Avco Corp.

AVCO CORPORATION Avco Corporation, Avco Electronics Division and Louise F. Hundley. Case 9-CA-6788 October 5, 1972 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS JENKINS AND KENNEDY On July 14, 1972, Administrative Law Judge' Henry L. Jalette issued the attached Decision in this proceeding. Thereafter, the Respondent filed excep- tions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that Respondent, Avco Corporation, Avco Electronics Division, Cincinnati, Ohio, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. The title of "Trial Examiner" was changed to "Administrative Law Judge" effective August 19, 1972 TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE HENRY L. JALETTE, Trial Examiner: This case involves allegations that Respondent violated Section 8(a)(1) of the Act by threatening to discharge an employee for filing too many grievances and by searching through her union rec- ords. The employee in question, Louise Hundley, filed the charge on which the complaint is based on February 8, 1972, and complaint issued on March 24, 1972.' On May 30, a hearing was held in Cincinnati, Ohio. Upon consideration of the entire record, including my observation of the witnesses and the briefs filed by General Counsel and Respondent, I make the following: ' Unless otherwise indicated, all dates appearing hereinafter are in 1972. FINDINGS OF FACT I THE FACTS 505 Respondent is engaged in the manufacture of electron- ic devices at a plant in Cincinnati, Ohio,2 Local Union No. 1842. International Brotherhood of Electrical Workers, AFL-CIO, is the collective-bargaining representative of employees of the Respondent in a unit not defined in the record, but one which includes what appear to be plant clerical employees. One of these is Louise Hundley, an em- ployee of 17 years. About October 1971, Hundley was appointed a shop steward, a position she held until April 7 when she was laid off for economic reasons. During that period of time, Hund- ley filed many grievances. She filed at least one grievance per week and sometimes two per day. Between 10 and 15 of these grievances were on her own behalf, and the majori- ty of them involved charges that Respondent was assigning bargaining unit work to nonunit salaried employees. None of these grievances was shown to have had merit. On January 7, Hundley filed three grievances as an aggrieved employee. Phil Braeuning, Respondent's person- nel administrator at the time, had assigned numbers to Hundley's grievances of that date. Shortly thereafter, Bobby Mitchell, the Union's chief steward, chanced to meet Braeuning in the plant and Braeuning told him that Hund- ley was driving him crazy, and he was going to fire her over filing so many grievances. Braeuning asked Mitchell to re- lieve Hundley as steward and Mitchell told him only the union president could do that. Union President, Laura Gas- sert, was then on layoff status, and Braeuning called her at home and requested that she remove Hundley as steward. Gassert discussed with Hundley the grievances she had filed and telephoned Braeuning to tell him the grievances were legal and that Hundley would remain as steward. On January 17, in the performance of her duties, Hundley went to the blueprint room for some blueprints. While there, she was asked by an employee if she would deliver to a salaried employee named Sue Pearsall, a blue- print Pearsall had ordered. Upon examining the work order, Hundley concluded Pearsall should not have ordered the blueprint, that a work order for such a blueprint should have been processed through her office. According to Hundley, she requested a copy of the work order from the blueprint clerk, left the original work order that Pearsall had placed and the blueprint Pearsall had ordered, returned to her office to check her blueprint file, noted that her blue- print copy had the wrong revision, and noted on a list she maintained that she should order the blueprint for her files. Then, Hundley sought out Chief Steward Mitchell and filed a grievance claiming Pearsall had been performing unit work. She gave a copy of the Pearsall work order to Mitchell with the grievance. Hundley works alone in an office containing about 100 file cabinets. In the drawer of one of these which was not being used to file company material, she kept a folder con- taining her union material (this material consisted of copies of grievances which had been filed, and copies of various 2 Commerce is not in issue. The complaint alleges, the answer admits, and I find that Respondent meets the Board's $50,000 direct outflow standard for the assertion of jurisdiction. 199 NLRB No. 86 506 DECISIONS OF NATIONAL LABOR RELATIONS BOARD company forms) and some minutes she kept as secretary of the credit union. When Hundley left work, she would lock this office so that unauthorized personnel could not have access to the company files . On this particular day, after she left the office, Braeuning and supervisor Fred Besco entered the office and searched through the file cabinets until they found the file drawer containing Hundley 's folder of union material. Braeuning fingered through the material , did not find what he was looking for, and returned the folder to the drawer. The next day, having learned of this action , Hundley confronted Braeuning and he admitted his action . He told Hundley, in the presence of Mitchell, Gassert, Besco, and others, that he had been searching for the original of the work order used by Sue Pearsall and he told Hundley that had he found it in her possession he would have fired her. II ANALYSIS AND CONCLUSIONS The foregoing recitation of facts consists essentially of the testimony of General Counsel's witnesses. There are differences in the testimony of the witnesses about what actually happened on January 17 and 18, such as whether Hundley made several copies of the missing work order or only one, and whether Hundley presented a copy of the missing work order to Braeuning preliminary to the filing of any grievance. These differences are not critical to a disposi- tion of the case, but I accept Braeuning's version of the events over Hundley's because I find it more detailed and coherent. A critical difference in testimony exists as be- tween Chief Steward Mitchell and Braeuning who denied Mitchell's testimony that Braeuning had told him Hundley was driving him crazy and he was going to fire her. In arguing for the credibility of Braeuning, Respondent rightly points out that at the time of his testimony Braeuning was no longer an employee of Respondent, had left Respondent's employment for personal reasons , and had no reason to he to protect Respondent. This factor deserves serious consideration and is one which I recognized as being present at the time of the hearing. After careful considera- tion, I have concluded that this factor is outweighed by Braeuning's demeanor on the witness stand, by what I con- sider an evasiveness in his answers both about his conversa- tion with Mitchell and that with Gassert, and what I deem to be his incredible explanation for searching the file cabi- net containing Hundley's papers. I am convinced Braeuning requested Mitchell and Gassert to remove Hundley as stew- ard and I consider his answers on that point less than can- did. Accordingly, I credit Mitchell's testimony about Braeuning's threat. I might add that I am mindful that Mitchell is chief steward who appeared to support Hundley in her grievance filing, and that he would naturally tend to support her. However, I observed nothing in his demeanor, nor in his testimony , which would incline me to discredit him. Contrary to Respondent's contention, therefore, I find as alleged in the complaint, that Braeuning threatened the discharge of Hundley for filing too many grievances. Re- gardless of the fact that her grievances were lacking in merit, there is no contention or showing that her activity was un- protected, and Respondent was not justified in threatening her with discharge. Initially, I tended to view Braeuning's remarks as mere- ly the words of a man exasperated by the irresponsible conduct of Hundley in filing grievances over the slightest incident without bothering ever to discover what the facts were. I tended to believe Braeuning did not really intend his remarks as a threat . I abandoned this view when I consid- ered that Braeuning was sufficiently serious to seek Hundley's removal as shop steward . More to the point, however, was his conduct on January 17 and 18. As I indicated above, I have accepted Braeuning's ver- sion of what happened on January 17, a version which includes an admission of the search of a file cabinet and the examination of a folder of union materials maintained by Hundley. Respondent asserts that Braeuning had the right to enter the office used by Hundley and to search through its own file cabinets, particularly when it had reason to believe that an employee had in its possession a confidential document. Respondent's argument misses the mark. The explanation offered by Braeuning for his conduct on January 17 was that the fact that the Pearsall work order was missing, presented a question of security because of the nature of the products manufactured by Respondent, and it was necessary to investigate to determine the whereabouts of the work order . I do not credit this explanation. On Braeuning's own testimony, not only had Hundley given him a copy of the work order earlier that day, she also had several copies in her folder of union materials. It is incomprehensible to me how the absence of the original work order could present a security problem when there were so many copies extant. I could understand concern over loss of the blueprint , yet Braeuning considered this insignificant. Why, then, did Braeuning search the file cabinet? It is evident that he did so to uncover grounds for discharging Hundley. This was revealed both by his threat to Mitchell on January 7 to discharge Hundley for filing too many grievances, and by his remarks to Hundley on January 18 that had he found the original work order among her effects he would have discharged her. (Braeuning watered down this January 18 statement in his testimony, but I do not credit his version ; rather, I credit Mitchell , Gassert, and Hundley.) Discharge would appear to have been a severe penalty for the unauthorized possession of a work order, particularly where the employee had 17 years of service and the work order was merely a requisition form such as Hund- ley herself apparently had authority to use to requisition blueprints. The unlawful purpose of the search is further revealed by the fact that Braeuning waited until Hundley left the office to conduct his search although he had an opportunity to confront her with his suspicions and to ask her to show him the contents of the file drawer from which he had seen her withdraw a copy of the work order. If he felt she was too unreasonable to deal with in that fashion, he could have called on chief steward Mitchell or Union President Gassert. For all the foregoing circumstances , I conclude that the search of the file cabinet was a pretext used by Braeuning to discharge Hundley because she was filing too many griev- ances, and under these circumstances the search was viola- tive of Section 8(a)(1) of the Act. AVCO CORPORATION 507 III THE EFFECT OF THE UNFAIR LABOR pretext for discharge. PRACTICES UPON COMMERCE The activities of the Respondent set forth in section I and II, above, occurring in connection with its operations described above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the sev- eral States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. IV THE REMEDY Having found that Respondent has engaged in unfair labor practices in violation of Section 8(a)(1) of the Act, I shall recommend that it be ordered to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act. Respondent contends that even were I to find that Braeuning made the threat attributed to him by Mitchell on January 7, a remedial order is not warranted inasmuch as such a statement would have been the only occurrence in a long bargaining history, with no showing of any other union animus, and in the context of a conversation between a company personnel manager and union chief steward only, with no showing that the alleged statement was published either to Hundley or any other employee. I reject this contention for several reasons. First, I have found not only the unlawful statement on January 7, but the unlawful search on January 17, as an attempt to implement the unlawful statement. Second, the unlawful statement was evidently communicated to Hundley because the charge she filed herein was partly predicated on the statement. Third, even had it not been communicated to Hundley, the threat to one steward, albeit a chief steward, that another steward will be discharged for filing too many grievances would tend to discourage that steward from exercising rights protected by Section 7 of the Act. (b) In any like or related manner interfering with, re- straining, or coercing its employees in the exercise of their right to self-organization, to form, join, or assist labor or- ganizations, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining, or other mutual aid or protection as guaranteed by Section 7 of the Act, or to refrain from any or all such activities. 2. Take the following affirmative action designed to effectuate the policies of the Act: (a) Post at its plant in Cincinnati, Ohio, copies of the attached notice marked "Appendix."4 Copies of said notice, on forms provided by the Regional Director for Region 9, shall, after being duly signed by a representative of Respon- dent, be posted by it immediately upon receipt thereof and maintained by it for a period of 60 consecutive days there- after, in conspicuous places, including all places where no- tices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director for Region 9, in writ- ing, within 20 days from the receipt of this Decision, what steps the Respondent has taken to comply herewith .5 3 In the event no exceptions are filed as provided by Section 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Section 102 48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and order, and all objections thereto shall be deemed waived for all purposes. 4 In the event that the Board's Order is enforced by a judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall be changed to read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." 5 In the event that this recommended Order is adopted by the Board after exceptions have been filed, this provision shall be modified to read- "Notify the Regional Director for Region 9, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith." CONCLUSIONS OF LAW 1. Avco Corporation, Avco Electronics Division, is an employer engaged in commerce within the meaning of Sec- tion 2(6) and (7) of the Act. 2. Local Union No. 1842, International Brotherhood of Electrical Workers, AFL-CIO, is a labor organization with- in the meaning of Section 2(5) of the Act. 3. By threatening the discharge of an employee for filing grievances and searching her personal files to find a pretext to discharge her, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Sections 8(a)(1) and 2(6) and (7) of the Act. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended:3 ORDER Respondent, Avco Corporation, Avco Electronics Di- vision, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Threatening employees with discharge for filing grievances and searching employee personal files to find a APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE ,NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a trial in which both sides had the opportunity to present their evidence, the National Labor Relations Board has found that we have violated the law and has ordered us to post this notice. WE WILL NOT threaten employees with discharge for filing grievances, and WE WILL NOT search personal files of employees to find an excuse to discharge them. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to form labor organi- zations, to join or assist labor organizations, to bargain collectively through representatives of their own choos- ing, and to engage in concerted activities for the pur- pose of collective bargaining or other mutual aid or 508 DECISIONS OF NATIONAL LABOR RELATIONS BOARD protection, or to refrain from any or all such activities. This is an official notice and must not be defaced by anyone. Avco CORPORATION, Avco ELECTRON- This notice must remain posted for 60 consecutive days ICS DIVISION from the date of posting and must not be altered, defaced, (Employer) or covered by any other matenal . Any questions concerning this notice or compliance with its provisions may be direct- Dated By ed to the Board's Office, 550 Mam Street, Federal Office (Representative) (Title) Building, Cincinnati, Ohio 45202, Telephone 513-684-3686.