Guardian Industries Corp.

National Labor Relations Board - Board Decisions

Apr 25, 1974

210 N.L.R.B. 184 (N.L.R.B. 1974)

184 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Perri aglass Division, Guardian Industries Corp. and
Richard Frey. Case 8-CA-7454
April 25, 1974
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND JENKINS
On November 28, 1973, Administrative Law Judge
Almira Abbot Stevenson issued the attached Deci-
sion in this proceeding. Thereafter, the General
Counsel filed exceptions and a supporting brief, the
Respondent filed cross-exceptions, a brief in support
thereof, and a brief in answer to the General
Counsel's exceptions.
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
briefs and has decided to affirm the rulings, findings,
and conclusions of the Administrative Law Judge
and to adopt her recommended Order.
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.
DECISION
STATEMENT OF THE CASE
ALMIRA ABBOT STEVENSON, Administrative Law Judge:
This case was heard at Toledo, Ohio, September 6 and 7,
1973. The original charge was filed by the Charging Party
January 26 and served on the Respondent January 29,
1973; an amended charge was filed by the Charging Party
June 13 and served on the Respondent June 14, 1973. The
complaint was issued June 14, 1973. The issue is whether or
not the Respondent discharged employees Thomas A.
Crandall, Jessie Rodriguez, Thomas E. Roberts, and
Richard Frey January 18, 1973, because they engaged in
protected concerted activities, in violation of Section
8(a)(1) of the Act. For the reasons explained below, I
recommend that the complaint be dismissed.
Upon the entire record, including my observation of the
demeanor of the witnesses, and after due consideration of
the briefs filed by the Respondent and the General
Counsel, I make the following:
FINDINGS OF FACT AND CONCLUSIONS OF LAW 1
1. JURISDICTION
The Respondent is a Delaware corporation engaged at
its plant in Millbury, Ohio, in the manufacture of
automotive and architectural glass . The Respondent
annually ships finished goods valued in excess of $50,000
from its Millbury, Ohio, plant directly to points outside the
State of Ohio. The Respondent admits, and I conclude,
that it is engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
11. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
The Respondent's production and maintenance employ-
ees at the Millbury plant were covered during the period
involved by a union-security agreement between the
Respondent and United Glass and Ceramics Workers of
North America, AFL-CIO-CLC, Locals 429 and 144,
herein referred to as the Union, effective July 8, 1970, until
July 8, 1973. That contract contained the following
provisions:
Art. 1.4 No Lockout-No Strike. Since adequate
provisions have been made in this Agreement for the
settlement of all disputes that may arise between the
parties, it is agreed that, for the duration of this
Agreement, there shall be no lockout on part of the
Company, nor any strike, stoppage, slow down, or
other interruption of work by the Union or any of its
members.
Art. 5.1 Grievance Procedure. In order to promote
and maintain the proper relationship between the
Company and the Union, all complaints and griev-
ances must be handled according to the outlined steps
below:
There followed a five-step grievance procedure culminat-
ing in final and binding arbitration.
Posted in the plant were the Respondent's plant rules
under the heading, "Violators of the following major rules
are subject to immediate discharge." Among such posted
rules were the following:
2. Employees are not to leave their jobs, during
working hours, without permission from their supervi-
sor.
8. Refusal to obey managements [sic] instructions.
A total of 20 to 30 employees, including all the
employees involved in this case, worked in the prefurnace
department on the second shift which began at 3:30 p.m.
Michael Braun was plant superintendent of the second
shift. Until January 18, 1973, Kenneth Smith was foreman
of the second shift of the prefurnace department. There
were seven or eight production lines in the department.
Each line was engaged in cutting glass of a different size,
I The facts are undisputed except where indicated.
210 NLRB No. 39
PERMAGLASS DIV., GUARDIAN INDUSTRIES CORP.
and working at most, in the order in which they worked on
the glass , were (1) a cutter, who cut the glass to specified
size and sent it along a conveyer to (2) a breakout man,
who broke off rough edges and stacked the glass in a rack
for (3) a grinder, who smoothed the edges. The glass was
then put through a washer, and inspected by an inspector
who packed it on a pallet.
When Foreman Kenneth Smith was present, he re-
mained in the prefurnace department area during the
entire second shift. He instructed new employees in the
duties they were to perform, assigned department employ-
ees' work at the beginning of the shift each day, and told
them how to do the work if necessary. Employees daily
took their job problems, such as a breakdowns, to him, and
he told them what was wrong and got it fixed. Employees
requested Smith's permission to leave early; when in
doubt, Smith referred such requests to Braun. If Smith was
not present, the employees reported to Braun . The General
Counsel does not dispute, and I find, that Foreman
Kenneth Smith responsibly directed the work of employ-
ees, and that he was a supervisor as defined in Section
2(11) of the Act.
Although the prefurnace employees were familiar with
the posted plant rules, when their work was momentarily
caught up, they stood or sat by their work stations or left
without permission for short periods to visit the restroom
or get a soda from the plant cafeteria.
On January 17, 1973, Foreman Smith requested Thomas
Crandall to work overtime until 2 a.m., to inspect a certain
number (1,500 or 2,000) of pieces of glass. Crandall
complied. By I a.m. he had inspected the specified number
of pieces, and, as permitted by Foreman Smith, he cleaned
up his work area and went to the cafeteria where he played
cards until the 2 a.m. quitting time.
When Crandall and the other employees reported for
work in prefurnace at 3:30 the following afternoon,
January 18, 1973, Crandall saw Foreman Smith leaving the
plant. Crandall and others asked around why Foreman
Smith was leaving, and were informed by other employees
in the cafeteria that Smith had been fired. Shift Superin-
tendent Braun had not been involved in Foreman Smith's
discharge but heard about it when he arrived at the plant at
3 p.m. Err-)loyees asked him in passing on the floor the
reason for the discharge but he replied he did not know.
All employees went to work as usual , assigned to their
duties that day by the first-shift foreman-Crandall as
cutter and Jessie Rodriguez as breakout man on D-line,
Richard Frey as cutter on B-line, Thomas Roberts and
Steve Vermilyea as sweepers, and John Allan Smith as
forklift operator.
During their 5:30 p.m. 10-minute break that afternoon,
practically all the prefurnace employees talked among
themselves about the fact that Foreman Smith had been
discharged, that the employees did not know why, and
whether the employees should walk out. Crandall claimed
to be a friend of Foreman Smith's and that he had lunch
with him once in a while; none of the other employees
made such claims. During the 10-mmute break, Crandall
and Rodriguez overheard Richard Frey ask Union Steward
185
Walter Diebert what would happen if the employees
walked out and Diebert reply that they would be fired and
should keep out of it and not jeopardize their jobs for
management . Diebert reported this conversation to Shift
Superintendent Braun.
After the 10-minute break , all employees returned to
work until the 7:30 p.m. half-hour lunch break. Crandall,
Frey, Rodriguez, and John Smith left the plant and had
lunch together. They discussed the possibility of walking
out because of the discharge of Foreman Smith? Every-
body having lunch in the plant cafeteria discussed the same
subject . No decision , or plan, was made , however. As the
Crandall group walked back through the plant toward their
work stations, Crandall testified, "everyone asked if we
were going to talk or what we were going to do." Crandall
replied they did not know. Meanwhile, Furnace Depart-
ment Line Foreman John Labriere had told Braun that
there was a rumor that someone might stop work over
Foreman Smith 's discharge . All employees returned to
their stations at the end of the lunch break and prepared to
resume work.
The testimony of the General Counsel' s witnesses
Crandall, Rodriguez, Frey, Roberts, John Smith, and
Vermilyea is different in essential elements from that of the
Respondent 's witnesses Superintendent Braun and Fore-
man Labriere as to what happened next. My findings as to
what actually happened are based on the testimony of the
General Counsel's witnesses . Although their accounts
differed in some details, they were in general mutually
corroborative and the events to which they testified were
more likely to have resulted from the preceding conduct of
employees described above. Labriere struck me as prone to
exaggerate, and both he and Braun appeared to be more
interested in justifying Braun's actions than in sticking to
the facts. I do not, however, place any reliance on
Rodriguez' testimony that there was no work for him and
Crandall to do when they returned from lunch, as
Rodriguez appeared uncertain on this point and he was not
corroborated by Crandall. Nor do I rely on Frey's
testimony that there was no work for him to do because a
driller and an unidentified employee were engaged in "no
hole" work on B-line . This testimony is also uncorroborat-
ed, and I cannot reconcile it with the above description of
production-line work and employee classifications, which
is based on the testimony of Crandall and Rodriguez who
made no reference to a driller classification nor to such
work being performed on these production lines.
Accordingly, I find that upon arriving at their work
stations on D-line, Crandall and Rodriguez put on their
safety glasses, gloves, cuffs, and aprons. Crandall was
looking around for Braun, and before he had time to cut
any glass , he saw Braun emerge from the cafeteria next to
Braun's office , about 50 feet away. Crandall called to
Braun, "Hey, Mike, come here." Crandall took off his
gloves and cuffs, and said to Rodriguez, who was stationed
5 feet from him, "Jessie, come on," and started walking in
Braun's direction. Rodriguez took off his equipment, and,
without knowing Crandall's intention, accompanied him.
Braun, followed by Labriere, turned in their direction, and
2 I credit the testimony of Crandall, Frey, and John Smith , rather than
that of Jessie Rodriguez that the group did not discuss the subject at lunch.
186 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the four of them met face to face in the main aisle between
the inspection ends of A- and E-lines, some 15 to 20 feet
from Crandall 's and Rodriguez ' work stations.
John Smith , who had checked to see if there was enough
glass on the skids and if any of the bucks at the ends of the
lines were full and had climbed on his forklift , which was
parked at the end of A-line, prepared to start the motor,
when he heard Crandall call to Braun and observed him
walking toward Braun . Smith got off the forklift, leaned
against it, and observed events 5 feet away from where the
four met . When Steve Vermilyea returned from lunch, he
began sweeping at approximately the same spot at the end
of A-line . When he observed the four in the main aisle, he
too leaned against the forklift and watched . Thomas
Roberts had begun sweeping at the inspection end of D-
line upon returning from lunch 3 or 4 minutes after 8 p.m.
He ceased working and , with broom in hand , observed the
meeting from a few feet away . Frey had returned to B-line,
put his equipment on, and started working . After a minute
or so he heard Crandall 's call and saw him and Rodriguez
walking toward Braun . Frey and two other employees from
B-line walked toward them, taking off their glasses and
arm guards . Frey observed that although the lines were
running, no one was working in the prefurnace depart-
ment . Only the above-referred-to employees appear to
have been in the immediate vicinity of the confrontation
described below.
When the four came face to face , Braun asked, "What's
going here?" Crandall, in reply , asked Braun , "Why did
Smitty get fired?" to which Braun responded , "None of
your damn business, go back to work ." None of the
employees in the immediate vicinity moved . Crandall then
said to Braun, "I think it is my business ." Crandall testified
that the reason he made this statement was he felt partly at
fault for Foreman Smith's discharge because of shutting
down early the night before . Braun, however, replied, "You
have got five seconds to get back to work." At that point,
all of the above employees , except Crandall, turned and
started back to their work . Crandall, however , did not. He
remained where he was and said to Braun , "Answer me
one more question." But Braun pointed at Crandall and
said, "Discharged ." Braun then pointed at Rodriguez,
Roberts , Frey , and John Smith , one after another, and said
"Fired," four times.
After some further argument during which Crandall did
most of the talking , Braun returned to his office by the
cafeteria, and all the discharged employees but John Smith
prepared to leave the plant . Smith followed Braun into the
office and asked why he had been fired . Braun replied
because Smith was "standing in the group ." When Smith
said he merely had been leaning against his towmotor,
Braun rescinded his discharge and Smith returned to work.
The others advised Steward Diebert that they had been
fired, and asked him to get their jobs back . He said to
them, "What the hell do you want me to do about it?" and
that he had warned them that this would happen . Diebert
then checked with Braun , who told him that "he gave them
all the time in the world to get back to their jobs and they
wouldn't go back on their jobs and he fired them ." Diebert
did, nevertheless , report the matter to the union president
who said he did not think he could do anything, but would
find out. Diebert , however, heard nothing more from the
president about the matter.
None of the dischargees filed or attempted to file a
grievance over his discharge.
B. Conclusions
The above facts establish, and I find, that Frey,
Crandall , Rodriguez , and Roberts were discharged because
they left their work stations without permission and
interrupted the work of the furnace department to find out,
if they could, from Shift Superintendent Braun, the reason
for the discharge of their foreman , Kenneth Smith, and
after Superintendent Braun responded that the matter was
none of their business , refused to comply with his order to
go back to work . The Respondent contends , contrary to
the General Counsel, that this concerted activity was not
protected by Section 7 of the Act because its object
concerned the discharge of a supervisor and was in
violation of the collective-bargaining agreement and the
plant rules . I agree.
I have carefully considered the Board cases finding
concerted employee activity relative to the identity of their
supervisor to be protected 3 in light of the Board's
admonition in Dobbs Houses, Inc., "Each case must turn on
its facts," and conclude that those cases are factually
different from this case in crucial respects . Thus, Foreman
Smith does not seem to have been merely a minor
supervisor who worked along with the men; on the
contrary , it appears that during his shift he was in charge
of the entire prefurnace department of 20 to 30 men, and
directly responsible to the shift superintendent of the plant.
Although the role of supervisor inherently encompasses the
ability to affect subordinate employees , the Board has
indicated that more than generalized relationship is
required to bring a case within the Dobbs Houses rule.
Here, no reason had been advanced for the prefurnace
employees' concern over why Smith was fired-there was
no mutual concern or cooperative effort to improve wages,
hours, or working conditions . In fact, there is nothing to
indicate employee dissatisfaction over any other matter.
Although Crandall suspected that Smith was discharged
because Smith had permitted him to play cards for an hour
of his overtime assignment, neither Superintendent Braun
nor the employees knew , and there is no evidence , that that
was, in fact, the reason . In any event, to the extent that
Smith 's conduct in this regard might have been a factor, it
would have related solely to the manner in which he
performed his supervisory functions on that occasion.4
Nor was this a group of unrepresented employees who
"had to speak to for themselves as best they could"5
because they had no bargaining representative. On the
contrary , they had a representative who had agreed with
the Respondent that there would be no interruptions of
3 Kelso Marine, Inc., Kel Stress Division, 199 NLRB 7, Okla-Inn d/b/a enforcement denied 325 F.2d 531 (C A 5,1963)
Inc, Holiday Inn ofHenryetta, 198 NLRB No. 68; G. W. Murphy Industries, 4 See Asia Garden Restaurant ofSan Francisco, Inc., 205 NLRB No. 141.
Inc., 179 NLRB 124, Plasnhte Corporation, 153 NLRB 180, enforced as See N LR B. v. Washington Alununum Company, Inc., 370 U.S. 9,
modified, 375 F 2d 343 (CA. 8, 1967); Dobbs Houses, Inc., 135 NLRB 885, 14(1962).
PERMAGLASS DIV., GUARDIAN INDUSTRIES CORP. 187
work and that all complaints would be handled according
to the grievance procedure. Instead of abiding by that
commitment, these employees ignored the admonition of
their bargaining representative, brought the work of the
prefurnace to a halt, and sought a confrontation with
management . As the Board has stated, "our Act does not
afford protection to employees acting in concert in
derogation of the principal of exclusive representation by
abandoning grievance procedures and seeking instead to
bargain on their own." 6
In addition, it is clear that the employees acted in
violation of reasonable rules which were posted in the
plant with which the employees were or should have been
familiar . That the Respondent had upon occasion tolerated
6 United Parcel Service, Inc., 205 NLRB No. 163, In. 2. The General
Counsel does not contend , and there is no evidence , that the employees'
conduct was intended to or did conform with the grievance procedure.
7 Accord, Cameron Iron Works, Inc., 194 NLRB 168; Mid-West Timer
Service, Inc, 163 NLRB 810; Terry Poultry Company, The Wood-Hill Food
Products Company, 109 NLRB 1097.
absences from work stations for brief periods during which
there was no work to perform did not estop the Respon-
dent from enforcing its rules when the employees for the
first time , as the record shows, violated them in circum-
stances described herein.?
Accordingly, I conclude that the Respondent did not
violate Section 8(axl) of the Act as alleged.
Upon the foregoing findings of fact and conclusions of
law, upon the entire record , and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended:
ORDERS
The complaint is dismissed in its entirety.
8 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.
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.