Nugent Service, Inc.

National Labor Relations Board - Board Decisions

Nov 9, 1973

207 N.L.R.B. 158 (N.L.R.B. 1973)

158 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Nugent Service, Inc. and Lawrence D. Vellani . Case observation of the witnesses and their demeanor, I make
9-CA-7594 the following:
November 9, 1973
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND JENKINS
On June 25, 1973, Administrative Law Judge
Milton Janus issued the attached Decision in this
proceeding. Thereafter, the General Counsel filed
exceptions and a supporting brief and Respondent
filed an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, findings,
and conclusions of the Administrative Law Judge
and to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the complaint be, and it hereby is,
dismissed in its entirety.
DECISION
STATEMENT OF THE CASE
MILTON JANUS, Administrative Law Judge: The General
Counsel issued his complaint in this proceeding on April
19, 1973, after a charge and an amended charge filed by
Lawrence D. Vellani on February 15, and April 12, 1973,
respectively. The complaint alleges that the Respondent
(Nugent or the Company) violated Section 8(a)(1) by
discharging Vellani, on January 4, 1973, for engaging in
protected concerted activity. The testimony introduced on
behalf of the General Counsel was intended to show that
the Company discharged Vellani because it disapproved of
his active electioneering for a slate of union officers in an
intraunion campaign, while the Company's evidence was
intended to show that it discharged him for insubordina-
tion arising out of his efforts to post partisan campaign
material on company bulletin boards, after being instruct-
ed by supervisors to stop.
I held a hearing in this matter on May 16, 1973, in
Columbus, Ohio, at which all parties were represented.
Briefs have been received from the General Counsel and
the Respondent, which I have duly considered.
Upon the entire record in the case, including my
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
Respondent, an Illinois corporation with its principal
place of business located at Chicago, Illinois, is engaged in
providing contract labor services at various locations
throughout the United States. At Columbus, Ohio, the only
operation involved in this proceeding, it provides loading,
unloading, and checking services at a shipping terminal
owned by Terminal Freight Cooperative Association.
During a representative 12-month period, Respondent
performed services, in the course and conduct of its
business operations, valued in excess of $50,000, for
customers located outside the State of Illinois.
Respondent admits, and I find, that it is an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Brotherhood of Railway , Airline and Steamship
Clerks, Freight Handlers , Express and Station Employees
Union, AFL-CIO, hereinafter called the Union , is a labor
organization within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
The Company began supplying contract labor at the
Columbus freight terminal in the spring of 1972. It now
employs over 100 loaders and checkers on a three-shift
operation . It has a 3-year collective-bargaining agreement
with the Union which became effective in August 1972.
On September 17, 1972, the Union held its first election
of officers from among its members employed in the unit.
Among those elected were Alva Hanners as local chairman
of the Protective Committee (in effect , chief steward) and
Lawrence Vellani, the charging party here, as one of the
two committeemen for the third shift . Committeemen
assist the local chairman in the filing of grievances and
policing the contract.
Within a month or so , some employees , mainly on the
third shift , became dissatisfied with the conduct of the
newly elected officers , and also questioned the legality of
the election under the Union's constitution. By the time of
the November meeting, scheduled for the second Sunday
of the month , protest had sufficiently crystallized so that a
group of approximately 50 men met just before the
scheduled meeting to plan a course of action to be taken
there . The caucus was chaired by Vellani and another
union member, Bill Frick. Vellani presented a resolution
setting out reasons why the September election should be
set aside and new officers be chosen . A second resolution
petitioning for the immediate recall of Hanners from his
position as local chairman was also introduced by Vellani.
It accused Hanners of specific instances of malfeasance
and of disregarding the terms of the contract , but noted
that it was not intended as a reflection on his character,
207 NLRB No. 14
NUGENT SERVICE, INC. 159
integrity, or sincerity. The caucus adopted both resolu-
tions.
The caucus then adjourned and proceeded to attend the
regularly scheduled meeting, over which Hanners was to
preside. Before that meeting began, Vellani and another
member showed Hanners the two resolutions which the
caucus had just adopted. Harmers said he thought the
September election had been conducted legally, and saw
no reason to hold a new election. According to Vellani,
Harmers was also quite indignant at the petition to recall
him, saying that he would continue to carry out his office
to the best of his abilities, and that the objections to him
were being raised by a handful of agitators who were trying
to stir up trouble.
Vellani left the meeting early but testified that he had
heard from others that the union officers would not allow a
vote to be taken on the resolution for a new election,
claiming that the International would have to decide it. In
any event, the International did rule shortly after the
November meeting that the September election of officers
should be set aside, that nominations for new officers
should be made at the December meeting, and that the
election be conducted at the January meeting.
At the December meeting, a self-styled "Reform Slate"
of officers was nominated by the group which had been
active in seeking a new election . Vellani was nominated for
vice president in opposition to the incumbent, while Frick,
also a member of the reform group, was nominated to run
for local chairman in opposition to the incumbent,
Hanners. Keith Cupp, also an active member of the reform
group, was nominated for president without opposition, so
that his election was secure.
Vellaani and Frick, after discussions with other candi-
dates of the "Reform Slate," drafted a statement of the
principles the group stood for (G.C. Exh. 2); Vellani also
prepared biographical material and qualifications of those
running on the reform slate, to which was attached the
resolution for a new election which had been presented at
the November meeting, together with a note that the
International had upheld the resolution (G.C. 3); and
Vellani also drafted a statement for Keith Cupp, the
unopposed candidate for president, in which Cupp
supported the candidacies of Vellani and Frick who were
running against incumbent officers . (G.C. 4).
B. The Bulletin Boards
The contract between the Union and the Company
contains a provision that bulletin boards will be provided
at the terminal. There were two such boards, one on either
side of the door between the dock area and the employees'
lunchroom. The Company posted its own notices to
employees, and permitted the Union (pursuant to rule 41
of the contract) to post its notices and information of
general interest to its members, such as notices of meetings
and letters received from the International. Employees also
placed personal notices on the boards, relating to such
matters as car pools and items offered for sale. No prior
approval from a company supervisor was needed to post a
notice by the Union or individual employee.
C. Events Leading to Vellani's Discharge
The third shift, on which both Vellani and Hanners
worked, was from midnight to 8:30 a .m. Before his shift
began on January 2, Vellani posted copies of the
documents prepared by the "Reform Slate" which have
been described and identified above as General Counsel's
Exhibits 2, 3, and 4, on the bulletin boards. During
nonworking times, he also distributed copies to men on his
shift and another shift . The next day he saw that the three
notices had been removed from the boards , so he replaced
them from a stock which he had in his locker. They had
been removed by Hanners , the incumbent local chairman,
who was running against Frick, a member of the reform
group in which Vellani was prominent . Exactly how many
times the notices were posted by Vellani and removed by
Hanners is not entirely clear , although Hanners said that
he had removed them three times. He knew that they were
being put up by someone in the reform group . Hanners
said that he had checked with an official of the Interna-
tional who agreed with him that it was not legitimate union
business, and that he also felt that as local chairman he had
the right to approve what was posted for or by the Union.
Sheridan , the terminal manager , testified that he knew
that the reform group had posted its notices on the boards
and had distributed them to the men on nonworking time.
He said he had no objection to either method of
publicizing the group's position on the union election.
After Vellani clocked out at the end of his shift on
January 4 at 8 :30 a.m., a fellow employee told him that
Hanners had again removed the notices from the bulletin
boards. Vellani then went directly to the lockerroom where
Hanners was seated at a table , doing some union work, and
asked him if he had removed the literature from the
boards. Hanners said he had, and that it would stay off as
long as he was local chairman. Vellani then told him that
as local chairman he had no right to dictate what could go
up on the boards . Hanners stood up and began gesturing in
Vellani's face with a pen. Vellani pushed his hand aside
and told him if he had any thing more to say it would have
to be "on the other side of the fence." Just then their
assistant foreman, Pete Boss, intervened and in a concilia-
tory tone asked them to cool it, and told Vellani to go
home if he had clocked out. Vellani then turned to
Hanners and told him that he was going to post the notices
again, and that he expected to find them there when he
returned on his next shift . Vellani went to his locker, got
more notices, and posted them.
Boss, in the meantime , went to tell Garen , the foreman,
that trouble was brewing, and that somebody was going to
get smacked in the mouth- However, Vellani had already
left the premises, but returned almost immediately because,
he said, he wanted to make sure that a phone message he
had taken for someone had been reported to that party. As
he was returning to the terminal, other employees told him
that the terminal manager, Sheridan, had ordered Garen,
the third-shift foreman, to remove the notices from the
boards.
When Vellani returned he went immediately to the
lunchroom where Garen was standing , and asked him if he
had removed the notices . Garen said he had, and Vellani
then pushed by him to go to his locker. Garen told him not
160 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to put up any more of the notices, but Vellani told him it
was a union matter, that it was none of his concern, and
that he, Vellani, would take care of it. Garen then told him
again not to put the notices up and to leave or he would be
fired. Vellani said he told Garen that he had no control
over hiring and firing, that it was up to Sheridan, and that
he didn't have to do what Garen was ordering him to do.
Garen asked Vellani if he was on the clock and, when
Vellani admitted he wasn't, Garen told him to go home.
Vellani then asked Garen, his foreman, if he was on the
clock, and that if he wasn't he was just a union member
like himself.'
About this time, Sheridan appeared in the lockerroom
and after some conversation, told Vellani not to post the
notices and to go home and warned him that he would be
fired if he insisted on posting the notices. Vellani said it
was a union issue, and the Union didn't need the
Company's permission to post its notices. Sheridan told
him he didn't want the men on the dock stirred up, at
which Vellani said it was only Garen who was stirring
things up by issuing improper orders. Vellani said he was
the committeeman on the third shift, that Sheridan was
wrong in issuing his order, and that he wasn't obliged to
follow it. Sheridan then told him he could follow the
proper procedure and file a grievance, to which Vellam
responded by saying that he had no grievance to file until
Sheridan made good his illegal threat to fire him for
posting the notices.
Sheridan again warned him not to post the notices on
pain of dismissal, at which Vellani dared him to repeat his
threat to the other men who were present in the
lunchroom. Vellani then went out and posted the notices,
at which Sheridan told Garen to prepare dismissal papers
on him. Later that day, Sheridan sent Vellani a telegram
and a registered letter suspending him pending a hearing
Vellani tried to return to work the next day but was
barred from entering by the guard. Vellani phoned the
foreman's office and spoke to Sheridan who repeated that
he was fired. Vellani told him he wanted to file a grievance,
and Sheridan told him it would have to be presented by the
local chairman, Hanners.
The above is essentially Vellani's versions of his
encounters on January 4, with Hanners, Boss, Garen, and
Sheridan which led to his discharge. Each of these also
testified as to his individual recollection of the same events.
Even from Vellani's version it is apparent that tempers
were rising during the half hour or so between his first
confrontation with Hanners and his discharge by Sheridan,
and that the situation in Vellani's own term was "volatile.""
That impression is home out and even heightened from the
recitals of the others who participated in attempting to
dissuade Vellani from posting the notices and to leave the
premises. I am satisfied that Garen and Sheridan had
reason to be concerned over Vellani's insistence that he
would continue to post the notices despite the objections of
Hanners and the direct orders of Garen and Sheridan that
he desist. There were employees in the lunchroom
observing Vellani's return to the dock area after he had
punched out and left, and his belligerence in the face of
requests and warnings that he leave the plant and file a
grievance if he felt that he had a right to post the notices.
The supervisors present might properly fear that there was
some possibility of physical force and loss of discipline if
Vellani was not curbed. I have no reason to discredit
Sheridan's statement made at the hearing that he did not
want anything on the bulletin boards which might cause
friction or trouble on the dock.
D. The Grievance Arbitration Proceedings
Vellam filed a grievance protesting his discharge through
Hanners, the appropriate union official. A hearing on the
grievance was held January 9, before a company official
sent from its Chicago headquarters. He affirmed the
terminal manager's decision to discharge Vellani for
insubordination. Vellam then requested the International
Union to take the matter to arbitration, but it declined to
do so in a letter dated March 7, 1973. Vellam filed an
appeal from that decision, and has been advised that the
matter is under review. At the hearing in this case, Vellani
testified that he no longer wants to go to arbitration
because he does not feel that the Union would represent
him adequately.
The Company does not contend that the instant unfair
labor practice proceeding should be deferred pending
arbitration. It did not raise that possible defense in its
answer to the complaint, nor seek to litigate it at the
hearing, nor argue it in its brief to me. For that reason
alone, and without considering other reasons proposed by
the General Counsel for deciding this matter immediately,
I find that deferral to the contractual grievance and
arbitration machinery is not appropriate here.2
E. Concluding Findings
The issue here is the extent to which the Company could
restrict use of the bulletin boards during a campaign for
the election of union officers, after a confrontation
between adherents of the two opposing factions.
The General Counsel asserts that after allowing the
boards to be used without restriction the Company could
not prohibit Vellani from posting his campaign literature
and that, since the orders of Garen and Sheridan were
unreasonable and unlawful, Vellani was not so insubordi-
nate as to justify his dismissat-Further, he argues, Vellani's
statements concerning his right to post the leaflets were
made in the heat of the moment arising from his
understandable anger at the unreasonable and unlawful
prohibition against the posting, and that this type of
conduct is protected in the context of the presentation of
grievances.
The Company argues that it has shown no union animus;
that it took no sides between the two factions contending
for union office; that it freely permitted distribution of the
"Reform Slate's" literature at appropriate times and places
at the terminal; and that it permitted it the use of the
bulletin boards for posting its literature until it appeared
that it might affect good order at the terminal. It also
argues that it did not absolutely forbid Vellani from
' All employees at the terminal, except the terminal manager and his 2 Hunter Saw Division of Asko, Inc., 202 NLRB 330, fn. 2.
assistant, were members of the Union.
NUGENT SERVICE, INC. 161
posting his leaflet, but merely removed it pending
resolution of the controversy through the filing of a
grievance, and that Vellani's response to that offer was an
insubordinate outburst.
The General Counsel points out, in arguing that
everyone was reasonably well-behaved the morning of
January 4, that calm was restored to the lockerroom when
Boss, the assistant foreman, intervened between Vellani
and Hanners, urging the former to leave, and that when
Garen went into the lunchroom he also found it calm.
What is omitted is that calm prevailed only when Vellani
was not there, and that when he returned to confront first
Hanners, and then Garen and Sheridan, the atmosphere
became charged by rising tempers. I find that Garen and
Sheridan, confronted with Vellani's uncompromising
attitude on his asserted right to post his pamphlets then
and there, reasonably believed that a quick decision was
needed to prevent trouble from developing. It is unlikely
that there would have been any physical contact if
Hanners had continued to remove Vellani's leaflets from
the boards, but Garen and Sheridan did not have to wait
for the worst to happen before taking a stand.
They could, of course, have ordered Hanners not to
interfere with Vellani's posting, but that too would make it
appear that management was taking sides in an intraunion
dispute. Hanners did outrank Vellani in the union
hierarchy, and in his capacity as local chairman, was the
official with whom the Company dealt on union matters.
Thus, since a choice had to be made between upholding
Hanners or Vellani, it was reasonable to support what
seemed to be the Union's official position that partisan
electioneering material should not be posted on the
bulletin boards.
Garen and Sheridan attempted +o restore order by telling
Vellani to leave the plant, to stop trying to post his
material, and to file a grievance if he thought their action
was unjustified under the contract. If their order to Velllani
not to post his leaflets tended to favor Hanners and the
other incumbent officers, its effect was slight since Vellani
still had the right to distribute the same material personally
to all the employees, and had done so a day or so earlier,
without interference from management or Hanners. I
therefore find that Vellani was insubordinate in refusing to
comply with Sheridan's order that he not post the leaflets
and that he leave the plant .3
The final question to be resolved is whether, despite his
insubordination, Vellani was engaged in a protected
activity for which, on balance, it was illegal to discipline
him.
A wide range of union activity and expression within a
plant is protected. Thus, employees on nonwork time,
though paid, may solicit others to engage in union or other
protected activity on company property, and may distrib-
ute literature relating to such purposes in nonwork areas
and on nonwork time.4 Also, absent special circumstances,
an employer may not prohibit or restrain employees from
engaging in activities on nonwork time which are intended
to effect a change in their bargaining representative.5
Further, employees who confer with management on union
business are permitted a freedom of expression in dealing
with their employer's representatives that might,' under
other circumstances, exceed the bounds of propriety.6 And
finally, an employer who permits official union notices and
communications to its members to be-posted on its bulletin
boards may not thereafter discriminate against an employ-
ee who posts a union notice which meets the employer's
rule or standard but which the employer finds distasteful; 7
while an employer whose practice it has been to permit
employees to post on its bulletin boards notices of various
types unrelated to their employment but who removes only
notices of union meetings violates Section 8(a)(1) thereby.8
Here, the Company permitted all kinds of personal
notices to be posted, as well as official union notices about
meetings, elections, and nominations. It even raised no
objection when Vellani first posted his partisan electioneer-
ing material on the boards. Not until it became apparent,
through Harmers' removal and Vellani's reposting of this
material, that there would be continual strife between the
two representatives of the rival factions did Sheridan in
effect decide that the Company's bulletin boards should
not become a battleground for the competing groups.
To hold, as the General Counsel seems to contend, that
Vellani and his group had an absolute right to use the
bulletin boards in their campaign for union office would,
in my opinion, be unduly prejudicial to the Company's
property and management rights. Use of the bulletin
boards to carry on a partisan union campaign is not
essential to publicizing the position of either of the rival
groups, since each had the right to solicit employees and
distribute its literature at appropriate times and places. The
boards then are only one of the means of communication
between candidates for union office and their constituency.
But since the boards are also a medium of communication
between an employer and his employees (like a company
publication) their use for partisan union purposes serves to
entangle the Employer in a dispute which should be none
of his concern, and which could force him to intervene in
allocating the amount of space available and the length of
time each side could have for posting its literature. I think
it is more conducive to employees' rights to require an
employer to keep hands off all aspects of a union election
than it would be for him to intervene, no matter how even-
handedly he might attempt it.
Based on the foregoing, I conclude that Vellani did not
have a right protected by Section 7 of the Act to post his
partisan campaign literature on the bulletin boards, and
that the Company did not violate Section 8(a)(1) for
discharging him because of his insistence that he be
allowed to do so. I shall therefore recommend that the
complaint be dismissed.
3 The Company has a published rule that insubordination will result in 6 Crown Central Petroleum Corporation, 177 NLRB 322, and Red Top,
automatic dismissal for the first offense. Inc., 185 NLRB 989.
4 Stoddard-Quirk Manufacturing Co., 138 NLRB 615. 4 Tempco Manufacturing Company, Inc, 177 NLRB 336, 342, fn. 20, 348.
5 Glenn Berry Manufacturers, Inc., 169 NLRB 799, enfd. 422 F.2d 748 8 Challenge-Cook Brothers of Ohio, Inc, 153 NLRB 92, enfd. 374 F.2d
(C.A. 10, 1970), and Cooper Tire & Rubber Company, 185 NLRB 233. 147 (C.A. 6, 1967).
162 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
CONCLUSIONS OF LAW
1. Nugent Service, Inc., is engaged in commerce and in
activities affecting 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. The Respondent has not engaged in any unfair labor
practices alleged in the complaint. -
RECOMMENDED ORDER
It is hereby recommended that the complaint be
dismissed in its entirety.