Technicolor Graphic Services

TECHNICOLOR GRAPHIC SERVICES Technicolor Graphic Services, Inc. and International Alliance of Theatrical Stage Employees and Moving Picture Machine Operators of the United States and Canada, AFL-CIO. Case 12 CA 8134 September 27, 1979 DECISION AND ORDER BY ClIAIRMAN FANNING AND MEMBERS JENKINS AND PENEI.I.O On June 6, 1979, Administrative Law Judge Mor- ton D. Friedman issued the attached Decision in this proceeding. Thereafter, counsel for the General Counsel and the Charging Party filed exceptions and a supporting brief. Respondent filed a brief in support of the Administrative Law Judge's Decision. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the 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 briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board adopts as its Order the recommended Or- der of the Administrative Law Judge and hereby or- ders that the complaint be, and it hereby is, dismissed in its entirety. I The Charging Party and counsel for the General Counsel have excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an administrative law judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Stan- dard Dry Wall Products, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing his findings. DECISION STATEMENT OF THE CASE MORTON D. FRIEDMAN, Administrative Law Judge: This case was heard in Titusville, Florida, upon the complaint of the General Counsel issued May 2, 1978, which complaint is based upon a charge filed on April 6, 1978, by Interna- tional Alliance of Theatrical Stage Employees and Moving Picture Machine Operators of the United States and Can- ada, AFL-CIO, herein called the Union. The complaint alleges, in substance, that Technicolor Graphic Services, Inc., hereinafter called Respondent or the Company. dis- criminatorily transferred its employee, Roland R. Williams, to a lower paying position in retaliation for Williams' ac- tivities as steward for the Union. In its duly filed answer, Respondent admits the transfer, but denies any unlawful motivation for the same. At the hearing, all parties were represented and were given full opportunity to be heard, to present evidence and to make oral argument. Thereafter, briefs were filed by counsel for the General Counsel and Respondent. Upon the entire record. and upon due consideration of the briefs submitted b the parties, and upon my observa- tion of the witnesses, I make the following: FINDINGS OF FA(I I. TIE BUSINESS ()F RESPONI)INT Respondent, a Delaware corporation, maintains an office and place of business located at Kennedy Space Center, Florida, where it is engaged in the business of providing photographic and optical support services to the United States Air Force. During the 12-month period immediately preceding the issuance of the complaint herein. a represent- ative period, Respondent performed services of a value in excess of $50,000 for the United States Air Force. It is ad- mitted, and I find, that the Respondent is an emplover en- gaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. HE LABOR ORGANIZATION INVOI VED It is admitted, and I find, that the Union is a labor or- ganization within the meaning of Section 2(5) of the Act. III. THE ALLE(;EI) UNFAIR LABOR PRA(CTI(CES A. Background and Issues For a number of years before the events with which this case is concerned, Respondent and the Union have had a contractual bargaining relationship which relationship was still an ongoing one at the time of the events herein. The collective-bargaining agreement related to the issues of this case was effective from February 15, 1976 to February 14, 1979. This agreement contains, inter alia, a seniority provision for union stewards which reads as follows:' During their terms of office all duly elected or ap- pointed union stewards will have top seniority for pur- poses of layoff as long as they are capable of perform- ing the work then available. Counsel for the General Counsel contends that Respondent transferred union steward Roland Williams from a higher paying job to a lower paying job in violation of the forego- ing contract provision and contrary to the Respondent's customary application thereof because Respondent re- sented Williams' activities directly connected with his stew- ardship. t Sec. 11.9 of the bargaining agreement. 245 NLRB No. 67 473 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Respondent contends however, that the transfer was made in compliance with the said "super seniority" clause and not contrary to its usual application because (a) the clause was not applicable under the circumstances inas- much as Williams knew when he was placed in a better paying job that it might only be temporary and that the person whom he replaced might return to work, and (b) Respondent bore no animosity toward Williams for his union activities as steward or otherwise.2 B. The Events Respondent employs, in its quality control section at its Kennedy Space Center facility, two employees with the classification of photo quality control specialist. At the times material hereto, these two individuals were paid a salary of $480 per week. In January 1977, John Hunter, a union member who was one of the two employees working in this position, became unable to work because of a serious back problem and, after using up his vacation and paid sick leave time, was placed on sick leave without pay in accord- ance with the provisions therefore in the bargaining agree- ment which allows up to 2 years of sick leave.' In June 1977, pursuant to this provision, Hunter was granted an extended 6-month sick leave and, at that time, Respondent decided to find a replacement for Hunter be- cause Respondent could not be assured when, or if, Hunter would be able to return to work. Harry Van Riper, vice president and general manager of Respondent's Florida op- erations, instructed Edmond J. Dabrowski, supervisor of the quality control section at Cape Kennedy, to conduct interviews to recruit an individual to take Hunter's place. In accordance with this directive, Dabrowski interviewed ap- proximately five individuals, among them Roland R. Wil- liams. In the case of each individual who was interviewed by Dabrowski, the latter informed the person being inter- viewed for the position that although Hunter's condition was such that it was doubtful that he would return, never- theless, the position might be temporary, if indeed, Hunter did return to the job. The interviews having been completed, Dabrowski se- lected Williams for the position. Up to that time, Williams has worked for several years an an instrument camera spe- cialist at Respondent's facility at Patrick Air Force Base, some 30 to 40 miles from the Cape Kennedy facility. His salary as a camera instrumentation specialist at all times pertinent to this proceeding was $461 per week, $19 per week less than that which was paid to the photo quality control specialist.' 2 There are some derivative and credibility issues also. I Art. Vil, sec. 8.4 of the bargaining agreement. 4 From credited portions of the testimony of Van Riper, Dabrowski, and Williams. Although Williams testified, and was supported in his testimony by the testimony of Andrew J. Younger, a union representative, that he was not informed by Dabrowski or anyone else that the position of photo quality control specialist might be temporary, I credit Van Riper and Dabrowski to the extent that their testimony established that Williams was, indeed, so informed. In the first instance, counsel for the General Counsel asked to see all the interview checklists which were used by Dabrowski in interviewing the individuals and was satisfied that, on each of the checklists, there was a checkmark alongside the section of the sheets marked "Hunter return possi- ble." Dabrowski had these sheets typed up and Xeroxed before the inter- Shortly after Williams was elevated to the higher position of photo quality control specialist, in September 1977, Ed Lamoureux, a union steward, informed union representa- tive Younger that he no longer wished to be a union stew- ard. Younger instructed Lamoureux to poll the employees in the unit for which Lamoureux was the steward, to deter- mine who they desired to act as their steward. Thereupon, Lamoureux suggested several names to the individuals who were involved in choosing the steward and, at the finish of the polling, Lamoureux infbrmed Younger the employees desired Williams to be their steward.' As noted, Williams became steward on September 28, 1977. On November 9, 1977, Van Riper informed Younger that Respondent's supply supervisor, Franco, had informed Van Riper that Williams was spending quite a hit of time back in the supply area. This, according to Van Riper, was not in Williams' normal work area. Van Riper evidently assumed that Williams, in his positions as steward, was spending too much time out of the department in which he normally worked. Therefore, Van Riper instructed Quality Control Supervisor Dabrowski to speak to Williams about the matter. As a result of this instruction to Dabrowski, the latter spoke to Williams about Williams spending too much time as a steward outside the department. Dabrowski also explained to Williams that there were cost code cards upon which Respondent required an entry every time an em- ployee went from the department for any reason. It was also necessary to note thereon the time that a steward would spend outside the department on union business. Dabrowski explained to Williams that the latter would have to receive permission to leave his work to attend to union matters. It should be noted that, thereafter, Williams com- plied with these requirements and there were no further complaints about Williams in regard thereto.' views so that they were all uniform. In order to discredit Dabrowski's testi- mony that he did pass the information on to each person interviewed that Hunter might return, it would be necessary for me to find that these sheets were made up subsequent to the events for the purpose of the heanng and that the checkmarks were placed thereon at a later date. I cannot do this after observing the demeanor of both Dabrowski and Van Riper. Addition- ally, other testimony in the case establishes the fact that during Hunter's inability to work, and while Williams was occupying the position of photo quality control specialist. Hunter spoke to both Leonard Rochefort, the other photo quality control specialist, and to Williams to inform them he was trying to have his doctor qualify him for return to work. In these circum- stances, logic dictates that Williams was, indeed, informed, before he ac- cepted the higher position, that it might come to an end if Hunter returned to work. I From credited testimony of Younger. Although Respondent has argued that there is a difference with regard to the application of the superseniority clause as to stewards who are elected and stewards who are merely ap- pointed by the Union, for the purposes of the decision herein, it is not neces- sary to make such a distinction. 6 In connection with the foregoing, Younger testified that when Williams was appointed steward, Van Riper called Younger and told the latter that Van Riper did not Williams to be steward. Furthermore, Younger testified that in the November conversation with Van Riper in which Van Riper informed Younger that Williams was spending too much time in the supply section, Van Riper used the words "fnvolous union matters." Although Van Riper did not specifically deny that he used the word frivolous, he did state that these were not words which he would normally use. I credit Van Riper over Younger in this respect because of my observation of the two and also because Van Riper did not attempt on the witness stand to deny completely that he used these words, but did attempt to recall what was said. He could have more easily denied the matter. In all other respects, Van Riper's testi- mony was quite similar to that of Younger. With regard to the earlier inci- dent which Younger testified that Van Riper stated that he did not want 474 TECHNICOLOR GRAPHIC SERVICES In late October or early November 1977, Williams began to receive inquiries from nonrepresented clerical employees as to whether these individuals could be represented by the Union. Although Williams spoke to Younger concerning this matter, at first Younger did not act upon the request. However, Williams finally prevailed and Younger gave to him union designation cards to be signed by the individuals who desired representation. Williams thereupon, on his lunch hour and breaks, but not on company time, did dis- tribute a few cards in various departments at Cape Ken- nedy and eventually received back four signed cards which Williams turned over to Younger. As a result of this activity on the part of Williams, Younger filed a petition for repre- sentation on behalf of the clerical employees and statistical analysts on March 27, 1978. It should be noted, that although as shop steward, Wil- liams did not file any formal grievances, he did discuss a number of employee problems with various supervisors. However, Respondent's supervisors and members of the hierarchy uniformly testified credibly that Lamoureux. who preceded Williams as steward, was a much more active steward and filed more grievances than did Williams. At one time during his stewardship in January 1979, while he occupied the higher paying position, Williams spoke to Edwin Bowker, Respondent's operations manager and second in command to Van Riper, about the use of crude and vulgar language and the telling of off-color sto- ries in the presence of an unrepresented female employee who was secretary to supply supervisor Franco. Bowker thanked Williams and said that he appreciated the informa- tion and would look into the matter. In connection with Williams assisting in organizing the unorganized clerical employees, the layout of the office in which Williams worked becomes somewhat material. In the room in which Williams worked were Williams, Rochefort. and a clerk typist. Dabrowski's office was in a room along- side the room in which the two specialists worked with the typist. In order to leave his office to go to other parts of the facility, he had to pass through the room where the other three were working. Therefore, when Williams was talking to the clerk typist with regard to the latter's desire to be- come a member of the Union and be represented by the Union, it was possible for Dabrowski to overhear such con- versation. However, it should also be noted, that Dabrow- ski, whom I have credited in other matters, specifically de- nied that he had any knowledge of Williams' activity in this regard. During this entire period of time while Williams was in the higher paying position and also acting as the steward. employee Hunter was receiving medical treatment for his back. From time to time. Hunter not only spoke to Roche- fort and even to Williams, but quite frequently spoke and wrote to Van Riper. Van Riper was doubtful. during most of this period, as to the possibility of Hunter's returning to work because little progress was made, at first, in Hunter's Williams to become a steward I find and conclude that although Van Riper completely denied making such a statement. it might well have been that because of Williams' position as a photo quality control specialist. Van Riper was concerned that union matters could interfere with Williams' work. In any event. I find and conclude that, in view of my decision herein. it is not necessary to resolve this particular conflict of testimon? recovery. However, after a second 6-month extension of sick leave pursuant to contract was given to Hunter. Hunt- er's condition evidently improved. Van Riper was ex- tremely cautious about Hunter's possible return because it Hunter's ability to perform would be limited., his basic use- fulness to Respondent would have been limited. This is so because the job often required climbing ladders to cameras and other physical work involving the back such as bending over and reaching. Finally, however, after some correspon- dence between Hunter and Van Riper, and between Van Riper and Hunter's physician, Hunter's physician, on March 22. 1978, by letter. informed Van Riper. in the doc- tor's opinion, Hunter's condition had improved to the de- gree that Hunter could return to his job with only minor limitations which would not effect his performance. In view of this report from Hunter's doctor. Van Riper decided that Hunter could return to the position of photo quality control specialist which Williams was filling at that time. Because there were only two positions in that classifi- cation, the return of Hunter resulted in a surplus of employ- ees for the position. Van Riper instructed Dabrowski to inform Williams that the latter would be transferred back to his former position as instrumentation camera specialist. As a result of these instructions, on March 30, 1978. while Williams was at Patrick Air Force Base to make a check for the quality control department, Dabrowski came to the base from Cape Kennedy and gave to Williams an official notice of Williams' transfer back to his former position. The transfer was made effective as of April 17. 1978. Although Williams thereafter filed a grievance regarding what he considered a demotion and what the Union consid- ered a transfer back in violation of the above-quoted super- seniority clause of the contract, Williams has not been placed back in the quality control department position which he held from July 1977 to April 1978. It should be noted in connection therewith that Hunter, in terms of years of time in the quality control position, was the most senior and that Rochefort had almost as much time as Hunter. Of course, Williams only had the period of ap- proximately 8 months and was without question, in the terms of service in that position, the most junior of the three individuals involved. Because the Respondent refused to entertain the griev- ance, the charge in the instant case was filed. In connection with the contract clause involved, in 1975, an employee by the name of Jowers was bumped out of his position by a union steward under a similar superseniority clause included in the contract in force at that time between the Union and Respondent. Respondent took the position, at that time, that it had the right to do so because there was a layoff as a result of the government contract being cut back and therefore the steward had a superior right to the position even though he did not have seniority in terms of time spent in the particular position involved. In Respon- dent's letter to Younger dated November 5. 1975. which letter was signed by Van Riper, Respondent relied upon the Board case of Dairolea Cooperative Inc.,' in which the Board held that a contract clause providing superseniority for stewards in event of layoff was lawful. Accordingly. in 2 19 NL.RB 656 (1975). 475 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that letter, Van Riper, on behalf of the Respondent, re- jected employees Jowers' grievance. As noted heretofore, Respondent and the Union have had a substantial history of bargaining. While this lengthy relationship might not have been one of mutual admiration, it has been singularly free of the mutual antagonism which so frequently characterizes such relationships. While the Respondent did not stipulate for an election to be held by the Board for the employees whom Williams helped orga- nize, it can be concluded from the record herein that Re- spondent's opposition to the election was the inclusion of certain technical employees in the basically clerical unit. Moreover, the Union represents, and has represented well over 100 employees in Respondent's Cape Kennedy and Patrick Air Force Bases. Thus, the impact upon Respon- dent of the organizing of no more than approximately a half dozen individuals was minimal. C. Discussion and Concluding Findings Counsel for the General Counsel asserts that Respon- dent's reaction to Williams' organizational efforts brought about Respondent's refusal to follow its customary practice accorded to stewards regarding the application of the superseniority clause. Counsel for the General Counsel rests his conclusion upon several factors. The first is the timing of the transfer of Williams to the lower paying position within a day or so after receipt of the petition for representation of the employees whom Williams assisted in organizing. Sec- ond, counsel for the General Counsel claims an apparent antagonism harbored by Van Riper against Williams' act- ing as steward from the very inception of Williams' stew- ardship. This, has heretofore been rejected as a fact in cred- iting Van Riper to the effect that he had not expressed such opposition to Younger. Third, counsel for the General Counsel argues that Respondent had knowledge of the ac- tivity by Williams in organizing the unorganized employees and asserts that the small shop theory should be applied here to infer knowledge. Counsel for the General Counsel cites in support of this, the case of Wiese Plow Welding Co., Inc., 123 NLRB 616 (1959). While, at first blush, it would seem from a perusal of the facts upon which the foregoing contentions of counsel for the General Counsel rest, that the contentions have merit and that Respondent did, indeed, demote and transfer Wil- liams to the lower paying job in retaliation for the latter's union activities as a steward. However, further consider- ation of the facts leads to an opposite conclusion. Earlier in this Decision, in the recital of the facts, it has been deter- mined logic dictates that when Williams accepted the posi- tion of photo quality control specialist, for which the rate of pay was higher than his usual position, he had knowledge of the possibility of Hunter's return to work at some time in the future. Thus, although as General Counsel argues, the collective-bargaining agreement does not contain a provi- sion for temporary employees, nevertheless, Williams knew at all times that his position in the higher paying job might be brought to an end by Hunter's return. Thus, at the very outset, to Williams' knowledge his placement in the higher paying position was not necessarily permanent. With re- gard to Respondent's knowledge of the organizing of the unorganized clerical employees, in addition to the denials of such knowledge by the respective supervisors of the depart- ments in which the clericals whom Williams sought to orga- nize worked, there is the factor that this is not a small shop as envisioned by the Board in the recited Wiese Plovw Weld- ing case, supra. The Board has held that the small plant doctrine is not applicable in every instance.8 In light of the denials, as stated, together with the lack of detail in the text as to how openly Williams passed out and solicited union membership cards, I find and conclude that the General Counsel has failed to establish by a preponderance of the evidence that Respondent had knowledge that Williams participated in organizing the clerical employees. With regard to the issue of motivation, even assuming Van Riper originally opposed the selection of Williams as union steward, and, furthermore, complained to Younger regarding the time spent by Williams in the supply depart- ment, Williams was a far less active steward than was his predecessor, Lamoureux. Thus, Williams' known activities as steward were neither of the nature, or the number, which would lead to the conclusion that these activities were found to be so detrimental to Respondent that Respondent would have decided to ignore any possible contractual obli- gation to retain Williams in the higher paying position. In coming to this conclusion, I have considered the fact that Van Riper did complain to Younger. I have also considered the fact, as pointed out by counsel for the General Counsel, that Williams' transfer notice was given to him within a couple of days after the Union filed its petition for an elec- tion among the clerical employees. However, I have also considered Respondent's long history of amicable relation- ships with the Union; the fact that Lamoureux was far more active and yet was never in any way criticized by Respondent for his activities; the fact that Williams was still, at the time of the hearing herein, a steward: the fact that there were and are other stewards in addition to Wil- liams in Respondent's facilities in Florida against whom no action has ever taken; and the fact that there is an apparent legitimate business justification for Williams' transfer back to his old position in that there were only two positions open in the classification of photo control specialist and Hunter. the senior employee who was on extended sick leave, returned, thereby creating a surplus of one employee in that classification. Although the timing of the transfer of Williams back to this former position as instrumentation camera specialist gives rise to some suspicion that, perhaps, Respondent made this transfer in retaliation for Williams' union activi- ties, suspicion is not proof. The other factors, recited above, serve to overcome whether suspicion arises with regard to the timing. While I do not agree with Respondent that Wil- liams' union activities were "de minimis," I find that they were not so numerous or so irritating that Van Riper would have developed animosity toward Williams. Moreover, with regard to the timing of the transfer back, it coincided with Hunter's return to work. I find coincidental Hunter's return at approximately the same time that the petition for repre- sentation of the clericals was filed. This being so, the timing I Ultra-Sonic De-Burring. Inc of Texas, 233 NLRB 1060, 1062 (19771; ABC Body Works, Inc., 201 NLRB 833 (1973). 476 TECHNICOLOR GRAPHIC SERVICES of Williams' transfer to his old position becomes less signif- icant. Accordingly, I find and conclude that the General Coun- sel has failed to prove by a preponderance of the credible evidence that Respondent discriminated against Williams for the latter's union activities.9 CONCLUSIONS OF LAW 1. Respondent is an employer within the meaning of Sec- tion 2(6) and (7) of the Act. 9 In view of my findings and the basis therefore, it becomes unnecessary to determine, or interpret, the legal impact of the quoted section of the collec- tive-bargaining agreement which bestows superseniority in case of layoff upon union stewards. If, indeed, there is a breach of this clause in Williams' transfer, minus discriminatory motive, the interpretation of the clause be- comes a matter for some tribunal other than the National Labor Relations Board. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. Respondent in transferring Williams from the position of photo quality control specialist to instrumentation cam- era specialist has not violated Section 8(a)(3) and (1) of the Act. Upon the foregoing findings of fact and conclusions of law, and the entire record in this proceeding. I hereby issue the following recommended: ORDER I0 It is ordered that the complaint herein be. and the same hereby is, dismissed. 1' 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. 477