Columbus Foundries, Inc.

National Labor Relations Board - Board Decisions

Apr 18, 1977

229 N.L.R.B. 34 (N.L.R.B. 1977)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Columbus Foundries, Inc. and Willie Griffin. Case I 0-
CA-12231
April 18, 1977
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND MURPHIY
On January 5, 1977, Administrative Law Judge
Stanley N. Ohlbaum issued the attached Decision in
this proceeding. Thereafter, Respondent filed excep-
tions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
brief 1 and has decided to affirm the rulings,
findings,2 and conclusions 3 of the Administrative
Law Judge and to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the Respondent, Columbus
Foundries, Inc., Columbus, Georgia, its officers,
agents, successors, and assigns, shall take the action
set forth in the said recommended Order.
I Respondent's request for oral argument is hereby denied because the
record, the exceptions, and the brief adequately present the issues and
positions of the parties.
2 The Respondent has excepted to certain credibility findings made by
the Administrative Law Judge. It is the Board's established policy not to
overrule an Administrative Law Judge's resolutions with respect to
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions are incorrect. Standard Dr), Wall Products,
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have
carefully examined the record and find no basis for reversing his findings.
: At the hearing and in its exceptions, Respondent urged deferral of this
matter in accordance with the policies enunciated in Collyer Insulated Wire,
A Gulf and Western Systems Co., 192 NLRB 837 (1971). Based on
Respondent's unwillingness unconditionally to proceed to arbitration,
among other reasons, the Administrative Law Judge concluded that deferral
is not appropriate. In accordance with the views expressed in General
American Transportation Corporation, 228 NLRB 808 (1977), and elsewhere,
Chairman Fanning and Member Jenkins would not in any event defer this
matter. Similarly, in accordance with the views expressed in her concurring
opinion in General American Transportation Corporation, supra, Member
Murphy would not in any event defer this matter to arbitration.
DECISION
PRELIMINARY STATEMENT; ISSUE
STANLEY N. OHLBAUM, Administrative Law Judge: This
proceeding under the National Labor Relations Act, as
amended (29 U.S.C. Sec. 151, et seq., herein the Act), based
upon complaint issued by the Regional Director for Region
10, dated October 22, growing out of a charge filed on
September 1 by the Charging Party, Willie Griffin, was
heard by me in Columbus, Georgia, on November 23-24,
1976,1 with all parties participating throughout by counsel,
who were afforded full opportunity to present evidence and
arguments. Posthearing brief and letter from counsel were
received on December 27 after time extension.
The principal issues, fully litigated by both sides, are
whether Respondent Employer, Columbus Foundries, Inc.,
violated Section 8(aX3) and (1) of the Act by terminating
the employment of its employee Willie Griffin on May 1,
1976, because he endeavored to assist and represent two
fellow employees, at their request, at a disciplinary
interview involving suspected or alleged work misconduct,
resulting in the discharge of one of the employees; and
whether Respondent acted lawfully in refusing to permit
Griffin to act in that capacity.
Record and brief having been carefully considered, upon
the basis thereof and my observation of the testimonial
demeanor of the witnesses, I make the following
FINDINGS AND CONCLUSIONS
I. JURISDICTION
At all material times, Respondent Columbus Foundries,
Inc., a Georgia corporation, has been and is engaged in the
manufacture and sale of cast iron fittings and moldings in
and from its place of business in Columbus, Georgia.
During the representative year immediately preceding
issuance of the complaint, in the course and conduct of
those business operations, Respondent sold and shipped,
directly in interstate commerce to customers in places
outside of Georgia, finished products valued in excess of
$50,000.
I find that at all material times Respondent has been and
is an employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act; and that at all of those
times United Steelworkers of America, AFL-CIO, has
been and is a labor organization within the meaning of
Section 2(5) of the Act.
I Dates are 1976 throughout, unless otherwise specified.
229 NLRB No. 14
34
COLUMBUS FOUNDRIES, INC.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Facts as Found
Respondent is a Columbus, Georgia, manufacturer and
marketer of cast iron fittings and moldings. On Saturday
morning, May 1, 1976, work was being done at the
foundry, with a hand-shovel crew removing dirt, coal dust,
or sand from under a 30-40 feet long pouring platform.2
The work crew included laborers Jenkins, Jackson, and
Griffin, each classified as a "dumper" or "weight shifter,"
and also Pouring Foremen Richardson and Jones. Griffin
has been in Respondent's employ continuously for over 2
years.
Around midmorning, Foreman Richardson, remarking
that he smelled something funny or like marijuana or
"pot," shone his flashlight under the platform, where he
observed Jenkins-who was working close to Jackson-
smoking. When Richardson asked Jenkins what he was
smoking, or whether he was smoking marijuana or "pot" or
a "reefer," Jenkins snuffed out his cigarette and replied he
was smoking a "Kool" (a mentholated cigarette). Indicat-
ing he thought it was a "reefer," and remarking to
Griffin-who was on the platform itself-that "any guy
. . .would jeopardize their job smoking reefer," Richard-
son walked away and soon returned with fellow-Foreman
Jones (who was further away on the platform), to whom he
had narrated the foregoing. The two foremen ordered
Jenkins and Jackson to accompany them to the office.3
Meanwhile, Griffin-who was one of several elected
union4 grievance committeemen, with his name posted on
the Company bulletin board(s) and known to the Compa-
ny5 and the unit members as such-had reminded Jenkins
and Jackson that he was their union committeeman and
would represent them in view of the potential seriousness
of the charge. Jenkins and Jackson told Griffin that they
wished Griffin to represent them and would tell this to the
Company. Jackson added that he did indeed want Griffin
to be there since "1 [Jackson] think there's going to be
some junk going on."
On the way to the office-with one foreman pairing up
with one of the accused or suspected laborers, followed by
the other foreman and laborer-Jenkins told Foreman
Jones he wanted Griffin to represent him.6 In the office, the
two foremen began questioning the two laborers as to
whether there had been marijuana, "pot," or "reefer"
smoking-a dischargeable offense-going on under the
platform. Jenkins continued to deny he had been smoking
anything other than a "Kool" cigarette. Jackson insisted he
did not know what Jenkins had been smoking. The
foremen prodded Jenkins to confess that he had indeed
been smoking a "reefer," but Jenkins declined to do so.
They also prodded Jackson to inform on Jenkins, also to
no avail.
2 There were perhaps 30 or 40 employees at work on that Saturday.
3 I.e., the microsample room or "sand lab."
4 I.e., United Steel Workers of America, AFL-CIO, exclusive bargaining
representative of these and all other of Respondent's Columbus. Georgia,
production and maintenance employees.
I Foreman Jones also conceded at the hearing that Griffin had
previously intervened as a union grievance committeeman on behalf of
another unit employee, unrelated to the instant episode.
6 Although Jones denies Griffin told him this, nevertheless, on the basis
While Jenkins and Jackson were thus being questioned
by Foremen Richardson and Jones, with Jenkins being
urged to confess guilt to an offense which could cost him
his job, and Jackson being prodded to inform on Jenkins,
union grievance committeeman Griffin entered the office7
and-after asking and being told by Foreman Richardson
that the men were accused of smoking "pot" on the job-in
the clearest of terms indicated he (Griffin) was there to
assist and represent the accused men in his capacity as
union grievance committeeman. Although Jenkins and
Jackson in no way denied or disputed this or indicated to
the contrary or expressed any disagreement with what
Griffin was saying, nevertheless Griffin was told by
Foremen Jones and Richardson that it was none of
Griffin's business, that nobody had sent for him, that he
was not needed there, to "go back out and go to work, if we
need you, we'll call you," and that the foremen would
"send for you if we need you"; and the two foremen
resumed their accusations to the men and demanding that
they confess. Griffin continued to indicate that he was the
Union's spokesman for the accused men and was there to
assist them, as was their desire, as well as his right and
duty. When Jenkins and Jackson were asked whether they
wanted Griffin to represent them, they both indicated they
did. Nevertheless, Griffin was again told that he had no
business there and was ordered to leave. Another union
grievance committeeman, Peter Averett, who had mean-
while also come into the office, was likewise ordered to
leave, and did so. Griffin, however, persisted that he had
the right and duty to stay. Jones thereupon left, returning
within a few minutes with Company Foundry Superinten-
dents Hardy Clemens Hudson, Jr., and Wesley J. Estes.
According to testimony of Hudson, Foreman Jones
informed him that he had two men in the office they were
"discussing a problem with" and that Griffin "started
intervening." In the office, when Estes or Hudson asked
Jenkins whether he had been smoking "pot," Jenkins
continued to deny it. When-according to Respondent's
witness, Foreman Richardson-Hudson asked the fore-
men, "What kind of trouble [are you] having," they told
him that Griffin insisted he had a right to be there although
they had directed him to return to his job. Estes thereupon
ordered Griffin, "Go on back to your job. If we need you
we'll get you." Griffin continued to insist that he had a
right to be there to represent the accused men
and-according to testimony of Respondent's own witnesses
Jones, Richardson, Estes, and Hudson-asked Jenkins
whether he wanted Grifin there and Jenkins said "Yes."
Superintendent Estes-according to the testimony of
Respondent's witness Foreman Jones said that the Compa-
ny had the right to talk to the men without Griffin being
there,8 and Superintendent Hudson said to Griffin, "I'm
going to give you five minutes to go back to work, and if
of testimonial demeanor comparisons within the framework of the record as
a whole I prefer and credit the testimony of Jenkins, a witness who, while of
limited capability in the communicative arts, nevertheless stood by his
testimony on sharp cross-examination, and impressed me as truthful under
oath here.
Griffin had entered a "few minutes" before, looking or ostensibly
looking for a shovel or other tool or equipment, but had been referred
elsewhere by his foreman.
8 According to Foreman Jones. either Superintendent Estes or Hudson
(Continued)
35
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
you don't, I'm going to fire you." Since Griffin continued
to indicate the men had the right to have him there, he was
summarily fired by Hudson, who then left. Thereupon,
when Richardson reiterated to Estes that he had seen
Jenkins "with a cigarette in his hands" and Estes asked
Jenkins and Jenkins denied he had been "smoking pot,"
Estes indicated to Richardson that Jenkins was the "only
one you can discipline," and Estes then left. Jones
thereupon discharged Jenkins, and Jackson was told to
return to work, which he did.
It was in essence conceded by Foremen Jones and
Richardson at the hearing that Griffin's described brief
visit to the office-to which he would in any event have
had to go to seek out his foreman (Richardson) to obtain
permission to absent himself from his work 9 did not
"inconvenience or handicap" Respondent's operations.
Union Representative Strunk, appearing as Respondent's
witness, likewise conceded that at no time did the
Company assert that Griffin's temporary absence from
work handicapped its operations.
Several weeks after the described May I terminations of
Jenkins and Griffin, a "3d step" grievance meeting was
held between the Union and the Company concerning the
termination, as a result of which, with the concurrence of
the Company, Jenkins was reinstated with full seniority
and backpay for the reason that the allegations of "reefer"
smoking had not been sustained; but the Company refused
to reinstate Griffin on the ground that he had been
"insubordinat[e]" and "fail[edl to follow instructions of a
supervisor" to return to work under the described circum-
stances. The Union did not carry the matter to the "fourth"
or arbitration step. 10
Respondent refuses to reinstate Griffin, continuing to
maintain that his discharge was lawful and proper.
B. Resolution and Rationale
Under the circumstances described, I find and hold that
Respondent's discharge of Griffin was not lawful or
proper, since it was only because he sought to assist and
represent two fellow-employees at an investigatory-disci-
plinary interview fraught with peril to their jobs. Inasmuch
also told Griffin that there was "no grievance 'cause no one was fired.' " I
do not agree that the employees had no right to have their representative
present until after they had been fired. See N.L.R.B. v. J. Weingartern Inc.,
420 U.S. 251 (1975).
9 Cf. collective agreement, G.C. Exh. 4, art. Ill, sec. I. See also
"Resolution and Rationale, " infra.
"' The collective agreement (G.C. Exh. 4, art. V ("Fourth")) provides
that if the Union and the Company "fail to reach a mutually satisfactory
settlemen t of the grievance, the dispute may be referred" to arbitration at the
desire of either side. (Emphasis supplied.) According to Union Representa-
tive Jack Strunk, who testified as Respondent's witness at the instant
hearing, he did not recommend arbitration because he had previously been
unsuccessful in arbitrations in cases he regarded as similar or even
"stronger." His testimony fully persuades me that his "investigation" into
the circumstances of this case was woefully inadequate.
II Cf. Collyer Insulated Wire, A Gulf and Western Systems Co., 192 NLRB
837(1971).
12 Especially where, as here. its alleged "investigation" of the facts has
been woefully deficient. Thus, Union Representative Strunk conceded that
although during the third-step grievance discussion Jenkins told him, not
under oath, that he had not requested representation by Griffin, Strunk did
not even ask Griffin that question, much less the foremen or others present
in the described office discussion on May I. It will be recalled that all of the
witnesses here-including Respondent's own two foremen and foundry
as the employees were entitled to have Griffin present there
as their union representative, and Griffin had the right to
be there in that capacity, and Respondent denied the two
accused employees as well as Griffin and the Union that
right, Griffin's discharge for seeking to assert and insist on
that right was plainly in violation of the Act. N.L.R.B. v.
Weingarten, supra.
Respondent raises a number of contentions in support of
its discharge of Griffin. To begin with, it urges that the
issues are beyond the reach of the Board since the Union
failed to proceed with arbitration as it had the right to do
under the collective agreement; and that the Board should
defer to an arbitration "requirement" I in which, however,
Respondent is now unwilling unconditionally to partici-
pate. But the fact that a union does not proceed to
arbitration under a collective agreement with regard to the
discharge of an employee, even assuming it is "required" to
do so, does not oust the Board of its jurisdiction and duty
to administer and enforce the requirements of the Act. See
Act, Section 10(a). Certainly the fear-so advanced by the
Union here, appearing as a witness for Respondent
Employer-that it might not succeed in such an arbitra-
tion 12 does not oust the Board of its statutory enforcement
obligations, which are for the protection of all employees
and the public as well. It is noted that the fourth step or
arbitration provision of the grievance procedure of the
collective agreement (G.C. Exh. 4, art. V, "Fourth"),
merely indicates that if a "mutually satisfactory settle-
ment" of a grievance is not reached, "the dispute may" be
arbitrated. (Emphasis supplied.) Thus, the arbitration step
is not required or mandatory; and the contract does not
provide that if that step is not pursued all rights and
remedies-under the Act or otherwise-are extinguished or
erased, doubtful as the legality of such a provision would
be.' 3 Moreover, the right here involved is that of the
employee Griffin, and the statutory vindication that of his
fellow employees too as well as that of the public. Finally,
Respondent and the Union were unwilling even at the
hearing unconditionally to proceed with arbitration.' 4
Under all of the circumstances shown, I reject Respon-
dent's contention that the arbitration provision of the
superintendents-conceded the contrary under oath in this proceeding;
namely, that Jenkins had indeed asked Gnffin to represent him. Jenkins'
explanation, under oath here, that he said this to Strunk (while not under
oath) at the third-step grievance discussion because he (Jenkins) felt "under
pressure" to get his job back, rang true to me. (Furthermore, as already
stated, even Respondent's witnesses conceded under oath here that Jenkins
did in fact in their presence in the office on May I indicate he wished Griffin
to represent him.)
13 Thus, if, for example, under an "elective" arbitration provision such as
here, the union did not wish to press ahead with arbitration because it
considered it too expensive, but instead relegated the employee to his cost
free remedies before the Board under the Act, would the employee's charge
or complaint be required to be dismissed no matter how meritorious and the
Act's policies and provisions pushed aside?
14 At the hearing, Union Representative Strunk indicated that in view of
what he now knows (i.e., testimony heard by him at the instant hearing), the
Union would be willing to proceed with arbitration. Although such a
procedure would be an egregious waste of time and money, in any event
Respondent declined to agree to arbitration at this time in view of the fact
that its potential backpay exposure had meanwhile increased in the interim
between the third-step grievance discussion and this hearing. Respondent
thereupon elected, as it indicated it did at the outset of the hearing, to
proceed with this litigation.
36
COLUMBUS FOUNDRIES, INC.
collective agreement is a bar to this proceeding. Cf. The
Scam Instrument Corporation, 163 NLRB 284 (1967), enfd.
394 F.2d 884 (C.A. 7; 1968), cert. denied 393 U.S. 980
(1968); Tulsa-Whisenhunt Funeral Homes, Inc., 195 NLRB
106 (1972), enfd. 84 LRRM 2300 (C.A. 10, 1973); United
Parcel Service, JD- 172-76, p. 9, fn. 20 (unappealed); Local
771 v. RKO General, Inc., 93 LRRM 2228, 2233-35
(U.S.D.C., S.D.N.Y., 1976). The Board has recently held or
reiterated that it will not defer to a contractual grievance-
arbitration machinery in a case involving an employer's
alleged violation of the Act through suspension of a union
committeeman because of his processing of employee
grievances. Nissan Motor Corporation in U.S.A., 226 NLRB
397 (1976). See also concurring opinion of Board Member
Penello in Columbia Corrugated Container Corp., 226
NLRB 147 (1976), declining to defer to arbitration where-
as here-the union had already indicated that the dis-
charged employee could not seek redress under the
grievance-arbitration procedure because of the supposed
merits of the particular situation in which the employer
regarded the employee as having quit.
Respondent next insists that Jenkins and Jackson-the
two laborers faced with incipient loss of their jobs-did not
request that Griffin assist or represent them. The short
answer to this is that the facts are to the contrary. Not only
did the two laborers each expressly so request, on the way
to the office, but so did Griffin on their behalf in the office.
Indeed, each of Respondent's own supervisory witnesses-
its Foremen Jones and Richardson, as well as its Superin-
tendents Estes and Hudson-explicitly conceded that the
laborers stated in their presence, in response to a question
by Griffin, that they desired Griffin to represent them.
Respondent further contends that Griffin did not obtain
permission from Respondent to leave his work or to remain
in the office during the episode with the laborers.
Addressing this contention, it is at the outset to be
observed that Griffin's described activities were clearly in
the exercise of protected concerted activities under the
Act 15 and that, indeed, Respondent at the hearing
conceded that he had the right to be there in his capacity as
union grievance committeeman. Respondent nevertheless
insists that Griffin was required to obtain its permission to
leave his work station as well as to come to and remain in
the office. It is noted that the collective agreement (G.C.
Exh. 4, art. III, sec. I) provides that "Members of the
Union Grievance Committee shall be granted permission
to carry out their obligations by their foreman, providing
their absence at the time will not inconvenience or
handicap the operations of the department." 16 Here, as in
Guerdon Industries, 199 NLRB 937 (1972), it was necessary
and appropriate for the union committeeman to leave his
work station to see his foreman-in this case Richardson-
who was already in the nearby office. Where else could he
be "granted [the] permission" which Respondent was
required ("shall," supra) to allow? Furthermore, as shown, it
was in essence conceded by all that Griffin's work (one of a
IS Cf. N.LR.B. v. Washington Aluminum Company, Inc. 370 U.S. 9, 16-17
(1962): Time-O-Maic, Inc. v. N. LR.B., 264 F.2d 96, 101-102 (C.A. 7, 1959)
(employees leaving work area, without permission, to speak to plant officials
in office regarding grievance); N.LR.B. v. J. I. Case Company, Beltendorf
Works, 198 F.2d 919, 921-922 (C.A. 8, 1952), cert. denied 345 U.S. 917
(1953). There is no indication here that Griffin's brief absence from the end
group shoveling dirt or sand) was not of such a character
that its brief interruption "inconvenience[d] or handi-
cap[ped]" Respondent's operations. Respondent's conten-
tion that Griffin did not obtain its permission to be in the
office is in essence a semantical roundelay, since it was of
course perfectly apparent (and indeed concededly known
to Respondent's officials and supervisors) why Griffin was
in the office-where his foremen had taken Jenkins and
Jackson; namely, to carry out his responsibilities as union
grievance committeeman and to assist Jenkins and Jackson
in order to attempt to prevent their discharge. Further-
more, Respondent's repeated statements to Griffin in the
office that he was not needed there, would not be permitted
to remain there, and that he leave and return to work,
constituted of course a denial of permission for him to
remain. Indeed Griffin did not obtain Respondent's
"permission" to remain-but only because Respondent
refused to give him permission to remain, although
Respondent conceded at the hearing that he had the right
to be there. Under these circumstances, it is little short of
ludicrous for Respondent now to insist, as it did at the
hearing, that the only reason it discharged Griffin was
because he did not receive permission to be in the office,
while at the same time conceding-as it also explicitly did
at the hearing-that Griffin had the right to be there and
that it would have given him permission to remain had he
but asked for it. What else was he there for? And what else
was he doing in vainly insisting that he had the right to be
there? It is Respondent's refusal to permit him to stay
which is the very violation here charged. Respondent's
attempt now to justify his discharge upon the ground that
he did not obtain the very permission which Respondent
refused, while at the same time conceding he had the right
to be there, thus sets the facts on their head.
Respondent next contends that when Griffin entered the
office there was no longer any need for his presence since
the interview of Jenkins and Jackson had been completed
or "virtually ... completed." I find this to be contrary to
the facts as established at the hearing. To begin with,
Jenkins and Jackson were still being questioned, and they
continued to be questioned thereafter although Griffin was
not permitted to participate in the process that was going
on. Even according to the testimony of Respondent's
witness, Foreman Jones, at the point when Griffin entered
the office Jones and his fellow Foreman Richardson were
"waiting on Jenkins to see what he would say"-thus, the
foremen's interview of the laborers had not ended; indeed,
it was still at a critical stage. And the simple fact is that
neither Jenkins nor Jackson had been told the interview
was over nor had they been told to leave. Furthermore, it
was only considerably later, after Foundry Superintendents
Estes and Hudson were called to the office and at least
Jenkins was further questioned, that the nature of the
discipline-i.e., discharge in the case of Jenkins-was
determined and announced. Under these circumstances,
not only is it plain that the interview had not been
of his particular shovel involved any stoppage or interruption of the work of
others or even significantly of his own.
16 The collective agreement (G.C. Exh. 4, art. V, sec. 3, "First") further
stipulates that the first step of the grievance proceeding shall be "lbletween
the employee affected, or a member of the Grievance Committee, or both,
and the Foreman."
37
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
concluded before Griffin entered the office, but it is clear
that if Griffin had been permitted to participate as he
desired he might very well have saved Jenkins the job to
which he was subsequently reinstated with full seniority
and backpay. Foreman Jones acknowledged that possibili-
ty at the hearing by conceding that if Griffin had been
permitted to remain and participate he could have
presented a number of contingencies which would have
saved Jenkins' job. Finally, Respondent's Superintendent
Estes conceded that neither Foreman Richardson nor
Foreman Jones indicated that they were finished talking to
Jenkins and Jackson. Under these circumstances, I reject
Respondent's contention that the interview of Jenkins and
Jackson had been completed before Griffin entered the
scene.
Finally, near the close of the hearing, Respondent's
knowledgeable Personnel Director Quinn indicated that it
was not Respondent's contention that Griffin had no right
to be there, but that if Griffin had requested "permission"
to stay the Company could then have "cut off the
investigation" or had none at all. While this observation
betokens an astute reading of Weingarten, supra, it is wide
of the mark in application to the facts here. To begin with,
as already discussed, Griffin had repeatedly been denied
permission to stay, even though he was obviously there for
that and no other purpose and he as well as the two
laborers had repeatedly pointed that out-the laborers on
their way to the office, and the laborers as well as Griffin in
the office. Under these circumstances, it was Respondent
who elected to proceed with what Quinn characterizes as
"the investigation" and who elected not to have none at all
or to "cut [it] off." 17
Respondent's Foreman Jones, testifying as its witness,
candidly acknowledged that although he knew Griffin to
be a union grievance committeeman, he (Jones) was
unfamiliar with and had never seen a copy of the collective
agreement, and had never been told about and was
therefore unaware of the requirement therein (G.C. Exh. 4,
art. III, sec. 1) that Griffin "shall be granted permission to
carry out [his union grievance committeeman] obligations
by [his I foreman." Even if Jones' further candid testimony
is true that he felt that Jenkins was "better" able to speak
for himself than Griffin could-an estimate with which,
after observing and listening to both Jenkins and Griffin, I
am inclined to roundly disagree-and that Jones did not
"need" Griffin since "On Jenkins speaking for himself, I
believe he could have done it," it is not for an employer to
make such judgments. Where he does, so as to exclude
union representation, he violates the Act's requirement and
the mandate of the Supreme Court in Weingarten-a
statutory requirement that the Board in the underlying case
(Mobil Oil Corporation, 196 NLRB 1052 (1972), enforce-
ment denied 482 F.2d 842 (C.A. 7, 1973)), reversed, in
effect, 420 U.S. 251 (1975)-indicated results in a "serious
violation" where disobeyed, and one which the Supreme
17 I also disagree with Quinn's ultimate contention that a union
grievance committeeman has no role whatsoever to play on the issue of what
discipline is to be meted out in the context of such an ongoing investigatory-
disciplinary interview as here described, with employees suspected or
accused of work rules infraction sufficiently serious as to imperil their hold
on their jobs, and with disciplinary implications and remarks interlarded
with the investigatory questioning so as to make unfeasible any unscram-
Court gave no indication it regards less seriously. To the
contrary, the Court has emphasized that the right of
employees to the kind of representation they here vainly
sought "painly effectuates the most fundamental purposes
of the Act" (Weingarten, supra, 420 U.S. at 261), and so it
must be regarded here.
It is accordingly concluded that by its described actions
in refusing to permit its employees Jenkins and Jackson to
be represented by their designated union grievance com-
mitteeman Griffin at their described office interview of
May 1, and by discharging Griffin for seeking to act as
such representative, Respondent violated Section 8(a)(l)
and (3) of the Act.
Upon the foregoing findings and the entire record, I state
the following:
CONCLUSIONS OF LAW
1. Jurisdiction is properly asserted in this proceeding.
2. By refusing to accede to lawful requests of its
employees William K. (Q.) Jenkins, Jr., and Adam S.
Jackson, and said employees' duly designated union
representative, Respondent's employee Willie Griffin, prior
to as well as during Respondent's interview of said
employees on May 1, 1976, concerned with their continued
employment by reason of suspected or alleged inproprieties
calling for discharge or other discipline, at times when the
employees reasonably believed that said interview might
result in discharge or other disciplinary action, under the
circumstances detailed and found in "II," supra, Respon-
dent interfered with, restrained, and coerced, and is
interfering with, restraining, and coercing, employees in the
exercise of rights guaranteed in Section 7, thereby engaging
in unfair labor practices in violation of Section 8(a)(1) of
the Act.
3. By terminating the employment of its employee
Willie Griffin on May 1, 1976, and failing and refusing to
reinstate him in his job since that time, because Griffin as
the union grievance committeeman representative of said
employees Jenkins and Jackson sought to represent them
at said interview on May 1, 1976, Respondent has
discriminated in regard to the hire and tenure of employ-
ment and the terms and conditions of employment of
employees so as to discourage membership in a labor
organization, and continues so to do, in violation of
Section 8(a)(3) of the Act; and has further interfered with,
restrained, and coerced, and is interfering with, restraining,
and coercing, employees in the exercise of rights guaran-
teed in Section 7, thereby engaging in unfair labor practices
in violation of Section 8(a)(1) of the Act.
4. Said unfair labor practices have affected, are affect-
ing, and unless permanently restrained and enjoined will
continued to affect, commerce within the meaning of
Section 2(6) and (7) of the Act.
bling of the two. Under the circumstances here, at any rate, the underlying
situation and the discipline if any to flow therefrom constituted a single,
continuous, indivisible, and uninterrupted stream whose course and
progress was not in fact bifurcated or separable, or dammed or diverted at
any point. It is difficult to imagine what a disciplinary interview of an
employee is if one which results in his summary discharge is not.
38
COLUMBUS FOUNDRIES, INC.
REMEDY
Respondent should be ordered to refrain from continu-
ing to violate the Act in the respects found, as well as to
reinstate Willie Griffin with full seniority and with backpay
plus interest to be computed as set forth in F. W.
Woolworth Company, 90 NLRB 289 (1950), and Isis
Plumbing & Heating Co., 138 NLRB 716 (1962), preserving
and making available its books and records to the Board's
agents for backpay computation and compliance determi-
nation purposes. Since, as has been frequently reiterated,'8
the discharge of an employee for attempting to assert a
right guaranteed under the Act strikes at the heart of the
Act, the order should contain a provision requiring
Respondent to cease and desist from infringing upon rights
secured to employees under Section 7 of the Act.
Respondent should also be required to post the usual
notice to employees.
Upon the basis of the foregoing findings of fact,
conclusions of law, and the entire record, and pursuant to
Section 10(c) of the Act, there is hereby issued the
following recommended:
ORDER19
Respondent Columbus Foundries, Inc., Columbus,
Georgia, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing or failing to accede to the request of any
employee, made personally or through his agent or
representative, to be represented by a labor organization at
any interview or meeting held by the Employer with the
employee where the employee has reasonable grounds to
believe that the matters to be inquired into or discussed
may result in his discharge or disciplinary action.
(b) Refusing or failing to accede to the authorized
request of any labor organization or its representative to be
present and represent any employee of the bargaining unit,
at any interview or meeting held by the Employer with any
such employee where the employee has reasonable grounds
to believe that the matters to be inquired into or discussed
may result in his discharge or disciplinary action.
(c) Requiring any employee to take part in such interview
or meeting without the requested labor organization
representative.
(d) Discharging, terminating, laying off, suspending,
disciplining, or refusing or failing to reinstate, rehire, or
reemploy, or so threatening, an authorized employee acting
or attempting to act at such interview or meeting as the
labor organization representative of the employee being
interviewed by the Employer.
(e) In any other manner interfering with, restraining, or
coercing any employee in the exercise of the right to self-
organization; to form, join, or assist any labor organiza-
tion; to bargain collectively through representatives of his
own choosing; to engage in concerted activities for the
purpose of collective bargainipg or other mutual aid or
protection; or to refrain from any and all such activities.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Offer to Willie Griffin immediate, full, and uncondi-
tional reinstatement to his former or substantially equiva-
lent position, without prejudice to his seniority and other
rights, privileges, benefits and emoluments, including
interim pay raises and also currently applicable pay scales;
and make him whole for any loss of pay (including
overtime, holiday, and vacation pay, and insurance
benefits and reimbursements if any), together with interest,
in the manner set forth in the "Remedy."
(b) Forthwith expunge from the personnel and employ-
ment records of Willie Griffin all statements, notations,
entries, and references that he was terminated by Respon-
dent, on or about May 1, 1976, for any work-related fault,
deficiency, or reason, and refrain from any such communi-
cation, written or oral, to any other employer or prospec-
tive employer or agency.
(c) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, wage scale records and notations, social
security payment records, timecards, personnel records and
reports, and also all other records and entries necessary or
appropriate to determine the amounts of backpay and
other sums and benefits due under and the extent of
compliance with the terms of this Order.
(d) Post at its premises in Columbus, Georgia, copies of
the attached notice marked "Appendix."20 Copies of said
notice, on forms provided by the Regional Director for
Region 10, after being duly signed by Respondent's
authorized representative, shall be posted by Respondent
immediately upon receipt thereof, and maintained by it for
60 consecutive days thereafter, in conspicuous places,
including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by
Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(e) Notify said Regional Director, in writing, within 20
days from the date of this Order, what steps Respondent
has taken to comply herewith.
'8 See, e.g., N.LR.B. v. Entwistle Mfg. Co., 120 F.2d 532, 536 (C.A. 4,
1941).
19 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 findings,
conclusions, and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes.
20 In the event this Order is enforced by a Judgment of a United States
Court of Appeals, the words in the notice "Posted by Order of the National
Labor Relations Board" shall read "Posted Pursuant to a Judgment of the
United States Court of Appeals Enforcing an Order of the National Labor
Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT require any employee to take part in
an interview or meeting without union representation if
the employee requests it in the reasonable belief that
the matters to be inquired into or discussed may result
in his discharge or discipline.
WE WILL NOT discharge, terminate, suspend, or
discipline any union grievance committeeman or other
39
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
union representative in our employ, or refuse or fail to
reinstate or rehire him, or threaten to do so, for seeking
to be present and represent any employee at any such
interview or meeting, at the request of the employee to
be interviewed, whether made personally or by the
employee's duly authorized agent or representative.
WE WILL NOT in writing or orally indicate to any
other employer or prospective employer or agency that
any such discharge occurred for any such reason.
WE WILL NOT in any other manner interfere with,
restrain, or coerce any employee in the exercise of his
right to self-organization; to form, join, or assist any
labor organization; to bargain collectively through
representatives of his own choosing; to engage in
concerted activities for the purpose of collective
bargaining or other mutual aid or protection; or to
refrain from any and all such activities.
WE WILL permit our employees to have their union
representative present at any such interview or meeting
if they so request.
WE WILL offer Willie Griffin immediate, full, and
unconditional reinstatement to his former or substan-
tially equivalent job and seniority with us, and WE WILL
pay him for any wages and benefits lost by him because
of our discharge of him on May 1, 1976, plus interest;
and WE WILL forthwith remove from our records all
indications that Willie Griffin was discharged by us on
or about May 1, 1976, for any reason due to his
misconduct, misbehavior, or fault.
COLUMBUS FOUNDRIES, INC.
40