General Motors Corp., Inland Division

GENERAL MOTORS CORPORATION, INLAND DIVISION General Motors Corporation, Inland Division and United Rubber, Cork, Linoleum and Plastic Workers of America, Local Union No. 87, AFL- CIO-CLC. Case 9-CA-10223 October 18, 1977 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND MURPHY On April 1, 1977, Administrative Law Judge Claude R. Wolfe issued the attached Decision in this proceeding. Thereafter, the General Counsel filed exceptions and a supporting brief, and Respondent filed a brief in support of the Decision. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge only to the extent consistent herewith. The Administrative Law Judge found that Union Steward Abney's refusal to direct employee-grievant Simpson to return to work, as ordered by his supervisor, was neither reasonable nor protected. Accordingly, the Administrative Law Judge dis- missed the complaint herein, which alleged that Abney's suspension based on his refusal was viola- tive of Section 8(a)(1) and (3) of the Act. The General Counsel has filed exceptions to this finding, which, for the following reasons, we find meritorious. As acknowledged by the General Counsel, the facts of this case as found in the Administrative Law Judge's Decision are substantially correct and complete. In brief, the incidents which preceded the suspension began on March 5, 1976,1 when Foreman Roberts disciplined employee Simpson for allegedly starting work late, loitering, and not following orders. Although Roberts orally notified Simpson at 7:30 a.m., at the beginning of his shift, that he was to be disciplined, he did not actually write out the notification until 2:30 p.m., when he and Simpson went to Union Steward Abney's office. The three men then discussed the matter until 3 p.m., when they adjourned the meeting until the next morning because the shift had ended. They met again the following morning in Abney's office and further discussed the matter for about 50 minutes, after which time, no agreement having been reached, Abney began to reduce to writing Simpson's griev- ance over his discipline. Roberts gave Abney 10 minutes to write the grievance and left. Roberts then consulted with Abney's foreman and the plant's general foreman, advising them that he (Roberts) believed that Simpson and Abney were abusing the grievance procedure. Following these conversations, Roberts returned to Abney's office and asked him if he was finished with the grievance. Abney responded that he was not finished and Roberts said he thought he had had enough time. He then told Simpson to return to his job. There followed a discussion during which Abney raised the question of the propriety of Roberts curtailing the grievance procedure and Roberts repeated his direction to Simpson three or four times. Each time Roberts directed him to return to work, Simpson asked Abney if he had to do so. Abney's consistent response was that Simpson did have a right as a grievant to remain, but that if he did not leave he would probably be disciplined and that it was Simpson's decision to make. Abney then stated that he intended to continue with the grievance procedure. Abney's foreman, Travick, who had joined the meeting, suggested that Abney have Simpson return to work and then get his own steward and resolve the question of Roberts' alleged interference with the procedure. When Abney refused to comply with this suggestion, Simpson refused to return to work. Roberts then suspended Simpson for refusing to obey an order of a supervisor and Travick suspended Abney for allegedly abusing the grievance procedure. The Administrative Law Judge found that Abney's refusal to tell Simpson to return to work was a factor in Travick's decision to suspend him. The record shows that less than 2 hours in total were spent on Simpson's grievance. The General Counsel, contrary to the Administra- tive Law Judge's conclusions, contends that Abney's actions set forth above were entirely reasonable under the circumstances and therefore fully protect- ed. Thus, the General Counsel points to Abney's uncontested testimony that he had been given assurances by General Foreman Francis less than 2 weeks before the events in question that Foreman Roberts would not interfere with the grievance procedure by ordering grievants to return to work while Abney was processing their complaints. This assurance came after Abney had complained to his foreman, Travick, that on January 30 Roberts had directed a grievant to leave Abney's office on the ground that the grievant had been there long enough (approximately 25 to 30 minutes according to Abney's estimate). Subsequently, on February 23 I All dates hereafter are in 1976. 233 NLRB No. 13 47 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Francis told Abney that he would speak to Roberts about Abney's complaint that he could not do his job effectively if a foreman could direct people to leave his office, and that it would not happen again. In the January 30 incident, Abney had acceded to Roberts' request and advised the employee to return to work. The General Counsel argues, and we agree, that, when the same circumstances arose again less than 2 weeks after Abney's receiving Francis' assurances that he had a right to continue with the grievance procedure without interference from the foreman, Abney was acting not only in a reasonable way in refusing to request Simpson to return to work, but also according to Respondent's own directions. In addition, we disagree with the Administrative Law Judge's conclusion that Abney's rejection of Travick's request that he tell Simpson to go back to work and submit a separate grievance over the question of how long a time was reasonable for handling Simpson's grievance was an arrogation to himself of the sole authority to determine the question. As the record shows, and the Administra- tive Law Judge himself found, Abney had just recently submitted this very question to higher management and, after being assured that no formal grievance proceeding was necessary, was advised that no further interference from foremen would occur. If Abney, under these circumstances, had again acceded to Roberts' request to submit the question to the grievance procedure he would, in effect, have been acknowledging the foreman's right to delay grievance processing whenever he chose to do so, when duly constituted higher authority had already decided that it was Abney's prerogative to make the determination of the time he needed for preparing grievances. In our view, requiring such a further concession by Abney would be unreasonable and thus his refusal to do so was justified. It is unnecessary for us to decide whether or not Respondent previously interfered with Abney's processing of grievances and, if so, whether such conduct would establish that Respondent engaged in a pattern of harassment. It is enough that the facts in the instant case clearly show that Abney was acting reasonably in processing Simpson's grievance and in refusing to direct him back to work before he had finished. It was not Abney's role or responsibility to order Simpson to return to work-that responsibility must remain with management. Abney had no affirmative obligations in this regard. His only obligation was to refrain from any action which would be in direct contravention of Roberts' orders to Simpson. This Abney did. Accordingly, Respon- dent's suspension of Abney because of his conduct 2 Backpay shall be computed in the manner set forth in F W. Woolworth Company, 90 NLRB 289 (1950), and interest thereon as set forth in Isis constitutes interference with protected activity in violation of Section 8(aXl) and (3) of the Act. In reaching this conclusion we agree with the General Counsel that the cases cited by the Administrative Law Judge are inapposite as dealing with situations concerning stewards who were acting either in disregard of agreed-upon procedure or engaging in loud and abusive conduct. We find, based on the record in this case, that Abney, in processing Simpson's grievance, was acting pursuant to the directions of management and clearly within his function as union steward and in so doing did not exceed the boundaries of acceptable conduct. Ac- cordingly, we shall order Respondent to cease and desist from engaging in the conduct herein found violative of Section 8(a)(1) and (3) and to post an appropriate notice. We shall also order Respondent to make Abney whole for any loss of wages or other benefits he suffered as a result of his suspension,2 and to expunge any record of his suspension, to the extent that such actions have not already been taken by Respondent. AMENDED CONCLUSIONS OF LAW Substitute the following for the Administrative Law Judge's Conclusion of Law 3: "3. By discriminatorily suspending Hubert C. Abney on March 6, 1976, for his actions in processing a grievance, Respondent has violated Section 8(a)(l) and (3) of the Act." ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, General Motors Corporation, Inland Division, Day- ton, Ohio, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discriminating against employees for process- ing grievances. (b) In any other manner interfering with, restrain- ing, or coercing employees in the exercise of their Section 7 rights. 2. Tale the following affirmative action designed to effectuate the policies of the Act: (a) Make whole Hubert C. Abney for any loss of earnings occasioned by his disciplinary suspension on March 6, 1976, in the manner described in this Decision. (b) Expunge any record of the disciplinary suspen- sion of Hubert C. Abney on March 6, 1976. Plumbing & Heating Co., 138 NLRB 716 (1962), and Florida Steel Corporation, 231 NLRB 651 (1977). 48 GENERAL MOTORS CORPORATION, INLAND DIVISION (c) 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 Order. (d) Post at its Dayton, Ohio, place of business copies of the attached notice marked "Appendix." 3 Copies of said notice, on forms provided by the Regional Director for Region 9, after being duly signed by Respondent's authorized representative, shall be posted by Respondent 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 Respondent to insure that said notices are not altered, defaced, or covered by any other material. (e) 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. 3 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." APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT suspend or otherwise discipline, or take any other discriminatory action against, employees because of their protected activity in processing grievances. WE WILL NOT in any other manner interfere with, restrain, or coerce employees in the exercise of their rights to self-organization, to form, join, or assist any labor organization, to bargain collectively through representatives of their own choosing, to engage in concerted activities for the purposes of collective bargaining or other mutual aid or protection or to refrain from any and all such activities. WE WILL reimburse Hubert C. Abney for any loss of wages or other benefits occasioned by his suspension on March 6, 1976, plus interest. WE WILL expunge from all records any and all references to the suspension of Hubert C. Abney on March 6, 1976. GENERAL MOTORS CORPORATION, INLAND DIVISION DECISION STATEMENT OF THE CASE CLAUDE R. WOLFE, Administrative Law Judge: This case was heard before me at Dayton, Ohio, on November 19, 1976,1 pursuant to a complaint issued on May 27 by the Regional Director for Region 9 of the National Labor Relations Board, based on charges filed by United Rubber, Cork, Linoleum and Plastic Workers of America, Local Union No. 87, AFL-CIO-CLC, herein called the Union. The complaint alleges that General Motors Corporation, Inland Division, herein variously called Respondent, the Company, or the Employer, violated Section 8(a)(3) and (1) of the National Labor Relations Act, as amended, by suspending Hubert C. Abney because of his activities as a union steward processing a grievance. Respondent duly denied the commission of any unfair labor practice and asserted certain affirmative defenses which are discussed later in this Decision. The General Counsel and Respon- dent filed posttrial briefs which I have considered. Upon the entire record, including my observation of the witnesses as they testified, and after due consideration of the parties' briefs, I make the following: FINDINGS AND CONCLUSIONS I. JURISDICTION Respondent is a Delaware corporation engaged in the manufacture of automobile parts at its Dayton, Ohio, plant, the facility involved herein, and has, during the 12 months preceding the issuance of the complaint, a representative period, produced, sold, and shipped prod- ucts valued in excess of $50,000 from said location directly to points outside the State of Ohio. Respondent is, and has been at all times material to this case, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 1I. THE LABOR ORGANIZATION The Union is a labor organization within the meaning of Section 2(5) of the Act. I All dates herein occurred in 1976, unless specifically noted otherwise. 49 DECISIONS OF NATIONAL LABOR RELATIONS BOARD III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Facts2 The General Counsel, over Respondent's objection, introduced testimony from Hubert Abney for "back- ground" purposes that Abney had been; (1) verbally warned by General Foreman Larry Francis on October 8, 1975, for writing a grievance over jury duty pay; (2) again verbally warned by Francis on November 24, 1975, for writing a grievance alleging Francis had not timely answered grievances; (3) suspended by Foreman Jesse Roberts on December 1, 1975, for writing a grievance and abusing the grievance procedure; and (4) suspended by Foreman Sylvia Martin on December 12, 1975, for writing a grievance over a requirement that an employee had to wear safety glasses in an eating area. Abney grieved these warnings and suspensions and received total remedies, by way of grievance settlement, in each and every instance. Abney further claims that, on January 30, Roberts directed a grievant to leave Abney's office3 on the ground the grievant had been there long enough, 25 to 30 minutes by Abney's estimation, whereupon Abney objected and took his objection to his foreman, Eddie Travick. Subsequently, according to Abney, on February 23, Francis told Abney that he would speak to Roberts about Abney's complaint he couldn't do his job effectively if foremen could direct people to leave his office, and that it would not happen again. None of the foregoing events are alleged as unfair labor practices,4 nor was any evidence presented of any like situations during Abney's Il-year tenure as a union committeeman during which time he spent about 7 hours each working day handling grievances. Abney estimates that he writes from zero to four or five grievances a week. It would therefore appear that during his I l-year service he has been involved in a great number of grievance proceedings. Abney concedes that there has never been any objection to his use of 7 hours per day in handling grievances. At or about 7:30 a.m. on March 5, Foreman Roberts notified Employee Robert Simpson that he was going to discipline him for allegedly starting work late, loitering, 2 The facts recited are in large part not in dispute. As to disputed matters, I have very carefully reviewed the testimony of each witness and weighed it in conjunction with the testimony of others on the same points and the undisputed documentary evidence in the record. Further, I have examined the logical consistency and inherent probability of the evidence presented, with due regard for the relative testimonial demeanor of each witness as he testified. The facts recited, therefore. are a synthesis of the credible evidence, and testimony to the contrary is discredited. I observed that, of the four witnesses testifying about the events of March 5 and 6, Foreman Travick appeared to be the most reliable on events occurring after his entrance into the affair on March 6, and impressed me as an honest witness being very careful to proffer his best recollection of the matters occurring in his presence. Simpson's testimony, except as it conflicts with that of Travick, impressed me as superior to that of Abney and Roberts, both of whose demeanor on the witness stand betrayed a mutual personal antagonism. 3 Committeemen have offices in which to hold grievance discussions. 4 Nor do I infer from the evidence that the grievances of Abney did or did not have merit inasmuch as all were settled without any formal determination on their merits. 5 Although it is not clear from the record what discipline Roberts intended to invoke, the collective-bargaining agreement between the parties provides in substance that in cases of disciplinary suspension, layoff, or and not following orders, but did not then actually perfect the proposed disciplinary action by putting it in writing. 5 At or about 2:30 p.m. on March 5, Roberts and Simpson went to Abney's office where, in Abney's presence, Roberts wrote the alleged reasons for discipline, and the discipline itself, on Simpson's pay record. 6 After a preliminary question by Abney as to why it took so long to get a committeeman for Simpson, the three discussed the matter until 3 p.m., and then adjourned to the following morning because the work shift was then over. They met again in Abney's office some time between 8:15 and 8:30 a.m. on March 6 and continued to discuss the action against Simpson7 and Abney's complaint about late notification the day prior for about 50 minutes. No agreement was reached and Abney undertook to reduce the grievances to writing. Roberts gave him 10 minutes to write the grievance, or grievances, and left. Roberts then contacted Travick and advised him that he thought Abney and Simpson had spent enough time in the grievance proce- dure, including about an hour on March 5. Travick promised to come to the scene in 15 minutes. He did so and met with Roberts, out of the presence of Abney and Simpson. Roberts asserted to Travick that Abney and Simpson were abusing the grievance procedure. Travick told him Simpson was not, and that if anyone was it was Abney because he was conducting the meeting. Travick advised Roberts to consult with General Foreman Francis. He did and Francis told him not to suspend "him" 8 for abusing the grievance procedure but to send Simpson back to work and terminate the meeting. Roberts rejoined Travick and both went to the committeeman's room. Roberts asked if Abney was finished. Abney said he was not and Roberts told him he thought he had had enough time. At this juncture, Abney raised the question of the propriety of Roberts curtailing the grievance procedure, and protested this action. It is not clear from the testimony whether this issue was raised before or after Roberts told Simpson to return to his job. The logic of the sequence of events persuades me that Roberts asked Simpson to return to work and then Abney raised the issue of interference discharge, obviously the severest discipline Roberts could have applied, the employee is to be advised of his right to representation and may request his committeeman, who will be promptly called, without regard to other instructions on the committeeman's worktime, to discuss the case with the employee in a designated office. The contract further provides for notification in writing of the reason before the employee is required to leave the plant, and that he has a right to the presence of a committeeman during the disciplinary interview, but that the committeeman is only present as a witness until the employee is actually disciplined, at which time the committeeman may then commence negotiations on the employee's grievance. I conclude from the contract that the employee is not entitled to the presence of a committeeman until such time as the contemplated adverse action is to be discussed and effectuated. In this case, that time was about 2:30 p.m. as the further recitation of the facts will illustrate. I further conclude from the testimony of Abney that discussion of disciplinary actions has first priority under the contract that the foregoing contractual provisions are the ones to which he had reference. I am persuaded, however, from events of March 6 when Roberts wanted Simpson to return to work, that immediate suspension was not contemplated by Roberts. I The pay record was not placed in evidence. 7 Roberts had put the group leader on Simpson's job that morning to enable Simpson to attend. m Apparently Abney. 50 GENERAL MOTORS CORPORATION, INLAND DIVISION with grievance processing. Roberts directed Simpson to return to work three or four times.9 Simpson each time asked Abney whether he had to or not, and each time received the advice from Abney that he had a right to be there as a grievant but that if he did not leave he would probably be disciplined, and that it was Simpson's decision to make. Abney stated that he (Abney) intended to continue in the grievance procedure. Travick suggested to Abney that he have Simpson return to work, then get Abney's committeeman and resolve the question of Roberts' alleged interference in the procedure. Abney refused,' 0 whereupon Simpson refused to go back to work. Roberts then suspended Simpson for refusing to obey an order of supervision," and Travick suspended Abney for "abusing the grievance procedure." Travick avers that he suspended Abney because he refused to adjourn the meeting and call his committeeman to resolve the issue. I am persuaded however from Travick's conceded "sugges- tion" to Abney that he tell Simpson to go back to work, and his further concession that he felt Abney gave Simpson bad advice with respect to returning to work as Roberts directed, that Abney's refusal to tell Simpson to return to work was also a factor in Travick's decision to suspend Abney. The total time spent on March 5 and 6 from the beginning of the meeting on March 5 at approximately 2:30 p.m. until 3 p.m., and from 8:15 or 8:30 on March 6 until 9:45 p.m. when Simpson was suspended, as evidenced by the signed notice of suspension issued by Roberts at that time,' 2 was between I hour and 45 minutes and 2 hours. Abney filed a grievance on his suspension on March 15, and it was settled in his favor on November II with reimbursement for all wages lost and removal of all notations concerning the suspension from his record. B. Contentions and Conclusions The General Counsel contends that the suspension of Abney was occasioned by his protected activity in representing Simpson in the grievance procedure, and, more particularly, by his advice to Simpson that Simpson had a right to remain, coupled with further advice that if Simpson refused to return to work he would face suspension. General Counsel further contends that the suspension of Abney is part of a continuing campaign of harassment designed to inhibit Abney in the lawful pursuit of his responsibilities which, if permitted to continue, would nullify effective union representation of grievants. Accordingly, General Counsel urges that Respondent by its actions against Abney on March 6 violated Section 8(a)(3) and (1) of the Act. 9 Roberts' concern that the meeting conclude and Simpson return to his job as soon as possible was due, in substantial part, to the fact that Simpson's job of foamer operator was critical to the operation of the department and he was the only foamer operator on his shift. The only other person on the shift capable of running the foamer was the department group leader who was filling in for Simpson in his absence at the grievance meeting, and this obviously kept the group leader from performing other duties. 'o The ground stated by Abney for his refusal to tell Simpson to return to work was that it was not Abney's job to order Simpson to do so. On the other hand, Respondent argues that there is no violation here because (1) the dispute of March 6 involved the issues of whether or not Abney had spent sufficient time in the grievance procedure in the Simpson matter, and whether or not the action of a foreman in attempting to bring the meeting to an end was proper, both of which are nothing more than questions of contract interpretation of a type the Board has traditionally left for resolution by the parties to the agreement; (2) there is no showing of a pattern by Respondent of attempting to thwart committee- men in the processing of grievances or in attempting to deny employees access to the grievance procedure; (3) Abney's suspension was resolved within the contractual grievance procedure; (4) the suspension of Abney was reasonable and not unlawful in the circumstances; and (5) I should not reach the merits of the case because it falls within the ambit of the Collyerl3 and Spielberg14 line of cases favoring deferral to contractual grievance procedure. Additionally, Respondent contends out that the resolution of Abney's grievance over the suspension was in his favor and fully remedied any possible underlying unfair labor practice. In Spielberg, the Board stated that it will examine a binding award made by an impartial tribunal on matters encompassed by the General Counsel's complaint, and defer to it if the arbitral proceedings were fair and regular, all parties had agreed to be bound thereby, and the tribunal's decision was not repugnant to the purposes and policies of the Act. The settlement of Abney's grievance on his March 6 suspension is not equivalent to a binding award requiring Board review and Spielberg is therefore not applicable to this case. Both parties advert to Labor Relations Supervisor Grier's expressed opinion that 20 to 30 minutes should be sufficient to decide whether or not a grievance exists. General Counsel argues that in view of this testimony the time consumed on March 5 and 6 was not excessive because three separate issues were being explored re: Simpson's grievance. On the other hand, Respondent points to this testimony as evidence that 20 to 30 minutes was sufficient for Abney to discuss the entire grievance. The question of what constitutes a reasonable period of time in discussing a grievance is obviously dependent on the nature and complexity of the matters under discussion, and a question upon which reasonable men may reason- ably differ. I decline to enter this thicket and attempt to extract therefrom some precise time that Abney should have been allotted, for I do not think that Grier's estimate is anything more than what it purports to be, a generalized estimate, and I do not deem the consideration of griev- ances to be subject to any precise, mandatory time limits, absent some specific regulating contractual provision, without regard to the peculiar circumstances of each " Simpson's suspension is not alleged as an unfair labor practice, and General Counsel advised at the opening of the hearing that a charge on Simpson's behalf had been withdrawn. I therefore make no findings as to the propriety of Simpson's suspension. 12 Abney's "Notice of Disciplinary Action" bears the issuance time 9:48 a.m. i3 Collyer Insulated Wire, A Gulfand Western Systems Co. 192 NLRB 837 (1971). 14 Spielberg Manufacturing Company. 112 NLRB 1080(1955). 51 DECISIONS OF NATIONAL LABOR RELATIONS BOARD individual grievance considered, nor do I consider it necessary, or appropriate, for me to set some arbitrary time limitation on the parties in order to prepare or reach a decision on the merits of a grievance. Rather, I have considered the reasonableness of the actions of the participants in the March 5 and 6 discussions and the applicable legal precedents in reaching my decision herein. There can be no argument with the general proposition, well established in Board law, that the processing of a grievance by a union representative is both protected concerted and protected union activity. This does not, however, imply that all conduct by a union representative, committeeman in this case, while engaged in the processing of grievances is protected. 5 I am convinced that Abney's advice to Simpson that he had a right to remain, coupled with Abney's insistence on his intention to continue the meeting, induced Simpson to refuse to obey Roberts' orders to return to his work station. Although Abney told Simpson that he might be subject to discipline if he disobeyed, the overriding tenor of his advice was that Simpson had a right to remain and thus encouraged Simpson to select insubordination over compli- ance with Roberts' orders and thereby suffer discipline. Furthermore, Abney's rejection of Travick's request that he tell Simpson to go back to work and then call his own committeeman to help resolve the matter of Roberts' alleged unreasonable curtailment of the time to be spent in this grievance procedure, which had by this time become the primary bone of contention, rather than the relative merits of Simpson's grievance, constituted an intransigent refusal by Abney to submit this question of reasonable time and Roberts' alleged interference to the grievance procedure, as he well knew he could from past experience, and an arrogation to himself of the sole authority to determine the amount of time necessary for preparing the grievance. Although Abney stood as an equal to Respon- dent's foremen in the discussion of Simpson's grievance and the disagreement over the time necessary for his proper '5 Charles Meyers & Company, 190 NLRB 448 (1971), and citation of N.LR.B. v. Thor Power ToolCo., 351 F.2d 584, 587 (C.A. 7, 1965), therein. i6 Crown Central Petroleum Corporation, 177 NLRB 322 (1969). 1" That this would have worked no hardship on Simpson is shown by the evidence contained in Resp. Exh. 5 that Simpson's grievance which had been discussed on March 5 and 6 was subsequently filed on March 6. '8 Stop d Shop, Inc., 161 NLRB 75 (1966); Calmos Combining Co., 184 NLRB 914 (1970); Chevrolet, Division of General Motors Corporation, 161 NLRB 438 (1966). preparation of that grievance,' 6 he did not enjoy status superior to that of the foremen which would warrant his attempted unilateral determination of the matter while simultaneously rejecting Travick's suggestion that he carry the matter further, within the confines of the established grievance procedure, with the aid of his own committee- man. I therefore conclude that Abney's conduct of implied encouragement to Simpson to refuse to obey Roberts' order to return to work, which caused Simpson's suspen- sion, and his rejection of Travick's reasonable suggestion that he terminate the meeting, send Simpson back to work,'? and pursue the issue of Roberts' interference further through his union committeeman, was neither reasonable in the circumstances nor protected activity.' Accordingly, I further conclude that Travick's suspen- sion of Abney was not an unfair labor practice. The history of settled grievances recited by Abney, and reported hereinabove, does not require a contrary conclusion, nor does it compel an inference that the March 6 suspension was part of any continuing campaign of harassment by Respondent directed at Abney's grievance processing activities. General Counsel has not established by a preponderance of the credible evidence that Respondent violated the Act as alleged in the complaint,' and I make the following: CONCLUSIONS OF LAW 1. Respondent is an employer engaged in 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. General Counsel has not established by a preponder- ance of the evidence that Respondent has violated the Act as alleged in the complaint or in any other manner. [Recommended Order for dismissal omitted from publi- cation.] i1 In view of my findings on the merits, I find it unnecessary to consider the effect of the grievance settlement, and the Board has recently held that the Collyer, supra, deferral policy does not extend to cases of this type, General American Transportation Corporation, 228 NLRB 808, which obviates any necessity of considering Respondent's asserted Collyer defense regardless of the merits of the complaint herein. 52