The R. J. Tower Iron Works, Inc.

THE R. J. TOWER IRON WORKS, INC. 445 agree to post a performance bond, or any other proposal not involving terms and conditions of employment. WE WILL NOT discourage membership in the above-named Union, or any other labor organization, by refusing to reemploy, or otherwise discriminating in regard to hire or tenure of employment, or any term or condition of employment. WE WILL offer to reinstate Andrew Baylock to his former or substantially equivalent position, without prejudice to his seniority and other rights and privi- leges, and make him whole for any loss of pay suffered as a result of the dis- crimination against him. WE WILL NOT in any other manner interfere with, restrain, or coerce our em- ployees in the exercise of their right to self-organization, to form, join, or assist the above-named Union, or any other labor organization, 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, or to refrain from any or all such activities. AMERICAN COMPRESS WAREHOUSE, DIVISION OF FROST-WHITED COMPANY, INC., Employer. Dated------------------- By------------------------------------------- (Representative) (Title) NOTE.-We will notify the above-named employee if presently serving in the Armed Forces of the United States of his right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act of 1948, as amended, after discharge from the Armed Forces. This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. Employees may communicate directly with the Board's Regional Office, T6024 Fed- eral Building (Loyola), 701 Loyola Avenue, New Orleans 12, Louisiana, Telephone No. 529-2411, if they have any question concerning this notice or compliance with its provisions. The R. J. Tower Iron Works, Inc. and Shurley Brown. Case No. 7-CA-4039. September 9, 1963 DECISION AND ORDER On June 19, 1963, Trial Examiner William F. Scharnikow issued his Intermediate 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 attached Intermediate Report. There- after, 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 [Members Leedom, Fanning, and Brown]. 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 Inter- mediate Report, the exceptions and brief, and the entire record in the 144 NLRB No. 53. 446 DECISIONS OF NATIONAL LABOR RELATIONS BOARD case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner.' [The Board dismissed the complaint.] 1 We agree with the Trial Examiner that Personnel and Office Manager Amidon's alleged surveillance of the November 10 union meeting does not constitute a violation of Section 8(a) (1) of the Act in the particular circumstances present herein However, in so doing, we do not adopt or rely upon his further comment that the principle of de minimis is applicable to the resolution of the instant unfair labor practice allegation. Cf Faulhaber Company, 129 NLRB 561, footnote 1. We also agree with the Trial Examiner that the Respondent did not violate Section 8(a) (3) and/or 8(a) (1) of the Act by discharging employee Shurley Brown because he was an argumentative and troublesome individual. The existing collective-bargaining agree- ment between the Respondent and the Union contains a formal four-step grievance- arbitration procedure whereby an individual could process a grievance through his Union This procedure commences with the presentation of a written grievance to the aggrieved employee's foreman The evidence here clearly establishes that employee Brown never availed himself of the procedure and that his discharge was not in any sense caused by the filing of grievances. (Cf Bowman Transportation, Inc, 134 NLRB 1419, and H Mnehl- stein if Co., Inc, 118 NLRB 268) Rather, employee Brown individually pressed his own complaints by voicing them directly to his supervisor, Foreman Brown ; in this regard, the Trial Examiner also found that on one occasion employee Brown was "speaking harshly and sarcastically" to his supervisor. Additionally, employee Brown once complained di- rectly to Sanders who, coincidentally, was situated nearby and who also served as union president All of these complaints by employee Brown appear to be purely personal in nature Accordingly, we find that they do not constitute protected "concerted" activity within the meaning of Section 7 of the Act See Ryder Tank Lines, Inc, 135 NLRB 936, 938, citing, with approval, N L R.B, v. Gibbs Corporation, 284 F. 2d 403, 404-406 (CA 5) INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE The complaint in the present case was issued on February 14, 1963, on the basis of charges which had been filed on December 20, 1962, by Shurley Brown, an indi- vidual, against the Respondent, The R. J Tower Iron Works, Inc. In substance, the complaint alleges that the Respondent committed unfair labor practices affecting commerce within the meaning of Sections 8(a)(l) and (3) and 2(6) and (7) of the National Labor Relations Act, as amended (29 U S.C. Sec. 151, et sea.), by (1) subjecting a union meeting of its employees to surveillance on November 10, 1962; and (2) discharging Shurley Brown on December 5, 1962, and thereafter failing and refusing to reinstate him to his former position of employment with the Respondent, "because Shurley Brown engaged in Union or concerted activities " In its answer, the Respondent denies committing the unfair labor practices al- leged by the complaint. Although it admits that James L. Amidon, its personnel and office manager, "did check on [its] employees' attendance" at the meetine on November 10, 1962, the Respondent further states in its answer that Amidon did so because the "employees had been excused from work with pay for the purpose of attending said meeting"; that Amidon's conduct "was a single isolated event"; that the Respondent did not thereby intend to interfere with, nor did it actually interfere with, its employees' concerted activities; and that, in subsequently discussing the incident with the union representatives of its employees, the Respondent satisfied them by promising that Amidon's conduct would not be repeated With respect to Shurley Brown, the Respondent asserts in its answer that "the [aforesaid] isolated activity of James L. Amidon was not connected in any manner with the discharge of Shurley Brown"; that Brown "was an argumentative and troublesome emnlovee who failed to comply with the standards of conduct expected from all of Respond- ent's employees"; and that Brown was discharged "for conduct other than his Union activity or other concerted activities." Pursuant to notice, a hearing was held before Trial Examiner William F. Scharni- kow at Grand Rapids, Michigan, on March 28, 1963. The General Counsel and the Respondent appeared by counsel and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing upon the issues. At the conclusion of the hearing, the parties waived oral argument. THE R. J. TOWER IRON WORKS, INC. 447 Since the hearing, I have received and considered briefs from the General Counsel and the Respondent. Upon the entire record in the case, and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The Respondent, a Michigan corporation, with its only office and place of business in Greenville, Michigan, is engaged in the manufacture, fabrication, sale, and dis- tribution of metal stampings and related products. During the representative year ending August 31, 1962, the Respondent purchased and caused to be transported and delivered to its Greenville plant directly from points located outside the State of Michigan, metal products and other goods and materials of a value in excess of $400,000. During the same year the Respondent manufactured, sold, and distributed products of a value exceeding $500,000. Included in these sales were sales of products of a value exceeding $396,000 which the Respondent shipped from its Greenville, Michigan, plant directly to various points outside the State of Michigan. I conclude that the Respondent is engaged in a business affecting commerce within the meaning of the Act, and that it will effectuate the policies of the Act for the Board to entertain jurisdiction in the present case. II. THE LABOR ORGANIZATIONS INVOLVED Tower Iron Workers' Mutual Benefit Association (herein called the Association) and United Furniture Workers of America, Local 438, AFL-CIO (herein called the Union), are labor organizations within the meaning of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Respondent's relationship with the Association and the Union For approximately 10 years the Respondent has bargained with the Association as the representative of its employees. On July 31, 1962, it and the Association entered into a comprehensive 3-year contract, covering the terms and conditions of employment at the Respondent's plant in detail, and indicating the Respondent's full acceptance and recognition of the Association in its important role as the "sole bargaining agency" for all the production and maintenance employees. Among the contractual provisions which reflected the Respondent's favorable at- titude toward collective bargaining and the unionization of its employees, and which also provided a significant background to its later discharge of Shurley Brown, were the following provisions: (1) A union-security provision with a 30-day grace period. (2) A voluntary dues checkoff provision. (3) A provision for a 60-day probationary period during which the Respondent "reserve[d] the right to discharge any [new] employee . . . at its sole discretion." (4) Seniority provisions, effective on and after the 61st day of employment, and affecting preference in the assignment of jobs as well as vacations, pay raises, and the order of layoff and recall of employees. (5) Provisions setting base, hourly rates. (6) Provisions for the establishment and adjustment of incentive piece rates, by negotiation with a committee of the Association. (7) A provision for the payment of the base rate to a piece-rate worker for "down time" of more than 15 minutes per shift "provided ... he has notified the foreman at once of [a] breakdown or lack of available work and is requested to remain in the plant." (8) Provisions for grievance and arbitration procedures, with the Association as a participant. (9) Provision for the Respondent's contribution to an employees' health and welfare fund jointly administered by the Association and the Respondent. On Saturday morning, November 10, 1962, all the Respondent's employees at- tended an Association meeting at the DBS Hall in Greenville and voted to affiliate the Association with the Union. The Respondent knew that the meeting was to be held and excused the employees on the day shift from work with pay for the time they spent at the meeting. Although he had not been instructed to do so by his superiors, James Amidon, the Respondent's personnel and office manager, sat outside the meeting hall in his car for half an hour to check the employees' attendance at the meeting and thus "to make sure," as Amidon testified, "that we weren't paying anyone who was not attending the meeting." 448 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Since the affiliation of the Association with the Union on November 10, 1962, the Respondent has recognized the Union as the exclusive bargaining representative of its employees , has handled and "solved" grievances with the Union, and has ap- parently thus continued its amicable relationship with the union representatives of its employees . At one of the meetings between the Respondent 's and the Union's representatives shortly after November 10, there was some discussion of Amidon's presence in his car outside the meeting of November 10 and Amidon gave the expla- nation already noted. Apparently, the Union's representatives were satisfied, for the charge in the present case alleging surveillance violative of Section 8 (a) (1) of the Act was filed, not by the Union , but by employee Shurley Brown in connection with his assertion therein that his subsequent discharge was also violative of the Act.' B. Shurley Brown's discharge Shurley Brown was hired by the Respondent as a press operator on October 10, 1962. He attended the Association's meeting of November 10 at which the employees voted to affiliate with the Union and, consistent with the provisions of the contract which the Respondent had executed with the Association , became a member of the Union and permitted his dues to be deducted from his wages during his short term of employment. He worked at first under Foreman Norman Davis on one of the Respondent's two shifts and then on the other shift under Foreman Robert Brown, whom he had known from boyhood . He was discharged by Foreman Brown on December 5, 1962, just a few days before he would have completed his 60-day probationary period under the contract. There were no complaints by the Respondent about Shurley Brown's work . In fact, Foreman Brown testified it was "good" and, following the discharge , gave the man a written recommendation, stating that he was "a good workman." Instead, it appears from the evidence that Shurley Brown's discharge was the results of his remarks and his attitude in several incidents involving him and Foreman Brown in which he was questioned by the foreman about his "down time" and made complaints about his treatment by the foreman. 1. The magnet incident One of these incidents occurred within a week or so before Shurley Brown's dis- charge in connection with his use of one of three magnets which the Respondent pro- vides for its operators to speed up the separation of stock for their presses. These magnets, it is to be noted, were not assigned to any particular operators but were available for the use of all the operators. On the occasion with which we are concerned , Shurley Brown was using one of these magnets at his press when Foreman Brown took the magnet, saying that it was needed on a more important job on another press. According to the foreman, he also told Shurley Brown that he would bring back another magnet when he could find one, and Shurley did not argue with him. I credit this testimony by the foreman concerning the incident , rather than Shurley Brown's testimony that he told the foreman he saw no reason why the magnet should be taken from him because "after all, I am working piece work as well as the rest of them, or trying to make it." 2 After Foreman Brown took the magnet, Shurley Brown immediately complained to Gerald Sanders , who was continuing to serve as president of the Association follow- ing its affiliation with the Union . According to Shurley Brown , he asked Sanders, 1 The instant finding relating to the discussion of the incident of November 10 by the Union's and the Respondent's representatives is based upon what I believe to be Amidon's credible testimony . Amidon testified that Lowell Daily, the Union 's International repre- sentative , was present at the meeting in question Daily, in his testimony , agreed that Amidon's conduct had been discussed but he testified that he did not recall whether the Respondent had given any explanation . He further testified that the Union 's representa- tives said merely that "as far as we were concerned , Mr. [Shurley ] Brown was to file the charge and we would tell what we knew." 2 From other portions of the present record, it appears to me that Shurley Brown did not know whether the particular operation on which he was then working was rated as a piecework job and made no such claim at the time . It is true that at one point he testified generally that his earnings were computed at piecework rates . But, with respect to his particular operation when the magnet was taken from him, he later testified : " . [ O]f course , I didn't know whether it was piece work or whether this was just straight time Nobody told me, and I still don't know whether it was piece work or straight time." And, as hereinafter found, he also made the same admission to Gerald Sanders, the Asso- ciation's president, when he later complained to Sanders about the foreman' s action. THE R. J. TOWER IRON WORKS, INC. 449 "What do you think about the foreman coming over and grabbing the magnet out and taking it over to the other machine? And saying it was more important to have over there than it was on the machine I was operating?" According to Sanders' testi- mony, which I credit, there was then a brief discussion of whether the foreman's action had any effect upon Shurley Brown's earnings. Sanders asked him whether the job he was running at the time was "rated" as piecework and Shurley Brown said he did not know. Sanders, then said, "If the job isn't rated, whether or not you have a magnet doesn't make any difference, because if you don't get out production, you earn the same amount of money anyway." But, as Sanders testified, Shurley Brown insisted that "it didn't make any difference whether [his job was] rated or not; he didn't feel the foreman had any right to come up and grab his magnet away from him." So Sanders agreed to speak to Foreman Brown about the matter. Sanders thereupon went to Foreman Brown and said that "Shurley Brown was mad because [the foreman] went over and grabbed that magnet." He also asked Fore- man Brown where the little magnet was and the foreman said he did not know but that he was looking for it. According to Foreman Brown's uncontradicted and credible testimony, they found the other magnet within 5 minutes and gave it to Shurley Brown. 2. Incidents on December 4 There were two other conversations between Shurley Brown and Foreman Brown which preceded and have a bearing upon Shurley Brown's discharge. In one, the foreman questioned Shurley Brown about his "down time" the previous day, and in the other, Shurley Brown was critical of the foreman because he had not been assigned any of the higher paying piece rate jobs. According to Shurley Brown, both conversa- tions occurred within the first hour or so of his shift on December 4. According to the foreman, the conversation about "down time" took place about a month earlier. In any event, the conversation about Shurley Brown's job assignments unquestionably occurred on December 4, was followed the next day by the foreman's discharge of Shurley Brown, and the only substantial disputes in the testimony relate to Shurley Brown's remarks and attitude in the course of the conversation about his job assign- ments on December 4. Although differing on these points, both the General Counsel and the Respondent assume in their briefs that the two conversations occurred on December 4 and, in dealing with these conversations, I make the same assumption. On reporting for work at the beginning of his 4 p.m. shift on December 4, Shurley Brown noticed that, according to the posted assignment sheet, he was to work on pedestal angles. He asked Foreman Brown what he was to do because he had never worked on that particular job, and the foreman said he would show him after he had gotten the other men started on their assignments. But, before attending to the other assignments, the foreman also asked why Shurley Brown had taken a half hour of "down time" the preceding day and Shurley Brown replied that he had to wait for the hi-lo truck and should have taken three-quarters of an hour instead of only half an hour "down time." The foreman said, "From now on, let me know because the Company can't stand it." He then left Shurley Brown and returned in 45 minutes. When Foreman Brown came back, he showed Shurley Brown what he was to do. Then, according to Shurley Brown's testimony, he asked the foreman, "Did you notice what time it was, Bob?" And, holding up his watch and showing the foreman that it was 4:45 p.m, be added, "That's the reason why we have so much down time." Before turning to the work assigned to him, however, Shurley Brown asked Fore- man Brown why he was not given any of the higher paid piece rate jobs. Shurley Brown and Foreman Brown both testified in substance, and I accordingly find, not only that the foreman explained that Shurley Brown was a probationary employee, that he had no seniority, and that the higher paying jobs were assigned by seniority, but also that the foreman in the course of this explanation, said, "You haven't served your 60 days yet and you are not a member of the Union." 3 But Shurley Brown's and the foreman's testimony differed as to the manner in which Shurley Brown spoke to the foreman and also as to whether he had liquor on his breath at the time. Shurley Brown testified that he had not had a drink of liquor that day, that he did not argue with the foreman, but that, having just com- mented about his having waited 45 minutes for the foreman as being the "reason" for "so much down time," he merely said, "I would like to ask you a question." According to his testimony, he thereupon said to the foreman that Lent, another 4 The quoted language is taken directly from Foreman Brown's testimony According to Shurley Brown, the foreman's statement at this point in their conversation was, "Well, you don't even belong to the Union You haven't even got your 60 days in " 450 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employee hired at the same time, had received welding assignments, "one of the highest paid jobs in the shop," 4 and asked the foreman "if there was something wrong with my work or what was wrong, that I never got a chance to work on it." On the other hand, Foreman Brown testified that not only did he smell liquor on Shurley Brown's breath during this conversation, but that the man, speaking harshly and sarcastically upon being assigned to sorting the pedestal angles, "asked . . why he didn't get a chance to work on the spot welders and some of the good jobs in the plant" and then, when Foreman Brown explained that new employees were expected to do the kind of work which had been assigned to Shurley Brown, "ac- cused . [the foreman] of giving him jobs that were not as good as other piece rate work." Upon consideration of this conflicting testimony, I credit the testimony of Foreman Brown. 3. The discharge on December 5 At the end of their conversation on December 4, Foreman Brown told Shurley Brown to go to work and Shurley worked the rest of his shift. During the night, how- ever, Foreman Brown called Foreman Davis, and the next day also spoke to Ted Wilmore, the plant superintendent, about Shurley Brown. According to Foreman Brown, they agreed that Shurley Brown "would be a troublesome employee and was a troublesome employee." Foreman Brown thereupon discharged Shurley Brown when the latter reported for work at 4 p.m. on Wednesday, December 5. Two days later, on Friday, Decem- ber 7, Shurley returned to the plant, apologized to the foreman for what had oc- curred on December 4, and asked to be taken back to work. Although Foreman Brown said there was little hope that the Respondent would rehire a man who had been discharged, he nevertheless spoke to Superintendent Wilmore. On the next day, Saturday, December 8, he told Shurley Brown that Wilmore said once a man was fired, the Respondent would not take him back. While it is thus clear from the evidence that Foreman Brown discharged Shurley Brown and, after consulting the superintendent, rejected his application for reinstatement, the evidence is in conflict as to the reason given by him for the discharge in his conversations with Shurley Brown on December 5 and 7, and also in a separate conversation with President Sanders of the Association on the evening of December 5. And, in the consideration of this conflict, we must necessarily descend into what appears to me to be a morass of semantics and for the most part, trivial contradictions. On his direct examination, Shurley testified (as he had stated in two pretrial affi- davits given by him to the General Counsel) that, in discharging him on December 5, Foreman Brown said, "We decided we had better fire you because we figured you're going to be too much trouble to us once you get in the Union." But, on cross- examination, he testified that he was "sure" the foreman's "direct" words were "I am discharging you because of union activity" and specifically retracted his testimony on direct examination and the statements made by him in his pretrial affidavits. Even then, when pressed by Respondent's counsel as to what the foreman had actually said, he stated, "I don't remember exactly how that went. The union activities now, or if it was because I was going to be too much trouble once I got into the Union." With respect to the reason for discharge given to him by Foreman Brown on De- cember 7, however, Shurley Brown's testimony was short and simple. He testified that in the course of this conversation he said to the foreman, "You know what I was fired over? . It was because of union activities," and that the foreman merely said, "Yes," without saying any more about it. Shurley Brown's testimony to this effect was consistent, at least, with his further testimony that, on the evening of December 5 and immediately following his discharge, President Sanders of the Association had told him that, according to Foreman Brown, he had been discharged "because of union activities." But Sanders himself testified that what Foreman Brown had actually said was that Shurley Brown had been discharged because the Respondent had "decided when Shurley got in the Union he would be too much trouble," i.e., that "when [Shurley] got in the Union, he was going to be a troublemaker." In his testimony, Foreman Brown denied that he had ever told Shurley Brown he was discharged "because of union activity." He further testified that he told the man on December 5 that he was being fired "because of the events of the night before and previous problems that I had with him, [and because] he would eventually I It should be noted that there is no evidence in the record as to whether there was in fact another employee hired at the same time as Shurley Brown to whom welding assign- ments had been given In any event, Surley Brown admitted on cross-examination that he himself had never had any experience in welding. THE R. J. TOWER IRON WORKS, INC. 451 become a serious problem to the Association and the Company, if he were allowed to continue on." Upon consideration of the foregoing testimony of Shurley Brown and Foreman Brown as to their conversations and the testimony of Sanders as to what Foreman Brown told him, it appears to me, and I find, that Foreman Brown told Shurley Brown, not that he was discharged for "union activity," but, in substance, that he was discharged because he was a troublemaker and therefore could be expected to make trouble for the Union and the Respondent if he were not discharged. Whatever the actual phrasing, this is the gist of what Foreman Brown testified he told Shurley Brown. Moreover, it is consistent with Sanders' testimony as to what Foreman Brown told him at the time and with Shurley Brown's original version of the fore- man's remarks on December 5, as set forth in his own testimony on direct examina- tion and in his pretrial affidavits. Beyond this, Shurley Brown's testimony is uncertain, inconsistent, and confusing, and, in my opinion, constitutes an attempt to reconstruct his conversation with Foreman Brown and particularly the latter's remarks, not upon the basis of his recollection, but in accordance with his own interests in the present case. I have therefore credited Foreman Brown's testimony rather than Shurley Brown's. Testifying directly as to his reasons for discharging Shurley Brown, Foreman Brown asserted at the hearing that he discharged the man "because of three things that we argued about on December 4th; being dissatisfied with his work assignment, accusing me of giving him bad work, and the alcohol that was on his breath and his general attitude toward his work on the two other occasions." 5 In further explanation, he testified that "We had always had good relations with the Association," and that, because of Shurley Brown's "argumentative" attitude, his "continual bitching," and his raising "petty grievances and that sort of thing" in their conversations concerning the magnet, "down time," and work assignments, he feared (as he had told Shurley Brown when he discharged him) that Shurley would "eventually become a serious problem to the Association and the Company." Finally, Foreman Brown denied that "union activity" or union membership status was a factor in the decision to discharge Shurley Brown and explained that in telling the man on December 4 that "You haven't even served your sixty days yet and you are not even a member of the Union," he referred merely to the fact that Shurley Brown was still a probationary employee with- out the seniority that entitled employees to preferential job assignments. C. Conclusions The instant case arose upon charges filed against the Respondent, not by the union representing its employees, but by a recently hired individual employee whose status was still "probationary" under the existing collective-bargaining contract The evidence presents the question of whether the Respondent-employer, with a record of a 10-year amicable relationship with its employees' union representatives and a current comprehensive 3-year contract including union security, dues checkoff, grievance, and arbitration provisions, suddenly changed its attitude and, in two ap- parently unprecedented instances, committed unfair labor practices repressive of its employees' "concerted activities" and "discouraging [their] membership in a labor organization," i.e., by checking its employees' attendance at a union meeting on November 10 and by discharging Shurley Brown, the individual employee who filed the charge. The Respondent in its brief asserts that Personnel Manager Amidon's conduct in his appearance outside the union meeting on November 10 was "a single isolated event," committed "in ignorance of the Act" and "without any intent to infringe on the employees' rights." It therefore argues that "the incident does not warrant [invocation of] the preventive machinery of the Act and the issuance of a formal cease and desist order." On the other hand, the General Counsel contends that Amidon's conduct on November 10 was "surveillance" of the union meeting which tended to interfere with the employees' free exercise of their right to engage in concerted activities and that, regardless of its actual effect and the innocence of its purpose, it was an unfair labor practice within the meaning of Section 8 (a) (1) of the Act and of such importance that its repetition should be forbidden by Board order. The General Counsel is correct in his argument that ordinarily an employer's act, regardless of intent and actual effect, is violative of Section 8(a)(1) if its normal 5In summarizing his reasons for discharging Shurley Brown at an earlier point in his testimony, Foreman Brown made no reference to Shurley Brown's alcoholic breath, al- though he did so in his report of the discharge to his Employer. 727-083-64-vol. 144-3 0 452 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tendency is to interfere with employee rights.6 But I do not agree with him as to the result of the proper application of this principle in the circumstances shown in the present case. Amidon did check on the attendance of the employees at the November 10 meeting and the employees were aware of his presence outside the meeting hall. But, when we consider all the circumstances then known to the employees as well as Amidon's explanation to the Union's representatives shortly thereafter, it would be unreasonable to say that the normal effect or tendency of Amidon's conduct was to interfere with the employees' concerted activities either at the November 10 meeting or since then. For, as the employees had reason to know, the Respondent-in its long relationship with the employees' union representatives, its recognition of the role played by these representatives, and its recent grant of a union-security provision in the contract- had demonstrated its friendliness to the unionization of its employees and its ac- ceptance of collective bargaining with their representatives. Furthermore, the union meeting on November 10 was being held to permit the employees to vote on affilia- tion of their Association with the Union and the Respondent's apparent concern was that all of them should avail themselves of the opportunity-certainly not to discourage their attendance nor, so far as the record indicates, to influence their vote. Finally, as Amidon explained to the apparent satisfaction of the Union's representa- tives shortly thereafter and as the representatives presumably communicated to the employees, he checked attendance only because the Respondent was paying the em- ployees for time spent at the meeting. In view of all this, I cannot find that the normal tendency, much less the actual effect, of Amidon's checking the employees' attendance at the November 10 meeting was to interfere with or restrain the employees in their concerted activities or in the free exercise of any of their rights under Section 7 of the Act. Therefore, without reliance upon the principle of de minimis which I would otherwise regard as appli- cable, I dismiss the allegation of "surveillance" set forth in the General Counsel's complaint. Shurley Brown's discharge raises more complicated questions concerning the extent to which the Act protects employees in making complaints to their supervisors as well as the significance of the particular statements made in the present case by Foreman Brown at the time of the discharge and in his testimony at the hearing. In his brief, the General Counsel refers to Shurley Brown's complaints to Foreman Brown as "grievances . concerning the Respondent's failure, in [Shurley Brown's] opinion, to abide by the provision in its collective-bargaining agreement pertaining to `down time' and regarding Respondent's method of assigning jobs to new em- ployees." Upon this evalution of Shurley Brown's complaints as "grievances" and Foreman Brown's statement to the man at the time of the discharge that the Respond- ent feared he "would eventually become a problem to the Association and the Com- pany," the General Counsel argues that the Respondent discharged Shurley Brown because he had presented "grievances" and might be expected to do so in the future to the discomfiture of both the Respondent and the union bargaining representatives. Thus, according to the General Counsel, the Respondent's discharge of Shurley Brown was an unfair labor practice within the meaning of Section 8(a) (1) of the Act, not only because it was based upon and interfered with his individual presenta- tion of "grievances" which the Board has held to be protected by the Act,7 but also because it tended to interfere with and restrain the rest of the Respondent's employees in the future exercise of their right to present grievances either directly or through their bargaining representative, and, to that extent, to engage in the "con- certed activities" guaranteed by Section 7 of the Act.8 Finally, the General Counsel O American Fresghtways Co, Inc., 124 NLRB 146, 147. See also Blue Flash Express, Inc, 109 NLRB 591; N L.R B v Link-Belt Company, 311 U S. 584, 588; NLRB v Grower-Shipper Vegetable Assn., 122 F. 2d 368, 378 (C.A. 9) ; N L R B v Wilbur H. Ford, d/b/a Ford Brothers, 170 F. 2d 735, 738 (C A 6) ; N L R B v Syracuse Color Press, Inc., 209 F. 2d 596, 599 (C.A. 2). No argument is made by the Respondent in the present case, nor would I find, that upon a balancing of the legitimate interests of the employer and of the employees, the Respondent's actual motive (I e., to determine which employees should be paid for time spent at the union meeting) justified Amidon's conduct in spite of any possible incidental interference with the employees' concerted activities. See Republic Aviation Corporation v. N.L HR., 324 U.S. 793 7 See Kraft Foods Company, 108 NLRB 1164, 1166. 8 Salant & Salant, Incorporated, 92 NLRB 417, 450-453; Todd Shipyards Corporation, Los Angeles Division, a corporation, 98 NLRB 814; Bakery Drivers and Salesmen Local Union No. 567, International Brotherhood of Teamsters, etc. (Calvin Guthrie), 100 NLRB 367, 367-368; H Muehlstein & Co., Inc, 118 NLRB 268, 275-276; Gibbs Corporation, THE R. J. TOWER IRON WORKS, INC. 453 argues that, by discharging Shurley Brown because he had presented "grievances," the Respondent violated Section 8(a) (3) as well as Section 8(a) (1) of the Act, since it thereby discriminated against him and discouraged membership in the Union.9 In its brief, the Respondent urges an entirely different view of the evidence. Ac- cording to its argument, the evidence shows that "S. Brown was discharged because he was an argumentative and troublesome employee" and that "at most, [Foreman Brown] was attempting to get rid of an argumentative employee because he feared not only personal trouble but also that which would affect the relationship between the Union and the Company ." It denies that the man was discharged for union membership or "union activities ," or for "concerted activity ." It argues that Brown's complaints to the foreman which led to the man's discharge "were purely personal to him [,] ... did not concern other employees or the Union [,] ... were a matter between Brown and his foreman [,] ... had no connection with union activities [,] . and [were] therefore not a `concerted activity .' " Furthermore , despite Foreman Brown's reference in his testimony to Shurley Brown's complaints not only as "argumentative" and "continual bitching" but as "petty grievances," the Respondent argues in effect that the man's complaints were so personal and trivial as to be unworthy of the "dignity of a grievance ." Accordingly, in defense of its discharge of Shurley Brown, the Respondent relies upon a line of decisions in which the Board and the courts have dismissed complaints based upon the discharges of em- ployees for irritating, personal, and inconsequential complaints , holding them not to be "grievances " whose presentation by employees is protected by the Act.io The complaints made by Shurley Brown to his foreman appear to me to fall in the category dealt with by the Board in this line of cases . In each instance , not only was Shurley Brown's complaint purely personal and either trivial or completely un- justified but, as shown even by his own testimony , his attitude and remarks were unreasonable and senselessly irritating to the foreman . In the magnet incident, he apparently could not understand the foreman's taking the magnet to use it on a more important job and continued to complain to the Association 's president even after the latter pointed out that his earnings were not being affected. Again, he showed hypersensitivity and resentment at being questioned by the foreman on December 4 about his half-hour "down time" the preceding day despite the obvious reasonableness of the inquiry in view of the contractual provision conditioning pay- 124 NLRB 1320, 1320-1321 ; Bowman Transportation, Inc, 134 NLRB 1419 , 1420-1421; Bunney Bros. Construction Co, 139 NLRB 1516. 6 The cases upon which the General Counsel relies as supporting him on this point, are those set forth in the preceding footnote with the exception of the Gibbs case He points out that in the Gibbs case , the Board posited its remedy of backpay and reinstatement solely upon a finding of violation of Section 8(a) (1), deeming it unnecessary to determine whether the Employer's conduct was also violative of Section 8(a) (3) io Ryder Tank Lanes, Inc, 135 NLRB 936, 938 (as to Bough : "purely personal" and not "concerted") ; Northern Motor Carriers , Inc, and Fort Edward Empress Co, 130 NLRB 261 , 262 (deliberate harassment of employer who had previously shown no animus against filing of grievances ) ; Stearns-Rogers Mfg Co, 134 NLRB 172 , 174-175 ( in course of persistent presentation of grievances , steward's conduct "constituted a threat to agree- able relations among the crafts on the job" ) ; Joanna Cotton Mills Co v. N L R B , 176 F 2d 749 '( C A 4), setting aside 81 NLRB 1398 (personal feud with supervisor) ; N L R B v. Gibbs Corporation, 284 F. 2d 403 , 404-406 ( C A. 5), setting aside 124 NLRB 1320 ( informal personal complaints characterized by the court as "griping") It is to be noted that, although reversed by the court of appeals in the Gibbs case, the Board has recently cited the court's decision as the basis of its own holding in the Ryder Tank Lines case , supra. In addition to the foregoing cases cited by the Respondent , see Rice-Stix of Arkansas, Inc, 79 NLRB 1333 ( frequent and unjustified complaints ) ; Burns Brick Company, 80 NLRB 389 (employees did not "get along with the boss" and "fussed," quarreled, and argued all the time ) ; The Efficient Tool & Die Company, 79 NLRB 170 ( habitual and unreasonable complaints concerning service at the tool crib ) ; Pan-O-Ramic Package Co., Inc, 130 NLRB 1174, footnote 1 ("We find no merit in the General Counsel 's exceptions to the Trial Examiner's failure to find a violation of Section 8(a) (3) and ( 1) in the dis- charge of employee Bouton. Although we do not adopt the Trial Examiner 's characteriza- tion of Bouton 's conduct during his meeting with the Respondent 's officers on May 6, 1960, as persistent provocation amounting to insolence , daring, threatening and taunts, we be- lieve that his anxious and insistent interrogation of the Respondent 's officers concerning his job security sufficiently tried the latter's patience to cause his discharge As [was] the Trial Examiner, we are persuaded that Bouton 's discharge was not related to his union or other protected concerted activities . . . ."). 454 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ment for "down time" of more than 15 minutes upon the employee's giving advance notice to the foreman . Finally, having expressed annoyance to the foreman at being kept waiting for instructions on a job which he did not know how to perform, he then complained to the foreman about this assignment and his other assignments and, although the foreman explained that as a probationary employee under the con- tract he was not yet entitled to the better paying jobs, he persisted in accusing the foreman of discriminating against him in "giving him jobs that were not as good as other piece rate work." It is not surprising that the Respondent 's two foremen and its superintendent con- cluded that Shurley Brown was a "troublesome employee" and decided to discharge him for this reason and also because, as Foreman Brown told the man , "he would eventually become a problem to the Association and the Company ." Under the Board's decisions relied upon by the Respondent,ii if Shurley Brown had been dis- charged simply as a "troublesome employee," his discharge would certainly not have constituted either an interference with, or restraint upon, any employee right in violation of Section 8(a) (1) nor, therefore, discrimination against him in violation of Section 8(a) (3). Nor, in my opinion, was this basic situation materially altered because the discharge was also in part motivated by the Respondent 's desire to avoid impairment of its smooth relationship with the Union through the Union's otherwise possible future involvement in Shurley Brown's typically personal, ground- less, and senselessly vexatious complaints. For, in this respect, too , the Respondent's intention was obviously merely to avoid the type of complaints and personal "griping" in which Shurley Brown indulged and which the Board has held not to be protected by the Act, and not to interfere with, or discourage , its employees' presentation of grievances which have their reasonable and proper place in the scheme of collective bargaining and concerted employee-action, and which the Act therefore protects. Furthermore, this should have been apparent to the employees in view of the Respondent's record of amicable relations with their employees ' union representatives including the handling of grievances . It cannot, therefore, be said under the circum- stances of the present case that the reasonably anticipated or normal tendency of Shurley Brown's discharge , nor even the reason given by Foreman Brown to him, was to interfere with, or discourage, their presentation of grievances , directly or through the Union. For the foregoing reasons, I conclude that neither Shurley Brown's discharge nor the statement made by Foreman Brown to him at the time of discharge, constituted interference with , or restraint upon, his or any of the other employees' rights in violation of Section 8(a)(1) of the Act. Contrary to the further allegations of the complaint, I also conclude that the discharge was not violative of Section 8(a) (3) of the Act. For the record shows, as I have found , not only that Shurley Brown was discharged for good cause rather than for any activity protected by the Act, but also that at the time of his discharge he was a member of the Union under the union-security clause of the contract executed by the Respondent . Under these circumstances, the record does not support ( and I therefore recommend dismissal of) the allegations of the complaint that in discharging Shurley Brown, the Respondent "discriminated" against him thereby "discouraging membership in a labor organiza- tion" in violation of Section 8(a)(3) of the Act. In sum, having considered the evidence bearing upon the various allegations of the complaint , and having concluded that the evidence does not support a finding that the Respondent has in any respect violated the Act , I shall recommend that the complaint be dismissed in its entirety. 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 Respondent, R. J. Tower Iron Works, Inc., a Michigan corporation, is engaged in commerce within the meaning of the Act. 2. The Respondent has not engaged in unfair labor practices within the meaning of the Act. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact, conclusions of law, and the entire record in the case, it is recommended that the complaint herein be dismissed in its entirety. 11 See the cases cited in the pieceding footnote