Whirlpool Corp.

National Labor Relations Board - Board Decisions

Jan 16, 1975

216 N.L.R.B. 183 (N.L.R.B. 1975)

WHIRLPOOL CORPORATION
Whirlpool Corporation, Evansville Division and Del-
bert H . Rueger, Jr. Case 25-CA-5723
January 16, 1975
DECISION AND ORDER
BY ACTING CHAIRMAN FANNING AND
MEMBERS JENKINS AND PENELLO
On August 13, 1974, Administrative Law Judge
Sidney D. Goldberg issued the attached Decision in
this proceeding. Thereafter, the General Counsel
filed exceptions and a supporting brief, and Respon-
dent filed cross-exceptions and a brief in support
thereof and in answer to the General Counsel's
exceptions. Respondent also filed a motion for
permission for oral argument.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
bnefs and has decided to affirm the rulings,
findings,' and conclusions2 of the Administrative
Law Judge and to adopt his recommended Order.3
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the complaint be, and it hereby is,
dismissed in its entirety.
i The General Counsel has excepted to certain credibility findings made
by the Administrative Law Judge . It is the Board 's established policy not to
overrule an Administrative Law Judge's resolutions with respect to
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions are incorrect . Standard Dry Wall Products,
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have
carefully examined the record and find no basis for reversing his findings.
The Employer's request for oral argument is hereby denied as the record
and the bnefs adequately present the issues and contentions of the parties.
2 The Administrative Law Judge incorrectly stated that the Union called
Frank Johnson as a witness for the June 27, 1973, "fact-finding" meeting;
that the contract negotiations during which Rueger 's grievance was
abandoned by the Union occurred in February 1972, rather than February
1974, and that Rueger's first charge against the Union was filed in August
1972, rather than August 1973
3 In view of the facts of this case and the findings of the Administrative
Law Judge , Member Penello finds it unnecessary to reach the contentions
of Respondent with regard to Collyer Insulated Wire, A Gulf and Western
System Co., 192 NLRB 837 (1971), and Spielberg Manufacturing Company,
112 NLRB 1080 (1955)
DECISION
183
SIDNEY D . GOLDBERG , Administrative Law Judge: The
questions in this case are not only whether the discharge
involved was unlawful but also whether the Board should
withhold decision on that question and defer, for the
determination of that issue , to the procedures provided by
the collective-bargaining contract governing the parties.
The complaint herein,' pursuant to Section 10(b) of the
National Labor Relations Act, as amended (the Act),
alleges that Evansville Division , Whirlpool Corporation
(Respondent or the Company), in violation of Section
8(a)(3) and ( 1) of the Act , had issued a warning to Delbert
H. Rueger, Jr., the Charging Party ; that it had harassed
him and James A . Duvall , a steward of Local 808 of the
International Union of Electrical , Radio , and Machine
Workers , AFL-CIO-CLC (the Union); that it had threat-
ened to discharge Rueger ; and that it had discharged and
refused to reinstate him, all because of Rueger 's union or
concerted activity in filing and pressing certain grievances.
On September 27, 1973, after the filing of the charge but
before the issuance of the complaint , the Regional
Director, on behalf of the General Counsel , notified the
parties that , in accordance with the Board's decision in
Collyer Insulated Wire, 192 NLRB 837 (1971 ), he was
declining to issue a complaint , based on his determination
that further proceedings on the charge should be adminis-
tratively deferred for arbitration . He also stated that he
would inquire concerning the status of the dispute
periodically and would accept and consider , at any time,
requests and supporting evidence from any party for
dismissal of the charge , for continued deferral of adminis-
trative action , or for issuance of a complaint.
On February 7, 1974, Rueger filed a charge 2 stating that
the union had failed to represent him fairly and that it had
not pressed the grievance over his discharge to arbitration.
After investigation of this charge , the complaint against
Respondent was issued.
Respondent filed a pro forma answer, denying each and
every allegation of the complaint . At the same time, it filed
a motion with the Board , stating that the controversy had
been settled under the provisions of the collective -bargain-
ing contract governing the Charging Party , and requesting
that (a) the case be transferred to the Board; (b) the Board
accept briefs ; and (c) after consideration of such briefs, the
Board dismiss the complaint without prejudice to its
reissuance if a complaint should issue on the charge that
the union had failed fairly to represent Rueger . The motion
was referred by the Board to Administrative Law Judge
Arthur Leff who, on March 18, 1974, denied it without
r Issued February 21, 1974 , on a charge filed August 3, 1973.
2 Case 25-CB- 1902, similar to an earlier charge filed by Rueger on
August 3 , 1972, Case 25-CB-1758. Both charges were subsequently
withdrawn
216 NLRB No. 51
184 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
prejudice to its renewal based on evidence adduced at the
hearing . Respondent's motion to the Board for special
permission to appeal Administrative Law Judge Leff's
decision was denied.
Respondent's amended answer, filed March 18, 1974,
admitted that it had suspended Rueger on June 25, 1973,
and that it had discharged him on July 10, 1973; but it
denied that it had done so for the reasons set forth in the
complaint . It also set up the affirmative defense that the
Charging Party had filed grievances concerning his
suspension and discharge and that these grievances had
been settled pursuant to the collective -bargaining contract.
The issues raised by the amended answer came on for trial
before me on April 16, 17, and 18 , 1974, at Evansville,
Indiana . All parties , and the union , were represented; they
were afforded an opportunity to adduce evidence , cross-
examine witnesses , and argue on the facts and the law.
Briefs filed by the General Counsel and by counsel for the
Respondent have been considered.
For the reasons hereafter set forth in detail , I find that
the determination of the Charging Party's grievances by
Respondent and the Union is not entitled to be recognized
by the Board under its decision in Spielberg Mfg. Co., 112
NLRB 1080 ( 1955), and that , under the facts herein, the
Board should not defer to the grievance and arbitration
mechanism of the collective-bargaining contract in accord-
ance with its decision in Collyer Insulated Wire, 192 NLRB
837 (1971 ). On the merits, however , I find that the General
Counsel has failed to sustain the allegations of the
complaint and that it must, therefore , be dismissed.
Upon the entire record herein ,3 including my observa-
tion of the demeanor of the witnesses while testifying, I
make the following:
FINDINGS OF FACT
1. The parties
Respondent, a Delaware corporation, operates three
manufacturing plants in Evansville, Indiana. It admits that
it annually imports and exports, from the State of Indiana,
goods and materials valued at more than $50,000 and that
it is engaged in commerce within the meaning of the Act. I
so find.
The Union is not named as a party herein. It had a
collective-bargaining contract with the Company at the
times material herein and Respondent admits that it is a
labor organization. I so find.
2. Summary of events
The collective-bargaining contract covers the employees
at all three plants in the Evansville Division .4 The
Charging Party, however, was employed at Plant 1,
3 Typographical errors in the transcript of proceedings have been
corrected by order dated July 31, 1974.
The contract contains a three-step grievance procedure that may be
followed by reference to a board of arbitration . It also provides that
individual employees shall have the right to present grievances without
following the procedure set forth in the contract but it provides no
subsequent procedures for grievances so filed.
5 All dates herein , not otherwise designated , are 1973.
6 Rueger's grievance concerning the events that preceded his dispute
situated at Morgan Avenue and Reed Street, and almost all
of the events with which this case is concerned occurred at
that plant.
Immediately prior to, and on, June 25, 1973,5 Rueger
was employed on the crating line in Department 119 in
Respondent's Plant 1. The function of the crating line at
that time was to pack into cartons certain window air
conditioners produced in that plant.
Prior to June 25, the plant had been run in two shifts: the
first operated from 7 a.m. to 3:30 p.m. and the second from
3:30 p.m. until 11 p.m. A company decision was made to
operate the plant with only one shift beginning Monday,
June 25, and to close down the second shift as of the end of
Friday, June 22. The seniority system in the contract
required a merger of the hourly personnel of the two shifts
on the basis of seniority and this involved a series of
"bumpings," whereby employees with greater seniority
were retained over those with less seniority. The assign-
ment of management personnel, however, was not so
restricted and Harold Stinson, the foreman of Department
119 on the second shift, was appointed foreman of that
department on the first shift. Larry Breivogel, who had
been a second shift general foreman over an area that
included Department 119, was also transferred to the day
shift but not as a general foreman; he was assigned a
planning job.
There is no doubt that Rueger was late in reporting for
work on Monday morning, June 25, but how late he was is
in dispute. There is also no doubt that, sometime during
the morning, Stinson made some comments, to Rueger and
others on the line, about "getting along," and that Rueger
asked Stinson to call the union steward so that Rueger
could discuss something with him. The union steward for
Department 119, James Duvall, was busy all morning and
it was not until after lunch - which runs from 11 a.m. to
11:30 a.m. - that Duvall was able to visit Rueger at his
work station on the crating line. Duvall asked Stinson to
release Rueger from his work on the line so that they could
confer and Stinson assigned another employee to Rueger's
work for that purpose.
Rueger, Duvall, and Stinson engaged in some discussion
at Stinson's desk, during which Rueger asked to see his
work record and Stinson requested that it be brought down
from the general foreman's office on the floor above. There
was some conversation about the work record and, after
some time, the three of them went upstairs to the general
foreman's office where Stinson tried to get Rueger to
accept a termination notice. Rueger refused, other union
officials were summoned, Stinson suspended Rueger
indefinitely, and Rueger was escorted out of the plant.6
On June 27, in accordance with company practice in
cases of serious discipline, a "fact-finding" meeting was
held in the office of Leroy Bawel, the Company's labor
with Stinson (Grievance No. 25731) was filed for him by Duvall. The Union
carried it to the third step of the contractually prescribed procedure and
called it up for hearing on July 10; the Company consistently opposed it
and, on August 2, the union accepted the Company's position and dropped
it. A grievance against Stinson , similar to Rueger 's, was filed by employee
David L Chesser, who worked next to Rueger and was his alleged partner
in the job-combining scheme referred to herein . He was not disciplined in
any way for it.
WHIRLPOOL CORPORATION 185
relations administrator, who presided . Present with Rueger
were Union Steward Duvall, Chief Steward Larry Bab-
cock, and Shop Chairman Leon Hunt, who is also
chairman of the grievance committee . The company
personnel included Stinson, Bawel , Breivogel, and Plant
Superintendent Montgomery. Individual accounts of the
events of June 25 were given by Rueger, Duvall, and
Stinson and, at the request of the union, employees Chesser
and Frank Johnson were brought in and questioned
concerning their knowledge of the facts. There was no
decision made at this meeting concerning Rueger's status
and he continued on suspension.
A meeting to deal with Rueger's status was called for
July 10.7 Prior to the meeting, management representa-
tives, including Stinson, conferred with each other and
with union representatives, but not with Rueger, concern-
ing the resolution of Rueger's suspension . The Company
indicated its willingness to permit Rueger to return to duty,
but without any compensation for the period of his
suspension , converting that period, in effect, into a
disciplinary suspension. At the meeting, this solution was
proposed by Bawel; Rueger requested and was given an
opportunity to confer with the union representatives. In
this "caucus" Rueger insisted that he be compensated for
his time on suspension and the union presented that
position to the Company; the Company declined and
converted Rueger's suspension into a termination. Rueger,
through the union, presented a grievance, claiming that his
discharge was unjustified.8
Notwithstanding Rueger's termination, the Union con-
tinued to intercede for him with the Company and
indicated that Rueger would accept reinstatement without
backpay. The Company, accordingly, scheduled an addi-
tional meeting for July 26 to consider Rueger's status.
Again Bawel presided; he asked Rueger whether he wished
to return to the Company without backpay and Rueger
said he did; Bawel then turned to Stinson and asked
whether Rueger's former job on the crating line was
available; Stinson stated that the job had been posted
pursuant to the contract and claimed by an employee with
the requisite seniority. Stinson assured Rueger, however,
that there would be a job for him in Department 119 at the
same rate of -pay he had been receiving. Rueger asked for,
and was granted, an opportunity to confer with his union
representatives. He maintained his claim to his former job
and the union representatives so informed the company
officials. They rejected Reuger's claim and his status was
not changed.
3. The contentions of the parties
The General Counsel and Rueger contend that his
suspension on June 25 and his discharge on July 10 were
r This was a regular meeting between union and company officials to
deal with management-employee disputes. The union placed Rueger's
grievance on the agenda at step 3 for this date.
8 The grievance (No. 19556) was rejected in steps I and 2 by the
Company on July I I and 12, respectively . On July 12 the union requested
that it be discussed at the third step . It was so considered at a meeting on
September 6 and the Company again rejected it. On September 25 the union
submitted this grievance , with 27 others; for arbitration . On February 6,
1974, the Union withdrew its request for arbitration.
9 In its pretrial motion to dismiss , based on both the Spielberg and
both based on his action in filing a grievance against
Stinson's hostile and arbitrary attitude toward the employ-
ees on the crating line; that, since this effort by him was for
mutual aid and protection, it was activity protected by the
Act; and that respondent consequently violated Section
8(a)(3) and (1) thereof.
Respondent contends: (1) that Rueger's suspension and
discharge were for cause and not in reprisal for protected
activities; (2) that the dispute has been determined through
the contract grievance machinery governing the Charging
Party and the result should be recognized by the Board
under the doctrine of Spielberg Manufacturing Company,
112 NLRB 1080 (1955); and (3) that the Board should
withhold exercise of its jurisdiction in favor of the
grievance machinery of the contract in accordance with its
decision in Collyer Insulated Wire, 192 NLRB 837 (1971).9
4. Discussion and conclusions
a. Preliminary
Although Respondent's argument does not appear to
draw a clear distinction between the rules of decision
stated by the Board in Spielberg Manufacturing, supra, and
Collyer Insulated Wire, supra, there is one.i° In applying the
Spielberg rule, the Board tests the disposition which the
parties have already made of their dispute. In determining
whether to apply the Collyer principles, on the other hand,
the Board considers the contract commitments and
mechanisms which the parties have provided, through
which they can resolve their dispute. In each case to which
the Collyer doctrine is applied, moreover, the Board retains
jurisdiction so that it can, when the contractual process has
been completed, judge the result in accordance with the
standards set forth in Spielberg. It appears, therefore, that
the Spielberg rule is one of retrospective analysis and
consideration of the resolution of the dispute reached by
the parties after the use of the contractual procedures,
while the Collyer rule is one of self-restraint pending the
parties' effort to resolve their dispute by the procedures
available to them.
b. The Spielberg doctrine
In Spielberg Manufacturing, supra, the issue before the
Board - i.e., whether certain strikers had forfeited their
right to reinstatement by misconduct on the picket line -
had been referred to an impartial arbitrator under the
strike-settlement agreement and he had ruled them
ineligible for reinstatement. The Board, declaring that
.. the proceedings appear to be fair and regular, all
parties had agreed to be bound, and the decision of the
arbitrator is not clearly repugnant to the purposes and
policies of the Act," held that "the desirable objective of
Collyer doctrines, and in its application to the Board for leave to appeal
from Judge Leff's denial of its motion, Respondent stated that "at all times,
respondent has been willing to process the grievances to impartial
arbitration."
10 The Board, in Collyer, p. 841, refers to the many cases in its history
involving grievance machinery and states:
Those cases reveal that the Board has honored the distinction between
two broad but distinct classes of cases, those in which there has been an
arbitral award , and those in which there has not.
186 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
encouraging the voluntary settlement of labor disputes will
be best served by our recognition of the arbitrator's
award." Accordingly, it dismissed the complaint.
In each of the many cases in which the Board has
followed Spielberg, it has confined itself to inquiring
whether the parties' resolution of their dispute comported
with the standards set forth. But in each such case the
resolution under examination was a binding one reached
by an impartial tribunal. Although, as Respondent notes, it
is not necessary that the award, to be recognized, be that of
an arbitrator,11 it is necessary that there be an award by a
tribunal whose impartiality and procedures may be
examined for compliance with the criteria of Spielberg. In
this case it is undisputed that the full range of the
mechanism for the determination of the dispute has not
been utilized and there is no award that may be examined
for its conformity with Spielberg requirements. According-
ly, as the Board wrote, in Pontiac Motors Division, General
Motors Corporation, 132 NLRB 413, 415 (1961):
No impartial arbitrator has ruled in this case. A
grievance, carried through step 2 of a grievance
procedure, is hardly a substitute for an arbitration
proceeding.12
From the foregoing I conclude that the Board's doctrine
in Spielberg is not applicable to this case and that the
defense based on that doctrine must be rejected.
c. The Collyer doctrine
While the Board, in Collyer, established its policy of
deference to the contractual machinery for resolution of
disputes over interpretation of the contract , the detailed
criteria for the application of that policy were spelled out
in the decisions issued on July 18 and 31 , 1972, which
appear as the first seven decisions in Volume 198 of the
Board's Decisions. 13
Criteria contained in four of these decisions have
application to this case . In National Radio, the Board held
that, where the contractual machinery for the resolution of
disputes might adequately determine the propriety of
conduct alleged to be violative of Section 8(aX3), the
Board will as a matter of policy defer the exercise of its
jurisdiction pending the resolution thereof by that method.
In Southwestern Bell, involving company action affecting
the seniority of the represented employees , and Appalachi-
an Power, involving the employment status of a union
representative and the propriety of his activities as such
representative , the Board also deferred to the grievance
and arbitration machinery notwithstanding the unions'
II In Denver-Chicago Trucking Company, Inc., 132 NLRB 1416 (1961), it
appeared that the contract provided for a permanent,lomt state committee,
consisting of an equal number of representatives of the employers and the
unions, whose function it was "to settle disputes which cannot be settled
between the employers and the local unions in accordance with the
procedure established . . ."; that its decision should be reached by majority
vote; and that its decision "shall be final and binding on both parties." The
Board found that the procedures in the case met the requirements of
Spielberg in that they met "normal standards of sufficiency , fairness and
regularity" and it recognized the resolution reached . See also : McLean
Trucking Co., 202 NLRB 837 (1973), and cases cited therein.
12 See also Evans Products Company, 171 NLRB 1002 (1968).
is National Radio Company, Inc., 198 NLRB 527; Kansas Meat Packers, a
expressed refusal in each of those cases to proceed
thereunder . In this case it is not disputed that the Union
has declined to prosecute Rueger's grievance over his
discharge to the contractual limit, but I find an important
difference between those cases and this one which I believe
determinative in leading to the conclusion that deference
to the contractual machinery would not be appropriate in
this case . In both of those cases, the union was the charging
party and its own interests, as an organization or as the
collective-bargaining representative for all the employees,
were at stake . Its refusal , therefore, to comply with the
Board's directive to proceed under the contractual proce-
dure, would deprive them of any means of redress. By the
Board's dismisal of the complaint pending resolution of the
controversy through the procedure established for that
purpose, the union is compelled , if it desires a resolution of
the dispute , to utilize those procedures . Here, on the
contrary, only Rueger's interest is involved and there is no
compelling incentive for the Union to rescind its abandon-
ment of Rueger's grievance.
A second relevant consideration follows from the
foregoing. The Union's abandonment of Rueger 's griev-
ance - together with some , but not all, of those pending
when-contract negotiations commenced in February 1972
- carries a strong indication that the Union expected to
gain some benefit by such abandonment and there is a
substantial possibility that the Union's interests are now
antagonistic to Rueger 's. In Kansas Meat Packers, the
Board held that it would be inappropriate to subject the
interests of the charging party-discriminatees to "an
arbitral process authored, administered, and invoked
entirely by parties hostile to their interest." 14
A further important, and apparently insurmountable,
obstacle to deferring this dispute to the contract grievance
machinery is the allegation of the complaint herein that a
major - if not the sole - cause for Rueger's suspension
and subsequent dismisal was his action in filing his
grievance on June 25.15 As the Board stated in North Shore
Publishing Co., 206 NLRB 42 (1973):
In the instant case the complaint contains a specific
allegation that Kabitzke was discharged for invoking
the very grievance procedure to which Respondent
would have us defer. We cannot entrust such a
complaint to a procedure the integrity of which is
directly challenged by the allegations of the complaint
itself . For the reasons set forth in Ryerson [199 NLRB
461 (1972)], therefore, we do not believe this to be an
appropriate case for deferral under Collyer. [Footnote
omitted.]
Division of Aristo Foods, Inc., 198 NLRB 543; Malnte of Wisconsin, Inc., 198
NLRB 241; Brotherhood of Teamsters 8 Auto Truck Drivers Local No. 70
(National Biscuit Co.), 198 NLRB 552; Peerless Pressed Metal Corporation,
198 NLRB 561; Southwestern Bell Telphone Company, 198 NLRB 569; and
Appalachian Power Company, 198 NLRB 576.
14 1 reach this conclusion notwithstanding the fact that Rueger, unlike
the discnmmatees in that case , continued to request the union to press his
grievance to arbitration.
is The complaint contains two allegations of Respondent's reason for
suspending and discharging Rueger: (1) that he and Duvall engaged in
concerted activity and (2) that he and Duvall prepared, filed , and processed
grievances and sought redress of them.
WHIRLPOOL CORPORATION 187
To the same effect is the Board's decision in Diversified
Industries, a Division of Independent Stave Company, 208
NLRB 233 (1974).
For the foregoing reasons, I conclude that it would be
inappropriate to defer the issues in this case to the contract
grievance machinery and that it must be decided on its
merits.
(d) Rueger's suspension and discharge
Although there is much testimony in the record by
company and union representatives concerning the meet-
ings of June 27 and July 10 and 26, the sole question of fact
to be determined herein involves the activities of Rueger
and Stinson on June 25.
Preliminarily, it is to be noted that there are several
matters which are not in dispute. The collective-bargaining
contract in force between the Company and the Union had
been entered into as of February 3, 1971; Stinson testified
that he was a union steward in 1968 when, presumably,
there was a similar contract in effect. There was, therefore,
at least 5 years of contract relationship. 16 Bawel, who had
been the Company's labor relations administrator for 6
years, testified that, as far as he knew, there had never been
an unfair labor practice found against the Company.17 The
record, moreover, is entirely free of evidence of union
animus and, as stated, Stinson had been a union steward in
the same area before becoming a supervisor.
The record shows no particular union activity by
Rueger; it also shows, without dispute, that the union
officials, from Duvall through Hunt, showed no animosity
toward Rueger and, to the point where they accepted the
Company's position on each of Rueger's grievances and
declined to carry them further, there is no evidence of any
reluctance on their part in presenting them or giving effect
to Rueger's wishes. The meeting of July 26, at which
Rueger was offered reinstatement for the second time, was
the result of efforts by union officials beyond the grievance
procedure. In reaching its decisions to drop those griev-
ances, moreover, there is no evidence that the Union acted
other than in good faith, albeit in the Union's larger
interest.18
In addition to these background matters, there can be
little dispute that the early morning of June 25, when the
day shift was required to absorb employees from the
discontinued second shift through exercises of seniority
with consequent "bumpings," must have been considerably
less routine than the customary commencement of work.
Stinson testified that there were 14 or 15 employees from
the second shift whose seniority entitled them to positions
16 The contract in force during the events involved in this case expired
February 17, 1974, and, as shown in the record , a strike began that day that
was current during the trial . According to news dispatches , of which judicial
notice is taken , the strike has ended.
17 The General Counsel did not controvert this statement My personal
examination of the Board 's index and other indices of its Decisions shows
only one case involving a Whirlpool plant in this one (126 NLRB 1117
(1960)), involving a plant at Marion , Ohio, and decided in 1960, a violation
of Sec 8 (aX2) in the formation of a committee was found and allegations of
violation of Sec 8(axl) and (3) were dismissed As far as the Evansville
plant is concerned , therefore , the statement is correct . For the enure system
the record is remarkably good
is Hunt testified that union officials had investigated the incident and
felt that , on the facts , the Union could not win an arbitration proceeding.
on the day shift and that many of them did not know
which jobs they were to perform or how to perform them.
Nevertheless, Stinson also testified that the line started
only 2 or 3 minutes later than its scheduled starting time of
7 a.m. Chesser, however, testified that the line started at
7:15 and, in view of the admitted confusion, I accept his
testimony as a more accurate statement.
Rueger first testified that he arrived at his work station at
only 1 minute after 7 a.m. and that he punched his
timecard on his arrival at the plant. He further testified
that he amved at the crating line as it "was just getting
ready to go" and that he started stapling the cartons as he
had been doing the previous week. When shown his
timecard, however, Rueger conceded that it had no time of
arrival stamped on it, but he insisted that he had clocked
in. He then changed his story to say that he was unable to
find his timecard and, several times during the trial, he
gave different accounts of his checking-in process.19
Although the determination of this case does not require a
finding on the precise time of Rueger's arrival at his work
station, Rueger's many changes in his testimony in this
area do reflect on his reliability as a witness. Chesser, who
worked next to Rueger and only about 5 feet away from
him, testified at one point that Rueger arrived that
morning about a minute after the line had started and at
another point that Rueger was there when it started.
Whether Rueger was there just before or just after the line
started, Chesser's other testimony, that there was some
confusion in job assignments and that the line started at
7:15 indicates that Rueger was probably not there when
some of the job shuffling was going on.
Just as he began stapling, Rueger testified, Stinson came
to him and stated, in an angry tone, that in his opinion
Rueger was late; that he continued by saying that he was
"going to straighten this thing out," that he would "not get
along with the people on this line but the people on this
line would get along with him or else there would be new
people on the line on the job." Rueger testified that he told
Stinson to tell it to the other people on the line, but Stinson
just turned around and went back to his desk.20 Rueger
testified that Stinson was speaking to him but that there
were other employees - Johnson on his right about 5 feet
away and Chesser on his left about 4 feet away - within
hearing distance. About 20 minutes after this conversation
with Stinson, Rueger testified, he told Stinson that he
wanted to see his union steward, but Duvall, the union
steward, did not get to see him until after the lunchbreak
was over.
Chesser corroborated Rueger's testimony that Stinson
He further testified that, in reaching their decision not to press the matter to
arbitration , they also considered the fact that the Company had twice
offered to take Rueger back but that he had refused those offers
10 There is no official record of Rueger's arrival There was undisputed
testimony that any employee who amved at the gate after 7.02 a m. would
normally be checked in by a security guard who would make a record of
such late arrival , but the Company was unable to produce such record for
Rueger on June 25 There was also evidence , however, that at that time
employees were able to slip into the plant through an entrance to a first aid
area.
20 Stinson 's desk, with a small (30 x 48 inches) table immediately in front
of it, was located about 20 feet away from the point on the line where
Rueger operated the stapler. Other employees were on the line to Rueger's
right and left
188 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
had made the foregoing statements , but he thought that
they were directed to all the employees on the line. For this
reason , early that morning and through Duvall , he filed a
grievance on the basis of them . It was about 20 minutes
after he had filed his grievance , Chesser testified , that he
heard Rueger tell Stinson that he wanted to see the union
steward.
Stinson conceded that he had made statements about
.,not getting along" with the employees, but testified that
he made them in response to remarks by some employees
that , if he wanted "to get along" with the employees, he
should permit them to continue their former practice
whereby two employees combined their jobs so that one
employee could perform both jobs while the other took a
break and they could alternate in working . Both Rueger
and Chesser, while admitting that they had previously
combined their jobs in that manner, denied that they did so
that morning or that there was any conversation with
Stinson about the practice before Stinson made these
statements.21
Johnson , who Rueger said was about 5 feet to his right,
testified that on June 25 he was working 25 or 30 feet from
Rueger ; that early in the morning he heard Stinson, at his
desk, say to Chesser and another employee, whom he could
not identify, that he was "not going to get along with
anyone ." While these accounts are somewhat different
from each other , no finding concerning them is necessary
for the decision of this case.
Sometime after the end of the lunch recess - Stinson
testified that it was 12:05; Rueger "thought" it was about
12:20; and Duvall testified that it was about 1 p.m. -
Duvall came to Rueger 's work station and asked him
"what the problem was." Rueger said that he wanted to see
his work record ; Duvall asked him why, and Rueger, after
telling Duvall that Stinson had "approached him in an
agressive manner" that morning , said that he wanted to see
whether Dallas Collins , who had been the foreman of the
crating line until the previous Friday, had removed a
reprimand from his work record in accordance with his
promise to do so . Rueger asked Duvall to have Stinson
assign a replacement for him on the line so that he and
Duvall might consult together . Duvall made the request
and Stinson complied by having a sweeper take over
Rueger's task . Rueger and Duvall then went to Stinson's
desk . It is from this point forward that the accounts of
Rueger and Duvall differ widely from that of Stinson.
Rueger testified that he asked that his work record be
sent down from the office of the general foreman on the
floor above ; that Stinson first said he would call for it
'when he got around to it' " that Duvall made the same
request and, when he received the same answer, asked
Stinson whether it would be all right if he and Rueger went
upstairs to get it . At this, Rueger testified , Stinson said he
would get it and telephoned the office of the general
foreman, asking that it be sent down . Rueger testified that,
while they were waiting for the records to be brought
down, he asked Duvall to prepare a grievance against
21 Both Rueger and Chesser testified that , on the previous Friday,
Stinson had made some remarks to them about how "things would be
different" when he took over on Monday . Stinson denied having made
those statements but testified that he had been told beforehand that it was a
Stinson for him on the basis of Stinson 's "harassment" of
him that morning ; that Duvall answered that he thought
Rueger had a "just grievance" and started to fill out a
grievance form.
Duvall's testimony corroborated that of Rueger concern-
ing these preliminaries and he further testified that, during
them, Rueger said that Stinson's approach to him that
morning had no basis and that he thought Stinson was
"picking on him"; that he, Duvall , turned to Stinson and
said that, if it had been a mistake to make the statement
about "not getting along," he, Stinson, could simply
apologize for it and the matter could be dropped. Duvall
testified that Stinson said that he was the foreman and
what he said "still went."
Stinson 's testimony was that, when he sent a replacement
to relieve Rueger, Duvall and Rueger came to his desk and
conferred alone for 5 or 10 minutes , that at the end of that
time he joined them and Rueger wanted to know why
Chesser had been moved off the job as his helper ; that he
told them he had discussed the same problem with Chesser
and Duvall earlier that day and that management was in
the process of checking out how the two jobs should be
performed ; and that if it should be determined that it was
appropriate to have two people on the job he would "stand
corrected ." Stinson further testified that he then told
Rueger that the "problem had been taken care of with Mr.
Chesser and Mr. Duvall" and that he should return to his
job. He testified that Rueger then demanded "ample time"
for private discussion with the steward22 and that he left
them alone for about 10 minutes . He was then "sum-
moned" back to the table, he testified, and Duvall said that
Rueger wanted to see his work record and wanted him to
accompany them to the office to look at it. Stinson testified
that he answered that he was very busy but that, as soon as
possible, he would try to get the records and he asked
Rueger to return to his job while he had a short time to act
on the problems he had before him, but Duvall insisted
that Rueger had the right to see his record ; Stinson said he
would call the office and try to get somebody to bring it
down . He testified that he then called the office , talked
with Breivogel and, in 6 or 7 minutes , Breivogel brought it
down. Breivogel testified that it was between 12 and 12:30
when he received the call from Stinson and brought
Rueger's work record downstairs.
The next segment of the episode consists of Breivogel's
delivery of Rueger's work record to Stinson and the events
immediately following it. The separate accounts, by
Rueger and Duvall on the one hand , and by Stinson and
Breivogel on the other , are as conflicting as if each dealt
with a totally different event.
Rueger and Duvall testified that, about 6 to 8 minutes
after Stinson called for the work record , Breivogel brought
it down and handed it to Stinson at the table where all
three of them were ; that Breivogel said nothing and went
back upstairs . Rueger testified that, while Stinson was
calling for the record to be brought down , he told Duvall
that he wanted to file a grievance over Stinson's "harass-
"trouble area."
22 The contract provides that, when an "aggrieved employee" requests
an opportunity to consult with his steward , "The employee and steward
shall have ample time and opportunity for private discussion."
WHIRLPOOL CORPORATION
ment" of him that morning; that Duvall said he had a valid
grievance and began to write out a grievance form. Rueger
testified that, as soon as Stinson received the record, he
began writing on it, saying that Rueger had been late that
morning. Rueger also testified, however, that both he and
Duvall asked Stinson what he was writing but that Stinson
did not answer them. According to Rueger, Stinson was
angry and he did not know why, but he testified that
Stinson made a remark about a grievance and said "Let's
go to the office." Rueger testified that Duvall then again
said that Rueger had a legal grievance and that he thought
that Stinson was trying to get back at Rueger because he
requested the filing of a grievance.
Duvall's testimony corroborated Rueger only in part. He
testified that, as he was talking to Stinson about the "not
getting along" statement he had made that morning,
Breivogel brought down Rueger's work record; as soon as
he received it, Stinson began to write on it; they asked
Stinson what he was writing and Stinson answered that
Rueger had come in 1 minute late that morning and that he
was going to put it on his record. Duvall testified that he
told Stinson that, in his opinion, that was just a reprisal for
Rueger's having asked for his steward and that it was
wrong of him to do that. It was while Stinson was writing
on the work record, Duvall testified, that Rueger asked
whether he thought he, Rueger, had a grievance and that
he answered that he was obligated to write one out if
Rueger wanted it; that Rueger said he did; and that he,
Duvall, started to write one out. Duvall further testified
that Stinson asked him what he was doing, that he
answered that he was filling out a grievance form, and that
he asked Stinson whether the matter couldn't be worked
out there, "at floor level," whereupon Stinson then said,
according to Duvall, several times and increasingly loud,
"Let's go upstairs!"
Stinson agreed that Breivogel brought the record down
about 6 or 7 minutes after the request was made. When
Breivogel came down , Stmson testified , he was not at his
desk but he was on the line and Breivogel handed it to him
there. With the record, Stinson testified, he went back to
the table. He showed it to Duvall, who asked him about the
reprimand entry by Collins; he answered that only Collins,
who had made the entry, could remove it. He then told
Rueger that he, Rueger, had been late that morning and
had received an oral warning which he was now posting in
his record . Stinson testified that Duvall was not writing a
grievance during this conversation. Stinson also testified
that he then returned the record to Breivogel, who had
been standing nearby, and asked him, to wait a short time
so that he could also take back to the office the 12:30
production count; and that Breivogel waited and took the
production figure back with him. Breivogel corroborated
Stinson's statement that Stinson received the record while
away from his desk but, although he testified that he did
not see either Rueger or Duvall, he testified that he was
downstairs "10 minutes at the most" and he made no
23 Hope testified that at that time Stinson came into the office and said
he needed help on a problem with Rueger ; that Rueger had asked for his
union steward and had refused to go back to work. In response to his
questions , Hope further testified , Stmson said that Rueger was, at that time,
"lying on the table down there by my desk " and that he had asked Rueger
189
reference to any request by Stinson that he wait for the
12:30 production count.
The testimony of Rueger and Duvall states that they
were in constant contact with Stinson from the time they
first came to his desk until they went upstairs with him at
his insistence, and that this period of time was no more
than 10 to 15 minutes. Stinson, however, testified that
when they first came to his desk he left them alone for
from 5 to 10 minutes; he came back and had his principal
discussion with them about Rueger and Chesser combining
their jobs; he then left them alone pursuant to their
demand for "ample time for discussion" for 10 minutes; he
returned and had the discussion about getting Rueger's
work record; he called for it and, as all witnesses agreed, it
took more than 6 minutes to arrive; and they then
discussed the Collins reprimand before they began to
discuss Rueger's lateness that morning. After the comple-
tion of this conference, Stinson testified, he gave the work
record back to Breivogel, asked him to wait for the 12:30
count, gave that count to him, and returned to his desk
after 15 to 20 minutes, finding both Rueger and Duvall still
at the table. He testified that he repeated his direction to
Rueger to go back to work and again left the table for
about 10 to 12 minutes. It was during that time he testified,
that he telephoned the general foreman's office, asked for
Cannon, and, when told Cannon was away, talked with
Breivogel. Stinson testified that he told Breivogel that he
had a man who wouldn't go back to work and Breivogel
said he would have Cannon come down.
Breivogel corroborated Stinson's testimony that he called
the office, putting the call at 1 p.m. or shortly thereafter,
that he asked for Cannon and said he had a problem with a
man who refused to go back to work. Breivogel testified
that he told Stinson he would come downstairs shortly;
that he started down but met Cannon and they agreed to
go back to- the office and find out what the current
situation was; and that as they returned to the office they
found Rueger and Duvall standing outside the office. They
went into the office and, Breivogel testified, he asked
Stinson what had happened; Stinson said he had been in
touch with Hope, the superintendent, who told him to
release the man who refused to go back to work. The
management people, according to Breivogel, went into the
general' foreman's office and Rueger and Duvall went into
the adjoining office. Hope corroborated Stinson's testimo-
ny, about requesting instructions and fixed the time thereof
at 1:15 p.m 23
Rueger and Duvall testified that when they reached the
upstairs office, following Stinson carrying Rueger's work
record, Stinson picked up from the desk a form which he
held out to Rueger and asked him to sign. Rueger, at the
trial, identified the form, entitled "Change in Employee
Status"; it showed Rueger's clock number and his date of
seniority; it had a check in the box marked "Release"; it
had written, under "Reason for Separation," the words
"Shop Rule - 1T'24 and it was signed by Stinson both as
originator and foreman.
`'several times" to go back to work.
24 The shop rules are part of the contract Its introductory paragraph
states that "The performance of any of the following acts shall constitute an
infraction of shop rules " and the closing paragraph states that. "The
commission of any of the above infractions will be sufficient grounds for
(Continued)
190 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Stinson testified that Hope told him to go back
downstairs to try to get the man to go back to work and, if
he refused , to release him. Stinson testified he did so,
telling Rueger to go back to work or be released, but
Rueger refused to go to work and both Rueger and Duvall
refused to go to the general foreman 's office without
additional union representation . Stinson testified that this
refusal was at 1:30 ; that he took the 1:30 production count
and returned to the general foreman 's office where, at 1:33,
he prepared the status change form . At this point, Stinson
testified , Duvall and Rueger appeared outside the general
foreman 's office ; Duvall asked permission to call Babcock
from the inspection office next door ; Stinson gave him
permission and then held out the status change form to
Rueger, asking him to sign it and hand over his badge.
Rueger refused.
When he reentered the general foreman 's office, Stinson
testified , Breivogel and Cannon were there ; Breivogel
asked what type of form he had used and, after looking at
it, said that the proper form would be one entitled
"Reprimand" and that it should have written on it
"indefinite suspension ." Stinson testified that he crumpled
up the status change form and dropped it in the
wastebasket ; that he asked Breivogel to prepare the
reprimand form ; and that, when this was done , he signed
it.
Rueger admitted that, when Babcock reached the office,
Stinson told him that Rueger had refused to go back to
work . He also testified that , when Babcock asked what was
going on and suggested they talk it over , Breivogel said
that he, Rueger , and been released and should leave the
building. Rueger testified that the entire conversation in
the office took about 10 minutes and that he left the
building about 2 minutes later . The door pass which
Rueger used in leaving the building was prepared by
Stinson and states that Rueger left his job at 1:48. A
timeclock stamp on it , presumably made at the exit , is 2:15
p.m.
The only other testimony concerning the incidents at
Stinson's desk were given by employees Johnson and
Chesser, Johnson testified that he went on a 30 -minute
break during the time when Duvall and Rueger were at the
table next to Stinson's desk ; that he saw them there 5
minutes into his break as he went for a soft drink ; that he
came back with his drink and stood a few feet away for the
remaining 25 minutes . He did not testify to any conversa-
tions but testified that he saw Rueger sitting on the table,
Duvall writing, and that Stinson was not there . Shortly
thereafter, he testified, he heard Stinson say "Let's go
upstairs" and he saw the three of them go up . Chesser
testified only that Rueger was off the line and at Stinson's
table for 20 to 25 minutes and that , although some of the
discussion, particularly Stinson's demand that they go
upstairs , was loud, he did not hear Stinson tell Rueger to
go back to work . He admitted, however, that he did not
hear all that was said.
The proceedings at the fact finding meeting of June 27
disciplinary action ranging from reprimand to immediate discharge,
depending upon the seriousness of the offense in the judgment of the
management." Rule 17 reads : "Insubordination and refusal to perform
work assigned."
ad Under the facts as stated by Rueger and Duvall , of course, Stinson
and the meetings of July 10 and 26 do not resolve any of
the deep contradictions between the two accounts.
On the basis of Rueger's testimony that the incident
started at 12:20, when Duvall first came to see him, it
would have been necessary that he be at Stinson 's desk for
at least an hour before going upstairs because he also
testified that he was in the office there for only about 10
minutes before leaving the plant and he was checked out at
2:15. Contrary to the argument of the General Counsel, the
time schedule testified to by Stinson more nearly fits his
testimony than the one stated by Rueger fits his testimony.
Rueger's testimony had many obvious inconsistencies
and he changed his story several times , particularly about
his reporting for work that morning . It is not possible,
therefore , to accept his testimony as an accurate account of
the events . Moreover, Rueger testified that he, Duvall, and
Stinson were at Stinson's table during their entire discus-
sion and that they went up to the office together . Duvall's
testimony is similar. They also testified , however, that as
soon as they entered the office, Stinson attempted to get
Rueger to accept the employee status change form . If their
testimony were accepted , it would be difficult to explain
when this form was prepared by Stinson. In his testimony,
however, Stinson claimed that more than once he left the
table where Rueger and Duvall were sitting , that he
obtained advice in dealing with the problem that Rueger
was presenting to him, and that, during his last interval
away from the table before demanding that they go
upstairs, he prepared the form in the office, obtaining both
the blank and the information concerning Rueger 's badge
number and hiring date from the file . If the account of
both Rueger and Duvall were credited, there would have
been no opportunity for Stinson to obtain and prepare the
form25 and, therefore, I accept Stinson's testimony that he
was away from his desk for one or more intervals while
Rueger and Duvall were there.
It is also important to note a serious conflict between the
testimony of Rueger and that of Duvall concerning their
conversation with Stinson and with each other at the time
when Rueger's work record was first brought to the table
and when Duvall began writing up the grievance for
Rueger. As outlined above, Rueger testified that Stinson,
although he refused to answer when they asked him what
he was writing, did say something about a grievance and
that he followed that by demanding that they go upstairs.
Rueger also testified that Duvall made the statement that
he had a valid grievance based on Stinson's statement
about "not getting along" and that Duvall accused Stinson
of trying to get back at Rueger because he was filing one.
The testimony of Duvall , however, varies considerably in
its details from that of Rueger concerning these exchanges:
he testified that , when Stinson was making the lateness
note on Rueger's work record , Rueger asked him, Duvall,
whether he had a grievance and that his answer was that, if
Rueger wanted him to prepare and file a grievance, he was
obligated to do so. Duvall further testified that Rueger
then said that he wanted to file a grievance and that he,
could have taken Rueger's badge number and date of hiring from Rueger's
work record, which, according to them , he still had in his possession, but it
would not account for the presence of the blank form , and they did not
testify that he prepared any form while he was with them.
WHIRLPOOL CORPORATION 191
Duvall, began to prepare one. These conflicts, minor
though they might be in a different context, lead me to
conclude that Rueger adjusted his testimony to the legal
theory of the complaint in this case and thereby further
undermined his credibility as a witness . This determina-
tion, however, does not mean that I accept the testimony of
Duvall without reservation : on the contrary, I find it
difficult to credit in view of the time frame above set forth.
Nor does it mean that, because I accept some parts of
Stinson's testimony , particularly those which set forth the
timing of these events , that I regard his entire testimony as
accurate.
The many unresolvable conflicts in the testimony of
Rueger , Duvall , and Stinson make it impossible to
determine with the requisite accuracy just what happened
between the time that Duvall first spoke with Rueger at his
work station and the time that all three of them, with
others , were in the upstairs office . It is impossible to accept
in full the testimony of any of them and the many
contradictions in Rueger's testimony preclude acceptance
of his account of the statements immediately preceding
Stinson's demand that they go to the office. While it also
cannot be found as a fact that Rueger was guilty of
insubordination in refusing to go back to work, it is clear
that Department 119 was in somewhat of a turmoil that
day and that Rueger's contentiousness did nothing to ease
the situation . Stinson's conduct vis-a-vis Rueger appears
also not to have been distinguished by patience or
outstanding judgment . His testiness was undoubtedly
combined with Rueger's doggedness, but any conclusion
concerning how these two elements may have combined to
bring to an end Rueger 's employment by the Company
would have to be based on speculation. In view of the
absolute lack of evidence of union animus or of any other
action taken by the Company with respect to the other
grievances filed that day over the same alleged statements
by Stinson, there is insufficient evidence to justify an
se In the event no exceptions are filed as provided by Sec . 102.46 of the
Rules and Regulations of the National Labor Relations Board , the findings,
conclusions, and recommended Order herein shall, as provided in Sec.
inference that the discipline and discharge of Rueger, by
whatever considerations it may have been motivated, was
based, in whole or in part , on Rueger's union or concerted
activity in filing a grievance under the collective-bargain-
ing contract.
There is also insufficient evidence to justify a finding
that Respondent committed any of the other acts alleged in
the complaint as unfair labor practices . It appears from the
foregoing that the General Counsel has failed to prove, by
a fair preponderance of the evidence , that Respondent has
committed any of the acts alleged in the complaint as
unfair labor practices and it must, therefore, be dismissed.
Upon the foregoing findings of fact and upon the entire
record herein, I reach the following:
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The union is a labor organization within the meaning
of Section 2(5) of the Act.
3. At the time of the activities set forth in the Decision,
Harold L. Stinson, Larry J. Breivogel, Leroy P. Bawel,
Albert R. Hope, and Charles Mongtomery were supervi-
sors of Respondent within the meaning of Section 2(11) of
the Act and acted as its agents.
4. The evidence herein is insufficient to support a
finding that respondent committed any of the unfair labor
practices alleged in the complaint.
5. The complaint herein should be dismissed.
Upon the foregoing findings of fact, conclusions of law,
on the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER26
The complaint herein is hereby dismissed.
102.48 of the Rules and Regulations , be adopted by the Board and become
its findings, conclusions , and order, and all objections thereto shall be
deemed waived for all purposes.