Titanium Metals Corp. Of America

National Labor Relations Board - Board Decisions

Feb 28, 1985

274 N.L.R.B. 706 (N.L.R.B. 1985)

706 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Timet, a Division of Titanium Metals Corporation of
America and John H . Madill . Case 31-CA-
10737
28 February 1985
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
On 23 February 1982 Administrative Law Judge
Jay R. Pollack issued the attached decision. The
General Counsel filed exceptions and a supporting
brief. The Respondent filed a brief in opposition to
the General Counsel's exceptions.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings, I and
conclusions and to adopt the recommended Order.
FINDINGS OF FACT AND CONCLUSIONS
1. JURISDICTION
Respondent is a Delaware corporation with an office
and principal place of business in Henderson, Nevada,
where it is engaged in the processing and production of
titanium metals. In the course and conduct of its business
operations, Respondent annually sells and ships goods or
services valued in excess of $50,000 directly to customers
located outside the State of Nevada. Accordingly, I find
that, at all times material herein, Respondent has been an
employer engaged in commerce and in a business affect-
ing commerce within the meaning of Section 2(2), (6),
and (7) of the Act.
11. THE LABOR ORGANIZATION INVOLVED
The parties agree and I find that Local 4856 of the
United Steelworkers of America, AFL-CIO (the Union)
is a labor organization within the meaning of Section
2(5) of the Act.
ORDER
The recommended Order of the administrative
law judge is adopted and the complaint is dis-
missed.
i Chairman Dotson is adopting the judge's finding of an 8 (a)(1) viola-
tion only because no exceptions have been filed thereto and in these cir-
cumstances agrees that a remedial order is not warranted
Under all the circumstances, Member Dennis would remedy the 8(a)(1)
violation the judge found
We place no reliance on the judge 's comments at fn 2 of his decision,
but note only that the Respondent never raised the issue of deferral to
the parties ' grievance and arbitration procedure
DECISION
STATEMENT OF THE CASE
JAY R. POLLACK, Administrative Law Judge. I heard
this case in trial at Las Vegas, Nevada, on November 17,
1981. The charge was filed on December 22, 1980, by
John H Madill (Madill) On February 24, 1981, the
Acting Regional Director for Region 31 of the National
Labor Relations Board (the Board) issued a complaint
and notice of hearing, alleging that Timet, a Division of
Titanium Metals Corporation of America (Respondent)
violated Section 8(a)(1) of the National Labor Relations
Act (the Act).
All parties have been afforded full opportunity to par-
ticipate, to introduce relevant evidence, to examine and
cross-examine witnesses , and to file briefs. Based on the
entire record, from my observation of the demeanor of
the witnesses, and having considered Respondent's post-
trial brief,' I make the following
i The General Counsel did not file a brief
III. THE ALLEGED UNFAIR LABOR PRACTICES
A Background
As discussed above, Respondent is engaged in the
processing and production of titanium. The Union has
represented Respondent's production and maintenance
employees at the Henderson, Nevada plant since 1952.
John Madill, the Charging Party, employed by Re-
spondent as a warehouse and equipment operator, has
held positions with the Union for 22 years In August
1980, Madill was a department grievance committeeman
or shop steward for the Union On August 22, 1980,
Madill, at the request of fellow employee Charles
Wessen, approached Foreman Bill Yates to inquire why
Yates had required Wessen to work 8 hours of overtime
instead of the 4 hours that Wessen had requested. The
conversation between Madill and Yates was interrupted
by Wilson Walker, Madill's foreman and dispatcher The
General Counsel alleges that Walker threatened Madill
with unspecified reprisals and created the impression that
Madill's union activities would be under surveillance in
the future because Madill acted as department grievance-
man on behalf of Wessen
Respondent, on the other hand, contends that no
threat of reprisal or surveillance was made by Walker. It
argues that any statements made by Walker were too
vague or ambiguous to be connected with Madill's union
activities. Further, Respondent argues that even if a
threat was made, "the incident was isolated and de mini-
mis, it is more properly handled in the grievance proce-
dure,2 and absolutely no surveillance was made or any
reprisals taken "
2 However, Respondent does not argue that the Board should defer to
the grievance and arbitration procedure of the collective-bargaining
agreement In any event, deferral is inappropriate where reprisals for
grievance-related activities are concerned See, e g , Nissan Motor Corp ,
226 NLRB 397 (1976)
274 NLRB No. 100
TITANIUM METALS CORP
B. The Alleged Threats to Madill
As discussed above, on August 22 , Madill questioned
Yates why Yates would not allow Wessen to work 4
hours overtime instead of 8 hours 3 According to Madill,
Yates answered that the schedule required crews of two
or more people to work together and that he needed 8
hours from each person . Madill then asked if Yates
would allow Wessen to write receiving reports instead.
Yates answered that he had not planned to have any-
body write receiving reports on the day in question.
When Madill said that other people had been allowed to
do so, Walker interrupted and said in a loud voice,
"Don't accuse me of playing favorites ." Madill told
Walker that this was not Walker's shift but Yates' shift
Walker answered , "This is my overtime list I run the
overtime " Madill answered , "That may be so, but you
do not make the assignments . Yates is making the assign-
ments for tomorrow " Walker slammed down his hard-
hat and told Madill that if Madill did his work, there
would not be a need for overtime . Madill answered that
he had worked for Respondent a long time and did his
job every day Walker answered, "We'll find out. I'm
going to watch you very close in the future ." Madill
started to walk out the door when Walker shouted, "I'm
going to straighten you right out "
Kathy Baird, warehouse and equipment operator , testi-
fied that she overheard a conversation one afternoon be-
tween Madill and Walker in which Walker said, "I'm
going to get you, you son of a bitch." Baird could not
recall the date of that conversation . I do not find that
Baird was present at the conversation at issue herein be-
cause she worked a shift from I1 p.m., August 21, to 7
a.m. on August 22 While it is not conclusive that Baird
did not reenter the plant on the afternoon of August 22,
it is highly unlikely that she did so However, Madill and
Walker have had more that one heated argument and
Baird might have been present on another occasion.
Wilson Walker did not have a clear recollection of his
conversation with Madill Walker did recall that Madill
made a comment "about favoritism on the overtime
sheet " Walker and Madill then became engaged in a
heated argument According to Walker, during the con-
versation , Madill indicated that Madill was the best fork-
lift operator that Walker had ever seen Walker said he
thought Madill's production was below par and that
Walker would be watching him At the end of the argu-
ment, Madill said that here there had been other dis-
patchers sitting at Walker's desk and those dispatchers
were gone but Madill was still at the plant However,
Walker could not recall how the subject of Madill's pro-
duction came up in the conversation.
Although present for the entire conversation, Yates
could not recall what was said After admitting that
prior to the trial he could not recall anything of the con-
versation, Yates testified that he presently recalled one
thing: At the end of the conversation, Madill said that
dispatchers had come and gone but Madill was still
a Madill was following the established contractual grievance procedure
in discussing the alleged grievance with Wessen ' s foreman No written
grievance was filed because Madill was eventually satisfied by yates' ex-
planation
707
there Yates impressed me as an unreliable witness. He
appeared more interested in aiding Walker's cause than
in relating the events at issue. Hence, I give no weight to
Yates' testimony
I credit the testimony of Madill over that of Walker.
First, Madill gave the most detailed account of the con-
versation . Second , Walker appeared more interested in
denying a violation than in testifying to what occurred.
Third, Walker could not or would not explain how Ma-
dill's performance or production was raised in the con-
versation.
C Respondent's Defense
As stated earlier, Respondent argues that even if a
threat was made, "the incident was isolated and de mini-
mis, it is more properly handled in the grievance proce-
dure, and absolutely no surveillance was made or any re-
prisals taken."
The collective -bargaining agreement , in effect at the
time material herein, included the following provisions
relevant to Respondent 's defense.
There shall be no discrimination , interference, re-
straint, or coercion by the Company or the Union
or any of their agents against employees because of
membership or non-membership in the Union.
The provisions of this Agreement constitute the
sole procedure for the processing and settlement of
any claim by an employee or the Union of a viola-
tion by the Company of this Agreement As the
representative of the employees, the Union may
process grievances through the grievance pioce-
dure, including arbitration , in accordance with this
Agreement or adjust or settle the same.
Madill filed the instant charge on December 22, alleg-
ing that Respondent "harassed John Madill on or about
August 29, 1980, by issuing him an unwarranted discipli-
nary notice, because he engaged in activities on behalf of
Steelworkers, Local 4856." According to the General
Counsel, "the General Counsel concluded that there' was
insufficient evidence linking up the discipline, with the
threats " Thus, the complaint alleged only that Respond-
ent violated the Act by the threats made to Madill on
August 22.
Madill did not file a grievance over these events.
Madill testified that he did not file a grievance "because
in my experience with this company, they will back the
foreman, regardless of what the circumstances are, all
the way. There would be no relief within that compa-
ny."
D. Analysis and Conclusions
The presentation by employees of a grievance pursu
-ant to a collective-bargaining agreement comes within
the protection of Section 7 of the Act. See, e g , Laredo
Packing Co, 254 NLRB 1 (1981), Ford Motor Co., 251
NLRB 413, 421 (1980); Caterpillar Tractor Co., 242
NLRB 523 (1979 ). It is well settled that reprisals, or the
threat of reprisals, against an employee for pursuing
708 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
rights under a grievance procedure are unlawful. Conse-
quently, a remark threatening such reprisal constitutes in-
terference with employee rights in violation of Section
8(a)(1). See, e.g., Owens Corning Fiberglass Co., 236
NLRB 479, 480-481 (1978); Northwest Drayage Co., 201
NLRB 749, 750-751 (1973); Pullman Incorp., 168 NLRB
230 (1967). The same capacity of union officials or repre-
sentatives. See, e.g., Container Corp. of America, 244
NLRB 318 fn. 2 (1979); Litton Systems, 242 NLRB 417
(1979).
In the instant case, Madill, acting in the capacity of a
union representative, spoke to Yates, a foreman, on
behalf of employee Wessen. Madill was following the es-
tablished, contractual procedure of discussing the em-
ployees' alleged grievance with employees' foreman.
Based on the credited testimony of Madill, I find that
Walker, upset by an implication that he "played favor-
ites" with the overtime list, threatened to watch Madill's
work very closely and to "straighten out" Madill. Within
the context of their conversation, I can only find that
Walker so threatened Madill because Walker was dis-
pleased with Madill's words spoken on behalf of Wessen.
No other explanation for the reference to watching Ma-
dill's job performance is possible. Accordingly, I find
that Respondent violated Section 8(a)(1) of the Act.
THE REMEDY
In cases of unlawful threats in violation of Section
8(a)(1) of the Act the usual Board remedy is a cease-and-
desist order and the requirement of the posting of a
Board notice. However, for the following reasons I rec-
ommended that no remedial order issue.
The threat herein was an isolated event. The threat
took place 15 months prior to the trial and there is no
evidence of any other unfair labor practice 4 Madill has
filed many grievances before and after this confrontation.
However, no reprisals in furtherance of the threat were
taken against Madill. Further, the threat took place in
the context of a 30-year-old collective-bargaining rela-
tionship. There is no reason to believe that the overall
bargaining relationship is not harmonious. The Board
simply cannot regulate every in-plant conversation and
there is no reason to attempt to do so.
As the Board stated in American Federation of Musi-
cians Local 76 (Jimmy Wakely Show), 202 NLRB 620, 622
(1973):
[I]n view of the increasing need for expedition in
the processing of cases, we have concluded that we
ought not expend the Board's limited resources on
matters which have little or no meaning in effectu-
ating policies of this Act.
In the years since that decision the necessity for conserv-
ing the Board's limited resources has become even more
striking. Accordingly, I recommend that no remedial
order issue and that the case be closed.
CONCLUSIONS OF LAW
1. Respondent Timet, a Division of Titanium , Metals
Corporation of America is an employer within the mean-
ing of Section 2(2) of the Act, engaged in commerce and
in a business affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
2. Local 4856 of the United Steelworkers of America,
AFL-CIO is a labor organization within the meaning of
Section 2(5) of the Act.
3. Respondent violated Section 8(a)(1) of the Act by
unlawfully threatening its employee John H. Madill with
reprisals because of activities in his capacity as depart-
ment grievance committeeman.
4. The circumstances of this case do not require the is-
suance of a remedial order.
On these findings of fact and conclusions of law and
on the entire record in this case, I issue the following
recommended5
ORDER
It having been found and concluded that further pro-
ceedings in this matter are not warranted, it is ordered
that the complaint be dismissed.
5 If no exceptions are filed as provided by Sec 102 46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec 102 48 of the Rules, be adopted by the
4 Cf Browning-Ferris Industries, 259 NLRB 60 (1981), but see also Re- Board and all objections to them shall be deemed waived for all pur-
gency at the Rodeway Inn, 255 NLRB 961 (1981) poses