Welco Industries, Inc.

National Labor Relations Board - Board Decisions

Aug 7, 1978

237 N.L.R.B. 294 (N.L.R.B. 1978)

I)ECISIONS OF NATIONAL LABOR RELATIONS BOARD
Welco Industries, Inc., a subsidiary of E.A.C. Indus-
tries and Mar) Workman. Case 9 CA 11112
August 7, 1978
DECI(SION ANDI ORDER
By CIHAIRMAN FANNINAN INO A i) MIMHIRS Ji5 KINS
ANI) Mt RRIIt
On October 5, 1977, Administrative l.aw Judge
Platonia P. Kirkwood issued the attached Decision
in this proceeding. Thereafter, the Respondent filed
exceptions and a supporting 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 brief
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge. to
modify her remedy.' and to adopt her recommended
Order, as modified herein.'
Contrary to the view of our disenting colleague, we
believe the record provides substantial support for
the Administrative Law Judge's determination that
Workman's filing of grievances constituted protected
activity and that her discharge for filing grievances
violated Section 8(a)(I). We are unable to accept the
sweeping contention that the terms of the collective-
bargaining agreement are so manifestly clear that
they preclude serious argument over the Respon-
dent's right to disregard seniority in making its as-
signment of overtime. As noted by the Administra-
tive Law Judge, one of the grievances filed by the
Charging Party was taken to arbitration (with anoth-
er apparently scheduled for arbitration subsequent to
the hearing), and most of the others were processed
through the second or third step of the arbitration
procedure. TIhus, it is apparent that the Uinion
viewed Workman's grievances as raising reasonable
issues concerning the interpretation of the contract.
Moreover, our dissenting colleague misconstrues the
I he Adnlinintrallie i.aw Judge nad.i nerlcntll N pecfficd Ilitelel Ite he
paid at 7 percent: however. intereSt vill he callulIaled iiOldl1lg 11 tile
"adjusted prime rate" used hb the t S Inter nal Retlenuc ScilcC for titelest
on tax payments krrila Steel ( -rporriomr, 231 NlRB tiIl { 1977)
2 In her recommtended Order the A.\dmlllltira tilcI .I llgC Ilse n the Ilar-
row cease-and-desisl language, "in ani like or rt Illated iln rt r I he ii,
charge of employee Mar5 Workminn [or engaginig 111 tOctcd ic)rl-ted
activities is an unfair lahbor practice which goes to the ;c, ir,;iit of ti e X.,
We shall, therefore. ilodif the AdIllilliti.atl¢ Iii Ji udgii Ce CCIIIn icritded
Order to require the Resporilldlent Itl eie itd dCl, It iI)I in otll\ tther
manner infringing upon the rights gu.llniteed 1t> i, enpllosecs h See ? of
the Act and conform nihe oilcle acct ldligl I R I K I * ,n, // ' ' , ( ,,
120) F2d 532. 536 (( A 4, 1941)
significance given by the Administrative Law Judge
to the Respondent's failure to inform the Charging
Party, prior to February 10, 1977, that the Company
wVas not obligated to assign overtime in accordance
with seniority. Although Respondent may have had
no obligation to provide this information, nonethe-
less, the lack of such explanation clearly supports the
Administrative Law Judge's finding that the griev-
ances were filed in good faith.
In v iew of the foregoing, our colleague's character-
ization of Workman's filing of grievances as "incon-
sistent," "groundless." "incongruous.'" or "harass-
ment" amounts to little more than the substitution of
his judgment or opinion for those of not only Work-
man but the Union in order to conclude that Work-
man was harassing the Respondent. In our opinion,
our colleague's view is mere speculation, with little
factual support.
It is also clear, as the Administrative Law Judge
found and as our colleague concedes, that Workman
was fired for filing grievances and not for overex-
tending her coffeebreaks. allowing a substantial
number of defective parts past her inspection, low
production, inefficiency, or incompetence. Thus, she
was warned 2 weeks prior to her discharge not to file
additional grievances and was told upon termination
that the discharge was for her persistent filing of
grievances. Yet our colleague, apparently to bolster
his position, repeats all of Workman's alleged dere-
lictions. The Respondent could have lawfully fired
Workman for incompetence or dereliction of duty; it
did not. 'The alleged dereliction of duty is therefore
irrelevant.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National labor Re-
lations Board adopts as its Order the recommended
()rder of the Administrative Law Judge as modified
below and hereby orders that the Respondent, Welco
Industries. Inc., a subsidiarv of E.A.C. Industries,
C'incinnati, Ohio, its officers, agents. successors, and
assigns, shall take the action set out in the said rec-
ommended Order, as so modified:
1. In paragraph l(b), substitute the word "other"
for "like or related."
2. Substitute the attached notice for that of the
Administrative Laws Judge.
MIl: 1lilR Ji "KINS. dissenting:
Unlike my colleagues, I am unable to find that the
Respondent was obligated to endure without end
either Workman's persistent filing of grievances
which had no proper basis under the collective-bar-
gaining agreement, or her adverse work attitude.
237 NLRB No. 46
294
WELCO INDUSTRIES. IN(
Workman worked for the Respondent for some 9
months as a receiving inspector, during which time
she filed a series of grievances, most of which were
bottomed on her claims of discrimination and for
overtime work: many of which were repetitively and
markedly inconsistent with provisions of the collec-
tive-bargaining agreement: and all of which were de-
nied at various stages of the contractual crievance-
arbitration procedure.
The bargaining agreement defines a grievance as a
"reasonable claim." It also provides that "The Com-
pany will make every reasonable effort to distribute
overtime equally among employees in their re-
spective departments according to job classification."
During June 1976. Workman filed three grievances.
One grievance, which was denied after arbitration.
alleged violations of the contractual antidiscrimina-
tion and seniority provisions because of the Respon-
dent's award of a particular job to a less senior, hut
qualified, employee. Workman filed this grievance
notwithstanding her admissions that she neither bid
on nor was qualified for the job. A second grievance
alleged violation of the equal overtime provision. and
the third again improperly asserted that the Respon-
dent violated the equal overtime provision because it
failed to grant overtime work to her on the basis of
her seniority. Shortly after filing these inconsistent
grievances, Workman, on successive das., overex-
tended her coffeebreak time and left her work area
without permission, for which she was verball\ repri-
manded.
Workman was laid off from June 20 to August 19.
1976, because of lack of work. During this period.
she filed charges with the Ohio Civil Rights Commis-
sion, alleging sex discrimination with regard to over-
time work and that she was improperly laid off. The
Commission dismissed all charges because of "no
probable cause."
On September 11, 1976, Workman allowed a sub-
stantial number of defective parts past her inspection
and was issued a warning notice therefor. Five dass
later, she filed another grievance, again charging a
failure to distribute overtime work equall because
the Respondent granted such work to a less senior
employee.
Throughout this period, it had been the Respon-
dent's practice to permit employees to work such
overtime as was necessary to complete their work.
On January 31, 1977. primarily because of the above-
average number of overtime hours worked hb, Work-
man, the Respondent changed its practice and au-
thorized overtime only when required by the fore-
man. This prompted Workman to file two F ebruars
4 grievances, one of which protested the change.
which was not shown to be unauthorized or unlaw-
ful. and the other again alleged unequal overtime dis-
tribution because of a erant thereof to a less senior
employee.
On February 10, Workman filed still another
groundless and incongruous grievance, complaining
that h\ granting overtime to three male employees,
one of whom had less seniority than she. the Respon-
dent discriminated against her because of her sex and
also violated the contractual equal ov'ertime pro vi-
sion.
the Respondent replied to the February 4 griev-
ances by w ay of a February 10' warning notice to
Workman which stated that her attitude was the ba-
sis for the walirning. noted that she had no reasonable
claim for filing those griesances. and cited her for
violation of a cornpan, rule concerning "Minor of-
fenses occurring frequently enough to become major
problems." In presenting her with the warning, her
foreman stated that he was trying to stop her griev-
ance filing.
On Februar' I 1. 1977, pursuant to figures showing
that Workman was less than one-third as productive
as a fellow inspector, and because her foreman be-
lieved that she was working slowly in order to get
more overtime, the foreman issued another warning
notice to her on the grounds of inefficiency, and told
her that she was affecting production and to improve
immediatels. Workman replied that she could not
and. therefore. would not work faster. During the
conversation. based perhaps on past experience and
future expectations, her foreman noted that she was
filing an excessive number of grievances and also
stated that "we're not sure we wailnt to keep you as an
employ ee."
Three days later, on Februars 14, Workman filed
two more grievances. one of which protested her
February 10 warning notice and her foreman's state-
ment as a discriminatory and coercive attempt to de-
ter her from filing grievances "to right a wrong theN
have committed." The other asserted that her
foreman's February II statement violated the
contract's article 19. which is captioned "Leave of
Absence." and provides. inter lila. that "Anstilme
Federal or State law is contrary to any portion of this
contract, the Federal or State law will prevail."
On Februart- 18. 1977. Workman again passed on
a substantial number of defective parts. for which
she was given another warning notice and a l-das
suspension. Workman responded to these discipli-
narv measures 6 days later bv filing another griev-
ance wherein she protested her February 11 and Feb-
ruarv 18 wuarnine notices. asserting that the warnings
In.ISTI lIIh I t., f '.A.IIkmaIn ',,n'IeI a' I IC Ii pos.ihle esexcephiion of
lme, c. nil [I. ,l [ii t the e..colid ,tep of ihe grlean.e .-arbhitraon procedure
. Ctertlill tlimle ].a, s ll¢,i-k.blc
295
I) D('ISIONS OF NA'I'IONAI. I.ABOR RELATIONS BOARD
were issued improperly because her foreman should
have, but did not. discuss her errors with her before
issuing the notices and, therefore, failed to follow
proper procedure. 'lhe record shows, however, that
her foreman did attempt to discuss her shortcomings
with her, and that Workman's response ,was "so."
The grievance also asserted with regard to the Febru-
arv 11 inefficiency warning that "I have been traying
to go faster and I see that it is just causing more
problems so I'll have to go back to min formier work
pace." Workman was discharged on the following
day because of her "poor attitude, continuous ha-
rassment, chronic griper, cannot get along with fel-
low workers."
I'he Administrative La.x Judge found that
Workman's grievance filing was protected concerted
activity with which the Respondent unlawfully inter-
fered by its verbal and written warnings to refrain
therefrom. and by discharging her because she did
not. I'he Administrative I aw Judge sought to but-
tress this position by (I) finding that Workman's u n-
founded accusations of overtime disparitx were not
unreasonable, i.e.. groundless, because the co1tIraclu-
al language covering overtime was less than plain: (2)
finding, in substance, that there was no improprietx
or pattern of impropriety in Workman's endless
stream of grievances because "each [grievancel arose
from a different situation." and (3) concluding there-
from that Workman neither was acting in bad faith
nor attempting to harass the Respondent.
In my view, the contractual language is clear, the
establishment of a pattern of conduct is self-evident,
and the legitimacy of that conduct certainly cannot
be established either bx Work;man's repeated
groundless accusations of nitscondluct or bN wxxarninles
directed to those unfounded accusations and dis-
charge because of WVorkman's continued harassment.
Mloreover, in view of Workmlan's condliuct it is as
plausible to infer that her foreman's statements xe cre
directed solely to her persistent filing of unfoundedt
grievances as to infer all other reason. and I so iIn-
fer.
In further treating the had-faith issue, thie A\dmin-
istrative Law Judge noted that the Respondent did
not clearl' inform VWorkman that senioritx had no
bearing on ovxertime until it so stated in its Icebruarx
10 rejection of Workman's I ebruarv 4 griexanc.c.
This, of course, implicitlx places on the Respondent
a nonexistent duty and charges it with a breach
thereof about which it nowl mI;y not complain, and
thereby inferentially excuses \Vorkman's conduict. I
cannot make such inferences an; more than I can
assume that Workman could nlot rIad plain conltralc-
tual language. or that the L nion, wxhich participaited
in every grievance but one. nc\er discussed, or in-
formed Workman of. the correct oxertime pro'isions
either during the processing of her grievances or after
rejection thereof, or at any time.
In view of the foregoing. and in the absence of any
evidence of prior animus against the Union or
against an) filing of grievances, I cannot infer that
the Respondent warned and discharged Workman to
prevent the filing of legitimate grievances.
Workman's attitude in general, her February 24
griev ance. which protested her February 11 ineffi-
ciency warning by asserting that she intended to go
back to her inefficient work habits, and her abrupt
and monossllabic dismissal of her foreman's efforts
to discuss her shortcomings with her, sufficiently dis-
closes Workman's unconcern for the merits of her
grievances or her performance.
The filing of grievances under a collective-bargain-
ing agreement is protected by the Act, but this pro-
tection does not extend to repetitive, multiple, and
inconsistent grievances on an issue as to which the
grievances plainly lack any rational ground, and this
deficiency has been communicated to the employee
by prior denials and explanation. At some point in
such abuse of the grievance process the statutory
protection is lost, and Workman went beyond that
point. Accordingly, I would dismiss the complaint.
APPENDIX
Nt) IwIr To Ex1Pi OYIE.iS
PosIi t) BR ORDER Of l [iF
N I 1O)N lI I. BOR R: I.AI IONS BOMRI)
An Agency of the United States Government
A\fter a hearing at which all sides had an opportunity
to present their e*idence, the National Labor Rela-
tions Board has found that Mary Workman was rep-
rrmianded and discharged because she initiated a
numbler of grievances pursuant to the collective-bar-
gaining agreement between this Company and the
l[]ion representing our employees, conduct which is
protected by the National Labor Relations Act, and
that therefore her discharge violated said Act. In
compliance w ith the Board's Order. we hereby notify
xou that:
\VeF wii I (ol discharge. reprimand or in an?
other manner discriminate against any emplo)ee
for engaging in concerted acti ities protected by
Section 7 of the National Labor Relations Act.
Wi xiin.i sol in any other manner interfere
with, restrain, or coerce our employees in the
exercise of rights guaranteed them by Section 7
of the National Labor Relations Act.
xWi: i I. in compliance with the Board's Or-
der, offer Mary Workman her old job back or, if
that job no longer exists. a substantially similar
job. with full seniorit', and xax wlt.i make up to
296
WELCO INDUSTRILS, INC.
her the pay she lost, with interest, and \w't wilt
remove from our files all reference to the fact
that she was reprimanded by us for filing griev-
ances and notify her that we have done so.
WI (I(' INI)t SI RIS. INC. A St RSIDIARA OF
EAC INDI SI RliS
DECISION
STATEMENT OF IHF CASE
PLATONIA P KIRKWOOD, Administrative Law Judge: This
matter was tried before me at Cincinnati. Ohio, on JulN
19.' The complaint 2 alleges. in substance. that in violation
of Section 8(a)(1) and (3) of the Act, Welco Industries,
Inc., a subsidiary of E.A.C. Industries, Inc. (herein Re-
spondent or Company), issued a written reprimand to the
Charging Party. Mary Workman, and then discharged her
because she invoked the contractually established griev-
ance procedure and/or because of her sympathy for and
activities on behalf of District 34, International Associa-
tion of Machinists and Aerospace Workers. AFL C'10
(herein Union). Respondent's answer denies the commis-
sion of any unlawful conduct.
At the hearing all parties were afforded full opportunity
to adduce relevant and material evidence, to examine and
cross-examine witnesses, to argue orally on the record. and
to submit briefs. Limited oral argument as included in the
transcript of the record and post-hearing briefs submitted
by General Counsel and Respondent, respectively. have
been duly considered.
Upon due consideration of the evidence, including my
observation of the demeanor of the witnesses while testify-
ing, and the entire record in the case. I make the following:
FlNDINGcS o( F k( I3
1. BACKGROUNI) INFORMAtION; THE ((OMPI AIN r S I tItN(
The plant involved in this proceeding is located at Cin-
cinnati, Ohio. The Respondent is there engaged in the
manufacture and sale of electrical motors, polished slip
rings, and air conditioner control panels. The Respondent
and the Union have had a long and amiable history of
collective bargaining for a unit composed of Respondent's
production and maintenance employees. The current col-
lective-bargaining agreement between them became effec-
tive June 1, 1975. Its terms run to Ma, 31, 1978, and con-
tinue thereafter until either party gives the other notice of
intention to terminate.
Of relevance here, as a background matter, are certain of
the contract provisions which, inter alia, forbid discrimina-
tion because of union membership: require Respondent to
Ihls and .ll daies hereafter Iellnrio ed n ellIc for 19--. mlles. IlthelikltC
indicated
Issued April 13. on ;1 charge filed Fehrua;lr 28 anld serredl \lrtlh 2
No issue of commerce oIr labohr org.anl/ation Is presented I he rclnipllit
alleges and the ansuer admitls facts shich estahhlih tIh.e Clellnlts I find
those factr tii he a, pleaded
make every reasonable effort to distribute overtime equalls
among emploxees in the respective departments according
to job classifications; define seniorit,. as "the right of pref-
erence as to lay'off. recall to work. promotion. demotion.
transfer. vacation and shift preference": and establish a
four-step grievance procedure culminating in arbitration)'
Mary Workman, the ('hbarging Party, was a member of
the unit covered hy the above bargaining contract through-
out the I I-month period of her employment. which began
March, 1976, and ended with her discharge on F ehruarx
25.' As set forth in more detail below, she filed a large
number of separate grievances during the course of her
employment. each of which variously accused the Compa-
ns of violating contract rights accorded her as a unit em-
plovee under one or more of the substantive contract pro-
visions I have summarized above. One of these grievances
went to arbitration and a number of others were processed
through step 2 or 3 of the grievance procedure. but none of
those grievances were resolved in her favor.'
The question posed hb the complaint and its litigation is
whether Respondent fired Workman because it objected to
her repeated use of the grievance procedure and, if so.,
whether its objections to her grievance-filing activit) were
valid in fact or in law. The merits of the issues so posed
turn in part on the exidentiars facts next recited.
11 IHF F I- DIN( I BI ARIN( () o I HF MOTI StilON ISSI F
Workman filed her first griesance on or about June 21.
1976. about 3 months after she was hired (Grievance No.
4151), complaining that her contractual rights about over-
time distribution had been violated: and on June 25 she
filed a related grievance requesting payment of a "bonus"
as a remeds. The Union processed these grievances
through steps 3 and 2, respectively. On July 12, the Compa-
ns "disallowed" the overtime grievance on grounds that
Workman .i as the onlx emploee in her job classification
and had gotten some oertime hours. It also rejected the
the contralct define, .a erie.a tc ax i . reisona.hle rCli.llI hCtit.'e the
partilex r hetseen the tor.lpian' and enlplori c.e coi ered h thli, .\reenlentll
thai there has beet ) s' Iolaltion Or failure to perform ,'Tillile expre,, pi I hix ni
o[f }11ix contral -
rlh ircpect t, rithe precrs t latin , f crien ce., Ihe cn t ntrac t ohlig.ies rn\
emplIlsec hi .lin T ia ricante tio first present it to his foreman. and if Ihe
matter I% not aitlsfilacL\ Clr lei xed i ht Ih;l nt. the grierance can then go
thrnlgrh the fornilml Ceric.iant stp c stcp lI) the grierance is taken up
,ll lil thr ftorenllln h\ ihtn m1l llx ueg/lr .Ird [lt e rleicie cii e pl.m ece Asum-
inqg 1I l setcrlelnt. lien, I t iep f2 the zricran.me I, reduced tno mri lelg m,
in\relrlcied hr tile I nin'x ,htp cnilrmiltee and is then dircussed hb said
co.mmnttee ilth the ( omrpanil'x persrnnel director I1ftil1 unsettled. then at
itep I tihe Agrrcrliie is suhlmitted it d.IcIusnm l th a grioup romnlpi osed of
iiernlher l .f .I 11.1.lnagc lncnti Cni llrltee the a.griered emrplor e, anmd nleri
herm of .i tuiolot or.ilt lliittcc. or.e of hlri h I' the union buaMnex repr se ta
Irie If the gricn: rl .c tlil renmliln unsneitled to the saisfactiorn ilf the p.arrie%
rttiltr Ilie ( .1115.1\ r.il tie I nlli l ma l\ nroke arhbilratll on the fitlal , tepi
iShe suftcred aI tienlporrx ;rr\lff dulilng .n economir reduclln in firrLc
eo'.receI JIne IS ni Xirid tllsl I') -ti
\k.,okn lantied f ll I ,ldItltn [ ' icrl er lcr¢e ifter tier discharige .lltllnir lehit
her terillinatlon u ,. tit .i ndil a iilatln {if the contractual pron crrphou
aI;ilnsl d.l ltIiniiltltlln i\ i t he late ,f tie hearing. the grie;ance had heen
r eolcd itgainit her up throligeh step I and A., pentding for arbitration at
the i nl lll' requiesi
She 1l0i fieid. dliriunL her enilpolnticiii. I chiarge ullh the Ohio ( 1n
Righit, ( onlimi wrii l ,iiLrmu i me lt ( C ili7 rl , ol d e.x rillnin atlon ac.ait her on
it lil[i it t[i l C\
297
I)EC ISIONS OF NAIIONAI. LABOR RELATlIONS BOARD
"bonus" request on the ground that it had no applicability
to the situation described by the grievance.
W ithin it day or two following Workman's filing of the
above grievances, her supervisor, Foreman Roth, placed
two w ritten "reprimands" in Workman's personnel file.
neither of which was shown to Workman. The first repri-
mand, dated June 21, stated that Roth had observed her
carrying a cup of coffee in the work area about 3 minutes
after the morning break and that he had pointed this out to
Chief (Union) Steward Rogers. The second. dated June
22, stated that Roth had observed her talking to 1Union
Steward Rogers: that she had no permission to do so: and
that he (Roth) told her that she must stay in her work area.
On June 23. Workman wtas notified that she would be
temporarily laid off for lack of work Hier layoff com-
menced on June 25. Because a male employee recently
hired as an inspector had been retained. Workman grieved
her layoff as being both a discriminatory selection based
on sex and a violation of the contractual seniority prosi-
sions. 1 he 1Union processed this grievance through all
steps, including arbitration. 'I he arbitrator ruled in favor of
the (Company on findings that the junior emplovee had
inspection skills more varied than WVorkman's and that the
contract permitted the company to give him preference ac-
cordingly. TIhe arbitrator issued that decision on Septem-
ber 28, 1976.
()n July 6, 1976, while Workman's layoff grievance was
still in process under the contractual procedures, Workman
filed a charge with the Ohio ('ivil Rights C(ommission alleg-
ing that the company paid her less than male employees
doing the same work; gave her less overtime than it gave to
male employees: denied her training it made available to
male employees; and laid her off while less senior male
employees were retained. The Commission issued its deci-
sion, finding "no probable cause" to process the charges
further, on March 8, 1977, sometime after Workman had
been fired.
On August 19, 1976, Workman was recalled from layoff:
and on September 22, 1976. the (ornpanl issued a wiiarng
notice to her for "passing parts" which did not conform to
specifications. She was advised to use proper measuring
tools, and to be more careful in the future.
On November 29, 1976, Workman filed a grievance al-
leging, in the main, that the Company, in violation of the
contract, had assigned overtime work to a junior employee,
rather than to the grievant, Workman, who was more se-
nior. The grievance requested payment of a monetary sum
to her equal to pay given for the overtime hours worked by
the junior employee. I'he grievance was processed to step 2
and was denied at that step on December 17. 1976. The
company noted, in its reply, that on December 17. Work-
man had "told her supervisor she would not work overtime
unless she received a pay raise."
On February 4, Workman filed two separate grievances.
According to Workman, Rothl .Idslt.l herl .,llno, eserN tini ste ,gave
him a grievance" that shie "sho)lldn't urie i," that she ,is 'goliing o get lhe
name of .i troublemaker" I nee nd lr and do nole rel Oil her tesillnions abolhut
Ilihce I;aienlents. and I lrike 11,! rl idhdill[n Ii l hi tl' h respect Io that
testimrno Roii, I note, died ini \u[tiusi 1976. h(irtl hbil,re or iler .,t lik-
main ias recalled froim her June 2 li lsofli Afreir Rth ,ldeath. Pa11il White
hbeta nit \, rklal'i [oi cnll; n
In one she alleged that, on January 31, her foreman (then
Paul White) had told her she could not work overtime un-
less he asked her to and that the foreman then proceeded
to do unit work after hours. She requested reimbursement
for the hours worked by the foreman. In the second griev-
ance, Workman complained that on February 1 and 2. the
foreman had asked a junior employee to perform overtime
work and had not asked her to do so. She claimed a viola-
tion under the contract's equal overtime distribution clause
and requested pay for the overtime worked by the junior
employee, 1 he Company denied the first grievance on Feb-
ruars 21 with the comment that the foreman's work was
due to an "emergency": and it denied the second grievance
on February 24 with the comment that the contract's over-
time clause referred to by the grievance made "no reference
to senior employees."
Under date of February 10, and while the above two
grievances were still in process, the company issued two
warning notices to Workman. The first cites her under
C'ompany Rule 20 on the grounds that there was no rea-
sonable warrant for the filing of the February 4 grievances.
Under the legend "Nature of Violation" there is a check
mark in a block opposite the word "attitude." 8 When
White handed her this notice, he also told her, according to
her uncontradicted testimony, which I credit, "I had to
stop you from writing these grievances." The second states
that Foreman White ran a check that day on the length of
time it took Workman to do certain work, as compared to
employee Fultz: that she was taking too long, thereby af-
fecting production: and that he wanted immediate im-
prosve men t.
On Februars 10.1' Workman filed grievance alleging
that she had been discriminated against because of her sex
hb the Company's assignment of overtime work to three
male employees on February 5, one of whom was junior to
her in seniority, and that the work assignment also violated
the contract's equal overtime distribution clauses. She re-
quested reimbursement for the hours worked by the junior
employee, and that overtime be shared thereafter. The rec-
ord does not show whether the Company took on this
grievance before Workman was dismissed.
On February II11. Foreman White had a conversation
with Workman in which, according to testimony by her
which I credit, White told her, "Mary, you put in too many
grievances, and we're not sure we want to keep you as an
employ ee."
Ile (le onipanll hasi prorIulga.ted and maintains "Regulations of Person-
nil ( iondtlct for All Emplouees."' I the preliminarN statement, the rules
ruate thai thre penalli for a first offense is a written reprimand: for the
second. a wurrten reprimand plus a I-dali suspension: arnd for the Ihird
offerse, dishllalrge. Piragraph 20 thereof refers to "Minor offenses occurring
frcqulintl) enough to hecomnle ; majur problhem"
Reslp indent'r executive sice president, Derek Howard. testified that he
directed the forenman to conduct a "surves" of W5 orkman', job performance
uhen he a;s conlsidering Ihe questlon ,of reprimanding her (as management
dMli on I chluaru It)) for the abhose-mennred grievances. While's compara-
s/xe 1ruld .1 ill,lnkr.anl's ork speed was apparently made in response to
Ilit dire.Irtonl.
i ,. I ecord dhes not shoo, kheilier this griesance was filed before Is-
Sllu;ncC rit the aboh c uarning notices dated the same das I assume that its
coirpi;ll.l ias .i ial discussed with the foremarn before February l0. since
the illr;lact pr'l,ides for ; w ritten statenient of a griesvance only after oral
d.i,,-k .llli, I ,; i rcsulied inl Siti,fLict.I'S resolulion.
298
WELCO INDUSTRIES. INC
On February 14. and while Workman's February 4 and
10 grievances were still in the processing stages. Workman
filed 2 more grievances. One refers to the warning given
her on February 10 for filing the grievances of February 4:
and :t asserts that the "warning notice violated the
contract's antidiscrimination clauses" and was an attempt
to "coerce" her in her use of the "Union privilege of filing
grieances." The grievance is marked "denied" at step 2 on
FebruarN 21. The other grievance referred to the warning
of discharge orally addressed to her by White on lFebruar\
11, supra, if she continued filing grievances. It asserts, inter
alia, that this warning was in violation of Federal law. The
grievance is marked "Denied" under date of February 21.
On February 18, the Company issued another "warning
notice" to Workman. This one refers to Compan, Rule 17.
and states that Workman's work was "Inferior and Negli-
gent." Under the heading "Nature of Violation," there ap-
pear check marks in the blocks opposite the words "Defec-
tive Work" and "Carelessness." Based on this warning.
the Company suspended Workman for I day on February
21.
On February 24, Workman filed a grievance about the
February 18 warning and the subsequent I da} suspension.
The grievance states, inter alia, that the comnpans action
was unjust because the foreman had not followed "proper
procedure" where work errors were attributed to employ-
ees-this because, so she asserted, he was supposed to dis-
cuss her errors with her and give her a chance to correct
them before taking disciplinary action. She requested the
removal of the reprimand from her files and pay for the
day she was suspended. The Company denied the griev-
ance on February 25 (the day that she was fired).
On February 25, Workman was discharged. The as-
signed reasons on the termination notice were "Poor atti-
tude. continuous harassment, chronic griper, can not get
along with fellow workers." 12
In fuller explanation of its termination decision, Respon-
dent, at the hearing, called a number of its management
agents or supervisors. Foreman Paul White among them,
to report on the factual basis for the reprimands which it
gave Workman and the reasons stated on the termination
notice for discharging her. I find that their reports on this
matter indicate that, although management reviewed as-
pects of Workman's job history other than her grievance-
filing activity when it decided to fire her." it gave heavy
and substantial weight to her grievance-filing activity in
reaching its decision. It did this because it regarded
Workman's repeated charges of discrimination against her
because of her sex, and her repeated complaints about
l Respondent's C omp;lnn Rule 17 refers to "Nellgence or inlferior >ork
resulting in excessive scrap. break age of tools. or wasting of lilaterial, or
On rebruars 28, o rkmnan prorcteld her dlschalge boh hs presenting
a grievance and h? filing the charge Inliating this proceeding Each larlous-
ly alleges that her discharge was an act of discriminaiiion against her. first
under the contract and next under the Act. As of the dale of Ihis hearing.
the Union had processed the grievance up Itr Ihe arbitration stage :incd had
invoked arbitration in support
' The other factors reporredli reslewed Ib managenient included Ihe
qualit' of Workman's work performance overall. reports allegedl l made to
White b% other emplosees that WUrkmnidr was "hard It) get along with." and
her presentation rf sex discrimiiiatiio chargs (st1ll pendilng (on inrestigallon
when she was discharged) to Ihe ()Ohio (I I R ght ( ' lnl ssi on
overtime distribution as violations of her seniority rights
when earlier ones had been rejected as being nonmeritori-
ous. to be unwarranted "harassment" of the Company and
valid cause. accordingly, for firing her.
III DISCUSSION OF THIF ISSL ES AND) (ONCl I DIN I NI)IN(iS
Reviewing the above facts, in light of the contentions of
the parties, the questions here to be resolved are: (1) in
advancing the grievances which the record shows that
Workmlan presented, was Workman engaged in concerted
activity protected bv Section 7 of the Act: and (2) if so, was
her discharge motivated, in whole or in substantial part, by
the fact that she engaged in that protected activity. It is to
those questions that I now turn.
As to the first question, there is a large body of Board
law which defines the reach of Section 7's protection to
employees who choose to invoke contractual grievance
procedures to press complaints about their employment
conditions or job rights. It is plain from a reading of the
pertinent cases that the invocation by an employee, either
individually or in concert with others, of a contractual
grievance procedure to implement what he believes to be
the job benefits or rights accorded him by the collective-
bargaining agreement is a protected concerted activity
within the meaning of Section 7 of the Act. See, e.g., Walls
4altufilcturing (Cornpan'. Inc., 137 NLRB 1317, 1319
(1962): M.ushroomn Transportation Co., Inc., 142 NLRB
1150, 1157 58 (1963): SoconyA Mohil Oil C(onpaliv. Infc., 153
NLRB 1244. 1247 (1965): H.C. Smith Construetion C'o.. 174
NLRB 1173, 1174 (1969). Moreover, the cases hold that the
protection accorded employees under this concept is not
forfeited because the grievant's complaints are resolved
against him; and its extension to an alleged grievant-dis-
criminatee does not depend on the employer's or the
Board's appraisal of the grievant's justification for the
complaints. See. inter alia, the Socony Mohil and H. C(
Smith cases, supra. See also E.E.E. C(o., Inc.. 171 NLRB
982 (1968): Johnson Motor Lines, 228 NLRB 393. fn. 14
(1977).
To be sure, the sanctions afforded under the above con-
cepts for emplover conduct which discriminates against a
grieving employee or which otherwise operates as a re-
straint on or coercion of his grievance-filing activity are
withheld where it is proved that the employee knowingly
and persistently filed groundless grievances so as to harass
his employer. See N.orthern Motor Carriers, Inc., 130 NLRB
261 (1960). But, contrary to Respondent's claim. I do not
find that to be the situation reflected by the record in this
case. True it is that all II grievances filed by Workman
over the course of her I-year employment with Respondent
were ultimately rejected: that a number of these grievances
dealt with complaints about the Company's failure to as-
sign her a share of overtime work it had assigned to
others:'4 and that most of these overtime complaints stated
the grounds for grieving in terms of violations of I or more
of the contract's equal overtime distribution. seniority, and
4 Includling one of the mu, grles.lnce, referred to bh the ( Compans n the
wriltllen ieplrllllld II Issued It, Workman on Februar' 10 Io warn her that 11
reglrded her filirg of the llnrimertorit)tls griesamlces to he a , ioatlron of Its
rules
299
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
no-discrimination provisions. But, as appears from a read-
ing of all her grievances, each arose from a different factual
situation. And, although each of them was ultimately re-
jected, the reasons assigned by the Company for denying
each were not identical. Furthermore, and to the extent
that the Company points to the contract's language to sup-
port its challenge of Workman's "good faith" in grounding
claims to overtime on the contract's seniority clauses, I
cannot, from a reading of the contract as a whole, say that
the Company's right to disregard seniority in overtime as-
signments is so plainly evident from the contract's lan-
guage as to justify a judgment that Workman accused the
Company of violations of her contractual seniority rights
in bad faith and without any reasonable warrant whatso-
ever. 15
Turning now to the factual issue of motivation, I have no
difficulty in concluding that the Respondent's decision to
terminate Workman, as it did, on February 25. was
sparked by its resentment for her grievance-filing activities,
as a whole, and by her insistence on pursuing such activity,.
as she did just before she was discharged, in disregard of
the Company's written and verbal admonitions to her to
refrain from grieving. Those admonitions were addressed
to her, I note, on or about February 10. She filed a griev-
ance based on those admonitions on Februarx 14, and a
further grievance on February 24, about the propriety of
the Company's disciplinary suspension of her for I day (on
February 18) for defective work; and she was fired on Feb-
ruary 25.
In thus resolving the issue of motivation against Respon-
dent I have taken into account the evidence showing that
the C'ompany had criticized and disciplined Workman but
2 weeks before she was fired for failing to perform her
duties in a competent and efficient manner and that this
was not the first time it had criticized her work perfor-
mance. But her deficiencies as an employee were not
among the reasons stated on the dismissal notice Respon-
dent gave to Workman."' In a y event, as has been indi-
cated by the Board, discrimination charges such as those
here involved may properly be sustained, even if it be
shown that the alleged discriminatee 's protected concerted
activity was not the only reason for the disciplinary action,
but was in fact a motivating reason. at least in substantial
I f. pa ( Smt ,h ( nrr t ilton (o. ipner 1 74 NN RB t at 1 74. Aliietc tII
Board found protecte d air emplosee's filing of at gnrierne r grrtml rded onr hisown interpiretitron , f the bargai ninig oorr acr.r er Crii thorg there its s a
showing ihat an, olher einpl ioees agreed to rir itcqtuiesred in hit Ilrterpreta-
hion.
It bears iroting in the inr tlant case tha tiunder tile ;Olltir kct. till erlpIhscc eni; as inilate ai gri e iarnce on his t ti rI inIn Lit th e first step A t th e ,ie,.orrd Fid
subsequient step s, the griev ance is under the contr l of the t mrottn ire e Il-dence show s that. with one pos sihble exteprti on, all ot Ih e gries antc ,e filed bor on behalf of Vrorklinl l .iire tai l c a. t tOs step 2 in tire co urse of processing
It ilsot bears noting that only oll *lie single fot , i drled 11r or rhorrt
FIebr uar, lI) I is there cle iarI s tated is l leritsoni for11 rejr ctilrngr ' rkl rran'
overtimtr e complaint (oire Ofl Il nutl ber eQiri er filed) thit "senirri I\" ha i Ii ahearing as it f actor in overtime assilrlt nei t' s
, I also note that W.hie's testrinii, r eports hi, hta.tigt reeit. ,ed t i., -
plai nts from t ime It titile frotI t Otiier eitplo.iees hilt th es f tound 5 or krinan
"hard to get a long it'h" Bril its Iontre of theise ciirlpll lnits "c erae xetr IMen-
lioned th \'orktan. I i mr nol petrsiu ide d tha t, if lutifled thos e o.nit plulatinw ere vie wed as serious entiough to sa ran l it 11rt disciplrwt\ ~Lctol ntrir Re-
spondent's partr
part. See, e.g., Socony-Mobil, supra. See also Johnson Motor
Lines, Inc., 228 NLRB 393 (1977). I so find here.
From all the above, it follows that by reprimanding
Workman on or about February 10 and then terminating
her on February 25 because of her grievance-filing activi-
ties, Respondent engaged in conduct violative of Section
8(a)(l) of the Act. 17 I so conclude.
THE REMEDY
1The recommended order shall include, in addition to the
conventional cease and desist and notice posting provi-
sions, a requirement that Respondent offer Workman
forthwith full and unconditional reinstatement to her for-
mer job or, if that job is no longer available, to a substan-
tially equivalent one, without prejudice to her seniority or
other rights. privileges, or working conditions, and make
her whole for any loss of earnings suffered by reason of her
discharge. by paying to her a sum of money equal to the
amount she would have earned as wages from February 25,
1977, the date of her discharge, to the date of the reinstate-
ment offer as provided herein. Backpay with interest at the
rate of 7 percent per annum shall be computed in the man-
ner set forth in F. W. Woolworth Company, 90 NLRB 289
(1950), and Florida Steel Corporation, 231 NLRB 651
( 1977). I shall also recommend that Respondent be re-
quired to remove and expunge from its records all refer-
ences to the fact that Workman was reprimanded for filing
grievances.
Upon the foregoing findings of fact and conclusions and
the entire record in the case, and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended:
ORDER '9
'The Respondent. Welco Industries, Inc., a subsidiary of
E.A.C. Industries, Cincinnati, Ohio, its officers, agents,
successors, and assigns, shall:
I. Cease and desist from:
(a) Discharging, reprimanding, or in any other manner
discriminating against any employee for engaging in con-
certed activities protected by Section 7 of the National La-
bor Relations Act.
(b) In an) like or related manner interfering with, re-
straining, or coercing employees in the exercise of their
rights under Section 7 of the Act.
2. Take the following affirmative action designed and
found necessary to effectuate the policies of the Act:
Ih e (;eneral (Counsei oonte nds thait W otilktriira' discharge ',ilated r Tinl
nnl i Sec. 8 (a)( 1 i of the Act. hut Sec ta ( i a s e , ell. I find it unnece ssar, iIt
dec .ide this issue as its deter mination uould neither add to nor det ract fromite ric ted,! fur tile \liliat r ittn fnoun d See V IZ R B X Bur nup and Sims. In. ..37') t S 21 rIt1964
i, I hi (General ( oiunsl filed v ith me a supplemental brief requesting that
Ire ratre iiof iterest ot b ickpat a' i irded b e increased from 6 to 9 pertent. As
the BomII.d Itentl expressed its lcws on the subhlet in Florida Steel. rupra.
I h\i. in tac.tiod rlCll ev tth h ir L)ecmislon, priorded the 7 pe rcent rate
Ill titee elellnt n e\ceptiints are filed as provided by Sec. 102 46 of the
Rule, iid i Regulatiions of the Natiornal I Iabor Relations Board. the findings.
tliu usit,. a tndi recci mmennded Order herein shall, as provided in Secin2 48 of tihe Rules rrrd RegrlatliMs. be iadorpied by the Board and beirome
is findirg , ,i otl. Lll i tt, rd Order. and a ll ,hbject, irns Ihereto shall he
deerned ; ced i o fir nll purposes
300
WELCO INDUSTRIES, INC
(a) Offer Mary Workman immediate, full, and uncondi-
tional reinstatement to her former job or, if that job no
longer exists, to a substantially equivalent one, without
prejudice to her seniority or other rights, privileges, or
working conditions, and make her whole for any loss of
earnings suffered, in the manner set forth in the section
hereof entitled "The Remedy."
(b) Remove and expunge from its personnel records all
references to the fact that Mar' Workman was repri-
manded for filing grievances pursuant to the collective bar-
gaining agreement and notify Mary Workman, in writing.
that it has done so.
(c) Preserve and, upon request, make available to au-
thorized agents of the National Labor Relations Board, for
examination and copying, all payroll records, social securi-
ty payment records, timecards, personnel records and re-
ports, and all other records necessary or useful in de-
termining compliance with this Order. or in computing the
amount of backpay due.
(d) Post at its Cincinnati, Ohio. plant, copies of the no-
tice attached marked "Appendix." 2 Copies of said notice
on forms provided by the Regional Director for Region 9.
shall, after being signed by an authorized representative, be
posted immediately upon receipt thereof and maintiined
by it for 60 consecutive days thereafter in conspicuous
places. including all places where notices to employees are
customarily posted. Reasonable steps shall be taken to in-
sure that said notices are not altered, defaced, or covered
by any other material.
(e) Notify the aforesaid Regional Director, in writing.
within (20) days from the date of this Order, what steps it has
taken to comply herewith.
' "In the event that this Order is enforcd h\ .a )ludmenll ,t t nited
States (C urt of Appeals. the words in Ihe nrotice reading "Posted h ' ()rder
of the Naltional I abor Relations Hoard" shall read "Posted Pursuanl to a.
Judgment of the I toted States ( ourt of Appeals t nfltrcing nl ()rder of the
National I.ahor Relalions Board "
301