Stearns-Roger Mfg. Co.

172 DECISIONS OF NATIONAL LABOR RELATIONS BOARD may, depending upon the outcome of the elections , constitute appro- priate units : (1) All employees in voting groups (a), (b), (c), and (d) ; (2) all employees in voting group (a), including the pharmacists in (c) ; (3) all employees in voting group (b), including the pharmacists in group (d) ; (4) all employees in voting groups ( a) and (b) ; (5) all employees in voting group ( a) ; (6) all employees in voting group (b) ; (7) all pharmacists in voting groups (c) and (d) ; (8) all pharmacists in voting group (c) ; (9) all pharmacists in voting group (d). [Text of Direction of Elections omitted from publication.] Stearns-Roger Mfg. Co. and Loyd Elmer Rickman. Case No. 31-CA-4302. November 15, 1961 DECISION AND ORDER On August 30, 1961, Trial Examiner Wallace E. Royster issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had not engaged in certain unfair labor practices and recommending that the complaint be dismissed, as set forth in the Intermediate Report attached hereto. Thereafter, the Respondent filed a brief in support of the Intermediate Report and the General Counsel filed exceptions to the Intermediate Report and a supporting brief. Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman McCulloch and Members Rodgers and Fanning]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The Board has considered the Intermediate Report, the exceptions and briefs, and the entire record in this case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner. [The Board dismissed the complaint.] INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE This matter came on to be heard before Wallace E. Royster , the duly designated Trial Examiner, in Los Angeles and San Bernardino, California, on July 5 and 6, 1961 . At issue is whether Stearns -Roger Mfg. Co., Denver, Colorado, herein called the Respondent, has by the discharge of Loyd Elmer Rickman discriminated in regard to his hire and tenure of employment in violation of Section 8(a)(1) and ( 3) of the National Labor Relations Act, as amended. 134 NLRB No. 34. STEARNS-ROGER MFG. CO. 173 Upon the entire record in the case,' upon consideration of briefs submitted by counsel, and upon my appraisal of the credibility of the witnesses appearing before me, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The complaint alleges, Respondent's answer admits, and I find that the Respondent is a corporation with its principal office in "Denver, Colorado. It is engaged in engineering, purchasing, and constructing industrial plants. During the year pre- ceding the issuance of the complaint; the Respondent purchased goods and services valued at more than $50,000 from suppliers located outside the States of California and Colorado. During the same period the Respondent in the course of its business operations made sales or performed services to customers located outside the States of California and Colorado to a value in excess of $50,000. The Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED Plumbers, Refrigeration and Fitters U.A. Local Union 364, 'AFL-CIO, herein called the Union, is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES Under the superintendency of W. T. Sweeney, the Respondent is engaged at Trona, California, in construction work for American Potash Company. At all times of interest here, the Respondent has employed at Trona a large number of workers, many of them in skilled classifications . The record suggests that all of these workers are represented by labor organizations appropriate to, the craft in- volved and that all are covered by collective -bargaining agreements running between the respective unions and the Respondent. In November 1960, Loyd Elmer Rick- man was dispatched by the Union to the Trona job and became Respondent's employee. From the day of his hire until his discharge on February 3, 1961, Rick- man was the job steward for the Union . In this capacity, Rickman testified, he sought to insure that the employees and the Respondent lived up to the collective- bargaining agreement and, when occasion required , presented grievances to the Respondent in behalf of the group of employees under his stewardship . The evi- dence fairly establishes that Rickman was active in protecting the jurisdiction of the Union. ' Within 2 weeks of his hire, Rickman came unfavorably to the notice of Ed Steinfeldt, Superintendent Sweeney's assistant . Misinterpreting an action by Stein- feldt and concluding that Steinfeldt was critical of Rickman 's work in some particu- lar, he asked Steinfeldt , in what I conceive to have been a somewhat belligerent manner, what the latter meant by a remark he had made to another employee. When Steinfeldt explained that what he had said concerned the work of the other, Rickman apologized for reaching a hasty and erroneous conclusion . Sweeney tes- tified that Steinfeldt reported the incident to him and that Steinfeldt characterized Rickman's language as abusive . Believing that Rickman had thus exhibited qualities which promised to cause difficulty if he remained as steward , Sweeney requested the business agent of the Union to remove Rickman from that office. Rickman remained on. In December, a dispute arose between Rickman, representing the interest of his Union, and Elmer Green, an employee of the Respondent and steward for the Iron, Workers Union , herein called the Iron Workers. Sweeney settled the matter by assigning the work in question to the Iron Workers. On several subsequent occa- sions, Rickman and Green became - involved in disputes with the result that an unfriendly feeling developed between them. On February 3, before shift time, Rickman and Green engaged in an argument on Respondent's property which became heated and abusive. Rickman told Green of the low opinion in which he held the latter and said in sum that Green was unfit to occupy the office of steward . Within a few minutes Green reported this alterca- tion to Sweeney who told Green , "I would have punched him in the nose and would have been done with it." - ' Within a few minutes Steinfeldt, came to Sweeney to report that a crew of iron- workers was idled waiting for a crane motor to warm up; that the crane operator asserted that Rickman had called him a "scab"; and that "the boys were a -little 1 The unopposed motion of counsel for the 'General Counsel to correct the transcript is granted . 'I ` ' 174 DECISIONS OF NATIONAL LABOR RELATIONS BOARD upset." Going to Rickman, Sweeney asked if he had called the crane operator, Wayne Hibbs, such a name. Rickman denied that he had done so. Taking Rickman to Hibbs, Sweeney asked if Rickman had spoken to Hibbs as Steinfeldt reported. Hibbs said that Rickman had called him a "scab" or some equally opprobrious name because Hibbs had followed a practice of starting the crane motor before his shift started.2 Rickman expressed astonishment that Hibbs would make such a charge but Hibbs insisted that he was relating fact. Rickman and Sweeney left the crane together. Rickman said that Hibbs was lying. Sweeney asked why Rickman had not accused Hibbs of falsification and suggested that he and Rickman return to Hibbs' presence so that Rickman could put the lie to him. Rickman refused the opportunity. Further exchanges took place then between Rickman and Sweeney. Rickman testified, and I credit him, that Sweeney called him a "professional" steward and said that Rickman was "no good", for the job; that he constantly kept the job "stirred up." Finally Rickman went back to work and Sweeney to his office. At 4:30 that afternoon Rickman was given notice of discharge and a slip reading, "This man is being terminated for the good of the job. As a steward he causes conflicts among other crafts. However his services have been very satisfactory as a worker." Earlier in the day Rickman remarked to his superintendent, Keegan, that he felt his difficulties had come about because of "personalities." Keegan said that he thought this was true. The General Counsel argues that as the Respondent was not dissatisfied with Rickman as a workman, it follows inevitably that the discharge was motivated by a desire to rid itself of Rickman because of his activities as steward. I think that the discharge was caused, in part at least, by Rickman's conduct as a steward. It is perhaps unnecessary to observe that the office of steward does not broaden an employee's protection under the Act. As a simple employee or as one designated as steward, Rickman had a right to be free from employment discrimination because of his protected activities in behalf of the Union. It is obvious, of course, that whatever ill will Rickman engendered in the breast of Sweeney because of his alter- cation with Steinfeldt in late November did not derive from any antipathy on the part of Sweeney toward union membership or activity. On that occasion no such considerations were involved. Although Sweeney must have deplored the less than cordial relations existing between Rickman and Green, I am wholly unpersuaded that this circumstance had any operative effect in bringing Sweeney to the ponit of dis- charging Rickman. As a witness, Rickman denied that he had spoken to Hibbs concerning starting the crane motor and strongly insisted that he did not call Hibbs a scab or apply any uncomplimentary name to him. Hibbs testified just as strongly that Rickman did indeed do both. As between the two, I credit Hibbs. However, I think nothing turns upon this resolution. I am convinced from listening to Super- intendent Sweeney on the witness stand that Sweeney credited Hibbs' account of the incident .3 One may argue at length concerning the degree of defamation carried by the word "scab." Sweeney thought it to be a serious matter and I think it must be conceded that such a reaction is not unreasonable. I have no disagreement with the contention of the General Counsel that ". .. the legality of a steward's activities cannot be measured in terms of the number of grievances or the steward's fervor." I find that the Respondent did not attempt such a measurement. The discharge as I view it, was not motivated in any degree by the number of grievances presented and there is no basis in this record for a finding that Rickman used the grievance procedure excessively. That Sweeney character- ized Rickman as a "professional" steward is undenied. Surely Sweeney did not use this appellation in any complimentary sense but there is little reason to suppose that Sweeney had reference to anything other than the Hibbs incident. The occasion on which Sweeney reminded Rickman that the latter was "just a steward" is probative of nothing more than that Sweeney, for the Respondent, was xhe one charged with the responsibility of decision. In telling Hibbs that he was a "scab" because he started the crane motor early Rickman no doubt considered that he was acting within the ambit of duty devolving upon him as a steward. Perhaps he was, but in the interest of preserving harmony among the crafts on the job the Respondent was not precluded from taking disciplinary action in the circumstances. The sum of the evidence persuades that Sweeney learned from the Steinfeldt incident that Rickman was a man quick to conclude that he had been offended and rather trucu- lently to express his resentment. Against this background, believing that Hibbs had' been insulted, as he testified he was, and reasonably feeling, I find, that such conduct • 2 By starting the crane motor a few minutes before 8 a .m. the crane would be ready to operate at the hour scheduled for beginning work. 3 Rickman testified that on February 3 Sweeney appeared to believe Hibbs. THE MURRAY OHIO MANUFACTURING COMPANY 175 on the part of Rickman constituted a threat to agreeable relations among the crafts on the job, Sweeney decided upon the discharge . Rickman was correct in his belief that his personality was involved . A conclusion that any persistency in the presenta- tion of grievances by Rickman contributed to this decision , in the absence of any evidence of union antipathy on the part of the Respondent, would lack record support. I find that the evidence does not sustain the allegation of the complaint that Rickman was unlawfully discharged. CONCLUSIONS OF LAW 1. Stearns-Roger Mfg. Co. is an employer within the meaning of Section 2(2) of the Act and its operations are in and affect commerce within the meaning of Section 2(6) and (7) of the Act. 2. Plumbers, Refrigeration and Fitters U.A. Local Union 364, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. The evidence does not establish that Loyd Elmer Rickman was discharged in violation of Section 8(a)(1) or (3) of the Act. ' [Recommendations omitted from publication.] The Murray Ohio Manufacturing Company and International Union, United Automobile, Aircraft & Agricultural Imple- ment Workers of America, AFL-CIO and James A. Brown, T. Ralph Hurst, Charles R. Jacobs, Buen E. Odem, James L. Calton, Arthur D. Barton, James E. T. Pratt, C. L. Walker, Charlie P. Barton, R. C. Killen, George M. Head, Yeat Stutts, Jr., A. F. Jenkins, Clarence E . Lopp, Edith McMullin, I. F. McMullin, James V. Sudduth , Haden Long, James L. Runnels, Ronald Hartlein, William L. Clark, and Robert W. Brown. Cases Nos. 26-CA-878 (formerly 10-CA-3481), 26-CA-854, 26- CA-855, 26-CA-857, 26-CA-858, 26-CA-859, 26-CA-860, 26-CA- 861, 26-CA-862, 26-CA-863, 26-CA-864, 26-CA--865, 26-CA-866, 26-CA-867, 26-CA-868, 26-CA-869, 26-CA--870, 26-CA-871, 26- CA-872, 26-CA-873, 26-CA-875, 26-CA-876, and 26-CA-877 (formerly 10-CA-3419, et al. ). November 15, 1961 DECISION AND ORDER On November 19, 1959, Trial Examiner Lee J. Best issued his Inter- mediate Report in the above-entitled proceedings, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the Intermediate Report attached hereto. The Trial Examiner further found that the Re- spondent had not engaged in certain other unfair labor practices al- leged in the complaint and recommended dismissal of those allega- tions. Thereafter, the General Counsel and the Respondent filed exceptions to the Intermediate Report and supporting briefs. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The 134 NLRB No. 19.