Owens Corning Fiberglas Co.

OWENS CORNING FIBERGLAS CO. Owens Corning Fiberglas Co. and Robert C. Furr and Glass Bottle Blowers Association, Local #236. Cases 10-CA-12761 and 10-CA-12789 May 26, 1978 DECISION AND ORDER BY MEMBERS PENELLO. MURPHY, AND TRUESDALE On September 20, 1977, Administrative Law Judge Benjamin K. Blackburn issued the attached Decision in this proceeding. Thereafter, the General Counsel filed exceptions and a supporting brief, and Respon- dent filed an answering brief.' 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 au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge only to the extent consistent herewith. The General Counsel alleged that Robert C. Furr was suspended from his employment from on or about December 24, 1976, until on or about January 20, 1977, in violation of Section 8(a)(3) and (1) of the Act. The Administrative Law Judge did not consider the merits of the complaint allegation, but instead deferred to an informal settlement agreement be- tween Respondent and Glass Bottle Blowers Associ- ation, Local #236 (herein called the Union), reached pursuant to the grievance procedure contained in their collective-bargaining agreement. The Adminis- trative Law Judge, relying on the Board's Spielberg doctrine,2 stated that he was precluded from reaching the merits of the discharge. We disagree with his con- clusion that Spielberg mandates deferral to the settle- ment agreement here. The Board has previously considered the appropri- ateness of deferral to an informal settlement agree- ment pursuant to a grievance procedure. Thus, in Sa- bine Towing & Transportation Co., Inc.,3 the Board declined to defer under Spielberg, noting that the set- tlement agreement was entered into by the parties without the Board's participation or approval and contained no determination of the legality under the Respondent's answering brief also contained a motion to disallow the General Counsel's exceptions for failure to meet the specificity requirements under Sec. 102 46(b)l31 and (4) of the Board's Rules and Regulations. Series 8, as amended. The motion is hereby denied as we are satisfied that the General Counsel's exceptions substantially comply with the foregoing Rules 2 Spielherg Manufacturing Company,. 112 NLRB 1080 (1955. 3224 NLRB 941 (1976). Act of the discharge of the individual in question. In fact, the Board noted, the issue of whether the dis- charge violated Section 8(a)(3) was never raised. In such circumstances, the Board concluded that defer- ral under Spielberg was inappropriate. The instant facts reveal the same circumstances as were present in Sabine Towing and, therefore, we shall not defer to the informal grievance procedure settlement here, which clearly did not consider the 8(a)(3) aspect of this case.4 With respect to the merits of the 8(a)(3) allegation. the facts, as set forth by the Administrative Law Judge. show that Robert C. Furr was suspended and later discharged by Respondent, allegedly for drink- ing on the job.5 It is not disputed that, on the last workday prior to the Christmas holiday in 1976, Furr, who was a maintenance group leader and chairman'of the Union's business committee, had been openly drinking alcoholic beverages on Re- spondent's premises with approximately 13 other em- ployees. Supervisor Strickland, who had earlier that day observed drinking by employees in the same area, but said nothing, came into the room and or- dered Furr to go with him to the office of Mainte- nance Superintendent Horvath. The union steward, Frank Harper, accompanied Furr to the office. After Strickland explained the reason for their presence, Horvath expressed his surprise that Furr was there since he was considered a good employee who had not previously been disciplined during his 5-1/2 years of employment. Horvath thereupon suspended Furr "pending termination" for violation of a rule against drinking in the plant. On January 5, 1977, a fact-finding meeting was held in accordance with Respondent's practice and procedures. The meeting was chaired by Plant Engi- neer Robert Rising. After the facts and arguments were presented, Rising stated that, since Furr was a union officer and a leader and as such was supposed to set an example for other employees, Rising had no choice but to terminate him.6 Furr was thereupon ter- minated. A grievance concerning Furr's discharge was filed on January 10, 1977, and was heard directly at step 5 4 In 1 & I Indusrries. In., 235 NL RB No 73 (1978). the Board. in iden- tical circumstances, found no basis for deferring to a private resolution of a griesance short of an arbitrator's award The rationale supporting that deci- slon is equally applicable here Member Penello would defer under Spielherg not only to an arbitrator's award but also. in appropriate circumstances, to a settlement made pur- suant to the parties' griesance-arbitration procedure. Here. however, the result reached is clearly repugnant to the Act because the settlement fails to adequately remed, the discrimination against employee Furr. The discharge was later converted to a suspension pursuant to the grie,- ance settlement ' Rising did not testif',. but the allegation that the remark was made is not disputed h, Respondent and was corroborated in substance bhs Personnel Director John Das 236 NLRB No. 32 479 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of the grievance procedure on January 12, 1977.7 Re- spondent offered to change the discharge to a 30-day suspension, but this offer was rejected by Furr. Shortly thereafter (the date is uncertain), the step 5 representatives informally agreed, at a meeting in which Furr did not participate, to change Furr's dis- cipline to an I -day suspension. This was communi- cated to Furr, who accepted this discipline and re- turned to work on or about January 20, 1977. A timely charge was thereafter filed by Furr on April 25, 1977. As noted above, we do not view the settlement in this case as satisfying Speilberg standards and, there- fore, we consider the merits of the complaint allega- tions. Upon review of the relevant testimony and the record as a whole, we are convinced that the suspen- sion-termination-suspension of Furr violated Section 8(a)(3) and (1) of the Act. It is undisputed that when Furr was suspended "pending termination" on December 23, 1976, many employees, in addition to those with Furr, were openly drinking alcoholic beverages in the plant. It is also not disputed that for some years prior to this incident employees openly drank alcoholic beverages in the plant on the last workday before Christmas and that Respondent did not discipline employees for such conduct.8 On this occasion, however, Furr, who was admittedly a good employee, but who was also a union activist, was singled out from among the drinkers and disciplined. Indeed, he and the Union were later specifically told that Furr was being sin- gled out and disciplined because he was a union offi- cer and leader and, as such, was being held to a high- er standard of conduct than other employees who were then engaged in the same misconduct. Such dis- parate treatment of an employee based on his union activities clearly tends to discourage employees from actively participating in union affairs. The conclu- sion that Furr's discipline in these circumstances is discriminatory within the meaning of Section 8(a)(3) of the Act is therefore manifest.9 Accordingly, we 7 Discharge grievances are normally heard first at step 4 of the parties' grievance procedure. In this instance, however, the parties agreed to pro- ceed directly to step 5 on January 12 because a step 5 meeting had already been scheduled for that date with respect to other grievances. At this step. the grievance is considered by the International Union's president, and Re- spondent's vice president for labor relations or their respective designees E We note that, while Respondent made management changes in 1973 in an effort to clear up the "country club" atmosphere at the instant plant, the record reveals that employee drinking in the plant on the day prior to Christmas continued in 1974. 1975, and 1976. q In finding that Furr's discipline was a violation of Sec. 8(a)(3) of the Act, we are cognizant of, and have considered, the fact that employee Fran- ces Worthy was terminated in October 1976. also for drinking an alcoholic beverage--described as either "chocolate mocha" or "strawberry cow" in the women's locker room. This termination was ultimately reduced to a 2-month suspension. In nevertheless finding that Furr was disparately treat- ed. we note that there was no record evidence (a) that Worthy was an exemplary employee as Furr admittedly was: (b) that Worthy was singled find that Respondent violated Section 8(a)(3) of the Act by suspending Furr, and then terminating him (later changed to a suspension) because of his leader- ship role in the Union. We further find, unlike the Administrative Law Judge, that Rising's remark to Furr-stating the dis- criminatory reason for Furr's discharge-was coer- cive and independently violated Section 8(a)(l) of the Act, as alleged in the complaint. Thus, Rising told Furr, in essence, that he was being held to a higher standard of conduct than other employees in the plant solely because of his union leadership posi- tion. By telling Furr that he was being treated differ- ently from other employees, and that a higher stan- dard of conduct was expected of him, solely because of his position in the Union, Respondent was, in ef- fect, penalizing and threatening to penalize Furr for being an active unionist. Such conduct is clearly un- lawful, for it tends to discourage employees from being active in the Union.'° The General Counsel also alleged that other re- marks by Supervisor Al Crawford and by Plant Man- ager Robert Neighbors constituted further indepen- dent violations of Section 8(a)(l). The Administrative Law Judge found the Crawford remark ambiguous and the statement by Neighbors not coercive as a matter of law. He, therefore, found they did not con- stitute 8(a)(l) violations." We again disagree. With respect to the remark by Crawford, we note that, as summarized by the Administrative Law Judge, a grievance had been filed in March 1977 by Furr against Crawford, alleging that Crawford had performed unit work. Shortly after the grievance was filed, Furr was accused by Crawford of engaging in horseplay (shooting a water bottle) with other em- ployees and warned not to do it again. Furr denied having engaged in the horseplay and told Crawford he should "get on the right one." Crawford there- upon told Furr, "Well, if you want to get nit-picking and file a grievance on me about picking up a piece of paper, I can get nit-picking with you, too." We do not find Crawford's remark ambiguous. Rather, it is clear to us that Crawford's renlark, ex- plaining his "nit-picking," was related to the griev- ance that Furr had filed against him. Indeed, it indi- cated that Crawford intended to be a "nit-picker" because, in his view, Furr's grievance was over a tri- fling matter. It is well settled, of course, that repri- sals, or the threat of reprisals, against an employee out from other drinking employees on a day when there had been a history of drinking in the plant in prior years, as clearly was the case with Furr: and (c). significantly, that Worthy was told she was being disciplined for union activity, as Furr clearly was. B0 Cf. Northwest Drayage Company, 201 NLRB 749 (1973). [ The 8(a)(i) allegation with respect to the statements by Neighbors was dismissed at the hearing. 480 OWENS CORNING FIBERGLAS CO. for pursuing rights under a grievance procedure are unlawful.' 2 Consequently, a remark explaining or threatening such reprisal constitutes interference with employee rights in violation of Section 8(a)(1). We so find. With respect to the remark by Neighbors, the rec- ord reveals that Neighbors questioned employee Bru- ton on two occasions in April 1977 about Bruton's intentions regarding union activity. Bruton had been active in union affairs prior to accepting a superviso- ry position for a short period of time. In April 1977, Bruton was again holding a nonsupervisory position as a machine group leader when Neighbors asked Bruton if he were planning to become active again in the Union. Neighbors encouraged Bruton to become active, stating that he and Bruton had always gotten along well and that the business committee of the Union at that time was pressing numerous grievances which, in Neighbors' opinion, were petty. Unlike the Administrative Law Judge, who found the latter remarks not coercive as a matter of law, we find the remarks by Neighbors violative of Section 8(a)(1). Section 7 of the Act, in addition to granting employees the broad rights to engage in union activi- ty, also grants them the right to refrain from any or all such activities (except to the extent this right may be limited by the proviso to Section 8(a)(3) of the Act). Thus, encouraging union activity in the manner in which Neighbors encouraged Bruton constituted an interference with Bruton's right to refrain from union activity. Such interference violates Section 8(a)(1). AMENDED CONCLUSIONS OF LAW Delete the Administrative Law Judge's Conclu- sions of Law 4 and 5, and insert the following Con- clusions of Law: "4. By threatening employees with disciplinary ac- tion or harassing them because they filed grievances. Respondent has violated Section 8(a)(1) of the Act. "5. By interfering with the right of employees to refrain from union activities, Respondent has vio- lated Section 8(a)(1) of the Act. "6. By telling employees that they are being sus- pended, discharged, or otherwise disciplined to make examples of them because of their union leadership or activity, Respondent has violated Section 8(a)(1) of the Act. "7. By suspending, discharging, or otherwise dis- ciplining employees to make examples of them be- cause of their union leadership or activity, Respon- dent has violated Section 8(a)(3) and (1) of the Act. 12 Northwest Drayage Compans. supra. "8. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the mean- ing of Section 2(6) and (7) of the Act." THE REMEDY Having found that Respondent engaged in unfair labor practices in addition to those found by the Ad- ministrative Law Judge, we shall order Respondent to cease and desist therefrom and take certain affir- mative action necessary to effectuate the purposes of the Act. We have found that Respondent suspended Rob- ert C. Furr pending termination and terminated him because of his leadership position within his Local Union. We shall, therefore, order Respondent to make Robert C. Furr whole for any loss of pay he may have suffered by virtue of the discrimination against him by paying him a sum of money equal to the amount he normally would have earned as wages from the date of the original disciplinary suspension to the date of his reinstatement, computed in the manner set forth in F. W. Woolworth Company, 90 NLRB 289 (1950),1' with interest, as prescribed in Florida Steel Corporation, 231 NLRB 651 (1977).'' Since Furr's termination was ultimately reduced to a suspension, and he was reinstated, it is unnecessary to order reinstatement. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board hereby orders that the Respondent, Owens Corning Fiberglas Co., Fairburn, Georgia, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Maintaining an invalid no-solicitation rule. (b) Threatening employees with disciplinary ac- tion or harassing them because they filed grievances. (c) Interfering with the right of employees to re- frain from union activities. (d) Telling employees they are being suspended, discharged, or otherwise disciplined to make exam- ples of them because of their union leadership or ac- tivity. (e) Suspending, discharging, or otherwise discip- lining employees to make examples of them because of their union leadership or activity. (f) In any other manner interfering with or at- tempting to restrain or coerce employees in the exer- cise of rights guaranteed them in Section 7 of the Act. 1 We find it unnecessary to order that the record of Furr's discipline be expunged since Respondent, as noted by the Administrative Law Judge. has alreads done so. 14 See. generally. Isis Plumbing & Healing Co.. 138 NLRB 716 (1962). 481 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (a) Rescind its present no-solicitation rule. (b) Make whole employee Robert C. Furr for any loss of earnings he may have suffered as a result of Respondent's unlawful discrimination against him in the manner set forth in the section of this Decision entitled "The Remedy." (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (d) Post at its plant in Fairburn, Georgia, copies of the attached notice marked "Appendix." '5 Copies of said notice, on forms provided by the Regional Director for Region 10, after being duly signed by Respondent's authorized representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respon- dent to insure that said notices are not altered, de- faced, or covered by any other material. (e) Notify the Regional Director for Region 10, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply here- with. 15 In the event that this Order is enforced by a Judgment of a United States Court of Appeals. the words in the notice reading "Posted by Order of the National L.abor Relations Board" shall read "Posted Pursuant to a Judgment of the tUnited States Court of Appeals Enforcing an Order of the National L abor Relations Board." APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing at which all sides had an opportunity to present evidence and state their positions, the Na- tional Labor Relations Board has found that we vio- lated the law and has ordered us to post this notice, and we intend to carry out the Order of the Board and abide by the following: WE WILL NOT maintain an invalid no-solicita- tion rule. WE WILL NOT threaten employees with disci- pline or harass them because they filed griev- ances. WE WILL NOT interfere with the right of em- ployees to refrain from union activities. WE WILL NOT tell employees they are being suspended, discharged, or otherwise disciplined to make examples of them because of their union leadership or activity. WE WILL NOT suspend, discharge, or otherwise discipline employees to make examples of them because of their union leadership or activity. WE WILL NOT in any other manner interfere with or attempt to restrain or coerce employees in the exercise of rights guaranteed them in Sec- tion 7 of the Act. WE WILL make whole, with interest, employee Robert C. Furr for any loss of earnings he may have suffered as a result of our unlawful dis- crimination against him by our terminating and suspending him for his leadership in union activ- ity. WE WILL rescind our present no-solicitation rule. OWENS CORNING FIBERGLAS CO. DECISION STATEMENT OF THE CASE BENJAMIN K. BLACKBURN. Administrative Law Judge: The charge in Case 10-CA-12761 was filed on April 25, 1977; in Case 10-CA-12789, on May 5. The cases were consoli- dated for hearing and complaint was issued on June 14. The hearing was held in Atlanta, Georgia, on August 2. At the outset of the hearing I granted Glass Bottle Blow- ers Association, Local #236's motion to withdraw its charge in Case 10-CA-12789 and, with agreement of coun- sel, dismissed those portions of the complaint which were based on that charge. At the end of the hearing, after oral argument, I dismissed an allegation that Respondent Ow- ens Coming Fiberglas Co. violated Section 8(a)(3) and (1) of the National Labor Relations Act, as amended, by sus- pending Robert C. Furr from on or about December 24, 1976, until on or about January 20, 1977, on the ground that the Board's policy with respect to deferring to griev- ance and arbitration procedures enunciated in Spielberg Manufacturing Company, 112 NLRB 1080 (1955), preclud- ed me from reaching the merits. I also dismissed one inde- pendent 8(a)() allegation on the ground that the admitted statements by Plant Manager Robert Neighbor were not coercive as a matter of law. Counsel waived briefs in order that the Spielberg issue could be gotten to the Board with- out delay. I deal, in the sections which follow, only with the remaining issues. 482 OWENS CORNING FIBERGLAS CO. FINDINGS OF FACT I. JURISDICTION Respondent, a Delaware corporation, operates plants in various States. It makes fiberglass insulation in the plant located in Fairburn, Georgia. During the 12 months just prior to issuance of the complaint, it shipped insulation valued in excess of $50.000 from that plant directly to cus- tomers located outside the State of Georgia. II. THE UNFAIR LABOR PRACTICES A. The Furr-Rising Incident On December 23, 1976, the last workday before the Christmas holiday, employees openly drank alcoholic bev- erages in the Fairburn plant. Some congregated in a glass- walled room from which machine operators oversee one of the production lines. The evidence of their activity in the form of empty bottles was plainly to be seen. Floyd Strick- land, a maintenance supervisor, entered the room at least once without comment. On a subsequent visit, however, he came upon Robert (Bobby) Furr, a maintenance group leader and chairman of Local #236's business committee, who had a nearly empty 1/2-pint whisky bottle in his hand. Strickland is Furr's immediate supervisor. Strickland told Furr to come to the office with him. Furr asked Strickland what he should do with the whisky he had left. Strickland said he did not care. Furr tossed down the ounce or two that remained and threw the bottle away. Strickland, Furr, and Frank Harper, a steward, went to the office of Joe Horvath, the maintenance superintendent. Strickland explained the reason for their being there. Hor- vath expressed his surprise that Furr was the employee in trouble. He said his first thought had been that Furr had come along to represent Harper, not vice versa. The upshot of this conference was a decision to suspend Furr, pending termination, for violation of a rule against drinking in the plant. It was rendered despite Furr's and Harper's vigorous protests that the punishment was too severe. As Furr left Horvath's office he encountered Tom Gilman, another maintenance supervisor and president of Local #236. He told Gilman what had happened. Gilman took Furr back into Horvath's office. Gilman protested the action Horvath had taken. Horvath said he was unaware drinking was going on in the plant. Gilman and Horvath got into a shouting match. Notwithstanding Gilman's efforts, the sus- pension-pending-termination decision stood. Respondent's procedures call for a factfinding meeting in which representatives of Local #236 participate before discipline is imposed. Furr's factfinding meeting was held on January 5, 1977. It was chaired by Robert Rising, the plant engineer. Gilman and Furr again made a vigorous presentation to the effect that the nature of the offense, Furr's past record, and Respondent's decisions in past cases justified a sentence for Furr short of discharge. Dur- ing the course of the discussion, Horvath repeated the ob- servation he had made on December 23 about his surprise at learning that Furr, and not Harper, was the culprit. Ris- ing, however, said that, since Furr was a union officer and a leader and as such was supposed to set an example for other employees, he had no choice but to terminate him. Furr was discharged as of that date. On January 10 Gilman filed a grievance on Furr's be- half. Under the grievance and arbitration procedure pro- vided for in the contract between Respondent and Local #236's parent international, discharge grievances go di- rectly to step 4, discussion at the international representa- tive-plant manager level. Furr's grievance was logged in at step 4. However, a step 5 session was already scheduled for January 12. Step 5 is discussion at the international repre- sentative-home office representative level. It is the last step before arbitration. Joseph Pitts was present at the plant on January 12 as the Union's step 5 representative; Dick Jones, as Respondent's. The parties agreed to bypass step 4 and move Furr's grievance directly to step 5. Furr concur- red. Pitts, Gilman, and Furr made the same presentation on Furr's behalf. Jones and John Day, plant personnel di- rector, caucused. When they returned to the room, they offered to change the discharge to a 30-day suspension. Furr refused to agree, and the Union rejected the offer. Ultimately (the record is not clear whether at this meeting or a dav or two later) Furr's grievance was settled as a step 5 level decision made as of January 12 on the basis of an Il-day suspension. Furr agreed. He returned to work around January 20, 1977. The record of this disciplinary action was removed from his personnel file on July 12, 1977, pursuant to Respondent's policy of wiping an employee's slate clean after 6 months. Rising's statement on January 5, 1977, about his reason for discharging Furr, is alleged as an independent violation of Section 8(a)(l). While it may be controlling in a decision on the merits of the 8(a)(3) allegation I do not reach, it was not, given the context in which it was spoken, coercive. I find, therefore, that Respondent, in the person of Robert Rising, did not violate Section 8(a)(1) of the Act by threat- ening "to discipline . . . employees because of their union activities." B. The Furr-Craaford Incident Sometime in March 1977 Furr filed a grievance which alleged that a supervisor named Al Crawford had done unit work. Shortly thereafter Crawford came upon a group of employees, including Furr, engaged in horseplay. Craw- ford accused Furr of being the one who had squirted water out of a bottle. Furr denied it. He said Crawford had better "get on" the right employee if he wanted to do anything about what had happened. Crawford said, "If you want to get nitpicking and file a grievance on me about picking up a piece of paper, I can get nitpicking with you." Crawford's remark is ambiguous at best. I find, there- fore, that Respondent, in the person of Al Crawford, did not violate Section 8(a)(1) of the Act by "threatening . . . employees with reprisals for having filed a grievance against" him. C. The No-Solicitation Rule Respondent's long-promulgated and long-posted rules include: 483 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 8. Soliciting of any kind on plant premises is not per- mitted. This no-solicitation rule has the concurrence of the Union. It has never been invoked to inhibit union activities among employees at the plant. Nevertheless, it is too broad be- cause it prohibits all solicitation, union included, at all times, nonworking included, and in all parts of the plant, nonworking included. I find, therefore, that Respordent has violated Section 8(a)(1) of the Act by maintaining an invalid no-solicitation rule. Upon the foregoing findings of fact, and upon the entire record in this proceeding, I make the following: CONCLUSIONS OF LAW I. Owens Corning Fiberglas Co. is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Glass Bottle Blowers Association, Local #236, is a labor organization within the meaning of Section 2(5) of the Act. 3. By maintaining an invalid no-solicitation rule, Re- spondent has violated Section 8(a)(1) of the Act. 4. The aforesaid unfair labor practice is an unfair labor practice affecting commerce within the meaning of Section 2(6) and (7) of the Act. 5. Other allegations of the complaint that Respondent violated Section 8(a)(1) and (3) of the Act have not been sustained. [Recommended Order omitted from publication.] 484