Greencastle Mfg. Co.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Greencastle Manufacturing Co. and Michael W. Quinnette. Case 25-CA-8549 January 16, 1978 DECISION AND ORDER BY MEMBERS JENKINS, PENELLO, AND MURPHY On July 13, 1977, Administrative Law Judge Robert A. Giannasi issued the attached Decision in this proceeding. Thereafter, Respondent and the General Counsel filed exceptions and supporting briefs. 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 attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, find- ings,l and conclusions of the Administrative Law Judge, to modify the remedy so that interest is to be computed in the manner prescribed in Florida Steel Corporation, 231 NLRB 651 (1977),2 and to adopt his recommended Order, as modified herein.3 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 Administrative Law Judge, as modified below, and hereby orders that the Respon- dent, Greencastle Manufacturing Company, India- napolis, Indiana, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, as modified herein: 1. Insert the following as paragraph l(b): "(b) In any other manner interfering with, restrain- ing, or coercing its employees in the exercise of their rights guaranteed by Section 7 of the Act." 2. Substitute the attached notice for that of the Administrative Law Judge. Respondent alleges that the Administrative Law Judge demonstrated a lack of impartiality by the manner in which he involved himself in the questioning of witnesses and that the end result was that the Administrative Law Judge rather than the General Counsel became the prosecutor and the burden of proof was shifted from the General Counsel to Respondent. We have carefully examined the record in this proceeding and find no basis for Respondent's charge. An Administrative Law Judge has the right if not the duty to ensure that there is a sufliciently developed record to enable him to make proper findings of fact and conclusions of law. In our judgment, the Administrative Law Judge did nothing more than exercise his proper function. 2 See, generally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962). 3 In accordance with our usual practice in cases where an unlawful discharge has been found, we shall provide for a broad remedial Order. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT discharge any employee for engaging in concerted activity for the purpose of mutual aid or protection under Section 7 of the National Labor Relations Act, as amended. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of rights under Section 7 of the Act. WE WILL offer reemployment to Michael Quin- nette and pay him for losses he suffered as a result of our having discharged him. GREENCASTLE MANUFACTURING COMPANY DECISION STATEMENT OF THE CASE ROBERT A. GIANNASI, Administrative Law Judge: This case was heard before me on April 4, 1977, in Indianapolis, Indiana, based upon a complaint which issued on February 10, 1977, alleging that Respondent had discharged employ- ee Michael Quinnette because he filed a grievance in violation of Section 8(aX3) and (1) of the National Labor Relations Act, as amended, and violated Section 8(aX)(1) by threatening discharge for this reason. The complaint was amended shortly before the hearing to allege that Respon- dent maintained and enforced a broad no-solicitation, no- distribution rule in violation of Section 8(aX)() of the Act. Respondent denied these allegations in its answer. Both parties filed briefs. Upon the entire record, and from my observation of the demeanor of the witnesses, I make the following: FINDINGS OF FACT I. THE BUSINESS OF RESPONDENT Respondent maintains its principal office and place of business at Greencastle, Indiana, where it is engaged in the manufacture of body and chassis components for the automobile industry and related products.' During the past I In its answer, Respondent stated that it is a division of The Lobdell- Emery Mfg. Company, a Michigan corporation. 234 NLRB No. 48 272 GREENCASTLE MANUFACTURING CO. year, Respondent, in the course of its business operations, manufactured, sold, and distributed products at its Green- castle, Indiana, facility valued in excess of $50,000 which were shipped directly to States other than Indiana and purchased and received goods valued in excess of $50,000 from sources located outside Indiana. Accordingly, I find, as admitted by Respondent, that it is an employer engaged in commerce within the meaning of Section 2(5) and (7) of the Act. 11. THE LABOR ORGANIZATION Local Union No. 1763, International Union, United Automobile, Aerospace and Agricultural Implement Work- ers of America (U.A.W.), herein called the Union, is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. The Facts Employee Michael Quinnette worked as a press operator for Respondent from 1971 until September 13, 1976. At that time he was discharged for poor workmanship. Respondent's employees are represented by the Union and are covered by a collective-bargaining agreement. A griev- ance was filed on Quinnette's behalf and, on October 7, 1976, in settlement of that grievance, Quinnette was rehired as a general service or maintenance employee. As a rehired new employee, Quinnette lost the seniority he had earned as a press operator and was subject to a 30-working-day probationary period. On December 10, 1976, Quinnette learned that another employee, Ron Cox, was suspended for 2 weeks for poor workmanship. Since it appeared to Quinnette that this was the same offense for which he was discharged, he ap- proached Union President and Committeeman Ed Bruner about the matter shortly before the 2:30 p.m. break. Quinnette told Bruner that he wanted to file a grievance to get his seniority back based on the Cox case. Bruner said that he was unaware of the suspension and that another committeeman, Union Vice President Bob Baldwin, was involved in that matter. At the 2:30 break, Quinnette approached both Bruner and Baldwin about filing a grievance. They told him that he had to have a committee- man file a grievance for him, but they suggested that he first talk the matter over with his supervisor, David Atwell. The applicable collective-bargaining agreement states as follows: Sec. I. Should any differences arise between the Company and any of its employees as to the meaning, application or violation of any of the provisions of this 2 I find nothing in the collective-bargaining agreement of the parties which would prevent a probationary employee from filing a grievance, particularly over matters which occurred when he was not a probationary employee. There is a contractual provision that states that the Union agrees to assume no responsibility for a layoff or discharge until the employee has attained seniority, i.e., has completed the probationary period of 30 days. However, this did not apply to the grievance Quinnette was attempting to file concerning his earlier loss of seniority. Agreement, such differences shall be settled by the following grievance procedure: (a) Any employee having a complaint may ask the foreman for his committeeman and shall get him at once after first discussing his complaint with the foreman..... At or about 2:40 p.m. on December 10, Quinnette approached Atwell and told him he wanted a committee- man in order to file a grievance. Atwell asked why and Quinnette mentioned the Cox suspension and his desire to get his seniority back. Quinnette was admittedly upset at this time. Atwell testified that Quinnette stated he wanted "a fucking committeeman and I want him right now." According to Quinnette, Atwell told him to go back to work and he would get in touch with the committeeman. According to Atwell, he stated that he thought Quinnette was still a probationary employee and he offered to check on it. Five minutes later Atwell came to the cafeteria where Quinnette was working and told him that he was a probationary employee since he only had worked 25 days instead of 30 in his new job and that he could not file a grievance under the contract. 2 Atwell left and, according to Quinnette, 5 minutes later Atwell again approached Quinnette. This time he told Quinnette he would have to fire him. According to Quinnette, the reason given was poor workmanship and, when Quinnette asked for a specific reason, Atwell stated that the bathrooms were dirty. According to Quinnette, the discharge conversation took place in Personnel Manager David Heavin's office and Atwell or Heavin also stated "we hired you back and what did you have to go and do this to us for?"3 Atwell testified that he checked on Quinnette's proba- tionary status-whether he had worked 30 days-in order to see if he could be discharged as a probationary employee. He testified that he determined that Quinnette only had 25 working days in his latest job and decided to fire him. Atwell also testified that he had considered discharging Quinnette previously but had not previously discussed this possibility with Quinnette. If Quinnette had still been on probation, Atwell testified he would have given him a warning slip "for using abusive language to a supervisor. Quinnette's basic duties as a maintenance employee included the cleaning of the restrooms, including the maintenance of an ample supply of toilet paper, paper towels, and soap and the cleaning of the lunchroom and the aisle ways. He also cleaned other areas of the plant, if requested to do so, and emptied the trash barrels. During the time Quinnette worked as a maintenance employee, about 15 to 20 construction employees worked regularly in and around the plant and used the restrooms as well as the 3 Heavin testified that he did not recall such a statement being made. Atwell testified that, in Heavin's office, he told Quinnette that he was "unable to do the job" and that he was going "to have to let [him I go." Atwell was not directly responsive to my question as to whether he recalled asking Quinnette "why did you have to do this to us." His answer was "not as such, not verbatim, no. I can't testify to the fact-I did not say that." After further questioning, Atwell said he could not remember making the statement and did not "believe" he did. 273 DECISIONS OF NATIONAL LABOR RELATIONS BOARD lunch area. This caused these areas to be in a greater state of disarray than usual. The record also shows that a night- shift employee was detailed to clean the lunch area at night and to sweep the floors, but that this was not done all the time. Quinnette testified without contradiction that, when he became janitor, there were leaks in the bathroom and out-of-order signs which he put on the fixtures were ignored. This condition prevailed until the middle of March 1977 and, as Union President Ed Bruner testified without contradiction, was not corrected until the Union intervened. Atwell testified that he was displeased with Quinnette's work and had spoken with him on several occasions, including once 3 days before December 10. Quinnette admitted he had been spoken to by Atwell but his testimony was uncontradicted that he was not warned about or disciplined for poor work. Atwell's objection to Quinnette's work at the hearing was that the bathrooms were dirty and not supplied and the floor was not swept properly.4 After his discharge, Quinnette waited in the parking lot for Bruner. He informed Bruner of his discharge and asked him to check again with Heavin whether he had only 25 days as a probationary employee. Bruner did so and then advised Quinnette that there was nothing he could do and suggested he seek redress from the Labor Board. B. Discussion and Analysis The General Counsel alleges that Quinnette was dis- charged because he attempted to file a grievance, a protected concerted activity, and thus Quinnette's dis- charge for this activity violated Section 8(a)(1) of the Act. The Respondent asserts that Quinnette was discharged for poor work and, alternatively, that Quinnette's attempt to file a grievance was not a protected concerted activity in the circumstances of this case. I reject Respondent's contentions and find that Respondent violated the Act by discharging Quinnette for a prohibited reason. It is settled that punishment of an employee for attempt- ing to file a grievance is prohibited by Section 8(a)(1) of the Act Clara Barton Terrace Convalescent Center, a Division of National Health Enterprises-Delfern, Inc., 225 NLRB 102a (1976). Complaints of this nature are concerted because they involve the implementation and enforcement of a labor agreement which is an "extension of the concerted activity giving rise to that agreement" which Section 7 of the Act guarantees. Bunney Bros. Construction Company, 139 NLRB 1516, 1519 (1962). This is so even though the complaint may be unmeritorious and is asserted by a probationary employee. See Interboro Contractors, Inc., 157 NLRB 1295, 1298 (1966), enfd. 388 F.2d 495 (C.A. 2, 1967); ARO, Inc., 227 NLRB 243 (1976). I find that Quinnette was discharged because he told Atwell that he wanted to see a committeeman in order to 4 Atwell's testimony on the whole is not substantially different from that of Quinnette. However, Atwell did testify that he fired Quinnette for poor work. I reject this conclusionary testimony for reasons hereafter stated and, to the extent Atwell's testimony differs from that of Quinnette, particularly as it describes Quinnette's work deficiencies, I discredit it. I found Atwell evasive in his testimony. I have already discussed his response to my questions concerning the statement made to Quinnette in the discharge interview. In addition, Atwell testified that he told Quinnette that he would file a grievance. The purpose of the grievance was to retrieve his seniority which he had lost when he was discharged and was thereafter reinstated to another job. Quinnette sought to equate his case with that of an employee who had recently been suspended for 2 weeks and had not lost his seniority in circumstances which Quinnette thought were similar to those which led to his discharge. Under the applicable bargaining agreement, the first step in the grievance procedure contemplated that an employee discuss his complaint with his foreman and then ask for "his committeeman." This is what Quinnette did, after checking with union representatives on the propriety of this approach. It is clear from the evidence that Quinnette made his intentions clear and that Atwell understood Quinnette's request as the initiation of a contract grievance: Atwell checked Quinnette's seniority status which he believed was a necessary predicate for the filing of a grievance. Quinnette was fired within an hour after he notified Atwell of his intention to file a grievance-a strong indication that this was the moving cause for the discharge. Moreover, in the discharge interview, Quinnette was told by either Atwell or Heavin, "We hired you back and why did you have to go and do this to us for?" The statement is only explainable by reference to Quinnette's strongly expressed desire to file a grievance to challenge his loss of seniority in light of an apparently different result in the case of another employee. Nothing else of consequence took place on December 10, the day of the discharge, which would explain the statement. I reject Atwell's conclusionary denial that he fired Quinnette because he requested a committeeman and sought to file a grievance. Had the discharge or the statement referred to above dealt with Quinnette's poor job performance-the reason offered by Respondent for his discharge-it is likely there would have been a warning or discipline short of discharge. And the discharge would not have come so precipitously. Respondent's officials testified that Quinnette's poor work performance had been appar- ent to them for some time-almost since he began working as a maintenance employee-and Atwell talked to him about his performance on several occasions. Thus, even assuming, as Respondent contends, that Atwell was contin- uously evaluating Quinnette as a probationary employee, no reason appears in the record why Atwell chose this day and time to discharge Quinnette. There apparently had not been any specific criticism of or fault with Quinnette's work on December 10 and he had 5 days left as a probationary employee. The significant thing that did happen on that day and shortly before the discharge, however, was Quinnette's expressed intent to file a griev- ance. That this was the significant factor in the discharge is shown by Atwell's own testimony. First of all, he told Quinnette he was going to check on his seniority in check on his seniority in response to Quinnette's inquiry about his filing a grievance; this would tend to indicate that this prompted his check to find out whether Quinnette was still a probationary employee. Yet Atwell insisted that he checked on Quinette's seniority to see if he could fire Quinnette as a probationary employee. For these reasons and, considering the demeanor of both witnesses, I find that Atwell was less candid and reliable than Quinnette and I credit Quinnette. 274 GREENCASTLE MANUFACTURING CO. response to Quinnette's request to file a grievance. Thus, the decision to check on his seniority was prompted not by an independent evaluation of Quinnette's work, but by Quinnette's grievance request and Atwell's apparent belief that no grievance could be filed by a probationary employee. This is buttressed by Atwell's testimony that, had he discovered Quinnette was not on probation, he would not have discharged him but would have cited him for using "abusive language" to a supervisor. This "abusive language" was related to Quinnette's grievance request and, even under Atwell's version, consisted of a single profane modifier to his request for a committeeman. 5 In arguing that Quinnette's activity was not protected, Respondent, in reliance on Snap-On Tools Corporation, 207 NLRB 238 (1973), asserts that Quinnette had no right to file a grievance over the discipline of another employee. Respondent states that there are two reasons why he had no right to file a grievance: (I) it would have been untimely, coming more than 48 hours after his own original discharge in September 1976; and (2) the settlement of his original grievance was resjudicata. I do not find either the case or Respondent's argument persuasive. First of all, whether or not the ultimate grievance filed is meritorious is not relevant under Board law. This is true whether the alleged lack of merit is procedural or substan- tive. Quinnette sought the aide of a committeeman through Atwell as he had been directed by his union representatives and as the contract provided. Discussions with manage- ment through the committeeman or the formal grievance procedure may well have resolved Quinnette's complaint that he was treated less favorably than another employee. It is not the Board's function, in enforcing rights under the Act, to determine whether or not a grievance or a complaint may be successfully resolved under a particular labor agreement. Rather, the Board is charged with protecting an employee's right to utilize the collective- bargaining agreement in resolving problems and it prohib- its punishment of an employee for exercising this right. Snap-On Tools does not support Respondent's position because it is distinguishable on its facts. In that case, an employee was discharged for protesting a job assignment; he did not attempt to file a grievance or utilize the grievance provisions of a labor agreement. Under the applicable contract, however, the job assignment was governed by seniority and the employee was a probation- ary employee. As the Board stated, the contract "specifical- ly provided that probationary employees have no seniority status and, thus (the employee's] complaint concerned a seniority right which did not exist under the contract. He was, therefore, not attempting to implement or enforce any terms of the contract, and his complaint was . . . purely personal and not a concerted activity." 207 NLRB at 239. ' The record does not reveal in any other detail how Quinnette's request to Atwell was "abusive," as Respondent contends. Such language does not constitute flagrant misconduct or insubordination and is hardly sufficient to remove Quinnette's conduct from the protection of the Act. See Crown Central Petroleum Corporation v. N.I^R B., 430 F.2d 724. 731 (C.A. 5, 1970): Dreis & Krump Manufacturing Compan,, Inc. v. N. L R. B. 544 F.2d 320, 328- 329 (C.A. 7, 1976) 6 This case differs from Snap-On 7ools in two other respects: first, Quinnette discussed his complaint with a union representative before bnnging it to the employer's attention; and, secondly, Quinnette's activity- the implementation of the grievance procedure is clearly a significant The Board viewed as significant the fact that the employee made no reference to any purported right from the collective-bargaining agreement. 207 NLRB at 238-239. That this may have been a pivotal factor is illustrated by the Board's subsequent decision in A RO, Inc., supra, wherein the Board found that a complaint by an employee who "had no seniority status or rights under the contract" and relied on rights "specifically abrogated by the con- tract" constituted protected activity because her "reliance on its provisions brings her actions within the realm of protected concerted activity." (227 NLRB at 243-244.) Here, as in ARO and unlike in Snap-On Tools, the employee clearly relied-whether properly or not-on the provisions of the applicable agreement. Indeed, the em- ployee was specifically attempting to file a grievance under the agreement which makes this case even stronger than ARO. Quinnette's request for a committeeman was made, after consulting responsible union representatives, pursu- ant to article IV of the contract, and Atwell knew that the request was being made as a prelude to a grievance under the contract.8 In short, Respondent discharged Quinnette for engaging in activity-attempting to file a grievance under an applicable labor agreement-which has been recognized as a concerted protected activity and not a purely personal activity. Accordingly, I find that by such conduct Respon- dent violated Section 8(aX)() of the Act.7 C. The No-Solicitation, No-Distribution Rule The complaint also alleges that the following no-solicita- tion, no-distribution rule in effect since June 3, 1976, at Respondent's facility was unduly broad and thus violative of Section 8(aX 1) of the Act: 20. Unauthorized soliciting or collecting contribu- tions for any purpose whatsoever on Company prem- ises Unauthorized distribution of literature, written or printed matter of any description on Company prem- ises. Failure to comply with any of the above rules will result in discussion with department supervision, which may lead to discharge. Respondent admitted the existence of the rule but asserted in its answer that, on March 18, 1977, Respondent amended its rule and notified all employees of the amendment. As amended the rule prohibits: group concern. These factors were not present in Snap-On Tools (207 NLRB at 239, fn. 4), and thus the Board distinguished C A I Air Conditioning, Inc., 193 NLRB 911 (1971). a seemingly similar case, which also supports the result reached in the instant case. 7 Since Respondent appears to have an amicable relationship with the Union, because there is no evidence of union animus, and because the remedy would not be matenally different. I find it unnecessary to determine whether the discharge also violated Sec. 8(aX3). I also find that there is no evidence of an unlawful threat of discharge for engaging in protected activities independent from the discharge itself. I therefore shall dismiss this specific allegation in the complaint. 275 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 20. Unauthorized soliciting or collecting contribu- tions for any purpose whatsoever during working time. Unauthorized distribution of literature, written or printed matter of any description in working areas or during working time. No further evidence was submitted on this issue by either party. However, the General Counsel conceded that the old rule was not enforced and that the new rule is "acceptable" to the General Counsel. Although the original rule 20, which was unenforced, was an overly broad rule under applicable Board law, I do not believe it would serve the purposes of the Act to issue a cease-and-desist order to remedy what I consider a techni- cal violation which was effectively remedied. Respondent has modified the rule to comport with Board law. The new rule is admittedly acceptable to the General Counsel. To require a cease-and-desist order and a notice posting on this issue would ignore the commendable efforts of Re- spondent to voluntarily comply with existing law and might cause tension and possible industrial strife at the plant over an issue which is presently moot. In these circumstances, a remedial order is not necessary. See Mallory Battery Company, 176 NLRB 777, 779 (1969); cf. Utrad Corp. v. N.L.R.B., 454 F.2d 520, 523-524 (C.A. 7, 1971). Accordingly, I shall recommend that this aspect of the complaint be dismissed. CONCLUSIONS OF LAW 1. By discharging employee Michael Quinnette because he engaged in concerted protected activities, Respondent interfered with, restrained, and coerced its employees in the exercise of rights guaranteed in Section 7 of the Act and thereby has engaged in an unfair labor practice within the meaning of Section 8(a)(1) of the Act. 2. The aforesaid unfair labor practice affects commerce within the meaning of Section 2(6) and (7) of the Act. 3. Respondent has not violated the Act in any other manner which warrants a remedial order. THE REMEDY I shall recommend that Respondent cease and desist from discharging or discriminating against employees for engaging in concerted activity and that it offer reinstate- ment to the employee found herein to have been unlawfully discharged, with backpay, computed as provided in F. W. Woolworth Company, 90 NLRB 289 (1950), and Isis Plumbing & Heating Co., 138 NLRB 716 (1962). s In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec. 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. Upon the foregoing findings of fact, conclusions of law, and the entire record in the case, and pursuant to Section 10(c) of the Act, I hereby issue the following recommend- ed: ORDER8 The Respondent, Greencastle Manufacturing Company, Indianapolis, Indiana, its officers, agents, successors, and assigns, shall: I. Cease and desist from: (a) Discharging employees or discriminating in regard to their hire, tenure of employment, or any term or condition of employment, because they have engaged in concerted activities for the purpose of mutual aid or protection. (b) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of their rights guaranteed by Section 7 of the Act. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Offer Michael Quinnette immediate and full rein- statement to his former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to his seniority or other rights and privileges, and make him whole for any loss of earnings he may have suffered, in the manner set forth in the section hereof entitled "The Remedy." (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this recommended Order. (c) Post at its Greencastle facility copies of the attached notice marked "Appendix." 9 Copies of said notice, on forms provided by the Regional Director for Region 25, after being duly signed by Respondent's representative, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that said notices are not altered, defaced, or covered by any other material. (d) Notify said Regional Director, in writing, within 20 days from the date of this Order, what steps the Respon- dent has taken to comply herewith. IT IS FURTHER ORDERED that the complaint is dismissed insofar as it alleges unfair labor labor practices not found or remedied herein. 9 In the event that this 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 read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." 276