International Paper Co.

INTERNATIONAL PAPER COMPANY International Paper Company , Long-Bell Division and Jimmie D. Hamilton. Case 26-CA-3499 351 TRIAL EXAMINER 'S DECISION STATEMENT OF THE CASE June 30, 1970 DECISION AND ORDER BY MEMBERS MCCULLOCH, BROWN, AND JENKINS On March 26, 1970, Trial Examiner Robert Cohn issued his Decision in the above-entitled proceeding, finding that Respondent had engaged in certain unfair labor practices but recommending that the complaint be dismissed, as set forth in the attached Trial Examiner's Decision. He also found that the Respondent had not engaged in certain other unfair labor practices. Thereafter, the General Counsel filed exceptions to the Trial Ex- aminer's Decision and a supporting brief, and Respondent filed an answering brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its powers in connection with this case to a three- member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings , conclusions, and recommenda- tions of the Trial Examiner.' ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recom- mended Order of the Trial Examiner and hereby orders that the complaint be, and it hereby is, dismissed. ROBERT COHN, Trial Examiner: This proceeding under Section 10(b) of the National Labor Rela- tions Act, as amended (herein the Act), was heard at Malvern, Arkansas, on January 15-16, 1970, pursuant to due notice. The complaint, which was issued on November 13, 1969,1 on charges filed October 6, alleges in substance that International Paper Company, Long-Bell Division (herein the Company or Respondent), engaged in unfair labor practices proscribed by Section 8(a)(1) and (3) of the Act by discharging and/or reprimanding em- ployees because they engaged in union or con- certed activities protected by the Act, and by threatening employees with reprisals for filing grievances under its contract with United Paper Makers and Paper Workers, AFL-CIO, Local Union No. 999 (herein the Union). In its duly filed answer, Respondent admitted the jurisdictional al- legations of the complaint, but generally denied the commission of any unfair labor practices. Prior to the hearin, Respondent filed a "Motion to Hold in Abeyance ' which, in essence, requested the Board not to proceed further in the processing of this case because the Company had invoked ar- bitration under the collective-bargaining agreement respecting the legitimacy of the discharge of the al- leged discriminatee (James Mitchell ) herein. In a prehearing ruling, by Trial Examiner Harold X. Summers, such motion was denied. (G. C. Exhs. 1(p) and (t).) At the hearing, Respondent renewed its motion, which was denied by me essentially upon the same grounds as stated in the previous ruling, and , in addition, upon being informed in a prehearing conference that both the Charging Party and the union representative preferred to proceed under the aegis of the Board rather than by arbitra- tion.2 Upon the entire record in the case, including my observation of the demeanor of the witnesses,3 I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY The complaint alleges, the answer admits, and I find that at all times material the Respondent is a ' Member Brown joins in adopting the Trial Examiner 's recommendation that the complaint be dismissed but not his reasons therefor Rather, con- sistent with his views more fully articulated in his separate opinion in East- ern Illinois Gas and Securities Company, 175 NLRB 639, and cases cited therein , Member Brown would require that the contractual grievance procedures be exhausted , as grievances were filed and processed thereunder and final and binding arbitration could have been invoked by the Union See also Dresser Industrial Valve & Instrument Division , Dresser Industries Incorporated, 178 N LRB 3 17 (gnevance settled at fourth step of grievance procedure) ' All dates hereinafter refer to the calendar year 1969 unless otherwise specified ' See, e g , Wertheimer Stores Corp , 107 NLRB 1434 3 As will appear , many of the factual findings herein were made only after an assessment of the credibility of the witnesses This chore of a fact- finder is almost always a difficult and delicate task, and is not less so in this case In making these findings, I considered the demeanor of the witnesses while testifying, taken with the interest of such witnesses in the outcome of the proceedings, "along with the consistency and inherent probability of testimony " ( Universal Camera Corporation v N L R B, 340 U S 474 ) 184 NLRB No. 38 352 DECISIONS OF NATIONAL LABOR RELATIONS BOARD corporation doing business in the State of Arkan- sas, with an office and place of business located at Malvern, Arkansas, where it is engaged in the manufacture and distribution of flakeboard products. During an annual period, Respondent, in the course and conduct of its business operations, sold and shipped from the above location products valued in excess of $50,000 directly to points located outside the State of Arkansas. Based upon the foregoing facts, I find, as Respon- dent admits, that Respondent is now, and has been at all times material, an employer engaged in com- merce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The complaint alleges, the answer admits, and I find that the Union is now , and has been at all times material, a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Background As previously noted, Respondent is engaged at its Malvern, Arkansas, plant in the manufacture of flakeboard, which is apparently board made from wood scraps and filings, mixed with glue (resin) under pressure. It commenced operations about March 1968, and reached a complement of approx- imately 100 production employees. On July 11, 1968, pursuant to election procedures under Sec- tion 9 of the Act, the Union was certified as the collective-bargaining representative of Respon- dent's production and maintenance employees.4 On or about November 15, 1968, Respondent entered into a contract with the Union covering said em- ployees, such contract extending to August 1, 1971. The contract contains, inter alia, a grievance procedure terminating in arbitration. (Art. XVIII.) B. The Alleged Independent Violations of Section 8(a)(1) of the Act 1. By William Scott The complaint, as amended at the hearing, al- leges that Scott, the plant superintendent and an admitted supervisor, during the latter part of June, at the Malvern plant, "threatened an employee that another employee would be discharged because said employee had previously filed a grievance." The facts giving rise to this allegation are not es- sentially in dispute and may be summarized as fol- lows: Superintendent Scott had been a participant Cases 26-RC-3138 and 26-RC-3142 Although this concession would appear to constitute a victory for the Union, the latter was not entirely satisfied because Scott refused to apologize to Jackson as had been requested in the grievance Neverthe- less, the Union, recognizing that the next step in the procedure was in the negotiations leading up to the contract with the Union. On the basis of an asserted understand- ing made in the negotiations, Scott took the posi- tion, as respects the grievance procedure, that a union steward did not have the right under the con- tract to file a grievance on behalf of another em- ployee without the consent of that employee. When, in June, a union steward named Jackson filed a grievance on behalf of an employee named Brooks alleging, in substance, that Brooks had been constructively discharged, Scott went to the pres- ident of ' the Union, James Cranford, and told him that if he (Cranford) didn't get Jackson "straight- ened out" that he (Scott) was going to do some "straightening out" on his own-"that that was a good way for a man to go out the front gate." Cranford took issue with Scott on the question of whether Jackson had a right to file the grievance under the circumstances. This led to the filing of a grievance by Jackson against Scott for making the above threat to Cranford. (G. C. Exh. 5.) This latter grievance (No. 48) was eventually resolved at the fourth step of the grievance procedure. At that meeting, the Company receded from its previous position and "acknowledge[d] that a shop steward or committeeman can initiate a grievance without the signature of an aggrieved." (G. C. Exh. 7.)5 2. By Melvin Loy6 The complaint alleges that Loy, an admitted su- pervisor, on or about October 20, threatened an employee with reprisals because the employee had previously filed a grievance. In support of this al- legation, counsel for the General Counsel offered the testimony of employee Tedford Smith, a machine operator in the finishing department who worked on the first shift. In October, Smith filed a grievance against his foreman, Bill Glasco, because the latter brought a saw operator from another sec- tion of the department to perform Simth's job rather than allowing Smith to work overtime. In a conversation between Smith and Glasco prior to the filing of the grievance, Glasco took the position that, under the contract, it was entirely within his right to place the man on the job in the manner stated. Subsequently, on or about October 20, Smith was in Loy's office in connection with his du- ties, and a discussion of this grievance ensued. According to Smith's testimony, Loy said, "If this is the kind of stuff you all are going to hand me, I am going to make it hard on you, start writing reprimands." Smith responded that he would rather withdraw the grievance than to "make it hard" on the other men, ,to-which Loy responded that he thought that would be the thing to do-for Smith to talk it over with the union president. Whereupon, arbitration and that this would be costly, allowed the matter to drop ' The proper name of this person appears as corrected by an amendment to the complaint at the hearing In the complaint , the name appears Melvin Lloyd INTERNATIONAL PAPER COMPANY 353 Loy handed the grievance to Smith and the latter tore it up the following day. Loy, a witness for Respondent , categorically de- nied making the above -quoted threatening state- ment to Smith . He testified that Union President Cranford had Witten up the grievance , had secured Smith's signature , and had presented it to Loy. Loy's version of his conversation with Smith on Oc- tober 20 was that Smith felt that the Company was not justified in allowing a saw operator to do a machine operator's work in order to avoid paying overtime . Loy told Smith that the contract sustained the Company 's action and that he "felt like that the grievance was unjust , just as much so as it would for me to give him [Smith ] a reprimand for putting a bad board in." According to Loy's testimony, Smith then stated that since he (Smith) had not written the grievance , it could be torn up and thrown away . Whereupon , Loy handed the grievance to Smith who took it and put it in his pocket . On the following evening, Smith , in Loy's presence, tore it and threw it in the waste basket. 3. Conclusions as to alleged Section 8(a)(1) violations It is well established that the filing of grievances, constituting attempts to implement the provisions of a collective-bargaining agreement, are concerted activities protected by Section 7 of the Act.' It fol- lows that any interference with the exercise of such activities, such as a threat to discipline for filing them, would constitute a violation of Section 8(a)(1) of the Act.' As respects the June incident, the Respondent's agent admittedly made a threat respecting the filing of a grievance by a shop steward, but contended that such was based on good-faith belief that such conduct by a steward without the consent or authority of an aggrieved employee was not within the contemplation of the grievance procedure in the contract, since it was contrary to an agreement made with the Union during negotiations. Ordinarily, a violation of Section 8(a)(1) does not turn upon the employer's motive or whether the restraint or coercion succeeded or failed. "The test is whether the employer engaged in conduct which, it may reasonably be said, tends to interfere with free exercise of employee rights under the Act. "9 However, the fact that the threat was based upon a predicate of good faith plus the fact that the Com- pany later receded from its earlier position are cer- tainly circumstances to be considered on the issue of whether a remedial order is warranted. The question of whether a violation occurred as respects the October incident depends upon an as- sessment of the credibility of witnesses Smith and Loy. This resolution has been exceedingly difficult, but I am inclined to credit Smith. Such resolution is based not only on demeanor considerations, but also upon a consideration of the probabilities of the situation. That is to say, Loy's version of the con- versation with Smith on October 20 is certainly plausible, but I am impressed by the fact that Smith thought it necessary and desirable not only to refrain from pursuing the grievance he signed, but to physically destroy it in the presence of Loy and other witnesses. This conduct appears to reflect a desire to assure Loy that there was no doubt that he (Smith) did not intend to prosecute the grievance so that Loy would not feel compelled to carry out his threat of recrimination against the other men in the department. Under all circumstances, I find the threat by Loy to Smith, on October 20, to constitute a violation of Section 8(a)(1) of the Act. However, in view of the fact that I am, for reasons discussed, infra, recom- mending the dismissal of the Section 8(a)(3) al- legations, and the Company had receded from its position which gave rise to the June threat (thereby making a repetition of that threat unlikely), in the light of other record evidence (including Resp. Exh. 15 consisting of some 90 grievances filed, some of which reached arbitration ) reflecting an at- mosphere of freedom of voicing complaints and utilization of the grievance procedure by em- ployees, I find that it would not serve a useful pur- pose to recommend a remedial order on this one in- cident, based as it is on a pure credibility finding.to C. The Alleged Discriminatory Discharge of James Mitchell The complaint alleges that on or about Sep- tember 11 Respondent issued written reprimands to employees Phillip Williams and James Mitchell, and discharged the latter, because these employees filed a grievance in furtherance of union or protected ac- tivities. Respondent, while admittin& the fact that it issued written reprimands to these individuals, and that it discharged Mitchell as aforesaid, claims that it had just cause for the discharge and that the reprimand issued to Williams was thereafter revoked during the grievance procedure." James Mitchell was employed by the Company on March 11, 1968, as a painter on construction work- He worked in that capacity for about 3 months when he was transferred to a position clas- sified as utility man. The principal responsibility of ' See New York Trap Rock Corporation, 148 NLRB 374, 375 ' Mitchell Transport , Inc, 152 NLRB 122 0 American Freightways Company, Inc, 124 NLRB 146, 147 10 See Stop & Shop, Inc, 161 NLRB 75, 80, affd sub nom Machaby v. N L R B, 377 F 2d 59 (C A 1), International Harvester Company, 180 NLRB 1038 11 Subsequently, in October, Williams was killed as a result of an ac- cident in the plant 12 There are 10 spray guns to each blending machine, These guns spray resin and wax into the blending machine which carries the material to make the flakeboards If the spray guns are not working properly (become clogged), no glue is sprayed upon the material which makes the board and therefore may cause a "blown" board 354 DECISIONS OF NATIONAL LABOR RELATIONS BOARD a person in that classification is to see that the storage tanks of resin (glue) and wax are kept full, to make sure that the spray guns on the blending machines are spraying properly,12 and to relieve, for short periods of time, the forming station operator and the press operator. His immediate supervisor while on this job was Cletus Ivy, a foreman. He worked as utility man until February 1969, when he bid on and secured a job as a forming machine operator under Supervisor Wayne Har- graves. He worked at that job until August 1969, when he was discharged by Leroy Jordan, a higher supervisor. This discharge resulted from an accu- mulation of written warnings which Mitchell had received during the course of his employment. 13 A few months before the August discharge, Mitchell had bid to go back to his utility job because, as he put it, he felt that if he made one more mistake he would be discharged. Following the August discharge, Mitchell filed a grievance and, as a result, he was returned to work on September 3 as a utility man under Foreman Ivy.14 Mitchell worked as the only utility man on the second shift until September 10, when an incident occurred which gave rise to the discharge which is the subject of this proceeding. He described the cir- cumstances leading to the discharge as follows: My job was after I relieved [the press and forming station] operators I was going back to check the tanks, I met the foreman half-way and he said I had some guns that wasn't spray- ing and I told him I was going back to check them out and he got one of the guys off the floor to take the guns off, anyway I was work- ing on one gun and Cletus [Ivy] was working on the other one.15 Following this incident, Williams and Mitchell signed a grievance against Ivy for performing unit work, such grievance having been written for them by Jimmie Hamilton, the press operator and a union steward. Ivy's version of the incident is that at approxi- mately 10:30 p.m.,16 he was walking back near the blenders and observed Mitchell filling the resin tanks. Ivy noticed that of the 10 spray guns on the blending machine , 8 were not operating. He called this to the attention of Mitchell who was less than 10 feet from the guns at that time . Mitchell came over and rubbed the end of the nozzles of the guns and then went back and proceeded to fill the tanks. After a few minutes, Ivy told him a second time that he had better notify the forming machine operator to shut the blender down because the noz- zles were not spraying and instructed Mitchell to clean the guns. At that point Mitchell notified the operator to shut off the blender. Ivy then secured Phillip Wil- liams, the laborer, to help Mitchell clean the guns. Ivy himself screwed a nozzle off the gun and took the jet out to see what the trouble was and discovered there was a resin buildup in the gun noz- zle. He handed the gun back to the men and told them to clean it off. After he checked the guns, he went back to his office; Mitchell and Williams con- tinued to work. The blending machine was not turned on again for at least the remainder of the shift; i.e., until 11 p.m.'7 Ivy returned to his office and, according to his testimony, commenced writing out a reprimand for Mitchell, for he had determined at that time to discharge Mitchell for the dereliction's because he knew that Mitchell had accumulated sufficient reprimands in his personnel folder to warrant the discharge. Prior to the end of the shift, Ivy went back to the shop and asked Mitchell if he had cleaned all the jets in the guns and the latter replied that he had; whereupon, Ivy screwed a nozzle off one of them and checked the jet and found that he had not cleaned it as Ivy had instructed him to do. Ivy directed him to take it apart again and clean it. At the end of the shift, Press Operator and Union Steward Jimmie Hamilton went into Ivy's office to file his report respecting the operation of the press machine, and while there handed the grievance of Mitchell and Williams to Foreman Ivy.19 At that time, according to Ivy's testimony, he had already commenced filling out the written reprimand to Mitchell but did not mention this to Hamilton. He told Hamilton, as he observed the grievance which Hamilton had handed him, that the men had not followed the grievance procedure.20 Hamilton said that the men did not have to do so because he " The collective-bargaining agreement specifies that the "accumulation of three written warnings [respecting specified conduct] will result in discharge " (Reap Exh 1, p 19 ) The General Counsel does not contend that the August discharge or any of the written reprimands leading up to it were discriminatorily motivated 1' It is clear that a principal factor in Respondent's decision to change Mitchell's discharge to a disciplinary layoff was that he had previously bid to return to the "less demanding job" of utility man but "was unable to do so for reasons not of his own making " However, Plant Manager Saun- ders emphasized that "The written reprimand continues in force and remains as part of Mitchell's record " (Resp Exh 2 ) 1D The other person who Ivy "got off the floor" was a laborer, Phillip Wil- liams 18 Mitchell placed the time earlier-at approximately 8 30 p in How- ever, company records (Resp Exhs 3, 5, 6, and 7) appear to corroborate Ivy I find that the incident occurred near the time he stated "Company records indicate that it was not turned on again until after the commencement of the third shift, or until 11 43 p in that evening "The specific deficiency, as described by Ivy, was Mitchell 's failure to observe that the guns were not spraying and, further , not promptly notify- ing the forming machine operator to shut down the blender 11 G C Exh 2 The text of the grievance is "working on glue nozzle- taking them apart and cleaning them." 20 Step I of the grievance procedure (art XVIII) States An earnest effort shall be made to settle the complaint informally between the employee and/or his representative and his foreman Failing settlement in this manner, the procedure then requires that the complaint be reduced to writing and submitted to the foreman within 5 working days INTERNATIONAL PAPER COMPANY (Hamilton) had warned Ivy many times about doing unit work.21 The following day-September II-Ivy com- pleted writing out Mitchell's reprimand, as follows: lows: Failing to perform your duties as utility man on 9/10/69 at 10:30 for ... letting the core blender run with only two resin guns spraying. At no time can this [be] tolerated. You have been warned of this matter several times be- fore, when you were given supervision on the matter and instructions. You took it [to] be violation in behalf to which I had full authority [sic]; thinking this you filed a grievance without confiding in me of your disagreement. Doing this you violated article XVIII, step 1 al- so.22 Ivy also filled out a reprimand for Williams because the latter did not follow step 1 of the grievance procedure. At approximately 5 p.m. on September 11 Foreman Ivy advised Superintendent Scott of what had occurred the preceding evening, and of the decisions Ivy reached respecting the sanctions to be imposed on the two employees. Scott testified that he, too, was aware of Mitchell's accumulated repri- mands and that he advised Ivy to "handle the thing the way you feel it should be done and I will back you up." When Ivy told Scott that Mitchell and Williams had filed a grievance against him for per- forming unit work, Scott replied that "they are try- ing to bluff you out of terminating Mitchell because we all know this is his terminal reprimand."24 At the end of the second shift on September 11, Ivy called Hamilton, Mitchell, and Williams into his office and gave Mitchell and Williams their repri- mands. Mitchell acknowledged the receipt of his document, but Williams did not. This was Mitchell's last day of work for the Respondent. On September 15, Mitchell filed a grievance al- leging discrimination with respect to the discharge, asking reinstatement and backpay. (G. C. Exh. 4.j At a first-step grievance meeting held on the grievance on September 17, the Company offered to void the reprimand given Williams and that sec- tion of the reprimand given Mitchell relating to the grievance procedure. However, the Company took the position that since "the basic premise on which the grievance given Mr. Mitchell [was] that of not 21 The fact of whether Hamilton actually warned Ivy prior to this incident is denied by Ivy, and I am inclined to credit him Aside from demeanor con- siderations, Hamilton did not impress me as being one who would be reluc- tant to file grievances against Ivy or any other foreman for performing unit work if such were the case Yet I note (Resp Exh 15 ) that only one grievance was filed (No 30, dated April 5, 1969) prior to the incident in question, claiming a violation of the contract by virtue of a forman per- forming unit work, and the foreman in this instance was not named A similar grievance filed against Ivy does appear as grievance No 82 dated December 17, 1969, which is apparently the one referred to in Hamilton's testimony. In any event, I question whether , assuming Hamilton had warned Ivy about performing unit work prior to the incident in question, such would operate as to waive the employees ' duty to comply with the contractual provisions 355 satisfactorily performing the job of utility man, [it] is valid and remains in effect." (G. C. Exh. 8.) This position of the Company remained constant throughout the subsequent meetings between the company and union representatives concerning this grievance. However, according to the testimony of Union Representatives Francis, Woodall, and Cran- ford, Superintendent Scott stated during the third step of the grievance meeting that Ivy had come to him quite upset over the fact that the two em- ployees had filed a grievance against him and he wanted to give these two employees reprimands; and that Scott advised Ivy to discharge Mitchell because his work record was not very good anyway, and to give Williams a reprimand since he was in- volved in filing the grievance. Scott denied making this statement, but I credit General Counsel's wit- nesses since, in addition to demeanor considera- tions, the statements are mutually corroborative and were not denied by Plant Manager Saunders, who was also present at the meeting. Analysis and Concluding Findings The issue here is, as Respondent states in its brief, "clearly defined"; i.e., whether Mitchell was discharged for filing a grievance or for the accumu- lation of written reprimands sufficient in number to warrant discharge pursuant to contractual provi- sions . This issue is ofttimes more easily stated than applied, and appears to be particularly so in the in- stant case. The task is to ascertain, after a con- sideration of all the facts in the record, the "real" or "motivating" reason for the discharge.25 In a consideration of the record, however, it is well set- tled that the concurrent existence of legitimate grounds for discharge is not sufficient for a valid defense if the termination was in fact caused by union activities.26 However, "engaging in protected, concerted activity, such as the filing of contractual grievances, does not perforce immunize employees against discharge for legitimate reasons."27 Assessing the facts in this case against the forego- ing principles, there is no doubt that on September 10 Mitchell was vulnerable to discharge by virtue of his accumulation of previous written warnings of derelictions concerning which there is no conten- tion of discriminatory motive on the part of Respondent. There also appears to be little basis for °GCExh3 " Ivy testified that he telephoned Scott at his home the preceding even- ing at the end of the shift However, Scott did not recall any such telephone call :' Union Steward Hamilton testified that the same afternoon Scott told him, when Hamilton had complained to Scott about the latter's doing repair work , that "you guys are going to hear from that grievance you filed on Cletus last night " Such testimony being uncontradicted on the record, I credit it 25 See Price Brothers Co , 175 N LRB 277, enforcement denied 422 F 2d 452(C A 6,1970) zs Topeka Discount, Inc, 181 N LRB 17 See also N L R B v Ace Comb Co,342F2d841(CA 8) 27 Mitchell Transport , Inc, 152 NLRB 122, 123 356 DECISIONS OF NATIONAL LABOR RELATIONS BOARD a claim that Mitchell did not, by his conduct on that evening, place himself in a position where another reprimand was warranted. Thus, when it was called to his attention that 8 of 10 spray guns on the blender were not operating, prompt and effi- cient action was dictated. Yet the most the record indicates that Mitchell did was to walk over and wipe off the nozzles of the guns and return to his prior occupation without ascertaining whether or not such perfunctory action remedied the situation. Ivy waited several more minutes before directing Mitchell a second time to notify the forming station operator to shut off the machine. Moreover, the un- denied testimony of Ivy indicates that Mitchell and Williams did not properly clean the guns after they commenced working on them. It is not for this Trial Examiner to say that a reprimand was not in order for engaging in such negligent and inefficient con- duct. Furthermore, there is no evidence in the record to show that other utility men had previ- ously engaged in similar conduct without being disciplined therefor. Ivy testified that this was not the first dereliction that he had noticed respecting Mitchell's work habits since the latter returned to his supervision on or about September 3, and he had spoken to Mitchell on several occasions about this but that "it did not do any good." No doubt Ivy, knowing that the next written reprimand would result in discharge pursuant to the provisions of the contract, hesitated before taking such strong ac- tion. But, in the light of Mitchell's past work record, one cannot say that it was precipitate. Mitchell, having placed himself in a position where a discharge was clearly warranted, could not be "immunized" by the filing of a contractual grievance. Although the record leaves some room for doubt as to whether Ivy actually reached a final determination to discharge Mitchell prior to the time the grievance was filed, I cannot say that Ivy would not have taken such action had the grievance not been filed.28 There can be no gain saying the fact that Ivy did not cherish the grievance being filed "against him," such being clearly a challenge to and a rebuke of his authority. But the fact remains that the grievance was lodged contrary to the prescriptions of the grievance procedure in the contract, i.e., without having been previously discussed with the foreman '29 and the plant manager had only recently admonished both union and management represen- tatives to make an earnest effort to comply with this provision in order to improve the grievance record in the plant. (Resp. Exh. 8.) Thus it is reasonable to infer that the subject was fresh upon Ivy's mind and that he was sensitive about it. The written reprimand itself reflects an attitude on the part of Ivy that he considered the substan- tive dereliction as the primary reason for its is- suance and that the filing of the grievance without prior consultation was "also" objectionable con- duct. While it might have been better practice and more in accord with Respondent's policies to have merly handed the grievance back to the union steward as having been improperly filed,30 the ancil- lary position in which Ivy placed the subject matter relating to the filing of the grievance reflects an at- titude on the part of Ivy that such was subordinate to the principal reason for the reprimand. In finding a failure of the preponderance of evidence to establish the violation on this issue, I am impressed by the lack of evidence which would tend to show union animus on the part of Respon- dent. There is no allegation or proof in the record that Respondent fought the Union either before or- ganization or since certification. 31 Nor is there any contention or evidence that Respondent had any animus against Mitchell because he was unduly ag- gressive respecting the presentation of grievances.32 The record evidence does not support, in my view, the contention that the discharge in question can be said to have a reasonable tendency to restrain or coerce employees from exercising their protected right to grieve, subject to the limitations of the contract. In the first place, the reference to failure to comply with step 1 of the grievance procedure in both the Mitchell and Williams grievances was rescinded by the Company during the grievance procedure; and, secondly, the record reflects that both before and after the incident in question, many grievances had been filed and processed including one against Ivy for performing unit work, which was resolved at the third step of the grievance. In view of all the foregoing, I find and conclude that the General Counsel has failed to prove, by a preponderance of the evidence on the record as a whole, that Respondent violated the Act by discharging Mitchell and issuing a reprimand to Williams on September 10. In view of my findings hereinabove respecting the independent Section 8(a)(1) allegations, I will recommend that the com- plaint be dismissed in its entirety. Upon the foregoing findings of fact and upon the entire record, I make the following: CONCLUSIONS OF LAW 1. Respondent is an employer engaged in com- merce within the meaning of Section 2(6) and (7) of the Act. " See, e g, Olympic Delivery Service, Inc, dlbla Rocket Messenger Ser- vice, 167 NLRB 252,255 " The General Counsel has not attacked this contractual limitation upon a Section 7 right, i e , the right to file a grievance under a collective-bar- gaining agreement Although I have not been directed to any authority on the point, the limitation would seem to be an entirely reasonable one, and in accord with the policies of the Act " The record reflects an incident wherein Union President Cranford filed a grievance directly with Plant Manager Saunders who subsequently returned it to him as being improperly filed " See Price Brothers Company, supra " Cf. Bowman Transportation , Incorporated, 134 NLRB 1419, 1420 INTERNATIONAL PAPER COMPANY 357 2. The Union is a labor organization within the RECOMMENDED ORDER meaning of Section 2(5) of the Act. 3. Respondent has not engaged in the unfair It is ordered that the complaint be, and the same labor practices alleged in the complaint. is hereby, dismissed in its entirety. 427-835 0 - 74 - 24