United Aircraft Corp.

UNITED AIRCRAFT CORPORATION 633 United Aircraft Corporation (Pratt & Whitney Divi- sion) and Canel Lodge 700, International Associa- tion of Machinists and Aerospace Workers, AFL-CIO. Case 1-CA-6967 February 22, 1971 DECISION AND ORDER BY MEMBERS FANNING, BROWN, AND JENKINS On July 13, 1970, Trial Examiner Sidney Sherman issued his Decision in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recom- mending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, the Respon- dent, the General Counsel, and the Charging Party filed exceptions to the Trial Examiner's Decision and supporting briefs, and the Charging Party filed a reply 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 preju- dicial 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, including Respondent's motion to include the decision of the United States Court of Appeals for the Second Circuit and opposi- tion of Charging Party to Respondent's motion to defer decision,' and hereby adopts the findings, con- clusions, and recommendations of the Trial Examin- er as modified below. We find that Tobin, a union steward, was engaged in protected concerted activity at the time of the inci- dent which gave rise to this proceeding. At that time, Tobin was assisting the Union and acting in his ca- pacity as the Union's representative in informing em- ployee Tibbits that, in accordance with the provisions of the contract, this could not be done on company time and dropped the cards on a table. Whether or not Respondent believed that, except for the intervention of a supervisor, Tobin would have reclaimed the cards is mere conjecture. Likewise one can only speculate as to whether or not Tobin ever entertained such a thought. In view of his throwing the cards on the table, we find that Tobin was following the terms of the contract, this is clearly protected concerted activi- ty, and Respondent's suspicion or good-faith belief as to what Tobin may have done is not relevant. Accord- ingly, we find contrary to the Trial Examiner that the rule of law laid down in Burnup and Sims, Inc., 379 U.S. 21, is applicable herein. While so finding, we do agree with the Trial Examiner's finding that the weight of the evidence herein establishes discriminatory motivation on the Respondent's part in its suspension of Union Steward Tobin. In addition to the disparity of treatment as illustrated by the written and oral reprimands given to the other employees involved in the incident, the record shows that a pattern of discrimination against union stewards has been perpetrated by the Respon- dent in prior cases? Moreover, the Respondent's ad- mission that it meted out harsher treatment against Tobin because of his union status convinces us that the Respondent's suspension of Tobin was unlawfully motivated and for this reason also constitutes a viola- tion of Section 8(a)(3) and (1) of the Act. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board adopts as its Order the Recommended Order of the Trial Examiner and hereby orders that the Respondent, United Aircraft Corporation (Pratt & Whitney Division), Hartford, Connecticut, its offi- cers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommend- ed Order. 1 On December 31, 1970, Respondent filed with the Board a motion in which it again requested deferment of a decision of the merits of the instant case until such time as the Charging Party complies with the decision of the United States Court of Appeals for the Second Circuit issued December 11, 1970. In its decision the court affirmed an order of the United States District Court for the District of Connecticut directing the Charging Party to proceed to arbitration pursuant to the terms of a collective -bargaming agreement. We deem the motion to be without meet and hereby deny it. Although Member Brown would normally defer to grievance-arbitration procedures in the type of situation involved here, he concurs in the present case in view of the posture of related Board decisions in 179 NLRB No. 160 and 180 NLRB No. 49. 2 United Aircraft Corporation (Pratt & Whitney Division), 180 NLRB No. 49, and case cited therein in In I TRIAL EXAMINER'S DECISION SIDNEY SHERMAN , Trial Examiner: The original charge herein was served on Respondent on January 8, 1970, the complaint issued on February 12, and the case was heard on April 2. The only issue litigated was the legality of the suspension of a union steward under Section 8(a)(3) of the Act. After the hearing, briefs were filed by all parties. Upon the entire record,' including observation of de- meanor, the following findings and recommendations are adopted. For corrections of the transcript, see the order of June 9, 1970. 188 NLRB No. 96 634 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1. RESPONDENT United Aircraft Corporation, herein called Respondent, is a Delaware corporation and is engaged at its plants in Connecticut in the manufacture of aircraft engines and rela- ted products. It annually receives, and ships, in interstate commerce products exceeding $1 million in value. Respon- dent is engaged in commerce under the Act. 11 THE UNION Cane) Lodge 700, International Association of Machin- ists and Aerospace Workers , AFL-CIO, herein after called the Union, is a labor organization under the Act. III THE UNFAIR LABOR PRACTICES The only issue herein is whether Respondent discrimina- ted against Tobin, a union shop steward, with respect to certain disciplinary action taken against him. A. Sequence of Events At the time of the hearing, in April 1970, Tobin had been a union shop steward at the instant plant in Middletown, Connecticut, for about 1 year, had been the Union's record- ing secretary since August 1969, and had in 1969 successful- ly solicited 34 employees to join the Union. He had worked for Respondent over 4 years, had received a number of promotions, and in August 1969 received a commendation for saving two fellow-employees from injury. He had been the object of disciplinary action only once-in 1966 when he was reprimanded for absenteeism. The current union contract provides for check-off of un- ion dues and initiation fees, but contains a stipulation that no checkoff authorization cards will be distributed or col- lected during working hours on company ppremises.2 There is also a plant rule and a contract provision limiting solicita- tion by employees. On December 15, Graves executed a membership apph- cation card and a checkoff authorization card and while at work solicited the advise of another employee, Tibbits, as to how these cards could be transmitted to the Union, and, when Tibbits volunteered to deliver them to a union stew- ard, Graves gave him the cards. Tibbits then approached Tobin and, without explaining the nature of the cards, handed them to him. Upon perceiving what the cards were, Tobin observed that "this" could not be done on company time and dropped them on a table. However, upon seeing a supervisor approach, Tobin immediately covered the cards with a sheet of paper, and, when asked by the supervi- sor what was going on, gave a noncommittal answer but as the supervisor drew nearer, and it appeared that he would discover the truth, in any event, Tobin decided to make a clean breast of the matter. Uncovering the cards, he ex- plained that Tibbits had attempted to pass them to him. The entire incident lasted less than a minute .3 2 This stipulation is contained in Appendix A of the contract and reads as follows- Section 1 The union shall assume all responsibility for the distribution and collection of payroll deduction assignment cards for union dues and the initiation fee, and agrees that such distribution and collection will not be caned on during working hours on company premises. 5 The foregoing findings are based on the testimony of Tobin, which was in the main consistent with that of Tibbits, except that the latter insisted that it was the supervisor, and not Tobin, who uncovered the cards However, as Respondent failed to call the supervisor , and no explanation was offered for such failure, it lip inferred that he would not support Tibbits in that regard The next day, Respondent launched an investigation and on December 29 Tobin was notified of his suspension from work for 1 day without pa , on account of his role in the matter, such suspension to be effective the next day. Tibbits received only a written reprimand and Graves an oral one. Although the union contract contains an elaborate griev- ance procedure culminating in arbitration, no grievance was filed thereunder by the Union or Tobin. Instead, the Union filed the instant charge, whereupon Respondent filed suit in federal district court to compel arbitration of "a dispute concerning the disciplinary suspension" of Tobin. That suit is still pending.4 B. Discussion The General Counsel and the Union contend as follows: (a) Tobin did not in fact violate any company rule or contract provision since he was not engaged in collecting the cards when the supervisor appeared, but was in fact in the process of rejecting cards which had been thrust upon him. (b) Tibbits, who was not a union member, received a lesser penalty, notwithstanding that his misconduct was clearer than Tobin's. (c) Respondent has a history of discharging union stew- ards for discriminatory reasons under the guise of enforcing a plant rule or contract provision. (d) Respondent's motive in suspending Tobin was not concern over misuse of working time but was to discourage employees from becoming shop stewards, and to demean such stewards, and the Union, itself. These matters will be considered seriatim. 1. Did Tobin violate any plant rule or contract provision? Among the published plant rules is one forbidding the following conduct: Gambling, taking orders, selling tickets, or soliciting money or any other type of solicitation.5 The union contract also bars any solicitation of employ- ees for union membership or dues on company premises during working time. In addition, as noted above, the union contract interdicts any collection of dues checkoff cards during worktime. At the hearing, Respondent's assistant personnel manag- er, Hall, testified that it was he who determined in the first instance the nature of the disciplinary action against Tobin, as well as Tibbits and Graves, and that he concluded from the investigative reports he received concerning the incident that Tobin had violated the aforequoted plant rule and contract clause against solicitation, as well as the contractu- al prohibition of the collection of checkoff authorizations. Hall explained that he regarded Tobin's receipt of Graves' checkoff authorization card under the circumstances de- scribed above as constituting "collection" of the card within the intendment of the contract, and that he equated collect- in g such cards with the sort of solicitation that was pros- cribed by rule and contract. In its brief, however, Respon- dent makes no reference to the "solicitation" issue, relying Accordingly, Tobin is credited. In any event, even if Tibbits be credited, that circumstance, as will appear from the ensuing discussion , would not affect the ultimate result herein. 4 On May 15, 1970, I issued an order granting Respondent's motion to stay the instant proceeding pending the outcome of such suit. This order was reversed, on appeal, by the Board, with a direction "to proceed forthwith with [a] decision on the merits." See, also, the ruling of June 24 5 While such rule would on its face seem unduly broad , insofar as it applies to union solicitation, the matter was not litigated, presumably because of the narrower, more specific language of the contract, next discussed in the text UNITED AIRCRAFT CORPORATION only on the alleged breach of the contractual ban on collec- tion of checkoff cards. In any event, it is clear that the basic difference between the parties is whether there was any "collection" here by Tobin. Respondent points to various circumstances which it contends indicate that, although Graves' cards were thrust upon Tobin by Tibbits, and Tobin's initial reaction was a negative one, he finally decid- ed to retain the cards for delivery to the Union s head- quarters. Thus, Respondent points to the fact that, instead of returning the cards to Tibbits, Tobin dropped them on a table before him and, upon perceiving the approach of a supervisor, attempted by various means to conceal from him the existence of the cards, making a complete disclosure only when he became convinced that the supervisor would discover the truth, in any event. On the other hand, the General Counsel and Union point out that, had Tobin in- tended to retain the cards, he could have put them in his pocket instead of dropping them on the table, and that his initial efforts at concealment of the matter from the supervi- sor were prompted, not by a desire to retain the cards, but rather by a fear that the Supervisor would place a wrong construction on the incident. Strangely enough, no party asked Tobin directly at the hearing whether he in fact intended to retain the cards. Since he was the General Counsel's witness, and it would clearly have been to his interest to deny any such intent, if, in fact, he had none, the failure of the General Counsel to put the question warrants an adverse reference. According- ly, it is found that, although he at first indicated to Tibbits his reluctance to accept the cards, the approach of the su- pervisor forced Tobin to choose between retaining the cards or turning them over to the supervisor with an explanation of what had happened, and he chose the former alternative .6 However, it is clear that this choice was only momentary, since, upon perceiving that the supervisor was "zeroing in" on the cards, and that Tobin's efforts at concealment would therefore be unavailing, he promptly abandoned his inten- tion to keep the cards and decided to make a full disclosure. Whether such an "on-again-off-again" intention to retain the cards, coupled with Tobin's overt acts, added up to "collection" under the contract is a difficult question. How- ever, there is no need to resolve this matter since it suffices for present purposes to find, as I do, that Respondent was, in any case, justified in believing that Tobin intended to keep the cards and that he would have kept them if the supervisor had not come upon the scene, and that he was thereby en aging in conduct forbidden by the contract. It is further found that such belief would be a valid defense to the instant charge, if that were in fact the motivating reason for the suspension of Tobin .7 We now proceed to consider the latter issue. 6 It may well be that, as the General Counsel contends, Tobin feared that the supervisor would put a wrong construction on the incident and refuse to credit his explanation . However, that apprehension would make it all the more likely that Tobin would decide to keep the cards, since he would obviously have nothing to lose by doing so, if his only alternative was to offer an explanation which would not be accepted. 7 While under N L.R.B. v. Burnup and Sims, Inc, 379 U S. 21, an employer's honest belief is no defense to a charge of discrimination , regard- less of motivation, that rule is limited to the situation where the employee has in fact engaged in protected concerted activities but discipline is imposed because of an erroneous belief that such activities are unprotected . Here, the situation is that Tobin was either engaged in collecting a dues checkoff card during worktime, which was an unprotected concerted activity, or was re- 635 2. Disparity of treatment As already related, although Tobin was suspended for 1 day, Tibbits, who was not a union member, received the lesser penalty of a written reprimand. (Graves, an applicant for union membership, received a still lighter penalty-an oral reprimand.) Hall acknowledged that he regarded the contractual ban on collection of checkoff cards as applying not only to union officials but to all employees,8 and that Tibbits had therefore violated the contract. He insisted, however, at one point, that Tibbits' offense was not so seri- ous as Tobin's because Tibbits was merely doing another employee a favor in handing the cards to Tobin. Even after it was pointed out that Tibbits had played a more active role than Tobin, in that he had volunteered to take the cards from Graves and had thrust them upon Tobin, Hall insisted that Tibbits was "more or less an innocent victim of a request." This attempt to assimilate Tibbits' role to that of an innocent bystander reflects on Hall's candor as does his subsequent vacillation between that position and his avowal that he regarded Tobin's offense as the more serious be- cause the contract provision represented a commitment by the Union and Tobin "was a part of that union." Moreover, such avowal is perhaps the most damaging evidence in the record against Respondent. The evident meaning thereof, considered in conjunction with Hall's prior testimony, is that, while he deemed all employees, and not only the offi- cial union representatives, to be bound by the contract provision, he took a dimmer view of a breach by one, like Tobin, because he was a member of the Union's hierarchy and the provision represented an undertaking by the Union.9 However, this is tantamount to saying that, where two employees are guilty of a breach of a provision in a union contract, the employer may base the seventy of their punishment on the extent of their involvement with the fusing to collect such a card, which would be the antithesis of concerted action Accordingly, the question of motivation is here one of fact, to be determined upon all the evidence, and is not controlled by the rule of law laid down in Burnup and Sims, Inc (While it is not clear that the Board has always strictly observed the foregoing limitation on Burn up and Sims (see the dictum in Marion Manufac- turing Company, 161 NLRB 55, 56 (fn 1)), such limitation is clearly spelled out in the Court's opinion , where the rule is stated as follows: In sum, section 8(axl) is violated if it is shown that the discharged employee was at the time engaged in a protected activity, that the employer knew it was such, that the basis of the discharge was an alleged act of misconduct in the course of that activity, and that the employee was not, in fact, guilty of that misconduct. [Emphasis supplied.] This is in accord with the rationale of the Court that an employee should not be required to engage in concerted activities at the risk that he will be erroneously charged with some misconduct in connection therewith That rationale would not be applicable to the case of an employee who, like Tobin, is disciplined for alleged misconduct in con- nection with concerted activities , if, as the General Counsel contends, he was not in fact at the time of such alleged misconduct engaging in concerted activities of any sort but was carefully eschewing such activi- ties.) This construction of the contract seems unavoidable since to hold that only union officials were forbidden to collect checkoff cards would defeat the purpose of the provision of preventing disruption of work. Such disruption would be likely to be just as great if the collecting were done by employees other than such officials as where it was done by them. As to the ban in solicitation, it is clear from the text thereof that it applied to all employees 9 Hall did not contend that he held Tobin to stricter accountability because he was presumed to be more familiar with the provisions of the contract Such a contention was precluded , in any event, by the fact that Tibbits' written statement to Respondent 's investigators contained the admission that he knew that "it was wrong" for him to deliver the cards to Tobin. 636 DECISIONS OF NATIONAL LABOR RELATIONS BOARD union or on their position in the union's hierarchy. Respon- Iv THE REMEDY dent fails to suggest, and one is at a loss to perceive, how any such proposition sition may be squared with the provisions of Section 8 a (3 of the Act. 3. The "pattern" theory The General Counsel and the Union contend, further, that Respondent's treatment of Tobin was part and parcel of its over-all strategy, as found by the Board in prior cases, of undermining the Union by denigrating its stewards. Cita- tion is made to two recent Board decisions involving Re- spondent,10 in which it was found that, in addition to a number of other unfair labor practices, disciplinary action taken by Respondent against a total of 10 union stewards, which action ranged from a 3-day suspension to discharge, was unlawful because motivated by union animus. In those cases, the Board rejected as pretextual Respondent's con- tention that the disciplinary action was based on violations of its plant rule and contractual provision against solicita- tion. It is now urged that, in view of the similarity of the circumstances of the instant case and such other cases, it should be found here, as there, that Respondent's true mo- tive was to discourage union activity. There appears to be force to this contention. While it has been found that Respondent was justified in believing that Tobin did, in fact, engage in conduct which contravened the contract, this was also true of some of the stewards involved in the prior cases." Nevertheless, the Board found upon all the evidence that it was not such misconduct but Respondent's hostility to the Union that motivated the dis- ciplinary action taken. 4. Conclusion as to motivation Respondent points to the minimal nature of the discipli- nary action against Tobin, and at first blush it seems im- probable that Respondent would hope to downgrade the union and its stewards in the eyes of the employees by such a mild measure as a 1-day suspension. However , in the case of one of the stewards involved in the prior case, the disci- pline consisted only in a 3-day suspension. Respondent cites, also, the fact that after Tobin became shop steward he received both a promotion and a commendation. I have given due weight to this circumstance, as well as all the other matters relied upon by Respondent, but do not believe that they suffice to counterbalance the weight of the evidence of discriminatory motivation, consisting, as it does, of the pat- tern of discrimination against union stewards established by the Board's findings in the earlier cases, the relative inconse- quentiality of Tobin's conduct in terms of effect on pro- duction,' the disparity in treatment of Tobin as compared to Tibbits, the difficulty encountered by Hall in attempting to explain such disparity, and his final admission, in effect, that he meted out a more severe penalty to Tobin than to Tibbits because of Tobin's union status . Accordingly, it appears that the evidence preponderates in favor of a find- ing that, in suspending Tobin, Respondent violated Section 8(a)(3) and (1) of the Act.13 '0 United Aircraft Corp , 179 NLRB No. 160 ; 180 NLRB No 49 11 See the cases of Stewards D'Andrea and Menard , discussed in the 179 NLRB No. 160, both of whom were found to have engaged in some improper solicitation Moreover, as to stewards Nelson and Tardiff, as well as Menard, the Board there stated that whether or not they "actually engaged in union solicitation or activity during working time, this was merely a pretext to conceal Respondent's discriminatory motive in disciplining them." 12 As related above, the entire incident on December 15 lasted less that a minute Having found that Respondent engaged in certain unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act, I shall recommend that it be directed to cease and desist therefrom and take appropriate , affirmative ac- tion. It having been found that Respondent discriminatorily suspended Tobin on December 30, 1969 , I shall recommend that it be ordered to make him whole for any loss of pay resulting therefrom, less his net earnings during that period. Such backpay shall include interest at 6 percent as provided in Isis Plumbing & Heating Co., 138 NLRB 716. CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce and in operations 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. By suspending Tobin on December 30, 1969, for dis- criminatory reasons, Respondent has violated Section 8(a) (3) and (1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record in this case, it is recommended that United Aircraft Corporation, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Suspending employees or otherwise discriminatingg against them in order to discourage membership in Canel Lodge 700, International Association of Machinists and Aerospace Workers, AFL-CIO, or any other labor organi- zation. (b) In any other manner interfering with, restraining, or coercin its employees in the exercise of their rights guaran- teed in Section 7 of the Act, except to the extent permitted by the proviso in Section 8(a)(3) of the Act. 2. Take the following affirmative action, which is deemed necessary to effectuate the policies of the Act. (a) Make whole Theodore B. Tobin for any loss of pay he may have suffered by reason of the discrimination against him, in the manner set forth in the section of this Decision entitled "the Remedy." (b) Post at its Middletown, Connecticut, plant, copies of the attached notice marked "Appendix."14 Copies of said 13 In arriving at this conclusion, I have given no weight to the General Counsel's contention that, as shown by evidence adduced in the two prior cases, Respondent did not enforce any of its various prohibitions against misuse of working time, except where union activities were involved, and that the suspension of Tobin therefore represented an unlawful, discriminatory application of such prohibitions A sunilar contention was rejected by the Board in such prior cases and is rejected here for the reasons there stated. 14 In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board , the findings, conclusions, recommendations, and Recommended Order herein shall, as provided by Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings , conclusions, and order, and all objections thereto shall be deemed waived for all purposes In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Rela- tions Board" shall be changed to read "Posted pursuant to a Judgment of Continued UNITED AIRCRAFT CORPORATION notice, on forms provided by the Regional Director for Region 1, shall be signed by Respondent s authorized repre- sentative, and posted by the 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. Reason- able steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 1, in writing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith.11 the United States Court of Appeals, Enforcing an Order of the National Labor Relations Board." 13 In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read: "Notify said Regional Director, in writing, within 10 days from the date of this Order, what steps Respondent had taken to comply herewith." APPENDIX 637 To refrain from any and all of these things. WE WILL NOT do anything that interferes with these rights. More specifically, WE WILL NOT discourage employees from joining or supporting Canel Lodge 700, International Association of Machinists and Aerospace Workers, AFL-CIO, or any other union, by suspending them or otherwise dis- cnmmatinp against them because of union member- ship or activity. WE WILL pay Theodore B. Tobin any money he lost as a result of being suspended on December 30, 1969, with interest at 6 percent. All our employees are free to join or not to join Cartel Lodge 700, International Association of Machinists and Aerospace Workers, AFL-CIO. (Representative) (Title) NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The Act gives all employees these rights: To engage in self-organization To form, join, or heI unions To bargain collectively through a representative of their own choosing To act together for collective bargaining or other mutual aid or protection Dated By UNITED AIRCRAFT CORPORATION (Employer) 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, 20th Floor, John F. Kennedy Federal Building Cambridge & New Sudbury Streets, Boston, Massachusetts 02203, Telephone 617-223-3353.