Active Products Corp.

ACTIVEI PROI)t ('TS ('()RPR A ()R 11() Active Products Corporation and Ronald D. Harms. Case 25-CA 8923 Nlav 17. 1979 DECISION AND ORDER BY CHAIRMAN F:ANNING AND MEM BERS PI:N .() ANI) TRItSDAI. On December 26. 1978. Administrative aw Judge David L. Evans issued the attached Decision in this proceeding. Thereafter, the General Counsel filed ex- ceptions and a supporting brief, and Respondent tiled 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 Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings' and conclusions of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended. the National Labor Rela- tions Board adopts as its Order the recommended Or- der of the Administrative l aw Judge and hereby or- ders that the complaint he. and it hereby is, dismissed in its entirety. I he G(ieneral Counsel has excepted to certain credibilits findings made hb the Administrati'e L.aw Judge. It is the Board's established pllc not to overrule an administrative lasa judge's reso)lutions , th respect to credihilits unless the clear preponderance f all of the relevant eidence convinces us that the resolutions are incorrect. Standard Dn Hall Pridrl, In, 91 NLRB 544 1950). enfd 188 F.2d 362 (3d ('ir 1951). We have carefulk examined the record and find no basis tor reversing his tindiigs. We note that in sec. IIH.A.2, par I, of his t)eclsln the Admlinistritlie l Judge inadvertentls referred to the niled Automobile Aerospace and Agri- cultural Implement Workers s the "' nited Mine Workers " Additionalls, the correct citation for irth Binr (onmpanv. referred to in fn 16,Ih. 232 NLRB 772 (1977). In adopting the Administrallse i.a' Judge's rejection of the C;encral Counsel's condonation argument. (hairman Fanning relies soClel on the Administrative Laaw Judge's primarN holding that, based on the credited testimon, there is no evidence that Respondent condoned (Charging Parts Harms' conduct, rather than Ihe Administratie Las Judge's alternative holding and his citation In ( heoi F d. Disiitn Flirrl.n i Fd's (C ,i pant, 215 NlRB 388 (1974), DECISION 1978. Said complint as based upoltn a charge filed ot April 18. 1977 h Ronald ). laris. i iditidual. I he cilharge aileges that Rcspolndent discriminthrilx dischliarged 1larms and other\istc liscriminateld agiitnst nltphlecs Ron Sniall anl. Bruce [ilaser, bult tile COtillittnt dlocs not retr to those elnploees. I'hc conlplaint lleges Ihat Re tpondenl discharged liarms on Febhruar 23. 1977.' hecauseC said em- plo!ee e\ercised his right under a collectixe-haralninl ;agreement "to present safet\ complaints to Responldelt aind to) retfrain troml .i orkilng under unstc condllliollsn" and be- cause I larms and other eploeces concerledl soiught cor- rection of' unatl e \ orkin cndilits "'iand egi ICtl1ed1 in ither concerted actlx ties ftbr the purpose of Illlliit ili. ld lintI pro- tection."' t the hearing. counsel for the (eneral ('(uTInel rtlO xed to inteld l cnipliaint to iltlcitdI iiil llcCrillhtn that on August 28. 1978. Respondentt hb\ Is iltol-ne\ ('harle s ilerriman. interrogated altn empl\c (I orrest SItil} in olaltln o(t' Section 8a)( I t'f the NationIal .Iahotr Relatitmls \ct, s ;tmelided, Said mlotiinll \ gl,ilted o\cr Rspon- tent's objecttionll Responttcltnt idlil te .trltshrliclnti l nlld cominlerce tcts and the illschargc of liarinls on I ehrtr\ 23. but ldenies the commllllSSionll ftil unliir lahbor lalctuccs. All parties \ere afitrded tfull pportuilir, to appeir. to exlatmIle and cross-exlamnlle itnesses, and t argut oral(\ at the hearing. ('ounsel ftr General Counsel and Respoin- dent filed briefls xhlich he been careftull, cinsidered !ponl the etire record,;t a frIll r Ill\ iohsrr\;ltilln t the demeanor o' the i1nesscs and the inheret probabilities ami iprobabhtilities ot' the testilllolli Ot' each \\Itness. I make the Ioll(\\ ing: i'II)Is(,%S \I) (,()NI t I sIwS I I. lit ,SS I R i,P( ) ",DI [ \'-I) t t() St \ S The Respontent. an ndiatil c rl-oration \\ ithl its p llItl- pal oteice and place ft business il \M1.rion, Ili.iIn. .oper- ates a 'lactor, protluiCig .iluitoloti\e parts alid hthroonl and kitchen sinks. In the regular course and conduct ofl its business operations at M1arion. Respondent annuall mtlanu- tlctures, sells. and distributes trom said tacilit! products xalued in excess of 5sI0.(X) \\hich are shipped t'roim said facilit' directl to States other than Indiana. alld Respoll- dent annuall puirchases alnd recci\ es goods and materi ls \aluedt i excess oft St).00( 0 hich are transportedl to sail tacilit\ direct\l fromi points outside the State of Inidia.iei The Respondient conceiles anid I ind. that itI 1s in ell- plo er engaged in commerce ithln the mea;nling oft Secttnl 2(6) and (7) of' the Act. There is no) dispute that local nion No. I 6O, nl mted Automobile. Aerospace and Agricultural ImplemIcnt t, s- ers herein called the niton), Is and has been at all tiunes material herein labor organization s ithin the mcariang of Section 251) ot' the Act. Sl.AI- N l\ l 1- lll CASI DAI)n 1.. ExANS. Administratise l.as Judge: 'his pro- ceeding. with all parties represented. was heard on August 30 and 31 and September I. 1978. in Mlarion. Indiana. on the complaint of General Counsel which issued on April 24. t niess ther, ise idiatic .ill[ eenlrts rtceITd t, tierein ItIIc I i 9 ' 2 (ieneral (,uiicl does niit corii.lid i li ID\ -ricrir .itx iIs olier TltlI that relating to sItat't L,,LIsed dl1lrIIlliii.I!,l ,I ilst Ilirnits 242 NLRB No. 62 l32S I)t( ISIONS OF NAIlIONA. I.ABOR REI.ATIONS BOARD 11. 1111 A IF l(if) N:AIR LI )R FPRA( I IS A. l7/e Dischargc of Ronld ). Harom II'here are three hbasic questions to be considered. The first is whether Ilarms' initial invocation' of the safety provi- siOns ofi a cllectisve-bargaining agreement was protected. Respondent conitends Il-arrs' conduct was unprotected h inoiio, but assuminig that it was, Harms was not fired fr the initial invocationl: General Counsel contends that the initial invocation was protected and that Flarms was fired. at least in part, hecause of it. T'he second question is whether, as- suming a protected nature of the initial invocation. Harms' subsequent conduct was protected b the contract and, thereire, the Act. The third is whether, assuming a un- protected nature of' larms' conduct subsequent to initial inivocation of the contract, Respondent condoned the em- Ployee's action s that the discharge therefor wIas rendered violative. I have concluded that liarms' initial invocation of the contractual satet! provisions was protected but that he was not discharged for this protected activit . I have further concluded that larms' conduct subsequent to the shift saiety commlittee's decision on the saf'et issue in question exceeded the protection oif the Act. that he was discharged for such misconduct, and that Respondent h;ad not coni- doned the unprotected actiiit) hefore the discharge s that Respondent did not violate the Act in the discharge oit flares. 1. Relevant contractual provisions At all times material herein. Respondent and the Union were parties to a collective-hbargaining agreement which provides or an extensive grievance and binding arbitration procedure and a prohibition against strikes "or other cur- tailmient of w ork" this case involves a work stoppage which uinquestionabl> would have been unprotected in its entirety bh this no-strike provision were it not or the fact that the emplosees insolved initialls ceased work, adsa;nc- ing a claim of the existence of unsafe working conditions. (iencral (Counsel does not contend that the work stoppage Was protected hby Section 502 of' the Act. Rather. General Counsel contends that the work stoppage, in its entirets, was protected hby operation of the safety provisions of' the cintrllat under the teor o Roadll IEprCu s. It.. 217 NLRB 278 ( 1975) enf'd. 32 .2d 751 (4th ('irt 1976). The provIsiolns are: Section 21. s hre shall he a Planlt Saliet ('ommittee. consistirng ofi two (2) lunion membhers and tlwo (2) ('om- pany members. incluilng tile I.ocal U nion President and the ('onparnl Director o Safet. I his (mmittee will conduct at least one nmonthl safety tour of the plant, estahlish an agenda of' safetl items during such tour, if any. anld initiate or complete correction of' such items prior t) the regular montlhl salet4 meeting(s) to he held aproxiimatel two (2) weeks after each toutr. Hlerein. the term "initial in ocaimion" refers to the emploNee's ceasing wiork ndll consullting with the shilt sallet commttllee. There shall be a Shift Safety Committee on each shift, consisting of two (2) Union members and two (2)('ompan\ members. Whenever an employee feels affected by an unsafe condition, he shall discuss it with his Supervisor. Should they not agree on it to the employee's satisfac- tion, the Supervisor will call one (1) Union member and one (I) C(ompany member in on the issue without undue delay and before the affected employee is ex- pected to continue his work under the alleged unsafe condition affecting him. Should the members of the Shitt Safety Committee disagree on the issue, the re- maining two (2) members of the Shift Safety Commit- tee will be called in. If no agreement can be reached at that time. the Plant Safety Committee will be called in on the issue as soon as possible. If their decision is not agreeable. the Plant Engineer or his alternate will be called in and his decision will break the deadlock. Conditions ound to he unsafe shall be dealt with by whatever means are required to correct them or to pre- vent an immlinent accident to a person or persons. The Shift SafetN (Committee members shall report plant conditions atlecting safeti and health of emplo - ees aLnd which cannot or are difficult to correct on a shift level. to an,, of their two 2) members of the Plant SaKet ('omm1littee fir presentation to the Plant Safety ( 'on m i t tee. I lhe decisions of the Shift Saf't\ C(ommittee are to he obeed bi the respective Shift Superision and em- plo\ ees. 2. The Lmployer's operation and background For a niumher of ears Respondent has recognized L nited Mine Workers Iocal 1550. as the exclusive bar- gaining representative of its production and maintenance employees who nlumbered about 220 at the time of the events in ol ed herein. he production operation. at least as far as this case is concerned involves first the unloading of, batlroom or kitchen sinks and placing them in an over- head con esor sstem lor routing through the plant. An electricall\ charged primer coating is spraxyed on the sinks. and then the: continue on to booths where they are sprayed with enaminel in an electrostatic process. After this spraying. the convex or systemn carries the sinks to an oven for baking and then to a point where they are passed. rejected, or sent back for repair. Hlarms and other employees directl$ involved herein worked in the enamel spray booths. There were two of these booths. one large booth where four emplo ees. includ- ing iarms, were stationed, and one small booth which ac- conidatelld two sprayers. On ebhruary 23 all six enamel spri! stations ere in use. Ihe enamlel is placed in containers which ha;e varied in size oer the ears. On February 23 the employees were usinlg ()-ga;llon cans which look like. and were referred to h!by e er rone who spoke at the hearing. als "milk cans."' The 4 In descrihing the milk cans and the pra)ing process, the present tense is used fir the purp,)se ot carl t I] ie' r. there was testimonlls thall he use iif the rilk can'is ,as heing phl ed ut a the lime f the eents in queslion and ula complelel) discontinued mi ta ir ol Ilarger cntalners n April 1. 326h ACTIVE PRODU (IS CORPORAIION water-base enamels used by Respondent are placed in the milk cans in the mill room, an area separate from the spra I- ing booths. After placing the enamel in the cans, mill room employees put 20 to 25 p.s.i. of air in the cans for testing purposes. After being brought to the booths the milk cans are attached to hoses which connect to a central systern of compressed air which is maintained at 90 to 94 p.s.i. Each can has gauges which display the pressure of air going to and maintained in the cans. Each has regulators which con- trol the pressure of the air being injected into the cans as well as the pressure of air flow ing into the spra\ guns. Each milk can has a "pop-off' valve which is designed to allow air to escape when the pressure in the cans exceeds a pre- scribed maximum. The pop-off valves used at the time in question were rated at 30 p.s.i. maximum. If the pressure in a can exceeded 30 p.s.i.. the pop-off valve was supposed to release all air in excess of that pressure. If it did not do so. the enamel would be sprayed at the pressure set by the gauges. If the gauges were set at 32 p.s.i.. and the pop-off valve were stuck for some reason, the spria would lease the guns at 32 p.s.i. Use of too much pressure had the deleteri- ous effect of producing an unacceptable surface. Whether use of pressure in excess of 30 p.s.i. also gave the sprayers reason to feel affected by an unsafe working condition is an issue in this case. As the enamel flows from the can to the gun and is sprayed out, it is electrically charged. The charge on the enamel is opposite to that of the primer, permitting smooth adhesion while requiring less air pressure than was neces- sary before Respondent began using the electrostatic pro- cess in June 1976. Harms had been regularly emploNed ias a sprayer since December 1973. and therefore had spraed enamel, utilizing the milk cans at higher pressures than re- quired at the time of the events in question. At the start of January 1977. Hlarms was on the da\ shift. directly supervised by Production Superintendent and Gien- eral Foreman William Faulkner. Harms ,worked that shift for 2 weeks in January. than went to the second shift until February 10, when he was again returned to the first shift. Harms testified that around the first week in Jallnuar he witnessed a blowout of a rubber seal. or gasket. which is between the can and the bolted on lid. Harms further testi- fied that during that week he saw a bolt, which was one of two which had held the lids on the cans. break "allowing the lid to blow off the can approximately 15 (feet) in the air. falling to the floor." He further testified that, as a result of these events "a month prior to the twenty-third lot' Febru- ary]. the sprayers asked the shift satel committee for writ- ten specifications of the maximum air pressure \hich could safely be used on the cans." He testified that the shift satete committee said it would investigate and report back to him with the answer, even if it had to go to the manuclucrer. but he heard nothing further from it. Harms did not den- tifv any members of the shift safets conmmittee to Iwhom he addressed this question. ie testified. alternativels. thIi he addressed the question to a super isor. but he could not remember which supervisor it was. although he stated that Faulkner was his supervisor at the time. Faulkner worked only the da, shift during thie monlth of January. In January and Februar\. emploee Forrest Sut- ton, also a sprayer, was chief union stew ard and memlber of the first-shift safety committee. Sutton categorically denied that iarnms addressed his question to the tirs-shitt sitlt conmmittee. Sutton did tesltiF thal he li lnesed a aket blow on a milk can, but neither he nor a;I! otheir cmplxcc except Hlarms. testified that the, itnessed aIithili sutch as a hbolt breaking. propelling a milik can lid 1 Iet in the air. and Faulkner denied witnessing such an en\c t Therefore except tfor a blon rubhher gaset. laritll ' tes- timony in regard to the explosion ot' a tank and hi, qulestioTn addressed to the shift sat'et committee, or- sulipClisol. iS completel u ncorroborated. I find that larms did witness a gaskel hx\\wig. h dis- credit his testimons that he sa, ai milk call hlid hlox. I teet in the air. Certainl if such had happened, there ,,o ild hls c been mans witnesses to such a dramlatic e enl ald ( Cenr l ('ounsel would have presented themn or explained theil ah- sence. (ieneral (ounsel did seek to introduce testilllonl retard- ing the hlo,, up of' a milk can ill the mill rootml x here ciian, are filled.' I rejected this testinonI hcciausc it did nIt ippc- tain to the emploNees' concerns arising Iroin the ip'rlarili of' the milk cans. hich was the issue in this case. I adhere to mn\ ruling I urther find that larmills d.l not addliess his question to the first-shift satets colinlitee iln .anutl r ,. (A-\ well as Sutton Faulkner denied know, ledge of' such re- quest. and I credit this denial). VW'hile no member o managenlenl an no cniplo tcc \;as indentified as hasing received Ilarms' reqllest r inllf; ril- tion. I find that llarils \\as genuminl\ concerned \ ith ascer- taining the maximium safe air pressure. Ie could Iha \ asked any number of persons on either shtll h ,,,orked in JanuarN. Specifically he could have asked sime imcnhber of the second shift satets conmmittee.' none of ,hthni testified. Be thlat ats it miy, I ind anrms did ha\c the questil in miid ;as hlic ,orked ,, it the mlilk cants during thie 1nlilth, ot Jallualr\ and ebrualr,. and that at so1lle point hCe .askisCd soleonlle. but lie did not receixe a an11II cr. Nexertheless, the eplo, ces contiIlued x orking thr ouh- oult J iuar, and I ebrua rilir ,, ithouI k no; l l g i lii the tt i- mnum sate oplerating air pressure ;as.' \';lt the lacr'. and the shit'l a;1d pla;llt satelI co(IIIIIIc.11' 1 did kInol 'i that the enaneliing process had been condtiled \ tiltlin C\- cess of' 30 p.s.i. for a considerable anIolunt of initime il th past. speciticall in the sexeral da\s helfore the exents ot Februar 23. In this regard I especiall note the essenlial l undisputed testimonl (of the use of higher air pressi ure he- 'ore introductiotn of lth electlostatic process. liarii' tell- mnon that the sprayers had operated at 32 p.s.i. "ibr a coil- pie oft' das''" hetlre f-ebruar 23. aid the slateittnt of I act in a grienance iled hb Sutton on behalit of the sprail-er' llit "it is rue that this process has in the pa'It tlan (1 it. IIt ilis pressu re. ' t.Mlikner ackno,-lecigel thill stih ;n iIlclITelll io...lrrCti .h, il I Nea.r belore the ecnil, lI this case ' \ioreo,er (elcral (ecr (o cl'e argFulCll s 1in ll~ 1p-ll lO tl , .Ire I 1111 as dicuised litrl. that ilarill'. tnilliin in l,,tiIoli l trt \Ilil Scc 2i. I Ithe onltlritcl ;1 prIic'lIed 7 Suttro leslired thi a ectld-,hilt Ie. ardl hi r['t *ni stI h .S11 1iql11, hit. hutil t t i0 nletIC r 1lcill thi s irured Ater the urk 's. ppage il, ed herein. hilt helie trilrnl t" l iarc, Respondent .n te 11iUI .a1 i et It lili' mIlkn. .ln 1ri he Ir l ,", l .ill litel the .ians ih l 'i 12 p . s le 111, luim t}i[i-il It lie ttlitrl - ii-IrCsedi air sslellt . hile thl Itesl I,11 ht'te prilideal the lI Ser Il ILrIeM ' gqLiu'tiI .illtd pr,,ed Ihill Ihe iperihot.l :.tI. 1 I , it i' I I t'e I.ill e ' r -l t111n 01 thi, cI'I I)( I SI()NS ) A I IO()N AII \BOR R I I()NS BOARD) 3. \ entlt of ebritar\ 23, 1977 ()in Februar 23 te daN slift egan a 7 a.in. I here ere four emplo,,ees i the large spra booth. Ronald iL: Iirns. I- orrest Sutltonl. Roll Sil;li. and B3rtlce Blaser. I lils tsti- lied tl;lt tile emphoecs wv lre having to use cess ir prcs- sure iolit 32 p..Li.' as tile! ladl done )on the 2 precedi-ng d ils I he eitllpi,)! cs :erted thit the ena;lllel .las too thick. so the t' Cd sl'IIA\ in ind ca lle d I aulknlr, It is ildis- pi Ite il I It lli sto)ppage shllt do 1 tile e Itire J'dLICtioI line. ;I laris testified that 11is initial re quc I t to aulktc r Ias tilat Il add \ Iater lo tle cans so Ill hat less pressuire ItoSld hetc requilred ftl the spI ra ng opera tion . A\ccordin It tIo I lrlis. I iilllke refused. so Ile f i-r spracl ,, heg an li cussing tile ma;tters a;lllLng thtemsellllves and the concluded: W'c felt that we needed soImethii done. I Ile\ h;adlt been showinli an effiOrt at all as to tring to lc tilhe matter on our previous request to ha e intollllilrmil giIen to us. I hat dai \ le asked fr wat;er in the tlink it trs to eliminale sme of the higher air pressure. \We couldn't et fann ater in the tank so at llhat tine thile sprayrs, orriest Stton.' Ron Small. Bruc Bser and Is selt, Lec ided \ e A would call in tile shitt s;itlet cormmi l it tee. At that time I called the forenlan, Bill aulkner. over and requested that he get the saflet commlittee. liarms testified thait Faulkner did call the shill saletN comiittee, ias required h the contract, hut onl! after 2( ltinles ol ffurther argument. I lihe m;anagement mcnihers o the comniittee that day ; ere Ilaulkner and Bill Reed. the electrical mal;lintenlance suipervisor. I lion collllittee 1nielm- hers were Sutton and (ene \Mitchier another hrgainilli unit empl ee. Whetn asked h enera (inr (oiusel what hle tol the shift satfetl commlittec. I laris t esified: I epressed to thenl i concern oer thie fact that I fel I had too much air pressure in m tank. that I requested that something he done about the enamel itself so I could reduce the pr esure. I told theml at th at tinie that we had alh-eady a month earlier asked them it theN couldn't possibl colie up with sormething. some- thing that "would give us grounds to know whether we were \working in a safte area or not. anid we had nieser heard an! thing on it and the` weren't attemptinig to eet us an thing oil it then. I he! just said to go hack to \\ ork and the wn uld itrs tI ) get hold of tile Inlali raC- As s-si h te wssw'',i: .tIe s-oI 's ,ihose ptress.re ihose 10 ps I L cu1)Ild tl IC .ltllrlc il }li, t] u s sL e irc iunlse-lilg erreltl, iarillms Cian could be oerale.i iil d]ls lit 32 1 nI heclAusc ihe ,l, e ,a a* cloggetd ith c'ilarliel I11l lSt.sl' kil,,tl llt i s nlsii lr during ihe sork stppI'ge bthilt \.ai Iaplrelrtis illilllCdis i ls \k 11a, lil ln uncoltimimoln eceli In .is t herle .ias somire estilil.is 1l.i cilIp\Ices ilid ccisslna]/lis icid sl iks i) jilibh le h ci \ ess tlh~it higher piCl- ir' c iuld be llallrcd A as ilte. JIilll1s i1[ no tinie diilled Ilsl the c lgged , c ';ils a prl Pi I lie reson ir Ills rldit " I he higher lhc speciti gra Ii1 ol t ilhe ulcr hiase enaniel. he giLier the , r preSslireN thilich *is rcsiirvil to spraJ, (t co1urse, .icd illOu ioi 1 .Lter a ould redlluice e specifii gl;iiN Siilln, chiel uin si SI l1C\ l nId ;I'lld IllClllhCI l ihc sthiii sitei C il'lititC. illflllcd Ihe pi XCTrs il,11 ilhic lidi 41 (t Ir;ITI.il ri eghl Il Cs.lmiiLIe thir slk sippilagtc hIUllr. thes \\ould t to ind Out halt tile IlltlX11ili11l air 1pressuiC ssas oin tile tlnks, a nmd tiler \,ould get hack At thiis point l;allls acknoi ledges that tile shlft saliel colllllllitee eitillbhers called t the sceie Illsttricted te em- ploees to return to w*ork A\ discussed in/tl. tllis Conlsti- tutedl ; "dclisioln" fl' the shitft satet\ commiltlttee. as contell- Iplated h thle coniarct. and it is the polit he\!ond which the waork stoppage ,;as Uinprotected. \\lheni asked .Ilit the othlier spra!res told tile shift saltet Ctoillll ittee, I;Iartnls testified: A\ one tithe the lour t ls ere all in a group. Tihe oliher spra! ers were expressig1 similar eelings as mine. .just s t.a r s the pressure goes, and we would like to see somilething in writing telling us this is a maximul, this is a sate level. Anti thlen each of' the spras ers were also talked \*itl. pulled aside and talked ith on an occasion or 1two, just like I as. Not satisfied ilith te response of the shift satets colrlinit- [ee. ilte spra ers decided along tlesel Ces to call the planit satel 5 conilnittee to prsue their objectiec. Iul-ther as de- SCrihed I s: A. I lie spiaers, I orrest Slloln. Roll Sal. Bruce Blaser anid mlsseit', e the n talked it over. We saw Ilere as no efHirt whatsoever h the slit't satet corn- nmittee to correct the prohlem or ti justit the fact that we Iha\eC got to tanld there anld use this high air pres- sure. So we had the right to all ill the plant satety committee t) trr to get a ruling front them. We figured oka.. niL\ he the: woultJ have someone else that knew solniethiiig mlore. So at th:lt limle we agreed to call in the plniil satetl conlinllitee. nd I asked the iremnan 1i diO SO. (). (Br (eneral (oTnlsel) You ;Isked A. Bill aulknler, the foremlan. to do so. As discussed i0r/i. arils at this lorit acknowledges that he. not te shift sat'elt cliommittee. caused the plant satets cominttee to he called. and inftOrmaltion was his ob- jectie. Also. sshen Sutton was asked what the plant safet comlmittees wfere told b him and the other sprayers. he related onl the request for an answer to "Ron's question." Sutton urther acknowledged filing grievances which stated that the onl\ reason lfor calling the conmmittee "was to find out whetler or not (it) was safe or not." Lpon tHarm's request. Faulkner called the plant safety conlmlittee. the mlanagelenl mIleller-s oi' hich ere Mi- chael Baker. plant satet, director, and M\arion Hubbard. fuirklit't super\isor. Ihe union meihers of the plant satety commlittee ;sere Herbert Smith. unionl presicdent, and Bron (Cook. then union ice president. According to Harnls. the Itllowig occurred hen the phalit satet comnlllittee ar- ri ed: A. I lhe plant saete cilommittee calte iup into thle hoolth. l'her looked at all tiour o the regulators. all tour of tilhe tanks. Tilhe asked all of is what was going oIn. \e stoodc there ini a grioup. tach of the sprarers gi'e their opinhion as to wihat Aas goin o. tleir con- cern oi``er the fact tlail we \ere usilng highl air pressure. ha;d i een lor a couple of d;ls anid nohod\ seemled to x28 A( l' I PRO()Dt ('IS (ORP()RAIION want to tdo an thing ahbout it aind e x oul I like to see something in writing telling us that thil is sate. whether it , 'as ten. twenty. thirty pounds. *x hat it x as. sal lil this is the safe air pressure so tllat it anlthing hap- pened at least x e knex ift xxe were oer the satre limt then it would haxe been our tiault it' xte got some t Ip' of damage. Q. (Bx General ('ollnsel) Did x!ou hax.e in! coner- sation during that time ,khen the plant safet commit- tee v as there did Sou hatve an\! conxersation ',ilt Mr. C'ook? A. Yes. I .xas pulled aside irst-otl' b Mr. Herh Smith who pulled me to the side and asked me h;lal was going on. And so I told him x what x.ias going on. And he said w*ell. lie didn't know vkhat the pressure was supposed to be on the tanks. that a1ll he could do was tr' and check on it. So he %, alked bhck oer to the group. And Mr. Cook, the he pulled me aside and told ulle about the same thing. that they didn't really knox*. what it was supposed to he but that productioln xxas stopped and x;e had to get going and they x\ould ust have to check on it. And they talked to e\ er! one of the other sprax er in the same respect. By this testimons Harms acknowledges ain that the sprayers' objective was securing inthrmation and that ('ook and the plant committee instructed them to "get along."' \ Sutton grievance over the matter acknoxxledges "a deci- sion" was reached b the plant saflety committee but argues that the sprayers complied immediately therexitlh. Union Plant Safety (ommitteeman Bron (Butch) Cook x as called b General Counsel and testitied uLiequiixocalIl that the plant satety committee had asked the emplo.eecs to return to work. When asked bh General Counsel to state the Union's position in handling griexances ftiled on larms' behalf. Cook testified: We felt that in ansx ering some of the (ompan's questions in there to, ard the grievances that lMr. Harms was holding the line up and that there should have been some kind of penalt) in the griexance. At the Fourth Step Level when Mr. Das wxas there we made the decision he did deserxe some kind o penalt because he au/' ' li (otnulllteie dlid tll A, It 01/1/Q(% lso tr) o back to orlA. * * t * * Like I said, it's been a long time. But we said ii the! would bring him back at--I don't know if' it as the correct days that he said here. thirt-- fifteen. thirt. seventy-two and seenty five or not. hut e did sai bring him back at certain dates because this \xould be a penalty towards him tfor not going back to Nork w hen Ice did a. him to go h cXA to worA. I 1.mphasis supplied.] Although again requested to return to , ork. the sprut ers. led by Harms, continued to engage in their xxork stoppage. The plant safety committee ent to the office area to con- sult and to search releiant tiles kFr the information. While the plant satets coimmittee x as in the otlice airea. t c\- plained the itulltion to Plant Malnager [)Don Bedfrd. spe- citicall th It Iirils x.*:as dlemianding documntl I lion ift tihe mailxinlUil sale operating pressure. lndl that such docunelln- tation could not he fiOund. Bedtord asked the plant salt! committee it' he could intercede and attenlpt to reason ith Hliarms. They consented, although section 21 o' the contract does notI proxiide ftr prticipation of' the plant manager. Acconlp"lied hb ' Cook ' anllzd Faulkner. BedfxOrd ap- proached the sprat ers. iharms testities thlt Bedlird asked thIlilt tlhe retUl to xxlrk because production x as solt dox l ind that other\\ ise he x\xould hae to send ill emploees home itil loss oft pa;. \bout tile sailme time Sutton in- tirmed lirms th;i lie had called the nion office aind had been told h e the representa;tie there thlat the sprasers should return tIo ork. I arms testitied that hecause o1' tile request ot' Bedlord and the instruction of' the L'nion. the spra!ers decilded to return to ork and did so. W\hen led b, General C(ousel. tarmls testified that i'aulkner added x.ater to the canls but unequix1ocallx states that it *xxas l/otT the emploees had returned to lrk. 'Faulkner denied that he added x.ater to the enamel. and no110 other eployee testified that he did. I credit I ulkner's denial ion this point: hoxxNexer. exen according to Harlms. the elllyoees ltIrnled t work xxithot \ ans chanLge ill t conl- dillons x:hich gaxe rise to the sprasers' nxocation o the conltract to cease ork. Ihe sprayers' wxork stoppage continued about I hour a- ter the decision ot' the shitt sate atet committee. Idling some 4 production emplo!es. .\ccording to Faulkner. the produc- tion tinishled during the remainder of the da! .ias sloxxer and the enameling was of interior qualit,. le credited this to the o'ork toppage. Shortl atter thile production line uas started again. Htlarms Sasked Farullkner to et him a Li nn stexard. lie told Faulkner that le xanted the steoArad becausef he tel that lihe had been halassed \hen lie had earlier asked tr the hift sualt! conllnllttee. I'aulkner imnediatel., got Lnion Ste\- ard Jim l.i\esa!. ,indl the three men ent to .in unoccupied office to discuss the matter. Harmls told lixesa\ that he wanlited iit tile a griex\ance oxer the "treatnlent" he receixed from FaulkIner , hen he requested the shit't satletx corni;l- tee. According to liarms: \r. Faulkner then told me. "Well. Mlr. Harms. Ron. I am sorr x . I xas under a lot oft' pressure this morning. We had a lot of' things to get out and nothing seemed to he going right. I lost my cool. I just didn't keep nr head together. I am sorry about it. We should go ut and go to kork." ie said. "When xe go out. ou aIdl me in the other emplotees ees. I xx.nt the employ'ees to see there is a good Compan) and employee relation- ship here. that there is no hard eelings x\\hatsoexer here about xx hat has happened ith the safet\ comllt- tee. I have no grudges held .ugainst ou. Exerythin is . \crding I. Ihe unrehulted tea, tin sn\ it Bdtlri. and ernn D)lire - Ior Rh clen. Smith retiwed It, return the .area t.ing that tlar.rns .a .1 "raling manil .ind thai he ;la, .lrlraid that hc .alrd I.lritls U1l.lril t 1eI In ) hlo, Snmith za n ciled O IIsII' (ok ii alled in rehutlal h (n- er ( lnel. hLl he , s .sked n, qeCs ins .ahil Ihe irgrrnerIt1 lld i he repirl therert t1 Rhoten .wd Bedlord. ' SMil. icll ed is nerl ( il il redlt, th rdidl.n .,Lr re-s .rc a.tler l tc . rk trpp.ge t . nIlng h.r t t Ihe p lli ot3l [l, ltr t tto Ittt t'*,ocTil- g thc Ce lam c h I aulkner ai, .itinelld h\ iarli 329 I)(('ISIONS O() NA I IONAI IABOR RATIFONS BOARI) fine. Let's go out of the office smiling and let's go back to work." Upon this one remark. and the Lact that Harms was allowed to complete the shift, General Counsel propounds his entire theor? of condonation. Faulkner admitted he told Illarms that he had no hard feelings toward him personally, but denies stating that he had lost his head (or "cool'') and denies suggesting that theN leave the office pretending that nothing was wrong. ivesay, the one witness who could have substantiated Hlarms' version. was not called. and no reason fr not doing so was advanced. As noted above. Harms' own testimony concedes that both the shift and plant safetr committees had sided with Faulkner and re- quested the employees to go back to work, and there is abundant other testimonx to that fact in the record. In such a circumstance it is impossible to believe that Faulkner so abjectly apologized to liarms or asked him to feign false accord. For this reason, and upon my obsersation of' the witnesses, I credit Faulkner's denial of alny statement he- yond a perfuinctory "no hard feelings" comment and an urging that the? simply return to their respective jobs. At 3:20 p.m.. 10 minutes before the end of the shift. Faulkner discharged lHarms hb personnel memo stating: Discharged For instigating a disturhance and sabo- tage of production process, disrupting the work frce. and not abiding by decision of Plant Safet' (Committee on a Safety issue. Small and Blaser were given written warnings for essen- tially the same stated reason, hut these were latter reduced to verbal warning. Sutton was given no discipline hecause Faulkner was, correctly, under the impression that he had acted only as a; L niol coll1itteenlan and Wals actually in- strumental in securing a cessation of' the work stoppage. General Counsel's witness Blaser was a particularl guileless witness who impressed me hy refusing to he led bh either side into stating one whit more than what he per- ceived to be the precise truth. His testimonN warrants quot- ing at length because he gave a simplistic. but coomprehen- sive account of the primar tfactual issues in this case Harms' actions and objectives, and the response of' the plant safet commlittee: Q. (By General ('ounsel) When the plantl stafet committee arrived on the scene what happened at that time'? A. Well, then there was a big crowd there and. you know, I didn't they was all arguing and eversthing. I really didn't care to have anything to do with the battle that was going on. you know. Everyhod seemed to he doing all right without my help so I ust more or less. you know, just set back. Q. I understand that, hut Io ou recall VWhat do you recall the plant safety committee membhers sasing at that time? What do you recall NMr. hlarmls saixig? A. They said just about the same thing th;at the shift safety committee was saying, that they would check on it because thev didn't know what. you know, the pres- sure was, yon know, what the cani would hold. Q. id any member of the plant safety committee tell ou or any of the other sprayers Now this is to the best of Nour recollection, that ou heard A. Yes. Q. I)id an: menmber of' the plant safety committee tell vou of any of' the other spraN ers that the tanks were safe'? A. No. Q. )id any member of the plant safetN committee tell Nou or any of the other sprayers to go hack to work? A. I believe I heard it a couple of times pretty loud. Q. Who Nwas saying it' A. Butch ('ook and iMr. liarils. le Wias satying it to Mr. larls. Q. Butch (ook was? A. Yes. lie as asking him whN he wouldn't go hack to work and he sid. ou know, that he didn't see any problems why ve shouldn't go hback to work. Q. Ihat was Mr. (ook? A. Yes. Q. o ,ou recall hearing any that statement or an' statement like that made hby anx other members of the plant safietN comnittee? A. No. r. liarms and (ook were really getting. oU kno,, prettN heav. Q. What do ou nmean pretts he;l\''? A. \VWell the was abhout to knock one another down. Q. Ihev were. Ihe w` ere arguing? A. l Ih-huh. Q. Was Mlr. Iarlms arguing with anhbodx else on the plant salfctx collmmlttee? A. Well, I think he didl with lerb Smith little hit. .Oi knot. hut it ,asin't as bad as ('ook. Q. (BN Rspondent) Now ol sa ('Cook was having an argulllellt with lIarms. is that correct' A. Yes. Q. And our ilierprettion of' that disagreement was that ('ook felt the cans were salfe and l iarms did not think tliex uere. is that correct? A. I hbelie\e so. Q. *And also that Smith had an argument that ou saN as less olatile, less anr ? A. Yes. Q. Smith also was haing an arguenlt with Ilarms is that correct'? A. Yes. Q. And our judgmenelt of' that argument at the time WIas that Sitlh ere [sic sting the tanks were sale and lilarls usas sa;ling that they ueren't. is that cor- recl A. I couldn't reillx sa because I couldn't hear. I knex thllt they were arguing because I sass fingers and nIlotiOllS. Q. With respect to NMr. Baker. the safet director A. Yes. Q. le u;as also trxig to get the line hack in opera- tion. \lS hie not? \. Yes. lie W\as. 330 A('IVi PRODI (IS ('ORP()R\IIAON Q. And Mr. Hlubhard. the ()ther ('o)mllpan! Illmemlbe of the saft'el coiimmittee, w\\s tr ing to get the line back in operation'? lie was there. %was he notl? A I don't remember his name. Q. What I amil getting at is ,ou sax Sou w ere sittine hack and not participating in the hassle. Ihat's vhat I gel the image of our role in this thing. is that cor- rect'? A. I hat's correct. Q. Reminding ou that ou are under oath alld a conscientious person. ou knew, did (iu not. that the members of' the plant salet! committee thought this line should he operating and that there wasn't an l\ dan- ger? Isn't that what so u knew at the ime. truth to tell'? A. WeCll. I'.d ss so. * * * * * Q. (By (General Counsel) You stlted that \ou kne the plant safety committee telt that there as no daln- ger vith the tanks. Is that Shat \ou said o n cross- exalliltion? A. Yes I helieve so. Q. Fov did ol know thatilt'' Wlat ilakes oiu sa that' A. Well. I liuered ithe\ re all argtili, about the same thing. Q. I)id an\ memher oft' the plalnt safei committee Did oiu hear an) membher of the planit salet! comllit- tee sa\ that the tanks were safe? A. I nexer dli hear anl hod on the plant or the shil't committee s;tx tilh tanks were sal.e Ilt lust siid to go back to x ork. sMR. R()it S: No further qiuestiolns. Jit I)(, i\ x\ss: Mlr. Blaser, did Mr. Hlarms or a o' the spra\ palinters sa, the\ \ouldn't go back to \lork until the\ got somlcthing in rlting'? tit x\11N itSs: Yes. sir. It I)(l I:\ANS: Was that \lr. arms that r. s that aid that' 11tl \uItI-ss: I doll't remember if it' t as ust him alone or not. J[ [)(i- \ \s: But hie \;ias one of te persons \w hIto said that') [illt \ iss: Y'es. he \x s. Jl l)(il I:\A S: And w hat did lie dlemand to ha\e in writing befOre he went hack to oilk Iit \\1IxI:ss: W'hat \as the maxinuni tuir pressure those tanks would hold hefore hlo, ing. tI)(;l I\ AS: Did he sa from hon lie antcd this \\ ritten documenit? Iil. l\ Istss: lie wanted it rom the ('oripan. I credit Blaser completelr on these points anid indt that all members of the plant safett comnllittee instructled Harms and the other spraers to retlurn to .ork hbut thce three employees refused demanding xritten specification of the maximum safe operation pressure of' the milk c;is. I further find that arms engaged in argunlnts ljust short oft' violence ith the plant saletv committee. B. Il I]tltrl , ll of Jf I r' ,f S'litolln ( ener;l (ouisel Coliltends that StttoI a, unlaWTfulll inl- cirrogated hr\ Responldent's attoirne ('Charles lterrimlln. Since lerrinlan did not telstil'. the il;,loing statlement of lCtS is Sulltt)lltI's unllelnied cCOtII: ()n August 28. 1978. 2 da\s prior to the opening ol the trial. Plant Manllger [)on Bedford asked Suttin it' he xoNuld mind talking to a clpall attorne. Although Bedford did nlot state the hasis of the request. Sutton "had an Idea"'' it w\as ahtlut Ilarlls' caIse. Stton agreed to talk to the attor- ne. ad tile twi.t xent to the plant conference room. In the past. this riotol had been used for union-managemelit meet- ings and meetings held h the :nion at which no mainage- lienl official s were present. Whe Il the t o lle xee ailele ill the conlerencite rotll. the Ittrl'Ic inrodtl uced l Itself h n WIlle. StittOll tesltiied that "tle Nanted to know i I ,ould talk to him . . . on the mtailer of Ron larms."'' Stton agrtred to d so. )urinr the conslervation lterrinian told Sutton sexeral tlies that he as just tIring It tind out the truth. Ilerrillnn took notes. buit Sti lllon did l(t see them. At olle point it hlis tstiilo1ll\ Sutton stated that erritian asked "it in i\ opinion Btill aulkner haid e\xer harilled Ron l lariis."'' I erlillll did 1101, l t l Itl M' , 'l.aN t\iat S I tton's n [ tlrll i- pa;ltioin i xA. oluntlar\ ol Illl, le had a ight not to parictl- pae ill tle lesllollln . Nlll did Iil rriltllill sIl-re Sttlllll tIlh 1o leplrisals would te taletaken agailnst him it' he retused to na it ci pl te. A'\. /l I)lst hlhlt *,, Ronld ). 1tlr' 1Ih. h 1Cprotectcled demI l ld for 'Shilt sale C1111 1111eellan Respollndelt co tllieids t;at lruls. as spokesmall tfor tle sprasers. didtot nol rciL e atn tilsule condition '' aild there- to0l' hisl enlltire course 1 coldlluct ill tle w ork stoppag;e \Ras uptiotectid. Resplondlent t iacknoleges thait tllIrms did 1111i- tiall make claimns oft unstc il orkinc conditions hut con- tenCds thiIs \\;s lmere lip ser\ ic''" Ii a ruse t iokCe ihe salte prosislons of the contralct f'or tile ohijecti\e secur- Ing a \r -lttelln stltllltent oIf maxiimull sale operatin pressure ofl the milk anslls. I conclude. upon the aho\e. thait the spra ers;!c in calling lor the shift alet contlilttec. had all objectixe ot seciCriite a slatetlletit of te 11i;lalmuMl s air pressure. lo\\ er. I lind that the emploees w;anted this statement hecause thes elt at'cted hb \h;lat thec percei\ed to he an actual iir p- tential unsllltt'e \orktIig conditionll. here is no other reas on Rr thle nquir\. regardless of hether or o \holi it x\as alldJle tlhe precedin l 1g JanulaFr. Respolldent does not colttled that lrills' ailtil\ Ili alld dellallnds were n llattellllpt to Ia- Iug er or tlhl his iqnlal\ l s IIllcI-C\ ;c didetll. 1 or Its Il)caltioll, sectlttlO '2 ot' the contract reqluires c olI tt an ctlplocc "feels" fecteld b all utnsa;e contidi- tionI. Ilis is a ers low s tadard. It is far less than the requiremnentt ot ljectixe cldence oft' Section 51)2 of the 331 I)E( ISIO)NS ()1 NIIONAL I.ABOR RELAT.,IONS BOARD) Act. It is even less than that in the contract hetlre the Board in Rdlia Exprces wherein the contract specilied that the refusals to operate equipment could not be "ull jUs- tified." The contract herein plainl contemplates a ihjc - livc test for its initial invocation b an emploee: there is no other explanation tor the word "teels." I find that the eniploees did eel afItected hb what thec perceived to he an actual or potential uns;le working coll- dition and conclude that their calling or consultation with the shift saf'et committee, and their refusal to work until that committee reached a decision, s discussed iliu. \,as protected. lHowever. there is no evidence that Hlarms was. in whole or in part. discharged (a;lnd Blaser and Small warned he- cause it' their conduct which proceeded the making of' a decision hb the shift safetN committee. 2. The shift safelt committee's decision and -larnis' unprotected conduct therealfter In his brief' (General Counsel argues thil neither satet,, committee could have reached a "decision" ias contel- plated hb the contract hecause the parties tllo,ed contlrac- tual procedures which are available onls where decisions have not been reached. tle further argTies that the pla;it safety committee's testing the equipmenl after the terminla- tion of the work stoppage indicates thIatl no decision could have been reached. General Counsel ;Irgues that h ca!ling the plant, as well as shift. sa;fet colmmllittee when delanlded h Ilarnis, Re- spondent implicitl\ acknowledged thalt 1 no decisiin" had heen reached, anid. therefore. Respondell ackIlno ledgeid that Ia;irnis w,;is enia;led in a continued co(ulse of protected activit. 'lhe ohious answer to this contelltion is that Re- spondent \vas attempting to mollitf\ larms and get produc- tion started iilin ,hen i called for tile plint sat'te Coll- mlittee. It ciannot logicallk operite to anll eiiplocr's detriment when it responds ill a 'shion prescribed h tile contracl when .in emploee makes a clainm o rght under the contract. It is true that the contract does nl11 pros ide fr c;alling for the plant safet committee upon demand of the individual employee(s), as is the ca;se reglarding the shift safet) colnmittee. owever. General ('ounsel's contentioin in this regard would require strict constirIuctlion , the con- tract which would have operated to the uiljustifiihle detri- melt of' Respondent in this particulllr instelalCC ild would oper;late to the detriment of emiplo eces il uture sa let cases. GenLeral ('ounscl coliteldl s thilt siice the shift sIIct\ Tolil- mittee conducted ai test of the equipmenit to (etelrmine he maximum safte operating pressure. it could not hale deter- mined that the operation was sfte. Lack oft' speciic infornia- tion had caused one shutdown: Respoldelnt was not re- quired to risk another. Moreover. the test \Las condtcted several hours ater the employees had returned to work. Necessarils. tile plant safti committee had decided thllal it 14 sec ( t v (% ( I ed 3,1me ,{rtrcr ,,1 4,lcr,, a ct 414 t S 368 1974) Morever. there is sufficienl iohjecise c'idenr. 1 Tlppl[rl the emplo ccs' teelings ahboul the allel the oIperatol ll) Iof the mlilk ClmIs hcn Ihe shill saltelt coimmittee 4as called. While it is Ilndsputed thalt Ihe ,pra.cr, had ioperated pres,,11l111 at pressures iT.i and in c es,, I. 32 p i I, also undisputed th:at glskels had hn offT illk lns during the Ioperatilon VWhile . hlo nIT, gaskel is nt. Ao iselfl. perileous. i i, Cerrtan i ll ohj lse es idence TT physical onditions hich ale actuaIll. r potentl.il. prillus · as safe tor t he emploIees to continue working, and the test wvats elI 5 to confirm tIlil conclusion. inallK. conduct- ing tests to ascertain specific safet\ limits, like adherence to a clnltracl should not operate to the detriment of' an em- pltler ill circuitlstances such as these. There ere decisions within contemplation of the con- Iratcl hb\ oth lmi tllitees. hat decision was that the e- pl0ieCe should return to work. Implicit in such a decision as it;1 further decision that it was stfe to do so.' (ienerall C(ounsel does not dispute that the committees requested lI.arllus and the other sprasers to return to work. and the Iboxe-quoted testimon 5 of lHarms Blaser. and ('ook remoses ain\ doubt. (In addition to the testimon\ di- rectl iIl the point. it should he noted that it was Harms. nolt the shift' sift'et comllmittee, who called for the plant sat! committee. Inqutestioinabl?. had there heen disagree- inenil anoilig the shift sa;let! commllittee memhbers. including SuttIl. the'., not larmis would ha,,e called ftr the plant safJe\! cllllllltet Ias pro,ided h the contract. Also. it should lie noted that no one called or the plant engineer. a Holsitil e idicatioil that there was no disagreement alllOlle intcinibers of tile plaint salet\ collmmittee.) I ile decision \Ras not a "a ll,, er" to thile factual question raised b IlMs. (elera;l ('oIunsel .ould seemiingl\ equate Ihc t\o te s tmso brineg iall o'f [liarles' conduct, subsequent to hise call for cnsultation \it the shit't safetl committee. \\slll tl lie protection l t he COIIract. Ianld. therefore. the \ct tilder li o r(lo/t i L /,rc( \s hich holds that a work stop- pilge is nlOt iendiered unprotected hb ai nol-strike lause if the emplll\ee is seekinig to enforce contractual rieglt. I he coltracl \ hicll pro, idedC the slspr ers' righl to cease '.o rk ;i d seek cnisuiltation also limited those rights to cases in ws ilitilo dlcisionl is reachLedC ;i/olr oInditions foinll to he Ulls.l' ille cOlrOieted. I' I lie contract does not prosvide eniil\ ccs \ iti lih ight tI, c l thile plant sat'e cmmittee i te'. Tlie issalistied \llh the decisill o' the shift satet\ colllii1ittc. ()1 1i lic ctIllrair\. ii slcciticall\ states that "tilc det'cisils ol te shit sa;tl.l cilinlittee re to he obeced hb tile espectis\ e lltt slperr\islln inid eplo\ees. As x\cll aii lcdineg hlie \ork stoppalge or a; period of time he. ond that priotected h the cintract. arllls and the other spra\'ers :ltll i all chjectI lot colitelllplated b the cotliitc. A\tTel ihe decision oit tlt shift saf.el cllnliittee. I ri1n, tisoldliitioned ectlinlil If I le spra.lers tlplil receipt o' writtcn specCificalion of( the tlniluiX.11I pressuire the n11ilk ' \ I .lrliTr I 0111tl IflI1g le hic lrill/ (iCllral ( l illl SCJ Citli lt'si tiillilN, Ire lIs Aliltc',, (111LlUdilig Blasecr. cculLr el? h! ed I slg qlICitln1'. h1111L IrIlth¢e C11 1 IIIIeilil tn 1 11 I OllI tl llld i, S ;I groullp. prOnlll cTII ed the oper.ltilo ,1i ' Kfe irirns. (i1 rols-cearnlnalll acLTIkOl lcIleed tila the pnl ,i eCU toTlilllllic e did i. .111 111 i) i prelrl; l ,atida.,il i acknoleu dges Ihal SmiTh aInd ('Iook ltJ hill Ihe clns ere sle Illlrl, :Iternpled I repul.hilte he Hid- %it. hut cIould aIl aII1cc 1ll) rt.lllnal e\plTlllll tor Ihle ildrnlasTll in his a:tida- I1 L p.l he alutLhritl oT 41te1 J 811! 11dW ( . 1I . 236 NRB 242 (19781. tilld hit Smith and (lCook epresl\ old lrmis thal the peratln a.1s 'lle I ilrllher re l n II1 IT cl T llTnI } I e 1 taul ll rid IAcr. uhih I find credihbe. litll d the Jlil II\ 1 l e l rIIIT CC 1d11 11 he spr.lers I .htl i .1 I1 IL.l. s;lJe I ileUrnl o uiork I Ts olTItrlrituT.ll Ilti.llO1 hs ilot heen presenlt. r ll dTiisseCd 1iTit;iIl saldi! \C.Ised palls'lep l L oinlsdered h I he Ba d RllillI 1dl-l.l:11l. isllh is rlIed upon h (Gerell (U1l1: B A P' iItr \/1'.11. I/m . 23.1 NIRB 653 19771: aId /o h il. . ( 1,.1y,m. 212 NI RB 2 I 1 9 7 7 (f Collurse. I[ t .is Hnot cil l i The cl."ses C'ld hN (}cieril ('ot[lltlIl ulrhlh ill- .11e llo ((rll.illll prollliTlT rerITnrg o.Lrk sIllpp.gll', II c;le leii] hLtild Ile li ik ' cTpp.ell s ,I rc IproteiCted h Sec 50)2 e(i ile \Ct 332 A(lI V PR()O) ('IS ('CORPORA I IO()N cans outld susltain. lie did not condition the return of i the strikers upon reduced air pressure bh, v atering the enaimel or changing the equipment. either of which could h;ae been done. T'he contractual safet provisions are not procedlures of emplosee self-help in securing inforlmation. Harms had no right to demand such intformation, in riting or otherw'ise. by the device of the work stoppage. Accordingly. I find that Harm's conduct after the consul- tation with. and decision b. the shift safet\ committtee Awas not an attempt to entorce the contractual satet provisions by securing relief' froin conditions he telt to he linsalte. It was an attempt to secure specification oft' the point at w hich the conditions would become unsafe. This was not an at- tempt to enforce a contract, as was the case in Rl rditin \prcs. vsu/Ura; it was an attempt to expand rights under it. That Harms initiated and led a continuation of' the strike for a substantial' period of time beyond the reaching of decisions by the committees is not disputed. Nor is the fact that he did so for the sole objective of securing informlation, in writing. I further find that he did so in a bellicose niai- ner. That the sprayers' conduct directl caused a diminution of quality during the remainder of the shift is not readil\ susceptible to proof:. Howeber. I find that Faulknier. in good faith, believed that it had. I find and conclude that it vssas for these reasons, as stated on his discharge notice. that Harms was discharged. and not tir an' reason proscribed by the Act. 3. No condonation of Harm's unprotected actisities bh Respondent General Counsel argues that even if anx part of Harms' activities were unprotected. Respondent condoned the mis- conduct by Faulkner's statements to Harms in the meeting with Livesa and Respondent's allowing Harilms to work until the end of the shift. In so doing. General Counsel cites Super l 'Ill Venia, .4 Division !? Super I 'lu Store. Inc.. 228 NLRB 1254 (1977). and the Second Circuit decision upon which the Board case relies. Confictionaty & Tobacco Driv- ers and Warehousemens LUnion. Local 805. IBTC,1tf1A v. N.L.R.B.. 312 F.2d 108 11963). Super Val was a case in which an employer extended a deadline f'or returning from an uprotected strike and informed the emplo.ee involved that he had, in fact, saved his job by returning to the plant by the extended deadline. Cot!lectionart Tohaclco Driicr , etc., involved a negotitated settlement which was reaffirmed in open court b the employer. Thus, both cases relied upon by General Counsel are factually distinguishable. As stated above. I have found that Faulkner said nothing more than that he had no hard feelings personallN toward '1 Harms conceded that "arguments" illh the commlitees exceeded an hour. I I credit the testimon o Respondent's witnesses Bedford and Faulkner that Harms elled at and cursed members o.f he plant saietl committee Harms testified that he beliesed Ihat during "the argument" (or "the hattle" as Blaser called II). (Ck would hase punched hinm in he nise had it not been for the presence of -itnesses. Sulltn conceded that he confronlation was angr! and loud. As noted ahose. Smith reported ii Bedford hat larms was a "raving maniac." Finalls. I find. as described h Faulkner. hat Ilarris, physically hlocked maintenance emploiee Hender,on in h a.ttempt to change the pop-off alse during the confrontation Ilarirms ad that the should return to work. Ilowexer. as- suline the truth of' Harms' account of' an abject apolog\ illrd alppelal for a pretense 1of faltse haillOnt . cvell coupled with the ftact that Harms was allowed to olr-k the remain- der of the da\. this is not a case of condoliation. I (Chesl f Is 1) ii sIot , tiro t trods (' o ,il)npat 25 N I .R B 388 (1974). the Board. Member Fanning dissenting on this spe- cific point. tfound that such a conciliator' statement even coupled with a failure immediatelx to discharge the em- ploees. did not cotlstitute condonaltiol. In that case, the emploxer alloued emplosees to return f'roll all unprotected walkout and work for fiutll da w hile it completed an in- vestigation to ascertai thle "ringleaders" ot tile unprotected strike. he Board reasoned (215 NRB at 388 389): It aouldl hi;\se placed atin undue ;id unnecessar\ eco- notlc hburdenIC upon both Respondent altid the emiplol- ees ihe wished to return to work to ha\ c delaNed the reopeniig tof the plant until completion of Respon- dent's in\ estitatiol. I'hts is not a case in which the employees left a plant and then ere allowed to return to work: lHarms was simply allowed to continue his shift. Therefore. this was much less ot' an iact of contCOlilita than was the case in Chesti Fods. Moreoelr, as in (lcsit Foods. Faulkner used much of the elapsed time for consultation with Rhoten and Bedford. W hile about 2 hours elapsed between the time the final decision was reached and the discharge. Respondent was under nt dut to implement the termination as soon as the decision \as made. b Harms had clearlb demonstrated his ahilit\ to shut down the entire enameling operation. Re- splondent as not required to risk the "undue and unneces- sar econoImic hurden" of a second uork stoppage that da\ b> a secoid nmidshitt confrontation with alirms.'" here- f'ore. I find that Faulkner's dela, in presenting the dismissal notice was not unreasonable, and his waiting until the end of the shif't as not an act of condonation of Harms' mis- conduct. Since Faulknier did not condone. hb either work or deed. the unprotected actisit 5 for which Harms was discharged. I conclude that Respondent did not violate the Act b the discharge of Ronald [). liarms. B. Cotlclltcsin Rgarding tile Ilnterrogaltion o'Sulton Cieneral Counsel would have the Board read literally. and require it per se application of: J,,,ohnniev . Polultr (,o. atln/ John i i.slop P.IIl (Co., Succ(LessoI. 146 NI.RB 770 (1964). to find Herrimnan's interrogation of Sutton unlawftul and order Respondent to cease and desist from such con- duct. Ihis I am unwilling to do in the absence of' express au- ', As sell .ts there being no logical reason for reqturing mmediate d- charge im the circunstances of this case. art 21) of he colltectie-bargaining agreemenl prosides. in rele.nt part: Ans discipilnar penalt issued through a iarning slip reprimand. dis- charge lip. etc. II required. nius he issued uthin the recpient's lex scheduled eilhl ISi orking hours liter the ilatlloln i knos n 2 A reqluirenlent ot precupilOUs action could ell hae resltel Ill undue -e.inonilc hurdett to enplis\ecs Small alld l.laser. thes .also cold h.lxe heen (lur.tLll i lischrarge riather than. simpls w arned It .i hlstN deci.on had heen reqired 333 DECISIONS OF NATIONAL L.ABOR RELATIONS BOARD thority. I stated on the record that I did not believe that Johnnie's Poulthr required a per se application, and General Counsel cites no cases in his brief to the contrary. Johnnies Poultry and the cases which follow it do not involve isolated2' interrogations of union officers, 22 in a place away from the locus of managerial authority, in an atomsphere free of other unfair labor practices, in a context of a long-established and viable collective-bargaining rela- tionship-each of which factor is present in this case. More- over, Bedford's asking Sutton if he would "mind" talking to the company lawyer implied a right to refuse, as did Herri- man's asking Sutton if he would talk to him about Ron Harms. While no express assurance against reprisals was given Sutton, his prodigious" grievance-filing activity, as well as his history of holding union offices demonstrate that. in this case, none was necessary. The question regarding Sutton's opinion of alleged ha- rassment does not establish a coercive character of the in- terrogation. Alleged harassment of Harms by Faulkner was the stated reason for the grievance meeting of Harms, Faulkner, and Livesay. As noted above, General Counsel's condonation theory rests principally upon this meeting. Therefore, the subject of the inquiry was directly related to an issue in the case. Relating the wording of Herriman's question on this point was difficult for Sutton. While it is true that he first testified that Herriman asked for opinion, he immediately modified his testimony. The entire context of this testimony is as follows: Q. (By General Counsel) Did he at that point begin to ask you questions about the case? A. Yes, sir. Q. What did he ask you? A. He asked me if Bill Faulkner-if in my opinion Bill Faulkner had ever harrassed (sic) Ron Harms. He asked me quite a few things but I couldn't remember per se. MR. NOLAND: I can't hear your answer. JUDGE EVANS: Louder please. 21 General Counsel proffered no evidence that other employees were ques- tioned. 22 Sutton had held several union offices including steward, chief steward, and shift safety committeeman. At the time of the interrogation he was vice president of the Local. 23 Sutton filed seven grievances on the events of Februar- 23 and he par- ticipated in their processing through the third step of the grievance proce- dure. A. I couln't remember everything he asked. Q. What do you remember? A. I do remember that he asked me if to my recol- lection or to my knowledge did Bill Faulkner harrass (sic) Mr. Harms in any way that day. I find that Sutton's second version reflected the wording of Herriman's question. According to my observation. and as reflected by the words used by the witness, Sutton was, at that point, trying to be as precise as he could. Moreover. even if I were to find that Herriman asked for opinion re- garding harassment of Harms, it would not invalidate the inquiry. The opinion allegedly requested was not of the na- ture insulated from inquiry by Johnnie's Poultry. It did not involve covert or union or protected, concerted activity. It was in the nature of a preliminary inquiry as to the conduct of a management official. Finally, I would not find that because the question was phrased in terms of "opinion." an inquiry into the employee's state of mind was being made, especially since Sutton was definite that Herriman stated a number of times during the conversation that he was just trying to find out what had happened. Accordingly, I conclude that Herriman's interrogation had neither coercive context nor content. and it therefore did not violate Section 8(a)( 1) of the Act. CON(CILISIO(NS ()I 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. Respondent has not engaged in the unfair labor prac- tices alleged in the complaint. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section lO(c) of the Act, I hereby issue the following recommended: ORDER24 The complaint is dismissed in its entirety. 24 In the event no exceptions are filed as provided in Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclu- sions, and Order, and all objections thereto shall he deemed waived for all purposes. 334