Great Lakes Carbon Corp.

National Labor Relations Board - Board Decisions

May 16, 1969

175 N.L.R.B. 1050 (N.L.R.B. 1969)

1050 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Great Lakes Carbon Corp . and Donald H. Cmar.
Case 13-CA-7868.
May 16, 1969
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
BROWN AND JENKINS
On November 5, 1968, Trial Examiner Thomas S.
Wilson issued his Decision in the above-entitled
proceeding, finding that the Respondent had
engaged in and was engaging in certain unfair labor
practices within the meaning of'the National Labor
Relations Act, as amended, and recommending that
it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial
Examiner's Decision. Thereafter, the Respondent
filed exceptions to the Trial Examiner's Decision
and a supporting brief, and the General Counsel
filed an answering 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, the exceptions, the briefs, and
the entire record in this case, 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 adopts as its Order the
Recommended Order of the Trial Examiner and
'Respondent ' s motion to strike the General Cousel 's answering brief for
alleged noncompliance with the provisions of Rule 102.46(d) is hereby
denied as lacking merit.
'The Respondent correctly points out certain factual errors in the Trial
Examiner 's findings . The Trial Examiner found that during an inspection
by a representative of the Illinois Factory Inspection Bureau, Plant
Superintendent Stahl was caught by employee Cmar attempting to mislead
the inspector as to the identity of an allegedly defective truck . The record
reveals that it was Personnel Manager Kuntz , rather than Stahl, who was
in contact with the factory inspector on that day.
The Trial Examiner also erred in finding that Kazmierczak visited his
physician after the first day of working in the silo and was forced to work
a second day in the silo despite presentation of his physician's report.
Kazmierczak 's testimony discloses that he performed 2 days of dragline
work before his initial visit to the doctor and that Respondent relieved him
of the job as soon as he presented the medical certificate informing
Respondent, for the first time , that he was in ill health.
After careful consideration, we are satisfied that these erroneous findings
played no significant part in the Trial Examiner 's conclusion , which we
believe to be supported by the record, that Cmar 's discharge was violative
of the Act.
orders that the Respondent, Great Lakes Carbon
Corp., Chicago, Illinois , its officers, agents,
successors, and assigns, shall take the action set
forth in the Trial Examiner's Recommended Order,
with the following modifications:
1. Add the following as paragraph 2(b), and
reletter the following paragraphs accordingly:
"(b) Notify the above-named employee if
presently serving in the Armed Forces of the United
States of his right to full reinstatement upon
application in accordance with the Selective Service
Act and the Universal Military Training and Service
Act, as amended, after discharge from the Armed
Forces."
2. Add the following as the fifth indented
pars raph of the notice:
WE WILL notify the above-named employee if
presently serving in the Armed Forces of the
United States of his right to full reinstatement
upon application in accordance with the Selective
Service Act and the Universal Military Training
and Service Act, as amended, after discharge
from the Armed Forces.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
THOMAS S. WILSON, Trial Examiner: Upon an original
charge filed on May 2, 1967, by Donald H. Cmar, an
individual, hereinafter referred to by name or as the
Charging Party, the General Counsel of the National
Labor Relations Board, hereinafter referred to as the
General Counsel' and the Board, respectively, by the
Regional Director for Region 13, Chicago, Illinois, issued
its complaint dated July 10, 1968, against Great Lakes
Carbon Corp., hereinafter referred to as the Respondent.
,The complaint alleged that Respondent had engaged in
and was engaging in unfair labor practices affecting
;commerce within the meaning of Section 8 (a)(1) and (3)
!and Section 2(6) and (7) of the Labor Management
i Relations Act, 1947, as amended , herein referred to as the
Act.
Respondent duly filed an answer admitting certain
allegations of the complaint , but denying the commission
of any unfair labor practices.
Pursuant to notice a hearing thereon was held before
me in Chicago , Illinois, on September 17 and 18, 1968.
All parties appeared at the hearing, were represented by
counsel, and were afforded full opportunity to be heard, to
produce and cross-examine witnesses , and to introduce
evidence material and pertinent to the issues. At the
conclusion of the hearing, oral argument was had . Briefs
were received from Respondent and General Counsel on
October 9, 1968.
Upon the entire record in the case and from my
observation of the witnesses , I make the following:
'This term specifically includes the attorney appearing for the General
Counsel at the hearing.
175 NLRB No. 166
GREAT LAKES CARBON CORP. 1051
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
The complaint alleged, the answer admitted, and I
therefore find:
Great Lakes Carbon Corp. is and has been at all times
material a corporation duly organized under, and existing
by virtue of, the laws of the State of New York, and has
maintained its principal office and place of business in
New York, New York. Respondent, at all times material,
has been engaged in business as a manufacturer of coke
and carbon products, and in the course and conduct of
said business has maintained a manufacturing plant at
2701 East 114th Street in Chicago, Illinois. During the
last calendar year, which is representative, Respondent at
its Chicago, Illinois, plant, received a gross annual
revenue from its business operations in excess of $1
million and shipped goods and material directly to States
outside the State of Illinois valued in excess of $100,000.
Accordingly, I find that Respondent is now, and has
been at all time material herein, an employer engaged in
commerce within the meaning of Section 2(6) and (7) of
the Act.
11. THE CHARGING PARTY
The Charging Party is Donald H. Cmar, an individual,
who had been employed by Respondent continuously since
about November 1961 and who about November 1965
became the chairman of the workmen's committee at
Respondent's plant of Local 7 - 210 of Oil, Chemical
and Atomic Workers International Union (OCAW) which
represented the employees of Respondent as a result of a
Board-conducted election in 1965.
III. THE UNFAIR LABOR PRACTICES
A. The Facts
The employees of Respondent at its Calumet plant, the
only plant involved here, have been represented for
purposes of collective bargaining by a union since before
1946. Originally that representative was an oil workers'
union affiliated with the CIO. In 1946 Respondent's
employees disaffiliated from the CIO and formed an
Independent Union which continued to represent them,
without affiliation, until sometime in 1965, when in an
NLRB election Respondent's employees voted in favor of
representation by Local 7 - 210 of Oil, Chemical and
Atomic Workers International Union (OCAW) as against
the Independent by a margin of approximately 106 to 5.
OCAW thereupon began negotiations with Respondent
resulting in a collective-bargaining agreement dated
November 8, 1965. Several former Independent officers
were on the negotiations team for OCAW.
A few months after the negotiation of the above
contract, employee Donald Cmar became the chairman of
the Workingmen's Committee for the OCAW in the
plant.' As such Chairman Cmar handled grievances as
they arose. Under the then Plant Superintendent
O'Connor grievances were handled smoothly with the
Union winning some and losing some. Then Glenn Stahl
replaced O'Connor as plant superintendent. At first
grievances were handled smoothly as they had been in the
past with O'Connor. Again the Union won some and lost
some.
Thereafter grievances suddenly became harder to
handle.' Even oral extensions of time in which to process
grievances from step to step' were no longer honored but
had to be placed in writing.
Soon after Cmar became OCAW chairman conditions
in the lunchroom and men's room came into question
between Cmar and Stahl. Conditions would improve for a
while and then relapse. Cmar finally brought the matter to
the attention of the Factory Inspection Bureau of the
State of Illinois which sent a state inspector to the plant
and ordered some changes made.
Sometime during his chairmanship, Cmar objected to
Foreman Beadle that Beadle had sworn at him and told
him that he would not take this kind of abuse. Beadle
agreed to refrain from such language so that the dispute
was settled between the two without the necessity of a
riled grievance.
On or about March 22, 1967, during Respondent's
spring "housecleaning," Stahl ordered the independent
contractor, who for years had been removing debris from
the company dump to which it had been trucked by
Respondent's own employees, to pick up this debris at the
bagging department, instead of from the dump as had
been done in the past.' This sudden change of operations,
without consultation with the Union, disturbed the
employees working in and around the bagging department
because they feared the loss of work to the independent
contractor. They discussed the possibility of walking off
the job in protest but instead decided to call in Cmar.
Upon learning the story Cmar advised against striking
and stated that he would see Stahl about the matter.
Cmar reported to Stahl that the men were considering
striking because of the change in the independent
contractor's work. Stahl requested a period of 10 minutes
in which he could make a telephone call to his superiors in
New York. Cmar answered that he would do better than
that, that he would give Stahl a half-hour or an hour in
which to make the telephone call. He then returned to the
men and told them not to walk out but to go back to
work. This they did. Within a few minutes Stahl had the
independent contractor cease picking up the debris at the
bagging department.' That ended the March 22 episode
and the Respondent's employees returned to work. There
was no walkout.
Under date of March 29, 1967, Stahl wrote Cmar as
follows:
'Cmar had been employed by Respondent continuously since
approximately November 1, 1961. During that period of time Cmar had
worked his way through the labor gang and into the mobile department
where he operated moving equipment including Respondent 's locomotive.
'Cmar testified that this began about the time Cmar and Stahl happened
to meet at a wake where they fell into conversation during which Stahl
suggested that a foreman's job would be coming open soon and, "if Cmar
kept his nose clean ," Cmar would be considered for the opening. Cmar
answered that he had taken an oath to properly represent the employees
and that he intended to do so.
Stahl admitted meeting Cmar at a wake but denied the part of the
conversation regarding the possible promotion.
Because of its unimportance to the decision here , I do not resolve this
obvious conflict.
The grievance procedure under the contract required steps to be taken
within a certain stated number of days.
'Regarding this, Stahl testified , "Our men were working overtime the
way it was, and as I said , for economical reasons, I couldn't see us hauling
this debris out to the dump and having him [the independent contractor]
pick it up [there]."
'However , according to Stahl , with the beginning of the next shift the
independent contractor again began picking up debris at the bagging
department.
1052 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In accordance with arrangements with another firm
and my instructions to that firm, a truck and a tractor
entered the plant premises on Wednesday, March 22,
1967 to remove contaminated coke that could not be
processed for sale to our customers. While this
contaminated coke was being removed from the plant
to be taken to a "dump", you told me that unless that
function ceased within 30 minutes, you would tell each
of the employees in the bargaining unit to stop work
and leave the plant. You were, in fact, telling us that
you, as the Chairman of the Union Committee, would
not only assist and support an illegal strike, but that
you would order each employee member of the
bargaining unit to engage in an illegal strike.' As
Chairman of the Committee, you certainly must have
known that you were risking your job and the job of
each of your employees who may have followed such an
order from you. In addition, of course, you were
subjecting the Union to a suit for damages if such a
threat were carried out by one or more employees as a
result the Company suffered any production loss. I
know you must also be aware that you or any other
employee who engages in an illegal strike does so
without the protection of the law.
This is not the first time you have violated the
Articles of Agreement by assuming an irrational and
irresponsible position. Be assured , however, it is the last
time that such conduct will be tolerated.
On or about September 16, 1966 you caused one of
our employees to risk his job by telling him to stop the
performance of work which he had been told to do. Not
only did you tell this employee to stop work, you told
him to leave his work area with you. By your actions,
you not only neglected your job, causing a disruption in
your assigned duties, but you caused a further loss of
production by taking this other employee with you,
thereby, causing him to leave his work assignment. As
a result of this incident in September of 1966, you were
given written notice that "further action of this nature
will result in disciplinary action."'
On Wednesday, March 22, although you did not tell
any employee to stop work, you flagrantly violated the
Articles of Agreement by your threats and by telling us
that practically 100% of our employees would "follow
you out of the gate." You also improperly absented
yourself from your assigned work.
Let me make it very clear to you, Mr. Cmar, that if
you once again cause any disruption or delay in the
normal operation of the plant, you will be discharged.
If you once again threaten us with a work stoppage or
a "walk out" of one or more of our employees you will
be discharged. In order for you to continue in our
employ, you must conduct yourself in a manner
satisfactory to us, and in the same manner as all of our
other employees are required to conduct themselves.
You are, in addition to all other requirements, to
perform the duties to which you are assigned, and you
are not to leave your job for the purpose of conducting
union business or personal business with other
'This statement as to the facts which occurred on March 22 is contrary
to the facts of that event found above. I make the finding above based
upon independent evidence produced at the hearing , Stahl 's own testimony
that his assistant superintendent reported to him at the time that the
employees - not Cmar - were upset about the activities of the
independent contractor and threatening a walkout and upon Cmar's own
testimony so corroborated.
'Perhaps this is the event which hardened up the handling of grievances.
employees without permission. You are not allowed to
tell any employee to disobey orders given by
management and you are not to disobey any orders
given to you. Any act of insubordination will cause you
to be discharged.
The provisions of Section 17.01 of the Articles of
Agreement are clear. Any slowdown or stoppage of
work at the Calumet plant will not be tolerated.
Neither will we tolerate a threat from you or any other
employee of a slowdown or a stoppage of work. We
have agreed to a procedure for the orderly adjustment
of differences. You will abide by that procedure as a
condition of your continued employment.
Mr. Cmar, we have gone the limit with you. From
now on you will conform to the Company's rules and
regulations and you will abide by the terms of the
Agreement or you will be discharged.
By letter dated April 4, 1967, Cmar answered Stahl's
letter as follows:
In reference to a grievance given to you on March
24, 1967.
Your answer given to the chairman on the 29th of
March, you stated as follows: March the 22nd, that I,
Donald Cmar, told you, Glen Stahl, I was giving you
thirty minutes to cease the function of an outside
contractor out of the area of which he was in, or that I
would tell each of the employees in the bargaining unit
to stop work and leave the plant. This is not so, the
men were ready to leave when they themselves saw the
outside contractor working in the plant.
I, Donald Cmar, informed Mr. Knapp what the
situation was at that time. Mr. Knapp replied he had
had orders to allow this outside contractor in the plant
to clean the area.
You have stated in your letter of violation of
agreement of the Union, though, we the employees feel
it is the Management of Great Lakes Carbon, Calumet
Plant, that is in violation of agreement continuously.
Subject: September the 16th of 1966, you also were
in violation of the contract. Section 601 & 7.13-D.
Regarding your statement on September the 16th of
1966, this is also false. I, Donald Cmar, told Dave
Hensley, to push a button. I did not tell him to leave
the area.
May I once again remind you of section 2.9 of the
Taft Hartley Act. This particular section will be made
clear to you and all your associates in the near future.
You also mentioned in your letter, we have agreed to
a procedure for the orderly adjustment of differences.
You also should abide by this procedure. Then, may I
ask you the Company , going to practice this procedure?
On almost every occasion the Company tells us that
we don't have a grievance.
Management was told approximately three weeks in
advance that the mobile department needed to rent a
larger truck and also they were told they would have to
either place more men in the mobile department or
work the men that they had overtime. I had received
word that you, Mr. Stahl , was not going to give out
anymore overtime in the mobile department.
The coke in question has been piling up for some five
months. Management was told on numerous occasions
of the situation , they saw fit to do absolutely nothing
about this condition.
You and the Company are still in violation of Article
302.
The Company has been in constant violation of the
contract since you have been in office.
GREAT LAKES CARBON CORP. 1053
You, Mr. Stahl, gave me your word when I took
back a grievance that was handed to you by W.
Stocker, in which the same contractor was involved.
You assured me, this contractor would not do anymore
clean up work in the plant. At that time I have
mentioned to you that this was a breach of contract.
On April 26 Foreman Beadle assigned John
Kazmierczak, who spent 95 percent of his time as an
employee of Respondent as the shift engineer on
Respondent's locomotive in moving materials around the
plant, to operating a dragline in a large silo used for the
storage of coke. This was a very dirty, dusty job. The last
time Kazmierczak had operated a dragline in the silo had
been 11 to 12 years previously. After first requesting that
Beadle assign someone else to the dragline job because of
his difficulty in breathing in the silo without success,
Kazmierczak complained about the assignment to Cmar
together with the statement that he could not breathe in
the silo. Cmar promptly went to Foreman Beadle claiming
that Respondent was breaching the contract by working
Kazmierczak "out of classification" because the
collective-bargaining agreement contained no such
classification as dragline operator and added that there
was also a health problem in that Kazmierczak could not
breathe in that location. Beadle rejected this grievance on
the ground that he, Beadle, could do nothing about it as
he had been ordered to assign Kazmierczak to the work.
That evening at home Cmar wrote up a written grievance
regarding -Kazmierczak' s assignment.
After work that night Kazmierczak visited his own
physician who found that Kazmierczak was suffering from
emphysema and gave Kazmierczak two letters requesting
that Kazmierczak not work in the dusty silo because of
this condition.
The next morning, April 27, Kazmierczak gave one of
those two letters from the doctor to Beadle and the other
to Cmar. However Kazmierczak continued to operate the
dragline that day after requesting and obtaining a
respirator. Kazmierczak again complained about the
assignment to Cmar.
Cmar began work on April 27 at 10:15 p.m. operating
the locomotive. At 6:15 a.m. on April 28 Cmar's foreman,
Kirkland, requested Cmar to work overtime that day in
order to relay signals to the locomotive engineer on the
shift who was Kazmierczak who had been relieved of the
dragline job. An engineer was required on the locomotive
that day because the locomotive then in use had been
supplied by the Indiana Harbor Belt Railroad which had
put the locomotive onto the Respondent's track headed
the wrong way so that the engineer sitting in his proper
position could not see the signals due to the curve in
Respondent's track and thus required an engineer to relay
those signals to him. On his second shift, therefore, Cmar
was assigned to work as Kazmierczak's engineer to relay
signals.
About 10:30 that morning Foreman Szafranski came to
the engine and ordered Kazmierczak to report to
Respondent's doctor. Kazmierczak was driven there by
the Respondent' s personnel supervisor, Kuntz. At this
examination the company doctor discovered that in
addition to emphysema Kazmierczak also suffered from
diabetes. The doctor sent Kazmierczak back to the plant
with written orders that he was not to work until the
diabetic condition had been cleared up.
A few minutes before 1 o'clock Kazmierczak returned
to the locomotive in street clothes and very upset over
both his physical condition and his prospective time away
from work. Cmar inquired if Kazmierczak wanted to
pursue the grievance already prepared and signed by
Kazmierczak. Kazmierczak did want to proceed. Cmar
then stated that he would check out of work at 1 p.m. and
would drive him to the union hall in regard to, this
grievance.
So at or about 1 p.m. Cmar left the locomotive and
reported to the foreman's office then being occupied by
Foreman Beadle and Szafranski. Cmar told Beadle that
he was going to punch out after approximately 15 hours
on the job and drive Kazmierczak to the union hall along
with some uncomplimentary language regarding how
Respondent had been treating Kazmierczak. Beadle
requested Cmar to stay on the job a while longer but,
being reminded that Cmar had already worked 15 hours,
agreed that he could punch out.' After receiving this
permission, Cmar turned and walked 8 or 10 feet towards
the office door when Beadle suddenly said, "G - d -
you. You are always - ing me.s10 Cmar immediately
turned on his heel, returned to the desk, red in the face,
slammed his hard helmet on the desk, referred to Beadle
as an "s.o.b.," loudly proclaimed that he would not stand
for Beadle's cursing him, and then added that he would
not touch Beadle in the plant but would "get him
outside." Admittedly this part of the incident was loud,
noisy, and profane. Ultimately Cmar got hold of himself,
turned, and left the office. The damage was entirely vocal
as no blows were struck or involved.
Cmar and Kazmierczak, who had been waiting
approximately 100 feet outside the office, then walked to
Stahl's office some 1,500 feet away where Cmar began
talking to Stahl about the grievance of Kazmierczak.
Stahl promptly asked him to "simmer down" as he was
obviously still excited. Cmar handed Stahl the written,
signed Kazmierczak grievance. Stahl stated that it was no
good and that he was going to file it in the wastepaper
basket." After Cmar stated that Stahl could throw it in
the wastebasket if he cared to as Cmar had a copy of it
and was going to take Kazmierczak to the union hall
about it, Stahl inquired if Kazmierczak really wanted to
pursue the grievance. Kazmierczak did. Then Cmar
reported that Beadle had sworn at him in the foreman's
office and that he, Cmar, was not going to take that
anymore. During this discussion Cmar also reported his
own language and threat.' 2 Stahl informed Cmar that
cursing "is something he [Cmar] don't have to put up
with. I would take care of it right away." With that
assurance Cmar and Kazmierczak left Stahl's office and
proceeded to the union hall.
Within the hour after the departure of Cmar, Stahl and
his assistant superintendent, Knapp, interviewed Foreman
Beadle at the foreman's office regarding the episode.
According to Knapp's report to Stahl, Beadle was
"shook" by the incident. There is no showing in this
record that Respondent disciplined, reprimanded, or even
"spoke to" Beadle regarding his having cursed Cmar.
They did take a signed statement from Beadle.
'Szafranski testified that during this part of the incident everything was
quiet and that Cmar was "real nice"
"In his testimony Beadle denied having cursed but admitted having said
the second sentence as Cmar was walking to the door Although the
dispute is unimportant , I find on the probabilities of the situation that
Beadle did utter the curse With a man as irritated as Beadle obviously was
the first sentence , unfortunately , was the appropriate prelude to the second.
"This Stahl denied
"Stahl denied hearing anything about Cmar's language and threat during
this conversation. I cannot accept Stahl's denial because of Stahl's
tendency during his testimony and in his letter of March 29, particularly,
to omit or change facts.
1054 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On Saturday, April 28, Stahl telephoned Cmar at his
home telling him not to report for work as scheduled on
the Sunday night shift but instead to report to his, Stahl's,
office at 8 a .m. on Monday. Cmar inquired if he was
discharged and ultimately Stahl admitted that he could
not have his employees talking to and swearing at
foremen that way and that Cmar was discharged.
On May 2, 1967 Cmar filed his charge with the Board
and apparently, almost simultaneously, filed a grievance
with Respondent regarding his discharge. However,
Respondent refused to arbitrate the Cmar discharge on
the ground that he had filed charges with the Board.
Cmar has not been reinstated.
B. Conclusions
Respondent commences its brief as follows:
Nature of the Case
Respondent operates a plant in South Chicago,
Illinois known as the Calumet plant. The employees
have been represented by the Oil, Chemical and Atomic
Workers Int'l, Local 7-210 and predecessor unions for
over 20 years. During this span Great Lakes and the
unions of its employees' choice have enjoyed excellent
relations. No antiunion sentiment exists in Great Lakes
management.
General Counsel by filing the instant complaint
undertook to prove by a preponderance of the evidence
that Donald Cmar, Chairman of the plant's Workmen's
Committee, was discharged to discourage participation
in union activities . What the General Counsel really
undertook to prove was that, if an ordinary member of
the union rather than the Chairman of the Workmen's
Committee, had called his foremen a son of a bitch,
started to remove his jacket preparatory to a physical
assault, then "thought better of it" and proclaimed that
while he wouldn't touch the foreman inside the plant,
he would get him outside or at his home, wherever it
was, or perhaps have the job done for a 10-cent
telephone call, Respondent would not have discharged
the threatener Of course, there is not a scintilla of
evidence that Respondent (or any other responsible
employer) would tolerate such conduct by anyone. But
proceeding from the unstated and idiotic premise that
Respondent normally would excuse such conduct, the
General Counsel argues that since Cmar was
discharged, it follows that the reasons for his discharge
was not his outrageous conduct but was because he had
presented grievances.
Mere statement of those essentials shows how
preposterous the case is. There is not the faintest
indication in the evidence that if some employee other
than Cmar had done what he did, that the other would
not have been fired.
If an employer does not have cause for discharging
an employee who, upon the verge of an assault upon his
foreman, thinks better of it and promises to conduct the
assault off plant property rather than on it, it is
difficult to imagine to what "cause" possibly can be.
And Section 10(c) of the Act guarantees the right to
fire for cause. (A guarantee that in actuality is not
necessary because the Act does not interfere with an
employer's right to discharge for whim, caprice, malice,
or no cause).
From this statement of the "facts" of the case -
accurate so far as it goes as to the events of April 28,
1967, but assiduously restricted to the events of that day
throughout the complete brief - Respondent reaches the
following conclusion:
Respondent respectfully requests the protection of the
Trial Examiner against the unprecedented assault of the
General Counsel, and we use the word "unprecedented"
advisedly, for we believe he will be able to cite no
relevant authority authorizing this persecution. When an
employer is in full accord with the spirit and: letter of
the Act - and has been for many years - it should
not be subjected to the expense and problems of a
baseless complaint, no matter how insistently the
charging party may have importuned for one. The
Regional Office should have had the courage to decline
to proceed.
Thus Respondent has reached its conclusion by
carefully considering only the remarks and actions of
Cmar in the foreman's office on April 28. This attempt to
consider but one element of a case in vaccuo was
attempted in N.L R.B. v. Thor Power Tool Co., 351 F.2d
584 (C A. 7), where the Court in considering a very
similar case of the discharge of a "grievance
committeeman" held:
Respondent argues that [employer-representative]
Tinsley's remark must be separated from what led up
to it; however, the remark cannot be considered in a
vacuum. Respondent also argues that [Foreman]
Russell's testimony that he discharged Tinsley solely
because of the remark should be , conclusive. But a
contary inference is warranted. Tinsley's derogatory
remark undoubtedly triggered his discharge; however,
Russell's extreme displeasure of Tinsley's participation
in the grievance was clearly evident. Therefore, we
think the evidence supports the Board's determination
that Tinsley's remark furnished the excuse rather than
the reason for Russell's retaliatory action.
As other cases have made clear, flagrant conduct of
an employee, even though occurring in the course of
Section 7 activity, may justify disciplinary action by the
employer. On the other hand not every impropriety
committed during such activity places the employee
beyond the protective shield of the Act. The employees'
right to engage in concerted activity may permit some
leeway for impulsive behavior, which must be balanced
against the employer's right to maintain order and
respect. N.L.R B. v. Illinois Tool Works, 153 F.2d 811,
17 LRRM 841 (7th Cir. 1946) Initially the
responsibility to draw the line between these conflicting
rights rests with the Board, and its determination,
unless illogical or arbitrary, ought not to be distrubed.
In the instant case we cannot say that the Board's
conclusion that Tinsleys remark was within the
protection of Section 7 was either unreasonable or
capricious.
So, as one cannot decide this case on the remarks and
actions of Cmar considered in vaccuo, the decision here is
not as easy as Respondent would have one believe.
In its brief under the heading entitled "The Respondent
has never shown an antiunion attitude" Respondent makes
its basic contention that "The labor relations history of
this plant is an model of what industrial relations should
be." These assertions are questionable.
In 1946 Respondent's employees, led by then employee'
L. R. Beadle," disaffiliated from the CIO union then
representing them and formed an Independent union
which represented the employees for the next 20 years
"Beadle was promoted to foreman in 1955
GREAT LAKES CARBON CORP. 1055
without apparent incident. The first ripple of
dissatisfaction (so far as- this record shows ) occurred in
1965 when in a Board-conducted election the employees
voted for representation by the affiliated OCAW union in
lieu of the Independent by a vote of approximately 106 to
5. After the negotiation of the 1965 collective-bargaining
agreement on November 8, 1965, by the then OCAW and
former Independent Officers Roy P. Kuntz and Thirston
Kirkland" among others, Cmar became chairman of the
workmen 's committee in the plant on behalf of Local
7-210.
Cmar, as such chairman , began handling employee
grievances . One of the first concerned the condition of the
plant lunch and rest rooms , Upon failing to secure any
lasting solution to these problems from Respondent, Cmar
took the matter to the Factory Inspection Bureau of the
State of Illinois with the result that an inspector of that
Bureau found some deficiencies in the plant . During the
inspections Stahl was caught by Cmar attempting to
mislead the inspector as, to the identity of an allegedly
defective truck .,Such independent and aggressive handling
of grievances is not apt to endear the representative
handling the grievance to management.
After Cmar had handled a few more grievances
including the abortive walkout of March 22, 1967, Stahl
wrote Cmar his letter of March 29, 1967, on the subject
of how Cmar was to handle grievances in the future if he
was to retain his employment. The clear implication of
this letter was that Cmar was to interpret the collective
bargaining as the Respondent wanted it interpreted and
was to handle grievances only when Respondent wanted
them handled. This letter contained at least the following
three threats concerning Cmar's action as a handler of
employee grievances:
(1) This is not the first time you have violated the
Articles of Agreement by assuming an irrational and
irresponsible position . Be assured, however , it is the last
time that such conduct will be tolerated.
(2) In order for you to continue in our employ, you
must conduct yourself in a manner satisfactory to us,
and in the same manner as all of our other employees
are required to conduct themselves. You are, in
addition to all other requirements , to perform the duties
to which you are assigned , and you are not to leave
your job for the purpose of conducting union business
or personal business with other employees without
permission.
(3) Mr. Cmar, we have gone the limit with you.
From now on you. will conform to the Company's rules
and regulations and you will abide by the terms of the
agreement or you will be discharged. [Emphasis
supplied.]
The intent and purpose of this letter to intimidate and
coerce Cmar in his handling of employee grievances is
clear , unmistakable, and blatant . In it Cmar was told in
no uncertain terms that he was to handle grievances in a
manner satisfactory to Stahl and Respondent on pain of
discharge. -
As early as 1948, in N. P. Nelson Iron Works, Inc., 80
NLRB 788, 795-796 , where an employee-representative
had told Respondent's president that it was none of his
"damned business" how a union strike vote had been
conducted, 'Respondent claimed such language constituted
"insults to management" and fired the representative, the
Board held:
"Soon after the conclusion of these negotiations Kuntz was promoted to
personnel supervisor and Thirston to foreman.
The Act, in its original form and as amended by the
Labor Management Relations Act of 1947, clearly
protects the making of such statements by an
employee-representative in the course of his dealing
with the employer on behalf of the employees. For it is
the expressed objective of both statutes to protect the
exercise by the employees of their rights to
self-organization and collective bargaining through
representatives of their own choosing, so that
differences or disputes between them and their
employers may be resolved by the process of collective
bargaining rather by test of strength in strikes or
lock-outs. Unquestionably, it is essential to the
accomplishment of this purpose that, in their dealings
with the employer on behalf of the employees, the
employee-representatives be treated on a plane of
equality with the employers rather than as subordinates
as they are in the performance of their duties in the
plant; that, in spite of possible offense to the employer,
the employee-representatives be permitted the broadest,
frankest, and freest possible statement of their positions
and pertinent arguments in such language of vigor and
clarity, as comes naturally to them and seems
reasonably related to their objectives as
employee-representatives, short of inexplicable or
prolonged name-calling or threats of physical harm or
other illegal action;' and, finally, that for the effective
exercise of these rights on behalf of the employees, the
employee-representatives be protected against
discrimination or retaliation by the employer. Only by
a full acceptance and observance of these fundamental
requirements, can it be hoped that management and
labor shall be afforded a reasonable opportunity of
coming to grips with, and ultimately solving, the
problems which confront them.
In the light of these considerations, it is apparent and
that [employee] Van Ess' remarks were well within the
permissible and protected limits of the legitimate
representation of employees contemplated by both the
Act and the Labor Management Relations Act of 1947.
Indeed, not only was the substance of Van Ess' remarks
pertinent to the proper objectives of Van Ess as a
union-committee representative of the employee's
interest, but the language he used, though impolite
according to genteel standards, was mild according to
the not-uncommon standards of conversation in
industrial plants.
50f course, the employer and his representatives possess a
corresponding right to freedom in their expressions and arguments
And representatives of either party may forcefully object to the tactics
and language employed by the other side so long as they bargain
collectively in good faith as required by the Act and the Labor
Management Relations Act of 1947.
Stahl's letter of March 29 violates the above principles
not only as to procedures, decorum, and timing but also
as to the very substance of the matters which Cmar might
bring up, in that Respondent required that Cmar interpret
the collective-bargaining agreement as Respondent would
have it interpreted. The letter in and of itself is a violation
of Section 8(a)(1) of the Act. Further it disproves
Respondent's contention that Respondent was "a model of
what industrial relations should be" as well as that
"Respondent has never shown an antiunion attitude."
In addition Stahl, in his letter, even misstated the facts
of the March 22 incident in order to place the blame
thereon upon Cmar. Not only the evidence produced at
the hearing proved that a number of Respondent's
employees had been upset by the introduction of the
1056 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
independent contractor into the bagging department and
had called Cmar, as their representative, to handle the
grievance on their behalf but even Stahl's assistant
superintendent had reported to Stahl that it was "the
men" - not Cmar - who were threatening to walk out,
even as Cmar stated to Stahl at the time and confirmed in
his testimony at the hearing. It is obvious that Cmar was
at that time acting in his union representative capacity at
the request of the employees and that Stahl knew it. The
evidence proves that Stahl did not appreciate free and
agressive representation of the employees on grievances -
perhaps as a legacy of 20 years of Independent
representation
So the matter stood when, on April 26, 1967,
Kazmierczak came to Cmar as the union representative
with a complaint or grievance regarding his assignment to
the silo as dragline operator, a job classification not
included in the contract.
In accordance with the grievance procedure first
Kazmierczak and then Cmar, acting again in his official
representative union capacity, brought the grievance to the
attention of Foreman Beadle unsuccessfully.
On April 28, after having seen the Company's doctor,
Kazmierczak reported back to Cmar. Although, according
to Stahl, Kazmierczak had been told that he would receive
full pay while medically disabled, Kazmierczak told Cmar
that he still desired Cmar to continue to press his
grievance. In fact Kazmierczak signed the grievance
already prepared by Cmar.
In order to do so, Cmar, after having worked
approximately 15 hours, went to the foreman's office to
secure permission to punch out in order to proceed with
the Kazmierczak grievance at the union hall. Despite an
uncomplimentary comment as to Respondent's treatment
of Kazmierczak, Cmar requested and received permission
from Beadle to punch out. Thus the meeting between
Beadle and Cmar apparently ended with Cmar being
"very nice" and "polite."
As Cmar was about to go out the door some 8 to 10
feet distant from Beadle's desk, suddenly out of the blue
Beadle cursed and added a vulgar comment indicating his
intense irritation and displeasure with Cmar. The words
Beadle used come under the description of "fighting
words," unless uttered with a smile of which there was
none here. Cmar immediately turned and returned to the
desk red-faced, slammed his hard hat on the desk, started
to take off his coat but did not, questioned Beadle's
ancestry, and threatened to "get him outside the plant"
before finally departing with only verbal damage done.
Of course it is this short, loud, profane, vulgar, raucous
part of the incident of April 28 which Respondent
considers to be justification or "cause" for the discharge
of Cmar the following day Considered in vaccuo I might
agree. Considered in relation to all the other facts omitted
by Respondent, I cannot.
The meeting was over quietly, peacefully, and
successfully, when Beadle provoked the other half of the
meeting by his use of "fighting words" which he knew full
well from a previous experience with Cmar they well
might do.15 Under the facts here there can be no question
but that Beadle provoked the outburst which Respondent
claims justified the discharge. As the Fourth Circuit Court
of Appeals said in N.L.R.B. v. M & B Headwear Co.,
Inc., 349 F.2d 170: "An employer cannot provoke an
employee to the point where she commits such an
indiscretion . and then rely on this to terminate her
employment."" While there is no showing as to what
caused Beadle to make his provocative remarks, they
served to entrap Cmar into making a retort both because
of the fighting nature of the remarks and because Beadle
well knew, from previous experience,' that Cmar objected
strenuously to profanity.
The facts here show that actually the verbiage used
during this meeting was unimportant to Stahl When
Cmar reported to Stahl that Beadle had cursed at him,
Stahl testified that he told Cmar that Beadle had no right
to curse and that he "would take care of it" immediately.
In fact Stahl did see Beadle within the hour - but for the
purpose of taking a statement from Beadle to be used
against Cmar - not for the purpose he had indicated to
Cmar. In fact the record here fails to disclose that Stahl
disciplined, reprimanded, or even corrected Beadle in any
way for his provocative phraseology. Obviously the
language was unimportant to Stahl except that it gave him
the excuse to make good his prophecy of March 29 that
the next grievance which Cmar handled on behalf of an
employee in a union representative capacity would be his
last. The next day Stahl made good his prophecy by
discharging Cmar on the excuse that he could not have his
foreman talked to and threatened that way. The provoked
response of Cmar was thus nothing more than an excuse
by which Stahl succeeded in discharging a union
representative because of his aggressive handling of
grievances on behalf of unit employees. This is a violation
of Section 8(a)(1) and (3) of the Act. I so find "
In its brief Respondent refers to Cmar as "this
bellicose, vicious and erratic person" who made
"believable threats of violence" as proof of Cmar's alleged
"propensity" towards violence. Respondent was able to
produce evidence that on one occasion Cmar told Beadle
of having tied up his 16-year old son before disciplining
him with a strap. While perhaps not quite approving of
this method of discipline, even of a 16-year old, this
evidence does not prove a "propensity" to violence. In
fact, as that is all the evidence Respondent was able to
produce as to a "propensity" towards violence in men
employed by it for 6 years or more, the evidence is so
negative as to refute the claim. I find nothing in this
evidence which would'disqualify Cmar from reinstatement"
IV THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section III,
above, occurring in connection with Respondent's
operations described in section I, above, have a close,
intimate, and substantial relationship to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I shall recommend that Respondent
cease and desist therefrom and that it take certain
"Actually it makes little, if any, difference whether Beadle cursed,
cursed at, or even did not curse at all for the admitted part of his comment
was sufficiently inflammatory to cause Cmar to make rejoinder However,
if it were necessary to the decision of this case , I would have to hold that
Beadle cursed at Cmar based upon the probabilities of the matter Beadle's
obvious irritation and displeasure would have tended to lead him to curse
"See Everest & Jennings , Inc , 158 NLRB 1150, 1159.
'See the cases above cited
"N L R B v The Morrison Cafeteria Company, 311 F 2d 534 (C.A 8)
GREAT LAKES CARBON CORP. 1057
affirmative action designed to effectuate the policies of the
Act.
Having found that Respondent discriminated in regard
to the hire and tenure of employment of Donald H. Cmar
by discharging him on April 28, 1967, because of his
protected union activities in handling grievances on behalf
of the unit employees I shall recommend that Respondent
offer to him immediate and full reinstatement to his
former or substantially equivalent position without
prejudice to his seniority or other rights and privileges and
make him whole for any loss of pay he may have suffered
by reason of said discrimination against him by payment
to him of a sum of money equal to that which he would
have earned from the date of the discrimination against
him to the date of his reinstatement, less his net earnings
during such period in accordance with the formula set
forth in F. W. Woolworth Company, 90 NLRB 289, with
interest thereon of 6 percent per annum.
Because of the variety of the unfair labor practices
engaged in by Respondent, I sense an opposition by
Respondent to the policies of the Act in general and I
deem it necessary to order Respondent to cease and desist
from in any manner infringing upon the rights guaranteed
its employees in Section 7 of the Act.
Upon the basis of the foregoing findings of fact and
upon the entire record, I make the following:
CONCLUSIONS OF LAW
1. By discharging Donald H. Cmar because he engaged
in the protected union activity of handling grievances on
behalf of his fellow employees as a representative of a
labor organization, Respondent has engaged in and is
engaging in unfair labor practices within the meaning of
Section 8(a)(1) and (3) of the Act.
2. By threatening Cmar in the letter of March 29, 1967,
to discriminate in regard to his hire and tenure of
employment because of his activities as the union
representative in handling grievances on behalf of his
fellow employees, Respondent has interfered with,
restrained, and coerced him and is thereby engaging in
unfair labor practices within the meaning of Section
8(a)(1) of the Act.
3. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and
conclusions of law and the entire record in this case, it is
hereby ordered that Respondent Great Lakes Carbon
Corp., Chicago, Illinois , its officers, agents, successors,
and assigns , shall:
1. Cease and desist from:
(a) Discharging any employee because he has engaged
in concerted protected union activities in handling
grievances on behalf of his fellow employees on behalf a
labor organization.
(b) Threatening any of its employees with disciplinary
action, including possible discharge, for engaging in
protected union activity in handling grievances of
Respondent's employees on behalf of a labor organization.
(c) Restricting or attempting to restrict the actions or
activities of any employee engaged in handling employee
grievances on behalf of any labor organization.
(d) In any other manner interfering with, restraining, or
coercing employees in the exercise of their rights
guaranteed under Section 7 of the Act.
2. Take the following affirmative action designed to
effectuate the policies of the Act:
(a) Offer to Donald H. Cmar immediate and full
reinstatement to his former or substantially equivalent
position, without prejudice to his seniority or other rights
and privileges, and make him whole for any loss of pay
suffered by him by reason of the unlawful discharge in the
manner set forth in the section of this Decision entitled
"The Remedy."
(b) Notify Donald H. Cmar and the remainder of
Respondent's employees at its Calumet plant in writing
that Respondent has rescinded the restrictions it imposed
in its letter of March 29, 1967, upon Donald H. Cmar as
the Union's grievance representative in his handling of the
grievances of Respondent's employees.
(c) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll and other records helpful to analyze and determine
the amount of backpay due under the terms of this
Recommended Order.
(d) Post at its Calumet plant copies of the attached
notice marked "Appendix."" Copies of said notice, on
forms provided by the Regional Director for Region 13,
after being duly signed by an 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 13, in
writing, within 20 days from the receipt of this Decision,
what steps have been taken to comply herewith.20
IT IS FURTHER RECOMMENDED that, unless Respondent
notifies said Regional Director within 20 days from the
receipt hereof, that it will take the action here
recommended, the Board issue an order directing the
Respondent to the action here recommended.
"In the event that this Recommended Order is adopted by the Board,
the words "a Decision and Order" shall be substituted for the words "the
Recommended Order of a Trial Examiner" in the notice . In the further
event that the Board's Order is enforced by a decree of a United States
Court of Appeals, the words "a Decree of the United States Court of
Appeals Enforcing an Order" shall be substituted for the words "a
Decision and Order "
20 In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read: "Notify the Regional Director for
Region 13, in writing, within 10 days from the date of this Order, what
steps Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act, as amended , we hereby notify our
emplo ees that:
WE WILL NOT discharge any employee for engaging
in protected union activities in handling grievances of
our employees on behalf of a union.
WE WILL NOT threaten or place restrictions upon any
of our employees for engaging in the protected union
activity of handling grievances on behalf of our
employees.
1058 DECISIONS OF NATIONAL LABORRELATIONS BOARD
We have notified Donald H . Cmar that we have
recalled and rescinded our letter to him dated March
29, 1967, and that he is free to handle employee
grievances free of the restrictions we attempted to
impose upon him in that matter by the aforementioned
letter.
WE WILL offer to Donald H . Cmar immediate and
full reinstatement to his former or substantially
equivalent position , without prejudice to any seniority
or other rights and privileges previously enjoyed by him
and will make him whole for any loss of pay which he
may have suffered by reason of his discharge with
interest thereon at 6 percent per annum.
WE WILL NOT in any manner interfere with, restrain,
or coerce any of our employees in the exercise of their
rights guaranteed under the Act to assist a labor
organization or to engage in. concerted protected
activities.
GREAT LAKES CARBON
CORP.
(Employer)
Dated By
(Representative) (Title)
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material.
If employees have any question concerning this notice
or compliance with its provisions, they may communicate
directly with the Board's Regional Office, 881 U.S.
Courthouse and Federal Office Building , 219 South
Dearborn Street, Chicago, Illinois 60604, Telephone
312-828-7572.