Jos. T. Ryerson & Sons, Inc.

JOS. T. RYERSON & SONS, INC. 461 Joseph T. Ryerson & Sons, Inc. and Local 2212,United Steelworkers of America, AFL-CIO. Case 8- CA-5817 October 2, 1972 DECISION AND ORDER On August 13, 1970, Trial Examiner Marion C. Ladwig issued the attached Decision in this proceed- ing. Thereafter, the Respondent filed exceptions and a supporting brief. The Board has considered the record and the Trial Examiner's Decision in light of the exceptions and the brief and has decided to affirm the Trial Examiner's rulings, findings, and conclusions only to the extent consistent herewith. 1. Despite the now protracted litigation and de- liberations, this is a simple dispute. Employee Beasley is a long-service employee of the Respondent, and he is recording secretary for his Union. His Employer and his Union are parties to a contract which prohib- its the conduct of union business on worktime:' The Union agrees that neither it nor any of its officers or members will ... engage in any Union activity either (a) on Company time, or (b) on the property of the Company in any manner which shall interfere with the Company's operations. This provision shall not be construed to prohibit those meetings and activities specifically provid- ed for herein concerning the adjustment of griev- ances. [Article II, section 3.] In March 1970, Beasley was given a written repri- mand for an asserted breach of that contract commit- ment. Beasley's supervisor resolutely maintains that Beasley had been caught redhanded, as it were, work- ing on union documents at his workbench at a time when scheduled production work should have been performed. Beasley stoutly denies the allegation. A grievance was, of course, promptly filed by the Union. It was denied at the first two steps, whereupon further processing was held in abeyance, by mutual agree- ment, for reasons having nothing to do with the merits of the grievance. Meanwhile, the instant charge had been filed. The General Counsel thereafter issued the complaint alleging that Respondent violated Section 8(a)(1). This short and plain dispute emphasizes the fun- ' Our dissenting colleagues make the charge that an arbitrator will be unable to determine whether this clause is, per se, an unlawfully broad restriction of employees' Sec. 7 rights. But neither can that issue be resolved in this proceeding. The question was not raised by the charge, alleged in the complaint, litigated by the parties , decided by the Trial Examiner, or pre- sented to us by exception or brief. The question whether a contract clause which, on its face, violates the Act may nevertheless serve as the predicate for abstention pursuant to Collyer Insulated Wire, 192 NLRB No. 150, is simply not presented. damental soundness of our growing practice to ab- stain from action where grievance and arbitration procedures are available to resolve a dispute equally cognizable in either forum. Had the parties not been diverted from the contractually agreed forum first in- voked, this dispute would by now surely be not merely resolved, but long since forgotten. These parties have bargained and contracted, fruitfully and amicably, for 30 years. No shred of evidence in this record suggests that they are incapa- ble of resolving this dispute, quickly and fairly, pur- suant to their contractual undertakings which culminate in binding arbitration. This allegation of the complaint will be dismissed, subject to reservation of appropriate jurisdiction, National Radio Company, Inc., 198 NLRB No. 1.2 2. The remaining alleged violation of Section 8(a)(1) arises from an equally straightforward dispute. About 2 weeks after the events described above, Beas- ley conferred with Respondent's general manager, Reiker, regarding the grievance of an employee, one Chilcher. In the course of the discussion, according to Beasley, Reiker stated that Beasley would "have a hard time with the company and also the men in the warehouse" if he pursued the grievance. Beasley's ac- count is contraverted by Reiker, who denies that he made any such statement. The General Counsel contends, and the Trial Ex- aminer found, that Beasley's version should be cred- ited. The Examiner then concluded that Reiker's statement constituted a threat of reprisal against Beasley for his participation in the grievance proce- dure. Despite the simplicity of the facts of the dispute, the issue raised is both complex and difficult. For the reasons set out below, we conclude that protection of statutory rights requires that the Board exercise its jurisdiction. Accordingly, we reject the Respondent Employer's contention that we should abstain in def- erence to the grievance and arbitration procedures provided in the contract between the parties. In our series of decisions adumbrating the Board's policy to defer to a contractual forum where a dispute might properly be resolved either by us or under contract procedures, we have required as a con- dition of such abstention that the dispute presented in our proceeding be cognizable in the contractual fo- rum. We stated in Collyer Insulated Wire, 192 NLRB No. 150, that: Finally, here, as in Schlitz, the dispute is one eminently well suited to resolution by arbitra- tion. The contract and its meaning in present 2 We do not accept our dissenting colleagues' characterization of the positions we have taken in a variety of other cases in the area of accommodat- ing our processes to those of arbitration We deem it inappropriate, however, to utilize our opinion in this case as a vehicle for engaging in a further debate on issues which were dealt with comprehensively in the majority and dissent- ing opinions in each of such cases. 462 DECISIONS OF NATIONAL LABOR RELATIONS BOARD circumstances he at the center of this dispute. In contrast, the Act and its policies become in- volved only if it is determined that the agreement between the parties, examined in the light of its negotiating history and the practices of the par- ties thereunder, did not sanction Respondent's right to make the disputed changes, subject to review if sought by the Union, under the contrac- tually prescribed procedure. That threshold de- termination is clearly within the expertise of a mutually agreed-upon arbitrator. In this regard we note especially that here, as in Schlitz, the dispute between these parties is the very stuff of labor contract arbitration. The competence of a mutually selected arbitrator to decide the issue and fashion an appropriate remedy, if needed, can no longer be gainsaid. In National Radio Co., 198 NLRB No. 1, a similar condition obtained. There, the question whether disci- pline imposed by the employer had been for cause, or for discriminatory reasons, had been presented to an arbitrator and was subject to resolution by him. In reliance on the Board's traditional practice to adopt the findings of arbitrators under standards prescribed in Spielberg Manufacturing Company, 112 NLRB 1080, we concluded that our remedial authority should not be exercised prior to determination of the dispute in the arbitral forum. Thereafter, action by the Board would be appropriate on a showing that the contractual proceeding had reached a result which offened the Spielberg standards. However, it has never been the practice of this Board, and it is not now, to abstain from action in cases which present issues which are irresolvable, in conformity with Spielberg, in an alternative forum. It is well settled, for example, that Board deference is not owed to the result of an arbitration proceeding where the grievant's claim of discriminatory treat- ment was, in fact, not considered by the arbitrator.' Similarly, where the grievant has been deprived of basic procedural fairness, deference has been denied.4 The instant case poses an issue which, we con- clude, is sufficiently unlike that in National Radio, that effectuation of the statutory scheme requires the exercise of our authority. There are two impediments to the resolution of this dispute by any tribunal other than this Board. First, it does not clearly appear that the incident complained of, an asserted threat unac- companied by any discipline or other change in Beasley's employment status, could form the basis for 3 See, e.g, Raytheon Company, 140 NLRB 883. Gateway Transportation Co, 137 NLRB 1763. More recently, after Cot- /yer, the Board has relied on this foundation to hold that abstention is inappropriate where the contracting parties appear to be aligned in interest against the grievant. Kansas Meat Packers, Division of Ansto Foods, Inc., 198 NLRB No. 2. a grievance cognizable under the contract. Second, even if that hurdle be passed, there is no showing that an arbitrator would have any authority, under the contract, to consider or remedy company interference with the performance of grievance functions by a grievance committeeman. The contract contains a clause which does prohibit employer interference with employee rights, or discrimination against employees, because of union membership, but it does not by its terms expressly protect the kinds of activities in which Beasley was engaged at the time the putative threat was made. Neither has there been any showing, de- spite this lacuna, that such grievances have in the past been treated as the proper subjects of the grievance and arbitration machinery. On the contrary, Respon- dent makes the unchallenged assertion that there has never before been any formal complaint, in any fo- rum, based upon a claim of employer recriminations against union officials engaged in grievance handling. We are constrained to add that the violation with which this Respondent is charged, if committed, strikes at the foundation of that grievance and arbitra- tion mechanism upon which we have relied in the formulation of our Collyer doctrine. If we are to foster the national policy favoring collective bargaining and arbitration as a primary arena for the resolution of industrial disputes, as we sought to do in Collyer, by declining to intervene in disputes best settled else- where, we must assure ourselves that those alternative procedures are not only "fair and regular"5 but that they are or were open, in fact, for use by the dispu- tants. These considerations caution against our ab- stention on a claim that a respondent has sought, by prohibited means, to inhibit or preclude access to the grievance procedures. It is this consideration which persuades us that the issues of arbitrability and con- tract coverage, discussed above, should not here be left to resolution by the arbitrator as might be appro- priate under other circumstances. See International Union of Operating Engineers, Local 150, AFL-CIO v. Flair Builders, Inc., 406 U.S. 487. We address, there- fore, the merits of the statutory violation alleged. Employee Beasley, the recording secretary of the Union, has been employed by the Respondent for 19 years. At the time this dispute arose, Beasley also served as employee advisor with respect to workmen's compensation and insurance matters. He was not a member of the shop grievance committee although he usually attended grievance meetings for the purpose of recording minutes. On March 16, Beasley attended a grievance com- mittee meeting, and, because of the absence of Union President Branc, Beasley served as committee spokes- man. The meeting was called for the discussion of two 5 Spielberg Mfg Co, supra JOS. T. RYERSON & SONS, INC. 463 pending grievances from the shop. One of these, the Chilcher grievance, arose from the termination of em- ployee Chilcher for unexcused absences. Chilcher had been reemployed as a new employee shortly after his termination and the Union sought, by the grievance, to preserve certain of Chilcher's insurance and other benefits despite his break in employment. The second grievance arose from a claim for call-in pay for em- ployee Hovey .6 At the conclusion of the meeting, after both grievances had been presented, Respondent's general manager, Reiker, was asked how he was dis- posed toward the grievances. He responded that the Chilcher grievance appeared to have considerable merit, but he characterized the Hovey grievance as picayune? On March 23, the final date provided in the con- tract for Respondent's answer to the grievances, Gen- eral Manager Reiker met briefly with Beasley regarding the Chilcher grievance. Reiker had not then determined Respondent's answer to the grievance and he asked Beasley for additional time to make the re- sponse. He also asked Beasley to supply additional information concerning Chilcher's period of absence. Beasley agreed to the requested extension and also agreed to supply the additional information, subject to Branc's agreement. Beasley also inquired regarding the Hovey grievance and Riker responded that the answer, a denial, was being typed and would be forth- coming. There was no other discussion of the Hovey grievance. At the conclusion of the discussion, the disputed incident occurred. According to Beasley, whom the Trial Examiner credited, Reiker asked whether Beas- ley intended to continue to urge the grievances. When Beasley answered affirmatively, Reiker is said to have responded, "If you continue to back these grievances up you will have a hard time with the company and also the men in the warehouse." Reiker and General Foreman Lekan, the only other person present, denied that the above statement was made, and also elaborated upon a further discus- sion which took place at the meeting. According to Reiker, as corroborated by Lekan, Beasley asked whether steps could be taken to make the grievance handling procedures more amicable. Reiker re- sponded that he was in favor of more amicable rela- tions but that an improved atmosphere would require that the Union file fewer frivolous grievances. The meeting ended on that indeterminate note. Two days later, Beasley submitted the additional 6 Some weeks earlier, late on a Sunday evening, three employees had been called in outside normal working hours to perform a small emergency job at the request of a customer. Hovey was not one of the employees called in and asserted in his grievance that he should have been. r He described the Union's submission of the grievance as "picking fly shit out of pepper " information concerning the Chilcher grievance, and again sought discussion of means to improve the tenor of grievance handling procedures. The Company shortly thereafter answered the grievance in favor of the Union, granting the relief which had been sought. The Hovey grievance had been denied. The Trial Examiner credited the testimony of Beasley as to the alleged threat, stating: Having found Beasley to have been a con- scientious and forthright witness, I do not believe he would fabricate the threat if it had not been made. He did not, however, discredit Reiker's and Lekan's testimony that the meeting ended with a general dis- cussion of the atmosphere in which grievance han- dling was taking place. Indeed, their testimony in this respect is corroborated by Beasley himself, and con- firmed by his later actions. Respondent takes vigorous exception to the Trial Examiner's resolution of credibility in favor of Beas- ley, asserting that the Examiner's decision is so ill- supported that it is vulnerable to reversal, even under the standards of Universal Camera.8 Respondent as- serts, in sum, that the decision to credit Beasley is irreconcilable with a set of well-supported and com- pelling inferences which must be drawn from the rest of the record.' Respondent's exception is not without substance, but in light of our disposition of the case, we find it unnecessary to decide whether the Examiner's credibility resolution is unsupportable. We assume, as the Trial Examiner found, that at some point during the consultation of March 23, Reiker did make the statement described by Beasley. The Trial Examiner seems to have assumed, al- though his decision is silent on the point, that the remark was made during Reiker's discussion of the Chilcer and Hovey grievances. Our examination of the record satisfies us that the remark was not uttered in that context: it came, rather, during the more gen- eral discussion not relating to any particular griev- ance. In that context, the remark could not reasonably have been construed to have any prohibited effect. Only three persons-Beasley, Reiker, and Lek- an-were present during the March 23 conference, and each of the three testified that the conference was addressed to two distinct topics: (1) A concededly satisfactory discussion leading to a quick under- standing as to purely procedural matters relating to the Chilcher grievance, and (2) a candid discussion, 8 Universal Camera Corp v N.L.R.B, 340 U.S. 474 (1950). 9 "Although the Board may not overrule its Trial Examiner by discarding the positive credible testimony of a witness in favor of an inference drawn from tenuous circumstances ... it may refuse to follow its Trial Examiner in crediting testimony where it conflicts with well supported and obvious inferences from the rest of the record . Such refusal is particularly justified when the testimony in question is given by an interested witness ... . (N L.R B v. Pyne Molding Corporation, 226 F.2d 818 (C A 2, 1955) ) 464 DECISIONS OF NATIONAL LABOR RELATIONS BOARD thereafter, of the more generalized issue of how to improve the atmosphere in which grievance handling had been occurring. It seems, in sorting out the total conversation, that the remark that Beasley would be given "a hard time" clearly could not, as Beasley's testimony suggests, and as the Trial Examiner appar- ently found, have referred to the pending Chilcher and Hovey grievances. As to Chilcher's, Beasley had already responded favorably to Reiker's request for an extension of time-a request grounded in Rieker's favorable view of Chilcher's case. And, as the record shows, shortly thereafter the Company conceded the merit of the Chilcher grievance. As to Hovey's, Reiker had already dictated his answer when the meeting took place. There was obviously nothing in the discus- sion which would have inspired a company threat to give Beasley a "hard time." Thus, giving effect to the Trial Examiner's find- ing that the remark was made, it could only have had relevance to the more generalized discussion, wherein Beasley appealed for a more amicable atmosphere for grievance processing, and Reiker advised Beasley that the Union ought to desist from filing frivolous griev- ances. But in that context, the remark loses all ele- ments of interference or coercion, for it would doubtless be true that in the course of procession picayune or frivolous grievances, the Union would indeed be given a "hard time." The Company would, we assume, defend itself vigorously against claims it regarded as falling in this category and vigorously resist the arguments of the proponents of such claims. Moreover, only in this context does the ambig- uous remark relating to the warehouse employees, if made,10 make any sense at all. The credited version of the statement by Reiker, on its face, seems to mean that not only "the Company," but "also the men in the warehouse" would give Beasley "a hard time." Howev- er Beasley was permitted to testify that he interpreted the remark to mean that the Company would give not only Beasley, but also the warehouse employees, a hard time. In this respect, Beasley's interpretation of the re- mark is hopelessly at odds with well-established con- trary facts. The warehouse employees had, so far as the record shows, filed no grievances. On the contrary, em- ployees from Span 7 of the production area had been singularly active in filing grievances, leading to a com- plaint by Superintendent Schrader, at a joint union- 'one first of Beasley's two pretrial affidavits as to this conversation includes no reference to any remarks about warehouse employees , thus gen- erating considerable doubt whether this part of the statement was made at all. while this inconsistency was pointed out to the Trial Examiner, his decision includes no analysis or resolution thereof company meeting on March 6, that union officers in Span 7 were devoting excessive worktime to grievance matters. It is entirely logical that Reiker would believe, and say, that nonproduction employees shared management's concern over that concentration of re- sources on trivial or ill-supported complaints. Thus, viewed in context, there is no basis on which to find either that the remarks were coercive or that they could reasonably have been regarded as improper interference with Beasley's functions as a union representative. Rather, if they were in fact made, they could only have been uttered as expres- sions of a permissible viewpoint in the context of a general discussion of trivial, petty, or "frivolous" grievances. This Board has often recognized that can- did, even coarse, discourse is an expected, part of suc- cessful grievance processing." We shall therefore dismiss the complaint in this respect. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board hereby orders that the complaint herein be, and it hereby is, dismissed; provided, however, that: Jurisdiction of this proceeding is hereby retained for the limited purpose of entertaining appropriate and timely motions for further consideration upon a proper showing, with respect to the disciplinary warn- ing issued to employee Beasley, either (a) that the dispute has not, with reasonable promptness after the issuance of this Decision, been resolved by amicable settlement in the grievance procedure or submitted promptly to arbitration, or (b) that the grievance or arbitration procedures have not been fair and regular or have reached a result which is repugnant to the Act. MEMBERS FANNING AND JENKINS, dissenting: When the majority began to defer to arbitration cases involving violations of the statute, we warned, and have repeated our warning since then, that this ii See, e.g., Crown Central Petroleum Corporation, 177 NLRB 322. That decision was enforced by the reviewing court , which noted, 430 F .2d 724: Of central importance to our view of the case, is the nature of the protected activity involved Hams and Gilliam were participating in a grievance meeting, which by its very nature requires a free and frank exchange of views, and where bruised sensibilities may be the price exacted for industrial peace. As the Board noted, a grievance proceeding is not an audience, conditionally granted by a master to his servants, but a meeting of equals-advocates of their respective positions . Manly was not assailed with abuse on the floor of the plant where he stood as a symbol of the Company's authority, the characterization of the untruth came while he was appearing as a Company advocate during a closed meeting with Union representatives. JOS. T. RYERSON & SONS, INC. 465 course would lead to the disappearance of the protec- tion of the Act, and that employees would be left with only such protection as they were accorded under the collective-bargaining agreement-a protection de- pendent on the relative strengths of the employer and union, and upon the union's ability and willingness to underwrite expensive arbitrations. This predicted result has now been achieved in the present case. The contract here contains a provision that neither the Union nor its members will "engage in any Union activity either (a) on Company time, or (b) on the property of the Company in any manner which shall interfere with the Company's operations." In addi- tion, the contract prohibits "discrimination, interfer- ence, restraint or coercion by the Company against any employee because of membership in the Union." Such clauses which write into the contract a large segment of the statute thereby, under the majority's deferral to arbitration, reduce the protection of the Act to a question of interpretation of the contract clause. The result is to eliminate any independent protection which the Act otherwise provides, and to make the public interest in proper and uniform appli- cation of the Act a plaything of private treaty and interpretation. Beasley was disciplined for allegedly violating the clause restricting union activity on company time or property. Because this provision apparently prohibits nearly all concerted activity at the place of employ- ment, there is a grave doubt as to its lawfulness under the Act. Cf. The Magnavox Company of Tennessee, 195 NLRB No. 40. If it is unlawful, a discharge for violat- ing it would also be unlawful. The arbitrator, howev- er, cannot consider this issue, since his function is limited to interpreting the contract and he must ac- cept the contract provisions as they exist. Thus, a portion of Beasley's protection provided by the stat- ute is eliminated by the majority's deferral to arbitra- tion, an example of the undermining of the Act inherent in the deferral policy of the majority. Together, the two contract clauses cover much, perhaps most, of the concerted activity protected by Section 8(a)(1), (3), and (5) of the Act. There is, how- ever, no assurance the arbitrator will, or can, interpret these clauses to conform precisely to the requirements of the statute. If he interprets the clauses to prohibit conduct which the Act permits and protects, or to permit conduct which the Act proscribes, as the in- stance given in the preceding paragraph indicates he may well be compelled to do, then the statute is sub- verted. Any such disparity between the arbitrator's interpretation and the statutory requirements will not be remedied by the majority so long as the words of the contract provisions do not openly conflict with the statute, and probably not even then. The majority will not examine, pursuant to Spiel- berg or otherwise, the arbitrator's interpretation of the contract clauses to see whether his decision affords less protection than the statute. Nor will the majority examine the award to see whether the unfair labor practice issue was even decided. Member Kennedy will presume that the award did decide that issue, and decide it correctly. Chairman Miller and Member Pe- nello will so presume if there is evidence to show the issue was presented to the arbitrator even though his award contains no indication that he even considered the issue; here, the fact that the contract incorporates parts of the Act apparently would be sufficient evi- dence. Thus, the Spielberg "string" on the Board's deferral becomes meaningless. This they have demonstrated by their unconcern for the possible unlawfulness of clause 1, and by their decisions in National Radio Company, Inc., 198 NLRB No. 1, and Terminal Transport Company, Inc., 185 NLRB No. 96, refusing to consider alleged discrim- ination if a "good cause" under the contract existed which could justify the discharge, even though it may have been union activity which caused the discharge. Thus, under the majority's deferral to arbitration, the only issue becomes the scope of the contract protec- tion, and the decision of this issue then overrides the Act if they do not coincide. Consequently, by incor- porating Section 8(a)(1), (3), and (5) of the Act into the contract and appending an arbitration clause, the Union and Employer are enabled by the majority's deferral to arbitration to escape the Board's and courts' application of the Act to their violations, as we have predicted would occur. There is therefore no assurance that Beasley will ever receive the decision on his statutory rights to which he is entitled, for there is no assurance that the 466 DECISIONS OF NATIONAL LABOR RELATIONS BOARD arbitrator will or can interpret the contract clause to coincide with the reach of the statute, or that if he fails to do so the majority will then review his action to rectify such failure. Nor is there any assurance that, lacking the government's resources, facilities, and power, the facts concerning the alleged coercion, re- straint, and discrimination against Beasley can be pre- sented to the arbitrator, or the applicable principles correctly elucidated to him. If, as the majority says, Beasley had not brought his case to the Board this dispute would have been "not merely resolved, but long since forgotten," it would have been the result of a corresponding submerging or forgetting of his stat- utory protection, or perhaps the inability of Beasley or his Union to last through the long and expensive arbitration into which the majority forces him. The final note of irony in the Kafkaesque scenario created by the "fundamental soundness" of the majority's Collyer principle is that Beasley is done in by that same grievance-arbitration machinery which he was endeavoring to employ and apply. We welcome our colleagues' new-found percep- tion that the Board and not an arbitrator should de- termine the statutory issues and unfair labor practice involved in Respondent's allegedly disciplining Beas- ley for attempting to pursue grievances in accordance with the union contract. In basing this conclusion in part on the ground that there was no showing that the arbitrator had authority to remedy unlawful interfer- ence with the union representatives' performance of the grievance function, the majority recognizes that an effective decision (and remedy, if a violation is found) requires the Board to determine the merits of the case; the majority further recognizes that if the Board does not decide the mertis, this statutory protection of the right to the benefits of the grievance and arbitration provisions of the contract may be subordinated to and obliterated by the meaning given to the contract clause. The logic of our colleagues in not following their Collyer decision and deferring to arbitration this alleg- ed violation is, however, more than a little puzzling. They reason that a threat to discipline a union repre- sentative for filing grievances "strikes at the founda- tion" of the grievance-arbitration process. Yet if the contract provision prohibiting union activity "on company time" or "on company premises" is unlaw- fully broad, use of the clause to prohibit union repre- sentatives' work on grievances shuts off access to and subverts the grievance-arbitration process in exactly the same way as the violation the majority considers on the merits, and thus equally "strikes at the founda- tion" of the process-but the majority refuses to con- sider the merits of that alleged violation, and defers it to arbitration. Our colleagues also in part ground their conclu- sion that they must decide the merits on their view that it is not clear the' contract clause covers threats unattended by discipline. But the majority has previ- ously abandoned the requirement that there be a con- tract clause covering the conduct involved in order to defer to arbitration.12 At this point, it is becoming difficult for others to divine what the majority does, or does not, require in the way of contract coverage in order to defer. More important, however, there is nothing pe- culiarly insidious about undermining the arbitration process as compared to undermining other areas of statutory protection. Section 8(a)(1) and (3) of the Act protects, e.g., the right of employees to engage in un- ion or other concerted activities at the place of work, and during the workday, and to be free of discrimina- tion because of union membership, regardless of whether the contract protects such rights or fails to do so. In contrast, the arbitration process and the right to use it can be established only by contract, and is outside the specific protection of the statute unlike the protection accorded concerted activities and union membership under Section 8(a)(1) and (3). To one attempting to see the statute steadily and see it whole, it must appear that the majority's refusal to decide the merits of alleged 8(a)(1) and (3) violations breaches the foundations of the Act more widely than interfer- ence with the purely contractual right of arbitration. Indeed, the anomaly begins to boggle the mind when it is remembered that the employer's abrogation of the entire arbitration process would amount to no more than a unilateral change in the contract. This is exact- 12 Cf. Peerless Pressed Metal Corp, 198 NLRB No 5, in which the majority deferred to arbitration after conceding that (1) the only contract provision which conceivably nught have been involved could not be stretched so far, and (2) the employer's claim that it did apply was "nearly frivolous " JOS. T. RYERSON & SONS, INC. 467 ly the type of change which our colleagues said in Collyer, where the employer unilaterally abrogated the contract wage provisions as to about a quarter of the work force, is peculiarly suitable for arbitration. We are unable to understand the logic of our col- leagues in deferring the first alleged violation to arbi- tration and not deferring the second. Their difficulty, we think, lies in the lack of logic inherent in their Collyer principle. Collyer and subsequent decisions have drastically reduced the statutory protection against unilateral re- pudiation, abrogation, or modification of collective- bargaining agreements, and the final elimination of this protection seems to us the logical and inevitable result of the majority's reasoning. In the present case and in National Radio, supra, the majority has begun to replace with arbitration the statutory protection afforded by Section 8(a)(1) and (3), and their elimina- tion from the protection of the Act, as in the case of unilateral changes, can hardly be long delayed. In what we consider the inevitable march of Collyer to- ward the elimination of Section 8(a) from the Act, our colleagues will bestir themselves only to protect the purely contractual right to arbitrate. The upshot is, of course, that contract rights-as contained in and lim- ited by the contract-have superseded, displaced, and indeed nullified the statutory protection. The majority's willingness to permit-the arbitrator to de- termine which issues are arbitrable, and to what ex- tent, only emphasizes the majority's destruction of the statutory protection. We await with interest the next unfoldings of the Collyer principle, which almost certainly, in those cases where the parties choose to include an arbitra- tion provision, will eliminate Section 8(a) of the Act and substitute arbitration for it. The statute will then operate only to protect access to the arbitration pro- cess-and perhaps not even that, as the deferral to arbitration of the first alleged violation here demon- strates. We cannot follow this downward and widening spiral of the "fundamental soundness" of Collyer, resulting in an ever-increasing destruction of the stat- utory protection of employees. As we pointed out in our dissent in National Radio, supra, Congress in en- acting this statute explicitly disapproved precisely the course of deferral the majority has now adopted." because of the public interest in proper and uniform interpretation of the Act. We perceive no authority in the Board, and no reason apart from authority, to override this action of the Congress. When this case, and others like it, are brought to the Board, the Board is obliged and required to determine them on the mer- its, and we would do so. As to the merits of the alleged violation which our colleagues dismiss, we agree with the Trial Exam- iner that Respondent violated the statute. The record shows that Beasley had been asked by Union Presi- dent Branc to substitute for him as committee spokes- man in regard to two pending grievances involving employees Chilcher and Hovey. Beasley, the re- cording secretary of the Union, was a long time em- ployee who worked only sporadically because of a 1967 industrial injury. He served as employee advisor with respect to workmen's compensation and insur- ance matters, and although he usually attended griev- ance meetings when he was available, he was not a member of the shop grievance committee and had not previously handled grievances of this type. On March 16, Beasley attended the first-step grievance meeting in regard to the matters involving Chilcher and Ho- vey. At the conclusion of the meeting Reiker indica- ted that he was favorably disposed toward Chilcher's grievance, but characterized Hovey's grievance in un- flattering terms. On March 23, the final date provided in the con- tract for Respondent's answer to the grievances, Reik- er called Beasley to his office to ask for a verbal extension of time for submitting an answer to the unsettled grievance of Chilcher. Beasley inquired re- 13 As we there said Since the original enactment of this statute in 1935, it has been con- templated that the Government, with its resources, facilities, and power, shall vindicate the rights protected by the Act. "No private right of action is contemplated. Essentially the unfair labor practices listed are matters of public concern, by their nature and consequence, present and potential " See II Leg Hist. 2931, 2978, 3074 (1935). The original Section 10(b) proposed by Senator Wagner, "father" of the statute, contained a clause providing that the "Board may, in its discretion, defer its exercise of junsdiction over any such unfair labor practice in any case where there is another means of prevention provided for by agreement " See I Leg. Hist. 1301 (1935), II Leg. Hist. 2430 (1935) This is exactly what the majority does in this case . Yet this provision was struck from the bill, II Leg Hist. 2351 (1935), a clear rejection of the "policy" which the majority here and in Collyer have created 468 DECISIONS OF NATIONAL LABOR RELATIONS BOARD garding the Hovey grievance and Reiker responded that the answer, a denial, was being typed and would be forthcoming. At the conclusion of the meeting, as the Trial Examiner found upon the basis of the credi- ble testimony, Reiker asked Beasley if he intended to continue backing up the grievances. Beasley replied that as a union officer, he felt that "anyone that had a complaint I would see that it be heard. I would back them up if I could. If there is anything I could do." Reiker responded, "If you continue to back these grievances up you will have a hard time with the com- pany and also the men in the warehouse." The basic issue, and the only issue, is whether Reiker's above remarks were a threat of management reprisal and whether they had a coercive impact upon Beasley's Section 7 rights. We think it plain that they did. The majority, in considering the "simplicity of facts" of this dispute, constructs a lengthy and convo- luted rationale to show that Reiker's clear and unam- biguous remarks were made in a generalized discussion involving the filing of frivolous or picayune grievances, and that such context strips them of all elements of interference and coercion. In arriving at this conclusion our colleagues accept the Trial Examiner's credibility findings, as indeed they must on the basis of the record, and thus accept the Trial Examiner's findings that Reiker made the above re- marks as alleged. The majority's interpretation of these events lacks both record and legal support. The record shows that at no time did Reiker suggest to Beasley that it would be wise to reduce the number of grievances in the plant or otherwise discuss with him the nature or the calibre of grievances in general. Although the record does show that at the conclusion of the March 23 conference and after Reiker's intim- idating remarks had been made, Beasley attempted to bring up the subject of improving relations between the Union and management in regard to the proc- essing of grievances, Reiker specifically told Beasley that he would not discuss the subject of "unnecessary grievances" further unless General Superintendent Schrader were present. The record shows that there was no further discussion among Beasley and Respondent's officials on this subject. Thus, contrary is abundantly clear that Beasley's bringing up the sub- ject of a more amicable atmosphere for grievance processing was not based upon any prior relevant dis- cussion or concern on this subject by the Respondent, but upon the insecurity and fear which Reiker's threat of reprisal engendered. As the Trial Examiner points out, Reiker's threats to Beasley if he continued to back up grievances would tend to be particularly coercive because of his physical condition which prevented his working on a regular basis and the admitted "solic- itude" with which the Respondent had been treating him because of this condition. Crown Central Petroleum Corporation, 177 NLRB 2321, and related cases cited by the majority do not support their view. The factual and legal issues in- volved in Crown Central related to what restraints, if any, the Board would put on candid, earthy, and even vulgar discourse, during grievance discussions be- tween union and management. We agree that such discussions should be frank and open, and that "salty" language by union adherents in the cause of advocacy should not be subject to management disci- pline. This plainly is not the question here. Here the issue is whether an employer can at a grievance pro- ceeding through threat of reprisal discourage a union representative from exercising his Section 7 rights. It is hornbook clear that an employer's remarks of that nature are violative of Section 8(a)(1) of the Act. For the above reasons, we would find, in agree- ment with the Trial Examiner, that Reiker's remarks to Beasley at the March 23 meeting were calculated, and would reasonably be so interpreted by Beasley, to threaten him with reprisals because of his union activ- ities in violation of the Act. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE MARION C. LADWIG, Trial Examiner : This case was tried at Cleveland, Ohio, on July 8, 1970,' pursuant to a charge filed on April 3 by Local 2212, United Steelworkers of America, AFL-CIO, herein called the Union, and pursuant to a complaint issued on May 19. The primary issues are whether the Respondent, Joseph T . Ryerson & Sons, Inc., to the inferences which our colleagues would draw, it 1 All dates, unless otherwise indicated , are in 1970 JOS. T. RYERSON & SONS, INC. 469 herein called the Company, (a) threatened a union official, employee James Beasley, with reprisal because of his union activities, and (b) issued him a written warning because of, and in order to discourage, his union activities, in violation of Section 8(a)(1) of the National Labor Relations Act, as amended. Upon the entire record, including my observation of the demeanor of the witnesses, and after due consideration of the briefs filed by the General Counsel and the Company, I make the following: FINDINGS OF FACT I. THE BUSINESS OF THE COMPANY AND THE UNION INYOLVEb The Company is a Delaware corporation which operates 25 plants, one of which is located in Cleveland, Ohio, where it is engaged in the storage, fabrication, and sale of metal products and industrial plastics, and where it annually ships goods valued in excess of $50,000 directly to points outside the State. The Company admits, and I find, that it is an employer engaged in commerce within the meaning of Sec- tion 2(6) and (7) of the Act, and that the Union is a labor organization within the meaning of Section 2(5) of the Act. II THE ALLEGED UNFAIR LABOR PRACTICES A. Background Employee James Beasley is a multiple torch operator, or "burner," who was hired in 1950. In June 1967, he received an industrial injury which has caused him to be "off and on at work" since that time. Although the nature of his injury was not disclosed at the trial, he was hospitalized at one time in 1969, and was permitted to take a 13-week vacation (from December 15, 1969, through March 13, 1970), in the hope this "delicate" condition would improve. When he returned to work on March 16, his "condition started reacting again." (Since then, the injury has caused him to lose additional days from work, and to be hospitalized for 10 days. At the time of trial on July 8, he had been off work since May 13.) Despite his industrial injury, Beasley continued to serve as the Union's recording secretary, and also as com- pensation committeeman. In the latter role, he gave advice to members in the 145-employee bargaining unit who had problems concerning workmen's compensation insurance benefits, unemployment compensation, retirement, and pensions. At the request of employees that he represent them on such matters, he would "approach the Company" and endeavor to settle the matters informally. He watched the time limits for filing "insurance grievances" under the collective-bargaining agreement. Although he did not have authority to write grievances himself, he worked closely with Union President Joseph Branc (who put the grievances in writing),. and was "in on" all grievances "pertaining to compensation." Even while Beasley was on the extended vacation (from the middle of December to the middle of March), he contin- ued to work as compensation committeeman, investigating the claim of an employee, John Chilcher, for insurance benefits and hospitalization. On March 15, his first day back on the job after the 3-month absence, Beasley became personally involved in the formal processing of two grievances through the griev- ance procedure. At the request of President Branc (who was to be absent that day), Beasley became the union spokes- man at a grievance meeting. (Previously, when Beasley was requested as recording secretary to attend grievance meet- ings, he merely took notes.) In this meeting, General Man- ager Homer E. Rieker indicated that he was giving favorable consideration to the Chilcher grievance, but indicated some irritation with the other grievance, involving employee Har- vey Hovey. Concerning the Hovey grievance, Rieker admit- tedly stated that he felt this was "picking fly s- out of the pepper." The next day, March 16, Beasley complained to Gener- al Superintendent Paul R. Schrader and Area Foreman Russell B. Herdman that Herdman was doing bargaining unit work, for which Beasley (as the senior employee) should be paid at the overtime rate. It was in this context that Beasley was allegedly given a discriminatory warning (being accused by Superintendent Schrader and Foreman Herdman of working the next day, March 18, on union papers during worktime), and threat- ened by General Manager Rieker with reprisal the following week. Before discussing these incidents, I note that there is some undisputed evidence, indicating resentment concern- ing Beasley's union activity. After Beasley testified about his duties as compensation committeeman (when asked by the company counsel about "some source of friction or irritation between you and Mr. Rieker"), the counsel then asked Beasley: Q. (By Mr. Luksch) Can you give us any specific instances where the Company indicated that they re- sented your participation? A. In most of them when I approach the foreman, any one of the foremen, before I got to them I am just about cussed out. Q. You are just about what, sir? TRIAL ExAMINER Cussed out. THE WITNESS Yes, your Honor. I was working on the plates, burning. I could have used short pieces and saved stock pieces. [General Foreman] Lekan and [Area Foreman] Russell Herdman were standing out in 470 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the aisle, so I went to get permission if I could use the shorts and work on those. Before I said anything Mr. Herdman said, "What the f- do you want?" TwAL EXAMINER: When was this? THE WITNESS: It was ... the early part of May. I looked at Mr. Herdman and- Q. (By Mr. Luksch) And what did you say to him? A. I turned around and walked away. I went back to my work area. B. Discriminatory Warning Recording Secretary Beasley (who impressed me as a conscientious, forthright witness) testified that on March 18, his third day back after the extended vacation, he went to work at 8 a.m., and proceeded to cleaning off his burning machine and making preparations to "bum" the plate steel. (He described this preparatory work as involving the secur- ing of an air hose and blowing off the machine, checking to see if he had on the table the stock which the order requires, checking the temps for different size plates, checking the gas preheat and high pressure, setting the speed on the machine, lighting the torches, and having the plate preheated.) There was a sufficient amount of stock plate already on the table, but the night burner had not weighed another order of steel pieces burned on the night shift. Sometime between 8:30 and 9 o'clock, while he was waiting for the plate to preheat, Beasley weighed these steel pieces, and was figuring their weights on the reverse side of an order sheet: There was no room on the table to write, and his locker was covered with burning dust, so he had placed his "suitcase" on the locker and was using the side of the case as a writing surface. (The case, which was closed, was used to carry writing paper for taking minutes at meetings, and books to sell steel-toed shoes-outside the plant-as authorized by the Company. He never carried a notebook or any grievance forms, and had no paperwork to perform for the Union.) About 8:45 a.m., as Beasley was figuring the weights, Superintendent Schrader "walked by and saw the torches lit and I had my back turned and he came by and he just glanced and he said, `Are you doing company business?' And I said, `Yes: He smiled and kept going," speaking to Beasley "less than a minute." Beasley did not see Foreman Herdman in the area at the time. More than a week later, Herdman brought Beasley a written warning for "working on union papers instead of burning" at 9 a.m., on March 18, and stating that "Future occurrences will result in time off." Under the words on the warning form, "Names of witness- es," was written only Schrader's name (not Herdman's), and under the question, "Does this employee have a previous record of ... censure and if so, when and to what extent," was written the single word, "Yes." The warning was dated March 18. (Beasley's version of what happened on March 18 is corroborated by Union President Branc, who operates an overhead crane in the same area. Branc recalled the occasion when Superintendent Schrader went up and spoke to Beasley. At the time, Branc was looking down from his crane, waiting for material to be moved. He saw that Beasley's torches were burning. He confirms that Beasley's worktable did not need stock, and did not remember seeing Foreman Herdman at the time. Herdman supervises three different areas, or "spans.") In sharp contrast, Superintendent Schrader and Fore- man Herdman gave a far different account. Schrader testi- fied that about 9 a.m. on March 18, as he was going through span 7, he saw Herdman who turned toward Beasley. He saw that Beasley was doing some paperwork and asked Herdman, "Union business?" Herdman nodded. Schrader said he would take a look, and walked up behind Beasley, who was facing in the opposite direction. "What I observed was that Mr. Beasley had his case opened and was in fact reading and writing in a notebook adjacent to his case." Schrader observed that the torches on the machine were not lit. After a few seconds, when Beasley noticed him, he asked, "Is this union business or company business that you are doing?" Beasley replied, "I am waiting for stock." Schrader testified, "I then told him that there is no stock- man in that span and there has not been and there was no one to bring in the stock except himself and he was to stop what he was doing and go get his stock." (Not only does this conflict with Beasley's and Branc's testimony that there was already stock at the machine, but the Company offers no explanation why Beasley would make such a comment about waiting for stock. It was necessary for the burner to go with the crane operator to get the stock when needed.) Schrader then testified that he went back where Herdman was waiting, about 20 or 25 feet away, and commented to Herdman, "Yes, union business. You are going to have to write him up," but then changed his mind and said, "No, never mind. I will write it up." (I credit the testimony by Schrader's secretary that the delay in giving the written warning was caused by a delay in her getting it typed.) While testifying, Schrader appeared tense and nervous. He did not impress me as a candid witness. Foreman Herdman testified that about 8:50 that mom- ing (about 10 minutes before talking to Schrader), he saw Beasley "doing something with papers. He had his briefcase opened and he had a grievance report laying to his left side which I looked down and saw. It was very plain," with the heading, "Grievance Report." Yet, claiming to have been busy at the time, going to another span to get some stock transferred, Herdman testified that he walked on by, not saying anything to Beasley. After taking care of the other matter, "I intended to talk to Mr. Beasley on the way back about his machine not running and I happened to see Mr. Schrader coming towards me. So I decided I would let him do it instead." He testified that there was no stock on the machine, and that the torches were not lit. When asked what happened after Schrader talked to Beasley, Herdman an- swered, "Mr. Schrader just walked away." Then he was asked if Schrader said anything to him after Schrader talked to Beasley. He readily answered positively, "No, sir." But then he appeared to realize that this would conflict with Schrader's testimony, and retracted the answer, testifying, "I'm sorry, sir, he did. He said `You had better write him up,' and then he hesitated and said, `No, I will do it myself."' Herdman gave further dubious testimony about talking to Beasley "at least a half a dozen times" about conducting business on company time without permission. He testified that the only specific occasion he could remember was 2 days earlier, March 16, when also around 9 a.m., Beasley had his briefcase opened, "and I walked up to him and said, `There will be no more union business on company time. Do JOS. T. RYERSON & SONS, INC. 471 your work.' ... I did mention it to Mr. Schrader," telling him, "something would have to be done about that man doing union business on company time ." (When questioned about this, Beasley testified, "I was off on a 13-week vaca- tion and March 16 was my first day back to work. I had no contact with Russell Herdman at all.... I was glad to get back to work. I went around about my business and Russell Herdman never approached me." Beasley also testified, "I have never received a verbal warning .") It appears most unlikely that if Herdman actually had seen Beasley with his briefcase open on March 16 and had given him a verbal reprimand then, Herdman would have remained silent on the morning of March 18 upon seeing Beasley again with his briefcase open, this time with also a "Grievance Report" form beside the case . It appears also unlikely that if Herd- man had made the report to Schrader only 2 days before, Schrader would have answered only "Yes" to the question on the warning form, "Does this employee have a previous record of ... censure and if so, when and to what extent," instead of reciting the purported similar incident. It further appears unlikely that if Herdman had been present in span 7 at the time on March 18, and had seen Beasley writing again instead of working, Schrader would have listed only his own name as a witness , and not Herdman's, on the warning form. After considering all the evidence, evaluating Herdman's testimony, and considering the witnesses' de- meanor on the stand, I credit Beasley's and Branc's testimo- ny and find that Herdman was not even present in span 7 on March 18 at the time that Schrader spoke to Beasley. I also discredit Herdman's testimony about a similar incident on March 16. The evidence does support the Company's contention that there was a concentration of union officials and com- mitteemen in span 7 of the plant, and that on March 6 (during Beasley's 3-month vacation), Superintendent Schrader told the union representatives at a regular monthly meeting that he was having too many complaints from his foreman about committeemen in span 7 conducting union business on company time without permission, and that this simply would have to stop. However, this fact does not support the Company's further contention that "Schrader on the morning of the 18th had every reason to believe that Beasley was in fact engaged in union business ." When Beas- ley replied that he was working on company business (as Beasley credibly testified), Schrader failed to look to see for himself what Beasley was doing. Contrary to the Company's denial in its brief that the incident was "deliberately invent- ed," I find from all the circumstances, and the Company's resentment or hostility toward Beasley because of his union activity (previously described), that Schrader deliberately failed to verify what Beasley was doing in order to profess a good-faith belief that he was doing union business on company time. I therefore find that in issuing the written warning to Beasley, the Company did so, as alleged in the complaint, "because of and in order to discourage" Beasley's union activities, in violation of Section 8(a)(1) of the Act. (I note that a grievance was filed to protest the issuance of the written warning and the first steps of the grievance procedure were followed . However, as credibly testified by Union President Branc, the Company and the Union agreed to postpone further consideration of the grievance until Beasley 's return to work.) C. Threat of Reprisal Here again, there are sharp conflicts in the testimony. Recording Secretary Beasley testified that on March 25 (actually March 23), General Manager Rieker called him to the office to ask for a verbal extension of time for submitting a grievance answer in the Chilcher case. After discussing that case, according to Beasley, Rieker then asked him if he intended to continue backing up the grievances . Beasley replied that as a union officer , he felt that "anyone that had a complaint I would see that it would be heard . I would back them up if I could. If there is anything I could do." Then, according to Beasley, Rieker said that if he continued to back up the grievances, he would have a "hard time" with the Company. (Such a threat, if made, would tend to be particularly coerceive when made to Beasley, because of his severe disability from the 1967 industrial action.) The Company's witnesses, Rieker and General Fore- man Frank Lekan, both testified that in the meeting , Ricker mentioned reducing the number of "unnecessary" griev- ances, but denied that the threat was made. Having found Beasley to have been a conscientious and forthright witness, I do not believe he would fabricate the threat if it had not been made . I therefore credit his testimony, and discredit Rieker's and Lekan's denials. Ac- cordingly, I find, as alleged in the complaint , that the Com- pany threatened the employee with reprisal because of his union activities , in violation of Section 8(a)(1) of the Act. CONCLUSIONS OF LAW 1. By discriminatorily issuing a union official a written warning because of and in order to discourage his union activities, the Company engaged in an unfair labor practice affecting commerce within the meaning of Section 8(a)(1) and Section 2(6) and (7) of the Act. 2. By threatening the union official with reprisal be- cause of his union activities, the Company further violated Section 8(a)(1) of the Act. THE REMEDY The Respondent will be ordered to cease and desist from the unfair labor practices found and from like or related invasions of the employees' Section 7 rights, to take certain affirmative action designed to effectuate the policies of the Act, and to post appropriate notices. Accordingly, on the basis of the foregoing findings and conclusions, and on the entire record, I issue, pursuant to Section 10(c) of the Act, the following. [Recommended Order omitted from publication.]