NOTICE: This
opinion is subject to formal revision before publication in the bound volumes of NLRB decisions. Readers are requested to notify the Executive
Secretary, National Labor Relations Board,
Alcoa, Inc. and
Local 115A, United Steelworkers, AFL–CIO–CLC, a/w United Steel, Paper & Forestry,
Rubber, Manufacturing, Energy, Allied Industrial & Service Workers International
Union, AFL–CIO–CLC. Cases 25–CA–29487, 25–CA–29611, 25–CA–29649, 25–CA–29701,
and 25–CA–29860
August 29, 2008
DECISION AND ORDER
By Chairman Schaumber and Member Liebman
On July 28, 2006, Administrative Law Judge Arthur J. Amchan issued the attached decision. The Respondent filed exceptions and a supporting brief, the General Counsel filed an answering brief,1 and the Respondent filed a reply brief; the General Counsel filed cross-exceptions and a supporting brief, and the Respondent filed an answering brief.
The National Labor Relations Board has considered the decision and the record in light of the exceptions
and briefs and has decided to affirm the judge’s rulings, findings, and
conclusions only to the extent consistent with this Decision and Order, and to adopt
the recommended Order as modified and set forth in full below.2
Introduction
As discussed below, we reverse the judge’s finding that the Respondent violated Section 8(a)(5) and (1) of the Act by unilaterally changing its leave policy to prohibit unit employees from taking unpaid leave to attend monthly union meetings. In addition, we reverse the judge’s findings of independent violations of Section 8(a)(1), which were based on his determination that all of the measures the Respondent took to enforce its new leave policy violated the Act. We also reverse the judge’s finding that the Respondent violated Section 8(a)(3) and (1) of the Act by contracting out the Total Predictive Maintenance (TPM) event at its facility in April 2005.3 In addition, we reverse the judge’s finding that the Respondent did not violate Section 8(a)(3) and (1) of the Act when it suspended Mark Hewitt for 3 days for using profanity during an August 4 disciplinary meeting. We affirm the judge’s finding, but on a different rationale than the judge applied, that the Respondent violated Section 8(a)(3) and (1) by suspending Hewitt for an additional 27 days for his profane comments.4
i. the respondent’s change in leave policy
A. Factual Background
The Respondent processes aluminum
products at its facility in
In early 2005, the Respondent
was experiencing high demand for its products, and its management determined
that over 2100-man hours of production were being lost due to employees leaving
work early for the monthly meeting. At a
meeting on March 8, Pamela Leonard, the human resources manager for the Respondent’s
On March 31, Leonard reiterated
her request to Misner “for a proposal on or alternative to shutting down equipment
to excuse employees to leave work to attend these meetings . . . .” Misner replied on April 8, requesting
information concerning the man hours lost due to employees leaving work early
for the meetings. Leonard responded by
providing a list of equipment that the Respondent claimed had been shut down
while employees attended the most recent meeting. During a meeting on April 28, Leonard, for
the third time, requested that Misner submit a proposal regarding the union
meetings. Misner replied that the
On May 18, Leonard told Misner
that effective June 1, the Respondent would discontinue its practice of excusing
employees from work to attend the monthly union meetings. Leonard also restated her position that this
issue was not a mandatory subject of bargaining. The Respondent subsequently
posted a notice to employees stating that attendance at union meetings would no
longer be excuse
B. Judge’s Decision
The judge found that the
Respondent violated Section 8(a)(5) and (1) by unilaterally changing its
leave policy to prohibit unit employees from taking unpaid leave to attend the
monthly union meetings. The judge reasoned that leave or attendance policies are
mandatory subjects of bargaining and therefore the Respondent was required to
bargain over its decision to prohibit employees from taking unpaid leave to
attend the union meetings. The judge found that the Respondent’s change in
policy was material and substantial because it prevented union members who
wanted to attend the monthly meetings from being able to discuss the terms and
conditions of their employment with other unit employees. The judge concluded that the Respondent did
not bargain over this issue because it did not offer the Union anything, but
simply asked the
Based on this violation, the judge further found that the Respondent
violated Section 8(a)(1) by (1) threatening unit employees with discipline if
they left the Respondent’s facility early on the first shift on June 21; (2)
informing employees that it would engage in surveillance to determine who was
leaving early on that date, and by engaging in surveillance on June 21; and (3)
interrogating Mark Hewitt and Jim Howard as to why they left the facility early
on June 21. The judge reasoned
that all of the Respondent’s actions in enforcing its unilateral change in its
leave policy violated the Act. We reverse
the judge and dismiss each of these complaint allegations.
Analysis
Section 8(a)(5) of the Act
requires an employer to provide its employees’ representative with notice and
an opportunity to bargain before instituting changes in any matter that
constitutes a mandatory bargaining subject.
NLRB v. Katz, 369
We agree with the judge that the Respondent had a past
practice of allowing employees to take unpaid leave to attend the monthly union
meetings, that this practice had become part of their terms and conditions of employment,
and that the Respondent’s change to this practice was material, substantial,
and significant. However, contrary to
the judge, we find that the Respondent met its obligation
to timely notify the Union of its desire to change its leave policy and to offer the
Where a union receives timely
notice that an employer intends to change a condition of employment, it must
promptly request that the employer bargain over the matter. To be timely, the employer’s notice must be
given sufficiently in advance of the actual implementation of the change to
allow a reasonable and meaningful opportunity to bargain. Ciba-Geigy
Pharmaceutical Division, supra.
Here, through a series of communications well in advance of the change,
the Respondent clearly signaled to the
The judge reasoned that the
Respondent failed to bargain because it did not offer anything to the Union,
but merely asked the
Having so found, we also reverse
the judge’s findings of independent violations of Section 8(a)(1), all of which
were based on his determination that all of the measures that the Respondent
took to enforce its new leave policy violated the Act. Thus, we dismiss both the 8(a)(5) and the
independent 8(a)(1) allegations centering on the Respondent’s discontinuance of
its practice of excusing employees to attend the
ii. the respondent’s subcontracting of tpm work
A. Factual Background
In the spring of 2005, the
Respondent conducted its first TPM event at the
B. Judge’s Decision
The judge found that the Respondent violated Section
8(a)(3) and (1) in contracting out the TPM event to retaliate against the
Analysis
We disagree with the judge and
dismiss this complaint allegation. Under
Wright Line, 251 NLRB at 1083, the
General Counsel must first prove, by a preponderance of the evidence, that
protected or union conduct was a motivating factor in the employer’s adverse action. Once the General Counsel makes a showing of
discriminatory motivation by proving protected activity, employer knowledge of
the activity, and animus against it, the burden of persuasion shifts to the
employer to demonstrate that the same action would have taken place even in the
absence of the protected conduct. 251 NLRB at 1089. Here, the General Counsel has not met
his initial burden under Wright Line of
establishing that the Respondent’s decision to contract out the TPM work was unlawfully motivate
The judge inferred animus from what he deemed a lack of “first
hand evidence that the decision to contract out the TPM event” could be
attributed to anything other than the
iii. the respondent’s suspension of mark hewitt
A. Factual background
Mark Hewitt has worked as a
crane operator in the Respondent’s tube mill department for 27 years. Hewitt is the financial secretary of the
Union, also serving on the
The Respondent discussed
disciplining Cripe for an incident that involved Cripe’s use of profanity to Foster. After Hewitt arrived, he urged Foster to be
lenient in disciplining Cripe, but Foster indicated that he thought a
suspension was appropriate. Hewitt then
pointed at Foster, who was sitting across a table from him, and said, “If you
tell this egotistical f—er to quit
talking to people the way he does, this wouldn’t happen.” Thomas cut Hewitt off and later that day
issued Hewitt a 3-day suspension for insubordination and abusive and offensive
behavior to a supervisor. The next day, Thomas issued Hewitt a 27-day
suspension for a total of 30 days without pay. The Respondent based the
additional 27 days on the fact that Hewitt had previously received an oral
counseling on May 5 for using the same profanity over the radio when
complaining about the way maintenance employees had attached a motor to his
crane.
B. Judge’s Decision
The judge found that the
Respondent did not violate Section 8(a)(3) and (1) in suspending Hewitt for the
initial 3 days. The judge explained that although Hewitt was engaged in Section
7 activity when he made the remark for which he was suspended, Hewitt lost the
protection of Section 7. Applying Atlantic Steel Co., 245 NLRB 814
(1979), the judge reasoned that Hewitt’s outburst
was not provoked by an unfair labor practice.
The judge further observed that Hewitt’s
outburst was unwarranted and occurred in a grievance hearing that concerned
Cripe’s alleged insubordinate use of profanity toward Foster, who was both Cripe’s and Hewitt’s supervisor. Thus, the judge concluded that Hewitt’s outburst would undercut
Foster’s authority and his objective in disciplining Cripe for his use of
profanity. The judge further found, however, that
Hewitt’s additional 27-day suspension was unlawful under a Wright Line analysis. For the reasons
set out below, we find that the entire 30-day suspension was unlawful.
Analysis
Because it is undisputed that Hewitt’s discipline was
precipitated by his conduct at the August 4 meeting, the appropriate analysis
is whether the conduct for which he was disciplined was initially protected
under the Act and, if so, whether he lost that protection at any point. See Hahner, Foreman & Harness, Inc., 343
NLRB 1423, 1425 fn. 8 (2004).8 It is clear that
Hewitt was acting in his representative capacity as shop steward when he confronted
Foster, and that he was engaged in protected conduct at the time. To determine whether an employee who is otherwise engaged
in protected activity loses the protection of the Act due to opprobrious
conduct, the Board considers the following factors: (1) the place of the
discussion; (2) the subject matter of the discussion; (3) the nature of the
employee’s outburst; and (4) whether the outburst was in any way provoked by an
employer’s unfair labor practice. Atlantic
Steel, 245 NLRB at 816. Applying
these factors, we find that Hewitt ‘s behavior was not so “offensive,
defamatory or opprobrious as to remove it from the protection of the Act.” Ben
Pekin Corp., 181 NLRB 1025 (1970), enfd. 452 F.2d 205 (7th Cir. 1971).
Addressing the first factor, we
find that the location of Hewitt’s conduct weighs in favor of finding his
conduct protected. Hewitt’s conduct did
not take place in a work area and thus it was not disruptive of the work
process. Rather, his conduct occurred at
a meeting in which Hewitt was acting in a representative capacity on behalf of
an employee facing possible discipline.
This was an appropriate forum for a union steward to express his views regarding
that employee’s discipline.
With regard to the second
factor, the subject matter of Hewitt’s remarks also weighs in favor of protection. Hewitt’s outburst clearly involved “terms and
conditions of employment” of particular concern to Hewitt as the union steward
responsible for protecting a unit employee’s rights under the collective-bargaining
agreement. His remark was an expression
of his view that Cripe was being unfairly suspended.
The third factor, the nature of
the employee’s outburst, does not weigh against protection. In so concluding,
we note that the Act allows employees, pertinently including those like Hewiit
who are acting in a representative capacity, some leeway in the use of intemperate
language where such language is part of the “res gestae” of their concerted
activity. Thor Power Tool Co., 148 NLRB 1379, 1380 (1964), enf
Finally, with respect to the
fourth factor, Hewitt’s outburst was not provoked by any unlawful conduct.
In sum, under Atlantic Steel, supra, we find the factors of place, subject matter, and nature of the outburst favor protection, while only the factor of provocation does not.10 Thus, contrary to the judge, we find that Hewitt did not lose the Act’s protection when he spontaneously uttered a single profanity. Accordingly, we find that the Respondent violated Section 8(a)(3) in suspending Hewitt for 30 days.
ORDER
The National Labor Relations Board adopts the recommended
Order of the administrative law judge as modified and set forth in full below
and orders that the Respondent, Alcoa, Inc.,
1. Cease and desist from
(a) Suspending, disciplining, or otherwise discriminating against employees because of their union or other protected activities.
(b) Refusing and failing to provide the Union with requested
information that is relevant and necessary to the Union’s performance of its
duties as collective-bargaining representative of the Respondent’s hourly
employees, including the disciplinary records of salaried employees who have
committed violations of the Respondent’s rules that are comparable to those for
which unit employees have been discipline
(c) Refusing and failing to provide the Union with requested
information that the Respondent deems confidential, without negotiating with
the
(d) In any like or related manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of the Act.
(a) Within 14 days from the date of this Order, rescind the unlawful suspension imposed on Mark Hewitt for his conduct on August 4, 2005.
(b) Make Mark Hewitt whole for any loss of earnings or other benefits he may have suffered as a result of the unlawful suspension imposed for his conduct on August 4, 2005. Backpay shall be computed on a quarterly basis as prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), plus interest as computed in New Horizons for the Retarded, 283 NLRB 1173 (1987).
(c) Within 14 days from the date of the Board’s Order, remove from its files any reference to the unlawful suspension of Mark Hewitt, and within 3 days thereafter notify him in writing that this has been done and that the unlawful suspension will not be used against him in any way.
(d) Furnish to the Union in a timely manner the information
requested by the Union in January 2005, including the disciplinary records of
salaried employees who have committed violations of the Respondent’s rules that
are comparable to those for which unit employees have been discipline
(e) Negotiate with the
(f) Preserve and, within 14 days of a request, or such additional time as the Regional Director may allow for good cause shown, provide at a reasonable place designated by the Board or its agents, all payroll records, social security payment records, timecards, personnel records and reports, and all other records, including an electronic copy of such records if stored in electronic form, necessary to analyze the amount of backpay due under the terms of this Order.
(g) Within 14 days after service by the Region, post at
its
(h) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a responsible official on a form provided by the Region attesting to the steps that the Respondent has taken to comply.
Dated,
Peter C. Schaumber,
Chairman
Wilma B. Liebman, Member
(seal) National
Labor Relations Board
APPENDIX
Notice To Employees
Posted by Order
of the
National Labor Relations
Board
An Agency of the
The National Labor Relations Board has found that we violated Federal labor law and has ordered us to post and obey this notice.
federal law gives you the right to
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities.
We will not suspend, discipline, or otherwise discriminate against employees because of their union or other protected activities.
We will not refuse or fail to provide the Union with requested information that is relevant and necessary to the Union’s performance of its duties as collective-bargaining representative, including the disciplinary records of salaried employees who have committed violations of our rules that are comparable to those for which unit employees have been disciplined.
We will not refuse or fail to provide the Union with information it has requested, which we deem confidential, without negotiating with the Union to seek an accommodation regarding these documents.
We will not in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act.
We will, within 14 days from the date of the Board’s Order, rescind the suspension given to Mark Hewitt for his conduct at a grievance meeting on August 4, 2005.
We will make Mark Hewitt whole for any loss of earnings or other benefits he may have suffered as a result of the suspension imposed for his conduct at a grievance meeting on August 4, 2005, less any net interim earnings, plus interest.
We will, within 14 days from the date of the Board’s Order, remove from our files any reference to the unlawful suspension of Mark Hewitt, and we will, within 3 days thereafter, inform Mark Hewitt in writing that this has been done and that the suspension will not be used against him in any way.
We will
provide to the
We will
negotiate with the
Alcoa, Inc
Steve Robles, Esq., for the General Counsel.
Marcia A.
Mahony, Esq. (Kightlinger and Gray, LLP), of
Chris
Bolte, Staff Representative, of Jasper,
DECISION
Statement of the Case
Arthur J. Amchan, Administrative Law Judge. The first four
dockets in this case were tried in
On the entire
record, including my observation of the demeanor of the witnesses, and after
considering the briefs filed by the General Counsel and Respondent, I make the
following
Findings of Fact
i. jurisdiction
Alcoa, Inc., a
corporation, processes aluminum products at its facility in Lafayette, Indiana,
where it annually purchases, receives, sells, and ships good valued in excess
of $50,000 directly from or to points outside the State of Indiana. Respondent
admits and I find that it is an employer engaged in commerce within the meaning
of Section 2(2), (6), and (7) of the Act and that the
ii. alleged unfair labor practices
Alleged Violations
Related to Respondent’s Change in
Policy which no Longer gave Employees an Excused
Absence to Attend Monthly Union Meetings
Many of the
alleged violations in this case stem from Respondent’s decision in the spring
of 2005 to cease its practice of allowing employees an excused absence to
attend the
For at least 10
years prior to the Union’s June 21, 2005 meeting, employees working on the
first shift (7 a.m. to 3 p.m.) were allowed to clock out up to 2 hours early to
attend the monthly union meeting, which began at 1:30 p.m. and generally ran
about 1-1/2 hours. Employees were not
paid for this absence but it did not count against them on their attendance
record. Some employees started work
early so that they could work an 8-hour shift and attend the union
meeting. Prior to June 21, an employee
had only to inform his or her supervisor the day of the union meeting that he
or she was going to be leaving early, or the day before if he or she was to
work a flexible schedule.[2]
In the late
winter of 2005, Alcoa’s management concluded that over 2100-man hours of
production were being lost as a result of employees leaving work early to
attend the monthly union meeting. As
business was picking up dramatically in 2004 and 2005, Respondent apparently
decided that this was luxury that it could no longer afford.
On March 8,
2005, Pamela Leonard, the human resources manager for Alcoa’s
Misner told
Leonard that she was “rocking the boat.”
He also asked Leonard if she wanted to negotiate about such a change.
Leonard responded that she did not have to do so.[3] Misner also told Leonard that for many
years, Respondent had considered an employee’s early departure for union
meetings to be an excused absence and that he considered this matter to be part
of Respondent’s attendance policy. He
told Leonard that the
On March 31,
2005, Leonard emailed Misner (GC Exh. 15).
She mentioned her March 8, discussion with Misner about “the number of
hours the company was excusing employees to attend regular union meetings. At that time I asked you for a proposal on or
alternative to shutting down equipment to excuse employees to leave work to
attend these meetings.”
Misner responded
on April 8, by asking for documentation regarding the man hours lost. Leonard responded the same date with a list
of equipment that Respondent claims was shut down in order to excuse employees
to attend the union meeting on March 15, 2005.
At a meeting of April 28, Leonard again asked Misner for a proposal
regarding union meetings. Misner
responded that the
On May 18,
Leonard informed Misner that, effective June 1, 2005, regular union membership
meetings would no longer be an excused or approved absence. She also reiterated her view that this issue
was not a mandatory subject of bargaining (GC Exh. 11). Leonard drafted a notice to employees, dated
May 19, informing them that attendance at union meetings would no longer be
excused (GC Exh. 2), which she e-mailed to management personnel and asked that
they post it in the facility.
Leonard also
disseminated “Supervisor Guidelines for Responding to Leave Without Permission”
(GC Exh. 5), sometime prior to June 21.
These guidelines directed supervisors to tell employees that union
meetings were no longer excused absences and that they may be subject to
discipline up to and including discharge, if they left early to attend. The guidelines also directed supervisors to
stand by each timeclock to give employees a final warning and to keep a record
of which employees left the plant.
Although not explicit, these guidelines applied only the day of the next
scheduled union meeting, June 21, 2005.
With a few exceptions for employees whose flexible schedules had been
approved in advance, employees were also not allowed to work flexible schedules
that day to attend the union meeting.
On June 20,
Respondent disseminated a letter under the signature of Plant Manager Robert
Morrison reiterating this new policy and informing employees that Morrison had
been advised of rumors of a mass walkout.[5] The Morrison letter (GC Exh. 3) advised
employees that Respondent may consider leaving the plant without permission on
June 21, to constitute insubordination, as well as a violation of the parties’
collective-bargaining agreement. In this
letter, Morrison informed employees that if they left the plant early without
permission to attend the union meeting, they would be subject to discipline up
to and including discharge.[6]
Pamela Leonard
sent an e-mail to Union President Misner on the afternoon of June 20 asking him
to follow the union business call-out procedure to enable union executive board
and grievance committee chair people to attend the
On June 21, at
least some supervisors warned employees of the potential consequences of
clocking out early that day. Some
supervisors also stationed themselves by the timeclocks to document which first-shift
employees left work early. Five
employees did so. Two of these, Mark
Hewitt and James Howard, were summoned to a meeting with management officials,
including Leonard, on June 23.
Leonard advised
Hewitt that she was investigating possible insubordination. She asked him why he left early on June
21. Hewitt told Leonard that he left to
run some personal errands and then to attend the union meeting in his capacity
as a union official. She made similar inquires
to Howard, who told her that he attended to personal errands, but did not
attend the union meeting. Respondent did
not take any disciplinary action against any first-shift employee for leaving
work early on June 21. Approximately 10–12
employees attended the
Analysis
First of all,
Respondent was required to bargain over its decision to prohibit employees from
taking unpaid leave to attend union meetings.
Leave or attendance policies are a term and condition of employment and
thus are mandatory subjects of bargaining, Kendell
College of Art, 288 NLRB 1205, 1213 (1988).
Alcoa had an
established practice of allowing employees to take unpaid leave to attend the
monthly union meetings. During the life
of a collective-bargaining agreement, an employer may not unilaterally change a
term or condition of employment, not covered by the agreement, which has become
an established practice, Dow Jones &
Co., 318 NLRB 574 (1995).[7]
A unilateral
change in leave policies is unlawful if it is material, substantial and significant,
Flambeau Arnold Corp., 334 NLRB 165
(2001); Toledo Blade Co., 343 NLRB 385
(2004). Given the fact that the Respondent’s
change in policy prevented union members who wished to attend their monthly
union meeting the opportunity to exchange their views regarding the terms and
conditions of their employment with all similarly motivated employees from all
three shifts, I find that Respondent’s unilateral change was material,
substantial and significant. Indeed, the
facts herein are similar in this regard to Dow
Jones & Co, supra, in which
the Board found that an employer violated Section 8(a)(5) in changing its
practice of allowing the union to use its premises for union meetings.
Respondent
contends that it bargained to impasse.
However, Respondent clearly did not offer the union notice and an opportunity
to bargain over the proposed change in leave (attendance) policy. Respondent gave the union notice that it
wanted the
Respondent violated Section 8(a)(1) as alleged
in complaint paragraphs 5(a) and (b), by threatening unit employees with discipline
if they left Respondent’s facility early on the first shift on June 21, 2005,
and by informing employees that it would engage in surveillance, and by engaging
insurveillance, to determine who was leaving early on June 21. Respondent also violated Section 8(a)(1), as
alleged in paragraph 5(c), by interrogating Mark Hewitt and Jim Howard as to
why they left the facility early on June 21 and whether or not they attended
the union meeting on that date.
It is
uncontroverted that Respondent threatened employees with discipline, up to and
including discharge if they left the
Respondent has
defended its conduct in part on the grounds that it had reason to believe that
a mass walkout was going to occur on the afternoon of June 21. I find that Respondent did not have a
reasonable basis for this belief. This
rumor appears to have originated within management and then been shared with
some unit employees.
Extrusion Plant
Manager David Musi, who did not testify about this rumor, sent an email to
Pamela Leonard on May 19, 2005, regarding a conversation with unit employee
Jerry Weaver, who was not a witness at this hearing. According to the e-mail (R. Exh. 31),[8]
Weaver told Musi that employees would clock out at 11 a.m. rather than at 1
p.m. on union meeting days if Respondent no longer excused employees to attend
the monthly union meeting. First of all,
the only evidence that Weaver said the above to Musi is classic hearsay and
entitled to no weight. Secondly, even on
their face, Weaver’s statements did not indicate that more employees would
leave the plant to attend the
Respondent Subcontracts
the Total Predictive
Maintenance (TPM) work on the 5-inch drive
shaft cell in the tube mill
Paragraphs 6(a)
and 9 of the complaint allege that Respondent violated Section 8(a)(3) and (1)
of the Act by subcontracting the cleaning work associated with a total predictive
maintenance (TPM) event scheduled for the 5-inch drive shaft cell in the tube
mill. The General Counsel alleges that
Respondent violated the Act because the decision to subcontract was discriminatorily
motivated. He does not allege a Section
8(a)(5) violation and concedes that the parties’ collective-bargaining
agreement permits Respondent to subcontract this work. Respondent concedes that this is bargaining
unit work.
In the spring of
2005, Respondent planned the first ever TPM event at the
The
Analysis
The General
Counsel argues that Respondent violated Section 8(a)(3) and (1) in that it
essentially retaliated against the
The record,
however, establishes no such nondiscriminatory business purpose. Respondent relies completely on the hearsay
testimony of Human Resources Director Pamela Leonard. She testified that she first considered
contracting out the TPM event when she “realized that the union was not going
to be agreeable either to a contractual remedy and at the point where the department
manager said we can’t do it with the resources we have, you know, we will miss
making product and miss shipments if we pull from other areas to bring people
in to open it up, open up the overtime. [Tr. 433.]”
Thus, there is
no first hand evidence that the decision to contract out the TPM event was due
to anything but Respondent’s reaction to the Union’s refusal to allow
supervisory employees to perform bargaining unit work. I thus find that Respondent violated Section
8(a)(3) and (1) as alleged in the complaint.
In order to
prove a violation of Section 8(a)(3) and (1), the General Counsel must
generally make an initial showing that (1) the employee was engaged in protected
activity; (2) the employer was aware of the activity; and (3) that animus towards
the protected activity was a substantial or motivating reason for the employer’s
action. Once the General Counsel makes
this initial showing, the burden of persuasion shifts to the Respondent to
prove its affirmative defense that it would have taken the same action even if
the employee had not engaged in protected activity, Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (lst Cir.
1981); La Gloria Oil & Gas Co., 337 NLRB 1120 (2002).
In the instant
case, the General Counsel has established that represented employees engaged in
protected activity by insisting that bargaining unit work be performed by
bargaining unit employees. Respondent
was aware of this protected activity and bore animus towards the
Respondent’s Suspension of Mark Hewitt
The General
Counsel alleges that Respondent violated Section 8(a)(3), (4), and (1) in
suspending Mark Hewitt for 30 days on August 4 and 5, 2005. Mark Hewitt is a crane operator in Respondent’s
tube mill department. He has worked at
the
On the morning
of August 4, 2005, bargaining unit employee Kevin Cripe asked Hewitt to
represent him at a disciplinary meeting.
Hewitt arrived at the meeting after it started. Aside from Cripe and Hewitt, Phyllis Parks, a
union tube mill committee person, also attended the meeting. Doug Foster, who is both Cripe and Hewitt’s
supervisor, and Donald Thomas, the tube mill manager, and Scott Burnett,
another Alcoa manager, attended the meeting on behalf of Respondent.
Respondent
discussed disciplining Cripe for an incident which started when Supervisor
Foster questioned Cripe regarding Cripe’s production on a previous day
operating the heat treat furnace. Cripe
apparently responded by putting his face very close to Foster’s and saying
something like that is “a stupid fucking question. We’re only going to get three or four fucking
loads when we are training new people.”[10]
After Hewitt
arrived at the meeting, he made a plea for leniency on Cripe’s behalf. Foster responded that he thought a suspension
was appropriate. Hewitt then pointed at
Foster, who was sitting across a table from him and said something like, “if
you tell this egotistical fucker to quit talking to people the way he does,
this wouldn’t happen.” Plant Manager
Thomas cut Hewitt off and Cripe was given either a 3-day or 5-day suspension.
Later on August
4, Hewitt was called to Thomas’ office, where he was given a 3-day suspension
for insubordination and abusive and offensive behavior towards a
supervisor. Respondent later instructed
Hewitt by letter to call Thomas the next day regarding possible further
discipline.
On August 5,
Hewitt called Thomas, who imposed an additional 27-day suspension for a total
of 30 days—without pay. Respondent based
the additional 27 days on the fact that Hewitt had a prior offense, resulting
in a “one on one” discussion (an oral counseling) on May 5, 2005. At that time, Respondent counseled Hewitt for
using the word “fucking” over the radio, when complaining about the way
maintenance employees had attached a motor to his crane. A supervisor told Hewitt that the radio was
used by departmental and administrative offices and that was the reason
profanity should not be used over the radio.
Generally, but not exclusively, Respondent’s disciplinary program is
progressive. A “one on one” verbal
warning is generally followed by a written warning, then a 1-day suspension, a 3-day
suspension and further discipline or discharge (GC Exh. 24).
Hewitt served
the entire suspension imposed in August.
The
Analysis
As was the case
with the subcontracting of the TPM event, in order to prove a violation of
Section 8(a)(3) and (1), the General Counsel must generally make an initial
showing that (1) the employee was engaged in protected activity; (2) the employer
was aware of the activity; and (3) that animus towards the protected activity
was a substantial or motivating reason for the employer’s action. Once the General Counsel makes this initial
showing, the burden of persuasion shifts to the Respondent to prove its
affirmative defense that it would have taken the same action even if the
employee had not engaged in protected activity.
Mark Hewitt was
engaged in activity generally protected by Section 7 when he made the remark
for which Respondent suspended him.
However, he may lose these protections depending on consideration of
four factors: (1) the place of the discussion between the employee and the
employer; (2) the subject matter of the discussion; (3) the nature of the employee’s
outburst; and (4) whether the outburst was provoked by an employer’s unfair
labor practice; Atlantic Steel Co., 245
NLRB 814 (1979); Trus Joist MacMillan, 341
NLRB 369 (2004).
After
considering these factors, I conclude that Hewitt lost the protection of
Section 7, insofar as the initial 3-day suspension is concerned. Taking the last factor first, his outburst
was not provoked by an unfair labor practice.
It was a response to Supervisor’s Foster’s insistence on a 3-day
suspension for Kevin Cripe, which has been not been shown to violate the Act in
any way. Secondly, the other three
factors cut against Hewitt. His outburst
was gratuitous and took place in a grievance hearing which concerned the
alleged insubordinate use of profanity by Cripe towards Foster, both of whom
were present at the meeting. Foster was
not only Cripe’s supervisor, but also Hewitt’s supervisor. Given this context, Hewitt’s comment would
tend to undermine Foster’s authority and detract from the message being
conveyed to Cripe as to the change in his behavior called for by the discipline
imposed upon him.[11] I therefore conclude that Respondent did not
violate the Act in suspending Hewitt for 3 days.
On the other
hand, however, I find that Respondent did violate the Act in tacking on another
27 days to Hewitt’s suspension.
Respondent was well aware of Mark Hewitt’s union activities, which
included not only his representation of Kevin Cripe on August 4, but also his
position as the
I also infer
that the additional 27 days suspension was motivated by Respondent’s animus
towards the
Respondent
issued Hewitt a formal discipline report on May 6, 2005. On the previous day, Hewitt was unhappy with
the way in which a maintenance crew had hooked a motor to his crane. He used the word “fucking” as an adjective
over the plant radio. Respondent imposed
a “one on one” discussion in part because the radio is used in Alcoa’s
administrative offices. There is no
indication that Hewitt directed his profanity at any individual.
Respondent’s
formal discipline report form indicates that normally a “one on one” discussion
is followed by a written warning, a 1-day suspension and a 3-day suspension before
Respondent imposes a 3-day plus 27-day suspension. Alcoa has offered no explanation as to why
Hewitt’s prior offense, a far less serious matter, warranted the imposition of
an additional 27-day suspension for his outburst on August 4.
On the other
hand, the record is replete with evidence of animus towards the Union at this
time and towards Hewitt’s union activities in particular—most notably his
leaving work early on June 21 to attend the monthly union meeting. I find that but for the Respondent’s animus
towards the
Union Information Requests
Complaint
paragraphs 7 alleges that Respondent violated Section 8(a)(5) in refusing to
provide information requested by the Union in January 2005 which the General
Counsel and Union allege are relevant and necessary to the Union’s duties as
collective-bargaining representative for unit employees.
Paragraph 7(d)
concerns grievance T & D[13]
02-04 filed on behalf of unit employee Kevin Marsell, who apparently had been
disciplined for an alleged drug offense.
On January 17, 2005, the Union requested a chain of custody form for
Marsell’s drug tests and a copy of all test results for the last 2 years in
which Lifeloc Technologies was involved in testing any Alcoa employee at
Complaint
paragraph 7(e) concerns information requests made by the
Paragraph 7(f)
relates to an information request filed in connection with grievance LR 17-04,
concerning unit employee Duane Lord.
Among the documents requested were alcohol test results for any employee
in which the result was .001 or higher and the copies of documentation of any
discipline that was administered as a result of such tests. The
Paragraph 7(g)
relates to grievance Ext. (extrusion) 27-04, filed on behalf of unit employee
Darrell Weathers. Weathers was
disciplined for violating Respondent’s lockout procedure and thus exposing
himself to a very serious safety hazard.
The
Complaint
paragraph 7(h) relates to an information request concerning grievance LR-16-04,
which was filed on behalf of Steve Niece, an employee who was terminated for
missing work 6 consecutive days without leave.
The