, in
writing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
14 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words m 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."
APPENDIX
845
NOTICE To EMPLOYEES -
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had a chance to give
evidence, it has been found that we violated the National
Labor Relations Act, as amended, and we have been
ordered to post this notice.
WE WILL NOT discharge or otherwise discriminate
against any employee for engaging in union or other
concerted activities.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees in the exercise of
their rights guaranteed in Section 7 of the Act.
WE wn.L offer full reinstatement to David Rubin
with backpay plus 6-percent interest.
UNITED STATES METALS
REFINING COMPANY