Arnold Junior Fenton, Inc.

National Labor Relations Board - Board Decisions

Jan 25, 1979

240 N.L.R.B. 202 (N.L.R.B. 1979)

202 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Arnold Junior Fenton, Inc. and District No. 9, Inter-
national Association of Machinists and Aerospace
Workers, AFL-CIO. Case I4lCA 10852
January 25. 1979
DECISION AND ORDER
BY CHIAIRMAN FANNING AND MEMBERS JNKINS
ANI) PNl.lI.O
On September 14, 1978, Administrative aw Judge
James L. Rose issued the attached Decision in this
proceeding. Thereafter, the General Counsel filed ex-
ceptions and a supporting brief, and Respondent
filed a brief in opposition to the General Counsel's
exceptions.
Pursuant to the provisions of Section 3(b) of the
National abor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge only to
the extent consistent herewith.
We adopt the Administrative Law Judge's finding
that Respondent did not violate Section 8(a)(3) and
(1) of the Act by discharging employee Miller and
did not deny him union representation. In the ab-
sence of exceptions, we adopt his finding that Re-
spondent did not threaten Miller with respect to his
union activities. However. we disagree with his find-
ing that Respondent did not unlawfully threaten em-
ployee William Bade with discharge for engaging in
protected activity.
Employee Bade was discharged in June 1976 and
reinstated pursuant to an arbitration proceeding. On
August 15. 1977, Delmar Thomas, facility manager,
called Bade into his office. According to Bade,
Thomas said that:
I had caused him more problems and more trou-
bles than all the employees he has ever had
working for him, that I filed charges to the Na-
tional Labor Relations Board, I had called
OSHA, I had hired an attorney and filed suit
against the company [Interruption] and that he
didn't want any further trouble out of me. He
told me to go out in the shop and go to work.
that Mr. Halcomb [the shop foremanl would
give me instructions, I should follow them, and
if he was to leave the shop or Mr. Halcomb
leaves the shop. I'm not to tell him I'm going to
sit down and not do anything, that I should go
do my job or he was going to fire me again, and
240 NLRB No. 26
I said, "That sounds reasonable." and that was
about the end of the conversation. He says,
"Now go to work."
The Administrative Law Judge found that, even
accepting at face value Bade's presentation of this
conversation. nothing in the conversation indicated
that Thomas threatened Bade in violation of the Act.
He noted that the mere fact that an employer may
say "National Labor Relations Board" in talking to
an employee is not in and of itself sufficient to estab-
lish that a threat had been made directly or im-
plicitly, and he concluded that Thomas did not
threaten to fire Bade if in the future he should engage
in activity protected by Section 7. We disagree.
Thomas denied that he threatened to discharge or
discipline Bade because of his union activities or for
filing a charge with the Board. However, Thomas'
implied threat that he wanted "no further trouble"
was undenied. Thus, considering Thomas' expressed
displeasure over Bade's "causing him problems," the
clear implication of Thomas' statement was that
Bade was not to engage in any more protected con-
certed activities. Accordingly, even accepting
Thomas' denials, we find that by this intimidating
statement Respondent has violated Section 8(a)( I) of
the Act.'
CN( It SIO()NS O() LAW
1. Arnold Junior Fenton. Inc., is an employer en-
gaged in commerce within the meaning of Section
2(2). (6), and (7) of the Act.
2. By threatening employee William Bade with
discharge if he engaged in protected activity. Re-
spondent has violated Section 8(a)(I) of the Act.
3. The foregoing unfair labor practice affects com-
merce within the meaning of Section 2(6) and (7) of
the Act.
Toil Ri I i)Y
Htaving found that Respondent has engaged in cer-
tain unfair labor practices, we shall order that it
cease and desist therefrom and that it take certain
affirmative action designed to effectuate the policies
of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that Respondent, Ar-
nold Junior Fenton. Inc., St. Louis. Missouri. its offi-
See Rm i rl ' ir ipq"' n. Ir i 229 NI.RB 429. 433 977)
ARNOLD JUNIOR FENTON, INC, 203
cers, agents, successors, and assigns, shall:
I. Cease and desist from:
(a) Threatening employees with discharge if they
engage in protected activity.
(b) In any like or related manner interfering with,
restraining, or coercing its employees in the exercise
of the right to self-organization, to form, join, or as-
sist any labor organization, to bargain collectively
through representatives of their own choosing, and to
engage in concerted activities for the purpose of mu-
tual aid or protection, as guaranteed in Section 7 of
the Act, or to refrain from any and all such activities.
2. Take the following affirmative action which the
Board finds will effectuate the purposes of the Act:
(a) Post at its St. Louis, Missouri, place of busi-
ness copies of the attached notice marked "Appen-
dix." 2 Copies of said notice. on forms provided by
the Regional Director for Region 14, after being duly
signed by Respondent's representative, shall be post-
ed by Respondent immediately upon receipt thereof.
and be maintained by it for 60 consecutive days
thereafter, in conspicuous places, including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by Respondent to
insure that said notices are not altered, defaced, or
covered by any other material.
(b) Notify the Regional Director for Region 14. in
writing, within 20 days from the date of this Order,
what steps Respondent has taken to comply here-
with.
IT IS FURTHER ORDERED that the allegations of un-
lawful conduct not specifically found to be violative
herein be dismissed.
2 In the event that this Order is enforced hb ajudgment of a nited 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 Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
APPENDIX
NOTICE To EMPLOYE:ES
POSTED BY ORDER OF THE
NATIONAL LABOR REI.AFIONs BOARD
An Agency of the United States Government
WE WILL NOT threaten employees with dis-
charge for engaging in protected activity.
WE Will. NOT in any like or related manner
interfere with, restrain, or coerce our employees
in the exercise of the right to self-organization,
to form, join, or assist any labor organization, to
bargain collectively through representatives of
their own choosing, and to engage in concerted
activities for the purpose of mutual aid or pro-
tection. as guaranteed in Section 7 of the Act, or
to refrain from anr and all such activities.
ARNOLD J NIOR FN ION. IN(
DECISION
STATEMENI O 1 HE CASE
JAMES L ROSE. Administrative Law Judge: This matter
was heard before me on June 23, 1978. at St. Louis. Mis-
souri, upon the General Counsel's complaint which al-
leged, in substance, that on or about October 27, 1977,'
Respondent discharged John Miller in violation of Section
8(a)(3) of the National Labor Relations Act, 29 U.S.C., §
151, et seq. It is also alleged that Respondent violated Sec-
tion 8(a)(1) of the Act by threatening Miller and William
A. Bade and by denying Miller's request for union repre-
sentation on October 27.
Respondent generally denied the allegations of the com-
plaint and affirmatively answered that the 8(a)(3) allega-
tion concerning Miller should be dismissed on grounds
that the cause of his discharge has been decided in an arbi-
tration proceeding pursuant to the grievance procedure of
the collective-bargaining agreement, and that the Respon-
dent has complied with the arbitrator's award. Spielherg
Manufacturing Co.. 112 NLRB 1080 (1955).
From the record as a whole, including my observation of
the witnesses, briefs and arguments of the counsel. I hereby
make the following:
FINDINGS OF FACT AND CONCLUSIONS OF LAW
I JURISDICTION
Respondent is engaged in the business of transporting
freight and commodities in interstate commerce with its
principal office at St. Louis, Missouri. In the course of this
business, Respondent annually derives revenues in excess
of $50,000. Respondent admits, and I find, that it is an
employer engaged in interstate commerce within the mean-
ing of Section 2(2), (6), and (7) of the Act.
It THE LABOR ORGANIZATION INVOIsED
District No. 9. International Association of Machinists
and Aerospace Workers, AFL-CIO (herein the Union) is
admitted to be, and I find is, a labor organization within
the meaning of Section 2(5) of the Act.
III THE ALLEGED NFAIR LABOR PRA(TI( ES
A. The Alleged Threats
In June 1976 William A. Bade was discharged. Follow-
ing an arbitration proceeding he was ordered reinstated.
and on August 15 he reported to work at 8 a.m. Delmar H.
Thomas, then the facility manager. called Bade into his
All dater ;ire 111 1977 ullex ,therr ilse Indicaled
ARNOLD JUNIOR FENTON, NC 03
.. _ . . _ .. , ... .. _ \
204 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
office and spoke with him for a few minutes stating, ac-
cording to Bade, that:
I had caused him more problems and more troubles
than all the employees he has ever had working for
him, that I filed charges to the National Labor Rela-
tions Board, I had called OSHA, I had hired an attor-
ney and filed suit against the company [Interruption]
and that he didn't want any further trouble out of me.
He told me to go out in the shop and go to work, that
Mr. Halcomb (the shop foreman) would give me in-
structions, I should follow them, and if he was to leave
the shop or Mr. Halcomb leaves the shop, I'm not to
tell him I'm going to sit down and not do anything,
that I should go do my job or he was going to fire me
again, and I said, "That sounds reasonable," and that
was about the end of the conversation. He says, "Now
go to work."
The General Counsel contends that in this conversation
Thomas made a threat in violation of Section 8(a)(1) of the
Act. Even accepting at face value Bade's presentation of
this conversation, the substance of which is denied by
Thomas, I find nothing in it which would indicate that
Thomas threatened Bade in violation of the Act.
The mere fact that an employer may say "National La-
bor Relations Board" in talking to an employee is not in
and of itself sufficient to establish that a threat had been
made directly or implicitly.
It appears from Bade's testimony that upon returning to
work, after prolonged litigation, Thomas advised him what
the ground rules would be-that he expected Bade to do a
full day's work. Thomas did not threaten to fire him if in
the future he should engage in activity protected by Section
7. 1 therefore conclude that the General Counsel has not
established by preponderance of the evidence the allega-
tion set forth in paragraph 5(a) of the complaint, and I
shall recommend that it be dismissed.
Similarly, it is alleged that when Miller returned to work
on September 1, as with Bade following an arbitrator's de-
cision, he was called into Thomas' office and Thomas stat-
ed:
You have cost this Company a lot of money. You have
caused a good man to lose his job. You are not to
engage in union activities of any kind any more. Do
not disturb the men. Don't create situations," told me
to get out of his office and go to work. He said, "I
heard you were a journeyman," and as I was walking
out the door, he laughed about it.
Thomas testified that in this conversation he told Miller
only, "I wanted eight hours' work for eight hours' pay."
Thomas denied that there was any mention by him of any
union activities.
Accepting Miller's version of this conversation would es-
tablish a violation of Section 8(a)(1), in that an employer
may not order employees not to engage in activity protect-
ed by Section 7.
However, I do not credit Miller. Rather, I conclude that
his recollection of this alleged statement by Thomas is in-
accurate. This conclusion is based upon the relative de-
meanor of Miller and Thomas as well as the inherent prob-
abilities.
Miller is the principal complainant in this matter, the
General Counsel having alleged that he was discharged for
his union activities. That he would remember the Employer
told him on his first day back to work not to engage in
union activity would be to his advantage, tending to sup-
port a finding of union animus on the part of Thomas who
discharged him.
On the other hand, Thomas is not an interested party in
this matter. He is no longer working for Respondent and in
fact appeared at the hearing under subpena. Thomas has
no apparent stake in the outcome of this matter; thus, there
is no reason to believe that he would not remember the
events as accurately as possible.
Beyond that, there was no showing that Miller had en-
gaged in any particular union activity prior to his first dis-
charge, or that his discharge was in any way related to
union activity. He had for a time been a shop steward but
apparently at a facility different from the one involved
here. But there is no showing that at any time when he
worked under Thomas he engaged in any union activity,
much less activity of such intensity as to make believable a
warning by Thomas concerning it. In view of these facts,
there is no reason why Thomas would fortuitously tell
Miller, on Miller's first day back to work, not to engage in
any union activity.
I accordingly conclude that this statement was not made
by Thomas as alleged, and that the General Counsel has
failed to prove by a preponderance of the evidence the
allegation contained in paragraph 5(c) of the complaint.
B. Denying Miller Union Representation
On October 27, Miller was scheduled to be a witness on
behalf of the Union in an arbitration proceeding involving
the discharge of Chandler James. In connection with this,
Gerald Knoth, business representative for the Union, sent
Respondent a letter on October 21 requesting that Miller
be excused from work on October 27 in order to attend the
hearing, which he stated was to begin at 9 a.m.
Miller's normal workday begins at 6 a.m. One of his
irincipal early morning jobs is to start the trucks, some of
which are difficult to start. On the morning of October 27,
believing that he had been excused for the entire day,
Miller did not report for work. As a result, many drivers
were delayed because their trucks would not start. Termi-
nal manager Barry Cash called Halcomb, who in turned
called Miller, believing that Miller was to have reported to
work at his regular time. This telephone conversation then
began a series of confrontations between Miller, Halcomb,
and finally Thomas.
As a result of Halcomb's call, Miller did, in fact, come to
Respondent's premises, arriving at about 8 a.m. but he did
not clock in as Halcomb told him that it was "too late
now." During the course of the next few minutes or so,
Miller was invited by Halcomb outside to fight, which he
declined, and then he was called into Thomas' office.
When he got into Thomas' office Miller asked where his
shop steward was. Thomas said words to the effect that the
shop steward was not there. Miller then indicated that he
would not talk to Thomas without the presence of the
ARNOLD JUNIOR FENTON, INC. 205
union steward and turned to leave the office. About this
time Halcomb was coming into Thomas' office. Although
the versions of the participants differ to some extent, it is
clear that Miller, who stands 6 feet 4 inches and weighs 300
pounds, met the 6 foot 210 pound Halcomb in the doorway
to Thomas' office, and as a result of their physical contact,
Halcomb was knocked to the ground.
The General Counsel contends that Halcomb was at-
tempting to block Miller's exit from Thomas' office and
that in doing so, Respondent thereby was attempting to
deny Miller representation by his Union in violation of his
Section 7 right to have such. N.L.R.B. v. J. Weingarten,
Inc., 420 U.S. 251 (1975).
An employee in a situation such as the one in which
Thomas found himself on the morning of October 27 is
entitled to union representation when requested. However,
the record does not support the General Counsel's conten-
tion that somehow Respondent sought to deny Miller this
right. Even from Miller's testimony, it is clear that his leav-
ing Thomas' office through the doorway at the same time
Halcomb was coming in was a fortuitous event. There is no
indication even from Miller's testimony that Halcomb was
attempting to bar his exit from the office. Nor is there
anything in Miller's recall of this event to indicate that
Thomas made any statement to the effect that Miller
would not be allowed to have union representation.
It is therefore my conclusion that General Counsel has
not proved by preponderance of the evidence that in fact
Respondent denied or attempted to deny Miller his right to
be represented by the Union on October 27.
C. The Discharge of Miller
After leaving Thomas' office, Miller left the company
premises to attend the arbitration hearing. Later that day.
Thomas wrote him a letter stating that he was discharged
for:
1. Loud, vulgar and intimidating language to shop
foreman Robert Halcomb on the shop floor.
2. You were asked to step into my office and ex-
plain why you failed to report for your regular shift at
6 A.M. Your first words were, where is my shop stew-
ard and as Bob Halcomb came through the door into
my office, you shoved and manhandled him back
through the door stating you did not want to talk to
anybody unless your shop steward was present. This
was unnecessary and uncalled for and the manage-
ment of this company will not tolerate any such con-
duct from any employee.
The General Counsel contends that by this letter
Thomas demonstrated that he discharged Miller because
Miller had sought to exercise his right to have a union
representative present. The General Counsel alternatively
contends that because the alleged "manhandling" of Hal-
comb was a pretext, therefore Respondent's real reason for
discharging Miller was his known activity on behalf of the
Union. Finally, the General Counsel argues that even
though this matter was the subject of an arbitration pro-
ceeding, since Miller was awarded reinstatement but no
backpay, the remedy is repugnant to the Board's policy.
Therefore, deferral under Spielberg is not appropriate.
The General Counsel does not contend that the arbitra-
tion proceeding was not fair or regular, or did not substan-
tially comply with the Board's processes or generally ac-
cepted concepts of due process. The General Counsel
argues only that having found Miller was discharged for a
reason proscribed by the Act, the arbitrator's award was
not adequate.
In this regard the General Counsel asserts that the arbi-
trator concluded Miller was discharged because he had re-
quested the presence of a union representative in the meet-
ing with Thomas. My reading of the arbitrator's decision
leads me to conclude that such was not the basis of his
decision. Rather, he concluded that Miller was discharged
for the manner in which he left Thomas' office. Thus:
While the Grievant may have been justified in refusing
to meet with both Harry Thomas and the Foreman, he
was not justified in leaving the office in the manner
which was done herein as it resulted in physical con-
tact with the Company Foreman.
The arbitrator further found that the situation arose as
the result of a misunderstanding concerning whether Miller
had to report for work on October 27, which escalated to
the point that both Respondent, acting through Halcomb,
and Miller were at fault. The arbitrator concluded that
while discharge was not justified, neither was Miller justi-
fied in the physical contact with Halcomb. Thus Miller
should be awarded reinstatement but without backpay.
I conclude that this matter should, under Spielberg. be
deferred to the forum voluntarily agreed to by Miller, the
Union and Respondent.
On the record before me it is possible to reach a conclu-
sion different from that of the arbitrator, but such is not
required. The decision of the arbitrator is supported by this
record, and his finding that Miller was discharged for a
reason other than that alleged in the complaint is not clear-
ly erroneous. Perhaps had there been a finding by the arbi-
trator that the discharge was motivated by a reason pro-
scribed by the Act, then without a standard remedy
deferral would not be proper. But such was not the case.
As indicated, the arbitration proceeding itself met the tests
of Spielberg, and as Respondent has, in fact, complied with
the arbitrator's award, the complaint in this regard should
be dismissed. Crown Zellerbach Corporation. Flexible Pack-
aging Division, 215 NLRB 385 (1974).
[Recommended Order for dismissal omitted from publi-
cation.]
ARNOLD JUNIOR FENTON. INC