Illinois Institute of Technology

ILLINOIS INSTITUTE OF TECHNOLOGY 375 Illinois Institute of Technology and Claude Murphy. Case 13-CA-10672 February 11, 1972 DECISION AND ORDER BY MEMBERS FANNING, JENKINS, AND KENNEDY On October 29, 1971, Trial Examiner Ivar H. Peter- son issued the attached Decision in this proceeding. Thereafter, the General Counsel filed exceptions and a supporting brief, and Respondent filed exceptions, together with a brief in opposition to General Counsel's exceptions. 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 au- thority in this proceeding to a three-member panel. The Board has considered the record and the Trial Examiner's Decision in light of the exceptions and briefs and has decided to affirm the Trial Examiner's rulings, findings, and conclusions and to adopt his recommended Order. In agreeing with the Trial Examiner's findings, we further note that the statement in question, attributed to the Respondent, to wit, "he [Murphy] made trouble by going to the Labor Board on me" does not constitute a clear, unambiguous threat of reprisal in the circum- stances of this case. In determining whether an ambigu- ous statement made by an employer implies any threat of reprisal, we consider such factors as the substance and context of the statement, and the position of the speaker in relation to his audience. The complaint does not allege that Murphy was dis- charged or otherwise disciplined because he had al- legedly resorted to the Board's processes. It follows therefore that the statement in question, if it is indeed a threat, must be considered as a general threat not related to the discharge. In the circumstances herein, we find the statement not coercive. Murphy and two union stewards approached Re- spondent's chief superintendent, Parduhn, and ap- pealed Murphy's dismissal. A steward suggested a compromise which Murphy rejected. At that point, Parduhn made the statement that Murphy had made trouble by going to the Labor Board. However, Par- duhn immediately urged that the next step of the griev- ance procedure be followed. A grievance was filed and in settlement of the grievance Parduhn decided to sus- pend Murphy for 2 weeks rather than adhere to the earlier discharge decision. In view of the above facts, together with the absence of evidence of union animus or other unfair labor prac- tices, and in light of an apparently amicable 21-year bargaining relationship, we are not persuaded that the Respondent, by Parduhn's statement, has violated the 195 NLRB No. 72 Act, and we agree with the Trial Examiner's recom- mendation that the complaint be dismissed in its en- tirety. 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 be dismissed in its entirety. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE IVAR H. PETERSON, Trial Examiner: This case was tried at Chicago, Illinois, on September 7, 1971. The charge was filed by Claude Murphy, an individual, on June 8 and the com- plaint was issued on August 9. The principal issue is whether a statement allegedly made by Walter Parduhn, the director of the Respondent's physical plant, was violative of Section 8(a)(1) of the Act. Upon the entire record, including my observation of the demeanor of the witnesses, and after due consideration of the briefs filed on October 19 by Counsel for the General Counsel and the Respondent, I make the following:' FINDINGS OF FACT I JURISDICTION The Respondent is a private, nonprofit Illinois corporation with its principal office and place of business in Chicago, Illinois, where it operates an educational institution. During the past year Respondent purchased and had delivered to its Chicago location goods and material valued in excess of $50,000 of which more than $50,000 worth were transported to that location directly from States of the United States other than the State of Illinois. The Respondent admits, and I find, that it is engaged in commerce and that its operations affect commerce within the meaning of Section 2(6) and (7) of the Act. I further find that College, University and School Em- ployees' Union, Local 321, affiliated with Service Employees' International Union, is a labor organization within the mean- ing of Section 2(5) of the Act. II THE UNFAIR LABOR PRACTICES A. Background On June 7, Murphy, who was employed in the Institute's maintenance department, was discharged by his foreman, Soren Jensen. Murphy immediately went to Ernest Brandon, also an employee and a steward for the Union. Murphy ex- plained to Brandon that the stated reason given by Jensen for firing him was that he stayed in the washroom too long. Brandon and Murphy went to consult Benjamin Bennett, also an employee and a Union steward. The three of them decided to talk with Henry Wurst, then assistant superintendent of buildings and grounds. They related the events that had oc- curred and Brandon stated that he believed that the penalty of discharge was too harsh in light of Murphy's age (which was 55) and 12 years of service. Wurst replied that the matter was out of his hands since Foreman Jensen had effected the discharge and that an appeal would have to be taken up with ' The unopposed motion of Counsel for the General Counsel to correct the transcript in one respect, filed on October 22, is hereby granted. 376 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Mr. Parduhn. Brandon, Bennett, Murphy, and Wurst left the latter's office and met Parduhn as he was coming back from lunch. Parduhn stated that he was "expecting" Brandon inas- much as he was aware that Foreman Jensen had fired Mur- phy allegedly for staying too long in the washroom. Brandon then inquired what "constitutes too long? Five minutes, 10 minutes, 15 minutes, or 20 minutes?" Parduhn replied, so Brandon testified, by inquiring "are you trying to give me trouble, Brandon?" and stated that as far as he was concerned Murphy was discharged. According to Brandon, Parduhn stated that he had called Murphy back to work (this was in March) at the urging of the Union and when he did not wish to call him back, and that then Murphy had given him "trouble" by "going to the Labor Board on me." Brandon suggested that Murphy be given a 2- or 3-day suspension or docked 30 minutes Mur- phy, however, rejected this proposed compromise because in his view he had done nothing wrong. Parduhn rejected the proposed compromise and stated that he would uphold Jen- sen's action. Brandon's account is substantially corroborated by Bennett and Murphy. Wurst could not recall that Brandon had argued that the penalty was too harsh in light of Murphy's age and length of service. Wurst denied that Parduhn had stated that Murphy had given Parduhn trouble in the past because the Union had pressured Parduhn to call Murphy back to work. Wurst also denied that Parduhn made any reference to Murphy having caused Parduhn "trouble" by going to the Board Parduhn denied that he made any reference to the effect that Murphy had caused him problems in the past, and he specifically denied that he called Murphy back to work because the Un- ion "made" him do so. Moreover, he stated he made no reference to Murphy being a troublemaker or having caused him trouble by having gone to the Board; he further denied that he told Murphy that he stated that he considered Mur- phy discharged and he could pick up his check that after- noon. B. Conclusions As is readily apparent, the resolution of the factual issue turns on an assessment of the relative credibility of the wit- nesses presented by counsel for the General Counsel and those presented by the Respondent. Counsel for the govern- ment argues that for a number of reasons detailed in his beef the version presented by his witnesses, considered in the light of the probabilities of the situation, should be believed. As to whether the statement, if made, constitutes a violation of Section 8(a)(1), counsel for the government urges that it does constitute such a violation because it "tends to discourage those employees' access to the National Labor Relations Board." On the other hand, counsel for the Respondent urges, first, that the statement was not made; secondly, he contends that even if made the statement would not consti- tute a violation of Section 8(a)(1) because it does not consti- tute a promise of benefit or threat of force or reprisal and is protected, therefore, by the provisions of Section 8(c) of the Act. As to the factual issue, I am persuaded, after careful con- sideration of the testimony, that the version given by the witnesses for the General Counsel is the more believable and is consistent with the realities of the situation. In this regard, I note that Brandon and Bennett are still in the employ of the Respondent and, although their disinterestedness is subject to some question in view of the fact that both are stewards of the union, I nevertheless believe that their testifying adversely to their employer enhances the worth of their testimony. See Georgia Rug Mill, 131 NLRB 1304 at 1305, fn. 2, and Gate- way Transportation Co., Inc., 193 NLRB No. 1, TXD It is, of course, clear that the Union did file a charge on February 10 in which Murphy and other employees were specifically named. It would appear reasonable that the filing of this charge, which was served upon the Respondent and was known to Wurst and Parduhn, probably generated some hos- tile feeling on the part of the Respondent's officials toward the individuals named therein, including Murphy. Moreover, at the time Murphy filed his charge on June 8 he gave a sworn affidavit to a Board agent in which he stated that Parduhn did, in fact, make the statement in issue. This would appear to indicate that the day after the statement Murphy had a reasonably reliable recollection of what Parduhn had said the previous day.' Counsel for the Respondent states that since it is obvious that there is no logical way in which the alleged statement by Parduhn could be reasonably interpreted to constitute a clear unambiguous threat of reprisal, the only case law which would appear to be even remotely applicable to a situation such as the one at hand is that dealing with statements alleged to be coercive, which are, to one degree or another, ambigu- ous as to the intent of the speaker with respect to the one to whom it is directed." In support of this contention he cites Kuhne Simmons Construction Co., 150 NLRB 1614, J. Ziak & Sons, Inc., 152 NLRB 380, and Coast Radio Broadcasting Corp., 155 NLRB 479. In Kuhne, a union business agent was charged with having coerced and restrained a union member in violation of his Section 7 rights by stating that the mem- ber's instigation of a charge against the Union would "cost" him. The Board adopted the Trial Examiner's Decision, in which he found that the statement was not coercive, stating (at p. 1619), in "the context, there is no reason to assume that 'cost' refers to a loss to be suffered by [the complaining party in his capacity of an employee ... " In Ziak, the Trial Exam- iner had found that certain remarks of a union official during a union meeting were such as to unlawfully threaten certain members "with reprisals, either bodily or financial, or both," in that they were designed to create a "dangerous" mood in his audience, that they "implicitly" contained a threat of harm to certain members and that "the threats made by the union official and the membership were not neutralized by subsequent statements." The Board, disagreeing with the Trial Examiner, stated that it was "unable to infer from the testimony as to the mood of the audience and their comments that Hagerty's remarks constituted threats of either bodily or financial harm, or were designed to create an atmosphere hostile to Farrell and the others " The Board stated that the remarks in question "were ambiguous." Counsel urges that the same consideration applies here, pointing out that Mur- phy filed a formal grievance, filed a charge with the EEOC, and filed the instant charge, "a scant 24 hours after the al- leged threatening statement was made to him." In Coast Ra- dio, the contention was made that a union representative violated Section 8(b)(1)(a) of the Act by reason of the lan- guage used in a telegram sent to employees in the bargaining unit that the Union represented. The Board, however, re- jected this contention stating that in its view "the wording of the telegram is ambiguous," because it did not "on its face contain any unlawful threats, and that the General Counsel failed to present evidence as to the context which would establish the alleged unlawful threat " ' At the hearing, counsel for the Respondent suggested that Murphy was not credible because the term "union activity" was used in the wording of the June 8 unfair labor practice charge, whereas Murphy testified that he did not intend to imply that he was discriminated against by the Respondent for "union activity " This charge, however, was worded by the Board agent and Murphy's affidavit plainly shows the events that occurred ILLINOIS INSTITUTE OF TECHNOLOGY 377 In my opinion, counsel for the Respondent has the better of the argument. I believe it is very understandable that Par- duhn would regard Murphy's action in going to the Labor Board as having caused him some trouble . I am unable, how- ever, to construe it as meaning that any employee who exer- cises his right to file charges with the Board would be visited with reprisals or threats of reprisals . Nor do I believe that Murphy so understood the statement in view of the fact that he promptly filed a grievance, visited the office of the EEOC, and then filed his charge with the Board . His affidavit plainly shows that what he was protesting was the 2-week layoff allegedly for spending too much time in the washroom. He further stated that he had "been harassed ever since I re- turned to work, mostly by" Soren Jensen , his foreman. Ac- cordingly, I shall dismiss the complaint in its entirety. Upon the foregoing findings of fact and the entire record, I make the following: CONCLUSIONS OF LAW 1. Illinois Institute of Technology is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. College, University and School Employees' Union, Lo- cal 321, affiliated with Service Employees' International Un- ion, is a labor organization within the meaning of Section 2(5) of the Act. 3 The General Counsel has failed to establish by a prepon- derance of the evidence that the Respondent engaged in the unfair labor practice alleged in the complaint. Upon the foregoing findings of fact, conclusions of law, and the entire record in the case, and, pursuant to Section 10(c) of the Act, I issue the following recommended: ORDER The complaint herein is dismissed in its entirety.