Reynolds Co.

National Labor Relations Board - Board Decisions

Jan 25, 1979

240 N.L.R.B. 268 (N.L.R.B. 1979)

268 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Reynolds Metal Company and Darcey Honeysette.
Case 7-CA-14481
January 25, 1979
DECISION AND ORDER
BY MEMBERS PENELLO, MURPHY, AND TRUESDALE
On September 18, 1978, Administrative Law Judge
Bernard Ness issued the attached Decision in this
proceeding. Thereafter, the General Counsel filed ex-
ceptions and a supporting brief, and Respondent
filed an answering brief and cross-exceptions and
supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the complaint be, and it hereby is, dis-
missed in its entirety.
IThe General Counsel and Respondent have excepted to certain credibil-
ity findings made by the Administrative Law Judge. It is the Board's estab-
lished 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 Dr 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 find-
ings.
In his Decision, the Administrative Law Judge inadvertently refers to
employee Crittendon as "Crittenden."
DECISION
STATEMENT OF THE CASE
BERNARD NESS. Administrative Law Judge: Pursuant to a
charge filed by Darcey Honeysette, an individual, on Octo-
ber 7, 1977, a complaint issued on November 29, 1977,
alleging that Reynolds Metal Company, herein called Re-
spondent, violated Section 8(a)(1) of the Act by discharg-
ing Honeysette because he engaged in protected concerted
activities. Respondent denied the discharge constituted an
unfair labor practice violative of the Act. Hearing was held
before me on March 8-9, at Grand Rapids, Michigan.
240 NLRB No. 54
Upon the entire record, including my observation of the
witnesses and their demeanor, and after due consideration
of the General Counsel's oral argument and Respondent's
brief, I hereby make the following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
Respondent, a Delaware corporation, maintains a plant
in Wyoming, Michigan, where it is engaged in the manu-
facture, sale, and distribution of aluminum and related
products. During the calendar year preceding the issuance
of the complaint, Respondent purchased and caused to be
shipped to its Wyoming, Michigan, plant goods and mate-
rials valued in excess of $50,000 directly from points out-
side the State of Michigan. The parties agree and, based on
the foregoing, I find that Respondent is engaged in com-
merce within the meaning of Section 2(6) and (7) of the
Act.
II. THE LABOR ORGANIZATION INVOLVED
Local 277, International Union, United Automobile,
Aerospace and Agricultural Implement Workers of Amer-
ica (UAW), herein called the Union, is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
Honeysette was discharged on August 18, 1977,' after he
refused to perform certain work. The complaint alleges he
was discharged for engaging in protected concerted activi-
ty. More specifically, the General Counsel contends Ho-
neysette was discharged when he refused to perform cer-
tain work because he insisted, in good faith, upon what he
believed to be his rights under the collective-bargaining
agreement then in existence between Respondent and the
Union and because he raised questions of job safety. The
General Counsel does not contend that the work Honey-
sette refused to perform was abnormally dangerous within
the purview of Section 502 of the Act. Respondent takes
the position that Honeysette was discharged for his refusal
to obey the order of his supervisor to perform the work in
question. Honeysette filed a grievance following his dis-
charge. The grievance was resolved short of arbitration. He
was reinstated effective September 26 with full seniority,
no backpay or insurance benefits, 2 and a I-year probation-
ary period.
The Union is the bargaining representative for the em-
ployees in the plant. The most recent contract during the
relevant period is from August 1, 1977, through July 31,
1980.
Honeysette had been employed by Respondent since
1972 and for the 4 years preceding his discharge he was a
charge makeup man in the cast house. His job basically is
to drive a hi-lo (forklift truck) and load scrap metal into
the furnaces. The process is known as charging the furnace.
All dates hereinafter refer to 1977 unless otherwise indicated.
2 He suffered no loss of insurance benefits during the interim period.
REYNOLDS METAL COMPANY 269
There are two methods in charging. In the first, the scrap
metal is brought to the furnace in hoppers, and the charge
makeup man uses a ram to shove it from the hopper into
the furnace. In the second method, the scrap metal is
shoved into the furnace from saw racks. The charge
makeup man is seated in his hi-lo which has a plexiglass
shield in front to substantially shield him from the heat of
the furnace when the door is open. Prior to August, the
normal practice was to charge the furnaces with the
burners off and only the pilot on. On occasions, the
burners were on, particularly in the winter, but there was
no requirement that burners be off or on. The furnace op-
erator operated the controls in turning the burners on or
off. Honeysette himself had in the past charged with the
burners on at his own request. He stated that on other
occasions the burners were on for only a few minutes
while he was charging. He testified a complete charge took
about 45 minutes.
Shortly before August 3, Respondent decided to change
the procedure for charging the furnaces and leave the
burners on while charging. Gordon Fox, Respondent's
personnel manager, testified he returned from vacation on
August 3. He learned then that the intended operational
change had not been discussed with the Union and it was
aborted before it began. A safety grievance was filed by
Carl Crittenden, a furnace operator, on August 3 com-
plaining that it was unsafe to charge with the burners on.
(Resp. Exh. 7) Fox met with Sam Sella, chairman of the
Union's grievance committee on about August 5. Present
also were Cast House Superintendent Ray Dix and Charlie
Crowe, the Union's cast house committeeman. Fox testi-
fied that safety grievances are handled by the Union's
grievance committee chairman and the plant manager or
his representative. Fox is his representative. Fox testified,
without contradiction, that he explained to Sella and
Crowe the reasons why the Respondent wanted to have the
furnace charged with the burners on. According to Fox,
the parties agreed to the change with the proviso that under
certain specified situations, the burners would be off while
the furnaces were being charged. Thus the Crittenden
grievance was disposed of. The parties agreed the Union
representative would notify its committeemen and Respon-
dent would notify the supervisors involved of the change in
procedure.
The cast house was a three shift operation. The opera-
tional change was delayed for about a week. On August 16,
Guydon, cast house foreman, instructed Honeysette and
Crittenden, who worked together on the 3 to 11 p.m. shift,
that the furnaces were to be charged with the burners on.
This came to the attention of Cast House Steward Luce,
who told Guydon the operational change would first have
to be approved by the committee. The burners were not
turned on. Fox received a call on the morning of August 17
from Sella, who told him he had discussed the change with
Luce the night before and had been told that the employ-
ees were talking about walking off the job and that they
had not been told of the change. Sella asked Fox to notify
the stewards of the Union's agreement to the change. Sella
Basically, to prolong the life of the furnaces.
4Neither Sella nor Crowe was called as a witness.
was out of the plant and Crowe was on vacation. Fox then
instructed Respondent's safety director, Lambert, to review
the change with the committeemen, stewards, and charge
makeup men on each of the three shifts. The first shift
committeeman, together with the Union's president, Bos-
ma, met with Fox and was told the matter had been dis-
cussed with Sella. The new procedure was implemented on
the first shift without incident.
At the beginning of their shift on August 17, Guydon
told Crittenden and Honeysette the burners were to be on
halfway when they were charging the furnace. He ordered
Crittenden to turn on the burners. Crittenden objected,
saying it was unsafe, as did Honeysette. Honeysette also
complained that enough metal was being poured on their
shift and asked to be relieved. Guydon told him he did not
have anyone to relieve him. Steward Luce was advised of
this incident by the employees and Fox was also informed.
About 4-4:30 p.m. a group was assembled in the cast
house by Fox to observe a charging demonstration-Fox,
Lambert, Dix, Guydon, Union Safety Committeewoman
Joyce Van Beckon, and Luce. Fox told Crittenden and Ho-
neysette to charge with the burners on so that the group
could observe it. Honeysette complained that he was
picked on as the first person called upon to work using this
procedure. Fox told him it was already being performed on
the first shift and it was to be done on all three shifts.
Honeysette then charged one or two loads. Fox then met
with Van Beckon and Luce in the office. He explained the
change to them. Van Beckon expressed a lack of familiarity
with the operation and asked that OSHA make the deci-
sion as to the safety features. Fox informed her of the earli-
er Crittenden grievance, of how it had been resolved, and
of the Union's agreement to the change. After this meeting,
Fox gave the same explanation to Crittenden, Honeysette,
and Luce and described those situations in which the
burners could be off.5 Fox explained that there had been a
breakdown in communication at the Union's end and that
Sella had asked him to notify the committeemen and
others of the agreement. Before Fox left the plant at about
6 p.m. he told Luce to call Sella if he had any questions.
Luce acknowledged he knew of the agreement. 6
About 7:30 p.m., some time after the repast break, Guy-
don noticed that the burners were off on the Number 2
furnace then being charged. He learned that Honeysette
had asked Crittenden to turn off the burners and directed
Crittenden to turn them on again. The burners were turned
on. A short while later, Guydon noticed Honeysette driv-
ing the hi-lo around but not charging the furnace. He then
told Honeysette to charge the furnace. Honeysette refused,
saying he would not charge the furnace with the burners
on. Guydon then brought Honeysette to the office and,
after explaining to Honeysette that the matter nad been
settled, again told Honeysette to charge the furnace. Ho-
neysette conferred for a few minutes with Luce and then
reiterated to Guydon his refusal to charge with the burners
Although Crittenden testified Fox did not say Sella agreed to the
change, he did testify Fox said "he'd reached some agreement with some-
one, but he hadn't mentioned with who."
6 place no reliance on Luce's testimony that he was told by Sella that, as
a result of his meeting with Fox, employees did not have to charge with the
burners on.
REYNOLDS METAL COMPANY
_ _ _
270 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
on. Guydon then told Honeysette he was suspended. Sub-
sequently that evening a number of employees engaged in
a work stoppage, apparently in protest of Honeysette's sus-
pension. Fox returned to the plant and requested the em-
ployees to return to work.7 Fox then successfully prevailed
upon Honeysette to induce the employees to return to
work. Sella and other union committeemen also came to
the plant. By this time, the next shift was starting up. Fox
and Sella went to the cast house and the charge makeup
man and furnace tender were instructed on the new procL-
dure for charging the furnace. They complied.
On August 18, Fox met with the union committee to
discuss the action taken against Honeysette. Fox informed
the committee Honeysette was being discharged for refus-
ing to obey the orders of his supervisor. Honeysette's griev-
ance concerning his discharge was resolved short of arbi-
tration in the manner described above.
The General Counsel argues that Honeysette was seek-
ing to avail himself of the rights under article 28 of the
collective-bargaining agreement between the parties. Arti-
cle 28, section 4, of the contract reads as follows:
Section 4. If an employee shall believe that there
exists an unsafe condition, changed from the normal
hazards inherent in the operation, so that the employ-
ee is in danger of injury, he shall notify his foreman of
such danger and of the facts relating thereto. Thereaf-
ter, unless there shall be a dispute as to the existence
of such unsafe condition, he shall have the right, sub-
ject to reasonable steps for protecting other employees
and the equipment from injury, to be relieved from
duty on the job about which he had complained and
to return to such job when such unsafe condition shall
be remedied. If the existence of such alleged unsafe
condition shall be disputed, the chairman of the griev-
ance committee and the plant manager or his repre-
sentative shall immeidately investigate such alleged
unsafe condition and determined whether it exists. If
they shall not agree and if the chairman of the griev-
ance committee is of the opinion that such alleged un-
safe condition exists, the employee shall have the right
to present grievance in writing to the plant manager or
his representative and thereafter to be relieved from
duty on the job as stated above. Such grievance shall
be presented without delay to arbitration under the
provisions of Article XI of this Agreement, which shall
determine whether such employee was justified in
leaving the job because of the existence of such an
unsafe condition.
The General Counsel contends that the change in the man-
ner of charging the furnace resulted in an unsafe condition,
bringing into play article 28. He relies principally on Mer-
lyn Bunney and Clarence Bunney, Partners d/b/a Bunney
Bros. Construction Company, 139 NLRB 1516 (1962). Re-
spondent argues that Honeysette did not in good faith be-
lieve the change was unsafe but was motivated, in refusing
to follow the new procedure, by other reasons; i.e., his con-
tention the change constituted a speedup and he was being
initially selected to work under the new procedure. Re-
7The contract contained a no-strike clause.
spondent concedes in his brief that early in the evening on
August 17, Honeysette requested relief and said the new
operation was unsafe. Respondent aruges, however, that
Honeysette did not later ask for relief or contend the pro-
cedure was unsafe. Respondent argues the change was not
unsafe.8 Thus, says Respondent, the sole reason Honeysette
was discharged was that he refused to obey a direct order
of his supervisor and not that he requested relief. Respon-
dent further argues that since an agreement was reached
with the Union on the Crittenden grievance involving the
safety issue, article 28 was not available to Honeysette to
support his refusal to charge with the burners on.
In Bunney Bros. Construction Company, supra, the em-
ployee was discharged because of his demand for "show-
up time," a claim made pursuant to the applicable collec-
tive-bargaining agreement. The Board, in finding such dis-
charge violative of Section 8(a)(1) of the Act, stated the
individual sought to implement the contract applicable to
him as well as other employees and the implementation by
an employee is but an extension of the concerted activity
giving rise to that agreement. In H. C. Smith Construction
Co., 174 NLRB 1173 (1969), enfd. 439 F.2d 1064 (9th Cir.
1971), the employee based his action upon an erroneous
assumption that the collective-bargaining agreement con-
tained a provision which warranted his complaint concern-
ing the chain of command. The Court agreed with the
Board that the employee did not lose the Act's protection
as a matter of law simply because his understanding of the
contract turned out to be mistaken. The Court also said the
reasonableness or unreasonableness of the employee's as-
serted interpretation of the contract is relevant to the factu-
al issues of the employee's good faith and the employer's
motivation. In Tech-Craft, Inc., 152 NLRB 1508 (1965), an
employee was discharged because he refused to perform
certain work unless paid on a higher scale. The Union had
agreed with the Company's interpretation of the contract
that it was not obligated to pay on the higher scale for the
work to be performed. The Board found the discharge was
not violative of the Act, pointing out that the employee
elected to seek self-help rather than seek resolution through
the grievance procedure.
The unsafe condition of operating the furnaces with the
burners on was first raised by the Crittenden grievance in
early August. Fox's uncontradicted testimony disclosed
that pursuant to the grievance procedure, Respondent and
the Union agreed that with certain restrictions, the fur-
naces could be operated with the burners on. Thus, when
Honeysette refused to follow this procedure, the safety
question had already been resolved. Honeysette was given
an opportunity to back off from his refusal to obey Re-
spondent's order to comply with the new procedure. He
refused, despite the explanation given to him that the
Union had agreed to this change in the operation. In such
8 Gould Rivette, a field safety investigator with the Michigan Department
of l.abor was called as Respondent'a witness. He testified that in October 1977.
as a result of a complaint of unsafe conditions, he inspected the furnaces being
charged with the burners on. He testified the operation was not violative of
the State's safety regulation and was not unsafe in the sense that the work
performed was not unusually dangerous considering the nature of the work
performed.
REYNOLDS METAL COMPANY 271
circumstances, I find Honeysette was discharged for insub-
ordination and not for engaging in a protected activity.
CONCLUSIONS OF LAW
i. Respondent is an employer engaged in commerce and
in operations affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
2. The General Counsel has not established by a pre-
ponderance of the evidence that Respondent has engaged
in unfair labor practices within the meaning of Section
8(a)(l) of the Act as alleged in the complaint.
Upon the basis of the foregoing findings of fact, conclu-
sions of law, and the entire record in this case, and pur-
suant to Section 10(c) of the Act, I hereby issue the follow-
ing recommended:
ORDER 9
The complaint is dismissed in its entirety.
In the event no exceptions are filed as provided in Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board. the findings,
conclusions, and recommended Order herein shall, as provided in Sec. 102.48
of the Rules and Regulations, be adopted bh the Board and become its
findings, conclusions, and Order, and all objections thereto shall be deemed
waived for all purposes.
circumstances, 1 find 1-loneysette was discharged for insub-
I