Magma Copper Co.

National Labor Relations Board - Board Decisions

Apr 23, 1970

182 N.L.R.B. 101 (N.L.R.B. 1970)

MAGMA COPPER COMPANY
Magma Copper Company and Milton C Overpeck, Jr
Case 28-CA-1905
April 23, 1970
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS BROWN AND
JENKINS
On December 31, 1969, Trial Examiner James R
Hemingway issued his Decision in the above-entitled
proceeding, finding that the Respondent had engaged
in and was engaging in certain unfair labor practices
within the meaning of the National Labor Relations
Act, as amended, and recommending that it cease and
desist therefrom and take certain affirmative action,
as set forth in the attached Trial Examiner's Decision
Thereafter, the Respondent filed exceptions to the Trial
Examiner's Decision and a supporting brief
Pursuant to the provisions of Section 3(b) of the
Act, the National Labor Relations Board has delegated
its powers in connection with this case to a three-
member panel
The Board has reviewed the rulings of the Trial Exam-
iner made at the hearing and finds that no prejudicial
error was committed The rulings are hereby affirmed
The Board has considered the Trial Examiner's Decision
and the entire record in this case, including the excep-
tions and brief, and hereby adopts the findings, conclu-
sions, and recommendations of the Trial Examiner
ORDER
Pursuant to Section 10(c) of the National Labor Rela-
tions Act, as amended, the National Labor Relations
Board hereby adopts as its Order the Recommended
Order of the Trial Examiner, and orders that the
Respondent, Magma Copper Company, San Manuel,
Arizona, its officers, agents, successors, and assigns,
shall take the action set forth in the Trial Examiner's
Recommended Order
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
JAMES R HEMINGWAY , Trial Examiner Upon a
charge filed on June 17, 1969, by Milton C Overpeck,
Jr , a complaint issued on July 22 , 1969, alleging that
on about January 23, 1969, Respondent laid off Milton
C Overpeck, Jr , for a period of 5 days to commence
on January 24, 1969, because he was a member of
the International Association of Machinists and
Aerospace Workers, AFL-CIO, Lodge No 2181, and
had engaged in union activity or concerted activities
for the purpose of collective bargaining or mutual aid
or protection The Respondent ' s answer filed on July
31, 1969 , admitted the 5-day layoff of Overpeck but
denied the alleged unfair labor practices
101
Pursuant to notice, a hearing was held in Tucson,
Arizona, on September 30 and October 1, 1969, before
me The General Counsel and Respondent were repre
sented by counsel, and full opportunity was given to
examine and cross-examine witnesses and to introduce
evidence bearing on the issues At the close of the
hearing, the parties waived oral argument but requested
time in which to file briefs Such time was granted
and briefs have been received from both parties
From my observation of the witnesses and upon the
entire record in the case, I make the following
FINDINGS OF FACT
I THE BUSINESS OF THE RESPONDENT
The Respondent has, since May 6, 1969, been a
corporation organized under, and existing by virtue of,
the laws of the State of Delaware Prior to said date,
Respondent had been a corporation organized under,
and existing by virtue of, the laws of the State of
Maine At all times material hereto, Respondent has
maintained a place of business at San Manuel, Arizona,
where it is engaged in the business of operating a copper
mine and smelter
During the 12-month period immediately preceding
the issuance of the complaint, the Respondent, in the
course and conduct of its business operations, mined,
sold, and distributed at said place of business, products
valued in excess of $50,000, of which, products valued
in excess of $50,000 were shipped from said place of
business directly to States of the United States other
than the State of Arizona During the same period,
the Respondent purchased and received equipment, sup-
plies, and other goods and materials directly from outside
the State of Arizona, valued in excess of $50,000
Respondent admits that it is an employer engaged in
commerce within the meaning of Section 2(6) and (7)
of the Act
II THE LABOR ORGANIZATION
International Association of Machinists and Aerospace
Workers, AFL-CIO, Lodge No 2181, herein called
the Union, is a labor organization within the meaning
of Section 2(5) of the Act
III THE UNFAIR LABOR PRACTICES
A Discrimination, Interference, Restraint, and Coercion
I Grievance procedure under Respondent-Union
agreement
In the collective-bargaining agreement current between
the Respondent and the Union at the time of the alleged
unfair labor practice, the procedure for presentation
of grievances is described as proceeding in three steps,
the first being an oral presentation to the grievant's
immediate supervisor within 5 days The second step,
if the grievance is not adjusted in the first step, is
182 NLRB No 20
102 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
by written presentation to the division head (in this
case the superintendent) within 48 hours after the verbal
presentation The third step, if the grievance is not
earlier settled, is referred by the grievance man (an
employee designated by the Union for each of the
several divisions and departments to handle grievances
and to police the contract) to the Union's grievance
committee to determine if the grievance should be
appealed to the Respondent's general manager That
committee has 10 days in which to refer the grievance
in writing to the general manager There is also a provi-
sion in the agreement covering arbitration
In the first step of the grievance, the grievance man,
himself, orally presents the grievance to the immediate
supervisor of the employee involved In the second
step, the written grievance is signed by both the individ-
ual grieving and by the grievance man If the grievance
involves a matter affecting all, or a large number of,
the employees in the group, the grievance man may
sign the written grievance by himself
General manager's hearings (the third step in a griev-
ance proceeding) are always held at 4 p in in the adminis-
tration building When the date is set for the hearing
before the general manager, the personnel department
notifies the Union in writing of the date that the hearing
on the specified grievance will be held Then the chairman
of the Union's grievance committee calls the personnel
office either the day before or early on the morning
of the date set for the hearing and gives it a list of
the people the Union expects to attend the meeting
This list includes the grievance man who originally pre-
sented the grievance and the grievant, himself The
personnel department then notifies the time office and
the department where any man who is expected to
attend the meeting works, that he is scheduled to attend
the general manager ' s meeting This is usually done
by a telephone call, followed by a written memorandum
The Union notifies the grievant and the grievance man
of the date of the general manager 's meeting The
Respondent, itself, assumes no responsibility for notify-
ing the grievance man or grievant
2 The rules of Respondent
The Respondent's rules of long standing (published
in a booklet) include a list of types of misconduct
justifying discipline or discharge In this list, is the
following
4 Habitual absence from duty with or without
notice and permission, or unauthorized absence
from assigned working place while on duty, habit-
ual tardiness [Emphasis supplied ]
The emphasized portion is the basis for the Respondent's
defense in this case
3 Overpeck' s employment history
Milton Overpeck, a repairman in the smelter repair
department at the Respondent's San Manuel operations
for 11V22 years, works on the repair of all machinery,
conveyor belt, fans, and converters in the smelter area
He is a member of the Union of long standing and,
at the time of the events herein concerned, he was
a grievance man and had been for between 4 and 5
years He represented about eight repairmen
Prior to the strike in the copper industry, which
began in July 1967 and ended in March 1968, Overpeck's
immediate foreman had been John Staggs At that time,
the repair department did not come under the supervision
of the smelter superintendent, but following the end
of the strike, the smelter repair department was placed
under the supervision of John Cullom, the smelter super-
intendent, and Staggs was replaced by Bacel Richardson
as foreman of the smelter repair department on August
1, 1968
Overpeck testified that since the end of the strike
the men had become increasingly dissatisfied with the
collective-bargaining agreement and with the conditions
that resulted from the changes in management It is
apparent that during that period Overpeck, himself, had
chafed under his new supervision Since the end of
the strike, Overpeck had filed a large number of griev-
ances,' (much larger than any other grievance man and
more than he, himself, had filed before the strike) and
many of these were on behalf of himself
The great number of written grievances (second step)
which were filed with Superintendent Cullom was obvi-
ously a source of annoyance to the latter, who referred
to them as an "outrageous number " The record does
not disclose the dates or the disposition of all the griev-
ances filed by Overpeck I assume that the Union's
grievance committee thought there was merit in those
that went to the third step, or they would not have
carried them there, but what happened once they were
considered at the general manager level is not shown
except as to a few which were adverse to the Union
I can only infer that most, if not all, of Overpeck's
personal grievances were decided adversely From bits
of testimony here and there, one may infer that Overpeck
felt that there was a disparity between the treatment
given in the cases of similar grievances by other depart-
ments and by his own, especially with respect to his
personal grievances
In December 1968, Overpeck filed a charge with the
Board containing nine specifications of alleged discrimi-
nation 2 This charge was dismissed by the Regional
Director The dismissal of that charge is not taken
to mean that Overpeck had nothing to complain of,
but only that the Regional Director found that the action
complained of did not constitute an unfair labor practice
Superintendent Cullom testified that since Overpeck
had come under his supervision, Overpeck had never
accepted supervisory authority During 1968, according
' Overpeck testified that in the 5 years that he had been a grievance
man he had filed about 100 grievances of which about 50 or 60
had been filed since the end of the strike And he had attended about
25 general managers meetings The Respondent adduced testimony
that since the end of the strike Overpeck had filed 63 written grievances
s The contents of this charge are shown only in Respondent s Opening
Statement a document filed with the Trial Examiner in lieu of an
oral opening statement
MAGMA COPPER COMPANY' 103
to Cullom, he had given Overpeck an - oral warning
for "loafing in my office, ostensibly to process a griev-
ance when he had been sent to another part of the
plant to work,"3 and was in the superintendent's office
without his foreman's knowledge.
Foreman Richardson once reported to Superintendent
Cullom that men in his crew were using wheelbarrows
for work platforms and that he had cautioned them
against this. Why Richardson did not exercise his authori-
ty to correct the matter does not appear. Cullom person-
ally went and checked on this and found Overpeck
standing in a wheelbarrow using an acetylene torch.
For violation of safety rules, Cullom gave Overpeck
a warning. There is no evidence as to what was done
with the other employee or employees who were doing
the same thing. This gave rise to one of Overpeck's
grievances which went to a general manager's meeting,
Overpeck maintaining that use of a wheelbarrow was
a safe practice and that the Respondent had no right
to prevent it. On another occasion, Cullom gave Over-
peck a written warning for violation of a safety rule
requiring " tagging a machine out," meaning putting
a tag on an electrical circuit breaker so that the machine
would not be inadvertently started by someone else
while repairmen were working on it. This, again, went
to a third stage grievance, Overpeck maintaining that
it was not necessary to tag the machine out on that
occasion.4 Cullom also was critical of Overpeck for
taking too long on two jobs, one, wrapping asbestos
cloth around an opening , 5i hours on one side without
supervision but only a half hour on the other side
with supervision, and the second, a lubrication of the
soot blowers. According to Cullom Overpeck, "had
to be chased out of the lunch room" (he did not testify
by whom) at one time when he was there drinking
coffee,5 and then spent 8 hours on the job, which,
Cullom testified, "only takes" 3 to 4 hours. For this,
Cullom, in the latter part of 1968,8 gave Overpeck a
5-day layoff .7 A grievance concerning that layoff went
to a third step grievance, which was decided adversely
to Overpeck.8 Following the general manager 's meeting
on this grievance, while union representatives were
speaking with General Manager Wise, the latter remarked
that Overpeck would have to go, but that, when he
3 Overpeck did, in fact, file a grievance at that time, but, according
to Cullom, "that wasn't the necessary way to do it " In the prior
charge filed by Overpeck in December 1968, as stated in the Respondent's
Opening Statement, one of the complaints listed was that Cullom "has
harassed Overpeck by making him come to the smelter office every
time he wants a grievance form "
' Overpeck's failure to tag out one of three machines in a series
on another occasion was excused by Cullom as an oversight.
S There is no evidence concerning any scheduled coffeebreaks or
any custom in regard thereto.
6 Dates were not accurately fixed The date given in Respondent's
opening statement for this incident was October 11, 1968. Cullom merely
fixed it in 1968.
' Overpeck was not asked for his side of these incidents I am
uncertain as to whether Overpeck's grievances concerned the right
to continue his practices or over the fact that he was penalized for
engaging in them when others might not have been, or because he
felt that the penalty was excessive.
9 The matter was later taken to arbitration by the Union The decision,
which did not come down until September, 1969, was against Overpeck
did, Wise wished to make sure that it was done right
and proper. Pursuant to leading questions by Respond-
ent's counsel, Wise testified that he thought Overpeck
was a mutual problem to the Respondent and to the
Union. When Asked by the Trial Examiner about the
sense in which he used the word "go," Wise testified
that he meant that Overpeck would eventually have
to be terminated. In explaining the context in which
he had used that word, Wise testified that "when there
is one individual so terribly unhappy that he has to
be bringing up grievance after grievance after grievance,
there's something basically wrong and the manager is
seriously concerned with these matters.... Why should
one individual be so out of i step with everybody else
on the job?"
On January 8, 1969, Overpeck had been specified
by the Union's grievance committee as one of those
to attend a general manager' s meeting of that day.
The personnel department notified Overpeck's foreman,
Richardson, of this but, through an oversight, the Union
did not mention it to Overpeck. Richardson remained
silent , and Overpeck failed to attend the meeting. Over-
peck was upset by the fact that Richardson had said
nothing, and he spoke to Richardson about it. Richardson
merely said that it was not his obligation to notify
Overpeck. While Overpeck was under Staggs , the latter
had frequently told Overpeck that he had been notified
that Overpeck was to attend a general manager ' s meeting
that day. Apparently, Overpeck regarded Richardson's
silence as discourtesy.
3. The layoff of Overpeck
On January 22, 1969, Overpeck was scheduled to
attend a general manager's meeting at 4 p.m. The person-
nel department sent a memorandum that day to the
timekeeper and to Superintendent Cullom, among others,
stating that Overpeck (along with two other employees)
was cleared to attend that meeting. Personnel Manager
David Ridinger testified that it was the practice of his
department to telephone the department of the excused
employee to notify the latter department that the employ-
ee was cleared for the general manager's meeting and
that it was the practice for the immediate supervisor
of the employee to be notified. According to custom
in such a case, at the time for him to leave for the
meeting, the grievance man picks up his timecard from
his foreman, who, before giving it to the grievance
man, writes on the grievance man's timecard the number
of hours he has put in on various jobs in the department,
writes in 1 hour for the general manager's meeting,
and signs the card. By using an account number on
the timecard for each job, the foreman thus notifies
the bookkeeping department of how to allocate the
costs.
Since quitting time is 4:30, writing in 1 hour for
the general manager's meeting means that the grievance
man would get paid for half an hour before the meeting
was actually to begin. During that time, Overpeck would
walk a distance of about two blocks to the time office,
hand in his timecard and get a brass check (which
104 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
he would give the timekeeper the next day in order
to get his timecard back),, then walk on to the next
building, which was called the change room, where
he would shower and change clothes; then he would
walk to the employees' parking lot, get his car, drive
a couple of blocks to, the parking lot of the administration
building, and 'walk" from there to the administration
building.
On January 22, Overpeck's foreman, Richardson,
attended a meeting in the office of Superintendent Cullom
which started shortly after lunch and continued for
a good part of the afternoon. Overpeck, himself, had
been assigned that day to work on the conveyors. At
3 p.m. he returned to the smelter repair shop. The
evidence does not reveal whether or not Overpeck had
finished his assignment on the conveyors or whether
he had left before that job was finished. No contention
was made, however, that a.,substitute was needed to
finish any work for Overpeck, and no issue was raised
about Overpeck's return at that time to his work base
in the smelter repair shop. The Respondent's only con-
tention is that Overpeck left the smelter repair shop
early that day without "touching base" with his foreman;
i.e., telling his foreman where he was going.
When Overpeck, upon returning to the smelter repair
shop, found that Foreman Richardson was not in his
office, he telephoned the time office and asked whether
or not he had been cleared for' the general manager's
meeting . As previously stated, the personnel department
always notified the timekeeper when a grievance man
was excused to leave early to attend a general manager's
meeting. The timekeeper informed Overpeck that he
had been cleared. Overpeck testified that, in addition
to calling the timekeeper, he had also called several
other departments where he thought Richardson might
be, but that Richardson was not 'there. He did not,
however, call any of Richardson's supervisors.
Overpeck testified that it had been his practice of
long standing to get his card from the foreman at 3:20
or 3:25 p.m. and leave for the meeting. This was appar-
ently true when he was under Staggs, but he had not
previously left early while under Richardson's supervi-
sion. He testified that occasionally the foreman, if he
was not going to be around at the time the grievance
man was to leave, would sign the timecard in advance
and leave it for the grievance man to pick up. I judge
that Overpeck was again testifying as to his experience
under his former foreman, Staggs, for he testified that
this was the first time he had been unable to find
Richardson when he waslready to leave for a general
manager' s meeting.
Overpeck testified that he had never been told that
he was required to obtain permission from his supervisor
before leaving his work station to attend a manager's
meeting . On the contrary, he testified, Foreman Staggs
had once told' Overpeck that Staggs could not interfere
with his going to the general manager's meeting when
he had, been cleared to go and had "told us, in effect,
that if he was absent from the shop or forgot to sign
the card, one or the other, to take the card and to
leave at the proper time and he would sign it as he
passed through the timeroom that evening after work."
This had happened several times, according to Over-
peck's undisputed testimony.
On January 22, 1969, when Richardson had not
returned by "approximately" 3:25 p.m., according to
Overpeck, the latter picked up his timecard (which Rich-
ardson, had already signed),9 left it with the timekeeper,
picking up his brass identification check. The timekeeper,
as he is permitted to do, changed the notation on Over-
peck's timecard of 8 hours on conveyors to 7 hours
and noted 1 hour for the general manager s meeting.
According to Overpeck, he passed through the time
office at 3:28, or 3:29' p.m.10 The timekeeper testified
merely that Overpeck had gone through between 3:25
and 3:30 p.m. The timekeeper's testimony is credited.
Overpeck testified that he arrived at the general manag-
er's meeting at 4:02 or 4:03 p.m.
Foreman Richardson testified that he had made out
the timecards for his men just after lunch. On Overpeck's
he showed 8 hours on conveyors. Richardson had then
gone to the meeting in Superintendent Cullom's office
which started between 1 and 1:30 p.m. He was still
in this meeting , he testified, when, at 3:15 p.m., the
smelter clerk, George Haler, had notified Richardson
that there was a general manager's meeting that afternoon
and that Overpeck was scheduled to be there. Richardson
started to testify that he had "learned" that Overpeck
had been scheduled to attend the general manager's
meeting that day, but corrected himself, to say that
he had been "notified" of the hearing by the smelter
clerk at 3:15 p.m. However, when Respondent's counsel
asked, "Was this your first knowledge of it?" he replied
that it was. I am skeptical of Richardson's testimony,
since word is usually given in the morning. The smelter
clerk, who would be the one to notify Richardson in
the morning, did not testify, however.
According to Richardson, it would take him only
a couple of minutes to get from the smelter office
(the superintendent's office), where he was, to the repair
shop. Richardson testified, "Well, it was 3:15 when
I got the notice [from the smelter clerk] so 'I had to
hurry back to the shop so I could be there by, 3:30
to let this man off,"11 However, Richardson testified
Overpeck "was gone when I got to the shop at 3:25."
Since, by his own testimony, Richardson took 10 minutes
to make the trip that he testified would take only 1
or 2 minutes, I do not get a picture of haste, and
I am not convinced that Richardson's testimony as to
the time of his departure from the superintendent's
office or his return to the smelter repair shop (which
return was not corroborated by anyone at the repair
shop) was as accurate as he sought to make it appear.
6 The foreman frequently makes'the cards out during the day and
signs them, keeping the cards in his box for any corrections that
might have to be made before the end of the day
11 Cullom testified that Overpeck had "cleared the gate" sometime
before 3:25 p in. He did not say where he had received his information
11 Cullom' testified that Richardson left the superintendent's office
at 3,20 p in , but his testimony indicated that he was approximating.
At another point, Cullom testified that the meeting in his office ended
at 3•l5pin
MAGMA COPPER COMPANY
Richardson testified that "whoever was in the. shop
at that time, I can't recall,' told me he [Overpeck]
was gone." Richardson gave testimony which, if credit-
ed, would show an excellent memory for some details
but a very poor memory for others which one would
suppose-were as easy to remember.
The first thing Richardson did when he discovered
that Overpeck had already left was to telephone Superin-
tendent Cullom to tell him that Overpeck had left.
I note that Richardson did not call the time office to
ascertain if or when' Overpeck had passed there, and
Richardson did-not testify that there was any conversa-
tion with Cullom about the time when Overpeck had
left. He just told Cullom that Overpeck had left: The
way this call took place suggests that Richardson and
Cullom had anticipated that Overpeck would leave with-
out waiting for Richardson and that Richardson was
merely confirming that Overpeck had left.
After testifying that' he had "called Cullom to say
that Overpeck had left, Richardson added, "I thought
he might want to continue the meeting." Richardson
did not remember (but "imagined") that he had asked
Cullom if he wanted him to return to the' meeting,
yet Cullom testified that the meeting had ended before
Richardson had left his office. In his telephone conversa-
tion with Cullom, according to Richardson, there was
no` mention of any disciplinary action against Overpeck.
He could not remember 'whether or not he had taken
any steps at all to initiate ariy disciplinary action. Howev-
er, he testified that "before the shift begins in the
morning we always go to the' general foreman's office
and get our orders for the day . and 'I believe
that is where 'I learned about the disciplinary action."
However, his mind was blank as to what he heard
there. Cullom, however, after Richardson had told him
on the telephone on the 'evening of January 22 that
Overpeck had already left, went in the company of
Assistant Superintendent Caldwell directly to the office
of, Assistant Manager Wayne Burt and "urged" that
Overpeck be discharged for "blatant violation of a well-
known rule, in a long series of such challenges."
When Overpeck came to work on January 23, 1969,
he became aware of the fact that Richardson was asking
some of the men' in the' repair shop that morning about
what time Overpeck had left the shop 'the previous
day. Although Richardson purportedly had asked "some-
one" in the smelter repair shop'the night'before where
Overpeck was, he did not testify that he had asked
that-unknown person when Overpeck had left.
Richardson's testimony gave every appearance of an
attempt to avoid revealing anything which Richardson
believed might damage the Respondent's case. In view
of his hot and cold memory, I do not credit his testimony
as to when he returned ' to the smelter repair shop
from Cullom's office on January 22. I even doubt his
testimony that he questioned anyone at that time. Cul-
lom's testimony of the time that Richardson had called
him and the, time that Overpeck had gone through the
gate were obviously adjusted to suit his own interest
It did not even jibe with Richardson's testimony or
with the timekeeper's.
105
When Overpeck learned that Richardson; on the morn-
ing 'of January 23, was questioning men about when
he had left the shop the day before, he went to Richard-
son and asked why he was inquiring , about him . Richard-
son, according to Overp 'eck's credited testimony , replied
that Overpeck had left the day before "without his
authority ." 'According to'this account , Richardson did
not say that Overpeck had left early. Richardson, 'him-
self, did not testify about this conversation with Over-
peck . Overpeck testified that he had protested to Richard-
son that he had followed the procedure that had always
been in effect 'when the foreman was not present at
the time he was supposed to leave for the general
manager ' s meeting , and he asked Richardson to arrange
a meeting , with -Superintendent Cullom so that they might
go over the procedure and,'if there was another one
that they preferred , he would be happy to abide by
it. According to Overpeck, Richardson said that he
would speak to Cullom and let Overpeck know later.
Later, according to Overpeck , Richardson told him that
Cullom was out of town that day.12 No such meeting
ever took place.
On the morning of January 23, 1969, Personnel Manag-
er Ridinger informed General Manager Wise of conversa-
tions which he had had with "the smelter supervision"
about disciplinary action to be taken against Overpeck.
Wise and vague , intentionally I deduce, about exactly
what Ridinge'r had said to him; but Wise testified that
the smelter supervision had recommended Overpeck's
discharge and that he had thought this would be grossly
unfair and that he had prevailed upon them to reconsid-
er.13 To do this, he remanded the matter to that "supervi-
sion," and they decided on the 5 -day layoff.
Right after lunch that day (January 23 ), Assistant
Superintendent Caldwell brought to Foreman Richardson
a prepared disciplinary action slip which gave Overpeck
a 5-day disciplinary layoff (not including scheduled days
off) starting on January 24, 1969 , for "leaving the job
early on 1/22 /69 without 'proper authorization. 1114 Rich-
ardson signed his name and then Caldwell signed his
in the spaces ' provided therefor.
At 4:15 p.m. that day , Overpeck' was called to the
smelter repair office . Present , according to Overpeck,
were Staggs;15 Richardson , Caldwell , and Willie Van
Herron , the Union 's alternate grievance man. Richardson
told Overpeck'that he was being , given a 5-day layoff
for "leaving the, job without proper authorization," as
Overpeck put it. Since Caldwell and Staggs did not
testify and since Richardson gave no testimony about
this, Overpeck ' s testimony stands undenied. Overpeck
protested to Caldwell that he had never known that
" Cullom testified that he had to go to Phoenix
" Wise testified that at that time he was not as fully informed
of the facts as he had become by attending the hearing
14 "Leaving the job early" is not necessarily descriptive of leaving
before 3 30 p in Since Cullom took the position that Overpeck had
to clear with his foreman in order to leave at any time' before 4.30
p m , "leaving early" could signify merely leaving before 4.30 p m
I believe that this was the meaning Respondent's supervisors had in
mind at that time, although at the hearing they made an issue of
the 5 minutes which Overpeck had left before 3 30 p in
11 Why Staggs was there does not appear
106 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
any authorization was needed to attend a general manag-
er's meeting other than the one given by the personnel
department. Caldwell said, "You knew better." Over-
peck said that this was the first incident of this nature
that had come up under Richardson." There is no evi-
dence of any further conversation. Overpeck signed
the disciplinary action slip on the line intended for
him, but Van Herron refused to sign on the line for
the grievance man's signature.
Overpeck filed a grievance about this 5-day layoff
which, in due course, reached the third step, the general
manager. Again the decision was adverse to Overpeck.
Asked by Respondent's counsel whether, or not' he
thought a 5-day disciplinary layoff was proper in this
case, Wise testified that he did "in view of the fact
that we were discussing not only the incident of January
22, but we were also reviewing the man's overall experi-
ence with the company and the many grievances that
had been brought to our attention through the grievance
procedures in past months."
Union and company representatives, after Overpeck's
grievance was rejected, discussed the problem that Over-
peck had been to them, according to Personnel Manager
Ridinger. According to Ridinger, "Both sides were pon-
dering where does this thing end, it keeps going on
and on, how do we get these things settled, Mr. Over-
peck, I mean." Several days after that, according to
Ridinger, David Cummings, chairman of the Union's
grievance committee, telephoned Ridinger and asked
the Respondent's reaction to replacing Overpeck as
grievance man by another man, Dan Lewis. Ridinger
testified he replied that "that would be fine with us,"
and that, "this might help alleviate the problem." It
was at this time that Overpeck was relieved of his
grievance man's position for several months. During
the time before he was given back the position, his
replacement had filed few, if any, grievances.
4. Concluding findings and deductions
As stated earlier, the Respondent justified the 5-day
layoff of Overpeck on the ground that he had violated
a well-known rule of long standing:, "Unauthorized
absence from assigned working place while on duty."
Respondent took the position that, regardless of the
reason for a man's being away from his assigned working
place, this rule was violated if the employee did not
first get authorization from his foreman. The necessity
for Respondent's rule was stated to be for safety and
efficiency-safety, because a man away from his post
might suffer injuries because of dangers inherent in
the type of machinery and equipment about the plant;
efficiency because, in case of emergency, a foreman
might have to gather his crew in a hurry, so he had
to keep track of them; furthermore, as Cullom testified,
"You can't supervise people if you don't even know
where they are. 1117
'" I find that Overpeck was not the most articulate of people He
appears to be unable to cut incisively through semantic differences
or to marshal] all the pertinent facts to explain his position
17 In its brief to the Trial Examiner the Respondent states
In an attempt to show that infractions of this rule
by other employees were not overlooked and to avoid
giving the appearance of discrimination, the Respondent
adduced evidence of the application of the rule to other
employees Personnel Manager Ridinger testified that,
on one previous occasion, a grievance man had left
his work area to attend the general manager's meeting
without notifying his supervisor and that he was given
a 3-day layoff. Ridinger did not testify that that grievance
man had any concern in the grievance or had been
cleared by the personnel department to attend the general
manager's meeting, and there is reason to believe that
he had not been." The employee involved, James Hen-
derson, was in the mill division (not under Cullom).
Ridinger testified also that Henderson, 'an operator in
the concentrator building, undoubtedly needed a replace-
ment when he left, because his operation was continuous,
but he had not had any communication with his foreman,
and "I think he somehow found out about the hearing
and took off." Ridinger conceded that he was not
informed as to whether or"not Henderson had been
cleared by the personnel department with notice by
the latter to Henderson's supervisors'. This would be
a material fact if the Henderson case were to be used
as a precedent for penalizing Overpeck.
Other instances given by Ridinger of discipline meted
out for violation of the rule that Overpeck was accused
of violating involved employees who had no valid excuse
at all for leaving their work stations. In one case,
two men on the B shift came to work in the smelter
"and decided it was too hot to work or something,
so they took off and went over the fence." From this,
I deduce that they did not even pass the time office.
These men were discharged. In another case mentioned
by Ridinger, a man was found intoxicated and away
from his work station. "Introduction, possession, or
use of intoxicating liquors or coming to' work
under the influence of intoxicating liquors. . . ." was
in itself a violation of rules; so that man actually violated
two rules. No other cases actually similar to Overpeck's
were shown.
The Respondent brought out that other grievance
men (members of the grievance committee) had never
failed to "touch base" with their supervisors before
leaving to attend a general manager's meeting.'' Howev-
er, Jack Clements, the Union's vice president and a
Indeed, the only suggestion that the rule was not reasonable came
from the Trial Examiner himself, who volunteered his opinion
that the rule was "ritualistic " The Trial Examiner's comment
did not concern the rule, itself It related to the Respondent's
position that the rule should be rigidly applied regardless of whether
or not the reason for the rule existed in the particular case
" In his testimony at another point, Ridinger testified that they did
not want just anyone to come to the general manager's meeting He
testified "At least there have been occasions when some person, who
is really a disinterested party, decides, well, 'I ought to see what
happens at that hearing ' "
'B Their problem might have been simpler than Overpeck's Grievance
committee member Clements testified that, if his foreman was not
around when he was leaving for a general manager's meeting "I normally
go through the machine shop and get some other supervisor to sign
it [his time card] " Since the supervisor of the machine, shop was
over his own supervisor, this presented no problem
MAGMA COPPER COMPANY
member of the, grievance committee, testified that those
committeemen had said at a manager's meeting that
they did this as a matter of "courtesy" and not because
they felt that authorization was necessary. Also it gave
the supervisor an opportunity to correctly show the
time spent at the general manager's meeting. Lewis,
who served as grievance man after Overpeck had been
relieved of his duties and who had been past chairman
of the grievance committee, was reported to have said
at the general manager's meeting, at the time when
Overpeck's layoff was being discussed, that he had
never been told that he had to notify his supervisor
when leaving to attend a general manager's meeting.
And Clements testified that before the general manager's
meeting where Overpeck's grievance concerning his 5-
day layoff was taken up, he had never heard of a
rule that one had to notify his supervisor in person
before attending a general manager's meeting.
The ' book of rules which contains the one relied
on by the Respondent also contains'one which provides:
RULES GOVERNING ABSENTEEISM
3. An employee who has not made advance arrange-
ments for time off and who is confronted with
the necessity of being absent from his work shall
make every effort to contact his immediate supervi-
sor and inform him of the circumstances. If the
employee is unable to contact his supervisor, he
shall call the Time Office and give the following
information:
His name;
His payroll number;
The name of his immediate supervisor;
The shift -or shifts he will be absent from, and
the circumstances making the absence necessary.
4. Reporting off by a telephone call to the Time
Office, as described above, does not mean that
the employee so reporting is automatically granted
an excused absence. An employee who has been
absent without prearrangement and who subse-
quently presents an excuse acceptable to the Com-
pany will be entitled to a certificate of excused
,absence.
This language could cover Overpeck's failure to obtain
his foreman's approval to leaving for the general manag-
er's meeting even if consent was actually necessary.
He attempted to contact his foreman, he telephoned
the timekeeper, he supplied expressly or tacitly all the
required information, and his excuse for leaving was
undeniably one that had to be approved. Hence, the
only fault appears to have been Overpeck's departure
5 minutes before the deadline.
Cullom, although adhering to the assertion that there
were no exceptions to the rule that no one could leave
the department without "touching base" with his super-
visor (and this meant face to face contact, or at least
107
verbal'20 not written, notification by the employee as
well as express authorization by the supervisor to leave),
conceded that if Overpeck had waited until 3:30 p.m.
and his foreman had not returned by that time, that
this would have been a different situation and he would
not have raised the issue in the first place. The reason
for the rule of touching base with the supervisor, to
the extent that it pertained to the necessity for the
foreman's knowing of the employees' whereabouts, did
not enter this case, because, as Cullom testified, "We
all knew where he was."
The matter boils down, therefore, to a question of
whether or not the penalty meted out to Overpeck
for leaving 5 minutes earlier than he was supposed
to leave was actually meted out because of an infraction
of rules or was meted out in whole or in part because
of Overpeck's union activities in filing grievances.21 The
severity of the penalty is not an issue here except
to the extent that it might be motivated by a discriminato-
ry intent or indicated a course designed to curb Over-
peck's union or concerted activities.
Since Overpeck was not asked about his side of
the various grievances he had filed on other occasions,
I am unable to determine in each case whether or
not they were frivolous, designed to be harassing, and
an abuse of the grievance process as the Respondent
viewed them, or had some basis, as Overpeck seemed
to believe. It is apparent from the evidence that Overpeck
had filed nowhere near so many grievances in his years
as grievance man before the strike as he had after
the strike when he came under Cullom's supervision.
The cause of the increase conceivably could have been
Overpeck's dissatisfaction with the strike settlement or
it could have been his chafing under the rigidity of
Cullom's enforcement of rules-rules which Overpeck
required clarified.22 Cullom, himself, looked upon Over-
peck as an ungovernable, rebellious troublemaker. The
large number of written grievances filed could be partly
attributed to the requirements of the Union's contract
in the first two steps, for the situation was certainly
not alleviated by the fact that Cullom seemed to, feel
it necessary to do personally what the foreman should
have done-to handle personal discipline. The result
was that, if there was any basis for a grievance at
all, the grievance would necessarily have been prejudged
not only by the foreman but also by the superintendent-
R0 Cullom was willing to concede that notification by Overpeck by
telephone might have sufficed, in this instance Richardson, however,
testified that it would have served no purpose for him to telephone
when he was informed by the smelter clerk that Overpeck was scheduled
to attend the general manager's meeting on January 22 because he
would have been relieving Overpeck 15 minutes early and, besides,
he had to correct Overpeck's timecard Had he telephoned, however,
he need not have relieved Overpeck at 3.15 p m He could have told
Overpeck he would be right over and would correct Overpeck's timecard.
In fact, he could have telephoned the timekeeper to correct the card.
21 Even if Respondent's motive was mixed, the discrimination would
be no less an unfair labor practice. N.L.R.B v Symons Mfg Co ,
328 F 2d 835, 837 (C.A 7), N L R.B v. Lexington Chair Co , 361
F.2d 283, 295 (C.A. 6); Sutherland Lumber Company, Inc , 176 NLRB
No 143
22 After Overpeck's last layoff, the rules were revised, but the revised
rules are not in evidence
108 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the very men to whom a grievance had to be addressed
in the first two steps Necessarily a large number of
written grievances were carried to the third step, for
the general manager, Wise, would be the only one
of the three-Richardson Cullom and Wise-who could
then be expected to be unbiased, yet, the picture present
ed convinces me that even Wise impartial though he
appeared, was reluctant to overrule his management
staff in open sessions with union representatives, regard
less of Wise's personal judgement in the matter
While on the one hand management was attributing
to Overpeck motives of malice in the filing of grievances,
Overpeck appeared to feel that he was being discriminat
ed against and punished because of his activities as
grievance man, a conclusion that might or might not
have been warranted in all cases It is not a simple
matter to conclude whether either side was justified
in its conclusions But it is my impression that there
might have been some fault on each side Overpeck
is portrayed by the Respondent as the kind of person
who questions any order which is not backed up by
a written rule or a prior bilateral agreement This could
have been the basis for the Respondent's belief that,
when Overpeck left 5 minutes early to attend a general
manager's grievance meeting, he was trying to create
an issue in order to get a written determination of
the necessity for getting the foreman's express approval
before leaving to attend the general manager's meeting
But for the Respondent's belief that Overpeck was
attempting to create an issue, I am convinced that his
departure 5 minutes early would have created no serious
reaction Asked what time repairmen ordinarily checked
out at the end of the shift, William Hester, the timekeep-
er, testified that they would check out at the gate between
4 25 and 4 30 p m The shift actually ended at 4 30
p m This means that those employees who left the
gate before 4 30 p in must have left their assigned
work stations about 5 minutes before the end of the
shift in order to reach the timekeeper's room between
4 25 and 4 30 p m I judge that specific authorization
from their foreman was not obtained every day to leave
that much before the end of the shift 23 Although Over
peck had not usually passed the timekeeper's office
to attend a grievance meeting before 3 30 p m , during
the time he had been under Richardson's supervision,
the Respondent's tacit approval of the practice of leaving
work stations at the end of the shift 5 minutes early
warrants an inference that an unbiased employer, in
applying a stricter rule to Overpeck on January 22,
1969, for leaving 5 minutes earlier than he should have
left, even taking into consideration the prior warnings
23 There is evidence that some members of the grievance committee
were permitted to leave their work stations at 3 20 p in to go to
the general managers meeting but they were at a location 8 miles
farther away than the smelter area Hence this should not be considered
a precedent for Overpeck to follow However there is evidence that
two of Richardson s men (Steelworkers) had once walked out that
Richardson had seen them going and called to them to return but
that they had just waved and continued on that Richardson had comment
ed that he w'is going to dock their pay but he had apparently not
even done that Richardson gave no explanation of this disparate treat
ment when he was on the stand
and discipline meted out to Overpeck, would have limited
its corrective action in this case to a reprimand and
a warning not to repeat The fact that Cullom's first
and only reaction, on January 22, when he was told
by Richardson that Overpeck had already left, was
to discharge Overpeck for this minor offense, with no
attempt to investigate the circumstances any further,
warrants the conclusion that Cullom was looking for
a cause to discharge Overpeck
The Respondent takes the position that it was not
merely Overpeck's leaving 5 minutes early but that
it was his leaving even a minute early in violation
of Respondent's supposed rule that an employee must
invariably notify his foreman in person before leaving
his assigned work station, even if the foreman knows
full well where he is going and why he has left and
even if the employee's excuse for leaving was one
over which the foreman could exercise no discretion
in approving or disapproving I say "supposed rule"
because the word "unauthorized" in the rule that "unau
thorized absence from assigned working place while
on duty" does not expressly limit the employee to
verbal approval by a foreman in a personal confrontation
with an employee The latter interpretation is merely
Cullom's interpretation of the rule (which Respondent
has here espoused), and his inflexible interpretation of
it is even contrary to rules 3 and 4 of the Respondent's
"Rules Governing Absenteeism " If Cullom's interpreta
tion were correct, Overpeck should not even have left
his work on the conveyors before 3 30 p in unless
and until his foreman had appeared so that he could
be asked permission to leave Yet, Respondent raised
no issue about Overpeck's return from the location
of the conveyors to the smelter repair building where
he expected to see his foreman about leaving The
only issue raised by the Respondent was about Over
peck's leaving the smelter repair building before his
foreman showed up to release him
I do not mean to imply that Cullom must be as
lenient in his application of rules as other supervisors
in Respondent's operations might have been, but I do
find in Cullom's reaction in this instance to what was
at most a minor violation of rules-his precipitate action
to effect Overpeck's discharge with no pretense of inves-
tigation of all the facts-a bias and prejudice that can
be attributed only to his resentment that Overpeck would,
through the grievance process, question his judgment
or decisions so frequently 24 He testified about Overpeck
"His first activity after he came into our jurisdiction
was to begin to threaten me with grievances " Although
Cullom immediately thereafter testified that "we accept
grievances as a matter of course," his use of the word
"threatened" discloses that he did not approve of the
filing of grievances which questioned his authority and
his decisions These grievances he considered as a "chal-
24 It is significant that when he telephoned Cullom to say that Overpeck
had picked up his card and left Richardson had no conversation with
Cullom about discipline or who would handle it It may be deduced
that Richardson knew in advance that Cullom was just waiting for
an opportunity to get rid of Overpeck and knew that it was out of
his hands
MAGMA COPPER COMPANY
lenge" and as a "harassment.", He testified, "I don't
require that he [Overpeck] be happy, but I do resent
the harassment that he's engaged in [filing of grievances]
ever since he's been in our division." Cullom testified
that he considered Overpeck as an agitator and that,
in his opinion, if Overpeck were not the grievance
man, other employees would "go along with the isituation
as it was "
Cullom, in response to a suggestive question asked
by Respondent's counsel, testified that Overpeck 'filed
"repeated or multiple grievances on the same subject."
Because this was in answer to counsel's suggestive
question, because no examples thereof were given, and
because the answer involved a personal conclusion of
Cullom which cannot be examined, I give this testimony
no weight.
I do not conclude that Overpeck's judgment in deter-
mining what grievances should be pressed was always
the soundest. But this is not a precondition to engaging
in lawful concerted activities.25 Overpeck apparently
conceived it his duty, in "policing the contract," to
raise issues that the average employee might not have
raised, but this does not mean that Overpeck was abusing
the grievance process or. using it only for purposes
of harassment.26
Although Overpeck's departure for the general manag-
er's meeting before 3:30 p.m. was a violation of rules,
I am satisfied and find, on all the evidence, that this
violation of rules was not the real reason for the penalty
imposed upon Overpeck.21 The evidence demonstrates
that the Respondent tolerated similar violations on the,
part of other employees who were not engaged in con-
certed or union activities. Furthermore evidence of
Respondent's bias and prejudice against Overpeck and,
its obvious desire to find some reason to rid itself
of the harassment of grievances filed by Overpeck,
amply demonstrate that Overpeck's minor infraction
of a rule was, at most, a minimal factor in Respondent's
motivation, if, indeed, it was any part. Under all the
circumstances, I conclude and find that the 5-day layoff
given to Overpeck was given not merely to penalize
him for leaving for a grievance meeting 5 minutes early
but was designed to discourage him and other employees
from filing grievances, thus interfering with, restraining,
and coercing employees in the exercise of rights guaran-
teed in Section 7 of the Act.28 I am further convinced
and I find that Respondent's punishment of Overpeck
was discriminatorily motivated, and, hence, Respondent
engaged not only in unfair labor practices within the
ss Mushroom Transportation Co , Inc , 142 NLRB 1150.
28 As the court said in Salt River Valley Water Users' Assn v
N.L R.B , 206 F.2d 325 (C A 9) "concerted activities which are protect-
ed by the Act often create a disturbance in the sense that they create
dissatisfaction with the status quo "
Z' Taylor Instruments Companies, 165 NLRB 843
28 Aerodex, Inc , 149 NLRB 192, Dorwood Rental Company, 178
NLRB No 104; Top Notch Manufacturing Company, Inc., 145 NLRB
429; Farmers Union Cooperative Marketing Assn , 145 NLRB 1, Trailmo-
bile Division, Pullman Incorporated, 168 NLRB 230, Monsanto Chemical
Company, 130 NLRB 1097, Mushroom Transportation Co , Inc , supra
109
meaning of Section 8(a)(I) of the Act but also within
the meaning of Section 8(a)(3) of the Act.29
CONCLUSIONS OF 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. Milton C. Overpeck, Jr., is an employee within
the meaning of Section 2(3) of the Act and is a member
of a labor organization within the meaning of Section
2(5) of the Act.
4. By interfering with, restraining, and coercing said
Overpeck in the rights guaranteed in Section 7 of the
Act, Respondent has engaged in unfair labor practices
within the meaning of Section 8(a)(1) of the Act.
5. By discriminating against said Overpeck because
of his union activities, Respondent has engaged in unfair
labor practices within the meaning of Section 8(a)(3)
and (1) of the Act.
6. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the foregoing findings of fact and conclusions
of law and upon the entire record in the case, I recom-
mend that Respondent, its officers, agents, successors,
and assigns, shall:
1. Cease and desist from:
(a) Interfering with, restraining, or coercing Milton
Overpeck or any other employee in the use of the
grievance procedure or in any other manner interfering
with, restraining, or coercing employees in the exercise
of the rights guaranteed in Section 7 of the Act.
(b) Discouraging membership in any labor organiza-
tion by discriminating in regard to the hire or tenure
of employment or any term or condition of any employee.
2. Take the following action, which I find will effectu-
ate the policies of the Act:
' (a) Make whole Milton Overpeck for any loss he
may have suffered as a result of his layoff by Respondent
in violation of the Act, between January 24 and 30,
inclusive, 1969, by paying him a sum of money equal
to that which he would have earned during said period
but for his unlawful layoff, together with interest on
said sum at the rate of 6 percent per annum until
paid.3o
(b) Post at its smelter repair shop and at all places
where notices to employees are customarily posted at
its San Manuel, Arizona, operations, copies of the
attached notice marked "Appendix."" Copies of said
16 Kellwood Co , 175 NLRB No 79; Glenn Berry Manufacturers,
Inc , 169 NLRB No 121, Graham Engineering, 164 NLRB 679, 689,
Taylor Instrument Companies, 165 NLRB 843, Sandpiper Builders, 152
NLRB 796
30 Isis Plumbing& Heating Co., 138 NLRB 716
11 In the event no exceptions are filed as provided by Section 102 46
110 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
notice, to be furnished by the Regional Director for
Region 28, after being duly signed by Respondent's
authorized representative, shall be posted by it immedi-
ately upon receipt thereof and be maintained by it for
60 consecutive days thereafter in conspicuous places
as approved by the said Regional Director Copies of
said signed notice shall also be forthwith delivered to
each member of the grievance committee and to each
grievance man of the Union at the San Juan operations
of Respondent
(c) Notify the said Regional Director, in writing, with
in 20 days from the date of service of this Decision,
what steps Respondent has taken to comply herewith 32
of the Rules and Regulations of the National Labor Relations Board
the findings conclusions recommendations and Recommended Order
herein shall as provided in Section 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
In the event that the Board s Order is enforced by a judgment of
a United States Court of Appeals the words in the notice reading
Posted by Order of the National Labor Relations Board shall be
changed to read Posted Pursuant to a Judgment of the United States
Court of Appe ils Enforcing an Order of the National Labor Relations
Board
32 In the event that this Recommended Order is adopted by the
Board this provision shall be modified to read Notify the Regional
Director for Region 28 in writing within 10 days from the date of
this Order what steps it has taken to comply herewith
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency Of The United States Government
We hereby notify our employees that
WE WILL NOT impose any disciplinary penalties
on any employee for filing grievances or otherwise
engaging in concerted activities
WE WILL NOT discriminate in regard to the hire
and tenure of employment of any of our employees
because of his union membership or activities
WE WILL NOT interfere with, restrain, or coerce
our employees in the exercise of the right to self
organization, to form, join, or assist labor organiza-
tions, to bargain collectively through representatives
of their own choosing, or to engage in other concert-
ed activities for the purpose of collective bargaining
or other mutual aid or protection or to refrain
from any or all such activities
WE WILL make whole Milton C Overpeck, Jr ,
for any loss he may have suffered during his layoff
between January 24 and 30, 1969, by paying him
a sum of money equal to that which he would
have earned but for his unlawful layoff during
that period, plus interest at the rate of 6 percent
per annum from the date said wages were due
until the date of payment thereof
Dated By
MAGMA COPPER
COMPANY
(Employer)
(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 compliance
with its provisions, may be directed to the Board's
Office, 500 Gold Avenue, Room 7011, P 0 Box 2146,
Albuquerque New Mexico 87103, Telephone 843-2507