Detroit edison Co.

National Labor Relations Board - Board Decisions

Apr 23, 1979

241 N.L.R.B. 1086 (N.L.R.B. 1979)

D)ECISIONS OF NATIONAL LABOR RELATIONS BOARD
T'he Detroit Edison Company and George Coros. Case
7 CA 14564
April 23, 1979
DECISION AND ORDER
BY MEMBERS PNE.I.(), MURPHY, ANt) TRUESI)ALE
On December 11, 1978, Administrative Law Judge
Thomas D. Johnston 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 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
conclusions2 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 Rela-
tions Board adopts as its Order the recommended Or-
der of the Administrative Law Judge and hereby or-
ders that the Respondent, The Detroit Edison
Company, Detroit, Michigan, its officers, agents, suc-
cessors, and assigns, shall take the action set forth in
the said recommended Order.
I Respondent has excepted to certain credibility findings made by the Ad-
ministrative 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. Slandard Dry Wall Products. Inc.. 91 NI.RB 544
(1950)., enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the
record and find no basis for reversing his findings.
I Member Murphy believes that the employee's comments In the course of
the grievance discussion are also protected by the first amendment to the
Constitution. See William C. Linn v. United Plant Guard Workers ofA.4mrica.
Lxcal 114, et al. 383 IUS. 53 (1966).
DECISION
SIATEMENI OF rtMe CASE
THOMAS D. JOHNSTON, Administrative Law Judge: This
case was heard at Detroit. Michigan, on April 10. 1978.
pursuant to a charge filed on November 1, 1977,' by George
C'oros, an individual, and a complaint issued on December
16.
The complaint alleges that The Detroit Edison Company
(herein referred to as the Respondent) violated Section
8(a)(1) of the National Labor Relations Act, as amended
(herein referred to as the Act), by suspending George Coros
I All dates referred to are in 1977. unless otherwise stated.
lor 1-1/2 days due to his actions in attempting to process a
grievance under the collective-bargaining agreement.
The Respondent. in its answer dated December 21, de-
nies having violated the Act.
The issues involved are whether Coros was engaged in
protected concerted activity under the Act in attempting to
process a grievance under the collective-bargaining agree-
ment and whether he was discriminatorily suspended for
that reason in violation of Section 8(a)( ) of the Act.
Upon the entire record in this case, from my observations
of the witnesses, and after due consideration of the oral
argument by the General Counsel and the brief filed by the
Respondent, I hereby make the following:2
FINDINGS OF FA(CI
I. IlE BUSIN: SS O()F Il RiSPO()Nl)NI
Respondent, a Michigan and New York corporation, is a
public utility engaged in the generation, sale, and distribu-
tion of electrical energy within the State of Michigan, in-
cluding the operation of a facility located at Detroit, Michi-
gan, which is the only facility directly involved in this
proceeding.
During the calendar year 1976, a representative period,
the Respondent purchased supplies valued in excess of $5
million from outside the State of Michigan which were
shipped directly to its facilities located in Michigan. It also
sold electrical energy valued in excess of $250 million, to
customers within its service area, which includes an ap-
proximate 11-county geographical area within and sur-
rounding the Detroit, Michigan, metropolitan area.
Respondent is an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
II. IE LABOR OR(iANIZ.A'IION INVOLVED
Local 223, Utility Workers Union of America, AFL CIO
(herein referred to as the Union), is a labor organization
within the meaning of Section 2(5) of the Act.
ll. i t UNFI-AIR LABOR PRA( Ii ES
A. Background and the Suspension o Coros
The Respondent is a public utility engaged in the genera-
tion, sale, and distribution of electrical energy. It has a fa-
cility located at Detroit, Michigan, which is the only facility
involved in this proceeding. Included among its supervisory
personnel at the facility are Superintendent Robert Meyer,
Shop Supervisor Martin Clark,3 and General Foreman
Jesse Moore.
The Union is the bargaining representative of certain em-
ployees employed at the Respondent's facility. During the
times in issue here there was a collective-bargaining agree-
ment in effect between them.4 This agreement contained
2 Unless otherwise indicated. the findings are based upon the pleadings,
admissions, stipulations, and undisputed evidence contained in the record,
which I credit.
Both Superintendent Meyer and Shop Supervisor ('lark are superslsors
under the Act.
' his collective-bargaining agreement was effective Irom June 10. 1975,
through June 12. 1978.
241 NLRB No. 186
1086
DETROIT EDISON CO.
grievance procedures which provided, in pertinent part, un-
der article IV, as follows:
Section 2. Grievances. a. Discussion with Immediate Su-
pervisor. Should any disagreement arise between any
employee or employees covered by this Agreement and
the Company, it shall be deemed a grievance. It shall
be discussed by the employee or employees and his or
their immediate supervisor, either personally, or with
or through his or their Union representative. No griev-
ance that has been discussed with or through a Union
representative will be adjusted unless a Union repre-
sentative is present, or has been offered the opportuni-
ty to be present.
George Coros, who is the alleged discriminatee, has been
employed by the Respondent since August 1970. He is a
member of the bargaining unit and is also a member of the
Union and has served as the Union's shop steward since
1972.
Ronnie Kinney, who is also employed by the Respon-
dent, is the Union's chief steward. His duties as chief stew-
ard include handling the grievances of the stewards, includ-
ing Coros.
Coros testified that in the middle of October he was off
work for medical reasons. Upon reporting to work on Octo-
ber 31, he had a meeting with General Foreman Moore,
Shop Supervisor Clark, and the Union's division chairman,
Don Dinkleman, for the purpose of furnishing proof re-
garding his absence from work. During this meeting he ex-
perienced pains in his chest and asked for permission to use
the office telephone to call his doctor for an appointment
because his chest was hurting him. Clark denied his request
to use the office telephone and told him if he wanted to
make a telephone call he would have to go out in the hall-
way and use the pay telephone. Coros stated that after tell-
ing Clark he thought that Clark was discriminating against
him as a union official by not letting him use the telephone,
which was the same privilege offered other men on the
floor, and that he disagreed with Clark's refusal, he then
went and used the pay telephone, which was located ap-
proximately 40 to 50 feet from the office where the meeting
was held. Neither General Foreman Moore nor Shop Su-
pervisor Clark, who both testified as witnesses for the Re-
spondent, testified concerning this conversation, and I
credit Coros' undisputed testimony about what transpired
at this meeting.
Chief Steward Kinney also credibly testified without de-
nial that the policy had been to allow employees to use the
office telephone for personal calls, including calling their
doctors.
According to both Coros and Chief Steward Kinney, the
next morning Coros reported the incident to Kinney' and
requested that a grievance be filed.
Kinney and Coros, consistent with the grievance provi-
sions of the collective-bargaining agreement referred to su-
pra, then had a conversation with Clark, who was Coros'
immediate supervisor, to discuss the grievance. This conver-
Shop Supervisor Clark acknowledged he had given Kinney, pursuant to
Kinney's request, permission that morning to talk to Coros. However, Kin-
ney acknowledged he did not inform Clark the reason he wanted to talk to
Coros.
sation occurred on the shop floor about 8:30 a.m. No one
else besides the three of them were present.
Coros testified Chief Steward Kinney told Shop Supervi-
sor Clark he would like to have a minute to discuss a griev-
ance with him concerning the incident that happened yes-
terday. After Clark asked Kinney whether he wanted to go
into the office or stay there, Kinney replied that what he
had to say wouldn't take long. Kinney then told Clark that
he had been harassing Coros, his steward, for the past 3
weeks or so,6 and he wanted to put a stop to it and if Clark
did not put a stop to it the Union would go through the
grievance procedure. Coros testified that he himself then
said to Clark, "Marty, you been --- ' with me," which
statement he repeated several times, and then said "What is
it, do you want my job? If you want my job you might get
it but it's not going to be easy for you to get it, to get my
job." Clark then asked Coros whether that was a threat,
whereupon he replied, "I just promise you that I'll fight you
for my job. You know, I'm doing my job as a union [sic]
and I will pursue this. I will not let you take my job from
me as such." Clark again asked if that was a threat, where-
upon he again replied, "No, that's a promise." Coros stated
Kinney then remarked there was no threat involved there
and told him they would go and discuss it with manage-
ment, whereupon they left.
Both Coros and Kinney, who substantially corroborated
Coros' testimony concerning this conversation, denied
Coros threatened Clark on that occasion.
Shop Supervisor Clark's version of the conversation, on
direct examination, was that Kinney told him he would like
to ask a couple of questions regarding the use of the tele-
phone and his refusal to allow Coros to use it, whereupon
he replied if Kinney wanted to have a discussion they
would have it in the office. According to Clark, Coros then
said, "You're ---- with me," and after repeating the
statement several times said, "You may get me out of here.
It may not be so pleasant for you either." Upon his asking
Coros if that was a threat, Coros replied "No, that's a
promise." Clark, who described Coros as talking loud and
appearing angry,' acknowledged he wasn't upset at the mo-
ment but stated he got more upset after he went to his
office, where he got his thoughts together. Clark stated he
believed Coros was threatening him on November I when
he made the statements because of Coros' past behavior in
threatening other supervisors and employees. 9
Under cross-examination Clark, upon being asked what
statement by Coros he perceived to be the threat, answered,
contrary to his direct testimony, "You may get me out of
here. It won't be easy for you either." Clark then acknowl-
6The only evidence proffered about alleged harassment concerned the
telephone incident the previous day.
7 The omitted word. which is also referred to elsewhere, is an obscene
word denoting sexual intercourse.
Shop Steward Kinney described Coros as being somewhat upset and
speaking louder than normal, although he denied Coros was shouting.
9Clark testified that the events upon which he relied concerned alleged
threats Coros had made to Machine Shop Foreman Corbett in 1972 or 1973
and alleged threats Coros had made to two employees, Lloyd Fritsch and
Mr. Ejimal. who had previously worked under Clark. However, Clark ac-
knowledged he was not present when these alleged threats were made by
Coros and had no firsthand knowledge, and it was not established Coros had
actually made such threats.
1087
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
edged he wasn't sure whether Coros used the word "easy"
or "pleasant," stating it could have been either one, and
further acknowledged Kinney on that occasion also told
him it was not a threat.
Clark also stated, consistent with testimony of both
Coros and Kinney, that the use of profanity was shop talk
and further stated that its use by Coros on that occasion did
not offend him and that he was also familiar with Coros'
expression using it, which meant Coros felt he was being
harassed.
I credit the testimony of Coros and Kinney concerning
this conversation rather than that of Clark, who not only
contradicted his own testimony but expressed uncertainty
about what was actually said on that occasion.
Following this conversation, Clark testified, he went to
his office, and after getting his thoughts together he re-
ported what had happened to Superintendent Meyer and
administrative assistant Bryon Briggs.' 0
According to Superintendent Meyer, Clark reported
what had happened to him about 9:15 a.m. After Clark,
who did not make any recommendation for discipline
against Coros, left the office, Meyer stated, he and Briggs
discussed the matter, and he informed Briggs he felt it was
insubordination toward a foreman, which he could not tol-
erate, whereupon he decided to suspend Coros. Although
Meyer denied knowing at the time that a grievance had
been involved, he acknowledged that after subsequently
learning that a grievance had been involved he did not re-
consider his decision to discipline Coros.'
While Superintendent Meyer described Clark's appear-
ance on that occasion as being visibly shaken and upset, he
also acknowledged Clark got disturbed when things did not
go right in the shop, expressing emotion and reacting to
those conditions.
General Foreman Moore, who was Clark's immediate su-
pervisor, testified that about 12:15 p.m. that day, when
Clark reported to him what had happened, Clark appeared
upset and nervous and his voice was shaking.
Moore also stated that about 1 p.m. that same day, after
Superintendent Meyer and Administrative Assistant Briggs
had informed him of the decision to suspend Coros and told
him to suspend him, he gave Coros his suspension and di-
rected him to leave company property.
This suspension, dated November 1, listed the offense as
"Unacceptable Behavior" and was effective from Novem-
ber I for approximately 1-1/2 working days, until Novem-
ber 3, when Coros was to return to work, and further stated,
"Any further unsatisfactory behavior of any kind may
likely result in more severe disciplinary action up to and
including discharge." This suspension contained the signa-
tures of both Shop Supervisor Clark and Superintendent
Meyer.
Coros stated, without denial, that he did not receive pay
for the days he was suspended.
According to both Clark and Moore, Clark was sent
home a couple of hours early that day. Clark stated the
reason was that Moore told him he thought the way he felt
and with his frame of mind he should go home.
0o Administrative assistant Briggs did not testify.
I Meyer was unable to state when he learned a grievance was involved.
B. Analysis and Conclusions
The General Counsel contends, contrary to the Respon-
dent's denials, that the Respondent violated Section 8(a)(l)
of the Act by discriminatorily suspending Coros for 1-1/2
days because of his actions in attempting to process a griev-
ance under the collective-bargaining agreement.
Section 8(aX1) of the Act prohibits an employer from
interfering with, restraining, or coercing its employees in
the exercise of their rights guaranteed in Section 7 of the
Act.
The filing of grievances, including those by an individual,
to enforce provisions of collective-bargaining agreements
which affect the rights of all unit employees constitutes con-
certed activities protected by Section 7 of the Act, and to
discriminate against employees for filing such grievances
violates Section 8(a)(l) of the Act. See Interboro Contrac-
tors, Inc., 157 NLRB 1295, 1298 (1966), enfd. 388 F.2d 495
(2d Cir. 1967). The protection accorded employees under
this section is not dependent on either a correct interpreta-
tion of the contract nor the merit or lack of merit of the
concerted activities. John Sexton & Co., a Division of Be-
atrice Food Co., 217 NLRB 80 (1975); The Singer Company,
Climate Control Division, 198 NLRB 870, fn. 5 (1972). Fur-
ther, it is well settled that discrimination against an em-
ployee motivated in part by the employee's exercise of Sec-
tion 7 rights is a violation, even though another valid cause
may also be present. Don Lucas International, Inc. db/a
San Jose Bavarian Motors, 229 NLRB 127, 128 (1977).
The findings supra establish that on November 1, while
Coros and the Union's Chief Steward Kinney, acting on
Coros' behalf, were in the process of discussing with Shop
Supervisor Clark a grievance brought by Coros against
Clark for allegedly harassing him the previous day by refus-
ing to let him, contrary to existing practice, use the office
telephone to call his doctor for medical reasons, Coros
made certain statements to Clark. Clark considered these
statements to be a threat, and Coros was suspended for I-
1/2 days for an offense listed as "Unacceptable Behavior"
on his suspension notice and described by Superintendent
Meyer as being insubordination.
Discounting Coros' use of profanity, which admittedly
was shop talk and not offensive to Clark, the issue is
whether Coros' statements to Clark that if he wanted his
job he might get it but it was not going to be easy and
telling him that was a promise constituted a threat. Even
considered in the light most favorable to Clark's contention
that these statements constituted a threat, I find such state-
ments at the most reflect no more than a concern by Coros,
raised in the grievance proceeding, that Clark by his alleged
harassment was attempting to get his job, with Coros taking
the position it would not be easy. Moreover, pursuant to
Clark's own inquiry, Coros specifically denied he was
threatening him on that occasion, a position also echoed by
Kinney, who witnessed the alleged threat. Further, Clark's
own testimony reveals he only considered Coros' statement
on that occasion to be a threat because he had previously
heard, a fact never established by the evidence, that Coros
had threatened other persons. Under these circumstances I
find Coros did not threaten Clark on November I as al-
leged.
1088
DETROIT EDISON CO.
To the extent Coros' statements, apart from being an al-
leged threat, might be considered insubordination, I do not
find, under the circumstances presented here, that these
statements, occurring in the context of a grievance meeting,
were of such a nature as to deprive him of the Act's protec-
tion. Although the Board has held that an employee who
commits improprieties in the course of his Section 7 activity
may be deprived of the Act's protection, this occurs only in
"flagrant cases in which the misconduct is so violent or of
such serious nature as to render the employee unfit for fur-
ther service." Firch Baking Company, 232 NLRB 777
(1977); and The Bettcher Manufacturing Corporation, 76
NLRB 526, 527 (1948). The statements uttered by Coros on
this occasion do not arguably fall within the type of miscon-
duct that would render him unfit for further service.
Based upon the foregoing evidence and for the reasons
stated, I find that the Respondent discriminatorily sus-
pended Coros on November 1, 1977, for 1-1/2 days for
engaging in protected concerted activities, thereby violating
Section 8(a)(1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of the Respondent set forth in section III,
above, found to constitute unfair labor practices, occurring
in connection with the operations of the Respondent de-
scribed in section 1, above, have a close, intimate, and sub-
stantial relationship to trade, traffic, and commerce among
the several States and tend to lead to labor disputes burden-
ing and obstructing commerce and the free flow thereof.
CONCLUSIONS OF LAW
1. The Detroit Edison Company is an employer engaged
in commerce within the meaning of Section 2(6) and (7) of
the Act.
2. Local 223, Utility Workers Union of America, AFL-
CIO, is a labor organization within the meaning of Section
2(5) of the Act.
3. By suspending George Coros on November 1, 1977,
for 1-1/2 days for engaging in protected concerted activi-
ties, Respondent has interfered with, restrained, and co-
erced employees in the exercise of their rights guaranteed in
Section 7 of the Act and has thereby violated Section
8(a)(l) of the Act.
4. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices within the meaning of Section
8(a)(1) of the Act, I shall recommend that it cease and de-
sist therefrom and take certain affirmative action to effectu-
ate the policies of the Act. Accordingly, the Respondent
shall be ordered to expunge from George Coros' employ-
ment records any record of the November 1, 1977, suspen-
sion herein found to be unlawful and to make Coros whole
for any loss of pay or other compensation he may have
suffered as a result of this suspension. Backpay shall be
computed in accordance with F. W. Woolworth Company,
90 NLRB 289 (1950), and Florida Steel Corporation, 231
NLRB 651 (1977).2
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER 3
The Respondent, The Detroit Edison Company, Detroit,
Michigan, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Interfering with, restraining, and coercing employees
in the exercise of their rights guaranteed in Section 7 of the
Act by suspending employees or otherwise discriminating
against them because they engage in protected concerted
activities.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of their
rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act:
(a) Expunge from the employment records of George
Coros any entry concerning his November 1, 1977 suspen-
sion for I and 1/2 days herein found to be unlawful.
(b) Make George Coros whole for any loss of pay or
other compensation he may have suffered by reason of the
discrimination against him in the manner set forth in that
portion of this Decision entitled "The Remedy."
(c) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records neces-
sary to analyze and determine the amount of backpay due
under the terms of this Order.
(d) Post at its Detroit, Michigan, facility copies of the
attached notice marked "Appendix."' Copies of said no-
tice, on forms furnished by the Regional Director for Re-
gion 7, shall, after being duly signed by the Respondent's
authorized representative, be posted immediately upon re-
ceipt thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all places
where notices to employees are customarily posted. Reason-
able steps shall be taken by the Respondent to insure that
said notices are not altered, defaced, or covered by any
other material.
(e) Notify the Regional Director for Region 7, in writing,
within 20 days from the date of this Order, what steps the
Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be, and it
I See, generally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962).
i' 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.
A1 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 Judgment
of the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."
1089
1090 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
hereby is, dismissed insofar as it alleges unfair labor prac-
tices not specifically found herein.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT interfere with, restrain, or coerce em-
ployees in the exercise of their rights guaranteed by
Section 7 of the National Labor Relations Act, as
amended, by suspending or otherwise discriminating
against employees because they engage in protected
concerted activities.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees in the exercise of
rights guaranteed them by the Act.
WE WILL expunge from the employment records of
George Coros any entry concerning his November 1,
1977, 1-1/2-day discriminatory suspension.
WE WILL make George Coros whole for any loss of
pay or other compensation he may have suffered by
reason of his discriminatory suspension, with interest.
THE DETROIT EDISON COMPANY