Spann Building Maintenance Co.

National Labor Relations Board - Board Decisions

Jun 28, 1985

275 N.L.R.B. 971 (N.L.R.B. 1985)

SPANN MAINTENANCE CO.
Spann Building Maintenance - Co. and Veronica
Lewis. Case 14-CA-16799 ,
28 June 1985
-DECISION AND ORDER
BY CHAIRMAN DOTS014 AND MEMBERS
HUNTER AND DENNIS
On 11 April 1984 Administrative Law Judge
Marion C. Ladwig issued the attached decision.
The Respondent, Spann Building -Maintenance
Company, filed exceptions and a supporting brief.
The Board has considered. the decision and the
record in light of the exceptions and brief and has
decided to vacate the judge's recommended Order
and to affirm his rulings, findings, and conclusions
only to the extent consistent with this Decision and
Order.
1.
Spann Building Maintenance Company excepts
to the judge's conclusion that Spann violated Sec-
tion 8(a)(1) of the National Labor Relations Act by
suspending and subsequently discharging employee
Veronica Lewis following her complaint to her. su-
pervisor concerning her involuntary job transfer.
Spann also excepts to the judge's conclusion that
the policies of the Act would not be effectuated by
deferring this case to the arbitral forum. Addition-
ally, Spann excepts to a number of the judge's fac-
tual findings. We conclude that. the judge's decision
not to defer to the grievance and arbitration proce-
dure was inconsistent with our recent decision in
United Technologies Corp.,' 268 NLRB 557' (1984).
Because we vacate the judge's order on this basis,
we need not address the other matters raised by'
Spann's exceptions.
II.
On 28 January 19831 Spann suspended Lewis`
from her job 'as an office cleaning service worker
after she complained vehemently to her supervisor
concerning" her impending transfer to a different
work location.' ,A few days later, Spann' converted
the suspension' to a discharge. Lewis- filed a griev-
ance concerning the suspension, and Local 50 of
the Service Employees International Union, which
represents a unit of Spann's employees • including
Lewis, filed a'grievance concerning her discharge.
As detailed in the judge's decision, the collective-
bargaining agreement between Local 50 and Spann
contains a grievance and arbitration procedure, the
steps of which Local 50 pursued concerning, the
grievance over Lewis' discharge. There is no indi-
' All dates mentioned are in 1983
971
cation that either Lewis or Local 50 went forward
with the grievance over the suspension.
During the grievance process; Spann offered to
reinstate Lewis to a job at another. location but re-
fused to give her backpay or vacation pay or to re-
instate the seniority she had previously accrued.
After checking whether the offer was acceptable to
Lewis and finding it was not, Local 50 rejected it.
On 10 March, Local 50 requested the Federal Me-
diation and Conciliation Service to supply a panel
of arbitrators from which to select one to arbitrate
the grievance over Lewis' discharge. However,
during the same month, a Local 50 in-house panel
that determines which grievances to take to arbitra-
tion decided not to, seek arbitration of the griev-
ance over Lewis' discharge, because Spann had of-
fered reinstatement, which was Local 50's primary
objective in cases when employees were dis-
charged. Local 50 did. not inform Spann of this de-
cision but, rather, tried to obtain a more generous
settlement offer from Spann. In fact, on 5 May,
Local 50 wrote to Spann that an arbitrator should
be selected for the case. However, an arbitrator
was never selected.
After further efforts failed to reach an acceptable
settlement, Lewis on 23 June filed a charge result-
ing in the case now before us. Lewis was subse-
quently contacted directly by Spann's personnel
manager, Suzanne Bopp, and ultimately accepted
her offer of reinstatement at* a different location as
of 1 August. In her offer, Bopp did-not mention
any terms other than reinstatement. There was no
mention of whether the reinstatement was to con-
stitute settlement of the grievance and neither
Lewis ,nor Local 50 ever withdrew the grievance.
III.
'The judge rejected Spann's arguments for defer-
ral, stating that Spann was seeking deferral not to
the arb itral forum but- rather to a purported settle-
ment. The judge found that the charge was not
filed until all the dispute-resolution machinery re-
quired by the contract had been used without
achieving resolution of the grievance, and that nei-
ther Spann-nor Local 50-was seeking arbitration.
Therefore,, he concluded that the policies of the
Act,would not be effectuated by deferring this case
to, the arbitral forum.
We 'disagree. On the. basis of the facts of this
case,-we conclude that the unfair labor practice al-
legations ;concerning Lewis' discharge should' be
deferred to the ' contractual grievance-arbitration
procedure. In our recent decision in United Tech-
nologies Corp., 268 NLRB 557 (1984), we held that
the policy expressed in National Radio Co., 198
NLRB 527 (1972), of deferring allegations of viola-
275 NLRB No. 135
972 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Lions of Section 8(a)(1) and (3) and 'Section
8(b)(1)(A) and (2) of the Act to established griev-
ance-arbitration procedures in appropriate circum-
stances "deserve[d] to be resurrected and infused
with renewed life." 268 NLRB at 559. In doing so,
we stated:
It is fundamental to the concept of collec-
tive bargaining that the' parties to a collective-
bargaining agreement are bound by the terms
of their contract. Where an employer and a
union have voluntarily elected to create dis-
pute resolution machinery culminating in final
and binding arbitration, it is contrary to the
basic principles of the Act for the Board to
jump into the fray prior to an honest attempt
by the-parties to resolve their disputes through
that machinery' For dispute resolution under
the grievance-arbitration process is as much a
part of collective bargaining as the act of ne-
gotiating the contract [footnote omitted]. In
our view, the statutory purpose of encourag-
ing -the practice and procedure of collective
bargaining is ill-served by permitting the par-
ties to ignore their agreement and to petition
this Board in- the first instance for-remedial
relief. [Ibid.]
In sum, we expressed the core concept of United
Technologies by stating: -
We simply hold that where contractual griev-
ance-arbitration procedures have been invoked
voluntarily, -we shall stay the exercise of the
Board's 'processes in order to permit the par-
ties to give full effect to those procedures. [Id.
at 560 fn. 17.] • _ -
Applying to this case the policy announced in
United Technologies, we note that Lewis' bargaining
representative, with her apparent consent or at
least acquiescence, -filed a grievance over her dis-
charge, pursued the grievance process, and consult-
ed with her concerning acceptable terms for settle-
ment. Accordingly, as the grievance-arbitration
process has been invoked on Lewis''behalf, it is-in-
appropriate for the Board to enter the dispute prior
to completion of that process. While -Spann and
Local 50 have exhausted the steps of their griev-
ance procedure prior to arbitration, Local' 50 has
neither exercised its right to take the grievance to
arbitration nor notified Spann that it is waiving its
right to -do so. Moreover, the grievance has. not
been withdrawn. Although Local 50's in-house
panel decided in March 1983 not to seek arbitration
of the grievance, it did not communicate this deci-
sion to Spann. To the contrary, 2 months later
Local 50 notified` Spann that an arbitrator- should
he - arbi-'be selected to hear this grievance . Thus, t ar
tration option remains open.2 Until Local 50 either
pursues or relinquishes this option, the grievance
and arbitration process has not run its course.
Additionally, the grievance and arbitration pro-
vision contained in the contract between Spann and
Local 50 is broad, appears to be final and binding,
and clearly encompasses-the contentions that com-
prise Lewis' unfair labor practice allegation. Indeed
no argument has been made to the contrary. More-
over, there is no indication that the grievance-arbi-
tration procedure has been or is likely to be unfair
or irregular or has produced or is likely to produce
a result repugnant to the Act.
Contrary to our dissenting colleague, we do not
believe that in considering Spann's deferral defense
we are limited to the precise legal theory proffered
by Spann in support of that defense. Rather, as
Spann timely raised the defense of deferral, we
may consider generally whether deferral is appro-
priate. Furthermore, in urging deferral, Spann cited
primarily our decision in United Technologies Corp.,
supra, which concerned deferral to a prospective
grievance and arbitration procedure rather than de-
ferral to a grievance that had been resolved. Addi-
tionally, in its exceptions to the Board, Spann spe-
cifically took exception to the judge's conclusion
that "the policies of the Act would not be effectu-
ated- by deferring this case to the arbitral forum."
In sum, in failing to consider deferral to the griev-
ance and arbitration process, our dissenting col-
league gives an unwarranted and unnecessarily re-
strictive reading to Spann's deferral defense. We
decline to do likewise.
Accordingly, for -the foregoing reasons, we dis-
miss the complaint but retain jurisdiction as set
forth below '.3
ORDER
The complaint is dismissed, provided that juris-
.diction is retained for the limited purpose of enter-
taining an appropriate and -timely motion for fur-
ther consideration upon a proper showing that
-either (a) the Respondent is resisting or impeding
prompt processing, through the contractual griev-
ance and arbitration procedure, of the grievance
over Lewis' discharge, or (b) the grievance or arbi-
2 Research Specialist Margaret McCann, the only representative of
Local 50 who appeared as a witness at the hearing, testified that Local 50
had decided not-to take-the grievance to arbitration and, as far as it was
concerned; • the grievance process was over However, Local 50 never
notified Spann of this position, and we.do not view McCann's testimony
as constituting such notice.
' This result is compelled by our recent decision in General Dynamics
Corp, 271 NLRB 187 (1984), where we held that we would defer to the
contractual grievance-arbitration procedure when an employee pursued a
grievance over two suspensions through the first four steps of the gnev-
ance process but withdrew the grievance "without prejudice" prior to
going to the fifth step of arbitration -
- SPANN MAINTENANCE CO -
tration- procedures . have not been fair and regular
or have reached a - result that is repugnant to the
Act.4
MEMBER. DENNIS; dissenting. .
I would not defer to the. grievance-arbitration
process in this case, but would decide the com-
plaint on its merits. The Respondent discharged
Veronica Lewis, and the Union filed a grievance.
At one-of the grievance meetings , the Respondent
offered to reinstate -Lewis at another place and
without seniority or backpay. The Union, after
checking with Lewis,-rejected the offer. Because
the Union's main concern was to get back an em-
ployee's job, the Union's in-house grievance com-
mittee decided not to pursue the grievance to: arbi-
tration. Nonetheless, the Union continued to 'pursue
the grievance in an attempt to gain a more favor-
able settlement. Ultimately, after Lewis had filed
an unfair labor practice charge,. she accepted a re-
instatement offer made directly to her. by the. Re-
spondent's personnel manager . The Union has not
withdrawn the grievance.
The Respondent contends that the Board should
defer to the purported grievance settlement. As the
judge found, no settlement was reached and the
grievance was not withdrawn. Thus, the judge cor-
rectly rejected the'-Respondent's deferral defense.'
My colleagues, however, would , defer this case
under United Technologies Corp., 2681 NLRB 557
(1984), to the uncompleted grievance-arbitration
process: I do not agree.
Although the Respondent cites United. Technol-
ogies, it does not request,deferral to. the -grievance-
arbitration process, i.e., to the prospective, resolu-
tion of the grievance through that .process. Even
though the judge issued a Notice to Show Cause
whether prospective deferral would be appropriate,
the Respondent did not request such -deferral but
continued to urge deferral to the purported griev-
ance settlement . Deferral is in the nature of an `af-
firmative defense, and the party seeking deferral
must timely raise the issue . MacDonald Engineering
Co:, 202 NLRB, 748 (1973); Combustion "Engineer-
ing, 272 `NLRB 215 (1984 ) . ' Because "the. Respond-
ent has not raised the prospective deferral issue, de
ferral pursuant to United Technologies is inappropri-
ate.2
4 The Respondent ' must, of course ,--waive any 'applicable,timeliness
provisions of the grievance ' and arbitration provisions of the collective-
bargaining agreement-so that -the gnevance : may be'processed imaccord-
ance with this Order 'a„ - '.•i)7i I - ;" -,
•) Cf'Alpha Beta Co, 273 NLRB'1546) ( 1985), where theBoard de-
ferred to a grievance settlement that ' met the deferral standards set by
Olin Corp, 268 NLRB 573 (1984) ,
2 General Dynamics Corp, 271 NLRB 187 (1984), does not compel de-
ferral, as my colleagues assert In that case , unlike here, the respondent
consistently requested deferral to the grievance -arbitration process:.-o_
973
In addition, deferral to the grievance-arbitration
process is inconsistent .with the teaching of United
-Technologies, in which the Board stated: - -
Where an employer and a union have volun-
tarily elected to create dispute resolution ma-
chinery culminating in final and binding arbi-
tration, it is contrary to the basic principles of
the Act for the Board to jump into the fray
prior to an honest attempt by the parties to re-
solve their disputes through that machinery.
[268 NLRB at 559.]
Here, the Respondent and the Union have made
"an honest attempt," but have failed to resolve the
grievance. No one-neither the Respondent, nor
the Union, nor the General Counsel, nor the
Charging Party-seeks to have the grievance arbi-
trated: Accordingly, I believe it is not premature
for the Board, to "jump into the fray" and resolve
the merits of the unfair labor practice issues. I
would do so. -
DECISION
STATEMENT OF THE CASE
MARION C. LADWIG, Administrative Law Judge. This
case was tried at St. Louis, Missouri, November 14,
1983.1-The charge was filed by Veronica Lewis June 23
and the complaint was issued July. 28. The Company dis-
charged cleaning service worker Lewis for'engaging in a
heated .discussion with her supervisor over'his transfer-
ring her, without her consent, to a distant job beyond the
'evening bus line and his refusing to honor her contrac-
tual 'job seniority. The Company and Union failed to
'settle a•grievance challenging the discharge, and no one
seeks to take the unsettled grievance to arbitration. -
The primary issues are (a), whether the Company, the
Respondent, unlawfully suspended and discharged Lewis
`for engaging' in protected concerted activity in violation
of Section 8(a)(1)' of the National' Labor Relations Act,
,and (b) whether the case should be deferred to the arbi-
tral forum. -' -
On the entire record, including my observation of the
'demeanor of. the witnesses, and after consideration of the
- ,bhefs'frled•by'the,General Counsel and the Company on
both- the .merits and- in response to a Notice to Show
Cause on the:deferral issue, I make the following
- ' - FINDINGS OF'FACT
I. JURISDICTION
T1ie' Company;, a Missouri ` corporation, cleans and
, ifiainfains ' commercial 'buildings in'the St: Louis; Missouri
• -area," where it annually. receives goods valued over
1$50,000 directly- or' indirectly from outside the' State and
performs 'services t'valued over $50,000 for enterprises
,,either - located outside the, State or, located within the
r :' All `dates are in 1983- unless otherwise indicated •
974 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
State and receiving goods valued over $50,000 directly
from outside the State . The Company admits and I. find
that it is an employer engaged in commerce within the
meaning of Section 2 (2), (6), and (7) of the Act and that
Service Employees International Union , Local No. 50,
AFL-CIO (the Union)_ is a labor organization within the
meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Suspension and Discharge of Lewis
1. Seniority rights disregarded
Cleaning service worker Veronica Lewis was em-
ployed under the Union's multiemployer collective-bar-
gaining agreement (G.C. Exh. 2),.which specifically pro-
vided for job security (sec. 8 .01) and that "No employee
shall be transferred except by mutual consent" (sec.
8.02). Since her first employment in 1979, she had been
transferred twice from one job to another, but each time
with her consent. (Her seniority dated from March 2,
1981, when she was rehired after having a baby.)
Since June 1, 1981, she had been working in the Mera-
mec building, one of the 7-Up Company's buildings in
Clayton, Missouri. Her job seniority (next to the highest
among . the cleaning employees in that building ) entitled
her to remain on that job unless she consented to a trans-
fer.
In January, after rebidding the 7-Up account, the
Company decided to ignore the employees' job seniority
at the Meramec building. The new contract, effective
February 1, called for a reduction in the cleaning staff
from 26 to 15 workers at the Meramec and the next-door
Headquarters building (connected by an overhead walk-
way). As acknowledged in the Company's brief, "To
effect the reduction, and to ensure that 7-Up was, given
the best service possible , Respondent 's officials instructed
the supervisor at the 7-Up account, Dave Kipping, to
select the best workers , regardless of seniority , and to lay
off the rest , notwithstanding language in the current
union contract" that "questioned the propriety" of ignor-
ing seniority.
In the latter part of January, Project Supervisor Kip-
ping changed Lewis' job assignment , first reassigning her
work in the Meramec building and then assigning her
work in the Headquarters building. He told her that
under the new 7-Up contract, some of the' employees
would have to go , but he did not reveal his decision to
lay her off. On January 26, she submitted a grievance to
him, complaining about someone else being assigned to
do her work (G.C. Exh; .3). As she credibly testified, she
showed him a copy of the union agreement , pointing out
the part "that you have to ask a person" before making a
transfer, unless "they lose the whole contract complete-
ly." Kipping responded that he did not want to look at it
and "said he'd do what he wanted to do." ,(Tr. 24.) (I
discredit his claim that when Lewis handed him the
grievance , he merely said "Fine" and ' did not discuss it
(Tr. 84-85).)
The next evening , January 27, Supervisor Kipping in-
formed Lewis that. she was being transferred (Monday,
January 31 ) to West Port Plaza . "I told him that he can't
transfer me without my permission , "that" I can't go to
West Port Plaza for the simple reason that my car is rag-
gily," and that the buses do not run out there in the eve-
nings . Kipping "said that 's how it is and that 's how it's
going to be." Then when she said , she did, not want to
work at West Port Plaza and was not going ,.he stated,
"You don't have to go to West Port Plaza but you're not
going to be working here. (Tr. 26.) (I discredit Kipping's
claim that he merely referred her to personnel when she
asked why she was being transferred (Tr. 87). Lewis im-
pressed me most favorably as an honest, forthright wit-
ness, and I credit her version of the conversation.)
The next morning , January 28, Lewis called from her
day job and talked to Personnel Manager Suzanne Bopp,
who said that Kipping had told Bopp that Lewis and her
sister (Stephanie Sykes) were "available to 'go" to West
Port Plaza . Lewis denied telling Kipping that she wanted
to go there.
That Friday evening, January 28, was to be her last
day at the 7-Up account, where she had public transpor-
tation . Although her seniority entitled her to remain at
her Meramec building job * unless she consented to a
transfer , her supervisor was ignoring her seniority and
had told the personnel manager that she was available
for transfer to the distant assignment, beyond the
evening bus line. There was no job steward to assist her
in protecting her seniority rights. She had already filed a
grievance , complaining about being reassigned , but since
then she had learned that the Company was compelling
her to take the distant transfer or be laid off, despite her
contractual rights.
It was under these circumstances that Lewis met with
Project Supervisor Kipping to invoke her seniority rights
under the collective-bargaining agreement.
2. Job seniority invoked
When Lewis arrived at work Friday, July 28, on the
5:30 p.m. shift, John Harris (another service worker in
the Meramec building) told her that Dave Kipping
wanted to see Harris at the end of the evening shift, but
that no, he was not waiting because "they was -saying
that somebody was taking over his job." Lewis followed
Harris to Kipping's basement office in the Headquarters
building and waited outside the supervisor's open door,
out of Kipping's view . (Tr. 33-34.)
Kipping confirmed Harris ' layoff. Harris became en-
raged and loudly protested . He questioned Kipping's
waiting , until "I get. through doing my work" that
evening "and then just ship me off to West Port Plaza"
(Ti. 30).
Lewis then entered the office and asked Kipping why
he told Personnel Manager Bopp that Lewis was avail-
able to go to West Port Plaza (in effect , disputing Kip-
ping's denial). In a louder- than normal voice, Lewis
"asked him how in the hell was he going to put less se-
niority in Imy place and I'm the. second highest seniori-
,ty." In his usual loud voice , Kipping responded that was
how ; it was going to be. She-showed him the 'union
agreement and told him, "You have to ask the person, do
they want to . transfer," but Kipping again responded
"that's how it is and that 's how it 's going to be." (Tr. 36,
SPANN MAINTENANCE 'CO
42.) (Kipping claimed that Lewis instead said "goddamn
you, you don't tell me a goddamn thing" why she was
being transferred (Tr. 92, 115), but Lewis -credibly
denied using the word "goddamh" (Tr. 174).)
Harris (who did not testify) then resumed his loud pro-
tests until the 7-Up contact representative Allen Dorsey
(who also did not testify) came downstairs and entered
the office. Kipping's testimony is ' undisputed that Harris
was very loud, profane, and abusive, and leaned over
Kipping's desk, causing Kipping to feel physically'threat-
ened (Tr. 91). Kipping directed Harris to go back to
work.
When- Dorsey entered, he said they were getting too
loud and that they would have' to keep. the' noise down
(Tr. 37, 62). As Lewis credibly' testified, Harris told'
Dorsey something like "You ain't got nothing to do with
this." Kipping said he would take care of it, and Dorsey
left. After some further conversation, Harris also left.
Before'leaving the office, Lewis spoke to Kipping's as-
sistant Jim Weiniecke (who had walked in), repeating the'
question, "How in the hell are you going to 'put less' se-
niority in my place?" without any response (Tr. 38).-
3. The suspension and discharge
Shortly after the incident.in his office, Supervisor,Kip-
ping went' to the Meramec building. (where. Lewis was.
getting a soda before going to work) and told,_,both.
Harris and Lewis that they were suspended for further
investigation. A security guard escorted Harris, from, the
property and Kipping escorted Lewis.,(Tr. .40, 63,,95.)
Kipping testified that, his only reason for suspending
Lewis was the January 28 incident,in,his office (Tr.,124).
On January 31, Kipping prepared a written report: of
the incident, delivered it (with the 7-Up security incident
report) to Personnel Manager Bopp, and discussed it
with-her (Tr. 137). On February , 4, the Company ,sent
Lewis a discharge 'letter , stating ;that her, employment
"has been terminated effective'2/3/83''due4-"to improper,
conduct and the use of abusive language to the -customer
and to your supervisor" (G.C. Exh. 51.
At the trial, Personnel' Manager Bopp testified that the'
January 28 incident was the sole basis for the,'diseharge
(Tr.. 163) and that she and President R. L Hardy (who
did not testify) relied on Supervisor Kipping's'report and'
the 7-Up security incident report in deciding to'dis=
charge Lewis (Tr. 137). I note, however, `that there is
nothing. in either report to . support the statement in the'
discharge letter that Lewis used ."abusive language; to the
customer." (The `General Counsel 'does not contend that-
the Company unlawfully -discharged Harris, who did'
shout at the 7=Up -representative'- Dorsey ' and 'who ` has
withdrawn the gr'ievance'cliallenging his`discharge`:) '
Kipping's January 31. repori (R 'Exh. "2); asserts' that
Lewis "became loud, abrasive ' and ` used profane- la'n-
guage," without mentioning' any `abusive language • to the
:.Exh: 3);customer. The 7=Up security incident' report-(R.
introduced in evidence as,_a`"documentoii*which the:
Company relied in making its decision to discharge
Lewis (Tr. 101), refers to misconduct of Harris-not
Lewis-toward • Dorsey:, It states that 'it was' prepared ;at
7:15 p.m., January 28, and''that ` ' ' ` ' - ` _ . - ' = - `
975
At 6:05 PM it was reported to security Guard
Cole by 7 Up contracting manager Allen Dorsey
that a disturbance was in progress on P-1 level. I
immediately responded to P-1 where I was met by
Spann Supervisor David' Kipping who stated that
he wanted Spann employees Veronica Lewis and
John Harris removed from the premises.
I then proceeded to the Meramac building to tell
John Harris to leave the building. He stated to me
that I was lying and he, wasn't going to leave be-
cause his supervisor told him to stay and
work. . . I then proceeded immediately to escort
him out . . . . I then located Allen Dorsey to get
his statement on what happened to cause the inci-
dent. He stated that he, was getting supplies on P-1
,level when he heard loud voices and bad language
being used. He then stated that he instructed Spann
employee John Harris that his actions was not per-
mitted on, 7 . Up property.' He then told Allen
Dorsey that the situation was none of Allen Dorsey
damn business. Allen Dorsey then' stated that he
went for security personnel.
Security guard Cole did not testify. Whether or not his
report was accurate, there is nothing in it to support the
claim that Lewis used' abusive` language to the customer.
I therefore find that this purported reason for Lewis' dis-
charge was pretextual.
""I`also `note that by the time of trial, Supervisor Kip-
ping had fabricated ' another ' purported reason for sus-
pending Lewis. Although he made no mention of it in
his- January 31 report, Kipping claimed that when Allen
Dorsey entered his office 'January 28, Dorsey said that
"these people have got to leave, "now" (Tr. 93). He re-
peated ' this claim on cross-examination. He said John
and Veronica will have to go. They're going to have to
leave: We cannot tolerate them here.. .. He said most
definitely they will have to leave. .. . I do not remem-
ber what I told the Board agent, but Mr. Dorsey did tell
me they'd have' to leave the building." (Tr._ 119-120.)
This testimony.was obviously fabricated to bolster the
Company's defense. If the 7-Up representative had said
that 'Harris' and Lewis must leave the building at' once,
undoubtedly `Kipping would not have flouted the order
ey instructing Harris (or Harris and Lewis) to return to,
work. According to Kipping, "I told' Harris at that time
to ' go back to * his station 'and to begin work .. .. Be-
cause `I did not' want to' suspend him in front of other
service workers: I didn't think'it was professional and I
didn't want to'embarrass-him."When asked about'Lewis,'
Kipping 'claimed; - "Same ' way, yes. I told them. to go
back -to their stations.'- F. would not reprimand or tell
anyone-they were suspended- in front of other people."
(Tr. -94),(Kippin'g "claimed 'thaf an employee and 'an un-
knownn`with a service'cart'were standing outside
the'door (Tr. 117).)
I discredit, `as an afterthought, Kipping's claim that
Dorsey told'-him that Harris and Lewis must leave the
building. (By his demeanor on the stand, Kipping ap-
peared willing to give whatever testimony might help
the - Company's 'cause .) I also _ discredit Kipping 's= claim
that 'Dorsey was standing outside the office door when
976 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
'Lewis entered (Tr. 118), that Dorsey was standing there
when she made her protest (Tr. 116), and that before en-
tering the office, Dorsey went upstairs and got the secu-
rity guards (Tr. 93).
4. Contentions and concluding findings
The General Counsel contends that when Veronica
Lewis protested her layoff to Supervisor Dave Kipping
on January 28, she was endeavoring to enforce the pro-
visions of the collective-bargaining agreement and was
engaged in protected concerted activity. Citing Interboro
Contractors, 157 NLRB 1295 (1966), enfd. 388 F.2d 495
(2d Cir. 1967), the General Counsel argues that "The
fact that Lewis' complaint to Supervisor Kipping .. .
was made by Lewis alone does not make her conduct
any less concerted." He also argues that under the au-
thorities, Lewis' use of a mild epithet, "how in the hell"
(or' even "goddamn,"'as claimed by Kipping) "was not
so flagrant or egregious to warrant the removal of the
Act's protection."
The Company contends that Lewis' conduct was nei-
ther concerted (being mere "personal gripes about her
job alone") nor protected. Although conceding that "It
is well settled that employees cannot lawfully be dis-
charged for rude or impertinent conduct in the course of
presenting grievances to an employer," the Company
contends that Lewis crossed the line of protected activi-
ty "when she chose to join Harris on January 28 in the
verbal and physical intimidation of kipping, her,supervi-
sor, in a public location, in front of other employees and
an important customer representative, Allen Dorsey."
Despite her later reinstatement, the Company contends
that her "vituperative behavior" rendered her "unfit for
future service." Relying upon discredited testimony, the
Company contends that most important, Dorsey "could
hear the profanity and uproar and demanded that Lewis
and Harris be removed from the premises." The Compa-
ny also contends that "Lewis' outburst was violent, loud,
and abusive" and that "she was discharged for her public
disturbance, which threatened customer relations." The
credible evidence does not support these contentions.
I find that Lewis made a reasonable and honest at-
tempt to persuade Supervisor Kipping in the January'28
meeting to honor her job seniority under the collective-
bargaining agreement and that , in doing so, she was en-
gaged in concerted activity. NLRB v. City Disposal Sys-
tems, 104 S.Ct. 1505, 1516 (1984), In this recent decision,
the United States Supreme Court held that
The NLRB's Interboro doctrine recognizes' as
concerted activity an individual employee's reasona-
ble and 'honest invocation of a right provided' for in
his collective-bargaining agreement . We conclude
that the doctrine constitutes a reasonable interpreta-
tion of the Act.
The -remaining question is whether Lewis was engaged
in protected activity when she protested to Supervisor
Kipping in his office, in a louder than normal voice,
"how in the hell" was he going to put an employee with
less seniority in her place (or, as claimed by Kipping,
told him "goddamn you, you don't tell me a goddamn
thing"). Although as many as two employees-may have
overheard Lewis'-remark through the open door, it was
not overheard by the 7-Up representative Dorsey, who
arrived later when employee Harris was using "very
loud, profane, and abusive" language and who stated
they would have to keep the noise down.
In City Disposal Systems (104 S Ct. at 1514), after up-
holding "the Board's judgment that'the employee is en-
gaged in concerted activity" when his statement or
action is based on a reasonable and honest belief in a col-
lectively bargained right, "just as he would have been
had he filed a formal grievance," the Supreme Court
noted that "'An employee may engage in concerted ac-
tivity in such an abusive manner that he loses the protec-
tion of 7" of the Act, citing Crown Central Petroleum
Corp. v. NLRB, 430 F.2d 724, 729 (5th Cir. 1970).
Crown Central involved the disciplining of two em-
ployees for statements they made during a grievance
meeting. The court of appeals (430 F.2d at 729) ruled
that "An employee -may not act with impunity even
though he is engaged in protected activity. His rights,
derived from Section 7, must be balanced against the em-
ployer's right to maintain order in his business by punish-
ing acts of insubordination." In approving "the balance
struck by the Board," the court observed (at 730) that
"On the employer's side of the scale lies the injury done
the Company by intemperate and insubordinate remarks
directed toward a supervisor during a grievance meeting
and in the presence of four other employees"-distin-
guishing 'a situation in which "all the plant employees
were present." The court ruled (at 731, footnotes omit-
ted) that
Here the remarks were pertinent to a discussion of
the grievance under consideration at the meeting.
"[A)s long- as the activities' engaged in are lawful
and the character of the conduct. is not indefensible
in the context of the grievance involved, the em-
ployees are protected under '7 of the act." Neither
do we think the language used by Harris and Gil-
liam was so opprobrious as to carry them "beyond
the pale" of the Act's protection. It has been repeat-
edly observed that passions run- high in labor dis-
putes and that epithets and accusations are com-
monplace. Grievance meetings arising out of -dis-
putes between employer and employee are not cal-
culated to create an aura of total peace and tranquil-
ity where compliments are lavishly exchanged.
As found by the court (at 726), employee Harns stated
or implied in-the meeting involving his own grievance
that the supervisor's denial that overtimewas ordered
was a lie , that Harris used profanity in doing so, and that
he reminded the supervisor and other company repre-
sentatives "that they would be called upon after death
and in the hereafter-in a bargaining session yet, -to
come-to answer for their earthly prevarications." The
court enforced the Board's order, upholding the finding
that the company violated Section 8(a)(1) by giving
Harns a reprimand and warning for "abusive and insub-
ordinate language directed at supervisor" and by giving
employee Gilliam (chairman of the Workmen's Commit-
SPANN MAINTENANCE CO
tee) a 1-day suspension for having tolerated and joined in
Harris ' conduct.
Here, cleaning service worker Lewis was, in the ab-
sence of a union steward on the job, presenting her own
protest or oral -grievance to Supervisor Kipping in his
office. Her remarks were pertinent to her protest that her
job seniority rights under the union agreement were
being violated. ' I find it clear that her conduct was not
indefensible in the context of the discussion, and that her
language "how in the hell" (or, as claimed by Kipping,
"goddamn you, you don't tell me a goddamn thing") was
not "so opprobrious to carry" her "beyond the pale" of
her Section 7 rights. I therefore find, upon balancing her
Section 7 ,rights "against the employer's rights to main-
tain order in his business by punishing acts of insubordi-
nation," that the Company suspended her January 28 and
discharged her February 3, 1983, for engaging in protect-
ed concerted activity, in violation of Section 8(a)(1) of
the Act. In view of this finding, I find it unnecessary to
rule on whether the suspension and discharge also violat-
ed Section 8(a)(3).
B. The Deferral Issue
1. Unresolved grievance
Section 5.02 of the collective-bargaining agreement
(G.C. Exh. 2) provides that "The Employer agrees that
he will not discharge any employee except for justifiable
reason , which reason shall be given to the employee im-
mediately upon discharge."
Section 19.01 of the Grievance and Arbitration Proce-
dure provides that "a grievance is defined as an employ-
ee or Union's dispute, claim or complaint involving the
interpretation or application of the provisions of this
agreement"; that "the Employer and the Union shall
make an honest and sincere effort to adjust" such a dis-
pute "in an amicable manner"; and that if they areunable
to do so, "the question may, at the option of the Union,"
be submitted to arbitration: The' agreement is silent on
the disposition of a dispute if the grievance remains unre-
solved in the three-step grievance procedure and the
Union, as in the present case, takes its option not to
submit the question-to arbitration and fails to proceed
with the selection of an arbitrator. (The agreement does
not provide in this event for withdrawal or settlement of
the grievance, or for acceptance of the Employer's last
offer.)
• Lewis did-not file a grievance contesting her termina-
tion, but the Union did file a grievance under section
19.01, naming "Local 50" as the aggrieved party, alleg-
ing the "unjust discharge of John Harris and Ms. V.
Lewis." The Company and Union held the second-step
meeting February 15 (R. Exh. 45); the Union submitted a
request for an arbitration panel in the Lewis case March
10 (R. Exh. 16); the parties held the third-step meeting
April 7; and on May 5, the Union notified the Company
that in the Harris' case "The Union hereby withdraws
this grievance" (R. Exh. 17). .
- In the April 7 meeting, the Company offered to settle
the Lewis discharge grievance by offering her reinstate-
ment at a different place, without backpay or seniority.
'The Union's spokesman, Research Specialist. Margaret
977
McCann, stated that Lewis' seniority would be a key to
settling the grievance. (Tr. 179, 185.) After checking
with Lewis, McCann stated in the May 5 letter to the
Company that "The settlement offer was unacceptable,
therefore, we need to select an arbitrator for the case"
(R. Exh. 17).
Meanwhile, although McCann continued to seek a sat-
isfactory settlement, she notified Lewis (but not' the
Company) that a union in-house panel had voted that the
grievance was not arbitrable. McCann explained that the
Union's "first criteria is getting people their jobs back,"
and "she could have her job back" under the Company's
offer (but at a different location and without backpay, se-
niority, or other benefits). (Tr. 191-192.) She testified
positively that the Union was, not arbitrating the case
(Tr. 191).
In a telephone conversation on May 31, Personnel
Manager Bopp told McCann that the Company, would
offer Lewis a job in the nearby Blue Cross building on
Forest Park, but without her prior seniority (Tr. 181-
182). McCann confirmed this offer in writing (stating in
her June 1 letter to Bopp reviewing the status of several
grievances that in the Lewis case, "Settlement pending:
Reinstatement to former position in another building" (R.
Exh. 18), but the Union continued to insist upon the res-
toration of Lewis' seniority as a condition for settling the
grievance (Tr. 185). Lewis was also asking for vacation
pay (Tr. 158).
Finally on June 16 (over 4 months after the discharge),
Personnel Manager Bopp reaffirmed the Company's posi-
tion in writing, offering in settlement of the grievance re-
instatement at another place, without backpay, seniority,
or vacation pay. She offered again to place Lewis in the
Blue Cross building, with the "date she starts work" to
"become her new seniority date." (R. Exh. 19.)
Lewis refused the settlement offer , and the grievance
remained unresolved (Tr. 188-189). -
2. Reinstatement after charge filed
On June 23, a week after the Company's last offer to
settle the grievance, Lewis filed the charge in this pro-
ceeding.
About a week' later, Personnel Manager Bopp tele-
phoned Lewis about filing the charge. As Lewis credibly
testified, "I say yes, that's right because ... you didn't
give me backpay, you didn't give me my seniority, and
you didn't give me my vacation checks, you didn't give
me nothing." At that-point (as Lewis further testified
without any rebuttal),' Bopp stated "we'll also give you
your vacation checks and. we'll give you your .seniority
back." Lewis, having been off the job about 5 months,
refused to settle the charge on that basis. (Tr. 171.)
Lewis remained off..the job another month.until Per-
sonnel Manager Bopp again contacted her, a few days
before the complaint was issued July 28. When Lewis re-
turned the call July 25, Bopp offered to reinstate her
August 1 at the Blue • Cross building-without backpay,
without -the previously offered seniority and vacation
pay, and without any mention of settling either the pend-
ing NLRB charge or the unresolved grievance. Lewis
agreed and returned to work August 1. (Tr. 172-173.)
978 DECISIONS OF NATIONAL ;LABOR RELATIONS BOARD
3. Contentions of the parties on deferral
In his brief on the merits, the General Counsel disputes
the Company's defense that a settlement of Lewis' griev-
ance forecloses a Board remedy. He contend that the
argument is frivolous because it is "patently obvious"
that there was never a settlement of the grievance. "It is
abundantly clear that reinstatement of Lewis on August
1" was not in settlement of the grievance, but "was de-
signed solely to toll Lewis' backpay after the instant
charge had been filed."
In its original brief, the Company' proffered two theo-
ries for arguing that the Lewis grievance was settled.
First, after citing McC-ann's disclosure at the trial that
the Union decided to forgo arbitration because of the re-
instatement offer, the Company goes outside the ^ record
and asserts-without citing any supporting evidence-
that "it is generally understood that failure to arbitrate
constitutes a settlement of the grievance on the basis of
Respondent's last offer." Second, contrary_ to the undis-
puted evidence, the Company argues that Lewis-,was re-
instated as a result of a settlement of her grievance.
Both parties later filed briefs in response to my- March
1, 1984 Notice'to Show Cause "whether the issues in this
case should be deferred to the grievance-arbitration pro-
visions of the collective-bargaining agreement , with'the
Board retaining jurisdiction for the limited purpose
stated" in the recent Board decision in United Technol-
ogies Corp., 268 NLRB 557 (1984).
. In his response , "the General Counsel vigorously op-
poses deferral of this case to the- grievance-arbitration
-procedure," contending that immediate remedial action is
critical to 'protect Lewis' own statutory rights and to
prevent other'employees from being discouraged in the
exercise of their statutory rights. He argues that the first
and foremost reason "this case should not be deferred to
the parties' grievance-arbitration procedure is that this
procedure has already been utilized by the parties with-
out any resolution of the issue having been reached."
Furthermore, nothing in United Technologies "disturbs
the settled tenet that deferral requires two parties to the
grievance-arbitration procedure ready and willing to
process the grievance through arbitration." Here the
Company does not seek arbitration; "the Union has no
intention of pursuing Lewis' grievance through any fur-
ther steps of the grievance procedure"; and it would not
be appropriate to defer but retain jurisdiction for further
consideration upon a showing that the dispute "has not
. . -. been resolved by amicable settlement of the griev-
ance or submitted promptly to arbitration." The'General
Counsel also contends that the operative events occurred
over a year ago; the case was tried well before the deci-
sion in United Technologies was issued, and forcing the
Company and Union "to, in effect, relitigate this entire
case in another forum would be, at best, fundamentally
unfair and a gross drain upon the parties' resources."
The Company in its response continues to-argue that a
settlement was reached and that Lewis was reinstated
,.as a result" of that settlement. It erroneously contends
that Union Representative McCann testified that the
Union was "satisfied" with the reinstatement offer (to a
different place, without backpay, accrued seniority, or
vacation pay)-contrary to the undisputed evidence that
both the Union and Lewis continued to seek a satisfac-
tory settlement after the Union's no-arbitration decision
was reached. It also erroneously contends that "Only
after the offer was accepted did Miss Lewis or the union
representative convey any disagreement to the Compa-
ny"-contrary to the undisputed evidence that-the offer
for reinstatement alone, as well _as the offer for reinstate-
ment plus seniority and vacation pay to settle the NLRB
charge, was rejected until weeks later when the Compa-
ny again made the reinstatement offer, not -to settle either
the grievance or charge but obviously'to toll backpay.
Although the Company does not seek arbitration, it
argues that-the "spent of deferral is clearly in line with
the policies expressed by the Board in United Technol-
ogies," and contends that "the Board should defer to the
resolution of this dispute through the contractual griev-
ance-arbitration machinery" (i.e., defer to the purported
settlement).
4:-- Concluding' findings on deferral
The Company and Union have agreed to a dispute res-
olution machinery, but submission to arbitration is at the
Union's. option. The collective-bargaining agreement
does not provide `for withdrawal or settlement of a griev-
ance , or for,acceptance of the Company's last offer, if
the parties reach aideadlock in resolving the grievance
and no arbitration.is held.
Because of the Union's "first criteria in getting people
their jobs back," it decided (without informing the. Com-
pany) that- Lewis'. discharge grievance was not arbitrable
in view, of the Company's offer to reinstate her-at a dif-
ferent location, without backpay, seniority, or vacation
pay. The Union and Lewis continued to seek a more sat-
isfactory settlement of the grievance, until a deadlock
was reached when the Company reaffirmed, its decision
in its June 16 letter not to offer more than reinstatement
alone and the settlement offer was rejected.
It was a week after this deadlock in settlement efforts
that Lewis filed her NLRB charge. About a month later,
the Company offered (and Lewis accepted) reinstate-
ment , not in settlement of either the charge or the griev-
ance , but to toll any backpay. Neither the Company nor
the Union seeks arbitration of the grievance. '
In United Technologies Corp., above, '268 NLRB 557,
560 (1984), in contrast to this case, the respondent em-
ployer "expressed its willingness , indeed its eagerness, to
arbitrate the dispute." There, the employer (id. at 557)
denied the union 's grievance at the third step, the union
withdrew its grievance "without'prejudice"; the employ-
er filed its own grievance to protest the union's refusal to
withdraw the grievance "with prejudice"; and the union
refused the employer's request to arbitrate the matter.
The Board ruled (id. at 559, fn. omitted) that
Where an employer and a union have voluntarily
elected to create dispute resolution machinery cul-
minating in final and binding arbitration, it is con-
trary to the basic principles of the Act for the
Board to jump into the fray prior to an honest at-
tempt by the parties to resolve their disputes
through- that machinery. For dispute resolution
SPANN MAINTENANCE CO.
under the grievance -arbitration process is as much a
part of collective bargaining as the act of negotiat-
ing the contract. In our view, the statutory purpose
of encouraging the practice and procedure of col-
lective bargaining is ill-served by permitting the
parties to ignore their agreement and to petition this
Board in the first instance for remedial relief.
In the present case , the charge was not filed until the
parties made an honest attempt over a 4-month period to
resolve the Lewis discharge grievance through the dis-
pute resolution machinery, but failed to reach a settle-
ment. The Union exercised its contractual option not to
take the grievance to arbitration. The Company is not
seeking a deferral to the arbitral forum , but is seeking a
deferral to a purported settlement.
In- effect, the Company is seeking to graft onto the
grievance-arbitration procedure a waiver provision, that
a failure to arbitrate constitutes a settlement of the griev-
ance on the basis of the Company 's last offer . That is a
matter for negotiations , not something to be inferred. As
negotiated , section 19 .01 of the collective -bargaining
agreement gives the Union an unrestricted option, stating
that "representatives of the Employer and the Union
shall make an honest and sincere effort to adjust [the'
grievance] in an amicable manner. In the event , howev-
er, of the inability of the Employer and the Union to
reach an agreement on the issue in dispute , the question
may, at the option of the Union," , be submitted for arbi-
tration.
Having found that the charge was not filed until all
the dispute resolution machinery required by the collec=
979
tive-bargaining agreement had been utilized without any
resolution of the Lewis discharge grievance being
reached, and that neither the Company nor the Union is
seeking arbitration of the grievance, I find that the poli-
cies of the Act would not be effectuated by deferring
this case to the arbitral forum. '
CONCLUSIONS OF LAW
1. By suspending Veronica Lewis January 28 and dis-
charging her February 3, 1983, for engaging in protected
concerted activity, the Company engaged in unfair labor
practices affecting commerce within the meaning of Sec-
tion 8(a)(1) and Section 2(6) and (7) of the Act.
2. The policies of the Act would not be effectuated by
deferring this case to the arbitral forum.
REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices , I find it necessary to order it
to cease and desist and to take certain affirmative action
designed to effectuate the policies of the Act.
The Respondent having unlawfully suspended and dis-
charged an employee, it must make her whole for any
loss of earnings and other benefits, computed on a quar-
terly basis from date of "suspension to date of her rein-
statement , less any net interim earnings , as prescribed in
F. W. Woolworth Co., 90 NLRB 289 (1950),-plus interest
as computed in Florida Steel Corp., 231 NLRB 651
(1977).
[Recommended Order omitted from publication.]