Consumers Power Company

National Labor Relations Board - Board Decisions

Sep 21, 1979

245 N.L.R.B. 183 (N.L.R.B. 1979)

Consumers Power Company and Local 103, Utility
Workers of America, AFL-CIO. Case 7 CA 14222
September 21, 1979
DECISION AND ORDER
BY MEMBERS JENKINS MURPHY, ANI) TRUI:SI)AIL
On June 29, 1979, Administrative Law Judge Jen-
nie M. Sarrica issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief.
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 brief
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 Respondent, Consumers Power Company,
Jackson, Michigan, its officers. agents, successors, and
assigns, shall take the action set forth in the said rec-
ommended Order.
DECISION
STATEMENT OF THE CASE
JENNIE M. SARRICA, Administrative Law Judge: This is a
proceeding under Section 10(b) of the National Labor Rela-
tions Act, as amended (29 U.S.C. 151. et seq.), hereinafter
referred to as the Act. Based on charges filed on July 13.
1977,1 a complaint was issued on August 22. presenting al-
legations that Consumers Power Company, hereinafter re-
ferred to as Respondent, committed unfair labor practices
within the meaning of Sections 8(a( 1) and (3) and 2(6) and
(7) of the Act. Respondent filed an answer denying that it
committed the violations of the Act alleged. Upon due no-
tice, the case was heard before me at Grand Haven. Michi-
gan, on January 11, 1978. Representatives of all parties en-
tered appearances and had an opportunity to participate in
the proceeding.
Based on the entire record, including my observation of
the witnesses, and after due consideration of briefs and ar-
guments. I make the following:
t All dates are in 1977 unless otherwise indicated
CONSUMERS POWER COMPANY
FINDINGS VNI) CoN( I SIONS
I. JitRISI)( ION
Respondent. a Michigan corporation with principal ofI
fices in Jackson. Michigan, is engaged as a public utilit\
providing gas and electric power to the Lower Peninsula of
the State of Michigan. Respondent has an installation
known as the B. C. Cobb plant at Muskegon. Michigan. the
facility involved herein. During the sear preceding issuance
of the complaint, a representative period. Respondent. in
the course and conduct of its business operations. received
gross revenues in excess of $1 million and purchased and
caused to be transported and delivered at its Michigan in-
stallations goods and materials valued in excess ofs S100.(X()
of which goods and materials valued in excess of $i5.(XX)
were transported and delivered to its Michigan installations
directly from points located outside the State of Michigan.
Respondent admits and I find that it is now. and has
been at all times material herein. an employer within the
meaning of Section 2(2) of the Act engaged in commerce
and in operations affecting commerce within the mening
of Section 2(6) and (7) of the Act.
i. rl I.AB(IR ORLANI/A I I()N
The Charging Party. Local 103, Utility Workers of
America, AFL-CIO, hereinafter referred to as the Union. is
now, and has been during all times material herein, a labor
organization within the meaning of Section 2(5) of the Act.
III. FINDIN(iS AND (ONCI.USIONS
A. The Issues
1. Did the contract grievance provisions give rise to a
waiver of a union steward's right to investigate a complaint
thereunder in any manner other than that speciticall set
forth?
2. Did Respondent have a rule or practice governing job-
time release of union stewards to investigate grieoance com-
plaints which required separate specific permission to vieA
the locus of a complaint?
3. Does an oral and written reprimand of a union stew-
ard for performing his stewardship require an affirmatixe
showing of an unlawful motive?
4. Was the reprimand justified in the interest of indus-
trial discipline because of the language used in the steward-
supervisor exchange?
B. The Events Involved
Wendell Bradfield. an employee of Respondent since
1964 and a qualified welder in the maintenance depart-
ment. is one of 12 stewards of Local 103 at the B. C(. (Cobb
plant. who are charged with the responsibility of adminis-
tering the collective-bargaining agreement between Re-
spondent and Utility Workers Union of America. AlFI
CIO. having been so designated in 1975. On June 23. 1977,
employee Doug McComb. a mobile equipment operator in
the fuel handling department, reported to Bradfield that he
had been told by Fuel Handling Supervisor ouis Oswald
245 NLRB No. 42
183
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to get the porcupine out of the bunker room, to take it to
the garage, and, with employee Dave Van Loon, a coal
conveyor operator, to fix it.2 McComb also told Bradfield
that Van Loon was, at that time, in the garage performing
welding on the porcupine. Bradfield told McComb he
would take care of the problem.' Bradfield then contacted
his own supervisor and requested that arrangements be
made for him to have an informal meeting with Louis Os-
wald on union business. Later that day his supervisor in-
formed Bradfield that it had been arranged for him to meet
with Oswald in the latter's office at 7:30 the following
morning--Bradfield's normal work-reporting time.
On June 24 Bradfield went directly to Oswald's office, in
the garage area, which is located 500-600 feet from the
plant building, where Bradfield worked. In the conversation
which followed concerning the complaint, Oswald was both
uninformative and uncooperative and displayed an attitude
that was both evasive and agressive.
4 He abruptly termi-
nated the interview with the observation that they were not
getting anywhere, to which Bradfield agreed, and Bradfield
left the office, proceeding from there to the garage proper to
verify that the welding had been done there before he filed
a written grievance concerning the matter.' The garage area
is located some 100 feet from Oswald's office and in a direc-
tion away from the plant. Oswald observed Bradfield's di-
rection and followed.
Bradfield was making physical inspection and observa-
tions relating to the evidence of welding and the presence of
porcupine spikes when Oswald came up from behind and,
in rough and stern language, challenged Bradfield's right to
be there. When Bradfield asserted that he was not talking to
anyone and that he had authorization from his supervisor
to be there, Oswald demanded the name of his supervisor,
which Bradfield supplied. Oswald asserted that he was
going to call the supervisor and "find out." As Oswald took
up the phone and, unable to contact the named supervisor
directly, began paging the maintenance department super-
visor, Bradfield left the garage, responding as he departed,
"I don't give a fuck who you call."
6
2 The porcupine is a steel object weighing approximately 300 pounds,
made of half-inch-thick plate and having 6-inch spikes welded so as to pro-
trude all around it, and attached to a long bar. The porcupine is dropped by
the bar into the bunkers, where it is utilized to scrape the walls and to
dislodge the coal. Welding was necessary in order to affix the porcupine
spikes, and neither McComb nor Van Loon is a welder.
Although some question was raised at the hearing as to whether the
Union steward who worked in the fuel handling department, instead of
Bradfield, should have been the one contacted, ample evidence of record
establishes that no restriction existed specifying the steward to be consulted.
Further, as Respondent has not pursued this argument in its post-hearing
brief, such argument is presumed abandoned.
'These characteristics are apparent from the record testimony of both
Bradfield and Oswald as to what was said, and supportive confirmation of
this conclusion was apparent in the demeanor of Oswald at the hearing. The
variations in their respective versions of this exchange are not significant to
this conclusion.
5 It was readily admitted at the hearing that such welding was being done.
The issue which developed in the subsequent grievance related to a dispute
concerning jurisdiction over such work under the existing contract.
6 Oswald testified that as Bradfield was walking out of the garage he said,
"Go fuck yourself, you can make all the calls you want." Bradfield denied
this. Bradfield was a candid and straightforward witness, whereas Oswald
displayed an attitude of antagonism and arrogant righteousness. Moreover.
Oswald admitted that when Bradfield made the claimed remark the latter
That afternoon Bradfield was summoned by Assistant
Maintenance Supervisor Fred Steel for a disciplinary inter-
view, which was followed by a written reprimand dated
June 27, reading as follows:
On June 24, 1977, you obtained permission to see L.
Oswald on an alleged difference regarding the interpre-
tation of the Contract. When you finished your discus-
sion with Mr. Oswald, you did not return to your job,
but went to the equipment repair area without permis-
sion of your supervisor. In addition, you directed abu-
sive language to Mr. Oswald when you were ques-
tioned about being in the equipment repair area
without permission.
This is a written reprimand to inform you that we
will not tolerate your above actions and if they occur
in the future, you will receive more severe disciplinary
action, which may include discharge.
Testimony of Bradfield and other union stewards indi-
cates that at the informal stage of the grievance procedure
the steward must receive permission from his supervisor to
meet and discuss the subject matter of a complaint with any
other supervisor involved and that such permission includes
such absence by the union steward from his work station as
may become necessary to otherwise investigate the subject
matter of a complaint.
Respondent's personnel director, Paul Panzer, testified
that the Company's procedures for releasing union stewards
from regular assignments to conduct "informals," or to in-
vestigate possible grievances, are for the steward to obtain
the permission of his immediate supervisor, who in turn
makes the arrangement with the supervisor in the other de-
partment involved. According to Panzer, once the union
steward has reported to the "other supervisor," he becomes
the responsibility of that other supervisor, and "wherever
he goes from that point is up to that other supervisor to
determine." Panzer stated that he has made supervisors
aware of this procedure. Panzer further testified as to the
reason for this procedure: "We also have to know where
our employees are in case we need them
7 and, of course,
this very activity does take other employees away from
their job." If a union steward wants only to speak with an
employee in another department, according to Panzer, he
must go through the same channels so that the union stew-
ard's supervisor will know where he is and also so that the
supervisor at the other location can make arrangements to
take the employee involved away from his work. Panzer
admitted he never told union stewards that they had to
obtain separate permission from their immediate supervisor
to talk with another supervisor and also to view the job area
involved. Maintenance Department Supervisor Fred Steel
similarly admitted he had never told Union Steward Brad-
field or Chief Union Steward Daniel Meier (both of whom
was going out the door some 40-50 feet away with his back to Oswald and
that Oswald was on the phone and just then turning around toward Brad-
field. Also at that time there were other industrial sounds, and Oswald ad-
mitted he could hear the machines operating on the coal pile. I credit Brad-
field's version of this exchange.
I The record establishes undisputedly that a call over the loudspeaker sys-
tem can immediately reach anyone at any place on the plant property and
that maintenance department craftsmen frequently perform their duties
throughout the plant.
184
CONSUMERS POWER COMPANY
are under his supervision), or any other union steward, that
he would need to obtain separate permission to view the
work area involved when he obtained permission to see an-
other supervisor on union business.
Contract language offered as relevant to the situation
herein provides:
ARTICLE III
Grievance Procedure
Section 1. Should any difference arise between any
employee or employees and the Company as to the
meaning or application of the terms and provisions
hereof, such differences should normally be adjusted
by direct contact between the employee or employees
and his or their immediate supervisor. Where any such
difference is not or cannot be adjusted in the normal
way, the employee or employees involved may refer
the difference to his or their authorized local union
representative, who shall endeavor to settle the difference
informally with the immediate supervisor .... If not so
settled, it shall be formally disposed of in the following
manner:
Step 1. The difference (hereinafter referred to as the
grievance when placed in writing) shall be promptly
placed in writing by the authorized representative or
representatives of the local union and submitted to the
superintendent of the plant or head of the department
of the Company Division in which the affected em-
ployee or employees work. Such superintendent or de-
partment head shall thereupon agree to a meeting for
the consideration of the grievance at the earliest agree-
able time not later than five days after he shall have
received the grievance ....
Step 2. If the grievance is not settled in Step I, the
Local Union Grievance Committee shall, within five
days after the completion of the meeting or meetings
referred to in Step I, submit the grievance to the ap-
propriate Division Manager ... who shall, as promptly
as possible, but within five days after the grievance is
submitted to him, meet with that committee ....
Section 2. Either of the parties hereto may have pre-
sent at the meetings provided in Steps I and 2 of Sec-
tion I hereof, any person or persons it may consider
necessary to the proper consideration and settlement of
the grievance. It is the desire of all parties to keep such
representation at a minimum and the number of em-
ployees, designated by the local union through its Pres-
ident, who shall suffer no loss of their straight-time pay
while attending such meetings will be limited to five.
Reasonable time shall be set aside for the holding of
such grievance meetings. In the event the investigation
of any grievance or attendance at any meeting referred to
in Section I hereof does not require an employee to
leave the municipality in which he works or its imme-
diate surrounding vicinity, he shall suffer no loss of his
straight-time pay. Further, in the event the investigation
of any grievance or attendance at any meeting referred to
in Section I hereof does not require the Local Union
President to leave the jurisdiction of the local union, he
shall suffer no loss of his straight-time pay. In no event.
however, shall an employee leave his job for either i!'
such purposes without prior consent of his immediate
supervisor. [Emphasis supplied.]
C. Positions ql thc Partries
Admittedly Bradfield. in his role of union steward. was
investigating a complaint or "difference" preliminary to the
preparation of a written grievance. which *was later filed
and processed, and Respondent knew this to be his mission.
The General Counsel contends that the discipline of Brad-
field for engaging in this protected concerted activity was a
violation of Section 8(a)( I }) and (3) of the Act.
The contract was presented as a joint exhibit. With re-
spect to the quoted provisions thereof, the General Counsel
contends that the reference in section 2 to "prior consent"
relates only to steps I and 2 of section 1. and not to the
"informal" stage of handling a "difference," which is cov-
ered by the first paragraph of section I the activity in
which Bradfield was engaged. In support of his interpreta-
tion, the General Counsel points to the act that the con-
tract term "meeting" is not used until steps I and 2 of sec-
tion 1. Inferentially, it is argued that "endeavorts] to settle
the difference informally" are not "meetings." but are acts
which fall within the generic term "investigation of any
grievance," and that this was what Bradfield was engaging
in both when he was discussing the "difference" with Os-
wald and when he was viewing the situs of the complaint, a
purpose for which he had obtained prior consent from his
immediate supervisor, whether or not it was required.'
Contrary to the contention of the General Counsel. it is
Respondent's position that if Bradfield was "investigating a
grievance," the last quoted portion of article Ill. section 2,
requires that an employee obtain separate permission for
either attending a meeting or conducting a grievance inves-
tigation, and Bradfield did not obtain separate permission
to investigate a grievance. However. Respondent asserts
that, in reality. Bradfield was investigating a "difference"
and that "Article III does not permit paid9 absence from
work to investigate differences at the informal stage of the
grievance procedure .... The only permissible paid absence
from work to investigate is an absence to investigate 'griev-
ances' .... Grievances have been defined by the Employer
and the Union in Article III, Section 1, Step I as a differ-
ence which has been placed in writing. Thus, until such
time as a difference has been placed in writing, an employee
is not permitted paid time off for investigation."
I agree with the General Counsel that subsequent revisions of the con-
tract grievance provisions which ma) have established the right of the nlion
to investigate differences prior to the filing of a written grievance are irrele-
vant here.
I Emphasis is Respondent's. It is argued that sec. 2 sets forth "the proce-
dure to be followed for paid time off to attend informal meetings Step I and
2 meetings and for the investigation of grievances. Art. VII. sec 2 of thai
agreement provides for remporar absence from dun ithou pat i transact
business for the Union." but since Bradfield's absence "for the purpose of
conducting an informal meeting with Oswald ... entailed paid time off from
work" under sec. I of art. 111, art. Vll is inapplicable Aside from the appar-
ent inconsistency of this argument with what I have interpreted as the final
contract contention of Respondent, I find that the question otf whether Brad-
field was or was not entitled to pa? is not in issue here. nor do I ind .iglllf-
icant the tact that no pay was taken a part of the reprimand
185
I)V.( ISIONS O() NAII ()NAI. ,ABOR RIAlIONS BOARI)
Thus. in the final analysis. both the General Counsel and
Respondent appear to be taking the position that the spe-
cific contract provisions do not themselves resolve the issue
here. But Respondent contends that since '"Article III of the
collective-bargaining agreement does not permit absence
from work to investigate differences at the inormal stage o
the grievance procedure." by signing the agreement the
Union effectively "waived whatever right represented em-ployees may otherwise have had to absent themselves from
their jobs without specific permission to investigate differ-
ences or grievances [and] the Union clearly waived what-
ever statutory right it might otherwise have to investigate
differences, without specific prior permission from the m-
ployer." Such a contractual waiver, asserts Respondent.
"permits the mployer to require that employees obtain
separate permission to 'investigate' [and] the enforcement of
this contractual right by the Employer is no more discrini-
natory than the enforcement of a no-strike clause." Apply-
ing this line of reasoning. Respondent asserts that when
Bradfield went to the equipment repair area. he "placed his
activity outside the ambit of protected activities and thus
subjected himself' to discipline." as he had not previously
obtained separate specific permission "for time off to inves-
tigate any difference or to he in the equipment repair area
for any purpose."
Further, Respondent asserts that even if there was no
contractual waiver here, in view of the failure of the (Gen-
eral Counsel to present specific evidence of intent to dis-
criminate and its own assertion of a business motivation
"for requiring permission to investigate." there was no vio-
lation because the effect on employees was very slight, and
the reprimand involved was not "inherently destructive of
important employee rights," as it did not involve a dis-
charge or a "time-off penalty," but was merely a matter of
the Employer "insisting on its contractual rights."' Finally.
and in any event, Respondent relies upon the right of the
Employer, in the interest of industrial discipline, not to tol-
erate verbal abuse of supervision by subordinates.
D. Analys is and Findings
Considering first the quoted contract provisions, I find
the terminology used in the first paragraph of article 1II,
section 1, as distinguished from that contained in subse-
quent provisions, so uniquely distinct as to require the con-
clusion that the words "investigation." "grievance," and
"meeting" were deliberately avoided. Instead we find such
terms as "differences," "direct contact," and "endeavor to
settle informally," which convinces me, in agreement with
what I interpret to be the positions of the parties, that the
conditions contained in the procedures for handling written
grievances, including the "prior consent" portion of section
2, do not clearly cover, and indeed, arguably, were intended
not to apply to, "endeavors to settle the difference infor-
l0 Respondent argues that il employees are unhappy with the effect of the
contract. they can demand a change during negotiations, or if they disagree
with the Employer's interpretation, they can challenge it through the griev-
ance and arbitration provisions. While future problems of this t ype ma, have
been eliminated through subsequent contract negotiations see n. 8, .upra).
this argument has no bearing on the violation alleged.
mallv" before it became a written grievance. ' Thus, and for
this reason I find that the contract did not establish specific
procedures for such "endeavors" as Bradfield was admit-
tedly engaging in and lor which he was disciplined.
Nor can I find in contract provisions which did relate tothe activity involved a clear and unmistakable waiver of
the union steward's right to "endeavor to settle differences
inormall yI" on company time ''without specific prior per-
mission from the Employer." Indeed. the first paragraph of
section I. directing that the local union representative
"shall endeavor to settle the difference informally with the
immediate supervisor" suggests, if anything. that the union
steward should act promptly, and presumably during work-
ing hours." Absent from such directive is any requirement
for the union steward to obtain permission to cease the
assigned job duties during such endeavor--with or without
pay and whether in his own department or elsewhere in the
plant. I find that the union steward was not prohibited,
either specifically or inferentially, by the contract from per-
forming these aspects of' his union steward duties on Re-
spondent's time. Accordingly, I find Respondent's reliance
on waiver misplaced.
This, however, does not mean that a union steward has a
right to neglect his work assignent at w ill in order to "en-
deavor to settle a difference infrmally." The Board has
long recognized an employer's legitimate interest in the et-
etctive utilization of working time and has sought to accom-
modate such interest while protecting the legitimate statu-
tory rights of employees. Thus, an employer may, in
appropriate circumstances, make and enforce reasonable
rules.' Through the testimony of Personnel Director Pan-
zer. Respondent has attempted to establish the existence of'
such a rule.
Evaluation of Panzer's testimony does not convincingly
establish that Respondent's procedures for releasing union
stewards from job assignments to investigate possible griev-
ances required, in addition to permission to go to another
department and confer with that supervisor, separate spe-
cific supervisory permission to view objective evidence at
the location of the complaint. The reasons advanced for the
alleged limitation of movement relate only to the need for
the union steward's supervisor to arrange for his absence
from his work location and to know where he could be
reached and for the other departmental supervisor's avail-
ability for conferring and/or to relieve an employee under
his supervision from assigned job duties to make him simi-
larly available to the union steward. Clearly, the speaker
1 Where the contract language is subject to conflicting interpretations and
inferences with respect to coverage thus leaves the intention of the parties indoubt and where a right protected by the Act is insolved. we must conclude
that the matter is not governed by the contract provisions. See, e.g., .. R.B.
v Wisconsin Aluminum Foundo' Co. Inu., 440 F.2d 395 (7th Cir. 1971 cited
by Respondent.
12 See, e.g., The Item Compan,. 220 F.2d 956 / 5th Cir.}. enfg. 108 NLRB
1634. cert. denied 350 U S. 836, rehearing denied 350 U.S. 905.
I) Indeed, "it would have been patently futile for Ithe union stewardl to
have inspected the job at any time other than during working hours." See
& I. Painting o., 174 NLRB 91 1 (1969).
" See Cameron Iron Works, Inc. 194 NLRB 168 (1971).
See discussion and cases cited in Hoerner Wuldor( (',rpor ation, 227
NI.RB 612 (1976}. The right to administer a cillectie-bargaining agreement
is no less basic to Section 7 rights than the right to organize fr without the
ftrmer. the latter becomes futile.
!86
CONSUMERS POWER COMPANY
system operative throughout the plant area afforded ample.
immediate contact with the absent steward should his pres-
ence be required at his own department. and viewing a
work area without conferring with any employee would not
take "other employees away from their jobs" -another sup-
posed reason for the requirement.
Nor do I find that the union stewards, when the, entered
other departments with their own supervisors' permission
and prearrangement with the counterparts in the visited de-
partments, became subject to the direction of those other
supervisors as to where they might go in those departments
to observe conditions, as asserted by Panzer. If this were the
procedure, there would be no explanation as to why Oswald
made inquiry of Bradfield concerning whether he had ob-
tained such permission from his maintenance department
supervisor, nor would there be any explanation as to why it
was Supervisor Steel of maintenance, instead of Oswald.
who conducted the disciplinary interview and issued the
written warning if Bradfield in fact was then subject to Os-
wald's supervision. I am persuaded that Panzer's testimony
was cast in this fashion in an attempt to support the argu-
ments advanced by Respondent" and that Respondent's ac-
cepted practice in fact required only supervisory release of
a union steward from assigned job duties to enable him, on
company time, to endeavor to settle differences informally
and the supervisor's cooperation in arranging for the avail-
ability of other supervisors and employees. I further find
that such established practice or informal rule permitted
"onsite" inspection or other steps deemed necessary to the
steward's "endeavor to settle a difference informally"
within the ambit of any permission granted a union steward
for relief from regularly assigned duties to pursue such a
mission. This conclusion is consistent with the testimony of
the union stewards, whom I credit as to the manner in
which they conducted union affairs at the informal stage of
a complaint or grievance." Accordingly, I find that Brad-
field acted in accord with the established practice when,
after obtaining permission to be absent from his depart-
ment to pursue his union steward duties at the "informal"
stage, he "conferred with the immediate supervisor" in the
department involved in the "difference" and then pro-
ceeded to that situs in that department to inspect for infor-
mation relating to that "difference."'" It follows that when
Bradfield received an oral reprimand and a written warning
of more severe disciplinary action "which may include dis-
charge" for his presence in the garage area of the fuel han-
dling department, he was engaged in the protected con-
certed activity of administering the collective-bargaining
agreement by processing a complaint thereunder. Such dis-
ciplinary actions taken by Respondent's supervisors consti-
I base this credibility finding in part upon a distinct impression during
his testimony that Panzer was attempting to weigh each answer not against
recollection of facts or knowledge of procedures, but against how his answer
might affect the issues in the case. A candid spontaneity was conspicuously
absent.
J' Whether or not Panzer ever mentioned his version of an alleged rule to
Respondent's supervisors has little consequence here, where admittedly there
was no written rule, and no mention of an oral rule was ever made to any
union steward.
" Clearly, had Bradfield found no evidence of welding and no porcupine
spikes to support the complaint, this alone may have "settled" the matter
without proceeding to the formal or written stage.
tute interference, restraint, and coercion within the mean-
ing of Section 8(a)( I ) of the Act and discrimination for
engaging in union activities within the meaning of Section
8(a)(3) thereof.l
I find no merit in Respondent's contention that the Gen-
eral Counsel failed to establish the Section 8(a)(3) violation
alleged b not presenting specific evidence of an unlawful
motive. In Great DaneO? upon which Respondent relies, the
Supreme Court reiterated :and restated the applicable rule
of law thus:
First, if it can reasonably be concluded that the em-
ployer's discriminatory conduct was "inherently de-
structive" of important employee rights, no proof of an
antiunion motivation is needed and the Board can find
an unfair labor practice even if the employer intro-
duces evidence that the conduct was motivated by
business considerations. Second. if the adverse effect of
the discriminatory conduct on mployee rights is
"comparatively slight." an antiunion motivation must
be proved to sustain the charge if the employer has
come forward with evidence of legitimate and substan-
tial business justifications for the conduct. 'Ihus, in ei-
ther situation, once it has been proved that the em-
ployer engaged in discriminatory conduct which could
have adversely affected employee rights to some extent.
the burden is upon the employer to establish that he
was motivated by legitimate objectives since proof of
motivation is most accessible to him.
Clearly, the administration of the collective-bargaining
agreement's grievance procedure provisions qualifies as an
"important" Section 7 right. Indeed it has been labeled
both basic and fundamental. Without this right. protection
of any preceding and supportive concerted activit 3 becomes
useless and a sham. Interfering with and discriminating
against a union steward for pursuing his responsibilit in
this respect, of necessity. has a significant effect upon em-
ployees and is inherently destructive of important employee
rights, for it threatens to reduce all of their protected ac-
tivit,, to an exercise in futility. Respondent's knowledge that
Bradfield's mission was an "endeavor to settle a difference"
under the contract's grievance provisions is, in these cir-
cumstances, sufficient to hold Respondent accountable for
the "unavoidable consequences" of its action and to deem
its conduct "proscribed, without need for proof of an un-
derlying improper motive."' Thus, I conclude that the vio-
lation is established under the first paragraph of the rule as
restated in Great Dane, supra. Even if Respondent's alleged
reasons for a rule requiring supervisory release from job
duties should appropriately be considered here as an al-
leged business justification for administering an oral and
written reprimand to a union steward for viewing the situs
of a complaint without separate specific supernisorv permis-
sion to do so., I would find such a justification specious.
Aside from my finding that no such rule requiring separate
permission existed, the undisputed facts reveal that Brad-
field's supervisor knew that Bradfield could be located in
i See Chrs.rler Corporation, 228 NLRB 486. 490 (19771.
° '.L R B. v. Great Dane Tralers, Inc.. 388 U.S. 26, 34 (1967)
12 Cf. the discussion of this rule contained at pp. 1512 14 of Jorgemen's
Inn, 227 NLRB 1500 1977)
187
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the fuel handling department; Supervisor Oswald knew
where, in that department, Bradfield could be located; and
Bradfield did not speak to or disrupt the work of any em-
ployee (indeed, there is no evidence that any other em-
ployee was present in the immediate vicinity). Thus, the
business considerations advanced as justification for the al-
leged rule, in any form, were satisfied.
There remains Respondent's contention that the repri-
mand was justified because of the language used by Brad-
field in his departing remark to Oswald. Clearly, this re-
mark was part of the res gestae of the efforts being made by
Bradfield to "settle a difference informally." Therefore it
was in the context of protected concerted activity 22 and was
not "so approbrious [sic]" as to cause the loss of the Act's
protection." I find Respondent's reliance upon thisjustifica-
tion without merit.24
CONCLUSIONS OF LAW
I. Respondent is an employer within the meaning of Sec-
tion 2(2) of the Act and is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. By orally disciplining and by issuing a written warn-
ing to Wendell Bradfield for his union steward activities of
administering the grievance provisions of the collective-bar-
gaining agreement, Respondent has interfered with, re-
strained, and coerced its employees in the exercise of rights
guaranteed them in Section 7 of the Act and thereby com-
mitted unfair labor practices within the meaning of Section
8(a)(1) of the Act. By the same conduct Respondent has
discriminated against Wendell Bradfield with respect to
terms and conditions of employment for engaging in pro-
tected concerted activities, thereby discouraging member-
ship in the Union, in violation of Section 8(a)(3) of the Act.
4. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
REMEDY
Having found that Respondent engaged in certain unfair
labor practices, I shall recommend that it cease and desist
therefrom and take certain affirmative actions designed to
remove the effects of the unfair labor practices and to effec-
tuate the policies of the Act.
Upon the foregoing findings of fact and the entire record
in this proceeding, I make the following recommended:
22 See Thor Power Tool Company. 148 NLRB 1379 (1964), enfd. 351 F.2d
584 at 586-587 (7th Cir.).
· "Within the confines of a grievance meeting, it would require severe
conduct indeed to convince us that the interests of fair give and take between
equal parties to bargaining could be justifiably submerged." Crown Central
Petroleum Corporation v. N.L.R.B., 430 F.2d 724, 727, 731 (1970), enfg. 177
NLRB 322 (1969).
I find that the parting remark cannot be severed from the context of the
activity and that the specific mention of this offense in the written warning
does not establish it as a separate and severable reason for the reprimand. I
need not, therefore, discuss the effect of the evidence that Bradfield's epithet
was no rarity in the language of the plant.
ORDER25
The Respondent, Consumers Power Company, Jackson,
Michigan, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Orally reprimanding employees or issuing written
warnings of more severe disciplinary action "which may
include discharge" for engaging in protected concerted ac-
tivities.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of rights
guaranteed to them by Section 7 of the Act or discouraging
membership in a union by discriminating against them for
engaging in protected concerted activity.
2. Take the following affirmative action, which will effec-
tuate the policies of the Act:
(a) Rescind in its entirety and expunge from his record
the written warning issued to Wendell Bradfield on June 27,
1977.
(b) Post at its B. C. Cobb plant at Muskegon, Michigan,
copies of the attached notice marked "Appendix."26 Copies
of said notice, on forms provided by the Regional Director
for Region 7, after being duly signed by Respondent's rep-
resentative, shall be posted by Respondent immediately
upon receipt thereof, at the location noted above, and be
maintained at such location 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 no-
tice is not altered, defaced, or covered by any other mate-
rial.
(c) Notify the Regional Director for Region 7, in writing,
within 20 days from the date of this Order, what steps Re-
spondent has taken to comply herewith.
25 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.
26 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."
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 both sides and the opportunity to
present their evidence, the National Labor Relations Board
has found that we violated the law and has ordered us to
post this notice.
WE WILL NOT orally reprimand you or your union
steward or issue written warnings of more severe disci-
plinary action, which may include discharge, for en-
gaging in protected concerted activities.
WE WIL.L NOT in any like or related manner interfere
with, restrain or coerce you or your union steward in
188
CONSUMERS POWER COMPANY
the exercise of rights guaranteed you by Section 7 of
the National Labor Relations Act.
WE WILL NOT discourage union membership by dis-
criminating against any employee or union steward
with respect to terms and conditions of employment
for engaging in protected concerted activities.
WE WILL rescind and remove from his record the
oral reprimand and written warning issued to Wendell
Bradfield for observing the location of a complaint
while trying to settle a difference at the informal stage
of the contract grievance procedure.
CONSUMERS POWER COMPANY
189