Whirlpool Corp.

WHIRLPOOL CORPORATION Whirlpool Corporation, Evansville Division and Del- bert H. Rueger, Jr. Case 25-CA-5723 January 16, 1975 DECISION AND ORDER BY ACTING CHAIRMAN FANNING AND MEMBERS JENKINS AND PENELLO On August 13, 1974, Administrative Law Judge Sidney D. Goldberg issued the attached Decision in this proceeding. Thereafter, the General Counsel filed exceptions and a supporting brief, and Respon- dent filed cross-exceptions and a brief in support thereof and in answer to the General Counsel's exceptions. Respondent also filed a motion for permission for oral argument. 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 bnefs and has decided to affirm the rulings, findings,' and conclusions2 of the Administrative Law Judge and to adopt his recommended Order.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 and hereby orders that the complaint be, and it hereby is, dismissed in its entirety. i The General Counsel has excepted to certain credibility findings made by the Administrative Law Judge . It is the Board's established policy not to overrule an Administrative Law Judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have carefully examined the record and find no basis for reversing his findings. The Employer's request for oral argument is hereby denied as the record and the bnefs adequately present the issues and contentions of the parties. 2 The Administrative Law Judge incorrectly stated that the Union called Frank Johnson as a witness for the June 27, 1973, "fact-finding" meeting; that the contract negotiations during which Rueger 's grievance was abandoned by the Union occurred in February 1972, rather than February 1974, and that Rueger's first charge against the Union was filed in August 1972, rather than August 1973 3 In view of the facts of this case and the findings of the Administrative Law Judge, Member Penello finds it unnecessary to reach the contentions of Respondent with regard to Collyer Insulated Wire, A Gulf and Western System Co., 192 NLRB 837 (1971), and Spielberg Manufacturing Company, 112 NLRB 1080 (1955) DECISION 183 SIDNEY D. GOLDBERG, Administrative Law Judge: The questions in this case are not only whether the discharge involved was unlawful but also whether the Board should withhold decision on that question and defer, for the determination of that issue, to the procedures provided by the collective-bargaining contract governing the parties. The complaint herein,' pursuant to Section 10(b) of the National Labor Relations Act, as amended (the Act), alleges that Evansville Division, Whirlpool Corporation (Respondent or the Company), in violation of Section 8(a)(3) and ( 1) of the Act, had issued a warning to Delbert H. Rueger, Jr., the Charging Party ; that it had harassed him and James A . Duvall, a steward of Local 808 of the International Union of Electrical, Radio, and Machine Workers, AFL-CIO-CLC (the Union); that it had threat- ened to discharge Rueger ; and that it had discharged and refused to reinstate him, all because of Rueger 's union or concerted activity in filing and pressing certain grievances. On September 27, 1973, after the filing of the charge but before the issuance of the complaint, the Regional Director, on behalf of the General Counsel , notified the parties that, in accordance with the Board's decision in Collyer Insulated Wire, 192 NLRB 837 (1971 ), he was declining to issue a complaint, based on his determination that further proceedings on the charge should be adminis- tratively deferred for arbitration. He also stated that he would inquire concerning the status of the dispute periodically and would accept and consider , at any time, requests and supporting evidence from any party for dismissal of the charge , for continued deferral of adminis- trative action, or for issuance of a complaint. On February 7, 1974, Rueger filed a charge 2 stating that the union had failed to represent him fairly and that it had not pressed the grievance over his discharge to arbitration. After investigation of this charge , the complaint against Respondent was issued. Respondent filed a pro forma answer, denying each and every allegation of the complaint . At the same time, it filed a motion with the Board, stating that the controversy had been settled under the provisions of the collective-bargain- ing contract governing the Charging Party , and requesting that (a) the case be transferred to the Board; (b) the Board accept briefs ; and (c) after consideration of such briefs, the Board dismiss the complaint without prejudice to its reissuance if a complaint should issue on the charge that the union had failed fairly to represent Rueger . The motion was referred by the Board to Administrative Law Judge Arthur Leff who, on March 18, 1974, denied it without r Issued February 21, 1974, on a charge filed August 3, 1973. 2 Case 25-CB-1902, similar to an earlier charge filed by Rueger on August 3, 1972, Case 25-CB-1758. Both charges were subsequently withdrawn 216 NLRB No. 51 184 DECISIONS OF NATIONAL LABOR RELATIONS BOARD prejudice to its renewal based on evidence adduced at the hearing. Respondent's motion to the Board for special permission to appeal Administrative Law Judge Leff's decision was denied. Respondent's amended answer, filed March 18, 1974, admitted that it had suspended Rueger on June 25, 1973, and that it had discharged him on July 10, 1973; but it denied that it had done so for the reasons set forth in the complaint. It also set up the affirmative defense that the Charging Party had filed grievances concerning his suspension and discharge and that these grievances had been settled pursuant to the collective -bargaining contract. The issues raised by the amended answer came on for trial before me on April 16, 17, and 18 , 1974, at Evansville, Indiana. All parties, and the union, were represented; they were afforded an opportunity to adduce evidence , cross- examine witnesses, and argue on the facts and the law. Briefs filed by the General Counsel and by counsel for the Respondent have been considered. For the reasons hereafter set forth in detail , I find that the determination of the Charging Party's grievances by Respondent and the Union is not entitled to be recognized by the Board under its decision in Spielberg Mfg. Co., 112 NLRB 1080 ( 1955), and that, under the facts herein, the Board should not defer to the grievance and arbitration mechanism of the collective-bargaining contract in accord- ance with its decision in Collyer Insulated Wire, 192 NLRB 837 (1971 ). On the merits, however, I find that the General Counsel has failed to sustain the allegations of the complaint and that it must, therefore , be dismissed. Upon the entire record herein ,3 including my observa- tion of the demeanor of the witnesses while testifying, I make the following: FINDINGS OF FACT 1. The parties Respondent, a Delaware corporation, operates three manufacturing plants in Evansville, Indiana. It admits that it annually imports and exports, from the State of Indiana, goods and materials valued at more than $50,000 and that it is engaged in commerce within the meaning of the Act. I so find. The Union is not named as a party herein. It had a collective-bargaining contract with the Company at the times material herein and Respondent admits that it is a labor organization. I so find. 2. Summary of events The collective-bargaining contract covers the employees at all three plants in the Evansville Division .4 The Charging Party, however, was employed at Plant 1, 3 Typographical errors in the transcript of proceedings have been corrected by order dated July 31, 1974. The contract contains a three-step grievance procedure that may be followed by reference to a board of arbitration . It also provides that individual employees shall have the right to present grievances without following the procedure set forth in the contract but it provides no subsequent procedures for grievances so filed. 5 All dates herein, not otherwise designated, are 1973. 6 Rueger's grievance concerning the events that preceded his dispute situated at Morgan Avenue and Reed Street, and almost all of the events with which this case is concerned occurred at that plant. Immediately prior to, and on, June 25, 1973,5 Rueger was employed on the crating line in Department 119 in Respondent's Plant 1. The function of the crating line at that time was to pack into cartons certain window air conditioners produced in that plant. Prior to June 25, the plant had been run in two shifts: the first operated from 7 a.m. to 3:30 p.m. and the second from 3:30 p.m. until 11 p.m. A company decision was made to operate the plant with only one shift beginning Monday, June 25, and to close down the second shift as of the end of Friday, June 22. The seniority system in the contract required a merger of the hourly personnel of the two shifts on the basis of seniority and this involved a series of "bumpings," whereby employees with greater seniority were retained over those with less seniority. The assign- ment of management personnel, however, was not so restricted and Harold Stinson, the foreman of Department 119 on the second shift, was appointed foreman of that department on the first shift. Larry Breivogel, who had been a second shift general foreman over an area that included Department 119, was also transferred to the day shift but not as a general foreman; he was assigned a planning job. There is no doubt that Rueger was late in reporting for work on Monday morning, June 25, but how late he was is in dispute. There is also no doubt that, sometime during the morning, Stinson made some comments, to Rueger and others on the line, about "getting along," and that Rueger asked Stinson to call the union steward so that Rueger could discuss something with him. The union steward for Department 119, James Duvall, was busy all morning and it was not until after lunch - which runs from 11 a.m. to 11:30 a.m. - that Duvall was able to visit Rueger at his work station on the crating line. Duvall asked Stinson to release Rueger from his work on the line so that they could confer and Stinson assigned another employee to Rueger's work for that purpose. Rueger, Duvall, and Stinson engaged in some discussion at Stinson's desk, during which Rueger asked to see his work record and Stinson requested that it be brought down from the general foreman's office on the floor above. There was some conversation about the work record and, after some time, the three of them went upstairs to the general foreman's office where Stinson tried to get Rueger to accept a termination notice. Rueger refused, other union officials were summoned, Stinson suspended Rueger indefinitely, and Rueger was escorted out of the plant.6 On June 27, in accordance with company practice in cases of serious discipline, a "fact-finding" meeting was held in the office of Leroy Bawel, the Company's labor with Stinson (Grievance No. 25731) was filed for him by Duvall. The Union carried it to the third step of the contractually prescribed procedure and called it up for hearing on July 10; the Company consistently opposed it and, on August 2, the union accepted the Company's position and dropped it. A grievance against Stinson , similar to Rueger's, was filed by employee David L Chesser, who worked next to Rueger and was his alleged partner in the job-combining scheme referred to herein . He was not disciplined in any way for it. WHIRLPOOL CORPORATION 185 relations administrator, who presided . Present with Rueger were Union Steward Duvall, Chief Steward Larry Bab- cock, and Shop Chairman Leon Hunt, who is also chairman of the grievance committee . The company personnel included Stinson, Bawel, Breivogel, and Plant Superintendent Montgomery. Individual accounts of the events of June 25 were given by Rueger, Duvall, and Stinson and, at the request of the union, employees Chesser and Frank Johnson were brought in and questioned concerning their knowledge of the facts. There was no decision made at this meeting concerning Rueger's status and he continued on suspension. A meeting to deal with Rueger's status was called for July 10.7 Prior to the meeting, management representa- tives, including Stinson, conferred with each other and with union representatives, but not with Rueger, concern- ing the resolution of Rueger's suspension. The Company indicated its willingness to permit Rueger to return to duty, but without any compensation for the period of his suspension, converting that period, in effect, into a disciplinary suspension. At the meeting, this solution was proposed by Bawel; Rueger requested and was given an opportunity to confer with the union representatives. In this "caucus" Rueger insisted that he be compensated for his time on suspension and the union presented that position to the Company; the Company declined and converted Rueger's suspension into a termination. Rueger, through the union, presented a grievance, claiming that his discharge was unjustified.8 Notwithstanding Rueger's termination, the Union con- tinued to intercede for him with the Company and indicated that Rueger would accept reinstatement without backpay. The Company, accordingly, scheduled an addi- tional meeting for July 26 to consider Rueger's status. Again Bawel presided; he asked Rueger whether he wished to return to the Company without backpay and Rueger said he did; Bawel then turned to Stinson and asked whether Rueger's former job on the crating line was available; Stinson stated that the job had been posted pursuant to the contract and claimed by an employee with the requisite seniority. Stinson assured Rueger, however, that there would be a job for him in Department 119 at the same rate of -pay he had been receiving. Rueger asked for, and was granted, an opportunity to confer with his union representatives. He maintained his claim to his former job and the union representatives so informed the company officials. They rejected Reuger's claim and his status was not changed. 3. The contentions of the parties The General Counsel and Rueger contend that his suspension on June 25 and his discharge on July 10 were r This was a regular meeting between union and company officials to deal with management-employee disputes. The union placed Rueger's grievance on the agenda at step 3 for this date. 8 The grievance (No. 19556) was rejected in steps I and 2 by the Company on July I I and 12, respectively . On July 12 the union requested that it be discussed at the third step . It was so considered at a meeting on September 6 and the Company again rejected it. On September 25 the union submitted this grievance, with 27 others; for arbitration . On February 6, 1974, the Union withdrew its request for arbitration. 9 In its pretrial motion to dismiss, based on both the Spielberg and both based on his action in filing a grievance against Stinson's hostile and arbitrary attitude toward the employ- ees on the crating line; that, since this effort by him was for mutual aid and protection, it was activity protected by the Act; and that respondent consequently violated Section 8(a)(3) and (1) thereof. Respondent contends: (1) that Rueger's suspension and discharge were for cause and not in reprisal for protected activities; (2) that the dispute has been determined through the contract grievance machinery governing the Charging Party and the result should be recognized by the Board under the doctrine of Spielberg Manufacturing Company, 112 NLRB 1080 (1955); and (3) that the Board should withhold exercise of its jurisdiction in favor of the grievance machinery of the contract in accordance with its decision in Collyer Insulated Wire, 192 NLRB 837 (1971).9 4. Discussion and conclusions a. Preliminary Although Respondent's argument does not appear to draw a clear distinction between the rules of decision stated by the Board in Spielberg Manufacturing, supra, and Collyer Insulated Wire, supra, there is one.i° In applying the Spielberg rule, the Board tests the disposition which the parties have already made of their dispute. In determining whether to apply the Collyer principles, on the other hand, the Board considers the contract commitments and mechanisms which the parties have provided, through which they can resolve their dispute. In each case to which the Collyer doctrine is applied, moreover, the Board retains jurisdiction so that it can, when the contractual process has been completed, judge the result in accordance with the standards set forth in Spielberg. It appears, therefore, that the Spielberg rule is one of retrospective analysis and consideration of the resolution of the dispute reached by the parties after the use of the contractual procedures, while the Collyer rule is one of self-restraint pending the parties' effort to resolve their dispute by the procedures available to them. b. The Spielberg doctrine In Spielberg Manufacturing, supra, the issue before the Board - i.e., whether certain strikers had forfeited their right to reinstatement by misconduct on the picket line - had been referred to an impartial arbitrator under the strike-settlement agreement and he had ruled them ineligible for reinstatement. The Board, declaring that .. the proceedings appear to be fair and regular, all parties had agreed to be bound, and the decision of the arbitrator is not clearly repugnant to the purposes and policies of the Act," held that "the desirable objective of Collyer doctrines, and in its application to the Board for leave to appeal from Judge Leff's denial of its motion, Respondent stated that "at all times, respondent has been willing to process the grievances to impartial arbitration." 10 The Board, in Collyer, p. 841, refers to the many cases in its history involving grievance machinery and states: Those cases reveal that the Board has honored the distinction between two broad but distinct classes of cases, those in which there has been an arbitral award, and those in which there has not. 186 DECISIONS OF NATIONAL LABOR RELATIONS BOARD encouraging the voluntary settlement of labor disputes will be best served by our recognition of the arbitrator's award." Accordingly, it dismissed the complaint. In each of the many cases in which the Board has followed Spielberg, it has confined itself to inquiring whether the parties' resolution of their dispute comported with the standards set forth. But in each such case the resolution under examination was a binding one reached by an impartial tribunal. Although, as Respondent notes, it is not necessary that the award, to be recognized, be that of an arbitrator,11 it is necessary that there be an award by a tribunal whose impartiality and procedures may be examined for compliance with the criteria of Spielberg. In this case it is undisputed that the full range of the mechanism for the determination of the dispute has not been utilized and there is no award that may be examined for its conformity with Spielberg requirements. According- ly, as the Board wrote, in Pontiac Motors Division, General Motors Corporation, 132 NLRB 413, 415 (1961): No impartial arbitrator has ruled in this case. A grievance, carried through step 2 of a grievance procedure, is hardly a substitute for an arbitration proceeding.12 From the foregoing I conclude that the Board's doctrine in Spielberg is not applicable to this case and that the defense based on that doctrine must be rejected. c. The Collyer doctrine While the Board, in Collyer, established its policy of deference to the contractual machinery for resolution of disputes over interpretation of the contract , the detailed criteria for the application of that policy were spelled out in the decisions issued on July 18 and 31 , 1972, which appear as the first seven decisions in Volume 198 of the Board's Decisions. 13 Criteria contained in four of these decisions have application to this case. In National Radio, the Board held that, where the contractual machinery for the resolution of disputes might adequately determine the propriety of conduct alleged to be violative of Section 8(aX3), the Board will as a matter of policy defer the exercise of its jurisdiction pending the resolution thereof by that method. In Southwestern Bell, involving company action affecting the seniority of the represented employees, and Appalachi- an Power, involving the employment status of a union representative and the propriety of his activities as such representative, the Board also deferred to the grievance and arbitration machinery notwithstanding the unions' II In Denver-Chicago Trucking Company, Inc., 132 NLRB 1416 (1961), it appeared that the contract provided for a permanent,lomt state committee, consisting of an equal number of representatives of the employers and the unions, whose function it was "to settle disputes which cannot be settled between the employers and the local unions in accordance with the procedure established . . ."; that its decision should be reached by majority vote; and that its decision "shall be final and binding on both parties." The Board found that the procedures in the case met the requirements of Spielberg in that they met "normal standards of sufficiency , fairness and regularity" and it recognized the resolution reached . See also : McLean Trucking Co., 202 NLRB 837 (1973), and cases cited therein. 12 See also Evans Products Company, 171 NLRB 1002 (1968). is National Radio Company, Inc., 198 NLRB 527; Kansas Meat Packers, a expressed refusal in each of those cases to proceed thereunder. In this case it is not disputed that the Union has declined to prosecute Rueger's grievance over his discharge to the contractual limit, but I find an important difference between those cases and this one which I believe determinative in leading to the conclusion that deference to the contractual machinery would not be appropriate in this case. In both of those cases, the union was the charging party and its own interests, as an organization or as the collective-bargaining representative for all the employees, were at stake. Its refusal, therefore, to comply with the Board's directive to proceed under the contractual proce- dure, would deprive them of any means of redress. By the Board's dismisal of the complaint pending resolution of the controversy through the procedure established for that purpose, the union is compelled , if it desires a resolution of the dispute, to utilize those procedures. Here, on the contrary, only Rueger's interest is involved and there is no compelling incentive for the Union to rescind its abandon- ment of Rueger's grievance. A second relevant consideration follows from the foregoing. The Union's abandonment of Rueger 's griev- ance - together with some, but not all, of those pending when-contract negotiations commenced in February 1972 - carries a strong indication that the Union expected to gain some benefit by such abandonment and there is a substantial possibility that the Union's interests are now antagonistic to Rueger's. In Kansas Meat Packers, the Board held that it would be inappropriate to subject the interests of the charging party-discriminatees to "an arbitral process authored, administered, and invoked entirely by parties hostile to their interest." 14 A further important, and apparently insurmountable, obstacle to deferring this dispute to the contract grievance machinery is the allegation of the complaint herein that a major - if not the sole - cause for Rueger's suspension and subsequent dismisal was his action in filing his grievance on June 25.15 As the Board stated in North Shore Publishing Co., 206 NLRB 42 (1973): In the instant case the complaint contains a specific allegation that Kabitzke was discharged for invoking the very grievance procedure to which Respondent would have us defer. We cannot entrust such a complaint to a procedure the integrity of which is directly challenged by the allegations of the complaint itself. For the reasons set forth in Ryerson [199 NLRB 461 (1972)], therefore, we do not believe this to be an appropriate case for deferral under Collyer. [Footnote omitted.] Division of Aristo Foods, Inc., 198 NLRB 543; Malnte of Wisconsin, Inc., 198 NLRB 241; Brotherhood of Teamsters 8 Auto Truck Drivers Local No. 70 (National Biscuit Co.), 198 NLRB 552; Peerless Pressed Metal Corporation, 198 NLRB 561; Southwestern Bell Telphone Company, 198 NLRB 569; and Appalachian Power Company, 198 NLRB 576. 14 1 reach this conclusion notwithstanding the fact that Rueger, unlike the discnmmatees in that case, continued to request the union to press his grievance to arbitration. is The complaint contains two allegations of Respondent's reason for suspending and discharging Rueger: (1) that he and Duvall engaged in concerted activity and (2) that he and Duvall prepared, filed , and processed grievances and sought redress of them. WHIRLPOOL CORPORATION 187 To the same effect is the Board's decision in Diversified Industries, a Division of Independent Stave Company, 208 NLRB 233 (1974). For the foregoing reasons, I conclude that it would be inappropriate to defer the issues in this case to the contract grievance machinery and that it must be decided on its merits. (d) Rueger's suspension and discharge Although there is much testimony in the record by company and union representatives concerning the meet- ings of June 27 and July 10 and 26, the sole question of fact to be determined herein involves the activities of Rueger and Stinson on June 25. Preliminarily, it is to be noted that there are several matters which are not in dispute. The collective-bargaining contract in force between the Company and the Union had been entered into as of February 3, 1971; Stinson testified that he was a union steward in 1968 when, presumably, there was a similar contract in effect. There was, therefore, at least 5 years of contract relationship. 16 Bawel, who had been the Company's labor relations administrator for 6 years, testified that, as far as he knew, there had never been an unfair labor practice found against the Company.17 The record, moreover, is entirely free of evidence of union animus and, as stated, Stinson had been a union steward in the same area before becoming a supervisor. The record shows no particular union activity by Rueger; it also shows, without dispute, that the union officials, from Duvall through Hunt, showed no animosity toward Rueger and, to the point where they accepted the Company's position on each of Rueger's grievances and declined to carry them further, there is no evidence of any reluctance on their part in presenting them or giving effect to Rueger's wishes. The meeting of July 26, at which Rueger was offered reinstatement for the second time, was the result of efforts by union officials beyond the grievance procedure. In reaching its decisions to drop those griev- ances, moreover, there is no evidence that the Union acted other than in good faith, albeit in the Union's larger interest.18 In addition to these background matters, there can be little dispute that the early morning of June 25, when the day shift was required to absorb employees from the discontinued second shift through exercises of seniority with consequent "bumpings," must have been considerably less routine than the customary commencement of work. Stinson testified that there were 14 or 15 employees from the second shift whose seniority entitled them to positions 16 The contract in force during the events involved in this case expired February 17, 1974, and, as shown in the record, a strike began that day that was current during the trial . According to news dispatches , of which judicial notice is taken, the strike has ended. 17 The General Counsel did not controvert this statement My personal examination of the Board's index and other indices of its Decisions shows only one case involving a Whirlpool plant in this one (126 NLRB 1117 (1960)), involving a plant at Marion, Ohio, and decided in 1960, a violation of Sec 8(aX2) in the formation of a committee was found and allegations of violation of Sec 8(axl) and (3) were dismissed As far as the Evansville plant is concerned, therefore, the statement is correct . For the enure system the record is remarkably good is Hunt testified that union officials had investigated the incident and felt that, on the facts, the Union could not win an arbitration proceeding. on the day shift and that many of them did not know which jobs they were to perform or how to perform them. Nevertheless, Stinson also testified that the line started only 2 or 3 minutes later than its scheduled starting time of 7 a.m. Chesser, however, testified that the line started at 7:15 and, in view of the admitted confusion, I accept his testimony as a more accurate statement. Rueger first testified that he arrived at his work station at only 1 minute after 7 a.m. and that he punched his timecard on his arrival at the plant. He further testified that he amved at the crating line as it "was just getting ready to go" and that he started stapling the cartons as he had been doing the previous week. When shown his timecard, however, Rueger conceded that it had no time of arrival stamped on it, but he insisted that he had clocked in. He then changed his story to say that he was unable to find his timecard and, several times during the trial, he gave different accounts of his checking-in process.19 Although the determination of this case does not require a finding on the precise time of Rueger's arrival at his work station, Rueger's many changes in his testimony in this area do reflect on his reliability as a witness. Chesser, who worked next to Rueger and only about 5 feet away from him, testified at one point that Rueger arrived that morning about a minute after the line had started and at another point that Rueger was there when it started. Whether Rueger was there just before or just after the line started, Chesser's other testimony, that there was some confusion in job assignments and that the line started at 7:15 indicates that Rueger was probably not there when some of the job shuffling was going on. Just as he began stapling, Rueger testified, Stinson came to him and stated, in an angry tone, that in his opinion Rueger was late; that he continued by saying that he was "going to straighten this thing out," that he would "not get along with the people on this line but the people on this line would get along with him or else there would be new people on the line on the job." Rueger testified that he told Stinson to tell it to the other people on the line, but Stinson just turned around and went back to his desk.20 Rueger testified that Stinson was speaking to him but that there were other employees - Johnson on his right about 5 feet away and Chesser on his left about 4 feet away - within hearing distance. About 20 minutes after this conversation with Stinson, Rueger testified, he told Stinson that he wanted to see his union steward, but Duvall, the union steward, did not get to see him until after the lunchbreak was over. Chesser corroborated Rueger's testimony that Stinson He further testified that, in reaching their decision not to press the matter to arbitration, they also considered the fact that the Company had twice offered to take Rueger back but that he had refused those offers 10 There is no official record of Rueger's arrival There was undisputed testimony that any employee who amved at the gate after 7.02 a m. would normally be checked in by a security guard who would make a record of such late arrival, but the Company was unable to produce such record for Rueger on June 25 There was also evidence, however, that at that time employees were able to slip into the plant through an entrance to a first aid area. 20 Stinson's desk, with a small (30 x 48 inches) table immediately in front of it, was located about 20 feet away from the point on the line where Rueger operated the stapler. Other employees were on the line to Rueger's right and left 188 DECISIONS OF NATIONAL LABOR RELATIONS BOARD had made the foregoing statements, but he thought that they were directed to all the employees on the line. For this reason, early that morning and through Duvall, he filed a grievance on the basis of them. It was about 20 minutes after he had filed his grievance, Chesser testified, that he heard Rueger tell Stinson that he wanted to see the union steward. Stinson conceded that he had made statements about .,not getting along" with the employees, but testified that he made them in response to remarks by some employees that, if he wanted "to get along" with the employees, he should permit them to continue their former practice whereby two employees combined their jobs so that one employee could perform both jobs while the other took a break and they could alternate in working . Both Rueger and Chesser, while admitting that they had previously combined their jobs in that manner, denied that they did so that morning or that there was any conversation with Stinson about the practice before Stinson made these statements.21 Johnson, who Rueger said was about 5 feet to his right, testified that on June 25 he was working 25 or 30 feet from Rueger; that early in the morning he heard Stinson, at his desk, say to Chesser and another employee, whom he could not identify, that he was "not going to get along with anyone." While these accounts are somewhat different from each other, no finding concerning them is necessary for the decision of this case. Sometime after the end of the lunch recess - Stinson testified that it was 12:05; Rueger "thought" it was about 12:20; and Duvall testified that it was about 1 p.m. - Duvall came to Rueger's work station and asked him "what the problem was." Rueger said that he wanted to see his work record ; Duvall asked him why, and Rueger, after telling Duvall that Stinson had "approached him in an agressive manner" that morning, said that he wanted to see whether Dallas Collins, who had been the foreman of the crating line until the previous Friday, had removed a reprimand from his work record in accordance with his promise to do so . Rueger asked Duvall to have Stinson assign a replacement for him on the line so that he and Duvall might consult together. Duvall made the request and Stinson complied by having a sweeper take over Rueger's task. Rueger and Duvall then went to Stinson's desk. It is from this point forward that the accounts of Rueger and Duvall differ widely from that of Stinson. Rueger testified that he asked that his work record be sent down from the office of the general foreman on the floor above ; that Stinson first said he would call for it 'when he got around to it' " that Duvall made the same request and, when he received the same answer, asked Stinson whether it would be all right if he and Rueger went upstairs to get it. At this, Rueger testified, Stinson said he would get it and telephoned the office of the general foreman, asking that it be sent down. Rueger testified that, while they were waiting for the records to be brought down, he asked Duvall to prepare a grievance against 21 Both Rueger and Chesser testified that , on the previous Friday, Stinson had made some remarks to them about how "things would be different" when he took over on Monday. Stinson denied having made those statements but testified that he had been told beforehand that it was a Stinson for him on the basis of Stinson's "harassment" of him that morning ; that Duvall answered that he thought Rueger had a "just grievance" and started to fill out a grievance form. Duvall's testimony corroborated that of Rueger concern- ing these preliminaries and he further testified that, during them, Rueger said that Stinson's approach to him that morning had no basis and that he thought Stinson was "picking on him"; that he, Duvall, turned to Stinson and said that, if it had been a mistake to make the statement about "not getting along," he, Stinson, could simply apologize for it and the matter could be dropped. Duvall testified that Stinson said that he was the foreman and what he said "still went." Stinson's testimony was that, when he sent a replacement to relieve Rueger, Duvall and Rueger came to his desk and conferred alone for 5 or 10 minutes , that at the end of that time he joined them and Rueger wanted to know why Chesser had been moved off the job as his helper ; that he told them he had discussed the same problem with Chesser and Duvall earlier that day and that management was in the process of checking out how the two jobs should be performed; and that if it should be determined that it was appropriate to have two people on the job he would "stand corrected." Stinson further testified that he then told Rueger that the "problem had been taken care of with Mr. Chesser and Mr. Duvall" and that he should return to his job. He testified that Rueger then demanded "ample time" for private discussion with the steward22 and that he left them alone for about 10 minutes . He was then "sum- moned" back to the table, he testified, and Duvall said that Rueger wanted to see his work record and wanted him to accompany them to the office to look at it. Stinson testified that he answered that he was very busy but that, as soon as possible, he would try to get the records and he asked Rueger to return to his job while he had a short time to act on the problems he had before him, but Duvall insisted that Rueger had the right to see his record; Stinson said he would call the office and try to get somebody to bring it down. He testified that he then called the office , talked with Breivogel and, in 6 or 7 minutes, Breivogel brought it down. Breivogel testified that it was between 12 and 12:30 when he received the call from Stinson and brought Rueger's work record downstairs. The next segment of the episode consists of Breivogel's delivery of Rueger's work record to Stinson and the events immediately following it. The separate accounts, by Rueger and Duvall on the one hand , and by Stinson and Breivogel on the other, are as conflicting as if each dealt with a totally different event. Rueger and Duvall testified that, about 6 to 8 minutes after Stinson called for the work record, Breivogel brought it down and handed it to Stinson at the table where all three of them were ; that Breivogel said nothing and went back upstairs. Rueger testified that, while Stinson was calling for the record to be brought down, he told Duvall that he wanted to file a grievance over Stinson's "harass- "trouble area." 22 The contract provides that, when an "aggrieved employee" requests an opportunity to consult with his steward, "The employee and steward shall have ample time and opportunity for private discussion." WHIRLPOOL CORPORATION ment" of him that morning; that Duvall said he had a valid grievance and began to write out a grievance form. Rueger testified that, as soon as Stinson received the record, he began writing on it, saying that Rueger had been late that morning. Rueger also testified, however, that both he and Duvall asked Stinson what he was writing but that Stinson did not answer them. According to Rueger, Stinson was angry and he did not know why, but he testified that Stinson made a remark about a grievance and said "Let's go to the office." Rueger testified that Duvall then again said that Rueger had a legal grievance and that he thought that Stinson was trying to get back at Rueger because he requested the filing of a grievance. Duvall's testimony corroborated Rueger only in part. He testified that, as he was talking to Stinson about the "not getting along" statement he had made that morning, Breivogel brought down Rueger's work record; as soon as he received it, Stinson began to write on it; they asked Stinson what he was writing and Stinson answered that Rueger had come in 1 minute late that morning and that he was going to put it on his record. Duvall testified that he told Stinson that, in his opinion, that was just a reprisal for Rueger's having asked for his steward and that it was wrong of him to do that. It was while Stinson was writing on the work record, Duvall testified, that Rueger asked whether he thought he, Rueger, had a grievance and that he answered that he was obligated to write one out if Rueger wanted it; that Rueger said he did; and that he, Duvall, started to write one out. Duvall further testified that Stinson asked him what he was doing, that he answered that he was filling out a grievance form, and that he asked Stinson whether the matter couldn't be worked out there, "at floor level," whereupon Stinson then said, according to Duvall, several times and increasingly loud, "Let's go upstairs!" Stinson agreed that Breivogel brought the record down about 6 or 7 minutes after the request was made. When Breivogel came down, Stmson testified, he was not at his desk but he was on the line and Breivogel handed it to him there. With the record, Stinson testified, he went back to the table. He showed it to Duvall, who asked him about the reprimand entry by Collins; he answered that only Collins, who had made the entry, could remove it. He then told Rueger that he, Rueger, had been late that morning and had received an oral warning which he was now posting in his record. Stinson testified that Duvall was not writing a grievance during this conversation. Stinson also testified that he then returned the record to Breivogel, who had been standing nearby, and asked him, to wait a short time so that he could also take back to the office the 12:30 production count; and that Breivogel waited and took the production figure back with him. Breivogel corroborated Stinson's statement that Stinson received the record while away from his desk but, although he testified that he did not see either Rueger or Duvall, he testified that he was downstairs "10 minutes at the most" and he made no 23 Hope testified that at that time Stinson came into the office and said he needed help on a problem with Rueger; that Rueger had asked for his union steward and had refused to go back to work. In response to his questions, Hope further testified, Stmson said that Rueger was, at that time, "lying on the table down there by my desk " and that he had asked Rueger 189 reference to any request by Stinson that he wait for the 12:30 production count. The testimony of Rueger and Duvall states that they were in constant contact with Stinson from the time they first came to his desk until they went upstairs with him at his insistence, and that this period of time was no more than 10 to 15 minutes. Stinson, however, testified that when they first came to his desk he left them alone for from 5 to 10 minutes; he came back and had his principal discussion with them about Rueger and Chesser combining their jobs; he then left them alone pursuant to their demand for "ample time for discussion" for 10 minutes; he returned and had the discussion about getting Rueger's work record; he called for it and, as all witnesses agreed, it took more than 6 minutes to arrive; and they then discussed the Collins reprimand before they began to discuss Rueger's lateness that morning. After the comple- tion of this conference, Stinson testified, he gave the work record back to Breivogel, asked him to wait for the 12:30 count, gave that count to him, and returned to his desk after 15 to 20 minutes, finding both Rueger and Duvall still at the table. He testified that he repeated his direction to Rueger to go back to work and again left the table for about 10 to 12 minutes. It was during that time he testified, that he telephoned the general foreman's office, asked for Cannon, and, when told Cannon was away, talked with Breivogel. Stinson testified that he told Breivogel that he had a man who wouldn't go back to work and Breivogel said he would have Cannon come down. Breivogel corroborated Stinson's testimony that he called the office, putting the call at 1 p.m. or shortly thereafter, that he asked for Cannon and said he had a problem with a man who refused to go back to work. Breivogel testified that he told Stinson he would come downstairs shortly; that he started down but met Cannon and they agreed to go back to- the office and find out what the current situation was; and that as they returned to the office they found Rueger and Duvall standing outside the office. They went into the office and, Breivogel testified, he asked Stinson what had happened; Stinson said he had been in touch with Hope, the superintendent, who told him to release the man who refused to go back to work. The management people, according to Breivogel, went into the general' foreman's office and Rueger and Duvall went into the adjoining office. Hope corroborated Stinson's testimo- ny, about requesting instructions and fixed the time thereof at 1:15 p.m 23 Rueger and Duvall testified that when they reached the upstairs office, following Stinson carrying Rueger's work record, Stinson picked up from the desk a form which he held out to Rueger and asked him to sign. Rueger, at the trial, identified the form, entitled "Change in Employee Status"; it showed Rueger's clock number and his date of seniority; it had a check in the box marked "Release"; it had written, under "Reason for Separation," the words "Shop Rule - 1T'24 and it was signed by Stinson both as originator and foreman. `'several times" to go back to work. 24 The shop rules are part of the contract Its introductory paragraph states that "The performance of any of the following acts shall constitute an infraction of shop rules" and the closing paragraph states that. "The commission of any of the above infractions will be sufficient grounds for (Continued) 190 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Stinson testified that Hope told him to go back downstairs to try to get the man to go back to work and, if he refused, to release him. Stinson testified he did so, telling Rueger to go back to work or be released, but Rueger refused to go to work and both Rueger and Duvall refused to go to the general foreman's office without additional union representation . Stinson testified that this refusal was at 1:30 ; that he took the 1:30 production count and returned to the general foreman's office where, at 1:33, he prepared the status change form. At this point, Stinson testified, Duvall and Rueger appeared outside the general foreman's office; Duvall asked permission to call Babcock from the inspection office next door; Stinson gave him permission and then held out the status change form to Rueger, asking him to sign it and hand over his badge. Rueger refused. When he reentered the general foreman's office, Stinson testified, Breivogel and Cannon were there ; Breivogel asked what type of form he had used and, after looking at it, said that the proper form would be one entitled "Reprimand" and that it should have written on it "indefinite suspension." Stinson testified that he crumpled up the status change form and dropped it in the wastebasket; that he asked Breivogel to prepare the reprimand form ; and that, when this was done, he signed it. Rueger admitted that, when Babcock reached the office, Stinson told him that Rueger had refused to go back to work. He also testified that, when Babcock asked what was going on and suggested they talk it over , Breivogel said that he, Rueger, and been released and should leave the building. Rueger testified that the entire conversation in the office took about 10 minutes and that he left the building about 2 minutes later. The door pass which Rueger used in leaving the building was prepared by Stinson and states that Rueger left his job at 1:48. A timeclock stamp on it, presumably made at the exit , is 2:15 p.m. The only other testimony concerning the incidents at Stinson's desk were given by employees Johnson and Chesser, Johnson testified that he went on a 30 -minute break during the time when Duvall and Rueger were at the table next to Stinson's desk; that he saw them there 5 minutes into his break as he went for a soft drink; that he came back with his drink and stood a few feet away for the remaining 25 minutes . He did not testify to any conversa- tions but testified that he saw Rueger sitting on the table, Duvall writing, and that Stinson was not there . Shortly thereafter, he testified, he heard Stinson say "Let's go upstairs" and he saw the three of them go up. Chesser testified only that Rueger was off the line and at Stinson's table for 20 to 25 minutes and that , although some of the discussion, particularly Stinson's demand that they go upstairs, was loud, he did not hear Stinson tell Rueger to go back to work. He admitted, however, that he did not hear all that was said. The proceedings at the fact finding meeting of June 27 disciplinary action ranging from reprimand to immediate discharge, depending upon the seriousness of the offense in the judgment of the management." Rule 17 reads: "Insubordination and refusal to perform work assigned." ad Under the facts as stated by Rueger and Duvall , of course, Stinson and the meetings of July 10 and 26 do not resolve any of the deep contradictions between the two accounts. On the basis of Rueger's testimony that the incident started at 12:20, when Duvall first came to see him, it would have been necessary that he be at Stinson's desk for at least an hour before going upstairs because he also testified that he was in the office there for only about 10 minutes before leaving the plant and he was checked out at 2:15. Contrary to the argument of the General Counsel, the time schedule testified to by Stinson more nearly fits his testimony than the one stated by Rueger fits his testimony. Rueger's testimony had many obvious inconsistencies and he changed his story several times, particularly about his reporting for work that morning. It is not possible, therefore, to accept his testimony as an accurate account of the events . Moreover, Rueger testified that he, Duvall, and Stinson were at Stinson's table during their entire discus- sion and that they went up to the office together. Duvall's testimony is similar. They also testified, however, that as soon as they entered the office, Stinson attempted to get Rueger to accept the employee status change form . If their testimony were accepted, it would be difficult to explain when this form was prepared by Stinson. In his testimony, however, Stinson claimed that more than once he left the table where Rueger and Duvall were sitting, that he obtained advice in dealing with the problem that Rueger was presenting to him, and that, during his last interval away from the table before demanding that they go upstairs, he prepared the form in the office, obtaining both the blank and the information concerning Rueger's badge number and hiring date from the file. If the account of both Rueger and Duvall were credited, there would have been no opportunity for Stinson to obtain and prepare the form25 and, therefore, I accept Stinson's testimony that he was away from his desk for one or more intervals while Rueger and Duvall were there. It is also important to note a serious conflict between the testimony of Rueger and that of Duvall concerning their conversation with Stinson and with each other at the time when Rueger's work record was first brought to the table and when Duvall began writing up the grievance for Rueger. As outlined above, Rueger testified that Stinson, although he refused to answer when they asked him what he was writing, did say something about a grievance and that he followed that by demanding that they go upstairs. Rueger also testified that Duvall made the statement that he had a valid grievance based on Stinson's statement about "not getting along" and that Duvall accused Stinson of trying to get back at Rueger because he was filing one. The testimony of Duvall, however, varies considerably in its details from that of Rueger concerning these exchanges: he testified that, when Stinson was making the lateness note on Rueger's work record, Rueger asked him, Duvall, whether he had a grievance and that his answer was that, if Rueger wanted him to prepare and file a grievance, he was obligated to do so. Duvall further testified that Rueger then said that he wanted to file a grievance and that he, could have taken Rueger's badge number and date of hiring from Rueger's work record, which, according to them, he still had in his possession, but it would not account for the presence of the blank form, and they did not testify that he prepared any form while he was with them. WHIRLPOOL CORPORATION 191 Duvall, began to prepare one. These conflicts, minor though they might be in a different context, lead me to conclude that Rueger adjusted his testimony to the legal theory of the complaint in this case and thereby further undermined his credibility as a witness. This determina- tion, however, does not mean that I accept the testimony of Duvall without reservation : on the contrary, I find it difficult to credit in view of the time frame above set forth. Nor does it mean that, because I accept some parts of Stinson's testimony, particularly those which set forth the timing of these events, that I regard his entire testimony as accurate. The many unresolvable conflicts in the testimony of Rueger, Duvall, and Stinson make it impossible to determine with the requisite accuracy just what happened between the time that Duvall first spoke with Rueger at his work station and the time that all three of them, with others, were in the upstairs office. It is impossible to accept in full the testimony of any of them and the many contradictions in Rueger's testimony preclude acceptance of his account of the statements immediately preceding Stinson's demand that they go to the office. While it also cannot be found as a fact that Rueger was guilty of insubordination in refusing to go back to work, it is clear that Department 119 was in somewhat of a turmoil that day and that Rueger's contentiousness did nothing to ease the situation. Stinson's conduct vis-a-vis Rueger appears also not to have been distinguished by patience or outstanding judgment. His testiness was undoubtedly combined with Rueger's doggedness, but any conclusion concerning how these two elements may have combined to bring to an end Rueger's employment by the Company would have to be based on speculation. In view of the absolute lack of evidence of union animus or of any other action taken by the Company with respect to the other grievances filed that day over the same alleged statements by Stinson, there is insufficient evidence to justify an se 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. inference that the discipline and discharge of Rueger, by whatever considerations it may have been motivated, was based, in whole or in part, on Rueger's union or concerted activity in filing a grievance under the collective-bargain- ing contract. There is also insufficient evidence to justify a finding that Respondent committed any of the other acts alleged in the complaint as unfair labor practices. It appears from the foregoing that the General Counsel has failed to prove, by a fair preponderance of the evidence , that Respondent has committed any of the acts alleged in the complaint as unfair labor practices and it must, therefore, be dismissed. Upon the foregoing findings of fact and upon the entire record herein, I reach 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. At the time of the activities set forth in the Decision, Harold L. Stinson, Larry J. Breivogel, Leroy P. Bawel, Albert R. Hope, and Charles Mongtomery were supervi- sors of Respondent within the meaning of Section 2(11) of the Act and acted as its agents. 4. The evidence herein is insufficient to support a finding that respondent committed any of the unfair labor practices alleged in the complaint. 5. The complaint herein should be dismissed. Upon the foregoing findings of fact, conclusions of law, on the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER26 The complaint herein is hereby dismissed. 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.