B. F. Goodrich Co.

National Labor Relations Board - Board Decisions

Oct 11, 1977

232 N.L.R.B. 1066 (N.L.R.B. 1977)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. F. Goodrich Company and Stewart Grimes. Case
I -CA- 12443
October 11, 1977
DECISION AND ORDER
BY MEMBERS JENKINS, PENELLO, AND MURPHY
On July 5, 1977, Administrative Law Judge Sidney
J. Barban issued the attached Decision in this
proceeding. Thereafter, the Charging Party filed
exceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor 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 brief
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
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the complaint be, and it hereby is,
dismissed in its entirety.
The Charging Part) has excepted to certain credibility findings made
by the Administrative Law Judge. It is the Board's established policy not to
overrule an Administrative Law Judge's resolutions with respect to
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions are incorrect. Standard DIry Wall Products.
Inc., 91 NLRB 544 (1950). enfd. 188 F.2d 362 (C A. 3. 1951). We have
carefully examined the record and find no basis for reversing his findings,
DECISION
STATEMENI' OF THE CASE
SIDNEY J. BARBAN, Administrative Law Judge: This case
was heard at Boston, Massachusetts, on April 25 and 26,
1977, upon a complaint issued on December 28, 1976,1 as
amended at the hearing, based on a charge filed on
November 12. The complaint alleges that the above-named
Respondent discharged Stewart Grimes (herein Grimes),
on or about November 11, because of his union activity or
other protected concerted activity, in violation of Section
8(a)(1) and (3) of the Act. The answer to the complaint
denies the commission of the unfair labor practices alleged,
but admits allegations of the complaint sufficient to justify
assertion of jurisdiction under current standards of the
Board. (Respondent, engaged at its plant in Massachusetts
in the production, installation, and repair of oil pollution
control barriers, annually ships goods and provides services
to customers located outside the Commonwealth of
Massachusetts of a value in excess of $50,000.)
Upon the entire record in this case, from observation of
the witnesses and their demeanor, and after due consider-
ation of the briefs filed by the General Counsel and
Respondent, I make the following:
Findings and Conclusions
The major issue in this case is whether Respondent
discharged Grimes because of his union or other activities
with respect to the working conditions of Respondent's
employees, or because of insubordination. At the hearing,
Respondent also raised the contention that Grimes was a
supervisor within the meaning of the Act, and thus not
protected by the provisions of the Act.
I. THE FACTS
Respondent in late 1974 took over the operations of
another company at Cohasset, Massachusetts. Grimes was
one of the employees employed at the time. During the
period material herein, the hourly paid work force,
including Grimes, was quite small, ranging from 7 to 10
employees. Grimes was a field service technician, em-
ployed to install, service. and repair oil pollution control
devices on the premises of Respondent's customers at
various locations throughout the United States. As such, he
was authorized to, and did, employ such casual labor at
such distant locations as was necessary to aid him in the
performance of his duties. These laborers were paid by
Respondent and were terminated by Grimes when he had
no further need for them.
According to Edward Tedeschi, Respondent's plant
manager, Grimes had been an outstanding employee, with
great potential, but by the fall of 1976 Respondent had
begun to receive certain adverse comments from customers
concerning his work at their premises. The significant facts
in the present matter occurred upon Grimes' return from
an assignment in the State of Washington which had kept
him away from home for about a month.
A. Grimes' Alleged Concerted Activity
Following Grimes' return to the plant, on November 8,
he met with Plant Manager Tedeschi on several occasions.
During these conferences Grimes made a considerable
number of complaints about his personal working condi-
tions, about the assignment of another man to a project in
Aruba, to which he thought he should have been assigned,
his desire for better wages, and for "some kind of job
betterment program and some kind of idea where I would
be heading in the company." Tedeschi said he would
consider Grimes' various requests and complaints.
During the course of these meetings, Grimes complained
that he had no recourse to a union or to anyone to protect
his interests in the situation, and that he was not satisfied
with Tedeschi's suggestion that there was recourse through
him because Tedeschi had made the decisions that Grimes
was complaining about, and he said that he was going to
I All dates herein are in 1976, unless otherwise noted.
232 NLRB No. 172
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B. F. GOODRICH COMPANY
contact a union. Tedeschi seems to have made no response
to this.
Also during these discussions, Grimes suggested, as
"constructive proposals," that Tedeschi should have more
contact with the employees, asserting that the workers
found management "very aloof," and relationships be-
tween the workers and management were deteriorating. 2
Tedeschi stated his appreciation for Grimes' comments,
and they discussed certain complaints from customers
about Grimes' work.
At the meeting on November 8, Tedeschi also gave
Grimes an assignment to repair the motor in Respondent's
outboard motorboat and prepare the boat for an experi-
mental project, which will be discussed hereinafter.
Later, the same day, when Grimes sought to get his
paychecks for the period he had been away, Respondent's
plant accounting manager refused to release them until he
had checked out Grimes' expense accounts. Grimes
complained about this to employees in the shop and to the
plant supervisor. In particular, Grimes suggested to one
employee, Matthew Ayers, that the employees ought to get
together and "talk about forming a little union or
something, or talking to another union." Ayers, who had
been a leader in the September petition to management,
was pessimistic, on the basis of his prior experience, but
agreed that nothing would be lost by talking about this.
Grimes spoke to some other employees concerning these
matters.
On Tuesday, Grimes met again with Tedeschi, this time
emphasizing his concern over not receiving his paychecks.
Tedeschi agreed that Grimes should receive his checks and
promised to take care of this. In fact, Grimes received his
pay after this meeting. Grimes, at this meeting, reiterated
his concerns expressed the previous day, and stated that if
Respondent were not going to grant his various requests,
he would like to be laid off.3 Tedeschi promised to give
Grimes an answer with respect to these matters on the
following Friday. During these discussions, Grimes told
Tedeschi that he had talked with the other employees
about the witholding of his checks, saying that he did not
have a union to help him, and that the employees needed
"some kind of recourse other than just talking to manage-
ment individually." Again, there is no indication that
Tedeschi made any response as to this.
That same day, in the course of talking to Plant
Supervisor Toppan about other matters, Grimes com-
plained to him about his paychecks being withheld, saying
that he thought this was unfair and that there were other
unfair things going on and that he was going to talk to a
union about it. Toppan said that Grimes should not do
that, because "that would do nothing for us, and we would
probably be worse off with a big union in." 4 Grimes
2 While Grimes had been away from the plant, a controversy had arisen
because the employees considered that they had been promised a wage
increase by Tedeschi's predecessor which had not been forthcoming. In
September. five employees signed a petition seeking answers to this situation
and threatening a work stoppage. Tedeschi met with the employees and
explained why there could he no wage increase at that time. There were also
some complaints about fumes in the plant which Plant Supervisor Toppan
stated Respondent was trying to alleviate. These seem to have been the
principal employee gnevances prior to Grimes' return on November 8.
3 Grimes did not at the hearing explain this unusual request. Tedeschi
testified that Grimes said he wanted the Respondent "to lay him off so he
replied that perhaps the employees could form their own
union to deal with their problems.
The next day, Wednesday, November 10, Grimes called
the offices of the United Rubber Workers Union in Akron,
Ohio, and a Rubber Workers local in Rhode Island, and
was assured that a representative would be in contact with
him.5 Grimes spoke to some of the other employees about
this.
On the next day, Thursday, November I11, Grimes,
Ayers, and another employee left the plant to have lunch at
Ayers' home. They talked about the necessity of organizing
in a collective-bargaining unit, and together drew up a list
of grievances, most of which seem to express Grimes'
concerns and attitudes. After Grimes returned from lunch
that day, and before the list of grievances had been
submitted to Respondent's management, Grimes was
discharged under circumstances discussed hereinbelow.
There is no evidence that Respondent was aware of the list
of grievances, or of Grimes' meeting with employees at
Ayers' home that day before he was terminated.
B. Grimes' Termination
1. Events leading up to the discharge
Respondent contends that Grimes was discharged
because he "refused to work" as assigned by Plant
Manager Tedeschi.
When Grimes returned to the plant on November 8,
Tedeschi assigned him to the project of repairing the motor
on an outboard motorboat owned by Respondent which
was needed to conduct an experiment for a customer.
Tedeschi told Grimes that the project had been put off for
a long time, that there was some pressure to get it done,
and that Tedeschi wanted the boat repaired as soon as
possible. Grimes was to report to Supervisor Toppan with
respect to problems about the boat.
The record shows that Respondent has been aware of the
project since mid-October. The motor apparently had been
taken to a repair shop, referred to as Bill's Outboard
Motor, but was still inoperable. Tedeschi had decided to
await Grimes' return because Grimes was considered to
have the know-how to repair the motor. Tedeschi asserted
that it was necessary to complete the experimental project
by the end of the year and before the weather became too
bad to conduct the experiment in the ocean.
Grimes advised Tedeschi that he would "get it done as
fast as I could," but reminded Tedeschi that he would have
a lot of personal business to attend to (it was Respondent's
custom to let Grimes take time off for personal affairs after
a long trip), and the frigid weather out-of-doors would
interfere with the work.
would have a source of income while he got his head together and decided
where he was going to go in the future." There is indication that Respondent
has previously laid employees off for the convenience of the employee.
I There is indication in the record that some employees were concerned
that, if the union representing some of Respondent's other plants were
brought in, the employees would become involved in problems other than
their own.
5 The status of United Rubber. Cork, Linoleum & Plastic Workers of
America, AFL-CIO, and its locals was not litigated in this record. I take
judicial notice that they are labor organizations within the meaning of the
Act. for the purposes of this proceeding.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Grimes performed some work on the boat on Tuesday
and Wednesday. He purchased some parts for the motor
which apparently did not solve the problem and, by
Wednesday evening, he had determined that the motor
repair was beyond his capability and the motor would have
to be taken back to Bill's Outboard Motor for repair.
During this period Grimes reported his problems and
progress to Toppan and on Tuesday to Tedeschi.
On Wednesday, Grimes spoke with Tedeschi about the
continuing problems he was having with the boat and
expressed doubt that he would be able to fix it. Tedeschi
suggested that the boat be taken back to Bill's Outboard
Motor. When Grimes demurred at hauling the boat trailer
with his car, Tedeschi stated that he would bring his car in
the next day for that purpose. Grimes states that he was
told that Respondent's vehicle would be available about
lunchtime. Tedeschi testified that it was his understanding
that Grimes would tow the motorboat to the repair shop
first thing Thursday morning. It is unnecessary to resolve
this conflict, though I am inclined to credit Tedeschi on
this point. There is no showing why Respondent's vehicle
for towing the boat was not available in the morning, and
Grimes' activities on Thursday morning with respect to
getting the motor repaired appear far from energetic.
On Thursday, Grimes did not get to work until
approximately 10:30 a.m. He inspected the trailer and
determined that there was "a problem with the trailer. I
was afraid to tow that trailer on the road because I would
be jeopardizing my license." However, so far as the record
shows, all he did before going to lunch was inflate one of
the tires on the trailer. About 11:30 a.m., Grimes went for
lunch at Ayers' home with Ayers and another employee,
during which, as previously noted, the three employees
discussed organizing and prepared a list of grievances.
2. The discharge
When Grimes returned from lunch, Tedeschi called him
into the office and, according to Grimes, "Mr. Tedeschi
wanted to know what the story was with the boat project. I
told him I was having a lot of problems with the boat
project, and the project was in limbo. And he said, 'Well,
what's the matter?' And I said that I was having a lot of
difficulties with it, and that I told Mr. Toppan what the
problems were. And he asked me . .. 'what kind of
cooperation is that?' And I said, 'What kind of cooperation
have you been giving me over the last few days about these
decisions.' " Grimes stated that, as he was standing there
with the list of grievances in his hand, he told Tedeschi that
he had "been talking to a lot of guys in the plant and a lot
of people around here were fed up with his procrastina-
tion." Grimes testified that at this point Tedeschi told him
he was discharged. The list of grievances was not shown to
Tedeschi during this meeting.
Tedeschi's version of this conversation is that he asked
Grimes, " '[Wlhat's the story with the boat? My car has
been there. You haven't been here.' And his words to me
are, '[W]here's the decision?' And my reply was, 'When did
I say I would give you the decision?' And he said, 'Friday.'
And I said, 'Friday, yeah, I will. This is a difficult thing to
manage. I've got to make some plans.' And he said 'No
decision, no work....' I said, 'Stewart, what kind of
cooperation is that?' And he said, 'No cooperation, no
work until I get a decision.' " Tedeschi denied that Grimes
told him that he had spoken with the employees and
everyone was fed up with Tedeschi.
Upon careful consideration of these two versions of the
events leading to Grimes' termination, I am convinced that
Tedeschi's version of the November I I meeting more
closely conforms to what happened. Thus, the probabilities
are that this conversation concerned Tedeschi's annoyance
over Grimes' failure to take the boat to Bill's Outboard
Motor for repair, rather than a general inquiry as to
difficulties Grimes was having with the boat as Grimes
indicated. Grimes had already explained his difficulties
with the boat to Tedeschi the day before. Both Grimes and
Tedeschi agree that each accused the other of lack of
cooperation. However, in Grimes' version, no logical
reason appears that such accusations should be made. In
Tedeschi's account, the accusations occur logically in the
context.
3. Following the discharge
After the discharge, Tedeschi forbade Grimes access to
the plant area, stating, in Grimes' words, that if Grimes
"wanted to talk to the guys, I would have to talk to the
guys on my own time." Later when Grimes came back to
the plant to return some of Respondent's property,
Tedeschi told him that he "was sorry that it worked out
that way, and that he hoped there was no hard feelings."
Grimes replied that there "may be some repercussions," to
which Tedeschi responded that he hoped Grimes would
not do anything "illegal or immoral."
Thursday evening, Grimes gave a copy of the list of
grievances, which had been drafted at lunchtime, to a
maintenance supervisor as he was leaving the plant. The
supervisor advised Tedeschi, who asked the local police to
pay special attention to the plant property as a guard
against vandalism.
The following day, Tedeschi had a meeting with all the
employees to discuss the items on the list of grievances
which Tedeschi had secured from the maintenance supervi-
sor.
It appears that following these events Tedeschi made up
a detailed memorandum of events-probably for Respon-
dent's counsel and its home office-which was also
submitted to the General Counsel. The latter calls attention
to one paragraph in this memo, Tedeschi's statement that
in particular "There were no overt threats in any of our last
conversations, but the slant of his spoken [words] and
mannerism [led] me to know that he knew where we might
be vulnerable both in physical plant and employee
relations." Tedeschi testified that his reference to "employ-
ee relations" was based on his recent experience with
unrest in the plant over Respondent's failure to pay the
expected wage increase (over which the employees had
threatened to strike), and irritating fumes (over which
employees had complained to OSHA, which had investi-
gated the plant). Tedeschi denied knowing of Grimes' prior
concerted activities, and thus Tedeschi impliedly denied
that his concern over employee relations had any reference
to Grimes' activities.
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B. F. GOODRICH COMPANY
II. ANALYSIS AND CONCLUSIONS
I. The supervisory issue. Grimes had authority to hire
casual labor on distant locations away from the plant when
he had need of assistance and to terminate such labor when
he no longer had need of it. Perhaps Grimes was a
supervisor of such labor within the meaning of the Act
while that relationship existed, but there is no need to pass
on that. After Grimes returned to the plant on November
8, his status was clearly that of an hourly paid manual
worker with no supervision over any other employee.
Indeed, Respondent contends that Grimes was discharged
for failure to carry out an assigned manual task on which
he was working quite alone. At the time of his discharge
there is no evidence that Grimes had any supervisory
authority and I find that at that time he was not a
supervisor within the meaning of the Act.
2. The reasons for Grimes' termination. Beginning on
November 8, and continuing until he was discharged on
November II, Grimes was engaged in protected concerted
activities within the meaning of the Act in contacting the
Rubber Workers Union and in discussing union organiza-
tion and employee grievances with his fellow employees,
although the discussions and the grievances were centered
more on matters of concern to Grimes than on matters of
interest to other employees. Based on the record as a
whole, and Tedeschi's denials in particular, I am convinced
that Tedeschi was not informed of the full range of Grimes'
activities in these respects, but there is enough evidence in
the record as to what Grimes told Tedeschi in several
meetings to infer that Tedeschi knew that Grimes was a
malcontent, openly dissatisfied with his treatment by
management, distressed because he did not have union
representation, and that Grimes intended to bring a union
into the plant. However, I am convinced, on this record,
that Grimes was not discharged because he engaged in, or
intended to engage in, such protected concerted activity.
One of the chief difficulties with the General Counsel's
contention that Grimes was terminated because of his
advocacy of union organization and his leadership in
crystalizing employee grievances is the fact that the record
shows no convincing evidence of an animus against union
organization, or hostility toward employee grievances on
the part of Respondent's management, or any propensity
to retaliate against employees engaged in such activity.
6 No strike occurred. Management met with the employees, answered
their questions, promised corrective action, and advised that the strikers
would be replaced.
In coming to this conclusion. I have fully considered Tedeschi's rather
emotional conduct in barnng Grimes from the plant and having the police
guard against any vandalism which might occur. I have also noted the fact
that Respondent did not discharge Avers for not working that afternoon. a
matter apparently not considered as serious an affront to management.
Except for those grievances peculiar to Grimes, the
employee complaints had been previously aired to manage-
ment. The employees, in fact, had previously threatened to
strike over them.6 One or more of the employees had
previously also complained to OSHA concerning alleged
health hazards in the plant. So far as appears, Respondent
took no retaliatory action against employees engaged in
these actions. One of the employees chiefly involved in
these prior activities was Matthew Ayers. He was also one
of Grimes' chief allies. Though he provoked management
by failing to work on the afternoon that Grimes was fired.
Ayers was not discharged and there is no indication that
Respondent has exhibited any animus against him because
of his protected activities.
The only comment unfavorable to unionization was
made by Supervisor Toppan, which seems to have been in
the nature of friendly advice. It was not alleged as a
violation of the Act, and General Counsel does not argue it
as evidence of animus.
During the meeting with Plant Manager Tedeschi on
November 11, Grimes acted in an insubordinate manner,
which Tedeschi considered a direct affront to his authority,
for which Tedeschi discharged Grimes. I find that this did
not violate the Act.7
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. United Rubber, Cork, Linoleum & Plastic Workers
of America, AFL-CIO, and the locals affiliated with it are
labor organizations within the meaning of Section 2(5) of
the Act.
3. Respondent by discharging and thereafter refusing
to employ Stewart Grimes has not engaged in unfair labor
practices in violation of Section 8(aX3) and (1) of the Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record in this case, and pursuant to Section
10(c) of the Act, I issue the following recommended:
ORDERs
If is hereby ordered that the complaint in this matter be,
and it hereby is, dismissed.
X In the event no exceptions are filed as provided by Sec. 102.46 ol the
Rules and Regulations of the National Labor Relations Board, the findings.
conclusions, and recommended Order herein shall, as provided 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.
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