Globe-Union, Inc.

GLOBE-UNION, INC. Globe-Union, Inc. and Local 1116, International Union of Electrical, Radio and Machine Workers, AFL-CIO-CLC. Case 17-CA-7310 April 18, 1977 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS PENELLO AND WALTHER On January 28, 1977, Administrative Law Judge James L. Rose issued the attached Decision in this proceeding. Thereafter, the Charging Party filed exceptions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge and hereby orders that the complaint be, and and it hereby is, dismissed in its entirety. DECISION STATEMENT OF THE CASE JAMes L. Rose, Administrative Law Judge: This matter was heard before me at St. Jospeh, Missouri, on December 7, 1976.1 The General Counsel's complaint alleged that, on September 15, the Respondent, acting through its person- nel manager, John Clemens, threatened an employee with discharge for pursuing union activity and thereby violated Section 8(a)(l) of the National Labor Relations Act (29 U.S.C.§ 151, et seq.), as amended. All parties appeared, were represented by counsel, and were given the opportunity to examine and cross-examine witnesses. Upon the record as a whole, including my observation of the witnesses, briefs and arguments of counsel, I make the following: FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT The Respondent is a Delaware corporation engaged in the manufacture of batteries at its St. Joseph, Missouri, facility. In the course and conduct of its business it annually receives goods, products, and materials valued in excess of $50,000 from points directly outside the State of Missouri, and ships directly to customers outside the State of Missouri products valued in excess of $50,000. The Respondent admits, and I find, that it is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. !l. THE LABOR ORGANIZATION INVOLVED The Respondent admits, and I find, that Local 1116, International Union of Electrical, Radio and Machine Workers, AFL-CIO-CLC (herein the Union), is a labor organization within the meaning of Section 2(5) of the Act. m. THE ALLEGED UNFAIR LABOR PRACTICE A. Factual Background The Respondent and the Union are parties to a collective-bargaining agreement which provides, among other things, for the arbitration of grievances that cannot be resolved. The first and only such grievance to go to arbitration concerned a matter in which Gary Whitmore, the president of the Union, was the grievant. The arbitration of this matter took place on Monday, Septem- ber 13. On the preceding Friday, the Union presented to the Company a letter which had the names of six employees, five of whom were maintenance department employees, whom the Union wished to have present at the hearing. At approximately 5:30 representatives of the Company, including John Clemens and Robert Harring- ton, the production supervisor, met with representatives of the Union including Gary Whitmore, Norman Graf, and others. At this time the Company suggested that they could not let all the maintenance people go at one time. However, Harrington suggested that they would be able to work something out and would be able to let a couple go. While the matter was not precisely resolved, according to the testimony of all witnesses, Whitmore and Graf said they had every reason to believe that they had been given permission to leave work on Monday at or about 9 a.m. Clemens testified that, following the Friday meeting, he contacted his counsel and together they determined that the Company could not let the five maintenance men and one other employee go at the same time. Following this determination, Clemens contacted Whitmore and advised him that the Company would not agree to let all six go at one time. According to the testimony of Clemens, he felt that the matter of who would be allowed to go and when was still unresolved, whereas Whitmore testified that he felt that the Company had agreed to allow at least him and Graf to leave at 9 a.m. It should be noted at this point that precisely what the understanding of the parties was on Friday or thereafter, or whether when Whitmore left work on Monday morning he had permission to do so, are not substantive issues in this matter. All this serves only as background for the I All dates are in 1976 unless otherwise indicated. 229 NLRB No. 2 DECISIONS OF NATIONAL LABOR RELATIONS BOARD telephone conversation in which Whitmore was allegedly threatened. In any event, on Monday morning, Whitmore, as he testified, told his group leader, Rouse, who is a rank-and- file employee, that he was leaving and he did so, with Norman Graf. Prior to leaving, Graf had so advised his supervisor. The arbitration hearing was to begin at 10:30 a.m. with the employees to be there by 9:30. Apparently at the time the hearing was to begin, the Company took the position that all these employees should not be there because some were needed to cover the maintenance work. Thus the Union, along with the arbitrator, worked out a compromise whereby five employees would remain at the arbitration hearing and one employee would return to work. The next day Clemens called Whitmore and Graf into his office for a discussion, which they all agreed Clemens styled as a very serious matter; namely, leaving the plant premises without permission. The substance of this meeting concerned whether in fact Whitmore had been given permission to leave the plant on Monday. The Company, through Clemens, took the position that Whitmore had not been given permission. Leaving the plant is a serious breach of company policy and justifies immediate dis- charge, according to the employees guide. Whitmore contended that he followed the normal practice of advising his group leader that he had to leave the premises. Further, Whitmore felt that he had been given advance permission to leave at 9 a.m. The parties stipulated that it has been the practice that a group leader who is not a supervisory employee neverthe- less has the authority, along with the supervisors, to give maintenance department employees permission to leave the Company's premises. During the meeting, Rouse was called in and interrogat- ed concerning the nature of his conversation the day before with Whitmore. Finally Harrington was called in and the matter of whether employees should get permission from him or through the group leader was discussed. Sometime during this meeting Clemens advised Whit- more that in his "position" he should get permission from a supervisor. Whitmore and Graf felt that Whitmore had been reprimanded by Clemens, although nothing was put in writing. They further felt that the matter of precisely how one should get permission to leave the premises had not been resolved. This matter then was taken up at the union executive board meeting that evening. It was determined to press it with Clemens, seeking a meeting with him for the purpose of resolving the issue of how one should get permission to leave the premises. Chief Steward Schoonover was given the assignment to call Clemens to set up a meeting. The next morning, Whitmore asked Schoonover if he had yet contacted Clemens. Schoonover said that he had not, whereupon Whitmore stated that he would call Clemens. Clemens testified that he did receive a call from Whitmore. He testified, in fact, that he received many calls, sometimes five or six a day, from Whitmore for meetings to discuss grievances under the contract. Clemens testified that in fact he had met with union representatives pursuant to these calls. In any event, Whitmore did call him. The substance of the conversation was that the Union wanted to meet with the Company concerning the matter of leaving the premises. Clemens advised Whitmore that as far as he was concerned the issue of Whitmore having left work Monday without permission was a closed matter. Clemens further told Whitmore that, if he wanted to formalize the matter, the Company would have to consider making a formal charge out of it, but in any event, since he considered the matter closed, it was up to Whitmore. Whitmore testified that it was during this conversation that Clemens told him, in a loud and angry voice, that if he continued to pursue the matter the Company would consider his failure to get permission a class C violation. Whitmore interpreted this to mean that Clemens had threatened to discharge him, inasmuch as the only discipline for class C violations is discharge. Clemens stated that he did not at any time during this conversation use the words C rule, C violation, or the like. Clemens further testified that during this conversation he talked in a normal business voice and in no event did he threaten Whitmore with discharge or any reprisal. B. Issue The only issue alleged raised by the pleadings is whether, during the telephone conversation of September 15, Clemens threatened Whitmore with discharge or other reprisals for having engaged in protected concerted and/or union activity. C. Analysis and Conclusions It is fundamental that for an employer to threaten an employee with reprisals because that employee is engaging in protected concerted activity is a violation of Section 8(a)(l) of the Act. It is also settled that, when a union official pursues a grievance under a collective-bargaining agreement, such is protected concerted activity. When Whitmore called Clemens on September 15 he was clearly engaged in protected concerted activity, as he had been throughout. Nor does the Respondent really argue to the contrary. Thus the only issue here is whether in fact Clemens made a threat to Whitmore during the phone call. After carefully weighing the unrebutted testimony and, as to conflicts, giving due consideration to the demeanor of witnesses, and the probability of accuracy, I conclude that Clemens did not threaten Whitmore with discharge or reprisal during the telephone conversation. It is apparent that the issue the Charging Party really wants to be resolved concerns the appropriateness of Whitmore's action when he left work at or about 9 a.m. on September 13. Specifically, the Charging Party seems to contend that, by agreement on Friday, the Company gave Whitmore permission to leave. Since he was the union president and the grievant, the Company knew that he would have to be present at the arbitration hearing. And, finally, pursuant to past practice, Whitmore advised his group leader when he left. The Company therefore had no 2 GLOBE-UNION, INC. right to discipline him or indeed even take the position that he had left the premises without permission in violation of company rules. As indicated above, however, none of this is at issue in this matter, even though it appears to be the underlying dispute between the Charging Party and the Respondent. Whether the Company was right or wrong in its handling of this matter is not material. What is material is that by the time the meeting between Clemens, Whitmore, and Graf ended, the issue, at least as far as the employees were concerned, was still unresolved. To pursue the matter to resolution, it was taken up at the executive board meeting and finally the call from Whit- more to Clemens asked for another meeting between union representatives and the Company. At that time, as far as Whitmore was concerned the matter was still unresolved, both as to his specific status-whether and to what extent he had been disciplined-and how leaving the premises should be handled in the future. The crucial question, though, is whether during the phone conversation Clemens threatened Whitmore with discharge for continuing to press the matter. Taking Whitmore's testimony in its most favorable light, and resolving every credibility issue in his favor, it is conceivable that one could conclude that Clemens threat- ened Whitmore with discharge when he said that, if Whitmore wished to continue to formalize the matter, the Company would have to consider it a C rule violation, which implies discharge. Never, even in Whitmore's version, did Clemens threaten to fire him. Whitmore states that Clemens said the Company would consider it a C rule violation; leaving the plant without permission is a C rule violation under the terms of the employees' guide.2 Clemens, on the other hand, testified strongly and to my satisfaction credibly, that he did not use the words "C rule violation." I do believe, however, that Whitmore could reasonably interpret what Clemens said at that time to mean that, if the matter was to be pursued formally, it would come down to a C rule violation and, if the Company prevailed, Whitmore would be discharged. To predicate a finding that the Act has been violated upon whether a specific word was used during a telephone conversation which took place 3 months before the hearing, and which neither party precisely remembers, is, in my judgment, not appropriate. The parties are not in disagreement on the substance of the conversation, which concerned the issue of leaving the premises generally, and Whitmore's alleged violation of the rule specifically. There is no question that the Union through Whitmore had the right to pursue this and there is 2 There was some indication that this might also be an A rule violation. however, a reasonable interpretation of the employees' guide would be that it is an A rule violation to leave one's work station and a C rule violation to leave the plant premises. 3 In the event no exceptions are filed as provided by Sec. 102.46 of the no question that the Company had a right to say that, as far as it was concerned, the matter was closed. The issue, again, is whether a threat in violation of the Act was made. To find that Clemens threatened Whitmore on the state of this record would be tantamount to holding that a company could never have oral communication with a union representative on grievance matters. When these conversations take place, particularly where the parties hold strong positions, words and the tone in which they are uttered can be interpreted to be threatening. Here, there is a new collective-bargaining relationship. There is no evidence of union animus nor evidence of other unfair labor practices. There is no evidence that the Company has embarked on a course of conduct to intimidate employees in the exercise of their Section 7 rights. Indeed, the alleged threat occurred in only one of many calls Whitmore made to Clemens. Rather, it appears that principals of both parties are feeling their way in the conduct of their relations under the contract. Even if Clemens used the precise phrase "C rule violation," such does not amount to a threat against Whitmore. It was simply Clemens stating the Company's position. Such is not an unfair labor practice, even if the Company were wrong. Accordingly, I conclude that the Respondent did not on September 15, 1976, violate Section 8(aX I) of the Act. REMEDY It having been found that the Respondent did not violate Section 8(aXl) of the Act as alleged, an order will be recommended dismissing the complaint in its entirety. CONCLUSIONS OF LAW 1. The Respondent is an employer engaged in interstate commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. The General Counsel has failed to establish by a preponderance of credible evidence that John Clemens threatened Gary Whitmore with discharge or other reprisals on or about September 15, 1976. Pursuant to the foregoing findings of fact, conclusions of law, upon the record as a whole, and pursuant to the provisions of Section 10(c) of the Act, I hereby issue the following recommended: ORDER3 The complaint is hereby dismissed in its entirety. Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. 3