M idwest Alloys, Inc.

National Labor Relations Board - Board Decisions

May 24, 1982

261 N.L.R.B. 1054 (N.L.R.B. 1982)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Midwest Alloys, Inc. and John Coats. Case 14-CA-
15027
May 24, 1982
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
ZIMMERMAN
On January 12, 1982, Administrative Law Judge
Nancy M. Sherman issued the attached Decision in
this proceeding. Thereafter, Respondent 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
and to adopt her recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the Respondent, Midwest
A!!oys, Inc., D'Fallon, Missouri, its officers, agents,
successors, and assigns, shall take the action set
forth in the said recommended Order.
I 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 credi-
bility unless the clear preponderance of all of the relevant evidence con-
vinces us that the resolutions are incorrect. Standard Dry Wall Products,
Inc., 91 NLRB 544 (1950), enfd 188 F.2d 362 (3d Cir. 1951) We have
carefully examined the record and find uio basis for reversing her find-
ings.
DECISION
STATEMENT OF TiHE CASE
NANCY M. SHERMAN, Administrative Law Judge: This
case was heard before me in St. Louis, Missouri, on Sep-
tember 8, 1981, pursuant to a charge filed on May 28,
1981; and a complaint issued on July 14, 1981, and
amended on August 27, 1981. The issue presented is
whether Respondent Midwest Alloys, Inc., violated Sec-
tion 8(a)(l) of the National Labor Relations Act, as
amended, (the Act) by threatening to effect reprisals
against employees because they filed grievances and by
soliciting the assistance of International Molders and
Allied Workers Union, Local No. 59, AFL-CIO-CLC
(the Union), which was admittedly the employees' statu-
tory bargaining representative, to discourage an employ-
ee from filing grievances.
261 NLRB No. 160
On the basis of the entire record, including the demea-
nor of the witnesses, and after due consideration of the
briefs filed by Respondent and by counsel for the Gener-
al Counsel (the General Counsel), I hereby make the fol-
lowing:
FINDINGS OF FACT
1. JURISDICT ION
Respondent is a Missouri corporation with its principal
office and place of business in O'Fallon, Missouri, where
Respondent is engaged in the manufacture, nonretail sale,
and distribution of stainless steel and related products.
During the year ending June 1, 1981, a representative
period, Respondent shipped products valued in excess of
$50,000 directly to points located outside Missouri. I find
that, as Respondent concedes, Respondent is engaged in
commerce within the meaning of the Act, and that asser-
tion of jurisdiction over its operations will effectuate the
policies of the Act.
The Union is a labor organization within the meaning
of the Act.
11. THE AI.I.:Gil.) UNFAIR lABOR PRACTICF S
A. Background
James I. Reid (herein called Reid Sr.) has been Re-
spondent's president for 30 years. Throughout that
period, Respondent has been a party to a series of con-
tracts executed by the Union's parent International and
the Manufacturers' Industrial Relations Association
(MIRA), and a series of supplemental agreements be-
tween the Union and Respondent individually. Respond-
ent called as a witness Leo Novak, who at the time of
the September 1981 hearing had been staff representative
for the Union's parent international since at least Decem-
ber 1979 and had previously been the Union's financial
secretary. As an active employee of Respondent, Novak
had been active in collective bargaining since about 1954,
and had been chairman of the shop committee for 16
years. Novak had negotiated with Reid Sr. until about
1977. Novak credibly testified to the belief that Reid Sr.
had always been a man of his word, and that although
the Union and Respondent had "hard-headed discus-
sions" and "bumped heads quite a bit," they always came
to an agreement.
Since about 1975, James S. Reid (Reid Jr.) who is the
son of James 1. Reid and is Respondent's secretary-trea-
surer, has been Respondent's chief labor relations officer.
In early 1980, the union president/shop steward, Willie
Hoskins, appointed employee Janet M. Jolly to serve as
machine shop committeeperson because Reid Jr. had in-
sisted that this job be filled in order to enable Respond-
ent to comply with contractual requirements for the
presence of a committeeperson during certain portions of
the grievance procedure.' Respondent's brief states, and
there is no evidence or claim to the contrary, the charge
I Reid Jr. testified wvithout objection that Hoskins had told him nobody
wanted the job
1054
MIDWEST ALLOYS, INC.
which gave rise to the instant case is the first and only
charge ever filed against Respondent.
B. John Coats' 1980 Grievance Activity
Respondent's machine shop includes persons classified
as machinists and persons classified as lathe operators.
The collective-bargaining agreement states that machin-
ists have a labor grade of 18 and that lathe operators
have a labor grade of 7; and specifies a significantly
higher wage scale for machinists than for lathe opera-
tors.2 However, machinists spend a lot of their time
doing lathe operator work. Moreover, since about 1966,
Respondent and the Union have been confronted with
problems involving allegations that employees classified
and paid as lathe operators were performing machinists'
work. The issue was the subject of a national arbitration
proceeding and, a number of years before the September
1981 hearing before me, a lawsuit. Respondent prevailed
in both proceedings.
At all material times when working in the machine
shop, John Coats has been classified by Respondent as a
lathe operator. On April 14, 1980, Coats filed a request
for a "Job Description and Classification change," in
which he requested that his job be evaluated as labor
grade 18, the same labor grade as machinists. When con-
sidered in light of the job descriptions for these two jobs,
his request alleged that his job was like the machinist
classification with respect to preemployment training,
employment training and experience, mental skill, and re-
sponsibility for safety of others. His request made like al-
legations with respect to responsibility for tools and
equipment and with respect to manual skill; responsibility
for material, tools, and equipment; and mental effort. In
connection with the categories referred to in this last
sentence, his request alleged, inter alia, that his job re-
quired him to set up machinery; to use calipers, micro-
meters, and other precise measuring instruments; to
sharpen tools; and to observe and check close toler-
ances.3 In addition, his request alleged that his job re-
quired some heavy lifting; both the machinist's and the
lathe operator's job descriptions specify light lifting only.
This request was signed by Reid Jr. inferentially to ac-
knowledge that he had seen it, as well as by Coats and
machine shop committeeperson Jolly. The collective-bar-
gaining agreement calls for referral of such requests di-
rectly to the International and to MIRA. I infer that
Coats' request was so referred. About mid-June 1980,
union steward Hoskins advised Coats that it had been
denied; according to Novak because (in effect) there was
no change in the job operation. Reid Sr. testified that the
machinist's and lathe operator's job descriptions and
evaluations had been prepared by representatives from
the Union and MIRA many years earlier after studying
the jobs in Respondent's shop, that such representatives
would not draw up another job evaluation unless Re-
spondent put in a new piece of equipment or changed its
method of doing something, and that most employer
2 In 1981, machinists were to be paid about $7.31 an hour, and lathe
operators were to be paid $6 265
3 At the September 1981 hearing before me, he testified that he was in
fact performing such functions. l he job description for lathe operator
does not refer thereto.
members of MIRA do not have lathe operators or ma-
chinists.
On May 1, 1980, while Coats' request for a job de-
scription and classification change was still pending, he
filed a grievance alleging that he was doing the same
work as the machinists in his department ("setting up
machines, sharpening tools, checking and holding close
tolerances, using micrometers and various measuring de-
vices, and etc.") but was receiving only lathe operator's
pay. The grievance, which indicates on its face that it
was initially received by admitted supervisor Anthony
Crnko, requested that Coats receive machinists' pay.
This grievance was denied on June 17, 1980. The "Dis-
position" entry bearing that date bears at least the pur-
ported signatures of Reid Jr., Hoskins, and Novak.
C. Coats' 1981 Grievance Activity and Management's
Remarks Pertaining Thereto
1. 1981 discussion between Respondent and the
Union regarding machine-shop classifications
In 1965, Respondent's machine shop employed a total
of about 15 machinists and lathe operators, more than
half of whom were machinists. By about August 1979,
there were about nine machinists and lathe operators, in-
cluding lathe operator John Coats (hired about March
1979). Coats testified that on an unspecified date he took
over the job of a machinist who had quit; the record in-
dicates that he was referring to Kenneth Vessels, who
quit about September 1980. About January 1981, ma-
chine shop sales began to decline. By mid-April 1981, 4
Respondent's machine shop employed two lathe opera-
tors (machine shop committeeperson Jolly, hired about
September 1979, and Coats) and four machinists. 5
In a meeting with Hoskins and Jolly on April 13, 1981,
Reid Jr. asserted that there was only lathe operator
work, and not machinist work, in the machine shop.
Reid Jr. proposed that the individual employees who at
that time were classified as machinists and paid the ma-
chinists' rate be "red-circled" (that is, paid at the machin-
ists' rate so long as they remained in Respondent's
employ), but that nobody else be hired as a machinists,
be promoted to that classification, or be paid the machin-
ists' rate; and that lathe operators be given a higher labor
grade. Jolly rejected this proposal. Jolly asked Reid Jr.
to reclassify Coats as a machinist because he had alleged-
ly taken over a machinist job. Reid Jr. said that although
Jolly's job was not in jeopardy, Respondent was losing
too much money on the machine shop, and that actually
the machine shop should be shut down. Reid Jr. gave
the union representatives the opportunity to inspect Re-
spondent's books to determine whether his claim of ma-
chine-shop losses was true. Jolly did not inspect the
books; the record fails to show whether any other union
representative did so.
4 All dates hereafter are 1981 unless otherwise stated
s A third employee, Henry Russell, was classified as a lathe operator
until about April 1981, when he was transferred to miscellaneous work.
1055
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. The April 1981 grievance form filled out by
Coats regarding his job classification
The collective-bargaining agreement provides that an
employee with a complaint must initially discuss and try
to settle it with his immediate supervisor, in the presence
of the shop committeeman if the employee so desires.
Still according to the language of the agreement, if the
dispute remains unresolved, the employee must (within 3
days of the discussion) "fully set forth his grievance" in
quadruplicate on forms provided for this purpose, give
two copies to the Union, and give two copies to "his im-
mediate supervisor or company representative." Steward
Hoskins testified, in effect, that it was proper for an em-
ployee to give filled-in grievance forms directly to his
committeeperson and to Respondent without consulting
with or processing them through Hoskins. However, the
Union has established a practice of having an employee
who is dissatisfied with his supervisor's disposition of the
employee's complaint submit that complaint (frequently,
if indeed not usually, through his committeeperson) to
Hoskins, who decides what is to be done about it. If he
decides to drop it, it goes no further. 6 If he decides to
pursue it, he discusses it informally with Respondent and
frequently settles it at that point. Ordinarily, no written
grievance forms are given to Respondent until after such
an oral discussion between Hoskins and Respondent has
failed to result in a settlement. The Union has informed
Respondent that grievances would be coming through
Hoskins. Reid Jr. stated on the record, partly as a wit-
ness and partly in his capacity as Respondent's represent-
ative at the hearing, that the foremen have been instruct-
ed to sign any grievance form presented to them; but
that because of a "directive" given Respondent by the
Union, Respondent does not process any document as a
grievance unless it was presented through a union ste-
ward. However, Hoskins credibly testified that on a
number of occasions, a request that Hoskins discuss
"grievances" before going to "arbitration" (meaning,
before proceeding beyond the employee's efforts to settle
a complaint with his immediate supervisor) has proceed-
ed from Respondent. At the September 1981 hearing
before me, Hoskins credibly testified that the only
"grievances" received by Respondent in the preceding
year had been filed by Coats, and all other "disputes"
had been settled at the "shop level." Hoskins also credi-
bly testified that he knew of no grievances which had
been filed during the preceding year in a shop which oc-
cupies the same building as the machine shop and is af-
filiated with Respondent.
Committeeperson Jolly related to Coats the discussion
between Jolly, Hoskins, and Reid Jr. on April 13, 1981,
regarding the classification and pay of lathe operators
and machinists. On the following day, April 14, Coats
filled in a "grievance report" form, which was signed by
him and by Jolly. Coats gave at least one copy, and
probably all four copies, to Foreman Crnko, who signed
it. The document alleged:
Jolly, a committeeperson for at least 18 months, testified that Hoskins
could deny grievances, although she could not.
I have five years machine shop experience in-
cluding an 18 month training program and for 1-1/2
years have been doing the same work (as ordered
by supervisor) and at least the same quality work
and at least as much work as the machinists in our
department . . . for lathe operators pay (see job
classification sheet for machinists and lathe opera-
tors). This is in direct violation of a written and
signed agreement. I will waive back pay if the
above problem is adjusted soon.
P.S. Assumed all of Kenneth Vessel's (Machinist)
jobs when he quit.
On a date not shown in the record, the following
entry was made on at least one copy of the document,
over Hoskins' at least purported signature and in the
blank calling for "Disposition by Foreman, Plant Super-
intendent, Shop Committee and District Representative."
"Grievance Denied. Reason. Based on Grievance Denied
Before." The statements and testimony of Reid Jr. indi-
cate that Respondent chose to regard this document as a
procedural nullity because it was never submitted to Re-
spondent through Hoskins.
3. Coats' May 1981 grievances
On May 5, 1981, Coats filled out a grievance form al-
leging that during the week ending May 2, 1981, he had
performed certain suction head work with a .003 toler-
ance, that such work was within the machinist's job clas-
sification, and that he had set up the job, and that he
should be drawing machinist's pay. Hoskins' at least pur-
ported signature appears in the space calling for the sig-
nature of "Committee." Crnko's at least purported signa-
ture appears on this document after the printed entry
"Date Received by." On May 20, 1981, Coats filled out a
grievance form complaining of a May 18 written warn-
ing which he had received, allegedly for talking to an-
other employee. This form alleged that the real reason
for the warning was Coats' prior grievance activity, but
the complaint does not so allege. Coats gave all four
copies to Foreman Crnko, who told him to fetch com-
mitteeperson Jolly. Coats did so, and then returned to his
job.
4. Allegedly unlawful statements by Crnko
Across the street from the machine shop is the found-
ry, where the work is hot, dusty, and more dangerous
than in the machine shop. Jolly testified to the following
effect: Crnko said that he did not feel she should sign the
grievance, that it was "ridiculous." She said that by sign-
ing it she had shown that she had read it, and that Coats
had felt he had received a warning because of grievances
he had filed. Crnko said that if Coats continued to file
the grievances, he was going to end up with his "bud-
dies" across the street. Crnko asked her to fetch Coats.
Jolly's signature appears on the May 20 grievance, and
Coats corroborated her testimony that, after he left her
in Crnko's office, Coats was called back in to discuss the
grievance. For the reasons stated infra, I credit her testi-
mony regarding her private conversation with Crnko.
1056
MIDWEST ALLOYS, INC.
As to these two employees' conversation with Crnko,
Coats and Jolly testified that Crnko said that he wanted
the grievances to stop, Coats asked how Crnko could
stop them, and Crnko said, "we would shut her down,"
meaning the machine shop. For reasons stated infra, I
credit the employees' testimony in this respect.
5. Allegedly unlawful statements by President Reid
Sr.
The evidence fails to show how Coats' May 20 griev-
ance was disposed of. Reid Jr. stated at the hearing, in
his capacity as Respondent's representative, that it was
"denied in a meeting."
On June 2, a conference with respect to Coats' May 5
grievance (and, perhaps, his May 20 grievance) was at-
tended by Coats, the Reids, Hoskins, Jolly, Novak, and a
committeeman whose name does not appear in the
record. During this meeting, Respondent stated on a
couple of occasions that the machine shop was not
making any money, and implied that it was "expend-
able." Respondent proposed that it pay lathe operators
the machinists' rate when they were doing machinists'
work and pay machinists the lathe operators' rate when
they were doing lathe operators' work. Jolly and Coats
rejected this proposal. Reid Sr. credibly testified without
contradiction that during this meeting there was a dis-
pute between Coats on the one hand, and Novak and the
Reids on the other, about the meaning of a contract
clause, with Coats stating that Novak and the Reids did
not know what they were talking about. There is no
direct evidence as to which clause this was, but I infer
that it was the provision, "An employee temporarily
transferred to a higher labor grade during the course of a
normal day shall be paid at the higher labor grade for
the entire day provided he spends at least 2 hours work-
ing in the higher labor grade. An employee temporarily
transferred to a lower labor grade during the course of a
normal day shall not have his rate reduced. Employees
who are regularly employed at two (2) or more labor
grades during their workday shall be paid at the rate ac-
tually spent in each labor grade or shall be paid a com-
posite rate." 7 During this meeting, Respondent stated
that there was no machinist work in the shop, only lathe
operator work, because Respondent's machines were too
old to hold the tolerances for machinist work. Jolly and
Coats denied this assertion, and Coats referred to the
.003 tolerance on the suction heads mentioned in the
May 5 grievance. The Reids laughed at this, and Reid Jr.
said there was nothing to that job. When Jolly disputed
this, Reid Sr. said that if she felt that strongly about the
machinists, doing machinist work, Respondent would
give to one of its own machinists the next job it would
normally have contracted out, and would fire him if he
ruined it. Jolly said that she did not want to jeopardize
anyone's job. Coats said that he could not be fired for
unintentionally ruining something. Reid Sr. said that
Coats could be fired if he ruined a $1,000 casting.
7 This inference is based partly on the nature of Coats' grievance, and
partly on Novak's testimony that this clause had not been mentioned in
connection with the prior disputes about lathe operators' doing machin-
ists' work and was brought up in September 1981 intraunion discussions
regarding Coats' May 5 gnevance
At this point, the meeting broke into groups. Novak
proposed to Reid Jr. that all the employees in the ma-
chine shop be classified as machinists. Reid Jr. rejected
this proposal. Jolly proposed that the lathe operators all
be classified as apprentice machinists; this meant that
they would initially be paid at labor grade 12 (as com-
pared to their existing, lower-paid labor grade of 7) and
be increased to labor grade 18, the machinists' labor
grade, in 3 years. 8 Reid Jr. rejected this proposal also.
Novak asked Respondent to define the difference be-
tween lathe operator work and machinist work. Inferen-
tially, Respondent said that it would. Jolly asked wheth-
er the grievance would be considered as still pending if
Respondent gave the Union an unsatisfactory definition
of the difference between the two jobs. Reid Jr. said that
if nobody was then signing it at that particular time, the
grievance would still be open.
Meanwhile, Coats and Reid Jr. had continued their ar-
gument, during which both became angry, about what
the contract meant. As the entire meeting was breaking
up, Reid Sr. called Jolly back. According to her testimo-
ny, he said that before a grievance was filed with Re-
spondent it should be presented to steward Hoskins; and
further asked her to discuss Coats' "attitude with him be-
cause he was making it hard on himself." Novak testified
for Respondent that Reid Sr. asked Jolly to talk to Coats
about his "attitude," and said that Coats "was a good
worker. The Company wanted to keep him, but his atti-
tude-they were a little leery about his getting into trou-
ble. He was fighting the Company constantly." Hoskins
testified for Respondent that Reid Sr. told Jolly that "she
should talk to [Coats] about his attitude, that [Reid Sr.]
was afraid that as hostile as [Coats] was, that he might
go and do something irrational to get himself fired . . .
at least try to calm him down so he wouldn't do any-
thing irrational." Reid Sr. testified that he called Reid
Jr., Novak, and Jolly together and said, "Let's stop this
fighting. [Coats is] worked up. He's overwrought. I think
somebody ought to quiet him down." Still according to
Reid Sr., he asked Jolly to go talk to Coats "to try to
quiet him down so there wouldn't be this uproar, but I
never made a threat . . . I asked [Jolly] to go and talk to
Hoskins so she would get the background of the machine
shop for the last 5 years so she would understand the
past history, what has been going on, so if any griev-
ances came up and they were frivolous grievances,
before she accepted them, I told her to go talk to Mr.
Hoskins." Reid Sr. testified that he told Jolly about re-
ceiving a report from Foreman Crnko that Coats had
said he was going to file a grievance once a week,9 but
I In the past, Respondent had on occasion promoted lathe operators to
machinists
My finding that this apprentice proposal was made is based on Jolly's
and Hoskins' testimony To the extent inconsistent with their testimony, I
do not accept Reid Jr.'s testimony that "anything short of full machinist
class for everybody [was] unacceptable" to the Union. Hoskins testified
that he did not think the lathe operators would accept anything less than
Jolly's apprentice proposal
9 Crnko did not corroborate Reid Sr.'s testimony that Crnko made this
report, and Reid Sr.'s testimony is the only evidence that Coats ever
made such a statement.
1057
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Reid Sr. testified to the belief that the Coats grievance
which had just been discussed at the meeting was not
frivolous. Reid Jr. who according to his father and
Novak was present during at least part of this conversa-
tion, did not testify about it. For reasons stated infra, I
accept Jolly's version.
6. Allegedly unlawful statements by secretary-
treasurer Reid Jr.
Two days later, on June 4, Jolly went to Reid Jr.'s
office to discuss "problems within the Company."
During this discussion, Reid Jr. said that the reason he
had personally laid off Coats rather than having Crnko
do it was that Crnko "would blow it . . . [Crnko] would
have told [Coats] that he was laid off due to his griev-
ances." Jolly asked how Coats was doing. Reid Jr. said
that the foreman of the foundry night shift, to which
Coats had recently been transferred, had said "he was
doing a great job. He wished he had other people like
him."
Jolly testified that Reid Jr. went on to say that "he felt
with [Coats'] attitude he wasn't going to last too long."
Reid Jr. testified that he said "that I sensed in meetings
at the time when I talked to [Coats], the time when we
had to give him a layoff, and subsequent to that at a later
time during the grievance meetings that I was in with
her that I was concerned that [Coats] had displayed a
very hostile attitude. He was very embittered by this
issue that he was very worked up in . . . I asked her if
she would talk to him and try to get him to calm down
so that we could deal with these matters calmly." Reid
Jr. testified that he had never noticed an attitude prob-
lem in Coats, who had been working for Respondent
since about March 1979, until the problem with the lathe
operators and the machinists came up, and that Reid Jr.
had never heard any complaints about Coats' "overall
work." Wilma Trower, who performs sales work for Re-
spondent, testified that as Jolly and Reid Jr. were leaving
his office following a June 4 meeting between them in
his office with the door open, Trower overheard him
calmly ask Jolly, while they were in the main reception
area, "to please talk to John [Coats] to try to calm him
down in his outlook, his attitude, before he became so
wrought that he might do something that might hurt
himself." Jolly denied that any part of her June 4 con-
versation with Reid Jr. occurred in the main reception
area. Reid Jr. testified that on that date, Jolly and he
"did sit down and talk." He did not testify about wheth-
er he said anything to her that day in the main reception
area. For reasons stated infra, I accept the testimony of
Jolly summarized in this paragraph.
7. Status of Coats' May 5 grievance
Novak testified that except for Coats' May 5, 1981,
grievance there were no significant differences between
any of the grievances filed over the years regarding the
machinist/lathe operator issue. He also testified that on
an unspecified date or dates, at least sometimes with Re-
spondent's encouragement, he had told Coats and Jolly
that such prior decisions were final and binding, but that
these employees had never been willing to accept them.
Novak further testified that Coats' May 5, 1981, griev-
ance was "entirely different from" the other
machinist/lathe operator grievances because it had
brought into play the contract provision regarding tem-
porary and part-time transfers to a higher labor grade
and "by me not knowing the difference between the two
jobs how could I ever make a decision without evaluat-
ing or putting in a form"; as previously noted, during the
June 2 discussion of this grievance, Novak had disagreed
with Coats' interpretation of this clause and agreed with
the Reids' interpretation.
On an undisclosed date, Respondent complied with its
undertaking, during this conference, to submit a proposal
defining the relationship between machinists' and lathe
operators' work. The machine shop rejected this propos-
al. On August 24, 1981, Novak met with the Union's re-
gional director regarding Coats' May 5 grievance. Novak
testified before me at the September 8, 1981, hearing that
he and the union regional director were trying to set up
a meeting between the International and MIRA regard-
ing that grievance. '0
D. Analysis and Conclusions
1. Reasons for credibility findings
The General Counsel's case depends to a substantial
extent on the largely disputed testimony of Janet Jolly.
Respondent's brief concedes that all of the meetings with
management about which she testified did in fact take
place. However, Respondent contends that much of her
testimony as to what management said during these
meetings should be discredited because, inter alia, state-
ments significantly different from her testimony were
made by her during an interview conducted by company
secretary-treasurer Reid Jr. (who represented Respond-
ent at the hearing) in preparation for the hearing."
During this interview with Reid Jr., Jolly made state-
ments inconsistent with her hearing testimony regarding
Foreman Crnko's remarks; more specifically, she replied
"No" when asked whether Crnko ever threatened to
transfer anyone to another department because a griev-
ance was filed, and when asked whether it was ever
threatened to her that the machine shop would be closed
because grievances were filed. Also, during this inter-
view she made statements at least arguably inconsistent
(and believed by her to be inconsistent) with much of
her hearing testimony regarding the Reids; more specifi-
'o Novak testified that "up until this moment," Respondent had been
unaware of this activity.
ii Before asking Jolly questions about her conversations with company
representatives, Reid Jr. told her that the interview was being conducted
to prepare for the hearing of the case, that the interview was voluntary,
that employees would not be penalized or promoted because they agreed
to answer any questions, and that she might feel free not to answer any
questions and to return to her job. Further, she answered "No" when
Reid Jr. asked her whether she had any fear of "reprisal" by Respondent
if she answered or did not answer any questions (although she testified
before me that she was unsure what the word "reprisal" means), and an-
swered "Yes" when he asked her whether she was willing to answer
questions and understood it was strictly voluntary. Reid Jr. also advised
her that the interview was being tape recorded. The interview was con-
ducted in the presence of steward Hoskins. Of other employees also in-
terviewed by Reid Jr. in preparation for hearing, one declined to have
anything taped, and his interview was not taped.
1058
MIDWEST Al LOYS. INC.
cally, she said "No" when Reid Jr. asked her if anyone
had ever asked her to discourage any employees from
filing grievances, and if Reid Jr. had ever threatened "to
fire any employee because they filed grievances."
I credit Jolly's hearing testimony under oath notwith-
standing her inconsistent unsworn statements when being
interviewed by Reid Jr. Jolly's testimony at the Septem-
ber 8 hearing was consistent with her pretrial affidavits,
to which she swore on June 17 and 24 (3 or 4 weeks
after Coats filed his charge), a month before the com-
plaint issued, and about 6 weeks before she was inter-
viewed by Reid Jr. Jolly has a daughter to support, and
she testified that she was afraid for her job if she told
Reid Jr. the truth. i2 Further, she testified before me that
"it was perjury if I lied today. It was nothing if I lied on
the tape . . . I don't commit perjury. I've got one
daughter."
Moreover, Jolly's testimony is partly corroborated by
the testimony of other witnesses, including witnesses
called by Respondent, and by testimony which stands
uncontradicted. Thus, Jolly's testimony regarding her
and Coats' conversation with Crnko, when he threatened
to shut down the machine shop if the grievances contin-
ued, is directly corroborated by Coats; and these em-
ployees' testimony about this conversation, and her testi-
mony about her private conversation with Crnko when
he threatened that Coats would be transferred if he con-
tinued to file grievances, are indirectly corroborated by
the undisputed testimony that Reid Jr. later told her that
Crnko would have told Coats he was being laid off be-
cause of his grievance. Reid Sr. corroborated her testi-
mony that on June 2 he told her to present grievances to
Hoskins before filing them with Respondent. Reid Sr.,
Novak, and Hoskins, all of them called by Respondent,
all corroborated her testimony that during this same con-
versation Reid Sr. asked her to talk to Coats about his
"attitude"; and Novak and Hoskins (like Jolly) both testi-
fied, in effect, that Reid Sr. also questioned whether
Coats would continue to work for Respondent (although
Novak, Hoskins, and Jolly each gave a different version
of what Reid Sr. said). Further, Reid Jr. did not testify
about this June 2 conversation (although his father and
Novak testified that Reid Jr. was present during at least
part of it, and Reid Jr.'s post-hearing brief states that
Reid Jr. was present), and did not corroborate sales em-
ployee Trower's testimony (contradicted by Jolly) that
part of the June 4 conversation between Jolly and Reid
Jr. took place in the reception area. 13 Also, although
12 She testified without contradiction that, during her June 4 meeting
with Reid Jr., he told her that the reason he and not Anthony Crnko had
laid off John Coats was that "Tony would blow it . . . Tony would have
told John that he was laid off due to his grievances." (Coats' charge al-
leged that about May 26, he had been laid off because he filed a griev-
ance: but the complaint does not so allege.) She also testified without
contradiction that in the course of her pretrial examination by Reid Jr., in
late July, he told union steward Hoskins that if Reid Jr really wanted to
get rid of someone, he could.
'3 I note, moreover, that portions of Trower's testimony about what
Reid Jr allegedly told Jolly in the reception area ("try to calm [Coats]
down in his outlook, his attitude, before he became so wrought that he
might do something that would hurt himself') bear some resemblance to
Jolly's testimony about what Reid Jr. said to her in the office ("he felt
with [Coats'] attitude he wasn't going to last too long"). Further, the
contents of Reid's alleged reception-area remarks as testified to by
Foreman Crnko denied ever telling anyone that the ma-
chine shop would close or that he would be transferred
to the foundry if he did not stop writing grievances,
Crnko was not asked to describe what was said during
the meetings when he allegedly made these remarks (or
even whether such meetings took place, although Re-
spondent's brief concedes that they did). Nor is Crnko's
truthfulness as a witness established by the fact that he
would lose his own job as machine shop foreman if the
machine shop shut down. The shutdown threats which
the employee witnesses attributed to him are perfectly
consistent with his having been bluffing, or with a desire
to keep his own job by forestalling the shutdown of the
machine shop.
Moreover, the demeanor of Jolly and Coats impressed
me favorably; and Jolly has never had anything to gain
financially by giving her sworn statements and testimony
against her employer. l 4 After observing them on the
stand, I do not accept Respondent's contention that they
testified untruthfully because they resented Respondent's
refusal to give them machinist's pay rather than the lathe
operator's pay they were then receiving.
2. Whether the statements found to have been made
violated the Act
I agree with the General Counsel that Respondent vio-
lated Section 8(a)(1) of the Act when Crnko, admittedly
a supervisor, told employee Jolly that if Coats continued
to file grievances, he was going to be transferred to the
foundry (where the work is hot, dusty, and dangerous)
from the machine shop; and told employees Jolly and
Coats that if the grievances did not stop, "we would shut
down the machine shop. Although Crnko has no power
to transfer employees or to decide whether or not to
close down the machine shop, he has been Respondent's
machine shop foreman for 29 years, reports only to the
Reids (who are seldom in the machine shop), hired Coats
and Jolly, gives them their work assignments, issues any
reprimands they would receive, and would be the indi-
vidual who would recommend them for promotions or
wage increases. Accordingly, employees would reason-
ably believe that in making such threats, Crnko was re-
flecting the thinking of the Reids. ' Nor were Crnko's
threats rendered lawful by Coats' active prosecution of
his May 5 grievance during the June 2 conference, fol-
lowing which Crnko's superiors again threatened repri-
sals for Coats' grievance activity. Russell Stover Candies
v. N.L.R.B., 551 F.2d 204, 207-208 (8th Cir. 1977); J. P.
Stevens & Co., Inc., 244 NLRB 407, 408, fn. 8 (1979).
Trower are in no way inconsistent with the contents of his remarks in his
own office as testified to by Jolly,
" As to Coats, this was true at the hearing but not while his charge
was being investigated Respondent's brief states that his charge sought
one day's pay.
I1 Thus, Jolly testified during her examination by Reid Jr that al-
though she knew Crnko did not have the power to shut down the depart-
ment and was unsure whether he had the power to transfer employees.
she knew that he had access to the Reids, and that she took Crnko's
statements seriously because "it wasn't like 'I will do it ' The impact tha,
I took out of it was that 'We'll or 'They'll do it,' which meant it would
include you three"
1059
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Also, I agree with the General Counsel that Respond-
ent further violated Section 8(a)(l) when, on June 4, sec-
retary-treasurer Reid Jr., during a discussion of the
machinist/lathe operator problem partly involved in
Coats' grievance, told employee Jolly that although
Coats was a good worker, Reid "felt with [Coats'] atti-
tude he wasn't going to last too long." Particularly in
view of Reid Jr.'s testimony that Coats had always been
a good worker and had never had an "attitude problem"
until the machinist/lathe operator problem came up, I
find that Reid Jr. was thereby threatening that Coats
would be discharged if he continued to file and press
grievances regarding that problem, at least.
Further, I agree with the General Counsel that Re-
spondent violated Section 8(a)(1) when, following a dis-
putatious and inconclusive company-union grievance
conference during which grievant Coats and President
Reid had an angry argument about the meaning of a con-
tract clause that Coats (and thereafter the Union) heavily
relied on, President Reid asked Jolly to discuss Coats'
"attitude with him because he was making it hard on
himself." I conclude that Reid was thereby threatening
to effect reprisals against Coats if he continued to file
and press grievances. See Ryder Truck Lines, Inc., 239
NLRB 1009 (1978).16 Finally, I agree with the General
Counsel that in the circumstances of this case, Respond-
ent further violated Section 8(a)(l) when President Reid
asked Jolly to present grievances to steward Hoskins
before filing them with Respondent. The bargaining
agreement on its face called for an employee to give
filled-out grievance forms directly to Respondent, and
permitted him to give the remaining copies to a union
committeeperson rather than to the steward, after oral
discussion with the employee's immediate supervisor had
failed to resolve the dispute. Moreover, steward Hoskins
testified that an employee's use of such procedures was
not a violation of a union directive, but was simply dif-
ferent from past practice.1 7 Accordingly, union commit-
teeperson Jolly had a statutory right to file grievances
with Respondent without first presenting them to Hos-
kins. Pacific Coast Utilities Service, 238 NLRB 599, 606-
607 (1978), enfd. 638 F.2d 73 (9th Cir. 1980). Further-
more, I infer that President Reid's statement to Jolly
about Hoskins was motivated by the same desire to pre-
serve the existing machinist/lathe operator situation
against attack through the grievance procedure as was
Respondent's unlawful conduct in threatening reprisals
against Coats if he continued thus to attack that situation.
In so inferring, I rely particularly on Hoskins' action in
dropping Coats' April 1981 grievance on the ground that
an allegedly like grievance had been denied in June 1980;
'6 Cf. Joseph T Ryerson & Sons. Inc., 199 NLRB 461 (1972) (members
Fanning and Howard Jenkins, Jr., dissenting), cited by Respondent,
where the employer's remarks were made during a general discussion of
frivolous grievances which was not related to any particular grievances,
and the employer had already responded favorably to one of the two
grievances which had previously been talked about Reid Sr. testified that
he did not regard as frivolous the Coats grievance which had been dis-
cussed at the June 2 meeting.
i" Accordingly, I need not and do not consider the respective rights of
employee grievants, employees who are union representatives, and em-
ployers where such employees are acting consistently with a written con-
tractual grevance procedure and union officials (with employer acquies-
cence) have purported to require them to act otherwise.
on the fact that complaints which employees submitted
to Hoskins alone were very seldom submitted to Re-
spondent in the written form which was contractually re-
quired for Hoskins' union superiors to assume a role in
grievance processing; and on the fact that during the
conference which immediately preceded Reid Sr.'s re-
marks, business representative Novak (Hoskins' superior
in the union hierarchy) had evinced an intention to fur-
ther pursue Coats' May 1981 written grievance regarding
the machinist/lathe operator situation. Accordingly, Reid
Sr.'s statement to Jolly constituted an effort to enlist her
aid in Respondent's efforts to coerce Coats into halting
his grievance activity and, therefore, constituted a fur-
ther violation of Section 8(a)(1). See Lyman Steel Co.,
249 NLRB 296, 299-300 (1980).
CONCLUSIONS O1 LAW
1. Respondent is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. Respondent has violated Section 8(a)(l) of the Act
by threatening to effect reprisals against employee Coats
if he continued to file grievances, and by attempting to
enlist the aid of another employee in Respondent's ef-
forts to coerce Coats.
4. Such unfair labor practices affect commerce within
the meaning of Section 2(6) and (7) of the Act.
THE RF.MiI)Y
Having found that Respondent has engaged in certain
unfair labor practices, I shall recommend that it be re-
quired to cease and desist therefrom, and from like or re-
lated conduct, and to post appropriate notices.
Upon the foregoing findings of fact and conclusions of
law, and the entire record, and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended:
ORDERt 8
The Respondent, Midwest Alloys, Inc., its officers,
agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Threatening employees with transfer, departmental
shutdown, discharge, or other reprisals for filing griev-
ances through their collective-bargaining representative.
(b) Seeking to enlist the aid of other employees in an
effort by Respondent to coerce employees into refraining
from filing grievances.
(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them under Section 7 of the Act.
2. Take the following affirmative action designed to ef-
fectuate the policies of the Act:
is 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.
1060
MIDWEST ALLOYS, INC.
(a) Post at its O'Fallon, Missouri, facility copies of the
attached notice marked "Appendix.."' 9 Copies of said
notice, on forms provided by the Regional Director for
Region 14, after being duly signed by Respondent, shall
be posted by it immediately upon receipt thereof and be
maintained by it for 60 consecutive days thereafter, in
conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall
be taken by Respondent to ensure that said notices are
not altered, defaced, or covered by any other material.
(b) Notify the Regional Director for Region 14, in
writing, within 20 days from the date of this Order, what
steps have been taken to comply herewith.
19 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 Pursil-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Lahor Relations Board"
APPENDIX
NoTICE To EMPLOYEES
POSTFDi BY ORI)DR OF THE
NATIONAI LABOR REI.ATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportunity to
present their evidence and state their positions, it has
been decided that we violated the law in certain ways.
We have been ordered to post this notice.
WiF WIl.l NOT threaten you with transfer, depart-
mental shutdown, discharge, or other reprisals for
filing grievances through the union which repre-
sents you.
WE Wlll. NOT try to enlist your aid in trying to
coerce other employees into refraining from filing
grievances.
WE WILL NOT in any like or related manner in-
terfere with, restrain, or coerce you in the exercise
of your rights under the Act.
MIIDWESi AlL toYS, INC.
1061