International Paper Co.

National Labor Relations Board - Board Decisions

Jun 30, 1970

184 N.L.R.B. 351 (N.L.R.B. 1970)

INTERNATIONAL PAPER COMPANY
International Paper Company , Long-Bell Division
and Jimmie D. Hamilton . Case 26-CA-3499
351
TRIAL EXAMINER 'S DECISION
STATEMENT OF THE CASE
June 30, 1970
DECISION AND ORDER
BY MEMBERS MCCULLOCH, BROWN, AND JENKINS
On March 26, 1970, Trial Examiner Robert
Cohn issued his Decision in the above-entitled
proceeding, finding that Respondent had engaged
in certain unfair labor practices but recommending
that the complaint be dismissed, as set forth in the
attached Trial Examiner's Decision. He also found
that the Respondent had not engaged in certain
other unfair labor practices. Thereafter, the
General Counsel filed exceptions to the Trial Ex-
aminer's Decision and a supporting brief, and
Respondent filed an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the
Trial Examiner's Decision, the exceptions and
briefs, and the entire record in the case, and hereby
adopts the findings , conclusions , and recommenda-
tions of the Trial Examiner.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner and hereby
orders that the complaint be, and it hereby is,
dismissed.
ROBERT COHN, Trial Examiner: This proceeding
under Section 10(b) of the National Labor Rela-
tions Act, as amended (herein the Act), was heard
at Malvern, Arkansas, on January 15-16, 1970,
pursuant to due notice. The complaint, which was
issued on November 13, 1969,1 on charges filed
October 6, alleges in substance that International
Paper Company, Long-Bell Division (herein the
Company or Respondent), engaged in unfair labor
practices proscribed by Section 8(a)(1) and (3) of
the Act by discharging and/or reprimanding em-
ployees because they engaged in union or con-
certed activities protected by the Act, and by
threatening employees with reprisals for filing
grievances under its contract with United Paper
Makers and Paper Workers, AFL-CIO, Local
Union No. 999 (herein the Union). In its duly filed
answer, Respondent admitted the jurisdictional al-
legations of the complaint, but generally denied the
commission of any unfair labor practices.
Prior to the hearin, Respondent filed a "Motion
to Hold in Abeyance ' which, in essence, requested
the Board not to proceed further in the processing
of this case because the Company had invoked ar-
bitration under the collective-bargaining agreement
respecting the legitimacy of the discharge of the al-
leged discriminatee (James Mitchell ) herein. In a
prehearing ruling, by Trial Examiner Harold X.
Summers, such motion was denied. (G. C. Exhs.
1(p) and (t).) At the hearing, Respondent renewed
its motion, which was denied by me essentially
upon the same grounds as stated in the previous
ruling, and , in addition, upon being informed in a
prehearing conference that both the Charging Party
and the union representative preferred to proceed
under the aegis of the Board rather than by arbitra-
tion.2
Upon the entire record in the case, including my
observation of the demeanor of the witnesses,3 I
make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
The complaint alleges, the answer admits, and I
find that at all times material the Respondent is a
' Member Brown joins in adopting the Trial Examiner 's recommendation
that the complaint be dismissed but not his reasons therefor Rather, con-
sistent with his views more fully articulated in his separate opinion in East-
ern Illinois Gas and Securities Company, 175 NLRB 639, and cases cited
therein , Member Brown would require that the contractual grievance
procedures be exhausted , as grievances were filed and processed
thereunder and final and binding arbitration could have been invoked by
the Union See also Dresser Industrial Valve & Instrument Division , Dresser
Industries Incorporated, 178 N LRB 3 17 (gnevance settled at fourth step
of grievance procedure)
' All dates hereinafter refer to the calendar year 1969 unless otherwise
specified
' See, e g , Wertheimer Stores Corp , 107 NLRB 1434
3 As will appear , many of the factual findings herein were made only
after an assessment of the credibility of the witnesses This chore of a fact-
finder is almost always a difficult and delicate task, and is not less so in this
case In making these findings, I considered the demeanor of the witnesses
while testifying, taken with the interest of such witnesses in the outcome of
the proceedings, "along with the consistency and inherent probability of
testimony " ( Universal Camera Corporation v N L R B, 340 U S 474 )
184 NLRB No. 38
352 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
corporation doing business in the State of Arkan-
sas, with an office and place of business located at
Malvern, Arkansas, where it is engaged in the
manufacture and distribution of flakeboard
products. During an annual period, Respondent, in
the course and conduct of its business operations,
sold and shipped from the above location products
valued in excess of $50,000 directly to points
located outside the State of Arkansas.
Based upon the foregoing facts, I find, as Respon-
dent admits, that Respondent is now, and has been
at all times material, an employer engaged in com-
merce within the meaning of Section 2(6) and (7)
of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The complaint alleges, the answer admits, and I
find that the Union is now , and has been at all times
material , a labor organization within the meaning of
Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
As previously noted, Respondent is engaged at its
Malvern, Arkansas, plant in the manufacture of
flakeboard, which is apparently board made from
wood scraps and filings, mixed with glue (resin)
under pressure. It commenced operations about
March 1968, and reached a complement of approx-
imately 100 production employees. On July 11,
1968, pursuant to election procedures under Sec-
tion 9 of the Act, the Union was certified as the
collective-bargaining representative of Respon-
dent's production and maintenance employees.4 On
or about November 15, 1968, Respondent entered
into a contract with the Union covering said em-
ployees, such contract extending to August 1, 1971.
The contract contains , inter alia , a grievance
procedure terminating in arbitration. (Art. XVIII.)
B. The Alleged Independent Violations of Section
8(a)(1) of the Act
1. By William Scott
The complaint, as amended at the hearing, al-
leges that Scott, the plant superintendent and an
admitted supervisor, during the latter part of June,
at the Malvern plant, "threatened an employee that
another employee would be discharged because
said employee had previously filed a grievance."
The facts giving rise to this allegation are not es-
sentially in dispute and may be summarized as fol-
lows: Superintendent Scott had been a participant
Cases 26-RC-3138 and 26-RC-3142
Although this concession would appear to constitute a victory for the
Union, the latter was not entirely satisfied because Scott refused to
apologize to Jackson as had been requested in the grievance Neverthe-
less, the Union, recognizing that the next step in the procedure was
in the negotiations leading up to the contract with
the Union. On the basis of an asserted understand-
ing made in the negotiations, Scott took the posi-
tion, as respects the grievance procedure, that a
union steward did not have the right under the con-
tract to file a grievance on behalf of another em-
ployee without the consent of that employee.
When, in June, a union steward named Jackson
filed a grievance on behalf of an employee named
Brooks alleging, in substance, that Brooks had been
constructively discharged, Scott went to the pres-
ident of ' the Union, James Cranford, and told him
that if he (Cranford) didn't get Jackson "straight-
ened out" that he (Scott) was going to do some
"straightening out" on his own-"that that was
a good way for a man to go out the front gate."
Cranford took issue with Scott on the question of
whether Jackson had a right to file the grievance
under the circumstances. This led to the filing of a
grievance by Jackson against Scott for making the
above threat to Cranford. (G. C. Exh. 5.) This
latter grievance (No. 48) was eventually resolved at
the fourth step of the grievance procedure. At that
meeting, the Company receded from its previous
position and "acknowledge[d] that a shop steward
or committeeman can initiate a grievance without
the signature of an aggrieved." (G. C. Exh. 7.)5
2. By Melvin Loy6
The complaint alleges that Loy, an admitted su-
pervisor, on or about October 20, threatened an
employee with reprisals because the employee had
previously filed a grievance. In support of this al-
legation, counsel for the General Counsel offered
the testimony of employee Tedford Smith, a
machine operator in the finishing department who
worked on the first shift. In October, Smith filed a
grievance against his foreman, Bill Glasco, because
the latter brought a saw operator from another sec-
tion of the department to perform Simth's job
rather than allowing Smith to work overtime. In a
conversation between Smith and Glasco prior to
the filing of the grievance, Glasco took the position
that, under the contract, it was entirely within his
right to place the man on the job in the manner
stated. Subsequently, on or about October 20,
Smith was in Loy's office in connection with his du-
ties, and a discussion of this grievance ensued.
According to Smith's testimony, Loy said, "If this
is the kind of stuff you all are going to hand me, I
am going to make it hard on you, start writing
reprimands." Smith responded that he would rather
withdraw the grievance than to "make it hard" on
the other men, ,to-which Loy responded that he
thought that would be the thing to do-for Smith to
talk it over with the union president. Whereupon,
arbitration and that this would be costly, allowed the matter to drop
' The proper name of this person appears as corrected by an amendment
to the complaint at the hearing In the complaint , the name appears Melvin
Lloyd
INTERNATIONAL PAPER COMPANY 353
Loy handed the grievance to Smith and the latter
tore it up the following day.
Loy, a witness for Respondent , categorically de-
nied making the above -quoted threatening state-
ment to Smith . He testified that Union President
Cranford had Witten up the grievance , had secured
Smith 's signature , and had presented it to Loy.
Loy's version of his conversation with Smith on Oc-
tober 20 was that Smith felt that the Company was
not justified in allowing a saw operator to do a
machine operator 's work in order to avoid paying
overtime . Loy told Smith that the contract
sustained the Company 's action and that he "felt
like that the grievance was unjust , just as much so
as it would for me to give him [Smith ] a reprimand
for putting a bad board in." According to Loy's
testimony , Smith then stated that since he (Smith)
had not written the grievance , it could be torn up
and thrown away . Whereupon , Loy handed the
grievance to Smith who took it and put it in his
pocket . On the following evening, Smith , in Loy's
presence , tore it and threw it in the waste basket.
3. Conclusions as to alleged Section 8(a)(1)
violations
It is well established that the filing of grievances,
constituting attempts to implement the provisions
of a collective-bargaining agreement , are concerted
activities protected by Section 7 of the Act.' It fol-
lows that any interference with the exercise of such
activities, such as a threat to discipline for filing
them, would constitute a violation of Section
8(a)(1) of the Act.'
As respects the June incident, the Respondent's
agent admittedly made a threat respecting the filing
of a grievance by a shop steward, but contended
that such was based on good-faith belief that such
conduct by a steward without the consent or
authority of an aggrieved employee was not within
the contemplation of the grievance procedure in
the contract, since it was contrary to an agreement
made with the Union during negotiations.
Ordinarily, a violation of Section 8(a)(1) does
not turn upon the employer's motive or whether the
restraint or coercion succeeded or failed. "The test
is whether the employer engaged in conduct which,
it may reasonably be said, tends to interfere with
free exercise of employee rights under the Act. "9
However, the fact that the threat was based upon a
predicate of good faith plus the fact that the Com-
pany later receded from its earlier position are cer-
tainly circumstances to be considered on the issue
of whether a remedial order is warranted.
The question of whether a violation occurred as
respects the October incident depends upon an as-
sessment of the credibility of witnesses Smith and
Loy. This resolution has been exceedingly difficult,
but I am inclined to credit Smith. Such resolution is
based not only on demeanor considerations, but
also upon a consideration of the probabilities of the
situation. That is to say, Loy's version of the con-
versation with Smith on October 20 is certainly
plausible, but I am impressed by the fact that Smith
thought it necessary and desirable not only to
refrain from pursuing the grievance he signed, but
to physically destroy it in the presence of Loy and
other witnesses. This conduct appears to reflect a
desire to assure Loy that there was no doubt that he
(Smith) did not intend to prosecute the grievance
so that Loy would not feel compelled to carry out
his threat of recrimination against the other men in
the department.
Under all circumstances, I find the threat by Loy
to Smith, on October 20, to constitute a violation of
Section 8(a)(1) of the Act. However, in view of the
fact that I am, for reasons discussed, infra, recom-
mending the dismissal of the Section 8(a)(3) al-
legations, and the Company had receded from its
position which gave rise to the June threat (thereby
making a repetition of that threat unlikely), in the
light of other record evidence (including Resp.
Exh. 15 consisting of some 90 grievances filed,
some of which reached arbitration ) reflecting an at-
mosphere of freedom of voicing complaints and
utilization of the grievance procedure by em-
ployees, I find that it would not serve a useful pur-
pose to recommend a remedial order on this one in-
cident , based as it is on a pure credibility finding.to
C. The Alleged Discriminatory Discharge of James
Mitchell
The complaint alleges that on or about Sep-
tember 11 Respondent issued written reprimands to
employees Phillip Williams and James Mitchell, and
discharged the latter, because these employees filed
a grievance in furtherance of union or protected ac-
tivities. Respondent, while admittin& the fact that it
issued written reprimands to these individuals, and
that it discharged Mitchell as aforesaid, claims that
it had just cause for the discharge and that the
reprimand issued to Williams was thereafter
revoked during the grievance procedure."
James Mitchell was employed by the Company
on March 11, 1968, as a painter on construction
work- He worked in that capacity for about 3
months when he was transferred to a position clas-
sified as utility man. The principal responsibility of
' See New York Trap Rock Corporation, 148 NLRB 374, 375
' Mitchell Transport , Inc, 152 NLRB 122
0 American Freightways Company, Inc, 124 NLRB 146, 147
10 See Stop & Shop, Inc, 161 NLRB 75, 80, affd sub nom Machaby v.
N L R B, 377 F 2d 59 (C A 1), International Harvester Company, 180
NLRB 1038
11 Subsequently , in October, Williams was killed as a result of an ac-
cident in the plant
12 There are 10 spray guns to each blending machine, These guns spray
resin and wax into the blending machine which carries the material to make
the flakeboards If the spray guns are not working properly (become
clogged), no glue is sprayed upon the material which makes the board and
therefore may cause a "blown" board
354 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a person in that classification is to see that the
storage tanks of resin (glue) and wax are kept full,
to make sure that the spray guns on the blending
machines are spraying properly,12 and to relieve, for
short periods of time, the forming station operator
and the press operator. His immediate supervisor
while on this job was Cletus Ivy, a foreman.
He worked as utility man until February 1969,
when he bid on and secured a job as a forming
machine operator under Supervisor Wayne Har-
graves. He worked at that job until August 1969,
when he was discharged by Leroy Jordan, a higher
supervisor. This discharge resulted from an accu-
mulation of written warnings which Mitchell had
received during the course of his employment. 13 A
few months before the August discharge, Mitchell
had bid to go back to his utility job because, as he
put it, he felt that if he made one more mistake he
would be discharged. Following the August
discharge, Mitchell filed a grievance and, as a
result, he was returned to work on September 3 as
a utility man under Foreman Ivy.14
Mitchell worked as the only utility man on the
second shift until September 10, when an incident
occurred which gave rise to the discharge which is
the subject of this proceeding. He described the cir-
cumstances leading to the discharge as follows:
My job was after I relieved [the press and
forming station] operators I was going back to
check the tanks, I met the foreman half-way
and he said I had some guns that wasn't spray-
ing and I told him I was going back to check
them out and he got one of the guys off the
floor to take the guns off, anyway I was work-
ing on one gun and Cletus [Ivy] was working
on the other one.15
Following this incident, Williams and Mitchell
signed a grievance against Ivy for performing unit
work, such grievance having been written for them
by Jimmie Hamilton, the press operator and a
union steward.
Ivy's version of the incident is that at approxi-
mately 10:30 p.m.,16 he was walking back near the
blenders and observed Mitchell filling the resin
tanks. Ivy noticed that of the 10 spray guns on the
blending machine , 8 were not operating . He called
this to the attention of Mitchell who was less than
10 feet from the guns at that time . Mitchell came
over and rubbed the end of the nozzles of the guns
and then went back and proceeded to fill the tanks.
After a few minutes, Ivy told him a second time
that he had better notify the forming machine
operator to shut the blender down because the noz-
zles were not spraying and instructed Mitchell to
clean the guns.
At that point Mitchell notified the operator to
shut off the blender. Ivy then secured Phillip Wil-
liams, the laborer, to help Mitchell clean the guns.
Ivy himself screwed a nozzle off the gun and took
the jet out to see what the trouble was and
discovered there was a resin buildup in the gun noz-
zle. He handed the gun back to the men and told
them to clean it off. After he checked the guns, he
went back to his office; Mitchell and Williams con-
tinued to work. The blending machine was not
turned on again for at least the remainder of the
shift; i.e., until 11 p.m.'7
Ivy returned to his office and, according to his
testimony, commenced writing out a reprimand for
Mitchell, for he had determined at that time to
discharge Mitchell for the dereliction's because he
knew that Mitchell had accumulated sufficient
reprimands in his personnel folder to warrant the
discharge.
Prior to the end of the shift, Ivy went back to the
shop and asked Mitchell if he had cleaned all the
jets in the guns and the latter replied that he had;
whereupon, Ivy screwed a nozzle off one of them
and checked the jet and found that he had not
cleaned it as Ivy had instructed him to do. Ivy
directed him to take it apart again and clean it.
At the end of the shift , Press Operator and Union
Steward Jimmie Hamilton went into Ivy's office to
file his report respecting the operation of the press
machine, and while there handed the grievance of
Mitchell and Williams to Foreman Ivy.19 At that
time, according to Ivy's testimony, he had already
commenced filling out the written reprimand to
Mitchell but did not mention this to Hamilton. He
told Hamilton, as he observed the grievance which
Hamilton had handed him, that the men had not
followed the grievance procedure.20 Hamilton said
that the men did not have to do so because he
" The collective-bargaining agreement specifies that the "accumulation
of three written warnings [respecting specified conduct] will result in
discharge " (Reap Exh 1, p 19 ) The General Counsel does not contend
that the August discharge or any of the written reprimands leading up to it
were discriminatorily motivated
1' It is clear that a principal factor in Respondent's decision to change
Mitchell's discharge to a disciplinary layoff was that he had previously bid
to return to the "less demanding job" of utility man but "was unable to do
so for reasons not of his own making " However, Plant Manager Saun-
ders emphasized that "The written reprimand continues in force and
remains as part of Mitchell's record " (Resp Exh 2 )
1D The other person who Ivy "got off the floor" was a laborer, Phillip Wil-
liams
18 Mitchell placed the time earlier-at approximately 8 30 p in How-
ever, company records (Resp Exhs 3, 5, 6, and 7) appear to corroborate
Ivy I find that the incident occurred near the time he stated
"Company records indicate that it was not turned on again until after
the commencement of the third shift , or until 11 43 p in that evening
"The specific deficiency, as described by Ivy , was Mitchell 's failure to
observe that the guns were not spraying and, further , not promptly notify-
ing the forming machine operator to shut down the blender
11 G C Exh 2 The text of the grievance is "working on glue nozzle-
taking them apart and cleaning them."
20 Step I of the grievance procedure (art XVIII) States
An earnest effort shall be made to settle the complaint informally
between the employee and/or his representative and his foreman
Failing settlement in this manner, the procedure then requires that
the complaint be reduced to writing and submitted to the foreman
within 5 working days
INTERNATIONAL PAPER COMPANY
(Hamilton) had warned Ivy many times about doing
unit work.21
The following day-September II-Ivy com-
pleted writing out Mitchell's reprimand, as follows:
lows:
Failing to perform your duties as utility man on
9/10/69 at 10:30 for ... letting the core
blender run with only two resin guns spraying.
At no time can this [be] tolerated. You have
been warned of this matter several times be-
fore, when you were given supervision on the
matter and instructions. You took it [to] be
violation in behalf to which I had full authority
[sic]; thinking this you filed a grievance
without confiding in me of your disagreement.
Doing this you violated article XVIII, step 1 al-
so.22
Ivy also filled out a reprimand for Williams
because the latter did not follow step 1 of the
grievance procedure.
At approximately 5 p.m. on September 11
Foreman Ivy advised Superintendent Scott of what
had occurred the preceding evening , and of the
decisions Ivy reached respecting the sanctions to be
imposed on the two employees. Scott testified that
he, too, was aware of Mitchell's accumulated repri-
mands and that he advised Ivy to "handle the thing
the way you feel it should be done and I will back
you up." When Ivy told Scott that Mitchell and
Williams had filed a grievance against him for per-
forming unit work, Scott replied that "they are try-
ing to bluff you out of terminating Mitchell because
we all know this is his terminal reprimand."24
At the end of the second shift on September 11,
Ivy called Hamilton, Mitchell, and Williams into his
office and gave Mitchell and Williams their repri-
mands. Mitchell acknowledged the receipt of his
document, but Williams did not. This was
Mitchell's last day of work for the Respondent.
On September 15, Mitchell filed a grievance al-
leging discrimination with respect to the discharge,
asking reinstatement and backpay. (G. C. Exh. 4.j
At a first-step grievance meeting held on the
grievance on September 17, the Company offered
to void the reprimand given Williams and that sec-
tion of the reprimand given Mitchell relating to the
grievance procedure. However, the Company took
the position that since "the basic premise on which
the grievance given Mr. Mitchell [was] that of not
21 The fact of whether Hamilton actually warned Ivy prior to this incident
is denied by Ivy, and I am inclined to credit him Aside from demeanor con-
siderations, Hamilton did not impress me as being one who would be reluc-
tant to file grievances against Ivy or any other foreman for performing unit
work if such were the case Yet I note ( Resp Exh 15 ) that only one
grievance was filed (No 30, dated April 5, 1969) prior to the incident in
question, claiming a violation of the contract by virtue of a forman per-
forming unit work, and the foreman in this instance was not named A
similar grievance filed against Ivy does appear as grievance No 82 dated
December 17, 1969, which is apparently the one referred to in Hamilton's
testimony. In any event, I question whether , assuming Hamilton had
warned Ivy about performing unit work prior to the incident in question,
such would operate as to waive the employees ' duty to comply with the
contractual provisions
355
satisfactorily performing the job of utility man, [it]
is valid and remains in effect." (G. C. Exh. 8.) This
position of the Company remained constant
throughout the subsequent meetings between the
company and union representatives concerning this
grievance. However, according to the testimony of
Union Representatives Francis, Woodall, and Cran-
ford, Superintendent Scott stated during the third
step of the grievance meeting that Ivy had come to
him quite upset over the fact that the two em-
ployees had filed a grievance against him and he
wanted to give these two employees reprimands;
and that Scott advised Ivy to discharge Mitchell
because his work record was not very good anyway,
and to give Williams a reprimand since he was in-
volved in filing the grievance. Scott denied making
this statement, but I credit General Counsel's wit-
nesses since , in addition to demeanor considera-
tions, the statements are mutually corroborative
and were not denied by Plant Manager Saunders,
who was also present at the meeting.
Analysis and Concluding Findings
The issue here is, as Respondent states in its
brief, "clearly defined"; i.e., whether Mitchell was
discharged for filing a grievance or for the accumu-
lation of written reprimands sufficient in number to
warrant discharge pursuant to contractual provi-
sions . This issue is ofttimes more easily stated than
applied, and appears to be particularly so in the in-
stant case. The task is to ascertain, after a con-
sideration of all the facts in the record, the "real"
or "motivating" reason for the discharge.25 In a
consideration of the record, however, it is well set-
tled that the concurrent existence of legitimate
grounds for discharge is not sufficient for a valid
defense if the termination was in fact caused by
union activities.26 However , "engaging in protected,
concerted activity, such as the filing of contractual
grievances, does not perforce immunize employees
against discharge for legitimate reasons."27
Assessing the facts in this case against the forego-
ing principles, there is no doubt that on September
10 Mitchell was vulnerable to discharge by virtue of
his accumulation of previous written warnings of
derelictions concerning which there is no conten-
tion of discriminatory motive on the part of
Respondent. There also appears to be little basis for
°GCExh3
" Ivy testified that he telephoned Scott at his home the preceding even-
ing at the end of the shift However , Scott did not recall any such telephone
call
:' Union Steward Hamilton testified that the same afternoon Scott told
him, when Hamilton had complained to Scott about the latter 's doing
repair work , that "you guys are going to hear from that grievance you filed
on Cletus last night " Such testimony being uncontradicted on the record, I
credit it
25 See Price Brothers Co , 175 N LRB 277, enforcement denied 422 F 2d
452(C A 6,1970)
zs Topeka Discount, Inc, 181 N LRB 17 See also N L R B v Ace Comb
Co,342F2d841(CA 8)
27 Mitchell Transport , Inc, 152 NLRB 122, 123
356 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a claim that Mitchell did not, by his conduct on
that evening, place himself in a position where
another reprimand was warranted. Thus, when it
was called to his attention that 8 of 10 spray guns
on the blender were not operating, prompt and effi-
cient action was dictated. Yet the most the record
indicates that Mitchell did was to walk over and
wipe off the nozzles of the guns and return to his
prior occupation without ascertaining whether or
not such perfunctory action remedied the situation.
Ivy waited several more minutes before directing
Mitchell a second time to notify the forming station
operator to shut off the machine. Moreover, the un-
denied testimony of Ivy indicates that Mitchell and
Williams did not properly clean the guns after they
commenced working on them. It is not for this Trial
Examiner to say that a reprimand was not in order
for engaging in such negligent and inefficient con-
duct. Furthermore, there is no evidence in the
record to show that other utility men had previ-
ously engaged in similar conduct without being
disciplined therefor. Ivy testified that this was not
the first dereliction that he had noticed respecting
Mitchell's work habits since the latter returned to
his supervision on or about September 3, and he
had spoken to Mitchell on several occasions about
this but that "it did not do any good." No doubt
Ivy, knowing that the next written reprimand would
result in discharge pursuant to the provisions of the
contract, hesitated before taking such strong ac-
tion. But, in the light of Mitchell's past work
record, one cannot say that it was precipitate.
Mitchell, having placed himself in a position
where a discharge was clearly warranted, could not
be "immunized" by the filing of a contractual
grievance. Although the record leaves some room
for doubt as to whether Ivy actually reached a final
determination to discharge Mitchell prior to the
time the grievance was filed, I cannot say that Ivy
would not have taken such action had the grievance
not been filed.28
There can be no gain saying the fact that Ivy did
not cherish the grievance being filed "against him,"
such being clearly a challenge to and a rebuke of
his authority. But the fact remains that the
grievance was lodged contrary to the prescriptions
of the grievance procedure in the contract, i.e.,
without having been previously discussed with the
foreman '29 and the plant manager had only recently
admonished both union and management represen-
tatives to make an earnest effort to comply with
this provision in order to improve the grievance
record in the plant. (Resp. Exh. 8.) Thus it is
reasonable to infer that the subject was fresh upon
Ivy's mind and that he was sensitive about it.
The written reprimand itself reflects an attitude
on the part of Ivy that he considered the substan-
tive dereliction as the primary reason for its is-
suance and that the filing of the grievance without
prior consultation was "also" objectionable con-
duct. While it might have been better practice and
more in accord with Respondent's policies to have
merly handed the grievance back to the union
steward as having been improperly filed,30 the ancil-
lary position in which Ivy placed the subject matter
relating to the filing of the grievance reflects an at-
titude on the part of Ivy that such was subordinate
to the principal reason for the reprimand.
In finding a failure of the preponderance of
evidence to establish the violation on this issue, I
am impressed by the lack of evidence which would
tend to show union animus on the part of Respon-
dent. There is no allegation or proof in the record
that Respondent fought the Union either before or-
ganization or since certification. 31 Nor is there any
contention or evidence that Respondent had any
animus against Mitchell because he was unduly ag-
gressive respecting the presentation of grievances.32
The record evidence does not support, in my
view, the contention that the discharge in question
can be said to have a reasonable tendency to
restrain or coerce employees from exercising their
protected right to grieve, subject to the limitations
of the contract. In the first place, the reference to
failure to comply with step 1 of the grievance
procedure in both the Mitchell and Williams
grievances was rescinded by the Company during
the grievance procedure; and, secondly, the record
reflects that both before and after the incident in
question, many grievances had been filed and
processed including one against Ivy for performing
unit work, which was resolved at the third step of
the grievance.
In view of all the foregoing, I find and conclude
that the General Counsel has failed to prove, by a
preponderance of the evidence on the record as a
whole, that Respondent violated the Act by
discharging Mitchell and issuing a reprimand to
Williams on September 10. In view of my findings
hereinabove respecting the independent Section
8(a)(1) allegations , I will recommend that the com-
plaint be dismissed in its entirety.
Upon the foregoing findings of fact and upon the
entire record, I make the following:
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in com-
merce within the meaning of Section 2 (6) and (7)
of the Act.
" See, e g, Olympic Delivery Service, Inc, dlbla Rocket Messenger Ser-
vice, 167 NLRB 252,255
" The General Counsel has not attacked this contractual limitation upon
a Section 7 right, i e , the right to file a grievance under a collective-bar-
gaining agreement Although I have not been directed to any authority on
the point, the limitation would seem to be an entirely reasonable one, and
in accord with the policies of the Act
" The record reflects an incident wherein Union President Cranford
filed a grievance directly with Plant Manager Saunders who subsequently
returned it to him as being improperly filed
" See Price Brothers Company, supra
" Cf. Bowman Transportation , Incorporated, 134 NLRB 1419, 1420
INTERNATIONAL PAPER COMPANY 357
2. The Union is a labor organization within the RECOMMENDED ORDER
meaning of Section 2(5) of the Act.
3. Respondent has not engaged in the unfair It is ordered that the complaint be, and the same
labor practices alleged in the complaint. is hereby, dismissed in its entirety.
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