Cessna Aircraft Co.

National Labor Relations Board - Board Decisions

Sep 29, 1975

220 N.L.R.B. 873 (N.L.R.B. 1975)

CESSNA AIRCRAFT CO. 873
Cessna Aircraft Co. and J . Sue West. Case
17-CA-6312
September 29, 1975
DECISION AND ORDER DENYING MOTION
BY CHAIRMAN MURPHY AND MEMBERS FANNING
AND JENKINS
Upon a charge filed on November 26, 1974, by J.
Sue West, the General Counsel of the National La-
bor Relations Board , herein called the Board, by the
Regional Director for Region 17, issued a complaint
on January 30, 1975, alleging that Cessna Aircraft
Co., herein called Respondent, violated Section
8(a)(1) and (3) of the National Labor Relations Act,
as amended , by discriminatorily discharging and re-
fusing to reinstate J. Sue West and her husband, Rick
D. West.' Copies of the charge, complaint, and no-
tice of hearing before an Administrative Law Judge
were duly served on the parties to this proceeding.
On February 7, 1975, Respondent filed its answer,
admitting in part and denying in part the allegations
of the complaint, submitting affirmative defenses,
and requesting that the complaint be dismissed.
On March 3, 1975, Respondent filed directly with
the Board a motion for summary judgment on the
ground that the allegations in the complaint have al-
ready been determined by a grievance board and a
board of arbitration . Respondent therefore requested
that the complaint be dismissed in its entirety or, al-
ternatively, that the complaint be dismissed insofar
as it pertains to West.
On March 4, 1975, the General Counsel filed an
opposition to the motion. On March 13, 1975, the
Board issued an order transferring the proceeding to
itself and a notice to show cause why the motion
should not be granted. Thereafter, the General
Counsel filed a response and Respondent replied
thereto.
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.
Upon the entire record in this proceeding, the
Board makes the following:
Ruling on the Motion for Summary Judgment
On June 16, 1974, J. Sue West filed a grievance
stating that she had been unjustly terminated on the
false charge of intimidating another employee, that
i Herein called West.
she was at that time refused union representation,
and that she was discriminated against because she
was a union steward. On an unspecified date thereaf-
ter, a grievance board consisting of two union mem-
bers and two of Respondent's officials decided as fol-
lows:
After full consideration of the grievant's total
record and in view of the time missed from `the
job, it is the decision of the Board that the dis-
charge was justified and the grievance should be
denied.
It is understood and agreed that this decision
shall not be considered as precedent for settle-
ment of possible future such discharge cases.
So as to not hinder the grievant from obtaining
employment elsewhere, it is agreed that her rec-
ord will be marked in such a manner that only
information that she terminated voluntarily to
seek other employment and her dates of employ-
ment will be released to a prospective employer.
To clear up any misunderstanding that may
have occurred in this matter both the Union and
the Company agree that at any step in the disci-
plinary process any bargaining unit employee is
entitled to and shall not be denied Union repre-
sentation if such employee so requests.
On June 17, 1974, West filed a grievance that he
was "terminated for trying to perform [his] job as a
Union steward." On October 9, 1974, Arbitrator
Walter G. Seinsheimer issued a decision in which he
made the following findings concerning the griev-
ance:
Respondent stated that it discharged West, a turret
lathe operator, because of (1) his failure to meet pro-
duction requirements, (2) unauthorized absence from
his machine, (3) violation of method of handling
grievances, (4) solicitation of an employee, (5) coerc-
ing and intimidating an employee, and (6) violation
of the harmonious relations provision of the collec-
tive-bargaining contract of Respondent and the
Union .2
The arbitrator found as follows on the basis of the
testimony of West's foreman, Joe Merseal: West's
production during the year preceding the discharge
was and remained poor despite three oral requests
that he improve it. On June 13, 1974, West was away
2 Par. 6 of the contract , which is entitled "Promotion of Harmonious
Relations," provides as follows.
The Company recognizes that it cannot get along without Labor any
more than Labor can get along without the Company The Union and
Company recognize that the success of the business is vital to all con-
cerned This requires that both the Company and employees work to-
gether to the end that quality and costs of the product will prove in-
creasingly attractive to the customers so that the business will be
continuously successful.
220 NLRB No. 142
874 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
from his machine about 4 hours without being given
permission to do so. West also spent an hour and a
half at his machine writing a grievance for employee
Jerl Srader and preparing another. When Merseal
observed this activity, he told West that it was con-
trary to paragraph 34 of the contract which provides
that "Any employee who has a grievance (which the
employee has been unable to satisfactorily resolve
with the employee's supervision) shall, within three
working days after the occurrence of the matter com-
plained of, present the grievance in writing to the
employee's Steward."
The arbitrator further found that West had not
checked off the job as required by the procedures
applicable to the stewards who are away from their
work stations on union business.' Acknowledging
that he was confronted with conflicting hearsay evi-
dence from both parties as to whether Srader asked
West to prepare a grievance on his behalf, the arbi-
trator resolved this conflict by finding that Srader
was approached by West who, contrary to Srader's
wishes, declared that he was going to file a grievance
on behalf of the latter.
Although the arbitrator found that Respondent
"concretely proved its first two charges and to a great
extent the second two as well," he found that the
support for the fifth charge of intimidation by West
was "not as strong" and that Respondent's sixth
charge was not "adequately supported." However,
the arbitrator was "disturbed" by the fact that West
had never been given any written warnings concern-
ing his poor production or his absence from his job
without permission. The arbitrator therefore ex-
pressed the belief that under the circumstances the
discharge of West was too severe and that he should
be returned to work without backpay and subject to
the following conditions:
[West] shall be on probation for one year dur-
ing which time he must prove that he can keep
his production up to the average of the other
employees on the same job. It is also suggested
that he refuse for a period of one year any office
in the Union. Furthermore, the probation means
that any further violation of the Contract or
Company rules will subject him to immediate
discharge without further warning.
The General Counsel argues as follows in oppos-
ing Respondent's motion:
l Par. 35 provides:
If it is necessary for a conference to be held by the Steward and the
Foreman or Supervisor in order to adjust the grievance , such confer-
ence will be held on Company time . The Steward will check off the job
with the Foreman's Office and check in when returning to regular
work.
The arbitrator's decision is repugnant to the Act
and does not comport with Board policy as set forth
in Spielberg Manufacturing Company.' A number of
examples demonstrate this:
The most important condition placed on West's
reinstatement was the prohibition against holding
any union office for the period of 1 year. Imposition
of such a condition denies West rights guaranteed
under Section 7 of the Act, namely, to "assist labor
organizations" and to "engage in other concerted ac-
tivities for the purpose of collective bargaining or
other mutual aid or protection." As West was a
union steward at the time of his discharge and was
performing the duties of that office, the decision to
deny him the right to return to that office would de-
prive West and his fellow employees of their Section
7 rights to "bargain collectively through representa-
tives of their own choosing."
The contract provides a probationary period of 90
days for new employees only.' By extending the pro-
bationary period to 1 year, the arbitrator not only
changed said provision but also discriminated
against West by subjecting him to a condition of em-
ployment not imposed upon any other employees.
The arbitrator adds a further condition to West's 1-
year probation by deciding that for West only any
violation of the contract or company rules should
result in West's immediate discharge. Although Re-
spondent gave six reasons for West's discharge, none
of them comports with the reasons for discharge set
forth in the contract .6 Moreover, the 1-year proba-
tion relegates West to the status of a second-class
employee and strips him of any right or protection
under the contract for that period.
As Srader was not called as witness to testify con-
cerning the events that occurred on the evening of
June 13, 1974, the arbitrator improperly relied upon
the hearsay testimony of Respondent' s officials and
consequently West was deprived of a fair and regular
proceeding to which he was entitled under Spielberg.
While that decision does not require arbitrators to be
strictly controlled by rules of evidence, some form of
elemental fairness and due process is called for.
The arbitrator found that West violated paragraph
34 of the contract by writing two.grievances for Srad-
er because it impliedly required that Srader prepare
his own grievance. However, there is nothing in the
4 112 NLRB 1080 ( 1955).
5 Par. 29.
6 Par. 30 of the contract provides:
All employees who have been in the continuous employment of the
Company for a period of more than ninety (90) calendar days may be
discharged by the Company for cause such as the following : Insub-
ordination , intoxication , or being under the influence of intoxicating
liquor or drugs while on duty, gross inefficiency, breach of trust,
including commission or concealment of errors , sabotage, and exces-
sive absences.
CESSNA AIRCRAFT CO. 875
contract which prevents a steward from preparing a
grievance for another employee-conduct which is
deemed by the Board to constitute "protected" activ-
ity and in fact corresponds with accepted past prac-
tice at Respondent's plant.
The arbitrator also found that West apparently
violated paragraph 35 of the contract by not check-
ing off the clock to prepare the grievance. In this
connection , the General Counsel has West's sworn
testimony that he "clocked off" between 5:30 and 6
p.m. on June 13, 1974, which was shortly after he
spoke with Srader about filing the grievance and that
he was still "off the clock" when he was suspended
later that evening.
Finally, the charge filed by J. Sue West clearly and
unambiguously alleges that both she and her hus-
band were discharged by Respondent in violation of
Section 8(a)(1) and (3) of the Act. The fact that West
did not file his own separate charge is of no import as
the Board' s Rules and Regulations state in Section
102.9 that "any person" can file a charge and that
person need not be the alleged discriminatee. Even
assuming arguendo that the charge was ambiguous
with respect to West's discharge, it does not serve the
function of pleading but merely sets in motion an
inquiry by the Board.
Respondent argues as follows in support of its mo-
tion:
Under the terms of the collective-bargaining con-
tract, decisions of the grievance board and the board
of arbitration are final and binding. As they conform
to Spielberg standards and are not repugnant to the
Act, the Board should defer thereto. Thus, J. Sue
West and her husband were present at the hearings
before those boards and were each given a full and
fair hearing .? Contrary to the General Counsel's con-
tention that the arbitrator conditioned West's rein-
statement on his not holding a union office for 1
year, this was "but a suggestion and not a condi-
tion." 8
Although hearsay evidence was introduced as to
what Srader said concerning West's violation of the
contractual grievance procedure, it pertained to only
one of Respondent's grounds for the discharge. Fur-
thermore, the Union did not avail itself of the oppor-
tunity to call Srader as a witness to refute hearsay
statements on this matter. In any event, West admit-
ted on cross-examination that he did not follow the
prescribed grievance procedure.
Finally, the Board should at least dismiss the Gen-
eral Counsel's allegations with respect to West be-
7 Electronic Reproduction Service Corporation, et al, 213 NLRB 758
(1974).
8 In an affidavit , dated February 20, 1975, the arbitrator stated that this
was the intent of his decision.
cause J. Sue West limited the charge to herself.
Upon an analysis of the foregoing, we find that the
Board should not defer to the decision of the arbitra-
tor.
We agree with the General Counsel that the charge
filed by J. Sue West was a proper vehicle for launch-
ing his inquiry and that the complaint properly in-
cluded allegations with respect to West's discharge.
Although he dealt with the various grounds ad-
vanced by Respondent for discharging West, the ar-
bitrator failed to reach or specifically pass upon the
central issue , namely, whether West was discrimina-
torily discharged "for trying to perform [his] job as a
Union steward."
The arbitrator also fashioned a remedy that is re-
pugnant to the purposes and policies of the Act.
Thus, he departed from longstanding Board principle
by ordering West's reinstatement without providing
that he be made whole for the period prior to his
return to work. As correctly contended by the Gener-
al Counsel, the arbitrator also contravened the
quintessence of the Act in depriving West of the op-
portunity to promote collective bargaining by pro-
hibiting him from serving as a steward for an entire
year after his reinstatement. Although this prohibi-
tion is couched in terms of a "suggestion," it is evi-
dent from the wording of the arbitrator's decision
that the ban on such service by West to the Union is
not optional but is a definite and mandatory condi-
tion respecting West's reinstatement. In this connec-
tion, we are not persuaded by the arbitrator's affida-
vit which offers an explanation of his intent that goes
contrary to the clear language of his decision.
Finally, we also find merit in the General
Counsel's strictures regarding another condition im-
posed by the arbitrator, namely, a 1-year probation
period. As the General Counsel correctly contends,
the contract provides only for a 90-day probationary
period for new employees. As paragraph 45 of the
contract limits the power of arbitrators by forbidding
them to "arbitrate away, in whole or in any part, any
provisions" of the contract, the arbitrator exceeded
the scope of his powers by creating a new category of
probation and condition of employment which is not
contained in the contract.
We turn now to the decision of the grievance
board with respect to J. Sue West's discharge. As
indicated above, her grievance stated, inter alia, that
she was discharged because of a false charge that she
intimidated another employee and because she was a
union steward. However, in ruling that the discharge
was justified, the board is silent on the allegations in
her grievance, does not state the issues, and does not
relate its conclusions thereto. Manifestly, the griev-
ance board's disposition of the grievance egregiously
876 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
violates due process and pays no heed to provisions
of the Act which proscribe discharge as a penalty for
union activity.
In view of our holding that the decisions of the
grievance board and the arbitrator are repugnant to
the purposes and policies of the Act, we shall not
defer thereto . Accordingly , we shall deny Respon-
dent's motion for summary judgment.
ORDER
It is hereby ordered that Respondent 's motion for
summary judgment be, and it hereby is, denied.
CHAIRMAN MURPHY , concurring:
I concur with the decision of my colleagues reject-
ing the Respondent's motion for summary judgment.
With respect to Rick D. West, however, I rely solely
on the fact that the remedy fashioned by the arbitra-
tor is repugnant to the purposes and policies of the
Act insofar as it prohibited West from serving in any
union office for an entire year after his reinstatement
and imposed a 1-year probationary period upon him
during which he would not be entitled to the benefits
of the contract and which is not required of any
other employee . Such conditions improperly interfere
with the statutory rights of the employee and are not
entitled to deference under our Spielberg doctrine .9
9 Spielberg Manufacturing Company, supra.