Spann Building Maintenance Co.

SPANN MAINTENANCE CO. Spann Building Maintenance Co. and Veronica Lewis. Case 14-CA-16799 July 15, 1988 SECOND SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND BABSON On April 11, 1984, Administrative Law Judge Marion C. Ladwig issued the attached decision finding that the Respondent, Spann Building Main- tenance Co., violated Section 8(a)(1) of the Act by suspending and later discharging employee Veroni- ca Lewis. The Respondent filed exceptions and a supporting brief. On June 28, 1985, the National Labor Relations Board issued a Decision and Order,' finding that the contentions raised by Lewis could be resolved under the grievance and arbitration provision of the collective-bargaining agreement between the Respondent and the Union that represented Lewis' bargaining unit. The Board further found that the Union had invoked the grievance procedure on Lewis' behalf and that the procedure had not run its course, as the grievance had not been with- drawn or submitted to arbitration. The Board, therefore, deferred to the contractual grievance-ar- bitration procedure the unfair labor practice allega- tions concerning Lewis' discharge. Thereafter, Lewis petitioned the United States Court of Appeals for the Eighth Circuit for review of the Board's Order. On September 17, 1986, the court denied Lewis' petition for review but re- manded the case for the Board "to consider the limited issue of the propriety and extent of the Board's retention of jurisdiction."2 On remand, the Board on June 24, 1987, issued a Supplemental Decision and Order3 revising its prior Order to provide for further consideration of the case in the event that either the Respondent or the Union resisted or impeded prompt processing of Lewis' grievance. Thus, the revised Order4 pro- vided that the Board retained jurisdiction for the limited purpose of entertaining an appropriate and timely motion for further consideration upon a proper showing that either (a) the dis- pute has not, with reasonable promptness after the issuance of this Supplemental Decision and Order, either been resolved by amicable settle- ' 275 NLRB 971 2 Lewis v. NLRB, 800 F 2d 818, 821 (8th Cir 1986). Lewis then peti- tioned the court for rehearing en banc On November 13, 1986, the court denied the petition 284 NLRB 470 Id 915 ment in the grievance procedure or submitted promptly to arbitration, or (b) the grievance or arbitration procedures have not been fair and regular or have reached a result which is re- pugnant to the Act. On February 16, 1988, the General Counsel filed a motion for further consideration. The motion re- quests the Board to consider the case on the merits, as it contends that the Union has refused to pro- ceed to arbitration with the grievance concerning Lewis' discharge and that a purported settlement between the Respondent and the Union did not remedy the alleged unfair labor practice. In sup- port of the motion, the General Counsel attached a letter dated January 6, 1988, from the Union to the Respondent. The letter states that the Union does not intend to pursue Lewis' grievance to arbitra- tion and "considers the matter as settled based on the fact that Lewis was reinstated to employment . . . ." The letter further states that the Union has "no intention of reopening this matter." Also at- tached to the General Counsel's motion is a letter dated January 8, 1988, from the Respondent to a representative of the General Counsel, enclosing the Union's letter. Based on the Union's letter, the Respondent's letter contends that the Board should defer to the settlement agreement between the Re- spondent and the Union, citing Alpha Beta Co., 273 NLRB 1546 (1985). The Respondent's letter asserts that, while Lewis quit 30 days after she was rein- stated, the Respondent has about 1000 employees who are represented by the Union, and it would be a destructive influence on the parties' bargaining relationship if the Union were to proceed to arbi- tration when it does not deem grievances to be meritorious or when an equitable resolution can be reached short of arbitration. ' On February 24, 1988, the Respondent filed a cross-motion for dismissal and opposition to the General Counsel's motion for further consideration, contending that the Board should defer to the set- tlement of the grievance and dismiss the complaint. The Respondent argues that deferral to the settle- ment will effectuate the purposes of the Act for the reasons stated in its January 8 letter. The Respond- ent further contends that the collective-bargaining process would be undermined if a grievant can cir- cumvent the grievance process for her personal benefit and to the detriment of the collective good. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. Having considered the General Counsel's motion and the Respondent's cross-motion and opposition, we decline to defer to the asserted settlement. Con- 289 NLRB No. 118 916 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD trary to the Respondent, we find Alpha Beta inap- posite. In Alpha Beta, the union filed grievances on behalf of a number of discharged employees. The union pursued the grievance procedure and, as a result of discussions between the union and the dis- charged employees' employers and with the in- formed consent of the affected employees, an agreement was reached providing that 15 of the employees would be reinstated without backpay and 4 would be considered voluntary quits. The employees thereafter filed unfair labor practice charges, but the Board deferred to the grievance settlement and dismissed the complaint. Unlike Alpha Beta, however, in the present case we do not find that the grievance was settled. As recounted in our Decision and Order in this case, the Union filed a grievance over Lewis' discharge and discussed resolution of the grievance with the Respondent, but the Respondent's settlement offer was rejected by the Unions After further efforts to reach an acceptable settlement failed, Lewis filed an unfair labor practice charge. After the charge was filed the Respondent's personnel manager twice contacted Lewis directly and offered her re- instatement at a different work location. Lewis fi- nally accepted this offer. There was no mention that the reinstatement was to constitute settlement of the grievance, and neither Lewis nor the Union withdrew the grievance. Thus, the alleged disposi- tion of the grievance here differs from the settle- ment in Alpha Beta in that it was neither negotiated by the Union, a party to the contractual grievance and arbitration procedure, nor approved as the set- tlement of the grievance by the affected employee who instituted the charge. It is apparent from this sequence of events that Lewis' reinstatement did not constitute a settlement of the grievance. Rather, after Lewis filed the unfair labor practice charge, the Respondent, out- side the channels of the grievance procedure and without involving the Union, contacted Lewis di- rectly and arranged for her to resume working. This was clearly an effort by the Respondent to limit its potential backpay liability in the event that Lewis prevailed in her unfair labor practice case. This informal arrangement, entered into without the involvement of the Union, which was the grievant in the grievance proceeding, did not pur- port to be a settlement of the grievance. That the Union some 4-1/2 years later now states that it considers the matter settled because Lewis was re- instated does not retroactively change the nature of the Respondent's arrangement with Lewis and transform it into a settlement. Additionally, we are not persuaded by the Re- spondent's arguments that the Board's failure to defer and to dismiss the complaint would be detri- mental to the collective-bargaining process and to its relationship with the Union. Having found that the grievance was not settled or otherwise re- solved, we have nothing to which to defer. More- over, while the Board's deferral policy, as stated in United Technologies Corp., 268 NLRB 557 (1984), and Olin Corp., 268 NLRB 573 (1984), attempts to accommodate the Board's statutory mandate with private grievance-arbitration procedures established by contract, the Board does not defer to all griev- ances, regardless of their nature or disposition, in order to avoid any possible interference with the grievance-arbitration process. As the Union has made clear that it will proceed no further in its grievance over Lewis' discharge and we find that the grievance was not settled, we find it appropriate, consistent with the terms of the Order previously entered in this case, to determine the merits of the complaint. Having considered the judge's decision and the record in light of the ex- ceptions and briefs, we find, for the reasons stated by the judge, that the Respondent's suspension and discharge of Lewis violated Section 8(a)(1) of the Act. We, therefore, affirm the judge's rulings, find- ings,6 and conclusions and adopt his recommended Order.7 ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, Spann Building Maintenance Co., St. Louis, Missouri, its officers, agents, successors, and assigns, shall take the action set forth in the Order. 6 The Respondent has excepted to some of the judge's credibility find- ings The Board's established policy is not to overrule an administrative 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 have carefully examined the record and find no basis for reversing the findings 7 In accordance with our decision in New Horizons for the Retarded, 283 NLRB 1173 (1987), interest on and after January 1, 1987, shall be computed at the "short-term Federal rate" for the underpayment of taxes as set out in the 1986 amendment to 26 U S C. § 6621 Interest on amounts accrued prior to January 1, 1987 (the effective date of the 1986 amendment to 26 U S C § 6621 ), shall be computed in accordance with Florida Steel Corp, 231 NLRB 651 (1977) Robert S. Seigel, Esq., for the General Counsel. John J. Gazzoli Jr., Esq. (Lewis & Rice), of St. Louis, Mis- souri, for the Respondent. s See 275 NLRB 971. SPANN MAINTENANCE CO. 917 DECISION STATEMENT OF THE CASE MARION C. LADWIG, Administrative Law Judge. This case was tried at St. Louis, Missouri, November 14, 1983.1 The charge was filed by Veronica Lewis June 23 and the complaint was issued July 28. The Company dis- charged cleaning service worker Lewis for engaging in a heated discussion with her supervisor over his transfer- ring her, without her consent, to a distant job seniority. The Company and Union failed to settle a grievance challenging the discharge, and no one seeks to take the unsettled grievance to arbitration. The primary issues are (a) whether the Company, the Respondent, unlawfully suspended and discharged Lewis for engaging in protected concerted activity in violation of Section 8(a)(1) of the National Labor Relations Act, and (b) whether the case should be deferred to the arbi- tral forum. On the entire record, including my observation of the demeanor of the witnesses, and after consideration of the briefs filed by the General Counsel and the Company on both the merits and in response to a Notice to Show Cause on the deferral issue, I make the following FINDINGS OF FACT 1. JURISDICTION The Company, a Missouri corporation, cleans and maintains commercial buildings in the St. Louis, Missouri area, where it annually receives goods valued over $50,000 directly or indirectly from outside the State and performs services valued over $50,000 for enterprises either located outside the State or located within the State and receiving goods valued over $50,000 directly from outside the State. The Company 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 and that Service Employees International Union, Local No. 50, AFL-CIO (the Union) is a labor organization within the meaning of Section 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES A. Suspension and Discharge of Lewis 1. Seniority rights disregarded Cleaning service worker Veronica Lewis was em- ployed under the Union's multiemployer collective-bar- gaining agreement (G.C. Exh. 2), which specifically pro- vided for job security (sec. 8.01) and that "No employee shall be transferred except by mutual consent" (sec. 8.02). Since her first employment in 1979, she had been transferred twice from one job to another, but each time with her consent. (Her seniority dated from March 2, 1981, when she was rehired after having a baby.) Since June 1, 1981, she had been working in the Mera- mec building, one of the 7-Up Company's buildings in Clayton, Missouri. Her job seniority (next to the highest among the cleaning employees in that building) entitled ' All dates are in 1983 unless otherwise indicated her to remain on that job unless she consented to a trans- fer. In January, after rebidding the 7-Up account, the Company decided to ignore the employees' job seniority at the Meramec building. The new contract, effective February 1, called for a reduction in the cleaning staff from 26 to 15 workers at the Meramec and the next-door Headquarters building (connected by an overhead walk- way). As acknowledged in the Company's brief, "To effect the reduction, and to ensure that 7-Up was given the best service possible, Respondent's officials instructed the supervisor at the 7-Up account, Dave Kipping, to select the best workers, regardless of seniority, and to lay off the rest, notwithstanding language in the current union contract" that "questioned the propriety" of ignor- ing seniority. In the latter part of January, Project Supervisor Kip- ping changed Lewis' job assignment, first reassigning her work in the Meramec bulding and then assigning her work in the Headquarters building. He told her that under the new 7-Up contract, some of the employees would have to go, but he did not reveal his decision to lay her off. On January 26, she submitted a grievance to him, complaining about someone else being assigned to do her work (G.C. Exh. 3). As she credibly testified, she showed him a copy of the union agreement, pointing out the part "that you have to ask a person" before making a transfer, unless "they lose the whole contract complete- ly." Kipping responded that he did not want to look at it and "said he'd do what he wanted to do." (Tr. 24.) (I discredit his claim that when Lewis handed him the grievance, he merely said "Fine" and did not discuss it (Tr. 84-85).) The next evening, January 27, Supervisor Kipping in- formed Lewis that she was being transferred (Monday, January 31) to West Port Plaza. "I told him that he can't transfer me without my permission," that "I can't go to West Port Plaza for the simple reason that my car is rag- gily," and that the buses do not run out there in the eve- nings. Kipping "said that's how it is and that's how it's going to be." Then when she said she did not want to work at West Port Plaza and was not going, he stated, "You don't have to go to West Port Plaza but you're not going to be working here." (Tr. 26.) (I discredit Kip- ping's claim that he merely referred her to personnel when she asked why she was being transferred (Tr. 87). Lewis impressed me most favorably as an honest, forth- right witness, and I credit her version of the conversa- tion.) The next morning, January 28, Lewis called from her day job and talked to Personnel Manager Suzanne Bopp, who said that Kipping had told Bopp that Lewis and her sister (Stephanie Sykes) were "available to go" to West Port Plaza. Lewis denied telling Kipping that she wanted to go there. That Friday evening, January 28, was to be her last day at the 7-Up account, where she had public transpor- tation. Although her seniority entitled her to remain at her Meramec building job unless she consented to a transfer, her supervisor was ignoring her seniority and had told the personnel manager that she was available 918 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD for transfer to the distant assignment, beyond the evening bus line. There was no job steward to assist her in protecting her seniority rights. She had already filed a grievance, complaining about being reassigned, but since then she had learned that the Company was compelling her to take the distant transfer or be laid off, despite her contractual rights. It was under these circumstances that Lewis met with Project Supervisor Kipping to invoke her seniority rights under the collective-bargaining agreement. 2. Job seniority invoked When Lewis arrived at work Friday, July 28, on the 5:30 p.m. shift, John Harris (another service worker in the Meramec building) told her that Dave Kipping wanted to see Harris at the end of the evening shift, but that no, he was not waiting because "they was saying that somebody was taking over his job." Lewis followed Harris to Kipping's basement office in the Headquarters building and waited outside the supervisor's open door, out of Kipping's view. (Tr. 33-34.) Kipping confirmed Harris' layoff. Harris became en- raged and loudly protested. He questioned Kipping's waiting until "I get through doing my work" that evening "and then just ship me off to West Port Plaza" (Tr. 36). Lewis then entered the office and asked Kipping why he told Personnel Manager Bopp that Lewis was avail- able to go to West Port Plaza (in effect, disputing Kip- ping's denial). In a louder than normal voice, Lewis "asked him how in the hell was he going to put less se- niority in my place and I'm the second highest seniori- ty." In his usual loud voice, Kipping responded that was how it was going to be. She showed him the union agreement and told him, "You have to ask the person, do they want to transfer," but Kipping again responded "that's how it is and that's how it's going to be." (Tr. 36, 42.) (Kipping claimed that Lewis instead said, "goddamn you, you don't tell me a goddamn thing" why she was being transferred (Tr. 92, 115), but Lewis credibly denied using the word "goddamn" (Tr. 174).) Harris (who did not testify) then resumed his loud pro- tests until the 7-Up contact representative Allen Dorsey (who also did not testify) came downstairs and entered the office. Kipping's testimony is undisputed that Harris was very loud, profane, and abusive, and leaned over Kipping's desk, causing Kipping to feel physically threat- ened (Tr. 91). Kipping directed Harris to go back to work. When Dorsey entered, he said they were getting too loud and that they would have to keep the noise down (Tr. 37, 62). As Lewis credibly testified, Harris told Dorsey something like "You ain't got nothing to do with this." Kipping said he would take care of it, and Dorsey left. After some further conversation, Harris also left. Before leaving the office, Lewis spoke to Kipping's as- sistant Jim Weiniecke (who had walked in), repeating the question, "How in the hell are you going to put less se- niority in my place?," without any response (Tr. 38). 3. The suspension and discharge Shortly after the incident in his office, Supervisor Kip- ping went to the Meramec building (where Lewis was getting a soda before going to work) and told both Harris and Lewis that they were suspended for further investigation. A security guard escorted Harris from the property and Kipping escorted Lewis. (Tr. 40, 63, 95.) Kipping testified that his only reason for suspending Lewis was the January 28 incident in his office (Tr. 124). On January 31, Kipping prepared a written report of the incident, delivered it (with the 7-Up security incident report) to Personnel Manager Bopp, and discussed it with her (Tr. 137). On February 4, the Company sent Lewis a discharge letter, stating that her employment "has been terminated effective 2/3/83 due to improper conduct and the use of abusive language to the customer and to your supervisor" (G.C. Exh. 5). At the trial, Personnel Manager Bopp testified that the January 28 incident was the sole basis for the discharge (Tr. 163) and that she and President R. L. Hardy (who did not testify) relied on Supervisor Kipping's report and the 7-Up security incident report in deciding to dis- charge Lewis (Tr. 137). I note, however, that there is nothing in either report to support the statement in the discharge letter that Lewis used "abusive language to the customer." (The General Counsel does not contend that the Company unlawfully discharged Harris, who did shout at the 7-Up representative Dorsey and who has withdrawn the grievance challenging his discharge.) Kipping's January 31 report (R. Exh. 2) asserts that Lewis "became loud, abrasive and used profane lan- guage," without mentioning any abusive language to the customer. The 7-Up security incident report (R. Exh. 3), introduced in evidence as a document on which the Company relied in making its decision to discharge Lewis (Tr. 101), refers to misconduct of Harris-not Lewis-toward Dorsey. It states that it was prepared at 7:15 p.m., January 28, and that At 6:05 PM it was reported to security Guard Cole by 7-Up contracting manager Allen Dorsey that a disturbance was in progress on P-1 level. I immediately responded to P-1 where I was met by Spann Supervisor David Kipping who stated that he wanted Spann employees Veronica Lewis and John Harris removed from the premises . I then pro- ceeded to the Meramac building to tell John Harris to leave the building. He stated to me that I was lying and he wasn't going to leave because his su- pervisor told him to stay and work. . . . I then pro- ceeded immediately to escort him out ... . I then located Allen Dorsey to get his statement on what happened to cause the incident . He stated that he was getting supplies on P-1 level when he heard loud voices and bad language being used. He then stated that he instructed Spann employee John Harris that his actions were not permitted on 7-Up property. He then told Allen Dorsey that the situa- tion was none of Allen Dorsey's damn business. Allen Dorsey then stated that he went for security personnel. SPANN MAINTENANCE CO 919 Security guard Cole did not testify. Whether or not his report was accurate, there is nothing in it to support the claim that Lewis used abusive language to the customer. I therefore find that this purported reason for Lewis' dis- charge was pretextual. I also note that by the time of trial, Supervisor Kip- ping had fabricated another purported reason for sus- pending Lewis. Although he made no mention of it in his January 31 report, Kipping claimed that when Allen Dorsey entered his office January 28, Dorsey said that "these people have got to leave, now" (Tr. 93). He re- peated this claim on cross-examination. "He said John and Veronica will have to go. They're going to have to leave. We cannot tolerate them here . . . . He said most definitely they will have to leave . . . . I do not remem- ber what I told the Board agent, but Mr. Dorsey did tell me they'd have to leave the building." (Tr. 119-120.) This testimony was obviously fabricated to bolster the company defense. If the 7-Up representative had said that Harris and Lewis must leave the building at once, undoubtedly Kipping would not have flouted the order by instructing Harris (or Harris and Lewis) to return to work. According to Kipping, "I told [Harris] at that time to go back to his station and to begin work . . . . Be- cause I did not want to suspend him in front of other service workers. I didn't think it was professional and I didn't want to embarrass him." When asked about Lewis, Kipping claimed, "Same way, yes. I told them to go back to their stations. I . . . would not rcpnmand or tell anyone they were suspended in front of other people." (Tr. 94.) (Kipping claimed that an employee and an un- known person with a service cart were standing outside the door (Tr. 117).) I discredit, as an afterthought, Kipping's claim that Dorsey told him that Harris and Lewis must leave the building. (By his demeanor on the stand, Kipping ap- peared willing to give whatever testimony might help the Company's cause.) I also discredit Kipping's claim that Dorsey was standing outside the office door when Lewis entered (Tr. 118), that Dorsey was standing there when she made her protest (Tr. 116), and that before en- tering the office, Dorsey went upstairs and got the secu- rity guards (Tr. 93). 4. Contentions and concluding findings The General Counsel contends that when Veronica Lewis protested her layoff to Supervisor Dave Kippmg on January 28, she was endeavoring to enforce the pro- visions of the collective-bargaining agreement and was engaged in protected concerted activity. Citing Interboro Contractors, 157 NLRB 1295 (1966), enfd. 388 F.2d 495 (2d Cir. 1967), the General Counsel argues that "The fact that Lewis' complaint to Supervisor Kipping . . was made by Lewis alone does not make her conduct any less concerted." He also argues that under the au- thorities, Lewis' use of a mild epithet, "how in the hell" (or even "goddamn," as claimed by Kipping) "was not so flagrant or egregious to warrant the removal of the Act's protection." The Company contends that Lewis' conduct was nei- ther concerted (being mere "personal gripes about her job alone") nor protected. Although conceding that "It is well settled that employees cannot lawfully be dis- charged for rude or impertinent conduct in the course of presenting grievances to an employer," the Company contends that Lewis crossed the line of protected activi- ty "when she chose to join Harris on January 28 in the verbal and physical intimidation of Kipping, her supervi- sor, in a public location, in front of other employees and an important customer representative, Allen Dorsey." Despite her later reinstatement, the Company contends that her "vituperative behavior" rendered her "unfit for future service." Relying on discredited testimony, the Company contends that most important, Dorsey "could hear the profanity and uproar and demanded that Lewis and Harris be removed from the premises." The Compa- ny also contends that "Lewis' outburst was violent, loud, and abusive" and that "she was discharged for her public disturbance, which threatened customer relations." The credible evidence does not support these contentions. I find that Lewis made a reasonable and honest at- tempt to persuade Supervisor Kipping in the January 28 meeting to honor her job seniority under the collective- bargaining agreement, and that in doing so, she was en- gaged in concerted activity. NLRB v. City Disposal Sys- tems, 465 U.S. 822, 841 (1984). In this recent decision, the United States Supreme Court held that The NLRB's Interboro doctrine recognizes as concerted activity an individual employee's reasona- ble and honest invocation of a right provided for in his collective-bargaining agreement. We conclude that the doctrine constitutes a reasonable interpreta- tion of the Act. The remaining question is whether Lewis was engaged in protected activity when she protested to Supervisor Kipping in his office, in a louder than normal voice, "how in the hell" was he going to put an employee with less seniority in her place (or, as claimed by Kipping, told him "goddamn you, you don't tell me a goddamn thing"). Although as many as two employees may have overheard Lewis' remark through the open door, it was not overheard by the 7-Up representative Dorsey, who arrived later when employee Harris was using "very loud, profane, and abusive" language and who stated they would have to keep the noise down. In City Disposal Systems (465 U.S. at 837), after up- holding "the Board's judgment that the employee is en- gaged in concerted activity" when his statement or action is based on a reasonable and honest belief in a col- lectively bargained right, "just as he would have been had he filed a formal grievance," the Supreme Court noted that "An employee may engage in concerted activ- ity in such an abusive manner that he loses the protec- tion of § 7" of the Act, citing Crown Central Petroleum Corp. v. NLRB, 430 F.2d 724, 729 (5th Cir. 1970). Crown Central involved the disciplining of two em- ployees for statements they made during a grievance meeting. The court of appeals (430 F.2d at 729) ruled that "An employee may not act with impunity even though he is engaged in protected activity. His rights, derived from Section 7, must be balanced against the em- ployer's right to maintain order in his business by punish- 920 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ing acts of insubordination." In approving "the balance struck by the Board," the court observed (at 730) that "On the employer's side of the scale lies the injury done the Company by intemperate and insubordinate remarks directed toward a supervisor during a grievance meeting and in the presence of four other employees"-distin- guishing a situation in which "all the plant employees were present." The court ruled (at 731) that Here the remarks were pertinent to a discussion of the grievance under consideration at the meeting. "[A]s long as the activities engaged in are lawful and the character of the conduct is not indefensible in the context of the grievance involved, the em- ployees are protected under § 7 of the [A]ct." Nei- ther do we think the language used by Harris and Gilliam was so opprobious as to carry them "beyond the pale" of the Act's protection. It has been repeatedly observed that passions run high in labor disputes and that epithets and accusations are commonplace. Grievance meetings arising out of disputes between employer and employee are not calculated to create an aura of total peace and tran- quility where compliments are lavishly exchanged. As found by the court (at 726), employee Harris stated or implied in the meeting involving his own grievance that the supervisor's denial that overtime was ordered was a lie, that Harris used profanity in doing so, and that he reminded the supervisor and other company repre- sentatives "that they would be called upon after death and in the hereafter-in a bargaining session yet to come-to answer for their earthly prevarications." The court enforced the Board's Order, upholding the finding that the company violated Section 8(a)(1) by giving Harris a reprimand and warning for "abusive and insub- ordinate language directed at supervisor" and by giving employee Gilliam (chairman of the Workmen's Commit- tee) a 1-day suspension for having tolerated and joined in Harris' conduct. Here, cleaning service worker Lewis was, in the ab- sence of a union steward on the job, presenting her own protest or oral grievance to Supervisor Kipping in his office. Her remarks were pertinent to her protest that her job seniority rights under the union agreement were being violated. I find it clear that her conduct was not "indefensible" in the context of the discussion, and that her language "how in the hell" (or, as claimed by Kip- ping, "goddamn you, you don't tell me a goddamn thing") was not "so opprobrious to carry" her "beyond the pale" of her Section 7 rights. I therefore find, on bal- ancing her Section 7 rights "against the employer's rights to maintain order in his business by punishing acts of in- subordination," that the Company suspended her January 28 and discharged her February 3, 1983, for engaging in protected concerted activity, in violation of Section 8(a)(1) of the Act. In view of this finding, I find it un- necessary to rule on whether the suspension and dis- charge also violated Section 8(a)(3). B. The Deferral Issue 1. Unresolved grievance Section 5.02 of the collective-bargaining agreement (G.C. Exh. 2) provides that "The Employer agrees that he will not discharge any employee except for justifiable reason, which reason shall be given to the employee im- mediately upon discharge." Section 19.01 of the Grievance and Arbitration Proce- dure provides that "a grievance is defined as an employ- ee or Union's dispute, claim or complaint involving the interpretation or application of the provisions of this agreement"; that "the Employer and the Union shall make an honest and sincere effort to adjust" such a dis- pute "in an amicable manner"; and that if they are unable to do so, "the question may, at the option of the Union," be submitted to arbitration. The agreement is silent on the disposition of a dispute if the grievance remains unre- solved in the three-step grievance procedure and the Union, as in the present case, takes its option not to submit the question to arbitration and fails to proceed with the selection of an arbitrator. (The agreement does not provide in this event for withdrawal or settlement of the grievance, or for acceptance of the Employer's last offer.) Lewis did not file a grievance contesting her termina- tion, but the Union did file a grievance under Section 19.01, naming "Local 50" as the aggrieved party, alleg- ing the "unjust discharge of John Harris and Ms. V. Lewis." The Company and Union held the second-step meeting February 15 (R. Exh. 15); the Union submitted a request for an arbitration panel in the Lewis case March 10 (R. Exh. 16); the parties held the third-step meeting April 7; and on May 5, the Union notified the Company that in the Harris case "The Union hereby withdraws this grievance" (R. Exh. 17). In the April 7 meeting, the Company offered to settle the Lewis discharge grievance by offering her reinstate- ment at a different place, without backpay or seniority. The Union's spokesman, Research Specialist Margaret McCann, stated that Lewis' seniority would be a key to settling the grievance. (Tr. 179, 185.) After checking with Lewis, McCann stated in the May 5 letter to the Company that "The settlement offer was unacceptable, therefore, we need to select an arbitrator for the case" (R. Exh. 17). Meanwhile, although McCann continued to seek a sat- isfactory settlement, she notified Lewis (but not the Company) that a union in-house panel had voted that the grievance was not arbitrable. McCann explained that the Union's "first criteria is getting people their jobs back," and "she could have her job back" under the Company's offer (but at a different location and without backpay, se- niority, or other benefits). (Tr. 191-192.) She testified positively that the Union was not arbitrating the case (Tr. 191). In a telephone conversation on May 31, Personnel Manager Bopp told McCann that the Company would offer Lewis a job in the nearby Blue Cross building on Forest Park, but without her prior seniority (Tr. 181- 182). McCann confirmed this offer in writing (stating in SPANN MAINTENANCE CO. 921 her June 1 letter to Bopp reviewing the stats of several grievances that in the Lewis case, "Settlement pending: Reinstatement to former position in another building" (R. Exh. 18), but the Union continued to insist upon the res- toration of Lewis' seniority as a condition for settling the grievance (Tr. 185). Lewis was also asking for vacation pay (Tr. 158). Finally on June 16 (over 4 months after the discharge), Personnel Manager Bopp reaffirmed the Company's posi- tion in writing offering in settlement of the grievance re- instatement at another place, without backpay, seniority, or vacation pay. She offered again to place Lewis in the Blue Cross building, with the "date she starts work" to "become her new seniority date." (R. Exh. 19.) Lewis refused the settlement offer, and the grievance remained unresolved (Tr. 188-189). 2. Reinstatement after charge filed On June 23 , a week after the Company 's last offer to settle the grievance, Lewis filed the charge in this pro- ceeding. About a week later, Personnel Manager Bopp tele- phoned Lewis about filing the charge . As Lewis credibly testified, "I say yes, that's right because .. . you didn't give me backpay, you didn't give me my seniority, and you didn't give me my vacation checks, you didn't give me nothing ." At that point (as Lewis further testified without any rebuttal), Bopp stated "we'll [also] give you your vacation checks and we'll give you your seniority back." Lewis, having been off the job about 5 months, refused to settle the charge on that basis . (Tr. 171.) Lewis remained off the job another month until Per- sonnel Manager Bopp again contacted her, a few days before the complaint was issued July 28. When Lewis re- turned the call July 25, Bopp offered to reinstate her August 1 at the Blue Cross building-without backpay, without the previously offered seniority and vacation pay, and without any mention of settling either the pend- ing NLRB charge or the unresolved grievance. Lewis agreed and returned to work August 1. (Tr. 172-173.) 3. Contentions of the parties on deferral In his brief on the merits, the General Counsel disputes the Company's defense that a settlement of Lewis' griev- ance forecloses a Board remedy. He contends that the argument is frivolous because it is "patently obvious" that there was never a settlement of the grievance. "It is abundantly clear that Respondent's reinstatement of Lewis on August 1" was not in settlement of the griev- ance, but "was designed solely to toll Lewis' backpay after the instant charge had been filed." In its original brief, the Company proffered two theo- ries for arguing that the Lewis grievance was settled. First, after citing McCann's disclosure at the trial that the Union decided to forgo arbitration because of the re- instatement offer, the Company goes outside the record and asserts-without citing any supporting evidence- that "it is generally understood that failure to arbitrate constitutes a settlement of the grievance on the basis of Respondent's last offer." Second, contrary to the undis- puted evidence, the Company argues that Lewis was re- instated as a result of a settlement of her grievance. Both parties later filed briefs in response to my March 1, 1984 Notice to Show Cause "whether the issues in this case should be deferred to the grievance-arbitration pro- visions of the collective-bargaining agreement, with the Board retaining jurisdiction for the limited purpose stated" in the recent Board decision in United Technol- ogies Corp., 268 NLRB 557 (1984). In his response, "the General Counsel vigorously op- poses deferral of this case to the grievance-arbitration procedure," contending that immediate remedial action is critical to protect Lewis' own statutory rights and to prevent other employees from being discouraged in the exercise of their statutory rights. He argues that the first and foremost reason "this case should not be deferred to the parties' grievance-arbitration procedure is that this procedure has already been utilized by the parties with- out any resolution of the issue having been reached." Furthermore, nothing in United Technologies "disturbs the settled tenet that deferral requires two parties to the grievance-arbitration procedure ready and willing to process the grievance through arbitration." Here the Company does not seek arbitration; "the Union has no intention of pursuing Lewis' grievance through any fur- ther steps of the grievance procedure"; and it would not be appropriate to defer but retain jurisdiction for further consideration on a showing that the dispute "has not .. . been resolved by amicable settlement of the grievance or submitted promptly to arbitration." The General Counsel also contends that the operative events occurred over a year ago; the case was tried well before the decision in United Technologies was issued, and forcing the Company and Union "to, in effect, relitigate this entire case in an- other forum would be, at best, fundamentally unfair and a gross drain upon the parties' resources." The Company in its response continues to argue that a settlement was reached and that Lewis was reinstated "as a result" of that settlement. It erroneously contends that Union Representative McCann testified that the Union was "satisfied" with the reinstatement offer (to a different place, without backpay, accrued seniority, or vacation pay)-contrary to the undisputed evidence that both the Union and Lewis continued to seek a satisfac- tory settlement after the Union's no-arbitration decision was reached. It also erroneously contends that "Only after the offer was accepted did Miss Lewis or the union representative convey any disagreement to the Compa- ny"-contrary to the undisputed evidence that the offer for reinstatement alone, as well as the offer for reinstate- ment plus seniority and vacation pay to settle the NLRB charge, was rejected until weeks later when the Compa- ny again made the reinstatement offer, not to settle either the grievance or charge, but obviously to toll backpay. Although the Company does not seek arbitration, it argues that the "spirit of deferral is clearly in line with the policies expressed by the Board in United Technol- ogies," and contends that "the Board should defer to the resolution of this dispute through the contractual griev- ance-arbitration machinery" (i.e., defer to the purported settlement). 922 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 4. Concluding findings on deferral The Company and Union have agreed to a dispute res- olution machinery, but submission to arbitration is at the Union's option. The collective-bargaining agreement does not provide for withdrawal or settlement of a griev- ance, or for acceptance of the Company's last offer, if the parties reach a deadlock in resolving the grievance and no arbitration is held. Because of the Union's "first criteria in getting people their jobs back," it decided (without informing the Com- pany) that Lewis' discharge grievance was not arbitrable in view of the Company's offer to reinstate her-at a dif- ferent location, without backpay, seniority, or vacation pay. The Union and Lewis continued to seek a more sat- isfactory settlement of the grievance, until a deadlock was reached when the Company reaffirmed its decision in its June 16 letter not to offer more than reinstatement alone and the settlement offer was rejected. It was a week after this deadlock in settlement efforts that Lewis filed her NLRB charge. About a month later, the Company offered (and Lewis accepted) reinstate- ment, not in settlement of either the charge or the griev- ance, but to toll any backpay. Neither the Company nor the Union seeks arbitration of the grievance. In United Technologies Corp., above, 268 NLRB 557 at 560, in contrast to this case, the respondent employer "expressed its wilingness, indeed its eagerness, to arbi- trate the dispute." There, the employer (id. at 557) denied the union's grievance at the third step, the union withdrew its grievance "without prejudice"; the employ- er filed its own grievance to protest the union's refusal to withdraw the grievance "with prejudice"; and the union refused the employer's request to arbitrate the matter. The Board ruled (at 559) that Where an employer and a union have voluntarily elected to create dispute resolution machinery cul- minating in final and binding arbitration, it is con- trary to the basic principles of the Act for the Board to jump into the fray prior to an honest at- tempt by the parties to resolve their disputes through that machinery. For dispute resolution under the grievance-arbitration process is as much a part of collective bargaining as the act of negotiat- ing the contract. In our view, the statutory purpose of encouraging the practice and procedure of col- lective bargaining is ill served by permitting the parties to ignore their agreement and to petition this Board in the first instance for remedial relief. In the present case, the charge was not filed until the parties made an honest attempt over a 4-month period to resolve the Lewis discharge grievance through the dis- pute resolution machinery, but failed to reach a settle- ment. The Union exercised its contractual option not to take the grievance to arbitration . The Company is not seeking a deferral to the arbitral forum , but is seeking a deferral to a purported settlement. In effect, the Company is seeking to graft unto the grievance-arbitration procedure a waiver provision that a failure to arbitrate constitutes a settlement of the griev- ance on the basis of the Company 's last offer . That is a matter for negotiations, not something to be inferred. As negotiated, Section 19.01 of the collective-bargaining agreement gives the Union an unrestricted option, stating that "representatives of the Employer and the Union shall make an honest and sincere effort to adjust [the grievance] in an amicable manner. In the event, howev- er, of the inability of the Employer and the Union to reach an agreement on the issue in dispute, the question may, at the option of the Union," be submitted for arbi- tration. Having found that the charge was not filed until all the dispute resolution machinery required by the collec- tive-bargaining agreement had been utilized without any resolution of the Lewis discharge grievance being reached, and that neither the Company nor the Union is seeking arbitration of the grievance, I find that the poli- cies of the Act would not be effectuated by deferring this case to the arbitral forum. CONCLUSIONS OF LAW 1. By suspending Veronica Lewis January 28 and dis- charging her February 3, 1983, for engaging in protected concerted activity, the Company engaged in unfair labor practices affecting commerce within the meaning of Sec- tion 8(a)(1) and Section 2(6) and (7) of the Act. 2. The policies of the Act would not be effectuated by deferring this case to the arbitral forum. REMEDY Having found that the Respondent has engaged in cer- tain unfair labor practices, I find it necessary to order it to cease and desist and to take certain affirmative action designed to effectuate the policies of the Act. The Respondent, having unlawfully suspended and dis- charged an employee, must make her whole for any loss of earnings and other benefits, computed on a quarterly basis from date of suspension to date of her reinstate- ment, less any net interim earnings , as prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), plus interest as computed in Florida Steel Corp., 231 NLRB 651 (1977). On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed2 ORDER The Respondent, Spann Building Maintenance Co., St. Louis, Missouri, its officers, agents, successors, and as- signs, shall 1. Cease and desist from (a) Suspending, discharging, or otherwise disciplining any employee for engaging in protected concerted activi- ty. 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 SPANN MAINTENANCE CO 923 (b) In any like or related manner restraining or coerc- ing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Make Veronica Lewis whole for any loss of earn- ings and other benefits suffered as a result of the discrim- ination against her, in the manner set forth in the remedy section of the decision. (b) Remove from its files any reference to the unlawful discharge and notify the employee in writing that this has been done and that the discharge will not be used against her in any way. (c) Preserve and, on request, make available to the Board or its agents for examination and copying, all pay- roll records, social security payment records, timecards, personnel records and reports, and all other records nec- essary to analyze the amount of backpay due under the terms of this Order. (d) Post at its facilities in the St. Louis, Missouri area, copies of the attached notice marked "Appendix."3 Copies of the notice, on forms provided by the Regional Director for Region 14, after being signed by the Re- spondent's authorized representative, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respond- 3 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading "Posted by Order of the Nation- al Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " ent to ensure that the notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. IT IS FURTHER RECOMMENDED that the complaint be dismissed insofar as it alleges violations of the Act not specifically found. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has or- dered us to post and abide by this notice. WE WILL NOT suspend, discharge, or otherwise disci- pline any employee for invoking seniority rights under the union agreement. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. WE WILL make Veronica Lewis whole for any loss of earnings and other benefits resulting from her suspension and discharge, less any net interim earnings, plus interest. WE WILL notify her that we have removed from our files any reference to her suspension and discharge and that the suspension and discharge will not be used against her in any way. SPANN BUILDING MAINTENANCE CO.