Emerson Electric Co.

296 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Emerson Electric Co. and Gary S. Minard. Case 14- CA-13030 August 18, 1980 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND TRUESDALE On March 20, 1980, Administrative Law Judge Frank H. Itkin issued the attached Decision in this proceeding. Thereafter, Respondent filed excep- tions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings,' and conclusions of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the Respondent, Emerson Elec- tric Co., St. Louis, Missouri, its officers, agents, successors, and assigns, shall take the action set forth in said recomended Order, except that the at- tached notice is substituted for that of the Adminis- trative Law Judge. I Respondent has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an administrative law judge's resolutions with respect to credi- bility unless the clear preponderance of all of the relevant evidence con- vinces us that the resolutions are incorrect. Standard Dry Wall Products. Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing his findings. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing at which all sides had an opportu- nity to present evidence and state their positions, the National Labor Relations Board found that we have violated the National Labor Relations Act, as amended, and has ordered us to post this notice. WE WILL NOT discourage membership in In- ternational Union of Electrical Workers, Local 1102, AFL-CIO, or any other labor organiza- 251 NLRB No. 50 tion, by discriminatorily laying off any of our employees because they have engaged in union or other protected concerted activities, or in any like or related manner discriminate against our employees with respect to their hire or tenure of employment or any term or condi- tion of employment. WE WILL NOT tell our employees that they are being laid off in order to retaliate against employees for engaging in union or other con- certed activities. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employ- ees in the exercise of thier Section 7 rights under the Act. WE WILL make whole employee Joseph M. Barnett for any loss of earnings he may have suffered as a result of our unlawful action on October 1, 1979, with interest. EMERSON ELECTRIC CO. DECISION FRANK H. ITKIN, Administrative Law Judge: An unfair labor practice charge was filed in this case on Oc- tober 2 and a complaint issued on November 2, 1979. A hearing was conducted in St. Louis, Missouri, on De- cember 18, 1979. General Counsel alleges that Respond- ent Emerson Electric Co. violated Section 8(a)(1) and (3) of the National Labor Relations Act, as amended, by laying off employee Joseph M. Barnett for a portion of his scheduled shift on October 1, 1979, in order to retali- ate against employees for engaging in protected concert- ed and union activities and, further, by making certain coercive statements to employees concerning this inci- dent on the same day. Respondent denies that it has vio- lated the Act as alleged. Upon the entire record, including my observation of the witnesses, and after due consideration of the briefs filed by counsel, I make the following findings of fact and conclusions of law: FINDINGS OF FACT Respondent Emerson Electric Co. is admittedly an em- ployer engaged in commerce as alleged. International Union of Electrical Workers, Local 1102, AFL-CIO, is admittedly a labor organization as alleged. Respondent and the Union are parties to a collective-bargaining agreement, which provides (G.C. Exh. 2, pp. 7-8): Straight time hourly rated employees temporarily assigned to a job classification higher than their own shall receive the rate established in the Base Rate Manual for the time actually worked in this classification. x Also see G.C. Exhs. 4 and 5, portions of the Employer's Base Rate Manual and Job Description Manual. EMERSON ELECTRIC CO. 297 The collective-bargaining agreement also includes a grievance procedure (pp. 41-47). It was stipulated that John M. Barnett-an employee covered by the above collective-bargaining agreement working as a numerical control machine department op- erator on the Employer's midnight to 7 a.m. shift-was sent home early on the morning of October 1, and there- by lost 2.3 hours of work or about $14. We are solely concerned here with the conduct of and statements made by management in sending Barnett home early on Octo- ber 1. The pertinent evidence is summarized below. Edward Volner, employed by the Company in its nu- merical control department, worked the midnight shift on October 1. He recalled the following incident: Well, about 1:30 or quarter to 2 in the morning, my machine malfunctioned, it wasn't pumping any oil at the present time, so I went to my supervisor [Victor Joellenbeck] and I told him what was going on. He came over and told me, "what do you think could be the problem?" and I said that I didn't know. He said he would bring me a filter over and we would see what happened then, and he left. Then about 5 or 10 minutes later he came back and said, "Ed, here's a filter, put it in, it might work." Volner asked his job steward Gary Minard, the Charging Party here, "[D]o I have to change this filter?" Minard said, "Yes." Volner took about 45 minutes to change the filter. Later, Volner asked Supervisor Joellenbeck "about the maintenance" rate pay for changing the filter. 2 Joel- lenbeck replied that Volner "would have to see" general foreman Williard Darnell. Thereafter, as Volner further testified: Darnell and Joellenbeck were coming down the aisle to Gary Minard's machine . . . I went up there to the machine and was going to ask about my maintenance pay, and I was about 5 feet away from the machine, and I heard Darnell tell Minard, "If you are going to be horse shit about the whole thing, I am going to send the lowest man home in the department." [Darnell] turned around and told Joellenbeck to send the lowest man home. I went back to my ma- chine and then Vic came down and went across the aisle and was talking to Joe Barnett. I didn't hear what was going on. About 10 or 15 minutes later, he came over to my machine again and said, "Ed, take the new filter out and put the old filter back in." Volner stated to Joellenbeck, "my machine is running good, why shut it down?" Joellenbeck replied: "Gary is giving me hell about the maintenance pay, so we are going to shut it down and send the lowest man home." 2 The difference in houri) rate between Volner's job classlfication and a maintenance employee is about $1.20 There are no maintenance em- ployees working on the midnight shift Volner "shut the machine down, changed the filter back, took the new one out and put the old one back in ... ." Gary Minard, employed by the Company in its nu- merical control department and shop steward for the Union, recalled that during the morning of October 1: Edward Volner told me he was told by foreman Joellenbeck to change the filter . . . he asked me if he was required to do that, and I told him yes Minard also "told [Volner] . . . the Company is required to pay [him] a higher rate of pay because it's a mainte- nance job." Later, Minard "walked over and mentioned to foreman Joellenbeck, or asked him, if employee Volner was going to be paid maintenance pay," Joellen- beck replied that he would "check with" Foreman Dar- nell. Later, Minard again asked Joellenbeck about "the maintenance pay." Subsequently, as Minard further re- called: [F]oreman Darnell and foreman Joellenbeck walked up to the machine where I was .... Foreman Darnell told me, since you are being so harsh, I'm going to be harsh too. He said to foreman Joellen- beck, find out the low seniority operator and send him home. Employee Barnett was then sent home before the sched- uled end of his shift. Minard claimed: "[l]n my approxi- mately 5-1/2 years that I have been there and have been in the nc department, I have never seen any nc operator sent home. They are generally reassigned to another de- partment." Joseph Barnett related the events occurring during the midnight shift on October 1, in part as follows: . . . at approximately 4 o'clock Vic Joellenbeck, he came up to the machine to me where I was work- ing. And there was another operator with me, John Adamek. And he asked me if I was the low man in seniority. I says, "Yes." He says, "Well, I am going to send you home." I said, "all right, but I would like to stay longer because I have to catch a bus to go home." I had no other way home. He says, "All right, I will check" and he left. Oh, about 15 min- utes later, about 4:15, he comes back to my ma- chine. He says, "You will have to go home now." I :' Robert Meek, also employed by the Company in its numerical con- trol department, worked with Volner on October I Meek recalled that Darnell had stated in his presence: "If the Union could get horse shit, he could get horse shit too"-"He [Darnell] was going to send the lowest seniority man home." Meek could remember no other worker who was "ever sent home" because of "lack of work." And. John Hazard, em- ployed bh the Company as a porter on the midnight shift, similarly claimed that "no operators" without work were not "sent home --"he have them sweeping floors, washing walls." Further. David Ashton, an- other nc operator on the midnight shift, recalled that on Octlober 1: [SIhortly after V:e came back from our break, Darnell ho is the general foreman on that shift approached Gary Minard and stated that if Gary Minard was going to be horse shit about this deal, that he can be horsc shit too, and send the low nll home i oiur depart- mcill EMERSON ELECTRIC CO. 297 298 DECISIONS OF NATIONAL LABOR RELATIONS BOARD said, "All right," and went to see Bob Darnell. He is the general foreman. And I asked him, I says, "Bob [Darnell], how come I have to go home?" He says, "It's over a union problem concerning maintenance." I says, "I don't understand." So he explained it to me that Gary Minard had filed a grievance concerning mainte- nance and that he didn't think that was right. He says as long as Gary Minard was shop steward he was getting dirty and he was going to get dirty, too. I says, "Well, I hope this don't get to be a habit." He didn't give me no reply and just walked away. I went and clocked out which was about 4:25 a.m. General Foreman Williard Darnell testified that on October I: Vic Joellenbeck came to me and told me there was a problem; that "Minard raised a complaint about having a man install a coolant filter .. ."; that "Vic told Gary that he didn't think he could pay mainte- nance pay" and that I [Darnell] told him [Minard] that in my opinion that if we just shut the machine down, put it back to ground zero or inoperable po- sition, and move the operator to another machine, and send the lowest man home, was the only thing I could see to do. And I told him that he was being horse shit in disregarding past practice and if he continued to be horse shit and disregarding this, and he would make me appear horse shit by having to send a man home, because we have no place to use another man. Darnell denied, inter alia, taking this action "because Minard indicated he was going to file a grievance", or making related statements to employees as alleged. Dar- nell also denied, inter alia, "ever [telling] Mr. Minard or Mr. Volner that if they were going to be horse shit [he was] going to send the junior man home." Darnell claimed that "I had no more other jobs to assign [Bar- nett] to" on October 1. Foreman Victor Joellenbeck recalled the incident on October 1. Minard had "asked if Ed Volner was going to be paid maintenance pay for changing the filter, and [Joellenbeck] said no." Joellenbeck consulted with Dar- nell. Darnell later spoke with Minard. Minard insisted that Volner was entitled to maintenance pay. According to Joellenbeck: Bob Darnell said, "Gary, you are being horse shit in this thing. You are going to cause me to appear horse shit because I am going to send a man home for lack of anything for him to do." Joellenbeck later told Barnett, while sending him home "due to the lack of work": I [Joellenbeck] was sorry that he happened to get caught up in this, but I just didn't have anything for him to do any longer. Joellenbeck denied, inter a/lia, telling Barnett that "he was being sent home because Minard had protested the rate of pay . . . [or] had threatened to file a grievance". I credit the testimony of Volner, Minard, Barnett, Meek, Hazard, and Ashton as quoted and summarized above. Their testimony is in significant part mutually corroborative. Further, their testimony is substantiated in part by the testimony of Darnell and Joellenbeck. Rely- ing also upon demeanor, I am persuaded here that Dar- nell and Joellenbeck engaged in the conduct, and made the statements attributed to them by Volner, Minard, Meek, Ashton, and Barnett, as quoted and recited above. In sum, I find and conclude here that Darnell, angered at the efforts of Volner and Minard to press the contract claim for maintenance pay, retaliated by sending employ- ee Barnett home before the end of his shift. I do not credit the assertions of Darnell and Joellenbeck to the effect that they did not make the above statements attrib- uted to them, or that there was in fact no work for Bar- nett. Discussion Section 7 of the National Labor Relations Act, as amended, provides that employees "shall have the right to self-organization, to form, join, or assist labor organi- zations, to bargain collectively through representatives of their own choosing, and to engage in other concerted ac- tivities for the purpose of collective bargaining or other mutual aid or protection .... " Section 8(a)(l) of the Act makes it an unfair labor practice for an employer "to interfere with, restrain, or coerce employees in the exer- cise of the rights guaranteed in section 7." Section 8(a)(3) of the Act in turn bars employer "discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization...." The presen- tation by employees of a grievance pursuant to the terms of a collective-bargaining agreement comes within the protection of Section 7 of the Act. As stated in N.L.R.B. v. The Halsey W. Taylor Company, 342 F.2d 406, 408 (6th Cir. 1965): We are not concerned in this case with the merit or lack of merit of [the employee's] grievance. But it is clear that Sec. 7 protects his right to utter it as a matter of concerted activity with other employees for mutual aid. And, as explained in N.L.R.B. v. Interboro Contractors, Inc., 388 F.2d 495, 500 (2d Cir. 1967): . . . the Board need not find the complaints to be meritorious in order to hold the activity protected, but the fact that the complaints were apparently reasonable does support the conclusion that they were made for legitimate union purposes and were not fabricated for personal motives. Cf. Aro, Inc. v. N.L.R.B., 596 F.2d 713, 716-718 (6th Cir. 1979). The credited evidence of record here, as recited supra, makes it clear that Union steward Minard and employee EMERSON ELECTRIC CO. 299 Volner were attempting to assert in good faith a griev- ance or claim under the Union's collective-bargaining agreement. Management, in retaliation, caused a machine to be closed down, and sent an employee home before the scheduled end of his shift. Management made clear to its employees that it was taking such action because of the grievance or claim made by Minard. Thus, as Volner recalled, Minard was told by foreman Darnell, "If you are going to be horse shit about the whole thing, I am going to send the lowest man home in the department." Employee Meek recalled that Darnell stated: "If the Union could get horse shit, he could get horse shit too." And, employee Ashton recalled that Darnell stated: "if Gary Minard was going to be horse shit about this deal, he can be horse shit too." Further, employee Barnett was later told by Darnell "that Gary Minard has filed a grievance concerning maintenance" and "as long as Gary Minard," the Union's shop steward, "was getting dirty he was going to get dirty too." Such conduct and statements, made in retaliation against employees because employees have filed grievances or pressed claims under their union contract, tend to discourage employee Sec- tion 7 rights, and union activities in violation of Section 8(a)(l) and (3) of the Act. 4 CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce as within the meaning of Section 2(6) of the Act. 2. Local 1102 is a labor organization within the mean- ing of Section 2(5) of the Act. 3. Respondent violated Section 8(a)(3) and (1) of the Act by laying off employee Joseph M. Barnett for a por- tion of his scheduled shift on October 1, 1979, in order to retaliate against employees for engaging in union and protected concerted activities; and by telling its employ- ees on this same day that it was taking such action in order to retaliate against them for engaging in union and protected concerted activities. 4. The unfair labor practices found above affect com- merce as alleged. REMEDY Respondent will be directed to cease and desist from engaging in such conduct, like or related conduct, and post the attached notice. Respondent will also be direct- ed to make whole employee Joseph M. Barnett for any loss of earnings he may have suffered by reason of Re- spondent's unlawful action, by making payment to him of the sum of money which he normally would have earned during his lay off on October 1, 1979, as found supra, less net earnings during such period, with backpay and interest thereon, to be computed in the manner pre- scribed in F. W. Woolworth Company, 90 NLRB 289 4 Counsel for Respondent argues (p. 21) that the "alleged violations are insubstantial, and do not warrant a Board remedy," citing US. Postal Service, 242 NLRB 228 (1979). 1 am. of course, bound by the rationale of the Board majority in US. Poslal Service. supra (1950), and Florida Steel Corporation, 231 NLRB 651 (1977). See, generally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962). Further, Respondent will preserve and make available to the Board, upon request, all pay- roll records and reports, and all other records necessary and useful to determine the amount of backpay due under the terms of this Decision. ORDER 5 Upon the foregoing findings of fact, and conclusions of law, and the entire record of the case, the Respondent, Emerson Electric Co., St. Louis Missouri, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discouraging membership in International Union of Electrical Workers, Local 1102, AFL-CIO, or any other labor organization, by discriminatorily laying off any of its employees because they have engaged in union or protected concerted activities, or in any like or related manner discriminating against them with respect to their hire or tenure of employment or any term or condition of employment. (b) Telling its employees that it is laying them off in order to retaliate against employees for engaging in union or protected concerted activities. (c) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of their Section 7 rights. 2. Take the following affirmative action: (a) Make whole employee Joseph M. Barnett for any loss of earnings, in the manner set forth above in the Section entitled "Remedy." (b) Preserve and, upon request, make available to the Board or its agents all payroll and other records, as set forth in this Order. (c) Post at its facilities in St. Louis, Missouri, copies of the notice attached hereto as "Appendix." 6 Copies of said notice, on forms provided by the Regional Director for Region 14, shall, after being duly signed by Respond- ent, be posted immediately upon receipt thereof, in con- spicuous places, and be maintained for 60 consecutive days. Reasonable steps shall be taken to insure that no- tices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 14, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. I In the event no exceptions are filed as provided by Sec 102.46 of the Rules and Regulations of the National Labor Relations Board, the find- ings, conclusions. and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations. be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes a In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted bh Order of the National Labor Relations Board" shall read "Posted Pursu- ant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " EMERSON ELECTRIC CO 299