Midwest Precision Casting Co.

National Labor Relations Board - Board Decisions

Aug 24, 1979

244 N.L.R.B. 597 (N.L.R.B. 1979)

MIDWEISI PR:(ISION C(ASTIN(iS COMPANY
Midwest Precision Castings Company and Local 160,
Leather Goods, Plastics and Novelty Workers
Union, AFL-CIO. Case 14-CA 11811
August 24. 1979
DECISION AND ORDER
On January 16, 1979, Administrative Law Judge
George F. Mclnerny issued the attached Decision in
this proceeding. Thereafter, Respondent filed excep-
tions and a supporting brief' and the General Coun-
sel filed cross-exceptions and a supporting brief.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings,2 and
conclusions of the Administrative Law Judge only to
the extent consistent herewith.
The Administrative Law Judge found that Respon-
dent violated Section 8(a)(3) and (I ) of the National
Labor Relations Act, as amended, by discharging
Union Steward Charlene Picker and converting that
discharge into a I-week layoff, and that it violated
Section 8(a)(1) of the Act by singling out Picker for
disparate treatment because of the fact that she held
union office. Respondent has excepted to the Admin-
istrative Law Judge's findings that it violated Section
8(a)(1) and (3) of the Act. We find merit in that ex-
ception.
The record reveals that Respondent has had a col-
lective-bargaining relationship with Local 160.
Leather Goods. Plastics and Novelty Workers Union.
AFI CIO (hereinafter the Union), for a long period of
time. The most recent collective-bargaining agree-
ment between the parties contains the following pro-
vision: "The Union agrees that during the term of
this agreement there shall be no strike, boycott or
slowdown by any or all of the employees of the Com-
I Respondent has also filed a motion to reopen the record for the taking of
additional evidence. Since we are revislng the Administratise Law Judge's
Decision in the instant case and finding that Respoindent did not iolate he
Act. Respondent's motion to reopen the record is hereb denied on grounds
of mootness.
2 Respondent asserts that the Adminstrative Law Judge's resolution of
credibility, findings of fact, and conclusions of law are the results of hias
After a careful examination of the entire record we are satisfied that this
allegation is without merit. There is no basis for finding that bias and partial-
ity existed merely because the Administrative Law Judge resolved important
factual conflicts in favor of the General Counsel's witnesses. As the Supreme
Court stated in .L. R.B,. v. Pittsburgh Steamshp Cornpanv. 337 L S. 656. 659
(1949). "[Total rejection of an opposed view cannot of itself impugn the
integrity or competence of a trier of fact." Furthermore. it is the Board's
established policy not to overrule an administrative law judge's resolutions
with respect to credibility unless the clear preponderance of all of the rel-
evant evidence convinces us that the resolutions are incorrect. Standard Drn
Wall Products. Inc, 91 NLRB 544 (1950). enfd. 88 F.2d 362 (3d Cir. 1951
we have carefully examined the record and find no basis tir reversing his
findings. There is also no basis for finding that the Administrative l.aw Judge
was biased against Respondent because the latter appeared at the hearing
unrepresented b counsel.
pany covered by this agreement." In addition, Re-
spondent has a shop rule stating that "no emploee
shall engage in an)y form iof work stoppage or slow-
down or refusal to work nor shall he or she disobeN
instructions verbal or written."
As a result of financial losses experienced bh Re-
spondent in early 1978 Respondent's newly appointed
general manager, Vernon Rotert. sought to make Re-
spondent's operation more efficient. One method he
employed was to merge two separate job functions
into one job. The merger was accomplished around
the middle of 1978 with the consent of the Union and
the affected employees. The employee performing the
merged job was to be paid a higher hourly rate. How-
ever, several months after the merger had gone into
effect Rotert noticed that daily production on the
merged job was not increasing, as would be expected
once the employee performing the merged job be-
came more proficient at it. Rotert testified that. based
on the production records alone, he suspected that
some employees were deliberately slowing down their
production on the merged jobs.
Thereafter, it came to Rotert's attention that some-
time in August 1978 Shop Steward Charlene Picker
told employee Donna Allen that "all the girls are
mad at you. You better slow down. You are getting
out too many parts. We can't keep up with you."
On August 30. 1978. Rotert called Picker into his
office, along with Foreman Don Stecker, and con-
fronted Picker with the statement that she had alleg-
edly made to Allen. Picker amitted that she had
made the statement to Allen. but she told Rotert that
it was said in a joking manner, and that all of the
emploveces in the plant joked about slowdouns. ' Ac-
cording to Picker. Rotert responded that "shop stew-
ards can't joke about things like that,"'' although
Rotert denied makine that statement. Picker was then
sent back to work. but later that same day she rwas
again called to Rotert' office, along with Stecker andi
employee Carolyn Bicker, the latter being a "shop
committee" member.4 Rotert asked Bicker about the
Picker-Allen incident, and Bicker told Roteit that she
herself had made the same statement about slow-
downs to other employees some 100 200 times, al-
ways in a joking manner. Bicker also told Rotert that
Donna Allen testified on behalf of Respondent that Picker as serious
when she told Allen to slow down. and that in response to Picker's order she
did slow down her work. However, she admitted that she had heard other
employees joke about slowing down, and that she hersell once told another
employee to slow down. Vicky Rathert, a witness called by Respondent.
testified that numerous employ ees In the plant joked about slos dos, n,. l,i -
esver. another iness called by Respondent. Jacqueline Hagan testified that
she a:3, not aware of emploees telling other emplorees It slow down. al-
though in her position as orel.ad she hs told etplyoeer t hill she uanlts
qualit)y nol quantit)."
The "shop committee" is compo,ed of several emplosees , ho rieel lwith
Roter t dsiscss and resol .. e a.iel\ and other Aork-rel.ated problems
244 NLRB No. 63
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
other employees had told her to slow down, also in a
joking manner. According to the testimony of both
Picker and Bicker, Rotert then stated that Bicker was
not a shop steward, and that "shop stewards can't
joke around about things like that." Rotert himself
admitted that he told both Picker and Bicker that "a
shop steward was to set an example and not make
remarks like that to slow people down." Near the end
of the meeting Bicker was asked to leave, after which
Picker was informed of her discharge.
On September 6 a grievance meeting was held at
Respondent's plant to discuss the discharge. Picker
and Donald Hayes, secretary-treasurer of Local 160,
were present for the Union, and Rotert and James
Reid, Respondent's secretary-treasurer, represented
Respondent. Hayes again raised the fact that every-
one in the plant joked about slowdowns, but Reid
replied that "everyone else isn't a shop steward," and
that, coming from a shop steward, such a statement is
a far more serious matter than if it comes from a
regular employee. As a result of the meeting, how-
ever, Picker's discharge was converted into a I-week
layoff.
It is undenied that no other employee in the plant
has been disciplined for urging another employee to
slow down, either before or after the discharge of
Picker. However, Respondent submitted some docu-
mentary evidence indicating that production on the
merged job increased dramatically following the dis-
charge of Picker.
The Administrative Law Judge found that the dis-
charge of Picker was not "primarily motivated"
against the Union or its officers but rather by its de-
sire to improve productivity. Nevertheless, the Ad-
ministrative Law Judge concluded that Picker's dis-
charge violated Section 8(a)(3) and (1) of the Act
because:
Picker was singled out specifically for discipline
and that disparate treatment was accorded her
not only because of the fact that she had urged
another to slow down, but also, by Respondent's
own admission, because she was the Shop Stew-
ard, who was expected to observe higher stan-
dards than other employees.
In support of his Decision the Administrative Law
Judge relied on the Board's Decisions in Precision
Castings Company5 and Gould Corporation6 that "dis-
crimination directed against an employee on the basis
of her holding union office is contrary to the plain
meaning of Section 8(a)(3), and would frustrate the
policies of the Act if allowed to continue."
5 Precision Castings Company, Division ofAurora, a wholly owned subsidiary
ofAllied Products Corporation, 233 NLRB 183 (1977).
6 237 NLRB 881 (1978).
Contrary to the Administrative Law Judge. we find
that the nature of the conduct engaged in by Union
Steward Picker distinguishes the instant case from
Precision Castings and Gould.7 The Board has long
held that "lain employee who attempts to persuade
fellow employees to strike in violation of a contrac-
tual no-strike clause or commit acts of insubordina-
tion is not insulated from discipline by the mere fact
of his holding union office." 8 The Board has also
found it permissible to single out for greater discipline
a union steward who actively led and directed an un-
authorized, illegal work stoppage.' In Precision Cast-
ings, however, where a substantial number of employ-
ees in the plant called an unauthorized, illegal work
stoppage and set up a picket line outside the plant, a
violation of Section 8(a)(3) was found when the em-
ployer singled out five union stewards for discipline
because the stewards had participated in the work
stoppage by joining the picket line. The Board rea-
soned that inasmuch as the union stewards had not
instigated or led the work stoppage they could not be
disciplined for failing to abide by their contractual
resonsibility as union officials to take reasonable steps
to terminate the stoppage. Similarly. in Gould. where
about 50 employees on the third floor of the plant
stopped work to protest the employer's failure to pro-
cess a grievance in a timely manner, a violation of
Section 8(a)(3) was found when the employer singled
out the employees' union steward for discipline be-
cause the steward had joined the strike after it had
already begun. The Board again reasoned that inas-
much as the steward neither instigated nor led the
work stoppage he could not be disciplined for his
"lack of actions as a steward" in failing to bring the
work stoppage to an end.'"
' Member Murphy relies solely on the fact that the steward here was dis-
charged tfr engaging in improper conduct in direct violation of a contractual
clause: she does not subscribe wholly to the positions of any of her col-
leagues and finds it unnecessary to extend or rely on or distinguish Gould or
Chrysler Corporation, Dodge Truck Plant. 232 NLRB 466 (1977). Neverthe-
less, Member Murphy is constrained to note that Member Penello's version
of the facts in Gould is inaccurate and does not reflect those found by the
Administrative Law Judge and the Board in that case. i.e.. that the steward
there joined a 2-hour work stoppage but did not instigate r lead the stop-
page.
Member Penello's insistence on ignoring the facts found by the Board and
his persistent restatement of the "facts" as he would like them to be rather
than as they were cannot change these majority findings. Contrary to Mem-
ber Penello. in Gould the Board emphasized that the steward had a conversa-
tion with a representative of management in the presence of employees
rather than stating that he urged the strikers not to return to work in the
presence of management.
'Stop & Shop, Inc.. 161 NLRB 75. 79 (1966): see Super Valu Xenia. A
Division ofSuper Valu Stores, Inc., 228 NLRB 1254 (1977): Anaconda Alu-
minum Company, 197 NLRB 336 (1972): J. P. Wetherbv Construction Corp.,
182 NLRB 690 (1970): A. Borchman and Sons. Co.. 174 NLRB 203 (1969)
Russell Packing Company and Peerless Packing Company, 133 NLRB 194
(1961).
9 Ch'sler Corporation, Dodge Truck Plant. supra.
'I Gould Corporation, supra.
598
MIDWEST PRECISION CASTINGS COMPANY
In the instant case the record is clear that union
steward Picker urged employee Allen to slow down
her work. Although the record also reveals that man)
employees in the plant joked about slowdowns, Allen
testilied that she took Picker's comment about slow-
ing down seriously, and that she did in fact slow
down. In addition, Respondent, prior to learning of
Picker's comment to Allen. suspected from its pro-
duction records that a slowdown was in effect, and
thus it was not unreasonable fir Respondent to view
Picker's comment to Allen in a more serious manner
than similar comments made by regular employees.
Since it is clear that Picker urged support of and
sought to induce employee participation in an unau-
thorized, illegal work slowdown in direct violation of
a contractual no-strike, no-slowdown clause, Respon-
dent did not violate Section 8(a)(3) of the Act by dis-
ciplining Picker for such conduct or violate Section
8(a)( I) by singling out Picker for disparate treatment
by holding her to a higher standard of conduct than
other employees."
Accordingly, we shall dismiss the complaint in its
entirety.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board hereby orders that the complaint herein
be, and it hereby is, dismissed in its entirety.
CHAIRMAN FANNING, concurring:
I agree that Union Steward Picker was lawfully
discharged for telling an employee that other employ-
ees were angry, that "Jy]ou better slow down. You are
getting out too many parts." That is so because a
slowdown on the job, in contrast with a strike, is not
protected. Moreover, here both strike and slowdown
were prohibited by contract. And, in the circum-
stances, the fact that employees other than stewards
had made similar remarks without receiving disci-
pline does not suggest hostility towards the Union.'2
" In reaching this conclusion we find no conflict with the Board's recent
decision in Owens Corning Fiberglas Co.. 236 NLRB 479 (1978). where an
employer was found to have violated Sec. 8(aX3) of the Act b singling out
a union steward for discipline because the steward was drinking alcoholic
beverages in the plant. The facts in that case revealed that the drinking
incident occurred on the day before Christmas when it was traditional for
employees to drink alcoholic beverages in the plant: that the employer was
aware that many other employees in the plant were drinking along with the
steward: and that the employer admitted that the steward was being held to
a higher standard of conduct than other employees who were also engaged in
the same misconduct. Thus. unlike the instant case where Union Steward
Picker's activity went to the spirit and letter of observance of the contractual
no-strike clause. the activity engaged in by he union steward in Owens (Cor-
rnng was totally unrelated to his duties as union steward in administering
the collective-bargaining agreement in the plant.
i There seems to be some confusion.
The test I apply here is the same as that in (Joutd'
and Precisionl Castings, l' and it is a Ihctual one:
"when the employer discharges a union leader who
has broken shop rules, the problem posed is to deter-
mine whether the employer has acted purel1 in disin-
terested defense of shop discipline or has sought to
damage employee organization.""
T'hat is not to say it is an easy test. In Gould and
Precision Castings union stewards were singled out for
joining unprotected work stoppages. although their
conduct was no different from that of other employ-
ees whom they had joined, not led. Their discipline
flowed from their union status, not from their actions
as employees. In contrast, the discipline here is con-
nected with the steward's status only to the extent
that status colors the impact of her action. An em-
ployee who is told she "better slow down" may well
view it as a threat coming from a steward, while dis-
missing as banter the same comment from an etm-
ployee.
In my view Respondent was justified in considering
Union Steward Picker's unprotected comments more
serious than those coming from rank-and-file employ-
ees and reacting accordingly. And there is no reason
to believe that her different treatment stemmed from
her union status rather than from the more serious
nature of her conduct. 16 Theret'Ore. I join in dismiss-
ing the complaint."
Sec 7 provides that employees shall have the right to "assist labor oirgani-
zations." An employee sersing as a union official. including a steward, is
"assisting a labor organization." hat right "to assist a labor organization" is
the value we protect in these cases Discrimination against an employee for
engaging in that right (that is. taking an action on that hbais). Isa prvi, ta, w
violation f the Act. The employer may come lfirward with legitinate and
substantial husiness justification. hut that is its burden. And the Boa.rd rnma
nonetheles balance the emploser'sjustification in determining he pr priet
of its action, N L R.fB v. Great Danm' Trailerr. Inc. 388 L' S. 26 1967).
it Gould Corporation. 237 NLRB 881 (1978).
t Precision C(stingsr (Compan,. 233 Nl RB 183 (1977).
ms American Ship Building Co v. N 1 RB., 380 IS. 300. 311 (19651
i' Member Penello's analysis of' Gould here is at some odds with his analy-
sis there where he did not identifv even inducing support" as one of his
"relevant factors." He argued "that nion Steward Moran was discharged
not solely' because he was a union steward, but rather because in his position
as a union steward he failed to fulfill his affirmative duties under the collec-
tive-bargaining agreement." The credited testimon) did not establihsh liat he
led the stoppage, and that was not Gould's reason for discipline. That Mem-
ber Penello has or even had a view of the relevant Gould acts different rom
that of the Gould majorit) is irrelevant to its meaning as precedent. Indeed.
Member Penello asserts even here that the "sole issue . was shether a
union steward could be singled out for discipline for ailing to abide b his
contractual responsibilities during an illegal. unauthorized work ,toppage'
Leaving aside Member Penello's theory that the work stoppage in Gould was
illegal (a theory at some odds with his view that the steward there wais not
even the union's agent, see fn. 23). that is not consistent with thre iew that
the discipline was lawfully meted out in a nondiscriminatory flishion becalse
the steward's actions as an unprotected striker differed n such ia a. trilom
that of other unprotected strikers that Gould might laIstull he rlicd on
it.
As to the remainder of Member Penello's attack upon what is. atter all. mns
reason for agreeing with him in this proceeding. he appears to be nwillinc
to acknowledge that there is a distinction between mere causalit? and mnoti-
sating cause. A union organlzer discharged Ior soliciting n uorktime in the
face of a alid rule may rightly regard his uinion actions as the cause But for
(( omlrlullci¢d
I)('ISlONS ()F YAII()ONAI. ABO(R RAIIONS BOARI)
Ml MlR PE1 NI (), concurring:
I agree with my colleagues in the majority that the
complaint in the instant case should he dismissed in
its entiret. Ilowever. I would do so only for the rea-
sons discussed below.
In my dissenting opinion in G(oll Corporatlion' I
expressed at considerable length my view that an em-
ployer may lawfully discharge a union steward who
participates in an unauthorized, illegal work stoppage
and who fails to abide by his responsibilities and du-
ties under a collective-bargaining agreement to bring
such a work stoppage to an end. In Gould the collec-
tive-bargaining agreement contained a no-strike
clause as well as a requirement that in the event of an
unauthorized work stoppage the union's representa-
tives must "refuse to aid or assist ... the unauthorized
action" and "use every reasonable effort to terminate
such unauthorized action." Thus. I found that the
employer was justified in singling out for discipline a
union steward who failed to fulfill such duties re-
quired of him under the collective-bargaining agree-
ment. I also criticized the majority decision in Gould
because of my fear that it would seriously undermine
"the fundamental importance of the grievance-arbi-
tration system and its companion no-strike agreement
to the peaceful settlement of labor-management dis-
putes, as mandated by Congress, applied by the
courts and the Board, and consistently interpreted by
a long line of arbitral authority."'9
In the instant case the collective-bargaining agree-
ment states, "The Union agrees that during the term
of this agreement there shall be no strike, boycott or
slowdown by any or all of the employees of the Com-
pany covered by this agreement." Union Steward
Charlene Picker, a representative and agent of the
Union, admittedly told another employee, Donna Al-
len, to slow down her work. Although Picker claims
to have made the statement to Allen in a joking man-
ner, Allen took Picker's request seriously, and she did
in fact slow down her work. Already suspecting that a
work slowdown was in effect, Respondent investi-
gated the incident and learned that such talk about
slowdowns was common in the plant, but that it was
primarily done in a joking manner. Finding nothing
amusing in a union steward telling another employee
his organizational sympathies he would not have been discharged. But that is
because he would not have iolated the rule. I would not find a violation
there either. It is not sufficient that a protected activity is a link in the casual
chain if it is not a cause itsell'.
17 I do not agree with the Administrative Law Judge's conclusion that
General Electri( ('nimoin)o, 155 NLRB 208 (1965), has been overruled In-
deed. I view it as controlling here. There the Board held that a union presi-
dent's discharge for encouraging an unprotected "slowdown" and not be-
cause of his status in the union or hostility towards his protected activities
was not unlawful.
Is237 NlRB 881 (19781.
1' Id at 885.
to slow down, Respondent disciplined Picker for
making the slowdown statement to Allen but did not
discipline any other employee despite the fact that
several other employees had admitted making similar
statements about slowdowns. Respondent openly ad-
mitted that it singled out Picker for discipline because
"a shop steward was to set an example and not make
remarks like that to slow people down."
Under my analysis of the law set out in Gould Re-
spondent herein was entirely justified in disciplining
Picker for failing, in her position as a union steward,
to abide by the express language in the collective-
bargaining agreement prohibiting the Union from en-
gaging in work slowdowns. The fact that other em-
ployees in the plant had engaged in the same conduct
as Picker and were not disciplined is entirely consis-
tent with my analysis in Gould. where I emphasized
that a union steward who acquires a battery of "bene-
fits and protections" while serving as a union steward
must be held accountable to fulfill certain "duties and
responsibilities" inherent in that position. Foremost
among those "duties and responsibilities" is the en-
forcement of a no-strike, no-slowdown clause in a col-
lective-bargaining agreement. Clearly, then, since
Union Steward Picker deliberately shirked her re-
sponsibilities by urging a fellow employee to engage
in a work slowdown she lost her protected status un-
der the Act, and Respondent could lawfully discipline
her for engaging in such unprotected conduct.
In reaching their decision to dismiss the complaint
in the instant case my colleagues in the majority have
attempted to distinguish the facts in Gould and Preci-
sion Castings from the facts of the instant case. Ac-
cording to the majority, it is only where a union stew-
ard "instigates" or "leads" an illegal, unauthorized
work stoppage that he may be singled out for disci-
pline by an employer, and the stewards in both Gould
and Precision Castings clearly did not instigate or lead
the work stoppages in which they participated. In
making this distinction my colleagues have ignored
the crucial role played by a union steward in the ad-
ministration of a collective-bargaining agreement. By
the very nature of his position with the union a stew-
ard occupies a position of some authority vis-a-vis his
fellow employees, and those employees will of neces-
sit) look towards the steward for guidance and lead-
ership on any issue which arises on a daily basis in the
plant. For example, if an employee is called by his
employer to attend an investigatory interview which
the employee reasonably believes may result in disci-
plinary action the employee has a federally protected
right to request the presence of his union steward at
such an interview. Or if an employee has a grievance
regarding some action taken by management against
him the collective-bargaining agreement will, in most
600(()
MIDWEST PRECISION CASTINGS COMPANY
cases, require him to seek out his union steward for
advice and assistance in processing the grievance.
And if an employee merely has a question concerning
the interpretation of the collective-bargaining agree-
ment he will naturally seek the assistance of his union
steward. In the same manner, if employees are con-
templating the withholding of their services from
their employer by engaging in a work stoppage or
work slowdown they perforce will seek the advice and
guidance of their union steward on a matter of such
crucial importance to their employment. If under
such circumstances a union steward joins his fellow
employees in an illegal, unauthorized work stoppage
logic dictates that the steward should be viewed as
the "leader" of such a work stoppage.
That was precisely the assertion I made in Gould.
where a number of employees had on their own be-
gun an illegal, unauthorized work stoppage to protest
the employer's delay in processing a grievance. When
their union steward was advised of the work stop-
page, he not only refused to urge the employees to
return to work (which was his contractually mandat-
ed duty), but he stood in front of the assembled em-
ployees and stated that "we aren't going back to work
until we find out what's going to happen [on the
grievance]." Based on these words and actions by the
steward in Gould I concluded that he was the natural
leader of the work stoppage.2 0
However, even assuming arguendo that Gould is
factually different from the instant case I fail to see
the legal distinction my colleagues have made be-
tween the two cases. In Gould, where according to the
majority the union steward merely participated with
50 other employees in an illegal. unauthorized strike.
they found that since it is "the fundamental axiom of
our national labor policy" that "an individual cannot
be discriminated against because of his union status"
and inasmuch as the steward "was singled out tfor
discipline solely because he was the steward," the em-
ployer had clearly violated Section 8(a)(3) of the Act.
In the instant case, however, where union steward
Picker participated in the common plant practice of
joking about slowdowns, and Respondent openly ad-
mitted that the sole reason for disciplining Picker was
because she was a steward the majority does not ap-
ply the "fundamental axiom of our national labor
policy" that it applied to the facts in Gould,.
In addition, the majority has stated that the reason
the Board found a violation in Gould and Precision
Castings was because the disciplined stewards in
those cases has not "instigated" or "led" the illegal.
unauthorized work stoppage. Applying that standard
~0 Similarly. in Precision (astings the union stewards who, were singled iiul
for discipline joined the existing picket line. and. as found h the Adminis-
trative Law Judge. "participated as pickets during the strike "
to the instant case the majorit3 concludes that inas-
much as L;nion Steward Picker "urged support o'
and "sought to induce" other employees to partici-
pate in the unauthorized, illegal work slowdown Re-
spondent did not violate the Act by singling out
Picker for discipline. Regardless of whether there is
an\ difference hetween "instigating" or "leading" an
unprotected work stoppage as opposed to "inducing
support o" or "seeking to induce" emploee partici-
pation in an unprotected slowdown (the majority
opinion seems to indicate that there is a difference).
the fact remains that the union stewkard in Gould. bhs
standing in front of the assembled emploeces and, in
the presence of management. urging the striking em-
ployees not to return to work, engaged in preciselb
the same tpe of conduct which the miatorit n(ow
finds to he unprotected. I amil aa total loss to under-
stand the glaring inconsistencies in the reasoning of
my colleagues in the manaority. 2'
I a further perplexed b, Chairman i-anning's
separate position in which he agrees that Union Stew-
ard Picker was lawfull, discharged. First, he states
that he is applying the same factual test to the instant
case as he applied in Gould and Precision C tings.
namely: "when the employer discharges a union
leader who has broken shop rules, the problem posed
is to determine whether the employer has acted
purely in disinterested defense of shop discipline or
has sought to damage employee organization." A
simple reading of both Gould and Preci.sion Casting.s
reveals that this was not the test that the majority, of
which Chairman Fanning was a part. applied in those
cases. There was no issue in either Gould or Precision
Casirnig ias to whether the stewards therein were disci-
plined tor breaking shop rules. Rather. the sole issue
decided in those cases as whether a union steward
could be singledl out for discipline for faliling to abide
by his contiractual responsibilities during an illegal,
1 Member Mlurph\ in fin 7 t the inl.lorit , opln. ind icaites th.i ni\
.ersiol," i Ihe tactl In ( ll , smehow innaccurite hctllle ith e. ard
in (;,ould never nstigatcd or led the Aork slpp.ge hbut rliher he te,.lrd
merely had a consersattin .ith a represenl.tvie ,t managlenent in the pres-
ence of emploees and did nt urge the srikers lt tIo return to1 iork i1l the
presence it management In mi, disse In (,irl. dis i .ell is Il t hls corncur-
nng opinlon. I indlcaled thal the slewa.rd n (;oihl, w hen iladlied 1I tihe
illegal, unauthorized wlork stoppage. stod n Ironl ol the alssemled mpl -
ees and stated that "we aren' going hback to work until ae tintd l ii hat',l
gling to happen (on the grieancel. Ihereh ItlLaking the stle.ard the ialtilal
leader of the rk sloppage He.eer. in proiding her o,, n ersion ot the
tacts in Goul, i.e.. th.at the te.ard mnierels engaged in :i con .erall , ith
management n the presence ot erploisces hilt did till Iurec silpprl t tlhe
work stoppage. Member Murph, ignires the totlls II1 tihe iWildx Ili .i
tiltns engaged in h the s otew3rd I- r. regardless ot helher the stcuard. Il
stlting thall he and the ther enploees would not return I wo rk. u s
speaking direcll ti mlanalgemen Iln the presenILtc I eillplox\es r tdirerll\ ,
emplobees in the presence ot llil.ligemcnt. the etlect on the enlplo\ ces .as
precisel) the ame. i e . hal the ste.rd as urging supportl t lind eCilcOll-
ing the etrnpllces nt to retlur to isrk ' hi should inot he li . i ith
reader. howe' er, 1is liha Ihe nla;llaorli I the illt.llt cisc ipplil 1 Ia eg.l ilan
dard which. had it een applied (uld .. il he ld , a dlltierlTi rilh
In (,uld
h601
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
unauthorized work stoppage. In addition, I specifi-
cally pointed out in my dissent in Gould that the ma-
jority, in finding an 8(a)(3) violation in both Gould
and Precision Castings, had failed to find that the dis-
charges had as their purpose the encouragement or
discouragement of union membership.22 Yet, in the
instant case, Chairman Fanning asserts that he ap-
plied a test in Gould and Precision Castings which
encompassed precisely such a legal determination.
Second, in applying his test to the facts of the instant
case Chairman Fanning has engaged in totally circu-
itous reasoning. He indicates that it is entirely proper
for Respondent to consider Union Steward Picker's
comments in a more serious manner than similar
comments made by rank-and-file employees because
an employee may view a certain comment as a threat
coming from a steward while "dismissing as banter
the same comment from an employee." In spite of
this finding Chairman Fanning concludes that "there
is no reason to believe [Picker's] different treatment
stemmed from her union status rather than the more
serious nature of her conduct." If Picker's union sta-
tus allowed Respondent to view her actions in a more
serious manner, how is it conceivably possible to con-
clude that Picker's union status played on part in her
discharge? Yet that is precisely what Chairman Fan-
ning has done in the instant case.
Although my colleagues in the majority and I are
in agreement that there is no violation in the instant
case, I am still very concerned by my colleague's re-
fusal to recognize that the effect caused by a union
steward who fails to urge employees who are engaged
in an illegal, unauthorized work stoppage to return to
work is no different from the effect caused by a union
steward who affirmatively instigates or leads an ille-
gal, unauthorized work stoppage. 3 Thus, I feel com-
pelled to reiterate the fears I expressed in Gould re-
garding the effect of the position of my colleagues in
the majority:
In my view, nothing is more repugnant to the
purposes and policies of the National Labor Re-
22237 NLRB at 887.
23 It appears to me that the more my colleagues attempt to distinguish the
instant case from Gould and Precision Castings the less distinguishable the
cases become. For Chairman Fanning now asserts that it is permissible for
an employer to evaluate the impact of an employee's words and actions on
other employees by taking into account the employee's status as a union
steward, which is precisely what I asserted in my dissent in Gould and which
is precisely the opposite from what Chairman Fanning, as a member of the
majority, said in Gould. Member Jenkins now finds it permissible for an
employer to single out a steward for greater discipline where the steward
merely "urges support of and seeks to induce employee participation in an
illegal, unauthorized work slowdown." which is precisely the factual situ-
ation in Gould Member Murphy simply finds no violation in the instant case
because "the steward here was disciaged for engaging in improper conduct in
direct violation of a contractual clause," which again is precisely the factual
situation in both Gouldand Precision Castings. In her view, it is "unnecessary
to extend or rely on or distinguish Gould "
lations Act than to see the sincere efforts of man-
agement and labor, in seeking a peaceful resolu-
tion of their disputes, wasted because of the
unwillingness of employee representatives to as-
sume the burdens which go hand-in-hand with
the benefits of union representation. When man-
agement and labor are forced to settle their dis-
putes through disruptions at the workplace
rather than through the orderly process of collec-
tive bargaining, we clearly fail in the goals de-
clared by Congress when it enacted the National
Labor Relations Act 43 years ago.
MEMBER TRUESDALE, concurring:
In agreement with my colleagues I find that Re-
spondent did not violate the Act when it disciplined
Union Steward Picker for urging a fellow employee to
slow down in violation of a contractual no-strike, no-
slowdown commitment. Accordingly. I concur in the
dismissal of the charges. However, my decision rests
on somewhat different grounds from those relied on
by my colleagues.
Unlike my colleagues I find no relevant distinction
between Picker's conduct in this case and the conduct
in Gould Corporation,24 in which I dissented in part.
In both cases the employees had already begun a
course of action contrary to the contractual commit-
ment when the steward became involved--a work
stoppage in Gould and a slowdown in the instant case.
In both cases the steward encouraged employees to
take actions contrary to the contractual commitment.
And in both cases the employees acted in accordance
with the stewards' suggestion. I would have dismissed
the 8(a)(3) allegations in Gould, and for the reasons
stated in my partial dissent 5 in that case I agree with
my colleagues' conclusions that the charges in this
case also should be dismissed.
24 237 NL RB 881 (1978).
2 I concurred in the finding in Gould that the respondent there had vio-
lated Sec. 8(aK4) of the Act by relying in part on the steward's earlier filing
of charges with various agencies. including the Board, when the decision was
made to discharge the steward.
DECISION
STATEMENT OF TllH CASIE
GEORt;E F. MCINERNY, Administrative Law Judge:
Upon a charge filed on September 8. 1978. by Local 160.
Leather Goods, Plastics and Novelty Workers Union,
AFL-CIO. herein referred to as the Union. the Acting Re-
gional Director for Region 14 of the National Labor Rela-
tions Board, herein referred to as the Board. on October 10.
1978, issued the complaint herein alleging that Midwest
Precision Castings Company. herein referred to as Respon-
dent or the Company, had violated Section 81a)( I) and (3)
of the National Labor Relations Act, as amended. herein
602
MIDWEST PRECISION CASTINGS COMPANY
referred to as the Act, by first discharging its employee.
Charlene Picker, and then converting her discharge into a
I-week layoff.' Respondent has denied the commission of
any unfair labor practices.
Pursuant to notice contained in the said complaint a
hearing was held before me in St. Louis, Missouri, on Octo-
ber 31, 1978, at which all parties were afforded the opportu-
nity to examine and cross-examine witnesses, to present
documentary and other evidence, and to argue orally. Fol-
lowing the close of the hearing Respondent and the General
Counsel submitted briefs which have been carefully consid-
ered.
Based upon the entire record, the briefs filed on behalf o'
the parties. and upon my observation of the demeanor of
the witnesses, I make the following:
FNI)INGS FA I
I. JRISI)I( IION
Respondent is a Missouri corporation engaged in the
manufacture of precision molds and parts and related prod-
ucts at its O'Fallon Missouri, location. During the ear
ending September 30, 1978, Respondent shipped products
valued at over $50.000 from its plant directly to points out-
side the State of Missouri. The complaint alleges,. the an-
swer admits, and I find that Respondent is an emploer
engaged in commerce within the meaning of Section 2(2).
(6). and (7) of the Act.
II. litE LABOR ()R(iANI/lIO()N INVOINH)
The complaint alleges. the answer admits, and I find that
Local 160, Leather Goods. Plastics and Novelty Workers
Union, AFL-CIO. is a labor organization within the mean-
ing of Section 2(5) of the Act.
liI. Till Al lFI(iEF) UNi AIR lABOR PRA(II( I:S
A. The Discharge of Charlene Picker
The facts in this case are clear and essentially undisput-
ed. Respondent has recognized and has been dealing with
the Union for some time. The current collective-bargaining
agreement between the parties contains a standard no-
strike no-slowdown clause, and. in addition, the Company
has a shop rule forbidding any form of work stoppage,
slowdown, or refusal to work under pain of immediate dis-
charge.
Sometime in August 1978 Shop Steward Charlene Picker
told another employee. Donna Allen. that: "All the girls are
mad at you. You better slow down. You are getting out too
many parts. Vve can't keep up with you," Picker testified
that she smiled when she said that, that it was said in a
spirit of fun, that this statement or similar statements were
common talk in the shop, and that she thought nothing of
it.
i On October 25, 1978. the Regional Director for Region 14 amended the
complaint by adding two instances which are alleged to consiltute violallons
of Sec. 8(a) l)of the Act.
Management, however, thought differently. The Com-
pany had been experiencing some financial losses and (;en-
eral Manager Vernon Rotert. who was appointed to that
position sometime around the first of the year 1978. was
engaged in finding ways to "make the Company more effi-
cient." There is some conflict in the testimony about how
Rotert found out about Picker's remarks to Allen, but it is
unnecessary for me to resolve that conflict. I find that
Picker made the statement. and that Rotert found out
about it.
On August 30. 1978. Rotert called Picker into his office
along with Foreman Don Stecker and confronted her with
the fact of the statement to Allen. Picker responded that
other employees did it all the time, and Rotert retorted
"Shop stewards can't joke about things like that."
Later that same day Picker. along with shop committee
member Carolyn Bicker, was again called into Rotert's of-
fice. and Rotert again stated. "Shop Stewards can't joke
around about things like that."' Picker was then discharged.
On September 6 a grievance meeting was held at the
Company's offices to discuss this discharge. Picker and
Donald .. Hayes, secretary-treasurer of lIocal 160. were
present for the Union. and Rotert and James S. Reid, the
Company's secretary-treasurer, were present for Respon-
dent. Hayes reiterated the fact that everyone joked about
slowdowns. Reid replied. "Eversone else isn't shop steward.
The shop steward can't go around joking like that."'
Picker's discharge was rescinded as a result of this meet-
ing and was converted to a 1-week la off. It was undenied
that no one else was disciplined fir the same sort of offense
befo)re or after this incident
B. na ,o/.iv tarid Conclu.ions
Respondent submitted evidence which tended to support
Rotert's testimony that productivity was unnaturally low in
the weeks prior to Picker's discharge and showed marked
improvement thereafter. I accept this as true. and I feel that
Respondent's motivations throughout were primarily di-
rected not against the Union as such or its officers hut
rather toward improvement in productivity.
Nonetheless, the disciplinary action taken pursuant to
this motivation, regardless of the motivation. resulted in
what I find to be an inevitable and impermissible interfer-
ence with the statutory rights of employees to participate In
union activities and to seek and hold union office. The rec-
ord shows clearly that Picker was singled out specifically for
discipline, and that disparate treatment was accorded her
not only because of the fict that she had urged another to
slow down' but also, by Respondent's own admissions, be-
2 Rolert denied that he had said this. but on cross-exlminaion he admit-
ted that he had told Picker and shop committee member ('arolsn Bicker that
a shop steward was to set an example and not make remarks like that (the
remarks Picker had made to Allen), to slow people dow n On the hasis of this
I find that Rotert had. in tact, told Picker that a stleward should set an
example and not joke about slowdowu ns
3 This was undenied by Reid who. while acting a;s Respisdent's represent-
atise or counsel during the hearing. did not lesil 5
4 Even in this regard Respondent h shosn disparate treatment of em-
ployees In the meeting between Rotert. Picker. and Bicker. this last em-
ployee who was also a member of Ihe Ulnion', shop conmitee. admitted that
she also had urged emplo)ees to soiv. down Bicker's casc was. reported by
( ontinuedi
603
DI)((ISIONS OF NATIONAI. LABOR REL.AIONS BOARI)
cause she was the shop steward, who was expected to ob-
serve higher standards than other employees.
In these circumstances this case comes within the rule
articulated by the Board in Precision Castings (Conrtpant.
etc.. 233 NLRB 183 (1977). to the effect that discrimination
directed against an employee on the basis of' her holding
union office is contrary to the plain meaning of Section
8(a)3) and would frustrate the policies of the Act if allowed
to continue. See also Owens Corning Fiberglas Co.. 216
NLRB 479 (1978): Gould Corporation. 237 NI.RB 881
(1978). to the same effect.'
The cases cited by Respondent in its brief have been
carefully considered. LTI' Electroslstents. nc.. 169 NLRB
532 (1968). seems to hold contrary to Respondent's position
in the instant case but together with alley City Furniture
Co., 110 NLRB 1589 (1954). is not really on point. General
Electric Conompany, 155 NLRB 208 (No. 24. incorrectly cited
in Respondent's brief as No. 14) is on point but is of doubt-
ful vitality in the light of the Board's later decisions in Pre-
cision Castings, Owens Corning and Gould. supra. Chn'sler
Corporation, Dodge Truck Plant, 232 NLRB 466 (1977)., is
distinguishable on the grounds that the evidence in that
case showed that the steward had led a work stoppage but
was not singled out for disciplinary action because of his
stewardship. The last case cited by Respondent, Airco, Inc.,
14-CA-7201 (1973), was unable to find in published vol-
umes of Board decisions. In any event, if its holding was
contrary to the Precision Castings line of cases it must have
been, at least impliedly, overruled.
Thus I find, in agreement with the General Counsel, that
Respondent, by stating to employees on August 30 and on
September 6 through its agents Vernon Rotert and James S.
Reid, that Picker, because of her position as shop steward,
was held to a higher or different standard than other em-
ployees, violated Section 8(a)(1) on each occasion. Finally,
Rotert as still under investigation on the day of the heanng. 3 months and I
day later. Two other employees, Blevins and Nesbit, were suspected of slow-
ing down, but nothing was done about them either.
Although Member Penelto's dissent in Gould would seem to support Re-
spondent's position here, I must be guided by the majority opinion of the
Board.
by disciplining Picker for violation of this higher standard
Respondent violated Section 8(a)(3) of the Act.
IV. ti T RME)Y
Hlaving found that Respondent has engaged in certain
unfair labor practices I shall recommend that it be ordered
to cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act.
Hlaving found that Respondent first discharged Charlene
Picker and then converted that discharge to a I-week layoff
I shall recommend that Respondent be ordered to make her
whole for any loss of earnings and loss of benefits resulting
from her discharge and/or layoff by payment to her of a
sum of money equal to the amount she normally would
have earned as wages and other benefits from the date of
her discharge to the date of her reinstatement, less net earn-
ings during that period. The amount of backpay shall be
computed in the manner set forth in F. W. Woolworth Com-
pany', 90 NLRB 289 (1950), with interest thereon to be com-
puted in the manner prescribed in Florida Steel Corpora-
tion, 231 NLRB 651 (1977).6
CON(CLUSIONS o1 LAW
I. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. Respondent violated Section 8(a)(1) of the Act by sin-
gling out Charlene Picker, a shop steward for the Union. for
disparate treatment by holding her to a higher standard of
conduct than other employees on two occasions, August 30
and September 6, 1978.
4. Respondent violated Section 8(a)(3) and () by first
discharging Charlene Picker and then converting that dis-
charge to I-week layoff because of her position as shop
steward.
5. These unfair labor practices are unfair labor practices
affecting commerce within the meaning of Section 2(6) and
(7) of the Act.
[Recommended Order omitted from publication.]
See. generally. Is Plumbing & Heating (o. 138 NLRB 716 (1962).
604