Florida Steel Corp. v. N.L.R.B.
| Decision Date | 11 January 1979 |
| Docket Number | No. 77-3307,77-3307 |
| Parties | 100 L.R.R.M. (BNA) 2451, 85 Lab.Cas. P 11,013 FLORIDA STEEL CORPORATION, Petitioner Cross-Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent Cross-Petitioner. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Charles F. Henley, Jr., Jacksonville, Fla., for petitioner cross-respondent.
Robert G. Sewell, Atty., N.L.R.B., Eric G. Moskowitz, Atty., John E. Higgins, Jr., Deputy Gen. Counsel, Carl L. Taylor, Associate Gen. Counsel, Elliott Moore, Deputy Associate Gen. Counsel, John S. Irving, N.L.R.B., Washington, D. C., for N. L. R. B.
Jeffrey L. Gibbs, Washington, D. C., for intervenor United Steelworkers of America, AFL-CIO.
On Petition for Review and Cross Application for Enforcement of an Order of the National Labor Relations Board.
Before GOLDBERG, Circuit Judge, SKELTON, Senior Judge *, and FAY, Circuit Judge.
This case is before the Court upon the petition of Florida Steel Corporation (the Company) to review and set aside an order of the National Labor Relations Board (the Board) issued against the Company on November 15, 1977, which is reported at 233 NLRB No. 74. The Board cross-petitions for enforcement of its order. The United Steelworkers of America, AFL-CIO (the Union), the charging party, has intervened.
The Board found that the Company violated § 8(a)(3) and (4) of the Act (29 U.S.C. § 158(a)(3) and (4)) when it discharged employee Donald Brans, rather than assign him to another position. The Board also found that the Company violated § 8(a)(1) of the Act by sending a letter to employees advising them of their right to ask for an opportunity to obtain legal counsel before talking to a Board agent and of the Company's willingness to assist employees on their request to obtain such counsel.
The Board agreed with the Company and the Administrative Law Judge (ALJ) that Brans was properly removed from his job as an overhead crane operator because of his negligence in performing the duties of that position. However, the Board held that the reason given by the Company for Brans' discharge (i. e. negligence) was pretextual and that his firing was anti-union motivated on the part of the Company.
The Board did not order Brans reinstated to the job of crane operator, but did order the Company to offer him "immediate and full reinstatement to a position suitable to his experience and abilities," and to "make him whole for any loss of pay he may have suffered by payment to him of a sum of money equal to that which he normally would have earned as wages," with adjusted interest at not less than 7 per cent (the ALJ had allowed the customary 6 per cent), and issued a broad form company-wide order (the ALJ order was limited to the Tampa, Florida, plant, where the events in this case took place). We have carefully reviewed the entire record and, based on that review, hold that substantial evidence on the record as a whole does not support the order of the Board. Accordingly, we deny enforcement.
Florida Steel Corporation is engaged in the manufacture and fabrication of steel and operates some twenty-two divisions located in eleven different cities throughout the southeastern United States. In 1973 the Union commenced organizing campaigns at the Company's steel mills in Charlotte, North Carolina, and Jacksonville, Indiantown, and Tampa, Florida.
The Union campaign at the Tampa plant began in 1973. It resulted in a Board-conducted election on February 26, 1976. Although the Union lost that election by an overwhelming vote, it was subsequently set aside by the Board on October 14, 1976, because of objections filed by the Union, and a second election was ordered to be conducted at such time as is deemed appropriate by the Board's regional office. 1 The second election has not yet been held.
Brans was very active for the Union during the election campaign. During the period preceding the election, Brans signed a union committee sheet, distributed leaflets at the plant gate and in the shop, wore union buttons and other insignia to work and attached a union bumper sticker to the vehicle he drove to and from work. In December, 1975, Brans testified against the Company at a Board hearing, resulting in a finding by the Board that the Company had coercively interrogated Brans with respect to his union activities. 2 Although the Company knew about Brans' union activities, there is no substantial evidence in the record that shows that such activities had anything to do with his discharge by the Company.
The Company discharged overhead crane operator Donald Brans on April 21, 1976, for careless and negligent operation of his crane. The record shows that Brans started working for the Company in 1968, and after holding several different jobs, was promoted in March, 1975, to overhead crane operator. He successfully operated the crane for approximately eight months and then, in October, 1975, he started causing a series of major accidents, the last of which resulted in his discharge.
His first and second accidents occurred in October, 1975, when, in a period of a half hour, he twice dropped the bail from the crane onto the shop floor. Brans admitted that he dropped the bail even though he had just been warned by a supervisor to be more careful. After the second accident, he was given a verbal reprimand by his supervisor. 3
Brans' third accident occurred in January, 1976, when he hit the side of the furnace with the main hoist block, narrowly missing another employee. Brans admitted that this was a serious accident and that if the block, which weighed about 500 pounds, had hit the employee it would have killed him. Brans also admitted that it was his fault. As a result of this accident, Brans was given a written warning.
Brans' fourth accident occurred in March when he hit an employee in the back with a small hoist as he operated the overhead crane. This accident was thoroughly investigated and, in line with Company policy, Brans was given a two-day suspension. 4
At the time of the suspension the Company had just developed a new crane training program. The program was designed for the purpose of teaching employees how to operate the crane in a safe manner. The program consisted of several lessons with cassette tapes so that the student could take the program without the necessity of an instructor. After each lesson the student was given a test to determine his comprehension. At this time the new program had been implemented at other plants but not in the Tampa mill. The Company made this new teaching aid available to Brans in order to make sure he had a proper understanding of how to operate the crane.
When Brans returned from his suspension, he was allowed to take the lessons during his normal work hours and was paid his regular rate of pay. He took one lesson each day and was given a test in which he scored 91% The first day, 93% The second day and 82% On the third. The minimal accepted grade for all three tests was 75%. After taking the course the maintenance supervisor rode in the crane with Brans to observe his work and to answer any questions.
From the time Brans completed the training course until his last accident his supervisor had an opportunity to observe his work habits and saw three minor incidents. On each occasion the supervisor cautioned Brans about the incident with Brans giving some type of excuse. Brans, when he testified, admitted the mistakes and also admitted that the supervisor had cautioned him about the incidents.
Finally, on April 19, Brans had his fifth and final accident. This time he was lifting a partially full ladle of hot molten steel to be dumped in the scrap yard. The ladle is a large container which at that time held some ten to fifteen tons of molten steel. The proper procedure was to raise the ladle with the overhead crane and then have the ladleman turn the ladle so that the auxiliary hoist could be connected. However, for some reason, Brans decided to turn it himself. To do so, he waved the ladleman away, raised the ladle and proceeded to bump the large ladle against a scrap bucket causing it to rotate. This rotating action caused the auxiliary hoist chain to be tangled with the gooseneck at the top of the ladle. Thus, when the ladle was lowered, the chain remained fixed, pulling the gooseneck and causing the stopper to open at the bottom of the ladle. At that time approximately a half a ton of hot, molten steel poured out on the shop floor. Two employees were in the area but were not hurt.
Brans admitted in his testimony that he was at fault in that he did not see the chain get tangled up in the gooseneck. Brans also testified that when the steel started pouring out of the ladle he did not have any idea where the ladleman was nor did he see another employee who was also in the immediate area. Brans also admitted that he did not have the authority to turn the ladle in such a manner and that he was wrong in doing so. As a result of this last accident Brans was terminated on April 21, 1976.
Based on this record of negligent job performance, the ALJ made the following findings:
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