Union Fork & Hoe Co.

National Labor Relations Board - Board Decisions

Apr 17, 1979

241 N.L.R.B. 907 (N.L.R.B. 1979)

THE UNION FORK AND HOE COMPANY
The Union Fork and Hoe Company and Robert Terry
McKinney. Case 9-CA- 10939
April 17, 1979
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
MURPHY AND TRUESDALE
On April 26, 1978, Administrative Law Judge Mor-
ton D. Friedman issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief, and the General Counsel filed
a brief in support of the Decision of the Administra-
tive Law Judge.
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.
Respondent has excepted, inter alia, to the Admin-
istrative Law Judge's denial of its motion to dismiss,
which was based on its contention that the Board
should defer, under Spielberg Manufacturing Com-
pany, 112 NLRB 1080 (1955), to the decision of an
arbitrator who ruled that Union Steward Robert Mc-
Kinney was insubordinate and, therefore, was dis-
charged for just cause. We affirm the Administrative
Law Judge's ruling denying Respondent's motion to
dismiss for the reason that the arbitrator measured
McKinney's conduct against a standard which con-
flicts with Board law. Under these circumstances, the
arbitration award is clearly repugnant to the policies
and purposes of the Act and is not entitled to defer-
ence.
A review of the arbitrator's decision reveals that,
I Respondent has excepted to certain credibility findings made by the Ad-
ministrative 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. Standard Dn ' RHall Products, Inc, 91 NLRB 544
(1950)., enfd. 188 F.2d 362 (3d Cir. 19511 We have carefully examined the
record and find no basis for reversing his findings. We have further consid-
ered Respondent's contention that the Administrative l.aw Judge evidenced
a bias or prejudice in avor of the ('bharging Party in this proceeding We
have carefully considered the record and the attached Decision and reject
these charges of bias alleged by Respondent as unsupported
In sec. IV, A, of his Decision, the Administrative Law Judge erroneously
states that Robert McKinney accompanied Pat Gifford to Forge Shop Su-
perintendent James Fowler's office on the morning of Februars 24. 1976.
whereas the record establishes that this took place on the morning of June
24, 1976. The Administrative I.aw Judge further states that shortly after
Gifford and McKinney left Fowler's office. Fowler came out of his office and
seized Gifford by the arm. The record clearly shoss., however. that Fowler
seized McKlnney, rather than Gifford, hby the arm. These apparently inad-
vertent errors are insufficient to affect the results of our Decision.
after reciting the allegations of the parties before him.
the arbitrator stated:
Whenever a member of the bargaining unit is
elected as a Union official which then necessi-
tates that the employee act as an advocate repre-
senting the members of the bargaining unit, and
act as a watch dog to see that the Company is
properly administering the Agreement between
the parties, such Union official must walk a very
straight line and take great care that in his natu-
ral desire to do a good job and to properly repre-
sent the members of the bargaining unit, that the
Union official does not overstep his bounds and
engage in conduct which can not be tolerated
from any employee, whether such employee is a
Union official or not.
The arbitrator then found that during the discussion
of employee Pat Gifford's pay in Forge Shop Superin-
tendent James Fowler's office, Gifford took his time-
sheet from the superintendent's clip board and
handed it to McKinney. The arbitrator further found
that in later leaving the office with the timesheet. Mc-
Kinney "embarked upon an improper mode of con-
duct" which warranted some disciplinary penalty,
though "certainly less than discharge." Framing the
issue before him, the arbitrator stated, "the question
of whether or not the Company had just cause to
discharge the grievant would turn upon whether or
not the grievant persisted in aggravating his prior im-
proper conduct of leaving the superintendent's office
with the time slip." The arbitrator did not make fac-
tual findings as to what McKinney actually did with
the timesheet after leaving Fowler's office, but con-
cluded that McKinney aggravated his prior conduct
either by refusing to give the timesheet to Fowler
when Fowler requested it or by giving the timesheet
to Gifford.
Having found that McKinney aggravated his prior
misconduct, the arbitrator set forth the standard of
conduct to which he believed union stewards such as
McKinney must conform. He stated:
The grievant, as a Union steward, is held to a
higher degree of proper conduct within the plant,
because the other employees look up to the stew-
ard, and should the steward treat management in
a disrespectful manner, as was true in this situ-
ation, such disrespectful conduct, or insubordi-
nation, is much more visible when a Union stew-
ard becomes engaged in such conduct, because
the eyes of the entire department are upon the
steward. It is hoped that the grievant finds em-
ployment elsewhere and should the grievant be-
come an official in another bargaining unit, that
the grievant will learn by this experience and
thereby be a better Uinion official, and more
241 NLRB No. 140
9)7
I)F('CISIONS OF NATIONAL LABOR RELATIONS BOARD
carefully process a claim made by another em-
ployee in the bargaining unit....
The arbitrator, in finding that McKinney was dis-
charged for just cause, apparently failed to consider
well-established Board law that a steward is protected
by the Act when fulfilling his role in processing a
grievance, just as any other employee is protected by
the Act when presenting a grievance to an employer.
Thus, as was stated in Clara Barton, a steward is pro-
tected by the Act "even if he exceeds the bounds of
contract language, unless the excess is extraordinary,
obnoxious, wholly unjustified, and departs from the
res gesrae of the grievance procedure."2 The appropri-
ate Board standard for measuring the conduct of an
employee engaged in protected concerted activities
was summarized in Prescott Industrial Products Com-
pa'ny, as follows:
The Board has long held that there is a line be-
yond which employees may not go with impu-
nity while engaging in protected concerted ac-
tivities and that if employees exceed the line the
activity loses its protection. That line is drawn
between cases where employees engaged in con-
certed activities exceed the bounds of lawful con-
duct in a moment of animal exuberance or in a
manner not motivated by improper motives and
those flagrant cases in which the misconduct is so
violent or of such character as to render the em-
ployee unfit for further service.3
As is evident from the above-quoted portions of his
decision, the arbitrator espoused a standard of con-
duct for stewards, as well as for other employees,
while engaged in protected activities which directly
conflicts with well-established Board precendent. As
such, the arbitrator's decision is clearly repugnant to
the Act.
Moreover, the Board has previously noted that
however inappropriate deferral might be in the gen-
eral case in which the arbitrator arrives a a decision
repugnant to the Act, it is especially inappropriate in
a case where the arbitration involves discipline of
stewards in reprisal for their grievance activities. The
policy of not deferring to arbitration awards where
the punishment of overzealous stewards is at issue in-
sures that the grievance and arbitration machinery is
used effectively in the manner in which it was in-
tended.4
Accordingly, we find that it would be inappropriate
2 Clara Barton Terrace Convalescent Center, a Division of National Health
Enterprises-Delfern. Inc., 225 NLRB 1028, 1034 (1976). See also Hawaiian
Hauling Service, Ltd., 219 NLRB 765 (1975).
3 Prescott Indusrial Products Company, 205 NLRB 51, 51-52 (1973), citing
Betcher Manufacturing Corporation, 76 NLRB 526 (1948), and Soconv Mo-
bile Oil Company. Inc., 153 NLRB 1244 (1965).
4 Clara Barton, supra at 1029.
to defer to the arbitrator's decision, and we affirm the
Administrative Law Judge's ruling denying Respon-
dent's motion to dismiss.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Board Act, as amended, the National La-
bor Relations Board adopts as its Order the recom-
mended Order of the Administrative Law Judge and
hereby orders that the Respondent, The Union Fork
and Hoe Company, Columbus, Ohio, its officers,
agents, successors, and assigns, shall take the action
set forth in the said recommended Order.
DECISION
STATEMENT OF T'I E CASE
MORTON D. FRIEDMAN, Administrative Law Judge: This
case was heard in Columbus, Ohio, upon a complaint is-
sued by the General Counsel on May 17, 1977, which com-
plaint is based on a charge filed by Robert Terry McKinney
on December 29, 1976. The complaint, in substance, alleges
that The Union Fork and Hoe Company, herein called Re-
spondent or the Company, discharged McKinney in viola-
tion of Section 8(a)(3) and (I) of the Act because of McKin-
ney's membership in, sympathy for, and activities on behalf
of Local 2306, International Association of Machinists and
Aerospace Workers, AFL-CIO, herein called the Union. In
its duly filed answer, as amended at the hearing, Respon-
dent while admitting the jurisdictional allegations of the
complaint, denies the commission of any unfair labor prac-
tices. In addition, as an affirmative defense, Respondent
alleges that pursuant to the terms of a grievance procedure
of the collective-bargaining agreement between Respondent
and the Union, an arbitration hearing was conducted upon
a grievance filed by McKinney after his discharge, which
resulted in an arbitration award denying the said grievance
and therefore, the matter presented by the complaint herein
has been fully disposed of and the complaint should be
dismissed.
At the end of the hearing herein, the parties waived oral
argument. Thereafter, counsel for the General Counsel and
for Respondent filed briefs.
Upon the entire record in this case, including the briefs of
the parties, and upon my observation of each witness who
testified, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Respondent, an Ohio corporation, is engaged at its facil-
ity at Columbus, Ohio, in the manufacture of lawn and
garden tools. During the year immediately preceding the
issuance of the complaint, a representative period, Respon-
dent sold and shipped materials of a value in excess of
$50,000, from its said facility directly to points located out-
side the State of Ohio.
908
THE UNION FORK AND HOE COMPANY
It is admitted. and I find, that the Respondent is an em-
ployer engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
II. 111 I ABOR ORGANIZAll()ON INVOLVED
It is admitted. and I find, that the Union is a labor or-
ganization within the meaning of Section 2(5) of the Act.
Ill. THE MOION TO DISMISS
At the outset of the hearing herein, in conformity with its
affirmative defense heretofore set forth, Respondent moved
for an order dismissing the complaint on the ground that
the matter therein contained, alleging violations of the Act.
have been disposed of by an arbitration award which is
final and binding and which comports with the standards
established by the Board in Spielberg Manufacturing Com-
pany, 112 NLRB 1080 (1955), and its progeny. Without
here reciting the facts at length, it is determined that al-
though the Charging Party. McKinney. the Union repre-
senting him, and Respondent agreed to be bound by the
arbitrator's award, and the proceeding before the arbitrator
appears to have been fair and regular. there is a serious
doubt as to whether, in arriving at his decision, the arbitra-
tor considered the statutory issues involved.
The case before the arbitrator, and presently before the
Board, concerns the discharge for alleged insubordinate
conduct of McKinney. a union steward and committeeman,
while he was engaged in presenting and processing the
grievance of a fellow employee. It would seem that the stan-
dard of conduct of a union steward, applied by the arbitra-
tor in upholding the discharge is in conflict with the Board
standards of what constitutes statutorily protected conduct,
even assuming acceptability of the arbitrator's factual find-
ings. Moreover. the arbitrator did not consider, again as-
suming accuracy of his factual findings, the statutory issue
of pretext, i.e., whether the misconduct of which he found
McKinney, the grievant, guilty, was the actual or sole rea-
son for the discharge, or whether Respondent seized upon
McKinney's alleged misconduct to mask a discriminatory
motive to discharge McKinney for pursuing what Respon-
dent considered to be an excessive number of petty or an-
noying grievances.
Therefore, I find Respondent's motion to dismiss on the
theory of Spielberg Manufacturing Company, supra, and its
progeny to be without merit and, therefore, the motion is
denied.'
iv. THE UNFAIR LABOR PRACTICES
A. The Facts
Robert T. McKinney began working for Respondent on
February 17, 1970. At the time of the events involved
herein, McKinney was a forklift operator and material han-
dler in the forge shop, also known as department 21 and the
stamping department, also known as department 26. Addi-
I Cf. Clara Barton Terrace Convalescent Center, a Division of Naional
Health Enterprises-Delfern, Inc., 225 NLRB 1028 (1976); Hawaiian Hauling
Service, I.rd., 219 NLRB (1975).
tionally. for 3 1/2 years prior to his discharge. McKinney
was chairman of the shop committee for the Union and was
steward in the above-named departments.
In his capacity as union steward. McKinney. for approxi-
mately 3 to 4 months before June 24, 1976. acted as repre-
sentative of the Union on behalf of union employees at a
number of step 4 grievance meetings with Respondent's
vice president and general manager, Larry Carpenter. At a
number of these meetings. Carpenter told McKinney in the
presence of union committeewoman Alice Booth. that Mc-
Kinney was instigating grievances regarding average pay.
causing trouble with average pay, and also misleading em-
ployees with regard thereto.2 Evidently, these average pay
grievances were rather numerous and more than a few of
them did arise in the two departments in which McKinney
acted as steward. Additionally, during one of these griev-
ance meetings, Carpenter stated that McKinney was a trou-
blemaker, misled people, and caused grievances by going
about and "digging up stuff." Also. Carpenter stated Mc-
Kinney kept the employees upset and Respondent had nev-
er had his trouble until McKinney became a committeeper-
son.'
In addition to the foregoing, during a contract negotia-
tion session, a month or two before the events herein. Frank
Langsenkamp. who at that time was the personnel director
of Respondent, in an aside to Robert Leavey, a union repre-
sentative, told Leavey that McKinney had gone around in-
stigating grievances with regard to average pay and "de-
layed time" and that the people had told Langsenkamp that
they really did not want to file the grievances. Additionally,
Leavey testified credibly that during a number of step 4
grievance meetings in the period preceding June 24. 1976.
both Carpenter and Langsenkamp had accused McKinney
of misleading people and instigating grievances.'
Finally. during the arbitration hearing, referred to here-
totfore. General Manager Carpenter. before the start of that
hearing, stated to another individual that McKinney was a
"troublemaker" who had a propensity to file grievances
"every time you turn around.'
2 If an employee in Respondent's facility is assigned to work which ordi-
narily pays less than his usual pay. the employee is entitled durng that
period of time to be paid at an hourly wage equal to his average pay for the
8-week period prior thereto.
From credited portions of the testimony of McKinney was supported by
Alice Booth, who, at the time of the hearing herein, was still employed by
Respondent and was therefore keenly aware of her economic dependence
upon Respondent's goodwill, not only as to her present job but also in the
event of the necessity for future references elsewhere. Conversely, Carpenter,
whose testimony, in some respects, did not contradict that of Booth and
McKinney. but in other respects did, stood to benefit by testifying favorably
on behalf of Respondent inasmuch as, to a certain extent, at least. his posi-
tion would make it imperative that he avoid any criticism on the manner in
which he ran the plant.
4 From credited testimony of Robert Leavey, the union representative,
with whose demeanor as a witness I was very much impressed. His testimony
on the witness stand was given in a forthright manner. He did not hesitate
with his answers and obviously did not attempt to either exaggerate or fab-
ricate. Additionally, inasmuch as I have not credited Carpenter and do not
credit Langsenkamp in other respects, I do not credit their versions or deni-
als of any of these events which occurred at either grievance or bargaining
meetings.
I From credited testimony of John Booth, a fellow employee and the hus-
band of Alice Booth. At the time of the hearing herein, Booth, like his wife,
was under the same possible pressures as an employee as was his wife. There-
fore, his testimony is credited.
909
D[)CISIONS OF NATIONAL LABOR RELATIONS BOARD
On the morning of February 24. 1976, at the request of
fellow employee Pat Gifford. McKinney. in his capacity as
steward, accompanied G(iflord to the office of James
Fowler, the forge shop superintendent, to assist Gifford in a
complaint of Gifford with regard to a refusal by Fowler to
grant Gifford average pay for certain work which Gifford
had perfbrmed out of his pay classification. When they ar-
rived at Fowler's office, Gifford's timesheet was on a clip-
board, presumably with other timesheets. Gifford asked
Fowler if the latter would reconsider giving him the average
pay he requested. Fowler stated that he would not. At this
point, Gifford took the timesheet from the clipboard and
again asked Fowler if the latter was going to pay him the
average pay which Gifford had placed on his timesheet be-
fore originally giving it to Fowler. Fowler remained ada-
mant. Gifford said he would present a new timesheet claim-
ing average pay not only for himself. but for the other three
employees with whom he had worked on the special assign-
ment. Thereupon, Gifliord having stated that he would fill
out a new timesheet. handed McKinney the old timesheet,
and left the room. At approximately the same time, another
employee, John Booth, came to the door of Fowler's office
and asked McKinney to accompany him outside in order to
tag a container which Booth had to have moved. McKin-
ney immediately left with Booth in order to perform the
necessary work of labeling the container which was, appar-
ently, on the forklift which McKinney operated. McKinney
did not replace the timesheet which had been given to him
by Gifford on the clipboard, but, instead, took the same
with him.
As McKinney was tagging the container, as requested by
Booth, Gifford came by and McKinney, having no further
use for the timesheet. handed the same to Gifford. A very
short time thereafter, probably within a few minutes.
Fowler came out of his office, and seized Gifford by the
arm, turning the latter around from the work which he was
performing, and asked McKinney for the timesheet. Mc-
Kinney informed Fowler that he did not have the timesheet
and that he had given it to Gifford. McKinney added that if
Fowler would refrain from trying to cheat the employees
out of their average pay, these problems would not arise. At
that point, Fowler seeing a paper of some kind in McKin-
ney's pocket, reached out to obtain the paper, presumably
thinking it was the timesheet in question. In doing so,
Fowler grabbed the front of McKinney's shirt by the
pocket. At that moment, McKinney knocked Fowler's arm
down with his own hand and McKinney's hat flew off. The
pocket on McKinney's shirt which had been grabbed by
Fowler was torn by that movement. 6
At this point, Fowler left McKinney and proceeded to
look for Gifford. When he found Gifford, the latter told
Fowler that he had thrown the old timesheet into the scrap
metal furnace. Fowler then left Gifford and went back into
6There was much questioning and answering at the hearing herein with
regard to which pocket was torn on the shirt. McKinney whom I credit.
testified that the right pocket of his shirt was torn. Fowler, on the other hand,
stated that he did not tear the shirt and that McKinney, i knocking his arm
down, broke the skin on Fowler's arm. Fowler further testified that he never
did touch the pocket in question and that he was never able to reach it
because of McKinney's unnecessarily rough knocking down of Fowler's arm
I find that it is unnecessary to determine which pocket was torn, in view of
my decision hereinafter set forth.
his office. Actually, Gifford had the old timesheet in his
pocket when Fowler questioned him. It should be noted
that when Fowler walked away from him after the alleged
pocket tearing incident, Fowler told McKinney that he was
going to get the latter's "ass."
Approximately an hour after the incident between
Fowler and McKinney, Fowler asked McKinney to accom-
pany him to Fowler's office. When they were in the office,
Fowler told McKinney that he believed that what had oc-
curred out in the forge shop constituted insubordination
and that he was going to get McKinney for the same. Mc-
Kinney protested, stating that he had explained to Fowler
that he had given the timesheet to Gifford and that, there-
fior, he could not have been insubordinant. Fowler, how-
ever, rejected McKinney's argument and stated once again
that he would get McKinney for insubordination. At that
time McKinney told Fowler never to grab him again in the
manner in which he had out in the forge shop.7
Evidently, between the second interview, as related, and
approximately 3:15 in the afternoon of June 24, Fowler
discussed his dispute with McKinney and Gifford with Per-
sonnel Manager Langsenkamp and it was decided that the
two would be suspended pending further investigation of
the entire matter.8 At approximately 3:15 p.m., Fowler
summoned Gifford and McKinney to his office. At that
point, Fowler handed each of them the suspension slips.
Gifford asked Fowler the reason for the suspensions.
Fowler stated that this was for what occurred that morning
when Fowler asked Gifford for the timesheet and Gifford
had told him that Gifford had burned the slip up. Upon
hearing that, Gifford pulled the timesheet in question out of
his pocket and handed it to Fowler who unfolded it, looked
at it, and stated he thought that took care of it. The reason
given for the suspension as noted on the suspension slips
was violation of article 12, paragraph A-3 of the plant rules,
which paragraph speaks of suspension for insubordination.
McKinney protested his suspension stating that he had
not been insubordinate. Thereupon Fowler turned around
to Supervisor Breckenridge. who was also present, and
asked McKinney and Gifford to step out of the room and
wait outside. A telephone call was then made by Fowler
and after that the two suspended employees were called
back into the office and told that the suspensions would be
sustained.
On June 29, Gifford and McKinney, still under suspen-
sion, were summoned to Respondent's facility and to the
personnel conference room. Present for the Company were
Langsenkamp, Fowler, and a supervisor named Britt. On
behalf of the Union were Robert Leavey, business repre-
sentative for the Union, Alice Booth, committeeperson,
McKinney, Gifford, Wroten, Boyce, and John Booth. Wro-
7 All of the foregoing from credited testimony of McKinney, Gifford. and
employees John Booth, Burgiss Boyce. and Ernie Wroten. Booth. Boyce, and
Wroten were still employed by Respondent as of the date of the hearing
herein and I. therefore, credit their testimony not only by reason of their
demeanor as I observed it, but also because of the fact that they were still
subject to discipline by Respondent and other measures which could be
taken by Respondent against them as such employees.
8 From credited testimony of both Langsenkamp and Fowler. To the ex-
tent that I credit a witness in part and discredit a witness in other matters, I
do so upon the evidentiary rule that it is not uncommon "to believe some
and not all of a witness' testimony." N.LR.B. v. Universal Camera Corpora-
rion, 179 F.2d 749, 754 (2d Cir. 1950).
910
THE UNION FORK AND HOE COMPANY
ten, Booth, and Boyce were there as witnesses on behalf of
McKinney. A hearing known as a "due process hearing"
was then held in which Langsenkamp heard from witnesses
on both sides.
After all the witnesses were heard Fowler. Langsenkamp
and Britt left the room and returned shortly thereafter.
Langsenkamp announced that Gifford was suspended for
30 days and McKinney was discharged whereupon each
were handed slips in accordance with that announcement.
McKinney signed the slip as required, but wrote thereon
that he was not satisfied. He thereafter filed the grievance
referred to earlier in this Decision which went to arbitration
as heretofore discussed.
However. Gifford, upon receiving the 30-day suspension
stated something to the effect that the entire hearing was
nothing, but a circus and was just a "F---g kangaroo
hearing." At this point, Gifford left the room and slammed
the door. When Leavey immediately thereafter asked Lang-
senkamp why McKinney was being discharged. Langsen-
kamp stated that it was for misleading people.' However.
the discharge slip given to McKinney on that date stated
that McKinney was discharged for violation of plant rule
12(a)(3). When this was protested by McKinney. Langsen-
kamp took the slip back and also wrote on it 17 paragraph
I, which, in the collective-bargaining agreement, states that
the Company retains the sole right to discharge employees
for what it deems to be just cause.
Thereafter, as noted, McKinney filed a grievance which
went to arbitration and, as heretofore set forth, the arbitra-
tor decided the matter in favor of Respondent and upheld
the discharge for causes given by Respondent. Thereafter.
the charge leading to the instant proceeding was filed.
B. Discussion and Conclusions
Respondent, aside from its contention, heretofore found
to be without merit, that the arbitrator's award disposed of
the matters with which this case is concerned, further con-
tends that, in any event, at the time of the altercation be-
tween McKinney and Fowler on the morning of June 24.
McKinney was not only insubordinate, but also was no
longer engaged in his duties as a steward and that, there-
fore, he was not engaged in protected union duties. Accord-
ingly, Respondent argues, the discharge for insubordination
was both justified and for cause.
The General Counsel, on the other hand, contends that
the background of Respondent's annoyance with the nu-
merous grievances filed during McKinney's stewardship,
the timing of the discharge, and the exaggerated impor-
tance given to what was, in perspective, a rather minor inci-
dent, indicate that Respondent utilized the incident as an
excuse to retaliate against McKinney and to rid itself of a
steward whom Respondent considered a disruptive force. I
find merit in the General Counsel's contention.
The annoyances. frequently expressed by both Carpenter
and Langsenkamp, with McKinney's conduct as a steward
is the backdrop for the events which led to his discharge. It
is, therefore, evident that in carrying out his duties on be-
half of his fellow union members McKinney acted in so
I All of the foregoing from credited portions of the testimony of Alice
Booth. McKinney. Gifford, and Lcasev.
aggressive a manner as to irritate those individuals in Re-
spondent's hierarchy who had to deal with him. The com-
plaints of Respondent's officials regarding the increase in
the number of grievances filed, and their accusations that
McKinney was the instigator who misled his fellow employ-
ees into filing the grievances, supports this conclusion.
Moreover, the record establishes that this vexation with
McKinney was communicated between Carpenter and
Langsenkamp so that the fact that Carpenter was on vaca-
tion when the events leading to McKinney's discharge oc-
curred is immaterial; Langsenkamp knew of Carpenter's
exasperation with McKinney.
We come now to the June 24 incident. Whether McKin-
ney purposely took Gifford's timesheet with him when he
was called out of Fowler's office. or whether he did so with-
out thought in his haste to perform the work requested by
employee John Booth, is not an essential element to be re-
solved. When he was approached only minutes thereafter
by Fowler, who grabbed McKinney's arm. turned the latter
around. and demanded the timesheet. McKinney truthfully
informed Fowler that McKinney had given the paper to
Gifford.
After Fowler had used physical force to turn McKinney
around, Fowler's reaching for paper in McKinney's shirt
pocket could readily have motivated McKinney's reaction
in forcefully knocking down Fowler's arm. Additionally,
the reliability of McKinney's version of the incident is es-
tablished by the fact that soon thereafter Fowler went to
Gifford and asked the latter for the timesheet. Gifford's an-
swer that he had thrown the timesheet in the scrap metal
fire followed. This reply, later in the day was proven to be
an outright lie when Gifford returned the timesheet in ques-
tion to Fowler.
The preceding led to the ultimate suspension of Gifford
and the discharge of McKinney. As noted, the decision of
Langsenkamp to discharge McKinney and merely suspend
Gifford followed the so-called "due process" hearing pre-
sided over b Langsenkamp, who, when he announced the
decision on June 24 to suspend McKinney and when he
announced on June 29 that McKinney was discharged,
gave what seemed to be conflicting reasons for the suspen-
sion and the discharge. On June 24, Langsenkamp told Mc-
Kinney the latter was suspended for insubordination. How-
ever. on June 29, although the discharge slip mentioned
insubordination, verbally Langsenkamp stated that the dis-
charge was for "misleading the people." This latter remark
again indicates Respondent's annoyance with McKinney's
aggressive activities as steward and points to the true reason
for his discharge.
Finally, as noted, at the announcement of his 30-day sus-
pension on June 29. Gifford told Langsenkamp that the
hearing was "a circus" and used a common expletive in
calling the hearing a "kangaroo court." Yet, despite Gif-
ford's vulgarity of language and his accusation against Re-
spondent, and especially against Langsenkamp, his suspen-
sion was not changed to discharge. This, in spite of the fact
of Gifford's deception in telling Fowler on June 24 that
Gifford had thrown the original timesheet in the fire.
But, McKinney, who had merely intervened in the entire
matter as a steward, albeit perhaps somewhat abrasively,
was discharged. This disparate treatment in light of the oh-
911
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
vious irritation of Respondent over McKinney's aggressive
stewardship, leads to the ultimate conclusion that, as noted
above, the McKinney-Fowler incident was blown up out of
all proportion by Respondent as a pretext to cover up the
final solution which Respondent desired, namely, the elimi-
nation from its employee complement of McKinney be-
cause of the latter's protected union activities as steward.
Accordingly, I find that by reason of the foregoing Re-
spondent has violated Sections 8(aX3) and () of the Act.
V. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of Respondent, set forth in section IV,
above, occurring in connection with the operation of Re-
spondent, above, have a close, intimate, and substantial re-
lation to trade, traffic, and commerce among the several
States and tend to lead to labor disputes burdening and
obstructing commerce and the free flow of commerce.
VI. THE REMEDY
It having been found that Respondent has violated the
Act, it will be recommended that Respondent cease and
desist therefrom and take certain affirmative action de-
signed to effectuate the policies of the Act.
It having been found that Respondent violated Section
8(a)(3) and (I) of the Act by discriminatorily first suspend-
ing and then discharging Robert Terry McKinney, it will be
ordered that McKinney be reinstated to his former or
equivalent position and that Respondent make him whole
by paying to him a sum of money equal to that which he
would have earned but for the discrimination visited upon
him by Respondent. Backpay shall be computed with inter-
est thereon in the manner described in F. W. Woolworth
Company, 90 NLRB 289 (1950), and Florida Steel Corpora-
tion, 231 NLRB 651 (1977).'°
Upon the basis of the foregoing findings of fact and the
entire record in this case, I make the following:
CONCLUSIONS OF LAW
I. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. By first discriminatorily suspending Robert Terry Mc-
Kinney and then discriminatorily discharging him Respon-
dent has violated and is violating Section 8(a)(3) and (1) of
the Act.
4. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
On the basis of the foregoing findings of fact and conclu-
sions of law and upon the entire record, and pursuant to
Section 10(b) of the Act, I hereby issue the following:
'°See, generally, Isis Plumbing & Heating ( . 138 NLRB 716 (1962).
ORDER"
The Respondent, The Union Fork and Hoe Company,
Columbus, Ohio, its agents, officers, and representatives,
shall:
I. Cease and desist from:
(a) Discouraging membership in Local 2306, Interna-
tional Association of Machinists and Aerospace Workers,
AFL-CIO, or any other labor organization by discrimina-
torily suspending and/or discharging any employee for en-
gaging in union or any protected concerted activity or dis-
criminating against employees in any manner in regard to
their hire, tenure of employment, or any other terms or
conditions of employment.
(b) In any other manner interfering with, restraining, or
coercing its employees in the exercise of their rights to form,
join, assist, or be represented by Local 2306, International
Association of Machinists and Aerospace Workers, AFL-
CIO, or any other labor organization, to bargain collec-
tively through representatives of their own choosing, or to
engage in other concerted activity for the purpose of collec-
tive bargaining or other mutual aid or protection or to re-
frain from any or all such activity, except that such right
may be effected by an agreement requiring membership in a
labor organization as a condition of employment as autho-
rized under Section 8(a)(3) of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act:
(a) Offer immediate and full reinstatement to Robert
Terry McKinney to his former or substantially equivalent
position without prejudice to his seniority or other rights
and privileges enjoyed and make him whole for any loss of
earnings which he may have suffered by reason of the dis-
crimination against him in the manner set forth in the sec-
tion 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 and reports, and
all other records and reports necessary to analyze the
amount of backpay due under this Order.
(c) Post at its facility in Columbus, Ohio, at places where
notices to employees are customarily posted, copies of the
Notice attached hereto marked "Appendix."' 2 Copies of
said notice, on forms provided by the Regional Director for
Region 9, after being duly signed by Respondent's repre-
sentative, shall be posted by Respondent 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. Reason-
able steps shall be taken by Respondent to insure that said
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.
g" In the event that this Order is enforced by a Judgment of the 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 Judg-
ment of a United States Court of Appeals Enforcing an Order of the Na-
tional Labor Relations Board."
912
THE UNION FORK AND HOE COMPANY
materials are not altered, defaced, or covered by any other
material.
(d) Notify the Regional Director for Region 9, in writ-
ing, within 20 days from the date of this Order. what steps
Respondent has taken to comply herewith.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discharge any of our employees who
act as union stewards because they file or process any
grievances filed by any of our employees.
WE WILL NOT discourage membership in Local 2306.
International Association of Machinists and Aero-
space Workers, AFL-CIO. or any other labor organi-
zation, by discharging any employee for engaging in
union activity on behalf of the aforesaid union, or any
other union.
WE WILL NOT in any other manner interfere with.
restrain, or coerce any of our employees in the exercise
of their rights to form, join, or assist or be represented
by Local 2306, International Association of Machinists
and Aerospace Workers, AFL-CIO, or any other labor
organization, to bargain collectively through represen-
tatives of their own choosing, or engage in other pro-
tected concerted activity for the purposes of collective
bargaining, or other mutual aid or protection, or to
refrain from any or all such activities except as such
rights may be affected by an agreement pursuant to
Section 8(a)(3) of the National Labor Relations Act.
WE WILL offer to Robert Terry McKinney his for-
mer or equivalent position together with any seniority
or rights which he may have enjoyed before we dis-
criminatorily discharged him for performing his duties
as steward for the aforesaid union, and WE WILL pay
to him any earnings which he may have lost as a result
of our having discriminatorily suspended and then dis-
charged Mr. McKinney.
All our employees are free to become or remain or
refrain from becoming or remaining members of Local
2306, International Association of Machinists and
Aerospace Workers, AFL-CIO, or any other labor or-
ganization of their choosing.
THE UNION FORK AND HOE COMPANY
913