Nugent Service, Inc.

158 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Nugent Service, Inc. and Lawrence D. Vellani. Case observation of the witnesses and their demeanor, I make 9-CA-7594 the following: November 9, 1973 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS On June 25, 1973, Administrative Law Judge Milton Janus issued the attached Decision in this proceeding. Thereafter, the General Counsel filed exceptions and a supporting brief and Respondent filed an answering brief. 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, 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 Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge and hereby orders that the complaint be, and it hereby is, dismissed in its entirety. DECISION STATEMENT OF THE CASE MILTON JANUS, Administrative Law Judge: The General Counsel issued his complaint in this proceeding on April 19, 1973, after a charge and an amended charge filed by Lawrence D. Vellani on February 15, and April 12, 1973, respectively. The complaint alleges that the Respondent (Nugent or the Company) violated Section 8(a)(1) by discharging Vellani, on January 4, 1973, for engaging in protected concerted activity. The testimony introduced on behalf of the General Counsel was intended to show that the Company discharged Vellani because it disapproved of his active electioneering for a slate of union officers in an intraunion campaign, while the Company's evidence was intended to show that it discharged him for insubordina- tion arising out of his efforts to post partisan campaign material on company bulletin boards, after being instruct- ed by supervisors to stop. I held a hearing in this matter on May 16, 1973, in Columbus, Ohio, at which all parties were represented. Briefs have been received from the General Counsel and the Respondent, which I have duly considered. Upon the entire record in the case, including my FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT Respondent, an Illinois corporation with its principal place of business located at Chicago, Illinois, is engaged in providing contract labor services at various locations throughout the United States. At Columbus, Ohio, the only operation involved in this proceeding, it provides loading, unloading, and checking services at a shipping terminal owned by Terminal Freight Cooperative Association. During a representative 12-month period, Respondent performed services, in the course and conduct of its business operations, valued in excess of $50,000, for customers located outside the State of Illinois. Respondent admits, and I find, that it is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The Brotherhood of Railway, Airline and Steamship Clerks, Freight Handlers, Express and Station Employees Union, AFL-CIO, hereinafter called the Union, is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Background The Company began supplying contract labor at the Columbus freight terminal in the spring of 1972. It now employs over 100 loaders and checkers on a three-shift operation. It has a 3-year collective-bargaining agreement with the Union which became effective in August 1972. On September 17, 1972, the Union held its first election of officers from among its members employed in the unit. Among those elected were Alva Hanners as local chairman of the Protective Committee (in effect, chief steward) and Lawrence Vellani, the charging party here, as one of the two committeemen for the third shift. Committeemen assist the local chairman in the filing of grievances and policing the contract. Within a month or so, some employees, mainly on the third shift, became dissatisfied with the conduct of the newly elected officers, and also questioned the legality of the election under the Union's constitution. By the time of the November meeting, scheduled for the second Sunday of the month, protest had sufficiently crystallized so that a group of approximately 50 men met just before the scheduled meeting to plan a course of action to be taken there. The caucus was chaired by Vellani and another union member, Bill Frick. Vellani presented a resolution setting out reasons why the September election should be set aside and new officers be chosen. A second resolution petitioning for the immediate recall of Hanners from his position as local chairman was also introduced by Vellani. It accused Hanners of specific instances of malfeasance and of disregarding the terms of the contract , but noted that it was not intended as a reflection on his character, 207 NLRB No. 14 NUGENT SERVICE, INC. 159 integrity, or sincerity. The caucus adopted both resolu- tions. The caucus then adjourned and proceeded to attend the regularly scheduled meeting, over which Hanners was to preside. Before that meeting began, Vellani and another member showed Hanners the two resolutions which the caucus had just adopted. Harmers said he thought the September election had been conducted legally, and saw no reason to hold a new election. According to Vellani, Harmers was also quite indignant at the petition to recall him, saying that he would continue to carry out his office to the best of his abilities, and that the objections to him were being raised by a handful of agitators who were trying to stir up trouble. Vellani left the meeting early but testified that he had heard from others that the union officers would not allow a vote to be taken on the resolution for a new election, claiming that the International would have to decide it. In any event, the International did rule shortly after the November meeting that the September election of officers should be set aside, that nominations for new officers should be made at the December meeting, and that the election be conducted at the January meeting. At the December meeting, a self-styled "Reform Slate" of officers was nominated by the group which had been active in seeking a new election . Vellani was nominated for vice president in opposition to the incumbent, while Frick, also a member of the reform group, was nominated to run for local chairman in opposition to the incumbent, Hanners. Keith Cupp, also an active member of the reform group, was nominated for president without opposition, so that his election was secure. Vellaani and Frick, after discussions with other candi- dates of the "Reform Slate," drafted a statement of the principles the group stood for (G.C. Exh. 2); Vellani also prepared biographical material and qualifications of those running on the reform slate, to which was attached the resolution for a new election which had been presented at the November meeting, together with a note that the International had upheld the resolution (G.C. 3); and Vellani also drafted a statement for Keith Cupp, the unopposed candidate for president, in which Cupp supported the candidacies of Vellani and Frick who were running against incumbent officers. (G.C. 4). B. The Bulletin Boards The contract between the Union and the Company contains a provision that bulletin boards will be provided at the terminal. There were two such boards, one on either side of the door between the dock area and the employees' lunchroom. The Company posted its own notices to employees, and permitted the Union (pursuant to rule 41 of the contract) to post its notices and information of general interest to its members, such as notices of meetings and letters received from the International. Employees also placed personal notices on the boards, relating to such matters as car pools and items offered for sale. No prior approval from a company supervisor was needed to post a notice by the Union or individual employee. C. Events Leading to Vellani's Discharge The third shift, on which both Vellani and Hanners worked, was from midnight to 8:30 a.m. Before his shift began on January 2, Vellani posted copies of the documents prepared by the "Reform Slate" which have been described and identified above as General Counsel's Exhibits 2, 3, and 4, on the bulletin boards. During nonworking times, he also distributed copies to men on his shift and another shift. The next day he saw that the three notices had been removed from the boards , so he replaced them from a stock which he had in his locker. They had been removed by Hanners , the incumbent local chairman, who was running against Frick, a member of the reform group in which Vellani was prominent. Exactly how many times the notices were posted by Vellani and removed by Hanners is not entirely clear, although Hanners said that he had removed them three times. He knew that they were being put up by someone in the reform group . Hanners said that he had checked with an official of the Interna- tional who agreed with him that it was not legitimate union business, and that he also felt that as local chairman he had the right to approve what was posted for or by the Union. Sheridan, the terminal manager, testified that he knew that the reform group had posted its notices on the boards and had distributed them to the men on nonworking time. He said he had no objection to either method of publicizing the group's position on the union election. After Vellani clocked out at the end of his shift on January 4 at 8 :30 a.m., a fellow employee told him that Hanners had again removed the notices from the bulletin boards. Vellani then went directly to the lockerroom where Hanners was seated at a table, doing some union work, and asked him if he had removed the literature from the boards. Hanners said he had, and that it would stay off as long as he was local chairman. Vellani then told him that as local chairman he had no right to dictate what could go up on the boards. Hanners stood up and began gesturing in Vellani's face with a pen. Vellani pushed his hand aside and told him if he had anything more to say it would have to be "on the other side of the fence." Just then their assistant foreman, Pete Boss, intervened and in a concilia- tory tone asked them to cool it, and told Vellani to go home if he had clocked out. Vellani then turned to Hanners and told him that he was going to post the notices again, and that he expected to find them there when he returned on his next shift. Vellani went to his locker, got more notices, and posted them. Boss, in the meantime, went to tell Garen, the foreman, that trouble was brewing, and that somebody was going to get smacked in the mouth- However, Vellani had already left the premises, but returned almost immediately because, he said, he wanted to make sure that a phone message he had taken for someone had been reported to that party. As he was returning to the terminal, other employees told him that the terminal manager, Sheridan, had ordered Garen, the third-shift foreman, to remove the notices from the boards. When Vellani returned he went immediately to the lunchroom where Garen was standing , and asked him if he had removed the notices. Garen said he had, and Vellani then pushed by him to go to his locker. Garen told him not 160 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to put up any more of the notices, but Vellani told him it was a union matter, that it was none of his concern, and that he, Vellani, would take care of it. Garen then told him again not to put the notices up and to leave or he would be fired. Vellani said he told Garen that he had no control over hiring and firing, that it was up to Sheridan, and that he didn't have to do what Garen was ordering him to do. Garen asked Vellani if he was on the clock and, when Vellani admitted he wasn't, Garen told him to go home. Vellani then asked Garen, his foreman, if he was on the clock, and that if he wasn't he was just a union member like himself.' About this time, Sheridan appeared in the lockerroom and after some conversation, told Vellani not to post the notices and to go home and warned him that he would be fired if he insisted on posting the notices. Vellani said it was a union issue, and the Union didn't need the Company's permission to post its notices. Sheridan told him he didn't want the men on the dock stirred up, at which Vellani said it was only Garen who was stirring things up by issuing improper orders. Vellani said he was the committeeman on the third shift, that Sheridan was wrong in issuing his order, and that he wasn't obliged to follow it. Sheridan then told him he could follow the proper procedure and file a grievance, to which Vellam responded by saying that he had no grievance to file until Sheridan made good his illegal threat to fire him for posting the notices. Sheridan again warned him not to post the notices on pain of dismissal, at which Vellani dared him to repeat his threat to the other men who were present in the lunchroom. Vellani then went out and posted the notices, at which Sheridan told Garen to prepare dismissal papers on him. Later that day, Sheridan sent Vellani a telegram and a registered letter suspending him pending a hearing Vellani tried to return to work the next day but was barred from entering by the guard. Vellani phoned the foreman's office and spoke to Sheridan who repeated that he was fired. Vellani told him he wanted to file a grievance, and Sheridan told him it would have to be presented by the local chairman, Hanners. The above is essentially Vellani's versions of his encounters on January 4, with Hanners, Boss, Garen, and Sheridan which led to his discharge. Each of these also testified as to his individual recollection of the same events. Even from Vellani's version it is apparent that tempers were rising during the half hour or so between his first confrontation with Hanners and his discharge by Sheridan, and that the situation in Vellani's own term was "volatile."" That impression is home out and even heightened from the recitals of the others who participated in attempting to dissuade Vellani from posting the notices and to leave the premises. I am satisfied that Garen and Sheridan had reason to be concerned over Vellani's insistence that he would continue to post the notices despite the objections of Hanners and the direct orders of Garen and Sheridan that he desist. There were employees in the lunchroom observing Vellani's return to the dock area after he had punched out and left, and his belligerence in the face of requests and warnings that he leave the plant and file a grievance if he felt that he had a right to post the notices. The supervisors present might properly fear that there was some possibility of physical force and loss of discipline if Vellani was not curbed. I have no reason to discredit Sheridan's statement made at the hearing that he did not want anything on the bulletin boards which might cause friction or trouble on the dock. D. The Grievance Arbitration Proceedings Vellam filed a grievance protesting his discharge through Hanners, the appropriate union official. A hearing on the grievance was held January 9, before a company official sent from its Chicago headquarters. He affirmed the terminal manager's decision to discharge Vellani for insubordination. Vellam then requested the International Union to take the matter to arbitration, but it declined to do so in a letter dated March 7, 1973. Vellam filed an appeal from that decision, and has been advised that the matter is under review. At the hearing in this case, Vellani testified that he no longer wants to go to arbitration because he does not feel that the Union would represent him adequately. The Company does not contend that the instant unfair labor practice proceeding should be deferred pending arbitration. It did not raise that possible defense in its answer to the complaint, nor seek to litigate it at the hearing, nor argue it in its brief to me. For that reason alone, and without considering other reasons proposed by the General Counsel for deciding this matter immediately, I find that deferral to the contractual grievance and arbitration machinery is not appropriate here.2 E. Concluding Findings The issue here is the extent to which the Company could restrict use of the bulletin boards during a campaign for the election of union officers, after a confrontation between adherents of the two opposing factions. The General Counsel asserts that after allowing the boards to be used without restriction the Company could not prohibit Vellani from posting his campaign literature and that, since the orders of Garen and Sheridan were unreasonable and unlawful, Vellani was not so insubordi- nate as to justify his dismissat-Further, he argues, Vellani's statements concerning his right to post the leaflets were made in the heat of the moment arising from his understandable anger at the unreasonable and unlawful prohibition against the posting, and that this type of conduct is protected in the context of the presentation of grievances. The Company argues that it has shown no union animus; that it took no sides between the two factions contending for union office; that it freely permitted distribution of the "Reform Slate's" literature at appropriate times and places at the terminal; and that it permitted it the use of the bulletin boards for posting its literature until it appeared that it might affect good order at the terminal. It also argues that it did not absolutely forbid Vellani from ' All employees at the terminal, except the terminal manager and his 2 Hunter Saw Division of Asko, Inc., 202 NLRB 330, fn. 2. assistant, were members of the Union. NUGENT SERVICE, INC. 161 posting his leaflet, but merely removed it pending resolution of the controversy through the filing of a grievance, and that Vellani's response to that offer was an insubordinate outburst. The General Counsel points out, in arguing that everyone was reasonably well-behaved the morning of January 4, that calm was restored to the lockerroom when Boss, the assistant foreman, intervened between Vellani and Hanners, urging the former to leave, and that when Garen went into the lunchroom he also found it calm. What is omitted is that calm prevailed only when Vellani was not there, and that when he returned to confront first Hanners, and then Garen and Sheridan, the atmosphere became charged by rising tempers. I find that Garen and Sheridan, confronted with Vellani's uncompromising attitude on his asserted right to post his pamphlets then and there, reasonably believed that a quick decision was needed to prevent trouble from developing. It is unlikely that there would have been any physical contact if Hanners had continued to remove Vellani's leaflets from the boards, but Garen and Sheridan did not have to wait for the worst to happen before taking a stand. They could, of course, have ordered Hanners not to interfere with Vellani's posting, but that too would make it appear that management was taking sides in an intraunion dispute. Hanners did outrank Vellani in the union hierarchy, and in his capacity as local chairman, was the official with whom the Company dealt on union matters. Thus, since a choice had to be made between upholding Hanners or Vellani, it was reasonable to support what seemed to be the Union's official position that partisan electioneering material should not be posted on the bulletin boards. Garen and Sheridan attempted +o restore order by telling Vellani to leave the plant, to stop trying to post his material, and to file a grievance if he thought their action was unjustified under the contract. If their order to Velllani not to post his leaflets tended to favor Hanners and the other incumbent officers, its effect was slight since Vellani still had the right to distribute the same material personally to all the employees, and had done so a day or so earlier, without interference from management or Hanners. I therefore find that Vellani was insubordinate in refusing to comply with Sheridan's order that he not post the leaflets and that he leave the plant .3 The final question to be resolved is whether, despite his insubordination, Vellani was engaged in a protected activity for which, on balance, it was illegal to discipline him. A wide range of union activity and expression within a plant is protected. Thus, employees on nonwork time, though paid, may solicit others to engage in union or other protected activity on company property, and may distrib- ute literature relating to such purposes in nonwork areas and on nonwork time.4 Also, absent special circumstances, an employer may not prohibit or restrain employees from engaging in activities on nonwork time which are intended to effect a change in their bargaining representative.5 Further, employees who confer with management on union business are permitted a freedom of expression in dealing with their employer's representatives that might,' under other circumstances, exceed the bounds of propriety.6 And finally, an employer who permits official union notices and communications to its members to be-posted on its bulletin boards may not thereafter discriminate against an employ- ee who posts a union notice which meets the employer's rule or standard but which the employer finds distasteful; 7 while an employer whose practice it has been to permit employees to post on its bulletin boards notices of various types unrelated to their employment but who removes only notices of union meetings violates Section 8(a)(1) thereby.8 Here, the Company permitted all kinds of personal notices to be posted, as well as official union notices about meetings, elections, and nominations. It even raised no objection when Vellani first posted his partisan electioneer- ing material on the boards. Not until it became apparent, through Harmers' removal and Vellani's reposting of this material, that there would be continual strife between the two representatives of the rival factions did Sheridan in effect decide that the Company's bulletin boards should not become a battleground for the competing groups. To hold, as the General Counsel seems to contend, that Vellani and his group had an absolute right to use the bulletin boards in their campaign for union office would, in my opinion, be unduly prejudicial to the Company's property and management rights. Use of the bulletin boards to carry on a partisan union campaign is not essential to publicizing the position of either of the rival groups, since each had the right to solicit employees and distribute its literature at appropriate times and places. The boards then are only one of the means of communication between candidates for union office and their constituency. But since the boards are also a medium of communication between an employer and his employees (like a company publication) their use for partisan union purposes serves to entangle the Employer in a dispute which should be none of his concern, and which could force him to intervene in allocating the amount of space available and the length of time each side could have for posting its literature. I think it is more conducive to employees' rights to require an employer to keep hands off all aspects of a union election than it would be for him to intervene, no matter how even- handedly he might attempt it. Based on the foregoing, I conclude that Vellani did not have a right protected by Section 7 of the Act to post his partisan campaign literature on the bulletin boards, and that the Company did not violate Section 8(a)(1) for discharging him because of his insistence that he be allowed to do so. I shall therefore recommend that the complaint be dismissed. 3 The Company has a published rule that insubordination will result in 6 Crown Central Petroleum Corporation, 177 NLRB 322, and Red Top, automatic dismissal for the first offense. Inc., 185 NLRB 989. 4 Stoddard-Quirk Manufacturing Co., 138 NLRB 615. 4 Tempco Manufacturing Company, Inc, 177 NLRB 336, 342, fn. 20, 348. 5 Glenn Berry Manufacturers, Inc., 169 NLRB 799, enfd. 422 F.2d 748 8 Challenge-Cook Brothers of Ohio, Inc, 153 NLRB 92, enfd. 374 F.2d (C.A. 10, 1970), and Cooper Tire & Rubber Company, 185 NLRB 233. 147 (C.A. 6, 1967). 162 DECISIONS OF NATIONAL LABOR RELATIONS BOARD CONCLUSIONS OF LAW 1. Nugent Service, Inc., is engaged in commerce and in activities affecting commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. The Respondent has not engaged in any unfair labor practices alleged in the complaint. - RECOMMENDED ORDER It is hereby recommended that the complaint be dismissed in its entirety.