A-T-O, Inc.

National Labor Relations Board - Board Decisions

Aug 10, 1972

198 N.L.R.B. 820 (N.L.R.B. 1972)

820 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Hadco-Tiffin , a Division of A-T-O, Inc. and Russel
Martin . Case 8-CA-6485
August 10, 1972
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
KENNEDY AND PENELLO
On March 9, 1972, Trial Examiner Maurice S.
Bush issued the attached Decision in this proceeding.
Thereafter, the Respondent filed exceptions and a
supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Rlations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the Trial
Examiner's Decision in light of the exceptions and
brief and has decided to affirm the Trial Examiner's
rulings, findings, conclusions, and recommendations,
only to the extent consistent herewith.
The Trial Examiner found that the Respondent (1)
threatened employee Russell Martin with reprisals if
he persisted in carrying his complaint, about not
being called for Saturday overtime work, to his
fellow employees instead of utilizing exclusively the
grievance procedure of the collective-bargaining
agreement in violation of Section 8(a)(1) of the Act;
and (2) discharged Martin on June 8, 1971, because
of a threat to file a grievance pursuant to the
collective-bargaining agreement in violation of Sec-
tion 8(a)(3) and (1) of the Act. Respondent has filed
exceptions to these findings and we find merit in
such exceptions for the reasons stated below.
The essential operative facts concerning Respon-
dent's conduct involving Martin are not in dispute.
Martin was hired on May 3, 1971, as a probationary
employee. Under the terms of the collective-bargain-
ing agreement a probationary employee does not
obtain seniority rights until he has served a 30-day
probationary period of 30 working days. The
Respondent has had a bargaining relationship with
the Union for more than 10 years and all contracts,
including the current contract, have contained
grievance-arbitration provisions. The record is entire-
ly devoid of any evidence of union animus on the
part of the Respondent and its relationship with the
Union has been amicable over the years. Probation-
ary employees, the same as regular employees, are
permitted to file grievances under the contract and
there are no contentions that any employee has ever
been restricted in this right.
On Friday, June 4, 1971, Martin's foreman,
Reinhart, polled about 10 men to determine whether
they wished to work overtime on Saturday. Martin
198 NLRB No. 102
and one other employee were not asked. "Polled
overtime," unlike "scheduled Saturday work" under
the collective-bargaining agreement, does not require
posting and does not involve all employees. Under
long-established practice when the overtime is
"polled" the foreman has the right to select the
employees he desires or thinks are needed. The
employees selected have the right to decline. Martin
complained to Foreman Reinhart about not being
selected, but to no avail.
On Monday morning, June 7, Martin sought out
the departmental steward, Morrow, to complain. The
grievance provisions of the collective-bargaining
agreement provide for an initial informal discussion
with an employee's foreman in the presence of the
employee's departmental union steward. Such a
conference was arranged for that afternoon among
Martin, Union Steward Morrow, Foreman Reinhart,
and Plant Manager of Manufacturing Collins. It is
Collins' alleged remarks to Martin, toward the end of
the conference, on which the Trial Examiner bases
his 8(a)(I) finding.
As set forth in the Trial Examiner's Decision, there
are various versions as to what utterances were made
by Collins at the conference in question. According
to Collins' own testimony, he admonished Martin
against "bending fellow employees' ears or guard-
house tactics" about his gripes about not getting
overtime work. Collins testified that he merely
intended to warn Martin to avoid discussing his
complaint with other employees while they were at
work and that he did not want Martin to start any
"general discussion throughout the plant when a
problem arises without trying to get the solution to
the problems through proper channels." Collins
further testified that he inquired of Martin and the
union representative if they were satisfied with the
results of the conference and further informed them
that if they were satisfied they must follow proce-
dures and he would tolerate no other method. Martin
indicated he was not satisfied by the results of the
pregrievance conference.
The Trial Examiner concluded, accepting Collins'
own version, that his statements to Martin were so
broad that they constituted interference with, re-
straint, and coercion of Martin's Section 7 rights in
violation of Section 8(a)(1) of the Act, since they
were an attempt to prevent Martin from engaging in
concerted activity for the purpose of mutual aid and
protection in regard to his grievance. For the reasons
discussed below, we do not agree.
Significantly, Union President Sholl's undisputed
testimony was that, immediately after the above
conference, he contacted Martin to find out the
results of the meeting and Martin related that he was
told that if he "went out to start raising a lot of
HADCO-TIFFIN
trouble on the floor, they'd have him back in there
again ." (Emphasis supplied .) Sholl further testified
that Martin denied any remarks were made to him
about being threatened or reprimanded or disci-
plined for filing any grievance . Later that day, the
union steward came to Martin during worktime for
the purpose of discussing the alleged grievance and
both he and Martin left their jobs and punched out
for the purpose of filing a grievance pursuant to
contract provisions . Martin reported that he did not
himself seek or obtain permission to check out.
We are unable to conclude on the basis of the
above facts and the record as a whole that Collins'
remarks to Martin during the conference in question
were calculated to, or would be reasonably interpret-
ed by employee Martin to, threaten his right to
complain to his fellow employees about his failure to
receive overtime and to seek their aid and protection
on the overtime issue . At best , we find that Collins'
remarks were an admonition for Martin not to
disrupt the work of others and to follow the
customary procedures and were so understood by
Martin . In the circumstances , we find that Collins'
statements to Martin were not violative of the Act
and, accordingly , we do not adopt the Trial Examin-
er's findings of a violation in regard thereto.
As to the alleged discriminatory discharge of
Martin , the record shows that after the above June 7,
1971, pregrievance conference , there was a company
management meeting during the evening in the office
of Plant Manager McBride . Foreman Reinhart and
Plant Manager Collins were also present. It was
customary for Reinhart and Collins to meet daily at
that time to discuss various plant problems. Among
the questions discussed at the June 7 meeting was
that Martin ' s probationary period was nearing an
end and that a final evaluation of his work should be
made in order to determine whether he should be
retained as a permanent employee . Foreman Rein-
hart testified that based on the caliber of his
performance it was his recommendation that Martin
not be made a permanent employee, in that Martin's
performance as a material expeditor was grossly
inadequate and that he required too close supervi-
sion. Collins corroborated Reinhart 's testimony.
Based on Reinhart 's recommendation , the decision
to terminate Martin was unanimous . The next day,
June 8 , Martin was formally discharged.
In finding that Martin was discharged for discrimi-
natory reasons, the Trial Examiner placed weight on
the fact that at no time during the 26 or 27 days of
his probationary period had Martin been warned or
given any indication that his work was unsatisfactory
and the timing of the decision to discharge him was
almost immediately after the June 7 pregrievance
meeting at which he indicated he would file a
821
grievance. In the circumstances, the Trial Examiner
concluded that the reason for Martin's discharge on
the ground of dissatisfaction with his work was
pretextual and concluded that the real reason was
that he raised an issue about not receiving Saturday
overtime and had threatened to file a grievance on
the matter. The Trial Examiner, therefore, found that
Martin's discharge was violative of Section 8(a)(1)
and (3) of the Act. In our opinion there is insufficient
evidence upon which to ground such a finding of a
violation.
It is true that some of the circumstances surround-
ing Martin's termination raise a possible suspicion
that he might have been discharged for reasons other
than those stated, such as a threat to file a grievance.
However, mere suspicions are not sufficient evidence
upon which to base a finding of a violation of
Section 8(a)(3). As noted above, the Respondent and
the Union have had a 10-year history of amicable
relations and there is not a scintilla of evidence of
any animus toward employees who file grievances.
Moreover, the testimony as to Martin's unsatisfacto-
ry performance is refuted only by Martin's own self-
serving testimony. The Respondent's contention that
it customarily does not warn or discuss with
probationary employees their shortcomings during
the 30-day probationary period stands unrefuted and
the General Counsel has made no showing that
Martin in any manner received disparate treatment.
Finally, as to the timing, it would appear that the
only time the Respondent could have made an
evaluation of the quality of Martin's performance
was, when it did, at the end of his probationary
period. Accordingly, in all circumstances of this case,
we find that the General Counsel has failed to
establish by the preponderance of the evidence that
the termination of Martin was in violation of the Act.
We shall order that the complaint be dismissed
insofar as it alleges that he was discriminatorily
discharged.
Conclusions of Law
1. Respondent is an employer with operations
affecting commerce within the meaning of Section
2(6) and (7) of the Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. Respondent has not engaged in conduct
constituting unfair labor practices within the mean-
ing of Section 8(a)(l) and (3) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
822 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Relations Board hereby orders that the complaint
herein be, and it hereby is, dismissed in its entirety.
FINDINGS OF FACT
I. JURISDICTIONAL FINDINGS
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
MAURICE S. BUSH, Trial Examiner: Under the pleadings,
there are two issues in this case. The first is whether the
Employer, Hadco-Tiffin, A Division of A-T-O, Inc., is in
violation of Section 8(a)(1) of the National Labor Relat-
ions Act for threatening employee Russell Martin with
reprisals after he had filed a grievance,' because of the
Company's refusal to call him for overtime work the
preceding Saturday, if he continued to process his
grievance. As there is no evidence of record that any
threats were made by the Employer to Martin after he had
filed his grievance as alleged in the complaint, the
allegations charging a violation of Section 8(a)(1) of the
Act by reason of such alleged postgrievance threat will be
recommended for dismissal for failure of proof.
In lieu of this first issue the parties have litigated by
consent2 the question of whether the Company prior to the
time Martin filed his above-described grievance threatened
him with reprisals through a top supervisor atl alpreliminary
informal conference with him over his complaint about
not being called for the Saturday overtime work if he
persisted in carrying his complaint to his fellow employees
instead of taking his complaint exclusively through the
grievance procedure of the Company's collective-bargain-
ing agreement with the Union representing its production
and maintenance employees. An affirmative finding on
this issue would require a finding of a violation of Section
8(a)(1) of the Act.
The second issue in the case under the pleadings is
whether the Employer terminated Martin "for the reason
that he had filed a grievance and continued to process it
under the terms of the collective-bargaining agreement in
existence between Respondent and the Union and or
because he had, or Respondent believed he had, joined,
assisted or favored the Union or engaged in other
concerted protected activities for the purpose of collective
bargaining or other mutual aid or protection."
The compalint was issued on August 17, 1971, pursuant
to a charge filed by Charging Party Russell Martin on June
21, 1971. The case was tried before the Trial Examiner on
October 20, 1971, at Tiffin, Ohio.
Counsel for General Counsel submitted the case on oral
argument at the conclusions of the trial. Counsel for
Respondent waived oral argument but filed a brief on
November 30, 1971. Both presentations have been careful-
ly reviewed and considered.
Upon the entire record and from his observation of the
witnesses, the Trial Examiner makes the following:
Respondent, Hadco-Tiffin, a Division of A-T-O, Inc., at
all times here material has been a division of A-T-O, Inc.,
an Ohio corporation with plants located in several states of
the United States. Its Tiffin, Ohio, plant, which is the only
one of Respondent 's plants involved in this proceeding, is
engaged in the manufacture of sheet metal products and
axles . The Company in the course and conduct of its
business operations ships products valued in excess of
$50,000 directly from its Tiffin, Ohio, plant to points
outside the State of Ohio. The Company is an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
II. THE LABOR ORGANIZATION
Sheet Metal Workers ' International Association, Local
175, AFL-CIO, hereinafter called the Union , is a labor
organization within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
The Company's Tiffin plant has been operated under a
succession of collective -bargaining agreements with the
Union for more than 10 years. These agreements, including
the current contract , have contained grievance provisions.
The record shows that there have been amicable relations
between the Company and the Union over the years. The
record further shows that, prior to the present proceeding,
the Company has never had any complaints from any
employees that it did not allow grievances to be filed. On
the contrary the record shows that there has been frequent
resort by the plant's employees to grievance procedure with
full cooperation of management . The Union is not the
Charging Party herein. The Charging Party is above-
mentioned Russell Martin , a new employee who was
terminated within the 30-day probationary period all new
employees must go through under the terms of the
collective-bargaining agreement . Under the terms of the
contract , a new employee does not attain seniority rights
until he has served a 30-day probationary period of 30
working days. Martin was hired on May 3, 1971, as a
probationary employee and discharged some 26 or 27 days
later on June 8, 1971, before he had completed his 30-day
probationary period.
When Martin , a man who appears to be in his late
forties, applied for employment with Respondent, he made
it known that he had a heart condition and therefore
sought light work. Upon receipt of a requested certification
from Martin's physician that he could do light work, the
Company hired him as a tow motor operator-expeditor and
assigned him to work in its axel division where about 14
employees worked out of the total of approximately 68
employees throughout the plant. Martin was one of two
motor operators in the axel division. He was assigned the
smaller of two tow motors in the division and Brandt, a
I Under the Company's collective-bargaining agreement the grievance complaint
must "be in writing" and must be preceded by an informal discussion by 2 See pp 130-131 of transcript of testimony
management with the complaining employee on the subject of his
HADCO-TIFFIN 823
senior employee, who formerly handled the small tow
motor, was assigned to the larger of the tow motors.
Martin's sole duty was to operate the small tow motor.
Most of the men in the axel division operated machines. It
was Martin'sjob to keep their machines supplied with steel
for product production and to tow the finished products
away from the machines. Brandt with his larger tow motor
handled steel that was too heavy or large for the small tow
motor, but in addition, unlike Martin, was called upon to
perform other duties in addition to handling his tow motor.
The beginning of a squabble between Martin and his
foreman, Paul Reinhardt, started on Friday, June 4, 1971,
over Reinhardt's failure to ask Martin, as he had asked
other employees in the axel division, to work a half day
overtime the next day. When Martin learned that others in
his division had been asked to work that Saturday
morning, he asked Reinhardt if he could also work that
half day. Reinhardt replied that the work that Saturday
was not a "scheduled workday" and that he did not need
his services that Saturday.
The Company has two kinds of overtime Saturday work
for which the pay is time and a half. One of these is
described in the collective-bargaining agreement as "sched-
uled Saturday work." When "scheduled Saturday work" is
posted 2 days in advance as called for in the contract, all
employees are required to work unless excused for
reasonable cause.
The other kind of Saturday work is called "polled
overtime." Polled Saturday overtime occurs when a
foreman of a division desires to work some but not all of
his men overtime on a Saturday. For such overtime, the
foremen polls his men to see if they want the overtime and
the men have the option of turning down the extra work.
Although the collective-bargaining agreement does not
spell out or mention polled overtime, it is a long-estab-
lished practice at the plant.
The Saturday work here involved was "polled overtime"
and not "scheduled Saturday work" and understood by all
employees to be polled overtime. Under the collective-
bargaining agreement, all employees are entitled to "be
given equal opportunity to work Saturday overtime,"
provided they could do the work called for.3 The contract,
however, expressly provides that management has the
exclusive right of "assignment of work and the size and
composition of the workforce." The right of the Respon-
dent to select or poll the number of employees desired for
Saturday overtime is not challenged by General Counsel.
On the Saturday here under discussion, Reinhardt asked
all of the 14 employees in the axel division except Martin
and one other to work that Saturday, but only 10 showed
up for work. Brandt, the operator of the large tow motor,
worked that Saturday morning but performed work other
than operating his tow motor. The men at work at the
machines used the small tow motor as needed, but only
two or three of the machinists found it necessary to use the
tow motor.
The grievance provisions of the collective-bargaining
agreement here involved provide for an initial informal
airing of employee complaints before the employee's
foreman in the presence of the employee's departmental
union steward. The agreement expressly requires that such
an informal discussion must take place before the
employee may file a grievance with the Company and
further provides that all grievances must be in writing.
(Resp. Exh. 1, pp. 12 and 13.)
On Monday morning after the Friday on which he had
unsuccessfully sought the Saturday overtime, Martin, still
aggrieved, sought out his departmental steward, James
Morrow, and complained to him about the matter. Morrow
at that time had been with the Company for some 6 or 7
months and had been a union steward for only about a
month. Morrow, after inquiry as to the procedure to be
followed under the collective-bargaining agreement for the
airing of employee complaints, arranged a conference for
Martin and himself with Foreman Reinhart.
The meeting took place at Reinhart's office during a
break period, starting at 2:12 p.m. that Monday. Richard
E. Collins, the plant's manager of manufacturing, was
present at all times during the meeting. It is Collin's alleged
remark to Martin towards the end of the meeting upon
which the issue hinges of whether he threatened Martin
with discharge if he persisted in complaining about not
having been put to work the preceding Saturday. Morrow
started the conference by asking Martin to state his
complaint. Martin thereupon asked Reinhart why he had
not been allowed to work that preceding Saturday.
Reinhart replied, as he had the previous Friday, that the
antecedent Saturday was not a scheduled workday and
that he could work anyone he wanted. Martin replied that
he was not satisfied with that explanation. Collins,
intervening, asked if Martin could get a medical certificate
that he could "go full blast." Martin acknowledged that he
could not because of his heart condition. Thereupon
Collins made the alleged critical remark upon which the
issue turns.
Each of the witnesses who testified to Collins' remark
had a different version or recollection of the remark.
According to Martin, Collins at that point said to him,
"Russ, if you're [not] satisfied with this explanation [by
Reinhart as to why he did not ask Martin to work the
preceding Saturday] and you go out of here and say
anything, I will get you." Martin told Collins and Reinhart
that he would carry his complaint a "step further." Later
that day Martin filed a grievance, more fully described
below, against the Company's refusal to give him work the
Saturday in question.
Steward Morrow's version of Collins' last statement to
Martin is that he ordered him to return to the shop and
"keep your mouth shut or you can take it a step farther,
but I will get you sooner or later, that is not a threat, that is
a promise."
Foreman Reinhart denied that Collins made any threats
to Martin as related by Martin and Morrow but remem-
bered Collins telling Martin to take his complaints through
3 As Martin's everyday job was to work the tow motor, he obviously met On the other hand, the record shows that Brandt, the other tow motor
the qualifications for overtime work on the tow motor on the Saturday here operator who was polled for the Saturday overtime here discussed, was able
in question if he had been asked to perform his usual duties, but the record to do other work in the axel division besides operating a tow motor
fails to show that he was qualified for any other work in the axe] division
824 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"proper channels" under the grievance procedure and
warning him "not [to] just bring them up with anybody on
the floor." He also testified that Collins told Martin that,
"This is not a threat, it's Just a friendly reminder that we
follow . . . proper channels."
Collins under direct testimony testified that he told
Martin and Morrow, after they had expressed dissatisfac-
tion with the outcome of the meeting, that "they must
follow procedures," and that he "would not tolerate no
other method." Under questioning by the Trial Examiner
as to whether he told Martin and Morrow what he meant
by "following procedures," Collins replied, "I believe I
referred [to that] they could do no good bending fellow
employees' ears or guard house tactics." Elaborating on
this under direct examination by the Company's counsel,
Collins said that he meant by "conduct he could not
tolerate" the following, "An employee's absenteeism from
job or station to discuss his problems with fellow workers,
and not going through proper channels provided for them;
general discussion throughout the plant when a problem
arises without trying to get the solution to the problem
through proper channels."
Finally, we have the version of Donald Sholl, president
of the Union for the past 12 years and an employee of the
Company for the past 14 years, as to what Collins' final
words to Martin were at the meeting. Although Sholl had
not been present at the meeting and knew of what occurred
there only from having talked to Martin, the Company is
bound by Sholl's testimony as it called him as its witness.
Sholl's testimony under direct examination shows that
having heard that Martin had been threatened that
afternoon at the meeting by management representatives,
he looked Martin up at the plant that same afternoon and
asked him if it was true. Sholl testified that Martin not only
replied in the affirmative, but that Martin also reported
Collins had said to him, "If I went out to start raising a lot
of trouble on the floor, they'd have him back in there
again."
The record shows that before the conference came to a
close Martin and Morrow made it clear to Collins and
Reinhart that they would take some sort of appeal, either
by way of a formal grievance under the contract or by
complaint to the Board, against the negative result of the
conference. The record shows that this was fully under-
stood and expected by both Reinhart and Collins.
At about 3 o'clock that afternoon, Martin was contacted
by the plant's chief union steward, Tony Aiello, at whose
suggestion or direction Martin clocked out for the purpose
of preparing a grievance for filing with the Company
against its failure to give Martin the opportunity for
overtime work the preceding Saturday. Martin's testimony
shows that the two of them spent the rest of the working
day, or approximately an hour, preparing the grievance.
Martin's testimony further shows that upon its completion
the grievance was filed that afternoon and that he then
went home as it was about 4 p.m., and his shift was over.
The grievance bears the date of June 7, 1971, time as of 3
p.m., and reads4 as follows:
Employee Name-Russell Martin
Time-3:00 P.M.
Date-6/7/71
Statement of Employee
On Friday June 4 1971 Russell Martin was operating
the towmotor at the end of the workshift. Overtime
work was performed Sat. June 5 1971. The towmotor
was operated on that day. Mr. Martin asked his
foreman if he would be needed that Sat. His foreman
said no, yet his job was performed by other employees
When Mr Martin went with his steward to his
foreman to ask about the situation he was threatened
by Mr. Collins. Mr. Collins made the statement, to Mr
Martin:
If you feel that this settled now: If I hear any talk
about this I will get you. This is a promise not a threat.
Employee Name-Russell Martin
Steward Name-Tony Aiello
Step I Date 6/8/71
Appeal [R] Settle
Although the bottom "of the grievance shows the date
6/8/71 after the printed words "Step I Date ," it is
found based upon Martin's undisputed testimony that the
grievance was actually filed on June 7, 1971, as heretofore
shown.
Later that afternoon about 4 p.m., after Foreman
Reinhart "had lined up" his second shift, a company
management meeting took place in the office of Plant
Manager McBride in which the participants were McBride,
Collins, and Reinhart. The primary purpose of the meeting
was to discuss tooling problems and work schedules, but
before the meeting was closed, the discussion turned to the
question of whether or not Martin should be retained or
terminated as he was near the end of his 30-day
probationary period. The decision to terminate Martin was
unanimous. Reinhart recommended Martin's discharge
because of "the attitude the man had." Collins under cross-
examination was aked if he "was the one who initiated the
question at this meeting . . . of whether or not Martin
should be kept." Collins replied, "I think I may have been
one of those that questioned Mr. Reinhart being knowl-
edgeable that the end of the probationary period was
drawing to a definite date." The Trial Examiner finds from
the above-quoted testimony of Collins and his demeanor
and from the record as a whole that Collins was the prime
mover in Martin's termination. The denials of Collins and
Reinhart that they had any knowledge of the grievance
Martin had filed at the time of the decision in McBride's
office to terminate Martin are credited, not only because
there is no evidence to the contrary, but also because it
appears that Martin filed his grievance during the time the
management meeting was taking place. However, it is
apparent that this lack of knowledge of the fact that
Martin had filed a grievance at the time it was decided to
terminate him does not have a necessary bearing on the
true motive for Martin's discharge.
The next day, June 8, at a little before noon, Reinhart
called Martin into his office and terminated him orally and
by a written termination notification or slip.5 The slip
states that Martin was being discharged because it was the
a Some obviously omitted punctuation has been supplied and the `, The collective-bargaining agreement provides that Any employee
original erroneous spelling of "settled" has been corrected reporting for work who has not been notified not to report shall be paid a
HADCO-TIFFIN 825
end of his "temporary period" and also because "Employ-
ee's growth within or beyond classification questionable.
Does not fit into overall picture for dept."
At the trial Reinhart testified that Martin' s services
during his probationary period were unsatisfactory for a
number of reasons, such as that he spent too much time
talking to fellow employees when he had work to do, that
he [Reinhart] had complaints from a couple of machine
operators that Martin operated his towmotor wrecklessly,
that Martin could not remember multiple oral instructions,
and that at times he [Reinhart] had difficulty locating
Martin at the plant when he wanted him. He also stated
that Martin's complaint about not getting work on the
preceding Saturday was a factor reflecting on Martin's
"attitude" which played a part in his termination. Reinhart
testified that all these factors led to Martin's discharge.
However, both Reinhart and Collins under cross-examina-
tion admitted that they had never at any time during
Martin's 26 or 27 days of employment with the Company
told him that his work was unsatisfactory or gave him any
warning or indication that his work would have to be
improved or he would be discharged before the end of his
30-day probationary period.
Discussion and Conclusions
The findings above set forth four separate versions of the
utterance made by Collins, the plant's manager of
manufacturing, to Martin, the Charging Party, towards the
end of the conference at which Martin had complained
about not being called for overtime Saturday work. These
statements include Collins' own version of what he said to
Martin and his interpretation of what he meant by the
statement. Any reading of the four different versions of the
statement show that they all convey an implied threat by
Collins to Martin of reprisal if Martin aired his complaint
about not being polled for overtime Saturday work to his
fellow employees. Of the four different versions of the
threat, the most explicit is that of Collins himself.
According to Collins, he himself admonished Martin
against "bending [his] fellow employees' ears or guard-
house tactics about his gripes for not getting Saturday
work." Collins testified that he meant by this not only a
warning that Martin was to desist from discussing his
complaint with other employees while they were working,
but also that he did not want Martin to start any "general
discussion through the plant when a problem arises
without trying to get the solution to the problem through
proper channels."
The Trial Examiner finds and concludes that the threat,
under any of its four versions, constituted an interference
with, restraint, and coercion in violation of Section 8(a)(1)
of the Act of the rights guaranteed in Section 7 to
employees to engage in concerted activities for the purpose
of mutual aid or protection. New York Trap Rock
Corporation, 148 NLRB 374, 376. Collins' motive in
making the threat appears to have been his desire and
concern to have Martin's complaint funneled exclusively
through the collective-bargaining agreement's grievance
procedure in order to avoid disruptions of the work at the
plant by any complaining Martin might do to fellow
employees about his failure to get Saturday overtime work.
It is well established, however, that the test of interference,
restraint, and coercion under Section 8(a)(1) does not turn
upon the employer's motive. As stated by the Court of
Appeals for the Seventh Circuit, "The test is whether the
employer engaged in conduct which, it may be reasonably
be said, tends to interfere with the free exercise of
employee rights under the Act." N.L.R.B. v. Illinois Tool
Workers, 153 F.2d 811, 814 (C.A. 7), 1964, cited with
approval by the Board in American Freightways Co., Inc.,
124 NLRB 146, 147. The threat here under consideration
was so broad as to clearly cut off Martin's right to
complain to his fellow employees about his failure to get
the Saturday overtime work and to seek their aid and
protection in the matter even during breakperiods or
before the start of the day's work or at the end of the
workday. This is manifestly an invasion of the rights
guaranteed to employees under Section 7 to engage in
concerted activities for the purpose of mutual aid or
protection in violation of Section 8(a)(1) of the Act.
It is not difficult to understand that Collins' threat was
provoked by the exasperation and wrath he felt over
Martin's intransigence as a probationary employee for
refusing to accept what appears to have been manage-
ment's clear prerogative under the collective-bargaining
agreement to select and to leave out any employees it
chooses for polled Saturday overtime work, but the fact
that the threat was provoked by Martin's seemingly
unjustifiable intransigence does not excuse it from being a
violation of Martin's right to seek the aid and protection of
his fellow employees over what he deemed to be his right to
overtime work under the collective-bargaining agreement,
no matter how mentless his complaint might be. Section 7
is a flat and forthright guarantee to employees of the right
to engage in concerted activities for their mutual aid and
protection without regard to the merits or demerits of what
their concerted activities are aiming for.
The remaining issue in the case as originally framed by
the pleadings and set forth in the opening pages of this
Decision is whether the Company terminated Martin "for
the reason that he had filed a grievance and continued to
process it under the terms of the collective-bargaining
agreement in existence between Respondent and the
Union and/or because he had, or Respondent believed he
had, joined, assisted or favored the Union or engaged in
other concerted protected activities for the purpose of
collective-bargaining or other mutual aid or protection.
As it was found above that the Respondent had no
knowledge that Martin had filed a grievance over his
failure to get overtime Saturday work at or about the time
it had reached a decision at a conference of its supervisors
in the late afternoon of June 7, 1971, to terminate him, that
portion of the complaint which alleges that Martin was
terminated "for the reason that he had filed a grievance
and continued to process it under the terms of the
collective-bargaining agreement in existence between
Respondent and the Union" will be recommended for
minimum of four (4) hours time at his regular rate per hour for reporting " of the workday as the decision to discharge him was made the previous
This is undoubtedly the reason Martin was not terminated at the beginning afternoon after Martin had clocked out for the day and left the plant
826 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
dismissal for failure of proof. Similarly, as there is no
evidence that Martin was terminated "because he had, or
Respondent believed he had, joined, assisted or favored the
Union or engaged in other concerted protected activities
for the purpose of collective bargaining," that allegation
will also be dismissed for failure of proof.6 The record is
entirely devoid of any union animus on the part of the
Company as in fact it has been under successive collective-
bargaining agreements for many years and appears to have
had amicable relationships with the Union over the years.
With these eliminations, the issue reduces itself to the
question of whether Martin was terminated "because he
had . . . engaged in other concerted protected activities for
the purpose of . . . other mutual aid or protection." The
record compels the identification of these "other protected
activities" as Martin's announced intention and notice to
Supervisors Collins and Reinhart that he would carry his
oral complaint about not getting overtime Saturday work
"a step further." Under the contract "a step further" or the
next step would be the filing of a written grievance. The
findings of fact above show that both Collins and Reinhart
were fully convinced at the conclusion of their June 7
conference with Martin and Union Steward Morrow that
Martin would file a grievance with the Company.
The Board in Farmers Union Cooperative Marketing
Assn., 145 NLRB 1, 2, capsulated existing Board rulings on
the legal consequences of a discharge motivated as a
retaliation to an employee for the filing of a grievance as
follows: ". . , where an employee files a grievance
pursuant to a contractual grievance procedure, such filing
is a `concerted' activity which is protected under Section 7
of the Act, and if any employer discharges him for
engaging in this activity, the discharge is unlawful."
Discharges under such circumstances are violations of
Section 8(a)(3) of the Act. Under the Farmers Union case it
must similarly and necessarily follow that a discharge as a
reprisal for an employee's threat to file a grievance
pursuant to a contractual grievance procedure would
equally be an invasion of the protected right under Section
7 of concerted activity in violation of Section 8(a)(3) of the
Act.
Respondent's defense is that it terminated Martin during
his 30-day probationary period of employment solely
because his work was unsatisfactory and not because he
had threatened to file a grievance over his failure to get
overtime work the previous Saturday. The record does not
support the contention that Martin's work had been
unsatisfactory during the 26 or so days he was employed
by the Company as a probationary employee. The
evidentiary findings above show that Reinhart as Martin's
foreman never at any time told him that his work was not
satisfactory or gave him any warning or any reason to
believe that he was not doing his job properly. Similarly,
Collins, as manager of manufacturing at the plant, never
had any discussions with Martin about his work and never
told him that his work was not satisfactory. It is
additionally significant that, at the conference Reinhart
and Collins had with Martin over Martin's complaint
about not getting the involved Saturday overtime work,
neither Reinhart or Collins made any complaints to Martin
about the quality of his work. If his work had been truly
unsatisfactory, it is a virtual certainty that either Reinhart
or Collins would have thrown that accusation at Martin
some time during the heated discussion that took place in
the 20-minute conference. The timing of the decision to fire
Martin later that same afternoon and his discharge the
very next day is further proof that Martin's termination
was motivated by his threat to file a grievance over his
failure to get Saturday work rather than by any genuine
dissatisfaction with his work. The Examiner finds and
concludes that Respondent's reason for Martin's discharge
on the ground of dissatisfaction with his work is pretextual
and that the real reason for his discharge was that he had
raised a fuss over his not getting Saturday overtime work
and had threatened to file a grievance on the matter.
The Examiner finds and concludes that Respondent's
discharge of Martin because of his threat to file a grievance
pursuant to contractual grievance procedure was an
infringement of his protected right under Section 7 to
engage in concerted activities in violation of Section 8(a)(1)
and (3) of the Act. Farmers Union Cooperative Marketing
Assn., supra.
Upon the basis of the basis of the foregoing findings of
fact and upon the record as a whole, the Trial Examiner
makes the following
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce,
and the Union is a labor organization within the meaning
of the Act.
2. For many years Sheet Metal Workers' International
Association, Local 175, AFL-CIO, has represented a unit
of production and maintenance employees employed at
Respondent's Tiffin, Ohio, plant, for purposes of collective
bargaining.
3. By interfering with, restraining, and coercing its
employee Russell Martin in the exercise of his rights under
Section 7 of the Act in the manner above found, the
Respondent has engaged in an unfair labor practice within
the meaning of Section 8(a)(1) of the Act.
4. By discharging Russell Martin because of his threat
to file a grievance pursuant to contractual grievance
procedure, the Respondent has engaged in an unfair labor
practice within the meaning of Section 8(a)(3) and (1) of
the Act.
5. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent engaged in unfair labor
practices in an independent violation of Section 8(a)(1) and
in violation of Section 8(a)(3) and (1) of the Act, it will be
recommended that it cease and desist therefrom and take
6 Counsel for General Counsel did not allude to these omissions of proof counsel and Examiners do not become aware of until they have studied the
or the variance between the 8(a)(I) allegations and the proof in his oral record for purposes of briefing or decision The instant case is a good
argument to the Trial Examiner at the conclusion of the trial in lieu of a example of this A brief from General Counsel would have been of much
brief Frequently issues of fact and law lurk in the record of a case that assistance to the Examiner
HADCO-TIFFIN 827
certain affirmative action designed to effectuate the interest added thereto in the manner set forth in his
purpose of the Act, including the offer of reinstatement of Plumbing & Heating Co., 138 NLRB 716.
Russell Martin, with backpay computed in the manner set [Recommended Order omitted from publication.]
forth in F. W. Woolworth Company, 90 NLRB 289, with