Anaconda Aluminum Co.

336 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Anaconda Aluminum Company and Aluminum Work- ers Trades Council of Columbia Falls, AFL-CIO. Case 19-CA-5153 June 8, 1972 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS JENKINS AND KENNEDY On February 15, 1972, Trial Examiner James T. Barker issued the attached Decision in this proceed- ing. Thereafter, the General Counsel filed exceptions and a supporting brief, and the Respondent filed a brief in support of the Trial Examiner's Decision. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority 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.2 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Trial Examiner and hereby orders that the complaint be, and it hereby is, dismissed. i The General Counsel has excepted to certain credibility findings made by the Trial Examiner It is the Board's established policy not to overrule a Trial Examiner's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions were incorrect Standard Dry Wall Products, Inc, 91 NLRB 544, enfd 188 F 2d 362 (C A 3) We have carefully examined the record and find no basis for reversing his findings 2 The Trial Examiner made certain inadvertant errors in his Decision which are corrected as follows In the second paragraph of sec III, B, 1, (a), change the first "30" to "60", in the sixth sentence of sec III, B, 1, (b), change the second "pullers" to "tappers" and change "tapped" to "pulled", in the ninth sentence of sec III, B, I, (b), change "tappers" to "pullers" and "pullers" to "tappers " TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE JAMES T. BARKER, Trial Examiner: This matter was heard at Kalispell, Montana, on July 20 and 21, 1971, pursuant to a charge filed on February 25, 1971, by Aluminum Workers Trades Council of Columbia Falls, AFL-CIO, hereinafter called the Union. On May 10, 1971, the Regional Director for Region 19 of the National Labor Relations Board issued a complaint and notice of hearing alleging violations of Section 8(a)(1) and (3) of the Act. On August 25, 1971, the parties timely filed briefs with me. Upon consideration of the briefs of the parties, and upon the entire record in this case and my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT At all times material herein, Anaconda Aluminum Company, hereinafter called the Respondent, has been a Montana corporation engaged in the production of aluminum castings at its Columbia Falls, Montana, installation. During the fiscal year immediately preceding the issuance of the complaint herein, Respondent pur- chased directly from points outside Montana for use at its Columbia Falls, Montana, plant materials valued in excess of $50,000 and sold and shipped from its Columbia Falls, Montana, plant directly to customers outside Montana aluminum castings valued in excess of $50,000. Upon these facts, I find that at all times material herein Anaconda Aluminum Company has been an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The Respondent concedes that Aluminum Workers Trades Council of Columbia Falls, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. I so find. III. THE UNFAIR LABOR PRACTICES A. The Issues The principal issue in this proceeding is whether Richard Nicholls and/or Steven Westphal were terminated for engaging in protected concerted activities in their respec- tive roles as representatives of the Union. This issue involves the question of whether or not the - Respondent seized on events transpiring during B shift on February 12 as a pretext for terminating both Nicholls and Westphal and whether Nicholls in good faith withheld his services on February 12 because abnormally dangerous conditions of work existed within the meaning of Section 502 of the Act, as that section has been interpreted by the Board in Redwing Carriers, Inc., 130 NLRB 1208. The Respondent contends that both Nicholls and Westphal were terminated solely for cause deriving from their refusal to obey a direct order of supervision and their insubordination to supervision. Additionally, the Respon- dent contends that, in fact, abnormally dangerous condi- tions did not prevail on February 12 and that under the test enunciated in Redwing Carriers there was no warrant for Nicholls to have withheld his services. B. Pertinent Facts 1. The setting a. The Company's operations Paul McMaster is industrial relations manager of Respondent. Don McMillan is line superintendent with responsibility for maintaining the production of aluminum 197 NLRB No. 51 ANACONDA ALUMINUM CO. within the two buildings at the Columbia Falls plant devoted to that purpose. McMillan is involved in the formulation and execution of policy affecting the operation of his department. Working under his direction are an assistant potline superintendent and four day shift foremen who report directly to him. George Kopitzke is shift superintendent on B shift and his immediate supervisor is Fred Vosberg. Robert Holcomb is a line foreman on B shift, working under the direction of George Kopitzke. The potlines are situated in rooms 75 feet wide. Each room houses 30 pots. The pots are set in two lines or strings of 30 and the lines run parallel to each other in a north- south direction the length of the room. The pots are 22 feet 4 inches apart from inside deck plate to inside deck plate and there is a distance of 28 feet 10 inches from the inside wall of the pot in the east line to the inside wall of the pot on the west line. Each pot is 10 feet 10 inches wide. The operation pertinent to this proceeding involves the use of two crews designated, respectively, pin pullers and tappers. The pin pullers commence their work by opening the clamps which secure the pins on the pots on which work is to be performed. The pin pullers then use a large pin crane by which they pull a set or pattern of four pins per pot from a line of 30 pots per shift. Pins pulled by the pin pullers are replaced with cold pins and the pots are clamped off. Pins weigh approximately 300 pounds. A pin-tapping crew is comprised of three men. Two of the tappers remove the molten metal from the pots by means of a hose. The metal is transferred from the pot to a crucible situated on the tapping truck which is mobile and approximately 8 feet wide and 12 feet long. During the pin- tapping operation, this truck proceeds down the 22-foot 4- inch aisle which separates the two strings of pots. In the tapping process, the molten metal extracted from the pot is poured or transferred into a hauling crucible situated in the center of the aisle separating the two strings of pots. In turn, the hot metal transfer truck, operated by the hot metal transfer man, the third member of the tapping crew, drives between the tapping truck and one of the strings of pots and sets up the empty crucible which is being returned from casting. He then picks up the hauling crucible full of molten metal from the last pot tapped for transfer to casting. The pin tappers work independently of the pin pullers and the work of one is not directly dependent upon the work of the other. The work of the pin tappers progresses more rapidly than that of the pin pullers and frequently consumes less of the allotted shift time than does the work of the pin pullers. Pin tappers always work from the aisle separating the two strings of pots while, as described below, the pin pullers might work either from the aisle or wall side of the string of pots to which they are assigned. At times pertinent, Richard Nicholls was working on B shift as the hot metal transfer man and Steven Westphal was employed on the same shift as a pin puller. Each was under the direct supervision of Robert Holcomb who reported to George Kopitzke. 1 The 30-minute policy is applicable only in event of an interruption of the operation by a coffeebreak, lunchhour, termination of a shift, or the like 2 The foregoing is based principally upon the credited testimony of Don McMillan I credit the testimony of McMillan, charged with responsibility 337 b. The pitch explosion danger The Company began to experience pitch or paste explosions at its Columbia Falls plant in September 1968. The problem became acute in 1970. As a consequence, engineering feasibility studies were undertaken by the Company to examine manning and workflow schedules to minimize congestion in the work areas. Safety meetings were held, including some with the Union, and regulations were formulated and circulated to supervision setting forth the safety policy of the Company in areas of potential danger from the occurrence of pitch explosions. Trial schedules were followed which featured tappers and pin pullers working in different rooms, but this was abandoned as impractical. Finally, with respect to instances wherein pin pullers and pin tappers were working in the same room on the same string of pots, a regulation was adopted which, in sum, required pin pullers to remain 10 pots, approxi- mately 170 feet, or 30 minutes, behind any pot that had been tapped.[ However, within the limits of safety, discretion resides, under company policy, with the line foreman to adjust the operation to meet operating demands of the casting department, a coordinate opera- tion. Thus, under company policy, when pin tappers and pin pullers are working on different strings of pots no fixed policy governs and discretion resides with the pot foreman. Specifically, prior to February 12, the Company had taken the position in discussions with the Union that no safety hazard existed from the practice of pin tappers working on the backside of the pots, the pin pullers working on the inside of the pots on the opposite string, and each crew working toward each other.2 c. Potline work procedures The potline crews perform their assigned work tasks by following one of four alternate acceptable work patterns. Initially, under the first alternative, the tappers and pin pullers work on the same line of pots proceeding in the same direction with the tappers working ahead of the pin pullers. The second alternative method involves the same procedure but with the pin pullers working ahead of the tappers. When this technique is used, the tappers are required to remain 30 minutes or 10 pots behind the pin pullers. The third acceptable work method involves the tappers and pin pullers working on separate lines of pots. Under this alternative, the tappers and pullers start from opposite directions with the tappers and pin pullers working in the center aisle separating the two lines of pots in the room. When the two crews meet, the tappers shut down for 30 minutes and the pin pullers continue to work. After 30 minutes, the tappers resume their duties. The fourth acceptable alternative work method, like the third method, involves the tappers and pin pullers working on separate lines and starting from opposite directions. The tappers work in the center aisle while the pin pullers perform their work from the wallside or backside of their line of pots. When, under this method, the two crews meet in the safety area of the Company' s operations, that, contrary to the testimony of Charles Forman, a document dated August 25, 1970, setting forth the pin-pulling policy was not posted and did not constitute adopted policy on the part of the Company 338 DECISIONS OF NATIONAL LABOR RELATIONS BOARD as they progress down their respective potlines there is no shutdown and both crews continue to work.3 - d. The grievance process At all times material, Respondent and the Union have been parties to a collective-bargaining agreement covering terms and conditions of employment of Respondent's employees at the Columbia Falls plant.4 The Union has served as bargaining representative of Respondent's Columbia Falls employees for several years which have been marked by an essentially amicable relationship between the contracting parties. A contractual grievance process has existed at all relevant times under the collective-bargaining agreement and, to facilitate the three- step contractual grievance procedure, the Union has designated a grievance man and a shop steward with responsibility for filing and processing employee griev- ances. Under the practice of the Union, employees believing themselves aggrieved by an action of a foreman may speak initially with the shop steward who in consultation with the employee decides whether to grieve, and, if so, the character of the grievance. The handwritten draft griev- ance is then presented to the grievance man who prepares the grievance in typewritten form and submits it to the foreman involved. The first step of the grievance procedure involves a meeting between the foreman, other company supcrvisors, the shop steward and the grieving employee. If the grievance is not settled at this stage, a second-step meeting is held, attended by the shop steward, the grievance man, and representatives from the next higher supervisory level. Third-step grievance meetings which are held to resolve grievances not solved at the second step are between officers of the Union and upper-level supervision. The decision by the Union whether or not to proceed to the third step is made by officers of the Union. Third-step meetings are not normally attended by the shop steward and/or grievance man.5 e. Designation and activities of Westphal and Nicholls In September 1970, Steven Westphal was appointed grievance man and Richard Nicholls was designated shop steward. Both had been motivated in seeking appointment to the respective offices by a conviction that the incum- bents had not been sufficiently vigorous in the fulfillment of their designated responsibilities and in policing the collective-bargaining agreement. A few days after their designation, Westphal and Nicholls were called in by George Kopitzke who spoke with them in his office. Kopitzke showed Westphal and Nicholls some overtime charts and personnel records relating to the employees and urged Nicholls and Westphal to endeavor to resolve disputes by speaking with him before filing a grievance. Kopitzke stated that it would be 3 In finding that there is no shutdown , I rely on the testimony of George Kopitzke, Robert Holcomb, Fred Eyre, and Don McMillan 4 The record does not reflect whether the agreement contains a no-strike clause desirable to straighten matters out without filing grievances and stated that he would help Westphal and Nicholls out if they would help him out.6 During the 6-month period preceding their respective terminations, Nicholls and Westphal filed approximately 30 grievances on behalf of employees. Approximately 50 percent of those were grievances filed on their own behalf and alleged either supervisory interference with their efforts to conduct union business or personal discnmina- tion against them on the part of supervision. Relatively few of the grievances filed by Westphal and/or Nicholls during their tenure were settled at the first stage. Some were settled at the second step and many went to the third step. I. The attitude of Nicholls and Westphal Westphal and Nicholls testified that the discussions which they conducted with supervision from the first and second stages of the grievance processing procedure were usually featured by strong advocacy of position and frequent use of mild profanity on the part of both the representatives of the Union and of the Company. Neither Westphal nor Nicholls characterized the meetings as acrimonious. However, George Kopitzke testified concerning a first- step grievance meeting held with respect to a grievance filed by Westphal against Robert Lester concerning a pot- skimming incident. During the meeting, Lester denied the allegation contained in the grievance, asserting that he was skimming and not raking the pot in question. Using an obscenity, Westphal stated that he knew a rake from a skimmer. Kopitzke also testified to a similar use of language by Westphal at a grievance meeting involving Lester wherein Westphal responded to Kopitzke's denial of his grievance by saying, "Do you mean to tell me that you will deny this goddamn . . . grievance?" Kopitzke further testified that at a grievance meeting which he attended, and which was conducted by Richard Gulley, Grilley stated, in substance, that the grievance was so unimportant a character that it should not be processed under the grievance procedures. Westphal responded that, "If you people can be chicken shit, we can, too." Paul McMaster testified that he had received complaints from potline supervision to the effect that they were having .,some difficulties" with Nicholls and Westphal. Accord- ingly, he arranged with Chuck Forman, president of the Union, to have Nicholls and Westphal attend a third-step grievance meeting at which Forman and management representatives would be present. As a consequence of this arrangement, McMaster contacted Don McMillan and requested him to attend the meeting to discuss with Westphal and Nicholls the company policy concerning men leaving their work area for the purpose of conducting union business. On his part, Forman requested Westphal and Nicholls to attend the meeting for the purpose of seeing how a third-step grievance meeting was handled. In 5 The foregoing is based pnmanly upon the credited and undisputed testimony of Steven Westphal and Richard Nicholls 6 The foregoing is based on the undisputed testimony of Steven Westphal and Richard Nicholls. ANACONDA ALUMINUM CO. due course, in January 1971, the meeting was held and in attendance were Nicholls, Westphal, Chuck Forman, Darrell Smith, who presented the grievance on behalf of the Union, Paul McMaster, and Don McMillan. After the grievance portion of the meeting was complet- ed, McMaster turned the meeting over to McMillan. McMillan commenced to speak concerning the company policy relating to employees leaving their work area. In articulating the policy, McMillan made specific reference to Westphal and Nicholls emphasizing the difficulty supervisors were encountering by virtue of the manner in which Nicholls and Westphal were carrying out union business. In the course of his statement, McMillan was interrupted by Westphal. Westphal stated that McMillan was "full of bull shit" if McMillan thought Westphal was going to stand for the way the foremen were treating the men. At this point, McMaster terminated the meeting.7 Subsequent to the meeting, Paul McMaster dispatched the following report to the plant manager: In recent months we have had a great deal of trouble with two of our Union officials. One is Richard Nicholls, Shop Steward and the other is Steve West- phal, Grievance Man. These two employees have done everything possible, to use the Union's favorite expres- sion, [to] harass the Company. Their language is foul when dealing with Supervisors, they don't feel they need to have a supervisor's permission to conduct Union business while on the job and they file grievances on every phony subject they can think of, from Foremen working, to claiming they are being harassed because they are told to do their job. In an effort to correct this situation Don McMillan, Potline Superintendent, discussed the problem with Curtis Peterson, Local 320 President and I discussed it with Chuck Forman, Aluminum Workers Trades Council President. Since we were going to have a Third Step Grievance meeting, Chuck Forman requested the presence of these two employees and asked that the Company explain to them what is expected of them so far as obtaining permission to conduct Union business, etc. This was done but as usual they started using foul language, questioning the Company's right to run the plant, etc. I am sure our efforts with these two were in vain however, Mr. Forman must be a little more convinced of what we had told him prior to the grievance meeting. Following are the contents of a letter sent to me the day after this meeting: In reference to the grievance meeting held on January 6, 1971, I as Council President and as an employee also do not approve of the language used by one of the Union Men present and hope this does not put a bad reflection on the Council. I am asking that this letter should not be used in any future meetings but as an apology from myself in behalf and of the Council also. 7 In reaching the foregoing findings, I have considered the testimony of each of the participants in the meeting With the exception of Westphal, the testimony of each of the participants supports the above findings with respect to the chronology and context in which Westphal' s utterances were 339 Lewis Card, industrial relations representative , testified, in substance, that the filing of grievances under the collective-bargaining agreement was a routine matter and that no stigma is attached by management to an employee who filed a grievance . He testified further that the company records reveal that in the potlines grievances were filed in the following numbers: 1967-49; 1968-73; 1969-80; 1970-125 ; and until July 15, 1971-107. Card further credibly testified that eight former shop stewards or grievance men had been promoted to foremen. g. The warning notices (1) The late August warning In late August, prior to their assumption of duties as grievance man and shop steward, respectively, Westphal and Nicholls were late reporting to work due to car trouble. Employee Miller who rode with them was also late. Upon arriving to work, the employees reported to George Kopitzke who assigned them to the task of raking a pot. Miller went to another part of the plant to obtain his gloves and Westphal and Nicholls obtained the necessary tools preparatory to commencing their pot raking duties. However, before actually embarking upon their tasks, they informed Kopitzke that if they had to rake the pot they were going to go home sick. Nicholls stated that he wanted to see the shop steward. The shop steward was called and Nicholls informed him also that if he had to rake the pot he was going to go home sick. The shop steward was noncommittal and Kopitzke made out a slip releasing Nicholls and Westphal because of illness. Miller requested permission to leave the plant because he was dependent upon Nicholls and Westphal for transportation, and Kopitzke permitted him to leave but instructed them to obtain a sick slip from their doctor. The following evening Nicholls and Westphal reported to work on B shift and were called to Kopitzke's office. They were given a written warning charging them with failure to perform assigned duties and using illness as an excuse. Miller received no warning. Under prevailing company policy, employees who report to work late go to the bottom of the labor pool and are assigned to whatever tasks are available and necessary to be done. Nicholls testified that pot raking is considered an undesirable job and further testified that employees who report late for work are usually assigned tasks such as sweeping the floor. He conceded, however, that the assignment given such an employee is within the discretion of the foreman. Nicholls further testified that under company policy a sick slip is required of an employee only after he has been absent from work for a period of 3 days. However, Kopitzke credibly testified that under prevailing proce- dures when an employee who has reported to work requests permission to leave work due to illness it is within made I do not credit Westphal' s testimony that his utterance came in the course of a substantive discussion of the merits of the grievance which was under discussion in the early part of the meeting 340 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the discretion of supervision to require the employee to (4) The work area warnings present a sick slip upon returning to work .8 (2) The December parking warning In December 1970 Westphal and Nicholls were given a verbal warmng by Richard Gulley. Grilley called Westphal and Nicholls in and issued a verbal warmng concerning three parking lot violations by Nicholls dating back to July. Nicholls' vehicle had been previously ticketed. In verbally warning Westphal and Nicholls, Grilley stated his reluctance to issue the warning but pointed out that sufficient parking space was available for the employees and that they should refrain from parking improperly .9 Oren Barnhart, Respondent's chief of security and fire, testified credibly that under established company policy an employee who had been cited for three parking violations is given a verbal warning. He further testified that because Nicholls had received three citations he requested that Nicholls be verbally warned. Barnhart credibly testified that other employees had been similarly warned under identical circumstances but that usually after receiving citations employees abstained from further violations. Barnhart credibly testified that the notation of a parking citation remains on an employee's record and a verbal warning is issued after the third such citation without regard to the length of elapsed time.io (3) The running incident Steven Westphal testified that in December he and other employees in subzero weather ran the distance of approxi- mately 75 yards in the outdoor area between the potlines and the change house. The following day, Kopitzke informed him that he was not going to tolerate the employees running "any more" and if they did so again they would be called into the office and given a warning slip. Nicholls testified that in similar circumstances he has seen as many as 20 or 30 employees running. He testified that to his knowledge no other employee was warned on the evening in question. He further testified that he made specific inquiry of several employees on this score.ii In mid-December, approximately 15 minutes after the shift had commenced, Richard Grilley, who was acting as shift supervisor in George Kopitzke's stead, observed Westphal and Nicholls away from their assigned work area. Upon questioning them, Grilley learned that they were away from their jobs investigating whether the Company had assigned sufficient manpower to a test operation the Company was running. Grilley admonished Westphal and Nicholls that this matter should be investi- gated by them at a proper time after their own assigned work had been finished. He took Westphal and Nicholls back to their work areas. Grilley testified that "union business" is usually transact- ed at the plant when work assignments are completed. He further testified that in order for an employee to leave his work area while work is in progress he must obtain permission from his line foreman, or, if he leaves his work area after he has completed his work, but before the shift is ended, he must obtain the permission of the shift supervisor. Grilley conceded that these rules are not uniformly enforced by the various supervisors. The following day, during the shift but after Westphal and Nicholls had completed their assigned work, they left their work area to take care of "union business." Before leaving the work area, they obtained permission from their line foreman but not from Grilley, their shift supervisor. Grilley observed them out of their area and the next day issued a written warning to them charging them with leaving their work area without permission. Westphal and Nicholls explained to Grilley that they had received permission of their line foreman. However, Grilley stated that they had not received his permission and had, therefore, breached the rules.12 Robert Holcomb testified credibly that in his capacity as line foreman he had occasion to speak with Westphal about leaving his work area without permission and that the matter was resolved amicably.i3 h. Alleged disdain of supervision Earl McMasters testified credibly that after Westphal became shop steward he had occasion to warn Westphal 8 The foregoing is based principally on the credited testimony of George Kopitzke as supported by the testimony of Steven Westphal and Richard Nicholls I credit the testimony of Westphal and Nicholls only to the extent that it is consistent wi,h the above findings Specifically , I do not credit the testimony of Westphal and Nicholls to the effect that employee Miller was assigned to a different and less onerous task on the evening in question. Rather I credit Kopitzke and find that Nicholls and Westphal were mistaken in this regard I further credit Kopitzke in finding that the shop steward was called on the evening in question and that Nicholls in the presence of the shop steward articulated his intention to leave due to illness if he was required to rake the pot I have considered the testimony of Westphal and Nicholls to the effect that they were, indeed, ill on the occasion in question Nicholls testified that their illness derived from the necessity of siphoning gasoline in order to render their automobile operative 9 Richard Gulley testified that he considered the warning substantively justified but felt that it was a task appropriately within the province of the guard force 10 The foregoing with respect to the issuance of the verbal warning by Richard Gulley is based upon the testimony of Steven Westphal, Richard Nicholls, and Richard Gulley which is mutually corroborative 11 The foregoing is based on the unrefuted testimony of Steven Westphal 12 The foregoing is based on a composite of the credited testimony of Richard Gulley, Steven Westphal, and Richard Nicholls I credit the testimony of Richard Gnlley with respect to the rules governing employee freedom to leave the work area during the shift . I conclude that Westphal and Nicholls were mistaken with respect to the alleged instructions given them by George Kopitzke assertedly on the day prior to the incident involved . Kopitzke could not remember giving Nicholls and Westphal instructions with respect to the rules governing their absence from the work area during worktime, and the testimony reveals that during the period in question Kopitzke was on vacation. I am convinced that the instructions which Nicholls and Westphal received in this regard were those given them by Gulley the night prior to the incident which resulted in the issuance of a written warning. 13 Westphal was not employed under Holcomb's supervision during the last 9 months of his employment. ANACONDA ALUMINUM CO. 341 about the hazard of running between the potlines and the change house.14 Westphal responded with profanity, stating he would file a grievance against McMasters if he gave him a warning slip for running. Robert Lester, line foreman of Line 5, testified that in the late fall or early winter of 1970 he was called on to take certain actions with respect to a spillout involving a crew to which Nicholls was assigned. Lester gave certain directives and in the course of the incident Nicholls spoke to Lester. He asked Lester when the Company was going to stop having the spillouts. Lester was otherwise occupied and did not give Nicholls his full attention. Nicholls thereupon said to Lester, "I want you to stop while I'm talking to you.,, Lester proceeded with his efforts to cope with the emergency and after the matter had been remedied he spoke again with Nicholls. Nicholls stated that if Lester was not capable of handling the line he should get somebody else. Nicholls stated that he wanted the superintendent to come out to the line. Lester responded that the superintendent was not needed and that he could take care of the situation. Lester further testified that, after consultation with the Union, arrangements were made to permit union repre- sentatives to undertake certain solicitations in the work area during worktime. These fund solicitations transpired over a period of 2 or 3 weeks. Westphal participated in the solicitation. On one occasion, during the 2- or 3-week period in question, Lester observed Westphal speaking with an employee. The conversation lasted approximately 15 or 20 minutes. Thereupon, Lester approached Westphal and asked him if he was in the area on "union business." Westphal stated that he was not. Lester then requested Westphal to leave the line. Lester left the area but returned to find that Westphal had not left. Lester thereupon called Kopitzke and Kopitzke spoke with Westphal. Westphal explained to Kopitzke that he was in the area collecting funds. Westphal filed a grievance against Lester. Paul McMaster testified that pursuant to previous arrangements with the Union the Company undertook a search of lunch buckets as employees departed the plant. This search was in furtherance of an effort to stop the theft of small tools from the plant. During the course of the search, Nicholls refused the request of the guard to open his lunch bucket. McMaster, the industrial relations manager, spoke directly with Nicholls and Nicholls opened his lunch bucket for McMaster. Nicholls was only one of two employees who refused to permit the search, of his lunch bucket.15 2. The alleged unlawful conduct a. The events of February 12 (1) Westphal, Nicholls, and Kopitzke converse Early in the shift of February 12, Westphal spoke with Kopitzke protesting Kopitzke's use of a pin sander to do trucking. In effect, Kopitzke answered that he was properly using the services of the pin sander under prevailing rules. Later, Nicholls and Westphal approached Kopitzke and protested Kopitzke's use of dust one pin trucker for three pin cranes. Kopitzke defended the assignment. Thereupon, Westphal, in a comment punctuated with profanity, uttered 'a further comment concerning Kopitzke's use of the pin trucker. Kopitzke answered that he would run the shift and make the personnel placements. The conversation terminated on this note.is (2) The alleged dangerous condition On February 12, Westphal and Nicholls worked at their assigned tasks on the midnight to 8 a.m. shift. Westphal was working as a pin puller and Nicholls as the hot metal transfer man. Nicholls and Westphal were working as part of a pin-pulling crew assigned to Room 3 containing the normal 60 pots aligned in parallel strings or rows running in a north-south direction. Robert Holcomb was serving as line foreman February 12 and George Kopitzke was the shift supervisor. The pin pullers commenced pulling pins on the back or east side of the east row containing pots 31 through 60. They commenced with pot 60 and proceeded south along the row toward pot 31. In the meantime, from their position in the area between the two parallel rows of pots the pin tappers had commenced tapping metal from pot 1 working in a northerly direction toward pot 30. The crew tapped for approximately 2 hours at which point the tappers took their routine coffee break. Because of delays caused by a breakdown of the pin crane the pin pullers had not progressed as far down the row of pins as would have normally been the case. Eventually, at approximately 2:15 a.m. the tappers, who had returned from their coffee break and resumed tapping, had reached pot 19 in the west row of pots and the pin pullers had reached pot 50 in the east row. At this juncture, Nicholls approached in the hot metal truck to which he was assigned, alighted, and consulted with Westphal. Nicholls pointed out the close proximity of the two crews. Nicholls and Westphal agreed that because of the possibility of a pitch explosion or a pin blow a danger to personnel existed. They together approached Holcomb and requested permission for the pin tappers to wait 30 minutes while the pin pullers proceeded to work and the danger subsided. Holcomb offered to reroute Nicholls so as to avoid the danger area but Nicholls was adamant. Holcomb offered him a face shield and noted 14 McMasters testified that he considered running in this manner to be an unsafe practice and in warning Westphal he was merely endeavoring to reduce accidents 15 All of the foregoing is based upon the credited and unrefuted testimony of the specific supervisor involved Neither Westphal nor Nicholls testified concerning these incidents Nicholls testified, however, that he was verbally warned in January 1970 for absenteeism reflecting 10 days of absence from work in a year Nicholls did not file a gnevance because he felt his number of absences had been excessive 16 The foregoing is based principally upon the credited testimony of George Kopitzke. I credit the testimony of Steven Westphal and Richard Nicholls only to the extent that it is consistent with the foregoing findings 342 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that asbestos aprons and safety equipment was available. Nicholls still refused to enter the area and Westphal supported Nicholls' refusal. Holcomb called Kopitzke. Kopitzke arrived and Nicholls asserted that a danger from a pitch explosion existed by reason of the need for him to drive his hot metal truck within two inches of pot 50, in order to perform his duties. Pot 50 was the pot from which pins had most recently been pulled. Kopitzke did not agree and offered to reroute Nicholls and make safety equipment available to him. Nicholls asserted he would not enter the area. Westphal supported Nicholls in this decision and Kopitzke told Westphal that the Union had a grievance procedure available for resolving the issue. Westphal responded with profanity questioning the value of the grievance procedure in the prevailing circumstances. Kopitzke thereupon stated that he had to get the metal to casting and that he was going to make the decision to haul the metal. Westphal asserted that Kopitzke didn't "make any g-d- decisions". Kopitzke asserted he did and summoned Earl McMasters, a labor foreman. He instruct- ed McMasters to obtain a substitute for Nicholls. At this point, Nicholls and Westphal sought the opinion of Jack Heil, a tapper with' 13 years' experience. Heil was summoned by Nicholls from his nearby work station and they spoke together, in the presence of Westphal and in the vicinity of pot 16, some three pots south of pot 19. Heil did not speak with Kopitzke, but he agreed that a dangerous condition existed and that a delay of 30 minutes was in order. After Nicholls, Westphal, and Heil had finished their consultation, Kopitzke instructed Nicholls to return to his truck and to continue to work. Nicholls refused and, joined by Westphal, requested that Kopitzke call the safety man, Dennis Safank. Safarik was called and the discourse was essentially between Safarik and Westphal and Nich- olls. Kopitzke stood nearby but did not participate in the discussion. Safarik agreed that a dangerous condition existed and suggested a 30-minute delay.17 Kopitzke was adamant and again instructed Nicholls to return to his truck and commence to work. Nicholls stated that he would return to work but he would not go into the "danger area." At this point in the discussion Westphal told Kopitzke again that he felt that it would be dangerous for Nicholls to operate his truck under prevailing conditions. Thereupon, Westphal went to the truck, took the ignition keys and gave the keys to Nicholls. Kopitzke asked Nicholls to give him the keys but Nicholls refused saying he was responsible for the truck. After Kopitzke had renewed his request two or three times Nicholls finally 17 The evidence suggests that Safarik was not apprised of the fact that Nicholls had been offered safety equipment or an alternate route 18 The foregoing is based upon a composite of the credited testimony of Steven Westphal, Richard Nicholls, George Kopitzke, Robert Holcomb, Jack Heil, and Dennis Safarik I have also considered the testimony of William Reynolds, William Smith, and Earl McMasters I do not credit the testimony of Steven Westphal and Richard Nicholls to the effect that during their separate discussions with Robert Holcomb and George Kopitzke alternate routes and the use of safety equipment was not offered to Nicholls The record establishes that the Company, like the employees, was aware of the dangers implicit in the operation being conducted in the potlines and that safety equipment was available and had been used I find it unlikely that in the prevailing circumstances, when a work practice was being challenged on the grounds of safety, supervisors under instructions to take reasonable safety precautions would refrain from suggesting the use of safety equipment or an alternate route to minimize the gave Kopitzke the keys. As the discussion proceeded Kopitzke asked Nicholls to return to work and finally directed him either to drive the hot metal truck or to go home. Nicholls refused to resume his duties stating that he would not drive the truck in an "unsafe area." Kopitzke and Nicholls thereupon went together to the office. Westphal and Safank followed and sought Kopitzke's permission for one of them to contact Charles Forman, president of the Union, by telephone. Kopitzke refused stating that he would handle the matter and Foreman was not needed. Kopitzke stated that the phone could be used in case of emergency and that Nicholls could use the phone to contact his wife. After an interim period, Westphal returned to his duties pulling pins. The incident consumed approximately 25 or 30 minutes.18 For Nicholls to have proceeded with his work without following an alternate route would have required him to have passed within inches of the pot from which pins had just been pulled, but he would have been 10 feet 10 inches, or the width of the pot or anode from the side from which the pins had been pulled had he used the alternate route. William Reynolds, who took Nicholls' assignment on the night of February 12, testified that he considered it hazardous to drive through the area which Nicholls had described as the "danger area," but that he did so because he was ordered by supervision to do so. Reynolds conceded that the danger was not from a pin blow but from a pitch explosion. Reynolds testified that he had personally observed pitch explosions which had extended over a distance equivalent to that which he was required to traverse in the hot metal transfer truck in fulfilling Nicholls' duties. However, Earl McMasters testified that on February 12 when he dispatched Reynolds to substitute for Nicholls as the hot metal transfer man he explained to Reynolds the nature of the assignment to which he was being dispatched and asked Reynolds if he believed that a safety hazard existed. Reynolds, according to McMasters, on that occasion stated that he did not consider a hazard to exist. Nicholls testified that at the time he refused to enter the "danger area" on February 12 he did so out of the realization that a danger both from a pin blow and a pitch explosion existed. Thus, Nicholls testified that in following a normal route and considering a continuation in the normal progress of the pin pullers in a southward direction in order for him to perform his duties he would have to pass by newly pulled pots in his hot metal transfer truck. Nicholls further testified that on February 12 when he asserted dangerous conditions I find , consistent with this likelihood and the convincing manner in which Kopitzke and Holcomb testified concerning the suggestion of an alternate route and the use of safety equipment, that Westphal and Nicholls are in error in their recounting of this aspect of the events of February 12 In accordance with the credited testimony of William Smith, the casting foreman, I find that during the course of the discussion between Kopitzke, Nicholls, and Westphal, Smith came to Room 3 and informed Kopitzke, in substance, that the delay in receiving the hot metal was interfering with the production schedule I do not credit the testimony of Holcomb to the effect that the pin crane was broken down at the time Nicholls refused to haul the metal Nor do I credit testimony to the effect that discussions were earned out by Nicholls and Westphal in the very area which they defined as the "danger area " The testimony of the participants in the conversations in question is to the effect that the conversations transpired in an area further removed ANACONDA ALUMINUM CO refused to enter the "danger area" he was aware of previous injuries suffered by personnel from pitch explo- sions and pin blows (3) The suspension of Nicholls Kopitzke instructed Nicholls to go to the Line 2 lunchroom and wait. Kopitzke then went to his own office. He made out a timecard and issued a pass permitting Nicholls to leave the premises He then went to the Line 2 lunchroom and gave Nicholls the pass, requesting Nicholls to leave the plant immediately. Nicholls did so. (4) The termination of Nicholls and Westphal After Nicholls had left the plant, Kopitzke spoke with his superior, Fred Vosberg. He apprised him of the events which had transpired and recommended that both West- phal and Nicholls be terminated. Kopitzke testified that the "basic reason" for the recommendation was Nicholls' refusal to haul the metal and Westphal's refusal to give him the "transfer key," thus disobeying a direct order. Westphal and Nicholls were next scheduled to work under the Company's alternating shift arrangement on February 15 They were both advised by a letter dated February 15, dispatched by certified mail, that their employment had been terminated. Additionally, each had been informed telephonically not to report to work as scheduled In the meantime, in the interim between February 12 and February 15, Don McMillan, line superintendent with whom ultimate decisional responsibility for terminating Nicholls and Westphal resided, spoke with Vosberg, Paul McMaster, and George Kopitzke. Supervision recom- mended the termination of Nicholls and Westphal. McMillan, who was conversant with the employment record of each individual, concurred in the recommenda- tion and made the decision to effectuate the terminations. He so informed Paul McMaster and his own immediate superior. In speaking with McMaster, McMillan told him that both Westphal and Nicholls had refused an order from supervision and on that basis alone he felt the Company was on sound ground in terminating Nicholls and Westphal. McMillan also stated to McMaster that "in terms of their past record" he had no doubt in his mind that the two individuals had had "every chance" and should be terminated. In due course, by separate letters dated February 25, Paul McMaster responded to earlier inquiries made by the Kalispell Employment Service relating to the termination of Westphal and Nicholls. With respect to Westphal, McMaster wrote in pertinent part. During the course of his employment Mr. Westphal has been repeatedly warned for absenteeism, insubordina- tion, refusal to work and direct and flagrant disregard for instructions by his supervisor. On his final night of 19 See also In 3, infra 20 Nicholls testified to another incident in December 1970 and one in February 1971 which were factually dissimilar in that the crews, in the first instance, were working in the same aisle and, on the latter occasion, the crews were working on the same string of pots John Eyre, the foreman involved in the December incident described by Nicholls, testified that had 343 employment (2-12-71) his conduct was insubordinate, abusive and completely intolerable. In his response concerning the termination of Nicholls, McMaster wrote as follows: This man was hired by Anaconda Aluminum Company on June 22, 1968. During his employment he had been warned about many things. Examples: Warning for absenteeism. Warning for refusing to do work. Warning for direct and flagrant disregard of supervisory instruction. Warning for refusing to obey parking lot rules. Refused to submit to a lunch bucket check as other employees did without question We discussed this man's attitude with the President of the Union but to no avail. On February 12, 1971 Mr. Nicholls refused to haul metal to Casting. He claimed it was unsafe because of pin pulling in the area. Although this work has been done for for 15 years at this plant the supervisor offered Mr. Nicholls any safety equip- ment he wanted and an alternate route to haul the metal if he wished, but he still refused. This was the straw that broke the camel's back. In view of Mr. Nicholls past record and this outright refusal to perform his job, he was terminated. b. Alleged disparate work procedure George Kopitzke testified that in his own experience when pin pullers have been at the backside of the string and tappers at the front side he has kept the operation going as he did on February 12.19 Additionally, Kopitzke testified that on the evening of February 12 in Room 6 the tapping operation was being conducted without complaint in the identical manner that the tapping operation was being conducted in Room 3. However, Richard Nicholls testified that on one occasion prior to February 12, in a circumstance involving another foreman, he had inter- vened in circumstances closely analogous to those prevail- ing on February 12 and the foreman had shut down to permit the pin pullers to work past the "danger area." 20 Conclusions Contrary to the General Counsel, I find that Respondent did not violate the Act in first suspending Nicholls and Westphal and then terminating them. Initially, I find that the refusal of Nicholls to operate the hot metal truck was not justified by reason of the asserted existence of abnormally dangerous working conditions at the time of his refusal. The authoritative standard established by the Board for the application of Section 502 is set forth in Redwing Carriers, Inc., 130 NLRB 1208.21 In Redwing Carriers, Inc., the Board said: It is necessary first to clarify the meaning of the term "abnormally dangerous conditions" as used in Section the pin pullers been working on the backside of the pots he would have continued the operation Employee John Eder also testified to events factually dissimilar wherein operations were halted to permit the pin pullers to pass 21 See also Stop & Shop, Inc, 161 NLRB 75, 76, at fn 3. 344 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 502. We are of the opinion that the term contemplates, and is intended to insure, an objective, as opposed to a subjective, test. What controls is not the state of mind of the employee or employees concerned, but whether the actual working conditions shown to exist by competent evidence might in the circumstances reason- ably be considered "abnormally dangerous." The evidence establishes that work pertinent herein was of an inherently dangerous nature, and that Nicholls, as well as Westphal and the crew members with whom they worked, recognized the character and extent of the danger associated with their work. The General Counsel contends, in substance, that the inherent dangers which existed in connection with Respon- dent's operation on February 12 were rendered abnormally acute by reason of the closer than normal proximity of Nicholls' assigned work tasks, as well as those of other pin tappers, to a newly pulled pot. By reason of this proximity, the General Counsel contends, normal danger from injury due to pitch explosions and pin blows was increased and Nicholls recognized this fact. It was for this reason, asserts the General Counsel, in substance, that Nicholls on his own behalf, on behalf of other crew members, and for the purpose of establishing a precedent applicable prospective- ly to the pin-pulling operation, in good faith withheld his services. The evidence fails to sustain the General Counsel's contention. Absent the emergence of new factors or circumstances which change the character of the danger, work which is recognized and accepted by employees as inherently dangerous does not become "abnormally dangerous" merely because employee patience with pre- vailing conditions wears thin or their forbearance ceases 22 A situation applicable to the instant case is found in Fruin- Colnon Construction Co. There, a construction operation of a hazardous nature was being carried out when a work stoppage occurred to contest prevailing working condi- tions. The Board adopted the Trial Examiner's conclusion therein to the effect that Section 502 of the Act was applicable and that abnormally dangerous working condi- tions did exist at the time of the work stoppage. The Trial Examiner in Fruin-Colnon had found that previously existing conditions had been altered by the emergence of three new elements which rendered the work on the construction project on the day in question abnormally dangerous under the objective test of Redwing Carriers, Inc. The Eight Circuit Court of Appeals denied the Board's Order, finding insufficient record support for the Board's conclusion that normal working conditions had been altered by the existence of the three new elements relied upon by the Trial Examiner. In refusing to enforce the Board's Order, the Court noted, in effect, that normal working conditions did exist at the time of the work stoppage and that to alleviate dangers implicit in the work "hazardous even under optimum conditions," the Compa- ny had taken certain safety precautions. The Court found that employees who had engaged in a work stoppage had engaged in unprotected activity and were not entitled to reinstatement23 In so finding, the Court enunciated the 22 N L R B v Fruin -Colnon Construction Co, 330 F 2d 885 (C A 8), denying enforcement of 139 NLRB 894. rule that, if employees acting concertedly leave their job believing in good faith abnormally dangerous working conditions prevail, they run the risk of discharge for engaging in a "strike" in contravention of a "no-strike" clause in their collective-bargaining agreement or for participating in the unprotected activity of dictating to management their own terms and conditions of employment, should proof later of the physical facts failed to support their prior belief. [Emphasis supplied.] In analogy to Frum-Colnon it may not be found that Nicholls was protesting against a work situation without precedent, or against work which harbored danger of an unexplored or unknown character. Rather, the unrefuted testimony of supervision establishes that the pin pulling operations in Room 3 on the night of February 12 was being carried out in accordance with one of four acceptable work patterns, that the pattern had been utilized on previous occasions, and that work situations similar to that prevailing on the night in question had previously emerged. Under the pattern being utilized, the, 10-pot or 30-minute rule was not applicable. Inherent in the pattern being followed on the night in question in Room 3 was the possibility that the hot metal transfer man and other crew members in the performance of their work tasks would find themselves in the very juxtaposition to a newly pulled pot as did in fact develop. The credible evidence of record is to the effect that previously when this circumstance did evolve, work was continued and that by reason of the separation accorded by the depth of the pot from which the pins had newly been pulled no unusual danger to personnel existed. Evidence adduced by the General Counsel purportedly showing that the refusal of supervision on the night of February 12 to adhere to the 10-pot or 30-minute rule was unprecedented does not bear up under close scrutiny for the examples cited were for the most part factually distinguishable. In the one instance wherein no factual distinctions prevailed neither Kopitzke nor Holcomb were the supervisors involved and, as the evidence reveals, a degree of discretion resided with the supervisor in charge of the shift. The existence of a rule may not be fashioned from this one instance of extra precaution. Moreover, of significance with respect to the issue of whether or not abnormally dangerous working conditions did exist on the occasion in question, it is pertinent to note that in addition to the empirical considerations which tend to support the judgment of supervision to the effect that the practice utilized on the night of February 12 was an acceptable one when viewed from the standpoint of safety, the objective facts also tend to support the Respondent's conclusion that the 10-pot or 30-minute rule was inapplica- ble in the prevailing circumstances. Thus, within the limits of the inherently dangerous nature of the work which Nicholls routinely performed, the 10 foot 10 inch separa- tion from the newly pulled pins, which would have been accorded Nicholls on the night of February 12 in the fulfillment of his designated work tasks, served to reduce the danger from a pitch explosion or pin blow. Additional alleviation from danger was accorded by the superstructure 23 The work stoppage had been in the face of a no-strike clause in the collective-bargaining agreement. ANACONDA ALUMINUM CO. of the pots and enclosures on the hot metal truck itself. The availability of face shields, asbestos clothing, and gloves reduced the danger further. With respect to Nicholls' earnest contention that his action was taken, in part, to protect other members of the crews assigned to work in Room 3 on the night in question, it is pertinent to observe that the evidence reveals that when the disputation arose the tapping crew had reached a point opposite on its line of pots to the position which the pin pullers had reached on its separate line. Thus, from that point on during the balance of the work night the distance separating the two crews in the performance of their separate work task would have become greater. Manifestly, as a pin blow occurs at the moment the pin is extracted from the pot, there was, when Nicholls protested, no immediate or imminent danger from a pin blow. Only the danger of pitch explosion then prevailed. As I have found, this danger, in the judgment of management, as reflected in the policy of supervision to continue work under the prevailing circumstances when the two crews were working on separate lines of pots in opposite directions, involved a known but acceptable degree of danger. For the balance of the night, as the two crews worked down their assigned string of pots in opposite directions, actual danger ansing from proximity of the crews would have diminished as the night progressed. Thus, it was with the immediate danger that Nicholls was most concerned and I find that the danger which existed was the normal one implicit in the potlines operation. It was not "abnormally dangerous" within the meaning of the Act. Employees may not refuse to perform their assigned work tasks or engage in a work stoppage while remaining on the job and determining for themselves whether or under what conditions they will work.24 Nonetheless, this is what Nicholls endeavored to do and he successfully delayed the transportation of a crucible of ore, impinging on the normal progress of the work schedule in casting.25 It is well established that neither incumbency in union office nor position of leadership in an employee group accords insulation from discharge for acts of insubordination.26 In sum, I find that the evidence failed to support the General Counsel's contention that an abnormally danger- ous working condition prevailed when Nicholls refused to perform his work and that, by refusing to perform work which was assigned to him and thereby interfering with the normal work schedule of the Company, Nicholls engaged in conduct which rendered him vulnerable to lawful discipline or discharge.27 As I review the record, the issue does not turn on whether or not supervision offered Nicholls safety equip- ment or an alternative route over which he might perform his assigned duties. Although I find that he was offered 24 Auto Workers v Wisconsin Employment Relations Board, 336 U S 245; Honolulu Rapid Transit Company Limited, 110 NLRB 1806, Valley City Furniture Company 110 NLRB 1589, Personal Products Corporation 108 NLRB 743 25 The record does not support any inference that the molten metal in the crucible, or any equipment, was damaged as a consequence of Nicholls' refusal 26 See Stop & Shop, Inc, supra, enfd 377-F 2d 59 (C A 1), A Borchman & Sons Co, 174 NLRB 203, Reed, et al v N -L R B, 430 F 2d 331 (C.A 10), setting aside 175 NLRB 825 345 both, it is nonetheless pertinent to observe that Nicholls was sufficiently experienced to have been aware of both of these alternatives had they not been offered. He sought neither, although, given the distance factor, resort to either alternative would have greatly reduced the danger of injury to him. While there is basis in the record for concluding that the use of an alternative route would have involved impracticalities, there is less record explanation as to Nicholls' lack of interest in securing for his own use safety equipment which was known to be available. While an evaluation of Nicholls' "good faith" is not requisite upon the instant record, the evidence nonetheless warrants the conclusion that Nicholls sought to eschew the normal and available contractual grievance process for resolving work disputes and chose, instead, to highlight the dangers inherited in the pin pulling pattern which the Company was using on the night of February 12 by refusing to work, as ordered. In so doing, he risked the consequences of his actions. His suspension followed and, in the circumstances, was lawful. Thus, in refusing the order of Kopitzke to perform his assigned work task, Nicholls was guilty of insubordination, a status which Westphal acquired through his refusal to honor Kopitzke's demand that he return the keys to the hot metal truck in order to enable Nicholls to obey the order to return to work. As found, employees may not remain on the job determining for themselves whether or under what conditions they will work.28 This Nicholls, abetted by Westphal, endeavored to do and they thus accorded supervision basis for lawfully terminating them. Although Kopitzke abstained from the action he could lawfully have taken, he forthwith recommended termina- tion of both Nicholls and Westphal. It is clear from the record that his recommendation was formulated solely from the conduct of Nicholls and Westphal on February 12. After considering Kopitzke's recommendations, and following due deliberation, Kopitzke's superiors, McMillan and McMaster, concurred. The General Counsel contends that, in terminating Nicholls and Westphal, the Respondent was motivated, at least in part, by a desire to rid itself of the aggressive grievance processing and contract enforcement techniques pursued by Nicholls and Westphal in their respective positions as representatives of the Union. I view the evidence differently. Carefully considered, the record reveals that the decision to terminate Nicholls and Westphal rested exclusively on their conduct on February 12. The insubordination of Nicholls and Westphal would have resulted in their discharge absent any background of friction between them and supervision deriving from their grievance processing attitudes and techniques. Given the background of aggressive grievance processing, thefact of their insubordi- 27 Evaluation of employees , including the union safety man, that an "unsafe condition" existed-even granting the connotation of `less safe and normal"-is not alone sufficient to establish that the conditions were "abnormally dangerous " Countervailing testimony by supervisors equally as experienced was to the effect that the conditions justified a continuation of work by all members of the crews and that such a continuation was consistent with reasonable safety practices. Neither group of witnesses was shown to possess more, or less, experience in the matter than the other 28 Auto Workers v. Wisconsin Employment Relations Board 336 U S 245. 346 DECISIONS OF NATIONAL LABOR RELATIONS BOARD nation on February 12 is not diminished and the justification for the Company's actions, taken solely because of insubordination, does not disappear. While fragments of the record, notably portions of McMillan's explanation, suggest that Company resentment of Nicholls and Westphal in their role in processing grievances contributed to the decision to effectuate their termination, the conclusion required from the total context of the record is that high level supervision found merit in Kopitzke's recommendation that termination be effectuated on grounds of insubordination and in evaluating his recom- mendation found no mitigating background warranting a different disposition. This is quite a different matter from that urged by the General Counsel. This is not a case where an incident occurred according an employer a gloss of justification to effectuate a termination on which he was already bent. Rather, the record reveals company forbearance despite a compilation by Nicholls and Westphal of a not altogether satisfactory work record as employees. Added to this was their disposition as union functionaries toward retributive use of the grievance process and toward relegating to themselves a marked degree of license in their personal conduct during worktime. And, as the record reveals, this assumption of privilege during worktime did not always relate to their performance of union duties. Their union offices did not, of course, insulate them from discipline or termination for breach of reasonable and nondiscriminato- ry rules and, as I view the evidence, it reveals that the Company was evenhanded with both Nicholls and West- phal in endeavoring to convince them to carry out their union assignments in accordance with the rules earlier established and reasonable in nature. I am unable to find in the record any pursuasive evidence to the effect that disciplinary actions taken by the Company against Nicholls or Westphal during their tenure as union representatives was improperly motivated or calculated to limit their effectiveness in processing grievances or serving as voice for the employees. Indeed, there is an undertone in the record suggesting that the Company was tolerant of them merely because they held union office. In this connection, I view as indicative of the Company's good faith and forbearance the efforts of the Company in seeking the aid of Chuck Forman, the union president, in correcting the errant propensities of Nicholls and Westphal which were not proper attributes of permissible grievance zs Stop & Shop, Inc, supra, Chevron Chemical Company, 191 NLRB No 53, Mitchell Transport, Inc, 152 NLRB 122, affd 358 F 2d 281 (C A 7), A. handling techniques. It would not be consonant with the weight of the evidence, in my view, to find that the Company had sought by this approachment to impede Nicholls and/or Westphal in pursuit of the legitimate aspects of their respective offices. Rather, the finding that is required is that the Company sought merely to curb demonstrable abuses. While the Company sought greater civility from Nicholls and Westphal in the presentation of grievances, they did not seek to preclude grievance presentation. While the Company enforced existing rules governing the in-plant movement of Nicholls and West- phal for the purpose of handling union business, these rules are not shown to have been improper in motivation, scope, or substance. While the Company protested the filing of "spite" grievances patently devoid of merit, this hardly noted an intrusion into the Section 7 guarantees to employees that they be represented by a collective-bargain- ing agent of their choosing. Inapposite are cases cited by the General Counsel establishing the wide latitude and equal status with supervision to be accorded union representatives in the processing of employee grievances. This right was not an issue. Only the issue of abuse was raised, and I find that even that consideration was not a moving cause of termination. The net effect of the record evidence, as I view it, is that in reviewing the discharge recommendation of the supervi- sor directly involved in the acts of insubordination, McMillan and McMaster found the recommendation of Kopitzke mentonous and considered the prior conduct revealing the propensity on the part of Nicholls and Westphal to flaunt rules and to relegate to themselves supervisory authority. They found no bases for counter- manding Kopitzke's recommendation and the terminations were effected. I find no violation of the Act resulting from this action.29 CONCLUSIONS OF LAW The General Counsel has failed to establish by a preponderance of the evidence that the Respondent violated Section 8(a)(1) and (3) of the Act in terminating the employment of Steven Westphal and Richard Nicholls. ORDER. The complaint is dismissed in its entirety. Borchman & Sons Co, supra; see also Reed v. N LR B., supra, Mead & Mount Construction Co v NLRB, 411 F.2d 1154 (C A 8)