Technicolor Graphic Services

National Labor Relations Board - Board Decisions

Sep 27, 1979

245 N.L.R.B. 473 (N.L.R.B. 1979)

TECHNICOLOR GRAPHIC SERVICES
Technicolor Graphic Services, Inc. and International
Alliance of Theatrical Stage Employees and Moving
Picture Machine Operators of the United States
and Canada, AFL-CIO. Case 12 CA 8134
September 27, 1979
DECISION AND ORDER
BY ClIAIRMAN FANNING AND MEMBERS JENKINS
AND PENEI.I.O
On June 6, 1979, Administrative Law Judge Mor-
ton D. Friedman issued the attached Decision in this
proceeding. Thereafter, counsel for the General
Counsel and the Charging Party filed exceptions and
a supporting brief. Respondent filed a brief in support
of the Administrative Law Judge's Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions' and briefs
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended Or-
der of the Administrative Law Judge and hereby or-
ders that the complaint be, and it hereby is, dismissed
in its entirety.
I The Charging Party and counsel for the General Counsel have excepted
to certain credibility findings made by the Administrative Law Judge. It is
the Board's established policy not to overrule an administrative law judge's
resolutions with respect to credibility unless the clear preponderance of all of
the relevant evidence convinces us that the resolutions are incorrect. Stan-
dard Dry Wall Products, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d
Cir. 1951). We have carefully examined the record and find no basis for
reversing his findings.
DECISION
STATEMENT OF THE CASE
MORTON D. FRIEDMAN, Administrative Law Judge: This
case was heard in Titusville, Florida, upon the complaint of
the General Counsel issued May 2, 1978, which complaint
is based upon a charge filed on April 6, 1978, by Interna-
tional Alliance of Theatrical Stage Employees and Moving
Picture Machine Operators of the United States and Can-
ada, AFL-CIO, herein called the Union. The complaint
alleges, in substance, that Technicolor Graphic Services,
Inc., hereinafter called Respondent or the Company. dis-
criminatorily transferred its employee, Roland R. Williams,
to a lower paying position in retaliation for Williams' ac-
tivities as steward for the Union. In its duly filed answer,
Respondent admits the transfer, but denies any unlawful
motivation for the same.
At the hearing, all parties were represented and were
given full opportunity to be heard, to present evidence and
to make oral argument. Thereafter, briefs were filed by
counsel for the General Counsel and Respondent.
Upon the entire record. and upon due consideration of
the briefs submitted b the parties, and upon my observa-
tion of the witnesses, I make the following:
FINDINGS OF FA(I
I. TIE BUSINESS ()F RESPONI)INT
Respondent, a Delaware corporation, maintains an office
and place of business located at Kennedy Space Center,
Florida, where it is engaged in the business of providing
photographic and optical support services to the United
States Air Force. During the 12-month period immediately
preceding the issuance of the complaint herein. a represent-
ative period, Respondent performed services of a value in
excess of $50,000 for the United States Air Force. It is ad-
mitted, and I find, that the Respondent is an emplover en-
gaged in commerce within the meaning of Section 2(6) and
(7) of the Act.
II. HE LABOR ORGANIZATION INVOI VED
It is admitted, and I find, that the Union is a labor or-
ganization within the meaning of Section 2(5) of the Act.
III. THE ALLE(;EI) UNFAIR LABOR PRA(CTI(CES
A. Background and Issues
For a number of years before the events with which this
case is concerned, Respondent and the Union have had a
contractual bargaining relationship which relationship was
still an ongoing one at the time of the events herein. The
collective-bargaining agreement related to the issues of this
case was effective from February 15, 1976 to February 14,
1979.
This agreement contains, inter alia, a seniority provision
for union stewards which reads as follows:'
During their terms of office all duly elected or ap-
pointed union stewards will have top seniority for pur-
poses of layoff as long as they are capable of perform-
ing the work then available.
Counsel for the General Counsel contends that Respondent
transferred union steward Roland Williams from a higher
paying job to a lower paying job in violation of the forego-
ing contract provision and contrary to the Respondent's
customary application thereof because Respondent re-
sented Williams' activities directly connected with his stew-
ardship.
t Sec. 11.9 of the bargaining agreement.
245 NLRB No. 67
473
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Respondent contends however, that the transfer was
made in compliance with the said "super seniority" clause
and not contrary to its usual application because (a) the
clause was not applicable under the circumstances inas-
much as Williams knew when he was placed in a better
paying job that it might only be temporary and that the
person whom he replaced might return to work, and (b)
Respondent bore no animosity toward Williams for his
union activities as steward or otherwise.2
B. The Events
Respondent employs, in its quality control section at its
Kennedy Space Center facility, two employees with the
classification of photo quality control specialist. At the
times material hereto, these two individuals were paid a
salary of $480 per week. In January 1977, John Hunter, a
union member who was one of the two employees working
in this position, became unable to work because of a serious
back problem and, after using up his vacation and paid sick
leave time, was placed on sick leave without pay in accord-
ance with the provisions therefore in the bargaining agree-
ment which allows up to 2 years of sick leave.'
In June 1977, pursuant to this provision, Hunter was
granted an extended 6-month sick leave and, at that time,
Respondent decided to find a replacement for Hunter be-
cause Respondent could not be assured when, or if, Hunter
would be able to return to work. Harry Van Riper, vice
president and general manager of Respondent's Florida op-
erations, instructed Edmond J. Dabrowski, supervisor of
the quality control section at Cape Kennedy, to conduct
interviews to recruit an individual to take Hunter's place. In
accordance with this directive, Dabrowski interviewed ap-
proximately five individuals, among them Roland R. Wil-
liams. In the case of each individual who was interviewed
by Dabrowski, the latter informed the person being inter-
viewed for the position that although Hunter's condition
was such that it was doubtful that he would return, never-
theless, the position might be temporary, if indeed, Hunter
did return to the job.
The interviews having been completed, Dabrowski se-
lected Williams for the position. Up to that time, Williams
has worked for several years an an instrument camera spe-
cialist at Respondent's facility at Patrick Air Force Base,
some 30 to 40 miles from the Cape Kennedy facility. His
salary as a camera instrumentation specialist at all times
pertinent to this proceeding was $461 per week, $19 per
week less than that which was paid to the photo quality
control specialist.'
2 There are some derivative and credibility issues also.
I Art. Vil, sec. 8.4 of the bargaining agreement.
4 From credited portions of the testimony of Van Riper, Dabrowski, and
Williams. Although Williams testified, and was supported in his testimony
by the testimony of Andrew J. Younger, a union representative, that he was
not informed by Dabrowski or anyone else that the position of photo quality
control specialist might be temporary, I credit Van Riper and Dabrowski to
the extent that their testimony established that Williams was, indeed, so
informed. In the first instance, counsel for the General Counsel asked to see
all the interview checklists which were used by Dabrowski in interviewing
the individuals and was satisfied that, on each of the checklists, there was a
checkmark alongside the section of the sheets marked "Hunter return possi-
ble." Dabrowski had these sheets typed up and Xeroxed before the inter-
Shortly after Williams was elevated to the higher position
of photo quality control specialist, in September 1977, Ed
Lamoureux, a union steward, informed union representa-
tive Younger that he no longer wished to be a union stew-
ard. Younger instructed Lamoureux to poll the employees
in the unit for which Lamoureux was the steward, to deter-
mine who they desired to act as their steward. Thereupon,
Lamoureux suggested several names to the individuals who
were involved in choosing the steward and, at the finish of
the polling, Lamoureux infbrmed Younger the employees
desired Williams to be their steward.'
As noted, Williams became steward on September 28,
1977. On November 9, 1977, Van Riper informed Younger
that Respondent's supply supervisor, Franco, had informed
Van Riper that Williams was spending quite a hit of time
back in the supply area. This, according to Van Riper, was
not in Williams' normal work area. Van Riper evidently
assumed that Williams, in his positions as steward, was
spending too much time out of the department in which he
normally worked. Therefore, Van Riper instructed Quality
Control Supervisor Dabrowski to speak to Williams about
the matter. As a result of this instruction to Dabrowski, the
latter spoke to Williams about Williams spending too much
time as a steward outside the department. Dabrowski also
explained to Williams that there were cost code cards upon
which Respondent required an entry every time an em-
ployee went from the department for any reason. It was
also necessary to note thereon the time that a steward
would spend outside the department on union business.
Dabrowski explained to Williams that the latter would have
to receive permission to leave his work to attend to union
matters. It should be noted that, thereafter, Williams com-
plied with these requirements and there were no further
complaints about Williams in regard thereto.'
views so that they were all uniform. In order to discredit Dabrowski's testi-
mony that he did pass the information on to each person interviewed that
Hunter might return, it would be necessary for me to find that these sheets
were made up subsequent to the events for the purpose of the heanng and
that the checkmarks were placed thereon at a later date. I cannot do this
after observing the demeanor of both Dabrowski and Van Riper. Addition-
ally, other testimony in the case establishes the fact that during Hunter's
inability to work, and while Williams was occupying the position of photo
quality control specialist. Hunter spoke to both Leonard Rochefort, the
other photo quality control specialist, and to Williams to inform them he was
trying to have his doctor qualify him for return to work. In these circum-
stances, logic dictates that Williams was, indeed, informed, before he ac-
cepted the higher position, that it might come to an end if Hunter returned to
work.
I From credited testimony of Younger. Although Respondent has argued
that there is a difference with regard to the application of the superseniority
clause as to stewards who are elected and stewards who are merely ap-
pointed by the Union, for the purposes of the decision herein, it is not neces-
sary to make such a distinction.
6 In connection with the foregoing, Younger testified that when Williams
was appointed steward, Van Riper called Younger and told the latter that
Van Riper did not Williams to be steward. Furthermore, Younger testified
that in the November conversation with Van Riper in which Van Riper
informed Younger that Williams was spending too much time in the supply
section, Van Riper used the words "fnvolous union matters." Although Van
Riper did not specifically deny that he used the word frivolous, he did state
that these were not words which he would normally use. I credit Van Riper
over Younger in this respect because of my observation of the two and also
because Van Riper did not attempt on the witness stand to deny completely
that he used these words, but did attempt to recall what was said. He could
have more easily denied the matter. In all other respects, Van Riper's testi-
mony was quite similar to that of Younger. With regard to the earlier inci-
dent which Younger testified that Van Riper stated that he did not want
474
TECHNICOLOR GRAPHIC SERVICES
In late October or early November 1977, Williams began
to receive inquiries from nonrepresented clerical employees
as to whether these individuals could be represented by the
Union. Although Williams spoke to Younger concerning
this matter, at first Younger did not act upon the request.
However, Williams finally prevailed and Younger gave to
him union designation cards to be signed by the individuals
who desired representation. Williams thereupon, on his
lunch hour and breaks, but not on company time, did dis-
tribute a few cards in various departments at Cape Ken-
nedy and eventually received back four signed cards which
Williams turned over to Younger. As a result of this activity
on the part of Williams, Younger filed a petition for repre-
sentation on behalf of the clerical employees and statistical
analysts on March 27, 1978.
It should be noted, that although as shop steward, Wil-
liams did not file any formal grievances, he did discuss a
number of employee problems with various supervisors.
However, Respondent's supervisors and members of the
hierarchy uniformly testified credibly that Lamoureux. who
preceded Williams as steward, was a much more active
steward and filed more grievances than did Williams.
At one time during his stewardship in January 1979,
while he occupied the higher paying position, Williams
spoke to Edwin Bowker, Respondent's operations manager
and second in command to Van Riper, about the use of
crude and vulgar language and the telling of off-color sto-
ries in the presence of an unrepresented female employee
who was secretary to supply supervisor Franco. Bowker
thanked Williams and said that he appreciated the informa-
tion and would look into the matter.
In connection with Williams assisting in organizing the
unorganized clerical employees, the layout of the office in
which Williams worked becomes somewhat material. In the
room in which Williams worked were Williams, Rochefort.
and a clerk typist. Dabrowski's office was in a room along-
side the room in which the two specialists worked with the
typist. In order to leave his office to go to other parts of the
facility, he had to pass through the room where the other
three were working. Therefore, when Williams was talking
to the clerk typist with regard to the latter's desire to be-
come a member of the Union and be represented by the
Union, it was possible for Dabrowski to overhear such con-
versation. However, it should also be noted, that Dabrow-
ski, whom I have credited in other matters, specifically de-
nied that he had any knowledge of Williams' activity in this
regard.
During this entire period of time while Williams was in
the higher paying position and also acting as the steward.
employee Hunter was receiving medical treatment for his
back. From time to time. Hunter not only spoke to Roche-
fort and even to Williams, but quite frequently spoke and
wrote to Van Riper. Van Riper was doubtful. during most
of this period, as to the possibility of Hunter's returning to
work because little progress was made, at first, in Hunter's
Williams to become a steward I find and conclude that although Van Riper
completely denied making such a statement. it might well have been that
because of Williams' position as a photo quality control specialist. Van Riper
was concerned that union matters could interfere with Williams' work. In
any event. I find and conclude that, in view of my decision herein. it is not
necessary to resolve this particular conflict of testimon?
recovery. However, after a second 6-month extension of
sick leave pursuant to contract was given to Hunter. Hunt-
er's condition evidently improved. Van Riper was ex-
tremely cautious about Hunter's possible return because it
Hunter's ability to perform would be limited., his basic use-
fulness to Respondent would have been limited. This is so
because the job often required climbing ladders to cameras
and other physical work involving the back such as bending
over and reaching. Finally, however, after some correspon-
dence between Hunter and Van Riper, and between Van
Riper and Hunter's physician, Hunter's physician, on
March 22. 1978, by letter. informed Van Riper. in the doc-
tor's opinion, Hunter's condition had improved to the de-
gree that Hunter could return to his job with only minor
limitations which would not effect his performance.
In view of this report from Hunter's doctor. Van Riper
decided that Hunter could return to the position of photo
quality control specialist which Williams was filling at that
time. Because there were only two positions in that classifi-
cation, the return of Hunter resulted in a surplus of employ-
ees for the position. Van Riper instructed Dabrowski to
inform Williams that the latter would be transferred back
to his former position as instrumentation camera specialist.
As a result of these instructions, on March 30, 1978. while
Williams was at Patrick Air Force Base to make a check for
the quality control department, Dabrowski came to the
base from Cape Kennedy and gave to Williams an official
notice of Williams' transfer back to his former position. The
transfer was made effective as of April 17. 1978.
Although Williams thereafter filed a grievance regarding
what he considered a demotion and what the Union consid-
ered a transfer back in violation of the above-quoted super-
seniority clause of the contract, Williams has not been
placed back in the quality control department position
which he held from July 1977 to April 1978. It should be
noted in connection therewith that Hunter, in terms of
years of time in the quality control position, was the most
senior and that Rochefort had almost as much time as
Hunter. Of course, Williams only had the period of ap-
proximately 8 months and was without question, in the
terms of service in that position, the most junior of the three
individuals involved.
Because the Respondent refused to entertain the griev-
ance, the charge in the instant case was filed.
In connection with the contract clause involved, in 1975,
an employee by the name of Jowers was bumped out of his
position by a union steward under a similar superseniority
clause included in the contract in force at that time between
the Union and Respondent. Respondent took the position,
at that time, that it had the right to do so because there was
a layoff as a result of the government contract being cut
back and therefore the steward had a superior right to the
position even though he did not have seniority in terms of
time spent in the particular position involved. In Respon-
dent's letter to Younger dated November 5. 1975. which
letter was signed by Van Riper, Respondent relied upon the
Board case of Dairolea Cooperative Inc.,' in which the
Board held that a contract clause providing superseniority
for stewards in event of layoff was lawful. Accordingly. in
2 19 NL.RB 656 (1975).
475
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that letter, Van Riper, on behalf of the Respondent, re-
jected employees Jowers' grievance.
As noted heretofore, Respondent and the Union have
had a substantial history of bargaining. While this lengthy
relationship might not have been one of mutual admiration,
it has been singularly free of the mutual antagonism which
so frequently characterizes such relationships. While the
Respondent did not stipulate for an election to be held by
the Board for the employees whom Williams helped orga-
nize, it can be concluded from the record herein that Re-
spondent's opposition to the election was the inclusion of
certain technical employees in the basically clerical unit.
Moreover, the Union represents, and has represented well
over 100 employees in Respondent's Cape Kennedy and
Patrick Air Force Bases. Thus, the impact upon Respon-
dent of the organizing of no more than approximately a
half dozen individuals was minimal.
C. Discussion and Concluding Findings
Counsel for the General Counsel asserts that Respon-
dent's reaction to Williams' organizational efforts brought
about Respondent's refusal to follow its customary practice
accorded to stewards regarding the application of the
superseniority clause. Counsel for the General Counsel rests
his conclusion upon several factors. The first is the timing of
the transfer of Williams to the lower paying position within
a day or so after receipt of the petition for representation of
the employees whom Williams assisted in organizing. Sec-
ond, counsel for the General Counsel claims an apparent
antagonism harbored by Van Riper against Williams' act-
ing as steward from the very inception of Williams' stew-
ardship. This, has heretofore been rejected as a fact in cred-
iting Van Riper to the effect that he had not expressed such
opposition to Younger. Third, counsel for the General
Counsel argues that Respondent had knowledge of the ac-
tivity by Williams in organizing the unorganized employees
and asserts that the small shop theory should be applied
here to infer knowledge. Counsel for the General Counsel
cites in support of this, the case of Wiese Plow Welding Co.,
Inc., 123 NLRB 616 (1959).
While, at first blush, it would seem from a perusal of the
facts upon which the foregoing contentions of counsel for
the General Counsel rest, that the contentions have merit
and that Respondent did, indeed, demote and transfer Wil-
liams to the lower paying job in retaliation for the latter's
union activities as a steward. However, further consider-
ation of the facts leads to an opposite conclusion. Earlier in
this Decision, in the recital of the facts, it has been deter-
mined logic dictates that when Williams accepted the posi-
tion of photo quality control specialist, for which the rate of
pay was higher than his usual position, he had knowledge
of the possibility of Hunter's return to work at some time in
the future. Thus, although as General Counsel argues, the
collective-bargaining agreement does not contain a provi-
sion for temporary employees, nevertheless, Williams knew
at all times that his position in the higher paying job might
be brought to an end by Hunter's return. Thus, at the very
outset, to Williams' knowledge his placement in the higher
paying position was not necessarily permanent. With re-
gard to Respondent's knowledge of the organizing of the
unorganized clerical employees, in addition to the denials of
such knowledge by the respective supervisors of the depart-
ments in which the clericals whom Williams sought to orga-
nize worked, there is the factor that this is not a small shop
as envisioned by the Board in the recited Wiese Plovw Weld-
ing case, supra. The Board has held that the small plant
doctrine is not applicable in every instance.8 In light of the
denials, as stated, together with the lack of detail in the text
as to how openly Williams passed out and solicited union
membership cards, I find and conclude that the General
Counsel has failed to establish by a preponderance of the
evidence that Respondent had knowledge that Williams
participated in organizing the clerical employees.
With regard to the issue of motivation, even assuming
Van Riper originally opposed the selection of Williams as
union steward, and, furthermore, complained to Younger
regarding the time spent by Williams in the supply depart-
ment, Williams was a far less active steward than was his
predecessor, Lamoureux. Thus, Williams' known activities
as steward were neither of the nature, or the number, which
would lead to the conclusion that these activities were
found to be so detrimental to Respondent that Respondent
would have decided to ignore any possible contractual obli-
gation to retain Williams in the higher paying position. In
coming to this conclusion, I have considered the fact that
Van Riper did complain to Younger. I have also considered
the fact, as pointed out by counsel for the General Counsel,
that Williams' transfer notice was given to him within a
couple of days after the Union filed its petition for an elec-
tion among the clerical employees. However, I have also
considered Respondent's long history of amicable relation-
ships with the Union; the fact that Lamoureux was far
more active and yet was never in any way criticized by
Respondent for his activities; the fact that Williams was
still, at the time of the hearing herein, a steward: the fact
that there were and are other stewards in addition to Wil-
liams in Respondent's facilities in Florida against whom no
action has ever taken; and the fact that there is an apparent
legitimate business justification for Williams' transfer back
to his old position in that there were only two positions
open in the classification of photo control specialist and
Hunter. the senior employee who was on extended sick
leave, returned, thereby creating a surplus of one employee
in that classification.
Although the timing of the transfer of Williams back to
this former position as instrumentation camera specialist
gives rise to some suspicion that, perhaps, Respondent
made this transfer in retaliation for Williams' union activi-
ties, suspicion is not proof. The other factors, recited above,
serve to overcome whether suspicion arises with regard to
the timing. While I do not agree with Respondent that Wil-
liams' union activities were "de minimis," I find that they
were not so numerous or so irritating that Van Riper would
have developed animosity toward Williams. Moreover, with
regard to the timing of the transfer back, it coincided with
Hunter's return to work. I find coincidental Hunter's return
at approximately the same time that the petition for repre-
sentation of the clericals was filed. This being so, the timing
I Ultra-Sonic De-Burring. Inc of Texas, 233 NLRB 1060, 1062 (19771;
ABC Body Works, Inc., 201 NLRB 833 (1973).
476
TECHNICOLOR GRAPHIC SERVICES
of Williams' transfer to his old position becomes less signif-
icant.
Accordingly, I find and conclude that the General Coun-
sel has failed to prove by a preponderance of the credible
evidence that Respondent discriminated against Williams
for the latter's union activities.9
CONCLUSIONS OF LAW
1. Respondent is an employer within the meaning of Sec-
tion 2(6) and (7) of the Act.
9 In view of my findings and the basis therefore, it becomes unnecessary to
determine, or interpret, the legal impact of the quoted section of the collec-
tive-bargaining agreement which bestows superseniority in case of layoff
upon union stewards. If, indeed, there is a breach of this clause in Williams'
transfer, minus discriminatory motive, the interpretation of the clause be-
comes a matter for some tribunal other than the National Labor Relations
Board.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. Respondent in transferring Williams from the position
of photo quality control specialist to instrumentation cam-
era specialist has not violated Section 8(a)(3) and (1) of the
Act.
Upon the foregoing findings of fact and conclusions of
law, and the entire record in this proceeding. I hereby issue
the following recommended:
ORDER I0
It is ordered that the complaint herein be. and the same
hereby is, dismissed.
1' 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.
477