Caterpillar Tractor Co.

National Labor Relations Board - Board Decisions

May 24, 1979

242 N.L.R.B. 523 (N.L.R.B. 1979)

CATERPILLAR TRACTOR COMPANY
Caterpillar Tractor Company and Everett M. Cleve-
land, Jonathan H. Siegel, Kathleen Virginia Mc-
Pherson, and Millicent Bell. Cases 32-CA-719, 32
CA-973, 32-CA-968, and 32-CA-976
May 24, 1979
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS JENKINS
AND PENELLO
On January 29, 1979, Administrative Law Judge
Joan Wieder issued the attached Decision in this pro-
ceeding. Thereafter, the Respondent filed exceptions
and a supporting brief, the General Counsel filed
cross-exceptions and a supporting brief, and the Re-
spondent filed an answering brief in opposition to the
General Counsel's cross-exceptions.
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 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 and to
adopt her 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 Or-
der of the Administrative Law Judge and hereby or-
ders that the Respondent, Caterpillar Tractor
Company, San Leandro, California, its officers,
agents, successors, and assigns, shall take the action
set forth in the said recommended Order, except that
the attached notice is substituted for that of the Ad-
ministrative Law Judge.
IT IS FURTHER ORDERED that the remainder of the
complaint be, and it hereby is, dismissed.
I The Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to over-
rule an administrative law judge's resolutions with respect to credibility un-
less the clear preponderance of all of the relevant evidence convinces us that
the resolutions are incorrect. Standard Dry Wall Products. Inc., 91 NLRB
544 (1950). enfd. 188 F.2d 362 (3d Cir., 1951). We have carefully examined
the record and find no basis for reversing her findings.
In adopting the Administrative Law Judge's finding that the Respondent
violated Sec. 8(aX3) and (1) by enforcing its plant rules in a more rigorous
manner against employee Cleveland because of Cleveland's status as a union
steward. Member Penello would not rely on Gould Corporation. 237 NLRB
881 (1978), in which he dissented, and Precision Castings Comnpan,. 233
NLRB 183 (1977), inasmuch as those cases dealt with an employer's attempt
to single out for discipline a union steward for failing to abide by his contrac-
tual duty to enforce the no-strike provisions of a collective-bargaining agree-
ment.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing in which all parties had the opportu-
nity to present their evidence, it has been decided that
we violated the law, and we have been ordered to
post this notice. We intend to carry out the order of
the Board and abide by the following:
The Act gives all employees these rights:
To engage in self-organization
To form, join, or help unions
To bargain collectively through representa-
tives of their own choosing
To act together for collective bargaining or
other mutual aid or protection
To refrain from any or all these rights.
WE Wnl.L NOT interfere with, restrain, or coerce
our employees by disciplining or in any other
manner discriminating against them for engaging
in protected concerted activities.
WE WILL.. NOT deviate from our disciplinary
system and reprimand or otherwise discipline
our employees because of their interest in or ac-
tivity on behalf of United Automobile, Aero-
space. and Argicultural Implement Workers of
America, Local No. 76, or any other labor or-
ganization.
WtE wIl.L NOr in any other manner interfere
with, restrain, or coerce our employees in the ex-
ercise of rights guaranteed them by Section 7 of
the National Labor Relations Act, as amended.
Wi- wui.i. make whole Everett M. Cleveland
for any loss of earnings he may have suffered
because of his unlawful suspension, with interest
thereon.
WE WIll.t expunge from our records all unlaw-
ful warning notices issued to employees Everett
M. Cleveland. Kathleen McPherson, and Milli-
cent Bell.
CATERPIII.AR TRACTOR COMPANY
DECISION
STATEMENT OF ritE CASI
JOAN WII)ER. Administrative Law Judge: This case was
heard at Oakland. California, on August 16 through 18.
1978.' The charge in Case 32 CA 719 was filed on Febru-
arD 13 by Everett M. Cleveland. The charge in Case 32
CA- 973 was filed on July II. 1978. by Jonathan H. Siegel,
i nless otherwise indicated, all dates herein refer to the ear 1978.
242 NLRB No. 93
523
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
attorney for Everett M. Cleveland. The charge in Case 32-
CA-968 was filed on May 23 by Kathleen McPherson, and
the charge in Case 32-CA-976 was filed on May 26 by
Millicent Bell. An order consolidating the four cases and an
amended consolidated complaint and notice of hearing was
issued on July 26.
The amended complaint alleged that Respondent en-
gaged in unfair labor practices in violation of Section
8(a)(1) and 8(a)(3) of the National Labor Relations Act, as
amended (hereinafter called the Act), 29 U.S.C., §151 et
seq.
Issues
The primary issues are:
1. Whether Respondent violated Section 8(a)(1) of the
Act by threatening, warning, and disciplining Millicent Bell
in retaliation for her engaging in protected concerted ac-
tivity.
2. Whether Respondent violated Section 8(a)(l) of the
Act by subjecting Kathleen Virginia McPherson to formal
discipline in retaliation for her engaging in protected con-
certed activity.
3. Whether Respondent violated Section 8(a)(l) and (3)
of the Act by harassing and intimidating an employee at-
tempting to engage in protected concerted activity; subject-
ing that individual, Everett Cleveland, to discipline for hav-
ing engaged in such activity; and subsequently suspending
Cleveland because he engaged in protected concerted ac-
tivities and because he filed charges with the National La-
bor Relations Board against the Employer.
All parties were given full opportunity to participate, to
introduce relevant evidence, to examine and cross-examine
the witnesses, to argue orally, and to file briefs. Briefs,
which have been carefully considered, were filed on behalf
of all parties.
Upon the entire record of the case and from my observa-
tion of the witnesses and their demeanor, make the follow-
ing:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
Caterpillar Tractor Company, hereinafter called Respon-
dent or Company, has its principal office in Peoria, Illinois,
and a place of business in San Leandro, California. It is
engaged in the manufacture of tractor parts. The San Lean-
dro facility is the only place of business involved in this
proceeding. During the past 12 months, Respondent sold
and shipped goods or services valued in excess of $50,000
directly to customers located outside of the State of Califor-
nia. Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
II. LABOR ORGANIZATION
United Automobile, Aerospace, and Agricultural Imple-
ment Workers of America, Local No. 76, herein called the
Union of U.A.W., is a labor organization within the mean-
ing of Section 2(5) of the Act.
Preliminary Matters
During the course of the hearing, the parties entered into
a settlement stipulation and agreement on the issues in-
volved in the amended consolidated complaint in Case 32-
CA-719 as to the issues related to Respondent's nonsolici-
tation rule during nonworking time. By Order dated Sep-
tember 5, 1978, I found that the settlement agreement effec-
tuated the policies of the Act and that the issues involved in
the amended consolidated complaint in Case 32-CA-719
relating to the nonsolicitation rule should be severed from
the consolidated proceeding. As a condition to approving
the settlement, it was required that the agreed-upon notice
be posted for the requisite term; that the Regional Director
inform the Division of Judges of the National Labor Rela-
tions Board that the terms and conditions of the notice have
been complied with; and that with such notification the
severed portion of the complaint would be dismissed.
On November 16, Jonathan H. Siegel, a party herein,
filed a letter petition requesting that the hearing in this pro-
ceeding be reopened because one of the alleged discrimi-
natees, Kathleen McPherson, was suspended subsequent to
the close of the hearings in these proceedings. An Order to
Show Cause was issued on November 16, and in reply
counsel for the General Counsel indicated for the first time
to me that a charge had been filed by Mr. Siegel in Case 32-
CA-1374 based on the facts and circumstances alleged in
the petition to reopen these proceedings. Inasmuch as Gen-
eral Counsel stated that the Charging Party withdrew the
charge in Case 32-CA-1374, the General Counsel has in-
vestigated Case 32-CA- 1374 and had the discretion to issue
a complaint, which has not been issued, and the petitioner
failed to show the relevance of post-hearing conduct to the
merits of the case here under consideration, it is concluded
that good cause for reopening the instant proceedings has
not been shown. Accordingly, the petition to reopen is
hereby denied.
III. THE ALLEGED UNFAIR LABOR PRACTICES
Background
Respondent's San Leandro plant manufactures tractor
parts. The different activities of the plant are divided into
units called departments. These proceedings involve three
separate departments, numbered 98, 96, and 94cc. Some of
the employees of these three departments have been repre-
sented by the U.A.W. since 1974.
A. Matters Relating to Millicent Bell
The complaint in Case 32-CA-976 alleges that Respon-
dent, through its agent Foreman Melford Crawford (Craw-
ford), interfered with, restrained, and coerced Millicent Bell
in the exercise of her rights guaranteed in Section 7 of the
Act by issuing to Bell a verbal reprimand. Bell has worked
for Respondent for approximately 7 months as a first shift
packer in department 98. Department 98 has a total of 76
employees, members of the U.A.W. The foreman in charge
524
CATERPILLAR TRACTOR COMPANY
of the first shift is Melford F. Crawford, who assumed the
job in January.'
The work hours for the first shift are 7:18 a.m. to 3:48
p.m. The lunch hour is 11:48 a.m. to 12:18 p.m.
The incident on May 2 involved inquiring about the job
classification of another employee. On that day an operator
who was newly assigned to a packaging machine' was hav-
ing difficulty operating that machine. Crawford went over
to the machine site to assist, but was unable to solve the
problem. The former operator of the machine, Tom Harris,'
was passing by at the time, so Crawford stopped him to
seek his assistance. While the three were standing next to
the machine trying to resolve the difficulties, Bell left her
work station and asked Tom Harris what his job was, fork-
lift driver or shrink-pack operator. Harris did not reply.
Crawford instructed Bell to return to her work station. Bell
replied that it was her duty as a member of the U.A.W. to
inquire as to what job classification people were working
under. The three men then returned to resolving the diffi-
culty with the machine, and Bell continued walking
through a portion of the department to acquire stored ma-
terials required in her job. She acquired the needed materi-
als and returned to her workbench. She had no further con-
versations with Harris. Crawford did not enter Bell's
comments in her personnel file.
Later the same day, May 2, Bell and Crawford had fur-
ther discussion involving the work jurisdiction issue. Craw-
ford estimated that the second conversation lasted about 5
minutes. The record is not clear as to how their second
discussion arose. Crawford testified that Bell came over to
his desk. Bell testified' that approximately 1 hour after her
comment to Harris, Crawford called her over to his desk,
stating that it was not her job to inform fellow employees
that they were working out of classification. Crawford fur-
ther instructed Bell that, as foreman, he directed the work-
ers in his department a:xl if any work jurisdiction issues
arose, it was the steward who must raise the question. Bell
replied that as a member of the Union, she was obligated to
know the terms of the union contract, and she also felt
obligated to inform fellow union members when a contract
violation occurred. Bell also told Crawford that he, as a
member of management, had no right to proscribe the
scope of her union obligation.
Bell then inquired when Crawford would allow her to
discuss union matters, including work jurisdiction ques-
tions, with coworkers. Crawford testified that he replied
that Bell could talk about job classifications while working
if the discussion did not disrupt productivity.
I do not credit Crawford's testimony. It appears highly
unlikely that the remainder of the conversation would have
'Crawford has been a member of a union. He was hired at Caterpillar
over 15 years ago as a machinist and was a steward for approximately 6
months for the International Association of Machinists (I.A.M.). Later he
became a forklift driver and joined the Teamsters Warehousemens' Union.
The U.A.W. assumed the representational obligations of the Warehouse-
mens' Union. Crawford testified that he left the Union.
Called a shrink-pack machine.
4Tom Harris was recently assigned as a forklift driver under Crawford's
supervision.
5 There is very little disparity between the testimony of Bell and Crawford
regarding the content of the conversation. Where there is a disparity, I credit
the testimony of Bell based on her much clearer recollection of the content of
the conversation.
occurred if Bell had been informed that it was permissible
to discuss job classifications while working. Crawford ad-
mits that, in response to a question by Bell regarding the
permissibility of discussing job classifications during breaks,
he replied that there was no such thing as a break at the
plant and that any trips away from one's work station were
permitted only for personal relief or for work-related mat-
ters. Bell then asked Crawford if she could go to the bulletin
board which contained the rules that Crawford cited about
personal relief, and Crawford replied that he would not al-
low this during worktime. Bell then asked, if she gave up
one of her trips to the coffee machine to instruct or inquire
about job classifications, would this be permissible; Craw-
ford replied that he would not allow that either. Crawford
stated that he would not allow Bell to instruct other em-
ployees instead of going for coffee because it would be a
disruption in the section.
Crawford indicated again that it was not Bell's job to
discuss contract violations. She replied, according to Craw-
ford: "Giving as a ridiculous example, 'You mean I'm up at
the bathroom and one of the ladies asks me about the con-
tract, I have to tell them to go talk to a steward, or I can't
answer that?'" Crawford admits replying to this inquiry
"[t]hat he did not care what an employee did in the rest-
room, that he did not care if an employee played with him-
self in the restroom."6
Bell stated that she then asked for a steward. Crawford
then decided to give her a verbal warning, which is disci-
plinary action. Crawford does not recall exactly when he
made the decision to issue a verbal warning; it was either
prior or subsequent to Bell's request for a steward. How-
ever, he stated that the decision to issue the warning was
not based on Bell's request for a steward. He asserts that
the basis for his decision to give a verbal reprimand for
wasting time was Bell's leaving her work station to inquire
as to Harris' job classification as well as her wasting time
when she discussed the matter later with Crawford. Craw-
ford then stated that he made the decision to issue the ver-
bal reprimand when he had no more answers for her during
the conversation. He does not recall if he told her his rea-
sons for issuing the verbal reprimand.
Discussion
The record clearly establishes that Crawford has in the
past given verbal warnings to other employees for wasting
time. For example, Crawford gave Bell a warning on Feb-
ruary 15 for excessive talking. He also gave Bell a verbal
warning for wasting time on March 6 when she was reading
a newspaper at her work station before the shift had ended.
' Crawford later apologized for the comment pursuant to a directive from
his supervisor, Mike Oakey. Crawford was not disciplined for the comment.
Oakey testified that there is a company policy regarding abusive language
whether it be profane or just in poor taste. Such language is not to be toler-
ated by hourly employees, weekly employees, or management employees.
When Oakey heard about Crawford's remark to Bell, he warned Crawford
about making similar statements in the future, indicating that they would not
be acceptable. Oakey stated that he had never heard of a similar incident
where management directed language in similar poor taste or so provoca-
tively to an employee under his supervision. It should be noted that Oakey's
testimony is extremely relevant to the complaint regarding Everett Cleve-
land's suspension, discussed hereinafter.
525
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It is also clear that Respondent does not have specifically
designated work breaks. The Company does post notices
around the facility entitled "Personal Time." As pertinent,
the notice states:
We do not schedule individual rest periods during the
workday. Instead, all employees both male and female
are permitted to leave their work stations as they re-
quire for personal needs, or to use the vending equip-
ment. This applies to all operations at the San Leandro
plant. We believe that flexibility in the use of such time
best meets the variable needs of individuals; and that
this practice conforms with State and Federal statutory
requirements.
According to Kathryn Lyn Wade, a labor relations repre-
sentative with Caterpillar Tractor Company, in charge of
administering the U.A.W. contract, there are no written
rules relating to personal time other than the notice. They
do have certain unwritten practicies regarding personal
time, and it is the obligation of the foreman to instruct the
employees on these rules. In general, the unwritten rules
are: If employees need to use the vending machine, canteen
equipment, or restroom, they are allowed to as needed.
Once they acquire their beverage or meet other personal
needs, the employees are expected to return to their work
areas and resume working.
The issue, therefore, is simply whether Bell was disci-
plined for wasting time or engaging in protected concerted
activity.
Crawford testified that if Bell had just made the comment
to Harris and returned to her work station, he would not
have given her a verbal reprimand. Accordingly, it was the
second discussion regarding job classifications which led to
the disciplinary action. Based on Crawford's testimony, I
find that the second discussion was part of the grievance
procedure.7 As pertinent, Crawford described the grievance
procedure as follows:
Step I of the grievance procedure provides that any em-
ployee shall present the facts to the immediate supervisor
when the grievance arises. The supervisor and the employ-
ees discuss the grievance and try to resolve the problem
prior to calling for a steward. Crawford admitted that if one
employee felt that other employees were working under im-
proper job classifications or were assigned work they were
not properly to do, it would be a grievable issue. Crawford
further recognized that under the contract, the first step
that an employee would take is try to speak to the immedi-
ate supervisor. Additionally, Crawford further admitted
that it was exactly this type of activity Bell was engaged in
when they held a discussion as to when job classifications
were the subject of permissible conversation between em-
ployees. Finally, Crawford stated that he had never before
given anyone a reprimand for wasting time when that indi-
vidual had been talking to him. In the past Crawford had
given reprimands only where employees were talking to fel-
low employees.
Furthermore, the freedom to discuss the provisions of the
collective-bargaining agreement is an activity protected by
7 Crawford stated that he was familiar with the U.A.W. provisions regard-
ing grievance procedure.
the Act. An employee's expression of view on the provisions
of the agreement with a supervisor, rather than a fellow
employee, is likewise protected. Diagnostic Center Hospital
Corp. of Texas, 228 NLRB 1215 (1977). The record clearly
shows that Respondent's employees are permitted to en-
gage in other than work-related conversation so long as it is
not disruptive of production. Even if employees were not
permitted to engage in casual conversation, and Bell's con-
versation was deemed excessive, Respondent's argument
that Bell's exploring the parameters of what Crawford, her
foreman, considered allowable union activity, was so dis-
ruptive of production as to warrant the imposition of disci-
pline, is without merit.
The processing of a grievance is protected concerted ac-
tivity. Clara Barton Terrace Convalescent Center, a Division
of National Health Enterprises-Delfern, Inc., 225 NLRB
1028 (1976). Disciplinary action precipitated by the taking
of worktime to pursue a grievance, particularly where the
action taken by Bell, according to the disciplinarian, is con-
sonant with the established grievance procedure, is bound
to discourage a recourse to that procedure for fear that the
time taken might subject an employee to reprisal. I find,
therefore, that the disciplining of Bell for following the es-
tablished grievance procedure is a violation by Respondent
of Section 8(a)(1) of the Act.
B. Matters Relating to Kathleen McPherson
The complaint in Case 32-CA-968 alleges that Respon-
dent, through its agents Dennis Hundoble. Joe Rickey, and
Katherine Lyn Wade.8 interfered with, restrained, and co-
erced Kathleen McPherson in the exercise of her rights
guaranteed in Section 7 of the Act by issuing a written
reprimand.
McPherson has been employed at Caterpillar for ap-
proximately 1-1/2 years. Her job classification is IK24,9
which is the lower classification of forklift driver. McPher-
son started working in department 96 but was transferred to
department 94cc on March 6. Prior to her assignment to
department 94cc, all the drivers were classified as 1K21's.'0
1. Department 94cc
This department is approximately I mile distant from the
main office area and is serviced by a shuttle bus. Building
94cc is the San Leandro plant's new warehouse. The de-
partment was established to permit consolidation of all ex-
isting storage areas and implement a new materials han-
dling system.
Department 94cc has three major functions: to store and
retrieve raw stock, rough castings, and cardboard. The de-
partment is a large warehouse. Adjacent to department
94cc is a manufacturing area known as Building BB.
8 All are supervisors, as Respondent admitted in its answer to the com-
plaint.
9 The higher classification of driver is I K21.
I Subsequently, three other IK24 drivers were assigned to department
94cc.
526
CATERPILLAR TRACTOR COMPANY
The foreman of department 94cc is Joseph John Simi."
The warehouse was designed by Dennis Hundoble 2 who is
often present in the department and acted as foreman in
Simi's absence.
Department 94cc employees are represented by the
U.A.W. as well as by the I.A.M., and there are some weekly
salaried employees who are not affiliated with any union.
The U.A.W. members are classified as either IK21 or IK24
drivers; these classifications do not apply to I.A.M. mem-
bers.
The job descriptions of the different truckers are con-
tained in Appendix A to the union agreement. A IK21
truckdriver is described in the contract as follows:
Operates any automobile truck and/or truck tractor
with trailer combination with a license capacity of less
than 59,000 pounds. Performs loading and unloading
functions either manually or with power equipment.
Complies with all traffic laws and regulations. Main-
tains fuel, lubricant, tire pressure and coolant require-
ment. Changes tires and performs repairs on the road.
A IK24 power trucker is described in the contract as
follows:
Operates a power driven lift or platform truck to load,
unload, transport and tier material, equipment and
supplies as directed. Assumes responsibility for servic-
ing of truck and reporting all mechanical defects.
Wade testified that the job descriptions contained in Ap-
pendix A to the local agreement are considered by manage-
ment as not providing any kind of work jurisdiction but as
merely describing the major rate-setting characteristics of
the job. Additionally, management stated that all the duties
of the two different types of truckers are not included in the
contract. The I K21 and I K24 classifications are further de-
scribed as combination jobs.'3
2. Events leading to the issuance of a formal warning
Three days after being assigned to department 94cc, Mc-
Pherson, on March 9, filed a grievance. This grievance was
considered by Respondent to be the first of a series of repet-
itive grievances filed by McPherson involving the duties of
the two truckdriver classifications hereinbefore described.
The efforts expended to file the series of grievances involv-
ing the combination jobs were considered as wasting time.
On May 22, at the start of the workday, McPherson re-
quested a steward to file a grievance, indicating that the
grievance involved the combination job problem. The re-
quest was made to Hundoble, who was substituting for Simi
" Simi was hired by Caterpillar in 1968 as a factory accounting clerk. In
1973 he was promoted to the position of office services coordinator and in
1976 became a manager.
21 Hundoble is a materials distribution general foreman on special assign-
ment for the past 2-1/2 years. He has been employed by Caterpillar 13-1/2
years, having first been hired as a machinist. He was a member of I.A.M.
Hundoble designed department 94cc, which required his frequent presence
in that department.
3 According to management this means that if an employee is required to
drive an over-the-road truck for a portion of the day he would be classified
as a IK21. Consequently, even if the work performed by the same employee
for the remainder of the day consisted of the exact same duties as a I K24
trucker was assigned, he would be paid at the highest classification; i.e., a
IK21.
as foreman of department 94cc for the week of May 22
through May 26. Simi had previously mentioned to Hun-
doble that McPherson was filing what he considered "repet-
itive grievances." Acting on this information from Simi,
Hundoble indicated to McPherson that she had previously
filed that particular grievance on numerous occasions,
which the Company considered wasting time. Hundoble in-
dicated that he would call a steward for her and said he
would get back to her on the wasting time problem. He did
not tell her he was going to take any further disciplinary
action.
Hundoble then examined McPherson's foreman-em-
ployee file and ascertained from the file that she had re-
ceived previous verbal warnings and reprimands for filing
repetitive grievances. Hundoble decided under the Compa-
ny's progressive discipline system to issue a formal written
warning relating to her filing the combination job griev-
ances.
To ascertain if he was on solid ground and prior to issu-
ing the warning, Hundoble called Wade, indicating that
he wanted to give McPherson a formal warning for wasting
time because she continued to file grievances regarding the
combination job problem. Wade testified that she strongly
urged Hundoble not to issue the warning, inasmuch as a
meeting was scheduled with the U.A.W. the following day
and she planned to raise the issue of repetitive grievances at
that meeting. According to Wade, Hundoble felt very
strongly about issuing the warning, so she volunteered to
speak with her supervisor Jerry Brust, the employee rela-
tions manager." Brust informed Wade that if the warning
was warranted, it should be issued. He then opined that if
at a later date an agreement were reached with the Union
regarding McPherson's grievances, she could then file an-
other grievance to resolve the issuance of the formal warn-
ing. Wade then telephoned Hundoble to relay Brust's
views.
Hundoble also telephoned Joseph Rickey, the general
foreman of the building, who had to attend the issuance of
any formal warning and who was Simi's superior, to inform
him of his actions.'" Rickey replied "[F]ine, go ahead."
Hundoble issued the formal warning. He indicated that
he never reviewed the individual grievances that led to his
issuance of that warning. The warning was presented in an
area referred to as a lunchroom. The warning listed five
grievances that were relative to the work assignments made
to I K21 and I K24 truckers. Hundoble told McPherson that
the listed grievances were repetitive grievances, the filing of
which were considered wasting time. Hundoble said that
she had been warned previously by Simi about wasting time
in this manner.' Hundoble then stated that if McPherson
1 Wade participated in a negotiation of the present U.A.W. contract.
" Brust did not testify.
16 Rickey did not testify.
"7 There is a dispute between the parties regarding the number of times
Simi told McPherson that she was wasting time by filing repetitive griev-
ances. McPherson remembered that Simi warned her once on May 10 that
repetitive grievances were considered wasting time. The foreman-employee
file indicates that three verbal comments were made to her. McPherson fur-
ther remembers that Simi told her that she was filing repetitive grievances;
however, some confusion may have arisen regarding the fact that repetitive
grievances were considered wasting time. Wasting time is, under the union
agreement, a subject of discipline. Inasmuch as formal notations were made
in the foreman-employee record (hereinafter referred to as FER) the da of
each occurrence, the FER will be credited.
527
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
filed another grievance on the same issue she would be sub-
ject to further discipline.
After Hundoble read the warning to her, he asked Mc-
Pherson if she had any comments. There was a brief discus-
sion concerning the job classification problem. There is no
indication that McPherson understood combination jobs
and how employees assigned to such jobs performed their
assigned duties. There appears, in fact, to be no such under-
standing between McPherson and management because ac-
cording to Hundoble, she indicated that she felt the warn-
ing was not fair because the grievances were all different.
Hundoble was surprised, and he said he would get back to
McPherson and (Chief Union Steward) Cleveland (who was
assisting her in filing her grievances) on that issue after
checking her allegation that there were differences in the
grievances. At this time McPherson also indicated that the
articles cited in the grievances were different, the settle-
ments requested were not the same, and the relief requested
was different in each instance. Hundoble then indicated
that he did check into the matter; but he later testified that
he requested that Rickey, who was returning to the same
building that had the offices in which the grievances were
filed, check into the allegation that the grievances were dif-
ferent as soon as he got back to the main plant. Rickey
responded that he would and promised to inform Hundoble
of his research. There is no indication that Hundoble him-
self reviewed the grievances or that Rickey detailed the con-
tent of the grievances so that it might have been ascertained
that there were differences sufficient to avoid the character-
ization as repetitive grievances.
The grievances listed in the formal warning were:
The grievance of March 9, 1978
This grievance was filed 3 days after McPherson's trans-
fer to department 94cc. The reasons given in the grievance
for the filing included her assignment of duties other than
those she was led to believe she would be assigned at the
time she was transferred to department 94cc. The addi-
tional duties were the loading and unloading of vans, a job
which had previously been accomplished by the higher
rated K21 truckers. McPherson felt she was ill-trained to
perform these additional duties. McPherson also stated that
another employee with equal seniority actually requested
the assignment to 94cc but was bypassed. Accordingly she
attributed the reassignment to her union activities, charac-
terizing the transfer as an attempt to "separate her from the
main plant." The articles of the contract allegedly violated
were 17.2 and 9.3.'"
I Art. 17.2 provides, as pertinent:
The Company and the Union shall not, in discharging their respective
responsibilities under this contract, be discriminatory of any employees
because of nationality, race, sex, political or religious affiliation, or
membership in any labor or other lawful organization.
Art. 9.3 provides:
In the event such opening is to be filled by reassignment within the
bargaining unit, the reassignment shall be based on real and practical
considerations, without discrimination; if the reassignment is not based
on such reasons, then it shall be made on the basis of seniority.
The grievance was considered at the second step and an
answer was given to McPherson as follows: "The major
portion of Miss McPherson's duties were moved to section
94, 1933 Davis Street. She moved in [sic] with them. There
has been no contract violation." The answer does not ad-
dress itself directly to the question of combination jobs nor
does it explain how employees working in such jobs might
occasionally do the same work as higher rated employees.
Simi testified that he explained to McPherson that the
job she believed she would be assigned, moving cardboard,
which was a duty she had performed at her prior job, would
take only 2 or 3 hours a day, and therefore she would have
to provide service to the adjacent building, Building BB.
Simi's testimony is not fully credited since the grievance did
not refer to servicing another building, but specifically re-
ferred to the loading and unloading of vans. In any event,
the relief sought was a reassignment to her former position,
which was not granted.
The May 9 grievances
The first grievance filed on May 9 resulted from an inci-
dent which occurred on May 5, 1978. McPherson was di-
rected to unload a van and requested a steward. The griev-
ance was discussed with Cleveland and was predicated
upon an allegation that unloading vans was the work of a
1K21, not a IK24. The assignment was characterized as
requiring a I K24 to perform duties out of the job classifica-
tion. The grievance could not be completed on that date, so
Cleveland returned to McPherson's department with a
completed grievance form on May 9, 1978, which he and
McPherson discussed and redrafted. The redrafted griev-
ance indicated that 1K24's were unqualified to perform
those duties for which they were assigned; i.e., loading and
unloading large truck trailers.
Simi gave McPherson a verbal warning regarding the fil-
ing of this grievance on the basis that it was repetitive and
was considered wasting time.
The second grievance filed by McPherson on May 9
again dealt with a directive to load or unload a large van.
McPherson was told again by Simi that the continued filing
of grievances on the same subject was considered wasting
time.
The relief requested in the two grievances filed on May 9
was different, as were the sections of the contract allegedly
violated. One of the grievances requested an increase in the
hourly rate for the IK24's assigned to perform 1K21 work.
The section of the contract allegedly violated was 15.1
which deals in great length with salary and income security.
The other grievance filed that day alleged that it was haz-
ardous to assign IK24's to perform work for which they
As used in this Section 9.3, "reassignment" means the assignment of
an employee in the bargaining unit (I) to a job opening in the same
classification on the same shift within the bargaining unit but under a
different supervisor, or (2) to a job opening in a different classification,
on the same shift within the bargaining unit, which has a maximum rate
equal to the maximum rate of the classification to which the employee
was assigned immediately before the reassignment.
528
CATERPILLAR TRACTOR COMPANY
were not qualified; i.e., the loading and unloading of large
vans. The article cited in this grievance was 17.8.'9
After the second grievance was filed on May 9, Simi gave
McPherson a verbal warning for wasting time by filing
grievances on the same subject. Simi also discussed with
McPherson the loss of productivity in the department
caused by the time devoted to filing these grievances. Mc-
Pherson does not clearly remember the warnings but, inas-
much as the two warnings given that day were noted in the
foreman-employee report, which was prepared the same
day as the events, I credit Simi's testimony. These were the
first warnings given to McPherson regarding the filing of
what was considered repetitive grievances, the filing of
which is wasting time.-
There was no clear statement that Simi in any way ex-
plained the operation of combination jobs in giving assign-
ments. Additionally, there does not appear to have been a
second-step answer to any of the grievances that were dis-
cussed hereinbefore or that will be discussed hereinafter,
that delineates or explains the Company's position on com-
bination jobs. The assignments of duties to individuals who
are in combination job classifications is the problem which
gave rise to all the grievances discussed herein. There is no
evidence that these positions and how they operate were
ever explained to McPherson. '
The May 10 grievance
Simi directed McPherson to unload a van and a flatbed.
McPherson claimed that for the past 5 years this work had
been performed by 1K21's. The relief requested in the
grievance was higher pay and the assignment of more
1K21's where needed by the promotion of an appropriate
number of IK24's. The violation alleged was that of the
local agreement citing Appendix A of the agreement, which
is the section of the contract defining the different job clas-
sifications. Simi reiterated his belief that the filing of the
grievance was a waste of time and informed McPherson
that if she continued filing repetitive grievances, he would
issue formal discipline.
t9Art. 17.8 provides:
The Company shall continue to make the decisions as to whether
work shall be performed by Company forces in any Company plant, or
by others, consistent with an intention to maintain, so far as practicable,
a stable work force. The Company shall make decisions of such nature
with such intention taking into consideration such factors as the scope
of the project or production requirement, relative costs, possession and
availability of Company equipment and of employees qualified to ac-
complish the production without undue overtime or delay either of the
speciflc production or of any other scheduled activity, desirability of
continuity of relations with historic sources of supply and believed best
utilization of all the Company's plants with a view to long-term stability
and health of the enterprise as a whole.
2 Two other grievances had been filed by McPherson on April 24 and
May I regarding the combination jobs iue. These two grievances were not
included in the formal warning. The reasons for their exclusion were not
clearly explained. However, these two grievances will not be considered
herein because they were not included in the formal warning as a basis for
the issuance of the warning. The exclusion of these grievances in the formal
warning indicates that Respondent did not consider them part and parcel of
the "repetitive grievance problem" nor a basis for the action complained of
herein.
1 It appears that Simi's answer to all the grievances discussed herein is
that there were no contract violations.
The May 22 grievance
The first day Hundoble substituted for Simi.22 both Mc-
Pherson and Scott Gordon, a I K21 truckdriver, requested a
shop steward to file a grievance. The grievance claimed
that assigning a 1K24 to do the work of a I K21 was hazard-
ous because 1K24's were not familiar with the procedures
for loading and unloading large trailers. The specific adjust-
ment requested was the honoring of the contract or, in the
alternative, the promotion of IK24's to the IK21 classifica-
tion or the payment to 1 K24's of the higher I K21 rate when
performing that work. Both McPherson and Gordon were
listed as grievants but only Gordon24 signed the form.
The record does not disclose whether this grievance was
ever answered.
Hundoble indicated that he was extremely sensitive to
problems involving repetitive grievances due to an incident
which occurred approximately 3-1/2 years prior to the
hearing herein, which involved U.A.W. claims that I.A.M.
members were infringing on their work jurisdiction. This
old incident devastated production because hundreds of
grievances were filed during a 2- to 3-month period of
time," and the main receiving and storage area of the plant
was almost shut down. Hundoble stated that no discipline
was imposed for the filing of repetitive grievances during or
subsequent to this work jurisdiction incident. It appears
that McPherson was the first employee disciplined for filing
repetitive grievances. Hundoble admitted that this old inci-
dent was "in his mind" when he decided to issue progres-
sive discipline.' 6
The day following the May 22 incident, the meeting be-
tween the U.A.W. and Respondent was held. After discuss-
ing the problem of repetitive grievances, the U.A.W. inter-
national representative suggested that all the grievances be
consolidated.27 Chief Union Steward Cleveland was di-
rected to inform McPherson of the solution. As part of the
proposal, management agreed to withdraw the formal
warning issued to McPherson.
The record clearly demonstrates that this straightforward
solution was not clearly understood by the parties involved.
Cleveland told McPherson that she would have to choose
one grievance that would be pursued through the entire
grievance procedure, and the rest of the grievances were to
be dropped. McPherson refused.
Wade testified that Cleveland was to select a lead griev-
ance, and then she was not sure what disposition was to be
22 Respondent adrmts that Hundoble was acting as a supervisor on this
day.
23 The incident which led to the request was the assigning of a new I K24
power trucker to unload a large trailer.
4 Hundoble did not know how many grievances Gordon had filed regard-
ing the combination job issue, nor did he check the file to find out.
12 McPherson filed five grievances deemed repetitive dunng a 2-1/2 month
period of time.
25 Hundoble appeared very sensitive to the combination job problem, hav-
ing in that same week that he disciplined McPherson threatened another
employee, Laurie Gitlin, with discipline for wasting time when she requested
a steward to file a grievance involving the combination job issue. Hundoble
recognized his erroi later and apologized to Gitlin, based on the fact that
Gitlin had not previously filed a grievance on the combination job issue.
12 The U.A.W. official did not review the grievances filed by McPherson to
ascertain if they were repetitive. Wade, who represented management at the
meeting, also did not review the individual grievances.
529
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
made of the remaining grievances. According to Wade,
there was no firm commitment to drop the remaining griev-
ances.
Hundoble, at the time of testifying, was not clear on the
understanding leading to the withdrawal of the formal
warning. However, in an affidavit given on June 28, he
stated that his understanding of the settlement was as fol-
lows: "If all grievances were withdrawn except one, the
warning would not go into McPherson's file." I find that
Hundoble's statement made to the Board on June 28 clearly
reflects his understanding at the time of the incidents con-
sidered herein, since it was made only I month after such
incidents.
McPherson, in uncontroverted testimony, stated that
Cleveland never informed her that the Union was a party to
the proposed settlement or that the settlement was in fact
proposed by the Union. In fact, she had heard the proposal
only moments before she was given the written warning.
Within a week after the issuance of the formal warning,
McPherson filed with Hundoble a grievance regarding the
warning. Hundoble told McPherson that the Union and
Respondent had reached an agreement. There ensued a dis-
cussion regarding the details of the agreement, s and Mc-
Pherson indicated that she would not drop all but one
grievance. Hundoble proceeded to rip up the formal warn-
ing consistent with his understanding of the agreement. Mc-
Pherson stated that as far as she was concerned the issue
was still alive. In response, Hundoble informed her that if
she continued to file grievances on the classification issue,
he would reissue the formal warning or take other disciplin-
ary measures based on the filing of repetitive grievances.
Respondent's position
Respondent alleged that General Counsel has not met its
burden of proof affirmatively by substantial evidence. Re-
spondent also contends that General Counsel has failed to
show animus.
Specifically, it is averred that the evidence does not sup-
port a finding that McPherson was disciplined for engaging
in activity protected by Section 7 of the Act because the
filing of repetitive grievances can be characterized as, and
should be found to be, intentional harassment of Respon-
dent. To support the argument of harassment, Respondent
argues that the grievances had no basis in the agreement.
Further indicia, according to Respondent, of McPherson's
motive were: her admission that she was told of Respon-
dent's position regarding her grievances 20 days before she
was disciplined; her grievances of May I and March 9 were
on opposite sides of the same issue; her refusal to agree to a
reasonable settlement to the repetitive grievance problem;
the statement by her own Union's international representa-
tive that he thought the filing of the same grievance over
and over was a waste of everybody's time; the claim that
the grievances were really different is transparently false
because some of the articles cited did not even relate to the
issue at hand-such as article 17.8, which deals with sub-
contracting; the desire to file a grievance on May 22 arose
25 Refer to pnor discussion regarding the confusion relating to the disposi-
tion of all the grievances about job classifications under combination job
descriptions.
prior to beginning the workday; the failure to protest the
warnings about filing repetitive grievances; and McPher-
son's statement that she presented Respondent with a con-
solidated grievance on the loading and unloading issue and
offered to withdraw the others after the formal warning was
torn up by Hundoble, cannot be credited, based on the fact
that she would not agree to the settlement and the lack of
any evidence that she presented such a consolidated griev-
ance.
Respondent argues that the decision to issue the formal
warning to McPherson was not based on all the grievances
filed by McPherson but just those related to the combina-
tion jobs. The filing of repetitive grievances during work-
time is not protected by Section 7 of the Act, Respondent
argues, because it is abuse of a right created by the collec-
tive-bargaining agreement; even though Respondent admits
that the right to file a grievance during working time is
permissible pursuant to the contract. Respondent further
states that even if the filing of the same grievance repeat-
edly is considered protected by Section 7 of the Act, Re-
spondent's legitimate and substantial interest in preventing
the waste of working time allows it to discipline employees
for filing repetitive grievances. Department 94cc, it is ar-
gued, was having difficulty handling its obligations and to
some extent the time expended by McPherson in the filing
of grievances required working overtime to meet its opera-
tional duties.
Discussion
Employees, under Section 7 of the Act, have the pro-
tected right to file and process grievances. Thor Power Tool
Company, 148 NLRB 1379 (1964), enfd. 351 F.2d 584 (7th
Cir. 1965); Top Notch Manufacturing Company Inc., 145
NLRB 429 (1963). Contrary to Respondent's position, the
protection of the Act does not depend on the employer's or
the Board's appraisal of the merits of the grievance, such as
whether the contract disposes of the question raised in the
grievance. The merits of the grievance are irrelevant in de-
termining the question of whether a right is protected under
the Act. See Mushroom Transportation Company, Inc., 142
NLRB 1150 at 1158 (1963), reversed on other grounds 330
F.2d 683 (3d Cir. 1964); Interboro Contractors, Inc., 157
NLRB 1295 at 1298, fn. 7 (1966); Hartwell Company, Inc.,
169 NLRB 412 (1968). While Section 7 shields employees
from potential employer discipline or other adverse action
in the exercise of Section 7 rights, it does not permit em-
ployees to use grievances as a sword to gain immunity from
the consequences of harassment. See Olympic Delivery Ser-
vice, Inc., d/b/a Rocket Messenger Service, 167 NLRB 252
(1967); Charles Meyers & Company, 190 NLRB 448 (1971).
McPherson admits that she filed numerous grievances
over a 2-1/2 month period. It is also clear that the filing of
the grievances was the major consideration in the decision
to issue the formal warning. Accordingly, the General
Counsel has clearly shown that Respondent issued the for-
mal warning based on McPherson's filing of grievances
deemed repetitive. Therefore, Respondent must prove that
McPherson so abused her right to file grievances as to have
engaged in unwarranted harassment of Respondent.
530
CATERPILLAR TRACTOR COMPANY
The merits of the grievances were not clearly resolved by
the contract. As the Respondent's representative at the ne-
gotiation of the contract, Katherine Lyn Wade, admitted,
the contract does not fully and clearly describe all the du-
ties of a IK24 power trucker. The facts indicate that Mc-
Pherson was the first trucker classified as a I K24 to work in
department 94cc: prior to her assignment to that depart-
ment, all loading and unloading was done by 1 K2 l's. Addi-
tionally, as illustrated by the first grievance discussed
herein, filed March 9, the bases for filing the grievance were
the transfer and the assignment of work believed to be be-
yond her job classification. There was no showing that any
explanation was made to McPherson why the duties of a
IK24 included activities previously performed solely by
1K21's. The only second-step grievance answer entered into
evidence in this proceeding failed to explain the operational
duties of a 1 K24 under a combination job description. Fur-
thermore, according to Wade, if subsequent similar viola-
tions of the contract occur, the subsequent violations can-
not be noted without filing a second grievance or a third or
fourth grievance."
Since, according to Wade, the grievance procedure fails
to provide for the addition of remedies once a grievance is
filed, McPherson's seeking additional remedies appears to
have been the only procedure available to her to gain such
additional remedies.
If McPherson were shown to have clearly understood the
nuances of assignment of duties under combination-type
jobs, then a strong argument for harassment might be
made. However, Wade admitted that, assuming hypotheti-
cally there was no combination job description, and repet-
itive assignments required job performance out of classifica-
tion, she did not know if each assignment would be
grievable. Wade said she would have to ask her supervisor,
Mr. Brust. Accordingly, if Respondent was so highly con-
cerned about the filing of repetitive grievances involving
combination job descriptions, it would appear that it would
insure that the individual filing such repetitive grievances
would clearly understand why, under the contract, a IK24
and a K21 could do similar work without getting similar
pay. The failure of Respondent to so clearly explain or even
show an attempt to explain during the period between the
first grievance, March 9, and the final grievance, May 22,
demonstrates that the asserted concern was not nearly as
strong as alleged. This failure, furthermore, leads me to find
that the filing of several grievances based on the continued
assignment of duties previously performed by IK21's was
not motivated by a desire to harass Respondent.
Respondent's argument that two of the grievances were
contradictory, as previously found herein, is baseless. Re-
spondent states that McPherson initially protested her as-
signment to work at Building BB but, as indicated hereto-
fore, that grievance did not mention any work assignment
to Building BB and I credit the written basis for the griev-
2 It should be noted that Early Mays believes that a grievance raising the
same issue can treat and incorporate at later steps subsequent violations of
the contract by keeping a log of all such subsequent violations. However,
McPherson was never informed of this possibility if, contrary to Wade's
testimony, such a possibility does in actuality exist. This direct contradiction
between Wade and Mays indicates the lack of clarity in methods of handling
grievances involving similar subsequent alleged violations of the contract.
ance; i.e., the assignment to do the work of a IK21 to load
and unload tractor-trailer combinations. Accordingly, the
subsequent grievance protesting the failure to be assigned
to Building BB cannot be found contradictory.
McPherson's failure to agree to the settlement proposal
in the treatment of her grievances involving combination
jobs is found to have been clearly induced by the lack of
clear understanding of what the settlement entailed. In fact,
all the principals involved, with the exception of the inter-
national union representative, Early Mays. appear to be-
lieve that all but one grievance would be withdrawn, which
was clearly contrary to what was proposed by Mays. Inas-
much as McPherson never understood what the actual set-
tlement proposal was, her refusal to accept an erroneous
rendition cannot be deemed probative of harassment. In
fact, McPherson's refusal to give up on her grievances indi-
cates an intent to resolve the problem in its entirety, which
is reflective of good will. A further expression of this good
will is the fact that McPherson had not filed any other
grievances involving the combination job issue up to the
days of the hearing.
It is further found that the alleging of violations of differ-
ent sections of the contract and requesting different relief
were good-faith attempts to resolve the problem. The fail-
ure of Respondent to indicate why it felt there was no con-
tract violation is found to have induced McPherson and
Cleveland to try different approaches. Their attempt to
change the wording and to allege violations of the different
articles is not found to be based on an attempt to harass.
but rather demonstrates a failure to appreciate the nuances
of the contract while engaging in a good-faith attempt to
resolve differences in the way the contract was being man-
aged by Respondent. For example, the safety issue was one
raised not only by McPherson but by Gordon, a IK21. Simi
indicated that he gave some instruction to McPherson, but
when asked specifically about the dangers in failing to load
a tractor-trailer combination correctly, Simi indicated it
was the responsibility of the driver to insure proper weight
distribution in the loading of such tractor-trailer combina-
tions. Simi's response indicated that he never explained
weight distribution to McPherson, while at the same time
admitting that improper weight distribution could cause the
jackknifing of the trailer, admittedly a great hazard.
It could be argued that the tearing up of the formal warn-
ing abrogates the need for a remedial order. The unlawful
reprimand of McPherson has not been remedied since Hun-
doble still threatened disciplinary action if she filed similar
grievances. Additionally, Respondent did not advise Mc-
Pherson or the Union that employees are free to engage in
such protected activity.
The allegation that the filing of the combination job
grievances by McPherson led to the necessity to work over-
time several times is found to be without merit. Respon-
dent's foreman, Simi, indicated that the first-step meetings
generally lasted between 15 and 20 minutes. Over the 3-
month period here involved, and considering the five griev-
ances which led to the issuance of the warning, a little more
than 1-1/2 hours' time was expended. Added to that the
amount of time to prepare a grievance, which for argu-
ment's sake would take the same or more time than the
531
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
first-step meetings, it could be found that the grievances
here involved took between 3 hours to a day at the most to
prepare and file and handle through the first step. One day,
as the most generous estimate for Respondent's argument,
during a nearly 3-month period, could not be found a major
contributing factor to the backlog. It appears that Hun-
doble was anxious for the proper, smooth, and timely op-
eration of department 94cc, which he designed. Hundoble
remembered a prior incident involving work jurisdiction
problems, and his concern for his newly designed depart-
ment appears to have led him to have issued the formal
warning. The issuance of the warning appears to be a reac-
tion based on his concern for the department rather than a
true belief that McPherson's grievances were repetitive and
unwarranted, since Hundoble admitted he never even re-
viewed the grievances upon which he based the warning.
The failure to review the grievances prior to the issuance of
the warning to ascertain the soundness of his position leads
to a conclusion that Hundoble's action was in fact a reac-
tion to McPherson's filing of the grievances and not a result
of ascertaining that such grievances were in fact repetitive
or were a technique of harassment. Ad Art, Incorporated,
238 NLRB 1124 (1978).
Contrary to Respondent's allegation, no proof of anti-
union bias or coercive intent or effect is necessary for a
finding of a Section 8(a)(1) violation, where the employer
engages in conduct which, it may reasonably be said, inter-
feres with the free exercise of employee rights under the
Act. See Dover Garage II, Inc., 237 NLRB 1015 (1978).?
At no time did McPherson refuse to work. McPherson
requested a steward, continued working until the steward
arrived on the scene, filled out the grievance, and continued
working thereafter. Accordingly, it is found that Respon-
dent has failed to prove unwarranted harassment or in fact
harassment at all. It appears that the treatment of the griev-
ances, which apparently are in limbo, and McPherson's fil-
ing of such grievances resulted from a lack of communica-
tion and a failure to resolve the initial grievances with
dispatch. Based on the circumstances in this case, it cannot
be found that McPherson was harassing the Company to
such an extent as to deprive her of the protection of Section
7 of the Act.
Respondent conceded through Wade that it may have
been necessary to protect the different remedies sought as
well as retaining the potential of getting additional remedies
by filing repetitive grievances. Certainly Hundoble's failure
to review the grievances prior to issuing the formal warning
fails to demonstrate a good-faith belief of harassment since
he could not even ascertain what was requested in the
grievances or what the basis for their filing was. Accord-
ingly, I conclude that Respondent violated Section 8(a)(l)
of the Act when it reprimanded McPherson for filing griev-
ances and threatened further discipline if grievances on the
same issue were filed in the future.
3°As the Board held in Hanes Hosiery, Inc., 219 NLRB 338 (1975):
We long have recognized that the test of interference, restraint, and
coercion under Section 8(aX) I) of the Act does not turn on Respondent's
motive, courtesy, or gentleness, or on whether the coercion succeeded or
failed. The test is whether Respondent has engaged in conduct which
reasonably tends to interfere with the free exercise of employee rights
under the Act.
C. Everett Cleveland
Everett Cleveland has worked for Respondent for ap-
proximately 2 years as a IK24 power trucker. He is as-
signed to department 96. Cleveland is a member of the
U.A.W. Local 76 and has been the chief steward since No-
vember 1977. 3'
Department 96 is involved in material control and em-
ploys forklift truckdrivers to deliver and pick up materials
and finished products to and from the different sections of
the plant. The foreman of the department was Bill Barber,
who assigned the drivers in his section to service particular
areas of the plant. Everett Cleveland was assigned to that
area called the "canopy area," which is on the east side of
Alvarado Street. Additionally, Cleveland was designated
the backup man to Stinson to service the west side of Alva-
rado Street, which includes department 98. Barber testified
that accordingly Cleveland would be required to be on the
west side of Alvarado Street "the biggest part of the day."
According to Barber, Cleveland would be required to go to
department 98 frequently; however, on the average, he
would service department 98 four to six times a day. In the
event that Willie Stinson, the driver who was permanently
assigned to department 98, was absent, which was infre-
quent, then Cleveland would assume his duties, including
frequent runs to department 98-approximately three to
four times an hour.
The duty hours for department 96 are from 7:06 a.m. to
3:36 p.m., with lunch from 11:06 to 11:36 a.m. Depart-
ments 98 and 96 are under the general supervision of Mi-
chael Oakey. 2
Cleveland is involved in two separate complaint cases;
Cases 32-CA-719 and 32-CA-973.
I. Case 32-CA-719
In the complaint, General Counsel alleged that Respon-
dent, through Supervisors Crawford and Oakey, discrimi-
nated against Cleveland because of his status as chief union
steward" by restricting his access to department 98 during
nonworking time since January 23, 1978. Additionally, on
or about May 19, 1978, Respondent, by Supervisor Oakey,
issued a written reprimand to Cleveland for being present
in department 98 during nonworking time, in violation of
Section 8(a)(1) and (3) of the Act.
The incidents leading up to the issuance of the written
reprimand are as follows:
During the first week of January,3 4 Crawford saw Cleve-
land talking to two of his employees, Kathleen McPherson
and Millicent Bell. Crawford stated that he felt such ac-
tivity was disruptive, so he talked to Cleveland. According
to Crawford, "I asked him not to take his breaks in Section
3t Pursuant to the collective-bargaining agreement, the chief steward pro-
cesses both first- and second-step grievances.
31 Oakey's job title is materials general foreman, which is a second-line
supervisory position. He started at Caterpillar as a weekly-salaried clerk and
has worked as an A.M. union machinist.
33 Respondent employs 62 U.A.W. members.
34 As previously indicated, Crawford was appointed foreman of depart-
ment 98 on January 1.
D" Crawford did not reprimand either Bell or McPherson for this incident.
532
CATERPILLAR TRACTOR COMPANY
98." The foreman, Crawford, admitted that one of the rea-
sons he asked Cleveland not to take his breaks in depart-
ment 98 was that he held the position of chief shop steward.
During the conversation between Cleveland and Crawford,
the steward never alleged that he was in the department on
union business. It had been Crawford's experience as a su-
pervisor that where shop stewards entered a work area, they
tended to be more disruptive because they attracted the
workers. Crawford does not remember complaining to
Oakey about this incident; however, Barber recalls Craw-
ford telephoning him in early January to complain about
the presence of drivers in department 98. After receiving
the phone call, Barber immediately went to department 98
and found three" of his drivers at the coffee machine; he
requested that they consume their beverages outside the de-
partment. Later that same day, Barber instructed the three
drivers not to take their breaks in department 98 for it dis-
turbs the employees. They were told that in the future they
would have to take their breaks in an open yard outside the
building.
On or about January 23, Crawford told Cleveland that he
did not want him to take breaks in department 98 and
Cleveland understood that he was restricted from the de-
partment as of that date except for job- and union-related
business.
Also in January,' 7 Oakey and Barber met with Cleveland.
Oakey characterized the meeting as an attempt to establish
a rapport between the supervisors and the chief shop stew-
ard. Oakey stated he discussed the importance of not mix-
ing union activities with employment duties.' Oakey found
Cleveland very receptive to his remarks.
In early February, Cleveland was observed passing out
papers to the employees prior to the start of the shift in
department 98." Crawford brought the incident to the at-
tention of the general foreman, Oakey, and later contacted
Wade to ascertain if Cleveland had permission to hand out
union literature in the department. Crawford also spoke to
Cleveland, indicating that he was disrupting the employees.
Crawford did not explain how Cleveland disrupted his em-
ployees, inasmuch as the shift had not yet started.
Although the exact basis for the next meeting between
Oakey and Cleveland was not clearly presented on the rec-
ord, it appears that as a result of the passing out of union
material, Oakey spoke to Cleveland about wasting time and
the role of a trucker versus the role of a union chief steward.
Oakey informed Cleveland that the two roles should not be
mixed; Barber was also present at the meeting. The discus-
sion of roles constitutes Oakey's entire recollection of the
conversation. Cleveland, whose testimony I credit based
upon his much clearer recollection of the events, stated that
Oakey informed him that he was spending too much time in
department 98. Cleveland was dircted to stay out of depart-
ment 98 unless he was there on union business or was pre-
sent pursuant to his duties as a trucker. Oakey indicated
that the request was made because Cleveland was the chief
6 Cleveland, Willie Stinson, and Mike Noel.
37 The exact date is not clearly established on the record.
M It appears that the question of taking breaks in department 98 was not
discussed at this meeting.
This incident occurred after Cleveland's shift started.
steward, which attracted attention due to employees want-
ing to come over and talk to the chief steward. Oakey fur-
ther mentioned that the employees of department 98 were
upset over the firing of a union steward who worked in
department 94cc.? Cleveland admitted that he had a ten-
dency to take a little more time on his breaks in department
98 then he should and that he would try and work on it.
Cleveland further indicated that he understood that Oakey
did not object to Cleveland being in department 98 on
union business.
On February 23, Oakey again met with Cleveland, in-
forming him that he was still wasting time, and, in fact, the
problem was getting worse. Accordingly, Oakey gave
Cleveland a verbal warning for wasting time. Cleveland
during the discussion took offense to the directive to limit
his visits to department 98 because he felt that his activities
were so restricted that he could not function as chief stew-
ard." Cleveland felt that he was the only trucker restricted
against taking breaks in department 98. Oakey told him
that Rudy Martinez and Willy Stinson were also warned
about taking breaks in department 98 and disrupting the
department employees.
Oakey also told Cleveland he was not restricted from
going to department 98 if it was before the start of Cleve-
land's shift, during the course of his work as a trucker, or in
the course of his union duties. However, he was requested
to punch out and leave the premises at the completion of
his shift because he had demonstrated his inability to go
into department 98 after his shift without bothering em-
ployees who were still working. 2
Cleveland understood that the verbal warning was based
on the fact that he held the position of chief steward. Based
on this belief, Cleveland stated, he inquired during this con-
versation if the restriction was placed upon him because he
was chief steward, to which Oakey replied "yes." Cleveland
indicated that he would contact the National Labor Rela-
tions Board because "there are laws protecting people that
are in unions." After the meeting, Cleveland filed a griev-
ance which was dropped after the first-step answer."
Oakey further testified that there were several occasions
when he personally observed Cleveland disrupting employ-
ees or wasting time in department 98." The dates these
incidents occurred were not specified.
40 The fired employee's name was Harry Lehl. Cleveland was not involved
in the Lehl matter.
4 Unlike the I.A.M. contract, the U.A.W. agreement does not provide the
chief steward with walk-around time. Oakey, when he gave Cleveland the
directive, felt that if it impaired Cleveland's operations as chief steward,
Cleveland had recourse through the grievance procedure to effect a modifica-
tion of the directive if necessary.
42 All employees were asked to leave the plant upon completion of shift. If
employees wanted to wait for another employee, they were to wait near the
front gate, then exit the plant as promptly as possible.
3 Cleveland testified that he may have decided to drop the grievance him-
self.
4Some of these incidents are as follows: Cleveland was sitting on his
forklift while in department 98 while the employees had their lunch, even
though Cleveland was not at lunch; on another occasion Cleveland parked
his forklift outside of department 98, and proceeded to walk through the
section to the vending machine, talking to and hence disrupting employees
while he was walking through the section; another incident which occurred
in February involved Cleveland at the start of department 98's shift deliver-
ing what appeared to be a container of coffee and a doughnut to Bell, then
leaving the department.
533
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On May 18 at about 3:40 p.m., approximately 8 minutes
before the end of the shift in department 98 at 3:48 p.m.,
Oakey45 observed Cleveland'6 enter the room and announce
to several employees that former union President Frank Sil-
va had been reinstated pursuant to an arbitrator's order.
Silva had been employed in department 98 prior to his
separation. Cleveland then proceeded to walk through a
portion of the department, repeating the announcement.
When Cleveland reached the desk of the routing clerk, Bob
Handor,' 7 who stopped work for just a minute to converse
with Cleveland, Oakey yelled out Cleveland's name and
Cleveland immediately left.
Oakey characterized this incident as very disruptive.
Cleveland testified that no one stopped working during the
incident. There are several sharp conflicts in the testimony
regarding this incident. I credit the testimony of Christine
Sandifer, who was not a party to the proceeding, based on
her demeanor, the clarity of her recollection, and the fact
that some of the matters testified to could be utilized
against her best interest. Sandifer is a packer in department
98 and has worked for Respondent a little over 3 years.
According to Sandifer, all employees generally punch out
at 3:30 p.m. The time between 3:30 p.m. until the shift ends
at 3:48 is devoted to cleanup. The employees chat with one
another during the cleanup period; and employees who
work in other departments come through 98 and at times
stop and chat, but do not hang around until the end of the
shift."
Sandifer recognized that employees were not supposed to
stand around after they finished cleaning up; however,
Crawford does not "say anything to them [the employees]
because when they are through cleaning up at that time he
doesn't say anything if you stay in your work area."
Sandifer described the incident of May 18 as occurring
during the cleanup period when Cleveland entered depart-
ment 98. Sandifer stopped working to wait for him, to in-
quire whether Cleveland had seen her son. As Cleveland
passed by her he yelled out, "Frank Silva was coming back,
I just got the call." 49 Sandifer did not hear Cleveland utter
another word after his announcement regarding the results
of the arbitration. As Cleveland was leaving, Sandifer
yelled at him but he would not turn around to converse
with her. Cleveland continued walking out and left the de-
partment.
The following morning, Oakey, in the presence of Cleve-
land's supervisor and Handor, a steward, gave Cleveland a
written warning for creating a disturbance in department 98
which constituted a failure to follow instructions to the ef-
fect that he was not to enter department 98, or any other
4 Oakey was acting as foreman that day in Crawford's absence.
46 Cleveland's shift was over and he had just learned the results of an
arbitration proceeding.
47 Handor was working at the time of the incident. Handor was then a
steward in the U.A.W.
Oakey testified that not all employees were engaged in projects that
necessitated cleaning up, and hence some worked right up to the end of the
shift bell. This statement is controverted by Sandifer who said, to her knowl-
edge, no packer is required to work up until the bell rings; and she doesn't
know of any area where the people do not clean up. As stated previously, the
testimony of Sandifer is credited.
49 Originally Sandifer stated she stopped work for a minute or two, then
revised her testimony stating that she waited to talk to Cleveland for about 5
minutes.
area where people were working, except in the normal
course of his duties.
The discussion during the issuance of the formal warning
grew heated and Oakey, in uncontroverted testimony,
stated Cleveland indicated he had a right to go to depart-
ment 98 or any other portion of the plant anytime he de-
sired, to conduct union business. Cleveland stated he would
be contacting the NLRB since he knew Oakey "had been
trying to set him up since December." Cleveland did file a
grievance which has been dropped.
Respondents actions could be construed as eminently
reasonable, warning an employee who is wasting time and
disrupting other employees repeatedly. However, the ac-
tions taken by Respondent through its agent did treat
Cleveland disparately. Willie Stinson, 5' the 1K24 power
trucker assigned permanently to department 96, whom
Cleveland backs up, takes most of his breaks at department
98 and occasionally engages in conversations with the em-
ployees of that department. Stinson testified that neither
Crawford nor Barber has ever asked him not to take breaks
in department 98.
Millicent Bell testified that she often observes employees
of department 96 taking breaks in department 98, and fre-
quently these truckers ask the packers to go to the vending
machines and converse for a few minutes. Bell observed
that two drivers5' take breaks in department 98 once a day
and have short breaks with Bell about five times a week.
Laurie Gitlin, another department 96 trucker, occasion-
ally takes breaks in department 98,52 sometimes consuming
her beverage alone and other times conversing with the
packers while they are working. Gitlin stated she does
whatever she feels like and has never been asked by Craw-
ford or Barber to refrain from taking breaks in department
98.
The formal warning issued for the incident of May 18
was predicated on the failure to follow instructions not to
take breaks in department 98 or to enter department 98 for
purposes other than union business or during the normal
course of job duties. According to Sandifer, employees from
other departments frequently walk through department 98,
stopping occasionally to chitchat. There was no indication
that other employees who walk through department 98 oc-
casionally stopping to chitchat were ever given warnings for
such activities during the cleanup period. Accordingly, even
though Cleveland's activities on this day did disrupt Sandi-
fer for approximately 5 minutes and Handor for approxi-
mately a minute, the issuance of a formal warning based on
violation of instructions that were discriminatorily issued is
found to have resulted in further disparate treatment of
Cleveland. While there is no question that Cleveland did
violate plant rules, it appears that the plant rules were ap-
plied to Cleveland in a much more rigorous manner than to
other employees, based upon his union status which was
one of the primary reasons generating the instructions given
by the agents of Respondent that he not enter department
98 except explicitly on union business or during the course
of his normal work duties. The disparate singling out of
so Stinson, like Cleveland, is assigned to department 96, and Bill Barber is
his supervisor.
sl Tommy Harris and Rudy Martinez.
52 Gitlin takes from zero to three breaks a week in department 98.
534
CATERPILLAR TRACTOR COMPANY
Cleveland by Crawford and Crawford's superiors from the
first week Crawford was the foreman of department 98 can-
not be found to have been the normal application of plant
rules. The pattern of truckers from department 96 taking
breaks in department 98 was well established on the record,
and the initiation of discipline for such activity against
Cleveland alone and the admission that such restriction was
partly attributed to his status as steward establish a prima
facie case requiring Respondent to show that the increased
discipline was motivated by considerations unrelated to
Cleveland's union activities. Respondent's failure to show
similar treatment for similar offenses by other drivers taking
breaks in department 98, as well as the testimony of the
employees of department 98 that during the cleanup period
employees from other departments do wander through and
occasionally stop to converse without any apparent disci-
plinary action being taken against them, require a finding
that the issuance of disciplinary action against Cleveland
for these activities was discriminatory and hence a violation
of Section 8(a)(3) and (1) of the Act.
The more stringent application of plant policies to a
steward is contrary to Section 8(a)(3) of the Act. Gould Cor-
poration, 237 NLRB 881 (1978): and Precision Castings
Company, Division of Aurora Corporation, 233 NLRB 183
(1977). The more rigorous enforcement of plant rules was
admittedly, according to Crawford, motivated at least in
part by the fact that Cleveland was the chief steward.
Though Respondent, through its agents, contends that the
plant rules about wasting time by taking breaks, particu-
larly in department 98, were equally enforced among all
truckdrivers from department 96, the truckdrivers them-
selves disputed this allegation. As stated above, the testi-
mony of the truckdrivers and other employees of depart-
ment 98 was credited. The more rigorous enforcement of
the plant rules against Cleveland, having been motivated on
his union status as chief steward, violates Section 8(a)(3)
and (1) because it deviated from the pattern established for
the other employees of department 96 and was based on an
admitted discriminatory motive. See Upland Freight Lines,
Inc., 209 NLRB 165 (1974), enfd. 527 F.2d 766 (9th Cir.
1976); and Keller Manufacturing Company, Inc., 237 NLRB
712 (1978).
2. Case 32-CA-973
General Counsel alleges that Respondent violated Sec-
tion 8(a)(1) and Section 2(6) and (7) of the Act by disciplin-
ing Chief Shop Steward Cleveland for engaging in pro-
tected grievance activity. Cleveland was suspended on June
7, 1978, for 60 days. Respondent based the suspension on
the grounds of insubordination and swearing at a supervi-
sor.
Events of June 7
At approximately I p.m. on June 7, pursuant to a call
from the foreman of department 94cc, Cleveland was re-
quested by his foreman, Bill Barber, to report to the re-
questing department to represent McPherson in filing a
grievance. Because job duties required a delay, Cleveland
left his work station at 2 o'clock to take a bus to department
94cc. When he disembarked from the bus he was met by
Foreman Simi, who inquired if he was there to represent
McPherson. Cleveland was confused as to why he was
asked to wait outside but surveyed the area and noted a
picnic table. There is great disparity in the testimony re-
garding the state of the picnic table. Cleveland claimed that
the table was filthy, covered with grease and grime, necessi-
tating his entering the building to find a rag to clean off the
table. Simi and others testified that the table was merely
slightly dusty. McPherson characterized the table as not
only dirty but in an extremely windy location and close to
loading docks which generated sufficient noise as to render
working on a grievance difficult. No one disputes McPher-
son's characterization of the location as windy. It is admit-
ted by Simi that a truck was being loaded at the time. I find
that the condition of the picnic table was sufficiently dusty
as to warrant cleaning prior to placing anything upon it,
pursuant to the testimony of Peter Carnute.5" Carnute
stated that he always noted the table was dusty and wiped
it off prior to leaning against the edge or leaning on the
edge.
Cleveland testified that when he found that the table was
not suitable because he could not clean it off, he entered
department 94cc and headed to an area called the lunch-
room. He met McPherson and she followed him into the
lunchroom.4 Cleveland and McPherson entered the lunch-
room, which had no other workers present, and immedi-
ately started to prepare the grievance." While McPherson
and Cleveland were discussing the grievance, a coworker,
Don McDonald, entered the room and got some tea from
one of the vending machines. McDonald sat down at the
end of the table. Approximately 5 minutes later, Simi en-
tered the room and inquired what Cleveland and McPher-
son were doing there since he understood they were to pre-
pare the grievance outdoors. McPherson and Cleveland
replied that they were preparing a grievance, to which Simi
replied that they were interrupting and interfering with
other people in their work. At that point McDonald left the
lunchroom. They then discussed where and when individ-
uals could file grievances. Cleveland admitted that he told
Simi that he was tired of Simi intimidating and harassing
him every time he came to Simi's department to file a griev-
ance and that he was going to "take his ass down to the
NLRB." McPherson told Simi that he was interfering with
their grievance procedure, to which Simi replied that he
was not. Cleveland then asked that Simi call Wade. Cleve-
land also admitted further expletives were directed at Simi,
such as "fuck you" and "I'll take your ass down to the
53 Carnute is a layout planner for Caterpillar who was working in the
building adjacent to department 94cc and often caught a shuttle bus at the
picnic table location.
5 The lunchroom is an area within the warehouse, set off by partitions,
which contains a table and vending machines. Employees are allowed to
enter the lunchroom to use the vending machines but upon acquinng a
product from the machines they must return to their work area to consume
what they have acquired.
'5 McPherson requested a steward to file a grievance because a new ma-
chine appeared on the floor which was operated by a member of the I.A.M.
and McPherson felt that the machine should have been operated by a mem-
ber of the U.A.W.
535
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
NLRB." Cleveland denies telling Simi "you ain't shit
around here."6
Simi alleged that in addition to cursing at him, Cleveland
waved his arms at him and made threatening motions. I do
not credit Simi's testimony in this regard. Based on the de-
meanor of Simi compared to Cleveland, Cleveland's com-
plete candor regarding the expletives used during this inci-
dent, the fact that Simi is much larger than Cleveland, and
the fact that the men were separated by McPherson during
the incident in the lunchroom, any visions of physical threat
were dispelled."
Simi gave as his reason for requesting that the grievances
be written up at the picnic table rather than in the lunch-
room the fact that in two instances there were other individ-
uals present when grievances were being prepared in the
lunchroom, which disrupted those employees. Simi admit-
ted that the employees should not have been in the lunch-
room during preparation of those other two grievances.
Simi further stated that he had only designated the lunch-
room as a place to write up grievances approximately four
times because, at the time he so designated the lunchroom,
there was excessive noise in the building due to construc-
tion, and at times it got chilly in the morning outside so that
the picnic table could not be used. Simi indicated that he
felt that using the lunchroom was disruptive of the other
workers in contravention of article 5.4 in the current local
agreement, which states that union business should be con-
ducted with the least amount of interference with the de-
partment. It is also alleged by Simi that he informed Cleve-
land that he would have to use the picnic table for union
business in the future prior to the events of June 7.
Contrary to Simi's testimony, it appears that the lunch-
room had been regularly used for the preparation of griev-
ances. Cleveland testified that he prepared between 10 and
20 grievances in department 94cc, all of which were han-
dled in the lunchroom. McPherson, who is known to have
filed many grievances, stated that she prepared all but one
or two of her grievances in the lunchroom. Several other
employees' filed a total of seven grievances, preparing all
but one in the lunchroom. The evidence strongly indicates
that the lunchroom was the standard area used to prepare
grievances.
In response to the verbal altercation, Simi called Wade,
relating Cleveland's behavior. The incident led to Cleve-
land's suspension for 60 days. Wade testified that if it had
56 Cleveland did admit that he stated to McPherson that Simi was "not shit
around here."
7 Respondent attempted to discredit the testimony of McPherson through
the testimony of Buz Dupuis. Dupuis is a stock clerk in charge of the card-
board section. He overheard the altercation. Dupuis stated that McPherson,
on the day following the incident, approached him and requested that he do
a favor by replying to all inquiries about the incident stating that he did not
see or hear anything. Dupuis said no one else overheard this conversation
between himself and McPherson. Dupuis admitted that he had never been
on the side of a labor union but had only been on one side, the Company's
side. He referred to himself as a company person. Dupuis admitted he
reacted very adversely to the confrontation which occurred in the lunchroom
and thought that Cleveland was extremely disrespectful and should have
been discharged. The admission of company bias, cojoined with his ex-
tremely adverse reaction to the incidents of June 7 including his desire to
have Cleveland fired, his demeanor on the stand, and his failure to mention
the incident to Don McDonald, the employee he saw immediately after the
alleged confrontation with McPherson, led me to discredit his testimony.
O Gitlin, Young, and Martinez.
been any employee other than a chief union steward, dis-
missal would have been the norm. Wade listed many in-
stances where cursing at a supervisor led to dismissal of the
employee. Wade admitted that none of the examples in-
volved a union steward.
On the basis of the record before me, Respondent has not
sustained its burden of proving justifiable business reasons
for maintaining the rule prohibiting access to building 94cc,
instituted by Simi on June 7. The reason given by Simi-
that it was to prevent disruption within the department-
was the first time the non-access rule was announced and
the use of the picnic table for the actual preparation of
grievances was required. 9
The basis for Simi's rule, instituted June 7, appears to be
pretextual. Simi admitted that the work areas within the
building were large and that the preparation of grievances
within an individual's work area would not disrupt other
individuals. Accordingly, there appears to be no reason
why Cleveland should be denied access to department 94cc
to perform the duties of a chief shop steward pursuant to
Simi's request, under the agreement, for a steward to assist
an employee of his section in preparing a grievance. In fact,
the pretextual nature of Simi's actions was clearly demon-
strated by Hundoble, who stated that when he was super-
vising in department 94cc he regularly instructed individ-
uals to prepare grievances in the lunchroom. Hundoble's
use of the lunchroom for the filing of grievances when he
was acting supervisor indicates that, at least for one super-
visor, the lunchroom was an area sufficiently removed from
the general work areas of the department so as to cause
little or no disruption within the department.
The filing of the grievance, as hereinbefore stated, is an
activity protected by Section 7 of the Act. To deny an em-
ployee, during the agreed-upon grievance filing procedure,
access to the actual premises of 94cc, is a disparate applica-
tion of the no-access rule against an individual engaging in
union activities. See GTE Lenkurt, Incorporated, 204 NLRB
921 (1973); Ford Motor Company (Romeo Tractor & Equip-
ment Plant), 222 NLRB 855 (1976); Barney's Club, Incorpo-
rated 227 NLRB 414 (1976); Campbell Chain Company,
237 NLRB 420 (1978); Stein Seal Company, 237 NLRB 996
(1978). Limiting Cleveland's access to department 94cc by
requiring him to remain outside the department to fill out a
grievance while it was admitted that there were many areas
within the building that were suitable for such activity is
violative of Section 8(a)(1) of the Act. That Cleveland did
not comply with the limitation does not relieve Respondent
from its responsibility to permit access to company prem-
ises, and in particular department 94cc, for the conduct of
lawful union business pursuant to the terms agreed upon in
the contract.
It is undisputed that Cleveland, when confronted by Simi
during the preparation of the grievance, did use abusive
and profane language. Although such conduct cannot be
condoned, I find that it was an impulsive reaction to a pro-
vocative and unreasonable limitation on the grievance filing
procedure, not causing any injury and not disrupting the
59 Simi did give two first-step responses to Cleveland at the picnic table
previously; however, responses do not require the use of a table to prepare
written material. It also appears that when Simi gave the responses to Cleve-
land at the picnic table, they did not sit down and use the table.
536
CATERPILLAR TRACTOR COMPANY
activities of department 94cc. The incident was a single iso-
lated event which was insufficiently serious to deprive the
employee performing his duties as a chief steward of the
protections of the Act. MP Industries, Inc., 227 NLRB 1709
(1976). Accordingly, I find that Cleveland's use of abusive
and profane language did not deprive this steward of the
protective mantle of the Act, and that Cleveland's suspen-
sion for engaging in the protected concerted activity of pre-
paring a grievance violated Section 8(aXI) of the Act.
Furthermore, the reaction to Cleveland's abusive lan-
guage was disparate when compared to the reaction to
Crawford's comments to Bell.?0 As Oakey testified in rela-
tion to Crawford's behavior toward Bell, he stated that
there was a company policy regarding abusive language.
The use of abusive language would not be tolerated by any
employee, including management. However, Crawford was
not subjected to suspension or firing, contrary to Wade's
testimony that such behavior would, normally and rou-
tinely, subject the employee who used abusive language to
discharge. Oakey considered Crawford's comment a viola-
tion of this company rule and further stated that he had
never heard of a similar incident where management di-
rected language in similar poor taste or so provocatively to
an employee under his supervision. The fact that the Com-
pany claims that it took great umbrage to any type of ac-
tivity which included the use of abusive language is not
supported by the facts on this record. Accordingly, the sus-
pension of Cleveland, based on the incident, for insubordi-
nation and the use of abusive and profane language, is
found to be violative of Section 8(aX)(1).
CONCLUSIONS OF LAW
1. Respondent, Caterpillar Tractor Company, is an em-
ployer engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. United Automobile, Aerospace, and Agricultural Im-
plement Workers of America, Local No. 76, is a labor or-
ganization within the meaning of Section 2(5) of the Act.
3. By interfering with, restraining, and coercing employ-
ees in the exercise of the rights guaranteed them in Section
7 of the Act, the Respondent has engaged in unfair labor
practices within the meaning of Section 8(aXl1) of the Act.
4. Respondent has violated Section 8(aX3) and (1) of the
Act by disparate treatment of Everett Cleveland, motivated
in part by his status as chief union steward.
5. Such unfair labor practices affect commerce within
the meaning of the Act.
THE REMEDY
Having found that Respondent has engaged in and is
engaging in certain unfair labor practices within the mean-
ing of Section 8(a)( I) and (3) of the Act, I shall recommend
that it cease and desist therefrom and take certain affirma-
tive action to effectuate the policies of the Act. Accordingly,
the Respondent shall be ordered to immediately make Ev-
erett M. Cleveland whole for any loss of earnings and com-
0 As noted previously, Crawford commented to Bell that she could play
with herself in the ladies room.
pensation he may have suffered because of this illegal dis-
crimination against him in his employment as herein found.
Backpay for Cleveland and interest thereon are to be com-
puted in the manner prescribed in F. W. Woolworth Com-
pany, 90 NLRB 289 (1950), and Florida Steel Corporation,
231 NLRB 651 (1977).6 Respondent shall also revoke and
expunge from its files and records all warnings issued to
employees Everett M. Cleveland, Kathleen McPherson,
and Millicent Bell which have been found unlawful herein.
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:
ORDER 6:
The Respondent, Caterpillar Tractor Company, its offi-
cers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Disciplining employees because they file grievances
under the collective-bargaining agreement governing the
terms and conditions of their employment.
(b) Disciplining or otherwise reprimanding employees in
a manner more severe than consistent with established dis-
ciplinary policy because of their interest in or activity on
behalf of the Union, or any other labor organization, or in
order to discourage such union activity.
(c) Disciplining or otherwise discriminating against em-
ployees because of their interest in or activity on behalf of
the Union or any other labor organization.
(d) In any other manner interfering with, restraining, or
coercing its employees in the exercise of the rights guaran-
teed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act:
(a) Immediately offer Everett M. Cleveland the earnings
lost during his unlawful suspension in the manner set forth
in that portion of this Decision entitled 'The Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records neces-
sary to analyze the amount of backpay due under the terms
of this Order.
(c) Strike and physically remove from its records and
files any reference to formal and informal warnings, herein
found unlawful, given to employees Everett M. Cleveland,
Kathleen McPherson, and Millicent Bell.
(d) Post at its San Leandro, California, facility copies of
the attached notice marked "Appendix."" Copies of the no-
61 See, generally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962).
2 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the finding,
conclusions, and recommended Order herein shall, as provided in Sec. 102A48
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.
" In the event that this 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 read "Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the Na-
tional Labor Relations Board."
537
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tice, on forms to be provided by the Regional Director for
Region 32, after being duly signed by the authorized repre-
sentative of Respondent, shall be posted by Respondent im-
mediately upon receipt thereof, and be maintained for a
period of 60 consecutive days thereafter, in conspicuous
places, including all places where notices to employees cus-
tomarily are posted. Reasonable steps shall be taken by
Respondent to insure that said notices are not altered, de-
faced or covered by any other material.
(e) Notify the Regional Director for Region 32, in writ-
ing, within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the remainder of the com-
plaint be, and it hereby is, dismissed.
538