General Dynamics

National Labor Relations Board - Board Decisions

Feb 14, 1969

174 N.L.R.B. 545 (N.L.R.B. 1969)

STROM BERG-CARLSON CORPORATION
Stromberg-Carlson Corporation , a subsidiary of
General Dynamics and Elizabeth E. Kunow. Case
3-CA-3509
February 14, 1969
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND ZAGORIA
On October 16, 1968, Trial Examiner Bernard J.
Seff issued his Decision in the above-entitled
proceeding, finding that the Respondent had not
engaged in the unfair labor practices alleged in the
complaint and recommending that the complaint be
dismissed in its entirety, as set forth in the attached
Trial Examiner's Decision. Thereafter, the General
Counsel filed exceptions to the Trial Examiner's
Decision and a supporting brief, and the Respondent
filed a reply 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
powers in connection with this case to a
three-member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, and the entire record in the
case, including the exceptions and briefs, and hereby
adopts the findings, conclusions, and
recommendations of the Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby adopts as its Order the
Recommended Order of the Trial Examiner, and
orders that the complaint herein be, and it hereby is,
dismissed.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
BERNARD J. SEFF, Trial Examiner: This case was heard
before me in Rochester, New York, on August 14, 1968,
upon allegations in the complaint issued July 11, 1968,
based upon a charge filed on May 17, 1968, that the
above-named Respondent had violated Section 8(a)(1) and
(3) of the Act by discharging Elizabeth E. Kunow because
of her union and/or concerted activities. In its answer the
Respondent denied that it had violated the Act.
Upon the entire record in the case, including my
observation of the witnesses and their demeanor while
testifying, and a consideration of the briefs filed with me
by counsel for the General Counsel and the Respondent,
respectively, I make the following:
FINDINGS OF FACT
L THE BUSINESS OF THE RESPONDENT
545
Respondent is a corporation duly organized under the
laws of New York. At all times material herein,
Respondent maintained its principal office and place of
business in Rochester, New York. During the past 12
months Respondent purchased goods and materials valued
in excess of $50,000 which were transported to its plant
directly from States of the United States other than the
State of New York. Respondent is an employer engaged
in commerce within the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Union, International Union of Electrical, Radio
and Machine Workers, AFL-CIO-CLC, Local Union 338,
is a labor organization within the meaning of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Facts Leading up to the Separation From
Employment of Employee Kunow
The death of Kunow's sister caused her to first request
bereavement leave and later, on December 24, 1967, to
request an extension of such leave of Foreman Martz who
told her he would take care of the matter.
When Kunow returned to work on January 2, 1968, she
found she had been paid for 1 day of bereavement pay
instead of 3 as she thought she would receive. Upon
questioning Martz he told her the decision in her case had
been reached by the front office and that he had had
nothing to do with it. Thereafter, after being informed of
the Company's decision, Kunow filed a grievance
concerning the pay problem.
On February 19, 1968, upon returning to work from a
2-week sick leave, Kunow was assigned to a new position
in the packing area. There is undisputed testimony in the
record that Kunow was transferred to the packing
department because the Company had military orders
requiring the shipment of critically needed material to
Viet Nam. She testified that her transfer was unwarranted
and that upon questioning Martz he allegedly said she was
transferred as "punishment." Martz testified that he never
made such a statement and further that the only use of
the word "punishment" was made by Kunow. This
conflict in the testimony more logically fits the
explanation made by Martz, whom I credit, than Kunow
because she did feel she had been punished by the transfer.
The record is clear that none of Martz' supervisors
blamed him for the mixup over the pay problem that
bothered Kunow. It was only Kunow who felt that he was
responsible for this fact. Under these circumstances it is
unlikely that a supervisor would transfer an employee in
retaliation for her filing a grievance when the grievance in
no way reflected upon the supervisor's skills or abilities.
B. The Events on May 14, 1968, Which Resulted in
Kunow's Separation From the Company's
Employment
Kunow testified that on May 14, 1968, the noise in the
packing area was so intense that it made her nervous and
made her feel that the top of her head was coming off.
Feeling the way she did Kunow requested permission to
go to the medical department. Upon arriving at the
174 NLRB No. 82
546 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
medical department Kunow complained to'the head nurse,
Mary Lou, that the noise and conditions of employment
at her work station were driving her nuts. The application
of an ice pack produced no relief and Kunow asked for
permission to go home explaining that she wanted to go to
her doctor. After some additional conversation with the
head nurse and having secured no relief from her pains,
Kunow left the medical department without a pass, and
reported to her department foreman, Bailey, where she
requested permission to go to see her own doctor. Bailey
said he could not give her a pass to go home because
Company rules required that once an employee reported
to the medical department only this department was
authorized to issue a pass. Thereupon Kunow left the
plant, signed the book in the guardhouse and left the
company premises. On the next day, May 15, 1968,
Kunow did not report for work and had a co-worker
deliver a message to this effect to Bailey who thanked his
informant for giving him this notice. On May 16, Kunow
returned to work. Bailey asked her what she was doing at
work and then informed her that when she had walked off
the job the Company considered that she had voluntarily
quit her job.
There is testimony in the record that Kunow went to
see a company employment interviewer, Frusci, on May 2,
1968, to request a different job from the one she had
because she complained about the noise, absence of a
proper workbench and dirt in the packing department.
Frusci testified that after giving Kunow a typing test
she returned to his office and he said there was an opening
which involved typing. Kunow, while she did not
categorically refuse the job, told Frusci that she did not
want a job that entailed a great amount of typing. Since
the job under discussion did involve considerable typing
Frusci concluded that Kunow was not interested in the
position under discussion. Kunow testified that she did not
return to see Frusci after the typing exam and did not
have a conversation with him concerning a typing job.
Since the decision in this case turns on a consideration of
other significant facts it becomes unnecessary to deal with
this conflict in testimony in greater depth than has been
done.
C. Contentions of the Parties
The General Counsel contends that the discharge of
Kunow was caused by the fact that she filed a grievance
over the pay problem. In support of this argument the
General Counsel points to a change in attitude by Martz
towards Kunow. Prior to the filing of the grievance Martz
frequently complimented her on her work; joked with her;
visited her -socially and permitted her to make up lost
time. After the grievance was filed Martz stopped
complimenting her; stopped telling her jokes and ceased
permitting her to make up lost time.
I regard the change in social amenities as trivial but
find it necessary to deal more closely with regard to the
alleged change in permitting Kunow to make up lost time.
In support of this contention the General Counsel calls
attention to the transcript wherein Kunow testified as
follows:
Bob (Martz) I would make up that extra minute, it
was twelve minutes that I went home early last night "
He said, "I don't think we're busy to make the time up.
You don't have to make up that time.
The above quoted language, including as it does the
statement "You don't have to make up that time," seems
clearly to mean Kunow should forget about making up the
time. Thus, the record supports a conclusion which is the
opposite of the meaning taken by the General Counsel.
Indeed it is clear that by telling Kunow she did not have
to make up lost time this does not mean that Martz was
refusing to let her make up lost time. If the General
Counsel intended the above quoted language to show that
Kunow was denied pay for the time she took off it is
submitted that no evidence was adduced to show that she
was docked for leaving her job early.
D. Contentions of the Parties
The General Counsel contends that what had previously
been a friendly relationship between Kunow and her
supervisor Martz deteriorated into one of hostility as the
result of the fact that she filed a grievance over the pay
problem. The ill will ultimately culminated in her
discharge. The filing of a grievance is a protected activity.
Despite the fact that leaving the plant without permission
provided the Company with a basis for discharge, if an
employee is engaged in protected activity and this is the
substantial or motivating reason for the discharge then
there is discrimination.' Such discrimination is violative of
Section 8(a)(3) of the Act.
Respondent takes the position that when Kunow left
the plant without permission and without first securing a
pass she was guilty of a serious dereliction of duty and
this was the only reason for her separation from
employment. Respondent argues that the disciplinary
action taken against Kunow has nothing to do with the
fact that she filed a grievance.
Based on the evidence adduced at the hearing I find
that the General Counsel has failed to establish a causal
connection between Kunow's filing of a grievance and her
discharge.
CONCLUSIONS OF LAW
1. Respondent is engaged in, and during all times
material was engaged in, commerce or in a business
affecting 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. The allegations of the complaint that Respondent has
engaged in, and is engaging in, unfair labor practices
affecting commerce within the meaning of Section 8(a)(1)
and (3) of the Act, have not been sustained by substantial
evidence.
RECOMMENDATIONS
It is recommended that the complaint be dismissed in
its entirety.
' Bowman Transportation , Incorporated, 134 NLRB 1419.