226 N.L.R.B. 397 (N.L.R.B. 1976)

Nissan Motor Corp. in U.S.A.

National Labor Relations Board - Board DecisionsOct 14, 1976

226 N.L.R.B. 397 (N.L.R.B. 1976)

NISSAN MOTOR CORPORATION Nissan Motor Corporation in U.S.A. and Local 492, United Automobile, Aerospace and Agricultural Im- plement Workers of America (UAW). Case 36- CA-2781 October 14, 1976 DECISION AND ORDER .By CHAIRMAN MURPHY AND MEMBERS FANNING AND JENKINS On June 2, 1976, Administrative Law Judge David G. Heilbrun issued the attached Decision in this pro- ceeding. Thereafter, Respondent filed exceptions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings,' and conclusions of the Administrative Law Judge and to adopt his recommended Order, as herein modified .2 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge as modified below and hereby orders that the Respondent, Nis- san Motor Corporation in U.S.A., Portland, Oregon, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, as modified: 1. In paragraph 1(b) substitute the words "In any other manner" for "In any like or related manner." 2. Substitute the attached notice for that of the Administrative Law Judge. i We agree with the Administrative Law Judge that this case is not appro- priate for deferral to arbitration. Members Fanning and Jenkins would not in any event defer to arbitration in this proceeding for the reasons set forth in their dissents in Collyer Insulated Wire, A Gulf and Western Systems Co, 192 NLRB 837 (1971), and subsequent cases Chairman Murphy'agrees with the Administrative Law Judge that "the very nature of this case dictates nondeferral" inasmuch as it involves discipline of a steward in reprisal for his grievance activities, and thus under any view of Collyer Insulated Wire would not be subject to deferral Joseph T. Ryerson & Sons, Inc, 199 NLRB 461 (1972), and cases cited in fn. 12 of the decision of the Administrative Law Judge. 2 In par 1(b) of his recommended order, the Administrative Law Judge uses the narrow cease-and-desist language, "like or related," rather than the broad injunctive language, "In any other manner," the Board traditionally provides in cases involving serious 8(a)(3) discrimination conduct, such as that found here. See Springfield Dodge, Inc, 218 NLRB, 1429, In. 2 (1975) Accordingly, we shall modify the Order to, require Respondent to cease and desist from in any other manner infringing upon employee rights APPENDIX 397 NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT suspend or otherwise discrimi- nate against any union committeeman in retalia- tion for his legitimate activity while processing employee complaints or grievances pursuant to the terms of the collective-bargaining agreement between us and Local 492, United Automobile, Aerospace and Agricultural Implement Workers of America (UAW). WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of rights protected under the National Labor Relations Act. WE WILL pay Dale Ballou his loss of earnings with interest while suspended during October 1975. NISSAN MOTOR CORPORATION IN U.S.A. DECISION STATEMENT OF THE CASE DAVID G. HEILBRUN, Administrative Law Judge: This case was heard at Portland, Oregon, on February 12, 1976, based on a charge filed I on October 2 (amended on No- vember 5), and complaint issued on November 25 alleging that Nissan Motor Corporation in U.S.A., called Respon- dent, violated Section 8(a)(1) and (3) of the National Labor Relations Act, as amended, by suspending committeeman Dale Ballou in retaliation for activities his own and other persons) of processing employee complaints or grievances pursuant to the collective-bargaining agreement between Respondent and Local 492, United Automobile, Aero- space and Agricultural Implement Workers of America (UAW), called the Union. Upon the entire record in this case, including my obser- vation of the witnesses, and upon consideration of General Counsel's oral argument and Respondent's brief, I make the following: FINDINGS OF FACT I THE BUSINESS OF RESPONDENT AND THE LABOR ORGANIZATION INVOLVED Respondent, a corporation, distributes Datsun automo- biles, parts, and accessories from a facility located in Port- 1 All dates and named months hereafter are in 1975, unless indicated otherwise 226 NLRB No. 56 398 DECISIONS OF NATIONAL LABOR RELATIONS BOARD land, Oregon . It annually sells products valued in excess of $50,000 and ships them to points outside Oregon. I find Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act and that the Union is a labor organization within the meaning of Sec- tion 2(5). II. THE ALLEGED UNFAIR LABOR PRACTICES Facts and Discussion The current collective-bargaining agreement was reached between the parties in April following a 3-month strike. Its provisions include those for "Union Agent Visit- ation," "Work Schedule" (relative to overtime staffing), "Temporary Employees and Subcontract Services," 2 "Grievance- Procedure" (covering "any controversy, dis- pute or disagreement [arising] out of the interpretation or application of the provisions of this agreement" for which the "employee or his committeeman shall first attempt to resolve the issue with his immediate supervisor within [2] two working days of the date of the alleged violation"), "Arbitration" (under Federal Mediation and Conciliation Service auspices) and "Discharge and Discipline" (prohib- ited as to regular employees "without good or sufficient cause" and requiring written notice at "the time of the dis- charge, suspension, or reprimand" action). Also, a "com- mitteeman" (shop) is contemplated with express entitle- ment that such person may "attend formal grievance meetings" and "will be permitted a combined total maxi- mum of two (2) hours per week to investigate, adjust, pre- pare, etc., potential or actual grievances." 3 Dale Ballou had been committeeman 4 years in which time 25-30 grievances were filed. Of this total 12 arose in wasting during the period April through September. On September 22 the parties met with Ballou and William Hines, local president, both in attendance relative to a pending grievance concerning Respondent's utilization of temporary employees. The meeting had been arranged by Leslie Kelly, regional administrative manager, in "an effort to put the issue [use of temporaries] to bed once and for all.,, 4 The word "petty" was introduced by Kelly and 2 The complete language on this subject , appearing in the contract as art III, Sec S., is Whenever situations apse that require temporary additions to the work force, management may secure temporary employees from a sub- contractor. Such temporary employees, unlike probationary employees, shall not be subject to other conditions in this agreement. No tempo- rary employees shall be hired for a period to exceed ninety (90) days. No permanent employee shall be laid off while a temporary employee is employed, nor shall temporary employees be used to fill any regular job opening not to exceed ninety (90) days, except when a regular employee is unable to work due to disability, vacation or leave of ab- sence Subcontract employees may be utilized to a maximum of twenty-four hundred (2400) man hours per calendar year for assignments during the regular work week. NISSAN shall be able to use subcontract labor without restriction for overtime assignments , provided the procedures contained in Article III, Section G-Work Schedule are observed 3 Art. VI-General Provisions, Sec N Separate contract language alludes to the committeeman 's (or alternate) function in terms of grievance proce- dure, weekly meetings with management , and shift representation picked up by Ballou in the sense of disclaiming such a trait, but nevertheless promising to pursue any "contract viola- tion . . . through the grievance procedure." On September 24, Ballou formalized the grievance of Don Hambrick, al- ternate committeeman, claiming discriminatory harass- ment on the basis of race and union activities. This charge had festered since early September and Lloyd (Bud) Hop- kins, warehouse supervisor, testified that during the meet- ing of September 22 union representatives, including Hines, "floored" him with this accusation. Kelly_ had probed internally whether any truth attached to the claim and by September 24 was satisfied it did not.5 On September 27 (a Saturday) Respondent scheduled 5 regular employees for overtime work and utilized an addi- tional 20 persons as temporaries. Bryon Tolle was the tem- porarily designated committeeman for the day. Early that morning a regular employee working this overtime shift telephoned Ballou at home, urging that he appear and challenge Respondent's use of temporaries in this manner. Ballou' agreed to and arrived about 9:30 a.m. He spoke first with Hopkins in terms' of a first-step grievance respecting the situation, adding that he wanted to "pull the men" from the floor. In rapid succession Ballou then spoke pro- testingly with Northrup, Crouch, and Kelly. He was ad- vised that Tolle did not oppose the configuration of em- ployees and that pulling men would be construed as a "work stoppage." Ballou retired to the Union's upstairs of- fice space, attempting to reach Hines. When unable to do so, he spoke by telephone with a California-based interna- tional representative. Subsequently on September 29 Hines filed a written grievance for general "contract violations" asserting that Respondent was refusing to replace quits, thus causing "a overload." While this' was occurring Ballou approached Hopkins early that morning and clainied his 2 hours' "union time" for the week relative to grieving use of tem- poraries the prior Saturday. Later in the day Ballou sought additional "time off the clock that the Union would pay me for." Hopkins checked with Northrup and Ballou was denied this additional time, a decision grieved in writing later that day. By morning on September 30 Ballou had learned of a suspension against employee Dan Distler. Upon arriving at 4 Ballou had persistently contended, through written grievances and ver- bal protest to supervisors , that Respondent's practice in this regard was improper in terms of "intent that was said across to me in negotiations " His belief was that Respondent 's failure to replace three persons who quit dur- ing the strike cast impropriety on the practice of often routinely "bringing in" temporaries 5 The subject escalated when Kelly wrote Hines on September 25, criticiz- ing him for utterances inimitable with the contract 's preamble in which "harmonious relationship . . stability and prosperity" of and between the parties appears as a basic purpose 6Employees at the warehouse premises involved are supervised directly by Hopkins who reports to Burt Northrup, parts depot manager A bargain- ing unit of Respondent 's office employees is covered by separate contract Both the warehouse and office units are part of amalgamated Local 492 and some joint action occurs between them in respect to dealing with Respon- dent As a matter of line authority Jesse Crouch , regional parts manager, is in overall charge of the facility (Kelly reports to National Industrial Rela- tions Manager Ron Cabibi, a person located elsewhere) It is undisputed that September 30 ends Respondent 's fiscal year and this final week of September was its busiest from the standpoint of sales and warehouse oper- ations. NISSAN MOTOR CORPORATION work Ballow approached Hopkins, saying he had instructed Distler to appear that morning concerning this disciplinary action and he (Ballou) claimedthe right under article VII to see him.' Ballou testified that Hopkins said-he "was out of union business time and that I could not represent [Dist- ler]," an answer that immediately stimulated another writ- ten grievance! As to this request, Hopkins testified that he suggested Ballou use "a break, lunch hour or after work" for the purpose. - - - The parties met during the afternoon of October 1 on grievance matters. The earlier Hambrick grievance re- ceived third-step discussion and the fresh Distler grievance was advanced to that level. Before the meeting ended Kelly alluded to an earlier "warning" of Ballou and advised him an immediate 5-day suspension was in effect. Ballou promptly left the warehouse. He received confirmation of this action by telegram at his home that night. After this meeting had progressed for about an hour, - Kelly de- termined (having given it "some thought prior") to suspend Ballou . His verbatim testimony was: My reasons for suspending Mr. Ballou was that he had made threats to harass the company, he had filed a repetitive grievance over the issue of temporary em- ployees, a grievance which had already been resolved previously by a grievance which was withdrawn, and he had filed a grievance without facts, namely, the racial discrimination grievance, and he abused the grievance procedure and abused his office and respon- sibility to uphold the contract and the terms within. He was very-or, he threatened a work stoppage on September 27, he was very disrespectful of Mr. Cabibi, the national industrial relations manager, and he gen- erally abused his office and responsibility. Ballou 's suspension was grieved the next day and the matter promptly groomed for arbitration. On October 30 FMCS (having docketed the case as 76K06026) submit- ted a panel of seven' arbitrators to the, parties for selec- tion. Before this was done Ballou withdrew his grievance based on an international representative's advice that the matter be pursued exclusively as a statutory unfair labor practice? On these facts Respondent advances the threshold con- tention that an appropriate case for deferral under Collyer Insulated Wire, 192 NLRB 837 (1971), has been estab- lished. This direction is pressed' based on presence of a "specific provision" in the contract, procedural ripeness for arbitration, and Respondent's willingness to waive any timeliness objection so that arbitral action may conclude. 7 This provides, in relevant part, that a "discharged or suspended employ- ee may [if he desires] contact a committeeman before leaving the ware- house." 8 This grievance, the one dated "September 29" on the same general point (both signed by Ballou as aggrieved and countersigned by Hines as commit- teeman), Hines' general "contract violation" grievance, and a fourth one filed by Hines on behalf of employee Jacalyn Crawford are all marked as received by Northrup on September 30 at 2 55 p.m A separate grievance concerning Distler's- suspension was written by Hines on September 30 and is marked as received' by Northrup on October I at 1 40 p.m 9 Respondent desires that this matter be resolved in arbitration, and ex- pressly so stipulated at the hearing, with waiver of procedural time limits (referred to hyperbolically in the contract as "a statute of limitations") 399 Evaluation under Collyer focuses first on whether a "contract and its meaning ... lie at the center of [the] dispute." Here any basic prohibition against "discriminato- ry layoff" on account of union activities is found obliquely; only by associating the subject (of "disciplinary layoff cases") to an "arbitrator's authority" and leaving for coun- tervailing weight the thoroughly comprehensive, expressly detailed "management rights" which provides, as typically so in a strong (or "residualist") 10 clause of this type, for exclusive vesting of many "expressly [but not to limit] rec- ognized rights" including that of directing the working forces through -"suspension [or] discharge." Significantly, however, the management rights clause also provides that it not be construed or exercised "[I]n contravention of the rights of . . . any employee . . . under state ar federal law" (emphasis supplied). Also the touchstone, on which Re- spondent argues that deferral is appropriate„_the contractu- al prohibition against "discharge or [to] discriminate .. . with respect to . . . union activities" (emphasis supplied), is housed under the contractual heading "Equal Opportunity Provision." These observations contrast greatly with lan- guage in National Radio Co., Inc., 198 NLRB 527 (1972), dealing with management rights, the violation of which was expressly "subject to the grievance procedure" plus article XIV plainly according stewards the'right of "free move- ment within the plant area for which they are responsible" and in the later case of Todd Shipyards Corporation, 203 NLRB 114 (1973), where an independent contract article entitled, "Discrimination and Union Activities" provided: The Company will not in any way discriminate against any employee or group of employees for presenting any complaint, dispute or grievance to their Foreman, Shop Steward, craft committeeman, or the Personnel Director in the manner provided by this agreement.) l Further, the language of the bargaining agreement in Unit- ed States Postal Service, 210 NLRB 560 (1974), quoted or paraphrased below, influenced a course of reasoning which the Board adopted as showing "[T]hat the contract does provide for a means of resolving the alleged 8(a)(1) viola- tions and that they are, therefore, cognizable under the terms of the collective-bargaining agreement", thus war- ranting Collyer deferral: Article XVI .... No employee may be disciplined or discharged ex- cept for just cause such as, but not limited to, insubor- dination, pilferage, intoxication (drugs or alcohol), in- competence, failure to perform work as requested, violation of the terms of this agreement, or failure to observe safety rules and regulations. Any such disci- pline or discharge shall be subject to the grievance arbi- tration procedure provided for in this agreement, which 0 Harold W. Davey, "Contemporary Collective Bargaining," 3d ed, N.J Prentice-Hall, Inc (1972), pp 107-108 ii The issue in Todd was whether an alleged 8(a)(i) violation based on threat of physical abuse directed by agents of Respondent toward a union steward should be deferred to arbitration on the basis of the above-quoted language, read in connection with an art XXV of the same agreement pro- viding, in relevant part, that "no person shall hold the office of shop steward unless he be an employee of the Company in the craft which he represents " 400 DECISIONS OF NATIONAL LABOR RELATIONS BOARD could result in reinstatement and restitution , including backpay. The balance of the section is concerned with the various types of discipline which the Employer may impose pur- suant to the contract terms depending on the type of mis- conduct with which an individual employee may be charged. Article XVII, representation, provides that stewards may be designated for the purpose of presenting and adjusting grievances . That article also provides the number of stew- ards which can be appointed in accordance with the num- ber of employees engaged at each Post Office or subdivi- sion thereof. The article also sets forth the rights of the steward to represent employees during working hours and to present grievances at that time. The foregoing recited paragraphs of the national collec- tive-bargaining agreement represent the contractual con- text under which the alleged unfair labor practices herein arose. It would be unwise to posit a Collyer deferral on the insufficient language of Respondent's contract; but be- yond that the'very nature of this case dictates nondeferral. As a doctrine, Coltyer peaked with its extension to 8(a)(3) cases in National Radio, supra, United Aircraft Corporation, 204 NLRB 879 (1973), and application to Section 8(a)(1) in Todd, supra. The Board's more recent decision to defer in U. S. Postal Service, supra, is illusory, since the rationale adopted there (by the majority) "considered the fact that [the' steward's] suspension was settled and [he] has been paid the earnings he lost during his 3-day suspension and that this was accomplished outside of the grievance and arbitration procedures of the contract." As the thrust of Collyer weakened, another series of decisions have force- fully taught that conduct such as is alleged here gives rise to considerations that are not properly within the arbitral pale. In Joseph T. Ryerson & Sons, Inc., 199 NLRB 461 (1972), the Board (Members Fanning and Jenkins dissent- ing based on their continued opposition to Collyer) de- termined to exercise its jurisdiction in "protection of statu- tory rights" relative to whether (holding on the facts,it did not) an utterance constituted a threat of reprisal against a union official, "for his participation in the grievance proce- dure." More sophisticated analysis was employed in the subsequent North Shore, Southwestern Bell, Morrison-Knud- sen and U.S. Postal Service (another) cases 12 from which, 12 North Shore Publishing Co., 206 NLRB 42 (1973), Southwestern Bell Telephone Company, 212 NLRB 43 (1974), Morrison-Knudsen Company, Inc, 213 NLRB 280 (1974) and United States Postal Service, 215 NLRB 488 (1974), respectively North Shore involved a rank-and-file employee, while Southwestern Bell is colored by the employer's contention that grievance entitlement had been forfeited. Morrison-Knudsen is the most significant articulation of the point, although this US Postal Service case is also quite germane . It was decided on multiple grounds that contract language left uncertain whether the alleged discrimmatee could maintain a breach of the collective-bargaining agreement had occurred, that deferral would other- wise nevertheless be inappropriate since action "[Iln a manner which im- pedes or otherwise prevents a duly authorized representative from utilizing the established grievance procedure frustrates the very policy for which the procedure was established [and when, as here] it is argued that this proce- dure is, in effect, an adjunct of the collective-bargaining agreement's griev- ance and arbitration provisions with adverse actions under the one being cognizable under the other, such an impediment strikes at the very founda- tion of the grievance and arbitration mechanism and is and of itself grounds as most applicable here, the principle was forged that dis- crimination against a union steward for grievance-related activities "[S]trikes at the foundation of that grievance and arbitration mechanism on which we have relied in the for- mulation of our Collyer doctrine." Current decisional law is not disposed towards deferral here and I emphatically de- cline to so recommend.13 for a refusal to defer," and that , finally, reasonable doubt was present whether substantial harmony of interest existed between the alleged dis- crimmatee and his collective-bargaining representative i3 Respondent asserts that arbitrators in many cases have considered "is- sues similar to these presented in the instant case ," citing Portable Products Corp, 9 LA 765, Bethlehem Pacific Coast Steel Corp, 28 LA 369, Chrysler Corp, 32 LA 719, Singer-Fidelity, Inc., 64-1 ARB ¶8376, Thiokol Chemical Corporation, Huntsville Division, 69-2 ARB ¶8705; and Pitman Manufactur- ing Company, 69-2 ARB ¶8807 It is well to note this is so, however the effect of modem, prearbitral Collyer deferral largely reduces such decisions only to academic interest Portable Products and Bethlehem Pacific are each readily distinguishable on their facts, while Pitman involved discharge of an employee who continuously complained of harassment and discrimination to the point that "reasonable basis" (satisfactory to the arbitrator as a mat- ter of abstract persuasion) existed for his discharge. In Singer-Fidelity the discharge of a steward was upheld and his grievance denied on "rule of reason" based on "a combination of behavior patterns," including an "ap- parently calculated campaign of harassment against Company officials" which far exceeded "the reasonable, permissible limits of a steward's behav- ior within a factory " The same general rationale applied in Thiokol Chemi- cal, in which "just cause" for discharge was found. In Chrysler Corp the arbitration chairman found a "grievance was baseless and that Chief Stew- ard Y-was guilty of most improper activities in connection with the griev- ance " The applicable contract had a general "Purpose and Intent" pream- ble with promotion of "orderly and peaceful labor relations" and encouragement to the "fullest degree friendly and cooperative relations be- tween their (Corporation and the Union) respective representatives at all levels." Further, a section 18, "Abuse of the Procedure," provided that "management in a plant may present to the secretary of the local union as grievances any abuses of the grievance procedure by the Union, its Chief Stewards, its Plant Shop Committeemen, its Local Union officers, or other representatives or members of the Union " Authoritative writing in this area suggests the freewheeling discretion ex- ercised by arbitrators in their quasi-adjudicatory function. This authority contrasts sharply with finely differentiating evaluation of matters cognizable under Sec. 7 and 8 of the Act Through widely read publications this less disciplined reasoning process, clearly legitimate in the forum of privately created dispute (grievance) settlement procedure, elevates to the level of dogma Thus, respecting "that unordinary contract called a collective bar- gaining agreement," it is asserted. Arbitrators have in fact, imposed their own ideas of equitable and con- structive labor relations on the parties [through the exercise of] creative action which `invites inquiry beyond the often futile or artificial search for non-existent intent and encourages explicit consideration of such factors as the purposes of the parties and the institutional needs of collective bargaining , justice and fairness between the parties , the inter- ests of third parties, and the public interest' James A. Gross, "The Labor Arbitrator's Role. Tradition and Change," The Arbitration Jour- nal, 25. 221 at 232 (1970) An unworthy passage of Respondent's brief "direct[s] attention to J. B Suedri, d/b/a Northside Electric Company, 151 NLRB 34, as to claimed affirmance of certain language appearing in the Trial Examiner's Decision as published on p. 42 The language then quoted in Respondent's brief is actually dicta, as the Administrative Law Judge (then Trial Examiner) ex- pressly found it "clear from all the evidence in this case that [Charging Party] was discharged for neglecting his work as an employee of the Re- spondent-not for the purpose of discouraging membership in the Union." More significantly, and directly at odds with the representation of Respon- dent's brief, the Board declined to affirm this language by footnoting its customary phraseology as follows In adopting the finding that [Charging Party] was discharged for cause, and not in violation of the Act, we do not rely upon the Trial Examiner's analysis and conclusions with respect to the effect of the existing contract grievance procedure and its utilization. This degree of imprecision in briefing a case is to be avoided for obvious reasons NISSAN MOTOR CORPORATION 401 Examination of the merits here makes obvious that Re- spondent precipitately effected an unjustified retaliation against Ballou for his role in the contractual grievance pro- cedure. This action was punitive in nature and petulant in origin. Respondent has taken ordinary collective-bargain- ing discourse and sought to extract from it some sinister meaning. It arrogated to itself the presumed authority to judge validity of grievance content and to retaliate against the individual most associated with those it found dismay- ing. This is erroneous in principle and here violative in law. Grievance procedure is a mechanism for overall contract administration, a most basic function of collective bargain- ing. While some limits do obtain, Respondent's case falls woefully short of establishing that any breach of such lim- its occurred. As to background the insignificant vulgarism toward Cabibi occurred in June, far removed in time from the dynamics of actual September grievances, and the Sep- tember 22 disdain Kelly found so annoying is routine con- versational bruising as this occurs in a labor relations con- text. Cf. Jos. T. Ryerson, supra, 199 NLRB at 464. Assuming, further, that a threat of excessive grievances on June 30 and the "petty"/pettiness exchange of September 22 showed an eagerness to challenge management, no showing is present that such a course was truly followed. While a rapid succession of grievances (plus Ballou's actual or desired time off work to further them) inconvenienced Respondent, the resulting exasperation cannot be allowed to cripple duly negotiated provisions of the contract. A mere dozen grievances over 6 months' time, the showing that most were dropped, the flurry just before fiscal year- end and a situation of only one being in arbitration are, collectively taken, matters that absolutely fail to show abuse of position by Ballou.14 Actually this discussion skirts the operative episode. What really happened was that Kelly became uncontrollably annoyed over repeated press- ing of the issue on temporaries (a matter he considered unassailable under the arithmetical 2,400 hour leeway) 15 and over the Union's failure, in his view, of making a con- vincing case for' Hambrick on the delicate subject of racial (if not union) discrimination. 16 On both points his reaction was rigidly oriented only to Respondent's position, a luxu- ry he was entitled to talk about extensively but which he could not act upon as was done. l7 Ballou's abrupt suspen- 14 Charles Meyers & Company, 190 NLRB 448 (1971), cited by Respon- dent, is readily distinguishable as one recognizing an employer's "right to maintain order and respect" where a union committeeman had carried out duties "in a [taunting] fashion which unnecessarily disrupted operations at the plant." In this regard I note that on September 27 Ballou's agitated remark about "pulling" men was not carried further, nor did Respondent (through Kelly) view it as a serious matter at the time. 15 Cf. Hugo Neu-Proler Co, 50 LA 1270 (L. Bailer), involved the fact that during negotiations the union failed in its effort to obtain an express provi- sion barring the subcontracting of any work without the union's consent The arbitrator held that notwithstanding silence in such regard it did not mean that no "implied limitation" on subcontracting remained and that management's action was "arbitrary or unreasonable" as to continue sub- contracting of certain hauling work. The arbitral disposition was that a truckdriver deprived of overtime work under such circumstances had 'a mer- itorious grievance 16 Cross-examination revealed that "material[s]" raised by the Union re- garding Hambrick's treatment were, at the very least, valid components of an inferentially based conclusion to be made on the grievance 7 My reasoning is not meant to generally commend Ballou's style of Sion was pure retaliation, an action correctly viewed by General Counsel as unlawfully impeding a union commit- teeman in the exercise of proper stewardship functions. See State Mechanical Constructors, Inc., 191 NLRB 393 (1971); Chatham Manufacturing Company, Inc., 221 NLRB 760 (1976). I render a conclusion of law that Respondent, by suspending Dale Ballou in retaliation for processing em- ployee complaints or grievances pursuant to the terms of its collective-bargaining agreement with the Union, has en- gaged in unfair labor practices affecting commerce within the meaning of Section 8(a)(1) and (3) and Section 2(6) and (7) of the Act. Accordingly, I recommend that Respondent cease and desist therefrom, that it make whole Dale Ballou with backpay computed as provided in F. W. Woolworth Company, 90 NLRB 2&9 (1950), and Isis Plumbing & Heat- ing Co., 138 NLRB 716 (1962), and appropriately post a notice. Upon the foregoing findings of fact, conclusion of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER 18 Respondent, Nissan Motor Corporation in U.S.A., Port- land, Oregon, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Suspending or in any other manner discriminating against a union committeeman in retaliation for legitimate activities pertaining to processing employee complaints or grievances pursuant to the terms of its collective-bargain- ing agreement with the Union. (b) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action necessary to ef- fectuate the policies of the Act. (a) Make whole Dale Ballou for any loss of earnings he may have suffered while suspended during October in the manner set forth in this Decision. (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all pay- roll records, social security payment records, timecards, personnel records and reports, and all other records neces- sary to analyze the amount of backpay due under the terms of this Order. (c) Post at its Portland, Oregon, warehouse copies of the attached notice marked "Appendix." 19 Copies of said no- tice, on forms provided by the Regional Director for Re- conduct while formerly functioning as committeeman, nor to find that he exhibited mature judgment in exercising the authority to grieve. 18 In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. 19 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 Baord" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." 402 DECISIONS OF NATIONAL LABOR RELATIONS BOARD gion 19, after being duly signed by Respondent's author- be taken by Respondent to ensure that such notices are not ized representative, shall be conspicuously posted by it im- altered, defaced, or covered by any other material. mediately upon receipt and be maintained for 60 consecu- (d) Notify,the Regional Director, in writing, within 20 tive days thereafter, including all places where notices to days from the date of this, Order, what steps have been employees are customarily posted. Reasonable steps shall taken to comply herewith.