Anaconda Wire and Cable Co.

National Labor Relations Board - Board Decisions

Feb 13, 1973

201 N.L.R.B. 839 (N.L.R.B. 1973)

ANACONDA WIRE AND CABLE COMPANY
Anaconda Wire and Cable Company and Randall R.
Sparks. Case 25-CA-4757
February 13, 1973
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND JENKINS
On October 10, 1972, Administrative Law Judge
Gordon J. Myatt issued the attached Decision in this
proceeding. Thereafter, the Respondent filed excep-
tions to the Administrative Law Judge's Decision
and a supporting brief, and the General Counsel filed
a "limited cross-exception" to the Administrative
Law Judge's Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, findings,
and conclusions of the Administrative Law Judge
and to adopt his recommended Order, as modified
herein.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that Respondent, Anaconda Wire and
Cable Company, its officers, agents, successors, and
assigns , shall take the action set forth in the Trial
Examiner's recommended Order as modified herein.
1. Delete paragraph 1(a) and substitute the
following:
"(a) Threatening to issue complaints, issuing
complaints, or taking disciplinary action, including
layoffs, against employees in reprisal for filing or
processing grievances pursuant to the terms of a
collective-bargaining agreement."
2. Substitute the attached notice for the Adminis-
trative Law Judge's notice.
i Although the Administrative Law Judge found that Respondent
unlawfully threatened to issue a complaint against Sparks , he inadvertently
failed to include this violation in the cease -and-desist part of his
recommended Order We shall modify the Order accordingly.
APPENDIX A
839
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board having found,
after a duly held trial, that we violated Federal law
by unlawfully disciplining an employee in reprisal for
filing and processing a grievance pursuant to the
terms of the collective-bargaining agreement, we
hereby notify our employees that:
WE WILL NOT threaten to issue complaints,
issue complaints , or take disciplinary action,
including layoffs, against employees in reprisal
for their filing or processing grievances pursuant
to the terms of a collective-bargaining agreement.
WE WILL NOT in any like or related manner
interfere with the Section 7 rights guaranteed our
employees under the National Labor Relations
Act, as amended.
WE WILL make Randall R. Sparks whole for
any loss of earnings he may have suffered by
reason of our unlawful conduct against him.
ANACONDA WIRE AND
CABLE COMPANY
(Employer)
Dated By
(Representative ) (Title)
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be
altered, defaced, or covered by any other material.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board's Office, 614 ISTA Center, 150 West Market
Street , Indianapolis , Indiana 46204, Telephone
317-633-8921.
DECISION
STATEMENT OF THE CASE
GORDON J. MYATT, Administrative Law Judge: Upon a
charge filed on February 3, 1972,1 by Randall R. Sparks,
an individual , against Anaconda Wire and Cable Compa-
ny (hereinafter called the Respondent ), a complaint and
notice of hearing was issued by the Regional Director for
Region 25 on March 23 . The complaint alleged , inter alia,
that the Respondent violated Section 8(a)(1) and (3) of the
Act by threatening employees with reprisals , including
disciplinary layoff, if they filed grievances . Further, that
i Unless otherwise indicated , all dates herein refer to the year 1972.
201 NLRB No. 125
840 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Respondent did engage in unlawful conduct by
imposing a 3-day disciplinary layoff upon Randall R.
Sparks for the reason that he filed a grievance pursuant to
the terms of the collective -bargaining agreement against
the Respondent . The Respondent's answer admitted
certain allegations contained in the complaint and denied
others, and specifically denied the commission of any
unfair labor practices.
This case was tried before me on May 11 and 12 in
Marion, Indiana. All parties were represented by counsel
and were afforded full opportunity to be heard and to
introduce relevant evidence on the issues . Briefs were
submitted by the General Counsel and the Respondent
and were fully considered by me in arriving at my decision
in this matter.2
Upon the entire record herein, including my evaluation
of the testimony of the witnesses based on my observation
of their demeanor and upon consideration of the relevant
evidence, I make the following:
FINDINGS OF FACT
I. JURISDICTIONAL FINDINGS
Respondent is a multiplant company primarily engaged
in the manufacture of electrical wire and cable. The
Marion, Indiana, plant-the only facility involved in this
proceeding-produces a variety of rubber and plastic
insulated and jacked wire and cables for use in transmit-
ting mili-amp and mili-volt electrical current. These
products are used by power utilities, industrial and mining
companies , and companies controlling nuclear reactors
and generator waiting stations.
During the past 12 months the Respondent manufac-
tured, sold, and shipped products valued in excess of
$50,000 from its Marion facility directly to points located
outside the State of Indiana. During a similar period the
Respondent purchased , transferred , and caused to be
delivered to its Marion facility goods and materials valued
in excess of $50,000 which were transported to that plant
directly from States other than the State of Indiana. Upon
the basis of the foregoing, I find that the Respondent is,
and has been at all times material herein, an employer as
defined in Section 2(2) of the Act engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Local Union No. 1000 of the International Brotherhood
of Electrical Workers, AFL-CIO (hereinafter called the
Union), is a labor organization within the meaning of
Section 2(5) of the Act.
2 The General Counsel submitted a motion to correct the record along
with his brief . Upon examination of my notes and the pertinent parts of the
record , I hereby grant the motion Accordingly , the record is hereby
corrected in the manner indicated in the motion ; a copy of which is
attached to this Decision as "Appendix B. [Omitted from publication.]"
3 The testimony indicates that the cleaning procedure was an involved
operation which consumed several hours . The process required the operator
to shut the machine off and to heat it up in order to keep the plastic
material , used in coating the cables , soft and pliable . If the material were
allowed to cool and harden , then the Job became more difficult. In addition,
111. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Filing of the Sparks Grievance
The initial dispute which set in motion the forces of
discord in this case occurred on January 12. There are
conflicting versions between the General Counsel 's witness
and the witnesses for the Respondent as to what took place
in the plant that evening.
According to Sparks , he was operating the # 1-6 inch
combination extruder machine with the assistance of a
utility helper . Sparks was working the second shift on that
date . He stated that at approximately 7:30 the machine
was down in preparation to cleaning the "head."3 Shift
Foreman Fair came over and informed Sparks that he was
taking his helper away to carry lead for the lead press.
Sparks testified that he protested because the cleaning of
the machine was a two-man job. According to Sparks, the
Company considered it to be such , since the operators
manual assigned a helper to the machine operator for this
purpose . Fair replied that he was the foreman and had
made a decision to remove the helper . During the course of
the conversation Sparks stated that he "might file a
grievance" about the matter .4 After his helper was assigned
elsewhere , Sparks left his machine without notifying Fair
and walked over to a machine operated by Moore, the
union steward .5 Sparks told Moore that his helper had
been taken away again (this had occurred on a prior
occasion and Sparks had complained then to Moore).
Sparks discussed the possibility of filing a grievance and
received a grievance form from Moore . Sparks testified
that he spent no more than 20 minutes with Moore
discussing the matter and then returned to his machine.
Sparks started the process of cleaning the head but did not
finish the job by the time his shift ended . He completed the
cleaning procedure during the first hour of his shift the
following day.
When Sparks left work on January 12, he took the
grievance forms home and typed a grievance stating that
Fair had violated Code 13 of the Operators Manual. This
regulation required an operator and a utility helper for the
shutdown and cleaning of his particular machine . Accord-
ing to Sparks, when he returned to work on the second
shift on January 13, he left his machine to hand the
grievance to Moore. He stated that Fair observed him and
told him that "if you file a grievance I am going to file a
complaint against you for being off the job 45 minutes."
Fair claimed to have three witnesses who would substanti-
ate his charge. Sparks went to Moore nonetheless and
handed him the grievance . Moore testified that he gave the
grievance to Fair who asked if he could take it home and
look it over. Moore agreed to this and nothing further was
stated regarding the grievance that day.
the material had corrosive properties which if allowed to stand for a long
period of time would cause damage to the machine
4 The record discloses that Sparks was not hesitant about using the
grievance procedure when he felt he was being wronged by management.
He was the only employee in the high voltage department who filed
grievances between July 1971 and January 1972.
S A diagram of the plant layout indicates that Sparks' machine was
approximately 80 to 90 feet in length and he had to walk the length of his
machine and an additional 25 feet in order to reach the machine operated
by Moore.
ANACONDA WIRE AND CABLE COMPANY 841
On January 14, Fair returned the grievance to Moore
with the notation that the grievance was denied because
the particular code cited as being violated had been long
discontinued. Moore placed his "steward' s comment" on
the grievance. Moore took the position that Fair had
violated the contract when he removed the utility helper
from Sparks' machine on January 12. Moore subsequently
processed the grievance by delivering it to Rader, the
department foreman. Rader and Fair were standing in the
aisle at the time approximately 5 to 6 feet from the
machine operated by Sparks. Moore testified that when he
handed the grievance form to Rader, he (Rader) turned to
Fair and said, "all right, if he filed that complaint against
you, you file one against him for being away from his
machine for 45 minutes." Sparks testified that he over-
heard this comment.
The Respondent's witnesses presented a different version
of what took place on January 12, and the events that led
up to the formal filing of the grievance. Fair testified that
he observed Sparks on January 12, and that the employee
left his machine at 3:30 p.m. to talk to the union steward.
He stated that Sparks stayed away from his machine 10 to
15 minutes and had to be instructed to return. According
to Fair, Sparks' machine was not operating at the time.
Fair further testified that at 4:30 p.m. he observed Sparks
leaving his machine again to talk to another operator. Fair
stated that he told Sparks to return to his work station,
where he should have been setting up the machine. Fair
testified that at 8:50 p.m. Sparks once again left his
machine and was talking to another machine operator in
the area. According to Fair, he stayed until 9:25 p.m. Fair
observed Sparks but said nothing to him at that point, as
he wanted to see how long the employee would stay away
from his machine. He stated that Sparks then started
walking down the aisle in the direction of the other end of
the plant, and he told the employee to return to his
machine because he had been away long enough to
warrant a complaint. According to Fair, Sparks ignored
him and went over and talked to the union steward. After
this conversation Sparks returned to his machine, but did
not complete the cleaning of the head which was his
assigned duty.
Rader testified that on January 13, the first-shift
operator of the same machine used by Sparks complained
that the head had not been cleaned the evening before.
Rader instructed the operator to use a smaller head and
leave the uncleaned head for the second-shift operator. He
stated that at the beginning of the second shift Sparks
came into his office and complained about his helper being
taken away the evening before. Rader told Sparks that if
the helper was needed elsewhere, it was perfectly permissi-
ble. Fair complained to Rader at the beginning of the shift
about Sparks' activity the evening before. He stated that he
wanted to write a complaint against Sparks. Rader told
Fair he wanted to review Sparks' file before taking any
action. He also told Fair that, if Sparks did not clean the
head that evening, he should write up a complaint against
6 The complaint was on a form used for internal communications; the
form was entitled "Avoid Verbal Orders" This document was put in
evidence (G C Exh. 7) and examination thereof revealed an obvious
stnkeover of the date on which the alleged misconduct occurred . Fair could
offer no explanation for the strikeover.
him for poor workmanship. He testified that he had
examined Sparks' timecard and felt that he had ample time
to have completed the cleaning of the head the evening
before.
Pence, the general foreman , testified that on January 12,
he had returned to the plant in the evening to do some
work. As he was leaving at 9:10 p.m. Fair complained to
him about Sparks being away from his machine. Pence
stated that he instructed Fair to observe the employee for
the balance of the night and make his recommendations.
Rader and Pence testified that they discussed the matter
regarding Sparks on January 14 and decided Fair should
file a complaint against him for his conduct on January 12.
Rader stated he relayed these instructions to Fair at 2:45
p.m. while they were standing in the aisle near the machine
operated by Sparks. While he was talking to Fair and after
he had instructed Fair to issue the complaint, according to
Rader, Moore came up and handed him the Sparks
grievance . Rader testified that he placed it in his pocket
and told Moore that he would receive it (the Respondent's
answer) in the proper time . Fair testified , however, that
nothing was said by anyone when Moore presented the
grievance.
B. The Events Following the Filing of the
Grievance
There is a factual dispute concerning what occurred at
the plant after Moore formally filed the grievance. Rader
testified that on January 17, at 7: 30 a.m ., he found the
written complaint from Fair on his desk.6 Rader walked
the document over to the personnel department and gave it
to Blair, the personnel manager. He recommended that
disciplinary action be taken against Sparks.
Blair testified that he was aware that Sparks had filed a
grievance at the time that Rader brought the complaint to
his office . He stated, however, that the grievance was not
considered when he discussed the merits of the complaint
with Plant Manager Van Hoy and Plant Superintendent
Benjamin .7 As a result of the conference among the
management officials , a decision was made to impose a 3-
day disciplinary suspension on Sparks. Blair subsequently
admitted to a union official that he wanted to fire Sparks.
The following day Sparks was working the third shift. At
approximately 7 a.m. Rader approached him and instruct-
ed him to go to the personnel office. Sparks testified that
he asked Rader if he needed a union representative
present. Sparks stated that Rader replied that he did not
"think" it was necessary. Both Pence and Rader were
present in the office when Sparks talked with Blair. Sparks
testified that Blair told him jobs were not plentiful and that
the Respondent was losing money as a result of the loss of
their copper mines in Chile. Sparks responded by saying
that he was not concerned about the loss the Company was
suffering and that he felt the complaint was unfounded
r Blair stated he examined Sparks ' personnel file in addition to talking to
Pence and Rader. Sparks , who had been employed by the Respondent for 2
1/2 years, had a prior warning dated August 31 , 1971, on his record for
being away from his work area on two separate dates . Sparks grieved this
action , and was absolved of any wrongdoing in one instance.
842 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
because he was away from his machine talking to his union
stewards Blair then informed Sparks of the disciplinary
layoff which was to become effective immediately. After
the disciplinary layoff was imposed, Sparks went to Pulley,
an employee and business agent of the Union, and was
promised that a meeting would be set up that afternoon
with the management officials on Sparks' grievance.
The meeting on the grievance was also held in Blair's
office. Pulley and Moore were present on behalf of Sparks
and Blair and Pence were the management representatives.
Prior to the conference, Blair had already notated on the
grievance form that the grievance was to be denied because
the regulation cited by Sparks had been rescinded for
several years. Blair admitted that the regulation was still
contained in the operator's manual although it no longer
applied. During the discussion on the grievance, Sparks
attempted to interject the subject of his disciplinary layoff.
Blair refused to discuss that matter stating that the meeting
was confined to the grievance. Sparks was told by the
union officials that he could file a separate grievance
concerning the layoff. During the discussion Moore
protested that he did not know of any other employee who
had ever been threatened, before this incident with Sparks,
for filing a grievance.
After the meeting on the grievance, Sparks talked with
the union representatives in the reception area of the
office. According to Sparks, Pulley told him that Rader
apologized to Blair for threatening Sparks over the filing of
the grievance. Sparks at this point was uncertain as to
whether he would grieve the disciplinary layoff. He left the
plant and went to the home of Moore where he secured a
grievance form from Mrs. Moore. He wrote on it in
longhand stating that his layoff was unfair . He then
decided to carry his protest to the employees at the plant.
He made up a picket sign which stated that the Respon-
dent had engaged in unfair labor practices. Sparks
appeared at the plant at 10 p.m. that evening and began to
picket the entrance as employees were reporting for work
on the third shift. A number of employees approached him
to find out why he was picketing. Sparks explained his
situation to them and approximately 50 percent of the
employees scheduled to work on the third shift remained
out. Shelley, the second-shift general foreman, approached
Sparks and told him to put the sign down and report to the
personnel office at 10 a.m. the following morning. Sparks
refused to discontinue the picketing, however, and re-
mained in front of the plant with his sign until 6:30 a.m.
the next day.
Shortly after Sparks started picketing, Benjamin tele-
phoned Van Hoy at home and told him there was trouble
at the plant. Van Hoy returned to the plant in order to
investigate and also to insure that production would be
maintained. Sometime during the course of the night, Bye,
president of the Union, came into Van Hoy's office and
stated that he and other union officials were at the plant to
determine the cause of the work stoppage. The union
officials promised to assist management in ascertaining the
reasons for the work stoppage.
Shortly before the first shift was scheduled to go to work
on January 19, Cable, chairman of the Union's executive
board, approached Sparks in front of the plant and asked
for the particulars regarding his picketing. Sparks gave him
the handwritten statement which he had in his pocket.
Cable promised to meet with the management officials on
the matter.
That morning the union and management officials met
in Van Hoy's office. Cable gave the handwritten statement
from Sparks to Van Hoy as the basis for the discussion.
The union officials took the position that the work
stoppage on the third shift was unauthorized and that they
would attempt to settle the matter. Van Hoy testified that
he contemplated taking disciplinary action against the
employees who did not report for work, as well as against
Sparks. During the course of the discussion, however, he
agreed that no discipline would be imposed for the work
stoppage, if the union representatives would keep the
employees working and try to assist in settling the basic
dispute . He also stated that if Sparks pursued the grievance
on the layoff, the Respondent would take a closer look at
his picketing activities . He asked the union officials to
counsel Sparks regarding the possible consequences of his
actions the night before. The union representatives agreed
to this, and Van Hoy asked for a response from them by 5
or 6 p.m. that evening.
That afternoon Sparks and the union officials met at the
labor temple. Pulley advised Sparks of the position taken
by Van Hoy. Pulley told Sparks that if he did not grieve the
layoff the Respondent would not discharge him, and he
would be allowed to return to work after the the expiration
of the 3-day suspension. Pulley also told Sparks that he had
until 5 p.m. to make his decision in the matter . Sparks was
not pleased with the developments and stated he would
reserve his right to file a grievance on the layoff. Pulley
called Van Hoy that evening and informed him that things
were calm and the men would continue to work. He also
told Van Hoy that Sparks reserved the right to grieve the
layoff.9
C. The Grievance Procedure Contained in the
Collective-Bargaining Agreement
The collective -bargaining agreement in force at the time
of the Sparks incident contained a complete grievance
procedure which culminated with arbitration. The provi-
sions of that agreement were as follows:
Step 1. By the aggrieved employee, or employees,
and the department steward with the department
foreman. If a satisfactory answer is not given within
twenty-four (24) hours after the complaint has been
presented, the matter shall be reduced to writing and
signed by the aggrieved and referred to Step 2 below
for adjustment . (Representatives of the parties shall
make written and signed disposition of any matter
A The Respondent had no written rule requiring employees to secure grievance with a union steward without first getting permission from his
permission from their supervisors to talk to union stewards Blair testified supervisor.
that it was the practice to do so, however, because of the continuous 9 Although Sparks would not commit himself regarding further action on
operation of the machines. He admitted that during his tenure as personnel the grievance , he did not pursue it any further He returned to work after the
manager (3 years) no employee had ever been disciplined for discussing a layoff and was subsequently transferred to the receiving department.
ANACONDA WIRE AND CABLE COMPANY 843
referred to them in each step on forms provided by the
"Union" for that purpose.)
Step 2. By the Business Manager of the "Union", or
his designated representative, with the Plant Superin-
tendent, or his designated representative. Should they
fail to adjust the grievance within a further period of
two working days it will then be referred to Step 3 for
adjustment at the request of either or both parties.
Step 3. By a majority of members of the "Union"
Executive Committee , (which committee shall not
exceed seven (7)) who may be accompanied by the
President, Business Manager, and Secretary of the
"Union" and, if desired by the "Union", a representa-
tive of the International Union, with the Plant
Manager, or his designated representative , and other
representatives of the "Company", at a meeting to be
held on the Tuesday following the expiration of the
time period under Step 2 above.
Should they fail to settle the matter, it will then be
referred to Step 4 for adjustment at the request of either
or both parties . Matters of mutual interest other than
grievances may be discussed at this meeting.
Step 4 . By a representative of the International
Union, who may be accompanied by the representa-
tives of the "Union" set forth in Step 3 above, with a
representative of the officers of the "Company."
Step 5. In the event that the dispute shall not have
been satisfactorily settled by the foregoing procedure,
the matter shall then be referred to arbitration at the
request of either party. One of the arbitrators is to be
selected by the "Company," one is to be selected by the
Union." The third is to be selected by the two thus
appointed from a panel of five (5) arbitrators to be
supplied by the Indiana Commissioner of Labor. The
decision of the majority of arbitrators shall be final and
binding. No question of a change in the wage scale or
differentials of pay shall be the subject of arbitration.
An aggrieved employee and/or his department
steward shall be present at each step of the grievance
procedure if he or either party so requests.
Each party shall bear the expense of preparing and
presenting its own case to the Arbitration Board, and
the expense of the third arbitrator and other incidental
expenses mutually agreed to in advance shall be borne
equally by both parties.
All matters which are, or may be presented for
settlement under the provisions of this Article shall be
presented by the employee, employees, "Company," or
"Union" as soon as practicable, but in no event later
than thirty (30) days after the occurrence complained
of came to the attention of the employees involved.
Any matter not so presented shall be deemed to have
been abandoned, and shall not be entitled to considera-
tion.
D. Concluding Findings
The central issue presented here is whether the complaint
and the resultant disciplinary action was taken against
Sparks in reprisal for his having filed a grievance over the
reassignment of his helper on January 12. If it is
determined that the Respondent initiated the action
against Sparks for this reason, then such conduct would be
in violation of the rights guaranteed the employee under
Section 7 of the Act. DC International, Inc., 162 NLRB
1383.
But before considering the merits of this case , attention
must be given to the recent policy (adopted by a sharply
divided Board) of deferring cases, in certain circumstances,
to arbitration when a statutory violation is alleged. This
policy , in its current form , first had its expression in Collyer
Insulated Wire, 192 NLRB No. 150. There a Board
majority held that changes in working conditions and
wages , alleged to be in violation of Section 8(a)(5), were
essentially "bottomed" on a substantial dispute over the
meaning of contract provisions . Thus, it was held that the
arbitration process was better suited to supply the
interpretation of the contract provisions , and the Board
should defer to that procedure as it would also resolve the
same issues involved in the asserted statutory violation.
This policy has been expanded recently to now include
circumstances where it has been alleged that an employee
has been disciplined or discharged in violation of Section
8(a)(3). National Radio Company, Inc., 198 NLRB No. 1. In
that case the majority held the Board should defer to the
grievance process , including arbitration, as "a mechanism
for a quick and fair vindication " of the employees' rights.
The significance of the National Radio decision upon the
instant case is apparent . If there is deferral here to the
grievance procedure set forth in the collective-bargaining
agreement, then the merits of the case need not be decided
by this forum .'° On the other hand , if the rationale does
not apply in this situation , then a determination must be
made as to whether on the basis of this record the
Respondent violated Section 8(a)(1) and (3) of the Act by
disciplining Sparks.
Although there are many similarities between the issues
posed in the instant case and those found in National
Radio, I am of the opinion that there are significant
differences which make that case inapplicable here. It is
true that in both cases the collective-bargaining agreements
contained grievance procedures which culminated in
arbitration . Likewise , in National Radio it was alleged that
the Respondent engaged in certain unlawful acts because
the discriminatee was involved in union activities, while in
the instant case it is alleged that the Respondent engaged
in certain unlawful conduct in order to discourage the
alleged discriminatee from engaging in certain protected
activity . But it is here that the similarities end. In National
Radio the Board majority relied heavily on the assumption
that the interests of the employee and the union were "in
substantial harmony," and that the Union was "aware of
its institutional interests in protecting its officer and
leading proponent against discipline which is thought to
restrict his activities on the Union 's behalf ." There is no
10 Although counsel for the Respondent did not couch his defense to the
Board's proceedings in this precise manner , either at the trial or in his brief,
he did argue at both stages that the issue of discipline administered to an
employee is the proper subject "of a grievance procedure and arbitration as
agreed upon by the employer and the union ." I interpret such an argument
as requiring me to consider whether this is the type of a case that should be
deferred to the grievance process contained in the collective -bargaining
agreement.
844 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
such indication in the instant case , however , that Sparks'
interests and that of the Union are one and the same. The
undisputed facts show that the union officials went to
management when Sparks was picketing and offered to act
as "mediators"; after first assuring management that it
disavowed the conduct which was taking place. When
Sparks met with the Union's executive board on January
19, he was told that the Respondent 's officials would not
impose any further discipline on him, provided he did not
grieve the layoff. It was then that the union representatives
also informed him that he could be discharged, if the
Respondent chose to act on the picketing . These state-
ments reflected the position taken by Van Hoy when he
met with the union representatives earlier that morning.
Thus, it is clear that neither the Respondent nor the Union
was interested at this point in utilizing the grievance
procedure to resolve the dispute. Indeed , it is evident that
they were determined to avoid using this process. There-
fore , it cannot be said , in these circumstances , that the
grievance procedure set forth in the collective-bargaining
agreement would have operated in the salutary manner
envisioned by National Radio; especially since neither the
Union nor the Respondent desired to invoke this process.
Although overt friction between Sparks and his union
representatives was not present in this case , there was
sufficient divergence of their respective positions so as to
preclude any assumption that their interests were "in
substantial harmony." Compare Kansas Meat Packers, a
Division of Aristo Foods, Inc., 198 NLRB No. 2. Further-
more , since Respondent 's top officials made it clear that
they did not want Sparks to pursue the grievance regarding
his disciplinary layoff, there is serious question here as to
whether that process would have the quick and stabilizing
effect sought by the Board majority in National Radio.
On the basis of the above , I find that the rationale set
forth in National Radio is not applicable to the facts of the
instant case , and a deferral to the grievance and arbitration
procedure is not warranted.
Turning to the merits of the case, the issue of whether the
complaint and the resultant disciplinary action was taken
against Sparks for unlawful reasons reduces itself to one of
credibility. If Sparks and Moore are to be believed, then a
violation of the Act has been established. If Fair, Rader,
and Blair are to be believed , then the complaint must be
dismissed.
It is clear from the undisputed testimony of the witnesses
that Sparks left his machine on January 12, without
securing permission from his supervisor to talk to the union
steward about the reassignment of his helper . It is also
apparent that Fair was angry over the fact that Sparks
protested his decision to move the helper. Fair testified that
Sparks was away from his machine for extended periods on
three occasions that evening; the latest period being from
8:50 p.m. to 9:25 p.m. Sparks denied being away other
than to talk to Moore and secure a grievance form . I do not
credit the testimony of Fair regarding Sparks' absence
from his machine. Having observed him on the stand, Fair
did not impress me as being the kind of individual who
11 My assessment of Fair's testimony is further influenced by his
apparent willingness to color his testimony in order to portray Sparks as a
chronic offender He testified that Sparks was constantly away from his
would have tolerated repeated infractions of plant rules by
an employee under his supervision . Furthermore, Fair
claimed he observed Sparks from 8 : 50 p.m . until 9 : 25 p.m.
to see how long he would remain away from his work area.
Yet Pence , if his testimony is to be believed , did not
instruct Fair to do this until 9 : 10 p.m.ii Accordingly, I find
that other than to leave his machine to discuss the
grievance with Moore , Sparks was not away from his work
area as testified to by Fair.
Sparks testified that Fair threatened to file a complaint
against him if he filed the grievance with the union
steward . Moore and Sparks testified that when Moore
handed the grievance to Rader, in the presence of Fair,
Rader then instructed Fair to file a complaint against
Sparks. Although both Fair and Rader denied that this was
said , I do not credit their denials . Fair stated that Rader
said nothing at the time the grievance was handed to him.
Rader testified , however, that he told Moore he would get
it (the Company's response) "in the proper time ." It seems
highly unlikely that Fair would not have heard this
comment, since he was standing next to Rader at the time.
The conflicting testimony of Fair and Rader in this regard
causes me to credit the account given by Moore and
Sparks.
The record discloses that Sparks was the type of
employee who would not hesitate to protest or grieve any
alleged injustice he felt he was suffering at the hands of
management. He was the only employee in the high voltage
department who filed grievances during the period July
1971 through January 1972. In addition , he did not hesitate
to picket the plant when he felt his disciplinary layoff was
unjustly imposed. It is apparent that his willingness to
grieve and protest was a source of consternation to the
Respondent's officials. For example , Blair admitted that he
wanted to discharge Sparks on January 17, but acknowl-
edged that, in the case of another employee with a more
serious record of offenses , a disciplinary layoff was
imposed.
I find, therefore, that the complaint was issued and the
disciplinary layoff was imposed by the Respondent's
officials in retaliation for Sparks' having filed a grievance
over the reassignment of his helper on January 12. Such
conduct interfered with the right of Sparks to engage in
protected activity guaranteed by Section 7 of the Act and
constitutes a violation of Section 8(aXl). The complaint
also alleges the conduct to be a violation of Section 8(aX3)
of the Act . Since the remedy would be the same , I find it
unnecessary to decide here whether that section of the Act
was also violated.
CONCLUSIONS OF LAW
1. Respondent , Anaconda Wire and Cable Company,
is an employer as defined in Section 2(2) of the Act
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. Local Union No. 1000 of the International Brother-
hood of Electrical Workers, AFL-CIO, is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
work area during the time he worked under Fair's supervision The
personnel file of Sparks, however , did not indicate that this was a chronic
complaint against the employee
ANACONDA WIRE AND CABLE COMPANY 845
3. By threatening to issue and by subsequently filing a
complaint and imposing a disciplinary layoff upon employ-
ee Randall R. Sparks in reprisal for his having filed a
grievance under the terms of the collective-bargaining
agreement , the Respondent has engaged in conduct in
violation of Section 8(a)(1) of the Act.
4. 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 had engaged in certain
unfair labor practices I shall recommend the issuance of an
order that it cease and desist therefrom and that it take
certain affirmative action necessary to effectuate the
policies of the Act.
The Respondent having discriminatorily laid off Randall
R. Sparks for 3 days in reprisal for this employee having
filed a grievance pursuant to the terms of the collective-
bargaining agreement, I shall order the Respondent to
make him whole for any loss of earnings that he may have
suffered as a result of the discrimination against him. The
backpay shall be computed on a quarterly basis plus
interest at 6 percent per annum as prescribed in F. W.
Woolworth Company, 90 NLRB 289 (1950), and Isis
Plumbing & Heating Co., 138 NLRB 716 (1962).
Accordingly, upon the foregoing findings of fact,
conclusions of law, and upon the entire record in this case,
pursuant to Section 10(c) of the Act, I make the following
recommended:
ORDER 12
Respondent, Anaconda Wire and Cable Company, its
officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Issuing complaints or taking a disciplinary action,
including layoffs, against employees in reprisal for filing or
processing grievances pursuant to the terms of a collective-
bargaining agreement.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of their
rights guaranteed under Section 7 of the Act.
2. Take the following affirmative action which I find
necessary to effectuate the policies of the Act:
(a) Make Randall R. Sparks whole for the loss of
earnings sustained by him during his 3-day disciplinary
layoff in the manner set forth in the section of this decision
entitled "The Remedy."
(b) Preserve and, upon 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 analyze the amount of backpay due under the
terms of this recommended Order.
(c) Post at its plant in Marion , Indiana , copies of the
attached notice marked "Appendix A. "18 Copies of the
notice, on forms provided by the Regional Director for
Region 25, after being duly signed by the authorized
representative of the Respondent, shall be posted by the
Respondent immediately upon receipt thereof, and shall be
maintained for 60 consecutive days thereafter , in conspicu-
ous places , including all places where notices to employees
are customarily posted . Reasonable steps shall be taken to
ensure that said notices are not altered, defaced , or covered
by any other material.
(d) Notify the Regional Director for Region 25, in
writing, within 20 days from the date of this Decision, what
steps the Respondent has taken to comply herewith.14
IT IS FURTHER ORDERED that the allegations of the
complaint setting forth violations not specifically found
herein be dismissed.
12 In the event no exceptions are filed to this recommended Order as
provided in Sec. 102.46 of the Rules and Regulations of the National Labor
Relations Board, the findings , conclusions , recommendations, and recom-
mended Order herein, shall as provided in Sec . 10(c) of the Act and 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.
13 In the event this Order is enforced by a Judgment by 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."
i4 In the event this recommended Order is adopted by the Board, after
exceptions have been filed , this provision shall be modified to read : "Notify
the Regional Director for Region 25, in writing , within 20 days from the
date of this Order, what steps the Respondent has taken to comply
herewith."