Howard Electric Co.

338 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Howard Electric Co.and Paul L. Cobb. Howard Electric Co. and Marlyn E. Brown. Cases 27-CA-2088 and 2126 June 30, 1967 DECISION AND ORDER BY MEMBERS BROWN, JENKINS, AND ZAGORIA On March 3, 1967, Trial Examiner Eugene K. Kennedy issued his Decision in the above-entitled proceeding, recommending that the complaint be dismissed in its entirety, as set forth in the attached Trial Examiner's Decision. Thereafter, the General Counsel filed exceptions to the Trial Examiner's Decision together with a supporting brief, the Respondent filed cross-exceptions to the Decision and a supporting brief, and the General Counsel filed an answering brief to the Respondent's cross- exceptions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its powers in connection with this case to a three- member panel. 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, the exceptions and briefs, and the entire record in this case, and hereby adopts the Trial Examiner's findings, conclusions, and recommendations, except as noted below. i ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recom- mended Order of the Trial Examiner and hereby or- ders that the complaint herein be, and it hereby is, dismissed in its entirety. ' We are satisfied that the procedure and award of the Council of Indus- trial Relations, an arbitration panel, has met the arbitration criteria set forth in Spielberg Manufacturing Company, 112 NLRB 1080, and we ac- cordingly affirm the Trial Examiner's recommended dismissal of the com- plaint. Cf. Modern Motor Express, Inc., 149 NLRB 15G7; Denver- Chicago Trucking Company, Inc., 132 NLRB 1416. In reaching this result, we find it unnecessary to consider or pass on the merits of the Trial Examiner's alternative findings and conclusions with regard to Cobb and Brown. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE EUGENE K. KENNEDY, Trial Examiner: These con- solidated cases were heard in Denver, Colorado, on December 14 and 15, 1966. They involved the alleged discriminatory discharge and refusal to reinstate two em- ployees, Paul Cobb and Marlyn Brown., Upon con- sideration of the entire record, briefs submitted by the General Counsel and Respondent, and my observation of the demeanor of the witnesses, I make the following: FINDINGS OF FACT AND CONCLUSIONS OF LAW I. THE BUSINESS OF THE COMPANY AND THE JURISDIC- TION OF THE BOARD/ Howard Electric Company, herein called Respondent, has at all times material been a Colorado corporation, with its principal office and place of business in Denver, Colorado. These cases at issue arose from events occur- ring at the United States Air Force Academy located at Colorado Springs, Colorado. During a representative year Respondent purchases goods and material valued in excess of $50,000 which are transported directly from States other than the State of Colorado. Also during a representative year Respondent performed services valued in excess of $50,000 which services are performed in States other than the State of Colorado. During a representative year Respondent furnishes services valued in excess of $50,000, which services have a substantial impact on the national defense. Respondent is now, and has been at all times material herein, an employer en- gaged in commerce or in a business affecting commerce within the meaning of the Act. II. THE LABOR ORGANIZATION INVOLVED The International Brotherhood of Electrical Workers, Local 113, AFL-CIO, herein called the Union, is now, and at all times material has been, a labor organization within the meaning of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Paul Cobb The alleged concerted activities for which Cobb was terminated will be first considered followed by the con- siderations advanced by Respondent for his termination. Cobb was employed by Respondent as a journeyman electrician from June 13, 1966, to August 5, 1966. While employed by Respondent he was supervised by Steve Walczak, the general foreman, and supervisory working foremen, Woody Anderson and Fritz Barrows. In July 1966, Cobb complained to the Union's Assistant Business Manager Wasinger about holes being drilled in some material away from the jobsite.2 Cobb complained twice to Wasinger about this, who in turn mentioned it to Richard Ek, the project superintendent. While not necessarily agreeing with Cobb's interpretation of the collective-bargaining agreement, Ek agreed to have the drilling done on the jobsite rather than at Respon- dent's Denver shop where apparently it could be done more efficiently. 1 The charge in Case 27-CA-2088 was filed by Cobb on August 11, 1966, and the charge in Case 27-CA-2126 was filed by Brown on Oc- tober 7, 1966. The consolidated complaint was issued on November 21, 1966. 2 While not material to the issues presented, a reading of the section of the agreement relied on by Cobb does not support his interpretation. 166 NLRB No. 62 HOWARD ELECTRIC CO. On another occasion in the latter part of July, Cobb complained to Wasinger that he was in a crew where there were apparently two foremen. Wasinger spoke to Project Superintendent Ek about it, who told Wasinger the matter had been straightened out through the steward. Barrows then advised Cobb that he was his foreman, and thus Cobb had only one foreman in accordance with the terms of the collective-bargaining agreement. Cobb in early July also complained to Union Steward Marlyn Brown that the agreement provided for the men to report to the first floor rather than the sixth floor.3 Forman Barrows, a member of the same Union as Cobb as were all of the witnesses, except Jack Howard, pre- sident of Howard Electric, gave the orders to have the men report to the first floor and to have the toolbox remain on the first floor. Because apparently everyone except Cobb preferred reporting to the sixth floor where they could sit and drink coffee until it was time to go to work, some, if not all, of the workmen on Barrows' crew disregarded the instruction and resumed reporting to the sixth floor before starting work. In Cobb's testimony he related that during a lunch hour he complained to Conlin, a fellow workman, about report- ing to the sixth floor. And, according to Cobb, Conlin replied, "I really can't see what your gripe is, I think you are being asinine."4 Cobb also testified that Barrows frequently told him he seemed awfully dissatisfied and that Barrows liked to run a crew that was satisfied and harmonious. This accords with Barrows' testimony that he was constantly making efforts to have Cobb become a satisfied member of his crew. Cobb was discharged on August 5, 1966. About 3 weeks prior to this, Cobb's foreman, Barrows, reported to Project Superintendent Ek that Cobb was agitating the other men on the crew and there was no harmony on the job. Ektold Barrows to watch Cobb and if it kept up they would have to talk with Cobb. About 2 weeks later because Foreman Barrows noticed no change in Cobb's practices which were upsetting his crew a meeting was ar- ranged with Ek and Barrows. According to Cobb, Ek said, "if Cobb behaved himself and did what he should, he would take care of me." Cobb also testified that Barrows told him if he (Cobb) would do right, the men on the job would carry him. According to Ek, Cobb was informed that he was re- garded as agitating the men and that the matter should be corrected at that time and there would be no more problems. Cobb said: "If that is the way you feel, you can terminate me, right now." Ek replied he did not want to terminate him, that he only wanted him to be happy and everyone would be satisfied. Barrows had previously received complaints from his crew that Cobb was frequently complaining during work- ing hours and at lunchtime.5 Cobb also complained during working hours to employee Conlin about alleged contract violations. One of the incidents involved Cobb complain- ing to Conlin that dismantling a scaffold was scabbing on other crafts. Cobb also told Conlin that Barrows had better not fire him (Cobb) if he refused to perform a job 3 Cobb was mistaken in believing that the agreement provided as he contented. However, Union Business Manager Donlon exhibited to Ek a memorandum of understanding, dated dune 26, 1963, which provided that within a 12-mile limit, "Reporting to the job shall mean the first or ground floor of any building or structure or the job shack." Assuming this memorandum was not superseded by a subsequently executed collective- 339 function for which he was qualified. As a result of this, Conlin asked to be assigned to a work area away from Cobb. Several times while Conlin was working, Cobb came to him and complained about reporting to the sixth floor. Conlin asked where the agreement provided this and Cobb was unable to show him. After the conversation of August 4, 1966, with Ek and Barrows, Cobb returned to the jobsite and approached Conlin while he was working and was complaining to him again about reporting to the sixth rather than the first floor. Foreman Barrows observed this and called Ek to advise him that he was firing Cobb and to have his check made out. Conlin felt Cobb's attitude was adversely af- fecting his work and that of his crew. He had also ob- served Cobb was taking time out to make similar com- plaints to other men on the crew, Gilbert, Oaks, Ander- son, and McClain. Gilbert testified that Cobb during working hours asked him to read a section of the Union's constitution. This was in reference to reporting to work on the first or sixth floor. This made Gilbert very angry. He was working on a permit as was another member of the crew and presumably did not want to act contrary to the local Union's rules, and resented the implication that he was violating union rules. It seems evident that during working hours Cobb was frequently complaining to his fellow workmen about con- tract violations. In the case of Conlin, Cobb would leave his work area to come over and make these complaints. It seems evident that the total effect of Cob's activities in this respect deprived his employer of time which should have been spent in working. It is also evident that Cobb's activities adversely affected the morale of the men on his crew. Foreman Barrows and Project Superintendent Ek attempted to reason with Cobb that harmony could be restored among the crew. However, almost immediately after this Foreman Barrows observed Cobb arguing with employee Conlin and this Barrows regarded as "a direct slap in the face," and led to Cobb's discharge. These events relating to Cobb lead to a finding that he was terminated for not obeying instructions about desist- ing from making his complaints during working hours. The Respondent had complied with the requests Cobb made relative to performing drilling work on the job, re- porting to the first floor, and having one foreman. After this, Respondent's plea to Cobb to cease causing friction during working hours was ignored by Cobb and the probability seems very strong this was the reason for his discharge and the General Counsel has failed to prove by an adequate measure of proof that Cobb was dis- criminated against for engaging in protected concerted ac- tivities. An employer has a right to discharge an employee if working time is not used for work even though the em- ployee is engaged in concerted activities. Cleaver-Brooks Mfg. Corporation v. N.L.R.B., 264 F.2d 637 (C.A. 7); Caterpillar Tractor Company, a Corporation v. N.L.R.B., 230 F.2d 357, 358 (C.A. 7): Thus, in its application to organizational activities, the proctective mantle of Section 7 is tempered by bargaining agreement it would not appear applicable in any event as the jobsite was considerably beyond the 12-mile hnut. 4 Conlin's characterization in the context of the attending circum- stances appears applicable. 5 Cobb's own account of his lunchtime complaint to Conlin about re- porting to the sixth floor supports this. 340 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the employer's right to exact a day's work for a day's pay and to maintain discipline, and does not reach ac- tivities which inherently carry with them a tendency toward, or likelihood of, disturbing efficient opera- tion of the employer's business. As the Board said in Peyton Packing Company, Inc., 49 NLRB 828, 843, "Working time is for work." B. Marlyn Brown Brown was employed as a journeyman electrician from May 16, 1966, to September 16, 1966. He was appointed union steward on May 19, 1966. The record reveals that Brown engaged in activities as union steward, many of a minor nature and which apparently did not cause any sig- nificant reaction on the part of Respondent. Respondent's witnesses concede that until about August 29, 1966, there was no cause for complaint about Brown as a steward or a workman. In fact Respondent's General Foreman Steve Walczak testified that about the time Brown went on vacation the middle of August 1966 he was considered one of the best employees. The events that the General Counsel primarily relies on to provide the discriminatory motivation for Brown's discharge occurred between August 29 and September 15, 1966. On August 31, 1966, Brown was called to attend a meeting by Ek, the project superintendent. Ek told Brown he was having problems with the cadet quarters during the previous 2 weeks when Brown was on vacation. One individual was singled out as a problem and Ek agreed with Brown that he be transferred to another crew. Ek at this time advanced no criticism of Brown's work attitude or production. On September 8, 1966, Brown advised Steve Walczak, the general foreman, that the labor agreement was being violated by permitting Cowan Transfer and Storage (a company not employing electricians) to move high volt- age gear instead of the electricians. Later in the day Brown was requested to attend a meeting on overtime with Ek at which the foremen and the general foreman were present. Ek emphasized that the job was going to be done regardless of any individual The implication is clear that Ek regarded Brown's raising the jurisdictional problem as a serious impediment to getting the job done. Considerable discussion was had on this question and Brown advised Ek he would have to take the matter up with higher union representatives. Ek complained that Brown's position would result in having the Respondent buy some expensive equipment. Brown refused to yield on this question. On September 15, 1966, Brown learned that Ek planned to use equipment operated by ironworkers to set lamp posts in a parking lot. Brown reported this to Was- inger, the Union's assistant business manager. Wasinger then telephoned Ek and complained about the work not being given to the electricians and of the jurisdictional deviation that had been reported to him by Brown. Ek complained he did not have a suitable rig to set the lamp posts. In the context of this conversation Ek told Was- inger, the Union's assistant business manager, that if he did not have a stool pigeon on the job, he could do it without any trouble. Ek, that same evening, called Was- inger and advised him he was discharging Brown, which was done on the morning of September 16, 1966. The above-related events establish a strong case that Brown was discharged because he was performing his functions as a union steward which caused Respondent delay and substantial extra expense. Because of Brown's complaints to the Union, Respondent had to_ make addi- tional arrangements for use of expensive equipment to set the switch boxes and lighting fixtures. In reviewing Respondent's alleged reasons for discharging Brown, it is noted that he commenced work on May 16, 1966. Respondent concedes he was a good workman and a union steward until August 29, 1966, when he returned from vacation. The major causes of extra expense and delay to Respondent were caused by Brown's complaints on September 8, 1966, in connection with setting switch boxes and on September 15, 1966, in connection with installing light poles. In contrast to Cobb no warning was given to Brown about his alleged work shortcomings nor was he trans- ferred to another crew in an effort to have his work im- prove as was the case of another workman. Brown's al- leged work shortcomings all occurred while he was on Foreman Conlin's crew for 5 days. Conlin testified Brown did not use sufficient imitative, that he would wait for additional instructions instead of proceeding on his own, that he raised objections about working in the rain, and that he did not follow instructions on one occasion. Also, he claimed that Brown would take excessive time in cleaning and filling his pipe. A letter dated September 12 from Pike, a carpenter foreman, formally brought to Respondent's attention that Brown's work was slow and inefficient. Pike conceded he had not written such a letter before and in view of the fact that he was daily working with Respondent's supervisors it appears probable the letter was part of an attempt to build a case against Brown, since it would have appeared more natural in a setting of a construction project that such a complaint would be made verbally. Respondent also offered employee Constantine as a witness who worked with Brown. He testified that Brown seemed to pick the easiest jobs and that his nickname was "snail." There is no evidence Constantine complained to Foreman Conlin about Brown. He also added that Brown worked in a sitting position rather than a stooping one more than the other men, but there is also no showing in the record that this was communicated to Respondent. Assuming Brown was deficient in his work habits the last 5 days of his employment, the facts do not warrant a finding this was the only reason for his discharge. As noted above, Ek exhibited irritation at Brown's in- itiation of complaints about electricians' jurisdictional work which were expensive and troublesome for Re- spondent to comply with. Brawn had been one of the best workman from May 16, 1966, until August 29, 1966. Brown gave the impres- sions of a reasonable and consicientious man but when he performed his obligations as a union steward, he became the target of Respondent's ire, and was fired for this reason. A workman of Brown's long, satisfactory record would in all probability have been given a warning or a transfer to another crew before being summarily terminated. His termination the day after a major disturbance was caused Respondent by Brown complaining to the Union about a jurisdictional problem, suggests this was the actual reason for his discharge, and it is so found. As in the case of Cobb, the reason given for Brown's termination was that he did not fit into Respondent's organization. While there appears to be merit in this reason as ascribed to Cobb, there does not in the case of Brown. HOWARD ELECTRIC CO. C. The Arbitration Award as Affecting the Discharge of Cobb and Brown In addition to filing unfair labor practice charges with the National Labor Relations Board , both Cobb and Brown commenced grievance procedures which cul- minated in arbitration . The arbitration award was unanimous by the employer and union representatives. The terms of the procedure provided that the award was to be final and binding. All parties agreed that the procedure was regular and fair. Both Cobb and Brown were awarded backpay. Respondent and the union representative differed in their interpretation of the award as to whether reinstatement was mandatory on- the Respondent. The decision of the arbitration panel is here set forth verbatim: Decision: After careful consideration of the evidence sub- mitted, the Council rules as follows: 1. Howard Electric violated Article III, Sec- tion 3.19 of the Agreement in the instant case. 2. Howard Electric discharged Paul Cobb without a showing of just or proper cause and Mr. Cobb shall be eligible for reemployment and reimbursed for seven and one-half hours lost time. 3. Howard Electric discharged Pete Brown without a showing of just or proper cause and Mr. Brown shall be eligible for reemployment and reimbursed two weeks' pay. 4. The employer has the unfettered right to re- ject any applicant for employment. 5. The parties are instructed to follow the grievance procedure provided in the agreement. 6. The Standing Board of Adjustment is not a part of the agreement and therefore is not properly before the Council. UNANIMOUSLY ADOPTED: November 15, 1966 Because of the conflict as to whether the decision gave Brown and Cobb the right to reinstatement , Union Busi- ness Manager Donlon requested and received the follow- ing telegram of clarification: REURTEL GEO. SEAMAN, JR. WIRE OF NOVEMBER 2I, 1966 IT WAS THE INTENT OF THE CIR IN DECISION 1290 TO REIMBURSE COBB AND BROWN FOR TIME LOST AND TO SECURE THEIR RIGHT TO BE REFERRED TO HOWARD ELECTRIC COMPANY. IT WAS ALSO THE INTENT TO SECURE HOWARD ELECTRIC COMPANYS RIGHT TO REJECT ANY APPLICANT INCLUDING COBB AND BROWN. HOWEVER, IT WAS NOT THE INTENT OF THE CIR THAT COBB AND BROWN SHOULD BE RE- JECTED AND DISCRIMINATED AGAINST BECAUSE OF DECISION 1290. The extant collective-bargaining agreement provides in article VII, subsection 2, that, "The Employer shall have the right to reject any applicant for employment." The arbitration decision restates this provision of the collective-bargaining agreement . It is further noted the telegram of clarification states, "It was also the intent to secure Howard Electric Company's right to reject any ap- plicant including Cobb and Brown." Union Business Manager Donlon interpreted the deci- sion differently and twice in the latter part of November 341 referred Cobb and Brown to Respondent who rejected them for employment. Respondent relies on the Board's doctrine set forth in Spielberg Manufacturing Company, 112 NLRB 1080, and similar cases, to establish that since the question of the discharges of Brown and Cobb had been settled by ar- bitration, the Board should not entertain unfair labor practice charges based on their discharges. The Board has formulated an approach that it will recognize an arbitration award where: 1. The proceedings appear to have been fair and regu- lar. 2. All parties had agreed to be bound by the decision. 3. The decision of the panel is not clearly repugnant to the purposes and policies of the Act. In the case at hand, it is conceded by all parties that the proceedings were fair and regular and that all parties had agreed to be bound. It appears therefore , the present proceeding is predicated on the contention that the ar- bitration decision was clearly repugnant to the policies and purposes of the Act , as well as the contention of the General Counsel that further acts of discrimination oc- curred when Cobb and Brown were refused employment by Respondent in November 1966. Spielberg specifically states the arbitration award need not necessarily be the one the Board would issue. Here, if this decision were adopted absent arbitration, Cobb, ac- cording to the usually prescribed remedy , would not receive backpay or reinstatement and Brown would have received an order requiring his reinstatement as well as backpay. However, since both did receive an award of backpay (as well as under the circumstances a meaningless award making them eligible for reinstate- ment), it is found that the award is clearly not repugnant to the policies or purposes of the Act. With respect to the charge of discrimination based on refusal of employment in November 1966 , the question only arises with respect to Brown. After Brown accepted the arbitration award of backpay, it seems logical to regard his case as settled and Brown, therefore , would be in the same position as any other union member. Since the Respondent has the ab- solute right to refuse any applicant for employment, no reason suggests itself in the circumstances here presented to exempt Brown from the clear meaning of the arbitra- tion award and the collective-bargaining agreement giving Respondent such right. The above findings concerning unlawful discrimination or the lack of it in the case of Cobb and Brown were made because the parties litigated the subject at length and although the arbitration award is regarded as controlling and dispositive of the case, such findings are available if, on appeal , a different view is taken. On the basis of the foregoing findings of fact and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Respondent is an employer and the Union is a labor organization within the meaning of the Act. 2. The Charging Parties, Cobb and Brown , submitted the question of discriminatory discharge to arbitration; the proceedings were fair and regular and the awards were clearly not repugnant to the policies and purposes of the Act, and, consequently, the issues will not be again decided by the Board. 308-926 0-70-23 342 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 3. The refusal to reinstate Brown and Cobb was a right given to Respondent by this arbitration award and the collective-bargaining agreement. RECOMMENDED ORDER It is recommended the complaint be dismissed.