Pioneer Division

National Labor Relations Board - Board Decisions

Feb 5, 1980

247 N.L.R.B. 856 (N.L.R.B. 1980)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Pioneer Division, The Flintkote Co. and Victor
Martinez. Case 21-CA- 17183
February 5, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS JENKINS
AND TRUESDALE
On July 12, 1979, Administrative Law Judge James
T. Rasbury issued the attached Decision in this
proceeding. Thereafter, the General Counsel filed
exceptions and a supporting brief, and Respondent
filed a brief in support of the Administrative Law
Judge's Decision and in answer to the General
Counsel's exceptions.
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.2
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the complaint be, and it hereby is,
dismissed in its entirety.
I The General Counsel has excepted to certain credibility findings made by
the Administrative Law Judge. It is the Board's established policy not to
overrule an administrative law judge's resolutions with respect to credibility
unless the clear preponderance of all of the relevant evidence convinces us that
the resolutions are incorrect. Standard Dry Wall Products. Inc.. 91 NLRB 544
(1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the
record and find no basis for reversing his findings.
I In adopting the Administrative Law Judge's finding that the layoff of the
four alleged discriminatees was not unlawful, we note that the credited record
evidence fails to establish union animus toward Martinez or any other alleged
discriminatee. Furthermore, the record shows that the decision to lay off four
employees in the shipping department and one employee in the finishing
department was made pursuant to an efficiency report by an outside
consulting firm and was in accordance with the seniority practices of a side
agreement between Respondent and the Union. Neither the efficiency report
nor the side agreement was alleged, or shown, to have been discriminatorily
motivated. In these circumstances, we are not persuaded that the evidence
that Respondent hired employees in order departments earlier in the same
week that the alleged di.scriminatees were laid off, alone, is sufficient to
establish the allegations of the complaint.
DECISION
STATEMENT OF THE CASE
JAMES T. RASBURY, Administrative Law Judge: This case
was heard before me in Los Angeles, California, on March 6
and 7, 1979. The charge in this case was filed by Victor
Martinez, an Individual, on October 18, 1978.' The com-
plaint and notice of hearing issued on December 1 and was
served on Pioneer Division, The Flintkote Co. (hereinafter
Respondent), on or about the same date. The complaint
alleges that during September, Respondent, through its
Supervisor Benson, threatened employees with discharge in
order to discourage employees from processing grievances
through the Union in violation of Section 8(a)(1), and on
September 15 discharged and has refused to reinstate
employees Victor Martinez, Arturo Flores, Jesus Real-
vazquez and Dwight Eirles because they engaged in union
and/or other protected concerted activities in violation of
Section 8(a)(1) and (3) of the National Labor Relations Act,
as amended (herein Act). Respondent's answer was filed on
December 5 in which it admitted certain jurisdictional
prerequisites of the Act but denied the commission of any
unfair labor practices.
All parties were given full opportunity to participate, to
produce relevant evidence, to examine and cross-examine
witnesses, to argue orally if they so desired, and to file briefs.
Helpful briefs were received from both Respondent and the
General Counsel.
Upon the entire record in the case and from my
observation of the witnesses and their demeanor, I make the
following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
Respondent is a Massachusetts corporation with a facility
located at 5500 South Alameda Street, Vernon, California,
where it is engaged in the business of manufacturing building
materials. In the normal course and conduct of its business
operations Respondent annually sells and ships goods and
products valued in excess of $50,000 directly to customers
located outside the State of California. Respondent admits
and, on the basis of this acknowledged interstate commerce
data, I herewith find the Respondent to be an employer
engaged in commerce and in a business affecting commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
' All dates hereinafter will refer to the year 1978. unless otherwise
indicated.
247 NLRB No. 130
856
PIONEER DIVISION, THE FLINTKOTE CO.
11. THE LABOR ORGANIZATION
General Warehousemen's Local Union No. 598, Interna-
tional Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, is, and at all times material
herein has been, a labor organization within the meaning of
Section 2(5) of the Act.
III111. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Issues
The real issue is one of resolving motivation for the
discharge of Martinez, Realvazquez, Eirles, and Flores.' It is
the General Counsel's contention that Martinez was laid off
because of his activism as shop steward; that Realvazquez
was laid off because he complained to the health department
regarding the restroom facilities and threatened to call other
Government agencies; and that Eirles and Flores were laid
off to mask the discharge of the others.'
B. Background
Carl Weisheit is the manager of the papermill division of
Respondent's industrial complex located at Vernon, Califor-
nia. The papermill division employs approximately 250
hourly employees and is under the direction of Weisheit, but
there is also a roofing division where shingles and roofing
paper are constructed, a light chemicals division where
emulsion of paints, roofs, and tennis court covers are made,
and a flooring division. Weisheit has been employed by
Respondent for 44 years and has been a member of
management for the past 33 years. Prior to becoming a
member of management, he worked within the bargaining
unit and was a member of the Union. Garrett W. Benson is
the papermill superintendent and has been employed by
Respondent for nearly 26 years after having been hired in as
a "brokey," or a helper, on a paper machine. Benson is a
former member of the Teamsters Local 598 and served as a
shop steward for approximately 10 years. Calvin Bradberry
is a supervisor in the chipboard department, a position he
has held for the past 15 years. Prior to becoming a
supervisor, Bradberry served within the bargaining unit as a
union steward for some 5 or 6 years.
At least one aspect of this conflict arises because of the
loose and inaccurate designation of departments within the
papermill division. Within the chipboard or finishing depart-
ment there are two distinct types of operations. The finish
workers take the rolls of paper that are generated by the
large papermaking machines and cut them to specified sizes
in accordance with the customer orders. The completed
order is then bundled and stacked on pallets for shipment.
At that point workers in the shipping crews handled the
transportation and coordination of the completed customer
orders that had been palletized by the finish workers.
Martinez, Flores, and Eirles all worked as combination
checker and forklift drivers engaged in the loading and
While the complaint alleges the discharge of the four named individuals. it
was, in reality, a layoff. At the time of the hearing Martinez had been recalled
and was working regularly. Each of the other individuals has recall rights.
In the alternative, the General Counsel argues that Eirles was laid off
because of his numerous complaints. Realvazquez is frequently referred to
throughout the transcript as Vazquez.
unloading of orders onto the boxcars and trucks. Real-
vazquez had worked as a combination checker and forklift
driver but had recently been classified as a shipping and
receiving clerk and his duties consisted of making out the
bills of lading and ensuring that the bills contained the
correct footage and weight for the rolls shipped.
The conflict arises because both these groups of workers
were frequently referred to as being in the chipboard or
finishing department and all were under the supervision of
Foreman Bradberry.
C. General Counsel's Evidence
Martinez was employed by Respondent in 1969 and
worked as a combination forklift driver and checker. His
duties consisted of loading and unloading boxcars and
trucks. He served as the union shop steward for 3 or 4 years
and for the past two contracts served on the negotiating
committee. Martinez presented three or four grievances to
Respondent per month and was successful in many, if not
most, of the grievances he presented. Martinez testified that,
on one occasion when he was successful in processing a
grievance for Realvazquez, he was threatened with reprisal
or termination. On one occasion during his employment
Martinez was terminated, but reinstated after 3 days with
full backpay. There was no explanation in the record as to
just why Martinez was terminated or the circumstances
under which he was reinstated. According to Martinez, in
August, when he was processing a grievance on behalf of
Flores at a meeting with Weisheit, Weisheit became excited
and stated, "I'm going to finish this matter once and for all.
You're going to make me do something." Weisheit denied
ever having made such a remark to Martinez and added that
he has not participated in the grievance discussion for a
number of years; he turned it all over to Benson. According
to Martinez, he was involved in processing an oral grievance
on behalf of his nephew, Salvador Martinez, when he
advised his nephew not to sign a notice. According to
Martinez, Benson threatened him (Martinez) that if Salva-
dor did not sign the notice, he (Benson) would get even with
Martinez. Benson denied having made such a statement.
Benson testified that Ron Beagleman had given Salvador
Martinez a warning regarding attendance which he did not
wish to sign, and Victor Martinez had advised him against
signing. Benson said he merely noted on the warning that
employee had refused to sign and that he signed the notice,
and had Beagleman sign the notice and then sent it to the
personnel office. According to Benson, it was not unusual
for employees to refuse to sign such warning notices. 4
Martinez also testified that he was involved in a rather
heated grievance meeting with James Stanfield, Respon-
dent's personnel manager, regarding the grievance of an
employee named Jesus Macias.
Realvazquez was employed by Respondent in 1973 and
worked until his layoff on September 15. He started as a
bundler, later became a combination checker/driver, and at
the time of his layoff was a shipping and receiving clerk. The
' In many instances this may have stemmed from the language problem
because many of the employees were Mexican whose knowledge and use of the
English language was limited.
857
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
testimony indicates that Realvazquez made numerous health
and safety complaints to his supervisors and to various
Government agencies, including the County Health Depart-
ment and OSHA. On one occasion an inspector from the
health department visited Respondent's facility and inspect-
ed the restroom, which resulted in the installation of a new
door. The inspector did not reveal the name of the
complaining party, but the General Counsel contends that
Weisheit told Realvazquez not to continue calling up these
agencies and to keep the problems within the Company, that
Weisheit's office was only 50 feet away, and that Real-
vazquez should come to see him if he had problems.
Weisheit denies telling Realvazquez to avoid calling any
particular agencies, but indicated that it was not uncommon
for him to indicate to all employees that his office was
available if they had any complaints. Bradberry acknowl-
edged that he told Weisheit that he thought that Real-
vazquez had made the complaint to the health department
because Realvazquez had threatened on several occasions to
do so but that Realvazquez had denied making this
particular call. According to Realvazquez, on other occa-
sions he had complained about allegedly postdated bills of
lading and told Bradberry that he was going to call the
Interstate Commerce Commission, and that he frequently
complained about holes on the flatbeds of trucks, chuckholes
and improper stacking of pallets both to Bradberry and the
safety director, Dick Berns.
Eirles was first employed by Respondent in 1974 and
worked until his layoff on September 15. He was a
combination driver/checker whose duties consisted of load-
ing trucks with palletized materials, with rolls, loading
railcars and loading trucks on the outside with rolls.
According to his testimony, he made numerous health and
safety complaints, including one incident where his lunch
had been sprayed with bug spray during the course of the
spraying of the locker room. According to his testimony he
also complained frequently about the quality of the rest-
room, bugs, stopped up commodes, and inadequate ventila-
tion in the lunchroom. Eirles also complained to Bradberry
about chuckholes and holes in the truckbeds on several
occasions.
The only evidence presented by Arturo Flores was that on
one occasion he had filed a workmen's compensation claim
against the Respondent and that his supervisor, Bradberry,
had commented, "Don't cry. Why make a bother? You've
already got your money."
D. Respondent's Defense
Bradberry, Benson, and Weisheit all denied having any
particular animosities against the alleged discriminatees and
indicated that their conduct was no worse or no better than
the average employee. Other stewards filed more grievances
than did Martinez, and complaints about the restroom and
the condition of the lift trucks were common.
Respondent's primary defense, however, is that the layoff
was made pursuant to a management report made and
prepared by an outside consulting firm and secondly it was
done precisely in accordance with the union agreement.
' Realvazque7 was on vacation on September 15 and did not receive his
layoff or termination slip until September 18, the following Monday. An
Grievances were filed by the Union and dropped prior to
arbitration, but after the local union business agent had fully
participated.
Weisheit testified that sometime in early May or June he
arranged for efficiency experts from the firm of Naus &
Newlyn, Inc., of Paoli, Pennsylvania, to study and make
recommendations for improvement in the papermill depart-
ment. Weisheit testified that he instructed them to check
over the entire papermill to ascertain where they could
reduce people and costs. A preliminary report submitted to
management in August indicated that there should be 4.5
people reduced in the shipping section and I person in the
finishing section (see Resp. Exh. 2). The recommendations
of the efficiency experts was not in any way attacked or
contradicted by evidence from the General Counsel. In fact,
Flores tended to confirm the slow working conditions when
he filed a grievance because he was being asked to perform
duties other than a checker-driver, i.e., sweeping the floor.
Between the date of the report and the date of the layoff it
was necessary for Weisheit to gather some additional data
for Stanfield, the personnel manager, to have available for
his discussions with the Union regarding the pending layoff.
Additional time was also needed to check the realignment of
duties in the shipping department and the change in
schedules to ascertain if adequate and satisfactory customer
deliveries could be maintained.
On September 14, Weisheit met with Harvey, vice
president and general manager of the plant, and Stanfield,
during which they concluded that they were ready to
proceed with the layoffs as recommended by Naus &
Newlyn. On the morning of September 15, Benson and
Bradberry were advised by Weisheit of the names of the
people that were to be laid off at the completion of their shift
that day. At the completion of their shifts on September 15,
Martinez, Flores, and Eirles were given their termination or
layoff slips by Supervisor Bradberry.'
Martinez, Flores, Realvazquez, and Eirles were the four
employees with the least seniority in the shipping section
and Miguel Caamal was the employee with the least
seniority in the finishing section. (The General Counsel
never questioned the accuracy of seniority dates of the
various employees involved. The General Counsel's conten-
tion was that the shipping and finishing sections were all
part of one department and there were employees with less
seniority in the finishing section than that held by Martinez
and Flores. However, even if the two sections had been
treated as one department, Realvazquez and Dwight Eirles
would nevertheless have been laid off.)
Garrett Benson testified that in early January 1975 there
was a pending layoff in the lab of the papermill. This
pending layoff and the manner in which the employees
would be selected for layoff resulted in a conference between
representatives of management from Respondent and leaders
of the Union. The conference was participated in by Tom
Woods, then secretary-treasurer of Local 598, and Joe
Campbell, president of the Union, and Weisheit, Stanfield,
and Huntington, industrial relations manager of Respon-
dent, and Benson on behalf of the Company. As a result of
that meeting, it was clearly spelled out that shipping and
employee named Miguel Caamal. who worked in the finishing department.
was also laid olT or terminated on the same day.
858
PIONEER DIVISION, THE FLINTKOTE CO.
chipboard (or finishing) were to be treated as separate and
distinct departments for purposes of layoff (see Resp. Exh.
I). According to the testimony of Benson, while this
conference and written agreement clarified the situation
concerning the particular problem with which they were
confronted at that time, it did not in any manner change the
past practice or understanding with regard to the shipping
and finishing sections. In other words, these two sections,
while frequently over the years referred to as the chipboard
department, had always been treated separately for purpose
of layoff.
E. Analysis and Conclusions
The General Counsel seeks to attribute an illegal motive
to the Respondent in a layoff, the propriety of which is not
otherwise questioned, because of a series of circumstantial
incidents which, in my opinion, are common to the every
day industrial working scene.
Employees, particularly union stewards who are fulfilling
their union obligations, are protected under Section 7 of the
Act in their right to file and process grievances. Moreover,
the merits of the grievances filed are irrelevant insofar as the
protective rights of the employee is concerned.' However,
this is not the type of case where the proof indicates that an
employee was discharged or laid off because of harassment
of the employer in the filing of numerous or unnecessary
grievances.
Martinez acknowledged that other stewards filed more
grievances than he filed. The supervisors with whom he dealt
were all former union members and former union stewards.
There is no proof in this record of union animus on the part
of Respondent's supervisors or any personal animosity
toward Martinez.
The activities of Arturo Flores insofar as grievances or
complaints against the Company were concerned were
almost nonexistent. Even if the finishing and shipping
sections had been treated as one department, Jesus Real-
vazquez and Dwight Eirles would have been included in the
layoff. While the handwritten note (with the author un-
known) that was found in the personnel file of Realvazquez
indicated that some supervisor was unhappy with his
propensity toward accidents, nevertheless this must be
discounted because at the time of the layoff in question
Realvazquez was no longer working as a checker-driver, but
had been transferred to a shipping clerk's job which had
removed him from the more accident-prone working envi-
ronment.
While the General Counsel raises some question as to why
the letter of agreement (Resp. Exh. ), which definitively
^ Thor Power Tool Company. 148 NLRB 1379 (1964), enfd 351 F.2d 584
(7th Cir. 1965); Top Norch Manufacturing Company. Inc.. 145 NLRB 429
(1963).
Interboro Contractors. Inc.. 157 NLRB 1295 at 1298. fn. 7 (1966):
Hartwell Company. Inc.. 169 NLRB 412(1968).
After some 35 years of working in the labor relations-peronnel area. I can
safely say that such sloppy contract draftsmanship is typical of many
Teamsters locals.
Unired Sreelworkers of America . Warrior & Gulf Co.. 363 U.S 574 at
580-581 (1960).
" At the same time Martinez filed the charge that resulted in the instant
establishes the shipping and finishing sections as separate
departments for layoff purposes, was not incorporated into
either the 1975 or 1977 contracts between the parties, I find
this not unusual at all.' The United States Supreme Court
has recognized the unusual characteristics of the labor
management contracts and the many extra contractual
considerations that must be observed in evaluating the total
relationship.
The mature labor agreement may attempt to regulate all
aspects of the complicated relationship, from the most
crucial to the most minute over an extended period of
time. Because of the compulsion to reach agreement
and the breadth of the matters covered, as well as the
need for a fairly concise and readable instrument, the
product of negotiations (the written document) is, in the
words of the late Dean Shulman, "a compilation of
diverse provisions: some provide objective criteria
almost automatically applicable; some provide more or
less specific standards which require reason and judg-
ment in their application; and some do little more than
leave problems to future consideration with an expres-
sion of hope and good faith." . . . Gaps may be left to
be filled in by reference to the practices of the particular
industry and of the various shops covered by the
agreement. Many of the specific practices which under-
ly the agreement may be unknown except in hazy form,
even to the negotiators.'
Moreover it is undenied that a union business agent, James
Pearson, whose name appears as having received a carbon
copy of the March 3, 1975, letter of agreement, participated
in the resolution of the grievances filed by Martinez, Flores,
Realvazquez, and Eirles and the decision was made prior to
arbitration that the Respondent's method of proceeding in
the instant layoff had been correct."' The General Counsel is
required to prove a violation of the Act in every case by a
preponderance of the evidence." This he has failed to do. I
shall recommend dismissal of the complaint in its entirety.
CONCL.USIONS OF LAW
1. Respondent is an employer 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. The General Counsel has failed to prove by a
preponderance of the evidence any union animus on the part
of Respondent's supervisors or personal animosity toward
any of the four alleged discriminatees involved herein.
complaint, he also filed an 8(bH))(A) charge against the Union in Case 21-
CB-6686. The CB case was dismissed The General Counsel argues that no
adverse inference should he drawn from that fact and correctly points out that
negligent action on the part of a union will not be considered to he arbitrary.
irrelevant. invidious. or unfair so as to constitute a breach of the duty of fair
representation However. if the March 3. 1975. letter of agreement was no
longer valid, the Union's conduct in dismissing the grievances prior to
arbitration would have amounted to fraud. which certainly is a breach of the
duty of fair representation It must be concluded that the layoff was handled
pursuant to the terms of the contract
" FalstaffBrewing Corpraltio. 128 NlRB 294. 295, fn. 2(1960).
859
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
4. The layoff and/or termination of employees Martinez,
Flores, Realvazquez, and Eirles on September 15, 1978 was
done pursuant to nondiscriminatory, legitimate business
reasons and in accordance with the then existing labor
management agreement executed between the Union and the
Respondent.
5. Respondent's supervisor, Benson, did not threaten or
otherwise illegally coerce any of Respondent's employees.
'' In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec. 102.48
Upon the foregoing findings of fact and conclusions of
law, upon the entire record, and pursuant to Section 10(c) of
the Act, I hereby issue the following recommended:
ORDER'2
The complaint is dismissed in its entirety.
of the Rules and Regulations. be adopted by the Board and become its
findings, conclusions, and Order. and all objections thereto shall be deemed
waived for all purposes.
860