Independent Stave Co.

National Labor Relations Board - Board Decisions

Jan 9, 1974

208 N.L.R.B. 233 (N.L.R.B. 1974)

DIVERSIFIED INDUSTRIES 233
Diversified Industries , a Division of Independent Stave
Company and Coopers International Union of
North America , AFL-CIO. Case 17-CA-4996
January 9, 1974
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS JENKINS
AND KENNEDY
On March 19, 1973, Administrative Law Judge
Sydney S. Asher issued the attached Decision in this
proceeding. Thereafter, the General Counsel and the
Respondent filed exceptions and supporting briefs.
Upon consideration of the exceptions, briefs, and
record, the Board, on July 30, 1973, remanded the
case for findings and conclusions with respect to the
merits of certain unfair labor practices alleged in the
complaint.'
On September 12, 1973, the Administrative Law
Judge issued the attached Supplemental Decision in
this proceeding. Respondent filed exceptions and a
supporting brief to the Supplemental Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel,
The Board has considered the entire record2 and
the attached Decision and Supplemental Decision in
light of the exceptions and briefs, and has decided to
affirm the rulings, findings,3 and conclusions of the
Administrative Law Judge and to adopt his recom-
mended Order, as modified herein.4
ORDER
defer to the parties ' grievance and arbitration machinery Chairman Miller
and Member Kennedy agree with the Administrative Law Judge 's refusal to
defer on those issues for the reasons stated by the Administrative Law
Judge. Member Jenkins would not have deferred, in any event, for the
reasons cited in his dissent in Collyer Insulated Wire, 192 NLRB 837, and
subsequent cases. In view of what appeared to be a reasonably close
interrelationship of the few remaining issues with respect to which the
Administrative Law Judge recommended deferral under Collyer to those
which he had already determined on the meets, the interests of orderly
procedure and fairness to all parties suggested the desirability of the
Administrative Law Judge' s making a determination on the merits as to all
issues. Accordingly, the proceeding was remanded to the Administrative
Law Judge for the preparation and issuance of a Supplemental Decision
setting forth his resolution of credibility issues and his findings and
conclusions on the merits with respect to those issues which he recommend-
ed be deferred under Collyer Cf. Sheet Metal Workers' International
Association , Local Union No 17, AFL-CIO (George Koch Sons, Inc.), 199
NLRB 166.
2 After the original Decision of the Administrative Law Judge issued,
Respondent filed a Motion To Reopen the Hearing "for the limited purpose
of considering the testimony in the hearing in cases numbered 17-CB-1105
and 1137 insofar as that testimony would tend to discredit the testimony
given by said Ernest D Higdon in the instant matter " The case referred to
in Respondent 's motion is Coopers International Union of North America,
AFL-CIO (Independent Stave Company, Inc.), ALJD-530-73 (Aug 31,
1973). We have taken official notice of that Board proceeding and find
nothing therein which persuades us in this case that the Administrative Law
Judge's credibility resolution regarding Higdon should be reversed.
3 The Respondent has excepted to certain credibility findings made by
the Administrative Law Judge It is the Board's established policy not to
overrule an Administrative Law Judge's resolutions with respect to
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions are incorrect . Standard Dry Wall Products.
Inc, 91 NLRB 544, enfd. 188 F.2d 362 (CA. 3, 1951) We have carefully
examined the record and find no basis for reversing his findings
d The Administrative Law Judge found that an effort to compute wages
lost by employee Dillard because she was deprived of the opportunity to
work overtime would lead to an evidentiary morass in the Board's
compliance proceedings . He therefore declined to recommend that Dillard
be reimbursed for such loss of wages. We do not agree . The evidence shows
that the overtime worked by Dillard was a part of her daily duties or was
done with respect to regular periodic inventories We perceive no
insuperable difficulties in computing her overtime and we shall therefore
provide for her reimbursement for the overtime work lost because of the
discrimination against her to be computed with interest at 6 percent per
annum, as provided in Isis Plumbing & Heating Co, 138 NLRB716.J P
Chnapko, inc, 202 NLRB 252, Chemvet Laboratories, Inc., 204 NLRB No
40
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge, as
modified below, and hereby orders that Respondent,
Diversified Industries, a Division of Independent
Stave Company, Lebanon, Missouri, its officers,
agents, successors, and assigns, shall take the action
set forth in the said recommended Order, as so
modified:
1. Substitute the following for paragraph 2(a):
"(a) Offer to restore to Watraud Olga Dillard all
privileges enjoyed by her prior to November 11,
1971, and make Dillard whole for any losses in pay
sustained as a result of the denial of overtime work
with interest at 6 percent per annum."
2. Substitute the attached notice for that of the
Administrative Law Judge.
i A full hearing had been held upon a substantial number of issues, as to
most of which the Administrative Law Judge appropriately declined to
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discourage membership in
Coopers International Union of North America,
AFL-CIO, or any other union, or retaliate against
employees for filing or processing grievances on
behalf of themselves or other employees, by
taking away privileges previously enjoyed, or
otherwise discriminating against them with regard
to their working conditions.
WE WILL NOT threaten our employees with
more stringent working conditions or other
reprisal for filing or processing grievances on
behalf of themselves or other employees.
WE WILL NOT threaten our employees with
more stringent working conditions or other
208 NLRB No. 7
234 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
reprisal, or put into effect more stringent work
rules, or otherwise discriminate against employees
because unfair labor practice charges have been
filed against us, or as a means of forcing
employees or their union to withdraw such
charges.
WE WILL NOT falsely tell employees that they
would have enjoyed certain improvements in their
working conditions but for the action of the
above-named or any other union.
WE WILL NOT tell our employees that we took
away privileges previously enjoyed from an
employee in retaliation for engaging in protected
concerted activities.
WE WILL NOT enter into an agreement with the
above-named or any other union with an undis-
closed intent not to live up to the agreement
unless other demands, not part of the agreement,
are granted.
WE WILL NOT refuse to carry out the provisions
of any agreement entered into with the above-
named or any other union in reprisal for that
union having filed unfair labor practices against
us, or as a means of compelling the union to
withdraw such charges.
WE WILL NOT attempt to cause any employee to
start a movement to oust certain union officials or
otherwise interfere with the internal affairs of the
above-named or any other union.
WE WILL NOT in any other way interfere with,
restrain, or coerce our employees in the exercise
of their right to self-organization, to form, join or
assist any union, to bargain collectively through
rep'esentatives of their own choosing, and to
engage in concerted activities for the purpose of
collective bargaining or other mutual aid or
protection, or to refrain from such activities,
except to the extent that such rights may be
affected by an agreement requiring union mem-
bership as a condition of employment, as author-
ized in Section 8(a)(3) of the National Labor
Relations Act, as amended.
We hereby withdraw and rescind the rule put
into effect in February 1972 prohibiting employ-
ees from eating on the job.
WE WILL offer to restore to Watraud Olga
Dillard all privileges enjoyed by her before
November 11, 1971.
WE WILL make Watraud Olga Dillard whole for
any losses in pay sustained as a result of the
denial of overtime work with interest at 6 percent.
We hereby withdraw and rescind that part of
the document issued by us and given to the
above-named Union on January 27 or 28, 1972,
which threatens more stringent working condi-
tions should the unfair labor practice charges not
be withdrawn.
WE WILL abide by and carry out all provisions
of the settlement agreement we entered into with
the above-named Union on May 25, 1972,
including the payment of wages and reimburse-
ment provided for therein , and the expunging
from our records of the four documents described
therein.
WE WILL , upon request, bargain collectively in
good faith with the above -named Union as the
exclusive representative of all employees in the
unit described below , with respect to wages,
hours, and other working conditions, and, should
an understanding be reached , we will put it in a
signed agreement . The appropriate unit is:
All production, maintenance and machinist
employees of Diversified Industries , a Divi-
sion of Independent Stave Company , includ-
ing quality control inspectors and shipping
department employees , but excluding cleri-
cal employees , retail store employees, and
professional employees , guards, and supervi-
sors, as defined in the Act.
DIVERSIFIED INDUSTRIES,
A DIVISION OF
INDEPENDENT STAVE
COMPANY
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced
by anyone.
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.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board's Office, 616 Two Gateway Center, Fourth at
State, Kansas City, Kansas 64101, Telephone
816-374-4518.
DECISION
SYDNEY S. ASHER, Administrative Law Judge: On
January 26, 1972, Coopers International Union of North
America, AFL-CIO, herein called the Union, filed charges
against Diversified Industries, a Division of Independent
Stave Company, Lebanon, Missouri, herein called the
Respondent. First amended charges and second amended
charges were filed on February 2 and July 3. 1972,
respectively. Based on these charges and amended charges,
the General Counsel of the National Labor Relations
Board, herein called the General Counsel, on July 27, 1972,
DIVERSIFIED INDUSTRIES
issued a complaint alleging that since on or about
November 11, 1971, the Respondent has engaged in
conduct violative of Section 8(a)(1), (3), (4), and (5) of the
National Labor Relations Act, as amended (29 U.S.C. Sec.
151, et seq. ), herein called the Act. The Respondent filed
an answer and amended answer denying that it had
engaged in any unfair labor practices.'
Pursuant to notice, a hearing was held before me at
Lebanon, Missouri, on various dates between September
26 and November 3, 1972, both dates inclusive. All parties
were represented and were given an opportunity to
participate fully in the hearing. At the beginning of the
hea -ing, in accordance with a previously issued notice of
intent to amend complaint, the General Counsel was
permitted to amend the complaint in certain respects. The
Respondent then denied the amended allegations. The
Respondent filed a second amended answer setting forth
an affirmative defense that the collective-bargaining
agreement between the parties establishes machinery for
the settlement of the issues raised in the complaint. During
the hearing, at the suggestion of the Respondent's counsel,
accompanied by representatives of all parties, I visited the
premises of the Wyota Inn, where certain events hereafter
described had taken place. During a recess in the hearing
the Respondent filed a motion to stay proceedings. This
motion was denied by order dated October 19, 1972.2 At
the close of the General Counsel' s case , the Respondent
moved to dismiss paragraph 5(a), (b), (c), (d), (e), (g), (h).
(i), (j), (k), and (1). paragraph 6(a) and (b), and paragraph
7(a), (b), and (c) of the complaint, on the basis of the
Board's policy of deferring to arbitration procedures
agreed on by the parties. Ruling on this motion was
reserved. The motion is now disposed of in conformity
with the rulings and conclusions set forth herein. After the
close of the hearing, the General Counsel and the
Respondent filed briefs, which have been duly considered.
Upon the entire record, and from my observation of the
witnesses, I make the following:
FINDINGS OF FACT
A. Preliminary Matters
1. The Respondent
The Respondent is an unincorporated division of
Independent Stave Company engaged in the manufacture
of wood bowls and novelties at its plant in Lebanon,
Missouri. The complaint alleges, the answer admits, and it
is found that the Respondent annually sells products
i The Respondent filed a motion for more definite statement with regard
to par 5(b) and (k) of the complamt The General Counsel filed an answer
giving further particulars with regard to the portions of the complaint in
question . Thereafter Admimstrative Law Judge Charles W. Schneider
denied the Respondent 's motion for more definite statement on the ground
that the answer supplies the information requested in the motion. The
Respondent also filed a motion for summary judgment with regard to pars
5(1) and 7 of the complaint on the ground that the Board should defer to the
grievance and arbitration procedure adopted by the parties to settle such
disputes The General Counsel filed an opposition to motion for summary
judgment. Thereafter the Board dented the Respondent's motion for
summary judgment with leave to raise the issues again at the hearing.
2 This motion was based on the fact that on October 11, 1972, the
Respondent had filed suit against the Union in the United States District
235
valued at more than $50,000 directly to customers located
outside the State of Missouri. The Board has previously
found that Independent Stave Company was engaged in
commerce.3 It is accordingly found that the Respondent,
as a division of Independent Stave,Company, is, and at all
material times has been, an employer engaged in com-
merce as defined in the Act, and its operations meet the
Board's jurisdictional standards.
2. The Union
The complaint further alleges, the answer admits, and it
is now found that the Union and its Local No. 7 are, and at
all material times have been, labor organizations as defined
in the Act.
3. The appropriate unit
The complaint alleges , the answer admits , and it is found
that all production, maintenance, and machinist employees
of Diversified Industries, a Division of Independent Stave
Company, including quality control inspectors and ship-
ping department employees, but excluding office clerical
employees, retail store employees, and professional em-
ployees, guards and supervisors, as defined in the Act,
constitute a unit appropriate for the purposes of collective
bargaining within the meaning of the Act.4
B. The Setting
Labor controversies between the Respondent on one
hand and the Union and its various locals on the other
hand are not new; they have been going on since at least
1964.5 In May 1971 the Respondent, the Union, and the
Union's Local No. 7 entered into a collective-bargaining
contract covering the employees of Diversified Industries,
effective through May 21, 1974, subject to automatic
renewal thereafter from year to year in the absence of 60
days' written notice by either party of intent to modify or
terminate. It contains, among others, the following
provisions:
Article XX
Grievance and Arbitration Procedure
Section 1. Should any difference anse between the
Company and the Union or any employee in the unit as
to the meaning and application of this Agreement,
there shall be no suspension of work on account of
such difference. An earnest effort shall be made to
Court for the Western District of Missouri , Southern Division , Civil Action
No. 3144. In that action the Respondent filed with the court a motion to
stay proceedings seeking a court order "staying proceedings in Case No.
17-CA-4996, the matter now pending before the National Labor Relations
Board ." To date, so far as I am aware, that motion is still pending
3 Independent Stave Company. Inc, 148 NLRB 431, 434, enfd 352 F 2d
553 (C.A. 8, 1965 ), rehearing denied February 8. 1966, cert denied 384 U S
962 (1966), and Independent Stave Company, 175 NLRB 156.
4 On August 2. 1968, in N LR.B. v Diversified Industries, a Division of
Independent Stave Company. No 19385, the United States Court of Appeals
for the Eighth Circuit entered a judgment requiring the Respondent to
bargain with the Union as the exclusive representative of its employees in a
substantially similar unit
5 See Independent Stave Company, 175 NLRB 156, especially fn I.
236 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
settle such differences immediately in the following
manner:
Step 1.-Within three (3) working days after the
event causing the grievance, the Union shall supply
three (3) written copies of the grievance, one for the
Union, one for the employee and one for the Company.
Step 2.-The majority of the Local Union Officers or
representative of the International shall have the right
to file the written grievance.
Step 3.-Earnest attempts to settle justifiable griev-
ances shall be made by the General Manager or other
officers of the Company, and the President of the Local
Union.
Step 4.-If Step 3 is not successful, then a represent-
ative of the Cooper's International Union and a
representative of the Company shall try to settle the
grievances.
Section 2. If Step 4 is not successful, then the Union
within three (3) days shall notify the Company in
writing that it requests outside arbitration. Outside
arbitration shall be in the following manner:
(a) Within ten (10) work days after serving notice
for arbitration, the party requesting arbitration
will request the Federal Mediation and Concilia-
tion Service to submit a list of available arbitra-
tors. Such list will contain seven (7) names. The
party bringing the matter to arbitration shall
strike the first name from such list. The other
party shall strike the second name, and strikes
shall be alternated in like manner thereafter, and
the last remaining nominee will be designated as
the arbitrator in the proceedings, providing
however that either party may request the Federal
Mediation and Conciliation Service to supply an
additional list if all of the names first supplied are
unsatisfactory to either of the parties.
Section 3. The -decision of the arbitrator shall be
final and binding upon both parties. Expenses of the
arbitrator shall be borne equally by the parties.
Section 4. The Arbitrator shall have no power to add
to, subtract from, or modify any of the terms and
conditions of this Agreement, and the decision shall be
confined to the particular dispute or grievance involved
and rely only on questions of interpretation or
application of the Agreement.
Section 5. No question relating to the scope of the
bargaining unit or to the functions reserved to the
Company shall be submitted to arbitration.
Section 6. An arbitration award covering the subject
of discipline or discharge shall be limited to back pay
not to exceed four (4) weeks.
Article XXIII
Management Rights
Section 1. Unless specifically contracted away by
this Agreement, the right to manage the Company's
business , the operation of its plant, and the direction of
the work force, and all of the authority to execute all of
the various duties, functions, and responsibilities
incidental thereto, are vested exclusively in the Compa-
ny, and shall not be subject to grievance or arbitration,
however, the discipline and discharge of employee for
just cause shall be subject to grievance and arbitration.
Unhappily, the execution of this contract did not bring
an end to strife. At all material times, the Respondent and
the Union have confronted one another in an atmosphere
charged with mutual mistrust, recrimination, rancor, and
litigiousness. It is against this backdrop that we must view
the events related herein.
C. Events Before Filing of the Unfair Labor
Practice Charges
1. The Coryell grievance
a. Facts
At all material times, Watraud Olga (Connie ) Dillard has
been president of Local 7 of the Union and a rank-and-file
employee in the sanding department of Diversified
Industries . Her duties include the inspection of all bowls
completed in the department before they are sent to the
finishing operation. Prior to November 11, 1971, she also
prepared reports at the end of each day , showing daily
production on each item manufactured. The preparation of
these reports had to be done partly after the day shift
(which worked from 7 a . m. to 4 p.m.) ended . Consequently
Dillard , unlike other production employees, worked from
7:30 a.m. to 4 : 30 p.m . Dillard was one of the few rank-and-
file employees who had a reserved parking space on the
Respondent's premises.
On November 2, 1971, Amelia Coryell, an employee in
the bargaining unit, sustained an injury while at work and
left the plant for medical treatment. On November 5, 1971,
she had not yet returned to her job . The Respondent
mailed the following letter to her at home:
We have received notice from the Harwood Clinic
that it is o.k. for you to return to work. This is to notify
you that no compensation will be paid after you have
been released to return to work. You will be expected
to return to work no later than Monday morning,
November 8, 1971. If you do not report to work
November 8, 1971, you will receive an official warning
in compliance with article 30 of the union contract.
Each unexcused absence will result in an additional
warning.6
b Dillard testified that she received no copy of this letter, as required by
the contract I deem it unnecessary to make any finding in thic regard
DIVERSIFIED INDUSTRIES
On November 9, 1971, the Respondent mailed to Coryell
an employee warning notice (marked "2nd notice") which
read in pertinent part:
Unexcused absences will not be tolerated. You received
a certified letter requesting your return and ignored it.
Therefore I must give you this 2nd warning.
The Respondent gave a copy of this notice to Dillard as
president of the local. Dillard and Coryell conferred about
the matter. On the morning of November 11, 1971, Dillard
stopped Gaylord Christie, production manager of Diversi-
fied Industries, as he passed her place of work. She
informed Christie that Coryell had complained that she
had received a warning notice for not coming to work and
that Coryell had written out a grievance which Dillard
planned to file with the Respondent later that day. Dillard
further explained why she thought Coryell did not deserve
the warnings. Apparently. Christie made no reply. About
11:30 a.m. John J. Boswell, vice president of Independent
Stave Company and plant manager of its Diversified
Industries division, came to Dillard's place of work.
Christie and Kirby Hertel, Dillard's foreman, were also
present during parts of the discussion which ensued.
Boswell said he understood that Dillard was helping
Coryell file a grievance. Dillard replied that she (Dillard)
was going to help Coryell, saying: "1 am 100 percent for
her." Boswell, angered, shook his finger at Dillard and
said: "How dare you stand behind her. How dare you help
her file a grievance. You know there is nothing wrong with
her finger and you had better not help her file any
grievance." Dillard retorted: "At 4 o'clock quitting time
you are going to get your grievance." According to
Dillard's credited testimony, Boswell continued as follows:
He said, "Well, I will tell you something, Connie I have
been good to you. Now I am going to take all of your
privileges away from you. I said, "What privileges?" He
said, "You have a parking spot. I don't want to see you
ever parking in the parking spot no more." He said, "I
don't want to ever see you in that parking spot again.
From now on I don't want to see you working no
overtime no more." ... He said, "There will be no
more overtime for you. Do you understand that?" .. .
He said, "I don't want to see you work any more
overtime. He said something else, oh, he said, "The
[production] reports that you have been filling out
every day, I want you to put them on my desk in
person. I don't want them on the secretary's desk." I
had put them on the secretary's desk all of the time. He
said, "I want them on my desk from now on " Oh, he
also changed my working hours, my working time.
7 Boswell gave a somewhat different version According to him, after he
received a written grievance, he went to Dillard and argued about the merits
of the grievance, he accused Dillard of "misusing her position as union
president to help her good friend Coryell. and I wouldn't tolerate that",
he instructed Dillard "from now on she wouldn't be given any special
preference or preferential treatment ; and she was going to be treated just
like everybody else in the plant" lie denied telling Dillard that she would
get no more overtime He also denied that he had stated he was punishing
237
Q. During this conversation of November 11th,
what did Mr. Boswell tell you about those [production]
reports?
A. He told me I would have to place them on his
desk instead of on the secretary's desk, he wanted them
on his desk.
Q. Did he say why?
A. That was a punishment. He told me he was
going to punish me.
Q. He did?
JUDGE ASHER: Is there an objection here?
MR. HANNAH: Did I understand her last statement
to be he said that was a punishment?
JUDGE ASHER: Is that your testimony? You used the
word punishment.
THE WITNESS: Yes, he called it punishment. He said
he was going to punish me.7
Boswell then directed Dillard: "Come with me." Together
the two left the building and proceeded to the parking lot,
where Boswell kicked over the sign containing Dillard's
name designating the space as reserved for her. By then it
was lunchtime and they parted. That afternoon at quitting
time, 4 p.m., Dillard delivered to Boswell the following
grievance, signed by Coryell:
I refuse to accept your so called first and second
warning notices for the following reasons (1) I was
injured while working at Diversified Industries Nov.
the second. On November the third I went to Dr.
Kenneth D. Ridgway; He examined my hand and said
that I should not go back to work for 7 days. He gave
me a letter stating this and I personally gave a copy of
the letter to the general manager John Boswell.
(2) The Company has been violating Article XXX.
Section 1 -C of the contract by not giving the Union a
copy [sic] of the first warning.
From November Il, 1971, to the start of the hearing
herein, the following changed working conditions applied
to Dillard:
1. She no longer parked her automobile in a reserved
space on the Respondent's premises.
2. Her working hours, formerly 7:30 a.m. to 4:30 p.m.,
became 7 a.m. to 4 p.m. As a consequence, she ceased
completing production reports at the end of each workday,
because she found it impossible to do so before 4 p.m.
Presumably these daily reports were thereafter completed
by others, perhaps supervisors.
3. Although she had previously worked overtime-she
estimated that the amount varied from 5 to 9 hours per
Dillard Boswell did not impress me as a candid or forthright witness, his
denial in this respect is not credited
Dillard testified that at one point in the conversation Boswell turned to
Christie and to Hertel and asked them . "Did you hear that Gaylord? Did
you hear that. Kirby'" Christie and Hertel, each of whom was present
during only part of the conversation , corroborated Boswell's denial that
Boswell made any such remark I deem it unnecessary to resolve this
particular conflict.
238 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
week-she was never again offered overtime until some-
time after the beginning of the instant heanng.8
No grievance has been filed by Dillard or by the Union
concerning this incident. The later course of the Coryell
grievance is related below.
b. Contentions of the parties
The complaint (par. 5(a) and (b)) as amended at the
hearing alleges, and the Respondent denies, that on or
about November 11, 1971, Boswell threatened to take
away, and took away "overtime, parking and transporta-
tion privileges" and threatened to change, and changed,
"employees' work duties because of their Union activity."
In the Respondent's motion for more definite statement
the General Counsel sets forth that Boswell "threatened to
change the work duties of employees by discontinuing their
preparation of daily production records and/or the manner
of distribution of said daily production records." It is
alleged that such conduct violates Section 8(a)(1) and (3).
The General Counsel maintains that the evidence dis-
cussed above supports these allegations .9
The Respondent contends in its second amended answer
that these allegations should be dismissed on the basis of
Collyer Wire.10 The Respondent asserts in a letter dated
February 12, 1973: "The alleged taking away of Dillard's
overtime, parking, and transportation could have been
made the subject of a grievance since it would have been a
cognizable contract violation to so discriminate for Union
activity . . . . These alleged violations should be referred
to arbitration." In the alternative, should the Board decline
to defer to arbitration and tackle this issue on the merits,
the Respondent defends on the following grounds: (1)
Dillard's conduct did not constitute protected activity
under Section 7 of the Act because Coryell had been
"malingering" and Dillard's assistance was "unreasonable
and virtually fraudulent" and amounted to a "misuse of
the grievance procedure"; (2) Boswell was motivated by
"the falsity of Coryell's claim, not retaliation against
Dillard"; (3) according to the Respondent's witnesses
Dillard was not denied overtime, and they should be
believed.
c. Conclusions
There is no question that the Board is not ousted of
jurisdiction by existence of a grievance-arbitration proce-
dure in a collective-bargaining agreement although, in its
discretion, it has deferred in appropriate cases to such a
procedure in order to foster and promote the use of
voluntary and mutually agreed-upon methods of determin-
8 Whether Dillard was or was not deprived of the opportunity to work
overtime during the period November 11, 1971, to October 23, 1972, is a
strenuously disputed factual issue . Boswell , Christie, and Hertel testified
that she was offered overtime but refused Dillard denied this Dorothy
Mathews, an employee and a witness for the General Counsel, testified that
about May 12, 1972, Boswell told her "that he had been real good to
Connie, that he had given her a lot of overtime, but she wouldn't get any
any more. And he hgd given her a parking place, which she wouldn't have
any more" Although Boswell denied this testimony, 1 find that the
conversation took place substantially as related by Mathews In the light of
this collaboration, and my observation of the demeanor of the witnesses
involved, I credit Dillard's denial that she received in the period in question
any opportunity to work overtime
ing disputes. The Respondent in its brief cites many such
cases. In one of these, Joseph T. Ryerson & Sons, Inc, 199
NLRB 461, the General Counsel alleged that the respon-
dent had violated Section 8(a)(1) of the Act by this
conduct: the respondent's general manager, referring to the
grievance of an employee pressed by a union official who
was an employee, allegedly threatened the union official
that he would "have a hard time with the company and
also the men in the warehouse" if he pursued the grievance.
Pointing to the grievance-arbitration clause in the contract,
the respondent there urged the Board to defer to
arbitration. The Board refused, saying:
the violation with which this Respondent is charged, if
committed, strikes at the foundation of that grievance
and arbitration mechanism upon which we have relied
in the formulation of our Collyer doctrine. If we are to
foster the national policy favoring collective bargaining
and arbitration as a primary arena for the resolution of
industrial disputes, as we sought to do in Collyer, by
declining to intervene in disputes best settled elsewhere,
we must assure ourselves that those alternative proce-
dures are not only "fair and regular" 5 but that they are
or were open, in fact, for use by the disputants. These
considerations caution against our abstention on a
claim that a respondent has sought, by prohibited
means, to inhibit or preclude access to the grievance
procedures. It is this consideration which persuades us
that the issues of arbitrability and contract coverage,
discussed above, should not here be left to resolution
by the arbitrator as might be appropriate under other
circumstances.
The Respondent in the instant case, like the Respondent in
Ryerson, allegedly "sought. by prohibited means, to inhibit
or preclude access to the grievance procedures." Accord-
ingly, for the reasons advanced in Ryerson, it is my opinion
that the Board should not defer to arbitration on this
issue."
Turning now to the merits, it is clear-indeed it is
nowhere denied-that Boswell became angry at Dillard
and retaliated against her for her part in the filing of the
Coryell grievance. This conduct of Dillard constituted
activity protected under Section 7 of the Act. It matters not
whether the grievance itself was or was not meritorious, or
even that Boswell might have considered it to be
fraudulent. As to the conflicting testimony regarding
overtime, Dillard's version impressed me as accurate, and I
credit it.12 It is accordingly found that by depriving Dillard
of overtime, the use of a parking space, and the use of
company transportation, and by changing her duties
9 He does not contend, however, that the change in Dillard's working
hours constituted an unfair labor practice
10 Collyer Insulated Wire, a Gulf and Western System Co, 192 NLRB 837.
The Board's own appraisal of the significance of this case is contained in its
brief in Provision House Workers Union Local 274. AFL-CIO v. N L R B,
U S. Court of Appeals, Ninth Circuit, No 72-2617, pp 22-24
ii With regard to the deprivation of overtime , another reason for
refusing to defer to arbitration here might be that the limitation of backpay
contained in art XX, sec. 6, is repugnant to the policies of the Act because it
affords inadequate protection. However, I need not and do not decide this
issue
i2 In so doing, I have taken into consideration the testimony of Merrill
Jeffries, which I do not credit in this regard , and that of Mary Carlson,
DIVERSIFIED INDUSTRIES
regarding production reports, all on November 11, 1971,
and by maintaining these changed working conditions in
effect thereafter, because she pressed a grievance on
Coryell's behalf, the Respondent violated Section 8(a)(l)
and (3) of the Act.
2. The Dowden incident
a. Facts
On November 29, 1971, Linda Dowden, an employee in
the Respondent's finishing department, injured her thumb
while a' work. Early in December 1971 she consulted with
Maggie Williams Webb, an official of the Union and union
steward. During working hours, Webb left her work
station, went to the office, and discussed with Christie the
possibility of moving Dowden from her job to another job
in the department, because of her injury. "According to the
testimony of Webb, a witness for the General Counsel,
Christie "said for me to go back to my job and he would be
up in a minute to talk to me about it." She returned to
work. About an hour later, according to Webb's version,
Boswell and Robert Milan, then foreman of the finishing
department, came to Webb's place of work. Boswell told
Webb "he could fire ... [her] for going down to the office
and talking about union business on company time."
Webb replied that she "was representing an employee that
needed to be moved." Webb asked that Dowden be moved
to another job in the department. Boswell answered that
there were no jobs open in the department. Either Webb or
Boswell stated that openings had been filled without
posting. Boswell then "said that if [Webb] would forget
about the posting of the jobs that he would forget about
firing [Webb] and he would call it a deal and forget it."
That was apparently the end of the conversation. The
Respondent's witnesses, Boswell and Milan, supplied a
different version, but for the purposes of this case only it
will be assumed, without deciding, that the events occurred
substantially as related by Webb.13
No further action appears to have been taken regarding
Dowden; none of the Respondent's officials issued any
warning notice or written reprimand to Webb; and neither
Webb, Dowden, nor the Union filed any grievance as the
res It of this incident, or regarding the Respondent's
failure to post job openings.
b. Contentions of the parties
The complaint (par. 5(c)) alleges, and the answer denies,
that in early December 1971 Boswell "threaten[ed]
employees with discharge for filing grievances about job
openings and for inquiring about job openings." It is
alleged that such conduct violated Section 8(a)(1) of the
Act. The General Counsel argues that the above-described
testimony of Webb supports this allegation.
The Respondent cites article XVIII of the collective-
bargaining contract and contends that this matter should
be deferred to arbitration under the provisions of the
which I credit Carlson's testimony may tend to show that, had overtime
been offered Dillard , it would have been refused But in my opinion it does
not tend to dispute Dillard's testimony that overtime was never offered her
ii Webb's testimony was corroborated in part by that of Maryetta
239
contract . On the merits , the Respondent maintains as an
alternative defense that Boswell's warning to Webb was
"clearly justified" because "threats to discharge employees
for engaging in union activity on company time is [sic] not
violative of Section 8(a)(1)."
By way of rebuttal, the General Counsel urges that
deferral is not appropriate here because of the disharmom-
ous labor relations which exist.
c. Conclusions
Article V of the contract provides, in pertinent part:
The Company shall not discriminate against any
worker because of Union membership or Union
activity except that the employee shall not engage in
Union activity on Company time unless with the
permmssion of a Company official.
Article XVIII reads, in pertinent part:
No employee shall be discharged for performing
committee work of the Union, provided it is done
outside of working hours or by permission of the Plant
Superintendent.
In view of these provisions and the grievance-arbitration
machinery set up by the parties, and in the light of the
absence of any claim herein that Webb was engaged in
processing or pressing any grievance on Dowden's behalf
within the framework of those contract provisions, or that
the filing of such a grievance was ever contemplated, I
agree with the Respondent's contention that, on this issue,
the Board should defer to arbitration.14 And, contrary to
the General Counsel's argument, I believe that the absence
here of harmonious relations between the Respondent and
the Union does not require a different result. Accordingly,
I do not reach the merits of this allegation.
3. The safety equipment grievance
On December 13, 1971, the Union filed with the
Respondent a grievance by a number of employees. In
pertinent part it reads:
The company has charged some employees for safety
equipment. This is in direct violation of article No. 14
Section No. 3 of the contract between management and
the Union Local No. 7.
The parties were unable to settle this dispute. On
January 13, 1972, J. F. Souders, Esq., the Union's attorney,
wrote to the Federal Mediation and Conciliation Service,
herein called FMCS, requesting that a panel of arbitrators
be supplied to the parties. On January 251 Souders again
wrote to FMCS with a similar request, and advised Boswell
that he had done so. Accordingly, FMCS supplied a list of
arbitrators' names to both parties. On February 7 Souders
wrote to FMCS, with a copy to Boswell, advising that the
Ballard.
14 Collyer Insulated Wire, supra, National Radio Company, Inc. 198
NLRB No 1: and Joseph T Ryersdfn Sons, Inc, supra
15 Unless otherwise noted, dates hereinafter refer to the year 1972.
240 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
entire panel was unsatisfactory to the Union and request-
ing a second panel. Meanwhile, as related hereafter, a
grievance concerning overtime had been filed by the
Union. While the record is not entirely clear, apparently
either the Union or the Respondent sought another panel
of arbitrators from FMCS for that grievance. Accordingly,
FMCS then submitted two new panels to the parties, one
for each dispute. On March 27 Ellis notified FMCS that
the Respondent rejected both panels in their entirety and
requested new panels. On the same day Ellis wrote to
Souders explaining what had been done.16 On May 23 Ellis
wrote to Ernest D. Higdon, president of the Union, stating
that he had received the second panel but adding: "I see no
point in trying to select an arbitrator until you and Mr.
John Boswell have exhausted all possibility of settlement in
your conference which is to be held tomorrow in
Lebanon." What happened thereafter to this grievance is
related below.
4. The overtime grievance
a. Facts
On January 24 the Union filed with the Respondent a
grievance signed by a number of employees. In pertinent
part it reads:
We the undersigned demand thirty (30) minutes
overtime pay because we failed to receive our pay-
checks before five minutes after quitting time; Friday
[sic] January 21st.
As per the contract between union and management,
Article XIX-Section 2.
When Dillard handed in this grievance to Christie he,
according to his own testimony, "got a little peeved at her
for bringing this out." He termed the Union's action as
"harassing" and "petty" and pointed out that it was
premature. According to Dillard's credited testimony:
He said, "Well, if you have to be so petty, I can be
petty to. [sic] When somebody is late and has a flat tire,
I don't have to take that for an excuse . I don't have to
take nothing for an excuse. I can assure you I can be
mean , too, or nasty just like you people can." I said,
"Well, I don't think that we are nasty. We are just
fighting for our rights." He said, "Well, I am going to
start giving out warning tickets. I am going to give out
warning tickets for every little thing that comes up. If I
see somebody talk or eat or somebody coming in late, I
am going to give out a warning ticket for that. I assure
you I can do all that." I said, "Well, if you have to, you
have to." He said, "And you may get a warning ticket,
too."
Christie testified that he told Dillard:
16 For some reason which is not entirely clear, Ellis' letter to Souders on
this date mentions to the caption the Coryell grievance So far as the record
shofis, however, no request to the FMCS was made for a panel to arbitrate
the ('oryell matter
U Kopp-Evans Construction Company, 143 NLRB 690. Max Silver, Irvin
Silver anr' Edward Braude, Copartners, d/b/a Max Silver & Son, 123 NLRB
Now, Connie, if you're going to insist on being
persistent in filing this, not knowing that it won't be
honored, I'm going to be compelled to follow the
contract more closely than I have in the past.
As related above, while the record is not entirely clear, it
would seem that this grievance was one of the two
grievances for which the parties requested FMCS to supply
a panel of arbitrators, that the FMCS did so, but that no
arbitrator was ever chosen. What happened to the
grievance thereafter is described below. Neither Dillard
nor the Union filed a grievance regarding what Christie
said on January 24.
b. Contentions of the parties
The complaint (par. 5(d)) alleges, and the answer denies,
that on January 24 Christie told "employees that the filing
of grievances would cause the Respondent to make it
rough on employees." It is alleged that this conduct
violated Section 8(a)(1) of the Act. The General Counsel
urges that the above-quoted testimony supports this
allegation.
The Respondent maintains that this issue is "cognizable
as a grievance for an alleged violation of Article V of the
contract which prohibits discrimination for union activity."
Alternatively, on the merits, the Respondent argues in its
brief : "Such statements , even though coercive , if made to
rank-and-file employees, are not coercive when made only
to union representatives."
c. Conclusions
The threats alleged to have been uttered by Christie, if
made, would inhibit the Union in its use of the very
grievance procedure which the Respondent now attempts
to invoke. For the reasons already discussed with regard to
the Respondent's change of Dillard's working conditions
on and after November 11, 1971, 1 conclude that the Board
should decline to defer this issue to the grievance-arbitra-
tion machinery set up in the contract.
Turning to the merits, I credit Dillard's version as more
accurate than that of Christie. However, under either
version Christie's unmistakable message comes through
loud and clear: Because this grievance was being pressed,
the employees' working conditions would be made more
harsh. Such a threat of retaliation, made to Dillard, a rank-
and-file employee, constitutes a violation of Section 8(a)(1)
of the Act, even though this employee also happened to be
a union official.i7
5. The issuance of warning notices
a. Facts
On January 26, 2 days after the Christie-Dillard
conversation related above, the Respondent issued to
269. and Marie T Redli, d/b/a Reath' Cartage Conyoani , 110 NLRB 1742.
cited by the Respondent . are all distinguishable on their facts In none of
these cases was the threat in question uttered in the presence of any of the
Respondent's rank-and -file employees . Here, on the contrary . the threat was
made to Dillard, who was such an employee
DIVERSIFIED INDUSTRIES
Dillard an employee warning notice marked "2nd notice."
In pertinent part it reads: "Solliciting [sic] signature from a
non-union employee on a grievance [sic]. Next Time
Dismissal." It was signed by Christie and Boswell. On the
same day Dillard asked Christie: "Will you please explain
to me what that means?" Christie replied that the
241
previously filed grievance demanding a half-hour's over-
time pay because the paychecks were late contained the
signatu-e of Ladell Booth who "was not supposed to sign it
because she wasn't there 30 days yet." 18
Between January 24 and 27 the Respondent issued eight
other employee warning notices to employees as follows:
No. of
Name Date Notices
Barbara Kenedy 1/24/72 1
Derald Kenedy 1/24/72 1
Laverne Jones 1/25/72 1
Roscoe Myers 1/25/72 2
Carolyn Bates -- 1
Lois Windsor 1/27/72 1
Sherman Moore 3
Leonard Todd 2
Each bore the signatures of two management officials;
Christie signed seven of them. A copy of each was
delivered to Dillard. So far as the record shows, neither the
Union nor Dillard nor any of the other eight employees
involved ever filed a grievance concerning the issuance of
any of these warning tickets.
b. Contentions of the parties
The complaint (par. 5(e)) alleges, and the answer denies,
that from on or about January 24 through on or about
January 27 the Respondent "issue[d] warning notices to
employees because they and other employees had engaged
in and were continuing their Union activity." It is alleged
that this conduct violated Section 8(a)(1), (3), and (4) of the
Act. The General Counsel in his brief points to the timing
of these warning tickets shortly after Boswell threatened
that, because of the Union's "petty" grievance seeking
overtime pay, he intended "to give out warning tickets for
every little thing that comes up." The General Counsel
further argues that "the Respondent was often lax in
enforcing certain rules, and . . . no warning tickets were
issued within a period of time prior to January 24."
The Respondent maintains that, instead of deciding this
issue concerning these nine warning notices, the Board
should defer to arbitration. Alternatively, should this
defense not prevail, the Respondent contends: "With
Remarks
Unexcused absences will
not be tolerated
Unexpected absences will
not be tolerated
Quit work before quitting
time. (Holding time card
in hand 1 minute before
clock read 12 noon or
whistle blew)
Excessive absenteeism
Absence
Unauthorized absence will
not be tolerated
Absence
Absence
respect to the warning slip given Dillard . . . General
Counsel adduced no evidence showing the reason that the
probationary employee signed the overtime grievance. He
thus failed to meet the burden of proof required to
establish that the warning notice . . . violated Section
8(a)(1)." As to the other eight employees "The mere
introduction of these warning notices coupled with
Christie's statement on January 24 is insufficient to
overcome the burden of proof required to establish that
these warnings were given for discriminatory rather than
valid business reasons." Also, "None of the recipients ..
were shown to have been active in union affairs."
c. Conclusions
Let us turn first to the warning slip given Dillard. Like
the withdrawal of certain working conditions on and after
November 11, 1971, this warning notice was on its face a
deliberate attempt to hobble the Union in its use of the
grievance-arbitration machinery which the Respondent
would now have the Board defer to. For the reasons set
forth in Ryerson, and relied on for refusing to defer to
arbitration the allegations of paragraph 5(a) and (b) of the
complaint, it would seem that the Board should itself
decide this issue. However, later events make such a result
inappropriate here and a Board decision on this matter
unnecessary. For on May 25 the parties reached a
"" The collective-bargaining contract, at art XXVII, contains a 30-day
union-security clause
242 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
settlement under which the Respondent agreed, among
other things, to expunge this particular warning notice
from its records. In this posture of the issue, I perceive
nothing to be gained by insisting on making a decision on
the merits of the allegation which has by now been put to
rest. Instead, I shall relegate the parties to the disposition
of the issue already agreed on by them.
So far as the other eight warning notices are concerned,
the General Counsel contends that they were issued in
retaliation for the filing of grievances by the Union. Thus,
if the contention can be proved, they stand in the same
light as does Boswell's depriving Dillard of certain
privileges, described above. Accordingly, like that matter,
the issue of these eight warning slips should, in my view, be
determined by the Board and deferral to the arbitr2i
process rejected.
On the merits, it is significant that on January 24 Christie
had threatened to hand out warning slips "for every little
thing that comes up " It is also true that the record amply
demonstrates the Respondent's animus toward the Union.
But there the General Counsel's arguments run out of
steam. Other than Dillard, no recipient was shown to have
been either an employee who had filed a grievance, a union
official who had processed one, or even an active union
supporter. Moreover, the argument that the number of slips
issued within these few days is significantly high is far from
conclusive. The Respondent's use of warning slips was by
no means a rare occurrance. On the contrary, it appears to
have existed and been in regular use for some time. The
record shows that a minimum of 19 warning notices issued
in 1970 and at least 23 in 1971. Previously, in the space of 2
days at least four had been given out (October 27 and 28,
1970, and again June 7 and 8, 1971) and within 9 days at
least nine had been issued (June 1 through 9, 1971).
Furthermore, there is no evidence concerning the circum-
stances under which the warning slips made the subject of
this allegation were issued, consequently the General
Counsel has not proved that they were undeserved or were
not issued for valid business reasons. While the matter is
not entirely free from doubt, I conclude that the General
Counsel has failed to establish by a preponderance of the
evidence that the Respondent, by issuing these eight other
warning slips, violated Section 8(a)(1), (3), or (4) of the Act.
D. Events After Filing of the Unfair Labor Practice
Charges
I The document drafted by Boswell and the
Webb incident
a. Facts
As previously noted, the instant charges were filed by the
Union on January 26. They reached the Respondent the
following day, January 27. On January 27 or 28 Boswell
called Dillard to the office, where Christie was present. A
conference ensued during which the three pending griev-
ances and the unfair labor practices were discussed at
length.19 Boswell said that he "would like to get [the unfair
labor practice charge] cleared up if it was possible." No
settlement agreement was reached, but during the conver-
sation Boswell drafted the following document and handed
it to Dillard:
Things that we not "Strictly" enforce that we
could
1. Absenteeism. Every other day we could give a
warning ticket for this and we could have Layed-off
[sic] and dismissed many employees who presently
work here.
II. Wearing Safety Equipment. According to the
OSHA "law" we are required to force our employees to
wear Safety Equip. This gives us the right of Dismissal
& Disciplinary Lay-off. This has been used only in two
cases.
III. "No Smoking Rules" We do not strictly
enforce this but we could.
IV. Eating on the job! Candy Bars.
V. Social Conversation on Job! Excessive talking.
VI. Being at work station at 7.00 sharp! and at
1:00 sharp.
VII. Not to leave before 12:00 or 4:00 sharp.
VIII. Handing out Pay Checks Before Friday
Afternoon-We often Advance Money when needed
and give checks before 3:30 Friday if need e.g. pay
rent, cover checks already written, etc.-We Advance
as a service only not because we have to.
IX. We allow people to leave the building during
working hours to get things from their cars, take care of
personal business, etc. This is against Company policy
but we cooperate w/exceptions.
CONNIE:
Please discuss these items along with the grievances &
Unfair Labor charges against the Company. If you will
drop the charges as we feel should never had been filed,
we will continue to be what we feel is reasonable.
Otherwise the above will have to be followed strictly in
order to pay for the grievances & unfair [illegible]
charges. Also, please notice $60 [illegible] analysis on
economics of these [illegible].
X. Power Failure on 9-27-72 cost you nothing-
-cost us $75.00 in labor. We could have docked you
but did not.
Boswell suggested that the contents of this document be
brought to the employees' attention. Dillard agreed to do
so at a special membership meeting of the local union.
Arrangements were made to post notices of this projected
meeting on the plant bulletin boards.
About 10 days later, Webb had some candy in a bowl by
her worktable. Christie came by "and said there would be
no more candy eating on the job, that anybody caught
eating candy would be discharged or disciplined." The
Respondent did not issue any written warning to Webb.
The Union did not file any grievance regarding either the
document drafted by Boswell on January 27 or 28, or the
conduct of Christie toward Webb about 10 days later.
19 Boswell and Dillard testified credibly that the unfair labor practices
were mentioned, Christie denied it I do not credit'Chrisue's denial in this
respect
DIVERSIFIED INDUSTRIES
b. Contentions of the parties
The complaint (par. 5 (k)) alleges, and the answer denies,
that from January 27 to date the Respondent "unilaterally
institute [d] and enforce[d] new and more stringent
working rules because of employees ' Union activity and
because of the Union 's refusal to withdraw unfair labor
practice charges." By way of answer to motion for more
definite statement , the General Counsel lists the following
,,more stringent working rules" which he alleges that the
Respondent unilaterally instituted and enforced:
Absenteeism.
Wearing safety equipment.
No smoking rules.
Eating on the job.
Social conversation on thejob.
Being at work station.
Leaving work station.
Handing out paychecks, and advancing wages.
Allowing employees to leave working area.
Docking employees for power failure.
It is alleged that the above-described conduct violated
Section 8(a)(1), (3), (4), and (5) of the Act.
The Respondent argues strenuously that the issue of
alleged unilateral institution and enforcement of more
stringent working rules should be deferred to the griev-
ance-arbitration process provided in the contract. Alterna-
tively, on the merits, the Respondent maintains that "each
rule enumerated [in the above-quoted document] had been
in existence" long prior to January 1972 and that "there
was no change regarding the administration thereof
following January 28." In any event, the Respondent
contends, "the union had ample opportunity to bargain
over the institution and implementation of the rules ... .
The Union never requested bargaining regarding the
institution of those rules."
c. Conclusions
I agree with the Respondent that the issues of whether
the rules were "new," whether they were thereafter
enforced in a more stringent manner, the impact of
Christie's verbal reprimand to Webb, and whether the
Union was accorded advance notice and a reasonable
opportunity to seek bargaining about the rules are issues
which the Board should defer to the machinery the parties
have set up by mutual agreement.20
One issue, however, is within the Board's special
province: the issue of whether or not the document drafted
by Boswell and delivered to the local's president contains a
threat violative of Section 8(a)(1) of the Act. In my
20 National Radio Company, Inc, supra
21 Dillard testified that during the discussion on January 27 or 28,
Christie remarked to Dillard "that he was going to make it rough on the
people if we don't drop the unfair labor practice charges " The
Respondent moved to strike this testimony as "beyond the scope of the
complaint " The motion was denied in order to avoid fragmenting the story
of this conference In view of the Respondent's motion, the fact that the
complaint does not specifically allege this particular incident as a violation,
243
opinion, the Board should decline to defer on this issue and
should itself made the decision 21 Turning to the merits, a
reading of the document indicates that the entire thrust is a
warning that working conditions would be made more
onerous should the Union refuse to withdraw the unfair
labor practices it had filea. That is particularly emphasized
by the listing in detail of past lenience followed by a
paragraph between items IX and X which explicitly states
that "if you will drop the charges" the Respondent would
"continue" to be "reasonable," but "Otherwise" (that is,
should the Union 3ecline to do so) the rules "will have to
be followed strictly." It is also significant that these words
were penned within a day or two after Boswell first learned
of the filing of the charges. It is accordingly found-indeed
no other conclusion is reasonable-that the document in
question threatened reprisals in the shape of more stringent
working conditions unless the Union withdrew its charges.
Such a threat itself violates Scction 8(a)(1) of the Act,
whether or not it was ultimately carried out.22
2. The local Union's membership meeting
a. Facts
In accordance with the plan described above, a member-
ship meeting of the local union was held in a banquet room
of the Wyota Inn in Lebanon on Saturday, January 29, a
nonworking day for most employees. It was chaired by
Dillard and Clarence Morgan, an officer of the Union.
Among the employees and members of the local union who
attended was Merrill Jeffries.
At some point during the meeting Jeffries left the Wyota
Inn and went to the plant, where he informed Christie and
Boswell that the members of the local union "were going to
process all of the grievances they had and follow through
on them." Jeffries, Christie, and Boswell then proceeded to
the Wyota Inn. Christie and Boswell waited in the coffee
shop, while Jeffries returned to the meeting, announced
that Boswell was in the viumty, and asked "if John
[Boswell] could speak to the members . . . and show .. .
the company's side of the argument." The request was
denied. For the second time Jeffries left the meeting. He
sought Boswell and Christie in the coffee shop and related
what had occurred. Boswell requested Jeffries to "go back
and ask the members if they would hear him [Boswell]
after the meeting had adjourned." Jeffries accordingly
reentered the meeting and, addressing all present, request-
ed the members to "speak to Mr. Boswell after the
meeting." Dillard replied "if they [the members] wanted to
they could go right ahead." Jeffries went out of the meeting
again and reported to Boswell in the coffee shop that
Boswell "could talk to them after the meeting."
and because in any event a finding that Christie threatened reprisals in
violation of Sec 8(a)(1) of the Act would not affect the remedy
recommended herein and would merely be cumulative, I decline to
determine whether such a remark was made
22 While it is possible to argue that this particular threat was not
specifically pleaded in the complaint, I am satisfied that the issue was fully
litigated at the hearing and in the briefs
244 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
When the meeting broke up, the employees had to come
out through the lobby. Boswell stationed himself where
they would have to pass as they left and suggested that
they talk the matter over with him. About 10 members,
including Jeffries, Morgan, Dillard, and Webb, accepted
the invitation and met with Boswell and Christie in the
coffee shop. There ensued a lengthy discussion of the
pending grievances with each side directing derogatory and
disparaging remarks at the other. No agreement was
reached.23 When this broke up, the talk continued in
Morgan's motel room. Present were Christie, Boswell,
Dillard, Dillard's husband, Morgan, and Webb. There the
conversation became rather heated, Boswell grabbing the
document he had written (quoted above) forcibly out of
Morgan's hand, causing it to tear. Although the possibility
of settling the grievances was discussed, no settlement was
reached.
b. Contentions of the parties
The complaint (par. 5(f)) as amended alleges , and the
Respondent denies , that on or about January 29 Boswell
"attempt[ed] to, and did, interfere with the conduct of a
union meeting by insisting upon addressing the employees
at and immediately after said meeting." In this connection,
the General Counsel takes the position that the Respon-
dent made Jeffries its agent for this purpose.
The Respondent denies that Jeffries was its agent and
that it was accountable for his conduct. Alternatively, the
Respondent argues that even were it held liable for Jeffries'
acts, nothing that he did interfered with the local's conduct
of its membership meeting.
c. Conclusions
I need not decide the agency issue . For the purposes of
this case it will be assumed, without deciding, that Jeffries'
conduct was binding upon the Respondent. Even so, there
was no significant interference with the meeting while it
was in progress. A request that an employer address such a
meeting is not itself disruptive, and indeed such direct
presentation of an employer's viewpoint to his employees
assembled at a union meeting is not unheard of.24 Jeffries
addressed the chair and at no time showed disrespect, nor
interrupted the business of the meeting for more than a
minimal period of time, nor in any other way conducted
himself improperly. Moreover, he accepted the adverse
ruling from the chair without protest. And to contend that
Boswell interfered with the meeting after it had come to an
end is a contradiction in terms. I conclude that the General
Counsel has failed to establish by a preponderance of the
evidence that Boswell (either in person or through his agent
Jeffries) interfered with the meeting to any significant
degree.
21 Dillard testified that Boswell asked her to drop the unfair labor
practice charges but she refused Jeffries, however, testified that he heard no
mention of unfair labor practices . I deem it unnecessary to make a finding
in this regard.
3. The abortive attempt to improve the insurance
program
a. Facts
Article XVI of the contract between the parties provides
for certain specified insurance, to be paid for entirely by
the Respondent. In January Robert P. Reams, an insur-
ance agent, approached the Respondent regarding an
improved program. Boswell complied with Reams' request
for certain information. Reams, a witness for the General
Counsel, testified as to what took place thereafter:
On March 23 or 24 Reams visited the Diversified
Industries plant and presented his plan for group insurance
to Boswell. This involved obtaining written approval from
75 percent of the eligible persons. It also involved enlarging
the Respondent's contributions by about $100 per month.
Boswell remarked that he wanted to increase the existing
benefits. He suggested that it would be advisable, before
contacting individual employees, to speak to the Union's
local officers. Accordingly, Boswell introduced Reams to
Dillard. Reams then met with Dillard and a group of
employees and explained the plan, including the cost to
each covered employee. Some signed authorizations. After
that Reams began to contact other individual employees
and to describe the plan to them. In this manner, over a
period of 2 days, Reams obtained 45 signed authorizations
from 79 eligible employees. (There were additional cards
from ineligible employees). Sometime during this penod
the proposed insurance carrier notified Reams that there
would be a time limit imposed and that the required
number of signatures would have to be obtained by March
25 in order to qualify for the quoted rate; after that date
the rate would increase. Not having obtained the necessary
percentage of authorizations within this time limit, Reams
left Lebanon and nothing more has been done regarding
his insurance plan by him or by the Respondent.
According to Dillard, while Reams was at the plant
collecting signatures of employees on insurance authoriza-
tions, Dillard told Boswell, in answer to an inquiry, that the
Un'on would like to have the improved insurance,
whereupon Boswell said: "If we start anew and get those
[unfair labor practice] charges out of the way, we can get
the,msurance and . . . settle the grievance" and that on the
same day Christie similarly assured her that, should the
unfair labor practices be withdrawn, the Respondent
would give in on the pending grievances and obtain the
insurance plan suggested by Reams. In both instances,
according to Dillard, she declined to drop the unfair labor
practice charges.
On several occasions after Reams' departure, Boswell
mentioned the insurance plan to employees. About May 4
or 5 he remarked to Viola Pender, an employee, that "if
Connie [Dillard] had done what she should have that we
would have had better insurance." About May 8 Boswell
told Mona Moore, an employee, "we would have better
insurance but for the Union." And about May 12 he
24 See, for example . The Beticher Manufacturing Corporation, 76 NLRB
526, where the employer's representative was invited to address a union
membership meeting
DIVERSIFIED INDUSTRIES
advised Dorothy Mathews, an employee, "to take [her
hospital bills] to Connie [Dillard] and tell her that if it
hadn't been something that she did that all my insurance
[sic ] would have been paid if we would have had this new
insurance."25
No grievance has been filed regarding the insurance plan
or Boswell's above-quoted remarks to employees.
b. Contentions of the parties
The complaint as amended alleges (par. 5(g) and (h)),
and the Respondent denies, that on or about January 29, in
May, and on or about June 12 Boswell "state[d] to
employees that they would have had more favorable
insurance benefits but for the Union"; and on or about
May 8 told "employees that their hospital bills or the
hospital bills of their dependents would have been paid but
for the Union." It is alleged that this conduct was violative
of Section 8(a)(1) of the Act. The complaint as amended
further alleges (par. 5(i)), and the Respondent denies, that
on or about January 29 and in February and March
Christie and Boswell "promise[d] employees more favora-
ble insurance benefits, and a favorable resolution of
pending grievances, if the Union would withdraw unfair
labor practice charges." It is alleged that such conduct
violates Section 8(a)(1) of the Act. The complaint, as
amended, also alleges (par. 5(1)), and the Respondent
denies, that in March the Respondent "failed to effectuate
new insurance benefits because of the Union's refusal to
withdraw grievances and unfair labor practice charges." It
is alleged that such conduct violated Section 8(a)(l), (3),
and (4) of the Act.
The Respondent seeks deferral of these issues to the
machinery provided in the contract for the final settlement
of disputes, under the Collyer doctrine. Alternatively, on
the merits, the Respondent would justify Boswell's admit-
ted remarks to employees regarding the insurance plan on
the ground that Boswell had good reason to believe that
"Dillard was responsible for the insurance falling
through." As to the alleged failure to effectuate new
insurance, the Respondent denies all responsibility, claim-
ing that the plan failed to materialize solely because Reams
could not obtain sufficient employee authorizations. In any
event, maintains the Respondent, the matter of insurance
was fully covered in the agreement and the Respondent
was under no legal compulsion to bargain further on this
subject.
By way of rebuttal the General Counsel urges "there
were a total of 48 eligible employees on March 25, 1972.
Thus, Reams had secured applications from over 60
employees, including 45 of the 48 eligible employees."
c. Conclusions
Let us examine first the admitted remarks by Boswell to
Pender, Mathews, and Mona Moore. The allegation that
such remarks interfered with, restrained, and coerced
employees in violation of Section 8(a)(1) of the Act, in my
opinion, is not the kind of issue susceptible of determina-
tion under the grievance-arbitration provisions of the
25 Boswell adnutted "I told Viola Pender and possibly Dorothy
Mathews and possibly Mona Moore that Connie squelched the insurance
deal."
245
agreement. Accordingly, the Board should not defer to
arbitration on this matter, but should determine the issue
itself.
On the merits, the Respondent produced evidence
tending to indicate that, while Reams was at the plant,
Dillard informed him that in her opinion Boswell was
"using" Reams and his insurance plan as a lever to
persuade the Union to drop its unfair labor practice
charges; Reams then confronted Boswell with this accusa-
tion; Boswell denied it; and shortly thereafter Reams,
without further contacting Boswell , left the plant and
abandoned the insurance plan. The Respondent urges that
because of these events Boswell was justified in believing
"that Connie [Dillard] had run him [Reams] off." I cannot
agree. Boswell knew full well that Reams' insurance plan
was enthusiastically supported by Dillard and other union
officials and that they had rendered assistance to Reams'
efforts. Accordingly, Boswell could not have believed in
good faith, that the Union and/or Dillard were to blame
for the plan's demise. It follows, and I conclude, that, by
his statements in early May to Pender, Mathews, and
Mona Moore that the insurance plan would have succeed-
ed but for the Union's opposition, Boswell deliberately
distorted the truth in order to disparage unfairly both
Dillard as a union official and the Union itself. Such
conduct was violative of Section 8(a)(1) of the Act.
Let us turn to the alleged promises of Christie to improve
the insurance if the Union would withdraw its unfair labor
practice charges. In my opinion, this issue is also not the
type which, under Collyer, may appropriately be deferred
to arbitration. On the merits, for the purposes of this case it
will be assumed, without deciding, that the Respondent
offered a benefit-insurance improved over that provided
for in the existing collective-bargaining contract-condi-
tioned upon withdrawal of the charges. The offer of such a
"deal" is not in and of itself coercive. For the policies of
the Act encourage the voluntary settlement of pending
charges (subject, of course, to approval by the Regional
Director) 26 I look upon this proposition as an integral part
of the give and take which often accompanies an effort to
reach a mutually acceptable overall settlement 27 As such I
find nothing sinister or unlawful in such a proposal.
We now examine the alleged failure of the Respondent
to put Reams' insurance plan into effect for discriminatory
reasons. This issue , also, I do not consider one which the
Board should defer under Collyer. By insisting that the
record indicates that a sufficient number of employees
signed up to enable the plan to go into effect, the General
Counsel would contradict the figures testified to by its own
witness, Reams. I, on the other hand, accept Reams'
figures without hesitation not only because he was in a
position to know but also because he impressed me as a
credible and reliable witness. Moreover, the General
Counsel can point to no facts indicating that the Respon-
dent took any steps to foil the plan or to prevent it from
going into effect. On the contrary, the Respondent, like the
Union, cooperated fully with Reams. Reams described
how his efforts failed as follows:
26 See National Labor Relations Board Statements of Procedure, Series
8, as amended , Sec 101.7
27 See Untied Aircraft Corporation, 192 NLRB 382.
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
JUDGE ASHER: Did Mr. Boswell ever tell you to go
ahead with the plan, that the plan was acceptable?
THE WITNESS: No, we never really reached that
point where we had everything together to make it.
JUDGE ASHER: Did they ever tell you not to go ahead
with it, tell you that it was unacceptable?
THE WITNESS: No.
JUDGE ASHER: He never told you either way?
THE WITNESS: No.
JUDGE ASHER: Do I understand you correctly
now-I don't want to put words in your mouth but let
me sum it up. See if I understand your testimony
correctly.
For certain technical reasons it was impossible to go
ahead with this?
THE WITNESS: Yes.
JUDGE ASHER: Is that correct?
THE WITNESS: Yes.
JUDGE ASHER: You didn't stop because Mr. Boswell,
or Christie told you to?
THE WITNESS: No. I was never told to.
JUDGE ASHER: . . . And you just realized because of
these technical difficulties, you didn't have 75 percent,
you had a time limit by the company, et cetera?
THE WITNESS: Yes.
In view of the above, I am satisfied that the insurance
plan aborted because of factors beyond the Respondent's
control. Accordingly, in agreement with the Respondent, I
conclude that the General Counsel has failed to show by a
preponderance of the evidence that the Respondent caused
the insurance plan to fall through for discriminatory
reasons.
4. The job application of Marcia Moore
a. Facts
Early in May officials of the Occupational Safety and
Health Administration , herein called OSHA, at the
suggestion of the Union , inspected the plant of Diversified
Industries . They informed Boswell that OSHA rules
required 1 toilet for each 10 female employees , and that the
Respondent was in violation because at that time the plant
was equipped with only 2 toilets for women , yet employed
on the day shift more than 20 females . (Apparently this
admonition did not apply to the night shift ). On May 5
Boswell sent Dillard a letter reading in pertinent part:
We had an inspection from Lloyd L. Stone , Compli-
ance Officer , Occupational Safety and Health Adminis-
tration (OSHA) this date . One of the rules of this act is
that we are required to furnish one (1) bathroom for
each ten ( 10) female employees . At the present time our
facilities are such to accommodate a total of 20 female
employees in the rough mill and sanding area.
We have attached for your information and guidance a
seniority list. Please select those people to a total of 20
that you wish to continue working and the balance will
have to be terminated.
Attached was a seniority list of Diversified Industries
employees. A few days later Higdon wrote to Boswell
declining Boswell 's request that the Union "select those
who must be laid off." So far as the record shows, nothing
more was done regarding the proposed layoff, and all
employees on both shifts were retained. No grievance has
been filed regarding this incident. Construction was begun
on an additional toilet facility for the use of female
employees.
Meanwhile, early in May, Mona Moore, an employee,
had asked Christie whether there was a job opening for her
sister, Marcia Moore. Later Hertel told Mona Moore that
her sister Marcia was hired; Mona Moore replied that she
would tell her sister to come in on Monday, May 8.
In accordance with the above, Marcia Moore reported
for work on May 8. In the presence of both Mona and
Marcia, Boswell said "that Marcia couldn't be hired right
then because of OSHA coming in and about the restrooms,
and that he might have to lay off some people because of
it." Marcia was told by either Boswell or Christie to come
back in 2 weeks. She eventually returned, was hired for the
day shift and began work on July 16. She has been working
ther'i ever since. No grievance has been file regarding the
eve ,ts of May 8.
In mid-August construction of the additional toilet
facilities was completed. Between May 8 when Marcia
Moore first came to the plant and July 16 when she was
finally hired, the Respondent hired no new female
employees for the day shift and five new female employees
for the night shift. There were always sufficient toilet
facilities under OSHA rules for the female employees on
the night shift; the Respondent's problem in this regard
was limited to female employees on the day shift.
b. Contentions of the parties
The complaint alleges (par. 6(b) and (c)), and the answer
denies, that the Respondent "refuse[d] to hire applicant
Masha [sic] Moore" on or about May 8 "because of said
employees' Union and/or other protected, concerted
activity, and/or because of the Union and/or other
protected, concerted activity of other employees." It is
alleged that such conduct violated Section 8(a)(1), (3), and
(4) of the Act. The General Counsel in his brief describes
"Boswell's failure to hire Marcia Moore" as "a sporadic,
impulsive reaction to his anger at the Union's .. .
initiation of the OSHA inspection." Pointing out that
Marcia Moore could have been, but was not, hired for the
night shift, the General Counsel argues that "Boswell
couldn't have been overly concerned with the OSHA
regulations . . . as he in fact hired Marcia Moore before
additional restroom facilities had been provided." The
General Counsel does not, however, contend that Boswell's
letter to Dillard on May 5 constitutes an independent
unfair labor practice.
The Respondent argues in its brief (1) "the Respondent
did not refuse to hire Marcia . She was later employed on
July 16": (2) "the Respondent hired no other women
employees during the period May 8 to July 16, which
negates any inference that Respondent was giving Marcia
a run around": (3) Boswell "genuinely believed he could
not . . . employ more women until the restroom problem
was solved, and initially believed he would be forced to
effect a layoff"; and (4) assuming that "Boswell held a
grudge against the Union for bringing in OSHA," it is
DIVERSIFIED INDUSTRIES
unlikely that he would have "taken it out" on Marcia
Moore. Affirmatively, the Respondent maintains that "the
reasons for Boswell's failure to hire Marcia Moore is . . .
that he had an insufficient number of restrooms downstairs
for his female employees."28
c. Conclusions
It is true, as the General Counsel points out, that Boswell
was quite angry at the Union for bringing in OSHA. This is
underlined by the juvenile act of temper contained in his
letter of May 5 to Dillard. It is also true that on May 8
Boswell availed himself of this opportunity (when Marcia
applied for ajob) to make an illegal and coercive remark to
Mona Moore blaming the lack of better insurance on the
Union. And it is likewise a fact that ultimately Boswell did
hire Marcia Moore before the additional toilet facilities
had been completed But the situation on May 8 when
Marcia Moore applied was that no work had as yet been
started on these facilities so far as the record shows. The
situation on July 16, when she was finally hired, was
entirely different. By then construction was underway and
it was actually completed about a month later. Moreover,
that Boswell was in fact concerned about the lack of
sufficient toilet facilities for women and strongly desired to
come into compliance with OSHA rules is shown not only
by his expenditure of labor and materials to add facilities,
but also by his refraining from new hires of women on the
day shift until the additions were at least partially
constructed.
The most glaring weakness of the General Counsel's case
is his failure to show convincingly that Boswell's anger
took the form of a reprisal against Marcia Moore. He
presumably had never met her before, she was not shown
to have been a member of the Union, and was to all intents
and purposes completely innocent of any connection with
the Union's suggestion to OSHA that the Diversified
Industries plant be inspected. Nor was her sister Mona
Moore an active adherent of the Union. Although the
matter is not completely devoid of suspicion, I conclude
that the General Counsel has failed to establish by a
preponderance of evidence that the Respondent's delay in
hiring Marcia Moore from May 8 to July 16 was
discrinunatorily motivated.
5. Boswell's remark to Mathews
It will be recalled that on May 12 Boswell told Mathews
to tell Dillard "that if it hadn't been something that she did
. .. we would have had this new insurance," as described
above. In the same conversation, Boswell continued,
according to Mathews, as follows:
He said that he had been real good to Connie, that he
had given her a lot of overtime, but she wouldn't get
anymore. And he had given her a parking place, which
she wouldn't have any more.
The General Counsel in his brief contends that this
incident falls within the allegation of the complaint (par.
5(a)) that on or about May 12 Boswell "threaten[ed] to
28 In its second amended answer, and again at the end of the General
Counsel's case, the Respondent contended that the Marcia Moore incident
should be deferred to arbitration under the Collyer doctrine However, in its
247
take away overtime, parking and transportation privileges
from employees because of their Union activity," in
violation of Section 8(a)(1) of the Act. The Respondent
would have the Board defer this matter to the grievance-
arbitration plan under the contract's provisions.
In my opinion, this is a matter which the Board should
decide rather than deferring to arbitration. To apply
Collyer to such an alleged threat would, I believe, stretch
that doctrine well beyond its expressed intent. On the
merits, so far as the record shows, on May 12 Mathews did
not have a parking place or the use of company
transportation. Hence, there could hardly have been a
threat to deprive her of what she did not have. However,
she presumably was offered overtime work on occasion, on
the same basis as other employees. Therefore the statement
that Dillard had lost any opportunity for overtime in the
future because of her union activities (there was nothing
else she had done to bring down the Respondent's wrath
on her head) constituted a clear threat that Mathews, too,
might suffer a similar fate if she engaged in such activities.
Accordingly, in agreement with the General Counsel, it is
found that by such conduct Boswell violated Section
8(a)(1) of the Act.
6. The disciplinary suspension of Dillard
a. Facts
On May 17 Dillard was absent from work. When she
reported for work the next day Christie told her: "We're
going to lay you off for one week. You go home right now,
and stay home for five working days." When Dillard asked
why, Christie replied: "For not showing up for work
yesterday." Some discussion ensued, following which
Dillard went home and did not return to work until May
25. She was not paid for the time lost due to this
disciplinary layoff. A few days after her talk with Christie,
Dillard received through the mail a letter from Christie
dated May 18 which reads in pertinent part:
Yesterday you were absent from work without permis-
sion . You told me on Tuesday, May 16, 1972 you were
taking off to go to St. Louis for a Union meeting. I
asked you if it related to the Bowl Factory grievances
or unfair labor practice charges. You said that you did
not know. No permission was given you to take the day
off. As a result of your absence we were unable to cover
your job for the full day and lost considerable
production. Due to the pile up in production it was
necessary to lay people off. This is the second offense
for the same thing.
The first offense resulted in a verbal warning and you
were told that further offenses of this kind would result
in a discharge . Article XVIII of the contract provides
an employee will not be discharged for performing
committee work provided it is done outside working
hours or by permission of the plant superintendent.
Your violation yesterday was within working hours and
was without my permission. In fact you did not even
check with Mr. J. Luallin our Plant Superintendent.
brief at in 74, the Respondent states that it "makes no contention that the
allegations of . Paragraph 6(b) come within the purview of Collyer
Wire " I therefore deem this defense to have been abandoned
248 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
A disciplinary suspension without pay of one (1) week
is warranted and you are now given a final warning;
any further offenses of this nature will result in
discharge.
During the time Dillard was away from the plant on
layoff Higdon, on behalf of the Umon, filed with the
Respondent a grievance reading:
On May 12, 1972 I sent Connie Dillard, President of
Local No. 7, a letter informing her she would have to
be absent from work one day to meet with the attorney
in St. Louis to discuss pending arbitration cases and
unfair labor practice charges.
On Monday or Tuesday, May 15 or 16, Connie Dillard
showed Plant Manager, Christie, a copy of the letter
and told him she would have to be off from work
Wednesday, May 17. At no time was she denied
permission to be absent on the date requested.
When she returned to work at 7:30 a.m. May 18, she
was given a week off. The reason given by the company
was that there is no provision in the contract for a leave
of absence for union work.
We demand that Mrs. Dillard be paid for all time lost.
b. Contentions of the parties
The complaint alleges (par. 6(a) and (c)), and the answer
denies, that from on or about May 17 to on or about May
24 the Respondent "suspend[ed ] employee Connie Dillard
... because of said employees' Union and/or other
protected, concerted activity, and/or because of the Umon
and/or other protected, concerted activity of other employ-
ees." It is alleged that such conduct violated Section
8(a)(1), (3), and (4) of the Act. In his brief, the General
Counsel takes the position that "the one week suspension
of Dillard was obviously imposed by Boswell as retaliation
for Dillard's recalcitrance in failing and refusing to yield to
Boswell's unlawful demands and threats"-presumably
that the unfair labor practice charges be withdrawn. In
short the General Counsel argues that the suspension was a
pretext seized upon to force the Union's capitulation.
The Respondent contends in its brief that "whether the
Respondent had dust cause for disciplining Dillard is a
matter for the grievance-arbitration procedure under
Collyer Wire." As an alternative defense, the Respondent
maintains that in any event the discipline, far from a
pretext, was caused by Dillard's unexcused absence from
work and was based on sound business reasons. In this
connection the Respondent introduced evidence tending to
show that Dillard's failure to report to work on May 17
caused the Respondent to lose a substantial amount of
production.
c. Conclusions
The Respondent's invoking of Collyer must be viewed in
the light of what happened to the Union's grievance
subsequently. On May 25, Dillard's first day back at work
after her suspension ended, representatives of both parties
met. At that conference five grievances were settled by
mutual agreement. Among them was this particular
grievance filed during Dillard's suspension. In the interest
of stable and peaceful labor relations, it would seem that
the Board should now focus not on whether Dillard's
suspension was illegally motivated, but rather on what the
parties themselves voluntarily agreed to do about it. A later
portion of this Decision will be devoted to that issue.
Accordingly, I decline to decide whether the suspension
itself constituted an unfair labor practice and defer to the
remedy the parties themselves adopted.29
7. The grievance regarding supervisors
On May 19, during the period of Dillard's suspension,
the Union filed with the Respondent the following
grievance:
The Union hereby claims all back-pay and all overtime
back-pay for unit employees for all unit work wich [sic]
has been performed by foreman [sic] and/or supervi-
sors on Saturdays and regular work days since on or
about January 24, 1972. This is in violation of Art.
XXIII, Section 2 of the contract.
The subsequent disposition of this grievance is described
below.
8. The settlement of pending grievances
a. Facts
By May 25 there were f've outstanding unsettled
grievances pending. In two of these, as previously related, a
panel of arbitrators had been submitted to the parties by
FMCS but no arbitrator had been selected. In the other
three no attempt had been made to secure a panel from
FMCS.
On the afternoon of May 25 Christie conferred in the
Wyota Inn with Higdon and Dillard. Christie had been
previously authorized by Boswell to negotiate a settlement
of the five grievances on behalf of the Respondent.30 At
the start, Christie asked whether the pending unfair labor
practice charges could also be discussed. Higdon declined
to do so.31 No more was said about these charges during
the remainder of the conference. After a lengthy discus-
sion, all grievances were settled on the following basis:32
29 Appalachian Power Company, 198 NLRB No 7, cited by the
Respondent, is distinguishable on two grounds (1) There the "issue [wasl
essentially a dispute about the meaning of relevant contract terms " Here,
on the contrary, the issue is that of pretext, retaliation, and motivation (2)
Here the parties have themselves agreed to dispose of the grievance on
mutually acceptable terms No such agreement was present in Appalachian
Power
30 The Respondent elicited evidence tending to show that Boswell's
presence elsewhere was urgently required by other business matters. I deem
it unnecessary to make any findings as to why Boswell did not attend in
person However, the record is clear, and I find, that Boswell had agreed in
advance to be present, and never notified Higdon that he could not make it
31 This is based on Higdon's version. Christie denied that he mentioned
the charges but I do not credit this denial
32 These findings are based on a synthesis of the testimony of the people
who attended Of the three, I find Christie to be the least reliable, therefore,
to the extent that his testimony contradicts that of Higdon or Dillard, that
of Higdon or Dillard is credited
DIVERSIFIED INDUSTRIES
1. The Coryell grievance: The Respondent agreed to
expunge from its records the warning notices sent to
Coryell on November 5 and 9, 1971.
2. Safety equipment: The Respondent agreed to
reimburse the employees for deposits they had been
required to make in the past, that the money would be
paid the next payday, June 2, that in time it would
supply lockers in which the employees could store their
safety equipment at the plant under lock and key, and
to post the names of the employees involved and the
amounts of their respective reimbursements on the
plant bulletin board. The Union agreed that employees
who reported to work without their safety equipment
could be required to go home to obtain the equipment
and then return to work without being paid for the time
lost thereby. The Union also agreed to write a letter
after lockers were furnished urging the employees to
lock up their safety equipment securely at the plant, not
to take it home.
3. Overtime: The Respondent agreed to pay 1/2
hour overtime to each employee who had signed the
grievance and to any other employee whose pay had
been delayed for more than the allotted time on the
payday before the grievance was filed; payment to be
made on June 2.
4. The Dillard grievance: The Respondent agreed to
reimburse Dillard for wages for the time she was
suspended and to expunge from its record Christie's
letter to her dated May 18. Although not the subject of
a specific written grievance, the Respondent also
agreed to expunge from its records the Employee
Warning Notice issued to Dillard on January 26 by
Christie and Boswell.
5. Supervisors working: The Union agreed to drop
its demand for backpay and overtime and agreed that
supervisors could continue to work on outstanding
orders. The Respondent agreed not to accept any new
contracts requiring production work by supervisors.
The agreement has never been reduced to writing.
Later that afternoon, shortly after the agreement
described above was reached, Boswell called Higdon on
the telephone and "wanted ... a blow by blow description
of what we had agreed to." Higdon, in a hurry to catch a
plane, declined to do so. Boswell then asked: "Well, what
did you do about the unfair labor charge?" Higdon
replied: "Nothing, John, because we had agreed that we
wouldn't." Boswell then asked: "What did you do about
Connie's pay?" Higdon answered: "He [Christie] agreed to
pay Connie a week's pay." Boswell stated that Christie
"had no right to do that." Irate, Higdon accused Boswell of
trying to renege on the agreement, and the conversation
came to an abrupt end.33
On May 31 in another telephone conversation, Boswell
requested Higdon to relate in detail the agreement that had
been reached on May 25; Higdon did so. Boswell
exclaimed: "There never was any agreement like that," to
which Higdon retorted: "This is exactly what happened."
33 These findings are based on the testimony of Higdon supplemented
somewhat by that of Boswell Boswell denied that the unfair labor practices
were mentioned 1 do not credit his denial in this regard Christie testified
249
Higdon then inquired whether Boswell "was going to make
those payments that was agreed to on the 25th of May, into
effect June the 2nd as was agreed to." Boswell responded:,
"There was never any agreement, that we will make no
such payment on June 2nd or any other day." On June 1
Higdon wrote to Boswell describing the agreement as he
understood it. The letter ended with a warning: "If the
settlements agreed to are not executed as exactly agreed,
then I will file more charges." So far as the record shows,
none of the terms of the agreement have been carried out.
No further steps have been taken under the contract's
grievance-arbitration procedure.
On October 11, during a recess in the instant hearing, the
Respondent brought suit against the Union in the United
States District Court for the Western District of Missouri,
Southern Division (Civil Action No. 3144). Count I thereof
is brought pursuant to Sectior 301 of the Act. It alleges
that on or about May 25 the Respondent and the Union,
"in accordance with Step 4 of the Grievance and
Arbitration Procedure" contained in the contract "entered
into a settlement of . . . certain differences" which existed
between them and that since then the Umon "failed and
refused to comply with the terms and conditions of said
settlement." The remedy sought is specific performance of
the "settlement reached on May 25." Count II thereof
alleges that the Union "denied the authority" of the
Respondent's representative "to enter into the said
settlement reached on May 25," that the Respondent and
the Union "have disagreed as to the terms and conditions
of said settlement actually reached on or about May 25,"
and that the Union "refused to process the said differences
... as to the meaning and application of the said
collective-bargaining agreement in accord with the provi-
sions" of article XX of the contract. The alternative relief
sought (should the court find no settlement to have been
reached on May 25) is that the court require the Umon "to
arbitrate said differences in accordance with said Article
XX." This lawsuit is currently pending, including a motion
to the court to stay Board proceedings in the instant case
"until the court has had an opportunity to determine .. .
the rights of the parties."
b. Contentions of the parties
The complaint alleges (par. 7(a), (b), and (c)), and the
answer denies, that on or about May 17 the Respondent
"agree[d] with the Union on the disposition of certain then
pending grievances," and that continuously since on or
about that date the Respondent "has refused to implement
its agreements with the Union . . . because the Union had
filed and declined to withdraw unfair labor practice
charges, and/or because of employees' Union and/or other
protected . . . activities." It is alleged that such conduct
violated Section 8(a)(1) and (5) of the Act. The General
Counsel in his brief contends that "it is necessary [for the
Board] to make ... Findings . . . regarding the exact
terms of the agreement made on May 25." His position
that he overheard Higdon say "No, there woald be no warning tickets "
This alleged fragment, out of context, is in my opinion of little probative
value in the absence of the question to which it might have been an answer
250 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
seems to be that an agreement was reached, that Boswell
failed to live up to that agreement,' that this conduct in this
regard was illegally motivated so that it was not a mere
breach of contract, and that therefore the Act has been
violated.
The Respondent maintains that, as there is disagreement
as to whether an agreement was reached at step 4 of the
grievance procedure,34 or at least what the terms of the
agreement are, these matters properly should be submitted
to an arbitrator. Alternatively, the Respondent by motion
to stay takes the position that these matters should be
determined by the court under Section 301 of the Act.
However, should the Board decide the matter itself, the
Respondent urges that the agreement reached was that
described by Christie and that this agreement was
breached not by the Respondent, as alleged in the
complaint, but rather by the Union. Finally, although this
argument is not so clearly articulated, there remains the
defense that, in any event, a failure to live up to a
settlement is no more than a mere breach of contract and
was neither illegally motivated nor part of an attempt to
undermine the Union.
c. Conclusions
Of course Collyer is not applicable for here, admittedly,
the parties carried these grievances all the way through step
4 of the contract's grievance-arbitration procedure. At that
point they attained a voluntary settlement of all pending
grievances.35 This leaves nothing unresolved for the
arbitrator to rule upon. However, there is a dispute as to
the terms and conditions of the settlement . The Respon-
dent would have the arbitrator decide this, while the
General Counsel urges that this is the function of the
Board. In my opinion, this is beyond the powers of the
arbitrator, as described in the contract herein. Alternative-
ly, the matter could certainly be left for the court to decide
in the Section 301 suit. There is much to be said for that
procedure. But there are reasons why I believe it best that
the Board retain the jurisdiction conferred upon it by
Section 10(b) of the Act to remedy unfair labor practices:
Tht Board possesses a particular expertise in labor matters
which the courts have often recognized. Moreover, the
motivation of Boswell is here in issue and it is doubtful
whether this question would be reached or resolved by the
court in the Section 301 action. Yet motivation is an
essential element of the alleged violation of Section 8(a)(5)
of the Act. Finally, testimony of witnesses has been taken
before me and the matter gone into exhaustively in the
34 The Respondent 's pleadings in the instant case would seem to deny
that any agreement was reached But the Respondent's pleadings in the suit
which it brought in the U S . District Court clearly allege that some
settlement was attained
33 Christie testified
JUDGE ASHER Are you satisfied in your own mind that there was a
complete agreement reached on May 25th, verbally between you and
the union representatives on all these five grievances that you
discussed, of which this particular portion that you have Just described
is a-
briefs; to require the parties to go through all this again in
court would unnecessarily duplicate effort and expense.
Accordingly, the determination of the exact terms of the
settlement should be reached here. And in fact I have done
so, above, by sifting sometimes vague and sometimes
partially conflicting testimony.
Having determined the terms of the settlement, we turn
now to the General Counsel's accusation that the Respon-
dent failed to live up to the agreement and the Respon-
dent's counter accusation that not it, but the Union, is the
guilty party. On the entire record before me I find that the
fault clearly was that of the Respondent.
Finally, let us turn to Boswell's motivation. Within 2
days after receiving a copy of the unfair labor practice
charges Boswell embarked on a campaign to get the Union
to withdraw them. He made numerous statements of his
desire to have the charges dropped. Clearly he indicated
that he considered it a matter of utmost importance to him.
He threatened reprisal, he attempted to reach a "deal"
which would include disposition of the charges. All to no
avail; the Union remained stubborn and adamant. He
wheedled, he cajoled, and he coaxed. The Union refused to
budge. Finally, he authorized Christie to bargain for the
disposition of the grievances. Significantly, Christie's first
question when negotiations began and Boswell's first
question after agreement had been reached both dealt with
the unfair labor practice charges. Considering Boswell's
demonstrated vindictive personality and his conduct both
before and after this authorization, I am convinced and
find that Boswell (although he did not disclose this to the
U lion) never intended to go through with a complete and
final disposition of all pending grievances unless the unfair
labor practice charges were dropped at the same time. In
short I conclude that, in refusing to carry out the terms of
the agreement, Boswell was motivated either by a desire to
inflict reprisals on the Union for having filed the charges in
the first place, or a desire to use the settlement as a vehicle
to pressure the Union into capitulation. Accordingly, such
conduct constituted dealing in bad faith in derogation of
the statutory duty imposed by Section 8(a)(5) of the Act.
9. Boswell's attempt to interfere with union
affairs
a. Facts
On or about July 13 or 14 while Maryetta Ballard was at
work Boswell approached her and a conversation ensued.
THE W ITNESS' (interrupting) Sir. I'm convinced that everyone
understood the agreement inasmuch as it was the first grievance that
we discussed , and we did not come to an agreement immediately after
discussing that first grievance We covered-
JUDGE ASHER ( interrupting) No, now, before you left that room
over at that Wyota Inn that there had been a complete agreement on
everything discussed"
THE WITNESS After I explained to Mr Higdon and Connie, also-
JUDGE ASHER . ( interrupting ) Just answer my question
THE WirNESS Yes, sir, I'm convinced that we had a meeting of the
minds
DIVERSIFIED INDUSTRIES
According to Ballard's testimony:
Q. Would you please state what Mr. Boswell said
to you and what you said to him during that
conversation?
A. Well, he just asked me what kind of meanness I
was into and I said nothing that I couldn't handle. He
said, "I understand you are writing some letters." and I
asked him what he meant by that and he told me that
they wanted Connie [Dillard] out of the union and I
told him I didn't know how to write such a letter, letters
like that. I had never had anything to do with that
before and he said he would get Ron [Baker] to write
them for me.
s * r s s
Q• He said he would get Ron to do what?
A. To write the letters for me.
Boswell's version was as follows:
Q. Would you tell us what the conversation was?
A. I asked Maryetta what kind of meanness she
had been up to. She made a kind of reply like-I know
it was kind of a cute remark but she said-made kind
of reply like nothing that she couldn't handle. Then I
told her that I understood that there was a letter being
sent around and she said that she couldn't write, she
didn't know anything about how to write a letter like
that.
Q. Was there any further conversation?
A. Not that I recall.
Q. Do you recall making any mention of Ron
Baker?
A. I may have. It seems like I told them that Ron
Baker could help her or that Ron Baker had brought a
letter by my office but I don't recall what was said
about Ron Baker.
Q. Now, I want you to think about this because
Ron Baker said something or you said something about
Ron Baker. Tell us to the best of your recollection what
you said about that.
A. Well, she said that he didn't know-that she
didn't know how to write a letter like that. I can't say
that Ron Baker's name was mentioned or wasn't
mentioned. I don't recall.
Baker was then a rank-and-file employee of the Respon-
dent who was not within the unit because he was a clerical.
He drafted three letters for Ballard's signature . These are
not in evidence and their contents must be gleaned from
sketchy oral testimony. I find that they were identical,
except for addresses; in all the writer attacks the union
leadership, Dillard, and Webb, "for unfair complaints and
misrepresenting the employees." There was also a deroga-
36 Boswell testified that Baker had shown him the letters before Boswell
spoke to Ballard
17 This is based on Ballard's version which I find credible Baker related
a somewhat different version . He impressed me as arrogant and distainful
of the entire proceedings and a thoroughly unreliable witness Except where
corroborated, I do not credit his testimony
251
tory reference to Higdon . Purporting to represent a group
of rank -and-file union members , the writer requests that a
new election of union officers be held . One copy was
intended for Dillard , one for Higdon, and the third for
Boswell . Baker showed these letters to Boswell and said he
intended to give them to Ballard.sf
A few days after the Boswell-Ballard conversation
related above , Baker handed the letters to Ballard , saying:
"Here 's the letters John wanted you to have. You will have
to get the addresses from the office , because I don't know
them ." Baker added that Ballard should "take them home
and look them over and see if it was all right." Ballard
responded that she "didn ' t want no part of it," but
nevertheless accepted the letters 37 She then took them
home and destroyed them. Two or three days later Boswell
came to Ballard 's workplace and inquired whether she
"had sent Connie a letter ." Ballard replied that she had not
done so yet , but intended to do so38
b. Contentions of the parties
The complaint as amended alleges (par. 5 (m)), and the
Respondent denies, that on or about July 13 Boswell
"attempt[ed ] to cause an employee to start a movement to
oust certain officers of the Union from their respective
offices." It is further alleged that Boswell did so "because
[the Respondent"s] employees had given testimony under
the Act in support of unfair labor practice charges filed by
the Union against the Respondent ," in violation of Section
8(a)(4) of the Act . In connection with this allegation the
General Counsel maintains that Baker was acting , in this
instance , as an agent of the Respondent.
The Respondent denies any part in this episode except
that Boswell did see the letters. It denies that Baker was its
agent . Admitting that the testimony may perhaps indicate
"that Boswell was somewhat curious as to what was going
on," the Respondent insists that Baker acted entirely on his
own, without any encouragement, aid, assistance , or even
suggestions , from management.
c. Conclusions
That Boswell entertained more than a passing interest, or
mere curiosity, in any movement to oust Dillard, Webb,
and/or Higdon from office is evident from his animus
toward the Union and these officers personally. Further-
more, Baker could probably not have so glibly named
Higdon in the letter nor suggested that "the office" would
supply addresses unless he had been in cahoots with
Boswell . Moreover it is significant that Baker intended a
copy of the letter for Boswell, and that he showed the
letters to Boswell before he (Baker) gave them to Ballard.
However, despite suspicions, a determination of exactly to
what extent Boswell aided Baker, or what instructions
Boswell gave Baker, is unnecessary. It is enough to find, as
I do, that Boswell first stated to Ballard that "he would get
's The General Counsel elicited testimony concerning a conversation
between Ballard and Boswell about this matter which allegedly took place
on September 22, a few days before the start of the hearing in the instant
case I deem it unnecessary to make any findings with respect to this
incident.
252 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Ron ... to write the letters for me," and that thereafter
Baker appeared with the letters and said: "Here's the
letters John wanted you to have." This sequence of events
convinces me that Boswell held out Baker as his agent. In
view of this apparent authority, I reject the Respondent's
contention that it is blameless and hold the Respondent
accountable for Baker's actions. Accordingly, I conclude
that Boswell deliberately injected himself into a matter
which did not legitimately concern him, and that by
interfering with the Union's internal affairs he violated
Section 8(a)(1) of the Act 39
10. The warning notices to Mathews
a. Facts
On July 24 the Respondent issued an employee warning
notice to Dorothy Mathews, an employee. Marked "1st
Notice," it reads: "Standing idle during working time,
causing other employees to wait for panels." About a half
hour later another warning slip, marked "2nd Notice," was
given to her. It reads: "Poor quality workmanship." No
grievance has been filed with regard to either of these
warning notices.
b. Contentions of the parties
The complaint as amended alleges (par. 5(e)), and the
Respondent denies, that on or about July 24 the Respon-
dent "issued warning notices to employees because they
and other employees had engaged in and were continuing
their Union activity." It is alleged that such conduct
violated Section 8(a)(1), (3), and (4) of the Act. In this
connection the General Counsel points out in his brief:
It is clear that Matthews [sic] was not standing idle and
was not producting poor panels. It is more than a mere
coincidence that after three years of work . . . with a
perfect record of no warning notices whatsoever,
Boswell should cause Matthews [sic] to receive two
unjustified warning slips within a time span of 30
minutes, less than three weeks after being given notice
by the Union's second amended charge that Matthews
[sic] had obviously related her conversation with
Boswell to the Union. Obviously, Boswell was well
aware of the fact that particular allegation of the
second amended charge, "Told employees that but for
the Union their hospital bills would have been
paid-May 12," referred to Matthews, [sic] who, pnor
to May 12 had been hospitalized and absent from work
for eight weeks. Thus, the warning notices given to
Matthews [sic] are obviously in retaliation for Mat-
thews' [sic ] assistance to the Union.
The Respondent urges that on this issue the Board
should defer to the grievance-arbitration procedure set
forth in the contract. Alternatively, on the merits the
Respondent points out (1) "Boswell had no way to connect
Matthews [sic] with the allegation in the Amended
Charge"; (2) No other rank-and-file employee was the
target of his resentment after the filing of the amended
charge; (3) "Mathews [sic] was not shown to have been a
union activist"; (4) there was a substantial "time lag
between the receipt of the Amended Charge and Mat-
thews' [sic] warnings"; and (5) both warning notices were
justified.
c. Conclusions
Ordinarily , warning notices of this kind are the type of
dispute which the Board defers to arbitration under
Collyer. However here , as in the case of the eight warning
slips issued in January, described above , the alleged
motivation makes a substantial difference in the wisdom of
applying Collyer. For here it is alleged that the warning
slips were issued in reprisal for the Union's filing an
amended charge. The integrity of the Board's own
processes are involved . What is basically at issue here is
whether there has been an attempt to hinder the Union's
access to the Board. This is in my opinion a matter
particularly appropriate for the Board itself to handle.
Turning to the merits , the issuance of two warning slips
in 1 day to an employee of long standing may perhaps be
somewhat suspicio is. However , it can hardly be consid-
ered harassment . There is some evidence tending to show
that the warnings might have been merited . In any event it
is significant that , even according to the version of
Mathews herself , there was no mention of the Union or of
the unfair labor practice charges in connection with the
warnings . On the surface , it was the legitimate exercise of a
normal business function ; there is little more than surmise
that it was not what it purported to be . Accordingly, it is
concluded that the General Counsel has failed to establish
by a preponderance of the evidence that these two warning
slips were issued to Mathews for reasons proscribed by the
Act.
Upon the above findings of fact , and upon the entire
record , I make the following:
CONCLUSIONS OF LAW
1. Diversified Industries, A Division of Independent
Stave Company, is, and at all material times has been, an
employer within the meaning of Section 2(2) of the Act,
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. Coopers International Union of North America,
AFL-CIO, and its Local No. 7 are, and at all material
times have been, labor organizations within the meaning of
Section 2(5) of the Act.
3. All production, maintenance and machinists em-
ployees of Diversified Industries, A Division of Independ-
ent Stave Company, including quality control inspectors
and shipping department employees, but excluding office
clerical employees, retail store employees, and professional
employees, guards and supervisors, as defined in the Act,
constitute a unit appropriate for the purposes of collective
bargaining within the meaning of Section 9(b) of the Act.
'y As the remedy hereafter proposed would not he substantially affected,
f deem it unnecessary to decide whether this conduct was also violative of
Sec 8(a)(4) of the Act
DIVERSIFIED INDUSTRIES
4. The above-named labor organization is, and at all
material times has been, the exclusive representative of all
employees in the above-described unit for the purposes of
collective bargaining within the meaning of Section 9(a) of
the Act.
5. By revoking privileges previously enjoyed by Wa-
traud Olga Dillard on November 11, 1971, and thereafter
failing and refusing to restore these privileges to her,
thereby discouraging membership in the above-named
labor organization, the Respondent has engaged in and is
engaging in unfair labor practices within the meaning of
Section 8(a)(3) of the Act.
6. By failing and refusing on and after May 25, 1972, to
bargain collectively in good faith with the above-named
labor organization as the exclusive representative of all
employees in the above-described unit, the Respondent has
engaged in and is engaging in unfair labor practices within
the meaning of Section 8(a)(5) of the Act.
7. By the above-described conduct; by threatening
employees with more stringent working conditions because
they filed or processed grievances on behalf of themselves
or other employees, or in reprisal for their collective-
bargaining representative having filed unfair labor practice
charges against the Respondent, or in order to force them
or their bargaining representative to withdraw such
charges; by falsely informing employees that they would
have enjoyed certain improvements in working conditions
but for the action of the above-named labor organization;
by informing employees that it had taken away privileges
previously enjoyed from an employee in retaliation for
engaging in protected concerted activities; by refusing to
carry out the provisions of an agreement entered into with
the above-named labor organization in reprisal for that
labor organization having filed unfair labor practice's
against it, or as a means of compelling the said labor
organization to withdraw such charges; and by attempting
to cause an employee to start a movement to oust certain
officials of the above-named labor organization, thereby
interfering with, restraining, and coercing its employees in
the exercise of rights guaranteed in Section 7 of the Act,
the Respondent has engaged in and is engaging in unfair
labor practices within the meaning of Section 8(a)(1) of the
Act.
8. The above-described unfair labor practices tend to
lead to labor disputes burdening and obstructing com-
merce and the free flow of commerce and constitute unfair
labor practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
9. The General Counsel has failed to establish by a
preponderance of the evidence that the Respondent has
engaged in or is engaging in any unfair labor practices
oth' r than as found herein.
41' Since March 1969 the Respondent has been subject to a broadly
drawn cease-and-desist order issued by the Board Independent Stave
Ccmpany, 175 NLRB 156, 159 Other Board and court orders outstanding
against the Respondent are listed in fn I of that decision
THE REMEDY
253
As the unfair labor practices found to have been
committed by the Respondent are persuasively related to
other unfair labor practices proscribed by the Act, the
danger of their commission in the future may reasonably
be anticipated from the Respondent's past conduct.40
Therefore, in order to effectuate the policies of the Act, it is
necessary that the Respondent he ordered to cease and
desist not only from the unfair labor practices found but
also from any other invasions of the employees' Section 7
rights.
Affirmatively it will be recommended that the Respon-
dent offer to restore to Dillard all privileges enjoyed by her
before November 11, 1971. It has been found that the
Respondent discrimmatorily deprived Dillard of opportu-
nities to work overtime between November 11, 1971, and
October 23. 1972. The General Counsel, in his brief,
contends that Dillard "should be made whole ... for the
overtime which she had lost as a result of the Respondent's
discrimination against her." After the briefs had been filed,
however, the Board decided the case of Chenivet Laborator-
ies, Inc., 201 NLRB 734. In Chemvet the Board found a
violation of Section 8(a)(1) and (3) of the Act in that the
respondent had for discriminatory reasons deprived certain
employees of an opportunity to perform their fair share of
overtime work. The Administrative Law Judge recom-
mended that the respondent be ordered to make these
employees whole for any loss of earnings they may have
suffered by reason of such conduct. The Board refused to
do so, saying:
While we find, in agreement with the Admimstrative
Law Judge, that the evidence is sufficient to show a
decline in available overtime offered to these employ-
ees and to establish a causal relationship between this
and the employees ' union activities, we find no
practicable way to measure how much overtime would
nave been available or which employees would have
availed themselves of overtime opportunities, had they
been offered . . . . These and other factors suggest that
in affirmative make-whole order would lead only to an
evidentiary morass in our compliance proceedings. We
will therefore substitute for the affirmative make-whole
order recommended by the Administrative Law Judge
a specific injunctive prohibition against future discrimi-
nation in offering overtime opportunities to employees.
In the instant case it has been shown that Dillard was
offered, but declined, overtime work on October 23, 1972.
Here, as in Chemvet, there is "doubt as to how much
additional overtime [she] would have accepted." As the
case before me is, in all substantial respects, similar to
Chemvet, there is good reason to believe here. as in
Chemvet, "that an affirmative make-whole order would
lead only to an evidentiary morass in our compliance
proceedings." Accordingly, it will not be recommended
that Dillard be reimbursed for wages lost because she was
deprived of an opportunity to work overtime.41
41 Sec however J P Chnapko, Inc, 202 NLRB 252, issued after Chemvet,
which makes no mention of Chemvet but reaches a contrary result regarding
backpay.
254 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It will further be recommended that the Respondent
withdraw and rescind that part of the document issued on
January 27 or 28 which threatens more stringent working
conditions should the unfair labor practice charges not be
withdrawn. In addition, it will be recommended that the
Respondent abide by and carry out all provisions of the
settlement agreement it entered into with the Union on
May 25, 1972. In connection with this affirmative relief, it
will be recommended that the Respondent preserve records
necessary for the Board to determine whether there has
been full and complete compliance therewith. It will
further be recommended that the Respondent bargain
collectively in good faith with the Union as the exclusive
bargaining representative of the employees in the appropn-
ate unit.
The Respondent's contention that the Board defer to
arbitration has been found meritorious with regard to
certain issues raised by the complaint. With respect to
these issues, as was done in Collyer, the Board should
retain jurisdiction for the purposes of entertaining an
appropriate and timely motion for further consideration
upon a proper showing that (a) the dispute has not, with
reasonable promptness after the issuance of a Board
decision, either been resolved by amicable settlement in the
grievance procedure or submitted to arbitration, (b) the
grievance or arbitration procedure has reached a result
repugnant to the Act, or (c) the decision of the arbitrator is
not wholly dispositive of the issues in this proceeding.42
In addition to the above, it will be recommended that the
Respondent post the usual notices.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER43
Diversified Industries , A Division of Independent Stave
Company, Lebanon , Missouri, its officers, agents, succes-
sors, and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in Coopers International
Union of North America , AFL-CIO, or any other labor
organization , or retaliating against employees for filing or
processing grievances on behalf of themselves or other
employees , by revoking privileges previously enjoyed, or
otherwise discriminating against employees with regard to
their hire or tenure of employment or any term or
condition of employment.
(b) Threatening its employees with more stringent
working conditions or other reprisals for filing or process-
ing grievances on behalf of themselves or other employees.
(c) threatening its employees with more stringent
working conditions or other reprisals for filing unfair labor
practice charges against it, or as a means of forcing them or
their bargaining representative to withdraw such charges.
(d) Falsely informing employees that they would have
enjoyed certain improvements in their working conditions
12 See Brotherhood of Teamsters & Auto Truck Drivers Local No 70,
International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers
of America (National Biscuit Company), 198 NLRB No. 4
11 In the event no exceptions are filed as provided by Sec 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
but for the action of the above-named or any other labor
organization.
(e) Informing its employees that it had revoked privileges
previously enjoyed by an employee in retaliation for
engaging in protected concerted activities.
(f) Entering into an agreement with the above-named or
any other labor organization with an undisclosed intent not
to live up to the agreement unless other demands, not part
of the agreement, are granted.
(g) Refusing to carry out the provisions of any agreement
entered into with the above-named or any other labor
organization in reprisal for that labor organization having
filed unfair labor practices against it, or as a means of
compelling that labor organization to withdraw such
charges.
(h) Attempting to cause any employee to start a
movement to oust certain officials of a labor organization
or otherwise interfering with the internal affairs of the
above-named or any other labor organization.
(i) In any other manner interfering with, restraining, or
coercing its employees in the exercise of rights protected by
Section 7 of the Act, except to the extent that such rights
may be affected by an agreement requiring membership in
a labor organization as a condition of employment, as
authorized in Section 8(a)(3) of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Offer to restore to Watraud Olga Dillard all privileges
enjoyed by her prior to November 11, 1971.
(b) Withdraw and rescind that part of the document
issued by it and transmitted to the above-named labor
organization on January 27 or 28, 1972, which threatens
more stringent working conditions should the unfair labor
practice charges not be withdrawn and notify the said
labor organization, in writing, that it has done so.
(c) Abide by and carry out all provisions of the
settlement agreement entered into by it with the above-
named labor organization on May 25, 1972.
(d) Upon request, bargain collectively in good faith with
the above-named labor organization as the exclusive
representative of all employees in the unit described below,
with respect to wages, hours, and other conditions of
employment, and, should an understanding be reached,
put it in a signed agreement. The appropriate unit is:
All production. maintenance and machinists employees
of Diversified Industries, A Division of Independent
Stave Company, including quality control inspectors
and shipping department employees, but excluding
office clerical employees, retail store employees, and
professional employees, guards and supervisors, as
defined in the Act.
(e) Preserve until compliance with the settlement
agreement entered into on May 25, 1972, and, upon
request, make available to the Board or its agents, for
examination and copying , all payroll records , social
conclusions, and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations , be adopted by the Board and become
its findings , conclusions, and Order , and all objection shall be deemed
waived for all purposes
DIVERSIFIED INDUSTRIES
security payment records, timecards, personnel records
and reports, and all other records necessary to compute the
amounts due under the terms of said settlement agreement.
(f) Post at its plant in Lebanon, Missouri, copies of the
attached notice marked "Appendix."44 Conies of such
notice, on forms provided by the Regional Director for
Region 17, after being signed by an authorized representa-
tive of the Respondent, shall be posted by the 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 displayed. Reasonable steps shall be taken by
the Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(g) Notify the Regional Director for Region 17, in
writing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
IT IS FURTHER RECOMMENDED that jurisdiction of this
proceeding be retained by the Board for the limited
purposes indicated in that portion of this Decision entitled
"The Remedy."
44 In the event that the Board 's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board "
SUPPLEMENTAL DECISION
SYDNEY S. ASHER, Administrative Law Judge: On March
19, 1973, I issued my Decision in the above-entitled
proceeding in which I concluded, among other things, that
the Board should defer to the gnevance-arbitration
machinery set up by the parties with respect to the alleged
threat by Plant Manager Boswell to discharge Union
Stewardress Webb if she did not forget about filing a
grievance regarding the posting of jobs. I likewise conclud-
ed that the Board should defer to the grievance-arbitration
machinery with regard to whether the Respondent had
instituted new work rules, whether the rules were enforced
in a more stringent manner, the impact of Plant Superin-
tendent Christie's reprimand of Webb for eating candy on
the job, and whether the Union was accorded advance
notice and a reasonable opportunity to seek bargaining
about the rules. On July 30, 1973, the Board remanded
these proceedings to me to resolve credibility issues and
make findings and conclusions on the merits with respect
to the above-descnbed matters. On August 23, 1973, the
Respondent filed a supplemental brief which has been
carefully considered.
Upon the entire record, and from my observation of the
witnesses, I make the following:
i These findings are based on Webb's testimony, corroborated in
substantial part by the testimony of Maryetta Ballard, an employee working
nearby who overheard part of the conversation. To the extent that the
versions of Boswell and Milan differ from those of Webb and Ballard, I
credit those of Webb and Ballard as more accurate
Webb and a few of the Respondent 's witnesses testified also about a
SUPPLEMENTAL FINDINGS OF FACT
A. Boswell 's Alleged Threat to Discharge Webb
1. Facts
255
On November 29, 1971, Linda Dowden, an employee in
the Respondent's finishing department, injured her thumb
while at work. Early in December 1971 she consulted with
Maggie-Williams Webb, an official of the Union and union
steward. During working hours, Webb left her work
station, went to the office, and discussed with Christie the
possibility of moving Dowden from her job to another job
in the department, because of her injury. Christie told
Webb to go back to her job and he would be up in a
minute to talk to her about it. She returned to work. About
an hour later, Boswell and Robert Milan, then foreman of
the finishing department, came to Webb's place of work.
Boswell told Webb "he could fire . . . [her] for going down
to the office and talking about union business on company
time." Webb replied that she "was representing an
employee that needed to be moved," and asked that
Dowden he moved to another job in the department.
Boswell declined, on the ground that there were no jobs
open in the department. Either Webb or Boswell stated
that openings had been filled without posting. Boswell then
said "that if [Webb] would forget about the posting of the
jobs that he would forget about firing [Webb] and he
would call it a deal and forget it." That ended the
conversation.'
Immediately after this, Boswell approached Maryetta
Ballard, an employee working nearby, and asked if she
would like to have Webb's job, adding that Ballard could
do it as well as Webb. The record does not reveal Ballard's
reply.
2. Contentions of the parties
The complaint (par. 5(c)) alleges, and the answer denies,
that in early December 1971 Boswell "threaten[ed]
employees with discharge for filing grievances about job
openings and for inquiring about job openings." It is
alleged that such conduct violated Section 8(a)(1) of the
Act. The General Counsel argues that the above-described
testimony of Webb supports this allegation.
The Respondent maintains that Boswell's warning to
Webb was "clearly justified" because "threats to discharge
employees for engaging in union activity on company time
is [sic] not violative of Section 8(a)(1)."
3. Conclusions
Articles V and XVIII of the contract between the parties
are quoted in my original Decision . In view of these
contract provisions and the general rule that working time
petition being circulated in the plant seeking the discharge of certain named
individuals , and Boswell 's objections to such circulation I do not
understand that the General Counsel bases any allegation of unfair labor
practices thereon and accordingly I deem it unnecessary to discuss the
evidence regarding this incident.
256 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
is for work, it will be assumed that Webb's working time
union activities were unprotected and that Boswell could
legitimately threaten to discipline her for such conduct.
But what Boswell did was not simply to threaten discipline;
instead he used the threat of discipline as a vehicle to force
Webb to forgo protected concerted activity; namely, filing
a grievance concerning the Respondent's failure to post
certain job openings.2 Such coercive conduct violated
Section 8(a)(1) of the Act.
B. The Document Drafted by Boswell and
Following Events
1. Introduction
In the original Decision I set forth a document drawn up
by Boswell and handed to Dillard on January 27 or 28,
1972. I found that the entire document constituted "a
warning that working conditions would be made more
onerous should the Union refuse to withdraw the unfair
labor practices it had filed." I concluded that "Such a
threat itself violates Section 8(a)(1) of the Act, whether or
not it was ultimately carried out." The present remand
directs me to make findings (1) whether the Respondent
had instituted new work rules; (2) whether the rules were
enforced in a more stringent manner; (3) the impact of
Christie's reprimand of Webb for eating candy on the job;
and (4) whether the Union was accorded advance notice
and a reasonable opportunity to seek bargaining about the
rules. I am directed to decide whether the alleged
violations of Section 8(a)(1), (3), (4), and (5) of the Act
based on these above-described matters have been proved.
For convenience, the rules will be treated in two categor-
ies: those which do not deal with eating on the job, and the
rule which dealt with this subject.
2. Rules dealing with matters other than eating
on the job
The various subjects which the General Counsel lists as
"more stringent working rules" in his answer to motion for
more definite statement are listed in the original Decision.
Eliminating, for the time being, eating on the job, there
remain these others: absenteeism, safety equipment,
smoking, conversation at work, remaining at or leaving
work station, pay advances, and power failures. Several of
these are mentioned in the contract: Breakdowns are
discussed in article IX; hours of work in article X; safety
and clothing in article XIV; and absenteeism in article
XXX. The question to be decided is whether any of these
items in the document of January 27 or 28 constitutes a
new rule and, if not, whether any rule was more stringently
enforced thereafter. On this subject Webb, a union steward
and a witness for the General Counsel, testified on cross-
examination:
Q. . . . has the company, to your knowledge, in
fact, imposed-put into effect any of the rules which
were contained in the document Mr. Morgan was
holding which has been introduced as General Coun-
sel's Exhibit No. 11 [the document drafted by Boswell]?
A. Not in our department other than the candy.
On further cross-examination Webb admitted stating in a
prehearing statement given to a Board agent: "To date, to
my knowledge, the company has not imposed the new rules
contained in Boswell's handwritten list." There is no other
evidence in the record to show that any substantially new
rule (except eating on the job) was in fact ever enforced-'
Moreover, I find no probative evidence to establish that
the old rules (except for eating) were enforced more strictly
after Boswell handed the document to Dillard than they
had been before that event.4
3. Eating on the job
As set forth in the original Decision, one of the items in
the document drawn up by Boswell reads: "Eating on the
job! Candy bars." The General Counsel, as with the rest of
the document, contends that this constituted the promulga-
tion of a "new and more stringent" working rule. The
Respondent, consistent with its position regarding other
items in the document, maintains that it never put any new
or more stringent rule into effect with respect to eating at
work.
Some months prior to the drafting of this document by
Boswell, there had been a "flash fire" in a cardboard
container into which paper wrappers from candy had been
thrown. Christie called the employees together and
exhibited to them the remains of the fire, bringing to their
attention "the dangers of a fire that could put us out of
business." He prohibited them from going to the candy
machine (presumably a coin-operated automatic vending
machine) during working hours, and limited them to doing
so during lunch or break time, and further instructed them
to "throw their wrappers in the waste containers [presuma-
bly made of metal or other fire-proof materials ] that were
put down there by the candy machine for that purpose."
He did not then, or at any time prior to January 28, forbid
the employees to eat candy on working time. As described
in the original Decision, about 10 days after Boswell
composed the document in question, Christie saw candy in
a bowl by Webb's worktable. Christie warned Webb "there
would be no candy eating on the job, that anybody caught
eating candy would be discharged or disciplined." Since
then, Webb has not eaten any more candy on the job.
From the above I conclude that, before the document in
question existed, employees were not forbidden to eat
candy at their workplaces, that the document, in violation
2 It matters not that such a grievance might have lacked merit or might notices issued to Dorothy Mathews, an employee, on July 24, 1972, as
have been untimely proving more stringent enforcement of work rules However, in the original
3 See Firestone Coated Fabrics Company, Division of the Firestone Tire & Decision I concluded that the General Counsel had failed to establish that
Rubber Company, 179 NLRB 724 such conduct by the Respondent was discriminatorily motivated or
4 The General Counsel apparently relies, at least in part, on two warning constituted more stringent enforcement of existing work rules
DIVERSIFIED INDUSTRIES
of Section 8(a)(1) of the Act, threatened to change this rule
to the detriment of the employees unless the Union
withdrew its pending unfair labor practice charges, that
approximately 10 days later Christie, in effectuation of the
threat, announced to Webb, a union steward, a new and
more stringent rule, namely, no eating at work,5 and finally
that the motive for the promulgation of the new rule was to
punish the employees because their bargaining representa-
tive had filed, and refused to withdraw, unfair labor
practice charges. By such conduct, so motivated, the
Respondent violated Section 8(a)(1), (3), and (4) of the
Act.6
There remains the issue of the alleged failure of the
Respondent to live up to its statutory bargaining obliga-
tions. In this connection, the General Counsel maintains
that the new no-eating-at-work rule was put into effect
unilaterally, that is, without the Union's agreement. The
Respondent mounts a double-pronged defense against this
allegation: that before changing the rule the Respondent
had given the Union adequate advance notice and
opportunity to bargain; and that in any event the rule
change fell within the ambit of the contract's management
rights clause and there was therefore no obligation to
bargain with regard to it-the Union having contractually
waived its rights in this respect.
I find merit in the Respondent's first defense. The
sequence of events was as follows: On January 27 or 28 the
Respondent illegally threatened to change its rules regard-
ing, among other things, eating at work, unless the Union
withdrew its unfair labor practice charges. On January 29
the Union, through Dillard, notified the Respondent7 that
the charges would not be withdrawn. Approximately 10
days later, the Respondent carried out its previous threat
and, for proscribed reasons, changed the rule. It is
significant that at no time did the Union request bargain-
ing or in any way grieve or protest the new rule. Under
these circumstances, although the Respondent's conduct
violated Section 8(a)(1), (3), and (4) of the Act as found
above, I conclude that it did not also constitute a unilateral
change of working conditions in violation of Section
8(a)(5) of the Act. Rather, I find that the Union had ample
advance notice of the Respondent's intent to change the
rule and adequate opportunity to seek bargaining but
nevertheless remained silent.8 In this posture of the case, I
deem it unnecessary to rule upon the Respondent's second
defense, that the rule prohibiting eating at work was not a
proper subject for bargaining because of the coverage of
the management rights clause in the contract.
Upon the above supplemental findings of fact, and upon
the entire record, I make the following:
5 To the extent that Christie testified that no new rule was promulgated
or put into effect f deem his testimony inaccurate
6 The Respondent argues in its brief that the management rights clause
of the contract gives the Respondent the power to put into effect any rule
regarding eating at work Be that as it may. the vice of the Respondent was
not its promulgating the rule, per se, but rather its promulgating such a rule
for proscribed reasons Therefore the managerights clause is no defense to
allegations that the Respondent violated Section 8(a)(I), (3), or (4) of the
Act.
r In fn 23 of the original Decision I found it unnecessary to resolve
conflict between the testimony of Dillard and Jeffries on this point . In view
AMENDED CONCLUSIONS OF LAW
257
The following is substituted for Conclusion of Law 5 in
the original Decision:
"5. By revoking privileges previously enjoyed by
Watraud Olga Dillard on November 11, 1971, and
thereafter refusing to restore these privileges to her, and by
promulgating , announcing , and putting into effect in
February 1972 a new rule prohibiting employees from
eating on the job, and thereafter enforcing and maintaining
such rule in effect, thereby discouraging membership in the
above-named labor organization , the Respondent has
engaged in and is engaging in unfair labor practices within
the mee ping of Section 8(a)(3) of the Act "
The following new Conclusion of Law is inserted as
Conclusion of Law 6 and Conclusions of Law 6, 7, 8, and 9
in the original Decision are renumbered as Conclusions of
Law 7, 8, 9, and 10 , respectively:
"6. By promulgating, announcing , and putting into
effect in February 1972 a new rule prohibiting employees
from eating on the job and thereafter maintaining and
enforcing such rule, thereby discriminating against its
employees because their representative had filed charges
under the Act, the Respondent has engaged in and is
engaging in unfair labor practices within the meaning of
Section 8(a)(4) of the Act."
Upon the foregoing supplemental findings of fact,
amended conclusions of law , and the entire record, and
pursuant to Section 10(c) of the Act , I hereby issue the
following recommended: 9
AMENDMENTS TO ORDER
The following is substituted for paragraph 1(c) of the
Order in the original Decision:
"(c) Threatening its employees with more stringent
working conditions or other reprisals, or promulgating,
announcing, putting into effect, maintaining, or enforcing
more stringent work rules, or otherwise discriminating
against its employees, because unfair labor practice
charges have been filed against it, or as a means of forcing
employees or their bargaining agent to withdraw such
charges."
The following new paragraph 2(f) is inserted after
paragraph 2(e) and paragraphs 2(f) and (g) in the original
Decision are relettered as paragraphs 2(g) and (h),
respectively:
"(f) Revoke the rule promulgated in February 1972
prohibiting its employees from eating at work."
of the remand , I now resolve that conflict by crediting Dillard 's testimony
s N LR B v. Cone Mills Corporatism, 373 F.2d 595 (C.A 4, 1967);
Holiday Inn Central, 181 NLRB 997; and Coppm Engineering Corporation,
195 NLRB 595.
9 In the event no exceptions are filed as provided by Sec 102 46 of the
Rules ai d Regulations of the National Labor Relations Board, the
supplemental findings, conclusions, and recommended Amendments to
Order herein shall , as provided in Sec 102.48 of the Rules and Regulations.
be adopted by the Board and become its findings, conclusions , and Order,
and all objection shall he deemed waived for all purposes