Leviton Manufacturing Co., Inc.

National Labor Relations Board - Board Decisions

Apr 30, 1973

203 N.L.R.B. 309 (N.L.R.B. 1973)

LEVITON MANUFACTURING CO. 309
Leviton Manufacturing Company , Inc. and Local 1274,
International Brotherhood of Electrical Workers,
AFL-CIO. Case 1-CA-7867
April 30, 1973
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS FANNING
AND JENKINS
On July 12, 1972, Administrative Law Judge I
Thomas A. Ricci issued the attached Decision in this
proceeding. Thereafter, the General Counsel filed ex-
ceptions and a supporting 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 au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge only to
the extent consistent herewith.
The Administrative Law Judge has found that the
Respondent did not violate Section 8(a)(3) and (1) of
the Act when it discharged four employees because
they filed a civil suit in Federal district court alleging
arguably unfair labor practice charges against the Re-
spondent. He dismissed the complaint in its entirety.
We disagree.
The Respondent is engaged in the manufacturing
of wire products at its plant located in Warwick,
Rhode Island.
Three employees named in the complaint, Mary
Malstrom, Winifred Henault, and Ruth Johnson,
were discharged on August 20, 1971, and a fourth
employee, Leo Johnson, on August 21, 1971.
On July 25, 1970, Malstrom, Henault, Ruth John-
son, and Leo Johnson were defeated in local union
officer elections. Malstrom, Henault, and Ruth John-
son had been incumbent elected officeholders, and
Leo Johnson, an appointed union steward, had sought
election to the Union's executive board.
On July 1, 1970, prior to the election, Malstrom,
Ruth Johnson, and Henault, on behalf of the Union,
filed unfair labor practice charges against the Respon-
dent alleging that the Respondent had unlawfully as-
sisted certain candidates for union office. Also, on
July 16, 1970, Malstrom filed unfair labor practice
charges against the Respondent alleging that the Re-
spondent had unlawfully failed to process a grievance
The title of "Trial Examiner" was changed to "Administrative Law
Judge" effective August 19, 1972.
pursuant to the existing labor contract. On October
12, 1970, Malstrom and Ruth Johnson filed unfair
labor practice charges against the Union alleging that
the Union had failed to process their grievance. The
General Counsel decided against issuing complaints
on the above charges and closed out the cases on
February 24, 1971.2
During a similar period, from June 29, 1970, to
November 19, 1970, Malstrom, Henault, and Ruth
Johnson were involved in eight grievances filed pur-
suant to the existing labor contract, and from Decem-
ber 7 to 22, 1970, they were involved in the filing of
three complaints. All of these grievances and com-
plaints ceased being active after January 5, 1971, even
though Malstrom, Henault , and Ruth Johnson were
not satisfied with the resolutions thereof.
Thereafter, since Malstrom, Henault, Ruth John-
son, and Leo Johnson believed that they had exhaust-
ed their remedies through the grievance procedure of
the existing contract and through the National Labor
Relations Board procedures, and, since they believed
that they were not getting anywhere, they sought the
assistance of an attorney. After discussing the matter
with this attorney, it was agreed that they should file
suit.
On August 11, 1971, about 5 months after the last
unfair labor practice charge, grievance, and com-
plaint had been processed to completion, Malstrom,
Ruth Johnson, Henault, and Leo Johnson, the named
plaintiffs, filed a civil suit petition in the District
Court of the United States for the District of Rhode
Island against the following defendants: the Respon-
dent; the Union's International, district, and local;
Harvey Kram, Respondent's vice president of opera-
tions; C. James Mack, the plant manager; Carl Em-
mett, a supervisor; certain other management
officials; and certain union officials, including the
incumbent local union officeholders.
The petition alleges that while the plaintiffs were
union officials they had obtained better wages, hours,
and working conditions and had administered the col-
lective-bargaining agreement to the benefit of the bar-
gaining unit employees; that Respondent became
vexed; that Respondent began to interfere in the up-
coming union officer election of 1970 and put pres-
sure on plaintiffs' union superiors to join with
Respondent in defeating plaintiffs for reelection in
1970; that Respondent and Union conspired to aid,
assist, and give preferential treatment to opponents of
2 As to the July 1, 1970, charge the General Counsel, on appeal, found that
the parties had provided some evidence, but not enough to prosecute. As to
the July 16, 1970, charge the General Counsel apparently declined to prose-
cute for policy reasons as after the initiation of the charge the grievance was
processed . As to the October 12, 1970, charges the General Counsel declined
to prosecute as the Union, following the filing of the charges, processed the
grievances.
203 NLRB No. 38
310 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
plaintiffs ; that Respondent and Union , by these ef-
forts , using inducements, force , and threats to certain
bargaining unit employees, were successful in causing
the plaintiffs ' defeat ; and that Respondent and Union
pursued this conduct to benefit themselves and to
deprive plaintiffs from continued employment at the
Respondent plant and from continuing to serve and
represent their fellow union members . The petition
also alleges that Respondent interfered with employee
rights under the contractual grievance procedure. The
petition makes no reference to the Respondent's
product , its service to customers or suppliers, or its
relationship to the public.
The petition seeks damages for the four plaintiffs as
follows : Count one , actual damages of about $70,000
and exemplory damages of $950,000 ; and count two,
actual damages of about $95,000 and exemplary dam-
ages of $950 ,000. Finally , the petition seeks an injunc-
tion to enjoin defendants from interfering with
plaintiffs' rights as union officers and employees.
Malstrom testified that, to the best of her knowl-
edge , the allegations contained in the petition were
true.
The civil suit was served on all defendants and
Respondent admitted that Mack and Emmett knew
about this service on August 13, 1971, and that Kram
knew about this service on August 17, 1971.
On August 20, 1971 , the supervisors of Malstrom,
Henault , and Ruth Johnson discharged them by read-
ing a statement prepared by Kram . The statement was
as follows:
Your continuous harassment and agrivation
[sic] of your fellow employees and the manage-
ment of this division is disrupting and interfering
with normal operations . Consequently , you are
advised that effective immediately , you are ter-
minated.
On August 21, 1971, Andrew Yorstin, Leo
Johnson's supervisor , informed him he was being dis-
charged for poor work.
Kram , Respondent 's official who made the dis-
charge decision, admits that the reason he discharged
Malstrom , Henault , and Ruth Johnson was because
they had filed the civil suit . The filing of the civil suit
was "the straw that broke the camel 's back." Leo
Johnson was a part of the suit against the Company
and the instructions were to terminate him also.
The Administrative Law Judge found the disgrun-
tled employees here were engaged in an internal union
quarrel, they were resentful of the employees ' choice
of union agents, they had exhausted administrative
procedures within the Union's structure after losing in
the second election , and they were determined to de-
stroy the Union's capacity to function according to
law; it is they who set out to deny their fellow workers
the rights guaranteed them by statute . Giving vent to
their personal spleen for losing the positions of au-
thority they had previously enjoyed , they struck out
at anybody and everybody regardless of propriety.
The Administrative Law Judge found if their entire
course of conduct , spanning a full year 's period, be
considered , they deserved to be discharged.
Even after we review their conduct for a period
longer than a year prior to their discharge we do not
agree with the Administrative Law Judge 's conclu-
sion. As noted previously , Malstrom, Henault, and
Ruth Johnson filed a total of three unfair labor prac-
tice charges, two against the Respondent and one
against the Union . They were filed on July 1, 1970,
July 16 , 1970, and October 12, 1970 . All of the charges
were disposed of more than 6 months before their
discharge . Leo Johnson did not file a charge against
either the Respondent or Union and the charges alleg-
ing failure to process grievances were not prosecuted
because the grievances were now being processed.
Malstrom, Henault, and Ruth Johnson, among
them, were involved in the filing of a total of eight
grievances from June 29, 1970 , until November 19,
1970. Leo Johnson did not file any grievances.
All of the eight formal grievances were filed by a
union official , so we must assume that the union sanc-
tioned each and every grievance that was filed. It is
true that one of the three women in the complaint was
the union official who approved the processing of
three grievances that were filed on June 29 , 1970, and
two on July 24, 1970 . However , the remaining five
grievances , only two of which (August 4, 1970, and
November 19, 1970) the Administrative Law Judge
considers in his Decision, were filed by other union
officials on behalf of the three women in the com-
plaint. The three remaining grievances, not alluded to
by the Administrative Law Judge , were filed by the
Union on August 17, 1970, November 16, 1970, and
November 19, 1970. Moreover , the filing of these
grievances produced beneficial results to the Employ-
er, the Union , and the employees . The first resulted in
the department foreman taking corrective action to
change his production scheme, the second caused the
foreman to investigate the fairness of the wage rate,
and the third caused the Respondent to agree to re-
time a job with the union steward present to verify the
count . Clearly, such grievances were not without pro-
priety and were not designed to deny their fellow
workers the rights guaranteed by the contract or stat-
ute, as found by the Administrative Law Judge. More-
over, we cannot attribute the filing of the grievances
to the personal spleen of the dischargees, as found by
the Administrative Law Judge . The evidence fails to
establish that these grievances were frivolous or filed
for nuisance value , and all related to terms and condi-
LEVITON MANUFACTURING CO.
tions of employment. Furthermore, the filing of all the
grievances involved in this case was extremely remote
in time to use as incidents to justify discharge, since
the last grievance was filed almost 10 months. before
the discharges. In these circumstances we are unwill-
ing to construe the filing of such grievances as part of
a plan to harass the Respondent on the part of the
employees involved.
We take a similar view of the total of three com-
plaints filed by Malstrom, Henault, and Ruth John-
son, among them, within 15 days of each other and all
more than 9 months before their discharges. The sub-
stance of each complaint was that the labor contract
entitled employees to 40 hours of pay, that when Re-
spondent closed down after a holiday the employees
should get paid for the day off, and, consequently,
that the Respondent's failure to pay employees for
that day violated the labor contract. Leo Johnson.did
not file any complaints. We fail to see how these three
complaints could be considered harassing incidents
when they were not without merit on their face, oc-
curred at such a remote time from the discharges,, and
the filing of the complaints, like the filing of the griev-
ances, plainly did not disrupt production.
The only other harassing incident referred to by the
Administrative Law Judge, aside from the grievances,
the unfair labor practice charges, and the civil suit,
concerns statements Malstrom allegedly made to
Robert Cushing, an assistant foreman. In this regard,
Mack, the plant manager, testified that it had been
reported to him that Malstrom had told Robert Cush-
ing, an admitted supervisor, that she hoped he had
paid for his house because she was going to get it.
Mack said 'that he then instructed Emmett,
Malstrom's immediate supervisor, to tell her that the
Respondent did not condone that kind of activity.
Emmett testified that he carried out these instructions
and that Malstrom denied having made the statement
to Cushing. Malstrom testified and denied having
made the statement to Cushing. Cushing, the supervi-
sor, was not called as a witness. The only direct evi-
dence on this incident is the denial by Malstrom that
she made the statement. The testimony of Mack and
Emmett is hearsay. The Administrative Law Judge
chose to "believe the testimony, hearsay or not, that
Malstrom told one supervisor he would lose his home
because of what happened within the Union. '..."
Contrary to the Administrative Law Judge, we cannot
rely on such hearsay testimony, particularly where
such testimony has been denied, to make a finding of
harassment warranting discharge of Malstrom.
We must conclude based on the entire record evi-
dence, therefore, that the Respondent discharged the
four employees for filing the above-described civil
suit . This activity is protected under the Act unless
311
this activity was done with malice or in bad faith.' In
our view, the evidence clearly failed to establish any
malicious or bad-faith intent 4 Accordingly, such dis-
charges constituted interference, restraint, and coer-
cion with respect to Section 7 rights and thus violated
Section 8 (a)(1).5
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of
the Act.
2. Local 1274, International Brotherhood of Elec-
trical Workers , AFL-CIO, is a labor organization
within the meaning of Section 2(5) of the Act.
3. Respondent interfered with, restrained, and
coerced its employees in the exercise of rights guaran-
teed by Section 7 of the Act and thereby engaged in
and is engaging in unfair labor practices affecting
commerce within the meaning of Sections 8(a)(1) and
2(6) and (7) of the Act.
THE REMEDY
Having found that the Respondent has engaged in
unfair labor practices in violation of Section 8(a)(1) of
the Act, we shall order that it cease and desist there-
from and take certain affirmative action designed to
effectuate the policies of the Act. It has been found
that the Respondent has discriminated against em-
ployees Mary Malstrom, Winifred Henault, and Ruth
Johnson by discharging them on August 20, 1971, and
against employee Leo Johnson by discharging him on
August 21, 1971, because they engaged in concerted
action for their mutual aid and protection, in violation
of Section 8(a)(1) of the Act. We shall therefore order
the Respondent to offer them immediate and full rein-
3 See, e .g.. Sarkes Tarzian, Inc., 149 NLRB 147; Bunney Bros. Construction
Company, 139 NLRB 1516; Walls Manufacturing Co., 137 NLRB 1317, enfd.
321 F 2d 753 (C.A.D.C.), cert . denied 375 U.S. 923; Socony Mobile Oil
Company, Inc., 153 NLRB 1244, enfd. as modified 357 F.2d 662 (C.A. 2);
Moss Planning Mill Co, 103 NLRB 414 , enfd . 206 F.2d 557 (C.A. 4).
4 Unlike our dissenting colleague , we find no evidence showing that the
four discriminatees were engaged in a campaign of harassment caused by
personal spite The "volley of charges , grievances, and litigation" referred to
by our colleague , when carefully scrutinized , reveals fully protected activity
engaged in without malice or bad faith. Indeed , it is the very "picking
through" the total evidence which reveals that discriminatee Leo Johnson
filed no charges, grievances , or complaints, that many of the grievances, filed
with the approval of union officials , produced beneficial results to the Em-
ployer, the Union , and the employees , and that all of the charges , grievances,
and complaints were acted upon and disposed of more than 6 months poor
to the discharges. Moreover, it is this careful analysis of the record evidence
which plainly shows that Malstrom, Henault, Ruth Johnson , and Leo John-
son were the victims of Respondent's shotgun discharges designed to elunt-
nate those who were engaged in a clearly protected activity.
s The General Counsel urges us to find a violation of Section 8(a)(3) of the
Act. However , we find it unnecessary to determine this matter ` as the remedy
would be the same as we have provided herein for Respondent 's 8(axl)
violations.
312 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
statement to their former jobs or, if those jobs no
longer exist, to substantially equivalent positions,
without prejudice to their seniority or other rights and
privileges, and to make them whole for any loss of pay
they may have suffered as a result of this discrimina-
tion against them by payment to them of a sum of
money equal to that which they would have earned as
wages from the date of the discrimination to the date
of reinstatement , less their net earnings during such
period, in accordance with the formula prescribed in
F. W. Woolworth Company, 90 NLRB 289, together
with interest at the rate of 6 percent per annum to be
added to such backpay, such interest to be computed
in accordance with the formula prescribed in Isis
Plumbing & Heating Co., 138 NLRB 716. The nature
of the unfair labor practices found herein "go to the
very heart of the Act." The Respondent will, there-
fore, be further ordered tocease and desist from "in
any other manner" infringing on the rights guaran-
teed to its employees by Section 7 of the Act.6
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board hereby orders that the Respondent, Levi-
ton Manufacturing Company, Inc., Warwick, Rhode
Island , its officers , agents, successors , and assigns,
shall:
1. Cease and desist from:
(a) Discharging and refusing reemployment to em-
ployees or otherwise discriminating in regard to their
hire, tenure of employment, or any terms or condi-
tions of employment because they have engaged in
concerted activities for the purpose of mutual aid or
protection.
(b) In any other manner interfering with, re-
straining, or coercing employees in the exercise of
their right to self-organization, to form labor organi-
zations, to join or assist any labor organization, to
bargain collectively through representatives of their
own choosing , and to engage in concerted activities
for the purpose of mutual aid of protection as guaran-
teed in Section 7 of the Act, or to refrain from any and
all such activities.
2. Take the following affirmative action which the
Board finds will effectuate the policies of the Act:
(a) Offer Mary Malstrom, Winifred Henault, Ruth
Johnson, and Leo Johnson immediate and full rein-
statement to their former jobs, or if those jobs no
longer exist , to substantially equivalent positions,
without prejudice to their seniority or other rights and
privileges previously enjoyed.
6 Fry Products, Inc, 110 NLRB 1000, 1005
(b) Make the above-named employees whole for
any loss of pay they may have suffered by reason of
the discrimination against them in the manner and in
accordance with the methods referred to in the section
above entitled "The Remedy."
(c) Preserve and, upon request, make available to
the Board or its agents , for examination and copying,
all payroll records, social security payment records,
timecards , personnel records and reports, and all oth-
er records necessary to analyze the amount of back-
pay due under the terms of this Order.
(d) Post at its establishment in Warwick, Rhode
Island, copies of the attached notice marked "Appen-
dix."' Copies of said notice, on forms provided by the
Regional Director for Region 1, after being duly
signed by Respondent's representative, shall be post-
ed by Respondent immediately upon receipt thereof,
and be maintained by it for 60 consecutive days there-
after, in conspicuous places, including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by Respondent to
insure that said notices are not altered , defaced, or
covered by any other material.
(e) Notify the Regional Director for Region 1, in
writing , within 20 days from the date of this Order,
what steps the Respondent has taken to comply here-
with.
IT IS FURTHER ORDERED that the complaint insofar as
it alleges violations of the Act not herein found be,
and the same hereby are, dismissed.
CHAIRMAN MILLER , dissenting:
I am convinced, as was the Administrative Law
Judge who heard and observed all of the witnesses,
that the employees who seek relief here were engaged
in a campaign of harassment caused by personal spite.
Even though that campaign may have been conduct-
ed by means which would be fully protected if utilized
for a proper purpose, I do not think that we can blind
ourselves to the reasons for the volley of charges,
grievances, and litigation in which they engaged.
Both our own processes and the processes for re-
solving legitimate grievances can be misused to harass
the innocent, and that is what the Administrative Law
Judge below found had happened here. I would re-
spect his overall view of the evidence, rather than
picking through the record pages to find a few instan-
ces in which a pellet or two out of the charging parties'
shotgun barrage may have found the outer edges of a
legitimate target.
For the reasons stated by the Administrative Law
r In the event that this 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 "
LEVITON MANUFACTURING CO.
Judge, I am of the view that a realistic assessment of
the totality of this record requires a dismissal of the
instant complaint.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL. LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discharge or deny reemploy-
ment to any of our employees or discriminate in
regard to their hire, tenure of employment, or any
term or condition of employment because they
have engaged in concerted activities for the pur-
pose of mutual aid or protection.
WE WILL NOT in any other manner interfere
with, restrain, or coerce employees in the exercise
of their right to self-organization, to form, join,
or assist labor organizations, to bargain collec-
tively through representatives of their own
choosing, and to engage in other concerted activ-
ities for the purpose of collective bargaining or
other mutual aid or protection, or to refrain from
any or all of such activities.
WE WILL offer Mary Malstrom, Winifred He-
nault, Ruth Johnson, and Leo Johnson immedi-
ate and full reinstatement to their former' jobs or,
if those jobs no longer exist, to substantially
equivalent positions without prejudice to their
seniority or other rights and privileges previously
enjoyed.
WE WILL make the above-named individuals
whole for any loss of pay they may have suffered
by reason of the discrimination against them.
LEVITON MANUFACTURING
COMPANY, INC.
(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, 7th Floor-Bulfinch Building, 15 New
Chardon Street, Boston, Massachusetts 02114, Tele-
phone 617-223-3300.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
313
THOMAS A. Ricci, Trial Examiner: A hearing in the above-
entitled proceeding was held before the duly designated
Trial Examiner on April 26, 27, and 28, 1972, at Providence,
Rhode Island, on complaint of the General Counsel against
Leviton Manufacturing Company, Inc., herein called the
Respondent or the Company. The complaint issued on
March 13, 1972, upon a charge filed September 15, 1971.
The issue of the case is whether the Respondent discharged
four employees in violation of Section 8(a)(3) of the Act.
Briefs were filed after the close of the hearing by the Gener-
al Counsel and the Respondent.
Upon the entire record, and from my observation of the
witnesses , I make the following:
FINDINGS OF FACT
I THE BUSINESS OF THE RESPONDENT
Leviton Manufacturing Company, Inc., a New York
State corporation, does business in a number of states. One
of its locations, the only one involved in this proceeding, is
a plant located in the city of Warwick, Rhode Island. In the
normal course of its business the Respondent annually ships
to and receives from points directly outside the State of
Rhode Island, for use at this one plant, products and raw
materials valued in excess of $50,000. I find that the Re-
spondent is engaged in commerce within the meaning of the
Act.
11 THE LABOR ORGANIZATION INVOLVED
I find that Local 1274, International Brotherhood of Elec-
trical Workers , AFL-CIO, is a labor organization within the
meaning of Section 2(5) of the Act.
III THE ALLEGED UNFAIR LABOR PRACTICES
The Case in Brief
Three employees named in the complaint were dis-
charged on August 20 , 1971-Malstrom , Henault , and Ruth
Johnson-and a fourth Leo Johnson, on August 21. The
complaint alleges that in each instance the Respondent vio-
lated Section 8(a)(3) of the Act. They were discharged for
certain conduct, according to the General Counsel, and the
theory of illegality , of course , argues that such conduct was
protected by the statute and therefore could not constitute
justifiable cause in defense of this complaint . There is no
substantive issue as to what that conduct was , for the Re-
spondent virtually agrees as to what the elements of the
conduct in question are, and, conversely, contends that the
statute does not insulate such behavior from proper disci-
pline , or discharge at the hand of the employer . In fact, the
General Counsel proved his entire case by calling as his sole
314 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
witness Mr. James Mack, divisional manager and opera-
tional head of the entire plant . He asked Mack to state the
reasons why the four employees were discharged , and when
the witness was through explaining what they had done to
merit dismissal the General Counsel rested. There are some
questions of fact as to certain minor details of employee
activity, mostly by the three women , but for the most part
examination and cross -examination of witnesses during the
3-day hearing amounted to no more than characterization
of undisputed acts, argument as to what admitted conduct
did or did not mean , and, generally, of conclusionary state-
ments by the various witnesses giving vent to their personal
animosities of reactions . What is presented is more a ques-
tion of law than of fact.
Briefly, the four employees had for some years been elect-
ed or appointed officials of the local union . They were
unseated as a result of internal union elections . Resentful of
their now reduced status in the plant , they did all they could
to frustrate the desires of the employees as expressed by
secret ballot , to impede the proper functioning of the collec-
tive-bargaining process through the newly chosen officers
and stewards , even to the point of embroiling management
in the internal union disorder . Impatient at the excesses of
these employees ' conduct in the plant, and towards the
supervisors and upper echelons of management, the Re-
spondent got nd of them . Can it be said , in such a case, that
this Employer was motivated , in these discharges , by what
is ordinarily called "antiunion animus," or an intent to de-
prive the employees of the right to engage in union activity,
as that concept is envisaged by the statute?
As to one of the four, Leo Johnson, it is the contention
of the Respondent that he was released for reasons having
nothing to do with the internal union squabble , but only
because his work performance was unsatisfactory. If the
theory of complaint, directed to all four employees , fails, it
follows of necessity the complaint must be dismissed as to
Leo Johnson also, for apart from the total story of internal
union strife , it is not claimed there is any other evidence of
antiunion motivation with respect to that man.
Stipulated Facts and Matters Established
by Unquestioned Documentary Proof
Union elections : The jurisdiction of Local 1274 , IBEW, is
limited to the approximately 2,000 employees of the
Respondent 's Warwick, Rhode Island , plant , plus a satellite
location about 10 miles away having'perhaps 80 employees.
Its officers are elected by-the union membership every 3
years, the principal officer being the business manager, also
called business agent . The business manager designates a
chief steward , other stewards, and at times members of the
executive board . Executive board members are ordinarily
also elected by the membership.
A regular election was held in the summer of 1970 . At that
time Malstrom was the elected business manager , Henault
the chief steward appointed by Malstrom , and Ruth'John-
son and her son Leo, stewards , also serving by designation
of the business manager . Henault and Ruth Johnson also
held the position of elected members of the executive board
and Henault has been elected chairman of the executive
board by its members . In addition , Malstrom had designat-
ed Ruth Johnson as editor of the union newspaper. By
agreement between the Union and the Company, Malstrom
had been on leave of absence from her job as a press opera-
tor so she could devote full time to union duties . She was
paid a salary by the Union-the only paid union officer-
and had an office with a secretary in town. Malstrom had
held this privileged position , working for the Union for what
someone said was higher pay instead of at a machine, for
5 years.
There also took place a special union election in May
1970 for- selection of four members to be delegates to an
IBEW convention in Seattle . Among the four then chosen
were Malstrom and Rui Carnnho, an employee who also
was departmental steward appointed by Malstrom.
The regular election for officers was held on June 6. Mal-
strom ran against Carrinho for business manager and lost.
Henault ran for executive board and was elected , but Ruth
Johnson and Leo Johnson , again running for executive
board, were both defeated.
Malstrom and her group complained to the IBEW's sec-
ond district in Boston that the election had been improperly
conducted, and the IBEW intermediate body set aside both
the convention delegate and the officer elections . New elec-
tions were held on July 25, 1970. Carrinho again defeated
Malstrom for business manager, by a vote of two to one,
and this time Henault , Ruth Johnson, and Leo Johnson
were all defeated for executive board. In the delegate elec-
tion Carrinho again was among the four chosen , but Mal-
strom now lost that prize too.
With Carrinho taking office, none of the four persons in
question-Malstrom , Henault , Ruth Johnson, nor Leo
Johnson-was reappointed to any position at all . Malstrom
returned to work in the plant and Carrinho went on the
Union's payroll.
Formal expressions of resentment : On July 1, 1970, the
three women-Malstrom , Henault, and Ruth Johnson-
and another person named Josephine Daney, signed a Na-
tional Labor Relations Board charge against the Respon-
dent (Case 1-CA-7176), accusing it of violating Section
8(a)(2) of the Act, unlawful assistance to the Union because
it "assisted certain candidates for union office ." The charge
was investigated by the Board's Regional Director , found to
be without merit , and on August I I dismissed . Malstrom
appealed to the General Counsel in Washington for rever-
sal, but the appeal was denied as untimely filed.
On July 16, 1970, Malstrom personally filed another
charge against the Respondent (Case 1-CA-7203), alleging
violations of Section 8(a)(5) in the refusal to process a griev-
ance on her behalf . This charge too, after investigation, was
dismissed by the Regional Director.
On October 12, 1970, Malstrom filed a charge against
Local 1274 (Case I-CB-1692- 1), accusing it of failure ade-
quately to represent her in a grievance , an alleged violation
of Section 8(b)(1). Also on October 12, 1970, Ruth Johnson
filed a like charge against Local 1274 (Case I-CB-1692-2),
accusing it of failure adequately to represent her in a griev-
ance , another alleged violation of Section 8(b)(1). Both
these last two charges were dismissed , after investigation, by
the Regional Director , on December 16, 1970. Appeals for
reversal of the Regional Director, addressed to the General
Counsel in Washington , were denied' on February 24, 1971.
LEVITON MANUFACTURING CO.
Between June 29 and November 19, 1970, eight formal
grievances, on union forms and in keeping with the contrac-
tually established grievance procedure , were filed by one or
another of these three women or on their behalf . Five of
them on their face attempt to litigate repeated charges that
management representatives improperly and unlawfully
concerned themselves with internal union affairs.
On June 29 , 1970, Ruth Johnson filed a grievance charg-
ing that the Company was "harassing" and "discriminat-
ing" against her son Stanley Johnson, also an employee,
"because of his relatives ' activities in Local 1274." This
grievance identified the relatives as Ruth Johnson and her
son, Leo. The grievance was rejected . The Respondent's
records of this grievance show that on August 13, 1970, at
one of the step conferences Ruth Johnson refused to talk
"on the advice of her attorney." This of course was not, and
could not have been , a lawyer for the Local or the IBEW.
On July 24 Ruth Johnson filed another grievance , accus-
ing management of "surveillance and harassment of union
representation ." The language of the supporting statement
amounts to a vague and repetitive generalization of surveil-
lance of Johnson herself acting as chief steward . The griev-
ance was rejected on the ground that the women had
improperly held a union meeting on company time.
Again on July 24kuth Johnson filed a separate grievance
on behalf of Malstrom, this one saying Malstrom had been
assigned undesirable work because of her position as busi-
ness manager , presumably because of her past position as
business manager, for by that time she had been replaced
by Carrinho. The Company rejected this grievance on the
ground Malstrom had simply been returned to her old job.
The language of the grievance included the statement that
the Company was trying " to get rid of me because of my
union activities."
A fourth grievance was filed on August 4, signed by Mal-
strom , and Gendron , the new chief steward . This too was
on behalf of Malstrom , and charged she had been denied
a particular assignment "because of my activities while I
served as Business Manager." The grievance was withdrawn
the next day.
And, on November 19, a grievance was filed by a steward
named Marinaro , again on behalf of Malstrom , setting out
a general charge of "discrimination . . . since my return."
The disposition of this grievance is not indicated on the
record.
Finally, on August 13, 1971, all four of the employees
named in the complaint jointly instituted a civil suit for
money damages in the United States Court of Rhode Island,
against the Respondent corporation and against the IBEW
International Second District and IBEW Local 1274. It also
named as individual defendents the following agents of the
Respondent : Harvey Kramm , vice president of operations,
located in New York City; Mack , the divisional manager;
Donald Jubin , personnel coordinator ; Lewellyn Canefield
and Emmett , plant supervisors . Additional individual de-
fendents in the suit are the following officials of the IBEW
International : Pillard , president ; Feynn, vice president; and
Sanders, Peirre and Coute, international representatives.
The suit also named as defendents the following agents of
IBEW Local 1274: Laprocina, Prevost , Peugh , Ferretti,
Carrinho, and Gendron , all newly elected officers , business
315
manager , or steward . Ending with a total claim for payment
of $2 million the complaint charges all these defendents
with having conspired to unseat the plaintiffs from their
positions as union agents.
Analysis and Conclusions
As already stated, the three women were discharged 7
days after the civil suit was filed and served upon the multi-
ple defendents , and Leo Johnson I day later . Kramm, who
made the decision to do this, said the suit was the "straw
that broke the camel's back." He explained that the disrup-
tive tactics of these women , bringing friction among the
employees in the plant, suspicion and distrust between the
supervisors and workers, and three-cornered conflict-
company against union , union against employees , and em-
ployees against company-could no longer be tolerated and
had to be stopped. In classic and , of course, conclusionary
language, the complaint simply says the four employees
were engaged in "concerted activities ," and had "joined or
assisted the Union."
In their contrasting views of the case-the Respondent's
position voiced by its witnesses from the stand and the
General Counsel' s (not the Charging Party's) argument ex-
pressed by him from counsel table-both sides tended to
exaggerate the picture. Kramm said Malstrom and her
group turned the plant into a "battlefield," another "Viet
Nam"; it was not quite that bad. After drawing from Divi-
sional Manager Mack the admission that among the many
things done by this group which in total merited dismissal
were the two groundless Labor Board charges they filed
against the Respondent , the General Counsel asked for
summary judgment, insisting that the Company be denied
any opportunity to offer further defense. But in a total
course of conduct picture of this kind, no single and conven-
iently out-of-context fact can determine the final decision.
The question really turns upon the nature of the activities
in which the employees were engaged , and for which they
were discharged. They certainly were not "assisting the
Union" by trying to hook it for $ 2 million ; they were not
attempting to nourish peaceful collective bargaining-the
ultimate aim of the statue; nor were they trying to compel
their employer to heed the single voice of a union on behalf
of all its employees in place of individual dealing with the
workmen. It is only in a very literal and meaningless sense
that their true concern can be called a "union" matter. No
less were the pickets involved in Jefferson Standard Broad-
casting Company, 94 NLRB 1507, prounion activists while
defaming their company's product, for which the Board
held they could lawfully be discharged. The disgruntled
employees here were engaged in an internal union quarrel,
they were resentful of the employees' choice of union
agents , they had exhausted administrative procedures with-
in the Union 's structure after losing in the second election,
and they were determined to destroy the Union's capacity
to function according to law; it is they who set out to deny
their fellow workers the rights guaranteed them by the stat-
ute. Giving vent to their personal spleen for losing the posi-
tions of authority they had previously enjoyed, they hit at
anybody and everybody regardless of propriety. If their
entire course of conduct , spanning a full year period, be
316 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
considered, they deserved to be discharged. I will recom-
mend dismissal of the complaint.
It is unlawful for an employer coercively to encourage or
discourage the attempt by any employee to achieve status
as an officer or spokesman of the collective-bargaining
agent, but it is a distortion in this case to characterize the
Respondent's action in discharging these people with such
phrases. There is no evidence that it aided the election cam-
paign of Carrinho or of the other successful candidates in
the two union elections. There is no evidence that it sought
to interfere with the campaign of Malstrom or her friends.
When Malstrom first conceived the notion that the Compa-
ny was behind Carrinho's threat to her important position,
she went personally to Kramm and accused him of improp-
er interference with the election. He denied the charge and
sent written instructions to the plant, to be read to all super-
visors, that they were to remain strictly neutral. The instruc-
tions were read to the staff; Kramm even sent a copy of his
orders to Malstrom. Moreover, this was the very question
raised in Malstrom's first Labor Board charge, back in June
of 1970. It was investigated and found wanting . Had there
been any evidence supporting the charge it would have been
introduced here by the General Counsel or by the dischar-
gees' personal lawyer. Nor can it persuasively be said that
Respondent resented being charged with such misconduct,
despite its inconvenience, for it took no disciplinary action
then.
As to the assertion that Malstrom was interested in fur-
thering the procedures of collective bargaining, and that this
entire proceeding, like all other unfair labor practice cases,
serves to vindicate that statutorily protected objective, it is
not impertinent to consider the position and participation
of the IBEW and its Local 1274. The charge underlying the
complaint was filed by Local 1274. But it did not file a
grievance, as the contract then in effect provided , at the time
of the discharges, although the Company had given it ad-
vance notice of its intent. A Boston lawyer appeared at the
first day of the hearing as representative of the Charging
Party; he took no significant part in the proceeding and did
not return after the first day. The four discharged employees
were represented by another attorney, from Providence,
and it was obvious that the two lawyers had conflicting
interests . After all, it was the Boston lawyer who defended
the $2 million civil suit by the four employees, brought by
the same local attorney who appeared at the hearing with
the four persons. Quite anomalously, Carrinho, the princi-
pal officer of the Charging Party, was a very important
witness called by the Respondent; he was not hostile to the
Company but enthusiastic for the defense. And at one
point, when a representative of Local 1274 failed to produce
a certain record which the General Counsel asserted must
have been among its files, the prosecution asked that an
inference adverse to the Charging Party be made in conse-
quence. In circumstances like these, it strains credulity to
suggest the case arises from any labor dispute between the
Employer and the Union. Just who is against whom here,
anyway?
Like any other case alleging violation of Section 8(a)(3)
of the Act, this one too can be appraised from the point of
view of the Employer's motivation. Was its purpose to dis-
courage membership in the Union? As always, there are
many factors that bear a relationship to this inquiry and that
therefore ought to be considered. IBEW Local 1274 has
been the regularly recognized collective-bargaining agent
for the Respondent's employees for upwards of 30 years,
and has enjoyed successive contracts, all amicably negotiat-
ed. Throughout the entire period there has been only one
strike, a wildcat stoppage in a single department that lasted
only 1 day. The parties have never asked for mediation and
never had to resort to the arbitration stage of their grievance
procedure. Malstrom first testified that throughout the 5
years she acted as business manager not a single grievance
was filed because of a discharge; on second thought she said
she did remember just one! Between January 1, 1968, and
July 31, 1970, between 35 to 45 employees were discharged.
An official of the Company testified that in contrast to the
turbulence caused in the plant by the activities of Malstrom
and the other two women, after their discharge the plant
returned to calm and normalcy. The General Counsel at this
point interjected the comment: "Peace and harmony ... .
are also signs of prison life." The words fit poorly in his
mouth, for it is the purpose of the Act, and of the Labor
Board entrusted with its administration , to foster precisely
the sort of harmonious and fruitful industrial relations that
have so long prevailed in this plant.
It is true an employer may not discharge an employee
because she had filed an unfair labor practice charge against
it, regardless of whether the charge was or was not justified.
And it is also true that the employer may not discriminate
against an employee for filing grievances through the
Union; Malstrom, and the other woman, did both. But a
close look at what the women were doing via the grievances
proves clearly that they were trying to keep alive their insis-
tence that the Respondent was responsible for their fall
from popularity among the employees, and to enmesh the
Company in their continuing dispute with the newly elected
slate of officers. The five grievances listed above, while
superficially in proper form, were not true grievances but
repetitive carping upon the Section 8(a)(2) charge which was
dismissed by the Government. The first, dated June 29,
says: "I [Ruth Johnson] am agrieved because of personal
harassment and discrimination directed toward Stanley
Johnson . . . . because of my (R. Virginia Johnson) and his
brothers, (Leo J. Johnson) activities in Local Union 1274
.. I would further recommend that Stanley Johnson be
fully reinstated with . . . retroactive pay . . . because of
time lost due to this continual discrimination and harass-
ment because of relatives' activities in Local Union No.
1274... . " The next grievance reads , in part, as follows:
"I am agneved because while serving in the capacity of
Chief Steward for Local Union No. 1274 IBEW on July 22,
1970, during the first shift, I was under constant surveillance
by members of management ." Malstrom 's grievance on
July 24 reads: "As an employee I am agrieved because by
the very nature of the work assignment given me , indica-
tions are that you would like to get rid of me because of my
union activities . I fell that I am being harassed and discrimi-
nated against because of my office as Business Manager of
Local Union No. 1274 IBEW." By this time Malstrom had
already returned to work, and therefore it follows her griev-
ance related to her activities before she was defeated. Again
the fourth grievance also speaks of Malstrom being discn-
LEVITON MANUFACTURING CO. 317
minated against "because of my activities while I served as
Business Manager...... From the fifth grievance: "I
[Malstrom] am agrieved because ... my past union activi-
ties appear to color his [Emmett's, the supervisor] and other
members of managements attitude towards me." How do
you prove all this antiunion motivation in the grievance
procedure except it be by trying one unfair labor practice
case after another against the employer? These were not
grievances; they were the wanton hysteria of women
scorned.' How much of it must an employer tolerate, when
the basis of complaint, real or fancied, is the behavior of
fellow employees and not of management at all?
The belabored discourse in the General Counsel's briefs
of Board precedent involving pure grievances is totally in-
apposite . Grievances are concerned with implementation of
contract terms, construction of agreements, work evalua-
tion and proper pay for work done. What these women were
interested in had nothing to do with the Respondent's com-
pliance with the current contract, or even with whether or
not the new set of officers of the Local were or were not
discharging their proper duty as union agents.
And nothing could be clearer than the fact the civil suit,
started more than a year after the two union elections, had
one purpose only, to force everybody-IBEW Second Dis-
trict, Local 1274, the duly elected local officials and all of
management-to disregard the people's choices and to re-
store Malstrom, Henault, Ruth Johnson, and Leo Johnson
to union office . And the effective tourniquet for bending all
these defendents to the will of the four , was to be extraction
from their assets of $2 million in cash . At the hearing Mal-
strom said she went to a lawyer because "she wasn't getting
anywhere." The truth of the matter is that these women had
their own lawyers, as against any union representative, as
far back as August of 1970, when Johnson refused to talk
at one grievance meeting because her lawyer thought it best
she play coy. What was it they had so long tried to vindicate,
but without success? The theory of the suit , spelled out in
page after page of almost ranting repetitive accusations of
conspiracy, says nothing about infringement upon the right
of self-organization , the right to join or form unions, or the
right to bargain collectively. The plaintiffs do not believe in
the democratic process, when they lose, and wanted the
Company to do something to solve their hurt. And that
something was to be considerable , for at one point, among
the many, Malstrom alleged she had lost $40,000 in pay. I
doubt her weekly salary as business manager came close to
$800. A better word than "bad faith" to describe the attitude
of these people is "spite ." The entire record bespeaks a grim
1 Malstrom and Ruth Johnson also filed three "complaints " These were
written requests , on ordinary slips of paper, to be paid for certain nonwork
days at Thanksgiving and Christmas and for adjustment of certain rates.
They show a continuing determination to bypass the established contract
grievance procedure , to compel management to ignore the duly elected repre-
sentatives , and to further their persistent plan to frustrate orderly collective
bargaining through the Union. I credit the testimony by company witnesses
that Malstrom and Ruth Johnson refused to discuss or advance their com-
plaints in the presence of the regular union stewards . This, while they also
filed a charge against Local 1274 for refusing to process grievances on their
behalf . See the proviso to Section 9(a) of the Act.
determination to "get even" with the world in general for
having lost the union elections. I believe the testimony,
hearsay or not, that Malstrom told one supervisor he would
lose his home because of what happened within the Union,
and that another would have to pay for it all out of his
savings . This is not the sort of conduct protected by the
statute; an employer is not obligated in law to stand by and
watch disruption of his business because of dissension
among the employees as to who shall be officers of their
union. Significantly, the prosecution concedes there is no
"independent 8(a)(1) " conduct proved anywhere in this
record. Kramm said things seemed to quiet down in the
spring of 1971, and that he then hoped the furor had perma-
nently abated, only to have trouble explode anew in August.
I believe him.
The record is replete with testimony of employees and
stewards and other union officials figuratively calling one
another dirty names. With the hearing at times almost a
shamble of thoughtless verbal assaults-what with six law-
yers simultaneously having their say, no two of them really
in accord-many things were said that had little relevance
to the main issue of the case and do not merit restatement
in this report. Did Henault one day make an obscene ges-
ture to a member of management? Did Ruth Johnson at a
grievance meeting refuse to permit the authorized chief
steward to participate? Did somebody openly accuse anoth-
er employee of carrying on with a boss, even call the
supervisor's wife on the phone to tattle? These are minor
matters intended to remove the spotlight from the issue of
the case. There is no occasion here to decide whether the
Respondent would have been justified, in law, in discharg-
ing these people even before they filed the civil suit. There
is no reason to enunicate a rule of law on the right of any
employer to discharge any employee who elects to bring this
kind of damage suit. Kramm said his decision was based on
the totality of the picture, and the record as a whole gives
credence to his statements. If the phrase "the straw that
broke the camel's back" must be read as meaning he did
what he did because they filed the suit, so be it. I would still
dismiss the complaint.
Nor is there warrant for detailing the voluminous dispute
on the record about Leo Johnson's performance as an em-
ployee-did he or did he not deserve the successive warn-
ings , oral and in writing, when management deemed his
work too poor. Yorstin, departmental supervisor, said he
first warned Johnson orally that he should do better. Twice
before the suit was filed Johnson was given a written warn-
ing of continued unsatisfactory performance-on July 22
and again on August 2, when he also was suspended from
work for 3 days in discipline. Witness after witness was
called to dispute the reliability of the Company's methods
for measuring the performance of individual workmen. All
the while Johnson sat throughout the hearing and never
took the stand to deny the testimony that he had been
warned again and again before discharge, and that his work
had in fact been poor. There is like minute quarrel on the
record over the Company's statement that after Henault left
the women in her section did better in their work. A Trial
Examiner's decision is not intended to be a Talmudic res-
318 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cripturing of a pointless megilla of this kind. I would recom- RECOMMENDED ORDER2
mend dismissal of the complaint as to Leo Johnson even
had he never been involved in the union elections and even On the basis of the record ,n its entirety I hereby recom-
had he not joined in the civil suit against the Respondent . mend that the complaint be, and it hereby is dismissed.
2 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,
conclusions , and recommended Order herein shall, as provided in Sec . 102.48
of the Rules and Regulations, be adopted by the Board and become its
findings, conclusions , and order, and all objections thereto shall be deemed
waived for all purposes