Jervis B. Webb Co.

464 DECISIONS OF NATIONAL LABOR RELATIONS BOARD All our employees are free to become or remain , or refrain from becoming or remaining, members of any labor organization. KNOX HOMES CORPORATION, Employer. Dated-- ----------------- By------------------------------------------- (Representative ) ( Title) 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. If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board 's Regional Office, 528 Peachtree-Seventh Building, 50 Seventh Street NE., Atlanta , Georgia 30323, Tele- phone 526-5741. Norfolk Conveyor, Division of Jervis B. Webb Company and Peter DeBuigny. Case 1-CA-5201. June 16, JD66 DECISION AND ORDER On April 1, 1966, Trial Examiner Josephine H. Klein issued her Decision in the above-entitled proceeding, finding that the Respond- ent had not engaged in any unfair labor practices and recommend- ing that the complaint be dismissed in its entirety, as set forth in the attached Trial Examiner's Decision. Thereafter, the General Counsel and the Respondent filed exceptions to the Decision, with supporting briefs. Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel [Members Fanning, Brown, and Jenkins]. 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 Trial Examiner's Decision and the entire record in this case, includ- ing the exceptions and briefs, and hereby adopts the findings, con- clusions, and recommendations of the Trial Examiner. [The Board adopted the Trial Examiner's Recommended Order dismissing the complaint.] TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE This case was heard before Trial Examiner Josephine H. Klein on February 7, 1966, in Boston, Massachusetts , on complaint of the General Counsel, issued on a charge by Peter DeBuigny, an individual employee, against Norfolk Conveyor, Division of Jervis B. Webb Company. The single issue litigated was whether Respondent violated Section 8(a)(1) of the Act by discharging DeBuigny for engaging in concerted activities protected by Section 7 of the Act. Oral argument was presented on behalf of Respondent and briefs have been filed by the General Counsel and Respondent. 159 NLRB No. 60. NORFOLK CONVEYOR 465 Upon the entire record, and on the basis of observation of the witnesses and careful consideration of the briefs and argument, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT Respondent manufactures, sells, and distributes belt and roller conveyors and related products. It annually ships products valued in excess of $50,000 from its prin- cipal place of business in Massachusetts directly to points outside Massachusetts and receives goods valued in excess of $50,000 from points outside Massachusetts. Respondent admits, and I find, that it is engaged in commerce within the mean- ing of Section 2(6) and (7) of the Act. H. THE LABOR ORGANIZATION INVOLVED There is no labor organization directly involved in this proceeding, the charge having been filed by an individual and the complaint alleging interference with protected concerted activity by an individual employee rather than any interference with union activity. However, it is relevant to the disposition of this case that Respondent has a bargaining relationship and a collective-bargaining agreement with Local 501 of the Bridge, Structural and Ornamental Workers, AFL-CIO. DeBuigny is a member of the unit covered by the collective-bargaining agreement. III. THE UNFAIR LABOR PRACTICE A. The evidence In major part, the evidence is without substantial conflict. Where there is con- flict as to any relevant fact, I will set forth the resolution of the credibility issue. Commencing sometime in the spring or summer of 1965, informal discussions were held between Thomas I. Harrison, Respondent's production manager, and some of the employees concerning a proposed company outing or party. With the passage of time, initial discussion of a clambake or cookout gave way to con- sideration of a Christmas party. The morning of October 7, 1965, Louis Gifford, an employee, made an appoint- ment to discuss the matter with Harrison, in Harrison's office after the close of business that day. At Gifford's invitation, DeBuigny went along to the meeting in Harrison's office. The three participants in this meeting agree as to the initial course of the meet- ing. It was generally agreed that the Company would shoulder half the expense of the party, with the employees paying the rest; that the party would include the office staff as well as production workers; and that it would be for couples, rather than just the employees. The subject of cost was then reached. Harrison said something to the effect that it was difficult to make plans at that time, since it was impossible to predict how many or which employees would be with the Company at the time of the party. Although there is some dispute as to the particular language Harrison used, all three persons apparently understood that Harrison was referring to the fact that personnel turnover at the Company was high. At this point, DeBuigny said something to the effect that the high rate of turnover was understandable in view of the low wages and generally bad working conditions at the plant.' Harri- son replied, in substance, that DeBuigny was free to quit if he was dissatisfied. At this point there is a material conflict in the testimony. According to DeBuigny, Harrison insisted on prolonging the discussion of De-Buigny's complaints and repeating his suggestion that DeBuigny find another job if he did not like the con- ditions at Respondent's plant. Harrison, on the other hand, testified that he tried to drop the subject, reminding DeBuigny that the meeting had been called to discuss the Christmas party and that, at the very time of this meeting, the Union and management were negotiating for a new collective-bargaining agreement since 'According to Harrison, DeBuigny said "something to the effect that [the] way this company treats employees, there probably would be nobody working there around Christ- mas time." 243-084-67-vol. 159-31 466 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the existing one was due to expire in about a week. According to Harrison, DeBuigny refused to end his complaints of wages and working conditions,z but continued on with a "tirade" on the subject. As to this point, Gifford, the only other person in the room, in general corroborates Harrison's version. Gifford testified: Q. And you've also testified that after Mr. DeBuigny made this remark about what the men were getting paid that Mr. Harrison suggested that the purpose of the meeting was to discuss the Christmas party, is that correct? A. Yes. Q. What was Mr. DeBuigny's reaction to that? A. He just kept on about the conditions they were working in, things of that matter, and there Mr. Harrison told him he was free to leave any time he wished if he didn't like the conditions. Q. Did Mr. Harrison again remind him that the purpose of the meeting was to discuss a Christmas party? A. Yes. I did too. Q. You reminded Mr. DeBuigny [of] this? A. Yes. Although I am satisfied that all three persons were testifying honestly and to the best of their recollection, Gifford, who testified under subpena, was, in general, the most reliable because he was essentially disinterested, not being involved in any argument or disagreement with either DeBuigny or Harrison. I find, therefore, that DeBuigny insisted on continuing with complaints about working conditions and refused or failed to heed requests that he proceed to discuss plans for the Christmas party, the matter for which Harrison and Gifford had arranged the meeting. Harrison thereupon ordered DeBuigny to leave the room. When DeBuigny did not immediately comply with the demand, but continued to air his complaints, Harrison repeated the order once or twice. Again Harrison and DeBuigny, under- standably, see things a little differently. DeBuigny testified that the order to leave the room was repeated almost immediately; Harrison apparently felt that DeBuigny waited an unduly long time before complying with the order. Gifford did not give any precise evidence as to the amount of time which transpired between Harrison's original order and DeBuigny's attempt to comply, but at one point Gifford said that Harrison ordered DeBuigny to leave "at least three times." Before DeBuigny started to comply, Harrison stood up, repeated the order for DeBuigny to leave the room, and started to walk around the table. As he got just behind the chair on which DeBuigny was seated, DeBuigny, preparatory to standing up to leave the room, pushed his chair back. The chair hit Harrison's legs, throwing him a bit off balance. At that he raised his hands and, in an attempt to steady himself, put his left hand on DeBuigny. At that point DeBuigny's hands were raised and his fists clenched. Harrison testified that DeBuigny swung at him and that Harrison, to ward off DeBuigny's blow or blows, grasped DeBuig- ny's forearm, spun him around and pushed him toward the door. DeBuigny, on the other hand, testified that Harrison grabbed DeBuigny around the throat. Harrison testified that he had risen and started to walk around the table to tele- phone Mr. Gellatly, Respondent's general manager. The telephone was located some distance from Harrison's desk because his office furniture was in the process of being rearranged. DeBuigny apparently believed that Harrison had risen and was moving to physically enforce his demand that DeBuigny leave the room. At about this point, Gifford started to rise from his chair, and, in so doing, he tripped also. Accordingly, he md, sed the crucial moment and was unable to testify pre- cisely as to "who hit whom," but did state specifically that he did not see DeBuigny strike Harrison. Gifford managed to get between DeBuigny and Harrison and ushered DeBuigny toward the door. I find, on all the evidence, that neither Harrison nor DeBuigny intended to strike the other, but that each honestly, but mistakenly, believed that the other intended to launch an assault. There was considerable testimony as to whether 2 Apparently the objectionable "working conditions" were not specified. Gifford testi- fied that DeBuigny referred "mostly to wages and he wasn't satisfied with the conditions Just what he meant by conditions, I don't know." DeBuigny did complain , however, that management "did not recognize talent " NORFOLK CONVEYOR 467 and when Harrison and DeBuigny became "excited." Each of them claimed to have been initially "astonished" or "startled" by the conduct of the other, but dis- claimed being "excited," at least until toward the end of the contretemps. I find that the tempers of both men were aroused and both of them became "excited," although it is neither possible nor necessary to pinpoint the precise moment at which each of them reached that state or the relative intensity of their feelings. As DeBuigny, accompanied by Gifford, reached the door,'he turned around, and, excitedly told Harrison, in effect, that Harrison was now "in serious trouble with the Union." At this point, Harrison told DeBuigny to go home and "cool off" and they would forget the entire incident. Gifford returned to Harrison's desk, where Gifford expressed his embarrassment and regret at the unfortunate incident, and the two men proceeded to discuss the Christmas party. DeBuigny proceeded to the office of the plant manager and registered a complaint with Harrison 's superior, Mr. Gage, assistant plant manager. Harrison testified that at first he was willing to overlook the episode but recon- sidered when he learned that DeBuigny had reported the incident to higher man- agement. At that point, with the concurrence of Mr. Gellatly, Respondent's gen- eral manager, he decided to discharge DeBuigny. However, after leaving the office for the day, he again reconsidered because, in his words , "we were suffering for a lack of real skilled help in the shop" and he had been advised that DeBuigny was a promising employee. In Harrison's words, that evening he "determined that [he] would wait until the following morning and observe Mr. DeBuigny's demeanor in the shop and base [his ] conclusion on these two incidents." There is a conflict of testimony as to DeBuigny 's conduct the next morning. According to Harrison, DeBuigny was unwarrantedly away from his work station a considerable part of the morning . The General Counsel's witnesses , however, denied this charge. I find it unnecessary to resolve this conflict , since it is clear that DeBuigny's conduct on the following morning was not, in any event, the "sole" ground for, the discharge. Harrison undertook surveillance of DeBuigny's conduct that morning only because of the occurrence the previous day and the episode in his office was admittedly a factor in Harrison 's final decision to dis- charge DeBuigny. Thus, if DeBuigny's conduct in Harrison's office on October 7 was "protected" under Section 7 of the Act, his discharge would be violative of Section 8 (a)(1) even if his alleged absences from his work station the following morning would have been sufficient ground for discharge . DeKalb Telephone Cooperative, 156 NLRB 1381 , and cases cited in section II, A, I, of Trial Examiner Reel's Decision. Cf. N.L.R.B. v. Symons Manufacturing Co., 328 F.2d 835, 837 (C.A. 7); Nachman Corp. v. N.L.R.B., 337 F.2d 421, 423-424 (C.A. 7); N.L R.B. v. The Howe Scale Company, 311 F.2d 502, 505 (C.A. 7). About 10 a.m. on October 8, Harrison called in the chief shop steward and his assistant, told them about the occurrence the previous evening, and informed them that he was going to discharge DeBuigny . At noontime that day, DeBuigny, accompanied by the chief shop steward, went to Harrison's office. In the presence of Dennis G. Young, another employee, and the chief shop steward, Harrison fired DeBuigny , ascribing the events of the previous day and that morning as the grounds. A grievance was presented under the union contract around October 15 and a formal complaint was filed around October 29. However, the matter was never brought to arbitration. There was evidence that, as might be expected , the employees had had con- siderable discussion among themselves concerning the negotiations for a new collective-bargaining agreement which were then in progress . Similarly, it appears that wages and related matters were often the subject of discussion among the employees . However, at no time was DeBuigny designated, formally or informally, as a spokesman for any employees . He had no union office and had no part or function in the contract negotiation. B. Discussion At the hearing, counsel for the General Counsel stated his legal position as follows: The protected activity [for] which the General Counsel contends Mr. DeBuigny was terminated was ..., first, the discussion in the shop concerning wages, hours and working conditions ; secondly, - the discussions in the shop 468 DECISIONS OF NATIONAL LABOR RELATIONS BOARD concerning the Christmas party; thirdly, the discussion in Mr. Harrison's office . . . concerning the Christmas party and wages, hours and working conditions .3 The discussions among the employees may be readily disposed of. There is not a scintilla of evidence that Harrison or any other company representative objected to the employees' discussions among themselves of either the Christmas party or wages and working conditions. Thus, I find that the first and second "concerted activities" specified by counsel for the General Counsel at the hearing were not, in themselves, elements in DeBuigny's discharge. I understand the General Counsel's position as being that the discussion in Harrison's office involved two separate protected activities: (1) discussion of wages and general conditions of employment; and (2) discussions of the Christmas party. I find and rule that DeBuigny's discussion of wages and general working condi- tions was not "protected activity" because these were matters to which the Union had been designated as exclusive bargaining agent. Had Harrison undertaken to deal or negotiate with DeBuigny as to these subjects, the Company would undoubtedly have been guilty of an unfair labor practice. DeBuigny cannot rea- sonably be held to be "protected" in conduct which would, in effect, require the Employer to commit an unfair labor practice. See Dazey Corporation, 106 NLRB 553; The Ingalls Shipbuilding Corporation, 143 NLRB 712, 716; Miramar Charter- house, 144 NLRB 728, 731. Additionally, the evidence was undisputed that, in whatever discussions DeBuigny had with other employees concerning wages and working conditions, it was never contemplated or intended that he would act as an employee spokesman in discus- sions with management. There was no suggestion in any of the evidence that the employee discussions were intended or designed to lead to any concerted activity vis-a-vis management. Continental Manufacturing Corp., 155 NLRB 255. See Mushroom Transportation Co. v. N.L.R.B., 330 F.2d 683 (C.A. 3).4 Nor could it be found that Gifford and DeBuigny were engaged in "concerted activities" so far as wages and working conditions were concerned, since Gifford did not join DeBuigny's complaints but rather, with Harrison, reminded DeBuigny that the purpose of the meeting was to discuss plans for the Christmas party. Thus, even absent the designation of the Union as exclusive bargaining agent, I would find, on the evidence, that DeBuigny was not engaged in protected con- certed activity to the extent that he attempted to discuss wages and conditions of employment with Harrison on October 7.5 For the reasons hereinafter set forth, I also find that the General Counsel has failed to establish that DeBuigny was fired in whole or in part for concerted activities in connection with plans for the Christmas party. I will assume, without deciding, that the General Counsel is correct in his con- tention that the Christmas party would qualify as a "term or condition of employ- ment" and that discussion thereof would be "concerted activit[y] for . . . mutual aid or protection" of the employees. Cf. G. & W. Electric Specialty Company, 154 NLRB 1136; Indiana Gear Works, 156 NLRB 397, and cases cited in footnote 6 thereof.6 I will also assume that, because the Christmas party apparently was not covered by or inconsistent with the collective-bargaining agreement, individual employees such as Gifford and DeBuigny were "protected" in discussing the matter 3In his brief, he says: ". . . there is no question but that wages and working condi- tions were generally discussed among employees, even though these same wages and other conditions of employment were the subject of current negotiations between the Union the Company . . It is also clear that discussion of a Christmas Party in management's offices at the invitation of management would be discussion of a term or condition of em- ployment. Both of these items are protected, concerted activity. . . . 'If it were essential to the Decision, I would find that, although DeBuigny was com- plaining primarily of the Company's treatment of him personally, he did also purport to advance the interests and views of the Company's employees generally It is therefore unnecessary to determine whether, under other circumstances, manage- ment representatives may reasonably limit discussion at a particular meeting without violating Section 8(a) (1) by refusing to discuss general employee complaints and griev- ances at that time. 9 The parties have not cited, and I have not found, any Board or court decisions which throw any very direct light on whether the circumstances under which a company party or outing might be deemed a term or condition of employment ADDARIO'S EXPRESS AND ORLEANS EXPRESS CO., INC. 469 with Harrison.? And certainly, so far as the Christmas party was concerned, manage- ment knew the "concerted" nature of the activity .8 But the basic fact is that DeBuigny's discharge was not based, in whole or in part, on his discussion of the Christmas party. Indeed, it would not be an exaggera- tion to say it was his refusal to discuss plans for the Christmas party which set in motion the unfortunate series of events which resulted in his discharge. Although DeBuigny had not been included in the original arrangement for the meeting on October 7, Harrison admitted him without question or comment. Both Harrison and Gifford, a fellow employee, testified credibly that they tried to have DeBuigny discuss the party but he persisted in complaining of wages and working conditions, which were, at best, purely collateral and tangential to the matter for which Harrison and Gifford had arranged the meeting. After DeBuigny's departure, Harrison and Gifford did proceed to discuss the business at hand, namely, plans for the party.9 It is my opinion that, on the particular facts of this case,'0 DeBuigny exceeded the scope of any statutory protection he might have had when he persisted in his complaints concerning wages and working conditions after repeated reminders that the meeting had been called for discussion of plans for the Christmas party." I accordingly find that the General Counsel has not shown that DeBuigny was discharged for engaging in concerted activities and accordingly will recommend that the complaint be dismissed. CONCLUSIONS OF LAW 1. Norfolk Conveyor, Division of Jervis B. Webb Company, Respondent, is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. Peter DeBuigny, the Charging Party, was an employee of Respondent entitled to the protection of the Act. 3. Respondent has not engaged in an unfair labor practice as alleged in the complaint. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record in this case, it is hereby recommended that the complaint be dismissed in its entirety. 7 But cf. N.L.R.B. v. Tanner Motor Livery, Ltd., 349 F.2d 1 (C.A. 9). 8 Thus, as in prior Board cases, it is unnecessary to decide whether knowledge by the company of the concerted nature of activities is a necessary ingredient in an 8(a) (1) violation in this type of situation. Walls Manufacturing Company, Inc., 137 NLRB 1317; Indiana Gear Works, supra, footnote 7. Cf. N.L.R.B. v. Burnup & Sims, Inc., 379 U.S. 21, 23. 9 The record does not disclose whether a Christmas party was eventually held. 191 expressly disclaim any attempt or intention to spell out or apply any general rule or principle for defining the scope of the activities "protected" by Section 7. 11 It Is not within my province to decide whether Harrison acted with due restraint, discretion, and judgment or whether discharge was an unwarranted disciplinary action. Cf. Mushroom Transportation Co. v. N.L.R.B., supra at 685. As previously observed, the discharge was made the subject of a grievance under the collective-bargaining agree- ment, but it never reached arbitration. Carmen Addario d/b/a Addario's Express and Orleans Express Co., Inc. and International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America, Local 25. Case 1-CA-5189. June 16,1966 DECISION AND ORDER On March 4, 1966, Trial Examiner David E. Davis issued his Decision in the above-entitled proceeding, finding that Respondent 159 NLRB No. 52.