General Motors Corp., Inland Division

National Labor Relations Board - Board Decisions

Oct 18, 1977

233 N.L.R.B. 47 (N.L.R.B. 1977)

GENERAL MOTORS CORPORATION, INLAND DIVISION
General Motors Corporation, Inland Division and
United Rubber, Cork, Linoleum and Plastic
Workers of America, Local Union No. 87, AFL-
CIO-CLC. Case 9-CA-10223
October 18, 1977
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND MURPHY
On April 1, 1977, Administrative Law Judge
Claude R. Wolfe issued the attached Decision in this
proceeding. Thereafter, the General Counsel filed
exceptions and a supporting brief, and Respondent
filed a brief in support of the Decision.
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
briefs and has decided to affirm the rulings, findings,
and conclusions of the Administrative Law Judge
only to the extent consistent herewith.
The Administrative Law Judge found that Union
Steward Abney's refusal to direct employee-grievant
Simpson to return to work, as ordered by his
supervisor, was neither reasonable nor protected.
Accordingly, the Administrative Law Judge dis-
missed the complaint herein, which alleged that
Abney's suspension based on his refusal was viola-
tive of Section 8(a)(1) and (3) of the Act. The
General Counsel has filed exceptions to this finding,
which, for the following reasons, we find meritorious.
As acknowledged by the General Counsel, the facts
of this case as found in the Administrative Law
Judge's Decision are substantially correct and
complete. In brief, the incidents which preceded the
suspension began on March 5, 1976,1 when Foreman
Roberts disciplined employee Simpson for allegedly
starting work late, loitering, and not following orders.
Although Roberts orally notified Simpson at 7:30
a.m., at the beginning of his shift, that he was to be
disciplined, he did not actually write out the
notification until 2:30 p.m., when he and Simpson
went to Union Steward Abney's office. The three
men then discussed the matter until 3 p.m., when
they adjourned the meeting until the next morning
because the shift had ended. They met again the
following morning in Abney's office and further
discussed the matter for about 50 minutes, after
which time, no agreement having been reached,
Abney began to reduce to writing Simpson's griev-
ance over his discipline. Roberts gave Abney 10
minutes to write the grievance and left.
Roberts then consulted with Abney's foreman and
the plant's general foreman, advising them that he
(Roberts) believed that Simpson and Abney were
abusing the grievance procedure. Following these
conversations, Roberts returned to Abney's office
and asked him if he was finished with the grievance.
Abney responded that he was not finished and
Roberts said he thought he had had enough time. He
then told Simpson to return to his job. There
followed a discussion during which Abney raised the
question of the propriety of Roberts curtailing the
grievance procedure and Roberts repeated his
direction to Simpson three or four times. Each time
Roberts directed him to return to work, Simpson
asked Abney if he had to do so. Abney's consistent
response was that Simpson did have a right as a
grievant to remain, but that if he did not leave he
would probably be disciplined and that it was
Simpson's decision to make.
Abney then stated that he intended to continue
with the grievance procedure. Abney's foreman,
Travick, who had joined the meeting, suggested that
Abney have Simpson return to work and then get his
own steward and resolve the question of Roberts'
alleged interference with the procedure. When
Abney refused to comply with this suggestion,
Simpson refused to return to work.
Roberts then suspended Simpson for refusing to
obey an order of a supervisor and Travick suspended
Abney for allegedly abusing the grievance procedure.
The Administrative Law Judge found that Abney's
refusal to tell Simpson to return to work was a factor
in Travick's decision to suspend him. The record
shows that less than 2 hours in total were spent on
Simpson's grievance.
The General Counsel, contrary to the Administra-
tive Law Judge's conclusions, contends that Abney's
actions set forth above were entirely reasonable
under the circumstances and therefore fully protect-
ed. Thus, the General Counsel points to Abney's
uncontested testimony that he had been given
assurances by General Foreman Francis less than 2
weeks before the events in question that Foreman
Roberts would not interfere with the grievance
procedure by ordering grievants to return to work
while Abney was processing their complaints. This
assurance came after Abney had complained to his
foreman, Travick, that on January 30 Roberts had
directed a grievant to leave Abney's office on the
ground that the grievant had been there long enough
(approximately 25 to 30 minutes according to
Abney's estimate). Subsequently, on February 23
I All dates hereafter are in 1976.
233 NLRB No. 13
47
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Francis told Abney that he would speak to Roberts
about Abney's complaint that he could not do his job
effectively if a foreman could direct people to leave
his office, and that it would not happen again. In the
January 30 incident, Abney had acceded to Roberts'
request and advised the employee to return to work.
The General Counsel argues, and we agree, that,
when the same circumstances arose again less than 2
weeks after Abney's receiving Francis' assurances
that he had a right to continue with the grievance
procedure without interference from the foreman,
Abney was acting not only in a reasonable way in
refusing to request Simpson to return to work, but
also according to Respondent's own directions.
In addition, we disagree with the Administrative
Law Judge's conclusion that Abney's rejection of
Travick's request that he tell Simpson to go back to
work and submit a separate grievance over the
question of how long a time was reasonable for
handling Simpson's grievance was an arrogation to
himself of the sole authority to determine the
question. As the record shows, and the Administra-
tive Law Judge himself found, Abney had just
recently submitted this very question to higher
management and, after being assured that no formal
grievance proceeding was necessary, was advised
that no further interference from foremen would
occur. If Abney, under these circumstances, had
again acceded to Roberts' request to submit the
question to the grievance procedure he would, in
effect, have been acknowledging the foreman's right
to delay grievance processing whenever he chose to
do so, when duly constituted higher authority had
already decided that it was Abney's prerogative to
make the determination of the time he needed for
preparing grievances. In our view, requiring such a
further concession by Abney would be unreasonable
and thus his refusal to do so was justified.
It is unnecessary for us to decide whether or not
Respondent previously interfered with Abney's
processing of grievances and, if so, whether such
conduct would establish that Respondent engaged in
a pattern of harassment. It is enough that the facts in
the instant case clearly show that Abney was acting
reasonably in processing Simpson's grievance and in
refusing to direct him back to work before he had
finished. It was not Abney's role or responsibility to
order Simpson to return to work-that responsibility
must remain with management. Abney had no
affirmative obligations in this regard. His only
obligation was to refrain from any action which
would be in direct contravention of Roberts' orders
to Simpson. This Abney did. Accordingly, Respon-
dent's suspension of Abney because of his conduct
2 Backpay shall be computed in the manner set forth in F W. Woolworth
Company, 90 NLRB 289 (1950), and interest thereon as set forth in Isis
constitutes interference with protected activity in
violation of Section 8(aXl) and (3) of the Act. In
reaching this conclusion we agree with the General
Counsel that the cases cited by the Administrative
Law Judge are inapposite as dealing with situations
concerning stewards who were acting either in
disregard of agreed-upon procedure or engaging in
loud and abusive conduct. We find, based on the
record in this case, that Abney, in processing
Simpson's grievance, was acting pursuant to the
directions of management and clearly within his
function as union steward and in so doing did not
exceed the boundaries of acceptable conduct. Ac-
cordingly, we shall order Respondent to cease and
desist from engaging in the conduct herein found
violative of Section 8(a)(1) and (3) and to post an
appropriate notice. We shall also order Respondent
to make Abney whole for any loss of wages or other
benefits he suffered as a result of his suspension,2
and to expunge any record of his suspension, to the
extent that such actions have not already been taken
by Respondent.
AMENDED CONCLUSIONS OF LAW
Substitute the following for the Administrative
Law Judge's Conclusion of Law 3:
"3. By discriminatorily suspending Hubert C.
Abney on March 6, 1976, for his actions in
processing a grievance, Respondent has violated
Section 8(a)(l) and (3) of the Act."
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent,
General Motors Corporation, Inland Division, Day-
ton, Ohio, its officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Discriminating against employees for process-
ing grievances.
(b) In any other manner interfering with, restrain-
ing, or coercing employees in the exercise of their
Section 7 rights.
2. Tale the following affirmative action designed
to effectuate the policies of the Act:
(a) Make whole Hubert C. Abney for any loss of
earnings occasioned by his disciplinary suspension
on March 6, 1976, in the manner described in this
Decision.
(b) Expunge any record of the disciplinary suspen-
sion of Hubert C. Abney on March 6, 1976.
Plumbing & Heating Co., 138 NLRB 716 (1962), and Florida Steel
Corporation, 231 NLRB 651 (1977).
48
GENERAL MOTORS CORPORATION, INLAND DIVISION
(c) Preserve and, upon request, make available to
the Board or its agents, for examination and copying,
all payroll records, social security payment records,
timecards, personnel records and reports, and all
other records necessary to analyze the amount of
backpay due under the terms of this Order.
(d) Post at its Dayton, Ohio, place of business
copies of the attached notice marked "Appendix." 3
Copies of said notice, on forms provided by the
Regional Director for Region 9, after being duly
signed by Respondent's authorized representative,
shall be posted by Respondent immediately upon
receipt thereof, and be 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 the Regional Director for Region 9, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply
herewith.
3 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."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT suspend or otherwise discipline,
or take any other discriminatory action against,
employees because of their protected activity in
processing grievances.
WE WILL NOT in any other manner interfere
with, restrain, or coerce employees in the exercise
of their rights to self-organization, to form, join,
or assist any labor organization, to bargain
collectively through representatives of their own
choosing, to engage in concerted activities for the
purposes of collective bargaining or other mutual
aid or protection or to refrain from any and all
such activities.
WE WILL reimburse Hubert C. Abney for any
loss of wages or other benefits occasioned by his
suspension on March 6, 1976, plus interest.
WE WILL expunge from all records any and all
references to the suspension of Hubert C. Abney
on March 6, 1976.
GENERAL MOTORS
CORPORATION, INLAND
DIVISION
DECISION
STATEMENT OF THE CASE
CLAUDE R. WOLFE, Administrative Law Judge: This case
was heard before me at Dayton, Ohio, on November 19,
1976,1 pursuant to a complaint issued on May 27 by the
Regional Director for Region 9 of the National Labor
Relations Board, based on charges filed by United Rubber,
Cork, Linoleum and Plastic Workers of America, Local
Union No. 87, AFL-CIO-CLC, herein called the Union.
The complaint alleges that General Motors Corporation,
Inland Division, herein variously called Respondent, the
Company, or the Employer, violated Section 8(a)(3) and (1)
of the National Labor Relations Act, as amended, by
suspending Hubert C. Abney because of his activities as a
union steward processing a grievance. Respondent duly
denied the commission of any unfair labor practice and
asserted certain affirmative defenses which are discussed
later in this Decision. The General Counsel and Respon-
dent filed posttrial briefs which I have considered.
Upon the entire record, including my observation of the
witnesses as they testified, and after due consideration of
the parties' briefs, I make the following:
FINDINGS AND CONCLUSIONS
I. JURISDICTION
Respondent is a Delaware corporation engaged in the
manufacture of automobile parts at its Dayton, Ohio,
plant, the facility involved herein, and has, during the 12
months preceding the issuance of the complaint, a
representative period, produced, sold, and shipped prod-
ucts valued in excess of $50,000 from said location directly
to points outside the State of Ohio. Respondent is, and has
been at all times material to this case, an employer engaged
in commerce within the meaning of Section 2(6) and (7) of
the Act.
1I. THE LABOR ORGANIZATION
The Union is a labor organization within the meaning of
Section 2(5) of the Act.
I All dates herein occurred in 1976, unless specifically noted otherwise.
49
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts2
The General Counsel, over Respondent's objection,
introduced testimony from Hubert Abney for "back-
ground" purposes that Abney had been; (1) verbally
warned by General Foreman Larry Francis on October 8,
1975, for writing a grievance over jury duty pay; (2) again
verbally warned by Francis on November 24, 1975, for
writing a grievance alleging Francis had not timely
answered grievances; (3) suspended by Foreman Jesse
Roberts on December 1, 1975, for writing a grievance and
abusing the grievance procedure; and (4) suspended by
Foreman Sylvia Martin on December 12, 1975, for writing
a grievance over a requirement that an employee had to
wear safety glasses in an eating area. Abney grieved these
warnings and suspensions and received total remedies, by
way of grievance settlement, in each and every instance.
Abney further claims that, on January 30, Roberts directed
a grievant to leave Abney's office3 on the ground the
grievant had been there long enough, 25 to 30 minutes by
Abney's estimation, whereupon Abney objected and took
his objection to his foreman, Eddie Travick. Subsequently,
according to Abney, on February 23, Francis told Abney
that he would speak to Roberts about Abney's complaint
he couldn't do his job effectively if foremen could direct
people to leave his office, and that it would not happen
again.
None of the foregoing events are alleged as unfair labor
practices,4 nor was any evidence presented of any like
situations during Abney's Il-year tenure as a union
committeeman during which time he spent about 7 hours
each working day handling grievances. Abney estimates
that he writes from zero to four or five grievances a week. It
would therefore appear that during his I l-year service he
has been involved in a great number of grievance
proceedings. Abney concedes that there has never been
any objection to his use of 7 hours per day in handling
grievances.
At or about 7:30 a.m. on March 5, Foreman Roberts
notified Employee Robert Simpson that he was going to
discipline him for allegedly starting work late, loitering,
2 The facts recited are in large part not in dispute. As to disputed
matters, I have very carefully reviewed the testimony of each witness and
weighed it in conjunction with the testimony of others on the same points
and the undisputed documentary evidence in the record. Further, I have
examined the logical consistency and inherent probability of the evidence
presented, with due regard for the relative testimonial demeanor of each
witness as he testified. The facts recited, therefore. are a synthesis of the
credible evidence, and testimony to the contrary is discredited. I observed
that, of the four witnesses testifying about the events of March 5 and 6,
Foreman Travick appeared to be the most reliable on events occurring after
his entrance into the affair on March 6, and impressed me as an honest
witness being very careful to proffer his best recollection of the matters
occurring in his presence. Simpson's testimony, except as it conflicts with
that of Travick, impressed me as superior to that of Abney and Roberts,
both of whose demeanor on the witness stand betrayed a mutual personal
antagonism.
3 Committeemen have offices in which to hold grievance discussions.
4 Nor do I infer from the evidence that the grievances of Abney did or
did not have merit inasmuch as all were settled without any formal
determination on their merits.
5 Although it is not clear from the record what discipline Roberts
intended to invoke, the collective-bargaining agreement between the parties
provides in substance that in cases of disciplinary suspension, layoff, or
and not following orders, but did not then actually perfect
the proposed disciplinary action by putting it in writing. 5
At or about 2:30 p.m. on March 5, Roberts and Simpson
went to Abney's office where, in Abney's presence, Roberts
wrote the alleged reasons for discipline, and the discipline
itself, on Simpson's pay record. 6 After a preliminary
question by Abney as to why it took so long to get a
committeeman for Simpson, the three discussed the matter
until 3 p.m., and then adjourned to the following morning
because the work shift was then over. They met again in
Abney's office some time between 8:15 and 8:30 a.m. on
March 6 and continued to discuss the action against
Simpson7 and Abney's complaint about late notification
the day prior for about 50 minutes. No agreement was
reached and Abney undertook to reduce the grievances to
writing. Roberts gave him 10 minutes to write the
grievance, or grievances, and left. Roberts then contacted
Travick and advised him that he thought Abney and
Simpson had spent enough time in the grievance proce-
dure, including about an hour on March 5. Travick
promised to come to the scene in 15 minutes. He did so and
met with Roberts, out of the presence of Abney and
Simpson. Roberts asserted to Travick that Abney and
Simpson were abusing the grievance procedure. Travick
told him Simpson was not, and that if anyone was it was
Abney because he was conducting the meeting. Travick
advised Roberts to consult with General Foreman Francis.
He did and Francis told him not to suspend "him" 8 for
abusing the grievance procedure but to send Simpson back
to work and terminate the meeting. Roberts rejoined
Travick and both went to the committeeman's room.
Roberts asked if Abney was finished. Abney said he was
not and Roberts told him he thought he had had enough
time. At this juncture, Abney raised the question of the
propriety of Roberts curtailing the grievance procedure,
and protested this action. It is not clear from the testimony
whether this issue was raised before or after Roberts told
Simpson to return to his job. The logic of the sequence of
events persuades me that Roberts asked Simpson to return
to work and then Abney raised the issue of interference
discharge, obviously the severest discipline Roberts could have applied, the
employee is to be advised of his right to representation and may request his
committeeman, who will be promptly called, without regard to other
instructions on the committeeman's worktime, to discuss the case with the
employee in a designated office. The contract further provides for
notification in writing of the reason before the employee is required to leave
the plant, and that he has a right to the presence of a committeeman during
the disciplinary interview, but that the committeeman is only present as a
witness until the employee is actually disciplined, at which time the
committeeman may then commence negotiations on the employee's
grievance. I conclude from the contract that the employee is not entitled to
the presence of a committeeman until such time as the contemplated
adverse action is to be discussed and effectuated. In this case, that time was
about 2:30 p.m. as the further recitation of the facts will illustrate. I further
conclude from the testimony of Abney that discussion of disciplinary
actions has first priority under the contract that the foregoing contractual
provisions are the ones to which he had reference. I am persuaded, however,
from events of March 6 when Roberts wanted Simpson to return to work,
that immediate suspension was not contemplated by Roberts.
I The pay record was not placed in evidence.
7 Roberts had put the group leader on Simpson's job that morning to
enable Simpson to attend.
m Apparently Abney.
50
GENERAL MOTORS CORPORATION, INLAND DIVISION
with grievance processing. Roberts directed Simpson to
return to work three or four times.9 Simpson each time
asked Abney whether he had to or not, and each time
received the advice from Abney that he had a right to be
there as a grievant but that if he did not leave he would
probably be disciplined, and that it was Simpson's decision
to make. Abney stated that he (Abney) intended to
continue in the grievance procedure. Travick suggested to
Abney that he have Simpson return to work, then get
Abney's committeeman and resolve the question of
Roberts' alleged interference in the procedure. Abney
refused,' 0 whereupon Simpson refused to go back to work.
Roberts then suspended Simpson for refusing to obey an
order of supervision," and Travick suspended Abney for
"abusing the grievance procedure." Travick avers that he
suspended Abney because he refused to adjourn the
meeting and call his committeeman to resolve the issue. I
am persuaded however from Travick's conceded "sugges-
tion" to Abney that he tell Simpson to go back to work,
and his further concession that he felt Abney gave Simpson
bad advice with respect to returning to work as Roberts
directed, that Abney's refusal to tell Simpson to return to
work was also a factor in Travick's decision to suspend
Abney.
The total time spent on March 5 and 6 from the
beginning of the meeting on March 5 at approximately
2:30 p.m. until 3 p.m., and from 8:15 or 8:30 on March 6
until 9:45 p.m. when Simpson was suspended, as evidenced
by the signed notice of suspension issued by Roberts at
that time,' 2 was between I hour and 45 minutes and 2
hours.
Abney filed a grievance on his suspension on March 15,
and it was settled in his favor on November II with
reimbursement for all wages lost and removal of all
notations concerning the suspension from his record.
B. Contentions and Conclusions
The General Counsel contends that the suspension of
Abney was occasioned by his protected activity in
representing Simpson in the grievance procedure, and,
more particularly, by his advice to Simpson that Simpson
had a right to remain, coupled with further advice that if
Simpson refused to return to work he would face
suspension. General Counsel further contends that the
suspension of Abney is part of a continuing campaign of
harassment designed to inhibit Abney in the lawful pursuit
of his responsibilities which, if permitted to continue,
would nullify effective union representation of grievants.
Accordingly, General Counsel urges that Respondent by
its actions against Abney on March 6 violated Section
8(a)(3) and (1) of the Act.
9 Roberts' concern that the meeting conclude and Simpson return to his
job as soon as possible was due, in substantial part, to the fact that
Simpson's job of foamer operator was critical to the operation of the
department and he was the only foamer operator on his shift. The only other
person on the shift capable of running the foamer was the department group
leader who was filling in for Simpson in his absence at the grievance
meeting, and this obviously kept the group leader from performing other
duties.
'o The ground stated by Abney for his refusal to tell Simpson to return to
work was that it was not Abney's job to order Simpson to do so.
On the other hand, Respondent argues that there is no
violation here because (1) the dispute of March 6 involved
the issues of whether or not Abney had spent sufficient
time in the grievance procedure in the Simpson matter, and
whether or not the action of a foreman in attempting to
bring the meeting to an end was proper, both of which are
nothing more than questions of contract interpretation of a
type the Board has traditionally left for resolution by the
parties to the agreement; (2) there is no showing of a
pattern by Respondent of attempting to thwart committee-
men in the processing of grievances or in attempting to
deny employees access to the grievance procedure; (3)
Abney's suspension was resolved within the contractual
grievance procedure; (4) the suspension of Abney was
reasonable and not unlawful in the circumstances; and (5)
I should not reach the merits of the case because it falls
within the ambit of the Collyerl3 and Spielberg14 line of
cases favoring deferral to contractual grievance procedure.
Additionally, Respondent contends out that the resolution
of Abney's grievance over the suspension was in his favor
and fully remedied any possible underlying unfair labor
practice.
In Spielberg, the Board stated that it will examine a
binding award made by an impartial tribunal on matters
encompassed by the General Counsel's complaint, and
defer to it if the arbitral proceedings were fair and regular,
all parties had agreed to be bound thereby, and the
tribunal's decision was not repugnant to the purposes and
policies of the Act. The settlement of Abney's grievance on
his March 6 suspension is not equivalent to a binding
award requiring Board review and Spielberg is therefore
not applicable to this case.
Both parties advert to Labor Relations Supervisor
Grier's expressed opinion that 20 to 30 minutes should be
sufficient to decide whether or not a grievance exists.
General Counsel argues that in view of this testimony the
time consumed on March 5 and 6 was not excessive
because three separate issues were being explored re:
Simpson's grievance. On the other hand, Respondent
points to this testimony as evidence that 20 to 30 minutes
was sufficient for Abney to discuss the entire grievance.
The question of what constitutes a reasonable period of
time in discussing a grievance is obviously dependent on
the nature and complexity of the matters under discussion,
and a question upon which reasonable men may reason-
ably differ. I decline to enter this thicket and attempt to
extract therefrom some precise time that Abney should
have been allotted, for I do not think that Grier's estimate
is anything more than what it purports to be, a generalized
estimate, and I do not deem the consideration of griev-
ances to be subject to any precise, mandatory time limits,
absent some specific regulating contractual provision,
without regard to the peculiar circumstances of each
" Simpson's suspension is not alleged as an unfair labor practice, and
General Counsel advised at the opening of the hearing that a charge on
Simpson's behalf had been withdrawn. I therefore make no findings as to
the propriety of Simpson's suspension.
12 Abney's "Notice of Disciplinary Action" bears the issuance time 9:48
a.m.
i3 Collyer Insulated Wire, A Gulfand Western Systems Co. 192 NLRB
837 (1971).
14 Spielberg Manufacturing Company. 112 NLRB 1080(1955).
51
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
individual grievance considered, nor do I consider it
necessary, or appropriate, for me to set some arbitrary time
limitation on the parties in order to prepare or reach a
decision on the merits of a grievance. Rather, I have
considered the reasonableness of the actions of the
participants in the March 5 and 6 discussions and the
applicable legal precedents in reaching my decision herein.
There can be no argument with the general proposition,
well established in Board law, that the processing of a
grievance by a union representative is both protected
concerted and protected union activity. This does not,
however, imply that all conduct by a union representative,
committeeman in this case, while engaged in the processing
of grievances is protected. 5
I am convinced that Abney's advice to Simpson that he
had a right to remain, coupled with Abney's insistence on
his intention to continue the meeting, induced Simpson to
refuse to obey Roberts' orders to return to his work station.
Although Abney told Simpson that he might be subject to
discipline if he disobeyed, the overriding tenor of his advice
was that Simpson had a right to remain and thus
encouraged Simpson to select insubordination over compli-
ance with Roberts' orders and thereby suffer discipline.
Furthermore, Abney's rejection of Travick's request that he
tell Simpson to go back to work and then call his own
committeeman to help resolve the matter of Roberts'
alleged unreasonable curtailment of the time to be spent in
this grievance procedure, which had by this time become
the primary bone of contention, rather than the relative
merits of Simpson's grievance, constituted an intransigent
refusal by Abney to submit this question of reasonable
time and Roberts' alleged interference to the grievance
procedure, as he well knew he could from past experience,
and an arrogation to himself of the sole authority to
determine the amount of time necessary for preparing the
grievance. Although Abney stood as an equal to Respon-
dent's foremen in the discussion of Simpson's grievance
and the disagreement over the time necessary for his proper
'5 Charles Meyers & Company, 190 NLRB 448 (1971), and citation of
N.LR.B. v. Thor Power ToolCo., 351 F.2d 584, 587 (C.A. 7, 1965), therein.
i6 Crown Central Petroleum Corporation, 177 NLRB 322 (1969).
1" That this would have worked no hardship on Simpson is shown by the
evidence contained in Resp. Exh. 5 that Simpson's grievance which had
been discussed on March 5 and 6 was subsequently filed on March 6.
'8 Stop d Shop, Inc., 161 NLRB 75 (1966); Calmos Combining Co., 184
NLRB 914 (1970); Chevrolet, Division of General Motors Corporation, 161
NLRB 438 (1966).
preparation of that grievance,' 6 he did not enjoy status
superior to that of the foremen which would warrant his
attempted unilateral determination of the matter while
simultaneously rejecting Travick's suggestion that he carry
the matter further, within the confines of the established
grievance procedure, with the aid of his own committee-
man.
I therefore conclude that Abney's conduct of implied
encouragement to Simpson to refuse to obey Roberts'
order to return to work, which caused Simpson's suspen-
sion, and his rejection of Travick's reasonable suggestion
that he terminate the meeting, send Simpson back to
work,'? and pursue the issue of Roberts' interference
further through his union committeeman, was neither
reasonable in the circumstances nor protected activity.'
Accordingly, I further conclude that Travick's suspen-
sion of Abney was not an unfair labor practice. The history
of settled grievances recited by Abney, and reported
hereinabove, does not require a contrary conclusion, nor
does it compel an inference that the March 6 suspension
was part of any continuing campaign of harassment by
Respondent directed at Abney's grievance processing
activities.
General Counsel has not established by a preponderance
of the credible evidence that Respondent violated the Act
as alleged in the complaint,' and I make the following:
CONCLUSIONS OF LAW
1. Respondent is an employer 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. General Counsel has not established by a preponder-
ance of the evidence that Respondent has violated the Act
as alleged in the complaint or in any other manner.
[Recommended Order for dismissal omitted from publi-
cation.]
i1 In view of my findings on the merits, I find it unnecessary to consider
the effect of the grievance settlement, and the Board has recently held that
the Collyer, supra, deferral policy does not extend to cases of this type,
General American Transportation Corporation, 228 NLRB 808, which
obviates any necessity of considering Respondent's asserted Collyer defense
regardless of the merits of the complaint herein.
52