United States Steel Corp.

National Labor Relations Board - Board Decisions

Sep 30, 1980

252 N.L.R.B. 1273 (N.L.R.B. 1980)

liNIT'FD STAIlTES STEEI COR()I'
United States Steel Corporation ad Tommy M.
Garrison. Case 32-CA-1895
September 30, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING ANI) MEMBERS
JENKINS AND PENEII.O
On April 10, 1980, Administrative Law Judge
Leonard N. Cohen issued the attached Decision in
this proceeding. Thereafter, the General Counsel
filed exceptions and a supporting brief, and Re-
spondent filed an answering brief.
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, find-
ings, and conclusions of the Administrative Law
Judge only to the extent consistent herewith.
For the reasons set forth herein, we find that em-
ployee Garrison was suspended and reprimanded as
a result of his engaging in protected concerted ac-
tivity and find that such disciplinary action violat-
ed Section 8(a)(3) and (1) of the Act. According to
the credited facts, Respondent directed employee
Pantell to work on a tractor. Pantell inquired
whether he would be paid 4 hours' moveup pay for
the task. Respondent replied that he would receive
the higher pay only for the time actually spent per-
forming the task, and that Pantell should either get
on the tractor or be given his timecard. Pantell re-
quested his timecard, which was punched out and
handed to him. Foreman Hooper then turned to
Garrison and asked, "How about you?" Garrison
inquired, "Well are you going to give me 4 hours
move up?" Hooper responded, "Bye baby." Garri-
sion was given his timecard, and he left the prem-
ises.
According to credited testimony, both Garrison
and Pantell had routinely been paid a minimum of
4 hours' higher pay under similar circumstances,
and they were informed by their union committe-
man that, pursuant to mutual or local agreement,
the minimum amount of time employees were to
receive the special pay rate for working in a higher
job classification was 4 hours.
The Administrative Law Judge and our dissent-
ing colleague concede that, had Garrison's conduct
been limited to a mere inquiry, protest, or com-
plaint regarding Respondent's refusal to pay him a
guarantee of 4 hours' moveup pay for driving the
tractor, Respondent's suspension of him would
have violated the Act. However, by an extraordi-
252 NLRB No. 178
nary feat of legerdemain, the Administrative Law
Judge found that Garrison's inquiry was not an in-
quiry, but was instead a refusal to perform work.
The Administrative Law Judge reasoned that Gar-
rison must have understood that Hooper did not
consider the complaint as valid and that, after he
was told to leave, he could have stated that he
would perform the job.
There is no support for concluding that the mere
assertion of a contract claim, regardless of Respon-
dent's expressed attitude toward that claim,
amounts to a refusal to work. This conclusion is
based on sheer conjecture as to Garrison's unex-
pressed intent, for, unlike Pantell, Garrison con-
veyed no indication that he refused the assignment.
As to the second point, there is no basis in law or
logic for requiring a discriminatee to ask a respon-
dent to reverse its actions before a violation may
be found.
In sum, it is plain that Garrison was disciplined
as a result of his legitimate inquiry and that such
inquiry was protected union activity. Accordingly,
we find that, by suspending and reprimanding Gar-
rison because of his protected concerted activities,
Respondent violated Section 8(a)(3) and (1) of the
Act.
REMEDY
Having found that Respondent has engaged in
unfair labor practices, we will order it to cease and
desist therefrom and to take certain affirmative
action designed to effectuate the policies of the
Act. Having found that Respondent violated Sec-
tion 8(a)(3) and (1) of the Act by issuing a written
reprimand to Tommy M. Garrison and suspending
him for 3 days, we shall order Respondent to ex-
punge from Garrison's file any record of the disci-
pline taken against him and to make him whole for
any loss of earnings he may have suffered by pay-
ment to him of a sum of money equal to that
which he would have earned had be not been sus-
pended, less net earnings, if any, during that
period. Any backpay and interest thereon is to be
computed in the manner prescribed in F. W. Wool-
worth Company, 90 NLRB 289 (1950), and Florida
Steel Corporation, 231 NLRB 651 (1977).'
The Board, upon the basis of the foregoing facts
and the entire record, makes the following:
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in com-
merce within the meaning of the Act.
2. Local 1440, United Steelworkers of America,
AFL-CIO, is and has been at all times material
i See, generally Is Plumhbing Hearting Co. 138 NlRB 716 (1962)
1273
DECISIONS OF NAI'I()NAI IAB()R REIAII()NS BOARI)
herein a labor organization within the meaning of
Section 2(5) of the Act.
3. By reprimanding and suspending Tommy M.
Garrison on or about January 2, 1979, because of
his inquiry regarding applicability of contractual
rates of pay, Respondent has engaged in unfair
labor practices under 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.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that the Respondent,
United States Steel Corporation, Pittsburg, Califor-
nia, its officers, agents, successors, and assigns,
shall:
I. Cease and desist from:
(a) Suspending or reprimanding any employee
for joining or assisting the Union or engaging in
other protected concerted activities for the purpose
of collective bargaining or other mutual aid or pro-
tection.
(b) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them in Section 7 of
the Act.
2. Take the following affirmative action which
the Board finds will effectuate the policies of the
Act:
(a) Make Tommy M. Garrison whole for any
loss of earnings suffered by reason of his suspen-
sion in the manner set forth in the section hereof
entitled "Remedy."
(b) Expunge from its personnel files any record
of the disciplinary action taken against Tommy M.
Garrison on or about January 2, 1979.
(c) Preserve and, upon request, make available to
the Board or its agents, for examination and copy-
ing, all payroll records, social security payment re-
cords, timecards, personnel records and reports,
and all other records necessary to analyze the
amount of backpay due under the terms of this
Order.
(d) Post at its Pittsburg, California, plant copies
of the attached notice marked "Appendix." 2
Copies of said notice, on forms provided by the
Regional Director for Region 32, after being duly
signed by Respondent's authorized representative,
shall be posted by Respondent immediately upon
2 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "P)slted by
Order of the National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National I.abor Relations Board."
receipt thereof, and be maintained by it for 60 con-
secutive days thereafter, in conspicuous places, in-
cluding all places where notices to employees are
customarily posted. Reasonable steps shall be taken
by Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(e) Notify the Regional Director for Region 32,
in writing, within 20 days from the date of this
Order, what steps Respondent has taken to comply
herewith.
MEMBER PENEI.LO, dissenting:
I dissent from the finding that Respondent violat-
ed the Act and would adopt the findings and con-
clusions of the Administrative Law Judge and dis-
miss the complaint.
The facts are clear. Employees Garrison and
Pantell were standing together when Foreman
Hooper told Pantell to get up on the tractor to per-
form a task normally undertaken by another em-
ployee who is paid at a higher rate. Pantell asked if
he would get 4 hours' "move-up" pay. Hooper an-
swered that Pantell would receive the higher rate
of pay only for the time actually spent on the task.
Pantell replied that Respondent was supposed to
pay a minimum of four hours' moveup pay.
Hooper then stated, in the presence of both em-
ployees, that Pantell could either get on the tractor
or be given his timecard. Pantell answered, "Give
me my card." Hooper punched out Pantell's time-
card and handed it to him. Pantell left the area.
Immediately thereafter Hooper asked Garrison,
"How about you?" Garrison asked, "Well, are you
going to give me four hours moveup?" Hooper re-
plied, "Bye, baby." As Hooper gave him his time-
card, Garrison made no response, but took his card
and left the area.
This matter hinges on the simple question of
whether Garrison indicated, by his words and ac-
tions, that he was refusing to perform the assigned
task unless he received the 4 hours' moveup pay.
My colleagues conclude that Garrison was merely
making an inquiry and was disciplined for doing so.
I disagree. Because Garrison was present during
the exchange between Hooper and Pantell, he un-
derstood that Hooper would not grant the 4 hours'
moveup pay and that the alternatives for any em-
ployee faced with the request to get on the tractor
was to perform the work or punch out. Unless
there was some reason to believe that the same
conditions would not apply to Garrison or that
Hooper would have changed his mind in the
course of a few seconds, a reasonable person would
assume that Garrison was faced with the same al-
ternatives presented to Pantell. Garrison chose to
repeat the pay question. Hooper could safely con-
1274
UNITED STATES STEEL CORIP.
elude that Garrison too was setting conditions
under which he would operate the tractor. Hooper
responded with a quick, "Bye, baby." If Garrison
had felt his question had been misunderstood he
could have easily told Hooper that he was not re-
fusing to perform the work. Garrison said nothing,
took his timecard, and left the plant. If Hooper was
the sort who would suspend an employee for
merely making an inquiry, he would have suspend-
ed Pantell immediately instead of waiting until
Pantell made an explicit refusal to perform the
work. Although Hooper appears to be a man of
few words, all the participants in this encounter un-
derstood the import of the words spoken. I think
my colleagues attribute a rigidity and formality to
this situation that is totally at odds with the reali-
ties of the workplace.
I dissent.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR REI.ATIONS BOARD
An Agency of the United States Government
WE WILL NOT suspend or reprimand any
employee for joining or assisting the Union or
engaging in other protected concerted activi-
ties for the purpose of collective bargaining or
other mutual aid or protection.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce employees in
the exercise of the rights guaranteed them by
Section 7 of the Act.
WE WILL make Tommy M. Garrison whole,
with interest, for any loss of earnings suffered
by reason of his suspension.
WE WILL expunge from our personnel files
any record of the discipline taken against Gar-
rison on or about January 2, 1979.
UNITED STATES STEEL CORPORATION
DECISION
STATEMENT OF THE CASE
LEONARD N. COHEN, Administrative Law Judge: This
matter was heard before me in Oakland, California, on
January 8, 1980. On August 21, 1979, the Acting Region-
al Director for Region 32 of the National Labor Rela-
tions Board issued a complaint and notice of hearing
based on unfair labor practice charges filed on June 27,
1979, alleging that Respondent by suspending Tommy
M. Garrison because he engaged in protected concerted
activity violated Section 8(a)(1) and (3) of the National
Labor Relations Act, as amended, 29 U.S.C. 151, e seq.,
herein called the Act.
All parties have been afforded full opportunity to
appear, to introduce evidence. to examine and cross-ex-
amine witnesses, to argue orally, and to file briefs. Coun-
sel for both parties filed briefs which have been carefully
considered.
Upon the entire record of this case and from my ob-
servation of the witnesses and their demeanor, I make
the following:
FINDINGS OF: FAC
I. JURIS)ICTION
Respondent is a Delaware corporation with an office
and place of business located in Pittsburg, California.
where it is engaged in the manufacture of steel. Respon-
dent admits and I find that during the past 12 months
Respondent in the course and conduct of its business op-
erations sold and shipped goods or services valued in
excess of $50,000 directly to customers located outside
the State of California. Accordingly, I find that at all
times material herein Respondent has been an employer
engaged in commerce and in operations affecting com-
merce within the meaning of Section 2(6) and (7) of the
Act.
II. THE LABOR ORGANIZATION INVOL.VED
Respondent admits and I find that Local 1440, United
Steelworkers of America, AFL-CIO, herein called the
Union, is and has been at all times material a labor orga-
nization within the meaning of Section 2(5) of the Act.
Ill. THE UNFAIR LABOR PRACTICES
A. Background
At the time of the December 30, 1978, incident,' the
Charging Party, Tommy M. Garrison, was employed as
a grade two laborer in the coal reduction department of
Respondent's Pittsburg, California, facility. Respondent
and the Union have been parties to a series of collective-
bargaining agreements covering Respondent's production
and maintenance employees, the last of which agree-
ments has a term of August 1, 1977, to July 31, 1980.
This agreement contains, inter alia, a detailed grievance
arbitration provision, 2 a no-strike clause specifically pro-
hibiting employee participation in strikes, work stoppages
or interruption or impeding of work, and a management-
rights clause in which Respondent retains the exclusive
right to direct its working forces. Additionally, in effect
at all material times were plant rules and regulations that
All dates stated herein refer to 1978, unless otherwise specified.
Sec. 6, "AdJustment of Complaints and Grievances., provides at sub-
section C, step one, par. 6.5, the following:
Any employee who believes that he has a justifiable complaint
shall discuss the complaint with his foreman, with or without the
grievance or assistant grievance committeeman being present, as the
employee may elect. in an attempt to settle same. However. any such
employee may instead, if he so desire- report the matter directly to
his grievance or assistant grievance committeeman and in such event
the grievance or assistant griesance committeeman, if he believes the
complaint merits discussion. hall take it up with the employe's
foreman in a sincere effort to resolve the problem. The employee in-
%olsed should he present in uch discussion, if he is available
1 275
DECISIONS ()F NATIONAL LABOR RELATIONS BOARD
provided, inter alia, that "insubordination (refusal or fail-
ure to perform work assigned or comply with instruc-
tions of supervisory forces)" may be cause for suspension
preliminary to discharge.
The General Counsel contends that Garrison was sus-
pended for 2-1/2 days for questioning, in good faith, his
supervisor turn foreman, Billie Jack Hooper, as to
whether he would receive a guaranteed minimum of 4
hours pay at a higher grade level when temporarily per-
forming more skilled work, and that by making such an
inquiry Garrison was engaged in protected concerted ac-
tivity.
Respondent, on the other hand, contends that Garrison
refused, by his words and/or actions, a legitimate work
assignment which rendered his conduct unprotected.:'
Respondent further argues that the collective-bargaining
agreement's provisions required Garrison to perform the
assignment in question and then grieve the matter.
B. Garrison s Suspension
At or about 10 a.m. on December 30 Thomas Trimble,
a millwright, went to Hooper's office and informed him
that he needed someone to drive the RAM tractor and
bump, or disengage, a C-hook from a crane.4
The events immediately following Trimble's request
are in some dispute. Four individuals, Trimble, Hooper,
Garrison, and one other laborer, George Pantell, were
present in the area of Hooper's office and participated or
witnessed the conversations in question.
Neither the testimony of Garrison nor Hooper was
particularly persuasive, and neither version is credited
except to the extent that it is corroborated by the testi-
mony of Trimble.5 With regard to Trimble, he impressed
me with his ability to clearly recall the events of Decem-
ber 30 and has no interest in the proceeding which
would warrant the shading or fabrication of his testimo-
ny.s The following account is, therefore, from Trimble's
credited testimony.
Immediately upon Trimble seeking assistance, Hooper,
accompanied by Trimble, approached Garrison and Pan-
tell who were standing nearby.7 Upon reaching the
group Hooper, addressing Pantell, told him to get up on
3 This case does not concern a claim under Sec. 502 that the work in
question involved "abnormally dangerous conditions."
' Driving the RAM tractor to perform this job, which normally lasted
between 30 minutes and an hour was normally performed by a tractor
driver. On the morning of December 30, the tractor driver was not as-
signed to the cold reduction department mill. In the past, Respondent
routinely utilized laborers, including Garrison, to drive the RAM tractor
when no tractor driver was available.
s The crediting of only portionts of Garrison and Hooper's testimony is
required under the circumstances of this case. Carolina Canners. Inc., 213
NLRB 37 (1974). "Nothing is more common than to believe some and
not all of what a witness says" Edwards Transportation Company, 187
NLRB 3, 4 (1970), enfd. 437 F.2d 502 (5th Cir. 1977). The specific areas
of concern I find, with the testimony of Garrison and Hooper will be
noted and discussed infra.
6 Trimble, who was employed by Respondent at the time of the hear-
ing, gave testimony adverse to the interest of Respondent. In these cir-
cumstances it is unlikely that his testimony would be false. See Georgia
Rug Mill, 131 NLRB 1314, 1305 (19hl), modified on other grounds 308
F 2d 89 (5th Cir 1962)
1 Pantell, Trimble, and Hooper all place Garrison in the group when
Hooper first addressed Pantell.
the tractor." Pantell answered by asking Hooper if he
would get 4 hours moveup pay for the task.9 Hooper an-
swered that Pantell would receive the pay at the higher
job classification only for the time actually spent while
performing the task. When Pantell then stated that Re-
spondent was supposed to pay the employees 4 hours
moveup, Hooper replied that Panteil would either get on
the tractor or be given his timecard. Pantell answered,
"Give me my card."' ° Hooper then punched out Pan-
tell's timecard and handed it to him. " Pantell then took
his timecard and left the group. Hooper then turned to
Garrison and stated, "How about you?" When Garrison
answered, "Well, are you going to give me 4 hours
move-up?" Hooper merely said, "Bye, baby." Garrison
was then given his timecard, left the area without
making further comment and caught up with Pantell
who was then walking out of the mill.' 2
s Contrary to the other witnesses' testimony, Garrison testified that
Hooper had earlier approached him while he was standing in a group
with Pantell and employee Baker and asked him if he wanted to drive the
tractor. When Garrison asked if Hooper was going to pay him fr doing
the job, Hlooper merely responded that he would get the regular tractor
driver and left the area without first speaking to either Pantell or Baker.
Garrison further testified that a short time later, someone, he could not
recall who, told him that Pantell had already been sent home by Hooper.
It was at this point that Garrison testified Hooper again approached him
with the job assignment
9 Both Garrison and Pantell credibly testified that on several occasions
each week they were temporarily assigned work duties in a higher job
classification. According to both, although these assignments frequently
took less than 4 hours to perform, they were routinely paid for a mini-
mum of 4 hours work at the higher rate.
Approximately I or 2 months before the December 30 incident either
Garrison, Panltell or both had been temporarily assigned the task of
"bumping the C-hook." On that occasion Respondent did not pay the 4-
hour minimum, but merely paid on the basis of actual time spent on the
job. Sometime shortly after this incident Garrison and Pantell spoke to
their union committeeman, Ralph Torrano, about this issue Torrano in-
formed them that by mutual or local agreement, the minimum amount of
time employees were to receive for working in a higher job classification
was 4 hours
Respondent contends that no such local agreement exists and denies
that there is such an established practice. Sec. 9, subsec. B, par. 9.15, of
the collective-bargaining agreement provides "the established rate of pay
for each production or maintenance job . shall apply to any employee
during such time as the employee is required to perform such job." Fur-
ther inquiry or resolution of this issue is not relevant or germane to the
case at bar.
"' In looper's version, Pantell stated that he would not get on the
tractor unless he would get paid for 4 hours and that Pantell specifically
affirmed that he was in fact refusing the job assignment
i' Although the record is silent as to the exact location of the time-
clock, it appears that it was quite close to the area where these conversa-
tions took place. All witnesses agreed that both Pantell and Garrison had
their timecards punched out and handed to them during their respective
conversations with Hooper.
2t Garrison's version is similar to Trimble's. According to Garrison,
after Hooper asked him to knock off the C-hook, Garrison again asked
Hooper if he would get the moveup pay. When Hooper answered he
would get the actual time spent tin the job, Garrison replied that it was
his understanding that he was supposed to be paid for a minimum of 4
hours. At this point, Garrison testified Hooper told him "bye-bye, baby."
and punched out his timecard Hooper's version differs in one material
respect from the versions of Trimble and Garrison. According to
Hooper, he first answered Garrison's question of how Garrison would be
paid with the statement that Garrison would get the time actually spent
on the tractor A this point, according to Hooper, Garrison said, "I am
not going to get on the tractor unless you pay me that 4 hours." Hooper
then answered, "Well, in that case, bye-bye, baby "
Continued
1276
UNITED STATES STEEI CORP.
Shortly after Garrison left Hooper's presence, the reg-
ular tractor driver reappeared and performed the task in
issue.
Early in January, Respondent issued a reprimand to
Garrison and suspended him for two additional days
after December 30 on the ground that he had engaged in
insubordination for failing to comply with the instruc-
tions of a supervisor.' 1 Thereafter, a grievance was filed
on the suspension which was subsequently withdrawn at
the third step over Garrison's objections.
IV. DISCUSSION ANI) CONCLUSIONS
As set forth in detail above, Garrison was present
when coworker Pantell refused to perform the job as-
signed on the grounds that he would not receive 4 hours'
moveup pay. Garrison was also present when Pantell
was clocked out and was sent home because of his refus-
al. Immediately following the conversation between Pan-
tell and Hooper, Garrison was given the same assign-
ment. The credible evidence establishes that when Garri-
son repeated Pantell's earlier question and inquired as to
whether he, Garrison, would receive the 4 hours'
moveup time, Hooper clocked him out and sent him
home as well.
It is well-settled that an employee is engaged in pro-
tected concerted activities when he, either acting alone
or in concert with his fellow employees, complains or in-
quires about possible contract violations and a violation
of the Act is established if the employer penalizes the
employee for asserting such rights under the contract.' 4
Likewise, it is equally well-settled that the merits of the
underlying claim or dispute are irrelevant to the issue of
whether the employee was engaged in protected concert-
ed activity. 5 Had Garrison's conduct been limited to a
mere inquiry, protest or complaint regarding Respon-
dent's refusal to pay him a guarantee of 4 hours' moveup
pay for driving the RAM tractor, Respondent's conduct
in suspending him would have violated the Act.' 6 How-
ever, I do not view the instant facts as so limiting Garri-
son's conduct on the morning of December 30. On the
contrary, I find that Garrison, in those circumstances, by
his words and conduct, refused to perform the task as-
signed. Having just heard the conversation between Pan-
tell and Hooper, Garrison fully understood that Hooper
did not consider the complaint concerning the guaran-
As set forth above, I find Trimble's version, as corroborated by Garri-
son, the more probable version and 1. therefore, do not credit Hooper's
testimony that Garrison ever specifically stated that he would not per-
form the job assignment unless he received the 4 hours' moveup time. In
this regard I have taken into account Respondent's failure to recall
Hooper as a rebuttal witness to deny certain admissions he allegedly
made concerning his inability to accurately recall the specifics of the De-
cember 30 incident The General Counsel, in his rebuttal portion of the
case, recalled Garrison who testified that during a conversation with
Hooper in a first-step grievance meeting on January 2. Hooper admitted
that he could not then recall whether Garrison ever specifically refused
the job assignment.
II No evidence was offered as to what action. if any, Respondent took
regarding Paniell's conduct on the same day
14 Potlatch Corp.. 236 NLRB 707. 709 (1978). ARO. Inc., 227 NLRB
243 (1976).
is ARO. Inc., supra at 243; John Serton and Coinpan. 4 Divison of Be-
airice Fxood Co. 217 NL.RB 80 (1975
1' Cory Janmion Corp., 238 NLRB 320 (1978)
teed moveup time as valid. Garrison further fully under-
stood that a refusal to perform the assigned task would
result in his being immediately sent home. Nonetheless,
Garrison chose to repeat the exercise of asking Hooper
as to the method of payment he would receive for per-
forming the task. Had Garrison's intent in asking this
question been other than a refusal to perform the task, he
had ample opportunity to clarify the situation immediate-
ly following Hooper's remarks of "bye-bye, baby" with a
simple statement he would in fact perform the job. Not-
withstanding this opportunity, Garrison stood moot, al-
lowed Hooper to punch out his timecard and left the
plant.
By refusing the assignment, I find that Garrison's con-
duct on the morning in question constituted insubordina-
tion. Garrison was well aware that grievance machinery
was available for him to protest the method of payment
to be received for performing the assigned task. Howev-
er, he made a conscious choice to ignore those provi-
sions of the contract, as well as the specific provisions
prohibiting slowdowns and work stoppages. By refusing
the assignment, Garrison was in effect attempting to
work only on his own terms. His conduct therefore was
unprotected. Yellow Freight Systems, Inc., 247 NLRB No.
28 (198()).17
The General Counsel argues that the Board's conclu-
sion in Duchess Furniture., Division of National Services In-
dustries, Inc., 222 NLRB 42 (1976), that "the employee's
delay in performing the work was not insubordination" is
applicable here. I disagree. First, the charging party
there specifically stated that she was not refusing the job
assignment but merely wanted to discuss whether the job
was a production job covered by the collective-bargain-
ing agreement. Secondly, the administrative law judge
relying on John Sexton and Company. supra, and Dust
Tex Service, Inc., 214 NLRB 398 (1974), concluded,
"under the existing collective-bargaining agreement
Faber had an arguable right to refuse the unilateral work
assignment which may have removed herfrom the unit cov-
ered by the collective-bargaining agreement." (Emphasis
supplied.)
The instant matter is factually distinguishable from the
situation raised in Duchess Furniture, supra, as well as
from the situations in the two cases elied on by the Ad-
ministrative Law Judge in deciding Duchess. Dust Tex
Service, supra, involved the refusal of a group of employ-
ees to accept not only unilateral changes in their wages
but the prospect of losing their employee status as well.
In John Sexton the Board held that an employee had the
arguable right under the collective-bargaining agreement
which prohibited a situation in which driving would be
hi In his brief. the General Counsel argues that Yellow Freight. supra, is
factually distinguishable front the instant case on the dual grounds that
( ) the delay there in performing the assigned tasks was 20 minutes rather
than a few seconds and (2) that the employee's protest was not a reason-
ably based contract claim As to point one, unlike the situation here, the
employee in Yellro Freight never actually refused to perform an) task
As to point two, the administrative law judge specifically concluded that
'even if initially his conduct were viewed as a reasonably based assertion
of a contractual right, the mainer in which he made such an assertio
rendered his conduct unprotected "
1277
DECISIONS O()F NATIONAL L.ABOR RELATIONS BOARD
"in violation of any applicable statute" to refuse to drive
without a valid driver's license.
Here, driving the RAM tractor would neither have re-
moved Garrison from coverage of the collective-bargain-
ing agreement nor would the performance of that task
have violated any provision of the contract. "
In these circumstances, I find that Respondent sus-
pended Garrison for cause and not for engaging in pro-
tected concerted activity in violation of the Act. Ac-
cordingly, I will recommend that the complaint be dis-
missed in its entirety.
I" Likewise. Ihe Board's recent decisilt i Ontario Kntif (Company. 247
NlRB No 168 (IX()., alrd he cases cited hrein are factually distin-
guishable from he case at bar. None ivolved situation here the enl-
ployees were coLcred h a collective-bargaining agreement with both e-
tensi'Vre grievance-arbitrationl provisions and a clear. unamiguous Ino-
strike clause
Upon the foregoing findings of fact and upon the
entire record in this case, I make the following:
CONCIUSIONS OF LAW
1. Respondent United States Steel Corporation is an
employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. Local 1440, United Steelworkers of America, AFL-
CIO, is a labor organization within the meaning of Sec-
tion 2(5) of the Act.
3. Respondent did not violate the Act when it sus-
pended employee Garrison on December 30, 1978, for
failure to comply with the supervisor's order.
[Recommended Order for dismissal omitted from pub-
lication.]
1278