Pathe Laboratories, Inc.

National Labor Relations Board - Board Decisions

Apr 12, 1963

141 N.L.R.B. 1290 (N.L.R.B. 1963)

1290 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
DETERMINATION OF DISPUTE
Upon the basis of the foregoing findings and the entire record in
this case, the Board makes the following Determination of Dispute
pursuant to Section 10 (k) of the Act.
1. Employees of Kaiser-Nelson Steel & Salvage Corporation en-
gaged on the project of dismantling a grain elevator belonging to the
New York Central Railroad at pier 7, West New York, New Jersey, in
the work of cutting and lowering of steel where power is required
and currently represented by Local 734, International Hod Carriers,
Building and Common Laborers Union of America, AFL-CIO, are
entitled to perform such work.
2. Local 45, International Association of Bridge, Structural and
Ornamental Iron Workers and Machinery Movers, AFL-CIO, is not
and has not been lawfully entitled to force or require Kaiser-Nelson
Steel & Salvage Corporation to assign such work to its members.
3. Within 10 days from the date of this Decision and Determination
of Dispute, Local 45, International Association of Bridge, Structural
and Ornamental Iron Workers and Machinery Movers, AFL-CIO,
shall notify the Regional Director for the Twenty-second Region, in
writing, whether or not it will refrain from forcing or requiring
Kaiser-Nelson Steel & Salvage Corporation, by means proscribed by
Section 8(b) (4) (D), to assign the work in dispute to its members
rather than to the employees of Kaiser-Nelson Steel & Salvage Cor-
poration who are represented by Local 734, International Hod Car-
riers, Building and Common Laborers Union of America, AFL-CIO.
Pathe Laboratories , Inc. and Motion Picture Laboratory Tech-
nicians, Local 702, International Alliance of Theatrical and
Moving Picture Machine Operators of the United States and
Canada, AFL-CIO. Case No. 2-CA-8632. April 12, 1963
DECISION AND ORDER
On January 30, 1963, Trial Examiner Eugene F. Frey issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent had not engaged in the unfair labor practices alleged in
the complaint, and recommending that the complaint be dismissed in
its entirety, as set forth in the attached Intermediate Report. There-
after the General Counsel and Charging Party filed exceptions to the
Intermediate Report and supporting briefs.' The Respondent filed a
brief in reply to the exceptions and brief of the General Counsel.
1 The Charging Party has requested oral argument The request is hereby denied be-
cause the record , the exceptions , and briefs adequately present the issues and positions of
the parties
141 NLRB No. 120.
PATHE LABORATORIES, INC. 1291
Pursuant to the provisions of Section 3 (b) of the Act, the Board has
delegated its powers in connection with this case to a three-member
panel [Members Rodgers, Fanning, and Brown].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, and the entire record in the case, including the excep-
tions and briefs, and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner.
[The Board dismissed the complaint.]
INTERMEDIATE REPORT
STATEMENT OF THE CASE
The sole issue in this case is whether Respondent , Pathe Laboratories, Inc., dis-
charged Alphonso Francis legally for cause, or because of his attempt to process
grievances as shop steward of the above-named Union and to engage in other pro-
tected activities in the course of administration of a collective-bargaining contract
between Respondent and the Union , in violation of Section 8 (a) (3) and ( 1) of the
National Labor Relations Act, as amended, 29 U.S.C. Sec. 151, et seq. (herein called
the Act). The issue arises on a complaint issued June 26, 1962, by the General Coun-
sel of the National Labor Relations Board, ' and an answer of Respondent denying
the commission of any unfair labor practice.
A hearing was held on the issue before the Trial Examiner Eugene F. Frey at New
York, New York, on various dates between October 1 and 17, 1962, in which all parties
participated through counsel and were given full opportunity to be heard, to exam-
ine and cross -examine witnesses , present pertinent evidence, make oral argument,
and file written briefs. Motions of Respondent at the close of General Counsel's
case-in-chief to dismiss the complaint on the merits were denied ; similar motions at
the close of the testimony were taken under advisement, and are now disposed of by
the findings and conclusions in this report . At the close of the case, all parties pre-
sented oral argument . Written briefs have been filed by Respondent and the Union
which, together with the oral arguments , have been carefully considered by the Trial
Examiner . A motion for correction of the transcript filed by Respondent since the
close of the hearing has been considered , and is hereby granted, and the transcript is
hereby corrected
Upon the entire record in the case, and from my observation of the witness on the
stand, I make the following:
FINDING OF FACT
I THE BUSINESS OF RESPONDENT
Respondent is a Delaware corporation which maintains offices and places of busi-
ness in New York, New York, and Los Angeles, California, where it is engaged in the
processing of black and white and color motion picture film for theatrical and tele-
vision use . During 1961 Respondent performed services valued over $500,000, of
which services valued in excess of $50,000 were performed in, and for enterprises
located in , States other than New York and California, and of which other services
valued in excess of $200,000 had a substantial impact on the national defense. In the
same period , Respondent had a direct inflow of chemicals , equipment and other goods
and materials valued in excess of $50,000 to its places of business in New York and
California. I find that Respondent is, and at all times material herein has been, an
employer engaged in commerce within the meaning of Section 2(2), (6), and (7)
of the Act.
II THE LABOR ORGANIZATION
The Union is a labor organization within the meaning of Section 2(5) of the Act.
'The complaint is based on a Board investigation initiated by a charge filed by the
Union on May 14, 1962.
1292 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. THE UNFAIR LABOR PRACTICES
A. Appointment of Alphonso Francis
For many years Respondent has had collective -bargaining contracts with the
Union covering laboratory film technicians in all processing departments in its New
York City plant. The current contract was executed in December 1961 and runs
until October 1, 1965. All contracts provided for a shop steward to handle griev-
ances and other employee problems, under procedures noted hereafter Since 1955
the stewards have been elected periodically by members of the Union, with due no-
tice of their election given to Respondent. The position became vacant in 1960 or
1961 by resignation of the incumbent due to illness. Richard A. Gramaglia, the
Union 's president and business agent, was unable to find any employees willing to
run for the job in an election, hence in February 1961, he appointed Alphonso Francis
as steward, and formally notified Respondent of the appointment about February
14, 1961. Shortly, after, Kurt Kanis, Respondent 's vice president in charge of op-
erations at the New York plant, telephoned Gramaglia and asked him why he ap-
pointed Francis, saying he understood that Francis was a "rabble-rouser, agitator,
and trouble-maker. " Gramaglia replied that Francis as steward would only admin-
ister the contract and protect the rights of employees in the laboratory, and that he
would be an asset to Kanis. As soon as Francis officially became steward, he had an
introductory conference with Kanis, in which he promised to cooperate with Kanis
to the best of his ability to see that the plant was operated properly in accordance
with the union contract. Kanis indicated that he appreciaed Francis' visit, so that
he could meet Francis personally, as some employees had told Kanis that Francis
was an agitator, troublemaker, and rabble-rouser, but that he (Kanis) never believed
what he heard, that he was meeting Francis for the first time and would work with
him and make his own judgment of him on the basis of his conduct. They agreed
to meet early Wednesday morning of each week, after Francis came off the midnight
shift, to discuss grievances and other problems, and at other mutually convenient times
to discuss pressing problems. They followed this schedule thereafter, varying it at
times to include Gramaglia if he happened to be in the plant, or on infrequent oc-
casions when they could not settle a dispute themselves.
B. Francis ' operations as steward
The grievance provisions of the current and preceding contracts required that any
disputes arising under the contract must first be discussed for adjustment between
Respondent "and the Union"; if they could not settle a dispute within 24 hours, either
party could request arbitration by the New York State Mediation Board, whose de-
cision would be binding on the parties The contract also provided that "pending
the final determination of any dispute there shall be no strike or lockout, nor shall
there be any change of working conditions or methods of operation as they existed
prior to the dispute except as they may be otherwise permitted by this agreement." In
practice, the parties processed grievances as follows: If a worker brought a grievance
to Francis, or he himself saw an operation he considered to be in violation of the
contract , Francis was supposed to find out how the grievance or operation arose, and
if the man was working on specific orders of a supervisor; if he found that the problem
arose from a management order, Francis was to discuss it directly with the super-
visor who gave the order, advise him that he considered it a contract violation, and
try to adjust with him; 2 if this failed, Francis would discuss the matter with Produc-
tion Manager Hinkle or Kanis; if it was not adjusted there, they could call Gramaglia
into the discussion; if that failed, either party could resort to arbitration. During
the first 10 months of Francis' tenure, this procedure was generally followed: about
90 percent of all grievances were discussed and settled amicably, some at the super-
visory level but most in weekly conferences between Francis and Kanis; Gramaglia
was called into the discussion infrequently; the parties resorted to arbitration only
once. After Francis had been steward about 2 months, Kanis told Gramaglia that
he was very much surprised about Francis' operation, as he had turned out to be a
cooperative steward in presenting and handling grievances , and the two were getting
along very well.
2 Kanis at first objected to Francis discussing plant operations with supervisors, pre-
ferring that he bring problems directly to Kanis, but later they agreed that Francis could
first try to adjust problems with supervisors , to avoid taking up Kanis' time with trivial
matters.
PATHE LABORATORIES, INC. 1293
In processing grievances, Francis questioned various supervisors about ordering
workers to do certain work, and about doing production work themselves, which he
claimed were contract violations. The supervisors usually refused to change their
orders or practices without orders from management, so Francis took these griev-
ances to Kanis, after which certain work practices were changed or stopped in some
instances, but not in others; Francis did not succeed entirely in getting supervisors to
stop occasional production work.3
In the latter part of 1961, on the basis of complaints by machine maintenance men,
Francis told Chief Engineer Leonard Girraputo on several occasions that his foremen
were not rotating overtime work among maintenance men equitably as required by
the contract.4 In some of these discussions, Girraputo told Francis that he was try-
ing to change working conditions and practices which had existed as long as 16
years, and that Francis should take the grievance to Kanis. In one such conversa-
tion late in 1961, Girraputo told Francis that "we had a wise guy just like you, Louis
Francavilla, but we fixed him, and the same thing will happen to you." Francis took
the grievances to Kanis, and they were apparently settled amicably in the usual weekly
conferences.5
In the fall of 1961, Kanis began to get reports from production supervisors and
workers that Francis was giving orders to workers, telling them how he wanted work
done, and changing work practices in the plant. Kanis dismissed the early reports
as minor matters, did nothing about them but continued to adjust grievances with
Francis in the usual way. When the complaints continued, however, and Francis at
some grievance sessions began to suggest changes in work policy and operations, such
as the need for more workers in certain departments, Kanis reminded him privately
several times that he should stop giving orders, that such conduct violated the con-
tract, and that "we will not work that way." 6 At one grievance session late in 1961,
Kanis told Francis that, if Francis expected to continue to work in the industry, it
was very important "not to get yourself a bad name in this industry because it is
small," and anything that he did would come up again and might embarrass him later
in his career; that if he allowed himself to get a bad reputation it would be hard for
him to get a job elsewhere, explaining that when other film laboratories closed down,
managements of existing plants usually knew what employees were laid off and could
easily find out about them if they considered hiring them. At another grievance
meeting in January or February 1962, just after Kanis returned from a vacation,
Francis presented a long list of grievances. In discussing them, Kanis got angry and
excited, saying "Al, you are nothing but a bastard, a trouble-maker, agitator and
rabble-rouser. You are not as bad as was reported to me when you came on this
job, but a damn sight worse. What do you think we are running around here? Last
week you came up with 15 or 16 grievances with the union president. Are you trying
to make things hard for me? You are pushing too much, going too much according
to the contract." He then said "I am going to fix you, you had better pray that the
present administration wins the election,7 because if they don't, you are finished, I
am going to blackball you in the business, and you will never get another job in the
film industry." Shortly after this angry outburst, Kanis called Francis and apologized
for his remarks. In this period, Kanis several times told Gramaglia that Francis was
not handling grievances in accordance with the contract, but was "stepping out of
line" by trying to solve plant problems himself by giving orders to employees instead
of discussing the problems with management, and by threatening to stop employees
from working overtime on weekends and at other times when he thought such prac-
tices were not in accord with the contract. Kanis reminded Gramaglia of the con-
tract provisions for maintenance of the status quo pending settlement of disputes, as
quoted above. Gramaglia told Kanis he would talk to Francis about his actions and
3 The findings to this point are based on credited testimony of Kanis, Gramaglia, Hinkle,
Francis, John J Garvin, and documentary proof. Testimony of any of the witnesses in
conflict therewith is not credited
4 Article 9 of the contract provided that all overtime work should be equitably rotated
among employees within each classification of work, and required that a current overtime
chart be posted in each department
5 These findings are based on credible testimony of Francis and admissions of Girraputo
Kanis admitted that in the past one Louis Francavilla had been shop steward, but had
been removed or allowed to resign after some dispute between Respondent and the Union
over his actions.
6 Kanis obviously referred to the contract clause prohibiting any change of working
conditions or methods of operation pending determination of a dispute
7Kanis referred to the present officers of the Union, and a union election slated for
November 1962
1294 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"straighten it out." Production Manager Hinkle and Chief Engineer Girraputo also
made similar complaints to Gramaglia about Francis' actions a
On one occasion in February 1962 Francis told Hinkle that he had stopped em-
ployee Robert Mathias, a finisher on the midnight shift, from doing any work in the
shipping room during part of his shift, and that this would no longer be allowed be-
cause Mathias was working "out of classification." 9 Hinkle disagreed, saying he
would not change a long-standing laboratory practice.io Hinkle reported the inci-
dent to Kanis. The matter was later discussed in a grievance meeting between Kanis
and Francis, and Respondent settled it by discontinuing Mathias' part-time work in
the shipping room.ii
On one occasion in late February or early March 1962, when John J. Garvin, day
shift supervisor of the printing room, entered that room early in the morning on his
usual rounds, he found Francis standing in the room with all the printers (about 10
women) grouped around him, and not working. He heard Francis tell the women
not to use the electric rewinding machines. Garvin asked Francis what he was doing
there. Francis replied he was telling the girls not to use those rewinders, explaining
"that's my orders." Garvin said the printers could use them, and that Francis had
no business telling them not to, that "if there is any violation of the contract, you go
higher up, to Hinkle or Kanis." Garvin then asked Francis to leave the room, but
Francis refused, so Garvin reported the incident to Hinkle who at once went to the
printing room, found Francis still standing there in the center of the group, with no
work being done. He took Francis to his office where he told him "You know better
than to hold a meeting in the printing room, and give orders to anyone I have
warned you repeatedly about giving orders to people. I want you to cut it out. This
is about the last warning I am going to give you." Hinkle then told Garvin that
Francis was wrong in giving the orders to the employees, and on orders of manage-
ment they have since continued to use the electric rewinders, in continuance of a
longstanding practice in the plant 12
The Thomas Kirby incident: In its engineering department, Respondent employs
machinists known as "developing maintenance men" whose duty is to spot, adjust,
and correct malfunctions of developing machines during production. For several
years before 1962, Respondent had often required developing maintenance man
Thomas Kirby to report for work on Saturday night 2 to 4 hours before his regular
Sunday midnight to 8 a in. shift with orders to lubricate and adjust the "spray de-
veloping machine" to get it ready for operation on that shift. This machine usually
requires special lubrication just before use. Kirby often mingled this lubrication
and his regular maintenance work on other machines during the Sunday shift,
receiving double overtime pay therefor. No other machinist was given this special
Sunday assignment. In the last 5 years maintenance employees had occasionally
complained about lack of rotation of overtime, as a violation of the contract pro-
vision for equitable rotation of overtime, and in 1961, Francis filed several grievances
on that subject with Chief Engineer Girraputo, which were settled by better distribu-
tion of weekday overtime work among maintenance men.
8 The findings in this paragraph are based on credited testimony of Kanis, Francis, and
Gramaglia, which is mutually corroborative in large part Testimony of any of these wit-
nesses in conflict therewith is not credited I do not credit Francis' vague testimony that
Kanis made "blackball" threats to him several times early in his tenure as steward, be-
cause of the preponderant testimony that for at least the first 6 months Francis' actions
were unobjectionable and they solved grievances amicably, and Kanis' specific denials that
he had ever threatened Francis angrily except once in 1962.
"Francis was referring to the contract clause (article 25) which in effect incorporated
the union bylaw prohibition against an employee performing the duties of two or more job
clas'sifica'tions at the same time (article 26, sec. 1(e) ).
101 find from credible testimony of Hinkle and admissions of Francis that it had been
the practice in the plant for at least 10 years, with the acquiescence of the Union, to work
an employee on midnight shift in the shipping room for part of that shift, and that by
agreement with the Union, Respondent had a right to make "one move" per shift by shift-
ing an employee from one classification to the other, provided he did not perform the work
of two classifications at one time.
11 These findings are based on credited testimony of Hinkle and Francis.
12 Electric rewinders had been used throughout the plant (except in the negative room)
for well over 10 years past, with the knowledge and acquiescence of the Union which had
never before complained about the practice or tried to have it changed Electric rewinders
are used because they mechanically rewind a film tightly on the reel, reducing the chances
of folds and breaks in the film, and are also much faster than hand rewinding. The facts
on this incident are based on credited testimony of Garvin and Hinkle.
PATHE LABORATORIES, INC. 1295
On a Friday night in the same period as the electric rewinder incident, as Francis
was leaving the plant at the end of his shift, he told Lawrence Van Nest, foreman
of the machine shop, that he (Francis) had told machinist Thomas Kirby that
morning that he was not to come to work Sunday night on an overtime basis unless
he performed nothing but lubrication. Van Nest asked the reason for this order,
and Francis replied it was "just a ruling of the Union" that the employee could
do only one job, lubrication, when he worked overtime on Sunday, and that if
he did any other work, this would involve paying another employee a day's pay.
Van Nest told him that if Kirby could not handle both maintenance and lubrication
as needed, the engineering supervisors could not operate efficiently on Saturdays if
they discovered late in the day that the lubrication was needed because they could
not then rearrange their working schedules. Francis replied "That is your problem,
I have to go now." Van Nest asked Francis to wait to talk to Girraputo about it,
as he (Van Nest) could not make any decision on it. Francis refused and left the
plant. Van Nest reported Francis' order to Girraputo, who commented that this
was a change in policy, and then both men reported it to Kanis, who called Gra-
maglia and complained about Francis' action. Girraputo ordered Kirby not to
work overtime that Sunday, because he did not want any trouble with the Union
pending discussion of it with Gramaglia.
The following week the matter was discussed in a regular grievance session at
which Kanis, Girraputo, Van Nest, Gramaglia, and Francis were present. Although
the engineers presented cogent reasons of efficiency for allowing one employee to
continue the lubrication and regular maintenance overtime on Saturday and Sunday,
the dispute was settled by Respondent's agreement to train other maintenance men
to lubricate all developing equipment and thus divide the overtime among all. This
was the first occasion during Francis' tenure that rotation of Sunday overtime had
been the subject of a grievance.13 Although it is not clear whether Respondent at
this conference repeated its complaint about Francis' giving orders to employees,
in this period Kanis had another private talk with Gramaglia in which he complained
that Francis was "manufacturing grievances and was a stickler for the contract,"
and that Kanis could not "get along with him."
C. The discharge of Francis
The events leading to the discharge arise out of operations of printers in the
printing room. The printer's duty is to thread negative prints into printing ma-
chines which then make positive prints. Before threading the negative into the
machine, the printer must examine the reel of film to make sure it is in good shape
for printing, and this includes examining the "academy leader" to make sure it is
long enough and not broken 14 If the printer finds that leader a bit short, he splices
a short length of waste leader onto it, using a splicing block kept near his printing
machine; the operation takes only a fraction of a minute, and is done at irregular
intervals by printers only when and if the academy leader is short. Printers had
been splicing waste leader thus as part of their regular work for many years without
complaint from the Union This work had never been done in the negative room.
Francis was well aware of the practice, for he had done it himself while working
as a printer for about 5 years between 1949 and 1955 under the supervision of
Hinkle, then printing room supervisor, and he knew that it continued after he
became shop steward. However, although Francis says he knew it was a violation
of the contract prohibition against a worker handling two classifications of jobs at
the same time, he admits that he never gave any orders or advice to employees about
to The facts of the Kirby incident are based on credited and mutually corroborative testi-
mony of Van Nest, Girraputo, and Kanis, as corroborated in part by that of Francis.
14 Academy leader is a long length of raw film stock, with no pictures or sound track on
it, which is spliced to the beginning of a negative proper in the negative room when the
negative is being prepared for printing The leader is needed for threading into the print-
ing machine so that it can "lead" the developable portion of the negative into the machine
properly, before it begins printing. Under plant practice, no part of the negative from
the "start" mark on the academy leader (the point where audio or visual intelligence is
first imprinted on the negative) to the end of the negative can be spliced, repaired, or
changed by a printer only a negative loom Aorkei can do that, because it involves prob-
lems of checking continuity of picture and synchronization of sound, which a printer is
not competent to handle The printer is allowed, and expected, only to attach "waste"
leader to the end of the academy leader if needed
1296 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
it, or discussed it with management , prior to the events of April 1962, set forth in
the ensuing paragraphs.15
On Thursday evening, April 19, 1962, Francis was told by three employees, in-
cluding printer Alex Hossu , that Louis Troell , printer on the midnight shift, had
spliced leader to negative while his printing machine was running, turning away
from the machine to make the splice. Respondent had a longstanding and valid
rule in the plant which prohibited printers from leaving their machines (while
running ) for any purpose , the only exception being their duty to splice on waste
leader in emergencies with a handsplicer located near the printing machines, as
found above . It was well known to Francis ( a printer for 5 years ) and other em-
ployees that violation of the rule was ground for discipline , including possible dis-
missal.'6 Francis at once spoke to Troell about it. When Troell admitted doing
it, Francis told him it was a violation of the contract because Troell was doing two
different jobs at the same time, and that all splicing must be done by negative
workers. Troell admitted the violation and promised not to splice any more.17
That evening , when Troell relieved Hossu at his printing machine at the end of the
afternoon shift ( there being a half-hour overlap of the afternoon and midnight
shifts ), Troell told Hossu what Francis had told him . Hossu spoke to Francis him-
self about it, and Francis told him the same thing and gave him the same instruc-
tions about splicing. During his afternoon shift on Friday , April 20, Hossu twice
found it necessary to splice waste leader onto negative , but, bearing in mind what
Francis and Troell told him , he took the negative to the negative room for that op-
eration; the first time , a negative room worker did it for him without delay, but the
second time that worker was busy and told him he would have to wait for about
20 minutes . Hossu walked back to his workplace with the negative in his hand.
On the way he met Supervisor Max Kamm, and asked him if he could splice leader
on negative , and if Kamm would give him a definite order to do so. Kamm replied,
yes, he would , and asked "Who told you different ?" Hossu replied that Francis
had told him and the night shift printer, the previous night, that they should not
splice any leader to negative , but all splicing must be done in the negative room
He asked Kamm if he should wait to get the leader spliced and then complete his
unfinished printing job, or move to another machine. Kamm told him to splice
the leader himself , just as they had been doing it in the past, and that that was
definite order . Hossu replied "that will get me off the hook," and then performed
the splice He has continued to do it ever since. After his talk with Hossu, Kamm
talked to Chris Tomeo, a negative room worker on the midnight shift , who appeared
upset and asked Kamm "who else is giving orders around here?" to which Kamm
replied that he should not worry about it, that Kamm had straightened it out with
Hossu, who would continue to splice his own leader as in the past . 18 Shortly after
this Kamm asked Hinkle whether there were any new rules or arrangements with
the Union about splicing leader on negative , and Hinkle said he knew of none.
At the end of his shift that evening, Hossu again spoke to Francis about splicing,
and Francis repeated that he must not do that operation any more, but should
have it done in the negative room. Hossu then related the two incidents of the
afternoon and Kamm's direct order to him to make the splice . Francis replied
"We will see about that ," and at once sought out Kamm and told him he had heard
of Kamm's direct order to splice leader on negative , and asked if Kamm had given
it. Kamm admitted he had, and then said "Al, since when do you have any right
15 The facts above are based on credited and mutually corroborative testimony of Hinkle,
Garvin, Max Kamm, and Alex Hossu , as corroborated in part by admissions of Francis
11 Francis knew that in the past at least one printer had been discharged for violating
the rule, which had resulted in substantial damage and waste of film The Union had
interceded for that employee to have the penalty reduced to a suspension
11 These facts are based on testimony of Francis , corroborated in part by testimony of
Hossu Troell did not testify, having died earlier in 1962
18 On midnight shift , there were only 3 workers in the negative room , as against 10 on
day shift , and Tomeo was the only man who handled preparation of 16 millimeter nega-
tives for printing, including splicing of academy leader thereon Knowing these facts and
the past practice of printers in splicing waste leader themselves, Kamm concluded, as he
testified on cross-examination , that Tomeo was upset when Hossu came to him for that
trivial job , while he was in the midst of preparing other negatives for printing . As Kamm
is an old-timer of over 35 years of experience in all the jobs in the industry , had been
afternoon superintendent for Respondent for 20 years , and knew intimately all the plant
operations and the men running them , I credit and accept his inference that Tomeo was
concerned because Hossu had twice in 1 day asked him to do jobs which printers had been
doing for years, even though Tomeo did not specifically mention Hossu or Francis by name
PATHE LABORATORIES, INC. 1297
to tell anyone how to run operations around here? You have been doing this
too long. It is about time you got wise to yourself and stopped giving orders
around here , but follow the regular procedure ." Francis denied that he was giving
orders, but said he had a right to advise any union worker, and "I intend to do
so," and that he was "living up to the contract ." Kamm told him that manage-
ment was running the plant and giving the orders , and that if Francis claimed
there were any contract violations , he should take them up with Kanis, that Kamm
took his orders only from Kanis , and repeated that Francis could not give orders
or interfere with the operation . As both started to walk out of Kamm's office,
Kamm told Francis he ought to "bow your head in shame " because he came
in with "such a trivial grievance" about splicing leader on negative , when every-
one was troubled and engaged in a search for an important negative which had
been lost. Francis said he was sorry about the lost negative , that all the em-
ployees were looking for it, "but that does not mean we should permit violation
of the contract ." Kamm then told Francis to see Hinkle in the morning. Francis
refused , saying he would talk to Kanis. Kamm said he had told Francis many
times he would get himself in trouble. Francis replied "Don 't worry about me
getting myself in trouble , I can take care of myself." By this time , both men
were angry , and at one point Francis said "We are going to get you." Kamm
said, "Don't threaten me." Francis replied "I am not threatening you, I will never
threaten you on company premises ; if I wanted to do that , I will wait until you
are outside the plant." Kamm said he had a "good mind to have you punch your
card and send you home," to which Francis replied "if you want me to go home,
I'll go, but I won't punch any card, you will have to punch it." Francis then
walked away , and Kamm walked into another room to help in the search for
the lost film.19
An Saturday afternoon , April 21 , Kamm telephoned Kanis and told him he
had been threatened by Francis during an argument about orders given by Francis
to the night printers not to splice leaders on negatives . Kanis told Kamm to come
to his office Monday morning to discuss it.
Early on Monday morning, April 23, Kanis received a report from printer
Troell that Francis had ordered him directly that in the future all damaged or
short leader must be taken to the negative room for repair , and could not be fixed
by printers . At a later conference that day, Kamm reported to Kanis and Hinkle
his whole discussion with Hossu and Tomeo , his later argument with Francis
about giving orders, and Francis' threat to him . No decision was reached by
management on the problem at that meeting , but on Tuesday morning, the 24th,
Kanis told Hinkle that he had decided he "had had it with Francis," and that
he would suspend and discharge him and notify him and the Union under the
contract . 20 That morning Kanis sent Francis a telegram stating "this to serve as
notice that you are suspended for cause . Please contact your office ," and sent
a telegram of similar import to the Union , following it with a letter of the same
date advising the Union of Francis ' suspension "for insubordination and threaten-
ing a member of management of this company ," and stating "any further discus-
sion will be at your request." 21
Francis received his telegram on the 24th , and that afternoon he and Gramaglia
had a conference with Kanis , Hinkle, and Kamm, at which Francis and Kamm
stated their respective versions of the Hossu incident and their ensuing argument.
Kanis then told Gramaglia that this was not the first instance involving Francis,
that he had spoken to him before about not giving orders in the plant , and had
also spoken twice to Gramaglia about it, and that "as far as I am concerned, I've
had it." At this point, the discussion about Francis apparently ended, for Kamm
left the room, and Francis brought up a grievance involving another employee,
which was settled after a discussion between the employees , Hinkle and Gramaglia.
11 The facts as to the argument between Francis and Kamm is a synthesis of the testi-
mony of both men on that point, as they agreed on the salient parts of the conversation,
while stating many of the remarks in somewhat different terms and at times placing re-
marks in different sequence
20 Article 10(b) of the contract provides that , after at least 4 weeks of employment, the
Employer may discharge any employee for cause , but must give the Union 24 hours' notice
prior to its "election" to discharge for cause , and during such 24-hour period the Em-
ployer may suspend the employee affected Upon failure of the Union to concur in the
just cause, the matter shall be treated as a dispute to be submitted to arbitration as pro-
vided in article 15
21 The events of April 21 , 23, and early 24 are based on credited and uncontradicted
testimony of Kamm and Kanis , stipulated facts and documentary proof.
1298 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
After discussion of other matters, the meeting broke up As Gramaglia was leav-
ing, he asked Kanis to reinstate Francis Kanis refused. Gramaglia threatened
to shut the plant down. Kanis told him to go ahead and do it, but that Re-
spondent had a right to ask for arbitration under the contract, and would not
reinstate Francis unless an outside arbiter made that decision. The Union on
April 26, 1962, filed a request with the New York State Mediation Board for
arbitration, pursuant to the contract, but there is no evidence that that proceeding
was prosecuted or concluded by a decision. A day or so after the meeting of
April 24, Gramaglia conferred privately with Kanis, saying he had a serious problem
in the Francis case, and asked Kanis whether he would consider taking him back if
Gramaglia removed him as shop steward, saying he had made a mistake in ap-
pointing Francis. Kanis refused, reminding him of the past trouble with Francis
and that the Union had refused to do anything about it when Kanis had complained
to it.
About a week later John J. Francavilla, a union executive board member, asked
Kanis at the union office to reinstate Francis as a regular worker, if necessary
not as shop steward, to save his job and long seniority.22 Kanis refused, saying
he had "lived with this situation as long as I could bear it."
About 2 weeks after his discharge, Francis sought employment at another film
processing laboratory. When that employer called Kanis for a recommendation
on Francis, Kanis asked where he intended to use Francis, and on learning that
he was being considered for a developer's job, Kanis said his work with Respondent
as a developer was excellent and recommended that he be hired. Francis was
hired by that employer shortly thereafter.23
Contentions of the Parties, and Concluding Findings
General Counsel contends that: (1) Respondent violated the Act because it dis-
charged Francis only for questioning Supervisor Kamm about an order he had given,
in the course of investigating a grievance about the splicing procedure, and this was a
protected activity in the course of performing his duty as shop steward, in accord-
ance with the contract grievance clause and procedures which Respondent and the
Union had established thereunder; and (2) this protected activity was only the latest
of a long series of grievances which Francis had prosecuted zealously and for the
most part successfully during his tenure, which had irritated management to the extent
that it had repeatedly charged him with too zealous adherence to the contract, and
threatened reprisals against him if he did not moderate his enforcement of the con-
tract. It is clear from the facts found above that (1) during his tenure Francis was ag-
gressive and meticulous in processing grievances, and achieved a large degree of suc-
cess in procuring settlements favorable to the employees, in the course of which (2)
Francis succeeded in getting management to change some work practices and methods
of operation of longstanding, which (3) irritated management to the extent that one
supervisor (Girraputo) pointedly warned him that he might meet the fate of a former
shop steward who had been a "wise guy like you," Kanis later warned him not to get
a "bad reputation" in the industry, if he wanted to stay in it as a career, and shortly
after in an outburst of temper upbraided him for bringing up so many grievances,
threatening to discharge him and "blackball" him in the industry, and Kanis in Febru-
ary 1962, told Gramaglia that he could not get along with Francis because he was
"manufacturing grievances and was a stickler for the contract"; and (4) Francis' angry
argument with Kamm on the night of April 20 and 21 occurred when he sought out the
superintendent to verify his issuance of an order on splicing which Francis considered
a violation of the contract. His inquiry of Kamm was clearly a valid step in the
accepted grievance procedure outlined above, and was a protected activity. These
circumstances, standing alone, support the inference that Respondent was becoming
more and more provoked, as time went on, with Francis' meticulous, and perhaps
overzealous, adherence to the terms of the contract, and his constant prosecution of
grievances, both large and small, arising from methods of operation of longstanding
which, while long countenanced by the Union, may have violated the letter of the
contract. In this aspect, the cited circumstances clearly support the conclusion that
22 Francis started with Respondent in 1948 as a porter and general utility man at a
low wage rate Over the years he worked up through various job classifications, including
that of printer, on the basis of merit and seniority, to the job of developer at a base pay
of about $160 a week, which was his work at time of discharge. In these 14 years, his
general work performance had been satisfactory
23 The events of the afternoon of April 24, and ensuing dates, are found on credited testi-
mony of Kanis, Kamm, Gramaglia, and Francis, which is mutually corroborative in many
respects Testimony of any of these witnesses in conflict with the findings is not credited
PATHE LABORATORIES, INC. 1299
Francis was discharged for aggressive and overzealous performance of his steward's
duties in rigid enforcement of the contract It is well settled that a discharge for this
reason is a violation of the Act. Monsanto Chemical Company, 130 NLRB 1097,
1104, Seaboard Diecasting Corporation, 137 NLRB 536; Pontiac Motors Division,
General Motors Corporation, 132 NLRB 413; Metal Blast, Inc., 139 NLRB 540.
However, it is also well settled that a shop steward does not have unlimited protec-
tion under the Act in carrying out his union duties, and that the employer may law-
fully discharge him where he has repeatedly processed grievances contrary to contract
provisions, and in violation of shop rules, despite repeated criticisms and warnings
about such conduct, and has disobeyed legitimate orders of his superiors or has been
otherwise insubordinate in the course of such conduct Crucible Steel Castings Com-
pany, 101 NLRB 494, 495; Pinellas Paving Company, Inc. 132 NLRB 1023, 1031,
1032. The question here is: Did Francis engage in conduct of these types so as to
justify his suspension and discharge, and was this conduct the immediate and effective
reason for his discharge? In support of Respondent's answer in the affirmative, the
record shows significant facts and circumstances, which also throw much light on the
circumstances supporting the complaint.
At the outset it must be noted that management at New York had long had amicable
relations with the Union. Besides operating under successive contracts with the
Union for at least 10 years past without any apparent lack of harmony, at least five
of the management personnel involved in this case are or had been members of the
Union,24 and four members of the Union's executive board are employed at the plant,
and Kanis was on good terms with all of them. Thus management was well aware
of the Union's organization, operation and its working rules, and accustomed to deal-
ing with union members and shop stewards in the day-to-day application of the union
contract and bylaws in plant operation. Stewards before Francis had been day-shift
employees with ready access to Kanis at all times for discussions of grievances and
contract matters When Francis was appointed, Kanis readily made special arrange-
ments for regular and special daytime conferences with him, because he worked at
night. They solved over 90 percent of the grievances between themselves, at the first
stage of the grievance procedure; Francis never found it necessary to do more than
bring Gramaglia into discussions at times. When Respondent took over the equipment
and many employees of another closed film plant in the summer of 1961, both
Gramaglia and Francis cooperated with Kanis in resolving promptly and among them-
selves various placement, transfer, seniority, and other problems arising from the
integration of the acquired employees into Respondent's work force. These cir-
cumstances denote the very opposite of employer union animus in any sense, and in
this context Kanis' early comments to Gramaglia and Francis about the troubling
reports he had heard about Francis became insignificant, especially when Kanis assured
Francis he would be openminded and judge Francis solely on his performance as
steward, shortly thereafter expressed gratification about his cooperation, and for nearly
14 months continued to confer readily, regularly and amicably with him on griev-
ances. The same reasons also attenuate the otherwise coercive implications of Kanis'
later warnings to avoid conduct which might give Francis a bad reputation in the
industry, or his single angry outburst in 1962 in which he threatened Francis with
discharge and "blackball" in the industry; the latter incident appears all the more as
an isolated temperamental but not sinister outburst from a busy top executive,25
since Kanis promptly apologized to Francis as soon as he cooled off, continued to
confer with Francis in normal manner for the following 2 months up to his discharge,
and after that event recommended him as an employee to a new employer, which
in itself is the very antithesis of a "blackball " 26
Another important set of circumstances is the manner in which Francis changed
his handling of grievances, and Respondent's reaction to the change In the early
months of his tenure when Francis became aware, in one instance of an employee
handling two jobs at once, and in another of a foreman handling prints, both in
possible violation of the contract and union rules, he told the worker to continue
24 Dams and Kamm were charter members of the Union and are still members in good
standing Kamm had been its first shop steward after its organization in 1938 Hinkle
and Girraputo are also members Van Nest was in it from 1939 to about 1959
As vice president in chaige of operations at New York, Kanis is directly responsible
to top management for all operations in a plant of over 400 employees
20I have found that the "blackball" threat occurred in 1962, but even if I found that
it occurred in mid-1961, as Francis testified, any inference of discriminatory resentment
arising from it would be even weaker, since Respondent continued to put up with Francis
and his mode of operation for about 10 months before discharging him
1300 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
doing both jobs and suggested that the foreman continue to handle prints, until he
spoke to Kanis about it. He then discussed and settled both problems with Kanis.
In this he was adhering to the contract procedure, including the prohibition against
changing working conditions or plant operations pending a dispute. However,
from about November 1961, onward, Francis began a practice of advising workers
that certain operations violated union rules and the contract, in terms which made
such advice tantamount to direct orders, which the employees invariably obeyed.
The union bylaws charged Francis with the duty to "enforce all union rules in
the laboratory," and it is clear that he and other union members knew that if a
union member violated a union working rule or rejected advice of the shop steward
about the rules, he could be charged, tried, and punished by the Union under its
bylaws.27 Hence, as Hossu testified and Francis admitted, employees regarded
advice from Francis that their actions violated the rules and contract, and that they
should desist from certain conduct, or operate differently, as an "order" which they
dare not disobey if they wanted to avoid a trial or jeopardize their union standing
Hence, I find that Francis was giving direct orders to employees when he told Mathias
in February 1962, to stop doing two jobs on one shift, called a group of printers
from their work shortly after to tell them not to use electric rewinders, in the same
period ordered machinist Kirby to do only one type of work on Sunday overtime,
and finally ordered Troell and Hossu to stop splicing. These orders effectively
changed work practices of longstanding in the plant. In addition, the orders were
given without prior notice to or discussion with management. Hence, Francis was
giving direct and effective orders to employees which caused unilateral work stop-
pages or substantial changes in plant operations, in direct violation of the contract
grievance procedure 28 In the electric rewinder incident, he went further by deliber-
ately refusing to leave the room (and thus allow printers to get back to work) on
orders of a foreman, doing so only when Hinkle intervened and took him to the
office where he warned him about his conduct. This type of conduct certainly justified
supervisors' refusal to change their operations at Francis' suggestion until he saw
Kanis and they got orders from Kanis, their complaints to him and Kanis that he
was trying to change longstanding plant practices, and Kanis' warnings to him and
complaints to the Union that he was violating contract grievance procedures by
giving orders. I find nothing sinister in these actions of management, because it
is clear that Respondent did not act abruptly or arbitrarily. Supervisors' on-the-
spot complaints and even warnings to Francis were only natural reactions where
his "orders" purported to change longstanding operating practices in their depart-
ments Nevertheless, Kanis did not treat the first complaints about Francis seriously.
When they continued to come in, he at first gave Francis friendly but private warn-
ing 29 to stop giving orders and adhere to the contract procedures. In the same
period, he asked Gramaglia several times to talk to Francis about his conduct.
These appear to be mild and entirely reasonable efforts to keep Francis within the
proper bounds of his duties as delineated by the contract. It was not until the final
and serious Troell-Hossu incident that management made up its mind to get rid
of Francis, and I think the circumstances of that incident fully justified Respondent's
action. Here, Francis violated the contract, not only by his unilateral orders to
both workers which effectively changed a longstanding and business-like practice
which was countenanced by the contract,30 and which he himself had followed in
the past, and also knew about but did not object to during the previous 13 months
of his stewardship , 31 but also by his signal failure to make any attempts to discuss
r, This is clear from article 17, particularly section 1(e), of the bylaws, and admissions
of Francis.
28 The vice in this procedure was not alleviated or condoned by Respondent in the Kirby
case, as General Counsel claims, by Respondent's failure to raise the issue of Francis'
conduct during the discussion of that grievance, for the record shows that Kanis promptly
complained to Gramaglia about Francis' conduct before the grievance was settled.
29 Kanis ' consideration for Francis and his position was shown when he made no attempt
to balloon any of these warnings into formal , public grievances by confronting Francis
with the supervisors who complained about him.
30Article 17(b) of the contract provides "The parties agree that present methods of
operation within the laboratories 'shall continue without change, except that the Employer
may, if it so elects, change its operations from a single to a dual operation of machines,
so that one operator may operate two machines, provided such dual operation is pres-
ently or may hereafter be in existence in a laboratory operating under a collective-
bargaining agreement with the Union In the event of any such change the Employer
will pay the base rate applicable to such dual operation."
Si Francis admitted that as steward he was obligated to process grievances not only on
complaints of employees, but on all working conditions and operations which he person-
PATHE LABORATORIES, 1NIC 1301
the problem with management until after he learned from Hossu that management
had overruled his order. His immediate remark to Hossu "We will see about that"
and prompt inquiry of Kamm about the countermand, which precipitated Kamm's
criticisms of Francis and ensuing angry argument culminating in Francis' threat to
him, convinces me that he was indignant and angry because management had over-
ruled his order. Although Francis came to Kamm to discuss the matter as a griev-
ance, Kamm was obviously disturbed about the orders he had given to the printers
and naturally questioned Francis' right (as an employee) to give them. Francis de-
fended his action by saying he had a right to advise employees under the contract.
He did not suggest that the printers continue splicing until he had discussed the
validity of the practice with Kanis, which probably would have mollified Kamm
Hence, the real issue between them at the time was clearly whether Francis had a
right to give unilateral orders to employees. That Francis had apparently arrogated
this managerial prerogative to himself and felt the matter was closed by his order
to Troell, is clear from his admission that, after Troell admitted the violation, he
did not try to talk to his supervisor about it, his contention that he was not required
to speak to supervisors before he gave such "advice" to workers, and his admissions
that, after Troell admitted the contract violation and promised to stop it, he did not
investigate the practice further or go to management,31 explaining that when an
employee admits a contract violation and promises'to stop it, it is in his discretion
whether to take it up with management. This would be a credible explanation if
the Troell incident involved only an isolated instance of contract violation, but I
cannot accept it as a sincere or valid explanation, where Francis knew that his orders
to Troell and Hossu would be obeyed and would effectively change a longstanding
practice, which would probably cause specific objection by management, as in the
past 33
Furthermore, it appears that the Union recognized that Francis had been exceeding
his authority as steward and that Respondent had just cause for some discipline of
him, because in the discussions with Kanis after the discharge, the union officials ap-
parently did not attempt to challenge the reason for the discharge, but merely tried
to persuade Kanis to reinstate Francis as a rank-and-file employee as a matter of
grace, to protect his substantial seniority.34 Another indication that the Union itself
may have tacitly recognized that Francis had overstepped his authority in the splicing
incident, lies in the fact that the printers have continued to handle emergency splicing
of waste leader, as before, and the Union has apparently not tried to prosecute a
grievance against that practice, at least to the time of the hearing.
General Counsel recognizes the force of these circumstances in support of Re-
spondent's defense, for he presents the unusual argument that, assuming Francis gave
orders to employees, "this was part and parcel of a company practice in permitting
on greater or less occasions the shop steward to exercise some management author-
ity," and he relies on testimony of Gramaglia, adduced in rebuttal, concerning two
occasions when Kanis called on Gramaglia for assistance in handling plant operations
The record shows that on the first occasion, in March or April 1961, Kanis had
been ordered by top management late on a Friday night to have a special film job
processed over the weekend for use by Monday morning. When plant officials were
unsuccessful in persuading employees to work overtime for that job, Kanis called
Gramaglia after normal work hours, explained the emergency nature of the job, and
asked for his help and that of Francis in recruiting the necessary crew. Gramaglia
called on Francis to tour the laboratory and try to round up a crew After some
difficulty, Francis managed to get a crew to work On the second occasion, appar-
ally ohserved and considered contract violations He also admitted lie had seen Tioe!1
,phcing leader on negative, but did nothing about it.
'Francis admits that Troell's supervisor was available for discussion on midnight shift
Fnday, but lie did not speak to hum after giving the order to Troell, as lie had done in
the case of Mathias and Kirby, or in several instances in March 1961 He admits he
made no attempt to see Kanis about the splicing practice later on li'iiday, of on Monday,
despite his statement to Kamm that he would see Kanis. Nor did he bring it up as a
grievance at the Tuesday conference , with Granaglia at his side, although they did settle
another grievance with Respondent at that session
°' Troell's admission that his splicing was a contract "violation," made to his aggressive
shop steward whose "advice" on the contract clearly had the force of law to the Pm-
plovees, is of little ialue, since Francis' testimony about it was clearly sill'-serving and
could not be contradicted of explained by a dead man Moreover, it is not binding on
Respondent, which promptly repudiated the idea of a "violation" through Kamm', in-
sistence that Hossu continue the practice, and by continuing it ever since
11 I find these facts on credible testimony of Kanis, as against denials of Cramaglia
1302 DECISIONS OP -NATIONAL LABOR RELATIONS BOARD
ently sometime in 1962, the first reel of an importing negative was unaccountably
lost, and when normal search procedure during production did not turn it up, Kanis
decide j to resort to the unusual procedure of stopping all production and turning on
the "white" lights in all departments, which required a complete stoppage of all
processing work and entailed special protective measures to prevent unexposed film
from being ruined.35 Before doing this, he called Gramaglia, told him of the serious
problem, and asked his cooperation in trying to find the film. They agreed that there
should be a complete shutdown, all lights should be turned on, protective measures
taken, and all personnel should join in the search, that Kanis would give the proper
orders to supervisors to turn on the lights, and Gramaglia would tell Francis what
was being done and order him to cooperate in the search in every way.36 I find that.
in the first case, Respondent did no more than seek and procure the cooperation of
the Union and Francis in recruiting employees to work overtime on a weekend.
Gramaglia admits that it was normal for Respondent to try to get a crew to work
most weekends, from which I infer that this was merely another case in which Re-
spondent had the normal problem of persuading reluctant employees to give up their
weekends to work overtime, and that on this occasion, Respondent had more trouble
than usual and finally had to call on the Union and its steward to use their personal
influence with the employees. The second case discloses no more than that Re-
spondent, in a serious emergency, had to take the unusual and drastic action of a
complete shutdown, with all the attendant complications and effects on working con-
ditions, and took the precaution of advising the Union beforehand and securing its
cooperation through the steward and assistant stewards throughout the plant so that
the shutdown and search would proceed with expedition. At best, both incidents
were merely situations where one veteran union member (while a management of-
ficial) turned to other union members for help in certain predicaments in which he
found himself. Neither instance amounts to substantial proof that Respondent had
relinquished or allocated any managerial authority to the Union or Francis.
General Counsel and the Union try to impugn the stated motive for the discharge
by pointing to Kamm's somewhat confused testimony about the altercation with
Francis and the nature of his report to Kanis on the incident, the fact that he did not
consider Francis' remarks to him as a threat to him personally, and that he did not
discipline Francis on the spot, although he had authority to do so I have carefully
considered Kamm's confusion on some details of these events while under vigorous
cross-examination of General Counsel, in making the findings about them set forth
above, and I am convinced from all his testimony that he considered Francis' orders
to printers and his defiant remarks to Kamm defending them, including "We will
get you," as an insubordinate challenge to his managerial status and to management
in general. No matter what he said in his first report to Kanis, the latter took no
action until he heard Troell's story Monday and then heard both sides in open meet-
ing Tuesday, at which time I think Kanis was fully justified in concluding that the
threat to Kamm, whether personal or a general defiance of management, was insub-
ordination, and that he discharged Francis on the basis thereof, as the latest and
most serious in a series of acts of insubordination. I find no significance in Kamm's
failure to discipline Francis at once; although he probably had authority to do so,
and he was so incensed at Francis' remarks to him that he hold him that he felt like
doing so, I am convinced that he decided to leave the discipline of an employee, par-
ticularly a shop steward, to Kanis, because discipline of employees, such as suspen-
sion or discharge, had long been handled directly by Kanis. Nor is it significant that
Kanis did not have another private discussion with Francis about his misconduct,
before discharging him, for Francis was given his hearing on Tuesday while under
suspension, with Gramaglia present to speak for him, and was then discharged.
Considering the repeated prior warnings about his conduct, and Respondent's com-
plaints to the Union, I think he was given no less consideration then Leo Fried, who
some years before had been discharged by Kanis after being confronted with physical
evidence of bad work. It should also be noted that, after Francis' discharge, Kanis
:w In normal production operations, developing and printing of the photographic film
must be done under special dim or colored lights.
:,a These findings are based on credited testimony of Kanis and Gramaglia , which is
mutually corroborative In most aspects. I do not credit Gramaglia's conflicting testimony
that Kanis asked him to have Francis go through the laboratory, turn on the lights and
order all hands to make the search, because Gramaglia told contradictory stories on the
exact arrangement they made, and finally admitted that Kanis did not give him authority
to tell Francis to turn on the lights, but that they agieed that Kanis would tell his super-
visors, and Gramaglia would tell Francis at the same time, to find the negative at all
costs and, if need be, turn on all the lights.
DONALDSON SALES, INC. 1303
nevertheless gave him a favorable recommendation for employment elsewhere, just
as he had done in Fried's case.37
After careful consideration of all factors pro and con bearing on the issue, I am
convinced that those supporting the conclusion of a discharge for cause, when con-
sidered in their proper perspective, counterbalance and override those relied on by
General Counsel to show a discriminatory discharge, and that Respondent has sus-
tained the burden of going forward with probative evidence adequate to rebut the
case developed by General Counsel. Considering all aspects of the case, I must
conclude that the most that can be said for the case of General Counsel is that, after
Francis achieved marked success in settling grievances and in the process caused
Respondent to change some longstanding practices in the plant, Respondent became
irritated at his aggressive enforcement of the letter of the contract, and it may well
have welcomed any opportunity to get rid of an overzealous and troublesome shop
steward, but it did nothing about it until after Francis began to overstep his authority
and invade the province of management by giving unilateral orders to employees,
changing methods of operation, and persisted in this despite repeated warnings and
attempts by Respondent, directly and through the Union, to persuade him to confine
himself to contract procedures. Francis' duties and position as shop steward under
the contract gave him no privilege or authority to go beyond the terms of the con-
tract or take over any management responsibilities. I am convinced, and find, that
his unwarranted and continued assumption of such privileges and authority in de-
fiance of management was the real and immediate cause of his discharge. I conclude
that General Counsel has not sustained the ultimate burden of, proving on the record
considered as a whole that he was discharged and refused reinstatement because of
any legitimate activities as shop steward in administration of the contract. I shall
therefore grant Respondent's motion to dismiss the complaint, and recommend that
the Board issue an order accordingly38
Upon the basis of the foregoing findings of fact and conclusions of law, I make the
following :
CONCLUSIONS OF LAW
1. Respondent is engaged in commerce within the meaning of Section 2(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. In its discharge of, and refusal to, reinstate Alphonso Francis, Respondent has
not engaged in unfair labor practices as alleged in the complaint within the meaning
of Section 8 (a) (3) and (1) of the Act.
RECOMMENDATION
Upon the basis of the foregoing findings of fact and conclusions of law, and on the
entire record in the case, I recommend that the complaint be dismissed in its entirety.
3' In light of a Danis' overall reasonable approach to the problem of handling Francis'
conduct, I cannot agree with General Counsel that his remarks to Troell on Monday evi-
dence a desire or attempt to build a pretext for discharge of Francis, but merely show a
reasonable attempt to get firsthand evidence about another ina:ance of Francis' giving of
orders, before taking action.
8 See Crucible Steel Castings Company, Supra; Pinellas Paving Company, Inc., supra;
and Softeo•tnre Yarns, Inc., 128 NLRB 764, 766.
Donaldson Sales, Inc. and Heritage Employees Association,
Petitioner. Case No. 2-RC-12020. April 12, 1963
DECISION AND ORDER
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before I. L. Broadwin, hearing
officer. The hearing officer's rulings at the hearing are free from
prejudicial error and are hereby affirmed.
141 NLRB No. 116.
708-006-64-vol. 141-84