General Motors Corp.

PONTIAC MOTORS DIVISION, GENERAL MOTORS CORP. 413 IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent , set forth in section III, above , occurring in connection with the operations of the Respondent described in section 1, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing com- merce and the free flow of commerce. V. THE REMEDY It having been found that the Respondent engaged in unfair labor practices by refusing on and after September 12, 1960 ,4 to bargain with the Union, the statutory bargaining representatives of its employees in an appropriate unit, it will be recom- mended that on request the Respondent bargain with the Union on all proposals which raise bargainable issues, and , if an understanding is reached, embody such understanding in a signed agreement. Upon the basis of the foregoing findings of fact , and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. The Union is a labor organization within the meaning of Section 2 (5) of the Act. 2. All salaried clerical and technical employees at Respondent 's Sunnyvale, Cali- fornia, plant, including clerical employees of its accounting department , and exclud- ing confidential secretaries, confidential salaried payroll clerks, industrial relations department personnel , buyers, professional employees, and supervisors as defined in the Act, constituted at all times material herein , and now constitute, a unit ap- propriate for purposes of collective bargaining within the meaning of Section 9(b) of the Act. 3. The Union was on August 18, 1960, and at all times since has been the ex- clusive representative of all employees of the Respondent at its Sunnyvale, Cali- fornia, operation, in the aforesaid appropriate unit for the purposes of collective bargaining within the meaning of Section 9 (a) of the Act. 4. By refusing on and after September 12, 1960, to bargain collectively with the Union as exclusive representative in the aforesaid appropriate unit, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (5) of the Act. 5. By the said refusal to bargain , the Respondent interfered with, restrained, and coerced its employees in the exercise of rights guaranteed them in Section 7 of the Act, and thereby engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 6. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2 (6) and (7) of the Act. [Recommendations omitted from publication.] * The date on which Respondent's position found herein to constitute a refusal to bar- gain was defined and announced to the Union 's negotiators. Pontiac Motors Division, General Motors Corporation and Wallace R. O'Neil. Case No. 7-CA-&363. July 25, 1961 DECISION AND ORDER On June 27, 1960, Trial Examiner Reeves R. Hilton issued his In- termediate Report in the above-entitled proceeding, finding that the Respondent had not engaged in the unfair labor practices alleged in the complaint and recommending that the complaint be dismissed in its entirety, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the General Counsel filed exceptions to the Inter- 132 NLRB No. 11. 414 DECISIONS OF NATIONAL LABOR RELATIONS BOARD mediate Report, together with a supporting brief; the Respondent filed a brief in support of the Intermediate Report. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Interme- diate Report and the entire record in this case, including the exceptions and the briefs, and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner only to the limited extent consistent with our decision herein. The facts, set forth more fully in the Intermediate Report, are briefly as follows : On April 10, 1959, the Respondent posted a notice requiring all third-shift machine repairmen to work a partial shift overtime. These men preferred that fewer men be called in to work a complete shift of 8 hours. During their lunch hour they met with O'Neil, their union committeeman, and questioned him as to the possi- ble penalties if they refused to accept overtime work. To all such questions O'Neil replied that the men should work or they would be subject to disciplinary action by Respondent. The men reported for work, as directed, and completed the partial shift. Thereafter two of them were requested by their foreman to work beyond 3:30 a.m. to complete a specific project. They and other repairmen, who were requested to work, refused. O'Neil, who was not personally involved in the dispute over overtime, was requested by company officials to persuade the men to return to work. O'Neil replied that the request came too late for him to effectuate it. As he left the premises, however, he spoke to several repairmen individually and informed them that he had been reminded by the Employer of his duty as a committeeman, and that they should return to work. As a result of his failure to persuade the men to return to work, O'Neil was discharged by Re- spondent for violating the "no-strike" clause of the contract. O'Neil immediately filed a grievance, which was carried to 'step 2 of the con- tract grievance procedure. The grievance was settled by the reduction of O'Neil's discharge to a 30-day disciplinary layoff. The issue before the Board is whether Respondent could lawfully discipline O'Neil for failure to fulfill what the Respondent considered his obligation as a union committeeman. We do not agree with the Trial Examiner that this case is governed by Spielberg Manufacturing Company, 112 NLRB 1080. Nor do we agree with our dissenting colleague that the dispute herein was "solely one of contract interpretation." The pertinent provision of the con- tract follows : The Union will not cause or permit its members to cause nor will any member of the union take part in any strike or stoppage. . . . The Corporation reserves the right to discipline any employee taking part in any violation of this section. PONTIAC MOTORS DIVISION, GENERAL MOTORS CORP. 415 It is conceded that O'Neil neither caused nor took part in the work stoppage of the machine repairmen. Accordingly, we are unable to conclude that this provision of the contract, interpreted reasonably and in good faith,' provided a lawful basis for the discipline of O'Neil. We need not and do not reach the question whether the Union, by contract, could properly subject its committeemen to employer dis- cipline arising solely out of their union stewardship as distinguished from their conduct as an employee. Certainly, the "no-strike" pro- vision, set forth above, is not a waiver of this statutory right. The Board has been charged by Congress with the initial responsi- bility of determining whether or not an alleged violation of Section 8(a) (3) has occurred. In the exercise of this responsibility the Board cannot leave O'Neil where it finds him. The issue involves not only the right of O'Neil but of all other employees similarly situated to be free from employer discipline for their union activity. This is not a minor factual question which, as in the Spielberg case, had been re- solved by an arbitrator. No impartial arbitrator has ruled in this case. A grievance, carried through step 2 of a grievance procedure, is hardly a substitute for an arbitration proceeding. The Board may not abdicate its exclusive juridiction over unfair labor practices merely because an unlawfully discharged employee has attempted to get his job back by dealing directly with the offending employer. As we are satisfied that O'Neil was initially discharged and then disciplined as a consequence of his union stewardship, we find that Respondent violated Section 8 (a) (3) and (1) of the Act by engaging in such conduct. ORDER Upon the entire record in this case, and pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Pontiac Motors Division, General Motors Corporation, Detroit, Michigan, its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Discouraging membership in International Union, United Automobile, Aircraft, and Agricultural Implement Workers of America, AFL-CIO, and its Local 653 by discriminatorily discharging or disciplining any of its employees with regard to hire, tenure, or any other term or condition of employment except as authorized by Section 8(a) (3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. (b) In any like or related manner interfering with, restraining, or -coercing employees in the exercise of the right of self-organization, to form labor organizations, to join or assist International Union, United 1 Cf. Morton Salt Company, 110 NLRB 1402. 416 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Automobile, Aircraft and Agricultural Implement Workers of Amer- ica, AFL-CIO, and its Local 653, to bargain collectively through representatives of their own choosing and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection as guaranteed in Section 7 of the Act, or to refrain from any and all such activities, except as authorized in Section 8(a) (3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Rescind the 30-day disciplinary layoff imposed upon Wallace R. O'Neil and make him whole for any loss of pay suffered as a result of the discrimination against him. (b) Preserve and, upon request, make available to the Board, or its agents, for examination or copying, all payroll records, social-security payment records, timecards, personnel records and reports, and all other records helpful in analyzing the amount of backpay due. (c) Post at its plant in Detroit, Michigan, copies of the notice attached hereto marked "Appendix." 2 Copies of such notice, to be furnished by the Regional Director for the Seventh Region, shall, after being signed by Respondent's authorized representative, be posted by the Respondent immediately upon receipt thereof, in conspicuous places, including all places where notices to employees are customarily posted, and maintained for a period of 60 consecutive days. Reason- able steps shall be taken to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for the Seventh Region, in writ- ing, within 10 days from the date of this Order, what steps have been taken to comply herewith. MEMBER LEEDOM, dissenting : Unlike my colleagues, I would affirm the Trial Examiner and dismiss the complaint. It is clear that, after investigating the circumstances surrounding the walkout, Respondent discharged O'Neil on the ground that, under the current bargaining agreement, O'Neil had an affirma- tive duty, which he failed to assume, to take positive action, as manage- ment requested, to halt the strike. The contract "no-strike" clause relied upon by Respondent provides inter alia not only that employees will not engage in a work stoppage but also that the Union will not "permit its members to cause . . . any strike or stoppage." 9 It also 2In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order.". 8 In this connection , as found by the Trial Examiner, O'Neil in the course of leaving the plant at the end of his shift told several strikers that the Company had reminded him of his obligation as committeeman to avert work stoppages but he failed to assert him- self further to get the men back on the job. PONTIAC MOTORS DIVISION, GENERAL MOTORS CORP. 417 gives management the right to discipline an employee for violating its provisions. Consequently, the basic issue raised in this case is, as I see it, one involving the interpretation of the contract; that is, whether Respondent had the right under the contract to discipline employee O'Neil for his failure to take certain action to terminate the walkout where, as here, O'Neil was a union committeeman and the union had undertaken not to permit its members to cause any strike or work stoppage. The Board has long held that it will not effectuate the policies of the Act for it to police collective-bargaining agreements by attempt- ing to resolve disputes over their meaning and administration.' The majority, in fact, realizes that it is faced with a question of contract interpretation but seeks to avoid the Board's hands-off policy in this field by stating it is "unable to conclude that . . . the contract, in- terpreted reasonably and in good faith, provided a lawful basis for the discipline of O'Neil." There is not one scintilla of evidence that Respondent in interpreting the contract, as it did, was not acting in good faith. The only basis for the majority view is, apparently, its disagreement with Respondent's interpretation of the contract. Yet, the facts clearly show that Respondent's construction of the agree- ment was not unreasonable. In support of its position, Respondent placed in evidence several arbitration awards rendered by impartial umpires, interpreting the "no-strike" clause and similar provisions in previous contracts. Though these awards did not present questions identical to the one here, they all give substance to Respondent's claim that union committeemen have, under such contractual terms, an affirmative responsibility to avert work stoppages and that the com- pany may properly discipline a committeeman for failing to act in accord with those responsibilities .5 Furthermore, at the grievance sessions which processed O'Neil's discharge, the Union did not main- tain that O'Neil was innocent of any dereliction in his responsibilities under the contract and only contended that the penalty imposed was excessive. A settlement, suggested by the Union, was negotiated, re- ducing the discharge to a 30-day layoff. Consequently, Respondent's interpretation is supported not only by the umpires, whose job it is to construe the agreement, but also by the Union, a party to the con- tract. The dispute then is one solely of contract interpretation and there is clearly no basis for concluding the Respondent's interpretation was unreasonable or not made in good faith. Under these circumstances, 4 Morton Salt Company, 119 NLRB 1402, 1403; see also, National Dairy Products Corporation, Detroit Creamery Division, 126 NLRB 434 ; United Telephone Company of the West and United Utilities, Incorporated, 112 NLRB 779. 6 See Westmoreland Coal Company, 117 NLRB 1072, 1075, in which the Board stated that arbitration awards, which interpret the contract and are final and binding on the parties are "as much a part of the contract . . . as if written in Hunt pro tunc." 418 DECISIONS OF NATIONAL LABOR RELATIONS BOARD I can perceive no useful purpose in this Board's injecting itself into a dispute and holding, in effect, that the parties, themselves, misinter- preted their contract. Thus, in accord with established practice, I would dismiss the complaints CHAIRMAN MCCULLOCH and MEMBER BROWN took no part in the consideration of the above Decision and Order. "Like my colleagues , I believe that it is unnecessary in order to decide the case to reach the issue of the applicability of Spielberg Manufacturing Co., supra, to the settle- ment agreement herein. APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify you that : WE WILL NOT discourage membership in International Union, United Automobile, Aircraft and Agricultural Implement Work- ers of America, AFL-CIO and its Local 653, by discriminatorily discharging or disciplining any of our employees with regard to hire, tenure, or any other term or condition of employment, ex- cept as authorized by Section 8(a) (3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. WE WILL NOT in any like or related manner interfere with, re- strain, or coerce any of our employees in the exercise of the right of self-organization, to form labor organizations, to join or assist International Union, United Automobile, Aircraft and Agricultural Implement Workers of America, AFL-CIO and its Local 653, to bargain collectively through representatives of their own choosing and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protec- tion as guaranteed in Section 7 of the Act, or to refrain from any and all such activities, except as authorized in Section 8(a) (3) of the Act, as modified by the Labor-Management Re- porting and Disclosure Act of 1959. WE WILL rescind the 30-day disciplinary layoff imposed upon Wallace R. O'Neil and make him whole for any loss of pay suf- fered as a result of the discrimination against him. PONTIAC MOTOR DIVISION , GENERAL MOTORS CORPORATION, Employer. Dated---------------- By------------------------------------- (Representative ) ( Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. PONTIAC MOTORS DIVISION, GENERAL MOTORS CORP. INTERMEDIATE REPORT 419 STATEMENT OF THE CASE Upon a charge filed by Wallace R. O'Neil, the General Counsel of the National Labor Relations Board, through the Regional Director for the Seventh Region (De- troit, Michigan) issued a complaint dated November 20, 1959, alleging that the Re- spondent has engaged in and is engaging in unfair labor practices in violation of Section 8(a)(3) and (1) of the Labor-Management Relations Act, as amended. In its answer the Respondent admits certain allegations of the complaint but denies the commission of any unfair labor practices. Pursuant to notice a hearing was held on March 14 and 15, 1960, at Detroit, Michigan, before the duly designated Trial Examiner. All parties were present and were afforded opportunity to adduce evidence, to examine and cross-examine witnesses, to present oral argument and to file briefs. Counsel presented oral argument at the conclusion of the case and on May 23, 1960, counsel for the Company filed a brief which I have considered. 1. THE COMPANY'S BUSINESS The pleadings show that General Motors Corporation is a Delaware corporation and maintains plants in various States including Pontiac Motor -Division plant in Pontiac, Michigan, where it manufactures automobiles and automotive parts. In the course of its business the Company ships goods valued in excess of $1,000,000, from its plant in Pontiac, Michigan, directly to places located outside the State of Michi- gan. I find the Company is engaged in commerce within the meaning of the Act. H. THE LABOR ORGANIZATIONS INVOLVED International Union, United Automobile, Aircraft and Agricultural Implement Workers of America, AFL-CIO, and Local 653 are labor organizations within the meaning of Section 2(5) of the Act. The International and Local 653 are not parties to this proceeding. M. THE ALLEGED UNFAIR LABOR PRACTICES A. The issues The complaint alleges that about April 15, 1959, the Company discharged Wallace E. O'Neil, and about April 17, 1959, reduced the discharge to a 30-day disciplinary suspension, because of his position as union committeeman and his membership in and activities on behalf of the Union. The Company in its answer admits the dis- charge and suspension of O'Neil but avers the action -was directed against O'Neil for nondiscriminatory reasons, namely because he engaged in conduct in violation of the no-strike clause of an existing agreement. B. Preliminary statement The International and the Company have an agreement effective from October 2, 1958, to August 31, 1961, covering hourly rated production and maintenance em- ployees in a bargaining unit covering the Company's various plants throughout the country including the Pontiac plant. Local 653 exercises jurisdiction over the em- ployees in the bargaining unit at the Pontiac plant. The Pontiac plant employs about 9,500 employees. However, the issue in this case is whether nine machine repairmen concertedly refused to work overtime in vio- lation of the no-strike clause of the agreement and whether Wallace R. O'Neil, ma- chine repairman-floorman, carried out his responsibilities as committeeman of Local 653 concerning the concerted refusal to work overtime. All of these individuals were, and are, employed in the bargaining unit. At all times material herein the persons listed below held the positions appearing opposite their respective names: Joseph H. Shimmick, Assistant Personnel Director William Killen, Assistant Master Mechanic Robert Schons, Labor Relations Representative Dallas Avery, Foreman C. The events leading to the imposition of disciplinary penalties against the machine repairmen and O'Neil O'Neil and the repairmen were employed on the midnight or third shift and the occurrences herein took place in April 1959. O'Neil worked in the air tool crib, an area enclosed by a wire fence, where air tools and parts were kept. 614913-62-vol. 132-28 420 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On Friday, April 10, a notice was posted on the timeclock that the machine repair- men would work 61/2 hours on Saturday night, at overtime rates. Herman Sonnen- berg, a machine repairman, complained to Avery that it was inconvenient to work 61/a hours and that the Company should call in fewer men and give them an 8-hour shift. This led to an argument, in which others joined, and when Sonnenberg asked that O'Neil be called in, Avery refused to discuss the matter any further. During the luncheon hour the machine repairmen held a meeting for the purpose of discussing the Saturday overtime work. According to O'Neil, the men reported they had had an argument with Avery regarding the overtime hours and they took the position that they wanted a partial shift on an 8-hour basis instead of a 61/2-hour shift for the entire crew. When the men declared they did not want to report on Saturday, O'Neil told them they had better come in or they would be subject to penalty. They then decided to come in. O'Neil admitted the question of whether the men would work beyond 61/2 hours was "left up in the air," although he "didn't think that would be part of any trouble." In this connection O'Neil told Evan Hum- phrey that he would be subject to penalty if he refused to work more than 61/2 hours on Saturday. Humphrey testified the men agreed they would not work more than 61/2 hours although O'Neil stated they better work if requested. On this subject Daviel Neff said, "There was no particular agreement. It was general discussion, general understanding," they would not work beyond 61/2 hours on Saturday. O'Neil admitted that neither the meeting nor the subsequent refusal to work over- time was authorized by the Union. 1. The occurrences of April 11 and 12 On Saturday, April 11, all the machine repairmen and O'Neil reported for their shift; six of the men, plus O'Neil , worked in the motor plant from 8 : 30 p.m. to 3:30 a.m., while three men worked in the axle plant from 9 p.m. to 4 a.m. Killen testified Avery telephoned him early Sunday morning to report he was having difficulty getting two machine repairmen to work overtime , so he went to the plant, arriving about 2:30. Avery explained he needed two men to work over on a particular job, for an indefinite time, in order that it might be completed by the day shift. Neff and Schuler were working on this job but refused to put in any overtime. About 3 o'clock Killen, with Avery, went to the job and Killen asked Neff and Schuler to work over but Neff said he was not feeling well and Schuler stated he had told his wife he would be home early. Killen then ordered them to work over- time but they refused to do so. As Killen had heard rumors Saturday morning that the repairmen were "unhappy" with the 61/2-hour shift, he telephoned Shimmick to advise him that there was a possibility of a concerted refusal by the repairmen to work overtime. Shimmick suggested that he contact other repairmen and both agreed if there was any indication of concerted action Killen should see the com- mitteeman and remind him of his responsibilities under the agreement. The con- versation ended with Killen stating he would keep Shimmick advised of developments. Killen and Avery then went to the place where Sonnenberg was working and when Killen directed him to work overtime Sonnenberg declined because his wife was to meet him at the gate. Avery offered to inform his wife that he was working late'and to ride Sonnenberg home at the end of his shift, but Sonnenberg still refused to work over. Killen and Avery were unable to locate the other repairmen in the motor plant. However, Killen stated Avery had already talked to these men and they had refused to work overtime. Neff and Sonnenberg did not deny Killen's testimony, in fact Neff admitted he told Avery, "that d was sick, and why should I be a heel and work over, and then he [Avery] left right away." Between 3:26 and 3:29 Killen, accompanied by Avery, went to the air tool crib to talk to O'Neil. There is no serious dispute between Killen and O'Neil regarding their conversation and subsequent events. Killen stated the machine repairmen had declined to work overtime and it appeared that there was a concerted refusal on the part of the men to work more than 61/2 hours. Killen told O'Neil it was his responsi- bility to tell the men to go back to work. O'Neil said this is a fine time to tell him, that the men were going home and he did not see where he could do anything. At that point Killen left the tool crib to take a telephone call from Shimmick in the toolroom office and O'Neil left to punch out at the timeclock. The crib, office, and timeclock are all in the immediate area. In short, Killen informed Shimmick it looked like a concerted refusal to work overtime and while he had spoken to O'Neil, he made no effort to get the men back to work. Killen further stated O'Neil and the men were punching out and Shimmick asked that he call O'Neil to the telephone, PONTIAC MOTORS DIVISION, GENERAL MOTORS CORP. 421 which he did. O'Neil punched out and came to the telephone. Shimmick told O'Neil it was apparent there was a concerted refusal to work over and it was O'Neil's duty as a committeeman to order the men to go back to work. O'Neil replied he had talked to Killen about the matter and it was then 3:31. Shimmick said he knew the time and told O'Neil to get out there and talk to the men about coming back. O'Neil said he would go right out but he doubted if he could find anyone since the men leave in a hurry. O'Neil then handed the telephone to Killen and left for the parking lot. Shimmick gave Killen the substance of his conversation with O'Neil and instructed him to watch O'Neil to see what, if anything, he did. As O'Neil came out of the office he met Ronald Smith, alternate committeeman, who inquired what Killen was doing at the plant that hour of the morning. O'Neil explained there was some trouble getting the men to work overtime. O'Neil saw Neff standing on the mezzanine floor, a short distance away, so he went to Neff and told him, "I had talked with Killen and Mr. Shimmick right now on the phone and they had reminded me of my obligation as a committeeman to order him [Neff] to go back to work." Neff said he had refused a direct order from both Killen and Avery, that he was sick and was not going to work overtime. At that point Humphrey came on the scene and O'Neil repeated his remarks to Humphrey. Humphrey stated he had just told Avery he was not working overtime, that he and his wife had made plans and he was not changing them. O'Neil then went to the parking lot where he spoke to Sonnenberg as the latter was about to leave in a car driven by another man. O'Neil again repeated the above remarks to Sonnenberg who expressed his opinion of Killen and Shimmick in strong language and refused to work overtime. Sonnenberg and his companion then drove off. Seemingly, O'Neil then left the plant. O'Neil said he was unable to contact the other three men because it was too late. He further stated he did not contact the three men in the axle department for the reason he believed these repairmen were working the same hours as those in the motor department. O'Neil said he had no advance knowledge of any concerted refusal to work overtime and did not know how many men the Company needed on this occasion. O'Neil was not requested to work overtime although earlier that night he declined Avery's offer for "representation overtime" because he seldom accepted such overtime.' Killen saw O'Neil talk to Neff and Humphrey and walk toward the exit with Humphrey. Killen followed them and observed three unidentified men just outside the gate who, upon seeing Killen, hurriedly walked toward the parking lot. Killen returned to the office and he and Foreman Cotton went to the axle depart- ment where he spoke to the three machine repairmen who were scheduled to work until 4 o'clock. Both Killen and Cotton directed the men to work over but they refused to do so. 2. The Company's investigation of the matter; the meeting of April 14 and 15 On Monday, April 13, Shimmick talked with Killen and Avery and then instructed the Company's labor relations representatives to interview the machine repairmen regarding their refusal to work overtime. The same evening or night the representa- tives interviewed the nine machine repairmen and gave Shimmick statements or reports of their respective interviews. The statements 2 or reports uniformly show that the machine repairmen refused to work overtime for personal reasons. They also disclose that O'Neil did not request or order any of the men to work over. After receiving the statements or reports Shimmick arranged that Killen and Schons meet with O'Neil, during his work shift commencing midnight Tuesday, April 14, concerning his conduct in the matter. Prior to this meeting, apparently at the commencement of the shift, the nine machine repairmen were given disciplinary layoffs for 1 week for their refusal to work overtime. Around midnight Tuesday, O'Neil and Smith, the alternate committeeman, met with Killen and Schons in Killen's office. Schons, according to O'Neil, stated he had obtained statements from the repairmen and the meeting was called to hear O'Neil's side of the story. O'Neil then gave his account of events starting with the meeting of the men on Friday and the occurrences of Saturday night and Sunday morning, substantially as set forth above. During the meeting O'Neil asked to see the state- ments of the repairmen but Killen denied his request. Toward the end of the meeting 'According to O'Neil representation overtime is offered to a committeeman in accord- ance with the agreement when 10 or more men are working in his district. The accept- ance of representation overtime is discretionary with the committeeman. 2 Only two of the men signed statements, Zegelien and Troxell. 422 -DECISIONS OF NATIONAL LABOR RELATIONS BOARD Schons said O'Neil had made one mistake, that in speaking to the repairmen he should have told them, "I, as your committeeman, am ordering you back to work," instead of advising them that Killen and Shimmick had reminded him of his obligation as committeeman to order them to go back to work. O'Neil replied he did not consider this necessary because he had been committeeman for the men for 2 years. Schons and Killen twice left the meeting and when they returned the second time, about 1:10 a.m., Killen informed O'Neil he was discharged and handed him his employ- ment termination slip. The slip which was signed by Killen and Avery stated O'Neil was, "Discharged for Viol. of Strikes and Stoppages Sect. (Par. 117) of Nat'l Agree. Negative leadership as a committeeman." O'Neil and Smith immediately wrote out a grievance, or grievances, protesting the discharge as unjust, poor-faith bargaining in that Killen and Schons refused further discussion of the disciplinary action and requesting the production of the statements obtained by management from the repairmen. Killen forthwith denied the grievance or grievances. - Schons, who had previously interviewed Neff and Zegelien, advised O'Neil that the purpose of the meeting was to determine whether O'Neil had properly fulfilled his obligations as a committeeman in the work stoppage situation. O'Neil asked how many of the machine repairmen had been contacted and Schons stated all of them had been interviewed. Schons questioned O'Neil about the events of Friday, Satur- day, and Sunday and O'Neil gave the same version as stated above, the gist of it being that he did not know of the refusal to work overtime until it was too late to do anything about it. Schons denied making any statement to the effect that O'Neil would not be subject to penalty if he had directly ordered the men to go back to work in his capacity as committeeman, rather than telling them Shimmick had instructed him to do so. At the conclusion of the interview Killen and Schons recessed the meeting to consider the matter and following a discussion Schons called Shimmick to inform him of the interview. Shimmick said O'Neil should be discharged and gave instructions as to the wording of the termination notice. Killen and Schons returned to the office in about 10 minutes at which time Killen told O'Neil he was being discharged. Schons then left to have a termination notice prepared and when he came back to the office Killen was answering a grievance. Schons gave the termination notice to Killen and left. Killen signed the notice and handed it to O'Neil. Avery signed it sometime later. 3. The resolution of O'Neil's grievance under the grievance procedure of the contract Pursuant to the request of the chairman of the shop committee, the Company agreed to meet with the committee on the afternoon of April 15, in accordance with step 2 of the grievance procedure of the contract, which provides for the consideration and resolution of grievance at the shop .committee plant-management level. On that date Shimmick met with the full committee, the president of Local 653 and a repre- sentative of the International Union, but they were unable to reach any settlement of the matter. The next day a second meeting was held by the same group, plus an additional International representative, but again they failed to agree upon a settle- ment. However, on April 17, the parties settled the grievance on the basis of reducing O'Neil's discharge to a 30-day disciplinary layoff. As customary in such cases, Shimmick signed a settlement memorandum, which reads as follows: Without prejudice to the position of either party, the disciplinary discharge of Wallace O'Neil shall be reduced to a thirty day disciplinary layoff for his negative leadership in a Machine Repair Department strike situation. O'Neil did not protest the settlement, although step 3 of the grievance procedure provides for appeals of unadjusted grievances to the Corporation and the International Union, and step 4 provides for appeals to an impartial umpire. Upon expiration of the penalty O'Neil was reinstated and was still employed by the Company. Seemingly, gat the same time the disciplinary 1-week layoff for the machine repair- men was reduced to 3 days. O'Neil admitted he processed his grievance through contract procedures, that he gave no indication to the Union that he would not be bound by the results thereof, that he accepted the benefits of the settlement agreement and did not request any further action or appeal as provided in the grievance procedure. He also stated no mention was made of his waiving his rights under the Act by processing his grievance under contract procedure. O'Neil filed the instant charge against the Company on April 21. PONTIAC MOTORS DIVISION, GENERAL MOTORS CORP. 423 Concluding Findings From the foregoing evidence I find that on Friday, April 10, the machine repair- men were dissatisfied at their having to work a 61/2 -hour shift on Saturday. Accord- ingly, they held a meeting during their luncheon period for the purpose of expressing their views on the matter and whether they would report for that shift. O'Neil pointed out the men would be subject to penalty if they failed to report and they decided they would come in Saturday. The question then arose whether the men would work more than the posted 6V2. hours. O'Neil asserted there was no final decision on that point, that it "was left up in the air," but he did not expect any trouble in that regard. He also told Humphrey, in the presence of three men, that Humphrey would be subject to penalty if he refused to work overtime on Saturday. Both Humphrey and Neff testified that the men agreed they would not work more than 61/a hours on Saturday. The meeting then ended. Subsequent events demon- strate that the repairmen followed the plan adopted at the meeting. Thus, on Satur- day night each man reported for work as scheduled and each man refused a direct request and order by Killen and Avery to work overtime. I have no difficulty what- ever in finding that the repairmen engaged in a prearranged concerted refusal to work overtime. I am not persuaded by the efforts of the repairmen to create the impression that his refusal to work over was prompted by personal reasons, which are flimsy and unconvincing, rather than being a participant in a concerted effort to resist working beyond the 61/2 -hour shift. After the repairmen in the motor department had uniformly refused to obey Killen's order to work over, Killen, a few minutes before quitting time, advised O'Neil that apparently the men were engaging a concerted effort to refuse to work overtime and it was his responsibility as committeeman to order the men back to work. O'Neil replied this was a fine time to tell him, that the men were going home and he did not see where he could do anything. Again, a few minutes later, and immediately after he had punched out, O'Neil had a telephone conversation with Shimmick which was substantially a repetition of his conversation with Killen. Following this conversation O'Neil explained the situation to Smith and then told Neff, Humphrey, and Sonnenberg that Killen and Shimmick had reminded him of his obligation as committeeman to order them back to work, but they refused to do so. O'Neil's testimony that he had no advance knowledge of any concerted refusal to work overtime, considered in the light of the events and findings herein, is simply unbelievable and is, therefore, rejected by me. Thereafter, as detailed above, the Company conducted an investigation of the matter, afforded O'Neil an opportunity to explain his conduct,3 and as a consequence O'Neil was ultimately given a 30-day disciplinary layoff. There is no evidence, or contention, that O'Neil's discharge and suspension was motivated by the Company's opposition to organization or the Union, or hostility toward O'Neil. It is the theory of the General Counsel that the evidence shows that O'Neil neither instigated the stoppage or refusal to work over nor failed to take appropriate measures as committeeman to induce the repairmen to refrain from such action. Consequently, as O'Neil, as committeeman, was engaging in protected activities the disciplinary action assessed against him constitutes an unfair labor practice, assuming the Company honestly believed he had engaged in mis- conduct in the performance of his duties as committeeman. The General Counsel cites Rubin Bros. Footwear, Inc., 99 NLRB 610, to support his position. The Rubin Bros. case involved the refusal of the Company to reinstate a striking employee because of misconduct during the strike. While recognizing the principle that em- ployees lose their statutory protection by reason of misconduct while participating in union or concerted activities, the Board enunciated the rule that an employer's good-faith belief of misconduct becomes irrelevant if the General Counsel proves at the hearing that in fact no misconduct occurred .4 8 O'Neil claimed that at the meeting of April 15, Schons said the only mistake he had made was his failure to order the men back to work as committeeman. Schons denied making any such statement . From my observation of the witnesses and having already found O'Neil to be an unreliable person, I reject his testimony on this point and credit Schons' testimony . I also reject his testimony that Avery had signed the termination slip when it was handed to him. 4 The Circuit Court of Appeals for the Fifth Circuit denied enforcement of the order in the Rubin Bros. case, 203 F. 2d 486. The Board has expressed disagreement with the Court's views in Wichita Television Corporation Incorporated, d/b/a KARD-TV, 424 DECISIONS OF NATIONAL LABOR RELATIONS BOARD I do not consider the Rubin Bros. case as controlling for the rule established in that case deals with usual claim of strike misconduct whereas here the question of whether O'Neil fulfilled his duties as committeeman arises from an existing con- tractual relationship between the Company and the Union .5 It follows, therefore, that in order to sustain the General Counsel's position I would have to construe the contract contrary to the interpretation of the parties thereto. Manifestly, I cannot substitute my judgment for that of the Company and the Union on the question of whether O'Neil displayed negative leadership in accordance with the terms of the agreement and prior umpire decisions on that point. Nor can I say that the 30-day disciplinary suspension was an unreasonable penalty. In National Dairy Products Corporation, Detroit Creamery Division, 126 NLRB 434, the Board held that where the dispute between the Company and the Union was concerned solely with the interpretation of their contract, and there was no showing the Company's interpretation was motivated by union animus or was acting in bad faith, the Board was not the proper forum for the parties seeking to remedy an alleged breach of the contract. But, granting the rule in Rubin Bros. is applicable, I am of the opinion the record as a whole supports the Company's position that O'Neil exercised nega- tive leadership in the affair. Thus, at the Friday meeting O'Neil made no effort to dissuade the men from carrying out their concerted refusal to work overtime, other than to tell Humphrey he would be subject to penalty if he refused to work over. Again, on Sunday morning, when appraised of the stoppage O'Neil took the posi- tion that it was too late to do anything and when pressed by Killen and Shimmick to order the men to go back to work he couched his instructions to three men as coming from management instead of coming from himself as committeeman. I find that by taking disciplinary action against O'Neil under the circumstances herein, the Company did not thereby violate Section 8(a)(3) and (1) of the Act. Company counsel contend that since any issue concerning the disciplinary action against O'Neil was resolved through the grievance procedure of the contract the Board should decline to exercise jurisdiction in the matter, citing Spielberg Manu- facturing Company, 112 NLRB 1080, and other authorities. In the Spielberg case, the Board held the company did not violate the Act by refusing to reinstate four striking employees for picket line misconduct where the refusal was based on an arbitration award entered pursuant to agreement between the Company and the Union. The Board in sustaining the award as a defense to a charge of unfair labor practices stated: In summary, the proceedings appear to have been fair and regular, all parties had agreed to be bound, and the decision of the arbitration panel is not clearly repugnant to the purposes and policies of the Act. In these circumstances we believe that the desirable objective of encouraging the voluntary settlement of labor disputes will best be served by our recognition of the arbitrators' award. Here O'Neil initiated the processing of his grievance, acquiesed in the procedure and accepted valuable advantages of the settlement. There is no suggestion what- ever of any unfairness or irregularity in the proceedings. This case differs from the Spielberg case in that the dispute was resolved between management and the local union at step 2 of the grievance procedure rather than through the formality of an umpire's decision or an arbitration award. I do not consider the distinction important. Indeed, I think the representatives of the Company and the Union are to be commended for resolving this issue as they did. Of course, if O'Neil had been dissatisfied with the settlement agreement additional grievance procedures were open to him. Instead of pursuing contract procedures O'Neil filed a charge with the Board. It strikes me that having rescued his job through the grievance procedure, O'Neil then decided to try his luck with the Board and attempt to collect pay for his 30-day suspension. I can find no merit or substance in O'Neil's case. In line with the Spielberg case and the facts herein, I find it would not effectuate the policies of the Act to assert jurisdiction for the purposes of setting aside the settlement agree- ment.6 122 NLRB 222, 226, footnote 15; Twenty-fourth Annual Report, p. 63, footnote 51. In such circumstances I am bound to follow Board precedent. (The Prudential Insurance Company of America, 119 NLRB 768, 772-773 ) B See : Kennecott Copper Corporation, Ray Mines Division, 121 NLRB 801 ; American Gilsonate Company, 121 NLRB 1514. 6 During his oral argument the General Counsel stressed the point that the Board's jurisdiction over unfair labor practices is not restricted by any adjustment or agreement of private parties, citing Thomas W. Dant, et al, d/b/a Dant & Russell, Ltd, 92 NLRB DURALITE CO., INC. 425 Upon the basis of the foregoing findings of fact and upon the entire record, I make the following: CONCLUSIONS OF LAW 1. The operations of the Respondent occur in commerce within the meaning of Section 2 (6) and (7) of the Act. 2. The Unions are labor organizations within the meaning of Section 2(5) of the Act. 3. The Respondent has not engaged in unfair labor practices within the meaning of Section 8(a) (3) and (1) of the Act. [Recommendations omitted from publication.] 307; Todd Shipyards Corporation, Los Angeles Division, 98 NLRB 814; and Columbus Iron Works Company, 107 NLRB 1354. The Board recognized and discussed that prin- ciple in the Spielberg case. While the above cases support the proposition for which they are cited, I think it sufficient to state that the facts In each of the cases are clearly distinguishable from the facts found herein. Duralite Co., Inc. and Metal, Plastics, Miscellaneous Sales, Nov- elty and Production Workers Union Local 222, International Production, Service and Sales Employees Local 485, International Union of Electrical, Radio and Machine Workers, AFL-CIO and Metal, Plastics, Miscellaneous Sales, Novelty and Production Workers Union Local 222, Interna- tion Production, Service and Sales Employees Duralite Co., Inc. and Dolores Ramos Local 485, International Union of Electrical, Radio and Machine Workers, AFL-CIO and Dolores Ramos Local 222, Metal, Plastics, Miscellaneous Sales, Novelty and Production Workers Union, International Production, Service and Sales Employees and Local 485, International Union of Electrical, Radio and Machine Workers, AFL-CIO and Dura- lite Co., Inc., Party to the Contract. Cases Nos. 2-CA-6416, 2-CB-2518, 2-CA-6505, 2-CB-25°26, and 2-CB-2497. July 25, 1961 DECISION AND ORDER On September 6, 1960, Trial Examiner Max M. Goldman issued his Intermediate Report in the above-entitled proceeding, finding that the Respondents had engaged in and were engaging in certain unfair labor practices within the meaning of Section 8(a) (1), (2), (3), and (5) and Section 8(b) (1) (A) and (2) of the National Labor Rela- tions Act, as amended, and recommending that they cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the Respond- ents, Duralite Co., Inc., hereinafter referred to as Duralite, Local 485, International Union of Electrical, Radio and Machine Workers, AFL- 132 NLRB No. 28.