Magma Copper Co.

MAGMA COPPER COMPANY Magma Copper Company and Milton C Overpeck, Jr Case 28-CA-1905 April 23, 1970 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS BROWN AND JENKINS On December 31, 1969, Trial Examiner James R Hemingway issued his Decision in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices within the meaning of the National Labor Relations Act, as amended, 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 Act, the National 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 Exam- iner made at the hearing and finds that no prejudicial error was committed The rulings are hereby affirmed The Board has considered the Trial Examiner's Decision and the entire record in this case, including the excep- tions and brief, and hereby adopts the findings, conclu- sions, and recommendations of the Trial Examiner ORDER Pursuant to Section 10(c) of the National Labor Rela- tions Act, as amended, the National Labor Relations Board hereby adopts as its Order the Recommended Order of the Trial Examiner, and orders that the Respondent, Magma Copper Company, San Manuel, Arizona, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE JAMES R HEMINGWAY , Trial Examiner Upon a charge filed on June 17, 1969, by Milton C Overpeck, Jr , a complaint issued on July 22 , 1969, alleging that on about January 23, 1969, Respondent laid off Milton C Overpeck, Jr , for a period of 5 days to commence on January 24, 1969, because he was a member of the International Association of Machinists and Aerospace Workers, AFL-CIO, Lodge No 2181, and had engaged in union activity or concerted activities for the purpose of collective bargaining or mutual aid or protection The Respondent 's answer filed on July 31, 1969, admitted the 5-day layoff of Overpeck but denied the alleged unfair labor practices 101 Pursuant to notice, a hearing was held in Tucson, Arizona, on September 30 and October 1, 1969, before me The General Counsel and Respondent were repre sented by counsel, and full opportunity was given to examine and cross-examine witnesses and to introduce evidence bearing on the issues At the close of the hearing, the parties waived oral argument but requested time in which to file briefs Such time was granted and briefs have been received from both parties From my observation of the witnesses and upon the entire record in the case, I make the following FINDINGS OF FACT I THE BUSINESS OF THE RESPONDENT The Respondent has, since May 6, 1969, been a corporation organized under, and existing by virtue of, the laws of the State of Delaware Prior to said date, Respondent had been a corporation organized under, and existing by virtue of, the laws of the State of Maine At all times material hereto, Respondent has maintained a place of business at San Manuel, Arizona, where it is engaged in the business of operating a copper mine and smelter During the 12-month period immediately preceding the issuance of the complaint, the Respondent, in the course and conduct of its business operations, mined, sold, and distributed at said place of business, products valued in excess of $50,000, of which, products valued in excess of $50,000 were shipped from said place of business directly to States of the United States other than the State of Arizona During the same period, the Respondent purchased and received equipment, sup- plies, and other goods and materials directly from outside the State of Arizona, valued in excess of $50,000 Respondent admits that it is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act II THE LABOR ORGANIZATION International Association of Machinists and Aerospace Workers, AFL-CIO, Lodge No 2181, herein called the Union, is a labor organization within the meaning of Section 2(5) of the Act III THE UNFAIR LABOR PRACTICES A Discrimination, Interference, Restraint, and Coercion I Grievance procedure under Respondent-Union agreement In the collective-bargaining agreement current between the Respondent and the Union at the time of the alleged unfair labor practice, the procedure for presentation of grievances is described as proceeding in three steps, the first being an oral presentation to the grievant's immediate supervisor within 5 days The second step, if the grievance is not adjusted in the first step, is 182 NLRB No 20 102 DECISIONS OF NATIONAL LABOR RELATIONS BOARD by written presentation to the division head (in this case the superintendent) within 48 hours after the verbal presentation The third step, if the grievance is not earlier settled, is referred by the grievance man (an employee designated by the Union for each of the several divisions and departments to handle grievances and to police the contract) to the Union's grievance committee to determine if the grievance should be appealed to the Respondent's general manager That committee has 10 days in which to refer the grievance in writing to the general manager There is also a provi- sion in the agreement covering arbitration In the first step of the grievance, the grievance man, himself, orally presents the grievance to the immediate supervisor of the employee involved In the second step, the written grievance is signed by both the individ- ual grieving and by the grievance man If the grievance involves a matter affecting all, or a large number of, the employees in the group, the grievance man may sign the written grievance by himself General manager's hearings (the third step in a griev- ance proceeding) are always held at 4 p in in the adminis- tration building When the date is set for the hearing before the general manager, the personnel department notifies the Union in writing of the date that the hearing on the specified grievance will be held Then the chairman of the Union's grievance committee calls the personnel office either the day before or early on the morning of the date set for the hearing and gives it a list of the people the Union expects to attend the meeting This list includes the grievance man who originally pre- sented the grievance and the grievant, himself The personnel department then notifies the time office and the department where any man who is expected to attend the meeting works, that he is scheduled to attend the general manager ' s meeting This is usually done by a telephone call, followed by a written memorandum The Union notifies the grievant and the grievance man of the date of the general manager's meeting The Respondent, itself, assumes no responsibility for notify- ing the grievance man or grievant 2 The rules of Respondent The Respondent's rules of long standing (published in a booklet) include a list of types of misconduct justifying discipline or discharge In this list, is the following 4 Habitual absence from duty with or without notice and permission, or unauthorized absence from assigned working place while on duty, habit- ual tardiness [Emphasis supplied ] The emphasized portion is the basis for the Respondent's defense in this case 3 Overpeck' s employment history Milton Overpeck, a repairman in the smelter repair department at the Respondent's San Manuel operations for 11V22 years, works on the repair of all machinery, conveyor belt, fans, and converters in the smelter area He is a member of the Union of long standing and, at the time of the events herein concerned, he was a grievance man and had been for between 4 and 5 years He represented about eight repairmen Prior to the strike in the copper industry, which began in July 1967 and ended in March 1968, Overpeck's immediate foreman had been John Staggs At that time, the repair department did not come under the supervision of the smelter superintendent, but following the end of the strike, the smelter repair department was placed under the supervision of John Cullom, the smelter super- intendent, and Staggs was replaced by Bacel Richardson as foreman of the smelter repair department on August 1, 1968 Overpeck testified that since the end of the strike the men had become increasingly dissatisfied with the collective-bargaining agreement and with the conditions that resulted from the changes in management It is apparent that during that period Overpeck, himself, had chafed under his new supervision Since the end of the strike, Overpeck had filed a large number of griev- ances,' (much larger than any other grievance man and more than he, himself, had filed before the strike) and many of these were on behalf of himself The great number of written grievances (second step) which were filed with Superintendent Cullom was obvi- ously a source of annoyance to the latter, who referred to them as an "outrageous number " The record does not disclose the dates or the disposition of all the griev- ances filed by Overpeck I assume that the Union's grievance committee thought there was merit in those that went to the third step, or they would not have carried them there, but what happened once they were considered at the general manager level is not shown except as to a few which were adverse to the Union I can only infer that most, if not all, of Overpeck's personal grievances were decided adversely From bits of testimony here and there, one may infer that Overpeck felt that there was a disparity between the treatment given in the cases of similar grievances by other depart- ments and by his own, especially with respect to his personal grievances In December 1968, Overpeck filed a charge with the Board containing nine specifications of alleged discrimi- nation 2 This charge was dismissed by the Regional Director The dismissal of that charge is not taken to mean that Overpeck had nothing to complain of, but only that the Regional Director found that the action complained of did not constitute an unfair labor practice Superintendent Cullom testified that since Overpeck had come under his supervision, Overpeck had never accepted supervisory authority During 1968, according ' Overpeck testified that in the 5 years that he had been a grievance man he had filed about 100 grievances of which about 50 or 60 had been filed since the end of the strike And he had attended about 25 general managers meetings The Respondent adduced testimony that since the end of the strike Overpeck had filed 63 written grievances s The contents of this charge are shown only in Respondent s Opening Statement a document filed with the Trial Examiner in lieu of an oral opening statement MAGMA COPPER COMPANY' 103 to Cullom, he had given Overpeck an - oral warning for "loafing in my office, ostensibly to process a griev- ance when he had been sent to another part of the plant to work,"3 and was in the superintendent's office without his foreman's knowledge. Foreman Richardson once reported to Superintendent Cullom that men in his crew were using wheelbarrows for work platforms and that he had cautioned them against this. Why Richardson did not exercise his authori- ty to correct the matter does not appear. Cullom person- ally went and checked on this and found Overpeck standing in a wheelbarrow using an acetylene torch. For violation of safety rules, Cullom gave Overpeck a warning. There is no evidence as to what was done with the other employee or employees who were doing the same thing. This gave rise to one of Overpeck's grievances which went to a general manager's meeting, Overpeck maintaining that use of a wheelbarrow was a safe practice and that the Respondent had no right to prevent it. On another occasion, Cullom gave Over- peck a written warning for violation of a safety rule requiring "tagging a machine out," meaning putting a tag on an electrical circuit breaker so that the machine would not be inadvertently started by someone else while repairmen were working on it. This, again, went to a third stage grievance, Overpeck maintaining that it was not necessary to tag the machine out on that occasion.4 Cullom also was critical of Overpeck for taking too long on two jobs, one, wrapping asbestos cloth around an opening , 5i hours on one side without supervision but only a half hour on the other side with supervision, and the second, a lubrication of the soot blowers. According to Cullom Overpeck, "had to be chased out of the lunch room" (he did not testify by whom) at one time when he was there drinking coffee,5 and then spent 8 hours on the job, which, Cullom testified, "only takes" 3 to 4 hours. For this, Cullom, in the latter part of 1968,8 gave Overpeck a 5-day layoff .7 A grievance concerning that layoff went to a third step grievance, which was decided adversely to Overpeck.8 Following the general manager's meeting on this grievance, while union representatives were speaking with General Manager Wise, the latter remarked that Overpeck would have to go, but that, when he 3 Overpeck did, in fact, file a grievance at that time, but, according to Cullom, "that wasn't the necessary way to do it " In the prior charge filed by Overpeck in December 1968, as stated in the Respondent's Opening Statement, one of the complaints listed was that Cullom "has harassed Overpeck by making him come to the smelter office every time he wants a grievance form " ' Overpeck's failure to tag out one of three machines in a series on another occasion was excused by Cullom as an oversight. S There is no evidence concerning any scheduled coffeebreaks or any custom in regard thereto. 6 Dates were not accurately fixed The date given in Respondent's opening statement for this incident was October 11, 1968. Cullom merely fixed it in 1968. ' Overpeck was not asked for his side of these incidents I am uncertain as to whether Overpeck's grievances concerned the right to continue his practices or over the fact that he was penalized for engaging in them when others might not have been, or because he felt that the penalty was excessive. 9 The matter was later taken to arbitration by the Union The decision, which did not come down until September, 1969, was against Overpeck did, Wise wished to make sure that it was done right and proper. Pursuant to leading questions by Respond- ent's counsel, Wise testified that he thought Overpeck was a mutual problem to the Respondent and to the Union. When Asked by the Trial Examiner about the sense in which he used the word "go," Wise testified that he meant that Overpeck would eventually have to be terminated. In explaining the context in which he had used that word, Wise testified that "when there is one individual so terribly unhappy that he has to be bringing up grievance after grievance after grievance, there's something basically wrong and the manager is seriously concerned with these matters.... Why should one individual be so out of i step with everybody else on the job?" On January 8, 1969, Overpeck had been specified by the Union's grievance committee as one of those to attend a general manager' s meeting of that day. The personnel department notified Overpeck's foreman, Richardson, of this but, through an oversight, the Union did not mention it to Overpeck. Richardson remained silent , and Overpeck failed to attend the meeting. Over- peck was upset by the fact that Richardson had said nothing, and he spoke to Richardson about it. Richardson merely said that it was not his obligation to notify Overpeck. While Overpeck was under Staggs, the latter had frequently told Overpeck that he had been notified that Overpeck was to attend a general manager 's meeting that day. Apparently, Overpeck regarded Richardson's silence as discourtesy. 3. The layoff of Overpeck On January 22, 1969, Overpeck was scheduled to attend a general manager's meeting at 4 p.m. The person- nel department sent a memorandum that day to the timekeeper and to Superintendent Cullom, among others, stating that Overpeck (along with two other employees) was cleared to attend that meeting. Personnel Manager David Ridinger testified that it was the practice of his department to telephone the department of the excused employee to notify the latter department that the employ- ee was cleared for the general manager's meeting and that it was the practice for the immediate supervisor of the employee to be notified. According to custom in such a case, at the time for him to leave for the meeting, the grievance man picks up his timecard from his foreman, who, before giving it to the grievance man, writes on the grievance man's timecard the number of hours he has put in on various jobs in the department, writes in 1 hour for the general manager's meeting, and signs the card. By using an account number on the timecard for each job, the foreman thus notifies the bookkeeping department of how to allocate the costs. Since quitting time is 4:30, writing in 1 hour for the general manager's meeting means that the grievance man would get paid for half an hour before the meeting was actually to begin. During that time, Overpeck would walk a distance of about two blocks to the time office, hand in his timecard and get a brass check (which 104 DECISIONS OF NATIONAL LABOR RELATIONS BOARD he would give the timekeeper the next day in order to get his timecard back),, then walk on to the next building, which was called the change room, where he would shower and change clothes; then he would walk to the employees' parking lot, get his car, drive a couple of blocks to, the parking lot of the administration building, and 'walk" from there to the administration building. On January 22, Overpeck's foreman, Richardson, attended a meeting in the office of Superintendent Cullom which started shortly after lunch and continued for a good part of the afternoon. Overpeck, himself, had been assigned that day to work on the conveyors. At 3 p.m. he returned to the smelter repair shop. The evidence does not reveal whether or not Overpeck had finished his assignment on the conveyors or whether he had left before that job was finished. No contention was made, however, that a.,substitute was needed to finish any work for Overpeck, and no issue was raised about Overpeck's return at that time to his work base in the smelter repair shop. The Respondent's only con- tention is that Overpeck left the smelter repair shop early that day without "touching base" with his foreman; i.e., telling his foreman where he was going. When Overpeck, upon returning to the smelter repair shop, found that Foreman Richardson was not in his office, he telephoned the time office and asked whether or not he had been cleared for' the general manager's meeting . As previously stated, the personnel department always notified the timekeeper when a grievance man was excused to leave early to attend a general manager's meeting. The timekeeper informed Overpeck that he had been cleared. Overpeck testified that, in addition to calling the timekeeper, he had also called several other departments where he thought Richardson might be, but that Richardson was not 'there. He did not, however, call any of Richardson's supervisors. Overpeck testified that it had been his practice of long standing to get his card from the foreman at 3:20 or 3:25 p.m. and leave for the meeting. This was appar- ently true when he was under Staggs, but he had not previously left early while under Richardson's supervi- sion. He testified that occasionally the foreman, if he was not going to be around at the time the grievance man was to leave, would sign the timecard in advance and leave it for the grievance man to pick up. I judge that Overpeck was again testifying as to his experience under his former foreman, Staggs, for he testified that this was the first time he had been unable to find Richardson when he waslready to leave for a general manager' s meeting. Overpeck testified that he had never been told that he was required to obtain permission from his supervisor before leaving his work station to attend a manager's meeting . On the contrary, he testified, Foreman Staggs had once told' Overpeck that Staggs could not interfere with his going to the general manager's meeting when he had, been cleared to go and had "told us, in effect, that if he was absent from the shop or forgot to sign the card, one or the other, to take the card and to leave at the proper time and he would sign it as he passed through the timeroom that evening after work." This had happened several times, according to Over- peck's undisputed testimony. On January 22, 1969, when Richardson had not returned by "approximately" 3:25 p.m., according to Overpeck, the latter picked up his timecard (which Rich- ardson, had already signed),9 left it with the timekeeper, picking up his brass identification check. The timekeeper, as he is permitted to do, changed the notation on Over- peck's timecard of 8 hours on conveyors to 7 hours and noted 1 hour for the general manager s meeting. According to Overpeck, he passed through the time office at 3:28, or 3:29' p.m.10 The timekeeper testified merely that Overpeck had gone through between 3:25 and 3:30 p.m. The timekeeper's testimony is credited. Overpeck testified that he arrived at the general manag- er's meeting at 4:02 or 4:03 p.m. Foreman Richardson testified that he had made out the timecards for his men just after lunch. On Overpeck's he showed 8 hours on conveyors. Richardson had then gone to the meeting in Superintendent Cullom's office which started between 1 and 1:30 p.m. He was still in this meeting, he testified, when, at 3:15 p.m., the smelter clerk, George Haler, had notified Richardson that there was a general manager's meeting that afternoon and that Overpeck was scheduled to be there. Richardson started to testify that he had "learned" that Overpeck had been scheduled to attend the general manager's meeting that day, but corrected himself, to say that he had been "notified" of the hearing by the smelter clerk at 3:15 p.m. However, when Respondent's counsel asked, "Was this your first knowledge of it?" he replied that it was. I am skeptical of Richardson's testimony, since word is usually given in the morning. The smelter clerk, who would be the one to notify Richardson in the morning, did not testify, however. According to Richardson, it would take him only a couple of minutes to get from the smelter office (the superintendent's office), where he was, to the repair shop. Richardson testified, "Well, it was 3:15 when I got the notice [from the smelter clerk] so 'I had to hurry back to the shop so I could be there by, 3:30 to let this man off,"11 However, Richardson testified Overpeck "was gone when I got to the shop at 3:25." Since, by his own testimony, Richardson took 10 minutes to make the trip that he testified would take only 1 or 2 minutes, I do not get a picture of haste, and I am not convinced that Richardson's testimony as to the time of his departure from the superintendent's office or his return to the smelter repair shop (which return was not corroborated by anyone at the repair shop) was as accurate as he sought to make it appear. 6 The foreman frequently makes'the cards out during the day and signs them, keeping the cards in his box for any corrections that might have to be made before the end of the day 11 Cullom testified that Overpeck had "cleared the gate" sometime before 3:25 p in. He did not say where he had received his information 11 Cullom' testified that Richardson left the superintendent's office at 3,20 p in , but his testimony indicated that he was approximating. At another point, Cullom testified that the meeting in his office ended at 3•l5pin MAGMA COPPER COMPANY Richardson testified that "whoever was in the. shop at that time, I can't recall,' told me he [Overpeck] was gone." Richardson gave testimony which, if credit- ed, would show an excellent memory for some details but a very poor memory for others which one would suppose-were as easy to remember. The first thing Richardson did when he discovered that Overpeck had already left was to telephone Superin- tendent Cullom to tell him that Overpeck had left. I note that Richardson did not call the time office to ascertain if or when' Overpeck had passed there, and Richardson did-not testify that there was any conversa- tion with Cullom about the time when Overpeck had left. He just told Cullom that Overpeck had left: The way this call took place suggests that Richardson and Cullom had anticipated that Overpeck would leave with- out waiting for Richardson and that Richardson was merely confirming that Overpeck had left. After testifying that' he had "called Cullom to say that Overpeck had left, Richardson added, "I thought he might want to continue the meeting." Richardson did not remember (but "imagined") that he had asked Cullom if he wanted him to return to the' meeting, yet Cullom testified that the meeting had ended before Richardson had left his office. In his telephone conversa- tion with Cullom, according to Richardson, there was no` mention of any disciplinary action against Overpeck. He could not remember 'whether or not he had taken any steps at all to initiate ariy disciplinary action. Howev- er, he testified that "before the shift begins in the morning we always go to the' general foreman's office and get our orders for the day . and 'I believe that is where 'I learned about the disciplinary action." However, his mind was blank as to what he heard there. Cullom, however, after Richardson had told him on the telephone on the 'evening of January 22 that Overpeck had already left, went in the company of Assistant Superintendent Caldwell directly to the office of, Assistant Manager Wayne Burt and "urged" that Overpeck be discharged for "blatant violation of a well- known rule, in a long series of such challenges." When Overpeck came to work on January 23, 1969, he became aware of the fact that Richardson was asking some of the men' in the' repair shop that morning about what time Overpeck had left the shop 'the previous day. Although Richardson purportedly had asked "some- one" in the smelter repair shop'the night'before where Overpeck was, he did not testify that he had asked that-unknown person when Overpeck had left. Richardson's testimony gave every appearance of an attempt to avoid revealing anything which Richardson believed might damage the Respondent's case. In view of his hot and cold memory, I do not credit his testimony as to when he returned ' to the smelter repair shop from Cullom's office on January 22. I even doubt his testimony that he questioned anyone at that time. Cul- lom's testimony of the time that Richardson had called him and the, time that Overpeck had gone through the gate were obviously adjusted to suit his own interest It did not even jibe with Richardson's testimony or with the timekeeper's. 105 When Overpeck learned that Richardson; on the morn- ing 'of January 23, was questioning men about when he had left the shop the day before, he went to Richard- son and asked why he was inquiring , about him . Richard- son, according to Overp'eck's credited testimony , replied that Overpeck had left the day before "without his authority." 'According to'this account , Richardson did not say that Overpeck had left early. Richardson, 'him- self, did not testify about this conversation with Over- peck . Overpeck testified that he had protested to Richard- son that he had followed the procedure that had always been in effect 'when the foreman was not present at the time he was supposed to leave for the general manager ' s meeting , and he asked Richardson to arrange a meeting, with -Superintendent Cullom so that they might go over the procedure and,'if there was another one that they preferred , he would be happy to abide by it. According to Overpeck, Richardson said that he would speak to Cullom and let Overpeck know later. Later, according to Overpeck , Richardson told him that Cullom was out of town that day.12 No such meeting ever took place. On the morning of January 23, 1969, Personnel Manag- er Ridinger informed General Manager Wise of conversa- tions which he had had with "the smelter supervision" about disciplinary action to be taken against Overpeck. Wise and vague , intentionally I deduce, about exactly what Ridinge'r had said to him; but Wise testified that the smelter supervision had recommended Overpeck's discharge and that he had thought this would be grossly unfair and that he had prevailed upon them to reconsid- er.13 To do this, he remanded the matter to that "supervi- sion," and they decided on the 5-day layoff. Right after lunch that day (January 23 ), Assistant Superintendent Caldwell brought to Foreman Richardson a prepared disciplinary action slip which gave Overpeck a 5-day disciplinary layoff (not including scheduled days off) starting on January 24, 1969 , for "leaving the job early on 1/22/69 without 'proper authorization. 1114 Rich- ardson signed his name and then Caldwell signed his in the spaces'provided therefor. At 4:15 p.m. that day , Overpeck' was called to the smelter repair office . Present , according to Overpeck, were Staggs;15 Richardson , Caldwell , and Willie Van Herron , the Union 's alternate grievance man. Richardson told Overpeck'that he was being , given a 5-day layoff for "leaving the, job without proper authorization," as Overpeck put it. Since Caldwell and Staggs did not testify and since Richardson gave no testimony about this, Overpeck 's testimony stands undenied. Overpeck protested to Caldwell that he had never known that " Cullom testified that he had to go to Phoenix " Wise testified that at that time he was not as fully informed of the facts as he had become by attending the hearing 14 "Leaving the job early" is not necessarily descriptive of leaving before 3 30 p in Since Cullom took the position that Overpeck had to clear with his foreman in order to leave at any time' before 4.30 p m , "leaving early" could signify merely leaving before 4.30 p m I believe that this was the meaning Respondent's supervisors had in mind at that time, although at the hearing they made an issue of the 5 minutes which Overpeck had left before 3 30 p in 11 Why Staggs was there does not appear 106 DECISIONS OF NATIONAL LABOR RELATIONS BOARD any authorization was needed to attend a general manag- er's meeting other than the one given by the personnel department. Caldwell said, "You knew better." Over- peck said that this was the first incident of this nature that had come up under Richardson." There is no evi- dence of any further conversation. Overpeck signed the disciplinary action slip on the line intended for him, but Van Herron refused to sign on the line for the grievance man's signature. Overpeck filed a grievance about this 5-day layoff which, in due course, reached the third step, the general manager. Again the decision was adverse to Overpeck. Asked by Respondent's counsel whether, or not' he thought a 5-day disciplinary layoff was proper in this case, Wise testified that he did "in view of the fact that we were discussing not only the incident of January 22, but we were also reviewing the man's overall experi- ence with the company and the many grievances that had been brought to our attention through the grievance procedures in past months." Union and company representatives, after Overpeck's grievance was rejected, discussed the problem that Over- peck had been to them, according to Personnel Manager Ridinger. According to Ridinger, "Both sides were pon- dering where does this thing end, it keeps going on and on, how do we get these things settled, Mr. Over- peck, I mean." Several days after that, according to Ridinger, David Cummings, chairman of the Union's grievance committee, telephoned Ridinger and asked the Respondent's reaction to replacing Overpeck as grievance man by another man, Dan Lewis. Ridinger testified he replied that "that would be fine with us," and that, "this might help alleviate the problem." It was at this time that Overpeck was relieved of his grievance man's position for several months. During the time before he was given back the position, his replacement had filed few, if any, grievances. 4. Concluding findings and deductions As stated earlier, the Respondent justified the 5-day layoff of Overpeck on the ground that he had violated a well-known rule of long standing:, "Unauthorized absence from assigned working place while on duty." Respondent took the position that, regardless of the reason for a man's being away from his assigned working place, this rule was violated if the employee did not first get authorization from his foreman. The necessity for Respondent's rule was stated to be for safety and efficiency-safety, because a man away from his post might suffer injuries because of dangers inherent in the type of machinery and equipment about the plant; efficiency because, in case of emergency, a foreman might have to gather his crew in a hurry, so he had to keep track of them; furthermore, as Cullom testified, "You can't supervise people if you don't even know where they are. 1117 '" I find that Overpeck was not the most articulate of people He appears to be unable to cut incisively through semantic differences or to marshal] all the pertinent facts to explain his position 17 In its brief to the Trial Examiner the Respondent states In an attempt to show that infractions of this rule by other employees were not overlooked and to avoid giving the appearance of discrimination, the Respondent adduced evidence of the application of the rule to other employees Personnel Manager Ridinger testified that, on one previous occasion, a grievance man had left his work area to attend the general manager's meeting without notifying his supervisor and that he was given a 3-day layoff. Ridinger did not testify that that grievance man had any concern in the grievance or had been cleared by the personnel department to attend the general manager's meeting, and there is reason to believe that he had not been." The employee involved, James Hen- derson, was in the mill division (not under Cullom). Ridinger testified also that Henderson, 'an operator in the concentrator building, undoubtedly needed a replace- ment when he left, because his operation was continuous, but he had not had any communication with his foreman, and "I think he somehow found out about the hearing and took off." Ridinger conceded that he was not informed as to whether or"not Henderson had been cleared by the personnel department with notice by the latter to Henderson's supervisors'. This would be a material fact if the Henderson case were to be used as a precedent for penalizing Overpeck. Other instances given by Ridinger of discipline meted out for violation of the rule that Overpeck was accused of violating involved employees who had no valid excuse at all for leaving their work stations. In one case, two men on the B shift came to work in the smelter "and decided it was too hot to work or something, so they took off and went over the fence." From this, I deduce that they did not even pass the time office. These men were discharged. In another case mentioned by Ridinger, a man was found intoxicated and away from his work station. "Introduction, possession, or use of intoxicating liquors or coming to' work under the influence of intoxicating liquors. . . ." was in itself a violation of rules; so that man actually violated two rules. No other cases actually similar to Overpeck's were shown. The Respondent brought out that other grievance men (members of the grievance committee) had never failed to "touch base" with their supervisors before leaving to attend a general manager's meeting.'' Howev- er, Jack Clements, the Union's vice president and a Indeed, the only suggestion that the rule was not reasonable came from the Trial Examiner himself, who volunteered his opinion that the rule was "ritualistic " The Trial Examiner's comment did not concern the rule, itself It related to the Respondent's position that the rule should be rigidly applied regardless of whether or not the reason for the rule existed in the particular case " In his testimony at another point, Ridinger testified that they did not want just anyone to come to the general manager's meeting He testified "At least there have been occasions when some person, who is really a disinterested party, decides, well, 'I ought to see what happens at that hearing ' " 'B Their problem might have been simpler than Overpeck's Grievance committee member Clements testified that, if his foreman was not around when he was leaving for a general manager's meeting "I normally go through the machine shop and get some other supervisor to sign it [his time card] " Since the supervisor of the machine, shop was over his own supervisor, this presented no problem MAGMA COPPER COMPANY member of the, grievance committee, testified that those committeemen had said at a manager's meeting that they did this as a matter of "courtesy" and not because they felt that authorization was necessary. Also it gave the supervisor an opportunity to correctly show the time spent at the general manager's meeting. Lewis, who served as grievance man after Overpeck had been relieved of his duties and who had been past chairman of the grievance committee, was reported to have said at the general manager's meeting, at the time when Overpeck's layoff was being discussed, that he had never been told that he had to notify his supervisor when leaving to attend a general manager's meeting. And Clements testified that before the general manager's meeting where Overpeck's grievance concerning his 5- day layoff was taken up, he had never heard of a rule that one had to notify his supervisor in person before attending a general manager's meeting. The ' book of rules which contains the one relied on by the Respondent also contains'one which provides: RULES GOVERNING ABSENTEEISM 3. An employee who has not made advance arrange- ments for time off and who is confronted with the necessity of being absent from his work shall make every effort to contact his immediate supervi- sor and inform him of the circumstances. If the employee is unable to contact his supervisor, he shall call the Time Office and give the following information: His name; His payroll number; The name of his immediate supervisor; The shift -or shifts he will be absent from, and the circumstances making the absence necessary. 4. Reporting off by a telephone call to the Time Office, as described above, does not mean that the employee so reporting is automatically granted an excused absence. An employee who has been absent without prearrangement and who subse- quently presents an excuse acceptable to the Com- pany will be entitled to a certificate of excused ,absence. This language could cover Overpeck's failure to obtain his foreman's approval to leaving for the general manag- er's meeting even if consent was actually necessary. He attempted to contact his foreman, he telephoned the timekeeper, he supplied expressly or tacitly all the required information, and his excuse for leaving was undeniably one that had to be approved. Hence, the only fault appears to have been Overpeck's departure 5 minutes before the deadline. Cullom, although adhering to the assertion that there were no exceptions to the rule that no one could leave the department without "touching base" with his super- visor (and this meant face to face contact, or at least 107 verbal'20 not written, notification by the employee as well as express authorization by the supervisor to leave), conceded that if Overpeck had waited until 3:30 p.m. and his foreman had not returned by that time, that this would have been a different situation and he would not have raised the issue in the first place. The reason for the rule of touching base with the supervisor, to the extent that it pertained to the necessity for the foreman's knowing of the employees' whereabouts, did not enter this case, because, as Cullom testified, "We all knew where he was." The matter boils down, therefore, to a question of whether or not the penalty meted out to Overpeck for leaving 5 minutes earlier than he was supposed to leave was actually meted out because of an infraction of rules or was meted out in whole or in part because of Overpeck's union activities in filing grievances.21 The severity of the penalty is not an issue here except to the extent that it might be motivated by a discriminato- ry intent or indicated a course designed to curb Over- peck's union or concerted activities. Since Overpeck was not asked about his side of the various grievances he had filed on other occasions, I am unable to determine in each case whether or not they were frivolous, designed to be harassing, and an abuse of the grievance process as the Respondent viewed them, or had some basis, as Overpeck seemed to believe. It is apparent from the evidence that Overpeck had filed nowhere near so many grievances in his years as grievance man before the strike as he had after the strike when he came under Cullom's supervision. The cause of the increase conceivably could have been Overpeck's dissatisfaction with the strike settlement or it could have been his chafing under the rigidity of Cullom's enforcement of rules-rules which Overpeck required clarified.22 Cullom, himself, looked upon Over- peck as an ungovernable, rebellious troublemaker. The large number of written grievances filed could be partly attributed to the requirements of the Union's contract in the first two steps, for the situation was certainly not alleviated by the fact that Cullom seemed to, feel it necessary to do personally what the foreman should have done-to handle personal discipline. The result was that, if there was any basis for a grievance at all, the grievance would necessarily have been prejudged not only by the foreman but also by the superintendent- R0 Cullom was willing to concede that notification by Overpeck by telephone might have sufficed, in this instance Richardson, however, testified that it would have served no purpose for him to telephone when he was informed by the smelter clerk that Overpeck was scheduled to attend the general manager's meeting on January 22 because he would have been relieving Overpeck 15 minutes early and, besides, he had to correct Overpeck's timecard Had he telephoned, however, he need not have relieved Overpeck at 3.15 p m He could have told Overpeck he would be right over and would correct Overpeck's timecard. In fact, he could have telephoned the timekeeper to correct the card. 21 Even if Respondent's motive was mixed, the discrimination would be no less an unfair labor practice. N.L.R.B v Symons Mfg Co , 328 F 2d 835, 837 (C.A 7), N L R.B v. Lexington Chair Co , 361 F.2d 283, 295 (C.A. 6); Sutherland Lumber Company, Inc , 176 NLRB No 143 22 After Overpeck's last layoff, the rules were revised, but the revised rules are not in evidence 108 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the very men to whom a grievance had to be addressed in the first two steps Necessarily a large number of written grievances were carried to the third step, for the general manager, Wise, would be the only one of the three-Richardson Cullom and Wise-who could then be expected to be unbiased, yet, the picture present ed convinces me that even Wise impartial though he appeared, was reluctant to overrule his management staff in open sessions with union representatives, regard less of Wise's personal judgement in the matter While on the one hand management was attributing to Overpeck motives of malice in the filing of grievances, Overpeck appeared to feel that he was being discriminat ed against and punished because of his activities as grievance man, a conclusion that might or might not have been warranted in all cases It is not a simple matter to conclude whether either side was justified in its conclusions But it is my impression that there might have been some fault on each side Overpeck is portrayed by the Respondent as the kind of person who questions any order which is not backed up by a written rule or a prior bilateral agreement This could have been the basis for the Respondent's belief that, when Overpeck left 5 minutes early to attend a general manager's grievance meeting, he was trying to create an issue in order to get a written determination of the necessity for getting the foreman's express approval before leaving to attend the general manager's meeting But for the Respondent's belief that Overpeck was attempting to create an issue, I am convinced that his departure 5 minutes early would have created no serious reaction Asked what time repairmen ordinarily checked out at the end of the shift, William Hester, the timekeep- er, testified that they would check out at the gate between 4 25 and 4 30 p m The shift actually ended at 4 30 p m This means that those employees who left the gate before 4 30 p in must have left their assigned work stations about 5 minutes before the end of the shift in order to reach the timekeeper's room between 4 25 and 4 30 p m I judge that specific authorization from their foreman was not obtained every day to leave that much before the end of the shift 23 Although Over peck had not usually passed the timekeeper's office to attend a grievance meeting before 3 30 p m , during the time he had been under Richardson's supervision, the Respondent's tacit approval of the practice of leaving work stations at the end of the shift 5 minutes early warrants an inference that an unbiased employer, in applying a stricter rule to Overpeck on January 22, 1969, for leaving 5 minutes earlier than he should have left, even taking into consideration the prior warnings 23 There is evidence that some members of the grievance committee were permitted to leave their work stations at 3 20 p in to go to the general managers meeting but they were at a location 8 miles farther away than the smelter area Hence this should not be considered a precedent for Overpeck to follow However there is evidence that two of Richardson s men (Steelworkers) had once walked out that Richardson had seen them going and called to them to return but that they had just waved and continued on that Richardson had comment ed that he w'is going to dock their pay but he had apparently not even done that Richardson gave no explanation of this disparate treat ment when he was on the stand and discipline meted out to Overpeck, would have limited its corrective action in this case to a reprimand and a warning not to repeat The fact that Cullom's first and only reaction, on January 22, when he was told by Richardson that Overpeck had already left, was to discharge Overpeck for this minor offense, with no attempt to investigate the circumstances any further, warrants the conclusion that Cullom was looking for a cause to discharge Overpeck The Respondent takes the position that it was not merely Overpeck's leaving 5 minutes early but that it was his leaving even a minute early in violation of Respondent's supposed rule that an employee must invariably notify his foreman in person before leaving his assigned work station, even if the foreman knows full well where he is going and why he has left and even if the employee's excuse for leaving was one over which the foreman could exercise no discretion in approving or disapproving I say "supposed rule" because the word "unauthorized" in the rule that "unau thorized absence from assigned working place while on duty" does not expressly limit the employee to verbal approval by a foreman in a personal confrontation with an employee The latter interpretation is merely Cullom's interpretation of the rule (which Respondent has here espoused), and his inflexible interpretation of it is even contrary to rules 3 and 4 of the Respondent's "Rules Governing Absenteeism " If Cullom's interpreta tion were correct, Overpeck should not even have left his work on the conveyors before 3 30 p in unless and until his foreman had appeared so that he could be asked permission to leave Yet, Respondent raised no issue about Overpeck's return from the location of the conveyors to the smelter repair building where he expected to see his foreman about leaving The only issue raised by the Respondent was about Over peck's leaving the smelter repair building before his foreman showed up to release him I do not mean to imply that Cullom must be as lenient in his application of rules as other supervisors in Respondent's operations might have been, but I do find in Cullom's reaction in this instance to what was at most a minor violation of rules-his precipitate action to effect Overpeck's discharge with no pretense of inves- tigation of all the facts-a bias and prejudice that can be attributed only to his resentment that Overpeck would, through the grievance process, question his judgment or decisions so frequently 24 He testified about Overpeck "His first activity after he came into our jurisdiction was to begin to threaten me with grievances " Although Cullom immediately thereafter testified that "we accept grievances as a matter of course," his use of the word "threatened" discloses that he did not approve of the filing of grievances which questioned his authority and his decisions These grievances he considered as a "chal- 24 It is significant that when he telephoned Cullom to say that Overpeck had picked up his card and left Richardson had no conversation with Cullom about discipline or who would handle it It may be deduced that Richardson knew in advance that Cullom was just waiting for an opportunity to get rid of Overpeck and knew that it was out of his hands MAGMA COPPER COMPANY lenge" and as a "harassment.", He testified, "I don't require that he [Overpeck] be happy, but I do resent the harassment that he's engaged in [filing of grievances] ever since he's been in our division." Cullom testified that he considered Overpeck as an agitator and that, in his opinion, if Overpeck were not the grievance man, other employees would "go along with the isituation as it was " Cullom, in response to a suggestive question asked by Respondent's counsel, testified that Overpeck 'filed "repeated or multiple grievances on the same subject." Because this was in answer to counsel's suggestive question, because no examples thereof were given, and because the answer involved a personal conclusion of Cullom which cannot be examined, I give this testimony no weight. I do not conclude that Overpeck's judgment in deter- mining what grievances should be pressed was always the soundest. But this is not a precondition to engaging in lawful concerted activities.25 Overpeck apparently conceived it his duty, in "policing the contract," to raise issues that the average employee might not have raised, but this does not mean that Overpeck was abusing the grievance process or. using it only for purposes of harassment.26 Although Overpeck's departure for the general manag- er's meeting before 3:30 p.m. was a violation of rules, I am satisfied and find, on all the evidence, that this violation of rules was not the real reason for the penalty imposed upon Overpeck.21 The evidence demonstrates that the Respondent tolerated similar violations on the, part of other employees who were not engaged in con- certed or union activities. Furthermore evidence of Respondent's bias and prejudice against Overpeck and, its obvious desire to find some reason to rid itself of the harassment of grievances filed by Overpeck, amply demonstrate that Overpeck's minor infraction of a rule was, at most, a minimal factor in Respondent's motivation, if, indeed, it was any part. Under all the circumstances, I conclude and find that the 5-day layoff given to Overpeck was given not merely to penalize him for leaving for a grievance meeting 5 minutes early but was designed to discourage him and other employees from filing grievances, thus interfering with, restraining, and coercing employees in the exercise of rights guaran- teed in Section 7 of the Act.28 I am further convinced and I find that Respondent's punishment of Overpeck was discriminatorily motivated, and, hence, Respondent engaged not only in unfair labor practices within the ss Mushroom Transportation Co , Inc , 142 NLRB 1150. 28 As the court said in Salt River Valley Water Users' Assn v N.L R.B , 206 F.2d 325 (C A 9) "concerted activities which are protect- ed by the Act often create a disturbance in the sense that they create dissatisfaction with the status quo " Z' Taylor Instruments Companies, 165 NLRB 843 28 Aerodex, Inc , 149 NLRB 192, Dorwood Rental Company, 178 NLRB No 104; Top Notch Manufacturing Company, Inc., 145 NLRB 429; Farmers Union Cooperative Marketing Assn , 145 NLRB 1, Trailmo- bile Division, Pullman Incorporated, 168 NLRB 230, Monsanto Chemical Company, 130 NLRB 1097, Mushroom Transportation Co , Inc , supra 109 meaning of Section 8(a)(I) of the Act but also within the meaning of Section 8(a)(3) of the Act.29 CONCLUSIONS OF LAW 1. Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the mean- ing of Section 2(5) of the Act. 3. Milton C. Overpeck, Jr., is an employee within the meaning of Section 2(3) of the Act and is a member of a labor organization within the meaning of Section 2(5) of the Act. 4. By interfering with, restraining, and coercing said Overpeck in the rights guaranteed in Section 7 of the Act, Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 5. By discriminating against said Overpeck because of his union activities, Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act. 6. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. RECOMMENDED ORDER Upon the foregoing findings of fact and conclusions of law and upon the entire record in the case, I recom- mend that Respondent, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Interfering with, restraining, or coercing Milton Overpeck or any other employee in the use of the grievance procedure or in any other manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed in Section 7 of the Act. (b) Discouraging membership in any labor organiza- tion by discriminating in regard to the hire or tenure of employment or any term or condition of any employee. 2. Take the following action, which I find will effectu- ate the policies of the Act: ' (a) Make whole Milton Overpeck for any loss he may have suffered as a result of his layoff by Respondent in violation of the Act, between January 24 and 30, inclusive, 1969, by paying him a sum of money equal to that which he would have earned during said period but for his unlawful layoff, together with interest on said sum at the rate of 6 percent per annum until paid.3o (b) Post at its smelter repair shop and at all places where notices to employees are customarily posted at its San Manuel, Arizona, operations, copies of the attached notice marked "Appendix."" Copies of said 16 Kellwood Co , 175 NLRB No 79; Glenn Berry Manufacturers, Inc , 169 NLRB No 121, Graham Engineering, 164 NLRB 679, 689, Taylor Instrument Companies, 165 NLRB 843, Sandpiper Builders, 152 NLRB 796 30 Isis Plumbing& Heating Co., 138 NLRB 716 11 In the event no exceptions are filed as provided by Section 102 46 110 DECISIONS OF NATIONAL LABOR RELATIONS BOARD notice, to be furnished by the Regional Director for Region 28, after being duly signed by Respondent's authorized representative, shall be posted by it immedi- ately upon receipt thereof and be maintained by it for 60 consecutive days thereafter in conspicuous places as approved by the said Regional Director Copies of said signed notice shall also be forthwith delivered to each member of the grievance committee and to each grievance man of the Union at the San Juan operations of Respondent (c) Notify the said Regional Director, in writing, with in 20 days from the date of service of this Decision, what steps Respondent has taken to comply herewith 32 of the Rules and Regulations of the National Labor Relations Board the findings conclusions recommendations and Recommended Order herein shall as provided in Section 102 48 of the Rules and Regulations be adopted by the Board and become its findings conclusions and order and all objections thereto shall be deemed waived for all purposes In the event that the Board s 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 Labor Relations Board shall be changed to read Posted Pursuant to a Judgment of the United States Court of Appe ils Enforcing an Order of the National Labor Relations Board 32 In the event that this Recommended Order is adopted by the Board this provision shall be modified to read Notify the Regional Director for Region 28 in writing within 10 days from the date of this Order what steps it has taken to comply herewith APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency Of The United States Government We hereby notify our employees that WE WILL NOT impose any disciplinary penalties on any employee for filing grievances or otherwise engaging in concerted activities WE WILL NOT discriminate in regard to the hire and tenure of employment of any of our employees because of his union membership or activities WE WILL NOT interfere with, restrain, or coerce our employees in the exercise of the right to self organization, to form, join, or assist labor organiza- tions, to bargain collectively through representatives of their own choosing, or to engage in other concert- ed activities for the purpose of collective bargaining or other mutual aid or protection or to refrain from any or all such activities WE WILL make whole Milton C Overpeck, Jr , for any loss he may have suffered during his layoff between January 24 and 30, 1969, by paying him a sum of money equal to that which he would have earned but for his unlawful layoff during that period, plus interest at the rate of 6 percent per annum from the date said wages were due until the date of payment thereof Dated By MAGMA COPPER COMPANY (Employer) (Representative (Title) This is an official notice and must not be defaced by anyone This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material Any questions concerning this notice or compliance with its provisions, may be directed to the Board's Office, 500 Gold Avenue, Room 7011, P 0 Box 2146, Albuquerque New Mexico 87103, Telephone 843-2507