Borman, Inc.

National Labor Relations Board - Board Decisions

Dec 14, 1984

273 N.L.R.B. 312 (N.L.R.B. 1984)

312 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Borman, Inc. and Michael Domke and Jerry Bliss.
Cases 7-CA-22182 and 7-CA-21795
14 December 1984
DECISION AND ORDER
BY MEMBERS ZIMMERMAN, HUNTER, AND
DENNIS
On 6 June 1984 Administrative Law Judge
Thomas A. Ricci issued the attached decision. The
Charging Parties filed exceptions and a supporting
brief, the General Counsel filed cross-exceptions
and a supporting brief, and the Respondent filed
answering briefs.
The National Labor Relations Board has delegat-
ed its authority' in this , proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm- the judge's rulings,' findings,2
and conclusions 3 and to adopt the recommended
Order.
The Charging Parties and the General Counsel
except to the administrative law judge's credibility
resolutions based on certain factual misstatements
made by the judge and the judge's failure to dis-
cuss certain relevant testimony. We have reviewed
the decision in light of the record evidence and the
General Counsel's and Charging Parties' conten-
tions and make the following factUal corrections.
1. The judge found that 5 - days prior to the arbi-
tration of employee John Montiero's grievance,
Charging Party Michael Domke had a conversa-
tion with Supervisor Willie White regarding
Domke's participation in the arbitration. However,
the record reveals that Domke's conversation with
White actually took place approximately 4-1/2
months prior to the arbitration. Additionally, the'
judge stated that Domke was given a written repri-
mand on 3 January 1983 for violating a company
rule. Although the Respondent prepared a written
reprimand for Domke, the discipline was never ac-
1 Both the General Counsel and the Charging Parties contend that the
judge's interpretation of the evidence and his credibility findings showed
bias and prejudice against them Upon careful examination of the adminis-
trative law judge's decision and the entire record, we are satisfied that
the contentions of the General Counsel and the Charging Parties in this
regard are without merit
2 In agreeing with the judge that the Respondent lawfully and uni-
formly enforced against Bliss its prohibition against unauthorized entry
Into unassigned buildings, we do not rely on the mere existence of the
posted notice prohibiting such activity but rather on the credited testimo-
ny that the Respondent similarly disciplined other employees who violat-
ed this rule
3 The judge specifically noted that Teamsters Local 337, the employ-
ees' bargaining representative, did not participate in this case, concluding
that if the Union believed the Respondent had engaged in unlawful con-
duct, the Union "would have been present to correct the wrong" We
draw no conclusions from the Union's absence and disavow the judge's
remarks in this regard
tually issued to him. Further, the judge was incor-
rect in stating that the General Counsel contended
that this alleged 3 January reprimand was issued to
Domke only to justify a reprimand previously
issued to Domke.
In' addition, the judge erroneously stated that the
Respondent had a rule prohibiting employees and
stewards from discussing union business during
work time. The rule in fact allowed such discus-
sions if permission was first obtained from the su-
pervisor. Finally, the judge 'found that Charging
Party Jerry Bliss had knowledge of 'the "punching
out" rule based on the fact that he was a steward
at the time employee Nelson Orr was reprimanded
for violating the same rule. However, the record
reveals that Bliss was not a steward at the time the
reprimand was issued to Orr. 4 '•
Notwithstanding the , 'aforementioned factual
errors, we find that they are insufficient to over-
turn the judge's credibility resolutions. The Board's
established policy is not to overrule an administra-
tive law judge's credibility resolutions unless the
clear preponderance of all the relevant -evidence
convinces us that they are incorrect. Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d
362 (3d Cir. 1951). We are satisfied here that the
judge's, cie'dibility resolutions are supported by the
record, and thus no basis exists for disturbing
them.5
2. The complaint alleges that the kespondent un:
lawfully threatened Bliss -with discharge when it
issued to him a written warning on 7 March' 1983.
The judge failed to rule on this allegation. The
record reveals that subsequent to the 21 February
1983 discharge of Bliss, the Respondent on 4
March 1983 decided to reinstate him without back-
pay. On 7 March 1983 the Respondent sent a letter
to Bliss explaining its reasons for reinstating him
without backpay and notifying him , that, with re-
spect to the company's disciplinary procedure, any
subsequent violation would warrant a discharge.
The Charging Parties and the General Counsel
contend this letter constituted a "new" discipline.
We disagree. Having concluded that the 21 Feb-
ruary 1983 discharge was not unlawful, the Re-
spondent was neither required to reinstate Bliss nor
to provide backpay for the period between the dis-
charge and the reinstatement. We therefore con-
clude that the reasons given for reinstatement with-
4 Bliss did have knowledge of the rule, however, based on his testimo-
ny admitting that a "punching out" rule existed
5 The General Counsel and Charging Parties further assert in their
briefs that the judge erred in "ignoring" certain testimony which conflict-
ed with his findings As the Board stated in Walker's, 159 NLRB 1159,
1161 (1966), "The failure of [an administrative law judge] to detail com-
pletely all conflicts in the evidence does not mean that this conflict-
ing evidence was not considered "
273 NLRB No. 47
BORMAN, INC. 313
out backpay were not unlawful and the Respond-
ent lawfully advised Bliss that any subsequent vio-
lation of company policy' would lead to discharge.
Therefore, we find no "new" discipline was issued
and, accordingly, we dismiss this allegation of the
complaint.
ORDER
The recommended Order of the administrative
law judge is adopted and the complaint is dis-
missed.
DECISION
THOMAS A. Ricci, Administrative Law Judge. A hear-
ing in this proceeding was held at Detroit, Michigan, on
April 4, 5, and 6, 1984, on complaint issued by the Gen-
eral Counsel against Borman, Inc. (the Respondent or
the Company). The complaint issued on March 2, 1984,
based on separate charges filed on February 24, 1983,
and on June 1, 1983, by Jerry Bliss and Michael Domke,
respectively (the Charging Parties). The issues presented
are whether the Respondent discriminatorily applied and
enforced its work rules against the Chaiging Parties in
order to retaliate against them for exercising protected
concerted activities, in violation of Section 8(a)(1) and
(3) of the statute. Briefs were filed by the General Coun-
sel and the Respondent.'
On the entire record and from my observation of the
witnesses, I make the following
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
This Company, a State of Michigan corporation, is en-
gaged in the retail sale and distribution of groceries,
meats, produce, and related produêts, and has its princi-
pal office and place of business in Detroit, Michigan.
During the 12-month period ending December 31, 1982,
and December 31, 1983, representative periods, its gross
revenues from all sources exceeded $500,000, and in the
course of its business it purchased and caused to be trans-
ported and delivered to its Michigan facilities fOods and
other products valued in excess of $50,000 which were
transported and delivered to . its facilities from out-of-
state sources. I find that the Respondent is an employer
within the meaning of the Act.
II. ' THE LABOR ORGANIZATION INVOLVED
I find- that Local 337, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of
America (the Union) is a labor organization within the
meaning of Section 2(5) of the Act.
A postheartng motion by the General Counsel to strike the Respond-
ent's brief or to reopen the record is denied- -
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Picture of the Case
The background of this case tells a revealing story.
Among the 600 to 700 employees working in this Com-
pany's warehouse and food distribution center, about 400
have long been represented by Local 337 of the Team-
sters International Union. In 1979 and earlier, there de-
veloped a movement among its members to combat the
policies and practices of the officers and elected officials
of the Teamsters, to protest what was called undemo-
cratic action by the Union as such The very vocal dissi-
dents in this Company joined forces with like complain-
ers, both members of Local 337 and of other locals of
the International Union, working in other companies, in-
cluding employees of campetitors of this Respondent in
the Detroit area, such as the A & P and the Kroger
stores. In fact, there came into being an organization
called Teamsters for Democratic Union (TDU), formed
for the purpose of changing the practices of the Team-
sters Union as a whole, to make it more democratic and
more sensitive to the needs and desires of its members".
This internal dissension' within the Teamsters was 'widely
publicized, the TDU printing a periodical called "Rank
and File Speaks," and distributed widely. There were
meetings and discussions everywhere. One of the activ-
ists, a man named Jerry Bliss, involved in this very case,
was even scheduled to testify before the , United States
Senate Labor Committee on labor racketeering The
other Charging Party, Michael Domke, , was equally
active in distributing TDU literature throughout the
plant.
What brought about , the complaint in this proceeding
was something that happened in this Company's plant in
March 1982. Its contract with Teamsters Local 337 was
due to expire in October 1982. In March the Company
proposed to the Union extension of the contract for a
further fixed period of years, with all wages to remain as
they were in March 1982. Whether this meant withhold-
ing of raises due on the unexpired contract, I do not
know. But clearly it meant no increase in wages through-
out the period of the new contract to take effect in Octo-
ber 1982. The witnesses for the General Counsel, all dis-
sidents and members of TDU, referred to the proposal of
the Company, eventually accepted by Local 337, as the
"concessions." There was a great to-do among the em-
ployees, whether to accept the Union's approval recom-
mendation. In a first vote the employees refused to ratify
the agreement A second vote, in March, they agreed,
and the contract was extended accordingly, as the Com-
pany desired.
There is-also repeated testimony by the employee wit-
nesses that about the same time—starting late in 1981—
the Company began a "speed up" system, aimed at get-
ting more work from the employees. Although the Re-
spondent's officers did say that due to economic necessi-
ty—especially the pressure of competition in the area—it
had no choice but to get more efficient performance
from its employees and keep its expenses down; they
took issue with the phrase "speed-up" In any event, that
development—the "speed up"—plus the so-called con-
_
314 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cessions which precluded all raises for quite a period,
served to generate an even greater friction between the
dissident members and their duly elected union officials.
The essential question presented here is whether the
Company, in enforcing its work rules against the two
principal activists in that TDU movement, was motivat-
ed by a desire to squelch the dissident movementwhich
went counter to its economic position—or merely apply-
ing work rules agreed to by the collective-bargaining
agent, which certainly was the Employer's right.
A number of disciplinary warnings were issued, two
men were discharged, and other steps taken in keeping
with the work rules. Grievances were filed, some were
settled at one step or another, and some went to arbitra-
tion according to the Union's contract. The officers and
business agents of the Union participated in all these
grievance steps, winning a number of them to the advan-
tage of the employees. There is no charge that the Union
ever failed in its duty fairly to represent all the employ-
ees. What I , think is the main allegation of the General
Counsel now is that Jerry Bliss, the big TDU activist,
was unlawfully discharged in February 1983. When
Bliss' grievance was discussed at the first step of the
grievance procedure, only 2 weeks after his dismissal, the
Union persuaded the Company to reinstate him, and he
did get his job back. The Company nevertheless refused
to pay ,him for the time off he had lost-9 days' pay.
With the Union still pressing his grievande and preparing
for the next step in the grievance procedure, Bliss volun-
tarily withdrew his . grievance, and dame to the National
Labor Relations Board instead, with the hope of having
a better chance here of getting his 9 days' pay.
A very significant aspect of this case must be kept in
mind at this point. The Union, Local 337, did not partici-
pate in this hearing. It entered no appearance and none
of its officers came to the hearing This means that in the
opinion of the Union—i.e., its elected Officials, for they
are the ones who speak for the Union, and , not a dis-
agreeing minority—there was nothing wrong in any of
the warnings, criticisms, or even suspensions imposed by
management. Were the Union itself of the opinion that
this employer violated the statute in its treatment of its
members, surely it would have been present to correct
that wrong. Whenever an employee chose to file a griev-
ance, the regular union officials did their best to win it
Not once, insofar as this record shows, has it failed to
represent all as was its duty. And if it did not go to arbi-
tration over the' 9 days lost by its principal critic, it was
only because he, Bliss, chose to withdraw his grievance.
In sum,' what emerges from all this is a - dispute be-
tween the Union and some of its members on the ques-
tion of how the employees should be treated . by their
employer. As will appear below, there were even in-
stances where the employee felt he had a right to ar-
range his own understanding with the -Company as to
what his "conditions of employment" should be, to use a
classic phrase. Indeed, as to what work rules should or
should not - apply, thee particular employees had their
own' idea, and never mind either the precise terms of
the 'exclusive collective-bargaining agreement or the reg-
ularly posted work rules entirely acceptable to the exclu-
sive bargaining agent.
B. The Facts of Record
1. Jerry Bliss
There is a marked question -of credibility running
through the entire record, the General Counsel's wit-
nesses (all employees), giving the straight he to the Re-
spondent's witnesses (all management representatives).
As stated, the main witnesses for the prosecution were
Bliss and Domke, both stewards most of the time during
their employment Again and again the question was
whether the employees were or were not permitted cer-
tain liberties in the course of their employment, the em-
ployees insisting they were always free to do this or that,
to move from building to building throughout the very
large work area without haying to clear with their super-
visors,. to talk instead of _working during their work
hours, to use the public telephone at will, etc. Against all
this, the supervisors testified there were rules governing
what liberties could be taken during work hours, restric-
tions upon leaving the work area without signing out on
the timecard, or going from building to building in the
vast property without permission of supervisors. A
number of oral warnings, written reprimands, and sus-
pensions are listed in the complaint as having been
caused by the employer's desire to curtail the concerted
movement among some of the employees to push the
cause_ of the TDU In some instances the employee in-
volved denied having committed the offense for which
he was criticized; at other times he defended on the
ground there was no such rule as the supervisor at the
moment said he was enforcing. In most instances, the
question was the latter.•
Sometimes credibility resolutions turn on what is
called the demeanor of the witnesses, evasive answers to
direct questions, refusals to reply, arguments in response
to straight inquiries, etc. Sometimes the disagreement be-
tween the Witnesses is put at rest by objective evidence
as to which there is no - question—documents, admissions,
logical inferences that are inescapable. In this case, both
of these elements come into play. If ever there was a
case in which the credibility resolution is put at rest
beyond question by both the demeanor of the witnesses
and objective evidence, this is it. I cannot credit the em-
ployees against their supervisors where they are contra-
dicted on this record.
One of the 'incidents of which the witnesses spoke at
length will make the point very clear. In fact it involves
the principal allegation in the complaint In consequence
of a general laxity in the enforcement of work rules
before the concessions demanded and won from the
Union in early 1982, and, of course, as part of its policy
to "speed up" the work and increase the efficiency of its
entire operation, on August 9, 1982, the Company posted
a notice which, admittedly, came to the attention of all
the employees It reads as follows
Employees will not be permitted to enter buildings
they are not assigned to work in without the express
approval of their supervisor. (This includes all
lunchrooms and restrooms.)
, BORMAN, INC 315
Needless to say, this policy is in effect during both
working hours and non-working hours.
Violation of this policy will result in disciplinary
action up to and including discharge
On February 21, 1983, Bliss, the steward, left the gro-
cery warehouse, where he worked, during his lunch
hour and went to the produce warehouse, and distribut-
ed TDU literature among those employees. This grocery
warehouse is a very large place, where 260 employees
work, coming in different shifts starting at various hours
throughout the day. They stack large amounts of food
for the Respondent's 83 retail stores, move it about as or-
dered, take it on carts to many docks, and load trucks
continuously throughout the day. There is a lunchroom
there for their use and, as the shifts keep changing, there
are very different lunch periods and break periods
throughout the day. The produce warehouse is also a
large building, with about 120 employees. Bliss admitted
he, did not punch his timecard when leaving his assigned
building during his lunch hour, and did not ask permis-
sion of any supervisor to enter the produce warehouse,
both actions violative of established work rules. He was
given a_ written reprimand notice for the first offense,,
and a reprimand notice reading "Suspension pending ad-
visability of discharge" for the second offense. In the
office, when being given those two reprimands, Bliss
denied having done anything wrong, insisting he had not
violated any rules of conduct on the job. Confronted
with the August 1982 notice, his argument became more
clear His position was, as he repeated at the hearing a
year later, that the rule did not apply to him. And to
prove his assertion he produced a letter written in 1979
by the lawyer for the TDU to the Company, and the
Company's response at the time. The TDU lawyer wrote
to the Respondent about employees rights to distribute
literature on company prokrty and warning it against'
commission of possible unfair labor practices for interfer-
ing with such rights. In response the Company had writ-
ten to her that it intended to abide by the law as written-and as interpreted by court decisiOns.
This attitude by Bliss, reflected throughout his testimo-
ny at the hearing, shows clearly a pervasive intent to
change the facts, to put the Employer in , a bad light and
to further his disagreement with how his Union, Local
337, chooses to carry on its bargaining authority vis a vis
the Respondent. There is no contention by the General
Counsel that the rule of conduct, as posted in August
1982, was improper, or illegal in any way Certainly
even in the opinion of the Union, it conformed with the
terms of the written collective-bargaining agreement.
The contract contains the following provision'
The employer shall have the right to establish rea-
sonable rules and regulations and penalties for their
violations; provided such rules and regulations and
penalties are first approved by the Union.'
At the hearing Bliss said he had always, before Febru-
ary 1983,.gone from building to building to distribute his
literature. How can I believe him with the posted notice
so clearly prohibiting such action? Significantly, he also
admitted, in •agreement with the manager's testimony,
that he had always been granted permission, when he
asked for it, to go into the produce department to give
out his TDU literature. What better proof than this that
the Company was not opposed to, what he was doing
provided he conformed with the rules 9 Had the supervi-
sors been instructed, as the employee witnesses kept ar-
guing, to put a stop to ,the TDU activity, management
would surely have denied such request, as the Company
had a right to do under the rules.
Only 2 months before his reprimand for leaving his as-
signed building without cloOking out, another man, Orr,
was given a written reprimand for exactly the very same
rule violation. That notice bears the signature of a union
steward; Bliss was a . steward and he therefore certainly
knew the rule was being enforced. For him to say at the
hearing, as he did several times, that he always left the
building without clocking out—implying, although not
proving, that any supervisors saw him do that—marks
Bliss as an absolutely discredited witness. For sure the
August 1982 posted notice, and the reprimand given Orr
10 days before Bliss got his, are all the affirmative de-
fense needed by the Respondent Bliss may be living in a
dream world, but that he was lying as a witness is a fact.
Wherever he is contradicted by a management witness, I
do not believe a word out of his mouth.
Instead of arguing that the rule against entering an-
other building without permission was improper, the
General Counsel contended that the reason it was en-
forced against Bliss was because of his pro-TDU activity.
But the proof is no more than his assertion The answer
to the question of permission whenever he asked for it is
enough to wash that argument away completely But
there is more. When Bliss filed a grievance over the dis-
charge which immediately followed, the Union went to
bat, and at the first-step discussion won his job back for
him. The Company could not have been so adamantly
opposed to the man's activities if it yielded so quickly.
The Union was prepared to take the matter further, and
get him his 9 days' pay. It was Bliss who ehose to with-
draw the grievance instead This was Bliss fighting the
Teamsters, not the Respondent:
I .find that the discharge of this man in February 1983
was not an Unfair labor practice An employee is not
immune from _discipline for an 'admitted violation of the
work rules merely because he is engaged in concerted
activity, whether in favor of a regular labor organization,
or to further a disruption within that union. At the hear-
ing the Respondent did not move to defer this issue to
arbitration, as the contract called for. Had it done so, -its
motion would have been a perfectly good one. I there-
fore do not pass on the question whether, under the cir-
cumstances of this case, Spielberg Mfg. Co., 112 NLRB
1080 (1955), applies ,
But the General Counsel's stated reason why this man
could not be deferred only sheds further light on the
case as a whole She offered to prove that the Union—
again, that is, the duly elected officials who run the
Union—do not like this man, Bliss, and his intimates, and
that the reason is because he, and his friends, are very
active in . the TDU movement She may be right; I do
316 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
not know. But the fact is, like them or not like them, the
Union always stood by them as any union does when
any of its members get into trouble with the boss. It
always represented them' and did its best to protect their
interest, as it was prepared to go to arbitration in Bliss'
discharge. The real quarrel here, therefore, is not be-
tween the Charging Parties—Bliss and Domke—and the
Respondent, the true nature of any complaint case before
the Board. It is, instead, a quarrel between the TDU-
represented by Bliss and Domke and the TDU lawyer,
Thompson—and Local 337, or the entire Teamsters
International. That dispute came to a head in this par-
ticular company when the Union gave the concessions in
1982, and when the Company instituted its "speed up"
system at about the same time. And in order to create
the impression that the dispute is with the Company in-
stead, the witnesses kept talking about the employer's en-
forcement of the rules which implemented the conces-
sions and the "speed up" as improper, not because it was
not nice to get the Union's approval, but because the Na-
tional Labor Relations Act was violated!
2. Michael Domke
Considering the testimony of Steward Domke in his
entirety, he appears even a less credible witness than
Bliss. He kept changing his answers as he went along, he
evaded- coherent replies again and again, he argued the
correctness of his factual assertions when asked to speak
instead of what happened. And, equally revealing, his
testimony was at odds with unquestionable facts. A few
examples, will suffice.
Respondent has a rule that when an employee is sup-
posed to be working he may not use the pay telephone
without permission of a supervisor. On May 11, 1983,.
Domke did that and was issued a written warning for
breaking the rule. , As a witness time and again he kept
repeating that there was no such rule, that employees
had always used the phone at will, and that they still do
so. There was then received in evidence four recorded
written reprimands issued because employees had used
the phone without permission. One is dated June 6, 1982;'
one is dated August 13, 1982, one is dated February 2.,
1982; and one is dated July 14, 1983. The first three of
these bear Domke's signature as witness, which means he
was present as steward when the reprimands were
issued. In his prehearing affidavit, after the events,
Domke also said, "The employees used the telephone on
a regular basis without getting permission." Can there be
any question but that he was lying as a witness in this
case? I think not:
In ',complete inconsistency with the above story,
Domke defended -his use of the telephone in May 1983
by saying he did have permission that day He said the
office girl, Miller, had handed him a note saying that
Lloyd Williams, the Union's business agent, had called
him and wanted him to call back He quoted Miller-as
telling him; in the presence of Supervisor Daniel, "Call
the guy right away." His position was, both to Daniel
while getting the reprimand and at the hearing, that he
had a right to presume that the clerk had been given per-
mission to call him at the time. Miller did not testify.
Daniel's version of this incident-is that he did hear Miller
say there was a message for Domke to "call 500," and
that Domke then went outside the office to -a pay tele-
phone, and that while Domke was talking another super-
visor saw him and asked Daniel had he given the man
permission? With this, still according to Daniel, he went
outside and' asked Domke had he obtained permission
from anyone, and Domke answered, "No." Daniel then
ordered Domke off. the phone, took him into the office,
and wrote him up As to what Domke argued then,
Daniel said he only said he was "sick," and wanted ' to go
home. When Daniel told him to wait until the written
reprimand was finished, Domke threatened to file NLRB
charges for being refused permission to leave immediate-
ly. According to the supervisor, therefore, Domke did
not even claim, at that time, he-had implicit permission
to use the telephone. Miller was also given a written rep-
rimand that day for having called the employee to the
office without permission; she had been reprimanded for
the same offense once before.
All I see in this is but another instance of- a union
steward believing that the rules in a work - place applica-
ble to ordinary employees do - not apply to him. Domke
started his very extended testimony by generalizing
about how at the time of the concessions and speed up in
early 1982, the number of disciplines- increased greatly,
how he always appeared at many grievance meetings
about them, how he always argued against the speed up
and stricter work rules I think he Just went to the phone
that day and made his personal call because he still felt
the rules he knew to be in effect were too stringent. This
was a bone of contention between the' TDU and the
Teamsters, in which he Was a principal activist. I credit
Daniel. I find Domke violated, the "don't use the phone"
rule knowingly, that he did not even claim to have
permission„ and that the only reason he was given
the reprimand was for the' direct rule violation. I find
nothing wrong in the Company having issued that repri-
mand that day. As to the complaint allegation that the
Respondent enforced the rule "disparately" against
Domke, it rests essentially on the steward's conclusion-
ary assertion to that effect, which is destroyed both ,by
the documents in evidence and by the very, very poor
demeanor of Don-Ike at the hearing.
As to the next incident, which I deem very revealing
on the general question of credibility between the two
groups of witnesses, the doubletalk which does no credit
to Domke's testimony, is tied with like doubletalk in the
General Counsel's complaint. On Decethber 29, 1982,
management asked Domke to come, to the office so he
could be present when five reprimands were to be
handed to five employees, each for the same offense. All
five of the men had left their work stations before the
buzzer• sounded for the lunchbreak. The very fact of
management itself inviting the steward to the office then
indicates a total absence of anti-Domke, anti-Teamsters,
or TDU animus. One of the five men was VanWalthau-
sen, who had several times already been reprimamded
for the same offense. For the other four, it was the first
time they had violated that rule. For this reason the
manager had decided to issue a suspension notice to
VanWalthausen, and only a reprimand to the others.
BORMAN, INC 317
When Domke arrived at the office, he entered the
room where the four employees were with the supervi-
sors. VanWalthausen was asked to wait outside. For 15
or 20 minutes the supervisors discussed the offense with
the men and with Domke. The employees and the stew-
ard, while admitting the offenses, tried to soften the
blow. The reprimands were issued and the four left
When VanWalthausen was called in, Daniel started to
write the suspension notice. Domke and VanWalthausen
then began to talk between themselves about what they
should do. Daniel told them to be quiet while he finished
writing, because he had already decided what to do. In a
matter of a few minutes he gave the employee the notice
and ordered him out Outside the office Domke and
VanWalthausen continued to discuss what to do. When
Daniel emerged and saw them so occupied he ordered
Domke to return to work. Domke insisted he had a right
to talk union business on working time.
Judging from what I heard, it is not at all clear just
what the unfair labor practice was that is alleged to have
occurred at that moment. At times Domke made it sound
like a Weingarten case, where the employer refuses an
employee's request to be represented by his union stew-
ard during a disciplinary interview or investigation. But
there was no interview, or investigation conversation
here. The decision to suspend VanWalthausen had defi-
nitely been made in advance. That is why he was told to
wait outside while the proposed reprimands to the other
four employees were being discussed The manager saw
no point in disconcerting the other four employees by
having them watch another man was discharged.
This was only because it definitely had decided with fi-
nality what was going to happen with VanWalthausen.
The complaint puts it differently. It says that that day
the Respondent "interfered with employees" right to
process grievances by denying an employee access to the
union steward at the close or immediately after a disci-
plinary interview." Asked, at the hearing, did this mean
"that the unfair labor practice was committed by this
company based on this man's testimony that they refused
to permit him to permit his union representative to par-
ticipate in a disciplinary, investigatory interview?" the
General Counsel answered "Correct" But if Daniel's
and VanWalthausen's testimony be taken in total, what
they were saying is that Daniel refused them permission
to decide—between themselves—what to do about all
this. What did management have to do with any conver-
sation that was to take place between an employee and
his union representative about whether, or how, to file a
grievance?
At one point VanWalthausen said the supervisor re-
fused to permit him to ask the steward for a grievance
form. There is a rule in this place that employees, and
especially stewards, are not to discuss union business
during working time. Domke was on the clock; he was
engaged in union business while being paid by the Com-
pany only because the manager had asked him—given
permission?—to come to the office on behalf of the four
reprimanded employees. And again we return to the
basic question of credibility running throughout this case.
Domke, and Bliss, said that they could talk union busi-
ness at will; the manager said otherwise I Just do not be-
lieve the unsupported testimony of the employees.
In sum, there was absolutely nothing wrong in any-
thing the supervisors did that day The details ,about it all
by the employees served only to again show how the
witnesses were trying to build a story with words but
adding nothing of substance to the record They were
not credible witnesses.
On this same question of what the rule about talking
instead of working during pay time really was, there are
separate additional paragraph allegations in the com-
plaint. In support of those allegations, Domke testified
that in , March 1983 Supervisor Daniel told him "not to
solicit grievances" and that "if he caught me soliciting or
recommending the employees at Borman to file griev-
ances that he would discharge me." Domke also said that
Daniels repeated the warning to him the following
month, "not to solicit or recommend the employees to
file grievances" Each of these conversations took place,
according to Domke, on occasions when Daniels had
called him to the office so he could speak on behalf of
employees who were being reprimanded
Daniel's testimony is different When Domke became
steward, in 1982, he told the man to stick to his work
and that he could only talk to employees when "they
would stop and maybe ask him about an insurance form
or eye forms or something of that nature as long as
it was something that took a minute of two and, you
know, didn't tie anyone up:"
Daniel's testimony continues that because Domke felt
the rule applicable to others could not apply to him,
there was a later meeting with both Domke and Wil-
liams, the Local 337 business agent, Present, when again
Daniel restated the rule that union stewards were not to
talk business during working hours without first asking
permission of a supervisor Williams agreed with Daniel,
but Domke did not, and kept arguing with the business
agent And ' on January 3, 1983, Domke was given still
another written reprimand that reads as follows:
Failure to follow instructions on the above date. At
'approximately 3:15 p.m. you were observed in your
work area having conversation with another em-
ployee (Don Pierce). You have been instructed sev-
eral times that if another employee wishes to speak
with you that he must have authorization from his
supervision. Due to your failure to follow instruc-
tions I find it necessary to issue you this warning.
For the General Counsel to argue that this January 3,
1983 reprimand was issued only to Justify the December
29, 1982 reprimand will not do. It is a form of inverse
reasoning. The second reprimand was consistent with the
overall testimony of many witnesses In any event, no
charge was filed in this proceeding until February 24,
1983!
The principal witnesses kept talking about things that
happened in the work place, conversations with supervi-
sors, which only cluttered the record and have nothing
to do with this case—things that are not mentioned in
the complaint All the witnesses proved is that they dis-
agreed with management as to what the conditions of
318 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employment should be. With the General Counsel asking
all these questions of her witnesses, she did so on the
theory that if 'management thinks an employee is wrong
as to what the collective-bargaining contract says, or
what the work rules are, this is -proof of illegal animus
against that -employee. It is a very poor argument to
make.
Again, an example. There is a rule applicable to work-
ing on Christmas Day. A notice is posted days in ad-
vance; anyone who wishes to work on Christmas Day
must sign his name on the notice at least 48 hours in ad-
vance of the holiday. Bliss spoke of. Christmas 1982,
saying he was planning something else for that day and
therefore did not sign up. He changed his mind and, the
day before Christmas, said he was going to work. He
was refused the opportunity. His position at the hearing,
and as argued to the supervisors at the time, was that the
rule did not apply to him because he was normally
scheduled to work that day of the .week anyway "I in-
formed the Company that you didn't have to sign the list
to be able to work.:' Bliss even filed a grievance over the
matter, which is still pending unresolved. I do not under-
stand why I heard this story.
A better example of pure argument by the witnesses,
intending again, I suppose, to prove animus against these
men, is something that happened in connection with an
arbitration that was scheduled one day A man named
Montiero was disciplined for low production, in fact dis-
charged, on September 16, 1982 When he was to be
given the reprimand the supervisors called Domke to the
office so he could represent the man at the disciplinary
interview, because the regular steward for that depart-
ment was not available. After much disCussion about the
matter Montiero was suspended and Domke signed the
reprimand notice The matter went to arbitration, origi-
nally scheduled for January 4, 1983. Domke decided he
wanted the production records applicable to Montiero
and asked Zafarano for them one day while at work; Za-
farano told him he did not have them With this Domke
left his work station and went to the pay telephone to
call his business agent. When a supervisor asked did he
have permission to go to the phone, Domke refrained
from making the call and returned to his work.
The story thus far about the Montiero discipline and
arbitration is from Domke's direct testimony. It spans a
number of pages of transcript and must be read to be be-
lieved He answered almost every question with an irrel-
evant comment about the Company's improper imposi-
tion of work rules, about all the liberties he had always
been permitted in the past, and about the Company's an-
tagonism towards him. Even the General Counsel had
difficulty obtaining direct replies. After repeating a
number of times that he always used the phone while at
work and that nobody • ever stopped him, he ended by
saying he did not make the call when asked had he ob-
tained permission that day, because "I felt I would be
disciplined." If he knew he would be disciplined, he cer-
tainly knew the rule was he had to obtain permission,
first. It is not possible to believe one word this witness
uttered
Domke went on to say that when he asked for produc-
tion records about Montiero's work to prepare for the
arbitration about that man's discharge, which was sched-
uled for January 4, he was denied the opportunity to see
them. The Respondent then offered a letter it sent to the
Union's lawyer on January 4, reading in part:
John Montiero and persons claiming to be his repre-
sentatives have made two separate appointments
with Borman's management to review Mr. Mon-
tiero production records. Although in each instance,
the records and Borman's management personnel
were available, Mr. Montero or his representatives
failed to appear.
Domke was Montiero's representative, present at both
the disciplinary interview and at the arbitration 'hearing
later. There is a rule that a steward desiring to attend an
arbitration hearing must give 48 hours advance notice
Domke did not do that, but demanded the right to attend
Montiero's arbitration anyway At first Supervisor
Daniel said he could not leave, but, when a union officer
apologized for not having given the requisite advance
notice, Daniel let Domke off and permitted him to go to
the arbitration. With this being Respondent's attitude to-
wards Domke's steward activities, how can I believe his
story that the Respondent was determined to put a stop
to his handling of grievances, or assisting the employees?
The Company's January 4 letter in evidence proves
without doubt he was offered the records, and if he did
not see them in advance of the arbitration it was only be-
cause he himself was negligent More importantly, this
matter is further proof of the complete falsity of his
entire testimony. Domke even testified that 5 days before
he was so gracioUsly given permission to attend that ar-
bitration, Supervisor White told him he would be dis-
charged if he became involved in that particular arbitra-
tion! Another perfect example of false testimony by
Domke
Wherever Domke is contradicted by the company wit-
nesses; especially with respect to his testimony about
being threatened by Supervisor DeMay or Daniel, I do
not credit Domke.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed 2 .
ORDER
I recommend that the complaint be dismissed in its en-
tirety
2 If no exceptions are filed as provided by Sec 102 46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec 102 48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses