Guardian Industries Corp.

184 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Perri aglass Division, Guardian Industries Corp. and Richard Frey. Case 8-CA-7454 April 25, 1974 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS On November 28, 1973, Administrative Law Judge Almira Abbot Stevenson issued the attached Deci- sion in this proceeding. Thereafter, the General Counsel filed exceptions and a supporting brief, the Respondent filed cross-exceptions, a brief in support thereof, and a brief in answer to the General Counsel's exceptions. 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 her 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. DECISION STATEMENT OF THE CASE ALMIRA ABBOT STEVENSON, Administrative Law Judge: This case was heard at Toledo, Ohio, September 6 and 7, 1973. The original charge was filed by the Charging Party January 26 and served on the Respondent January 29, 1973; an amended charge was filed by the Charging Party June 13 and served on the Respondent June 14, 1973. The complaint was issued June 14, 1973. The issue is whether or not the Respondent discharged employees Thomas A. Crandall, Jessie Rodriguez, Thomas E. Roberts, and Richard Frey January 18, 1973, because they engaged in protected concerted activities, in violation of Section 8(a)(1) of the Act. For the reasons explained below, I recommend that the complaint be dismissed. Upon the entire record, including my observation of the demeanor of the witnesses, and after due consideration of the briefs filed by the Respondent and the General Counsel, I make the following: FINDINGS OF FACT AND CONCLUSIONS OF LAW 1 1. JURISDICTION The Respondent is a Delaware corporation engaged at its plant in Millbury, Ohio, in the manufacture of automotive and architectural glass. The Respondent annually ships finished goods valued in excess of $50,000 from its Millbury, Ohio, plant directly to points outside the State of Ohio. The Respondent admits, and I conclude, that it is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 11. THE ALLEGED UNFAIR LABOR PRACTICES A. The Facts The Respondent's production and maintenance employ- ees at the Millbury plant were covered during the period involved by a union-security agreement between the Respondent and United Glass and Ceramics Workers of North America, AFL-CIO-CLC, Locals 429 and 144, herein referred to as the Union, effective July 8, 1970, until July 8, 1973. That contract contained the following provisions: Art. 1.4 No Lockout-No Strike. Since adequate provisions have been made in this Agreement for the settlement of all disputes that may arise between the parties, it is agreed that, for the duration of this Agreement, there shall be no lockout on part of the Company, nor any strike, stoppage, slow down, or other interruption of work by the Union or any of its members. Art. 5.1 Grievance Procedure. In order to promote and maintain the proper relationship between the Company and the Union, all complaints and griev- ances must be handled according to the outlined steps below: There followed a five-step grievance procedure culminat- ing in final and binding arbitration. Posted in the plant were the Respondent's plant rules under the heading, "Violators of the following major rules are subject to immediate discharge." Among such posted rules were the following: 2. Employees are not to leave their jobs, during working hours, without permission from their supervi- sor. 8. Refusal to obey managements [sic] instructions. A total of 20 to 30 employees, including all the employees involved in this case, worked in the prefurnace department on the second shift which began at 3:30 p.m. Michael Braun was plant superintendent of the second shift. Until January 18, 1973, Kenneth Smith was foreman of the second shift of the prefurnace department. There were seven or eight production lines in the department. Each line was engaged in cutting glass of a different size, I The facts are undisputed except where indicated. 210 NLRB No. 39 PERMAGLASS DIV., GUARDIAN INDUSTRIES CORP. and working at most, in the order in which they worked on the glass, were (1) a cutter, who cut the glass to specified size and sent it along a conveyer to (2) a breakout man, who broke off rough edges and stacked the glass in a rack for (3) a grinder, who smoothed the edges. The glass was then put through a washer, and inspected by an inspector who packed it on a pallet. When Foreman Kenneth Smith was present, he re- mained in the prefurnace department area during the entire second shift. He instructed new employees in the duties they were to perform, assigned department employ- ees' work at the beginning of the shift each day, and told them how to do the work if necessary. Employees daily took their job problems, such as a breakdowns, to him, and he told them what was wrong and got it fixed. Employees requested Smith's permission to leave early; when in doubt, Smith referred such requests to Braun. If Smith was not present, the employees reported to Braun. The General Counsel does not dispute, and I find, that Foreman Kenneth Smith responsibly directed the work of employ- ees, and that he was a supervisor as defined in Section 2(11) of the Act. Although the prefurnace employees were familiar with the posted plant rules, when their work was momentarily caught up, they stood or sat by their work stations or left without permission for short periods to visit the restroom or get a soda from the plant cafeteria. On January 17, 1973, Foreman Smith requested Thomas Crandall to work overtime until 2 a.m., to inspect a certain number (1,500 or 2,000) of pieces of glass. Crandall complied. By I a.m. he had inspected the specified number of pieces, and, as permitted by Foreman Smith, he cleaned up his work area and went to the cafeteria where he played cards until the 2 a.m. quitting time. When Crandall and the other employees reported for work in prefurnace at 3:30 the following afternoon, January 18, 1973, Crandall saw Foreman Smith leaving the plant. Crandall and others asked around why Foreman Smith was leaving, and were informed by other employees in the cafeteria that Smith had been fired. Shift Superin- tendent Braun had not been involved in Foreman Smith's discharge but heard about it when he arrived at the plant at 3 p.m. Err-)loyees asked him in passing on the floor the reason for the discharge but he replied he did not know. All employees went to work as usual, assigned to their duties that day by the first-shift foreman-Crandall as cutter and Jessie Rodriguez as breakout man on D-line, Richard Frey as cutter on B-line, Thomas Roberts and Steve Vermilyea as sweepers, and John Allan Smith as forklift operator. During their 5:30 p.m. 10-minute break that afternoon, practically all the prefurnace employees talked among themselves about the fact that Foreman Smith had been discharged, that the employees did not know why, and whether the employees should walk out. Crandall claimed to be a friend of Foreman Smith's and that he had lunch with him once in a while; none of the other employees made such claims. During the 10-mmute break, Crandall and Rodriguez overheard Richard Frey ask Union Steward 185 Walter Diebert what would happen if the employees walked out and Diebert reply that they would be fired and should keep out of it and not jeopardize their jobs for management. Diebert reported this conversation to Shift Superintendent Braun. After the 10-minute break, all employees returned to work until the 7:30 p.m. half-hour lunch break. Crandall, Frey, Rodriguez, and John Smith left the plant and had lunch together. They discussed the possibility of walking out because of the discharge of Foreman Smith? Every- body having lunch in the plant cafeteria discussed the same subject. No decision, or plan, was made, however. As the Crandall group walked back through the plant toward their work stations, Crandall testified, "everyone asked if we were going to talk or what we were going to do." Crandall replied they did not know. Meanwhile, Furnace Depart- ment Line Foreman John Labriere had told Braun that there was a rumor that someone might stop work over Foreman Smith's discharge. All employees returned to their stations at the end of the lunch break and prepared to resume work. The testimony of the General Counsel' s witnesses Crandall, Rodriguez, Frey, Roberts, John Smith, and Vermilyea is different in essential elements from that of the Respondent's witnesses Superintendent Braun and Fore- man Labriere as to what happened next. My findings as to what actually happened are based on the testimony of the General Counsel's witnesses. Although their accounts differed in some details, they were in general mutually corroborative and the events to which they testified were more likely to have resulted from the preceding conduct of employees described above. Labriere struck me as prone to exaggerate, and both he and Braun appeared to be more interested in justifying Braun's actions than in sticking to the facts. I do not, however, place any reliance on Rodriguez' testimony that there was no work for him and Crandall to do when they returned from lunch, as Rodriguez appeared uncertain on this point and he was not corroborated by Crandall. Nor do I rely on Frey's testimony that there was no work for him to do because a driller and an unidentified employee were engaged in "no hole" work on B-line. This testimony is also uncorroborat- ed, and I cannot reconcile it with the above description of production-line work and employee classifications, which is based on the testimony of Crandall and Rodriguez who made no reference to a driller classification nor to such work being performed on these production lines. Accordingly, I find that upon arriving at their work stations on D-line, Crandall and Rodriguez put on their safety glasses, gloves, cuffs, and aprons. Crandall was looking around for Braun, and before he had time to cut any glass, he saw Braun emerge from the cafeteria next to Braun's office, about 50 feet away. Crandall called to Braun, "Hey, Mike, come here." Crandall took off his gloves and cuffs, and said to Rodriguez, who was stationed 5 feet from him, "Jessie, come on," and started walking in Braun's direction. Rodriguez took off his equipment, and, without knowing Crandall's intention, accompanied him. Braun, followed by Labriere, turned in their direction, and 2 I credit the testimony of Crandall, Frey, and John Smith, rather than that of Jessie Rodriguez that the group did not discuss the subject at lunch. 186 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the four of them met face to face in the main aisle between the inspection ends of A- and E-lines, some 15 to 20 feet from Crandall's and Rodriguez' work stations. John Smith, who had checked to see if there was enough glass on the skids and if any of the bucks at the ends of the lines were full and had climbed on his forklift, which was parked at the end of A-line, prepared to start the motor, when he heard Crandall call to Braun and observed him walking toward Braun. Smith got off the forklift, leaned against it, and observed events 5 feet away from where the four met. When Steve Vermilyea returned from lunch, he began sweeping at approximately the same spot at the end of A-line. When he observed the four in the main aisle, he too leaned against the forklift and watched . Thomas Roberts had begun sweeping at the inspection end of D- line upon returning from lunch 3 or 4 minutes after 8 p.m. He ceased working and, with broom in hand, observed the meeting from a few feet away . Frey had returned to B-line, put his equipment on, and started working. After a minute or so he heard Crandall's call and saw him and Rodriguez walking toward Braun . Frey and two other employees from B-line walked toward them, taking off their glasses and arm guards. Frey observed that although the lines were running, no one was working in the prefurnace depart- ment. Only the above-referred-to employees appear to have been in the immediate vicinity of the confrontation described below. When the four came face to face , Braun asked, "What's going here?" Crandall, in reply, asked Braun, "Why did Smitty get fired?" to which Braun responded, "None of your damn business, go back to work." None of the employees in the immediate vicinity moved. Crandall then said to Braun, "I think it is my business." Crandall testified that the reason he made this statement was he felt partly at fault for Foreman Smith's discharge because of shutting down early the night before . Braun, however, replied, "You have got five seconds to get back to work." At that point, all of the above employees, except Crandall, turned and started back to their work. Crandall, however, did not. He remained where he was and said to Braun, "Answer me one more question." But Braun pointed at Crandall and said, "Discharged." Braun then pointed at Rodriguez, Roberts, Frey, and John Smith , one after another, and said "Fired," four times. After some further argument during which Crandall did most of the talking, Braun returned to his office by the cafeteria, and all the discharged employees but John Smith prepared to leave the plant. Smith followed Braun into the office and asked why he had been fired. Braun replied because Smith was "standing in the group." When Smith said he merely had been leaning against his towmotor, Braun rescinded his discharge and Smith returned to work. The others advised Steward Diebert that they had been fired, and asked him to get their jobs back . He said to them, "What the hell do you want me to do about it?" and that he had warned them that this would happen. Diebert then checked with Braun, who told him that "he gave them all the time in the world to get back to their jobs and they wouldn't go back on their jobs and he fired them ." Diebert did, nevertheless, report the matter to the union president who said he did not think he could do anything, but would find out. Diebert, however, heard nothing more from the president about the matter. None of the dischargees filed or attempted to file a grievance over his discharge. B. Conclusions The above facts establish, and I find, that Frey, Crandall, Rodriguez, and Roberts were discharged because they left their work stations without permission and interrupted the work of the furnace department to find out, if they could, from Shift Superintendent Braun, the reason for the discharge of their foreman, Kenneth Smith, and after Superintendent Braun responded that the matter was none of their business , refused to comply with his order to go back to work. The Respondent contends, contrary to the General Counsel, that this concerted activity was not protected by Section 7 of the Act because its object concerned the discharge of a supervisor and was in violation of the collective-bargaining agreement and the plant rules . I agree. I have carefully considered the Board cases finding concerted employee activity relative to the identity of their supervisor to be protected 3 in light of the Board's admonition in Dobbs Houses, Inc., "Each case must turn on its facts," and conclude that those cases are factually different from this case in crucial respects . Thus, Foreman Smith does not seem to have been merely a minor supervisor who worked along with the men; on the contrary, it appears that during his shift he was in charge of the entire prefurnace department of 20 to 30 men, and directly responsible to the shift superintendent of the plant. Although the role of supervisor inherently encompasses the ability to affect subordinate employees, the Board has indicated that more than generalized relationship is required to bring a case within the Dobbs Houses rule. Here, no reason had been advanced for the prefurnace employees' concern over why Smith was fired-there was no mutual concern or cooperative effort to improve wages, hours, or working conditions . In fact, there is nothing to indicate employee dissatisfaction over any other matter. Although Crandall suspected that Smith was discharged because Smith had permitted him to play cards for an hour of his overtime assignment, neither Superintendent Braun nor the employees knew , and there is no evidence, that that was, in fact, the reason. In any event, to the extent that Smith's conduct in this regard might have been a factor, it would have related solely to the manner in which he performed his supervisory functions on that occasion.4 Nor was this a group of unrepresented employees who "had to speak to for themselves as best they could"5 because they had no bargaining representative. On the contrary, they had a representative who had agreed with the Respondent that there would be no interruptions of 3 Kelso Marine, Inc., Kel Stress Division, 199 NLRB 7, Okla-Inn d/b/a enforcement denied 325 F.2d 531 (C A 5,1963) Inc, Holiday Inn ofHenryetta, 198 NLRB No. 68; G. W. Murphy Industries, 4 See Asia Garden Restaurant ofSan Francisco, Inc., 205 NLRB No. 141. Inc., 179 NLRB 124, Plasnhte Corporation, 153 NLRB 180, enforced as See N LR B. v. Washington Alununum Company, Inc., 370 U.S. 9, modified, 375 F 2d 343 (CA. 8, 1967); Dobbs Houses, Inc., 135 NLRB 885, 14(1962). PERMAGLASS DIV., GUARDIAN INDUSTRIES CORP. 187 work and that all complaints would be handled according to the grievance procedure. Instead of abiding by that commitment, these employees ignored the admonition of their bargaining representative, brought the work of the prefurnace to a halt, and sought a confrontation with management. As the Board has stated, "our Act does not afford protection to employees acting in concert in derogation of the principal of exclusive representation by abandoning grievance procedures and seeking instead to bargain on their own." 6 In addition, it is clear that the employees acted in violation of reasonable rules which were posted in the plant with which the employees were or should have been familiar. That the Respondent had upon occasion tolerated 6 United Parcel Service, Inc., 205 NLRB No. 163, In. 2. The General Counsel does not contend, and there is no evidence, that the employees' conduct was intended to or did conform with the grievance procedure. 7 Accord, Cameron Iron Works, Inc., 194 NLRB 168; Mid-West Timer Service, Inc, 163 NLRB 810; Terry Poultry Company, The Wood-Hill Food Products Company, 109 NLRB 1097. absences from work stations for brief periods during which there was no work to perform did not estop the Respon- dent from enforcing its rules when the employees for the first time, as the record shows, violated them in circum- stances described herein.? Accordingly, I conclude that the Respondent did not violate Section 8(axl) of the Act as alleged. Upon the foregoing findings of fact and conclusions of law, upon the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDERS The complaint is dismissed in its entirety. 8 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.