American Red Cross Blood Services

National Labor Relations Board - Board Decisions

Mar 17, 1995

316 N.L.R.B. 783 (N.L.R.B. 1995)

783
316 NLRB No. 127
AMERICAN RED CROSS BLOOD SERVICES
1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. 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.
2 We substitute the following for the judge’s Conclusion of Law 3:
The conduct of Respondent found in 2 above is an unfair labor
practice affecting commerce within the meaning of Sec. 8(a)(1)
and Sec. 2(6) and (7) of the Act.
3 We shall correct further inadvertent errors the judge made in his
recommended Order and notice by substituting a narrow injunctive
provision for the broad provision included in the judge’s rec-
ommended Order and by including an expunction remedy and the
standard provision requiring the Respondent to notify the Regional
Director within 20 days from the date of the Order what steps it has
taken to comply.
American Red Cross Blood Services Division and
Everett Sanders. Case 10–CA–27863
March 17, 1995
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS BROWNING
AND COHEN
On December 23, 1994, Administrative Law Judge
Robert C. Batson issued the attached decision. The Re-
spondent filed exceptions and a supporting brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and brief, and has de-
cided to affirm the judge’s rulings,1 findings, and con-
clusions as modified2 and to adopt the judge’s rec-
ommended Order as modified.3
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Amer-
ican Red Cross Blood Services Division, Atlanta,
Georgia, its officers, agents, successors, and assigns,
shall take the action set forth in the Order as modified.
1. Substitute the following for paragraph 1(b).
‘‘(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
the rights guaranteed them by Section 7 of the Act.’’
2. Insert the following as paragraphs 2(d) and (e).
‘‘(d) Remove from its files any reference to the un-
lawful discharge of Everett Sanders, and notify him in
writing that this has been done and that the discharge
will not be held against him in any way.
‘‘(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.’’
3. Substitute the attached notice for that of the ad-
ministrative law judge.
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.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through any representa-
tives of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT discharge our employees because they
have engaged in union or other protected concerted ac-
tivities for the purpose of collective bargaining or other
mutual aid or protection, or fail and refuse to reinstate
them.
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 offer our employee Everett Sanders imme-
diate and full reinstatement to his former position or,
if that position no longer exists, to a substantially
equivalent one, without prejudice to his seniority or
any other rights or privileges previously enjoyed by
him and make him whole for any loss of pay he may
have suffered as a result of the discharge.
WE WILL remove from our files any reference to the
unlawful discharge of Everett Sanders and notify him
in writing that this has been done and that the dis-
charge will not be held against him in any way.
AMERICAN RED CROSS BLOOD
SERVICES DIVISION
J. Howard Trimble, Esq.,1 for the General Counsel.
M. Jefferson Starling III and H. Lane Dennard Jr., Esqs.
(King & Spalding), of Atlanta, Georgia, for the Respond-
ent.
784 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 Herein called the General Counsel or Government.
2 Certain errors in the transcript have been noted and corrected.
3 All dates herein are 1994 unless otherwise indicated.
4 The name of the Respondent appears as amended at trial. The
complaint and all pleadings and underlying documents named the
Respondent as ‘‘American Red Cross,’’ At trial, counsel for the Re-
spondent averred that the correct legal name of Respondent was
‘‘American Red Cross Blood Services Division.’’ I granted counsel
for the General Counsel’s motion to amend the name of the Re-
spondent as shown in the complaint and all previously filed plead-
ings and underlying documents to reflect the correct legal name. See
Tr. 60.
5 For a more detailed description of the duties of this classification
see R. Exh. 4.
DECISION
STATEMENT OF THE CASE
ROBERT C. BATSON, Administrative Law Judge. This case
was tried before me on November 14,2 1994,3 at Atlanta,
Georgia. The charge giving rise to the complaint herein was
filed on August 19 by Everett Sanders, an individual. The
Regional Director for Region 10 (Atlanta, Georgia) issued a
complaint and notice of hearing on October 3, alleging that
American Red Cross Blood Services Division (Respondent or
Employer)4 had violated Section 8(a)(1) of the National
Labor Relations Act (the Act) by discharging its employee
Everett Sanders.
In its duly filed answer to the complaint the Respondent
admits all procedural allegations, but denies that its discharge
of Sanders violated the Act as alleged.
I find that the General Counsel has established by a pre-
ponderance of the credible evidence that Respondent has vio-
lated the Act as alleged.
All parties were represented and were afforded full oppor-
tunity to be heard, to examine and cross-examine witnesses,
and to introduce evidence. Respondent filed a brief. The
General Counsel waived the filing of a brief and made a
closing oral argument. Upon consideration of the entire
record and the brief, I make the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent, American Red Cross Blood Services Di-
vision is, and has been at all times material herein, a non-
profit Washington, D.C. corporation, with an office and place
of business located at 1925 Monroe Drive, Atlanta, Georgia,
where it is engaged in the collection, processing, storage, and
distribution of blood, blood components, and blood products
to government, nonprofit, and proprietary hospitals in the
State of Georgia. During the past calendar year, which period
is representative of all times material herein, had a gross vol-
ume of business from such operations valued in excess of
$250,000. During the same representative period it purchased
and received at its Georgia facilities goods valued in excess
of $50,000 directly from suppliers located outside the State
of Georgia.
Respondent admits, the evidence establishes, and I find
that it is an employer engaged in commerce within the mean-
ing of Section 2(6) and (7) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
The Respondent discharged its employee, Everett Sanders,
on March 14, for his alleged insubordination toward his de-
partment director, Trudy Brennan, during a step-2 grievance
meeting on March 9, concerning a grievance Sanders had
filed alleging harassment by his immediate supervisor, James
Matthews.
The Aluminum, Brick and Glass Workers International
Union, Local Union No. 254, AFL–CIO, CLC is the certified
collective-bargaining representative in a unit of:
All Mobile Unit Driver Assistants (MUDA), Blood Col-
lection Assistants (BCA), Blood Collection Technicians
I (BCT I), Blood Collection Technicians II (BCT II),
and Licensed Practical Nurses (LPN), but excluding all
office clerical employees, professional employees, Reg-
istered Nurses, guards, Head Nurses, Assistant Head
Nurses and all other supervisors as defined in the Act.
This unit is confined to only those employees employed at
its facility located at 1925 Monroe Drive, Atlanta, Georgia.
(R. Exh. 1.) The current agreement expires March 1, 1995.
Sanders had been employed by the Respondent since Oc-
tober 1992 as a mobile unit driver assistant (MUDA). His
duties consisted of driving trucks, setting up drive, transport-
ing blood, and recording some data about the blood. The ve-
hicles operated by Sanders are sometimes called ‘‘blood-
mobiles.’’5
Most of the facts giving rise to Sanders’ termination are
not in dispute. Sanders had filed a grievance against his im-
mediate supervisor, James Matthews, alleging harassment.
No resolution of the grievance having been achieved at the
first step of the grievance procedure, Sanders’ steward, Jack
Pyant, had made an appointment with Director of Nursing
Trudy Brennan for 1 p.m., March 9, in Brennan’s office for
a step 2 meeting.
The substance of what occurred shortly after 1 p.m.,
March 9, in or near Trudy Brennan’s office as presented by
the General Counsel by the testimony of Jack Pyant and
Everett Sanders will be addressed first. Sanders met Pyant in
an area outside Brennan’s office shortly before 1 p.m. Ten
to twenty minutes after 1 o’clock, Brennan ‘‘showed up’’
and Pyant advised her they were there by appointment for
the step-2 grievance filed by Sanders. Brennan responded to
the affect that they did not have an appointment at that time
Pyant reiterated that they did. Brennan again said they did
not.
According to Sanders, at this point he turned to Pyant and
said ‘‘Jack, you know I’m due at work at 1:45. I’m on pro-
bation.’’ Sanders continued ‘‘If you say the meeting is at
1:00 and Brennan says there’s not a meeting with us and its
twenty-five minutes past 1:00, then someone don’t know
what’s going on with the situation.’’ (Tr. 36–37.) Sanders
turned to leave to clock in and as he past through a secretar-
ial area someone told him, ‘‘Everett they’re calling you.’’
Sanders turned and apparently walked back toward Pyant and
Brennan when Brennan asked. in an angry voice, ‘‘What did
you say?’’ Sanders told Brennan he was talking to Pyant and
not to her. She repeated the question. Sanders told her that
he had said that if Pyant said they had an appointment and
she said they didn’t, ‘‘Someone don’t know what’s going on
with the situation.’’
785AMERICAN RED CROSS BLOOD SERVICES
6 On February 10, Sanders had been placed on 4 months’ proba-
tion for alleged harassment of another employee and other lack of
skills.
7 The notice reads:
MEMORANDUM
AMERICAN RED CROSS BLOOD SERVICES
SOUTHERN REGION
To: Everett Sanders Date: March 14, 1994
From: Trudy Brennan Subject: Termination of
Employment
As of February 10, 1994 you were placed on four months pro-
bation for inability to practice good service excellence skills and
alleged harassment of another employee. The Employee Con-
ference Report stated the following:
We expect immediate and long term improvement in his re-
lationships with all contacts. Further failure to meet job re-
sponsibilities or to practice good service excellence (particu-
larly in the area of resolution of conflict) will result in imme-
diate termination.
On March 9, 1994, at our meeting in the BSN Departure
Room while discussing the schedule for the grievance meeting,
you exhibitied insubordinate and inappropriate behavior, angrily
accusing me of being late and incompetent. I asked you to come
to my office. I explained to you that this behavior was unaccept-
able and that this was the behavior that had gotten you in trou-
ble in the past. You again informed me that you had better
things to do, that I did not know what I was doing and that I
was incompetent.
This is clearly against company policy (see Disciplinary Ac-
tion Schedule) and grounds for your immediate dismissal (see
Policy Manual, page 19).
As a result, we are terminating your employment effective im-
mediately.
/s/Trudy Brennan 3-14-94
Trudy Brennan Date
I have received a copy of this notice.
lllllllllll
Everett Sanders
8 For a more detailed account of Brennan’s subjective feelings
about Sanders’ behavior and her fear that he would become violent,
see Tr. 72–77.
At this point, Brennan said she would check her schedule.
According to Brennan, she had mistakenly posted on her
schedule this grievance meeting for Wednesday, March 16.
Upon discovering her mistake she phoned for James Mat-
thews, against whom Sanders’ grievance was pending. Sand-
ers testified that Brennan told them that he had said, ‘‘That
she didn’t know what she was doing.’’ Sanders told her that
was not the case, he had not been talking to her. Brennan
pursued the subject, trying to get Pyant to agree with her that
he had said she was incompetent. It is evident from Sanders’
own testimony that he probably raised his voice, believing
that she was trying to get Pyant to agree with her in order
to find a reason to terminate him.6 Pyant took Sanders out-
side the office and told him to ‘‘just keep cool.’’ Sanders
asked, ‘‘Do you not see what’s going on.’’ Pyant said that
he did, but Sanders should keep cool.
At about that time, Jim Matthews came up and they went
back into Brennan’s office. After Matthews’ arrival, Brennan
stated, ‘‘Before we proceed with this meeting I want you to
tell Jim what you said to me in the reception area.’’ Sanders
reiterated that he had not been talking to her but to Pyant.
It is not disputed that there was very little discussion con-
cerning the grievance of harassment by Matthews of Sanders.
Sanders denies he ever used the word ‘‘incompetent.’’ Sand-
ers worked that day and the following day, Thursday. He
was off on Friday. Upon returning to work on Monday, he
was sent to the department of human resources, where he re-
ceived notice of his termination. (G.C. Exh. 4.)7
Brennan’s version of these events differs from that of
Sanders and Pyant as to precisely what Sanders said and his
manner or attitude while making his ‘‘insubordinate state-
ments.’’ Brennan’s version, or more correctly versions, is in-
teresting in that each time she related the events and what
was said by Sanders to her she tended to add statements he
allegedly made and become more descriptive of Sanders’
manners and hostile attitude to support her view of it as in-
subordination. The same appears to be true in the testimony
of Jim Matthews, who gave testimony designed to corrobo-
rate Brennan with respect to a portion of the events. Both
were extremely versatile with their use of adjectives in de-
scribing Sanders’ conduct.
First regarding the trial testimony. Brennan’s office is lo-
cated on the second floor near the rear of the building occu-
pied by the Employer on Monroe Drive. Adjacent to her of-
fice are cubicals occupied by her support staff and a recep-
tion area. Brennan testified that she went to her office at ‘‘ei-
ther 1:01, 1:02,’’ because the other people with whom she
had scheduled a 1 p.m. meeting were not ready. She ob-
served Sanders and Pyant in the reception area and was sur-
prised and asked ‘‘Do I have a meeting with you.’’ Pyant re-
plied that she did and started to take the paper she had
signed from his brief case. According to Brennan, she said,
‘‘We’ll just have to fix this.’’ At this point Sanders
‘‘grabbed his satchel and stormed past me and under his
breath you don’t even know what you are doing.’’ (Tr. 71.)
She called his name a couple of times and he turned
around and repeated what he had said, ‘‘extremely angrily
and hostile,’’ and he added, ‘‘You are incompetent.’’ Her
version is that she thought this would be disruptive and told
him and Pyant to come into her office. (Tr. 71.) When they
got in, Sanders threw down his bag and angrily repeated,
‘‘You don’t even know what you are doing. I don’t have
time for this.’’ She testified that she was frightened and con-
sidered his behavior irrational. She testified that he said over
and over again, ‘‘You don’t even know what you’re doing.
You’re incompetent. You’re not fit to be a manager.‘‘ She
added ‘‘and, things like that.’’ She testified she got so nerv-
ous she called Jim Matthews to come up immediately. (Tr.
72.)
When Matthews arrived, according to Brennan, she re-
viewed what had happened and gave Sanders the opportunity
to explain why he was so upset. She testified that Sanders
continued with the same hostility and repeated several times
what he had said before about her competence.8 Matthews
essentially corroborates Brennan as to what occurred after his
arrival. Indeed, he may have been somewhat more descrip-
tive with his adjectives describing Sanders’ attitude, and stat-
ed that he was glad he was there in case ‘‘somebody made
a quick move.’’
Brennan suggested that in view of Sanders’ attitude it
would be better to postpone discussing the grievance. How-
ever, Sanders and Pyant wanted to proceed with the griev-
ance. Both Brennan and Matthews testified that once they
began discussing the grievance, the purpose for which they
786 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
9 Neither Ruth nor Beth Kline testified at trial. Accordingly, no
weight is given these subjective observations and description of
Sanders’ appearance as he entered the office.
10 The Respondent continues to argue that Sanders’ discharge was
in accordance with its progressive disciplinary policy and that he
was already on probation at the time. Brennan testified that he would
have been discharged for this conduct without regard to his proba-
tionary status in accordance with Respondent’s disciplinary action
schedule (R. Exh. 3), which provides that termination is the dis-
cipline for a first offense of insubordination.
were there, Sanders became very calm and businesslike, an-
swering questions, and giving information.
After Sanders and Pyant departed, Brennan left messages
for Director of Human Resources Adair Maller and Chief
Operating Officer Beth Greenberg, to whom Brennan reports.
That same date she also wrote a memorandum to Beth
Greenberg. (G.C. Exh. 2.)
What really happened on March 9, in or near Brennan’s
office concerning Pyant and Sanders’ attempt to have a step
2-grievance meeting with Brennan probably lies somewhere
between the slanted version given by Brennan and Matthews
and that given by Sanders and Pyant. I find that Brennan
dropped by her office at probably 1:10 to 1:15 and was sur-
prised to see Pyant and Sanders there, she having honestly
forgotten the appointment, and had honestly, but mistakenly
scheduled it on her calendar for a week later. I also find that
she initially took issue with, or denied, that their grievance
meeting was scheduled for that date. This is what provoked
Sanders’ initial outburst made to Pyant, probably very an-
grily to the effect that if Pyant said they had an appointment
and Brennan said they didn’t, ‘‘Someone didn’t know what
was going on with the situation.’’ He then grabbed his satch-
el and walked away, call it stormed away if you wish, to
clock in. Although the statement was addressed to Pyant,
Brennan clearly heard it.
It is noted here that Sanders has a rather deep and gravely
voice which tends to be heard further away than most voices
and it was my impression as he testified that the man prob-
ably could not speak in a whisper if his life depended on it.
Here, it was not his life, but his voice may have cost him
his job. Had Brennan been only 1 or 2 minutes late, I doubt
that Sanders would have noticed. Also, if she had imme-
diately, realizing that she had made a mistake, said, as she
testified, ‘‘We’ll have to fix that,’’ Sanders would have had
no reason and would not have made the statement that some-
one didn’t known what they were doing.
Although Brennan had clearly heard Sanders’ statement di-
rected toward Pyant, she called him back as he ‘‘stormed
out’’ and to all intents and purposes forced him to repeat it.
I find that Brennan realized that it was, indeed, she who had
made the mistake about the date, took Sanders’ statement
that someone didn’t know what they were doing in that situa-
tion personally and was greatly offended by it. Had it been
Pyant who had erred about the date of the appointment he
would have been the one who didn’t know what he was
doing in that situation and she would probably have laughed
it off, and perhaps chided Pyant for his error. I believe that
Brennan was very competent in her job, both as a registered
nurse and as a supervisor over about 225 employees, and that
she made very few mistakes. Being the perfectionist she was,
she was more angry with herself than with Sanders’ attitude
and statements.
I further find that Sanders, during this event, did not tell
Brennan that she was ‘‘incompetent.’’ I find the statement
admitted by Sanders is the equivalent of saying one is in-
competent in a particular situation. Therefore, for purposes of
this decision it would make no difference had he used the
word ‘‘incompetent.’’ This finding is supported by the
memorandum she wrote to chief operating officer, Beth
Greenberg, dated March 9, in which the only statement at-
tributed to Sanders was ‘‘You don’t even know what you’re
doing.’’ (G.C. Exh. 2.) While she goes on to describe the
angry look on Sanders’ face, and that she told him his con-
duct was inappropriate and unacceptable behavior and admit-
ted that she had Sanders repeat to Jim Matthews the fact that
I didn’t ‘‘In this case know what I was doing.’’ She goes
on to state that Jim Matthews later described Sanders’ man-
ner as ‘‘truculent,’’ ‘‘aggressive,’’ and that he was ‘‘ap-
palled’’ at his attitude and ‘‘found it to be totally disrespect-
ful.’’ She went on to tell Greenberg that Ruth and Beth
Kline had seen Sanders come into her office about 1:05 and
said he had looked ‘‘tense, murderous, hostile and angry.’’9
Brennan hand-wrote another memo to Beth Greenberg.
This memo is not dated, but in handwriting different from
Brennan at the top of the page is ‘‘Mar. 94.’’ I gather from
Brennan’s testimony this memo was written at some point
after March 11, when the decision was made to terminate
Sanders. In this memo, for the first time she states, ‘‘He con-
tinued to tell me I was incompetent in an angry, tense, loud,
and intimidating manner.’’
In a memo to file written by Jim Matthews with respect
to the termination interview with Sanders wherein he relates
that Sanders again denied that he had called Brennan incom-
petent. He apologized for any problems he caused, but in-
sisted that he did not intend to be disrespectful. (R. Exh. 7.)
Indeed, it appears that in the interim, between March 9 and
March 14, Sanders had telephoned both Brennan and Adair
Maller and apologized for the way Brennan had taken re-
marks concerning his opinion that someone didn’t know
what they were doing in the course of processing his griev-
ance.
In short, I find that Sanders expressed more anger and ag-
gressiveness during this March event than suggested by his
trial testimony. However, his demeanor was far less aggres-
sive and intimidating than indicated by the testimony of
Brennan and Matthews, and in the memos obtained from oth-
ers concerning the incident. I find that in this instance Sand-
ers was endeavoring to process his grievance pursuant to the
contract by appointment with Brennan and that his conduct
was not so flagrant, egregious, or so opprobrious as to place
him beyond the protection of the Act.
The Respondent argues that at the time Sanders was insub-
ordinate and disrespectful to Brennan, director of the depart-
ment in which Sanders worked, Sanders’ conduct was not
protected in that Brennan had not declared that they were
discussing the grievance. The Respondent contends that
Sanders’ conduct during the grievance meeting was entirely
proper and had no bearing on the conduct for which he was
discharged.10
This contention is without merit. The single purpose for
which Sanders and Pyant were waiting in the reception area
outside Brennan’s office was to meet the preagreed-on 1 p.m.
date for a step-2 grievance meeting. The fact that Brennan
took issue with them about the appointment provoked the en-
787AMERICAN RED CROSS BLOOD SERVICES
11 The conduct in which Walden engaged was:
Walden, in an increasingly louder voice, referred to the informa-
tion sent her as garbage, stated that the type of information she
wanted had been given her on other occasions, and claimed that
Beckett and his superior, Nichols, should be able to interpret her
requests. Then in response to Beckett’s statement that the infor-
mation supplied was that asked for, she shouted she was not
there to play games and finally—and still shouting—she made
some comment concerning Beckett’s lack of intelligence. At
several points Beckett interjected to warn Walden that the meet-
ing would end if she did not improve her tone and manner and
with her comment concerning his lack of intelligence Beckett
stated the meeting was ended. Walden left. The whole meeting
had lasted only 3 to 5 minutes.
tire episode. All of Sanders’ comments concerned some one
didn’t know what was going on ‘‘with the situation.’’ This
statement clearly refers to his step-2 grievance meeting.
Container Corp. of America, 255 NLRB 1404 (1991),
cited by Respondent, is clearly distinguishable. There, after
the grievance meeting was over and the grievant had left the
office, the steward told the supervisor he was ‘‘sick of this
shit’’ and wanted to continue the meeting. After the super-
visor’s third order to the steward to return to work, which
the steward defied, he was suspended. However, he was not
discharged. The Board held that the steward’s refusal to re-
turn to work after three orders to do so was not protected
and thus sustained the suspension. In the instant case, Sand-
ers did not defy an order to return to work. Indeed, at the
very beginning of the encounter, when Brennan disputed the
fact that they had an appointment, Sanders started to leave
to clock in and was ordered by Brennan to return.
Similarly, in Calmor Combining Co., 184 NLRB 914
(1970), the plant manager disciplined, not discharged, a shop
steward when after a grievance meeting the steward returned
to work and began shouting something about the grievance.
The plant manager asked him to stop shouting and was told:
‘‘You can’t shut me up, I’ll shout all I want to.’’ He again
asked him to be quiet, but the steward said, ‘‘I don’t give
a damn what you say, I’ll shout all I want to, and if you
don’t like it, tell me to leave.’’ The Board found the stew-
ard’s continued intransigence was not a part of the grievance
discussion and his refusal to obey a reasonable and lawful
order not related to the grievance was not protected.
In the case here, Sanders was not told by Brennan to stop
making remarks about anyone being incompetent, but merely
that his conduct was inappropriate. Sanders did not refuse to
obey any instructions or orders given him by Brennan.
In the alternative the Respondent contends that even if
Sanders was presenting a grievance his conduct was not pro-
tected. I find that Sanders was engaged in the formal griev-
ance process and thus in protected activity. For the reasons
set forth below, I find that his conduct was not so egregious
or flagrant to warrant any disciplinary action by Respondent.
In American Telephone & Telegraph Co., 211 NLRB 782
(1974), an employee, who was also a union agent was given
a written warning of possible ‘‘very severe disciplinary ac-
tion’’ for the manner in which she conducted herself while
engaged in certain union activity. The judge found that the
employee was not engaged in a union matter such as contract
negotiations or grievance settlement, but only in a ‘‘periph-
eral procedural matter totally devoid of substance’’ and could
see no reason for what he considered to be her improper con-
duct. The Board reversed. The employee, Walden, in her ca-
pacity as a union agent had requested information relevant to
a change in operations affecting certain employees. She was
not satisfied with the information received. She complained
to the district operations manager that the information was
inadequate.11
The Board found, contrary to the judge, that Walden’s
conduct ‘‘was the very means—albeit, we agree, a rude
one—by which she presented her complaint and thus was
part of the res gestae of the protected activity.’’
I find that Sanders’ conduct complained of here, and for
which he was terminated, is clearly protected by the Act.
Pyant and Sanders had a 1 p.m. appointment for a step-2
grievance meeting with Brennan at her office. All conduct
occurring thereafter 1 p.m. was inextricably part and parcel
of the grievance procedure. The protection of the Act in this
situation is triggered at the time and place scheduled, and
not, as contended by the Respondent, until Brennan reluc-
tantly proceeded to discuss the grievance.
The applicable standard governing employer conduct when
dealing with employees during collective bargaining was set
forth long ago in Bettcher Mfg. Corp., 76 NLRB 526, 527
(1948), there the Board stated:
A frank, and not always complimentary, exchange of
views must be expected and permitted the negotiators
if collective bargaining is to be natural rather than stilt-
ed. The negotiators must be free not only to put forth
demands and countermands, but also to debate and
challenge the statements of one another without censor-
ship, even if, in the course of debate, the veracity of
one of the participants occasionally is brought into
question. If an employer were free to discharge an indi-
vidual employee because he resented a statement made
by that employee during a bargaining conference, either
one of two undesirable results would follow: collective
bargaining would cease to be between equals (an em-
ployee having no parallel method or retaliation), or em-
ployees would hesitate ever to participate personally in
bargaining negotiations, leaving such matters entirely to
their representatives.
The Board has consistently applied the same standard to
the grievance machinery in a collective-bargaining agree-
ment. See Hawaiian Hauling Service, 219 NLRB 765 (1975),
where the Board refused to defer to an arbitrator’s upholding
the discharge of an employee for angrily calling the respond-
ent’s vice president and general manager ‘‘a liar’’ during the
processing of a grievance. See also Union Fork & Hoe Co.,
241 NLRB 907 (1979), where the Board refused to defer to
an arbitrator’s finding upholding the discharge of a grievant,
as a union steward, because as a steward the arbitrator held
him to a higher degree of proper conduct within the plant
than other employees. There the grievant, who was also a
steward, took his time sheet from the superintendent clip-
board and refused to return it.
In Syn-Tech Windows Systems, 294 NLRB 791 (1989), the
Board found the discharge of a union steward for his conduct
during a grievance meeting to be a violation of the Act. Dur-
ing the course of a grievance meeting with the respondent’s
officer, Mark Wisner, Garcia, the employee discharged, re-
fused to leave Wisner’s office upon request after Wisner re-
788 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
12 Under New Horizons, interest is 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 accrued before January 1,
1987 (the effective date of the amendment) shall be computed as in
Florida Steel Corp., 281 NLRB 651 (1977).
13 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended 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 purposes.
14 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
National 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.’’
ceived a disturbing telephone call. Garcia then pointed his
finger angrily at Wisner and threatened him with an unspec-
ified ‘‘problem’’ if the grievances were not remedied. Gar-
cia’s parting remark was to the effect that the employees
might look for a different union and wondered if that would
cause problems for Wisner.
In the case at bar I find that Sanders’ conduct during the
course of a grievance meeting is not sufficiently so flagrantly
egregious or so opprobrious as to warrant his discharge, or
indeed any lesser discipline. I am convinced that the only
statement made by Sanders was to the effect that someone
didn’t know what was going on with the situation of process-
ing his grievance. It is reasonable that it would appear so to
him in that Brennan initially denied that she had made an ap-
pointment for that date. He repeated that statement several
times in a loud and probably angry voice which might well
have been heard outside Brennan’s office. I have previously
commented on the volume, depth, and carrying tone of Sand-
ers’ voice. That he was angry and feared that he was being
‘‘set up’’ is not in doubt. I so find.
Because Brennan added statements attributed to Sanders at
every step, statements not attributed to him in her first memo
to Beth Greenberg, dated March 9, I find that Brennan con-
vinced herself that Sanders’ conduct had been much more
egregious than it, in fact, had been. However, even if the to-
tality of the testimony at trial given by Brennan and Mat-
thews were credited, Sanders was still engaged in protected
activity, and thus protected by the Act.
Accordingly, I find that Respondent’s discharge of Sanders
violated Section 8(a)(1) of the Act.
CONCLUSIONS OF LAW
1. Jurisdiction of the Board is properly asserted in this
case.
2. By discharging its employee, Everett Sanders, for his
conduct during the course of processing a grievance, and
thereafter failing and refusing to reinstate him, Respondent
has violated Section 8(a)(1) of the Act.
3. The conduct of Respondent found in 2 above is an un-
fair labor practice affecting commerce within the meaning of
Section 8(a)(1), (2), (6), and (7) of the Act.
REMEDY
Having found that Respondent has engaged in certain con-
duct in violation of Section 8(a)(1) of the Act, by discharg-
ing its employee, Everett Sanders, which conduct interfered
with, restrained, and coerced its employees in the exercise of
their rights guaranteed them by Section 7 of the Act, Re-
spondent shall be ordered to cease and desist therefrom and
take certain affirmative actions designed to effectuate the
purposes of the Act. Such affirmative action shall be to post
the usual informational notice to employees attached hereto
as ‘‘Appendix,’’ and offer immediate and full reinstatement
to its employee, Everett Sanders, to his former position or if
that position is no longer available to a substantially equiva-
lent one, without loss of seniority or other benefits, and to
make him whole for any loss of earnings he may have sus-
tained by reason of the unfair labor practice against him. All
loss of earnings and other benefits shall be computed on a
quarterly basis in the manner set forth in F. W. Woolworth
Co., 90 NLRB 289 (1950), plus interest as computed in New
Horizons for the Retarded, 283 NLRB 1173 (1987).12
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended13
ORDER
The Respondent, American Red Cross Blood Services Di-
vision, Atlanta, Georgia, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Discharging its employees for engaging in union or
other protected concerted activity, and thereafter, failing and
refusing to reinstate them.
(b) In the above or any other manner interfering with, re-
straining, or coercing its employees in the exercise of their
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Post at its facility in Atlanta, Georgia, copies of the at-
tached notice marked ‘‘Appendix.’’14 Copies of the notice,
on forms provided by the Regional Director for Region 10,
after being signed by the Respondent’s authorized representa-
tive, shall be posted by the Respondent immediately upon re-
ceipt 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
Respondent to ensure that the notices are not altered, de-
faced, or covered by any other material.
(b) Offer immediate and full reinstatement to its employee
Everett Sanders to his former position or, if that position no
longer exists, to a substantially equivalent position, without
loss of seniority or other benefits and make him whole for
any losses he may have sustained by reason of his unlawful
discharge, with interest thereon as set forth in the remedy
section of this decision.
(c) Preserve and, on request, make available to the Board
or its agents, for examination and copying, all payroll
records, social security payment records, timecards, personnel
records and reports, and all other records necessary to ana-
lyze the amount of backpay due under the terms of this
Order.