General Dynamics

STROM BERG-CARLSON CORPORATION Stromberg-Carlson Corporation, a subsidiary of General Dynamics and Elizabeth E. Kunow. Case 3-CA-3509 February 14, 1969 DECISION AND ORDER BY MEMBERS FANNING, JENKINS, AND ZAGORIA On October 16, 1968, Trial Examiner Bernard J. Seff issued his Decision in the above-entitled proceeding, 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 attached Trial Examiner's Decision. Thereafter, the General Counsel filed exceptions to the Trial Examiner's Decision and a supporting brief, and the Respondent filed a reply 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 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, and the entire record in the case, including the exceptions and briefs, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby adopts as its Order the Recommended Order of the Trial Examiner, and orders that the complaint herein be, and it hereby is, dismissed. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE BERNARD J. SEFF, Trial Examiner: This case was heard before me in Rochester, New York, on August 14, 1968, upon allegations in the complaint issued July 11, 1968, based upon a charge filed on May 17, 1968, that the above-named Respondent had violated Section 8(a)(1) and (3) of the Act by discharging Elizabeth E. Kunow because of her union and/or concerted activities. In its answer the Respondent denied that it had violated the Act. Upon the entire record in the case, including my observation of the witnesses and their demeanor while testifying, and a consideration of the briefs filed with me by counsel for the General Counsel and the Respondent, respectively, I make the following: FINDINGS OF FACT L THE BUSINESS OF THE RESPONDENT 545 Respondent is a corporation duly organized under the laws of New York. At all times material herein, Respondent maintained its principal office and place of business in Rochester, New York. During the past 12 months Respondent purchased goods and materials valued in excess of $50,000 which were transported to its plant directly from States of the United States other than the State of New York. Respondent is an employer engaged in commerce within the meaning of the Act. II. THE LABOR ORGANIZATION INVOLVED The Union, International Union of Electrical, Radio and Machine Workers, AFL-CIO-CLC, Local Union 338, is a labor organization within the meaning of the Act. III. THE UNFAIR LABOR PRACTICES A. The Facts Leading up to the Separation From Employment of Employee Kunow The death of Kunow's sister caused her to first request bereavement leave and later, on December 24, 1967, to request an extension of such leave of Foreman Martz who told her he would take care of the matter. When Kunow returned to work on January 2, 1968, she found she had been paid for 1 day of bereavement pay instead of 3 as she thought she would receive. Upon questioning Martz he told her the decision in her case had been reached by the front office and that he had had nothing to do with it. Thereafter, after being informed of the Company's decision, Kunow filed a grievance concerning the pay problem. On February 19, 1968, upon returning to work from a 2-week sick leave, Kunow was assigned to a new position in the packing area. There is undisputed testimony in the record that Kunow was transferred to the packing department because the Company had military orders requiring the shipment of critically needed material to Viet Nam. She testified that her transfer was unwarranted and that upon questioning Martz he allegedly said she was transferred as "punishment." Martz testified that he never made such a statement and further that the only use of the word "punishment" was made by Kunow. This conflict in the testimony more logically fits the explanation made by Martz, whom I credit, than Kunow because she did feel she had been punished by the transfer. The record is clear that none of Martz' supervisors blamed him for the mixup over the pay problem that bothered Kunow. It was only Kunow who felt that he was responsible for this fact. Under these circumstances it is unlikely that a supervisor would transfer an employee in retaliation for her filing a grievance when the grievance in no way reflected upon the supervisor's skills or abilities. B. The Events on May 14, 1968, Which Resulted in Kunow's Separation From the Company's Employment Kunow testified that on May 14, 1968, the noise in the packing area was so intense that it made her nervous and made her feel that the top of her head was coming off. Feeling the way she did Kunow requested permission to go to the medical department. Upon arriving at the 174 NLRB No. 82 546 DECISIONS OF NATIONAL LABOR RELATIONS BOARD medical department Kunow complained to'the head nurse, Mary Lou, that the noise and conditions of employment at her work station were driving her nuts. The application of an ice pack produced no relief and Kunow asked for permission to go home explaining that she wanted to go to her doctor. After some additional conversation with the head nurse and having secured no relief from her pains, Kunow left the medical department without a pass, and reported to her department foreman, Bailey, where she requested permission to go to see her own doctor. Bailey said he could not give her a pass to go home because Company rules required that once an employee reported to the medical department only this department was authorized to issue a pass. Thereupon Kunow left the plant, signed the book in the guardhouse and left the company premises. On the next day, May 15, 1968, Kunow did not report for work and had a co-worker deliver a message to this effect to Bailey who thanked his informant for giving him this notice. On May 16, Kunow returned to work. Bailey asked her what she was doing at work and then informed her that when she had walked off the job the Company considered that she had voluntarily quit her job. There is testimony in the record that Kunow went to see a company employment interviewer, Frusci, on May 2, 1968, to request a different job from the one she had because she complained about the noise, absence of a proper workbench and dirt in the packing department. Frusci testified that after giving Kunow a typing test she returned to his office and he said there was an opening which involved typing. Kunow, while she did not categorically refuse the job, told Frusci that she did not want a job that entailed a great amount of typing. Since the job under discussion did involve considerable typing Frusci concluded that Kunow was not interested in the position under discussion. Kunow testified that she did not return to see Frusci after the typing exam and did not have a conversation with him concerning a typing job. Since the decision in this case turns on a consideration of other significant facts it becomes unnecessary to deal with this conflict in testimony in greater depth than has been done. C. Contentions of the Parties The General Counsel contends that the discharge of Kunow was caused by the fact that she filed a grievance over the pay problem. In support of this argument the General Counsel points to a change in attitude by Martz towards Kunow. Prior to the filing of the grievance Martz frequently complimented her on her work; joked with her; visited her -socially and permitted her to make up lost time. After the grievance was filed Martz stopped complimenting her; stopped telling her jokes and ceased permitting her to make up lost time. I regard the change in social amenities as trivial but find it necessary to deal more closely with regard to the alleged change in permitting Kunow to make up lost time. In support of this contention the General Counsel calls attention to the transcript wherein Kunow testified as follows: Bob (Martz) I would make up that extra minute, it was twelve minutes that I went home early last night " He said, "I don't think we're busy to make the time up. You don't have to make up that time. The above quoted language, including as it does the statement "You don't have to make up that time," seems clearly to mean Kunow should forget about making up the time. Thus, the record supports a conclusion which is the opposite of the meaning taken by the General Counsel. Indeed it is clear that by telling Kunow she did not have to make up lost time this does not mean that Martz was refusing to let her make up lost time. If the General Counsel intended the above quoted language to show that Kunow was denied pay for the time she took off it is submitted that no evidence was adduced to show that she was docked for leaving her job early. D. Contentions of the Parties The General Counsel contends that what had previously been a friendly relationship between Kunow and her supervisor Martz deteriorated into one of hostility as the result of the fact that she filed a grievance over the pay problem. The ill will ultimately culminated in her discharge. The filing of a grievance is a protected activity. Despite the fact that leaving the plant without permission provided the Company with a basis for discharge, if an employee is engaged in protected activity and this is the substantial or motivating reason for the discharge then there is discrimination.' Such discrimination is violative of Section 8(a)(3) of the Act. Respondent takes the position that when Kunow left the plant without permission and without first securing a pass she was guilty of a serious dereliction of duty and this was the only reason for her separation from employment. Respondent argues that the disciplinary action taken against Kunow has nothing to do with the fact that she filed a grievance. Based on the evidence adduced at the hearing I find that the General Counsel has failed to establish a causal connection between Kunow's filing of a grievance and her discharge. CONCLUSIONS OF LAW 1. Respondent is engaged in, and during all times material was engaged in, commerce or in a business affecting commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. The allegations of the complaint that Respondent has engaged in, and is engaging in, unfair labor practices affecting commerce within the meaning of Section 8(a)(1) and (3) of the Act, have not been sustained by substantial evidence. RECOMMENDATIONS It is recommended that the complaint be dismissed in its entirety. ' Bowman Transportation , Incorporated, 134 NLRB 1419.