T & T Industries, Inc.

National Labor Relations Board - Board Decisions

Mar 30, 1978

235 N.L.R.B. 517 (N.L.R.B. 1978)

T & T INDUSTRIES, INC.
T & T Industries, Inc. and Daniel W. Jagodzinski.
Case 7-CA-13656
March 30, 1978
DECISION AND ORDER
BY MEMBERS JENKINS, MURPHY, AND
TRUESDALE
On August 18, 1977, Administrative Law Judge
Thomas D. Johnston issued the attached Decision in
this proceeding. Thereafter, Respondent filed excep-
tions and a supporting 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
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 brief
and has decided to affirm the rulings, findings,1 and
conclusions2 of the Administrative Law Judge, to
modify his remedy so that interest will be computed
in the manner prescribed in Florida Steel Corporation,
231 NLRB 651 (1977), and to adopt his recommend-
ed Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that Respondent, T & T Industries,
Inc., Detroit, Michigan, its officers, agents, succes-
sors, and assigns, shall take the action set forth in the
said recommended Order, except that the attached
notice is substituted for that of the Administrative
Law Judge.
Respondent 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 credibili-
ty 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 (C.A. 3, 1951). We have carefully
examined the record and find no basis for reversing his findings.
2 We adopt the Administrative Law Judge's conclusion that there is no
basis in the instant case for deferring, under Spielberg Manufacturing
Company, 112 NLRB 1080 (1955), to the agreement between Respondent
and the Union concerning Jagodzinski's gnevance over his discharge.
Although the contract provided for a grievance procedure culminating in
binding arbitration, the parties settled the grievance at an earlier stage of the
procedure. In these circumstances we conclude that "the full range of the
mechanism for the determination of the dispute has not been utilized and
there is no award that may be examined for its conformity with Spielberg
requirements." Whirlpool Corporation, Evansville Division, 216 NLRB 183,
186 (1975). Although the agreement was reached at a meeting held before a
mediator provided by the Michigan Employment Relations Commission,
there was no formal hearing and the record does not establish that the
mediator had the authority to make a determinative resolution of the
dispute. Accordingly, we conclude that there is no showing that the
Spielberg requirements have been met. See Super Value Xenia, a Division of
Super Valu Stores, Inc., 228 NLRB 1254 (1977).
235 NLRB No. 73
Additionally, Member Murphy finds this case distinguishable from
United Parcel Service, Inc., 232 NLRB 1114 (1977), in which the majority
deferred to a bipartite panel award inasmuch as in United Parcel the panel
award was made after a formal arbitration proceeding pursuant to the last
step of the contractual grievance procedure.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discharge or otherwise discrimi-
nate against any of our employees in regard to
their hire, tenure of employment, or any term or
condition of employment because they have
engaged in concerted activities for the purpose of
collective bargaining or other mutual aid or
protection.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of their rights to engage in, or to refrain
from engaging in, any or all of the activities
specified in Section 7 of the Act, except to the
extent that such rights may be affected by an
agreement requiring membership in a labor orga-
nization as a condition of employment, as autho-
rized in Section 8(a)(3) of the National Labor
Relations Act, as amended.
WE WILL offer Daniel Jagodzinski immediate
and full reinstatement to his former job or, if that
job no longer exists, to a substantially equivalent
job without prejudice to seniority and other rights
and privileges and WE WILL make him whole for
any loss of earnings or other compensation he
may have lost because we discriminatorily dis-
charged him, plus interest.
T & T INDUSTRIES, INC.
DECISION
STATEMENT OF THE CASE
THOMAS D. JOHNSTON, Administrative Law Judge: This
case was heard in Detroit, Michigan, on April 5, 1977,
pursuant to a charge filed on January 12, 1977, by Daniel
W. Jagodzinski, an individual, and a complaint issued on
February 16, 1977.
The complaint alleges that T & T Industries, Inc. (herein
called Respondent), violated Section 8(a)( 1) of the Nation-
al Labor Relations Act, as amended (herein called the Act),
by discharging Daniel Jagodzinski because he refused to
drive a tractor alleged to be unsafe because it was blowing
fuses and because he sought to exercise his contractual
right to refuse to do a job which would be injurious to his
health or safety, which conduct interfered with, restrained,
and coerced its employees in the exercise of their rights
guaranteed in Section 7 of the Act.
517
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent in its answer filed on February 28, 1977,
which was amended at the hearing, denies having violated
the Act.
The primary issue involved is whether Respondent
violated Section 8(a)(1) of the Act by discriminatorily
discharging Daniel Jagodzinski because of his protected
concerted activities. An additional issue is whether pro-
ceedings under the grievance procedures of the contract
between Respondent and the Union involving his dis-
charge precludes finding a violation of the Act.
Upon the entire record in this case and from my
observations of the witnesses and after due consideration
of the brief filed by Respondent 2 I hereby make the
following: 3
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Respondent, a Michigan corporation, with its office and
place of business located in Detroit, Michigan, is engaged
in the business of the repair of steel shipping containers for
the automotive industry. During the fiscal year ending
September 1976, 4 a representative period, Respondent in
the course of its operations performed services valued in
excess of $450,000 for various enterprises located in States
outside the State of Michigan.
Respondent is an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Local 267, International Union, Allied Industrial Work-
ers of America, AFL-CIO (herein called the Union), is a
labor organization within the meaning of Section 2(5) of
the Act.
III. THE UNFAIR LABOR PRACTICES
A. Background
Respondent operates a facility located in Detroit, Michi-
gan, where it is engaged in the business of the repair of steel
shipping containers for the automotive industry. Included
among its supervisory personnel are General Manager
James Douglas, Jr., and Foreman John Bailey.5
The employees of Respondent are represented by the
Union with which it has a collective-bargaining agreement
covering them. This agreement effective from August 18,
1975, until August 18, 1977, with automatic renewal
provisions contains, in pertinent part, a grievance and
arbitration procedure and the following safety provision:
I The General Counsel's unopposed motion to correct the transcript is
hereby granted.
2 Neither the General Counsel, who argued orally on the record, nor the
Charging Party submitted briefs.
3 Unless otherwise indicated the findings are based on the pleadings,
admissions, stipulations, and undisputed evidence contained in its record
which I credit.
All dates referred to are in 1976 unless otherwise stated.
s Both General Manager Douglas and Foreman Bailey are supervisors
under the Act.
The Company will make all necessary provisions for
the Safety and Health of its employees. All machinery
and equipment shall be kept in safe working order at all
times and the Company shall provide all employees
with all the necessary safety equipment, and safety
devices. No employee will be required to work on any
job or operation under conditions which would be
injurious to his health or safety.
B. Jagodzinski's Discharge
Daniel Jagodzinski, a member of the bargaining unit,
was employed by Respondent as a truckdriver from
January 25 until his discharge on July 23 and worked
under the supervision of Foreman Bailey.
On July 23, Jagodzinski reported to work about 6 a.m.
According to him the weather was cloudy and dark and it
had rained earlier. After being assigned to drive a Chevro-
let tractor to deliver a load to Saginaw, Michigan, when
checking the tractor, which was a required procedure, he
discovered that a fuse had blown and the running lights
and brake lights on the trailer were not working. He
attempted to repair the lights by replacing a fuse on four
different occasions; however, each time he turned on the
lights of the tractor after changing the fuse, the fuse would
blow, and the trailer lights would not work.
Both Jagodzinski, who operated the tractor on previous
occasions, and David Madison, Jr., a millwright, who
performed minor maintenance work on Respondent's
tractors, stated there had been prior problems with fuses
blowing on the tractor. Foreman Bailey also acknowledged
fuses had blown on the tractor before.6 Although certain
repairs had been made on the tractor by the Jefferson
Chevrolet Co. on or about June 21, it was not established
that the tractor lights were checked on that occasion nor
were the trailer lights checked.
About 7 a.m., after unsuccessfully attempting to repair
the lights, Jagodzinski reported the matter to his supervi-
sor, Foreman Bailey.7
Jagodzinski's version of their conversation was he told
Bailey he wasn't going to take the truck on the road to
Saginaw until the lights were fixed because it was unsafe
and he had changed four fuses.s Bailey's response was
there was no time to fix the truck and he had to take the
load to Saginaw and was holding up production and told
him to take the truck out or to punch out. On telling Bailey
he was going to punch out, Bailey told him to go ahead and
punch out. However, about 7:10 a.m., after getting his
suitcase and tools out of the tractor but before punching
out, Bailey told him not to bother punching out because he
had pulled his card and that he was fired. Bailey handed
6 Foreman Bailey attributed the problem of the fuses blowing to the
unauthorized installation of a tape deck in the tractor by Jagodzinski.
However, the tape deck had been removed several months prior to July 23.
7 Although Jagodzinski stated Johnny Rhodes was present, Rhodes, who
testified about other matters, did not testify concerning this conversation.
I Jagodzinski believed the tractor to be unsafe because of the weather
conditions and because even in the daylight he needed lights to pass other
vehicles and in cases oif emergencies.
518
T & T INDUSTRIES, INC.
him a writeup signed by Foreman Bailey and by David
Madison, Jr., as the Union's representative.9 The writeup
stated he had been discharged because he "would not take
load. I ask man to take truck out and he said he would not
take it. This man's been here since 6 a.m."
Jagodzinski informed Bailey he was going to get his
steward. Although Jagodzinski stated he did not hear what
Madison talked to Bailey about he left after Madison
talked to Bailey and then himself.
David Madison, Jr., presented as a witness by the
General Counsel, testified that on that morning Jagodzin-
ski in the presence of Foreman Bailey asked him whether it
was his responsibility to take an unsafe truck on the road
and said the fuses were blowing and the supervisor had
asked him to take the truck out which he didn't feel he
should do. Madison stated that he informed Jagodzinski he
should not take the truck out.
According to Madison, Foreman Bailey asked whether
there was any possible way the truck could be repaired
quickly and put on the road, whereupon he told Bailey he
knew of no way except to replace the fuses as they blew.
After informing Bailey, pursuant to his request, that he had
some fuses, Bailey asked him to give them to Jagodzinski
which he did. Madison stated Bailey then told Jagodzinski
to take the truck out and if the lights went out to replace
the fuses.
Madison further testified that he was present when
Bailey discharged Jagodzinski that morning at which time
Bailey informed Jagodzinski he had given him a direct
order to take the truck out and change the fuses if he had to
or punch his card and go home.
Foreman Bailey's version of his conversations with
Jagodzinski and Madison that morning was when Jagod-
zinski told him something was wrong with the truck and
the fuses kept blowing he asked Madison to check it out
explaining how important it was to get the load out. Upon
asking Madison how long repairs would take and whether
the truck could make it there and back, Madison suggested
as far as he knew a fuse was the problem. Bailey stated,
when he asked Jagodzinski if he would put a fuse in the
truck and take the load out, Jagodzinski refused saying it
was not his job to install fuses.' 0 When Jagodzinski refused
to install the fuse, he asked him in the presence of Madison
to get on his truck and take his load out, whereupon
Jagodzinski replied he would not do it. Upon asking
Jagodzinski if he refused to work, Jagodzinski replied
"Yes." Bailey stated he then prepared the writeup de-
scribed supra. Bailey also testified that on that morning he
asked Madison whether there was any problem putting in
fuses, whereupon Madison told him how to install them
and pursuant to his inquiry informed him he had a whole
box of fuses.
9 David Madison, Jr., is the president of the Union and is also the
chairman of the bargaining unit at Respondent.
l0 Jagodzinski denied refusing to install fuses.
11 An affidavit admittedly given by Foreman Bailey to a Board agent
also contains statements reflecting that Jagodzinski told him the truck was
unsafe, and that somebody pulled the headlights and the lights blew.
However, Bailey at the hearing denied either statement was true.
12 Under company policy employees were allowed five unexcused
absences during a 6-month penod.
On cross-examination Bailey both admitted and denied
that Jagodzinski had told him the truck was unsafe.ll
I credit the testimony of Jagodzinski concerning his
conversations with Foreman Bailey, which was partially
corroborated by Madison, rather than Bailey, whom I
discredit. Apart from my observations of the witnesses in
discrediting Bailey he also contradicted his own testimony.
Johnny Rhodes, who replaced Jagodzinski as the driver
of the tractor that morning, left about 7 a.m. after replacing
a fuse and continued the trip to Saginaw, which lasted
about 45 minutes, without further incident. Rhodes, who
also described the weather as being cloudy and dark, used
his lights on the trip. David Madison, Jr., who described
the weather as being semicloudy and partly overcast after a
rain, stated he could see well enough to drive without lights
and Foreman Bailey testified it was light at 7 a.m.
Both General Manager Douglas and Foreman Bailey
denied Bailey either had the authority to or in fact
discharged Jagodzinski. They both testified Douglas made
the decision to discharge him and Bailey's writeup only
amounted to a recommendation that he be discharged.
While Foreman Bailey gave as his reasons for recom-
mending Jagodzinski be discharged his refusal to take a
load out after the Union had stated in front of Jagodzinski
and himself that all it took was a fuse, General Manager
Douglas asserted his decision to discharge Jagodzinski,
which he made about 10 a.m. that day after talking to
Douglas between 9 a.m. and 10 a.m., was based not only on
Bailey's recommendation and his report of the incident,
but also because of his prior work record of absenteeism
and disciplinary actions. Respondent's records and Doug-
las' testimony in this respect reflect Jagodzinski had
approximately 13 unexcused absences during his employ-
ment,' 2 and two prior disciplinary actions on May 12 and
21. On May 12 Jagodzinski was given a l-week suspension,
which was subsequently reduced, for blocking the driveway
preventing other drivers from getting their trucks out and
suspected drinking.13 The May 21 disciplinary action,
which also indicated the next action taken would be
discharge, was for insubordination by refusing to obey a
foreman's order to drive a load to Warren and by walking
out instead.'4
On October 6, at a meeting held pursuant to article IV,
section 6, of the grievance procedurel 5 before Mediator
Robert Johnson an agreement was reached between Re-
spondent and the Union concerning Jagodzinski's griev-
ance on his discharge whereby they agreed to reinstate
Jagodzinski in another capacity as a knockout man at the
rate of pay he was earning at the time of his discharge
without any backpay. Jagodzinski, who was not present at
the meeting, did not accept the findings or settlement.
The next highest step of the grievance procedure, which
was not resorted to, provided for binding arbitration before
i3 Jagodzinski denied he had been dnrinking.
14 According to Jagodzinski he had refused to take out a tractor-trailer
because the trailer brakes were not working.
is This sec. provides as follows:
All grievances that cannot be settled by the above procedures shall
be submitted for arbitration to a State Labor Relations Mediator
provided by the Michigan Employment Relations Commission.
519
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
an arbitrator selected from a list supplied by the Federal
Mediation and Conciliation Service.
C. Analysis and Conclusions
The General Counsel contends contrary to Respondent's
denials that Respondent violated Section 8(a)(1) of the Act
by discriminatorily discharging Jagodzinski because of his
protected concerted activities in refusing to drive a tractor
alleged to be unsafe because it was blowing fuses and
because he sought to exercise his contractual right to refuse
to do a job which would be injurious to his health or safety.
Section 8(a)(1) of the Act prohibits an employer from
interfering with, restraining, or coercing its employees in
the exercise of their rights guaranteed in Section 7 of the
Act. Where an employee complains about safety matters
which are embodied in a contract he is acting in the interest
of all the employees covered by the contract in attempting
to enforce those provisions and such actions are held to
constitute protected concerted activities under the Act.
Roadway Express, Inc., 217 NLRB 278 (1975), C. & I. Air
Conditioning, Inc., Mc Keon Construction 193 NLRB 911
(1971), set aside 486 F.2d 977 (C.A. 9, 1973); and Interboro
Contractors, Inc., 157 NLRB 1295 (1966). Such protection
is not dependent on the merits of the asserted contract
claims or whether the employees expressly refer to applica-
ble contracts in support of their actions or are even aware
of the existence of such agreements. John Sexton & Co., A
Division of Beatrice Food Co., 217 NLRB 80 (1975); and
The Singer Company, Climate Control Division, 198 NLRB
870 (1972), fn. 5. Further, the Act is violated if an employer
discharges an employee for an impermissible reason even if
it also possesses other valid grounds for the discharge.
Borek Motor Sales, Inc. v. N.L.R.B., 425 F.2d 677 (C.A. 7,
1970), cert. denied 400 U.S. 823 (1970).
Applying these principles the evidence, supra, establishes
Jagodzinski, unable to repair the lights on the tractor he
was assigned to drive had more than ample reason for
believing the tractor to be unsafe to drive. Apart from the
disputed weather conditions, which I find were bad, it can
not seriously be argued that even in good weather a tractor
operating without proper lights, especially brake lights, on
an open highway would be a safe vehicle to drive.
Notwithstanding the contract between Respondent and the
Union contained safety provisions, requiring, inter alia,
Respondent to keep all equipment in safe working order at
all times and provided that employees would not be
required to work on jobs under conditions which would be
injurious to their health or safety, Jagodzinski, on com-
plaining to Foreman Bailey about the safety condition of
his tractor which he refused to drive until it was repaired
was informed by Bailey he was discharged.
While Bailey not only informed Jagodzinski he was
discharged and the writeup given to him by Bailey at that
time, on its face clearly shows he was discharged for
refusing to take the load out, even assuming General
Manager Douglas subsequently made the final decision it
was precipitated by and based primarily on the incident
which occurred that morning, which I find was Jagodzin-
ski's refusal to drive what he believed to be an unsafe
tractor.
Under these circumstances, I find Jagodzinski's dis-
charge by Respondent on July 23, 1976, was caused by his
refusal to drive a tractor which he believed to be unsafe
and although not specifically mentioned amounted to an
attempt to require Respondent to adhere to the safety
provisions of the contract affecting the interest of all the
employees and his discharge for concerted activities violat-
ed Section 8(a)(1) of the Act.
With respect to the issue whether the agreement reached
between Respondent and the Union under the grievance
procedure concerning Jagodzinski's discharge precludes
finding a violation of the Act, absent as here any showing
that the requirements of Spielberg were met,16 I do not find
any basis for deferring to such agreement. Under Spielberg
the Board has recognized certain arbitration awards where
the arbitration proceedings appear to have been fair and
regular, all parties have agreed to be bound, and the
arbitrator's decision is not clearly repugnant to the pur-
poses and policies of the Act.
IV. The Effect of the Unfair Labor Practices
Upon Commerce
The activities of Respondent set forth in section III,
above, found to constitute unfair labor practices occurring
in connection with the operations of Respondent described
in section 1, above, have a close, intimate, and substantial
relationship to trade, traffic, and commerce among the
several States and tend to lead to labor disputes burdening,
and obstructing commerce and the free flow thereof.
CONCLUSIONS OF LAW
I. T & T Industries, Inc., is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of the
Act.
2. Local 267, International Union, Allied Industrial
Workers of America, AFL-CIO, is a labor organization
within the meaning of Section 2(5) of the Act.
3. By discharging Daniel Jagodzinski on July 23, 1976,
because he engaged in protected concerted activities
Respondent has engaged in unfair labor practices in
violation of Section 8(a)(1) of the Act.
4. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices within the meaning of Section 8(aX 1)
of the Act, I shall recommend that it cease and desist
therefrom and to take certain affirmative action to effectu-
ate the policies of the Act. Accordingly, Respondent shall
be ordered to immediately reinstate Daniel Jagodzinski to
his former job, or, if that job no longer exists, to a
substantially equivalent job, without prejudice to his
seniority or other rights and privileges and to make him
whole for any loss of earnings and compensation he may
1R Spielberg Manufacturing Company, 112 NLRB 1080 (1955).
520
T & T INDUSTRIES, INC.
have suffered because of the unlawful discrimination
against him by discharging him on July 23, 1976. Backpay
shall be computed in accordance with the formula and
method prescribed by the Board in F. W. Woolworth
Company, 90 NLRB 289 (1950), and payment at 6-percent
interest per annum shall be computed in the manner
prescribed by the Board in Isis Plumbing & Heating Co.,
138 NLRB 716 (1962).
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER 17
The Respondent T & T Industries, Inc., Detroit, Michi-
gan, its officers, agents, successors, and assigns, shall:
I. Cease and desist from:
(a) Discharging, or in any other manner discriminating
against employees in regard to their hire, tenure of
employment, or any term or condition of employment,
because they have engaged in concerted activities for the
purpose of collective bargaining or other mutual aid or
protection.
(b) In any other manner interfering with, restraining, or
coercing employees in the exercise of their rights to engage
in, or to refrain from engaging in any or all of the activities
specified in Section 7 of the Act, except to the extent such
rights be affected by an agreement requiring membership
in a labor organization as a condition of employment as
authorized by Section 8(aX3) of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
IT 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 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.
(a) Offer immediate and full reinstatement to Daniel
Jagodzinski to his former job, or, if that job no longer
exists, to a substantially equivalent job, without prejudice
to his seniority or other rights and privileges and make him
whole for any loss of pay or other compensation he may
have suffered by reason of the discrimination against him
in the manner set forth in that portion of this Decision
entitled "The Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents for examination and copying all payroll
records, social security payment records, timecards, per-
sonnel records and reports, and all other records necessary
to analyze and determine the amount of backpay due
under the terms of this Order.
(c) Post at its Detroit, Michigan facility copies of the
attached notice marked "Appendix." 18 Copies of said
notice, on forms furnished by the Regional Director for
Region 7, shall, after being duly signed by Respondent's
authorized representative, be posted immediately upon
receipt thereof and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all places
where notices to employees are customarily posted. Rea-
sonable steps shall be taken by Respondent to insure that
said notices are not altered, defaced, or covered by any
other material.
(d) Notify the Regional Director for Region 7, in writing,
within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be, and
hereby is, dismissed insofar as it alleged unfair labor
practices not specifically found herein.
18 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals the words in the notice reading "Posted by Order of
the National Labor Relations Board" shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
521