American Store Equipment Corp.

620 DECISIONS OF NATIONAL LABOR RELATIONS BOARD American Store Equipment Corporation and Douglas Sheffer. Case 7-CA-6349 June 13, 1969 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS JENKINS AND ZAGORIA On March 11, 1969, Trial Examiner George L. Powell issued his Decision in the above -entitled proceeding, finding that the Respondent had not engaged in certain unfair labor practices 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 brief in support. 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, the exceptions, the brief, and the entire record in this case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, with the limited modification set forth below.' 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 be, and it hereby is, dismissed in its entirety. _ ing the finding that Douglas Sheffer was not denied a return to a job in the bargaining unit for discriminatory reasons, we specifically disavow the Trial Examiner's reliance on Sheffer's resort to the grievance procedure and the National Labor Relations Act as evidence to support the conclusion that Sheffer qualified as a "troublemaker." TRIAL EXAMINER' S DECISION STATEMENT OF THE CASE GEORGE L. POWELL, Trial Examiner: This case was tried before me on November 20 and 21, 1968, in the circuit courtroom and the probate courtroom respectively of Muskegon , Michigan. The complaint issued September 30, 1968 based upon a charge filed on October 13, 1967, by Douglas Sheffer . The complaint presented questions of whether the Respondent violated Sections 8(a)(3) and (1) of the Act' when it refused to transfer discharged Supervisor Sheffer back into the collective -bargaining unit, and whether Respondent by its agent did in fact tell employees that its reason for not reemploying Sheffer as a rank-and-file employee was that when he was formerly a member of the collective-bargaining unit and active in union affairs, he was a "troublemaker," and if so, whether the term "troublemaker" was linked to his union activities. The case also involves major issues of the effect of final arbitration under a collective bargaining agreement under the doctrine enunciated in Spielberg Manufacturing Co., 112 NLRB 1080, and whether it is possible for an employer to violate the Act by refusing to employ an individual who has no right to employment. The parties appeared at and were represented at and participated in the trial, and were granted full opportunity to adduce evidence, examine and cross-examine witnesses, submit briefs, and present oral argument. Briefs were filed on December 23 and 24, 1968, by the General Counsel and Respondent, respectively. On the entire record of evidence, my observation of the witnesses as they testified, and on due consideration of the briefs, I find, for the reasons hereinafter set forth, that the General Counsel has failed to establish by a preponderance of the evidence that Respondent violated Section 8(a)(1) and (3) of the Act as alleged in the complaint, and I will recommend that the complaint be dismissed in its entirety. FINDINGS OF FACT AND CONCLUSIONS OF LAW 1. JURISDICTION AND THE LABOR ORGANIZATION I find that the allegations of paragraphs 2, 3, 4, and 5 of the complaint, respecting the nature and volume of business carried on by the Respondent , American Store Equipment Corporation, a Michigan corporation manufacturing wood products , store fronts, commercial furniture and related products in a plant located at Muskegon, Michigan , are true and I conclude therefrom that Respondent is an employer engaged in commerce within the meaning of Section 2(6) of the Act. There is no controversy concerning the fact that the Respondent is an employer within the meaning of the Act. I find and conclude that the Industrial Workers Union, Local No. 1033 of the United Brotherhood of Carpenters and Joiners of America , AFL-CIO, herein called the Union, is and has been at all times material herein a labor organization within the meaning of Section 2(5) of the Act. This fact likewise was not controverted in the pleadings. II. THE UNFAIR LABOR PRACTICES The Charging Party, Douglas Sheffer, was an employee of Respondent for some 14 years between 1951 and 1965 as a member of the collective -bargaining unit represented by the Union. On January 1, 1965, Respondent appointed Sheffer to a supervisory position where he served as a supervisor for 30 months until his discharge on July 5, 1967. Melvin Arnson was the assistant superintendent at the time he notified Sheffer of his discharge. He refused to put Sheffer back in the bargaining unit. '29 U.S .C. Sec. 151, et req 176 NLRB No. 78 AMERICAN STORE EQUIPMENT CORP. 621 General Counsel's Theory The theory of the General Counsel, as I see it, is that Respondent refused to reinstate Sheffer in the bargaining unit because it did not want him to engage in union activities as he had in the past and it would be likely that he would do so if given the opportunity . Part and parcel of this theory , indeed the only relevant link in the chain of proof, is the General Counsel 's evidence that at a meeting on September 21, 1967, called by the Union' s bargaining committee with Respondent' s officials to determine why Sheffer was discharged as a supervisor, one of Respondent' s officials said Sheffer would not be returned to the bargaining unit because he was a "trouble maker." It is noteworthy that the General Counsel does not contend that antiunion considerations motivated Respondent to promote Sheffer to a supervisory position, and the General Counsel does not contend that Sheffer's discharge was motivated by Sheffer's prounion conduct as an employee although as to the discharge the General Counsel attempted to create a suspicion that Sheffer was not fired for cause. Sheffer as an Employee As noted earlier, Sheffer had been an employee of Respondent for some 14 years before he was made a supervisor. His last job as an employee was that of miter-sawyer, and, from the evidence adduced at the trial, I find that he was a satisfactory employee in that job. He was a member of the Union's bargaining committee and helped negotiate the 1962 contract. For the last 17 months as an employee before he was appointed supervisor he was the chief steward for the Union.' Among his duties as Chief Steward, he processed grievances on behalf of the employees, and he did so process some 50 to 60 grievances . It was conceded that this was more grievances than other chief stewards had processed, and it was conceded by the General Counsel that only about one-half of the grievances were resolved favorably to the Union, but no where in the record is there evidence that Respondent resented the filing of the grievances or resented Sheffer's activities relating thereto nor is there evidence that previous chief stewards had a better or worse record in resolutions favorable to the Union. The General Counsel contends that Charles Logie, Vice President, formed a grudge against Sheffer when the latter as Chief Steward bawled him out for using a production machine and filed a grievance over the matter. This event occurred in 1964, some 3 years before the events in this case, yet the General Counsel introduced it in evidence to shed light on the meaning of the term "troublemaker" which Logie may have used in discussing Sheffer in 1967. What happened in 1964 was of such short duration there is little wonder that the parties could not agree at the trial as to what took place. Sheffer testified that Logie was using a sanding machine so he stopped him and filed a grievance over it. The collective-bargaining agreement precluding management from operating production equipment. The evidence shows that this was a constant problem with all union stewards vigorously enforcing the contract. Logie's recollection of the incident was that he wanted to cut a piece of wood, but as the employees were on a coffee break and not working, he stepped up to the band saw and cut the board himself. As this event took place before Sheffer was promoted to supervisor it obviously made no lasting impression on this highly-placed official. I consider this contention of the General Counsel as frivolous and reject it. Sheffer's Discharge According to Sheffer, Arnson, assistant superintendent, told him on July 5, 1967, that he had 30 days left with Respondent as he "was being discharged." Sheffer asked why and Arnson told him he could not tell him the reasons but he felt that Sheffer knew what the reasons were and that Arnson "honestly couldn't tell me that I had done a bad job for the company." Sheffer asked "if there was a possibility of returning to the bench [bargaining unit]." Arnson said he would check with Wulf, plant manager, and let him know later. Arnson did tell Sheffer some hours later that Wulf said he was not authorized to put Sheffer back to work in the plant. Arnson had Sheffer under his immediate supervision at this time but only because Hubert Wulf, superintendent was absent trying to get another plant started. Arnson testified that " ... it had been decided we were going to replace him, to let him go, and I told [Sheffer] the reason was poor performance, and we didn't feel he had been doing a suitable job." I credit Arnson and not Sheffer when there is a conflict in evidence. Jeffrey Conn, Treasurer and Controller, was aware of Respondent' s decision to discharge Sheffer as it had been discussed in his presence . He credibly testified that the reason for Sheffer's discharge was that he was incompetent as a supervisor. He recalled an occasion when Sheffer's errors cost Respondent as much as $20,000. I find that Sheffer was discharged for incompetence. There is no evidence to indicate that the discharge had anything to do with Sheffer's union activity. Indeed there was no evidence of any union activity by anyone, other than the routine meetings between the Union and management, during the period of time Sheffer was a foreman. The Meeting of September 21, 1967 Seventy-eight (78) days after Sheffer' s discharge the union bargaining committee requested and had a meeting with management to find out why Sheffer was discharged.' Witnesses for the General Counsel as to what took place at this meeting were Leak, Lange, Sliter, and Brooks. Dale Leak, recording secretary and union committeeman from March 1967, referred to the meeting as a "fact finding meeting." He testified that Brooks asked Logie why Sheffer was dismissed and why he was not put back in the bargaining unit . Logie said it wasn't necessary to explain their actions but as common courtesy he would do so . He said Sheffer was incompetent and had been a problem with management . As for putting Sheffer back to work in the bargaining unit it was entirely out of the question and that he was a "sore spot" with the company when in the unit and was a "troublemaker and had caused the company much trouble." Leak testified that nothing was said of Sheffer' s union activities. 'The Union had been recognized for 20 years by Respondent as the sole collective bargaining representative of its production and maintenance employees as a result of a certification of the N.L.R.B ., dated February 18, 1948. 'There is no evidence or allegation that Sheffer and the Union and the bargaining committee enjoyed other than the best of relationships with each other. 622 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Albert Lange, union president from August 1964 until January 1968 and now retired, testified that "Mr. Logie said Doug [Sheffer] was released because his work wasn't satisfactory, and it cost the company considerable amount of money. . . . and he also stated that if Doug would be returned to the Union [sic], he would cause trouble for the company." Lester Sliter, member of the union bargaining committee, testified that " Mr. Logie said, that Doug Sheffer was not panning out exactly the way they thought he would in the area where he was working and that this was the main reason that he was dismissed , and he had caused a lot - he, while he was out there he caused a lot of scrap and rework that amounted to thousands of dollars." Sliter, on direct examination , testified further that Logie stated " . . . that any time Doug Sheffer was isn [sic] the - with the union, as an official in the union, he was a troublemaker and always had been a sore spot with management , and this was the reason that he would not get a job back, they would not bring him back to his old job." On cross-examination, Sliter was sure Logie said Sheffer "would be troublesome again, a troublemaker." He could not recall whether Logie said the contract did not obligate the Company to put Sheffer back to his old job, even after reading his previously signed affidavit in which he had so testified. Gerald Brooks, chief steward from March 1967 to January 1, 1968 and thereafter union president , testified that "Mr. Logie•said [Sheffer] was incompetent and as a supervisor he cost the company a lot of money, if they put him back in the union [sic] he would be a troublemaker, because he was a troublemaker while he was in the union [sic], and that he was against the company." The following then took place: TRIAL EXAMINER: You are saying union or unit? THE WITNESS : In the union in the bargaining unit. TRIAL EXAMINER : You are saying unit and not union, is that correct? THE WITNESS: Bargaining unit, all right , it is the same thing. TRIAL EXAMINER: I want to know what Mr. Logie said. THE WITNESS: This is what I am talking about. He said he didn't want him back in there because he was a troublemaker while in there before and he would be a troublemaker if he was back in the bargaining unit. Q. (By Mr. Hill) [General Counsel] Did Mr. Logie say unit or union? A. I would say unit, I guess . It is the same thing. He did say he was against the appointment in the first place, in the very first place . It was against his better judgment . He didn't feel Sheffer was qualified for the job. Q. Was there any mention of the union in this conversation? A. Just that he was a troublemaker while he was in the union. TRIAL EXAMINER: You said he did mention .the word union? THE WITNESS: Bargaining unit is the same to me as the word union. TRIAL EXAMINER: I know, but we are talking about what another man said. THE WITNESS: He said while he was in the unit, the union. TRIAL EXAMINER: Unit? THE WITNESS: In the unit, in the Brotherhood of Carpenters and Joiners, the union itself, and if they put him back into the bargaining unit job he would be a troublemaker again . I don't really see the connection why the difference between the unit and the union. To me we are speaking about the same thing. On the other hand for Respondent, Charles Logie, vice president, testified he responded to the question raised as to why Sheffer was not being returned to the bargaining unit. He told the committee he felt Sheffer was an incompetent supervisor and that he Sheffer had been told in being offered the job that if he did not perform satisfactorily that he would not have a job with the company any more . Logie told the committee that "we felt [Sheffer's] attitude in the job he had just come out of indicated he could not take orders properly , would not respond to people in authority and therefore it would be silly to try to put him back into [the] plant in some other capacity because the situation would likely be repeated." He said, in reply to a question if he used the word "troublemaker or troublesome " in his conversations, "I very likely could have." Logie also spoke of Sheffer's erratic behavior at the time when he had occasion, as a person in authority, to give him direction or comment about the production or products, and how Sheffer would ignore his comments and directions . Logie testified that no reference was made at the meeting to Sheffer' s union activities. Logie was familiar with Sheffer's poor performance as a supervisor , but he had nothing to do with Respondent's decision not to reinstate him in the bargaining unit or the decision to discharge him. Logie had no authority in these areas. Jeffrey Conn, treasurer and controller, also attended the September 21, 1967, meeting. He testified that he had met earlier on September 18, 1967, with Sheffer, Kern and Lineberry at which time he told Sheffer (after being questioned) he had been fired because he was incompetent. Sheffer asked why he could not have his job back in the unit and Conn told him because Respondent had a policy not to return people that were discharged . Also Conn told Sheffer that [Sheffer] obviously did not believe he was incompetent and would always feel that he was fired for some other reason and would likely take it out on somebody as a plant member . Conn explained that the Company policy was based on the theory that it was natural for someone to refuse to believe he was incompetent. My conclusions as to the meeting on September 21, 1967, are that if Logie made any reference to Sheffer as being a "troublemaker" it had to do with his attitude of refusing to believe that he was incompetent as a supervisor, or for his attitude about being corrected. There is no credible evidence linking union activities to "troublemaker." Sheffer's friends appeared to strain their testimony as far as they could to help him and I am convinced that Sliter's testimony is beyond credence and is not credible . Chief Steward Brooks could see no difference between "unit" and "union" and accordingly his testimony has no probative value as to what Logie said. An employer has no authority to put an employee in a union or to return one to a union . But an employer may return an employee to a unit. Accordingly, I do not credit Lange when he testified that Logis stated that if Sheffer would be returned to the Union he would cause trouble. I credit Logie that union was not mentioned. The proper term for Lange to have used was unit. AMERICAN STORE EQUIPMENT CORP. 623 Leak had no problem with his testimony , telling that nothing was said of Sheffer's union activities but only that he was a sore spot and a troublemaker in the unit. As there are many ways for an employee to be a "troublemaker" other than because of his union activities, and as we have a word picture of Sheffer being hard to supervise and unresponsive to guidance , the General Counsel has not established that Logie called Sheffer a troublemaker because of his union activities. From my observations of Sheffer, I believe Respondent's witnesses are correct in evaluating him and I agree he would be difficult to supervise even without a background of being discharged . It is also obvious that he does not believe he was fired because he was incompetent, yet there is no other evidence nor claim . He certainly qualifies for the term of "troublemaker". The record shows he has caused plenty of trouble for Respondent . He has caused at least two meetings with company officials, caused his union to take his grievance to final arbitration , and, losing that, has caused Respondent to spend time and money defending this case and finally the U.S. Government has been caused the expenditure of time and money in bringing this case on for trial . In causing this trouble he was not engaged in union activity. All of this trouble has been caused by Sheffer even though he knew at the time he was promoted to supervisor that he would not be employed by Respondent in any job if he did not succeed as supervisor. Sheffer denied being told this but he is not credited . Richard Kaufman , president, credibly testified that he and Wulf, the then plant manager , had gone over this promotion over a period of time and Kaufman finally agreed to Wulf's recommendation to promote Sheffer but then only after Kaufman himself and Sheffer had discussed the company's position that if he failed as a supervisor he would not be hired for any job. been brought to the Board under the doctrine of Spielberg Manufacturing Co., 112 NLRB 1080. Because of my decision under the merits of the case, it is unnecessary to rule on this point . Suffice it to say however that it would appear that a respectable case could be made on the proposition that an employer would be unable as a matter of law to violate the Act in situations where a job applicant had no right to a job and there was no evidence of disparate treatment . However I do rely on the decision of the arbitrator that the contract does not give Sheffer any right to return to the bargaining unit after he had been discharged as a supervisor. The General Counsel attempted to show disparate treatment of Sheffer in that other persons had been returned to the bargaining unit from areas outside the unit. However I find he did not prove that any discharged supervisor had ever been returned to the unit since the 1962 collective bargaining agreement when the company policy came into being. In view of the above findings it cannot be said that Respondent violated Section 8 (a)(3) and ( 1) of the Act by refusing to reinstate Sheffer to a job in the bargaining unit because of Sheffer's union activities as alleged in the complaint. I have previously found that General Counsel has not established that Respondent called Sheffer a troublemaker because of his union activities . It follows therefore that Respondent could not have advised employees, as alleged in the complaints, that the reason Sheffer was not reemployed in the bargaining unit was that when he was formerly in the unit and active in union affairs he was a troublemaker . The term "troublemaker" has not been linked to union activities. Accordingly, I find the General Counsel has failed to establish by a preponderance of evidence the allegation, set out in paragraph 11 of the complaint, that Respondent violated Section 8(a)(1) of the Act. The Arbitration On September 25, 1967, Sheffer filed a grievance against Respondent for failure to return him to the bargaining unit . He contended that he had the right to return under the collective-bargaining agreement. This grievance went to final arbitration and was heard by Leo W. Walsh, arbitrator duly appointed by the Federal Mediation and Conciliation Service . The parties called and examined witnesses on April 19, 1968. Arbitrator Walsh found no merit in the grievance in his decision of May 16, 1968, a copy of which was introduced into evidence as Respondent's Exhibit 2. In essence, the ground for dismissal was that Sheffer had no right under the collective-bargaining agreement to return to a job in the bargaining unit after he had been discharged as a supervisor. Respondent urges the Trial Examiner to dismiss the complaint on several grounds including, inter alia, that the matter was resolved by arbitration and should never have CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce and in a business affecting commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Industrial Workers Union, Local 1033, of the United Brotherhood of Carpenters and Joiners of America, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. The General Counsel has not established by a preponderance of the evidence that Respondent violated Section 8(a)(1) and (3) of the Act as alleged in the complaint. RECOMMENDED ORDER Upon the basis of the above findings of fact and conclusions of law and upon the entire record in the case, I recommend that the complaint be dismissed in its entirety.