Consumers Power Company

Consumers Power Company and Local 103, Utility Workers of America, AFL-CIO. Case 7 CA 14222 September 21, 1979 DECISION AND ORDER BY MEMBERS JENKINS MURPHY, ANI) TRUI:SI)AIL On June 29, 1979, Administrative Law Judge Jen- nie M. Sarrica issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt her recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board adopts as its Order the recommended Or- der of the Administrative Law Judge and hereby or- ders that Respondent, Consumers Power Company, Jackson, Michigan, its officers. agents, successors, and assigns, shall take the action set forth in the said rec- ommended Order. DECISION STATEMENT OF THE CASE JENNIE M. SARRICA, Administrative Law Judge: This is a proceeding under Section 10(b) of the National Labor Rela- tions Act, as amended (29 U.S.C. 151. et seq.), hereinafter referred to as the Act. Based on charges filed on July 13. 1977,1 a complaint was issued on August 22. presenting al- legations that Consumers Power Company, hereinafter re- ferred to as Respondent, committed unfair labor practices within the meaning of Sections 8(a( 1) and (3) and 2(6) and (7) of the Act. Respondent filed an answer denying that it committed the violations of the Act alleged. Upon due no- tice, the case was heard before me at Grand Haven. Michi- gan, on January 11, 1978. Representatives of all parties en- tered appearances and had an opportunity to participate in the proceeding. Based on the entire record, including my observation of the witnesses, and after due consideration of briefs and ar- guments. I make the following: t All dates are in 1977 unless otherwise indicated CONSUMERS POWER COMPANY FINDINGS VNI) CoN( I SIONS I. JitRISI)( ION Respondent. a Michigan corporation with principal ofI fices in Jackson. Michigan, is engaged as a public utilit\ providing gas and electric power to the Lower Peninsula of the State of Michigan. Respondent has an installation known as the B. C. Cobb plant at Muskegon. Michigan. the facility involved herein. During the sear preceding issuance of the complaint, a representative period. Respondent. in the course and conduct of its business operations. received gross revenues in excess of $1 million and purchased and caused to be transported and delivered at its Michigan in- stallations goods and materials valued in excess ofs S100.(X() of which goods and materials valued in excess of $i5.(XX) were transported and delivered to its Michigan installations directly from points located outside the State of Michigan. Respondent admits and I find that it is now. and has been at all times material herein. an employer within the meaning of Section 2(2) of the Act engaged in commerce and in operations affecting commerce within the mening of Section 2(6) and (7) of the Act. i. rl I.AB(IR ORLANI/A I I()N The Charging Party. Local 103, Utility Workers of America, AFL-CIO, hereinafter referred to as the Union. is now, and has been during all times material herein, a labor organization within the meaning of Section 2(5) of the Act. III. FINDIN(iS AND (ONCI.USIONS A. The Issues 1. Did the contract grievance provisions give rise to a waiver of a union steward's right to investigate a complaint thereunder in any manner other than that speciticall set forth? 2. Did Respondent have a rule or practice governing job- time release of union stewards to investigate grieoance com- plaints which required separate specific permission to vieA the locus of a complaint? 3. Does an oral and written reprimand of a union stew- ard for performing his stewardship require an affirmatixe showing of an unlawful motive? 4. Was the reprimand justified in the interest of indus- trial discipline because of the language used in the steward- supervisor exchange? B. The Events Involved Wendell Bradfield. an employee of Respondent since 1964 and a qualified welder in the maintenance depart- ment. is one of 12 stewards of Local 103 at the B. C(. (Cobb plant. who are charged with the responsibility of adminis- tering the collective-bargaining agreement between Re- spondent and Utility Workers Union of America. AlFI CIO. having been so designated in 1975. On June 23. 1977, employee Doug McComb. a mobile equipment operator in the fuel handling department, reported to Bradfield that he had been told by Fuel Handling Supervisor ouis Oswald 245 NLRB No. 42 183 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to get the porcupine out of the bunker room, to take it to the garage, and, with employee Dave Van Loon, a coal conveyor operator, to fix it.2 McComb also told Bradfield that Van Loon was, at that time, in the garage performing welding on the porcupine. Bradfield told McComb he would take care of the problem.' Bradfield then contacted his own supervisor and requested that arrangements be made for him to have an informal meeting with Louis Os- wald on union business. Later that day his supervisor in- formed Bradfield that it had been arranged for him to meet with Oswald in the latter's office at 7:30 the following morning--Bradfield's normal work-reporting time. On June 24 Bradfield went directly to Oswald's office, in the garage area, which is located 500-600 feet from the plant building, where Bradfield worked. In the conversation which followed concerning the complaint, Oswald was both uninformative and uncooperative and displayed an attitude that was both evasive and agressive. 4 He abruptly termi- nated the interview with the observation that they were not getting anywhere, to which Bradfield agreed, and Bradfield left the office, proceeding from there to the garage proper to verify that the welding had been done there before he filed a written grievance concerning the matter.' The garage area is located some 100 feet from Oswald's office and in a direc- tion away from the plant. Oswald observed Bradfield's di- rection and followed. Bradfield was making physical inspection and observa- tions relating to the evidence of welding and the presence of porcupine spikes when Oswald came up from behind and, in rough and stern language, challenged Bradfield's right to be there. When Bradfield asserted that he was not talking to anyone and that he had authorization from his supervisor to be there, Oswald demanded the name of his supervisor, which Bradfield supplied. Oswald asserted that he was going to call the supervisor and "find out." As Oswald took up the phone and, unable to contact the named supervisor directly, began paging the maintenance department super- visor, Bradfield left the garage, responding as he departed, "I don't give a fuck who you call."6 2 The porcupine is a steel object weighing approximately 300 pounds, made of half-inch-thick plate and having 6-inch spikes welded so as to pro- trude all around it, and attached to a long bar. The porcupine is dropped by the bar into the bunkers, where it is utilized to scrape the walls and to dislodge the coal. Welding was necessary in order to affix the porcupine spikes, and neither McComb nor Van Loon is a welder. Although some question was raised at the hearing as to whether the Union steward who worked in the fuel handling department, instead of Bradfield, should have been the one contacted, ample evidence of record establishes that no restriction existed specifying the steward to be consulted. Further, as Respondent has not pursued this argument in its post-hearing brief, such argument is presumed abandoned. 'These characteristics are apparent from the record testimony of both Bradfield and Oswald as to what was said, and supportive confirmation of this conclusion was apparent in the demeanor of Oswald at the hearing. The variations in their respective versions of this exchange are not significant to this conclusion. 5 It was readily admitted at the hearing that such welding was being done. The issue which developed in the subsequent grievance related to a dispute concerning jurisdiction over such work under the existing contract. 6 Oswald testified that as Bradfield was walking out of the garage he said, "Go fuck yourself, you can make all the calls you want." Bradfield denied this. Bradfield was a candid and straightforward witness, whereas Oswald displayed an attitude of antagonism and arrogant righteousness. Moreover. Oswald admitted that when Bradfield made the claimed remark the latter That afternoon Bradfield was summoned by Assistant Maintenance Supervisor Fred Steel for a disciplinary inter- view, which was followed by a written reprimand dated June 27, reading as follows: On June 24, 1977, you obtained permission to see L. Oswald on an alleged difference regarding the interpre- tation of the Contract. When you finished your discus- sion with Mr. Oswald, you did not return to your job, but went to the equipment repair area without permis- sion of your supervisor. In addition, you directed abu- sive language to Mr. Oswald when you were ques- tioned about being in the equipment repair area without permission. This is a written reprimand to inform you that we will not tolerate your above actions and if they occur in the future, you will receive more severe disciplinary action, which may include discharge. Testimony of Bradfield and other union stewards indi- cates that at the informal stage of the grievance procedure the steward must receive permission from his supervisor to meet and discuss the subject matter of a complaint with any other supervisor involved and that such permission includes such absence by the union steward from his work station as may become necessary to otherwise investigate the subject matter of a complaint. Respondent's personnel director, Paul Panzer, testified that the Company's procedures for releasing union stewards from regular assignments to conduct "informals," or to in- vestigate possible grievances, are for the steward to obtain the permission of his immediate supervisor, who in turn makes the arrangement with the supervisor in the other de- partment involved. According to Panzer, once the union steward has reported to the "other supervisor," he becomes the responsibility of that other supervisor, and "wherever he goes from that point is up to that other supervisor to determine." Panzer stated that he has made supervisors aware of this procedure. Panzer further testified as to the reason for this procedure: "We also have to know where our employees are in case we need them7 and, of course, this very activity does take other employees away from their job." If a union steward wants only to speak with an employee in another department, according to Panzer, he must go through the same channels so that the union stew- ard's supervisor will know where he is and also so that the supervisor at the other location can make arrangements to take the employee involved away from his work. Panzer admitted he never told union stewards that they had to obtain separate permission from their immediate supervisor to talk with another supervisor and also to view the job area involved. Maintenance Department Supervisor Fred Steel similarly admitted he had never told Union Steward Brad- field or Chief Union Steward Daniel Meier (both of whom was going out the door some 40-50 feet away with his back to Oswald and that Oswald was on the phone and just then turning around toward Brad- field. Also at that time there were other industrial sounds, and Oswald ad- mitted he could hear the machines operating on the coal pile. I credit Brad- field's version of this exchange. I The record establishes undisputedly that a call over the loudspeaker sys- tem can immediately reach anyone at any place on the plant property and that maintenance department craftsmen frequently perform their duties throughout the plant. 184 CONSUMERS POWER COMPANY are under his supervision), or any other union steward, that he would need to obtain separate permission to view the work area involved when he obtained permission to see an- other supervisor on union business. Contract language offered as relevant to the situation herein provides: ARTICLE III Grievance Procedure Section 1. Should any difference arise between any employee or employees and the Company as to the meaning or application of the terms and provisions hereof, such differences should normally be adjusted by direct contact between the employee or employees and his or their immediate supervisor. Where any such difference is not or cannot be adjusted in the normal way, the employee or employees involved may refer the difference to his or their authorized local union representative, who shall endeavor to settle the difference informally with the immediate supervisor .... If not so settled, it shall be formally disposed of in the following manner: Step 1. The difference (hereinafter referred to as the grievance when placed in writing) shall be promptly placed in writing by the authorized representative or representatives of the local union and submitted to the superintendent of the plant or head of the department of the Company Division in which the affected em- ployee or employees work. Such superintendent or de- partment head shall thereupon agree to a meeting for the consideration of the grievance at the earliest agree- able time not later than five days after he shall have received the grievance .... Step 2. If the grievance is not settled in Step I, the Local Union Grievance Committee shall, within five days after the completion of the meeting or meetings referred to in Step I, submit the grievance to the ap- propriate Division Manager ... who shall, as promptly as possible, but within five days after the grievance is submitted to him, meet with that committee .... Section 2. Either of the parties hereto may have pre- sent at the meetings provided in Steps I and 2 of Sec- tion I hereof, any person or persons it may consider necessary to the proper consideration and settlement of the grievance. It is the desire of all parties to keep such representation at a minimum and the number of em- ployees, designated by the local union through its Pres- ident, who shall suffer no loss of their straight-time pay while attending such meetings will be limited to five. Reasonable time shall be set aside for the holding of such grievance meetings. In the event the investigation of any grievance or attendance at any meeting referred to in Section I hereof does not require an employee to leave the municipality in which he works or its imme- diate surrounding vicinity, he shall suffer no loss of his straight-time pay. Further, in the event the investigation of any grievance or attendance at any meeting referred to in Section I hereof does not require the Local Union President to leave the jurisdiction of the local union, he shall suffer no loss of his straight-time pay. In no event. however, shall an employee leave his job for either i!' such purposes without prior consent of his immediate supervisor. [Emphasis supplied.] C. Positions ql thc Partries Admittedly Bradfield. in his role of union steward. was investigating a complaint or "difference" preliminary to the preparation of a written grievance. which *was later filed and processed, and Respondent knew this to be his mission. The General Counsel contends that the discipline of Brad- field for engaging in this protected concerted activity was a violation of Section 8(a)( I }) and (3) of the Act. The contract was presented as a joint exhibit. With re- spect to the quoted provisions thereof, the General Counsel contends that the reference in section 2 to "prior consent" relates only to steps I and 2 of section 1. and not to the "informal" stage of handling a "difference," which is cov- ered by the first paragraph of section I the activity in which Bradfield was engaged. In support of his interpreta- tion, the General Counsel points to the act that the con- tract term "meeting" is not used until steps I and 2 of sec- tion 1. Inferentially, it is argued that "endeavorts] to settle the difference informally" are not "meetings." but are acts which fall within the generic term "investigation of any grievance," and that this was what Bradfield was engaging in both when he was discussing the "difference" with Os- wald and when he was viewing the situs of the complaint, a purpose for which he had obtained prior consent from his immediate supervisor, whether or not it was required.' Contrary to the contention of the General Counsel. it is Respondent's position that if Bradfield was "investigating a grievance," the last quoted portion of article Ill. section 2, requires that an employee obtain separate permission for either attending a meeting or conducting a grievance inves- tigation, and Bradfield did not obtain separate permission to investigate a grievance. However. Respondent asserts that, in reality. Bradfield was investigating a "difference" and that "Article III does not permit paid9 absence from work to investigate differences at the informal stage of the grievance procedure .... The only permissible paid absence from work to investigate is an absence to investigate 'griev- ances' .... Grievances have been defined by the Employer and the Union in Article III, Section 1, Step I as a differ- ence which has been placed in writing. Thus, until such time as a difference has been placed in writing, an employee is not permitted paid time off for investigation." I agree with the General Counsel that subsequent revisions of the con- tract grievance provisions which ma) have established the right of the nlion to investigate differences prior to the filing of a written grievance are irrele- vant here. I Emphasis is Respondent's. It is argued that sec. 2 sets forth "the proce- dure to be followed for paid time off to attend informal meetings Step I and 2 meetings and for the investigation of grievances. Art. VII. sec 2 of thai agreement provides for remporar absence from dun ithou pat i transact business for the Union." but since Bradfield's absence "for the purpose of conducting an informal meeting with Oswald ... entailed paid time off from work" under sec. I of art. 111, art. Vll is inapplicable Aside from the appar- ent inconsistency of this argument with what I have interpreted as the final contract contention of Respondent, I find that the question otf whether Brad- field was or was not entitled to pa? is not in issue here. nor do I ind .iglllf- icant the tact that no pay was taken a part of the reprimand 185 I)V.( ISIONS O() NAII ()NAI. ,ABOR RIAlIONS BOARI) Thus. in the final analysis. both the General Counsel and Respondent appear to be taking the position that the spe- cific contract provisions do not themselves resolve the issue here. But Respondent contends that since '"Article III of the collective-bargaining agreement does not permit absence from work to investigate differences at the inormal stage o the grievance procedure." by signing the agreement the Union effectively "waived whatever right represented em- ployees may otherwise have had to absent themselves from their jobs without specific permission to investigate differ- ences or grievances [and] the Union clearly waived what- ever statutory right it might otherwise have to investigate differences, without specific prior permission from the m- ployer." Such a contractual waiver, asserts Respondent. "permits the mployer to require that employees obtain separate permission to 'investigate' [and] the enforcement of this contractual right by the Employer is no more discrini- natory than the enforcement of a no-strike clause." Apply- ing this line of reasoning. Respondent asserts that when Bradfield went to the equipment repair area. he "placed his activity outside the ambit of protected activities and thus subjected himself' to discipline." as he had not previously obtained separate specific permission "for time off to inves- tigate any difference or to he in the equipment repair area for any purpose." Further, Respondent asserts that even if there was no contractual waiver here, in view of the failure of the (Gen- eral Counsel to present specific evidence of intent to dis- criminate and its own assertion of a business motivation "for requiring permission to investigate." there was no vio- lation because the effect on employees was very slight, and the reprimand involved was not "inherently destructive of important employee rights," as it did not involve a dis- charge or a "time-off penalty," but was merely a matter of the Employer "insisting on its contractual rights."' Finally. and in any event, Respondent relies upon the right of the Employer, in the interest of industrial discipline, not to tol- erate verbal abuse of supervision by subordinates. D. Analys is and Findings Considering first the quoted contract provisions, I find the terminology used in the first paragraph of article 1II, section 1, as distinguished from that contained in subse- quent provisions, so uniquely distinct as to require the con- clusion that the words "investigation." "grievance," and "meeting" were deliberately avoided. Instead we find such terms as "differences," "direct contact," and "endeavor to settle informally," which convinces me, in agreement with what I interpret to be the positions of the parties, that the conditions contained in the procedures for handling written grievances, including the "prior consent" portion of section 2, do not clearly cover, and indeed, arguably, were intended not to apply to, "endeavors to settle the difference infor- l0 Respondent argues that il employees are unhappy with the effect of the contract. they can demand a change during negotiations, or if they disagree with the Employer's interpretation, they can challenge it through the griev- ance and arbitration provisions. While future problems of this t ype ma, have been eliminated through subsequent contract negotiations see n. 8, .upra). this argument has no bearing on the violation alleged. mallv" before it became a written grievance. ' Thus, and for this reason I find that the contract did not establish specific procedures for such "endeavors" as Bradfield was admit- tedly engaging in and lor which he was disciplined. Nor can I find in contract provisions which did relate to the activity involved a clear and unmistakable waiver of the union steward's right to "endeavor to settle differences inormall yI" on company time ''without specific prior per- mission from the Employer." Indeed. the first paragraph of section I. directing that the local union representative "shall endeavor to settle the difference informally with the immediate supervisor" suggests, if anything. that the union steward should act promptly, and presumably during work- ing hours." Absent from such directive is any requirement for the union steward to obtain permission to cease the assigned job duties during such endeavor--with or without pay and whether in his own department or elsewhere in the plant. I find that the union steward was not prohibited, either specifically or inferentially, by the contract from per- forming these aspects of' his union steward duties on Re- spondent's time. Accordingly, I find Respondent's reliance on waiver misplaced. This, however, does not mean that a union steward has a right to neglect his work assignent at w ill in order to "en- deavor to settle a difference infrmally." The Board has long recognized an employer's legitimate interest in the et- etctive utilization of working time and has sought to accom- modate such interest while protecting the legitimate statu- tory rights of employees. Thus, an employer may, in appropriate circumstances, make and enforce reasonable rules.' Through the testimony of Personnel Director Pan- zer. Respondent has attempted to establish the existence of' such a rule. Evaluation of Panzer's testimony does not convincingly establish that Respondent's procedures for releasing union stewards from job assignments to investigate possible griev- ances required, in addition to permission to go to another department and confer with that supervisor, separate spe- cific supervisory permission to view objective evidence at the location of the complaint. The reasons advanced for the alleged limitation of movement relate only to the need for the union steward's supervisor to arrange for his absence from his work location and to know where he could be reached and for the other departmental supervisor's avail- ability for conferring and/or to relieve an employee under his supervision from assigned job duties to make him simi- larly available to the union steward. Clearly, the speaker 1 Where the contract language is subject to conflicting interpretations and inferences with respect to coverage thus leaves the intention of the parties in doubt and where a right protected by the Act is insolved. we must conclude that the matter is not governed by the contract provisions. See, e.g., .. R.B. v Wisconsin Aluminum Foundo' Co. Inu., 440 F.2d 395 (7th Cir. 1971 cited by Respondent. 12 See, e.g., The Item Compan,. 220 F.2d 956 / 5th Cir.}. enfg. 108 NLRB 1634. cert. denied 350 U S. 836, rehearing denied 350 U.S. 905. I) Indeed, "it would have been patently futile for Ithe union stewardl to have inspected the job at any time other than during working hours." See & I. Painting o., 174 NLRB 91 1 (1969). " See Cameron Iron Works, Inc. 194 NLRB 168 (1971). See discussion and cases cited in Hoerner Wuldor( (',rpor ation, 227 NI.RB 612 (1976}. The right to administer a cillectie-bargaining agreement is no less basic to Section 7 rights than the right to organize fr without the ftrmer. the latter becomes futile. !86 CONSUMERS POWER COMPANY system operative throughout the plant area afforded ample. immediate contact with the absent steward should his pres- ence be required at his own department. and viewing a work area without conferring with any employee would not take "other employees away from their jobs" -another sup- posed reason for the requirement. Nor do I find that the union stewards, when the, entered other departments with their own supervisors' permission and prearrangement with the counterparts in the visited de- partments, became subject to the direction of those other supervisors as to where they might go in those departments to observe conditions, as asserted by Panzer. If this were the procedure, there would be no explanation as to why Oswald made inquiry of Bradfield concerning whether he had ob- tained such permission from his maintenance department supervisor, nor would there be any explanation as to why it was Supervisor Steel of maintenance, instead of Oswald. who conducted the disciplinary interview and issued the written warning if Bradfield in fact was then subject to Os- wald's supervision. I am persuaded that Panzer's testimony was cast in this fashion in an attempt to support the argu- ments advanced by Respondent" and that Respondent's ac- cepted practice in fact required only supervisory release of a union steward from assigned job duties to enable him, on company time, to endeavor to settle differences informally and the supervisor's cooperation in arranging for the avail- ability of other supervisors and employees. I further find that such established practice or informal rule permitted "onsite" inspection or other steps deemed necessary to the steward's "endeavor to settle a difference informally" within the ambit of any permission granted a union steward for relief from regularly assigned duties to pursue such a mission. This conclusion is consistent with the testimony of the union stewards, whom I credit as to the manner in which they conducted union affairs at the informal stage of a complaint or grievance." Accordingly, I find that Brad- field acted in accord with the established practice when, after obtaining permission to be absent from his depart- ment to pursue his union steward duties at the "informal" stage, he "conferred with the immediate supervisor" in the department involved in the "difference" and then pro- ceeded to that situs in that department to inspect for infor- mation relating to that "difference."'" It follows that when Bradfield received an oral reprimand and a written warning of more severe disciplinary action "which may include dis- charge" for his presence in the garage area of the fuel han- dling department, he was engaged in the protected con- certed activity of administering the collective-bargaining agreement by processing a complaint thereunder. Such dis- ciplinary actions taken by Respondent's supervisors consti- I base this credibility finding in part upon a distinct impression during his testimony that Panzer was attempting to weigh each answer not against recollection of facts or knowledge of procedures, but against how his answer might affect the issues in the case. A candid spontaneity was conspicuously absent. J' Whether or not Panzer ever mentioned his version of an alleged rule to Respondent's supervisors has little consequence here, where admittedly there was no written rule, and no mention of an oral rule was ever made to any union steward. " Clearly, had Bradfield found no evidence of welding and no porcupine spikes to support the complaint, this alone may have "settled" the matter without proceeding to the formal or written stage. tute interference, restraint, and coercion within the mean- ing of Section 8(a)( I ) of the Act and discrimination for engaging in union activities within the meaning of Section 8(a)(3) thereof.l I find no merit in Respondent's contention that the Gen- eral Counsel failed to establish the Section 8(a)(3) violation alleged b not presenting specific evidence of an unlawful motive. In Great DaneO? upon which Respondent relies, the Supreme Court reiterated :and restated the applicable rule of law thus: First, if it can reasonably be concluded that the em- ployer's discriminatory conduct was "inherently de- structive" of important employee rights, no proof of an antiunion motivation is needed and the Board can find an unfair labor practice even if the employer intro- duces evidence that the conduct was motivated by business considerations. Second. if the adverse effect of the discriminatory conduct on mployee rights is "comparatively slight." an antiunion motivation must be proved to sustain the charge if the employer has come forward with evidence of legitimate and substan- tial business justifications for the conduct. 'Ihus, in ei- ther situation, once it has been proved that the em- ployer engaged in discriminatory conduct which could have adversely affected employee rights to some extent. the burden is upon the employer to establish that he was motivated by legitimate objectives since proof of motivation is most accessible to him. Clearly, the administration of the collective-bargaining agreement's grievance procedure provisions qualifies as an "important" Section 7 right. Indeed it has been labeled both basic and fundamental. Without this right. protection of any preceding and supportive concerted activit 3 becomes useless and a sham. Interfering with and discriminating against a union steward for pursuing his responsibilit in this respect, of necessity. has a significant effect upon em- ployees and is inherently destructive of important employee rights, for it threatens to reduce all of their protected ac- tivit,, to an exercise in futility. Respondent's knowledge that Bradfield's mission was an "endeavor to settle a difference" under the contract's grievance provisions is, in these cir- cumstances, sufficient to hold Respondent accountable for the "unavoidable consequences" of its action and to deem its conduct "proscribed, without need for proof of an un- derlying improper motive."' Thus, I conclude that the vio- lation is established under the first paragraph of the rule as restated in Great Dane, supra. Even if Respondent's alleged reasons for a rule requiring supervisory release from job duties should appropriately be considered here as an al- leged business justification for administering an oral and written reprimand to a union steward for viewing the situs of a complaint without separate specific supernisorv permis- sion to do so., I would find such a justification specious. Aside from my finding that no such rule requiring separate permission existed, the undisputed facts reveal that Brad- field's supervisor knew that Bradfield could be located in i See Chrs.rler Corporation, 228 NLRB 486. 490 (19771. ° '.L R B. v. Great Dane Tralers, Inc.. 388 U.S. 26, 34 (1967) 12 Cf. the discussion of this rule contained at pp. 1512 14 of Jorgemen's Inn, 227 NLRB 1500 1977) 187 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the fuel handling department; Supervisor Oswald knew where, in that department, Bradfield could be located; and Bradfield did not speak to or disrupt the work of any em- ployee (indeed, there is no evidence that any other em- ployee was present in the immediate vicinity). Thus, the business considerations advanced as justification for the al- leged rule, in any form, were satisfied. There remains Respondent's contention that the repri- mand was justified because of the language used by Brad- field in his departing remark to Oswald. Clearly, this re- mark was part of the res gestae of the efforts being made by Bradfield to "settle a difference informally." Therefore it was in the context of protected concerted activity 22 and was not "so approbrious [sic]" as to cause the loss of the Act's protection." I find Respondent's reliance upon thisjustifica- tion without merit.24 CONCLUSIONS OF LAW I. Respondent is an employer within the meaning of Sec- tion 2(2) of the Act and is 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 orally disciplining and by issuing a written warn- ing to Wendell Bradfield for his union steward activities of administering the grievance provisions of the collective-bar- gaining agreement, Respondent has interfered with, re- strained, and coerced its employees in the exercise of rights guaranteed them in Section 7 of the Act and thereby com- mitted unfair labor practices within the meaning of Section 8(a)(1) of the Act. By the same conduct Respondent has discriminated against Wendell Bradfield with respect to terms and conditions of employment for engaging in pro- tected concerted activities, thereby discouraging member- ship in the Union, in violation of Section 8(a)(3) of the Act. 4. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. REMEDY Having found that Respondent engaged in certain unfair labor practices, I shall recommend that it cease and desist therefrom and take certain affirmative actions designed to remove the effects of the unfair labor practices and to effec- tuate the policies of the Act. Upon the foregoing findings of fact and the entire record in this proceeding, I make the following recommended: 22 See Thor Power Tool Company. 148 NLRB 1379 (1964), enfd. 351 F.2d 584 at 586-587 (7th Cir.). · "Within the confines of a grievance meeting, it would require severe conduct indeed to convince us that the interests of fair give and take between equal parties to bargaining could be justifiably submerged." Crown Central Petroleum Corporation v. N.L.R.B., 430 F.2d 724, 727, 731 (1970), enfg. 177 NLRB 322 (1969). I find that the parting remark cannot be severed from the context of the activity and that the specific mention of this offense in the written warning does not establish it as a separate and severable reason for the reprimand. I need not, therefore, discuss the effect of the evidence that Bradfield's epithet was no rarity in the language of the plant. ORDER25 The Respondent, Consumers Power Company, Jackson, Michigan, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Orally reprimanding employees or issuing written warnings of more severe disciplinary action "which may include discharge" for engaging in protected concerted ac- tivities. (b) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of rights guaranteed to them by Section 7 of the Act or discouraging membership in a union by discriminating against them for engaging in protected concerted activity. 2. Take the following affirmative action, which will effec- tuate the policies of the Act: (a) Rescind in its entirety and expunge from his record the written warning issued to Wendell Bradfield on June 27, 1977. (b) Post at its B. C. Cobb plant at Muskegon, Michigan, copies of the attached notice marked "Appendix."26 Copies of said notice, on forms provided by the Regional Director for Region 7, after being duly signed by Respondent's rep- resentative, shall be posted by Respondent immediately upon receipt thereof, at the location noted above, and be maintained at such location 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 no- tice is not altered, defaced, or covered by any other mate- rial. (c) Notify the Regional Director for Region 7, in writing, within 20 days from the date of this Order, what steps Re- spondent has taken to comply herewith. 25 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, 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. 26 In the event that this 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 read "Posted Pursuant to a Judg- ment of the United States Court of Appeals Enforcing an Order of the Na- tional Labor Relations Board." APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing in which both sides and the opportunity to present their evidence, the National Labor Relations Board has found that we violated the law and has ordered us to post this notice. WE WILL NOT orally reprimand you or your union steward or issue written warnings of more severe disci- plinary action, which may include discharge, for en- gaging in protected concerted activities. WE WIL.L NOT in any like or related manner interfere with, restrain or coerce you or your union steward in 188 CONSUMERS POWER COMPANY the exercise of rights guaranteed you by Section 7 of the National Labor Relations Act. WE WILL NOT discourage union membership by dis- criminating against any employee or union steward with respect to terms and conditions of employment for engaging in protected concerted activities. WE WILL rescind and remove from his record the oral reprimand and written warning issued to Wendell Bradfield for observing the location of a complaint while trying to settle a difference at the informal stage of the contract grievance procedure. CONSUMERS POWER COMPANY 189