US Postal Service

National Labor Relations Board - Board Decisions

Sep 30, 1980

252 N.L.R.B. 624 (N.L.R.B. 1980)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
United States Postal Service and Patricia L. Moore.
Case 32-CA-131 1(P)
September 30, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND PENEI.IO
On March 26, 1980, Administrative Law Judge
David P. McDonald 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.
The Administrative Law Judge found that Re-
spondent suspended Union Steward Patricia Moore
solely because of insubordination to Supervisor
Ward on July 17, 1978. We find, contrary to the
Administrative Law Judge, that Moore was sus-
pended for engaging in protected union and con-
certed activity, in violation of Section 8(a)(l) and
(3) of the Act.
Otis Ward was, at all pertinent times, a supervi-
sor on the 9-to-5:30 tour at Respondent's Bulk Mail
Center involved herein. The incidents which led to
Moore's suspension occurred on July 17 when
Ward discovered employees Carson, Welch, and
Goepfert in break areas rather than at their work
stations after the final production count sheets had
been collected but before the work shift had ended.
Ward addressed each of the employees separately,
telling them "officially" that "you are not on your
job," warned them, "Don't let it happen again,"
and subsequently entered disciplinary warnings in
their records. The employees then met with
Moore, their union steward, related what had tran-
spired with Ward, and requested her advice and as-
sistance. Moore agreed to investigate the incident
and then left her work station for the purpose of
conducting this union business without first obtain-
ing her supervisor's (Ward's) permission to do so as
required by the contract. Moore appeared as Ward
began to explain the work schedule to the employ-
ees and was told by Ward that "This is not union
business."' Moore responded by asserting her right
to represent the employees. During the course of
I Ward admitted that he assumed Moore was on uniti business he-
cause that was the only time Moore spoke to Ward.
252 NLRB No. 83
the argument which ensued, Ward gave Moore
several direct orders to return to her workplace.
Moore ignored the orders, protesting that she had
a right to remain with, and represent, the men.
Ward threatened to write her up if she did not
return to work, but Moore kept insisting that she
had a right to remain with the employees, telling
them that they did not have to speak with Ward
without the presence of their union steward.
Moore finally left, and Ward proceeded to instruct
the men that production work does not stop when
the production sheets are collected but continues
until 5:15, followed by 10 minutes of cleanup of the
work area for the employees on the next shift.
After the meeting, the employees told Moore that
they had not been disciplined. Moore inquired
whether Ward had said anything about writing her
up for disobeying him and requested their assist-
ance if he did so. On July 21, Respondent issued
Moore a 5-day suspension notice, effective July 26,
1978, alleging insubordination for refusing to obey
Ward's orders on July 17.
As previously noted, the Administrative Law
Judge found that Moore was suspended solely be-
cause of insubordination to Ward. He also found
no interference with the employees' Section 7
rights because Ward's instructions to the three em-
ployees constituted a "run-of-the-mill shop-floor"
conversation which did not involve their protected
rights and, consequently, did not entitle them to
union representation, under the doctrine of
N.L.R.B. v. J. Weingarten, Inc., 420 U.S. 251
(1975). He concluded, therefore, that Moore's at-
tempted intervention on the employees' behalf was
not protected activity. Moreover, the Administra-
tive Law Judge noted Moore failed to comply with
the collective-bargaining agreement requirement
that she obtain permission from her supervisor
(Ward) before leaving her work station to engage
in union business.
We do not agree with the foregoing analysis of
the Administrative Law Judge. Assuming that
Ward's instructions to the employees did not in-
volve their Section 7 rights, his "official" warning
to them, which they, in turn, presented to Moore
as informal grievances, clearly involved those
rights and was the sole basis for Moore's interven-
tion. Moore's effort to investigate those grievances
at the request of the disciplined employees was
within the scope of her official union functions and
constituted protected concerted activity. 2 Ward's
2 In view of our disposition herein, we find it unnecessary to pass upon
the Administrative Law Judge's analysis if the applicability of the Wein-
garien doctrine. Contrary to the apparent assumption of the Administra-
tive Law Judge, the protected nature of a union steward's conduct is not
Continued
624
UNITED STATES POSTAL SERVICE
opening statement to Moore, i.e., this is not union
business, made it abundantly clear to Moore that
Ward was bent on preventing her from performing
her official duties and also plainly demonstrated the
futility of her requesting permission to engage in
union business. While we agree with the Adminis-
trative Law Judge that union stewards are not
immune from being disciplined for insubordination,
we find no insubordination here. We find, instead,
a conscious intent to preclude Moore from carry-
ing out an official, and protected, union function,
which Moore protested, without engaging in con-
duct which can be reasonably and objectively
viewed as insubordinate. 3 Certainly, Moore's con-
duct involved neither a refusal to work nor a dis-
ruption of work production, and her conduct did
not exceed "acceptable bounds" and lose the pro-
tection of the Act.4 Ward may have considered
Moore's conduct as a challenge to his authority,
but the fact remains that he provoked the confron-
tation by his unwarranted interference with
Moore's protected right to investigate the griev-
ances.
Accordingly, we find that Respondent's suspen-
sion of Moore interfered with her protected union
and concerted activity, in violation of Section
8(a)(l) and (3) of the Act. We shall therefore order
Respondent to cease and desist from engaging in
the conduct found unlawful herein, to post an ap-
propriate notice, and to make Moore whole for any
loss of wages or other benefits she suffered as a
result of her suspension,5 and to expunge any
record of her suspension.
entirely dependent on Whether the employees involved were entitled,
under Weingarren, to request union representation Rather, so long as his
or her efforts do not exceed "the boundaries of acceptable conduct," a
union representative's seeking to honor an activity Qualirt Manufacturing
Company, 195 NLRB 197 (1972). See also General Motort Corporation,
Inland Division, 233 NLRB 47 (1977).
3 See Pittsburgh Press Company, 234 NLRB 408. 411-412 (1978).
4 Contrary to Member Penello, Moore's conduct did not constitute in-
subordination providing "ample justification" for her suspension Rather.
Moore's efforts on behalf of the employees-though persistent and ada-
mant-were not so injurious or disruptive as to be unprotected. Moore's
actions, at worst, were insufficiently serious to deprive an employee per-
forming his or her duties as a steward of the protection of the Act. See
Caterpillar Tractor Company, 242 NLRB 523 (1979).
s Backpay shall be computed in the manner set forth in F W. Wool-
worth Company. 90 NLRB 289 (1950), with interest as prescribed in Flor-
ida Steel Corporation, 231 NLRB 651 (1977). See, generally, lis Plumbing
d Heating Co.. 138 NLRB 716 (1962) In accordance with his dissent in
Olympic Medical Corporation, 250 NLRH No. 1 (1980). Member Jenkins
would award interest on the backpa) due based on the formula set forth
therein.
Inasmuch as the record refers to an unrelated grievance arbitration
proceeding involving Respondenl's alleged discharge of Moore prior to
the effective date of her suspension found unlassful herein. see shall defer
to the compliance stage of this proceeding resolution of an) potential
impact therefrom on the instant backpay order
AMENDED CONCI.USIONS OF LAW
Substitute the following for the Administrative
Law Judge's Conclusion of Law 2:
"2. By discriminatorily suspending Patricia L.
Moore by notice of July 21, 1978, for engaging in
protected union and concerted activity in the per-
formance of her duties as union steward, Respond-
ent has violated Section 8(a)(1) and (3) 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 Postal Service, Richmond, California,
its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discriminating against employees for engag-
ing in protected union and concerted activity while
performing the duties of union steward.
(b) In any other manner interfering with, re-
straining, or coercing employees in the exercise of
their Section 7 rights.
2. Take the following affirmative action designed
to effectuate the policies of the Act:
(a) Make whole Patricia L. Moore for any loss
of earnings occasioned by her disciplinary suspen-
sion issued on July 21, 1978, in the manner de-
scribed in this Decision.
(b) Expunge any record of the disciplinary sus-
pension of Patricia L. Moore issued on July 21,
1978.
(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 San Francisco, California, place of
business copies of the attached notice marked "Ap-
pendix." 6 Copies of said notice, on forms provided
by the Regional Director for Region 32, after
being duly signed by Respondent's authorized rep-
resentative, shall be posted by Respondent immedi-
ately upon receipt thereof, and be maintained by it
for 60 consecutive days thereafter, in conspicuous
places, including all places where notices to em-
ployees are customarily posted. Reasonable steps
shall be taken by Respondent to insure that said no-
tices are not altered, defaced, or covered by any
other material.
I In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted By
Order of the National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National L.abor Relations oard "
625
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(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.IO, dissenting:
Contrary to my colleagues, I would affirm the
Administrative Law Judge's finding that the sole
reason Respondent suspended employee Moore
was because of her insubordinate conduct directed
at Supervisor Ward.
Briefly, the record reveals that Supervisor Ward
discovered three employees away from their work
stations after the final production work sheets had
been collected but the shift had ended. Ward ex-
plained to them that work did not stop until 5:30
and warned them not to let it happen again. The
employees then informed Union Stewad Moore as
to what took place with Ward. Meanwhile, Ward
decided to explain to the employees the rules con-
cerning the work scheduled for the end of the day.
As he attempted to do so, Moore arrived on the
scene and interrupted Ward's presentation by tell-
ing the employees that they could quit work when
their production sheets had been turned in. The ar-
gument became more heated in the presence of 15
or 20 employees. Ward gave her several direct
orders to return to her work station but Moore
continued to argue and interfere with Ward's at-
tempt to instruct the employees as to the correct
work schedule. Because of this disruption, Ward
was forced to continue the discussion with the em-
ployees in a private office. Initially, Moore at-
tempted to join the discussion in the office and dis-
obeyed several direct orders by Ward to return to
her work area. Finally, Moore left and was subse-
quently suspended.
In my view, Respondent had ample justification
for suspending Moore for insubordination. Moore
successfully prevented Ward from discussing the
work schedule with the employees on the work
floor. In the presence of 15 to 20 employees,
Moore not only intirrupted the discussion but also
attempted to countermand Wards' express instruc-
tions to the employees concerning the correct
workd schedule and ignored several direct orders
to return to her work area. Such conduct under-
mined Wards' authority placing him in a position
where it appeared that he could not function as a
supervisor. Futhermore, under the collctive-bar-
gaining agreement, Moore had no right to leave
her work area to conduct union business without
first obtaining permission from her supervisor. The
record discloses that the practice has been for the
steward to contact the supervisor when reporting
to work in the morning and arrange a schedule for
conducting an investigation. Moore failed to follow
this procedure. Under these circumstances, I would
find that Respondent did not violate Section 8(a)(l)
of the Act by suspending Moore and would, there-
fore, dismiss the complaint in its entirety.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT suspend or otherwise disci-
pline, or take any other discriminatory action
against, employees because they engaged in
protected union and concerted activities while
performing the duties of a union steward.
WE WIL. NOT in any other manner interfere
with, restrain, or coerce employees in the exer-
cise of their rights to self-organization, to
form, join, or assist any labor organization, to
bargain collectively through representatives of
their own choosing, to engage in concerted ac-
tivities for the purposes of collective bargain-
ing or other mutual aid or protection, or to re-
frain from any and all such activities.
WE WILL reimburse Patricia L. Moore for
any loss of wages or other benefits occasioned
by her suspension issued on July 21, 1978, plus
interest.
WE WILL expunge from all records any and
all references to the suspension of Patricia L.
Moore issued on July 21, 1978.
UNITED STATES POSTAL SERVICE
DECISION
STATEMENT OF THE CASE
DAVID P. MCDONAI.D, Administrative Law Judge:
This matter was heard in Oakland, California, on May
24, 1979.1 The complaint, issued November 30, by the
Regional Director of the National Labor Relations
Board for Region 32, is based upon a charge filed Octo-
ber 19, by Patricia L. Moore, an individual. The com-
plaint alleges that the United States Postal Service,
herein called the Respondent, violated Section 8(a)(l)
and (3) of the National Labor Relations Act, herein
called the Act.
All parties were afforded full opportunity to partici-
pate, to introduce relevant evidence, to examine and
cross-examine witnesses, to argue orally and to file briefs.
Post-hearing briefs were filed on behalf of the General
Counsel and the Respondent.2 Upon the entire record,
i All dates herein refer to 1978, unless otherwise indicaled.
2 The General Counsel's unopposed motion to make certain correc-
tions in the Iranscripl is hereby granted
626
UNII't1) SI A S P()SIAI. SRVICT
and from my observation (of the witnesses and their tdc-
meanor, I make the following:
FINIDIN(;S O1 FACT
I. JIlRIS)I( I ION
The PIostal Reorganizalion Act. 3) LI.S.C. 1201-120'),
herein called I'RA. provides it/r ulua/ that the United
States Postal Service shall be subject to the provisions of
the National Labor Relations Act. to the extenlt not in-
consistent with provisions of tIhc I'RA.
11. 111 1 AIOR OR(iANIZA I ION IN\VOI .l)
The Respondent admits and I find that the Mail-
handlers Union. l.ocal 302, herein called the Union, is a
labor organization within the meaning of Section 2(5) of
the Act.
Ill. III A t i(iI) NI AIR I Alt()OR PRA('t 11( IS
A. Background
T'he unit of the Postal Service involved in this contro-
versy is the Respondent's San Francisco Bulk Mail
Center, herein called the MC, located in Richniond,
California. Otis Ward has been employed by the Postal
Service for 22 years and as a supervisor during the last
10 years. O()n July 17. he was in charge of Tour 2, ring I
and ring 2 of the nonmachinable outsiders, herein called
NMO.
The NMO section is divided into two work areas
called rings. The mailhandlers manually sort parcels,
which cannot be sorted by machine because they are
either too heavy, awkward, or fragile. The procedure
consists of mailhandlers sorting the parcels from a belt to
various roller table arms and then by zip code into con-
tainers that are transported to stallo.
Tour 2 begins at 9 a.m. and extends to 5:30 p.m. Be-
tween 5:15 p.m. and 5:25 p.m. the handlers are required
to clean up their work area in preparation for the next
tour.
At 5:25 p.m. the employees are allowed to leave the
work area and washup.
During the day the supervisor or his designee, hourly,
collects production sheets (count sheets) in the NMO
area. These sheets provide management with an accurate
assessment of the volume of mail which is placed on the
conveyor belts by the employees. The supervisor tallies
the information and post the results on a bulletin hoard.
The last production sheet pickup is normally between 5
and 5:15 p.m.
On July 17, Ward sent an employee to pick up the
sheets from the far end of the work area while he pro-
ceeded to ring 2. Upon arrival he observed only two or
three employees instead of eight. Bobby Welch, Edward
Carson, and Glen Goepfert were among the missing
men. In an effort to locate the missing employees he en-
tered the cafeteria where he found Hobby Welch. Welch
explained he thought he was through for the day since
the production slips had been picked up. Ward claims he
explained to him that work did not stop until 5:30 and
added, "Just consider this a discussion. You know that
this had been discussed. Don't let it happen again." lie
then observed l.dward Carson sitting at another table.
wh)o explained everyon had left so lie went to the cafe-
teria since lie had nothing else to do. In the adjoining
locker room. (ocpfert. who was playing dominos, did
not offer an explanation for his absence from the work
area. Ward spoke to both men separately and reiterated
the discussion he had with Welch. As he left the area he
jotled down the information concerning the discussions
in his notehook and proceeded to ring 1. lie testified that
it was his usual custom to jot down discussions in order
to verify the conversation. If he failed to note an inci-
dent there was always the possibility that an employee
would deny it in the future.
Neither Carson nor Goepfert testified at the hearing.
lowever, Welch testified and substantiated Ward's reci-
tation of the incident but provided a slightly different
version as to the surrounding facts and conversations.
Welch recalled that the three of them left the work area
because no one was there. They assumed everyone had
left because the count sheets had been picked up. Based
on this assumption they slowly left the area and walked
to the cafeteria, where he sat and smoked a cigarette.
()Otis appeared and stated to all of them, "Well, I'm going
to make this official, You are not on your job." As he
turned and walked out, the men glanced at each other
with a bewildered expression and then followed him out
the door. Together, Welch, Carson, and Goepfert pro-
ceeded to ring I where the timeclock is located and
where they saw Pat Moore, the Union's shop steward.:a
At that time Welch related the facts and asked her
why did he make such a statement when, "there wasn't
anybody else around the ring, what were we supposed to
do, sit there and work by ourselves." Moore responded.
"I will go talk to Otis about it, I will see what is the
problem." To which, Welch said, "Okay."
Moore's memory of Welch's comments were slightly
different. She asserts that Welch and Goepfert quoted
Ward as stating, "You are out of your work area, this is
an official discussion" and then they asked her it they
had a grievance. Moore told them that she thought they
might have a grievance, and if it were agreeable with
them she would make an appointment with Otis to hear
his version and then meet again through the official
grievance procedure. '4
The men then leaned on the railing of the break area
which is on the work floor, near the timeclock and tour
office. Ring number I is also located in the same area.
"Ahh ugh the record is oid as tI the exact location and the distance
bei.c ccle tIc imneclock, hbreak area. Tour office, and ring number 1. the
tcllmloin) r %'clch. Moore, and Ward would indicate hal the) are all
hiculed il he same general area unld only a horl dislance apart
Moore de'crited the grievance prxocedure as conising (if hree stcps
1. 'lhe hlop tew ard meeil with the grievant and inve'cigate the
prohlen A appilimenl is made with the upervil.r for meetillg
it dlcu's the probhlem l'he upervio r provides his anlver In wrllt-
till fior l
2. If tie upervis,or's awtr i unacccplahle the grievance Is ap-
pcaleit Io Rilchard I. Jacobs, the Rcspilldenl 'ci cmployer labhr rela-
liotns of[.cr Ior I thi Sait Francis.co Biulk Mail 'cinter ite Coldllducl a
h lrig illt pror i.des a wrillen decision
If Mr J.icohs dcision is uiacceplahle Ihic appeal is firwarded
usil Ill t i i1i11 io he tilladed on a Regionai l Ieec
627
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Otis picked up the production sheets from ring number 2
about 5:15. At this time he observed the men by the
break area and reflected upon Welch's assertion that he
felt his work was finished when the sheets were picked
up. Otis decided that he should explain to them the rules
and regulations concerning the work scheduled for the
end of each day. As he walked up to the group he said,
"You really believe that we quit work at ten minutes to
five?" As he began to explain he schedule, Miss Moore
appeared and he turned to her and stated, "This is not
union business. "5 She then began to tell the men they
could quit work anytime their production sheets had
been turned in. As the argument became more heated, a
crowd of 15 to 20 employees began to listen. All Parties
agree, Moore had not sought permission to leave her
work station as required by the agreement between the
Union and Respondent.6 Ward gave her several direct
orders to return to her work station, but she simply con-
tinued to argue and interfere with his attempts to instruct
the men as to the correct work schedule. Since he was
unable to confer with the men, he decided to use a pri-
vate office and therefore he turned to the men, saying,
"Will you three gentlemen come with me, please." 7 As
he entered the office he requested several supervisors to
leave and invited the men to enter.8 As Moore began to
enter, Otis asked, "Where are you going?" and she re-
sponded, "I'm going in there too." The argument intensi-
fied with both Otis and Moore raising their voices.
Again he gave her several direct orders to return to her
work area which she ignored and continued to argue.
After several direct orders she suddenly and abruptly
stopped and walked out. He then turned to the men and
said:
What I wanted to explain to you gentlemen outside
was that we don't stop working when the survisor
picks up the production sheet. We stop working at
5:15. We clean-up, push all the dollies, the floor
dollies to their proper stall, push hampers, SP&R's
or whatever, to their proper destination. This is all I
wanted to tell you out there. You guys can get up
and leave.
There was no evidence introduced which would indicate
that Welch, Carson, or Goepfert requested the presence
or assistance of a shop steward; nor was there any evi-
dence that Otis guestioned or disciplined them at this
meeting.
5 Ward admitted that whenever Moore approached him. he assumed
she was on union business since that was the only time she spoke to him.
s Article XVII, section 3. Rights of Stewards:
Section 3. Rights of Stewards. When it is necessary for, a steward to
leave his work area to investigate and adjust grievances or to investi-
gate a specific problem to determine whether to file a grievance. he
shall request permission from his immediate supervisor and such re-
quest shall not be unreasonably denied.
During his testimony, Welch claimed he feared a suspension would
occur at the second meeting. However. on cross-examination, the follow-
ing portion of his affidavit was read to him, "Otis told me and other em-
ployees to come with him to the Tour Office. I thought he was going to
give us a discussion, I guess, like he did." He responded to this affidavit
by answering, "1 did not know what he was going to do."
s Rick Peters, Bob Weiss, Don Blanchard, and Ralph Holmes were
among the supervisors who left the room at Ward's request.
Moore asserts that immediately after her conversation
with Welch, she approached Otis as he picked up the
count sheet from ring 1. As she spoke, they were walk-
ing toward the Tour office, where he would complete
his paperwork. She explained that the men had come to
her concerning the "discussion" and she wanted to know
what he thought was involved in the situation. Although
he told her he did not want her to advise people they
could quit when the count sheets were collected, she
denied she had ever given such advice. She simply
wanted the rules clarified since other supervisors had not
objected to the practice of quitting when the sheets were
collected. At this point, they were 10 to 15 feet from the
Tour Office, people were gathering for washup and the
men were in the break area near the Tour Office. Otis
called over to Glen and Bobby. Moore testified:
It looked like he wanted to discuss the problem
with them . . . and I felt that considering that it
looked like it was going to be based on the same
subject matter, that I should be present and at any
rate, he told me that he wanted me to leave, to
return to my work assignment. And, I said that I
had been requested to represent Bobby and Glen
and I intended to do so.
At the time, I think-I don't remember exactly all
the words spoken it got rather heated. Voice were
getting louder.
As Rick Peter, another supervisor for the Respondent,
walked out of the inner office, he saw Moore shouting to
the employees over Otis shoulder that they did not have
to talk to Otis and advising "I wouldn't talk to them if
there wasn't a shop steward." As the argument in-
creased, Otis gave her several direct orders to return to
her work station. Initially she responded by stating it
was washup time and therefore there was not any work
to perform. Then she repeated her statement that she
represented these people and should be present. Otis
again warned her that if she disobeyed his direct order
he would write her up. As the group moved into the
Tour office she observed several supervisors. Although
she experienced some doubt in her mind as to the nature
of the forthcoming meeting, she again refused to leave
when ordered to do so by Otis. She was not certain if
the men were about to be disciplined and summarized
her position at the hearing by testifying:
I can't say that I thought that it was going to be
further disciplinary action, or what. I was con-
cerned that Otis would not intimidate these people
as far as their filing a grievance about a discussion
that had already occurred, and I really was unclear
as to what further actions would be taken against
them. It was a concern of mine, but not in terms of
determining whether I should be there or not. It
was the intimidation factor that I was worried
about.
Finally, upon hearing another direct order, she advised
Bobby and Glen not go into the inner office but leave
with her. They entered and she left the Tour office.
628
UNITED STATES POSTAL SERVICE
When Bobby and Glen came out of the office they ex-
plained to Moore that they had not been disciplined but
simply received instructions as to the proper quitting
time. Moore testified that Welch had told her the discus-
sion in the cafeteria would be dropped. However, Welch
did not mention the dismissal of the discussion in his tes-
timony. In fact, he said he was so angry he was not
"paying attention." Moore then inquired as to whether
Otis had made any reference to her receiving a writeup
for disobeying a direct order. Welch explained that noth-
ing was mentioned concerning her insubordination. As
they left the building she told them, "Well, I would like
support in case it did, since they were there and saw ev-
erything that happened."
After the men left the office, Otis filled in a blank
letter form indicating he had a discussion with them.9
The form was then typed for his signature. Since he was
off work the following 2 days, he did not sign the letters
until July 20. Immediately, upon his arrival at home, he
reduced the event of the day to writing. When he re-
turned to work on July 20, he conferred with his super-
intendent, Al Bowen. Moore's personnel record indicated
she had a prior incident of insubordination with another
supervisor. His written report was submitted to Bowen
with a recommendation to suspend Moore for 7 days (5
actual work days), due to her insubordination. Otis ex-
plained that as a result of her direct challenge to his au-
thority in the presence of 15 to 20 employees he looked
ridiculous, was prevented from exercising his duties as a
supervisor, and in effect was run from the work floor by
her interference. The recomendation was approved and a
letter of suspension was issued on July 21.
Analysis
In N.L.R.B. v. Weingarten, 404 U.S. 251 (1975), the
United States Supreme Court held that an employer vio-
lated section 8(a)(1) of the Act by denying an employee's
request that a union representative be present at an inves-
tigatory interview which the employees reasonably be-
lieved might result in disciplinary action. The Board con-
cluded that the Supreme Court's decision in Weingarten
applied to any interview, whether labeled investigatory
or disciplinary, so long as the employee reasonably be-
lieves the interview may result in disciplinary action,
Certified Grocers of California, Ltd., 227 NLRB 1211
(1977), enforcement denied 587 F.2d 449 (9th Cir. 1978).
Subseguently, the Board has overruled, in part, its Certi-
fied Grocers decision in Baton Rouge Water Works Com-
pany, 246 NLRB No. 161 (1979). Thus, the Board now
holds that:
[U]nder the Supreme Court's decision in Weingar-
ten, an employee has no Section 7 right to the pres-
ence of his union representative at a meeting with
his employer held solely for the purpose of inform-
Each letter swas dated July 17. 1978, and indicated that the ubject
was DISCUSSION the follosing letter as identical except fr the in-
sertion of the name of the mailhandler and his social security number
On July 17, 1978 . I discussed the follos ing infraction
with ---- ss# --- : Employee uas taking an unau-
thorized break in the Cafeteria at 4:50() p m
ing the employee of, and acting upon, a previously
made disciplinary decision.
In the present case the supervisor held three separate
meetings with the men. The first encounter occurred in
the area of the cafeteria and locker room. At that time,
Otis questioned the men as to why they were not work-
ing and informed them: "Just consider this a discussion.
You know that this had been discussed. Don't let it
happen again." None of the men requested the assistance
of a union representative during this first meeting. There-
fore, regardless of how this initial meeting is classified,
the protections afforded by Weingarten simply do not
arise since union assistance was not sought.
During the subsequent two meetings both outside and
in the Tour Office, Otis never questioned the men. In
vain, he attempted to instruct the men as to the proper
work schedule. When it became impossible for him to
speak due to Moore's shouting and general interference,
he had no other choice but to move the meeting into a
private office. Finally, with the door closed and without
further interference he was able to review the schedule
in a few minutes. Other than Otis, Welch was the only
witness who attended the third meeting and who also
testified. Although he readily admits he was not atten-
tive, he did recall receiving instructions as to his work
schedule. There was no evidence adduced which would
allow one to find that the supervisor questioned or disci-
plined these men at either the second or the third meet-
ing. He simply instructed and that does not fall within
the purview of Weingarten. The Board has indicated that
it will not apply the rule requiring representation at in-
terviews "to run-of-the-mill shop-floor conversations,"
as, for example, the giving of instructions or training or
needed corrections of work techniques, N'L.R.B. v.
Weingarten, supra; Quality Manufacturing Company, 195
NLRB 197, 199 (1972); AAA Equipment Service Company,
238 NLRB 390 (1978). Therefore, the three occasions
when Otis spoke to the men did not evolve into a situa-
tion which evoked the protection of Weingarten on their
behalf. On the first occasion, they simply had not re-
quested the assistance of a union representative. On the
second and third occassions they were neither questioned
nor disciplined but simply instructed as to the proper
work schedule. Certainly, a work schedule under these
circumstances is a "run-of-the-mill shop-floor conversa-
tion."
The General Counsel has urged that Ward's testimony
is not creditable. I disagree. Whenever there are facts in
conflict between Ward, Moore, and Welch, I credit
Ward. He testified in a clear, concise, and convincing
manner. Although cross-examined vigorously, his testi-
mony remained largely consistent, with the only signifi-
cant discrepancies being the type explainable by the
effect of passage of time and the frailties of memory. See
Bruce Duncan Company v. .,L.R.B., 590 F.2d 1304, 1309
(4th Cir. 1979). In contrast, Welch seemed less respon-
sive to the questions and he admitted he was so angry
with Otis that he did not listen to everything and was
only able to recall a few words. It should also be noted
that he testified that he feared possible discipline when
he was told to enter the Tour Office. However, when he
629
DECISIONS OF NATIONAL l.ABOR RELATIONS BOARD
was confronted with a prior inconsistent statement from
his affidavit, he changed his testimony and simply said he
did not know what was going to happen. Although I
find that much of Moore's recitation of the events is
credible, her account of some disputed facts appear to
have been designed to strengthen her own position by
embellishing events favorable to her and by attempting
to minimize those which were adverse to her. Conse-
quently, I credit Ward in regard to the events of the day
and in particular the question of insubordination.
A close review of the events reveal that many of the
surrounding facts are not in conflict. It must be kept in
mind that the initial conversation between Otis and
Moore rapidly escalated into a heated confrontation.
They both readily admit that they do not recall all of the
statements which were made by the various parties. Ap-
parently only 10 or 15 minutes expired from the time
they walked toward the men until she finally left the
Tour Office. Ring 1, the timeclock, rest area, and Tour
Office are in the same general area and relatively close.
Moore admits that Otis repeatedly ordered her back to
her duty station. She not only ignored his orders, but
challenged his authority as a supervisor. Although he
told her his talk dealt with nonunion business, she contin-
ued to raise her voice to such a degree that he could not
converse with the men. Her persistent harassment forced
him off the floor and into the Tour office.
The General Counsel argues that Moore was engaged
in protected activity on behalf of the men for which she
may not be disciplined and that her ultimate suspension
was unlawful since it was based on her status and past
activities as a union shop steward. The Respondent
argues the suspension was based solely on her insubordi-
nation.
It is true that the Board has long held that the suspen-
sion of a union steward is unlawful under the Act when
such suspension is based on his efforts to represent em-
ployees in furtherance of their protected concerted activ-
ities. Melones contractors, a Joint Venture, 241 NLRB 14
(1979). It is equally unlawful to suspend an individual
based on her status and past activities as a union official.
The May Department Stores Company, d/b/a The May
Company, 220 NLRB 1096 (1975). However, in the pres-
ent case the credible evidence indicated that the sole
reason for her suspension was her gross insubordination.
The circumstances surrounding Otis' instructions to the
men did not involve their protected rights. Therefore,
her actions on their behalf can not he classified as engag-
ing in protected activity. In several recent cases the
Board has reaffirmed its rule that a union steward is not
immune from discipline when it is based on insubordinate
conduct."' In Armour-Dial, Inc., 245 NLRB No. 123
(1979), the suspension of the union president for 90 days
did not violate the Act since it was based on his inducing
workers to engage in an unlawful work stoppage.
The credible evidence substantiates the Respondent's
argument that Moore's suspension was based solely on
her insubordination and not in violation of Section
8(a)(l) and (3) of the Act. Accordingly, I shall recom-
mend that the complaint be dismissed in its entirety.
CONCI.USIONS Ot LAW
1. The Board has jurisdiction over the case by virture
of Section 1209 of the PRA.
2. The General Counsel has failed to establish by a
preponderance of the evidence that Respondent violated
Section 8(a)(1) and (3) of the Act.
[Recommended Order for dismissal omitted from pub-
lication.]
I Sank Consrruclion (Comrpany. 239 NLRI3 844 (1978) Jw,. Schlitz
Brewing Compansv. 240 NI.RIt 710 1979) LUniworld Geinral, Inc.. d/bh/a
C(irc/l Imporl Elxpor (otrnpaonr I Kchiin llerattrionalc. 244 NLRB 255
(1974)
630