Borman, Inc.

312 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Borman, Inc. and Michael Domke and Jerry Bliss. Cases 7-CA-22182 and 7-CA-21795 14 December 1984 DECISION AND ORDER BY MEMBERS ZIMMERMAN, HUNTER, AND DENNIS On 6 June 1984 Administrative Law Judge Thomas A. Ricci issued the attached decision. The Charging Parties filed exceptions and a supporting brief, the General Counsel filed cross-exceptions and a supporting brief, and the Respondent filed answering briefs. The National Labor Relations Board has delegat- ed its authority' in this , proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm- the judge's rulings,' findings,2 and conclusions 3 and to adopt the recommended Order. The Charging Parties and the General Counsel except to the administrative law judge's credibility resolutions based on certain factual misstatements made by the judge and the judge's failure to dis- cuss certain relevant testimony. We have reviewed the decision in light of the record evidence and the General Counsel's and Charging Parties' conten- tions and make the following factUal corrections. 1. The judge found that 5 - days prior to the arbi- tration of employee John Montiero's grievance, Charging Party Michael Domke had a conversa- tion with Supervisor Willie White regarding Domke's participation in the arbitration. However, the record reveals that Domke's conversation with White actually took place approximately 4-1/2 months prior to the arbitration. Additionally, the' judge stated that Domke was given a written repri- mand on 3 January 1983 for violating a company rule. Although the Respondent prepared a written reprimand for Domke, the discipline was never ac- 1 Both the General Counsel and the Charging Parties contend that the judge's interpretation of the evidence and his credibility findings showed bias and prejudice against them Upon careful examination of the adminis- trative law judge's decision and the entire record, we are satisfied that the contentions of the General Counsel and the Charging Parties in this regard are without merit 2 In agreeing with the judge that the Respondent lawfully and uni- formly enforced against Bliss its prohibition against unauthorized entry Into unassigned buildings, we do not rely on the mere existence of the posted notice prohibiting such activity but rather on the credited testimo- ny that the Respondent similarly disciplined other employees who violat- ed this rule 3 The judge specifically noted that Teamsters Local 337, the employ- ees' bargaining representative, did not participate in this case, concluding that if the Union believed the Respondent had engaged in unlawful con- duct, the Union "would have been present to correct the wrong" We draw no conclusions from the Union's absence and disavow the judge's remarks in this regard tually issued to him. Further, the judge was incor- rect in stating that the General Counsel contended that this alleged 3 January reprimand was issued to Domke only to justify a reprimand previously issued to Domke. In' addition, the judge erroneously stated that the Respondent had a rule prohibiting employees and stewards from discussing union business during work time. The rule in fact allowed such discus- sions if permission was first obtained from the su- pervisor. Finally, the judge 'found that Charging Party Jerry Bliss had knowledge of 'the "punching out" rule based on the fact that he was a steward at the time employee Nelson Orr was reprimanded for violating the same rule. However, the record reveals that Bliss was not a steward at the time the reprimand was issued to Orr. 4 '• Notwithstanding the , 'aforementioned factual errors, we find that they are insufficient to over- turn the judge's credibility resolutions. The Board's established policy is not to overrule an administra- tive law judge's credibility resolutions unless the clear preponderance of all the relevant -evidence convinces us that they are incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We are satisfied here that the judge's, cie'dibility resolutions are supported by the record, and thus no basis exists for disturbing them.5 2. The complaint alleges that the kespondent un: lawfully threatened Bliss -with discharge when it issued to him a written warning on 7 March' 1983. The judge failed to rule on this allegation. The record reveals that subsequent to the 21 February 1983 discharge of Bliss, the Respondent on 4 March 1983 decided to reinstate him without back- pay. On 7 March 1983 the Respondent sent a letter to Bliss explaining its reasons for reinstating him without backpay and notifying him ,that, with re- spect to the company's disciplinary procedure, any subsequent violation would warrant a discharge. The Charging Parties and the General Counsel contend this letter constituted a "new" discipline. We disagree. Having concluded that the 21 Feb- ruary 1983 discharge was not unlawful, the Re- spondent was neither required to reinstate Bliss nor to provide backpay for the period between the dis- charge and the reinstatement. We therefore con- clude that the reasons given for reinstatement with- 4 Bliss did have knowledge of the rule, however, based on his testimo- ny admitting that a "punching out" rule existed 5 The General Counsel and Charging Parties further assert in their briefs that the judge erred in "ignoring" certain testimony which conflict- ed with his findings As the Board stated in Walker's, 159 NLRB 1159, 1161 (1966), "The failure of [an administrative law judge] to detail com- pletely all conflicts in the evidence does not mean that this conflict- ing evidence was not considered " 273 NLRB No. 47 BORMAN, INC. 313 out backpay were not unlawful and the Respond- ent lawfully advised Bliss that any subsequent vio- lation of company policy' would lead to discharge. Therefore, we find no "new" discipline was issued and, accordingly, we dismiss this allegation of the complaint. ORDER The recommended Order of the administrative law judge is adopted and the complaint is dis- missed. DECISION THOMAS A. Ricci, Administrative Law Judge. A hear- ing in this proceeding was held at Detroit, Michigan, on April 4, 5, and 6, 1984, on complaint issued by the Gen- eral Counsel against Borman, Inc. (the Respondent or the Company). The complaint issued on March 2, 1984, based on separate charges filed on February 24, 1983, and on June 1, 1983, by Jerry Bliss and Michael Domke, respectively (the Charging Parties). The issues presented are whether the Respondent discriminatorily applied and enforced its work rules against the Chaiging Parties in order to retaliate against them for exercising protected concerted activities, in violation of Section 8(a)(1) and (3) of the statute. Briefs were filed by the General Coun- sel and the Respondent.' On the entire record and from my observation of the witnesses, I make the following FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT This Company, a State of Michigan corporation, is en- gaged in the retail sale and distribution of groceries, meats, produce, and related produêts, and has its princi- pal office and place of business in Detroit, Michigan. During the 12-month period ending December 31, 1982, and December 31, 1983, representative periods, its gross revenues from all sources exceeded $500,000, and in the course of its business it purchased and caused to be trans- ported and delivered to its Michigan facilities fOods and other products valued in excess of $50,000 which were transported and delivered to . its facilities from out-of- state sources. I find that the Respondent is an employer within the meaning of the Act. II. 'THE LABOR ORGANIZATION INVOLVED I find- that Local 337, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (the Union) is a labor organization within the meaning of Section 2(5) of the Act. A postheartng motion by the General Counsel to strike the Respond- ent's brief or to reopen the record is denied- - III. THE ALLEGED UNFAIR LABOR PRACTICES A. Picture of the Case The background of this case tells a revealing story. Among the 600 to 700 employees working in this Com- pany's warehouse and food distribution center, about 400 have long been represented by Local 337 of the Team- sters International Union. In 1979 and earlier, there de- veloped a movement among its members to combat the policies and practices of the officers and elected officials of the Teamsters, to protest what was called undemo- cratic action by the Union as such The very vocal dissi- dents in this Company joined forces with like complain- ers, both members of Local 337 and of other locals of the International Union, working in other companies, in- cluding employees of campetitors of this Respondent in the Detroit area, such as the A & P and the Kroger stores. In fact, there came into being an organization called Teamsters for Democratic Union (TDU), formed for the purpose of changing the practices of the Team- sters Union as a whole, to make it more democratic and more sensitive to the needs and desires of its members". This internal dissension' within the Teamsters was 'widely publicized, the TDU printing a periodical called "Rank and File Speaks," and distributed widely. There were meetings and discussions everywhere. One of the activ- ists, a man named Jerry Bliss, involved in this very case, was even scheduled to testify before the ,United States Senate Labor Committee on labor racketeering The other Charging Party, Michael Domke, , was equally active in distributing TDU literature throughout the plant. What brought about, the complaint in this proceeding was something that happened in this Company's plant in March 1982. Its contract with Teamsters Local 337 was due to expire in October 1982. In March the Company proposed to the Union extension of the contract for a further fixed period of years, with all wages to remain as they were in March 1982. Whether this meant withhold- ing of raises due on the unexpired contract, I do not know. But clearly it meant no increase in wages through- out the period of the new contract to take effect in Octo- ber 1982. The witnesses for the General Counsel, all dis- sidents and members of TDU, referred to the proposal of the Company, eventually accepted by Local 337, as the "concessions." There was a great to-do among the em- ployees, whether to accept the Union's approval recom- mendation. In a first vote the employees refused to ratify the agreement A second vote, in March, they agreed, and the contract was extended accordingly, as the Com- pany desired. There is-also repeated testimony by the employee wit- nesses that about the same time—starting late in 1981— the Company began a "speed up" system, aimed at get- ting more work from the employees. Although the Re- spondent's officers did say that due to economic necessi- ty—especially the pressure of competition in the area—it had no choice but to get more efficient performance from its employees and keep its expenses down; they took issue with the phrase "speed-up" In any event, that development—the "speed up"—plus the so-called con- _ 314 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cessions which precluded all raises for quite a period, served to generate an even greater friction between the dissident members and their duly elected union officials. The essential question presented here is whether the Company, in enforcing its work rules against the two principal activists in that TDU movement, was motivat- ed by a desire to squelch the dissident movementwhich went counter to its economic position—or merely apply- ing work rules agreed to by the collective-bargaining agent, which certainly was the Employer's right. A number of disciplinary warnings were issued, two men were discharged, and other steps taken in keeping with the work rules. Grievances were filed, some were settled at one step or another, and some went to arbitra- tion according to the Union's contract. The officers and business agents of the Union participated in all these grievance steps, winning a number of them to the advan- tage of the employees. There is no charge that the Union ever failed in its duty fairly to represent all the employ- ees. What I , think is the main allegation of the General Counsel now is that Jerry Bliss, the big TDU activist, was unlawfully discharged in February 1983. When Bliss' grievance was discussed at the first step of the grievance procedure, only 2 weeks after his dismissal, the Union persuaded the Company to reinstate him, and he did get his job back. The Company nevertheless refused to pay ,him for the time off he had lost-9 days' pay. With the Union still pressing his grievande and preparing for the next step in the grievance procedure, Bliss volun- tarily withdrew his .grievance, and dame to the National Labor Relations Board instead, with the hope of having a better chance here of getting his 9 days' pay. A very significant aspect of this case must be kept in mind at this point. The Union, Local 337, did not partici- pate in this hearing. It entered no appearance and none of its officers came to the hearing This means that in the opinion of the Union—i.e., its elected Officials, for they are the ones who speak for the Union, and , not a dis- agreeing minority—there was nothing wrong in any of the warnings, criticisms, or even suspensions imposed by management. Were the Union itself of the opinion that this employer violated the statute in its treatment of its members, surely it would have been present to correct that wrong. Whenever an employee chose to file a griev- ance, the regular union officials did their best to win it Not once, insofar as this record shows, has it failed to represent all as was its duty. And if it did not go to arbi- tration over the' 9 days lost by its principal critic, it was only because he, Bliss, chose to withdraw his grievance. In sum,' what emerges from all this is a - dispute be- tween the Union and some of its members on the ques- tion of how the employees should be treated . by their employer. As will appear below, there were even in- stances where the employee felt he had a right to ar- range his own understanding with the -Company as to what his "conditions of employment" should be, to use a classic phrase. Indeed, as to what work rules should or should not - apply, thee particular employees had their own' idea, and never mind either the precise terms of the 'exclusive collective-bargaining agreement or the reg- ularly posted work rules entirely acceptable to the exclu- sive bargaining agent. B. The Facts of Record 1. Jerry Bliss There is a marked question -of credibility running through the entire record, the General Counsel's wit- nesses (all employees), giving the straight he to the Re- spondent's witnesses (all management representatives). As stated, the main witnesses for the prosecution were Bliss and Domke, both stewards most of the time during their employment Again and again the question was whether the employees were or were not permitted cer- tain liberties in the course of their employment, the em- ployees insisting they were always free to do this or that, to move from building to building throughout the very large work area without haying to clear with their super- visors,. to talk instead of _working during their work hours, to use the public telephone at will, etc. Against all this, the supervisors testified there were rules governing what liberties could be taken during work hours, restric- tions upon leaving the work area without signing out on the timecard, or going from building to building in the vast property without permission of supervisors. A number of oral warnings, written reprimands, and sus- pensions are listed in the complaint as having been caused by the employer's desire to curtail the concerted movement among some of the employees to push the cause_ of the TDU In some instances the employee in- volved denied having committed the offense for which he was criticized; at other times he defended on the ground there was no such rule as the supervisor at the moment said he was enforcing. In most instances, the question was the latter.• Sometimes credibility resolutions turn on what is called the demeanor of the witnesses, evasive answers to direct questions, refusals to reply, arguments in response to straight inquiries, etc. Sometimes the disagreement be- tween the Witnesses is put at rest by objective evidence as to which there is no - question—documents, admissions, logical inferences that are inescapable. In this case, both of these elements come into play. If ever there was a case in which the credibility resolution is put at rest beyond question by both the demeanor of the witnesses and objective evidence, this is it. I cannot credit the em- ployees against their supervisors where they are contra- dicted on this record. One of the 'incidents of which the witnesses spoke at length will make the point very clear. In fact it involves the principal allegation in the complaint In consequence of a general laxity in the enforcement of work rules before the concessions demanded and won from the Union in early 1982, and, of course, as part of its policy to "speed up" the work and increase the efficiency of its entire operation, on August 9, 1982, the Company posted a notice which, admittedly, came to the attention of all the employees It reads as follows Employees will not be permitted to enter buildings they are not assigned to work in without the express approval of their supervisor. (This includes all lunchrooms and restrooms.) , BORMAN, INC 315 Needless to say, this policy is in effect during both working hours and non-working hours. Violation of this policy will result in disciplinary action up to and including discharge On February 21, 1983, Bliss, the steward, left the gro- cery warehouse, where he worked, during his lunch hour and went to the produce warehouse, and distribut- ed TDU literature among those employees. This grocery warehouse is a very large place, where 260 employees work, coming in different shifts starting at various hours throughout the day. They stack large amounts of food for the Respondent's 83 retail stores, move it about as or- dered, take it on carts to many docks, and load trucks continuously throughout the day. There is a lunchroom there for their use and, as the shifts keep changing, there are very different lunch periods and break periods throughout the day. The produce warehouse is also a large building, with about 120 employees. Bliss admitted he, did not punch his timecard when leaving his assigned building during his lunch hour, and did not ask permis- sion of any supervisor to enter the produce warehouse, both actions violative of established work rules. He was given a_ written reprimand notice for the first offense,, and a reprimand notice reading "Suspension pending ad- visability of discharge" for the second offense. In the office, when being given those two reprimands, Bliss denied having done anything wrong, insisting he had not violated any rules of conduct on the job. Confronted with the August 1982 notice, his argument became more clear His position was, as he repeated at the hearing a year later, that the rule did not apply to him. And to prove his assertion he produced a letter written in 1979 by the lawyer for the TDU to the Company, and the Company's response at the time. The TDU lawyer wrote to the Respondent about employees rights to distribute literature on company prokrty and warning it against' commission of possible unfair labor practices for interfer- ing with such rights. In response the Company had writ- ten to her that it intended to abide by the law as written - and as interpreted by court decisiOns. This attitude by Bliss, reflected throughout his testimo- ny at the hearing, shows clearly a pervasive intent to change the facts, to put the Employer in ,a bad light and to further his disagreement with how his Union, Local 337, chooses to carry on its bargaining authority vis a vis the Respondent. There is no contention by the General Counsel that the rule of conduct, as posted in August 1982, was improper, or illegal in any way Certainly even in the opinion of the Union, it conformed with the terms of the written collective-bargaining agreement. The contract contains the following provision' The employer shall have the right to establish rea- sonable rules and regulations and penalties for their violations; provided such rules and regulations and penalties are first approved by the Union.' At the hearing Bliss said he had always, before Febru- ary 1983,.gone from building to building to distribute his literature. How can I believe him with the posted notice so clearly prohibiting such action? Significantly, he also admitted, in •agreement with the manager's testimony, that he had always been granted permission, when he asked for it, to go into the produce department to give out his TDU literature. What better proof than this that the Company was not opposed to, what he was doing provided he conformed with the rules 9 Had the supervi- sors been instructed, as the employee witnesses kept ar- guing, to put a stop to ,the TDU activity, management would surely have denied such request, as the Company had a right to do under the rules. Only 2 months before his reprimand for leaving his as- signed building without cloOking out, another man, Orr, was given a written reprimand for exactly the very same rule violation. That notice bears the signature of a union steward; Bliss was a . steward and he therefore certainly knew the rule was being enforced. For him to say at the hearing, as he did several times, that he always left the building without clocking out—implying, although not proving, that any supervisors saw him do that—marks Bliss as an absolutely discredited witness. For sure the August 1982 posted notice, and the reprimand given Orr 10 days before Bliss got his, are all the affirmative de- fense needed by the Respondent Bliss may be living in a dream world, but that he was lying as a witness is a fact. Wherever he is contradicted by a management witness, I do not believe a word out of his mouth. Instead of arguing that the rule against entering an- other building without permission was improper, the General Counsel contended that the reason it was en- forced against Bliss was because of his pro-TDU activity. But the proof is no more than his assertion The answer to the question of permission whenever he asked for it is enough to wash that argument away completely But there is more. When Bliss filed a grievance over the dis- charge which immediately followed, the Union went to bat, and at the first-step discussion won his job back for him. The Company could not have been so adamantly opposed to the man's activities if it yielded so quickly. The Union was prepared to take the matter further, and get him his 9 days' pay. It was Bliss who ehose to with- draw the grievance instead This was Bliss fighting the Teamsters, not the Respondent: I .find that the discharge of this man in February 1983 was not an Unfair labor practice An employee is not immune from _discipline for an 'admitted violation of the work rules merely because he is engaged in concerted activity, whether in favor of a regular labor organization, or to further a disruption within that union. At the hear- ing the Respondent did not move to defer this issue to arbitration, as the contract called for. Had it done so, -its motion would have been a perfectly good one. I there- fore do not pass on the question whether, under the cir- cumstances of this case, Spielberg Mfg. Co., 112 NLRB 1080 (1955), applies , But the General Counsel's stated reason why this man could not be deferred only sheds further light on the case as a whole She offered to prove that the Union— again, that is, the duly elected officials who run the Union—do not like this man, Bliss, and his intimates, and that the reason is because he, and his friends, are very active in .the TDU movement She may be right; I do 316 DECISIONS OF NATIONAL LABOR RELATIONS BOARD not know. But the fact is, like them or not like them, the Union always stood by them as any union does when any of its members get into trouble with the boss. It always represented them' and did its best to protect their interest, as it was prepared to go to arbitration in Bliss' discharge. The real quarrel here, therefore, is not be- tween the Charging Parties—Bliss and Domke—and the Respondent, the true nature of any complaint case before the Board. It is, instead, a quarrel between the TDU- represented by Bliss and Domke and the TDU lawyer, Thompson—and Local 337, or the entire Teamsters International. That dispute came to a head in this par- ticular company when the Union gave the concessions in 1982, and when the Company instituted its "speed up" system at about the same time. And in order to create the impression that the dispute is with the Company in- stead, the witnesses kept talking about the employer's en- forcement of the rules which implemented the conces- sions and the "speed up" as improper, not because it was not nice to get the Union's approval, but because the Na- tional Labor Relations Act was violated! 2. Michael Domke Considering the testimony of Steward Domke in his entirety, he appears even a less credible witness than Bliss. He kept changing his answers as he went along, he evaded- coherent replies again and again, he argued the correctness of his factual assertions when asked to speak instead of what happened. And, equally revealing, his testimony was at odds with unquestionable facts. A few examples, will suffice. Respondent has a rule that when an employee is sup- posed to be working he may not use the pay telephone without permission of a supervisor. On May 11, 1983,. Domke did that and was issued a written warning for breaking the rule. ,As a witness time and again he kept repeating that there was no such rule, that employees had always used the phone at will, and that they still do so. There was then received in evidence four recorded written reprimands issued because employees had used the phone without permission. One is dated June 6, 1982;' one is dated August 13, 1982, one is dated February 2., 1982; and one is dated July 14, 1983. The first three of these bear Domke's signature as witness, which means he was present as steward when the reprimands were issued. In his prehearing affidavit, after the events, Domke also said, "The employees used the telephone on a regular basis without getting permission." Can there be any question but that he was lying as a witness in this case? I think not: In ',complete inconsistency with the above story, Domke defended -his use of the telephone in May 1983 by saying he did have permission that day He said the office girl, Miller, had handed him a note saying that Lloyd Williams, the Union's business agent, had called him and wanted him to call back He quoted Miller-as telling him; in the presence of Supervisor Daniel, "Call the guy right away." His position was, both to Daniel while getting the reprimand and at the hearing, that he had a right to presume that the clerk had been given per- mission to call him at the time. Miller did not testify. Daniel's version of this incident-is that he did hear Miller say there was a message for Domke to "call 500," and that Domke then went outside the office to -a pay tele- phone, and that while Domke was talking another super- visor saw him and asked Daniel had he given the man permission? With this, still according to Daniel, he went outside and' asked Domke had he obtained permission from anyone, and Domke answered, "No." Daniel then ordered Domke off. the phone, took him into the office, and wrote him up As to what Domke argued then, Daniel said he only said he was "sick," and wanted 'to go home. When Daniel told him to wait until the written reprimand was finished, Domke threatened to file NLRB charges for being refused permission to leave immediate- ly. According to the supervisor, therefore, Domke did not even claim, at that time, he-had implicit permission to use the telephone. Miller was also given a written rep- rimand that day for having called the employee to the office without permission; she had been reprimanded for the same offense once before. All I see in this is but another instance of- a union steward believing that the rules in a work - place applica- ble to ordinary employees do -not apply to him. Domke started his very extended testimony by generalizing about how at the time of the concessions and speed up in early 1982, the number of disciplines- increased greatly, how he always appeared at many grievance meetings about them, how he always argued against the speed up and stricter work rules I think he Just went to the phone that day and made his personal call because he still felt the rules he knew to be in effect were too stringent. This was a bone of contention between the' TDU and the Teamsters, in which he Was a principal activist. I credit Daniel. I find Domke violated, the "don't use the phone" rule knowingly, that he did not even claim to have permission„ and that the only reason he was given the reprimand was for the' direct rule violation. I find nothing wrong in the Company having issued that repri- mand that day. As to the complaint allegation that the Respondent enforced the rule "disparately" against Domke, it rests essentially on the steward's conclusion- ary assertion to that effect, which is destroyed both ,by the documents in evidence and by the very, very poor demeanor of Don-Ike at the hearing. As to the next incident, which I deem very revealing on the general question of credibility between the two groups of witnesses, the doubletalk which does no credit to Domke's testimony, is tied with like doubletalk in the General Counsel's complaint. On Decethber 29, 1982, management asked Domke to come, to the office so he could be present when five reprimands were to be handed to five employees, each for the same offense. All five of the men had left their work stations before the buzzer• sounded for the lunchbreak. The very fact of management itself inviting the steward to the office then indicates a total absence of anti-Domke, anti-Teamsters, or TDU animus. One of the five men was VanWalthau- sen, who had several times already been reprimamded for the same offense. For the other four, it was the first time they had violated that rule. For this reason the manager had decided to issue a suspension notice to VanWalthausen, and only a reprimand to the others. BORMAN, INC 317 When Domke arrived at the office, he entered the room where the four employees were with the supervi- sors. VanWalthausen was asked to wait outside. For 15 or 20 minutes the supervisors discussed the offense with the men and with Domke. The employees and the stew- ard, while admitting the offenses, tried to soften the blow. The reprimands were issued and the four left When VanWalthausen was called in, Daniel started to write the suspension notice. Domke and VanWalthausen then began to talk between themselves about what they should do. Daniel told them to be quiet while he finished writing, because he had already decided what to do. In a matter of a few minutes he gave the employee the notice and ordered him out Outside the office Domke and VanWalthausen continued to discuss what to do. When Daniel emerged and saw them so occupied he ordered Domke to return to work. Domke insisted he had a right to talk union business on working time. Judging from what I heard, it is not at all clear just what the unfair labor practice was that is alleged to have occurred at that moment. At times Domke made it sound like a Weingarten case, where the employer refuses an employee's request to be represented by his union stew- ard during a disciplinary interview or investigation. But there was no interview, or investigation conversation here. The decision to suspend VanWalthausen had defi- nitely been made in advance. That is why he was told to wait outside while the proposed reprimands to the other four employees were being discussed The manager saw no point in disconcerting the other four employees by having them watch another man was discharged. This was only because it definitely had decided with fi- nality what was going to happen with VanWalthausen. The complaint puts it differently. It says that that day the Respondent "interfered with employees" right to process grievances by denying an employee access to the union steward at the close or immediately after a disci- plinary interview." Asked, at the hearing, did this mean "that the unfair labor practice was committed by this company based on this man's testimony that they refused to permit him to permit his union representative to par- ticipate in a disciplinary, investigatory interview?" the General Counsel answered "Correct" But if Daniel's and VanWalthausen's testimony be taken in total, what they were saying is that Daniel refused them permission to decide—between themselves—what to do about all this. What did management have to do with any conver- sation that was to take place between an employee and his union representative about whether, or how, to file a grievance? At one point VanWalthausen said the supervisor re- fused to permit him to ask the steward for a grievance form. There is a rule in this place that employees, and especially stewards, are not to discuss union business during working time. Domke was on the clock; he was engaged in union business while being paid by the Com- pany only because the manager had asked him—given permission?—to come to the office on behalf of the four reprimanded employees. And again we return to the basic question of credibility running throughout this case. Domke, and Bliss, said that they could talk union busi- ness at will; the manager said otherwise I Just do not be- lieve the unsupported testimony of the employees. In sum, there was absolutely nothing wrong in any- thing the supervisors did that day The details ,about it all by the employees served only to again show how the witnesses were trying to build a story with words but adding nothing of substance to the record They were not credible witnesses. On this same question of what the rule about talking instead of working during pay time really was, there are separate additional paragraph allegations in the com- plaint. In support of those allegations, Domke testified that in , March 1983 Supervisor Daniel told him "not to solicit grievances" and that "if he caught me soliciting or recommending the employees at Borman to file griev- ances that he would discharge me." Domke also said that Daniels repeated the warning to him the following month, "not to solicit or recommend the employees to file grievances" Each of these conversations took place, according to Domke, on occasions when Daniels had called him to the office so he could speak on behalf of employees who were being reprimanded Daniel's testimony is different When Domke became steward, in 1982, he told the man to stick to his work and that he could only talk to employees when "they would stop and maybe ask him about an insurance form or eye forms or something of that nature as long as it was something that took a minute of two and, you know, didn't tie anyone up:" Daniel's testimony continues that because Domke felt the rule applicable to others could not apply to him, there was a later meeting with both Domke and Wil- liams, the Local 337 business agent, Present, when again Daniel restated the rule that union stewards were not to talk business during working hours without first asking permission of a supervisor Williams agreed with Daniel, but Domke did not, and kept arguing with the business agent And ' on January 3, 1983, Domke was given still another written reprimand that reads as follows: Failure to follow instructions on the above date. At 'approximately 3:15 p.m. you were observed in your work area having conversation with another em- ployee (Don Pierce). You have been instructed sev- eral times that if another employee wishes to speak with you that he must have authorization from his supervision. Due to your failure to follow instruc- tions I find it necessary to issue you this warning. For the General Counsel to argue that this January 3, 1983 reprimand was issued only to Justify the December 29, 1982 reprimand will not do. It is a form of inverse reasoning. The second reprimand was consistent with the overall testimony of many witnesses In any event, no charge was filed in this proceeding until February 24, 1983! The principal witnesses kept talking about things that happened in the work place, conversations with supervi- sors, which only cluttered the record and have nothing to do with this case—things that are not mentioned in the complaint All the witnesses proved is that they dis- agreed with management as to what the conditions of 318 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employment should be. With the General Counsel asking all these questions of her witnesses, she did so on the theory that if 'management thinks an employee is wrong as to what the collective-bargaining contract says, or what the work rules are, this is -proof of illegal animus against that -employee. It is a very poor argument to make. Again, an example. There is a rule applicable to work- ing on Christmas Day. A notice is posted days in ad- vance; anyone who wishes to work on Christmas Day must sign his name on the notice at least 48 hours in ad- vance of the holiday. Bliss spoke of. Christmas 1982, saying he was planning something else for that day and therefore did not sign up. He changed his mind and, the day before Christmas, said he was going to work. He was refused the opportunity. His position at the hearing, and as argued to the supervisors at the time, was that the rule did not apply to him because he was normally scheduled to work that day of the .week anyway "I in- formed the Company that you didn't have to sign the list to be able to work.:' Bliss even filed a grievance over the matter, which is still pending unresolved. I do not under- stand why I heard this story. A better example of pure argument by the witnesses, intending again, I suppose, to prove animus against these men, is something that happened in connection with an arbitration that was scheduled one day A man named Montiero was disciplined for low production, in fact dis- charged, on September 16, 1982 When he was to be given the reprimand the supervisors called Domke to the office so he could represent the man at the disciplinary interview, because the regular steward for that depart- ment was not available. After much disCussion about the matter Montiero was suspended and Domke signed the reprimand notice The matter went to arbitration, origi- nally scheduled for January 4, 1983. Domke decided he wanted the production records applicable to Montiero and asked Zafarano for them one day while at work; Za- farano told him he did not have them With this Domke left his work station and went to the pay telephone to call his business agent. When a supervisor asked did he have permission to go to the phone, Domke refrained from making the call and returned to his work. The story thus far about the Montiero discipline and arbitration is from Domke's direct testimony. It spans a number of pages of transcript and must be read to be be- lieved He answered almost every question with an irrel- evant comment about the Company's improper imposi- tion of work rules, about all the liberties he had always been permitted in the past, and about the Company's an- tagonism towards him. Even the General Counsel had difficulty obtaining direct replies. After repeating a number of times that he always used the phone while at work and that nobody • ever stopped him, he ended by saying he did not make the call when asked had he ob- tained permission that day, because "I felt I would be disciplined." If he knew he would be disciplined, he cer- tainly knew the rule was he had to obtain permission, first. It is not possible to believe one word this witness uttered Domke went on to say that when he asked for produc- tion records about Montiero's work to prepare for the arbitration about that man's discharge, which was sched- uled for January 4, he was denied the opportunity to see them. The Respondent then offered a letter it sent to the Union's lawyer on January 4, reading in part: John Montiero and persons claiming to be his repre- sentatives have made two separate appointments with Borman's management to review Mr. Mon- tiero production records. Although in each instance, the records and Borman's management personnel were available, Mr. Montero or his representatives failed to appear. Domke was Montiero's representative, present at both the disciplinary interview and at the arbitration 'hearing later. There is a rule that a steward desiring to attend an arbitration hearing must give 48 hours advance notice Domke did not do that, but demanded the right to attend Montiero's arbitration anyway At first Supervisor Daniel said he could not leave, but, when a union officer apologized for not having given the requisite advance notice, Daniel let Domke off and permitted him to go to the arbitration. With this being Respondent's attitude to- wards Domke's steward activities, how can I believe his story that the Respondent was determined to put a stop to his handling of grievances, or assisting the employees? The Company's January 4 letter in evidence proves without doubt he was offered the records, and if he did not see them in advance of the arbitration it was only be- cause he himself was negligent More importantly, this matter is further proof of the complete falsity of his entire testimony. Domke even testified that 5 days before he was so gracioUsly given permission to attend that ar- bitration, Supervisor White told him he would be dis- charged if he became involved in that particular arbitra- tion! Another perfect example of false testimony by Domke Wherever Domke is contradicted by the company wit- nesses; especially with respect to his testimony about being threatened by Supervisor DeMay or Daniel, I do not credit Domke. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed 2 . ORDER I recommend that the complaint be dismissed in its en- tirety 2 If no exceptions are filed as provided by Sec 102 46 of the Board's Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec 102 48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses