Titanium Metals Corp. Of America

706 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Timet, a Division of Titanium Metals Corporation of America and John H. Madill. Case 31-CA- 10737 28 February 1985 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS HUNTER AND DENNIS On 23 February 1982 Administrative Law Judge Jay R. Pollack issued the attached decision. The General Counsel filed exceptions and a supporting brief. The Respondent filed a brief in opposition to the General Counsel's exceptions. 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, I and conclusions and to adopt the recommended Order. FINDINGS OF FACT AND CONCLUSIONS 1. JURISDICTION Respondent is a Delaware corporation with an office and principal place of business in Henderson, Nevada, where it is engaged in the processing and production of titanium metals. In the course and conduct of its business operations, Respondent annually sells and ships goods or services valued in excess of $50,000 directly to customers located outside the State of Nevada. Accordingly, I find that, at all times material herein, Respondent has been an employer engaged in commerce and in a business affect- ing commerce within the meaning of Section 2(2), (6), and (7) of the Act. 11. THE LABOR ORGANIZATION INVOLVED The parties agree and I find that Local 4856 of the United Steelworkers of America, AFL-CIO (the Union) is a labor organization within the meaning of Section 2(5) of the Act. ORDER The recommended Order of the administrative law judge is adopted and the complaint is dis- missed. i Chairman Dotson is adopting the judge's finding of an 8 (a)(1) viola- tion only because no exceptions have been filed thereto and in these cir- cumstances agrees that a remedial order is not warranted Under all the circumstances, Member Dennis would remedy the 8(a)(1) violation the judge found We place no reliance on the judge 's comments at fn 2 of his decision, but note only that the Respondent never raised the issue of deferral to the parties ' grievance and arbitration procedure DECISION STATEMENT OF THE CASE JAY R. POLLACK, Administrative Law Judge. I heard this case in trial at Las Vegas, Nevada, on November 17, 1981. The charge was filed on December 22, 1980, by John H Madill (Madill) On February 24, 1981, the Acting Regional Director for Region 31 of the National Labor Relations Board (the Board) issued a complaint and notice of hearing, alleging that Timet, a Division of Titanium Metals Corporation of America (Respondent) violated Section 8(a)(1) of the National Labor Relations Act (the Act). All parties have been afforded full opportunity to par- ticipate, to introduce relevant evidence, to examine and cross-examine witnesses , and to file briefs. Based on the entire record, from my observation of the demeanor of the witnesses, and having considered Respondent's post- trial brief,' I make the following i The General Counsel did not file a brief III. THE ALLEGED UNFAIR LABOR PRACTICES A Background As discussed above, Respondent is engaged in the processing and production of titanium. The Union has represented Respondent's production and maintenance employees at the Henderson, Nevada plant since 1952. John Madill, the Charging Party, employed by Re- spondent as a warehouse and equipment operator, has held positions with the Union for 22 years In August 1980, Madill was a department grievance committeeman or shop steward for the Union On August 22, 1980, Madill, at the request of fellow employee Charles Wessen, approached Foreman Bill Yates to inquire why Yates had required Wessen to work 8 hours of overtime instead of the 4 hours that Wessen had requested. The conversation between Madill and Yates was interrupted by Wilson Walker, Madill's foreman and dispatcher The General Counsel alleges that Walker threatened Madill with unspecified reprisals and created the impression that Madill's union activities would be under surveillance in the future because Madill acted as department grievance- man on behalf of Wessen Respondent, on the other hand, contends that no threat of reprisal or surveillance was made by Walker. It argues that any statements made by Walker were too vague or ambiguous to be connected with Madill's union activities. Further, Respondent argues that even if a threat was made, "the incident was isolated and de mini- mis, it is more properly handled in the grievance proce- dure,2 and absolutely no surveillance was made or any reprisals taken " 2 However, Respondent does not argue that the Board should defer to the grievance and arbitration procedure of the collective-bargaining agreement In any event, deferral is inappropriate where reprisals for grievance-related activities are concerned See, e g , Nissan Motor Corp , 226 NLRB 397 (1976) 274 NLRB No. 100 TITANIUM METALS CORP B. The Alleged Threats to Madill As discussed above, on August 22 , Madill questioned Yates why Yates would not allow Wessen to work 4 hours overtime instead of 8 hours 3 According to Madill, Yates answered that the schedule required crews of two or more people to work together and that he needed 8 hours from each person . Madill then asked if Yates would allow Wessen to write receiving reports instead. Yates answered that he had not planned to have any- body write receiving reports on the day in question. When Madill said that other people had been allowed to do so, Walker interrupted and said in a loud voice, "Don't accuse me of playing favorites ." Madill told Walker that this was not Walker's shift but Yates' shift Walker answered , "This is my overtime list I run the overtime " Madill answered , "That may be so, but you do not make the assignments . Yates is making the assign- ments for tomorrow " Walker slammed down his hard- hat and told Madill that if Madill did his work, there would not be a need for overtime . Madill answered that he had worked for Respondent a long time and did his job every day Walker answered, "We'll find out. I'm going to watch you very close in the future." Madill started to walk out the door when Walker shouted, "I'm going to straighten you right out " Kathy Baird, warehouse and equipment operator , testi- fied that she overheard a conversation one afternoon be- tween Madill and Walker in which Walker said, "I'm going to get you, you son of a bitch." Baird could not recall the date of that conversation . I do not find that Baird was present at the conversation at issue herein be- cause she worked a shift from I1 p.m., August 21, to 7 a.m. on August 22 While it is not conclusive that Baird did not reenter the plant on the afternoon of August 22, it is highly unlikely that she did so However, Madill and Walker have had more that one heated argument and Baird might have been present on another occasion. Wilson Walker did not have a clear recollection of his conversation with Madill Walker did recall that Madill made a comment "about favoritism on the overtime sheet " Walker and Madill then became engaged in a heated argument According to Walker, during the con- versation , Madill indicated that Madill was the best fork- lift operator that Walker had ever seen Walker said he thought Madill's production was below par and that Walker would be watching him At the end of the argu- ment, Madill said that here there had been other dis- patchers sitting at Walker's desk and those dispatchers were gone but Madill was still at the plant However, Walker could not recall how the subject of Madill's pro- duction came up in the conversation. Although present for the entire conversation, Yates could not recall what was said After admitting that prior to the trial he could not recall anything of the con- versation, Yates testified that he presently recalled one thing: At the end of the conversation, Madill said that dispatchers had come and gone but Madill was still a Madill was following the established contractual grievance procedure in discussing the alleged grievance with Wessen 's foreman No written grievance was filed because Madill was eventually satisfied by yates' ex- planation 707 there Yates impressed me as an unreliable witness. He appeared more interested in aiding Walker's cause than in relating the events at issue. Hence, I give no weight to Yates' testimony I credit the testimony of Madill over that of Walker. First, Madill gave the most detailed account of the con- versation . Second, Walker appeared more interested in denying a violation than in testifying to what occurred. Third, Walker could not or would not explain how Ma- dill's performance or production was raised in the con- versation. C Respondent's Defense As stated earlier, Respondent argues that even if a threat was made, "the incident was isolated and de mini- mis, it is more properly handled in the grievance proce- dure, and absolutely no surveillance was made or any re- prisals taken." The collective-bargaining agreement, in effect at the time material herein, included the following provisions relevant to Respondent 's defense. There shall be no discrimination , interference, re- straint, or coercion by the Company or the Union or any of their agents against employees because of membership or non-membership in the Union. The provisions of this Agreement constitute the sole procedure for the processing and settlement of any claim by an employee or the Union of a viola- tion by the Company of this Agreement As the representative of the employees, the Union may process grievances through the grievance pioce- dure, including arbitration , in accordance with this Agreement or adjust or settle the same. Madill filed the instant charge on December 22, alleg- ing that Respondent "harassed John Madill on or about August 29, 1980, by issuing him an unwarranted discipli- nary notice, because he engaged in activities on behalf of Steelworkers, Local 4856." According to the General Counsel, "the General Counsel concluded that there' was insufficient evidence linking up the discipline, with the threats " Thus, the complaint alleged only that Respond- ent violated the Act by the threats made to Madill on August 22. Madill did not file a grievance over these events. Madill testified that he did not file a grievance "because in my experience with this company, they will back the foreman, regardless of what the circumstances are, all the way. There would be no relief within that compa- ny." D. Analysis and Conclusions The presentation by employees of a grievance pursu - ant to a collective-bargaining agreement comes within the protection of Section 7 of the Act. See, e g , Laredo Packing Co, 254 NLRB 1 (1981), Ford Motor Co., 251 NLRB 413, 421 (1980); Caterpillar Tractor Co., 242 NLRB 523 (1979). It is well settled that reprisals, or the threat of reprisals, against an employee for pursuing 708 DECISIONS OF NATIONAL LABOR RELATIONS BOARD rights under a grievance procedure are unlawful. Conse- quently, a remark threatening such reprisal constitutes in- terference with employee rights in violation of Section 8(a)(1). See, e.g., Owens Corning Fiberglass Co., 236 NLRB 479, 480-481 (1978); Northwest Drayage Co., 201 NLRB 749, 750-751 (1973); Pullman Incorp., 168 NLRB 230 (1967). The same capacity of union officials or repre- sentatives. See, e.g., Container Corp. of America, 244 NLRB 318 fn. 2 (1979); Litton Systems, 242 NLRB 417 (1979). In the instant case, Madill, acting in the capacity of a union representative, spoke to Yates, a foreman, on behalf of employee Wessen. Madill was following the es- tablished, contractual procedure of discussing the em- ployees' alleged grievance with employees' foreman. Based on the credited testimony of Madill, I find that Walker, upset by an implication that he "played favor- ites" with the overtime list, threatened to watch Madill's work very closely and to "straighten out" Madill. Within the context of their conversation, I can only find that Walker so threatened Madill because Walker was dis- pleased with Madill's words spoken on behalf of Wessen. No other explanation for the reference to watching Ma- dill's job performance is possible. Accordingly, I find that Respondent violated Section 8(a)(1) of the Act. THE REMEDY In cases of unlawful threats in violation of Section 8(a)(1) of the Act the usual Board remedy is a cease-and- desist order and the requirement of the posting of a Board notice. However, for the following reasons I rec- ommended that no remedial order issue. The threat herein was an isolated event. The threat took place 15 months prior to the trial and there is no evidence of any other unfair labor practice 4 Madill has filed many grievances before and after this confrontation. However, no reprisals in furtherance of the threat were taken against Madill. Further, the threat took place in the context of a 30-year-old collective-bargaining rela- tionship. There is no reason to believe that the overall bargaining relationship is not harmonious. The Board simply cannot regulate every in-plant conversation and there is no reason to attempt to do so. As the Board stated in American Federation of Musi- cians Local 76 (Jimmy Wakely Show), 202 NLRB 620, 622 (1973): [I]n view of the increasing need for expedition in the processing of cases, we have concluded that we ought not expend the Board's limited resources on matters which have little or no meaning in effectu- ating policies of this Act. In the years since that decision the necessity for conserv- ing the Board's limited resources has become even more striking. Accordingly, I recommend that no remedial order issue and that the case be closed. CONCLUSIONS OF LAW 1. Respondent Timet, a Division of Titanium , Metals Corporation of America is an employer within the mean- ing of Section 2(2) of the Act, engaged in commerce and in a business affecting commerce within the meaning of Section 2(6) and (7) of the Act. 2. Local 4856 of the United Steelworkers of America, AFL-CIO is a labor organization within the meaning of Section 2(5) of the Act. 3. Respondent violated Section 8(a)(1) of the Act by unlawfully threatening its employee John H. Madill with reprisals because of activities in his capacity as depart- ment grievance committeeman. 4. The circumstances of this case do not require the is- suance of a remedial order. On these findings of fact and conclusions of law and on the entire record in this case, I issue the following recommended5 ORDER It having been found and concluded that further pro- ceedings in this matter are not warranted, it is ordered that the complaint be dismissed. 5 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 4 Cf Browning-Ferris Industries, 259 NLRB 60 (1981), but see also Re- Board and all objections to them shall be deemed waived for all pur- gency at the Rodeway Inn, 255 NLRB 961 (1981) poses