Robbins & Meyers, Inc.

National Labor Relations Board - Board Decisions

Nov 12, 1968

173 N.L.R.B. 710 (N.L.R.B. 1968)

710 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Hunter Division , Robbins & Myers , Inc. and Bobby
Settle. Case 26-CA-3060
November 12, 1968
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND ZAGORIA
On August 27, 1968, Trial Examiner Bernard J. Seff
issued his Decision in the above-entitled proceeding,
finding that the Respondent had not engaged in the
alleged unfair labor practices and recommending that
the complaint be dismissed in its entirety, as set forth
in the attached Trial Examiner's Decision. Thereafter,
the General Counsel filed exceptions to the Trial
Examiner's Decision and a supporting brief, and the
Respondent filed an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-mem-
ber panel.
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 Trial
Examiner's Decision, the exceptions and briefs, and
the entire record in this case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby adopts as its Order the
Recommended Order of the Trial Examiner, and
orders that the complaint herein be, and it hereby is,
dismissed in its entirety.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
BERNARD J. SEFF, Trial Examiner This case was heard
before me in Memphis, Tennessee, on July 22, 1968, upon
allegations in the complaint issued on May 31, 1968, based
upon a charge filed on April 16, 1968, that the above-named
Respondent had violated Section 8(a)(1) and (3) of the Act by
discharging Bobby Settle because of his union and/or con-
certed activities In its answer the Respondent denied that it
had violated the Act
Upon the entire record in the case, including my observa-
tion of the witnesses and their demeanor while testifying, and
a consideration of the briefs filed with me by counsel for the
General Counsel and the Respondent, respectively, I make the
following
FINDINGS OF FACT
I [HE BUSINESS OF THE RESPONDENT
Respondent is an Ohio corporation with a plant and
place of business located at Memphis, Tennessee , where it is
engaged in the manufacture of fans, heating equipment and
motors During the past 12 months , Respondent purchased
and received at its Memphis , Tennessee , plant, products and
materials valued in excess of $50,000 directly from points
outside the State of Tennessee , and, during the same period,
Respondent manufactured , sold and shipped from its Mem-
phis, Tennessee , plant products valued in excess of $50,000
directly to points outside the State of Tennessee Respondent
is an employer engaged in commerce within the meaning of the
Act.
II THE LABOR ORGANIZATION INVOLVED
The Union, International Union of Electrical, Radio and
Machine Workers, AFL-CIO, Local Union No 790, is a labor
organization within the meaning of the Act.
III. THE EVENTS LEADING UP TO THE SUSPENSION
AND DISCHARGE OF EMPLOYEE SETTLE
Foreman Fant told General Foreman Shinault that Settle
had been away from his work station for 20 minutes on
Wednesday morning, March 13, 1968, and that on both
Monday, March 11, and Tuesday, March 12, Fant had noticed
that Settle was away from his assigned post and therefore Fant
was timing the present absence
Settle returned to his work station 20 minutes after leaving
it Fant questioned Settle about this incident. Settle shouted in
a loud voice that he would stay in the restroom as long as he
needed to even if it was 30 minutes. Settle said there was
nothing in the Respondent's rules which defined how long an
employee could stay in the restroom. Fant told him if he did
stay away from his job he would have to write a warning on
Settle and Settle answered that he did not care how many
warnings were written, he, Settle, would not accept them
Shinault was present with Fant during this noisy colloquy
and noticed that Settle was wearing safety glasses with colored
lenses Upon being questioned as to where he got the colored
glasses Settle told Shinault it was none of his business. Shinault
said it was his business-he was in charge of it and he should
know where Settle got them. Settle refused to tell Shinault
where he had secured the glasses. Shinault told Settle that no
one could work in the machine shop without wearing clear
safety glasses. Settle said he could not wear clear glasses they
hurt his eyes. Settle asked if there were other jobs open but
upon being told there were no vacancies elsewhere he said he
needed to work so he would wear the clear glasses.
Shinault took Settle to the office of the director of
personnel, Eugene Garrety, and after telling Settle to wait in
the lobby explained to Garrety that Settle raised his voice and
neither Fant nor Shinault could talk to him Garrety told
Shinault to let Settle take his morning break and then to get
the union shop steward and go back and see if she could talk
to him
The shop steward, Mrs Shelton, together with Fant and
Shinault told Settle to tone down his voice but their combined
efforts were unsuccessful and other employees stopped their
173 NLRB No 113
HUNTER DIV., ROBBINS & MYERS, INC 711
work to look on at the controversy Shmault told Settle to put
on his safety glasses and he replied that he did not have to
wear the damn glasses. Mrs Shelton testified without con-
tradiction that when she asked Settle to quiet down he said he
was paying the Union $4 25 a month to do as he pleased.
Shrnault told Settle that he was suspended This fact was
reported to Mr Garrety who asked Shinault to prepare a
written report on the incident and the matter would be
discussed further next day, March 14
Shinault stated that he had occasions in the past to warn
Settle both orally and once in writing that he must wear clear
safety glasses It was explained that the only employees who
were permitted to wear colored safety glasses were those who
were engaged in welding and soldering operations. Shmault
told Mr. Garrety and Plant Manager Sickinger that he did not
want Settle in the machine shop again because "anyone that
we couldn't correct and talk to and communicate with, I did
not need "
The General Counsel sought to elicit testimony from the
Union president, Bilbo McIver, and union shop steward,
William Sutton, that it was the practice of the Union not to
file a grievance while an employee was in suspended status and
the facts relating to the suspension were under investigation
Sutton stated that sometimes this happened but when a union
member requested that a grievance be filed on his behalf this
was done. McIver said that it was his policy to inform the
employee in question that under the terms of the contract a
grievance had to be filed within 5 days from the time of the
suspension or it could not be filed at all.
Both Garrety and Shinault testified that it was the
Company's policy to first suspend an employee, then get
together with the supervisor and determine the facts and lastly
to request a written report concerning the incident in question
When these steps had been taken a meeting would then take
place among the supervisor in question, the plant manager and
the director of personnel at which time final disposition would
be made of the matter.
On Friday afternoon, March 15, a meeting was held in
Garrety's office and after reviewing the facts it was decided
that Settle should be discharged, a telephone call was made to
Settle's number, he was not in and his wife was told that Settle
had been discharged Sometime around 2 30 p.m. on March
15, Mrs. Shelton called at Mr Garrety's office and secured
grievance papers which she took home over the weekend. The
grievance was filed on behalf of Settle on Monday, March 18
IV. THE ALLEGED UNFAIR LABOR PRACTICE
The General Counsel sought to make his case in chief
through the testimony of Eugene Garrety, Respondent's
director of personnel, who was called to the stand as a 43(b)
witness.
The main thrust of the General Counsel's theory is that the
responsible company officials had received all the information
they needed to reach a decision on the case by March 14,
1968, but did not reach a conclusion until sometime after 2.15
p.m on March 15, by which time their attention had been
called to the fact that Settle intended to file a grievance
protesting his suspension. The union shop steward, Shelton,
had called at Garrety's office to secure grievance forms from
him and stated that the purpose of her securing grievance
forms was to file a case on behalf of Settle. Shortly before 5
p m., after a conference among Shinault, Plant Manager
Sickinger and Garrety, a telephone call was made to Settle,
who was not at home at the time of the call, and Mrs Settle
was told that her husband had been discharged. The General
Counsel took the position that it was not until the Respondent
had knowledge of Settle's intention to file a grievance that his
discharge was decided upon. In the opinion of the General
Counsel the decision to discharge Settle was triggered when the
Respondent learned that he would file a grievance and shortly
thereafter determined to discharge him. Thus the timing of the
Company's action was both precipitate and suspicious.
Garrety explained that it was company policy if a suspen-
sion occurs during the middle part of a particular week, Friday
has normally been the target date to conclude the matter. In
the instant case Settle was suspended on Wednesday, March 13
and was discharged on Friday, March 15.
Garrety testified that Settle was discharged for loafing, not
following instructions, loitering in the restroom, not wearing
safety equipment and belligerently stating with respect to
safety glasses that he did not have to wear the damn things It
was also brought out that Settle had received both written and
oral warnings that he was required to wear clear safety glasses
Garrety, Shmault and Sickinger all testified that the fact of
Settle's decision to file a grievance had nothing to do with his
discharge.
Respondent has enjoyed uninterrupted relations with the
Union for 16 years and in the normal course of its dealings
with the labor organization handles many grievances. Garrety
testified that in the past year the Union has filed ap-
proximately 130 grievances The General Counsel did not
allege that Respondent had ever taken disciplinary action
against other employees who filed grievances nor was any
evidence adduced to explain why Settle should have been
treated differently from any other employee with respect to
being discharged for filing a grievance.
Settle himself testified and, for the most part, did not
refute the testimony offered by the Respondent There was
one substantial variance which related to the tone of voice
used by Settle when he was being questioned by his supervisors
and union steward Shinault, Fant and Shelton all testified that
Settle spoke in a loud angry voice and in fact was so noisy that
employees at nearby work stations stopped work to listen to
the dispute Settle denied he raised his voice and said that
Shmault became angry and spoke to him in a loud voice There
is no reason to doubt the accuracy of Shinault, Fant and
Shelton's testimony on this point. It strains credulity to
imagine that these three witnesses fabricated their stories. I
credit this testimony and do not credit Settle who was
unconvincing and evasive as he testified with respect to this
point
There are serious difficulties with the General Counsel's
position. First there is undisputed testimony that Re-
spondent's machine shop foreman, Alvie Shmault, told Plant
Manager Sickinger on March 14, 1968, that he did not want
Settle back in the shop because any employee who could not
be corrected or talked to was not needed. Shinault also told
the Union president, Bilbo McIver, on March 14, 1968, that
Settle would not be back at work. The above-referred-to
conversations took place on March 14, and offer convincing
proof that one day before the Respondent had any knowledge
that Settle intended to file a grievance Shinault had decided
that Settle would be discharged.
Secondly the evidence is not disputed that the Respondent
received approximately 130 grievances dunng the past year,
712 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that the incumbent union has represented its employees since
1952, that the Union represents 700 employees in the
bargaining unit. It appears clear from the record that the filing
of grievance is a routine matter. The record does not contain
even a suggestion that the filing of a grievance invites reprisals
on the grievant. No testimony was adduced by the General
Counsel to the effect that suddenly, without any reason, upon
Settle's deciding to file a grievance, an accepted routine fact of
industrial life was to be regarded as so unusual as to justify the
discharge of the grievant.
Thirdly, and as a corollary to the second point supra, it is
emphasized that there is a complete absence of any evidence of
union animus or discriminatory intent. In conclusion it should
be noted that no evidence was adduced by the General Counsel
establishing a causal connection between the discharge of
Settle and his filing of a grievance.
On the facts in the instant case it seems clear that Settle was
insubordinate in refusing to follow the instructions of his
supervisor Shinault, that he refused to wear clear safety glasses
as he was instructed to do; that he resisted even the efforts of
his union representative to elicit from him a quiet voiced
explanation of his problem, that he asserted he was paying
$4.25 per month in union dues to "do as he pleased." From all
the evidence I conclude that Settle was discharged for the
reasons assigned by the Respondent and not because a
grievance was filed on his behalf by the Union I shall therefore
recommend dismissal of the complaint in its entirety
CONCLUSIONS OF LAW
1 The Respondent is an employer within the meaning of
Section 2(2) of the Act, engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning of
Section 2(5) of the Act
3. The Respondent has not engaged in the alleged unfair
labor practices
RECOMMENDED ORDER
It is recommended that the complaint be dismissed.