Southwestern Bell Telephone Co.

SOUTHWESTERN BELL TELEPHONE 427 Southwestern Bell Telephone Company and Communi- cation Workers of America and its Local Union No. 6222. Case 23-CA-3752 May 19, 1971 DECISION AND ORDER BY MEMBERS FANNING, JENKINS, AND KENNEDY On February 26, 1971, Trial Examiner John M. Dyer issued his Decision in the above-entitled proceeding, recommending that the complaint be dismissed, as set forth in the attached Trial Examiner's Decision. There- after, the General Counsel filed exceptions to the Deci- sion and a supporting brief and the Respondent filed cross-exceptions and a supporting 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 Ex- aminer made at the hearing and finds that no prejudi- cial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Ex- aminer's Decision, the exceptions, cross-exceptions and briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner. ORDER Pursuant to Section 10(c) of the National Labor Re- lations Act, as amended, the National Labor Relations Board adopts as its Order the recommended Order of the Trial Examiner and hereby orders that the com- plaint herein be, and it hereby is, dismissed in its en- tirety. that it had suspended Green, but denied that the suspension violated the Act. In this case, the gravamen of the matter is that Green used offensive and obscene language and uttered threats during a grievance meeting and was suspended for 1 day. The General Counsel and the Charging Party assert that the language was not so opprobrious as to warrant discipline and the suspen- sion could only have the effect of deterring employees from filing grievances and, accordingly, the imposition of discipline violates Section 8(a)(1) and (3) of the Act. Respondent claims it imposed discipline not because of the offensive, obscene language but because Green threatened to "foul up" his supervisors and the Company and not cooperate with them. The Company feeling that such threats were meant, having assayed them against Green's history with the Company as shown by his personnel folder and Mellina's personal knowl- edge of Green, decided that discipline was warranted to re- prove the threats and attempt to redirect Green to become a cooperative employee. In deciding this case I have considered not only that Re- spondent's testimony was consistent and direct, but that Gen- eral Counsel's testimony was at times contradictory and that Green from my observation appears to be a choleric in- dividual with a low boiling point. The testimony given by Green would so indicate. Accordingly, I have credited Re- spondent's version of the grievance meeting and have con- cluded that the discipline meted out was appropriate to the offense and was not and could not be considered in this instance to have an effect or intended effect of inhibiting employees in their Section 7 rights. The case was heard in Houston, Texas, on December 10 and 11 and all parties were afforded full opportunity to ap- pear, to examine and cross-examine witnesses,' and to argue orally. All parties have filed briefs which have been carefully considered. On the entire record in this case, including my evaluation of the reliability of the witnesses based on demeanor, and on the other factors mentioned above, I make the following: FINDINGS OF FACT I THE BUSINESS OF RESPONDENT AND THE LABOR ORGANIZATION INVOLVED TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE JOHN M. DYER, Trial Examiner. Communication Work- ers of America and its Local Union No. 6222, herein called CWA, the Local, or collectively the Union, filed the initial charge in this case on September 10, 1970,' alleging that Southwestern Bell Telephone Company, herein called the Company or Respondent, violated Sections 8(a)(1) and (5) of the Act. The charge was amended on October 22 to include an allegation that Respondent had violated Section 8(a)(3) on September 2 when it suspended Royce T. Green. The com- plaint was issued by the Regional Director on November 6, alleging inter alia and as the sole violation of the Act, that District Plant Superintendent Harold Mellina suspended Green for 1 day without pay on Wednesday, September 2, because Green had joined or assisted the Union or sought to bargain collectively or engaged in concerted activity. Re- spondent's answer of November 18 admitted the requisite jurisdictional allegations, the status of the Union, and the fact ' Unless otherwise stated all dates herein occurred in 1970 Respondent, which is a Missouri corporation with its prin- cipal office and place of business in St. Louis, Missouri, oper- ates in several States including Texas and is engaged in Hous- ton, Texas, in providing telephone and other communication services in that city. During the past year, Respondent re- ceived more than $1 million in gross revenues for furnishing telephone and communication services and received at its Houston, Texas, facilities from points directly outside the State of Texas, goods and materials valued in excess of $50,- 000. Respondent admits and I find that Respondent is engaged in interstate commerce within the meaning of Section 2(6) and (7) of the Act Respondent admits and I find that the Union herein is a labor organization within the meaning of Section 2(5) of the Act. ' Respondent sought to adduce evidence of Green's work conduct fol- lowing the suspension in an effort to demonstrate that their fears of Green's uncooperativeness were warranted by his later work behavior The tender of such evidence was refused since it would be of a "bootstrapping" nature 190 NLRB No. 84 428 DECISIONS OF NATIONAL LABOR RELATIONS BOARD II THE ALLEGED UNFAIR LABOR PRACTICES A. Background and Undisputed Facts Respondent's operations in Houston, Texas, are split into divisions, one of which is the East District with Harold Mel- lina as the district plant superintendent. Under Mellina are two levels of supervision, the so-called secondline supervision which is based on function and the firstline supervision which consists of the foremen of work crews. In this case, one secondline supervisor, S. Thurston Rawlins, and two firstline supervisors under him, Lee A. Sledge and William E. Harper, Jr., are involved. The firstline foremen usually have eight or nine in their crews, and the secondline supervisor has several foremen reporting to him. Mellina as the district plant super- intendent has approximately 300 people in his unit. Royce Green, whom Mellina suspended after contacting his own supervisor, Division Plant Superintendent Isom, is under Foreman Sledge. Respondent and the Union process both formal and infor- mal grievances. Their contract sets forth the procedure used for formal grievances. In informal grievances the job steward and the grievant meet with the firstline supervisor. If they are unable to resolve the dispute the grievance may be carried up through the various supervisory and job steward levels. For instance the informal grievance involved here has been pro- cessed beyond Mellina at the third level Both Mellina and Green have been with Southwestern Bell for approximately 21 years, with Mellina working up through the ranks to his present position and Green becoming an exchange repairman. At one time in their careers Mellina was Green's firstline foreman. Respondent decided to try a preventive maintenance pro- gram for coin telephone booths on a trial basis and the East District of Houston was one of the areas selected. On July 29, secondline supervisor Thurston Rawlins wrote a letter to three of his repair foremen outlining the program and stating it was to begin Monday, August 3, and last until December 31. The letter set forth that two repairmen in the East District would be assigned exclusively to preventive maintenance of coin telephone booths and would not be used for any other type of work although the repairmen could work overtime on other work The letter describes some of the basic routines of inspection and refers to company maintenance booklets re- garding inspection of the telephone instruments. The letter stresses that this is a test that would receive attention from other areas of the Company and that visitors would be com- ing to see the program. The letter specifically states that whoever started on the program would be expected to con- tinue it until December 3 1. After receiving the letter Foreman Sledge contacted the job steward for his crew, John Smith, and discussed the proper method of assignment of the job to one of the crew. Smith suggested the assignment should be on a voluntary basis with refusal by seniority, Siedge agreed stating that if all the men refused, then the man with the lowest seniority would be assigned Sledge offered the job in turn to the top three men in seniority who each refused it. Royce Green, the fourth in seniority on the crew, accepted the assignment. Sledge ex- plained to Green the nature of the assignment and its length using the letter as the basis. For this assignment Green would be given a group of IBM cards daily, each of which would have the location of a coin instrument and booth. Green could then decide how he would route himself in covering the group of instruments. He was usually given more IBM cards than he could reasonably expect to check in a day, so he was allowed some latitude He was expected to report back to the garage by 5 p.m. Green's estimate of from 15 minutes up for the proper routine inspec- tion of a booth, depending on what he found wrong, was not disputed by the Company. The exchange repairmen on Sledge's crew on regular as- signments were given trouble call slips indicating trouble spots to which they were to go and perform necessary repairs. On completion of the first assignment they would•eall in and be routed to other assignments. Green therefore had a greater amount of freedom regarding this special assignment than did the other members of his crew. Foremen periodically in- spected the work of the men as a quality check. Because of the nature of Green's assignment, it was necessary that qual- ity checks be performed on his work shortly after he finished it. B. The Reassignment Request and the Grievance Meeting By late August, Green was dissatisfied with the job and mentioned another assignment to Sledge one morning. Sledge ignored the statement. On the following morning Green asked for another assignment and Sledge invited him into the office to discuss it privately. Sledge asked what Green's prob- lem was and Green said he wanted to be relieved from the coin routine. Sledge reminded him that they had both gone over the letter outlining the duties and requirements and asked what Green's reason was for wanting to be rid of the assignment. Green said that he was bored. Sledge said that he was sorry but that once a man was placed on the job he was not to be relieved of it. Green said that he was asking Sledge in a nice way to be relieved of the assignment since it was affecting his work because he was nervous and it was affecting his family. Sledge replied that Green had agreed to take the job as it was outlined, that he was unable to take Green off of it, and that he would have to continue in the position. Green said he hated to see Sledge get into a lot of trouble over it but that if it was trouble he wanted he would get it. Green did not deny saying this to Sledge. Shortly thereafter job steward Smith told Sledge that he had an informal grievance to take up with him concerning Green's assignment to the job. They agreed to meet on the afternoon of August 31 at the clubroom at the Company's Old Galveston Road garage. Sledge and Foreman W. E. Harper represented Respond- ent at the meeting while Smith appeared as the job steward and Green and employee Wood were present. Smith opened the meeting by stating that Green wanted to be relieved of the special assignment and they were asking Sledge to do it as a favor. Sledge asked why Green wanted to be relieved of the job and was told that Green was bored with it Sledge said that being bored with a job was no reason to be taken off it, that everybody could get bored with a job. Smith said he didn't see any reason why Green shouldn't be taken off the job, that it should be done as a favor to him. Sledge said that he couldn't relieve Green of the assignment. Smith asked why and Sledge said that the rules in setting it up had been ex- plained to Green that he was to continue on the assignment until December 31. Smith said that rules could be broken. Sledge said that he was sorry; it had been explained that they wanted a crew study for the St. Louis office to decide which coin routine to use and that he couldn't take Green off of it. Further references were made to the letter which established the length of the assignment. Smith asked if Sledge had the authority to relieve Green of the assignment. Sledge said he would rather not say. Smith asked if it was Rawlins' decision; again Sledge said he would' rather not say. Smith asked if it was Mellina's decision to keep Green on the job and again Sledge said he would rather not say. Green broke in at this point and said, "Well, I don't care whose decision it is, whether it's yours, Rawlins', Mellina's . . whoever's deci- sion it is I'm going to say he is a chicken ... s.o.b.... I will SOUTHWESTERN BELL TELEPHONE 429 ... ' him twentyfour hours a day in some way." Sledge turned to Smith and said I don't have to sit here and listen to that kind of language. Smith said nothing. Sledge turned to Green and said, "Tommy, those were strong words. Do you mean them?" Green said, "Well, I sure do, and you can expect no cooperation' from me in any way." Sledge asked what he meant by that and Green said he would find out. Sledge said the grievance meeting was over and told the men to charge their time appropriately During the meeting Foreman Harper kept notes which he gave to Sledge after the meeting. That night at home, Sledge completed a form describing the grievance meeting as to who was present, the Union's position, management's position, and the disposition. He noted that the Union was not satisfied and would appeal to the next level. Sledge also wrote a sepa- rate memorandum reciting that during the grievance meeting Green had stated that whoever's decision it was to keep him on the job Green would " ... "' him 24 hours a day in some way and that if they refused his simple request they were a bunch of "chicken ... s.o.b.'s." Green's versions of the language he used in the grievance meeting are more antiseptic and I believe studied. His first remark, according to Green, was that the assignment was boring and he did not see why Sledge could not take him off of it and Sledge referred to the letter stating that December 31 was the end of the job. Green said he told Sledge he did not care a "damn" about that "s.o.b." letter, that he wanted to be taken off the job, and if Sledge did not take him off he was "chicken.... " Sledge said those were strong words and asked if he meant them and Green responded that he did and he thought Sledge was trying to "screw" him and that any- body that tried to "screw" him he would spend 24 hours a day trying to "screw" him back. Later during his testimony Green revised the latter statement and said that he told Sledge that he thought Sledge was trying to "screw" him, that Sledge could take him off the job if he wanted to, and that anyone that tried to "screw" him that he would spend 24 hours a day thinking of a way to "screw" him back. Asked if he was sure that he used the word thinking, Green after a long pause said yes. He also stated he did not recall being asked if he meant that, although during his earlier testimony he used those words. Job Steward Smith said he referred to the letter as an "s.o.b." letter and insisted that Green used the word "think- ing" in his statement as to what he would do. Foreman Harper identified the form and the memorandum accounts of the grievance meeting as documents he had seen and concurred with on September 1, and corroborated the account of the meeting testified to by Sledge. There is addi- tional testimony that during a postsuspension meeting of Mellina with Green, that Green denied ever using any phrase concerning "screwing the Company" or "the Company try- ing to screw him," in the grievance meeting. The consistent corroborated account of the meeting given by Sledge con- trasted with the inconsistent and contradictory version by Green, and considering Green's choleric appearance as well, I credit the version of the meeting given by Sledge and Harper. Around 5 p.m. on August 31, while in the clubroom, Green apologized to Sledge for using the term "s.o.b." Sledge tes- tified that he did not accept the apology, telling Green that that wasn't all that Green said. Green insists that the apology was accepted and that the term "s o.b." had not been applied to Sledge. C. The Report and the Suspension The form and the memorandum written by Sledge and Harper's notes were clipped together and given to Secondline Supervisor Rawlins on the morning of September 1. Later that day Rawlins delivered the three documents to District Plant Superintendent Mellina telling Mellina that they had a problem at Respondent's Old Galveston Road facility. Mel- lina read the documents and asked Rawlins if he thought all the circumstances were noted and if the writeup was correct. Rawlins said he thought the incident had been fully reported Mellina called Sledge and checked the written version of the incident with Sledge over the phone. Mellina said he thought Green's conduct warranted discipline and Sledge agreed. Mellina then contacted Harper who corroborated the written version. Green's personnel file was then pulled and Mellina went through it noting what he felt were examples of Green's lack of cooperation and his general attitude. Mellina testified that, among other things, he noted the following: In 1959 Green had been denied a merit increase because of unsatisfac- tory performance and uncooperativeness, but his perform- ance improved while his grievance concerning the denial was processed and he was later given a raise, on another occasion he had claimed a back injury due to conditions which were not found to be as he reported them and the claim was denied; he had been reprimanded for getting haircuts during working hours, denied he had done so, and later admitted it. A cus- tomer had complained about his work and his rudeness; he had been suspended and the suspension lifted after Green had called a supervisor a "G---d---" liar and threatened him; in the area of personal finances, he had a history of being very slow in paying his personal telephone bill, and had told a supervisor he wasn't in any hurry to do so. Mellina admitted that there were favorable commenda- tions in the file including the fact that Green was one of the better salesmen in selling color phones and extensions to customers and had received a commendation from a cus- tomer whose phone he repaired. Mellina testified he consid- ered all these factors, together with his personal knowledge of Green, and contacted his immediate supervisor, Mr. Isom. He told Isom of the reports of the meeting and that he had reviewed Green's personnel file, and concluded that Green should be suspended for 1 day for his threats to the Company not to cooperate with it and to cause trouble. Isom agreed and Mellina called Sledge and instructed him to suspend Green for I day at the end of the day. Green was told by phone to report to Sledge at the office before 5 p.m. Sledge was talking with some other supervisors at the time and shortly came out of the office with another supervisor. Green said he wanted a witness for himself and got a crew member from the lounge. The four men walked outside and Sledge told Green he was suspended for 1 day for his remarks and threats. Green said he would work overtime. Sledge told him no, to check out, that he was suspended following his tour of duty that day. When Green reported back for duty on September 3, fol- lowing his 1-day suspension, he was taken for an interview with Mellina. The district job steward and Sledge were present. Mellina ascertained that Green understood the coin maintenance program, that he had volunteered for it, and, according to the way in which it was set up, he was due to work on it until December 31. Mellina asked for Green's version of the incident during the grievance meeting saying that according to Sledge's memorandum Green had referred to Sledge, Rawlins, or Mellina, whoever made the decision, ' The word used is obscene and may be liberally translated to "foul up" as a "chicken ... s.o.b." Green denied it, saying that he only or "screw up " referred to the letter in those terms. Mellina said the report 430 DECISIONS OF NATIONAL LABOR RELATIONS BOARD quoted Green as saying he was going to " ... .. the Company 24 hours a day. Green said that whoever said that was a liar. Green and Sledge then began arguing as to what was said. Mellina took over the conversation and referred to "similar type" occurrences in Green's personnel file. He asked Green if he could perform his duties in the coin maintenance pro- gram . Green said he was unhappy about it, that not getting off the assignment was bound to affect him. Green finally said he would do the job. Mellina told him that threats, loss of temper, and uncooperativeness were not to be permitted and that if it ever occurred again the Company would have to take action. At the close of the interview the district job steward said he felt Mellina had chewed Green out because Green had filed a grievance. Mellina denied that, saying that they were trying to get some communication. Green's personnel file was shown to Green at his request. D. Analysis Although Job Steward Smith stated he referred to the letter as an "s.o.b. letter," he is the only witness to so testify. General Counsel states that Smith's use of such term during the grievance meeting shows that the Company was mad at Green for filing the grievance and exacted discipline because of that reason or otherwise they would have disciplined Smith for using that term. I doubt that Smith used the term. Even if he did, the fact that the Company did not discipline him for vulgar language corrobarates its claim that they were not disciplining Green for the use of vulgar or obscene language, but because of his threats to do harm to the Company. Despite General Counsel's apparent thought that Sledge was not warranted in denying Green's request for overtime on September 1, Sledge was acting within the scope of the suspension which was to take effect at the close of Green's tour of duty on September 1. Green's regular assignment on the coin routine was over at 5 p.m. Any overtime would have been on other work and would have had the effect of diluting the disciplinary action of suspension for 1 day without pay. or "screw up " This was not in excess of the discipline he handed out, but rather directly in line with it. As noted above I have credited the version of the conversa- tion advanced by Harper and Sledge which was the version on which District Superintendent Mellina relied. It is clear that Mellina believed the report and, after refreshing his recollection of Green's attitude by viewing the personnel file and from his own memory of Green, felt that Green by threatening to "foul up" the Company or its supervisors really intended to cause difficulty for the Company. In the context of the language used, it would be difficult not to find that the words used were intended to convey a threat to "foul up" things. Certainly a threat to "foul up" the supervisors because of their refusal to reassign him to another job could only mean that he was threatening to "dog the work" or do something that would cause them difficulty in their official positions representing the Company. This most necessarily entails threats to do some harm to the Company. Certainly an employer has a right to maintain discipline and loyalty as long as that right isn't used as a cover to infringe on protected Section 7 rights. As I have stated above, Green impressed me as a choleric type of individual who would baldly make such threats. It is evident that the Company believed the threats and so deter- mined to enforce disciplinary action to attempt to divert or curtail Green from so acting I find and conclude in the circumstances present here that General Counsel has not proven that Respondent violated Section 8(a)(1) and (3) of the Act by its disciplining Green for his statements during the grievance meeting. I find and con- clude that the discipline was not exacted because Green had filed a grievance or participated in the meeting and was not a threat or deterrent to employees' Section 7 rights nor so intended. Accordingly I recommend that the complaint be dismissed in its entirety. The word used is obscene and may be liberally translated to "foul up"