Globe-Union, Inc.

National Labor Relations Board - Board Decisions

Apr 18, 1977

229 N.L.R.B. 1 (N.L.R.B. 1977)

GLOBE-UNION, INC.
Globe-Union, Inc. and Local 1116, International
Union of Electrical, Radio and Machine Workers,
AFL-CIO-CLC. Case 17-CA-7310
April 18, 1977
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
PENELLO AND WALTHER
On January 28, 1977, Administrative Law Judge
James L. Rose issued the attached Decision in this
proceeding. Thereafter, the Charging Party filed
exceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the complaint be, and and it
hereby is, dismissed in its entirety.
DECISION
STATEMENT OF THE CASE
JAMes L. Rose, Administrative Law Judge: This matter
was heard before me at St. Jospeh, Missouri, on December
7, 1976.1 The General Counsel's complaint alleged that, on
September 15, the Respondent, acting through its person-
nel manager, John Clemens, threatened an employee with
discharge for pursuing union activity and thereby violated
Section 8(a)(l) of the National Labor Relations Act (29
U.S.C.§ 151, et seq.), as amended.
All parties appeared, were represented by counsel, and
were given the opportunity to examine and cross-examine
witnesses. Upon the record as a whole, including my
observation of the witnesses, briefs and arguments of
counsel, I make the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The Respondent is a Delaware corporation engaged in
the manufacture of batteries at its St. Joseph, Missouri,
facility. In the course and conduct of its business it
annually receives goods, products, and materials valued in
excess of $50,000 from points directly outside the State of
Missouri, and ships directly to customers outside the State
of Missouri products valued in excess of $50,000.
The Respondent admits, and I find, that it is an employer
engaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
!l. THE LABOR ORGANIZATION INVOLVED
The Respondent admits, and I find, that Local 1116,
International Union of Electrical, Radio and Machine
Workers, AFL-CIO-CLC (herein the Union), is a labor
organization within the meaning of Section 2(5) of the Act.
m. THE ALLEGED UNFAIR LABOR PRACTICE
A. Factual Background
The Respondent and the Union are parties to a
collective-bargaining agreement which provides, among
other things, for the arbitration of grievances that cannot
be resolved. The first and only such grievance to go to
arbitration concerned a matter in which Gary Whitmore,
the president of the Union, was the grievant. The
arbitration of this matter took place on Monday, Septem-
ber 13. On the preceding Friday, the Union presented to
the Company a letter which had the names of six
employees, five of whom were maintenance department
employees, whom the Union wished to have present at the
hearing. At approximately 5:30 representatives of the
Company, including John Clemens and Robert Harring-
ton, the production supervisor, met with representatives of
the Union including Gary Whitmore, Norman Graf, and
others. At this time the Company suggested that they could
not let all the maintenance people go at one time. However,
Harrington suggested that they would be able to work
something out and would be able to let a couple go.
While the matter was not precisely resolved, according to
the testimony of all witnesses, Whitmore and Graf said
they had every reason to believe that they had been given
permission to leave work on Monday at or about 9 a.m.
Clemens testified that, following the Friday meeting, he
contacted his counsel and together they determined that
the Company could not let the five maintenance men and
one other employee go at the same time. Following this
determination, Clemens contacted Whitmore and advised
him that the Company would not agree to let all six go at
one time.
According to the testimony of Clemens, he felt that the
matter of who would be allowed to go and when was still
unresolved, whereas Whitmore testified that he felt that the
Company had agreed to allow at least him and Graf to
leave at 9 a.m.
It should be noted at this point that precisely what the
understanding of the parties was on Friday or thereafter, or
whether when Whitmore left work on Monday morning he
had permission to do so, are not substantive issues in this
matter. All this serves only as background for the
I All dates are in 1976 unless otherwise indicated.
229 NLRB No. 2
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
telephone conversation in which Whitmore was allegedly
threatened.
In any event, on Monday morning, Whitmore, as he
testified, told his group leader, Rouse, who is a rank-and-
file employee, that he was leaving and he did so, with
Norman Graf. Prior to leaving, Graf had so advised his
supervisor.
The arbitration hearing was to begin at 10:30 a.m. with
the employees to be there by 9:30. Apparently at the time
the hearing was to begin, the Company took the position
that all these employees should not be there because some
were needed to cover the maintenance work. Thus the
Union, along with the arbitrator, worked out a compromise
whereby five employees would remain at the arbitration
hearing and one employee would return to work.
The next day Clemens called Whitmore and Graf into his
office for a discussion, which they all agreed Clemens
styled as a very serious matter; namely, leaving the plant
premises without permission. The substance of this meeting
concerned whether in fact Whitmore had been given
permission to leave the plant on Monday. The Company,
through Clemens, took the position that Whitmore had not
been given permission. Leaving the plant is a serious
breach of company policy and justifies immediate dis-
charge, according to the employees guide.
Whitmore contended that he followed the normal
practice of advising his group leader that he had to leave
the premises. Further, Whitmore felt that he had been
given advance permission to leave at 9 a.m.
The parties stipulated that it has been the practice that a
group leader who is not a supervisory employee neverthe-
less has the authority, along with the supervisors, to give
maintenance department employees permission to leave
the Company's premises.
During the meeting, Rouse was called in and interrogat-
ed concerning the nature of his conversation the day before
with Whitmore. Finally Harrington was called in and the
matter of whether employees should get permission from
him or through the group leader was discussed.
Sometime during this meeting Clemens advised Whit-
more that in his "position" he should get permission from a
supervisor.
Whitmore and Graf felt that Whitmore had been
reprimanded by Clemens, although nothing was put in
writing. They further felt that the matter of precisely how
one should get permission to leave the premises had not
been resolved.
This matter then was taken up at the union executive
board meeting that evening. It was determined to press it
with Clemens, seeking a meeting with him for the purpose
of resolving the issue of how one should get permission to
leave the premises.
Chief Steward Schoonover was given the assignment to
call Clemens to set up a meeting. The next morning,
Whitmore asked Schoonover if he had yet contacted
Clemens. Schoonover said that he had not, whereupon
Whitmore stated that he would call Clemens.
Clemens testified that he did receive a call from
Whitmore. He testified, in fact, that he received many calls,
sometimes five or six a day, from Whitmore for meetings to
discuss grievances under the contract. Clemens testified
that in fact he had met with union representatives pursuant
to these calls.
In any event, Whitmore did call him. The substance of
the conversation was that the Union wanted to meet with
the Company concerning the matter of leaving the
premises. Clemens advised Whitmore that as far as he was
concerned the issue of Whitmore having left work Monday
without permission was a closed matter. Clemens further
told Whitmore that, if he wanted to formalize the matter,
the Company would have to consider making a formal
charge out of it, but in any event, since he considered the
matter closed, it was up to Whitmore.
Whitmore testified that it was during this conversation
that Clemens told him, in a loud and angry voice, that if he
continued to pursue the matter the Company would
consider his failure to get permission a class C violation.
Whitmore interpreted this to mean that Clemens had
threatened to discharge him, inasmuch as the only
discipline for class C violations is discharge.
Clemens stated that he did not at any time during this
conversation use the words C rule, C violation, or the like.
Clemens further testified that during this conversation he
talked in a normal business voice and in no event did he
threaten Whitmore with discharge or any reprisal.
B. Issue
The only issue alleged raised by the pleadings is whether,
during the telephone conversation of September 15,
Clemens threatened Whitmore with discharge or other
reprisals for having engaged in protected concerted and/or
union activity.
C. Analysis and Conclusions
It is fundamental that for an employer to threaten an
employee with reprisals because that employee is engaging
in protected concerted activity is a violation of Section
8(a)(l) of the Act. It is also settled that, when a union
official pursues a grievance under a collective-bargaining
agreement, such is protected concerted activity.
When Whitmore called Clemens on September 15 he was
clearly engaged in protected concerted activity, as he had
been throughout. Nor does the Respondent really argue to
the contrary.
Thus the only issue here is whether in fact Clemens made
a threat to Whitmore during the phone call.
After carefully weighing the unrebutted testimony and,
as to conflicts, giving due consideration to the demeanor of
witnesses, and the probability of accuracy, I conclude that
Clemens did not threaten Whitmore with discharge or
reprisal during the telephone conversation.
It is apparent that the issue the Charging Party really
wants to be resolved concerns the appropriateness of
Whitmore's action when he left work at or about 9 a.m. on
September 13. Specifically, the Charging Party seems to
contend that, by agreement on Friday, the Company gave
Whitmore permission to leave. Since he was the union
president and the grievant, the Company knew that he
would have to be present at the arbitration hearing. And,
finally, pursuant to past practice, Whitmore advised his
group leader when he left. The Company therefore had no
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GLOBE-UNION, INC.
right to discipline him or indeed even take the position that
he had left the premises without permission in violation of
company rules.
As indicated above, however, none of this is at issue in
this matter, even though it appears to be the underlying
dispute between the Charging Party and the Respondent.
Whether the Company was right or wrong in its handling
of this matter is not material. What is material is that by
the time the meeting between Clemens, Whitmore, and
Graf ended, the issue, at least as far as the employees were
concerned, was still unresolved.
To pursue the matter to resolution, it was taken up at the
executive board meeting and finally the call from Whit-
more to Clemens asked for another meeting between union
representatives and the Company. At that time, as far as
Whitmore was concerned the matter was still unresolved,
both as to his specific status-whether and to what extent
he had been disciplined-and how leaving the premises
should be handled in the future. The crucial question,
though, is whether during the phone conversation Clemens
threatened Whitmore with discharge for continuing to
press the matter.
Taking Whitmore's testimony in its most favorable light,
and resolving every credibility issue in his favor, it is
conceivable that one could conclude that Clemens threat-
ened Whitmore with discharge when he said that, if
Whitmore wished to continue to formalize the matter, the
Company would have to consider it a C rule violation,
which implies discharge. Never, even in Whitmore's
version, did Clemens threaten to fire him. Whitmore states
that Clemens said the Company would consider it a C rule
violation; leaving the plant without permission is a C rule
violation under the terms of the employees' guide.2
Clemens, on the other hand, testified strongly and to my
satisfaction credibly, that he did not use the words "C rule
violation." I do believe, however, that Whitmore could
reasonably interpret what Clemens said at that time to
mean that, if the matter was to be pursued formally, it
would come down to a C rule violation and, if the
Company prevailed, Whitmore would be discharged.
To predicate a finding that the Act has been violated
upon whether a specific word was used during a telephone
conversation which took place 3 months before the
hearing, and which neither party precisely remembers, is,
in my judgment, not appropriate.
The parties are not in disagreement on the substance of
the conversation, which concerned the issue of leaving the
premises generally, and Whitmore's alleged violation of the
rule specifically. There is no question that the Union
through Whitmore had the right to pursue this and there is
2 There was some indication that this might also be an A rule violation.
however, a reasonable interpretation of the employees' guide would be that
it is an A rule violation to leave one's work station and a C rule violation to
leave the plant premises.
3 In the event no exceptions are filed as provided by Sec. 102.46 of the
no question that the Company had a right to say that, as
far as it was concerned, the matter was closed.
The issue, again, is whether a threat in violation of the
Act was made. To find that Clemens threatened Whitmore
on the state of this record would be tantamount to holding
that a company could never have oral communication with
a union representative on grievance matters. When these
conversations take place, particularly where the parties
hold strong positions, words and the tone in which they are
uttered can be interpreted to be threatening.
Here, there is a new collective-bargaining relationship.
There is no evidence of union animus nor evidence of other
unfair labor practices. There is no evidence that the
Company has embarked on a course of conduct to
intimidate employees in the exercise of their Section 7
rights. Indeed, the alleged threat occurred in only one of
many calls Whitmore made to Clemens. Rather, it appears
that principals of both parties are feeling their way in the
conduct of their relations under the contract.
Even if Clemens used the precise phrase "C rule
violation," such does not amount to a threat against
Whitmore. It was simply Clemens stating the Company's
position. Such is not an unfair labor practice, even if the
Company were wrong. Accordingly, I conclude that the
Respondent did not on September 15, 1976, violate Section
8(aX I) of the Act.
REMEDY
It having been found that the Respondent did not violate
Section 8(aXl) of the Act as alleged, an order will be
recommended dismissing the complaint in its entirety.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in interstate
commerce within the meaning of Section 2(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 General Counsel has failed to establish by a
preponderance of credible evidence that John Clemens
threatened Gary Whitmore with discharge or other
reprisals on or about September 15, 1976.
Pursuant to the foregoing findings of fact, conclusions of
law, upon the record as a whole, and pursuant to the
provisions of Section 10(c) of the Act, I hereby issue the
following recommended:
ORDER3
The complaint is hereby dismissed in its entirety.
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.
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