Fabrication Specialists, Inc. v. Pennsylvania Labor Relations Board
Fabrication Specialists, Inc. v. Pennsylvania Labor Relations Board
Opinion of the Court
Opinion by
Fabricating Specialists, Inc. appeals from an order of the Court of Common Pleas of Berks County dismissing its appeal from, and affirming, the order of the Pennsylvania Labor Relations Board that the appellant cease and desist from certain described activities and reinstate a discharged employe, Gary P. Vogel, with back pay.
The appellant employed about 35 persons in its nonunion metal fabricating shop near Reading. One of the
“Q. How long did this meeting last?
A. Approximately an hour.
Q. Could you give me the general nature of the discussion at the meeting ?
A. We discussed all the shop procedures and things that we’d like to have changed and to get a grievance committee. Everyone wanted to change things and we decided to get a grievance committee to submit these things to the company. It would be better than everybody having their own grievances. And we ended the meeting on that, to try and form a grievance committee the following day.
“Q. As I understand your testimony you recessed this meeting and decided that sometime in the future you would form a grievance committee; is that correct?
A. Yes, we wanted to talk to the company the following day.
Q. This was more or less a general group discussion of problems at the shop ?
A. Yes, we wanted to talk to the company the following day.
Q. This was more or less a general discussion of problems at the shop ?
A. Yes.
Q. Was any election held at this time ?
A. No.
Q. Were you appointed representative of the group?
*255 A. (No.
Q. Were you ever authorized in any way to act for this group of people?
A. No.”
Larry Shalters, one of the attendants at the meeting, testified for the complainant:
“Q. Now, were you approached by Mr. Vogel the day of Monday, March 5, 1973 at work?
A. Yes.
Q. What exactly did he say ?
A. Well, we got a couple of the guys together to have a meeting to talk over different things; that’s about it, I guess.
Q. Mr. Shalters, will you please state what occurred at that meeting to the best of your knowledge ?
A. The guys were more or less for helping the company to get things straightened out because-— well, all of them that were there agreed on the same things or they wouldn’t have been there.
“Q. What things were they?
A. Well, like when you go for a job or something like that you had to hunt a half a day for the job and the company wants the job out as fast as they can get it out. We have to waste a lot of time looking for the pieces because they are scattered all over. I believe that was the main thing. There was hardly any money involved as far as money goes. I don’t think it was brought up at all, but it was just that we wanted to get together with the company to help organize — so things wouldn’t be so messed up. Everybody would benefit from it in the end.”
On the morning of March 6, 1973, Vogel was discharged by the president of Fabrication Specialists, Inc. Vogel filed a charge of unfair labor practices with the Pennsylvania Labor Relations Board, alleging violations by his employer of clauses (a), (b), (c) and (e) of sub
At the hearing conducted by an examiner for the Board, the employer produced evidence which, if accepted, would have amply supported a conclusion that Vogel was discharged because he was an unproductive, although skillful, fitter, and because he kept irregular working hours and for other less serious reasons not necessary to detail. The Board rejected this evidence, as well as the testimony of Fabrication Specialists, Inc.’s president that he did not know of the employes’ meeting of the previous night when he discharged Vogel, and concluded that the termination of Vogel’s employment was an unfair labor practice in violation of both clauses (a) and (c) of subsection (1) of Section 6 of the Act. Those provisions read as follows:
“(1) It shall be an unfair labor practice for the employer
(a) To interfere with, restrain or coerce employes in the exercise of the rights guaranteed in this Act.
(c) By discrimination in regard to hire or tenure of employment, or any term or condition of employment to encourage or discourage membership in any labor organization....”
.. If, upon all the testimony taken, the board shall determine that any person named in the complaint has or is engaged in any such unfair practice, the board shall state its findings of fact, and issue and cause to be served on such person an order requiring such person to cease and desist from such unfair labor practice, and to take such reasonable affirmative action, including reinstatement of employes discharged in violation of clause (c) of subdivision (1) of Section (6) of this act, with or without back pay, as will effectuate the policies of this act. ...” (Emphasis added.)
It is clear therefore, that if here there was no violation of 6(1) (c), the Board was without power to order Vogel’s reinstatement with back pay.
While the Board concludes that the employer violated both clauses (a) and (c), its and the lower court discussions of the facts as applied to the law are far from clear. Both tribunals seem to say that, although it appears that there was a violation of 6(1) (c), it does not much matter whether that provision was violated, because there was clearly a violation of 6(1) (a) by an act of interference with the employes’ right to engage in concerted activities guaranteed by Section 5. As we have seen, not only was a violation of Section 5 not charged,
We are required therefore finally to determine whether clause (c) of subsection (1) of Section (6) was violated. Since the offense there pertinently defined is that of discrimination in regard to tenure of employment to discourage membership in any labor organization, we must determine whether conceding, as the Board found, that Vogel was discharged for calling a meeting of employes, his firing was to discourage his membership in a labor organization. Section 3(f) of the Act, 43 P.S. §211.3 (f) defines a labor organization as . . any organization of any kind, or any agency or employe representative committee or plan in which employes participate, and which exists for the purpose, in whole or in part, of dealing with employers concerning grievances, labor disputes, wages, rates of pay, hours of employment, or conditions of work. . . .” (Emphasis supplied.) As the portions of the testimony quoted at the beginning of this opinion demonstrate, there was not in existence when Vogel was discharged or at anytime subsequent thereto, so far as this record demonstrates, any organization or committee. Vogel testified that the ten participants at the meeting arranged by him discussed conditions at their work and resolved to attempt to form a grievance committee at some future time. Vogel’s witness, Shalters, testified that the discussion among the employes was just that and that its purpose was to consider means of improving efficiency in the shop, not means of dealing with their employer concerning grievances, wages or conditions of work. We hasten to repeat that had the employer been charged with the unfair labor practice of violating rights guaranteed by Section 5, the Board’s cease and desist order would have been upheld. If there be a loophole in the Act which permits an employer to discharge an employe, without stricture of reinstatement with back
Having concluded that the record does not support any part of the Board’s order or the order of the court below, we are compelled to, and do hereby, reverse the latter.
. The unfair labor practice described in Section 6(1) (b) is that of interfering with the formation of a labor organization, and in Section 6(1) (e) of refusing to bargain collectively with employe representatives.
. Our review is limited to a determination of whether findings are supported by substantial evidence; it is the function of the Board to resolve conflicts in the evidence and judge credibility; and we must grant deference to the Board’s expertise in weighing facts. P.L.R.B. v. Sand’s Restaurant Corporation, 429 Pa. 479, 240 A.2d 801 (1968) ; P.L.R.B. v. Butz, 411 Pa. 360, 192 A.2d 707 (1963) ; Canon-McMillan School Board v. Commonwealth, 12 Pa. Commonwealth Ct. 323, 316 A.2d 114 (1974).
Case-law data current through December 31, 2025. Source: CourtListener bulk data.