The National Cash Register Co.

THE NATIONAL CASH REGISTER COMPANY The National Cash Register Company and Eugene B. Brown. Case 9-CA-4139 February 5, 1968 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING AND ZAGORIA On September 19, 1967, Trial Examiner Arthur M. Goldberg issued his Decision in the above-enti- tled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom, and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, the Respondent filed exceptions to the Trial Examiner's Decision and a supporting brief. - Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, the National Labor Relations Board has delegated its powers in con- nection 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 brief, and the entire record in the case, and hereby adopts the findings, conclusions, and recommenda- tions only to the extent consistent herewith. The facts, as found by the Trial Examiner and supported by the record, are that since 1957 Eu- gene B . Brown, an employee of the Respondent, had been actively engaged, to the Respondent's knowledge, in attempts by United Steelworkers of America, AFL-CIO, to supplant the NCR Em- ployees' Independent Union as bargaining representative of the Respondent's employees. However, following his election in September 1965 to the position of Independent departmental representative (job steward), Brown curtailed his overt Steelworkers activities. As representative, Brown was steward for ap- proximately 400, employees on the second shift in screwmaking department # 1 and in parts machining department #4, where he himself worked. His du- ties as representative included discussing grievances with, the job foremen at the second step of the contractual grievance procedure. Compensa- tion for time spent performing such duties was covered in ' the 1964 collective-bargaining agree- ment, which provided that the Respondent would reimburse a union representative up to a specified number of hours per week. However, no provisions were included in the agreement for representatives working overtime when the employees they represented' worked extra hours, and the parties agree that no standards had been established on this matter. 639 By November 1965, the Respondent, concerned with what it considered to be an excessive amount of compensated union time, solicited the coopera- tion of Independent officials in reducing their claims. On December 6, 1966, the Respondent wrote 20 Independent representatives, who it found to be the highest consumers of union time, including Brown, and noted that it would no longer pay for more hours than the contract provided. The amount of Saturday overtime to be worked by employees is determined by factory manage- ment, and then passed on by Supervisor Murray to departmental foremen on Friday mornings. The de- partmental foremen then schedule overtime for regular employees with the job foremen. The Trial Examiner found, based on credited testimony, that Independent representatives, in the absence of a specific direction not to work on Satur- day, would unilaterally determine whether or not they would come in that day on the basis of their evaluation of employee needs for representation. On Friday morning, December 9, 1966, John Astor, Brown's job foreman, was informed that there would be no Saturday overtime in either parts machining #4 or screwmaking #1. Although it was decided later that day that some employees in screwmaking #1 would in fact work overtime; Brown was not informed and received no instruc- tions as to whether he should report the next day. However, Brown learned later on Friday that over- time was in fact scheduled in screwmaking #1, and he reported to the plant on Saturday, December 10, and was the only employee in parts machining #4. During the course of his shift, Brown visited screwmaking #I several times to exercise his duties as union representative for the 19 employees who were working there. On Tuesday, December 13, officials of the Respondent decided that Brown should be disciplined. On December 15, Brown was informed by Foreman Astor that he would not be paid for his Saturday work, other than the piece rate for work actually performed, and that he would be suspended for 3 days, because he had come into the plant, and performed work, without authorization; which Astor considered a "gross infraction of the Com- pany rules" in light of Brown's previous notification that he had claimed excessive union time. The Trial Examiner found that Brown did not, violate the collective-bargaining agreement or established company policy; and that his conduct was not in contravention of an order not to report, and therefore was pursuant to the proceeding fol-, lowed in the past by Independent representatives. It was the Trial Examiner's view that at most Brown may have exercised poor judgment in com- ing in to represent only 19 employees. The Trial Examiner also found that Brown was treated dif- ferently from representatives Meyers and Cope- land, neither of whom were Steelworkers ad- 169 NLRB No. 91 640 DECISIONS OF NATIONAL LABOR RELATIONS BOARD vocates, who had not been disciplined for what the Trial Examiner found to be similar behavior. In light of Brown's "well-known ... open and sustained support" for Steelworkers, and as "im- mediately prior to the events herein the Company was plagued by a wildcat strike" in screwmaking department #1, "known for its Steelworkers ad- herence," the Trial Examiner concluded that Brown was singled out from among other represent- atives and disciplined because of his open activities on behalf of the Steelworkers. We disagree. We are not convinced that the facts support a finding of disparate treatment of Brown. As in- dicated, the Trial Examiner conceded that "Brown may have exercised poor judgment in coming in to represent only 19 screw machine operators." Although the Respondent did not discipline Cope- land for reporting without authorization on a Satur- day in March 1966, its decision appears to have been based on the fact that there were 120 em- ployees working that day in the departments Cope- land represented. Moreover, on every occasion when Meyers reported on Saturday without authorization, there were at least 35, and frequently more, employees working in his department. Thus, there was no previous instance of any other representative reporting for overtime work without authorization to represent as few as 19 employees. Further, on other occasions when Brown had worked overtime (without reprimand) in 1966, there were never fewer than 70, and more frequently there were over 100, employees present in the departments for which he was representative. In addition, Brown's discipline occurred within several days after the Respondent had specifically requested several individuals, including Brown, to reduce the amount of working time spent perform- ing union duties , whereas the Copeland and Meyers incidents occurred several months prior thereto. We therefore conclude that the evidence fails to support a finding of disparate treatment. But even if it did, the record is devoid of evidence that the Respondent harbored any animus against Steelworkers, that it preferred the Independent over the Steelworkers, or that it had reason to be- lieve that Brown's Steelworkers advocacy survived his election as Independent representative. To the extent that an anti-Steelworkers bias might be in- ferred from a 4-day wildcat strike which had begun on October 31, 1966, in screwmaking department #1, many of whose employees were Steelworkers advocates, there is no evidence that Brown fo- mented or was involved in it, or that the Respond- ent suspected such to be the case. Brown's only connection with the strike was to serve on a com- mittee with other independent officials. Although the record shows that Brown criticized the Inde- pendent's failure to resolve the strikers' grievances at independent meetings, there is no evidence that the Respondent was aware of what occurred at In- dependent meetings. Moreover, Brown had en- gaged in no overt Steelworkers activity since becoming an Independent representative 15 months before the events herein occurred. Accordingly, we find that a preponderance of the evidence fails to establish that Brown was disciplined because of his adherence to the Steel- workers, and we shall therefore dismiss the com- plaint. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the complaint herein be, and it hereby is, dismissed in its entirety. TRIAL EXAMINER'S DECISION ARTHUR M. GOLDBERG, Trial Examiner: Upon a charge filed on December 19, 1966,1 by Eugene B. Brown, an individual, the complaint herein issued on February 9, 1967. The complaint alleges that the Na- tional Cash Register Company (herein called the Com- pany or NCR) discriminatorily refused to pay Brown for overtime work performed by him on December 10, and unlawfully imposed upon him a 3-day suspension from employment. This conduct was alleged to have violated Section 8(a)(1) and (3) of the National Labor Relations Act, as amended (herein called the Act). Respondent de- nied generally all the material allegations of the com- plaint. All parties participated in the hearing at Dayton, Ohio, on April 13 and 14 and May 8 and 9, 1967, and were af- forded full opportunity to be heard, to introduce evidence, to examine and cross-examine witnesses, to present oral argument, and to file briefs. Oral argument was waived and briefs were filed by Respondent and General Counsel. Upon the entire record in the case, my reading of the briefs, and from my observation of the witnesses and their demeanor, I make the following: FINDINGS OF FACT THE BUSINESS OF RESPONDENT The complaint alleged, the answer admitted, and I find that the National Cash Register Company is, and has been at all times material herein, engaged in commerce within the meaning of Section 2(6) and (7) of the Act. The Company's Dayton, Ohio, plant is the only facility in- volved in this proceeding. II. THE LABOR ORGANIZATIONS INVOLVED United Steelworkers of America , AFL-CIO (herein called the Steelworkers), and the NCR Employees' Inde- pendent Union (herein called the Independent) are labor ' Unless otherwise noted all dates were in 1966. THE NATIONAL CASH REGISTER COMPANY organizations within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Background 1. Brown and the Steelworkers Eugene B. Brown has been employed by the Company since December 1947. For most of that time the Steel- workers has been attempting to supplant the Independent as bargaining representative of the Company's Dayton employees.2 Brown has been actively engaged in the Steelworkers campaign since 1957. In its behalf Brown has distributed literature at the plant gates, attended Steelworkers meetings, and obtained approximately 2,000 authorization cards for that organization over the past 5 or 6 years. Company witnesses testified that they had observed his activities. In addition Brown has worn to work a shirt bearing a slogan urging Steelworkers sup- port and has attended Steelworkers district and educa- tional conferences. Over the years the Steelworkers has filed a number of unfair labor practice charges in Brown's behalf. Following his election in 1965 to the position of Inde- pendent departmental representative, Brown curtailed his overt activities for the Steelworkers. However, he con- tinued attending committee meetings each month and so- liciting authorization cards. During the election campaign his opponent for the position of Independent representa-, tive challenged Brown's qualifications because of his ad- herence to the Steelworkers. After his election to office in the Independent, that organization sought an injunction to interdict Brown's Steelworkers activity. I find that Brown's activities in behalf of the Steel- workers were well known at the Company. 2. Brown as Independent union representative As noted, in September 1965 Brown was elected to the position of Independent union representative. As such he was job steward for some 350 to 400 employees working on the second shift in several departments. The bulk of these employees were in two departments, screwmaking #1 and parts machining #4, where Brown himself worked. The second shift worked from 4 p.m. to midnight or from 4:42 p.m. to 1:12 a.m., depending on whether a third shift was scheduled. Among the employees Brown represented were both pieceworkers and those compensated on a straight-time basis. These employees worked on over 30 different jobs in their various departments. As union representative Brown found himself involved in situations ranging from disputed piece rates to the per- sonal problems of employees. Union representatives are involved at the second step of the contractual grievance procedure. At that point the complaint has not yet been reduced to writing and is discussed between the union representative and foreman. 3. Company-compensated union time The collective-bargaining agreement entered into on September 1, 1964, between the Company and the Inde- 2 In recent years the International Union of Electrical , Radio, and Machine Workers , AFL-CIO (IUE), has mounted a competing campaign seeking to win the allegiance of the Dayton NCR employees. 641 pendent provided that the Company would compensate union representatives and other Independent officials for a certain amount of time spent by them in the plant ad- ministering the terms of the contract. By November 1965, the Company, concerned by what it considered to be an excessive amount of claimed union time, wrote to all Independent officials soliciting their cooperation in reducing compensated union time. Thereafter, on December 9, 1965, the Company sent a letter to all NCR supervisors and all Independent offi- cials explaining the union-time provisions of the collec- tive agreement. Again, on February 2 the Company wrote to the same people explaining the procedures to be followed in claiming union time. Finally, on December 6 the Company wrote to a group of about 20 Independent union representatives, who it found were the highest consumers of union time. In this letter the Company listed the amount of union time that the recipient had claimed and noted that it would not in the future pay for more hours than the contract provided for. Brown was among other union representatives who received a copy of the December 6 letter. Although the collective-bargaining agreement spells out in detail the method of compensating union represent- atives for time lost on contract administration and is specific as well on the matter of overtime work, no provi- sion is made for union representatives working overtime when the employees they represent put in extra hours of work. 4. Union representatives and Saturday overtime The scheduling of Saturday overtime begins on Thursday of each week. On that day the foreman of each department in the machining division calls Supervisor Murray's clerk and recommends the amount of overtime each would like to have worked in his department on the following Saturday. These recommendations are com- piled into a division report which Murray submits to the factory manager for approval. After this report is either approved or modified, Murray receives on Friday morn- ing "somewhat of afinal answer."3 On occasion this over- time schedule is corrected to provide for unforeseen work needs which might come up during the course of Friday. Murray meets with his department foremen each Friday morning and passes on to them the decision on Saturday overtime which he has received from the facto- ry manager. The foremen in turn are back in their depart- ments by 1 p.m. on Friday and schedule their departmen- tal overtime with the job foremen. The collective-bargaining agreement provides no guidance as to when union representatives are to work overtime to provide representation to the employees. Ad- ditionally, all agree4 that no standards had been established in the plant on this question. Elmer Murray, supervisor of the machining division which includes the departments represented by Brown, testified that neither in the Company nor in his division had guidelines been set. Murray further testified that the union representa- tives had never been notified of a necessary ratio of em- ployees to union representatives as a precondition to their reporting for overtime for the purpose of representing em- ployees. A number of union representatives, including 8 The words are those of Machining Supervisor Murray. The account of overtime scheduling is based on his testimony. 4 Company and General Counsel witnesses agreed on this point. 642 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Brown, testified to the lack of company policy or rule as to when they were to work overtime hours in their capaci- ty of elected representative . I find that at all times materi- al herein there was neither contract provision nor com- pany rule setting standards governing when union representatives were to work overtime for the purpose of employee representation. The experience of other Independent union representa- tives highlights the lack of policy on this point and the ad hoc nature of company reaction to overtime work by union representatives . Larry Joe Copeland, a union representative for over 5 years in punch press #1, testified that after his foreman informed him how many employees were to report for Saturday overtime and the nature of the work they were to perform, Copeland would tell the Company that he was coming in if he felt the scheduled employees needed union representation. On some of the Saturdays he came in to the plant , Copeland was the only employee present in his section. Copeland testified to an incident in March when he re- ported to the plant on Saturday morning after having been told the evening before by Warner Glock, his departmen- tal foreman, that he was not to work the overtime hours. Copeland came in that Saturday because he felt that the people working needed him there as their union represent- ative. Copeland asked for a production job after arriving at the plant as he had no representation duties to perform at the time . No work was assigned to Copeland and shortly thereafter he was called to the office and ordered 'by Glock to leave company premises. Copeland refused to do so. Thereafter, at Supervisor Murray's direction Glock had Copeland sit in the office until quitting time, after telling Copeland he would not be paid for the day. However, after Copeland discussed the problem with In- dependent officers, who in turn took up the incident with higher company officials, he was paid for the day and no discipline was imposed for his disregard of directions from his foreman. The Company explained that because of the number of employees who were scheduled to work that Saturday, Glock erred in directing Copeland not to come in. This explanation begs the question of company disregard of Copeland's two acts of insubordination, his reporting on Saturday morning after being directed not to come in and his refusal to leave company ' premises after receiving a' direction from Glock to do so. Copeland was not active in behalf of the Steelworkers. Richard C. Meyers, union representative for the day shift of parts machining #4 (Brown represented the second shift of that department), testified that he had worked on a number of Saturdays when he was the only employee present in his section. Except on one occasion when he went over Foreman Astor's head,5 Meyers would not work on Saturday if told not to do so by the de- partment foreman. However, on several occasions Meyers did come in on Saturday when he had not been told to do so by Astor but Meyers had decided for himself that the employees scheduled needed him there as union representative . The factors which determined whether he would work on a given Saturday , Meyers testified, were the number of pieceworkers and women scheduled for work that day. The union representatives" agreed that pieceworkers generate more grievances than other em- 5 John Astor is department foreman for all shifts of parts machining #4 6 Meyers, Copeland, and Robert Coleman Coleman is union represent- ative for the hourly rated employees on the day shift of screwmaking #1 7 Thomas Stahl , union representative for certain sections of parts ployees because of temporary job rates and job price stu- dies. Meyers was not active in behalf of the Steel- workers.7 5. Brown and Saturday work Following Brown's election as union representative, Joiner L. Strausbaugh , his then job foreman , removed Brown's name from the employee overtime equalization list maintained to assure even distribution of available premium hours . Accordingly, Brown's Saturday overtime was not charged against the regular overtime rotation. The circumstances under which Brown thereafter came to report for work on Saturdays constitutes a hotly con- tested and, in large measure, a controlling issue in this proceeding. - Brown testified that for the first four to six Saturdays he worked , following his election , he received permission to do so from Department Foreman Astor. Thereafter Brown came in on Saturday if he felt the employees work- ing required his presence as union representative. The necessary information as to the number of employees scheduled for Saturday work was obtained from Astor or Strausbaugh in parts machining #4 and from Foreman Glen Reynolds in screwmaking # 1. On occasion Brown discussed Saturday overtime with Astor in the latter's of- fice, but, Brown testified, this would occur when he was in the foreman' s office on other business . Brown was never called to the office for the specific purpose of discussing Saturday overtime. In determining whether he would work on a particular Saturday, he would not seek permission to come in, but rather would try to learn how many employees were working in the departments he represented. Astor maintained that he always informed Brown if the latter was to work on Saturday . It was his duty to deter- mine whether the employees required the presence of their union representative , Astor testified. Since Brown was in his office most evenings and particularly on Friday, Astor would tell Brown if he was to work over- time to represent the employees. Alfred Sherer, a job foreman in parts machining #4 on the second shift since September 6, recalled "a couple of times" that overtime was discussed with Brown in Astor's office. Sherer himself was in Astor's office every Friday afternoon. On those occasions when overtime was discussed with Brown in Sherer's presence , he recalled merely that they went over the work schedule for Satur- day. Strausbaugh testified that Astor wouldinform him how many employees were to work in the grooving section (Brown's job) and whether Brown was to come in. He would then pass this information on to Brown. Strausbaugh did not claim to have thus informed Brown of his Saturday work assignment each week. There were times that Brown worked on Saturday that Strausbaugh did ,hot assign him the work. While Strausbaugh was told on occasion by Astor that he had given permission for Brown to work on a Saturday, Strausbaugh did not know how often Astor had directly authorized Brown's over- time. I find contradictory and unconvincing the Company's evidence offered to establish that Brown was always machining #4, testified as to his experiences concerning Saturday work However, I find his testimony too confused to have probative value. In any event, Stahl's testimony adds nothing to the finding above. THE NATIONAL CASH REGISTER COMPANY directly authorized to come in for Saturday overtime in his capacity as union representative.8 Astor stoutly main- tained that Brown had been told each week if he was to work on Saturday and that Brown was in his office regu- larly each Friday. Sherer, who knew he was in Astor's of- fice each Friday, could not recall if Brown was there regularly and remembered the conversations on those oc- casions as being limited to a discussion of the Saturday work schedule. Sherer did not confirm the assertion that Brown was told specifically to work or not. On the other hand, Brown's claim to have unilaterally determined upon working the overtime hours based on his own evaluation of employee need for representation is credibly corroborated by other union representatives. In this connection I afford special weight to the testimony of Meyers, the day representative for parts machining #4, who testified to working a number of Saturdays though he had received no direction to do so from Astor or his job foreman. While Meyers recalled times when he had been directed not to report on Saturday, Astor's failure to give directions on overtime to Meyers on other occasions lends support to Brown's claim that he was left on his own in determining whether to report to represent the em- ployees. Accordingly, I find that NCR has not established the existance of the claimed policy of requir- ing specific authorization by the Company for each Satur- day worked by Brown as a union representative. Rather, I conclude that union representatives in the absence of a specific direction not to work on Saturday would uni- laterally determine whether they would come in that day depending on their evaluation of employee need for representation. 6. The wildcat strike in screwmaking # 1 On October 31 the automatic screwmachine operators employed on both shifts in screwmaking # 1 went out on an unauthorized work stoppage which lasted for 4 days. As early as March 29, George Channell, president of the Independent had taken up with NCR Vice President Lyle Shafer the problems in screwmaking # 1. At that time Channell appointed a committee to seek resolution of the screwmachine operators' complaints. Robert Coleman, union representative for the day shift, was appointed to the committee. Brown, the second shift representative,, was not. The screwmachine operators met with their representa- tives and Independent officers on October 27 to discuss, the training program in screwmaking # 1 and job descrip- tions of the employees. Four days later the automatic screwmachine operators, who are hourly rated em- ployees, struck. After the work stoppage terminated, a series of Com- pany-Independent meetings were held to discuss the screwmachine operators' grievances. The Independent was represented by its top-elected officers, its attorney, Union Representatives Brown and Coleman, and a com- mittee of five employees selected by the automatic $ In addition to the company supervisors alluded to above, David Rar- dam, Brown's job foreman since September 6, testified concerning Satur- day work assignment I did not find Rardain to be a credible witness Rar- dain claimed that he had assigned Brown to Saturday work based on Brown's position on the employee overtime list . This occurred two or three times, Rardain testified. I do not believe that this could have ,.ap- pened more than once as Brown was well aware of employee concern that his overtime encroached on that of the others and would not have per- 643 screwmachine operators. Following the Company's refusal to open the collective-bargaining agreement to raise the wages of the affected employees, the meetings ended without resolution of the dispute. Thereafter, Brown and others made the failure to satisfy the screwmachine operators' grievances by means of negotia- tions a matter of conflict at Independent meetings. James W. Elmore, Independent vice president for the machining division, called as a witness by the Company, described the poststrike situation thus: After the walkout, the Steelworkers or the screwmakers or whatever you call those, there are a lot of them, I mean, that's got various of opinions, they themselves as employees felt it was wrong for the company not to open the contract ... Elmore explained "a lot" of the screwmachine opera- tors wore Steelworkers shirts. B. Brown Works on Saturday, December 10, to Represent Employees in Screwmaking #1 and is Thereafter Disciplined 1. The events of Friday, December 9 At their regular Friday morning meeting the foremen in the machining division were informed that no Saturday overtime would be worked the following day in parts machining #4 or in screwmaking # 1. However, at about 3 p.m. it was decided to schedule a number of employees in screwmaking #I to enable the assembly room to main- tain production. This decision was not communicated to John Astor, Brown's foreman. Astor held his customary meeting with the job foreman about 4 p.m. Brown was in the outer office waiting to see Astor about a third week of vacation for one of the em- ployees. During a break in the meeting caused by a telephone call for Strausbaugh, Astor called Brown into his office. Astor testified that after hearing Brown on the vacation problem and promising to investigate the facts, he told Brown that no one would work the following day in parts machining #4. Astor did not tell Brown he was not to come into the plant. Job Foreman Sherer recalled that before Brown came into the office, Astor had told the supervisors there would be no overtime on Saturday. Rardain testified that Astor's announcement to Brown was the first that Rardain knew of it. All agreed that Brown made no reply to Astor nor did he acknowledge having heard the foreman's words. Sometime after 10 p.m. Brown learned that Saturday work was scheduled in screwmaking #1. Brown testified that he learned from Strausbaugh at or about the same time that no overtime was to be worked in parts machin- ing #4. Accepting as true the testimony that Astor in his office told Brown no employees would be working in parts machining #4, 1 note that at that time Astor was unaware of the change in the schedule for screwmaking #1. Astor had stated that he decided when the union representatives mitted the practice to continue . Further, employee unrest engendered by Brown's Saturday work had been mollified by his removal from the equalization list. The witnesses testified without having heard the evidence which preceded their appearance as the Company had requested, that they be excluded from the hearing . I am mindful of this condition in evaluating the consistency of General Counsel 's witnesses in describing the policy they followed in determining whether they should work on Saturdays. 350-212 0-70-42 644 DECISIONS OF NATIONAL LABOR RELATIONS BOARD were to come in to represent the employees and that a factor in his decision concerning Brown would be the situation in . screwmaking # 1. Thus, as Machining Divi- sion Manager Murray agreed , as far as Astor knew no employees represented by Brown were working that Saturday , accordingly , no action by Astor was required concerning Brown reporting to the plant . At most I find that Astor's words to Brown were equivocal and, as the events developed , not relevant to the situation facing Brown as an elected union representative . Further, as evidenced by Brown 's inquiry to Strausbaugh later that night concerning plans for overtime in parts machining #4,9 the evidence does not establish that Brown heard the remarks of Astor. asked why Brown had come in, stating that he was not authorized to work. Brown said he had been in to represent the employees in screwmaking #1 and that he had worked many Saturdays without specific authoriza- tion. After further discussion Astor repeated that Brown's presence in the plant on Saturday had not been authorized and therefore the Company would not pay him for the day. Astor claims to have advised Brown at the time that further disciplinary action was planned. Thereafter Brown called Company Vice President Shafer, director of NCR industrial relations, limiting his complaint to the denial of pay for Saturday. Shafer referred Brown to Murray who said he would support Astor's action. 11 2. The events of Saturday , December 10 Brown reported to the plant on Saturday at his regular time of 4 p.m. He was the only employee who worked in parts machining #4. Since the job which was set up on his machine was nonpriority , Brown did the job on another man's machine because it was designated as "Hot " or pri- ority. Brown testified that he had never before been the only employee to work in the department. During the course of the second shift Brown went to screwmaking # I on a number of occasions to attend to his duties as a union representative . On one visit he checked on contract compliance in the matter of manage- ment performance of bargaining unit work and a second matter concerned a piece rate. Only 19 employees worked in screwmaking # 1 on the second shift that day. The four employees from the de- partment who testified concerning Brown 's appearance in screwmaking # 1 on December 10 while they were at work, were all handscrew operators, compensated on a piece rate basis. 3. The events of Tuesday, December 13 Late in the afternoon of Monday, December 12, Elmer Murray, supervisor of the machining division, received a telephone call inquiring whether he had authorized Brown to work the preceding Saturday. The caller identified himself as an employee in parts machining #4 but would not give his name. The next morning Murray asked Astor if he had scheduled any overtime on December 10, and told Astor about the telephone call of the previous evening. Astor replied that no one had been scheduled for that Saturday and that Brown had been so informed on Friday. However, after checking with his clerk Astor learned that Brown had put in for 8 hours of work on the day in question. Both company officials testified that they then discussed the action to be taken, Astor insisting that Brown be disciplined. It was agreed that Brown not be paid for the day10 and to Astor's sug- gestion that he be suspended as well, Murray said he would discuss the idea further with Astor. When Brown reported for work that evening Astor confirmed that he had worked on December 10 and 0 I credit Brown's testimony concerning his inquiry to Strausbaugh Friday night. 10 Actually Brown was paid the piece rate for the work he produced on December 10 and was denied only an additional hourly rate paid to piece rate employees for the time they are in the plant. 11 This account is based on a synthesis of the testimony of Brown, Astor, Murray, and Shafer. Though not material to a resolution of the is- sues herein , I do not credit Astor's claim to have warned Brown in their 4. The events of Thursday, December 15 Brown was called to Foreman Astor's office Thursday afternoon and there informed that because he had come into the plant on Saturday without authorization and had done unauthorized work he would be suspended for 3 days and his personnel record card marked accordingly. Present in addition to Astor and Brown were Supervisor Murray and Independent Vice President Elmore. Brown argued that he had come into the plant to represent employees on many Saturdays without specific authorization and had been following the same procedure on December 10. Astor told Brown his coming into the plant without authorization was "a gross infraction of the Company rules "'12 that he had started up equipment, and had been previously notified he was claiming excessive union time. Brown complained that the discipline was severe and Elmore agreed, arguing that an oral warning to Brown would be sufficient. Murray testified that among the factors influencing him to approve the discipline of Brown were that "he had just received a personal letter from Mr. Shafer about exces- sive Union time, and that he was told by his foreman that there was nobody authorized in his department to work on December the 10th, and that he came in anyhow, and turned on the lights and started the equipment unauthorized." The meeting ended after Brown asked that the discipline be imposed on him as a union representative rather than as an employee. Murray refused the request. Brown then asked Elmore to file a grievance for him at the fifth step of the grievance procedure, making it a general union grievance rather than an employee com- plaint. Elmore was of the opinion that Brown should grieve as an individual employee concerning the discipli- nary action but at Brown's request agreed to take the matter up with other Independent officers. 5. Brown's grievance In the days which followed Brown attempted to per- suade Elmore to file a general union grievance protesting the 3-day suspension. The matter was discussed on Satur- day, December 17, at a party for union representatives conversation on Tuesuay that further discipline was planned. Had Brown been aware of this threat I do not believe he would have limited himself in this call to Shafer to the refusal to pay for Saturday. 12 When hired in December 1947, Brown, as do all new employees, signed a form stating, inter alia, that an employee shall not be paid for overtime unless specifically ordered to do the work and furnished a pass admitting him to the plant to perform the overtime work. THE NATIONAL CASH REGISTER COMPANY and again on Monday. Each time Elmore told Brown it was not the proper subject for a union grievance and for Brown to file as an individual.13 On Wednesday, December 21, Brown filed an in- dividual grievance complaining of the 3-day suspension. This grievance was rejected by the Company as being un- timely filed. The collective-bargaining agreement pro- vides that an individual must file a grievance on his own behalf within 2 working days in cases of discharge or disciplinary suspension. The 3 days of Brown's suspen- sion were deemed to be working days for the purpose of this time limit on grievances. 14 C. Conclusions and Findings I have heretofore found that at all times material herein there was neither contract provision nor company rule setting standards governing when union representatives were to work overtime for the purpose of employee representation. I have found further that in the absence of specific directions not to work on Saturday, Brown and other union representatives determined for themselves whether to come in based on their evaluation of employee need for representation. Finally, I have found that'on Friday, December 9, Astor did not instruct Brown that he was not to come into the plant the following day. Astor and Strausbaugh, by informing Brown that no employees were scheduled to work in parts machining #4 on Satur- day, did not bar him under existing practice from conclud- ing that the employees in screwmaking #1 required his presence. Astor testified that the situation in the other de- partment was a factor in determining whether Brown should come into parts machining #4. Thus, at best, a statement that no employees were scheduled in parts machining #4 was equivocal. If Astor wished to direct Brown not to come into work on Saturday he could have done so directly as he had in the past with Meyers, the day representative. Accordingly, I find that Brown's presence in the plant and in parts machining #4 did not violate the collective- bargaining agreement, was not contrary to established company rule, and was not in controvention of an order not to report. Quaker Alloy Casting Company, 135 NLRB 805, 806; Cf. Crucible Steel Castings Company, 101 NLRB 494, 495. Rather I find that Brown reported to the plant on December 10 in his capacity of union representative pursuant to the procedure followed in the past by Independent union representatives. At most Brown may have exercised poor judgment in coming in to represent only 19 screwmachine operators. However, in view of the recent problems in screwmaking #1 the number of employees involved might very well be out- weighed by their location. But in any event the exercise is Elmore explained that a general union grievance would anse if the Company cut the wages of a department of several hundred men or removed the parking lots. However, if a union representative had a grievance it would be his own problem and not that of others If, for exam- ple, a union representative was discharged because he had filed too many grievances, Elmore would consider this an individual grievance. 14 In March 1967 Brown was removed by the Independent Executive Board from his position of union departmental representative. The action was taken, Elmore explained, because Brown had gone to an outside or- ganization to seek redress from the Company rather than utilizing the or- ganization of the Independent. In the course of investigation of the instant charge, Brown was interviewed by a Board agent in the Steelworkers of- fice. While there, he was observed by Independent officers. 15 The Company's explanation that hindsight disclosed sufficient em- ployees to warrant Copeland's presence as union representative begs the 645 of poor judgment does not violate company rule or con- tract provision and was done within the scope of established practice. While Brown's actions fall within established bounda- ries, the Company's reaction does not. Union Represent- ative Meyers had worked Saturdays without authoriza- tion from Astor. In his case there was no reaction from the Company. Copeland, in March, had gone far beyond Brown when he reported on a Saturday to represent em- ployees. Not only did Copeland come into the plant in direct violation of a specific order not to do so but thereafter he stayed on the company premises after receiving specific instructions to leave. These constitute two clear acts of insubordination. Yet, not only was Copeland not disciplined, he was paid in full for the day. 1 s I conclude that this disparity in treatment of the em- ployees involved is directly correlated to the disparity of their support for the Steelworkers. Neither Meyers nor Copeland were Steelworkers advocates. However Brown was well known for his open and sustained support of the outside Union. Immediately prior to the events herein the Company had been plagued by a wildcat strike by and protracted negotiations with a department known for its Steelworkers adherence. All things considered, I con- clude that Brown was singled out from among the other union representatives and disciplined, not because he vio- lated a company rule when he came into work on December 10, but because of his open activities on behalf of the Steelworkers. Time-O-Matic, Inc. v. N.L.R.B., 264 F.2d 96, 102 (C.A. 7).16 IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The Company's activities set forth in section III, above, occurring in connection with its operations as set forth in section I, above, have a close, intimate, and sub- stantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burden- ing and obstructing commerce and the free flow of com- merce. V. THE REMEDY Having found that the Company engaged in unfair labor practices in violation of Section 8(a)(1) and (3) of the Act, I shall recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. I have found that the discipline imposed on Brown (the 3-day suspension, the Company's refusal to pay him in full for December 10, and the notation of the discipline on his personnel record card) violated Section 8(a)(1) and question of his coming into the plant without authorization, the dereliction for which Brown was disciplined Admittedly Astor was unaware of the change in plans for overtime in screwmakmg #1 when he allegedly told F' Brown that no overtime was planned for parts machining #4. If later learned facts can change the outcome for Copeland, why not for Brown? 16 At the hearing the Company urged that insofar as the complaint con- cerned itself with NCR's refusal to pay Brown for December 10, the matter should be deferred to the grievance and arbitration provisions of the collective-bargaining agreement as there was a grievance pending on this issue. However, in its breif the Company did not argue this point and has apparently abandoned the argument. In any event I do not deem this a proper case for deferring to arbitration and thereby splitting the cause of action, thus placing relief as to one aspect of the violation in the Board and resorting to arbitration for the other. 646 DECISIONS OF NATIONAL (3) of the Act. My Recommended Order will provide that he be paid in full for December 10 and the 3 days of suspension with interest added thereto in the manner set forth in Isis Plumbing & Heating Co ., 138 NLRB 716, and that the notation of discipline be expunged from Brown's personnel record card. Additionally, insofar as the 3-day suspension may adversely affect Brown's enti- tlement-Ito a n y b e n e f i t suchdisbarment s h I be Iif&t Upon the foregoing findings of fact and upon the entire record in this case , I make the following: CONCLUSIONS OF LAW 1. The National Cash Register Company is an em- ployer within the meaning of the law. LABOR RELATIONS BOARD 2. United Steelworkers of America, AFL-CIO, and the NCR Employees Independent Union are labor or- ganizations within the meaning of the Act. 3. By engaging in certain conduct described in section III, B and C, above, the Company discriminated against Eugene B. Brown in regard to his tenure of employment, and terms and conditions thereof, in order to discourage activities protected by Section 7 of the Act, and thereby has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) and (3) of the Act. 4. The aforesaid unfair labor practices affect com- merce within the meaning of Section 2(6) and (7) of the Act. [Recommended Order omitted from publication.]