Valley Material Co.

National Labor Relations Board - Board Decisions

Mar 10, 1995

316 N.L.R.B. 704 (N.L.R.B. 1995)

704
316 NLRB No. 115
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 We have modified the judge’s recommended Order and notice to
include a narrow injunctive provision, the standard expunction provi-
sion, and the standard provision requiring the Respondent to notify
the Regional Director of its compliance with the Board’s Order.
2 If 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 Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
Valley Material Company and Larry Sweet. Case
14–CA–23118
March 10, 1995
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS BROWNING
AND COHEN
On December 14, 1994, Administrative Law Judge
Robert C. Batson issued the attached decision. The Re-
spondent filed exceptions and a supporting brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and brief and has de-
cided to affirm the judge’s rulings, findings, and con-
clusions and to adopt the recommended Order as modi-
fied and set forth in full below.1
ORDER
The National Labor Relations Board orders that the
Respondent, Valley Material Company, Valley Park,
Missouri, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Telling its employees not to engage in union ac-
tivities.
(b) Telling an employee he is being discharged for
engaging in union activities.
(c) Telling an employee he is being suspended for
engaging in union activities.
(d) Giving an employee a final warning for engaging
in union activities.
(e) Discharging and subsequently suspending its em-
ployee for engaging in union activities.
(f) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Make its employee, Larry Sweet, whole for any
loss of earnings, seniority, and all other benefits sus-
tained by reason of his unlawful discharge and suspen-
sion, he having been reinstated, with interest thereon
and in the manner set forth in the remedy section of
this decision.
(b) Remove from its files any reference to the un-
lawful discharge, suspension, and final warning of
Larry Sweet, and notify the employee in writing that
this has been done and that the Respondent will not
use the discharge, suspension, or final warning against
him in any way.
(c) Preserve and, on request, make available to the
Board or its agents for examination and copying, all
payroll records, social security payment records, time-
cards, 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 place of business in Valley Park, Mis-
souri, copies of the attached notice marked ‘‘Appen-
dix.’’2 Copies of the notice, on forms provided by the
Regional Director for Region 14, after being signed by
the Respondent’s authorized representative, shall be
posted by the Respondent immediately upon receipt
and maintained for 60 consecutive days in conspicuous
places including all places where notices to employees
are customarily posted. Reasonable steps shall be taken
by the Respondent to ensure that the notices are not
altered, defaced, or covered by any other material.
(e) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT tell our employees not to engage in
union activities.
WE WILL NOT tell our employees they are being dis-
charged because they engaged in union activities.
WE WILL NOT tell our employees they are being sus-
pended and given a final warning because they en-
gaged in union activities.
WE WILL NOT discharge or suspend our employees
because they engage in union activities.
705VALLEY MATERIAL CO.
1 Herein called the General Counsel or the Government.
2 All dates herein are 1994 unless otherwise indicated.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
WE WILL make our employee, Larry Sweet, whole
for any loss of earnings or other benefits he may have
sustained by reason of our action against him, he hav-
ing been reinstated to his former position, and WE
WILL notify him that we have removed from our files
any reference to his discharge, suspension, and final
warning and that we will not use the discharge, sus-
pension, and final warning against him in any way.
VALLEY MATERIAL COMPANY
Lucinda Flynn, Esq.,1 for the General Counsel.
Robert Vinning Jr., Esq., of Clayton, Missouri, for the Re-
spondent.
DECISION
STATEMENT OF THE CASE
ROBERT C. BATSON, Administrative Law Judge. This case
was tried before me at St. Louis, Missouri, on September 14,
1994,2 upon a complaint and notice of hearing issued by the
Regional Director for Region 14 (St. Louis, Missouri) pursu-
ant to the National Labor Relations Act (the Act) alleging
that Valley Material Company (the Respondent or Employer)
had engaged in conduct in violation of Section 8(a)(1) and
(3) of the Act. The conduct the Respondent is alleged to
have engaged in is to wit: Respondent’s president, Robert
Halamicek, on or about May 17, told an employee not to en-
gage in union activities and on the same date told an em-
ployee he was being discharged for engaging in union activi-
ties, and by letter dated June 13, told an employee he had
been suspended and was being given a final warning for en-
gaging in union activities, all in violation of Section 8(a)(1)
of the Act. The complaint further alleges that Respondent
violated Section 8(a)(1) and (3) of the Act by discharging its
employee Larry Sweet about May 17 and suspending the
same employee about June 13.
This complaint arises out of a charge filed July 13 by
Larry Sweet, an individual, and amended on August 8.
The Respondent’s duly filed answer to the complaint ad-
mits all procedural allegations of the complaint, including the
Board’s jurisdiction, but denies that it has violated the Act
as alleged.
In its answer to the complaint, the Respondent did not
raise as an affirmative defense its contention that the Board
should exercise its discretion and defer to a settlement agree-
ment reached by the Union and the Respondent pursuant to
the grievance procedure in the collective-bargaining agree-
ment in effect between the parties under the deferral prin-
ciples of Spielberg Mfg. Co., 112 NLRB 1080 (1955), as fur-
ther expounded in Alpha Beta Co., 273 NLRB 1546 (1985).
Neither was this contention directly raised or litigated at trial.
Respondent argues it for the first time in posttrial brief.
A grievance was filed by the Charging Party concerning
his discharge. At some point after the first step meeting, the
Union and the Employer reached an agreement which re-
sulted in the grievant being reinstated to his position. How-
ever, as more fully set forth below, the settlement did not
remedy the unfair labor practices and was repugnant to the
Act. Accordingly, this case is not one proper for the Board
to exercise its discretion to defer to the settlement agreement.
The Union refused the grievant’s request to take the issue to
arbitration. I find that the Government has proven each and
every allegation of the complaint and the Respondent shall
be ordered to remedy these violations.
All parties were represented and were afforded full oppor-
tunity to be heard, to examine and cross-examine witnesses,
and to introduce evidence. Respondent and General Counsel
filed briefs. Upon consideration of the entire record and the
briefs, I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent Valley Material Company is a Missouri cor-
poration with an office and place of business at Valley Park,
Missouri (Respondent’s facility or plant), and is engaged in
the nonretail sale of ready-mix concrete. During the 12-
month period ending June 30, 1994, Respondent, in conduct-
ing its business operations described above, purchased and
received at its Valley Park, Missouri facility goods valued in
excess of $50,000 directly from other enterprises located
within the State of Missouri, each of which other enterprises
had received these goods directly from points outside the
State of Missouri. The complaint alleges, the Respondent ad-
mits, the evidence establishes, and I find that the Respondent
is an employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
The complaint alleges, the Respondent admits, the evi-
dence establishes, and I find that at all material times Con-
struction, Building Material, Ice and Coal, Laundry and Dry
Cleaning, Meat and Food Products Drivers, Helpers, Ware-
housemen, Yardmen, Salesmen and Allied Workers, Local
Union No. 682, affiliated with the International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and Helpers of
America, AFL–CIO (the Union), is a labor organization
within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Facts as Found
The relevant facts here are not in dispute. The Respondent
is a member of the St. Louis Material Dealers Association,
a multiemployer group that has a collective-bargaining agree-
ment with the Union. The most recent agreement, to which
Respondent is a signatory, was executed in March.
According to the testimony of William Ferris, business
representative for the Union, which is not disputed, it is cus-
tomary for each company whose employees are represented
by the Union, to elect stewards immediately upon completion
of negotiations for a new contract. The steward’s ballots are
made available at the time the contract is ratified and is only
given to the employees in a unit which requests that a new
steward’s election be conducted. At the meeting held for the
drivers employed by the Association to ratify the agreement
in March, Tom Stengel, Respondent’s steward at the time,
requested a steward’s ballot sheet. Ferris provided Stengel
706 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
with the sheet, which he received back in the mail a couple
of weeks later resulting in Stengel’s reelection.
Larry Sweet (the Charging Party) has been employed by
Respondent for approximately 8-1/2 years. He testified that
Stengel approached him about April 28, at which time
Stengel asked him if he wanted to run for the steward’s posi-
tion. Sweet answered in the affirmative and signed the sheet
in the appropriate place, indicating that he was a candidate.
Sweet testified that he called Ferris about May 5, expressing
his reservations about the conduct of the election. During
that conversation Ferris informed him that the election was
completed and Stengel had been reelected.
At the time Stengel asked Sweet if he wanted to be a can-
didate for steward and Sweet placed his name on the ballot
sheet as a candidate (R. Exh. 2), Sweet asked Stengel if he,
Sweet, could carry the ballot sheet to the drivers so they
could vote. Stengel refused, saying that he would take it to
the drivers. Sweet objected to no avail.
When advised by Business Representative Ferris that
Stengel had been reelected, Sweet expressed concern about
the procedure that was used to select a steward, but Ferris
stated that it was over and Stengel was steward. From the
ensuing events, particularly Sweet’s actions on May 17, it is
clear Sweet was not satisfied that the election of the steward
was at arms’ length and fair.
On May 17, Sweet prepared a single sheet of paper la-
beled ‘‘Election of Steward at Valley Material Company.’’
Written in pen before that heading was ‘‘Survey of.’’ Below
this heading was typed ‘‘Listed below are the steward nomi-
nees. Indicate your vote by signing your name below the
nominee of your choice. Your vote counts.’’ (G.C. Exh. 2.)
There were spaces for the names of three nominees, how-
ever, Larry Sweet was the only nominee listed. There were
also 17 spaces for members to vote for each nominee. There
were no signatures in these spaces. At the bottom of the sin-
gle sheet of paper was handwritten ‘‘These persons do not
choose to participate.’’ There were six names written under
this heading.
Sweet’s conduct and actions with this ‘‘survey’’ he had
prepared is the conduct out of which these unfair labor prac-
tices arose. On May 17, Sweet, whose shift began at 7:15
a.m., arrived at the facility about 6 a.m. for the purpose of
getting drivers arriving for work to sign the survey in the
parking lot. The first person Sweet approached was steward
Stengel, about 6 a.m. Sweet asked him if he wanted to par-
ticipate in the survey about the election process. Stengel
asked ‘‘Who in the Union authorized it’’ and Sweet replied
that ‘‘Nobody authorized it. I don’t represent the Union.’’
Stengel then asked if he had received permission from com-
pany owner Bob Halamicek to do the survey, to which Sweet
replied that he had not. Stengel then told Sweet the election
was over ‘‘and that he was going to get me.’’ (Tr. 16–18.)
Stengel then walked toward Halamicek’s office. Stengel did
not testify.
Sweet testified that he had the ‘‘survey’’ in an envelope
and talked to several drivers in the parking lot, none of
whom wished to participate. These drivers are apparently the
six names on the survey from that indicates they did not
wish to participate.
Before Sweet’s ‘‘clock in’’ time, he asked owner Bob
Halamicek if he could clock in at 9 o’clock that morning,
stating that he had some business to take care of. Halamicek
told him they were busy and to start at his regular time and
added that ‘‘he didn’t want any illegal union activities going
on.’’ (Tr. 19.) Sweet proceeded to the drivers’ room and
prior to clocking in talked to a couple of other drivers about
the ‘‘survey’’ before they clocked in.
The drivers’ room was described as the place drivers
clocked in and ate lunch. The room has a table or counter,
bulletin boards, and ‘‘anything from magazines to insurance
information. ‘I have seen ballots there, I mean campaign lit-
erature from previous BLE elections!’’’ Sweet testified that
before he clocked in he left the survey on the counter so that
drivers could look at it and decide if they wanted to sign.
He then reported to work and made his first delivery.
Upon returning to the plant, shortly before 9 a.m., he was
summoned on his radio by dispatcher Herb Holloway to re-
port to the office. When he arrived at the office he found
present there, President and owner Bob Halamicek, dis-
patcher Holloway, steward Stengel, and Jimmy Halamicek,
son of Bob, who was also a supervisor. Sweet asked ‘‘what
was up?’’ Bob Halamicek handed him a piece of paper and
asked what it was. The sheet of paper was the ‘‘Survey’’ left
on the counter in the drivers’ room earlier by Sweet. (G.C.
Exh. 2.) Sweet identified it as such and Halamicek told him
he was ‘‘discharged for illegal union activity.’’ Sweet told
them he did not believe his activity was illegal, but
Halamicek reiterated that he was discharged for that reason.
Before leaving the plant, Sweet requested and received
from steward Stengel a grievance form. He completed it stat-
ing in relevant part ‘‘fired for illegal union activity. I request
reinstatement.’’ (G.C. Exh. 3.) He returned it to steward
Stengel and left the premises. There was a grievance meeting
on May 23, 6 days later, at which there was no resolution
of the grievance. It appears that present for that meeting in
addition to Sweet, was Bob Halamicek, Union Business Rep-
resentative William Ferris, and steward Stengel. Lois
Halamicek, wife of Bob and office manager, may have also
been present.
There was no resolution of the grievance. There was also
little testimony concerning what was said by whom, to
whom, with respect to the party’s respective positions on the
grievance. It appears that the Union merely argued that
Sweet’s conduct here should not be a dischargeable offense.
Halamicek remained adamant and Sweet remained dis-
charged.
Under the effective collective-bargaining agreement (R.
Exh. 1) after this step there is no second step provision.
However, the Union and the Company may continue to in-
formally negotiate concerning the next formalized step in ar-
bitration. Under article VII, section 3, either the Union or the
Company may demand arbitration. Arbitrations are selected
under provisions there spelled out.
Sweet requested the union officials to take his grievance
to arbitration pursuant to article VIII ‘‘Grievance procedure’’
and article IX ‘‘Discharge cases,’’ of the collective-bargain-
ing agreement. The Union declined. Sweet apparently contin-
ued to pursue his grievance through Business Agent Ferris
and Local Secretary/Treasurer Dave Gallagher. About June
17, Sweet received a registered letter dated June 13, from
Bob Halamicek, which in effect reduced the discharge to a
suspension, and advised Sweet to report to work at 9 a.m.
June 20, unless notified otherwise. (G.C. Exh. 4.) The letter
reads:
707VALLEY MATERIAL CO.
3 A timecard of Sweet attached to this letter has no relevance to
this case.
4 This article reads:
ARTICLE XVII—UNAUTHORIZED ACTIVITY
It is understood and agreed that the Union shall have no finan-
cial liability for acts of its members or agents which are unau-
thorized and which the Union cannot control. It is agreed, how-
ever, that in the event of any such unauthorized action, the
Union shall, upon receiving notice thereof, urge its members to
return to work, if there should be a work stoppage, and just as
soon as practical address a letter to the company notifying the
company that the action of the union members or agents is un-
authorized.
The Company shall retain the right to discipline employees re-
sponsible for such unauthorized activities without violation of
the terms of this agreement.
In order that the Company may be apprised of the officer of
the Union empowered to authorized strikes, work stoppages, or
actions which will interfere with activities required of employees
under this agreement, it is understood and agreed that only the
top administrative officers of the local union has the power or
authority to authorize any such actions or give the orders or di-
rections necessary to carry out any such notice. The Union shall
notify the Employer in writing as to the name of its top adminis-
trative officer.
June 13, 1994
Mr. Sweet,
Your suspension from work, for unauthorized union
activities, will end June 19, 1994. You are to report to
work at 9:00 a.m., June 20, 1994, unless notified other-
wise.
Your reinstatement will be upon the following condi-
tions of no back pay, no benefits to Local 682 Health
& Welfare, no contributions to Central States Pension
Fund and no other type of reimbursement during your
suspension.
No checks that you have received will be reissued
under any circumstance. I am enclosing your time card
for the check you think is wrong. I see no discrep-
ancies, you checked in and you checked out on the
days worked.3
Mr. Sweet this is your final warning. Should you do
anything while employed by Valley Material Company
that management deems inappropriate, you will be ter-
minated.
/s/Robert E. Halamicek
Robert E. Halamicek,
President
cc: Mr. Tom Stengel—Steward
Mr. Bill Ferris—Local 682
After receipt of this letter, Sweet continued to protest to
Ferris, Gallagher, and Local President Paul Renaud and re-
quest that they take the grievance to arbitration to recover the
loss of wages and other benefits during the time of his sus-
pension. They continued to refuse to arbitrate.
Unless otherwise indicated the foregoing review of the
facts is based on the credited and uncontradicted testimony
of Larry Sweet. Teamsters Local 682 Business Agent and
Recording Secretary William Ferris was called by, and testi-
fied on behalf of the Respondent. The steward’s election
sheet (R. Exh. 2) was received by Ferris, probably from
Stengel, sometime prior to May 17. It showed 11 votes for
Stengel and none for Sweet. Prior to May 17, Sweet went
to Ferris’ office and orally protested the election. Ferris told
Sweet all the ‘‘guys’’ had signed under Stengel’s name and
he saw no reason to hold another election.
Ferris testified that he made arrangements for what is
called a ‘‘local’’ meeting, first step meeting, on May 23.
Present were Ferris, Halamicek, Stengel, and Sweet. Each
side pled their case and Halamicek said ‘‘no way he was tak-
ing Larry back.’’ Ferris stated that thereafter he had several
conversations with the ‘‘company’’ including one with Re-
spondent’s attorney, Vinning. Afterwards he talked with Lois
Halamicek, wife of Bob, and told her he understood she was
unhappy about what was going on, and that he, Ferris, did
not feel like it was a dischargable offense. He testified that
shortly thereafter L. Halamicek talked with Local 682 Presi-
dent Paul Renaud at which time it was agreed to put Sweet
back to work with no backpay or benefits for the time off.
The Union acquiesced in this action and refused Sweet’s fur-
ther requests to arbitrate.
Robert Halamicek testified that it was brought to his atten-
tion on the morning of May 17, that General Counsel’s Ex-
hibit 2 was posted on the wall of the drivers’ room beside
the timeclock, with either a thumbtack or tape, but admits he
doesn’t know how it got there. Halamicek testified that Gen-
eral Counsel’s Exhibit 2 was brought to him by the steward.
He testified that some of the employees who declined to par-
ticipate in Sweet’s survey must have been working when
Sweet solicited them. There is no evidence that Respondent
maintained any rule with respect to solicitation and distribu-
tion. Halamicek testified that he viewed Sweet’s conduct as
unauthorized union activity under article XVII of the collec-
tive-bargaining agreement. The application of article XVII to
Sweet’s conduct here will be considered infra. Halamicek ad-
mitted that at the time he discharged Sweet for ‘‘unauthor-
ized’’ union activity that he did not know whether the Union
had authorized Sweet’s actions. Halamicek never told Sweet
verbally or in writing that his disruption of the drivers’ work
was a factor in Respondent’s decision to discharge him. In
fact there is not a scintilla of evidence that Sweet’s activities
did disrupt or in any way interfere with the drivers’ work.
B. Analysis
The Respondent contends that Sweet’s discharge, subse-
quently reduced to an approximate 30-day suspension with-
out pay and benefits, is not a violation of the Act because
the conduct engaged in by Sweet was in violation of article
XVII of the collective-bargaining agreement entitled unau-
thorized activity.4 The Union, Local 682, evidently agreed,
or at least acquiesced, in Respondent’s interpretation of arti-
cle XVII. It is evident it refers to unauthorized work stop-
pages and strikes and spills out how the Union can avoid fi-
nancial responsibility for such activity. These provisions are
common in collective-bargaining agreements.
The only testimony in this record is that of Sweet who tes-
tified without contradiction by any one that the only drivers
he talked with, including steward Stengel, who threatened to
‘‘get him,’’ and did, for that activity, was in the parking lot
prior to either he or the other drivers clocking in. He also
708 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
testified that he talked with two other drivers in the drivers’
room prior to either clocking in for work. No witnesses were
called to refute this. Halamicek’s conjecture that since some
of the drivers Sweet talked with were scheduled to start work
before Sweet’s starting time, is just that, pure conjecture and
does not constitute a basis for finding that Sweet interfered
with, or interrupted the drivers’ work. The General Counsel
correctly argues that Halamicek’s telling Sweet that ‘‘he
didn’t want any illegal union activities going on,’’ on May
17, when he denied Sweet’s request to clock in at 9 a.m.,
violates Section 8(a)(1) of the Act. See Kroger Co., 311
NLRB 1187, 1183 (1993), where the Board held the state-
ment to employees that they should break up an ‘‘unauthor-
ized’’ union meeting to be unlawful in as much as it discour-
ages union activities.
With respect to Sweet’s discharge, which occurred about
2 hours later, the testimony is not in dispute that he was told
that he was discharged for engaging in ‘‘illegal union activi-
ties.’’ Halamicek stated that he thought, he could discharge
Sweet for this activity under article XVII of the collective-
bargaining agreement. However, he did not tell Sweet that he
was being discharged pursuant to article XVII or any other
contract provision. Nor does any reference to this contract
provision appear in the grievance settlement letter which
states only that Sweet had been suspended for engaging in
‘‘unauthorized union activities,’’ Halamicek states that at the
time he discharged Sweet he did not know whether or not
the Union had authorized this survey. I do not credit
Halamicek here. The inference is almost inescapable that
steward Stengel advised Halamicek that the Union had not
authorized the ‘‘survey’’ at the time he told Halamicek of it
and showed him the paper. (G.C. Exh. 2.)
Sweet was clearly engaging in union activities protected
by Section 7 of the Act in attempting to change steward elec-
tions, regardless of whether the Union authorized such activi-
ties. In Pacific Intermountain Express, 215 NLRB 588
(1974), the Board found an 8(a)(3) and (1) violation where
the Respondent had discharged an employee because of his
opposition to the local business agent and his complaint to
the International union about the lack of representation from
the local business agent. The Board found that the employee
was engaging protected union activity, even though the activ-
ity clearly was dissident in nature and had not been author-
ized by the Union. The Board has long held that it is a viola-
tion of Section 8(a)(1) of the Act to tell an employee that
his union activities are the reason for his discipline. Black
Magic Resources, 312 NLRB 667 (1993); Kroger Co., supra;
Aero Metal Forms, 310 NLRB 397, 400 (1993); and Califor-
nia Cooperative Creamery, 290 NLRB 355, 359 (1988).
Accordingly, here Respondent violated Section 8(a)(3) and
(1) of the Act by discharging Sweet on May 17, and it again
violated Section 8(a)(1) by telling Sweet that his union ac-
tivities were the reason for his discharge.
The General Counsel contends Respondent’s June 13 letter
to Sweet received by him about June 17, constitutes an addi-
tional 8(a)(1) violation. (G.C. Exh. 4.) As discussed more
fully above, the letter, while converting the discharge to a
suspension, reiterates that the discipline was for engaging in
‘‘unauthorized’’ union activities. The letter further states that
it constitutes a final warning and should Sweet do anything
that ‘‘management deems inappropriate’’ Sweet will be ter-
minated. For the reasons stated above, I find the Respondent
again violated Section 8(a)(1) and in as much as the issue
was fully litigated, I find the issuance of a ‘‘final warning’’
for engaging in protected union activities violates Section
8(a)(3) and (1) of the Act.
I find that Respondent discharged and although subse-
quently converting the discharge to a suspension, violated
Section 8(a)(1) and (3) of the Act. As noted above, there is
not a scintilla of evidence, indeed not even a suggestion, that
Sweet’s activities on May 17, was disruptive of other em-
ployees’ work. In fact the testimony is undisputed that all his
activities at issue here occurred prior to any of the drivers’
clocking in for work. The evidence is also abundant that the
Employer had no rule, valid or otherwise, prohibiting em-
ployees discussing union matters during working time.
Respondent’s Request for Deferral
The Respondent cites the Board’s decision in Alpha Beta
Co., supra, where the Board announced its intention to apply
the principles set forth in Spielberg Mfg. Co., 112 NLRB
1080 (1955), to settlement agreements arising out of the col-
lective-bargaining agreements. Assuming that in some cases
the Board would defer to a settlement agreement reached by
the Union and the Employer over the objection of the griev-
ant, this is not a case appropriate for such deferral. The set-
tlement agreement in no way addresses or remedies the un-
fair labor practices committed here. I agree with the General
Counsel that the settlement itself may be violative of the Act
inasmuch as it simply reduces the form of discipline from
discharge to a 1-month suspension, with loss of all wages
and benefits for that month, and a final warning. The settle-
ment states the reason for the discipline was the employees’
union activities.
In a case more recent than Alpha Beta, supra, Cone Mills
Corp., 298 NLRB 661 (1990), the Board addressed the issue
of whether it should defer to an arbitrator’s award. The arbi-
trator concluded that the grievant was suspended and later
discharged for insubordination, and thus for just cause. Id. at
666. The Board found, however, that there was no expla-
nation for the discharge other the grievant’s union activities,
and the arbitrator’s failure to order reinstatement with back-
pay was repugnant to the Act. Because it found the award
to be repugnant and not susceptible to any interpretation con-
sistent with the Act, the Board refused to defer to the arbitra-
tor’s award. Here, the grievance settlement of suspending and
issuing a final warning to Sweet for his union activities is
not consistent with the Act, and thus does not warrant defer-
ral.
A further reason for not deferring to the grievance resolu-
tion, in addition to the fact that it is repugnant to the Act,
is the hostility shown by the Union to the Charging Party.
In Kansas Meat Packers, 198 NLRB 543 (1972), the Board
refused to defer to the parties’ grievance and arbitration pro-
cedure because of the hostility shown by the union to the
charging party. There, the charging party, a steward, com-
plained to the employer and to the business agent about safe-
ty hazards at the workplace, which resulted in friction be-
tween the union and the charging party. The charging party
was thereafter discharged because of arguments between the
charging party and the business agent. The union did nothing
to investigate the circumstances of the discharge or file a
grievance, and did not file unfair labor practice charges on
behalf of the grievant. The Board concluded that under the
709VALLEY MATERIAL CO.
5 Under New Horizons, interest is computed at the ‘‘short term
Federal rate’’ for the underpayment of taxes as set out in the 1986
amendment to 26 U.S.C. § 6621. Interest accrued before January 1,
1987 (the effective date of the amendment) shall be computed as in
Florida Steel Corp., 231 NLRB 651 (1977).
circumstances, particularly the apparent antagonism between
the interests of the discriminatee, on the one hand, and both
parties to the collective-bargaining contract therein, on the
other, deferral to arbitration would be inappropriate where it
would ‘‘relegate the Charging Parties to an arbitrate process
authored, administered, and invoked entirely by parties hos-
tile to their interests.’’ Id. at 544.
It is clear here that steward Stengel was extremely hostile
to Sweet because he was challenging the election procedures
for stewards. He threatened Sweet that he would ‘‘get him’’
and reported Sweet’s activities in that regard to owner and
President Halamicek. Moreover, the settlement of Sweet’s
grievance was reached without any input from Sweet. All the
officials of Local 682 told Sweet his grievance ‘‘was not
winnable.’’ In view of this hostility to the Charging Party by
the officials of his collective-bargaining representative, the
Board should not exercise its discretion and defer these un-
fair labor practices to the grievance procedure in the collec-
tive-bargaining agreement.
CONCLUSIONS OF LAW
1. Jurisdiction of the Board is properly asserted in this
proceeding.
2. By engaging in the following conduct the Respondent
has committed acts in violation of Section 8(a)(1) of the Act.
(a) Telling an employee not to engage in any union activi-
ties.
(b) Telling an employee that he was being discharged for
engaging in union activity.
(c) Telling an employee that he was being suspended and
given a final warning for engaging in union activities.
3. By engaging in the following conduct the Respondent
has committed acts in violation of Section 8(a)(1) and (3) of
the Act.
(a) Discharging its employee Larry Sweet because he en-
gaged in union activities.
(b) Suspending its employee Larry Sweet for 1 month with
loss of pay and all other benefits.
(c) Issuing a final warning to its employee Larry Sweet
and telling him if he should do anything while employed by
Respondent which Respondent deemed inappropriate, he
would be discharged.
THE REMEDY
Having found the Respondent has committed acts in viola-
tion of Section 8(a)(1) and (3) of the Act, it shall be ordered
to cease and desist therefrom and to take certain affirmative
actions designed to effectuate the purposes and policies of
the Act. Such affirmative actions shall include the posting of
the usual informational notice to employees, attached as ap-
pendix, and making its employee, Larry Sweet, whole for
any lose of earnings, seniority, and any other benefits he may
have sustained by reason of the unfair labor practice against
him.
The Respondent having discriminatorily discharged an em-
ployee, must offer him reinstatement and make him whole
for any loss of earnings and other benefits, computed on a
quarterly basis from date of discharge to date of proper offer
of reinstatement, less any net interim earnings, as prescribed
in F. W. Woolworth Co., 90 NLRB 289 (1950), plus interest
as computed in New Horizons for the Retarded, 283 NLRB
1173 (1987).5
[Recommended Order omitted from publication.]