Avco Corp.

National Labor Relations Board - Board Decisions

Oct 5, 1972

199 N.L.R.B. 505 (N.L.R.B. 1972)

AVCO CORPORATION
Avco Corporation, Avco Electronics Division and
Louise F . Hundley . Case 9-CA-6788
October 5, 1972
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS JENKINS AND
KENNEDY
On July 14, 1972, Administrative Law Judge'
Henry L. Jalette issued the attached Decision in this
proceeding. Thereafter, the Respondent filed excep-
tions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the
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.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that Respondent, Avco Corporation, Avco
Electronics Division, Cincinnati, Ohio, its officers,
agents, successors, and assigns, shall take the action
set forth in the said recommended Order.
The title of "Trial Examiner" was changed to "Administrative Law
Judge" effective August 19, 1972
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
HENRY L. JALETTE, Trial Examiner: This case involves
allegations that Respondent violated Section 8(a)(1) of the
Act by threatening to discharge an employee for filing too
many grievances and by searching through her union rec-
ords. The employee in question, Louise Hundley, filed the
charge on which the complaint is based on February 8,
1972, and complaint issued on March 24, 1972.' On May 30,
a hearing was held in Cincinnati, Ohio.
Upon consideration of the entire record, including my
observation of the witnesses and the briefs filed by General
Counsel and Respondent, I make the following:
' Unless otherwise indicated, all dates appearing hereinafter are in 1972.
FINDINGS OF FACT
I THE FACTS
505
Respondent is engaged in the manufacture of electron-
ic devices at a plant in Cincinnati, Ohio,2 Local Union No.
1842. International Brotherhood of Electrical Workers,
AFL-CIO, is the collective-bargaining representative of
employees of the Respondent in a unit not defined in the
record, but one which includes what appear to be plant
clerical employees. One of these is Louise Hundley, an em-
ployee of 17 years.
About October 1971, Hundley was appointed a shop
steward, a position she held until April 7 when she was laid
off for economic reasons . During that period of time, Hund-
ley filed many grievances. She filed at least one grievance
per week and sometimes two per day. Between 10 and 15
of these grievances were on her own behalf, and the majori-
ty of them involved charges that Respondent was assigning
bargaining unit work to nonunit salaried employees. None
of these grievances was shown to have had merit.
On January 7, Hundley filed three grievances as an
aggrieved employee. Phil Braeuning, Respondent's person-
nel administrator at the time, had assigned numbers to
Hundley's grievances of that date. Shortly thereafter, Bobby
Mitchell, the Union's chief steward, chanced to meet
Braeuning in the plant and Braeuning told him that Hund-
ley was driving him crazy, and he was going to fire her over
filing so many grievances. Braeuning asked Mitchell to re-
lieve Hundley as steward and Mitchell told him only the
union president could do that. Union President, Laura Gas-
sert, was then on layoff status, and Braeuning called her at
home and requested that she remove Hundley as steward.
Gassert discussed with Hundley the grievances she had filed
and telephoned Braeuning to tell him the grievances were
legal and that Hundley would remain as steward.
On January 17, in the performance of her duties,
Hundley went to the blueprint room for some blueprints.
While there, she was asked by an employee if she would
deliver to a salaried employee named Sue Pearsall, a blue-
print Pearsall had ordered. Upon examining the work order,
Hundley concluded Pearsall should not have ordered the
blueprint, that a work order for such a blueprint should
have been processed through her office. According to
Hundley, she requested a copy of the work order from the
blueprint clerk, left the original work order that Pearsall had
placed and the blueprint Pearsall had ordered, returned to
her office to check her blueprint file, noted that her blue-
print copy had the wrong revision, and noted on a list she
maintained that she should order the blueprint for her files.
Then, Hundley sought out Chief Steward Mitchell and filed
a grievance claiming Pearsall had been performing unit
work. She gave a copy of the Pearsall work order to Mitchell
with the grievance.
Hundley works alone in an office containing about 100
file cabinets. In the drawer of one of these which was not
being used to file company material, she kept a folder con-
taining her union material (this material consisted of copies
of grievances which had been filed, and copies of various
2 Commerce is not in issue . The complaint alleges, the answer admits, and
I find that Respondent meets the Board's $50,000 direct outflow standard for
the assertion of jurisdiction.
199 NLRB No. 86
506 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
company forms) and some minutes she kept as secretary of
the credit union . When Hundley left work , she would lock
this office so that unauthorized personnel could not have
access to the company files . On this particular day, after she
left the office , Braeuning and supervisor Fred Besco entered
the office and searched through the file cabinets until they
found the file drawer containing Hundley 's folder of union
material . Braeuning fingered through the material , did not
find what he was looking for , and returned the folder to the
drawer.
The next day, having learned of this action , Hundley
confronted Braeuning and he admitted his action . He told
Hundley , in the presence of Mitchell , Gassert, Besco, and
others , that he had been searching for the original of the
work order used by Sue Pearsall and he told Hundley that
had he found it in her possession he would have fired her.
II ANALYSIS AND CONCLUSIONS
The foregoing recitation of facts consists essentially of
the testimony of General Counsel' s witnesses . There are
differences in the testimony of the witnesses about what
actually happened on January 17 and 18, such as whether
Hundley made several copies of the missing work order or
only one, and whether Hundley presented a copy of the
missing work order to Braeuning preliminary to the filing of
any grievance. These differences are not critical to a disposi-
tion of the case , but I accept Braeuning's version of the
events over Hundley's because I find it more detailed and
coherent . A critical difference in testimony exists as be-
tween Chief Steward Mitchell and Braeuning who denied
Mitchell 's testimony that Braeuning had told him Hundley
was driving him crazy and he was going to fire her. In
arguing for the credibility of Braeuning , Respondent rightly
points out that at the time of his testimony Braeuning was
no longer an employee of Respondent , had left
Respondent's employment for personal reasons , and had no
reason to he to protect Respondent . This factor deserves
serious consideration and is one which I recognized as being
present at the time of the hearing . After careful considera-
tion , I have concluded that this factor is outweighed by
Braeuning's demeanor on the witness stand , by what I con-
sider an evasiveness in his answers both about his conversa-
tion with Mitchell and that with Gassert, and what I deem
to be his incredible explanation for searching the file cabi-
net containing Hundley' s papers . I am convinced Braeuning
requested Mitchell and Gassert to remove Hundley as stew-
ard and I consider his answers on that point less than can-
did. Accordingly, I credit Mitchell's testimony about
Braeuning's threat . I might add that I am mindful that
Mitchell is chief steward who appeared to support Hundley
in her grievance filing , and that he would naturally tend to
support her. However, I observed nothing in his demeanor,
nor in his testimony , which would incline me to discredit
him.
Contrary to Respondent 's contention , therefore, I find
as alleged in the complaint , that Braeuning threatened the
discharge of Hundley for filing too many grievances. Re-
gardless of the fact that her grievances were lacking in merit,
there is no contention or showing that her activity was un-
protected , and Respondent was not justified in threatening
her with discharge.
Initially , I tended to view Braeuning 's remarks as mere-
ly the words of a man exasperated by the irresponsible
conduct of Hundley in filing grievances over the slightest
incident without bothering ever to discover what the facts
were. I tended to believe Braeuning did not really intend his
remarks as a threat . I abandoned this view when I consid-
ered that Braeuning was sufficiently serious to seek
Hundley's removal as shop steward . More to the point,
however, was his conduct on January 17 and 18.
As I indicated above, I have accepted Braeuning's ver-
sion of what happened on January 17, a version which
includes an admission of the search of a file cabinet and the
examination of a folder of union materials maintained by
Hundley . Respondent asserts that Braeuning had the right
to enter the office used by Hundley and to search through
its own file cabinets , particularly when it had reason to
believe that an employee had in its possession a confidential
document . Respondent's argument misses the mark.
The explanation offered by Braeuning for his conduct
on January 17 was that the fact that the Pearsall work order
was missing , presented a question of security because of the
nature of the products manufactured by Respondent, and
it was necessary to investigate to determine the whereabouts
of the work order . I do not credit this explanation.
On Braeuning's own testimony , not only had Hundley
given him a copy of the work order earlier that day, she also
had several copies in her folder of union materials. It is
incomprehensible to me how the absence of the original
work order could present a security problem when there
were so many copies extant . I could understand concern
over loss of the blueprint , yet Braeuning considered this
insignificant.
Why, then , did Braeuning search the file cabinet? It is
evident that he did so to uncover grounds for discharging
Hundley . This was revealed both by his threat to Mitchell
on January 7 to discharge Hundley for filing too many
grievances , and by his remarks to Hundley on January 18
that had he found the original work order among her effects
he would have discharged her. (Braeuning watered down
this January 18 statement in his testimony, but I do not
credit his version ; rather, I credit Mitchell , Gassert, and
Hundley.) Discharge would appear to have been a severe
penalty for the unauthorized possession of a work order,
particularly where the employee had 17 years of service and
the work order was merely a requisition form such as Hund-
ley herself apparently had authority to use to requisition
blueprints. The unlawful purpose of the search is further
revealed by the fact that Braeuning waited until Hundley
left the office to conduct his search although he had an
opportunity to confront her with his suspicions and to ask
her to show him the contents of the file drawer from which
he had seen her withdraw a copy of the work order. If he
felt she was too unreasonable to deal with in that fashion,
he could have called on chief steward Mitchell or Union
President Gassert.
For all the foregoing circumstances , I conclude that the
search of the file cabinet was a pretext used by Braeuning
to discharge Hundley because she was filing too many griev-
ances, and under these circumstances the search was viola-
tive of Section 8(a)(1) of the Act.
AVCO CORPORATION 507
III THE EFFECT OF THE UNFAIR LABOR pretext for discharge.
PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section I
and II, above, occurring in connection with its operations
described above, have a close, intimate, and substantial
relationship to trade, traffic, and commerce among the sev-
eral States and tend to lead to labor disputes burdening and
obstructing commerce and the free flow of commerce.
IV THE REMEDY
Having found that Respondent has engaged in unfair
labor practices in violation of Section 8(a)(1) of the Act, I
shall recommend that it be ordered to cease and desist
therefrom and to take certain affirmative action designed to
effectuate the policies of the Act.
Respondent contends that even were I to find that
Braeuning made the threat attributed to him by Mitchell on
January 7, a remedial order is not warranted inasmuch as
such a statement would have been the only occurrence in a
long bargaining history, with no showing of any other union
animus, and in the context of a conversation between a
company personnel manager and union chief steward only,
with no showing that the alleged statement was published
either to Hundley or any other employee.
I reject this contention for several reasons. First, I have
found not only the unlawful statement on January 7, but the
unlawful search on January 17, as an attempt to implement
the unlawful statement. Second, the unlawful statement was
evidently communicated to Hundley because the charge she
filed herein was partly predicated on the statement. Third,
even had it not been communicated to Hundley, the threat
to one steward, albeit a chief steward, that another steward
will be discharged for filing too many grievances would tend
to discourage that steward from exercising rights protected
by Section 7 of the Act.
(b) In any like or related manner interfering with, re-
straining, or coercing its employees in the exercise of their
right to self-organization, to form, join, or assist labor or-
ganizations, to bargain collectively through representatives
of their own choosing, and to engage in concerted activities
for the purpose of collective bargaining, or other mutual aid
or protection as guaranteed by Section 7 of the Act, or to
refrain from any or all such activities.
2. Take the following affirmative action designed to
effectuate the policies of the Act:
(a) Post at its plant in Cincinnati, Ohio, copies of the
attached notice marked "Appendix."4 Copies of said notice,
on forms provided by the Regional Director for Region 9,
shall, after being duly signed by a representative of Respon-
dent, be posted by it immediately upon receipt thereof and
maintained by it for a period of 60 consecutive days there-
after, in conspicuous places, including all places where no-
tices 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 9, in writ-
ing, within 20 days from the receipt of this Decision, what
steps the Respondent has taken to comply herewith .5
3 In the event no exceptions are filed as provided by Section 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall , as provided in Section
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.
4 In the event that the Board's 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 be changed to read "Posted
Pursuant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
5 In the event that 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 9, in writing , within 20 days from the date
of this Order, what steps the Respondent has taken to comply herewith."
CONCLUSIONS OF LAW
1. Avco Corporation, Avco Electronics Division, is an
employer engaged in commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
2. Local Union No. 1842, International Brotherhood of
Electrical Workers, AFL-CIO, is a labor organization with-
in the meaning of Section 2(5) of the Act.
3. By threatening the discharge of an employee for
filing grievances and searching her personal files to find a
pretext to discharge her, Respondent has engaged in and is
engaging in unfair labor practices within the meaning of
Sections 8(a)(1) and 2(6) and (7) of the Act.
Upon the foregoing findings of fact, conclusions of
law, and the entire record, and pursuant to Section 10(c) of
the Act, I hereby issue the following recommended:3
ORDER
Respondent, Avco Corporation, Avco Electronics Di-
vision, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Threatening employees with discharge for filing
grievances and searching employee personal files to find a
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
,NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a trial in which both sides had the opportunity to
present their evidence, the National Labor Relations Board
has found that we have violated the law and has ordered us
to post this notice.
WE WILL NOT threaten employees with discharge for
filing grievances, and
WE WILL NOT search personal files of employees to
find an excuse to discharge them.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise
of their right to self-organization, to form labor organi-
zations, to join or assist labor organizations, to bargain
collectively through representatives of their own choos-
ing, and to engage in concerted activities for the pur-
pose of collective bargaining or other mutual aid or
508 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
protection , or to refrain from any or all such activities . This is an official notice and must not be defaced by
anyone.
Avco CORPORATION , Avco ELECTRON- This notice must remain posted for 60 consecutive days
ICS DIVISION from the date of posting and must not be altered, defaced,
(Employer) or covered by any other matenal . Any questions concerning
this notice or compliance with its provisions may be direct-
Dated By ed to the Board's Office , 550 Mam Street , Federal Office
(Representative) (Title) Building , Cincinnati , Ohio 45202 , Telephone 513-684-3686.