Herman Brothers, Inc.

National Labor Relations Board - Board Decisions

Sep 30, 1980

252 N.L.R.B. 848 (N.L.R.B. 1980)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Herman Brothers, Inc. and Fred R. Stief. Case 14-
CA-13123
September 30, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND PENELLO
On July 15, 1980, Administrative Law Judge
Richard L. Denison issued the attached Decision in
this proceeding. Thereafter, Respondent filed ex-
ceptions, a motion to reopen the record, and a sup-
porting brief, and the General Counsel filed state-
ments in opposition to said motion.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the motion, exceptions,
brief, and statements' and has decided to deny the
motion and affirm the rulings, findings,2 and con-
clusions of the Administrative Law Judge, as modi-
fied herein, and to adopt his recommended Order.
The Administrative Law Judge who conducted
the hearing in the instant case on January 15 and
16, 1980, and, as noted above, issued his Decision
on July 15, 1980, properly refused to defer to the
award of an arbitration panel which on October 15,
1979, denied the grievance of employee Fred R.
Stief as to his discharge on October 11, 1979. 3 The
] Respondent has requested oral argument. This request is hereby
denied as the record, the exceptions, motions, statements, and the briefs
adequately present the issues ad the positions of the parties.
2 Respondent has excepted to certain credibility findings made by the
Administrative Laws Judge. It is the Board's established policy not to
overrule an administrative law judge's resolutions with respect to credi-
bility unless the clear preponderance of all of the relevant evidence con-
vinces us that the resolutions are incorrect. Standard Dry Wall Products.
Inc., 91 NLRB 544 (1950), enfd 188 F2d 362 (3d Cir 1951). We have
carefully examined the record and find no basis for reversing his findings
I As indicated above, Respondent on July 29, 1980, moved the Board
to reopein the record for the purpose of introducing a second arbitration
award which on February I, 1980, again denied the grievance as to the
discharge The Administrative Law Judge fulfilled his obligation under
Spielberg Manufacturing Company. 112 NLRB 108(1 (1955), by considering
and ruling on the earlier award which preceded the Board's issuance of
the complaint herein and was part of the record before him As the Ad-
ministrative Lav' Judge decided against deferral to that award and then
proceeded to protect the public rights defined in the Act by making
unfair labor practice findings, it would contravene the policies of the Act
to suspend or render nugatory the Board's assertion of jurisdiction by
thereafter reopening the record folr consideration of any subsequent arbi-
tration award Accordingly, we deny the motion to reopen the record.
In addition to the foregoing reasons, Member Jenkins would not defer
to the grievance committee's determination because the absence of a neu-
tral on that committee prevents it from providing impartial consideration
See his dissent in Terminal ransport Company, Inc., 185 NLRB 672 at
675 (1970).
Member Penello would not defer to the grievance-arbitration proceed-
ings herein because the interests of (both the employer and union mem-
bers of the joint committee, which has no neutral member, appear to be
aligned against the interests of the grievant on the crucial issue of wheth-
er the contract should have been ratified Because of this appearance of
252 NLRB No. 121
Administrative Law Judge thereupon concluded
that Respondent violated Section 8(a)(1) and (3) of
the Act because its "chief reason" for discharging
Stief was its desire to retaliate against him as a
result of his union and other protected concerted
activities and that Respondent would not otherwise
discharge him for failing, contrary to Respondent's
rules, to report his availability for work on October
8, 9, and 10, 1979. In so finding, the Administrative
Law Judge made the following observations:
"[T]he Board has often held that it does not matter
whether or not an employee engaged in conduct
for which he might have otherwise been dis-
charged, if in fact he was discharged for activities
protected by the Act.... [and] that if only part
of an employer's reason for discharging an employ-
ee is unlawful, the discharge violates the Act."
The Board in Wright Line4 recently abandoned
the "in part" language relied on in earlier cases and
set forth the following basic criteria for "examining
causality in cases alleging unlawful discrimination":
The General Counsel must make a prima facie
showing to support the inference that the protected
conduct was a "motivating factor" in the employ-
er's decision. Once this is established, the burden
shifts to the employer to demonstrate that the same
action would have taken place even in the absence
of the protected conduct. As General Counsel has
made such a showing herein and Respondent has
not presented persuasive evidence that it would
have discharged Stief for reasons other than his
protected activities, we find in agreement with the
Administrative Law Judge that Stief was discrimin-
atorily discharged. In accordance with Wright
Line, we also disavow the Administrative Law
Judge's "in part" language.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations adopts as its Order the recommended Order
of the Administrative Law Judge and hereby
orders that the Respondent, Herman Brothers, Inc.,
Clarksville, Missouri, its officers, agents, succes-
sors, and assigns, shall take the action set forth in
the said recommended Order, except that the at-
tached notice is substituted for that of the Adminis-
trative Law Judge.
bias by the committee, which controlled, presented, argued, and decided
the grievance, the grievance proceedings herein do not "appear to have
been fair and regular" as required by Spielberg.
Wright Line, .4 Divivion of Wrigh! Line, Inc., 251 NLRB No. 150
(1980).
848
HERMAN BROTHERS. INC.
APPENDIX
NOTICE To EMPI.OYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportu-
nity to present evidence and state their positions,
the National Labor Relations Board found that we
have violated the National Labor Relations Act, as
amended, and has ordered us to post this notice.
WE WILL NOT discharge, punish, or other-
wise discriminate against Fred R. Stief, or any
other employees, because they have engaged
in union activities or protected concerted ac-
tivities for their mutual aid or protection.
WE WILL NOT threaten our employees with
disciplinary action, if they engage in protected
concerted activities or union activities.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce employees in
the exercise of their rights to self-organization;
to form, join, or assist labor organizations; to
bargain collectively through representatives of
their own choosing; and to engage in union ac-
tivities or concerted activities for the purpose
of collective bargaining or other mutual aid or
protection, or to refrain from any and all such
activities, except to the extent that such right
may be affected by an agreement requiring
membership in a labor organization as a condi-
tion of employment, as authorized in Section
8(a)(3) of the Act, as amended.
WE WILL offer Fred R. Stief immediate and
full reinstatement to his former position or, if
such position no longer exists, to a substantial-
ly equivalent position, without prejudice to his
seniority or other rights and privileges, and
make him whole for any loss of earnings he
may have suffered as a result of our discrimi-
nation against him, with interest.
HERMAN BROTHERS, INC.
DECISION
STATEMENT OF THE CASE
RICHARD L. DENISON, Administrative Law Judge:
This case was heard at St. Louis, Missouri, on January
15 and 16, 1980. The complaint, issued on December 20,
1979, as amended, alleges that Herman Brothers, Inc.,
the Respondent, threatened Charging Party Fred R. Stief
on October 4, 1979, with disciplinary action if he en-
gaged in protected concerted activity in violation of Sec-
tion 8(a)(1) of the Act; and on October 11, 1979, dis-
charged Stief because of his protected concerted and
union activities in violation of Section 8(a)(3) and (1) of
the Act.' The Respondent's answer denies the allega-
tions of unfair labor practices alleged in the complaint.
Upon the entire record in the case, including my con-
sideration of the briefs and observation of the witnesses,
I make the following:
FINDINGS of: FACI
I. JURISDICTION
The jurisdictional allegations of the complaint are ad-
mitted in the answer. The Respondent, authorized to do
business under the laws of the State of Missouri, operates
terminals at Omaha, Nebraska, and Clarksville. Missouri,
where it engages in the business of interstate transporta-
tion of freight and other commodities. Only the Re-
spondent's Clarksville, Missouri, terminal is involved in
this proceeding. During the 12-month period ending No-
vember 30, 1979, a typical period, the Respondent in the
course and conduct of its business operations, derived
gross revenues in excess of $50,000 from the transporta-
tion of freight and commodities from its Missouri oper-
ations directly to points located outside that State. I find
the Respondent is now, and has been at all times material
herein, an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
II. LABOR ORGANIZArION
General Drivers, Warehousemen, and Helpers Local
Union No. 21, affiliated with International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and Helpers of
America, hereafter referred to as the Union, is a labor
organization within the meaning of Section 2(5) of the
Act.
Int. AGENCY STATUS
During the course of the hearing, counsel for the Gen-
eral Counsel amended the complaint in this matter to
allege that Judy Meyers is an agent of the Respondent
within the meaning of Section 2(13) of the Act, or in the
alternative a "confidential employee." The Respondent
amended its answer to deny these allegations. The record
shows that Meyers, the secretary to Regional Manager
Dale Mulders, performs secretarial duties including
typing and answering the telephone for Mulders, Termi-
nal Manager Bruce Werbach, and Dispatcher Dave
Hansen. Part of her telephone duties include relaying
messages and occasionally instructions from the above-
named supervisors to drivers. There is not a scintilla of
evidence that Meyers possesses any type of authority to
speak or act officially for the Respondent, nor does the
record show that Meyers' function includes access to or
work relating to confidential labor relations or negotia-
tions matters which the Board has long viewed as the
test of whether or not an employee has attained "confi-
dential" status in the technical sense used by the Board
in representation cases. In any event, the record is
All dates are in 1979 unless otherwise specified. A companion case.
Case 14-CB-4747. which also appears as a part of the original consolh-
dated complaint, as severed and settled hb) the Regional Office mmedi-
ately prior to the commencement of the hearing
849
D)ECISIONS OF NATIONAL. LABOR RELATIONS BOARD
devoid of any evidence that Meyers acts officially on
behalf of the Respondent, and consequently I find that
she is not an agent within the meaning of Section 2(13)
of the Act.2
IV. TH- Al I.tlGIGI) UNFAIR ABOR PRACTICES
At the time the events in this case transpired, the Re-
spondent and the Union were operating under the terms
of an extension of the Master Cement and All Dry Bulk
Commodities Agreement, a multiunion, multiemployer
collective-bargaining contract. Although negotiations
had been completed on the new labor contract, it had
not been ratified. One provision of the new agreement
caused considerable dissatisfaction among the drivers at
the Respondent's Clarksville terminal; namely, the provi-
sion which substituted mileage for the number of hours
worked as the basis for computing the drivers' wages.
Among the dissident group of drivers working for the
Respondent was Fred R. Stief, Charging Party herein, an
over-the-road driver of some 7-1/2 years' seniority. As a
member of the Union, Stief became personally active in
voicing his opposition to the mileage payment provision
of the contract. Thus, on August 5, when all those pres-
ent at the union meeting rejected the proposed ratifica-
tion of the contract, Stief, along with employees Pantone
Sikes and Frank Warren, opposed their Local Union's
effort to conduct a second ratification vote by a mail
ballot. Their efforts failed, a mail ballot election on the
ratification question was conducted, and the September
14 tally revealed that the proposed ratification was again
defeated. The Local Union leadership then arranged to
conduct another mail ballot election on the questions of
ratification and a strike sanction. The ballots were count-
ed on October 5 at the union hall in Hannibal, Missouri,
with management representatives of the Respondent
present at the hall.
During the interim period between the two mail ballot
elections, two events of importance in this case occurred.
On September 26 Fred Stief composed a letter to his
fellow drivers attacking the mileage payment provision
of the proposed contract, attempting to counter alleged
rumors that the terminal would close if the agreement
were not ratified, and announcing a strike "deadline" of
Friday, September 28.3 Stief distributed copies of the
letter at work by placing a copy in each of the drivers'
cars. It is undisputed that shortly thereafter Judy
Meyers, the office secretary, asked Stief if he wrote the
letter, stating that Terminal Manager Bruce Werbach
was interested in knowing who wrote it. Stief admitted
that he was the author. On the following day Meyers re-
ported this information to Werbach who admitted being
z Well into the important portion of Meyers' testimony it was revealed
for the first time that counsel for General Counsel desired to examine
Meyers under Rule 611(c) of the Federal Rules of Civil Procedure based
on the contention that Meyers' interests were aligned with management,
This belated motion was denied. Meyers displayed no hostility, nor did
she occupy a position which either automatically or o the basis of the
testimony aligned her with management within the meaning of the rule
Accordingly, the parties were instructed that counsel for General Coun-
sel would be bound by Meyers' credited testimony.
" Stief also wrote a letter to Local 21 protesting the use of mail ballots
in the ratification process. There is no evidence that this letter came to
the Compatny's attention
irritated when he first read the letter, but insisted that he
later became amused at its inaccuracies.
On October 3, following the completion of his run to
St. Louis, Stief asked Dispatch Supervisor David Hansen
for permission to take off on Friday, October 5. He
stated that he had to go to Bowling Green, Missouri, to
see his attorney about a sale of some property. Hansen
responded, "Fine," and made a notation on the data
sheet. 4
On the night of October 3 Stief suffered a chill and
became ill. On the morning of October 4 when, as was
the Company's practice, Hansen phoned to dispatch Stief
for a work assignment, Maureen Stief reported her hus-
band unavailable because of illness. Hansen agreed. The
legitimacy of Stiefs illness and consequent unavailability
for work on October 4 is not an issue in this case. On the
evening of October 4 Hansen again called with Stiefs
dispatch assignment for Friday, October 5. He talked
with Maureen Stief, who normally receives her hus-
band's dispatch calls. When she reminded Hansen that he
had given Fred permission to be off that day, Hansen ad-
mittedly responded that if Fred went to the union hall
they would issue him a warning letter for excessive ab-
senteeism. This unexpected reaction caused Maureen
Stief to hand the phone to her husband, to whom Hansen
repeated the remark. About an hour later Fred Stief
phoned Hansen and asked if someone had prompted
Hansen to threaten him. Hansen said, simply, that if Stief
went to the union hall the next day he would "be in a
hell of a lot of trouble."
Stief, Maureen Stief, and David Hansen in his initial
testimony, each agreed concerning precisely what was
said during this conversation. It is clear from the testimo-
ny of these three witnesses that at no time on the phone
did Hansen deny that he had given Stief the day off for
personal business on October 5, nor did he insist that
Stief was needed at work and consequently could not be
spared. In my view, the normal human reaction under
such circumstances, assuming that Stief had not original-
ly received permission to be off that Friday, would have
been for Hansen to deny that he had given permission
for Stief to be off coupled with a simple insistence that
Stief report for work the following day. I consider the
fact that Hansen did not do so to be a clear indication
that the Respondent was mainly concerned that Stiefs
real reason for wanting to be off was to attend the Octo-
ber 5 tally of mail ballots on the ratification issue, and
preventing him from doing so.5 Accordingly, I find that
4 Judy Meyers, who remembered the earlier conversation in which
Stief identified himself as the author of the distributed letter, could not
recall Stief asking for time off on October 5, but did not "think" he did.
Her testimony that only the terminal manager had authority to grant time
off is not supported by the record. Hansen, who admitted that he also
knew that Stief wrote the antiunion contract letter, could not recall the
conversation with Stief and, inconsistently, was positive that he did not
grant Stief time off that day for October 5. He did not, however, testify
that he denied Stief's request at that time. I credit Stief.
At a later point in his testimony, prompted by leading questions from
Respondent's counsel. Hansen altered his account of what he said to Stief
over the phone, claiming that he told Stief he was needed at work the
next day and did not have permission to he off October 5. This revised
version. which dramatically conflicts with his earlier very clear account.
is not credited
50
HERMAN BROTHERS, INC
Hansen's remark constituted a threat of disciplinary re-
taliation because of Stief's union sympathies and activi-
ties in violation of Section 8(a)(1) of the Act.
Since Stief was not told that he had to work on Octo-
ber 5, he went about his personal business. He did not go
to the union hall in Hannibal. Instead, that morning, he
stopped by the union hall in St. Louis where Business
Representative John Kent advised him that Dispatcher
Hansen's remark on the phone was unlawful. Kent also
advised Stief that Union Steward Kenneth Hubbard's
conduct in striking a fellow union member in the mouth
at an earlier union meeting was cause for seeking Hub-
bard's removal. Stief then attended to his personal legal
business and returned home. Neither he nor his wife re-
ceived any dispatch calls or other telephone calls from
the Respondent that day. 6
As a negotiated supplement to their collective-bargain-
ing agreement, which remained in effect on an extended
basis, the Respondent and the Union adhered to a series
of "uniform rules and regulations governing employees
of tank truck carriers signatory to the Central States
Area Tank Truck Agreement." Rule 6 governs attend-
ance. Subsection (a) of rule 6 provides: "Absent for 3
consecutive, working days without notification. Volun-
tary quit." At the hearing the Respondent introduced
into evidence a number of letters sent to employees
during the years 1976, 1977, and 1978, informing these
persons that they had been discharged pursuant to article
6(a) for being absent for 3 consecutive days without noti-
fication. Fred Stief testified that in his experience some-
one from the Company would normally call him at home
in the evening to give him his next day's dispatch assign-
ment. At other times he would receive a dispatch call on
the morning of the day the Company desired him to
work. The testimony of Dispatch Supervisor Hansen and
Terminal Manager Werbach does not contradict Stiefs
description of this company practice. However, Stief also
claimed that at an early stage in his employment by the
Company he was instructed not to call in ahead of re-
ceiving his normal dispatch assignment in order to see
where his name stood "on the board." Dispatches are
made in order of seniority. There is no evidence to
refute Stief's claim that he received this instruction; how-
ever, it is clear that the admonishment Stief referred to
was designed to discourage drivers from unnecessarily
bothering the dispatcher concerning where they stood on
the seniority board vis-a-vis a possible assignment, and
not to excuse drivers from complying with company
rules and normal dispatch procedures. It is also clear that
Stief misinterpreted what he had been told as a "blanket"
instruction that in all situations in dealing with his em-
ployer he should follow the principle of "Don't call us
we'll call you." Dispatch Supervisor Hansen testified
that drivers who report off sick are required to call in
and report their availability when they are ready to
return to work. This assertion is supported by the testi-
I That night, at the union hall, the tally of mail ballots revealed that
the Union's membership hd again rejected the proposed contract and
voted for a strike sanction. With management representatives Rigazllo
and Moeller present, the tinion's leadership agreed to extend the strike
deadline from October 7 until October 14 These findings are based on
Ihe credited testimony of driver Frank UWarren
mony of Terminal Manager Werbach and Union Ste-
ward Kenneth Hubbard. However, Stiefs claim that he
had never heard of this policy is also supported by Han-
sen's testimony that he is not aware that the rules gov-
erning the dispatch procedures had ever been given to
the drivers. Hansen also testified that there have from
time to time been exceptions and departures from the dis-
patch policy concerning the requirement that drivers call
the terminal.
The Respondent took the position that Stief did not
have permission to be away from work on Friday, Octo-
ber 5, and that under all the circumstances, including his
unavailability due to illness on October 4, was obliged to
call in his availability for work before being dispatched.
Consequently, on October 6, when Werbach and Hansen
made up and issued the dispatches for Monday, October
8, Stief was bypassed. In addition, Werbach, who cus-
tomarily contacted Union Steward Kenneth Hubbard
when a potential employee problem arose, asked Hub-
bard to call Stief and make sure he understood the com-
pany policy about making himself available for work.
Hubbard agreed. However, before Hubbard reached
Stief, Stief called Hubbard around I p.m. that day and
complained about not having been dispatched. Maureen
Stief testified that she secretly listened to the conversa-
tion on another phone. Hubbard advised Stief to call the
Respondent and make known his availability for work,
but Stief insisted he had been bypassed and that the
Company was obliged to call him. Stief accused Hub-
bard of failing to properly represent the Union's mem-
bers, favoring the Company, engaging in improper con-
duct by hitting a union member in the mouth, and de-
manded Hubbard's resignation. Hubbard hung up the
phone.7 A few minutes later Hubbard called Stief in an
effort to placate him. Hubbard explained that he did not
want to see Stief create a situation which might result in
his suspension, discharge, or a voluntary quit. According
to Hubbard, Stief responded that he did not mean what
he had said about Hubbard resigning, that Hubbard had
done a good job, and Stief hoped he would stay on. In
his testimony, Stief agreed that Hubbard apologized, but
insisted that the apology was for threatening Stief. Stief
also claimed Hubbard stated that the pressures of being a
shop steward were too much for him and that he would
resign in January. Hubbard's telephone bill shows that he
made a call to Stief's telephone number at 2:44 p.m. on
October 6, and talked for 41 minutes. I find the timing
and the length of the call more consistent with the con-
ciliatory tone of Hubbard's version, which is credited.
On Monday, October 8, Stief remained at home. He
testified that he was not particularly surprised that he did
I Fred and Maureen Stief also testified that Hubbard ended the con-
versation with the remark that the Union and the Company were tired of
Stiefs s- and were going to get rid of him. Stief also insisted that Hub-
bard made no mention of the contention that Stief was obliged to report
himself available for work on October 5 in order to e eligible for dis-
patch Hubbard denied making the threat, and insisted that he relayed the
Respondent', position ith respect to Stief's availability I credit Hub-
bard oser Sief in this respect In all other respects the above version of
this telephone conversation is an amalgam of their credited testimonies
In any event the alleged remark is hearsay with respect to the Respond-
ent's intentions, as is the subsequent alleged threat b Hubbard. concern-
iig Sticf. to driver stevard Frank Warren
851
I) ECISI()NS ()F NATIONAL I.AB()R REI.AI()NS BOARD
not receive a dispatch call that day because it was raill-
ing which usually canceled cement deliveries. At Fred's
request, Maureen Stief spoke by phone with secretary
Judy Meyers that morning and arranged to have her hus-
band's October 4 paycheck sent by mail. Neither Meyers
nor anyone else at the terminal attempted to talk to Stief
about his work status or the extent of the Company's
need for his services. It is also clear that Maureen Stief
did not inquire further. At 4:09 that afternoon, in re-
sponse to a second request from Werbach, Hubbard
again telephoned Stief and talked with him for 8 minutes
about contacting the Company with respect to making
known his availability for work. Stief adhered to his
original position that he had been wrongfully bypassed
by the Company, that the Respondent was obliged to
call him for dispatch, and that if he lost his job he would
file a grievance and, if necessary, take the matter up with
the National Labor Relations Board.
Tuesday, October 9, was described by Stief as "drizzly
weather." Neither he nor his wife contacted the Compa-
ny. He received no telephone calls from the Company
on that day, or on October 10 when once again he had
his wife call Meyers about his paycheck. The check,
Meyers stated, was in the process of being mailed. There
was no conversation concerning Stief's work status or
availability. On the night of October 10 Fred Stief
learned that less senior employees had received dis-
patches for the previous 3 days. On October 11 Fred
Stief filed a grievance concerning his having been by-
passed on the dispatch roster on October 6, 8, 9, and 10.9
When Warren took Stief's grievance up with the Compa-
ny that same day Bruce Werbach announced that Stief
had voluntarily quit under rule 6(a) of the work rules,
since he had not called in for 3 days. Shortly thereafter
Stief received a discharge letter, dated October II, by
certified mail. The reason given for his termination was
"not reporting in and being available for work Monday
(October 8, 1979) through Wednesday (October 10,
1979)." The letter also cited rule 6(a) as the basis for the
Respondent's action. Stief grieved concerning his dis-
charge. The grievance was denied at step one, and later
that same week Stief and Warren pursued the matter fur-
ther with Wilbur Lair, the business agent for Local 21.
Lair called Secretary-Treasurer H. E. "Pete" Harris into
his office and, in the presence of Stief and Warren, asked
whether Stief's case could be heard at the next grievance
panel session in Chicago. After checking, Harris con-
firmed that Stiefs grievance could be calendared for the
next session. Harris advised Stief to promptly submit his
evidence, but nothing was said by anyone present con-
cerning whether or not Stief desired to attend the griev-
ance session. The Master Cement and All Dry Bulk
Commodities Multistate grievance committee convened
on October 25, 1979. Paul Renaud, business agent for
A indicated by Hubbard's telephone hill, Fred and Maureen Siers
testimony thai they received no phone call from Hubbard on October 8is clearly in error Hubbard is credited with respect to this conversation
9 Stief described Warren as his steward. Warren testified very precise-
ly that he served a a union steward fr Local 21 from November 28until December 14. Thus, the record is not altogether clear concerningWarren's official status with the Union from October II until November
29, although it is undisputed that he attended he October 5 mail ballot
count in some type of official capacity
Teamsters Local 682 in St. Louis, sat on the six-person
grievance committee as the union representative. Wilbur
Lair presented the case on behalf of the grievant and the
Union, and Dale G. Herman, vice president of labor rela-
tions, presented the Company's case. Stiefs grievance
was denied. It is admitted by Herman that during the
course of the Company's presentation he made a material
misrepresentation of fact. As a part of the file materials
forwarded by the Company to Herman in Chicago for
use in the hearing were documents relating to the dis-
charge of driver John Thurmond on July 27 for being
out of work 3 days without reporting his availability, and
subsequently settled by the Company and the Union by
an agreement to convert the discharge to a final warn-
ing. Herman represented to the committee that it was
Stief who had been previously discharged for the same
offense, rather than Thurmond. Grievance Committee
Member Paul Renaud testified without contradiction that
Stiefs "prior discharge" was considered as a factor in
denying his grievance. Renaud also testified that he did
not remember consideration having been given to the
contention that Stief contended he was actually fired for
opposing the mileage provision in the proposed collec-
tive-bargaining agreement, although the official minutes
of the grievance committee meeting, in evidence, con-
tains a sentence stating, "The grievant claimed the Com-
pany discriminated against him because he opposed the
mileage contrat [sic]."
Initially, the Respondent contends that I should defer
to the decision of the grievance committee in accordance
with the principles enunciated by the Board in Spielberg
Manufacturing Co., 112 NLRB 1080 (1955), as later re-
fined in Raytheon Company, 140 NLRB 883 (1963), and
reasserted in The Kansas City Star Company, 236 NLRB
866 (1978). Thus, the Board will recognize the arbitra-
tor's resolution of their dispute when the arbitration pro-
ceedings are fair and regular; the parties have agreed to
be bound; the a:bitrator's decision is not clearly repug-
nant to the policies and purposes of the Act; and the ar-
bitrator has considered the unfair labor practice issue and
ruled upon it. The Board has further held that these prin-
ciples, generally described as the Spielberg doctrine, are
applicable in cases involving arbitration panels of the
type herein described, which operate without neutral ar-
bitrators. tO
I find that deferral to the arbitration panel's award is
inappropriate under all the circumstances presented here.
It is undisputed that, during his presentation to the panel,
Company Representative Herman made a material mis-
representation of fact that Stief had previously been dis-
charged for the same offense and subsequently granted a
reprieve. Whether or not this misrepresentation was in-
tentional is immaterial. It is also undisputed that this very
damaging piece of erroneous evidence was unrebutted by
Union Representative Lair, who claimed unfamiliarity
with Stiefs previous work record, and was considered
by the arbitration panel in reaching its decision.In addi-
"l Denver-Chicago Trucking Company. Inc., 132 NLRB 1416, 1421
(19h1): Roadway Expres. Inc., 145 NLRB 513. 514 (1963); Terminal
Transport Company. Inc., 185 NLRB 672 (1970) and Suburban Motor
Fr'ghtr Inc., 247 NLRB No 2 (1980), and cases cited therein
952
HERMAN BROTHERS, INC.
tion, Stief and the Union were clearly in disagreement
over his anti-ratification activities. Consequently, I find
that the arbitration panel proceedings were not fair and
regular within the meaning of that Spielberg requirement.
I also find that the arbitration panel did not consider or
rule upon the statutory issue of discrimination in deter-
mining the propriety of the Respondent's disciplinary
action in accordance with the Board's pronouncement in
Suburban Motor Freight, Inc., supra, and cases cited
therein. The testimony of Paul Renaud and the minutes
of the grievance arbitration panel proceeding show that
no more than a passing reference to Stiefs contention of
discrimination under the Act was made, and that no arbi-
tration panel consideration or determination was given
with respect to this issue.
Finally, find that the arbitration panel's decision was
repugnant to the policies and purposes of the Act be-
cause I find that the principal reason for Stiefs discharge
was the Respondent's irritation over his protected con-
certed activities in opposing the ratification of the pro-
posed contract containing the mileage payment provi-
sion. Undisputed evidence and other credible testimony
shows that the Respondent had in previous years en-
forced the provisions of rule 6(a) by sending discharge
letters to other employees. John Thurmond was dis-
charged for failing to be available for work for 3 con-
secutive days although the facts in his case are somewhat
different since Thurmond simply failed to answer the Re-
spondent's dispatch telephone calls. Nevertheless, Thur-
mond was reinstated and his discharge converted to a
final warning. Stief had received only one written warn-
ing in 1978 for failing to show up for a work assignment,
and had never received any kind of warning for failing
to make known his availability. Although Stiefs dis-
charge letter states simply that he was terminated for
failing to report or be available for work on October 8,
9, and 10, Werbach's testimony clearly demonstrated that
Stiefs having taken Friday off was really the main factor
in the Company's decision to terminate Stief. The cor-
rectness of this conclusion is confirmed by the minutes of
Stiefs grievance hearing which states that Stiefs dis-
charge was made effective as of October 6. However,
the credible record evidence shows that Stief received
permission to be absent from work on October 5. This
permission was never revoked. Stief was simply told by
Hansen on the evening of October 4 that if he went to
the union hall the next day he would receive a written
warning for an unexcused absence and would be in a lot
of trouble, an unlawful threat clearly designed to dis-
courage Stief from attending the tally of mail ballots of
the ratification issue. These factors considered in the
light of the Respondent's admitted irritation over Stief's
published opposition to the proposed contract persuades
me, and I find, that Fred Stief was discharged because of
his union activities and protected concerted activities in
violation of Section 8(a)(l) and (3) of the Act.
Lastly, although it is clear that by not reporting his
availability for work on October 8, 9, and 10, Stief en-
gaged in conduct which would normally fall within the
provisions of work rule 6(a) of the employer's work
rules, the Board has often held that it does not matter
whether or not an employee engaged in conduct for
which he might have otherwise been discharged, if in
fact he was discharged for activities protected by the
Act. Likewise, the Board has held that if only part of an
employer's reason for discharging an employee is unlaw-
ful the discharge violates the Act. The record supports
the conclusion and I find, based on the considerations
discussed above, that the Respondent's chief reason for
discharging Stief, under all the circumstances, was his
desire to retaliate against Stief because of his activities in
opposition to the proposed collective-bargaining agree-
ment, and that Stief would not otherwise have been dis-
charged.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of
the Act, and the Board would assert jurisdiction in this
case.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. By discharging Fred R. Stief because he engaged in
union and protected concerted activities, the Respondent
violated Section 8(a)(3) and (1) of the Act.
4. By threatening Fred R. Stief with disciplinary
action if he engaged in protected concerted activities or
union activities, Respondent violated Section 8(a)(1) of
the Act.
5. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
THF: RIM EDrI
Having found that the Respondent has engaged and is
engaging in certain unfair labor practices, I find it neces-
sary to order that the Respondent cease and desist there-
from and to take certain affirmative action designed to
effectuate the policies of the Act.
Having found that Respondent discriminatorily dis-
charged Fred R. Stief, I find it necessary to order that
the Respondent offer him immediate and full reinstate-
ment with backpay computed on a quarterly basis, plus
interest, as prescribed in F. W Woolworth Company, 90
NLRB 289 (1950), and Florida Steel Corporation, 231
NLRB 651 (1977)."' 1 shall also order the Respondent to
post an appropriate notice with respect to the violations
found to have occurred.
Upon the foregoing findings of fact, conclusions of
law, upon the entire record, and pursuant to Section
10(c) of the Act, I hereby issue the following recom-
mended:
ORDER 12
The Respondent, Herman Brothers, Inc., Clarksville,
Missouri, its officers, agents, successors, and assigns,
shall:
' See. general. I Plumbing d Heattrg Co, 138 NI RB 71 19621
In he event no exceptions are filed as provided by Sec 1t2 46 of
Ihe Rules and Regulations of the National Labhor Relations Hoard. the
findings, conclusions. and recommended Order herein shall, as prosided
il Sec t)2 48 of the Rules and Regulations. he adopled hy he Board and
( onrllnued
853
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1. Cease and desist from:
(a) Discharging, punishing, or otherwise discriminating
against any employee for the purpose of discouraging
employees from engaging in union activities and protect-
ed concerted activities for their mutual aid or protection.
(b) Threatening employees with disciplinary action if
they engage in protected concerted activities or union
activities.
(c) In any like or related manner, interfering with, re-
straining, or coercing employees in the exercise of their
rights to self-organization, to form, join, or assist labor
organizations, to bargain collectively through representa-
tives of their own choosing, and to engage in other pro-
tected concerted activities for the purposes of collective
bargaining or other mutual aid or protection, or to re-
frain from any and all such activities, except to the
extent that such right may be affected by an agreement
requiring membership in a labor organization as a condi-
tion of employment, as authorized in Section 8(a)(3) of
the Act, as amended.
2. Take the following affirmative action designed to ef-
fectuate the policies of the Act:
(a) Offer Fred R. Stief immediate and full reinstate-
ment to his former position or, if such position no longer
exists, to a substantially equivalent position, without prej-
udice to his seniority or other rights and privileges previ-
become its findings, conclusions, and Order and all obhjections thereto
shall be deemed waived for all purposes.
ously enjoyed, and make him whole for any loss of earn-
ings, in the manner set forth in the section of this Deci-
sion entitled "The Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and all other records necessary
to analyze the amount of backpay due under the terms of
this Order.
(c) Post at its facility at Clarksville, Missouri, copies of
the attached notice marked "Appendix."'3 Copies of the
notice, on forms provided by the Regional Director for
Region 14, after being signed by an authorized repre-
sentative of Respondent, shall be posted by the Respond-
ent 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 the Respondent to insure that said notices are not al-
tered, defaced, or covered by any other material.
(d) Notify the Regional Director for Region 14, in
writing, within 20 days from the date of this Order, what
steps the Respondent has taken to comply herewith.
':' In the event that this Order is enforced by a Judgment of a United
Stales Court of Appeals, the words in the notice reading "Posted by
Order (lf the National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board "
854