Lenkurt Electric Co., Inc.

510 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Lenkurt Electric Co., Inc. and Local Union 1969 , Interna- tional Brotherhood of Electrical Workers, AFL-CIO. Case 20-CA-5567 May 19, 1970 DECISION AND ORDER By CHAIRMAN MCCULLOCH AND MEMBERS FANNING AND BROWN On December 1, 1969, Trial Examiner Eugene K. Kennedy issued his Decision in the above-entitled pro- ceeding, finding that the Respondent had not engaged in the unfair labor practices alleged in the complaint and recommending that the complaint be dismissed in its entirety, as set forth in the Trial Examiner's Decision. Thereafter, the General Counsel filed exceptions to the Trial Examiner's Decision and a supporting brief, and the Respondent filed an answering brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in con- nection 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, the exceptions and briefs, and the entire record in this case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner only to the extent consistent herewith. We cannot agree with the Trial Examiner's conclusion that Jordan's conduct while acting as a union steward in prosecuting a grievance on behalf of another employee removed him from the Act's protection' and warranted dismissal of the complaint in its entirety. Jordan was hired by Respondent in October 1967 as a production worker. Because of his superior ability he was advanced rapidly'and, by January 1968, had been promoted through several classifications to the status of electronic technician I in department 40. He' was designated union steward of that department in July 1968 and served in that capacity until February 1969 when he was transferred to department 75. Shortly thereafter, he was appointed steward of department 75 and acting in that capacity during the ensuing months filed two grievances on behalf of other employees against Foreman Calhoun, which resulted in Jordan's being for- mally disciplined and eventually transferred to another department. The first grievance involved a statement made by Calhoun to three employees in his department to the effect that if they did not get a haircut they would not be allowed to work and that if they persisted in wearing long hair they would be terminated. Calhoun called these employees into his office one at a time. One of them requested permission to see steward Jordan, and Calhoun agreed and attempted to locate Jordan in order to send him to, the employee. At that time Jordan could not be located. Later, as the last of three employees was entering Calhoun's office, Calhoun noticed Jordan engaged in a conversation with the employee who had earlier sought his assistance. There- after, Calhoun called Jordan into his office and orally disciplined him: he advised Jordan that he had violated the collective-bargaining agreement by failing to obtain permission of his supervisor to conduct Union business and by "jumping the gun and soliciting a grievance which is not part of the duties of a shop steward." The second grievance followed closely thereafter and was likewise directed against the conduct of Foreman Calhoun. Two days after the filing of the first grievance Calhoun began reassembling some shelving in the staging area. On the following workday he assigned an employee, Brown, to complete the work. Sometime later, Brown was granted permission by Calhoun to speak to Jordan. Later that day, Jordan presented Calhoun a written grievance on behalf of Brown concerning additional pay to which Brown was allegedly entitled for working out of his classification on the shelving job. The grievance was denied by Calhoun and subsequently withdrawn by Brown. Thereafter, Calhoun, at the direction of Respondent's labor relations manager, gave Jordan a written disciplinary notice on a company form: On April 28, 1969 you overstepped the role of departmental steward as defined in Sect. 2, Article III of the labor agreement. You did this by speci- fically soliciting a grievance. The role of a steward at Lenkurt is that of investigating and adjusting grievances, not soliciting them! We will expect you to conduct yourself as a steward as established by practice and called for by the labor agreement. Failure to do so in the future will mean disciplinary action; including termination.I The company form also contained a space wherein- the employee was supposed to affix his initials to acknowl- edge receipt of the disciplinary notice. When Jordan acknowledged receipt, he noted the following on the form in the space marked "Remarks": The issue which is being discussed in this memo was the investigation of a complaint (my own) leading to a grievance (employee in my group). I therefore am fully within my rights according to Article III, Sect. 2 of the contract. An hour later Jordan was transferred from department 75 to department 40 and assigned the position of cold check troubleshooter, an unskilled job which required ' Art III, sec 2, of the collective-bargaining agreement between the parties, which formed the basis for the Employer's disciplinary actions, provides I Stewards shall report to their immediate supervisors and request permission to leave the job before leaving work to conduct Union business Permission will always be granted unless such action would seriously interfere with operations In such instances, the supervisor will make arrangements for the steward to leave the job as promptly as possible Stewards will be allowed to conduct their Union business within their regularly scheduled working hours , within their assigned areas of representation Union business for this purpose is defined to mean the investigation of complaints that may lead to grievances, handling and adjustment of grievances , and attendance at meetings with representatives of the Employer 182 NLRB No. 78 LENKURT ELECTRIC CO. only 30 minutes to learn. Prior to Jordan being assigned this job, it was held by a technician II, a job classification less skilled than that of Jordan. Moreover, Jordan's section supervisor in the new department considered the cold check job too tedious to be performed continu- ously by any one technician. He believed it preferable to rotate the position among his technicians. Neverthe- less, Jordan, unlike, other employees, was obliged to remain in this menial position for a lengthy period. Nor was Jordan permitted, under threat of dismissal, to leave his department 40 job area in order to act as the union steward in department 75. During the ensuing period, the' employees in department 75 did not have a union steward available to them, and the situation was not altered until after complaint issued in this case, at which time Jordan was loaned back to department 75. Unlike the Trial Examiner, we find that the evidence, considered in its totality, presents a strong prima facie case to support the allegations in the complaint to the effect that Respondent violated Section 8(a)(1) of the Act by issuing a disciplinary threat to Jordan'because of his activities as a union steward and Section 8(a)(3) and (1) by transfering Jordan because of these same union activities. As detailed above, Jordan filed only two grievances, each of which resulted in a disciplinary admonition from the object of these grievances; namely, Foreman Calhoun. In each instance Jordan was admonished for "soliciting a grievance" , as being contrary to article III, section 2, of the collective-bargaining agreement. That the gravamen of Jordan's offense to Calhoun was in fact the solicitation of grievances is clear from Cal- houn's attitude in general. For example, Calhoun did not object to grievances being filed by the Union, even if they were directed against himself, as long as they were filed under-what he conceived to be the terms of the contract. Thus, when Calhoun was warning the three employees about their long hair, upon request, he attempted to locate steward Jordan to enable them to grieve if they so desired. What Calhoun objected to was the solicitation of grievances per se, which he conceived to be contrary to the contract, and for which he twice disciplined Jordan. We do not, however, agree that the language of these contract provisions standing alone precludes a union steward from soliciting a grievance or in any way indicates that the Union has waived or limited its right to solicit grievances.2 Rather, the restrictive language of this paragraph indicates only that before a union steward conducts union business during working hours he must first secure permission from the Employer, a permission that must be given as promptly as the production schedule will permit. Nor does the language in the provision authorizing the union steward to investi- gate complaints in any way limit the steward's authority to act on a grievance only after receiving a formal complaint or precludes the steward from himself noting 2 The provisions of the contract here involved are quoted in in 1, supra 511 a contract violation or making a complaint. We note that the facts reveal that each employee had asked to speak with Jordan, and permission was granted. In any event, the solicitation of grievances is a protected activity for stewards as well as other employees. A waiver of the right to engage in such activities must be clearly and unequivocally set forth in the contract. As the contract does not clearly and unequivocally place a limitation on a union steward regarding the solicitation of grievances, Jordan was engaged in a protected activi- ty.3 Accordingly, the admitted direct evidence of Respondent's agent to the effect that Jordan was disci- plined or threatened with job loss solely for soliciting grievances, an activity which under the circumstances in this case we find to be protected, and the almost immediate transfer to a less desirable job constitute a prima facie case that Respondent has violated Section 8(a)(1) and (3) of the Act. Nor do we find that Respondent offered sufficient evidence to dissipate the unfavorable inferences to be drawn from the General Counsel's evidence. Based on this evidence, we cannot, as did the Trial Examiner, conclude that Jordan was disciplined and transferred because he solicited grievances in order to injure or effect the removal of his foreman and that such conduct removed him from the Act's protection. The Trial Exam- iner found both that Respondent reasonably believed that Jordan solicited the Brown grievance for the primary purpose of "getting" Calhoun and that Jordan did in fact solicit the grievance for that purpose. The evidenti- ary, path taken by the Trial Examiner does not withstand detailed analysis. Foreman Calhoun testified that shortly after he received the grievance Brown came into his office and asked for its withdrawal. According to Calhoun, Brown then,told him that he had heard from other employees that Jordan had asked them to,file grievances and Jordan had told them that if they filed enough grievances, he would "get rid of this guy for you." Calhoun testified that Brown told him he felt he was being used by Jordan "to get at Calhoun" and again asked for the return of his grievance. Although employee Brown had appeared in the hearing room but had not been called as a witness, the Trial Examiner nevertheless found that Brown's testimony was unnecessary to the establish- ment of Respondent's defense; namely, that it reasonably believed that Jordan solicited the grievance for the express purpose of "getting Calhoun." The Trial Exam- iner found that this conclusion was supported by certain direct probative evidence. He noted that the grievance was filed on behalf of Brown before it was even known whether or not the Company was going to pay Brown at a higher rate of pay for the out of classification work. The Trial Examiner felt that this action connoted a kind of eagerness which was supportive of Calhoun's testimony. The Trial Examiner believed that Brown's act of tearing up the grievance also confirmed the reason- ableness of Calhoun's reliance on what Brown had told 3 F J. Buckner Corp., 163 NLRB 81, enfd 401 F 2d 910 (C A 9), cert denied 393 U S 1084 512 DECISIONS OF NATIONAL LABOR RELATIONS BOARD him. The Trial Examiner also felt that Jordan's conces- sion on cross-examination that he told Brown when he signed the grievance, against Foreman Calhoun, "We've got him now, he won't be able to squirm out of this," went beyond supporting the reasonableness of Calhoun's position and, in the light of the entire record, constituted probative evidence that Jordan did in fact solicit the grievance for the primary purpose of "getting" Calhoun, a purpose unprotected by the Act. We cannot agree. The Trial Examiner's conclusions rest largely on hear- say evidence4 admitted to show Respondent's motive in disciplining Jordan and on the purported concession of Jordan on cross-examination, in referring to Calhoun, "We've got him now, he won't be able to squirm out of this." We are not convinced, based on this evidence, either that Respondent actually disciplined Jordan for the reason advanced or that Jordan in fact did solicit the Brown grievance in order to have his foreman removed. We note that Jordan filed only two grievances during his entire stewardship of department 75 and that both times he was explicitly disciplined for soliciting a grievance although each employee had previously asked to speak with him. No mention was made to Jordan that he was being disciplined because he had solicited a grievance from Brown for the purpose of injuring or causing the removal of Foreman Calhoun. Rather, Jordan was only told that he was being disciplined for engaging in what is in fact a protected activity under the circumstances here present; namely, the solici- tation of a grievance. It is, of course, only the Brown grievance that is in direct contention here regarding the alleged miscon- duct. of Jordan. We are asked to believe that Respondent formally disciplined and threatened one of its better employees (one who had in very rapid order been advanced by the Company) because another employee told Foreman Calhoun that he had heard other employees say that Jordan was out "to get Calhoun." We are asked to believe that this was in fact the real reason for the discipline even though the Employer admittedly never discussed this matter with Jordan informally, and never formally advised him that it was the reason for the disciplinary action. Instead, Jordan was twice disci- plined for the stated reason that he was soliciting griev- ances. Under these circumstances, we find it difficult to explain Respondent's reticence with a union steward in a disciplinary matter , and cannot infer, as did the Trial Examiner, that the Respondent's motives in disci- plining Jordan, which included a threat of termination, were those articulated at the hearing rather than those contained in the language of the disciplinary notices themselves. Accordingly, we conclude, the hearsay evidence and the ambiguous exclamation made by Jordan at the time Brown signed his grievance notwithstanding, that the actual reason stated in the disciplinary notice was in ' The General Counsel objected to the admission of this evidence at the hearing and specifically excepted to this aspect of the Trial Examiner's Decision. fact the reason for the action taken. It follows, then, that Respondent violated Section 8(a)(1) of the Act when it formally disciplined and threatened Jordan with loss of his job because he solicited a grievance, a protected activity, and that it violated Section 8(a)(3) and (1) of the Act when it transferred Jordan to a less desirable and less responsible job for engaging in this same union activity. Moreover, were we to agree with the Trial Examiner that the solicitation or filing of grievances in an "attempt to damage or effect the removal of a supervisor" is not a protected activity, we would limit the principle to those cases where the employee was motivated by nonwork-related considerations. Accordingly, even assuming that Calhoun reasonably believed that Jordan was trying "to get him," it is clear from Calhoun's own testimony that he had no basis for believing that Jordan was acting for other than work-related consider- ations. Thus, Calhoun testified that Brown informed him that Jordan was soliciting employees to file griev- ances, and if there were enough grievances he (Jordan) would get rid of Calhoun for them. Calhoun's testimony as to what Scholfield told him clearly depicted a Jordan who was at least partly concerned with Calhoun's per- formance of work that could have been done by a unit employee. THE REMEDY Having found that the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a)(1) and (3) of the Act, we shall order that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Having found that Respondent unlawfully disciplined or threatened and then transferred Grant Jordan, we shall order that Respondent reinstate him to his former or a substantially equivalent position of employment, without prejudice to his seniority and other rights and privileges , and to make him whole for any loss of earnings he may have suffered as a result of Respondent's unlawful conduct. Backpay shall be computed in the manner set forth in F. W. Woolworth Company, 90 NLRB 289, with interest added thereto in the manner set forth in Isis Plumbing & Heating Co., 138 NLRB 716. CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of the Act. 2. The Union is a labor organization within the mean- ing of the Act. 3. By issuing a disciplinary threat to union steward Grant Jordan because he solicited a grievance, Respond- ent has violated Section 8(a)(l) of the Act. 4. By discriminatorily transferring union steward Grant Jordan for soliciting a grievance, Respondent has violated Section 8(a)(3) and (1) of the Act. LENKURT ELECTRIC CO 5 The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act ORDER Pursuant to Section 10(c) of the National Labor Rela- tions Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Lenkurt Elec- tric Co , Inc , San Carlos, California, its officers, agents, successors , and assigns, shall 1 Cease and desist from (a) Disciplining or threatening , or in any other manner interfering with, restraining , or coercing employees for soliciting grievances in the performance of their duties as union stewards (b) Transferring or in any other manner discriminating against employees for soliciting grievances when acting as union stewards (c) In any like or related manner interfering with, restraining , or coercing employees in the exercise of their rights under the Act 2 Take the following action designed to effectuate the policies of the Act (a) Offer to Grant Jordan immediate and full reinstate- ment to his former job or, if that job no longer exists, to a substantially equivalent position without prejudice to his seniority or other rights or privileges , and make him whole for any loss of earnings he may have suffered by reason of Respondent's discrimination against him as set forth in the section of this Decision entitled "The Remedy " (b) Notify the above-named employee, if presently serving in the Armed Forces of the United States, of his right to full reinstatement , upon application, in accordance with the Selective Service Act and the Uni- versal Military Training and Service Act, as amended, after discharge from the Armed Forces (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 San Carlos, California, plant copies of the attached notice marked "Appendix "5 Copies of said notice, on forms provided by the Regional Director for Region 20, after being duly signed by the Respondent's 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 Respondent to insure that said notices 5 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 read Posted pursuant to a Judgment of the United States Court of Appeals enforcing an Order of the National Labor Relations Board 513 are not altered , defaced , or covered by any other mate- nal (e) Notify the Regional Director for Region 20, in writing, within 10 days from the receipt of this Decision, what steps have been 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 WILL NOT discipline or threaten, or in any other manner interfere with , restrain, or coerce employees for soliciting grievances in the perform- ance of their duties as union stewards WE WILL NOT transfer or in any other manner discriminate against employees for soliciting griev- ances when acting as union stewards WE WILL NOT in any like or related manner interfere with , restrain, or coerce our employees in the exercise of their rights guaranteed by Section 7 of the Act WE WILL immediately reinstate Grant Jordan to his former job or , if that job no longer exists, a substantially equivalent position without prejudice to his seniority or other rights or privileges, and make him whole for any loss of pay he may have suffered by reason of the discrimination practiced against him WE WILL notify the above-named employee, if presently serving in the Armed Forces of the United States , of his right to full reinstatement , upon appli- cation , in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended , after discharge from the Armed Forces LENKURT ELECTRIC CO , INC (Employer) Dated By (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, 13050 Federal Building , 450 Golden Gate Avenue, Box 36047, San Francisco, California 94102, Telephone 415-556-3197 514 DECISIONS OF NATIONAL LABOR RELATIONS BOARD TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE EUGENE K KENNEDY, Trial Examiner This matter was heard in San Francisco, California, on August 26 and 27, 1969 The issues involved are whether Lenkurt Electric Co , Inc , herein Respondent , violated Section 8(a)(1) and (3) of the National Labor Relations Act, as amended , herein the Act, by reprimanding an employ- ee and transferring him within the plant because of his actions as a union steward I Upon the entire record in this proceeding and upon observation of the demeanor of the witnesses and consid- eration of the briefs filed by the General Counsel and Respondent, I hereby make the following FINDINGS OF FACT I THE BUSINESS OF THE RESPONDENT Respondent is a Delaware corporation manufacturing electronic products in San Carlos, California During the past year in the course of its business operations, it sold and shipped, from California, products valued in excess of $50,000 directly to customers located outside the State of California During the same period , Respond- ent, in the course and conduct of its business operations, received in the State of California goods valued in excess of $50,000 which were shipped directly from points outside the State of California Respondent is, and at all times material herein has been an employer engaged in commerce and in operations affecting com- merce within the meaning of the Act II THE LABOR ORGANIZATION INVOLVED Local Union 1969, International Brotherhood of Elec- trical Workers , AFL-CIO, herein the Union, is, and at all times material herein has been , a labor organization within the meaning of the Act III THE ALLEGED UNFAIR LABOR PRACTICES The Issues Respondent, on May 1, 1969, transferred employee Grant Jordan , a union steward , to another department and also reprimanded him for his conduct in connection with employee Brown The General Counsel and Respondent vary in charac- terizing the events attending this reprimand and transfer The General Counsel' s emphasis is on the fact that Jordan was reprimanded and transferred after he incurred the displeasure of Respondent while acting as a union steward Respondent stresses that Jordan 's activities were removed from the Act's protection because the real I The charge was filed on May 2 1969 and a complaint issued on June 5 1969 purpose of Jordan was to "get nd" of his supervisor, Leo Calhoun, and further that the collective-bargaining agreement not only did not permit soliciting grievances for such a purpose but for any purpose Respondent claims Jordan was using his office as union steward to solicit grievances from employees in order to embar- rass his supervisor, Calhoun, and thereby to effect his transfer from department 75 where Jordan was assigned at the time Respondent contends such an abuse of the office of union steward does not preclude Respondent from making a transfer of the union steward to preserve harmonious working conditions or from reprimanding him for such activities Respondent further argues that the activities of Jordan warranted his dismissal and that he was fortunate in not being discharged Background and Events 2 This grievance grew out of an incident on May 21 1%9 About May I 1%9 Jordan had been transferred from department 75 to department 40 The Union had not changed its designation of Jordan as steward in department 75 On May 21 1%9 Jordan requested permission to go to department 75 to function as steward and was refused permission by his supervisor thus giving rise to the grievance filed by the Union Jordan estimated department 40 is about 400 feet from department 75 He was told if he did go to department 75 he would be terminated The complaint alleges an unlawful threat occurring on May 1 and presumably it refers to the file memo incident noted below and not the episode on May 21 1%9 This incident is not presented for resolution by the pleadings as to whether it constitutes an unfair labor practice although in his brief the General Counsel cites the incident as a type violative of Sec 8(a)(1) of the Act Jordan was hired by Respondent in October 1967 in the classification of production worker He gave evi- dence of having superior ability as indicated by his promotion to the classification of electronic technician I in January 1968, skipping some intermediate classifica- tions In November 1968, Jordan was transferred from department 40 to department 75 He had been appointed union steward in department 40 in July 1968 and March 1969 he was appointed steward in department 75 At the time of the hearing a grievance was being processed involving the question of whether a union steward could act as steward in an area to which he was not assigned to work 2 An incident which is characterized in the record as the "haircut grievance" occurred in late April 1969 and bears on the events precipitating the dispute present- ed here On April 24, 1969, Roy Brunicardi, Respondent's labor relations manager, told Leo Calhoun, Jordan's foreman in department 75, that an employee in his department named John Chapot needed a haircut There- upon Calhoun made an inspection of his department and noted that employees Ferraira and Dow also needed haircuts Calhoun called in employee Chapot in connec- tion with his haircut He then called in Ferraira for the same purpose and Ferraira said he wanted to see the union steward Calhoun told Ferraira to return to his work and he would send the steward to him Calhoun then went out to see Jordan but he could not find him at his place of work or his supervisor , Rosenstock Calhoun then called in Dow and also then noticed Jordan LENKURT ELECTRIC CO. talking to Ferraira away from Jordan's work area. When Calhoun finished talking with Dow he had a conversation with Jordan in his office.3 Calhoun advised Jordan he was in violation of the collective-bargaining agreement on two points . One, that he did not obtain permission of his supervisor to conduct union business , and that he was "jumping the gun and soliciting a grievance which is not part of the duties of a shop steward." Jordan conceded the first point but expressed disagree- ment as to the second and requested permission to call the union office. Calhoun agreed, and also told Jordan that Steven Dow, the last employee called in by Calhoun because of his hair style, wanted to see Jordan. When Calhoun was advising Jordan of his alleged breach of the collective -bargaining agreement, he called his attention to the following provisions of the collective- bargaining agreement in effect: Article III, Section 2. Stewards shall report to their immediate supervisors and request permission to leave the job before leaving work to conduct Union business. Permission will always be granted unless such action would seriously interfere with operations . In such instances , the supervisor will make arrangements for the steward to leave the job as promptly as possible. Stewards will be allowed to conduct their Union business within their regularly scheduled working hours , within their assigned areas of representation. Union business for this purpose is defined to mean the investigation of complaints that may lead to grievances , handling and adjustment of grievances, and attendance at meetings with representatives of the Employer. ' Jordan denies this conversation occurred . Where Jordan's testimony conflicts with Calhoun 's, it is not credited . Calhoun appeared to be a careful and conscientious witness while Jordan's demeanor as a witness seemed less than candid Jordan 's testimony with relation.to the events leading to the Brown grievance , the central event involved, seemed deliberately vague and evasive For example, on cross-examina- tion , Jordan testified as follows: Q. (By Mr. Hoefs) Now I'd like to call your attention to that second grievance, the one involving Mr Brown, and ask you some questions about that , and I understand from your testimony this morning that took place on or about April 28, 1969 when you observed Mr Brown working in the staging area assembling some shelves; is that right) A. No. Q What did you observe" A. I did not observe Mr . Brown working. Q You didn't see him working over there at all') A. No. Q. You didn 't know what he was doing , is that right" A I did not observe Mr. Brown working. Q. You heard from other employees what he was doing" A. Mr. Brown told me what he was doing. Q. He came to you? A. I had heard from other employees first. Q. Who were the other employees" A I have no memory of that Q And your testimony is that Brown came to you, to report this incident You were not going to Brown" A. No, it is not. Q. What is it? You went to Brown" A I went to Brown and spoke to him 515 The so-called haircut grievance was filed by Jordan after Calhoun sent some of the employees home because, in his judgment , they did not meet Respondent 's stand- ards of personal grooming. The record does not reflect the disposition of this grievance. The Brown Incident The immediate events giving rise to this proceeding involved a grievance filed by employee Steven Brown who was under the supervision of Calhoun. On Saturday, April 26, 1969, Calhoun started to make up some sample shelving to be used in connection with an expansion of his department. On Monday, April 28, 1969, he asked Brown to complete the work he had started . In connec- tion with the Brown incident , the record contains an attenuated version by Jordan . Calhoun's and Brunicardi's version of what was reported to them by Brown differs significantly from Jordan's.4 On direct examination Jordan related that he filed a grievance with Calhoun, and that later in the day he was given a file memo and transferred . Jordan relates his supervisor, Calhoun, told him: "he had heard from employees that I had made some statements that I was out to get him or something like this , some derogato- ry statement." Jordan also testified he told Calhoun he had no malice towards him. On cross-examination he conceded that after the griev- ance was prepared he said to Brown referring to Calhoun, "We've got him now, he won't be able to squirm out of this." Jordan also conceded Brown tore up his griev- ance when he regained it from Jordan. Jordan's account of the Brown grievance is notable for what it omits rather than what it includes. The explanation of the origin of the Brown grievance that Brown related to Respondent 's officials fleshes out the skeletal version of Jordan by the testimony of Brunicardi and Calhoun. Respondent, through Calhoun, was presented with the Brown grievance shortly after Calhoun had a basis for believing Jordan was soliciting grievances in connec- tion with the haircut episode of April 26, 1969, which Calhoun believed to be a breach of the collective-bargain- ing agreement by Jordan. On April 28, 1969, just before noon, Brown asked Calhoun for permission to see Jordan. About half an hour later Jordan and Brown came to Calhoun's office with a grievance for Brown to get more pay for his work on the shelving that morning. According to the grievance , Brown should have been paid at a higher rate than his usual rate.5 Calhoun took the grievance ' Respondent's Counsel stated on the record that Brown was to be called as a witness Brown was not called and no reason was given for this apparent change of mind However , Respondent's defense was amply established without the testimony of Brown who was a member of the collective -bargaining unit represented by the Union, the Charging Party in this proceeding. ' It seems that Jordan may have been "jumping the gun" here as Brown's paycheck for the morning of April 28, 1969, could scarcely have been prepared prior to noon and it would seem that at the minimum an inquiry as to what Brown was to be paid would have -preceded the filing of a grievance Failure to make such an inquiry 516 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and gave it to his superior, a Mr. Zimmerman. Shortly after Calhoun returned to his office, Brown came in again and asked Calhoun for his grievance back. In answer to Calhoun's query as to the reason, Brown told Calhoun that he had heard from other employees that Jordan had asked other employees in the department to file grievances, and had told them if these were enough grievances, "I will get rid of this guy (Calhoun) for you." Brown also told Calhoun he ^ felt he was being used by Jordan. Brown further told Calhoun that early on the morning of April 28, 1969, Jordan came to where he was working and told him to keep track of his time and he would get more money for him. Brown agreed and kept track of his time. When he finished, he went to see Jordan and asked him how he got more money. Jordan instructed him to see Calhoun to get permission to talk to Jordan about union business and Brown did so. On his return to Jordan, he found him with a grievance form filled out. Brown told Calhoun he balked at signing it, but Jordan told him it was just a formality, and Brown signed it. Calhoun asked Brown if he would repeat the conversa- tion with other company officials and Brown agreed. (He later repeated the same story to Calhoun and Labor Relations Manager Brunicardi.) Calhoun reported the events to his superior, Plant Superintendent Zimmerman, and they both looked for Labor Relations Manager Brunicardi, but could not locate him. After Calhoun returned to his office, Systems Assem- bly Supervisor Scofield came into his office." Scofield was under Calhoun's supervision and in his department. Calhoun's testimony describes the conversation with Scofield. Q. What did Mr. Scofield tell you? A. When I was in my office, Mr. Scofield came in and said, "What gives between you and Grant?" [Jordan] And I said, "What do you mean?" And he said, "Grant was just over talking to some of my people and I went up and said, "I am on Union business" and he turned around to me and said "What was Leo [Calhoun] doing Satur- day?" And I said, "I don't know; I was working my own area." Well, "who worked over in the staging area?" and I told Grant "I don't know. I wasn't keeping track of anybody over there; I was just watching my own people." And Grant said, "Well, okay" and left. Scofield told Calhoun he got the impression Jordan was trying to get him to file a grievance against Calhoun for the work done in the staging area. Later in the day, Labor Relations Manager Brunicardi called Calhoun to inquire why Calhoun wanted to see reflected Jordan's eagerness to get a grievance filed against Calhoun. Jordan's assumption that Brown was not to be paid at a higher rate may have been well founded but his failure to make even an inquiry prior to filing the grievance reflects the probability the purpose of this grievance was to harass Calhoun rather than to get Brown more money. " Scofield's job classification was included in the bargaining unit represented by the Union. him. Calhoun advised him of the conversations with Brown and Scofield and asked permission to terminate Jordan. Brunicardi informed Calhoun he would look into the matter. On Tuesday, April 29, 1969, Calhoun. received the grievance concerning Brown back from Zimmerman and, as instructed, wrote on it that the grievance was denied, and there was no contract violation and handed it to Jordan. Later in the day as Calhoun walked past Brown, Brown told him, "Leo, you don't have to worry about that grievance; I tore it up. Grant Jordan was not happy about it, but I did it anyway." Brunicardi discussed the Brown incident with union officials . After he concluded that Jordan would not be adequately dealt with by the Union for his conduct relative to Brown, he instructed Calhoun to give Jordan a file memo. This amounted to a reprimand to be included in Jordan's personnel file. Brunicardi also believed that the hostility between Calhoun and Jordan indicated a separation during working hours, and after inquiries as to where there was a need, arranged for Jordan's transfer to department 40, with no change in pay and doing work included in his job description. Discussion The question of permissibility of soliciting grievances under the terms of the collective-bargaining agreement is not presented here as an abstraction. The additional factor present is that a grievance was solicited, so' Respondent reasonably believed, for the express purpose of "getting Calhoun." The apparent intent was to embar- rass Calhoun, and have him transferred from the depart- ment by having grievances filed for that purpose. The timing of the grievance filed on behalf of Brown at the very least reflected an eagerness on the part of Jordan to get a grievance on file. Jordan's testimony that Brown tore up his grievance (instead of processing it further) supports a finding that Calhoun acted reason- ably in relying on the conversations he had with Brown and Scofield about Jordan's conduct. Also supporting the reasonableness of Calhoun's belief in Jordan's con- cession on cross-examination he told Brown referring to Calhoun, "We've got him now, he won't be able to squirm out of this." Jordan also conceded on cross- examination that he asked Scofield what work Calhoun had been doing on Saturday, April 26, 1969. This testimony by Jordan constitutes probative evi- dence, in light of the entire record, that Jordan in fact did solicit the Brown grievance for the primary purpose of "getting" Calhoun. The intent by Jordan to have the grievance injure Calhoun was the reason for Respondent reprimanding and transferring Jordan. This is demonstrated by, the contrast in Respondent's action in connection with the incident involving employee haircuts. There Calhoun believed Jordan was violating the bargaining agreement by soliciting grievances without permission from his supervisor. He merely gave Calhoun a verbal reprimand. However, it was a very different story in connection with the Brown incident where Calhoun and Respondent LENKURT ELECTRIC CO. had ample reason to believe Jordan was soliciting primari- ly to damage Calhoun. Here Calhoun wanted to have Jordan fired and Brunicardi authorized a written repri- mand for his personnel file and arranged his transfer so he could be separated from Calhoun. This disparity in treatment in handling the two incidents supports the view that Jordan was not reprimanded and transferred because he merely solicited grievances but because he solicited grievances for the purpose of damaging his supervisor. It seems safe to assert without the prospect of successful contradiction that the parties to the collec- tive-bargaining agreement did not contemplate that the provision giving the union stewards certain privileges during working time could be employed to attempt to damage or effect the removal of a supervisor. It seems equally safe to assert the Act does not protect such activities and an employee may be disciplined for them even if he was acting under the guise of performing his steward functions. Solicitation of grievances and the Collective-Bargaining Agreement Although Jordan avoided testifying that he solicited grievances from employees, the General Counsel in his brief apparently contends Jordan was disciplined for so doing. Inasmuch as Jordan's file memo recites this as a reason for his reprimand it may be the basis for such contention. However, it is noted there is a contemporaneous written record of Respondent wherein it is recited that Jordan was soliciting grievances in order to "get Calhoun." The relevant contract provisions are quoted above and do no explicitly deal with the authority of a steward to solicit grievances. The most relevant clause is the one giving the right of the steward to investigate com- plaints. In the note Jordan attached to the file memo relating to the Brown incident he wrote as follows: The issue which is being discussed in this memo was the investigation of a complaint (my own) leading up to a grievance (employee in my group). I therefore am fully within my rights according to Article III. Sec. 2 of the contract. Literally construed, a complaint must precede the investi- gation, and an investigation without a prior complaint would exceed the authority of the steward. Aside from the technical construction of the agreement, the issue of the propriety of "soliciting" grievances becomes needlessly confused by focusing on the right to solicit grievances outside the context of actual events. In the case at hand, for example, it would seem absurd to argue the collective-bargaining agreement permits solicit- ing primarily to harm a supervisor. On the other hand it can readily be imagined, in a different context, the beneficent effect of a union steward encouraging an employee to assert his rights for the employee's own benefit. Thus the propriety of solicitation of grievances should be judged in the context in which it occurs. Consequently, there is no necessity here for a finding 517 that soliciting a grievance is per se permitted or prohibit- ed by the collective-bargaining agreement. Therefore, irrespective of how the above provision is interpreted , Respondent was entitled to discipline Jordan without being in violation of the Act since Jor- dan's conduct in soliciting the Brown grievance was for a purpose not contemplated by the collective-bargain- ing agreement or protected by the Act. Respondent's claim that it transferred Jordan because the continuing presence of Jordan and Calhoun in the same department would continue an inharmonious situa- tion seems eminently reasonable and well-founded. Respondent had adequate basis for this belief. The record contains considerable testimony on the nature of Jordan's work before May 1, 1969, and after his transfer on that date. It would support a finding that the job after May 1, 1969, was less demanding. Whether or not it was more or less desirable would depend on a subjective value judgment. It included work within the job description of Jordan's classification and he received the same rate of pay as in his prior job. At best, the record offers slight evidence Jordan's job and work assignments after May 1, 1969, were objectively less desirable. Because of the other consider- ations attending the transfer, this factor is of no signi- ficance here. The General Counsel cites a prior National Labor Relations Board proceeding involving Respondent report- ed in 177 NLRB No. 87, as bearing on Respondent's intent in the present proceeding. Nothing is found in that case to change the findings indicated herein. Concluding Findings Respondent was warranted in reprimanding Jordan because it had good cause to believe he was using his Union steward's privileges to "get" his supervisor, Calhoun. Further, Jordan solicited the Brown grievance primarily to "get" his supervisor Calhoun. The transfer of Jordan was reasonably necessary to preserve harmony among Respondent's work force. Even if it were part of a disciplinary move by Respondent it would not constitute unlawful discrimination in viola- tion of Section 8(a)(3) of the Act, since it was for a cause unrelated to the purposes of the Act. CONCLUSIONS OF LAW 1. Respondent is engaged in commerce and in opera- tions affecting commerce within the meaning of the Act. 2. The Union is a labor organization within the mean- ing of the Act. 3. The Respondent has not violated Section 8(a)(3) or 8(a)(1) of the Act. RECOMMENDED ORDER It is recommended the complaint be dismissed in its entirety.