Jemco, Inc.

National Labor Relations Board - Board DecisionsApr 30, 1973

203 N.L.R.B. 305 (N.L.R.B. 1973)

JEMCO, INC. 305 Jemco, Inc. and United Steelworkers of America, AFL-CIO. Case 7-CA-9041 April 30, 1973 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS KENNEDY AND PENELLO On April 5, 1972, Administrative Law Judge' Wil- liam J. Brown issued the attached Decision in this proceeding. Thereafter, 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 Ad- ministrative Law Judge's Decision in light of the ex- ceptions and brief and has decided to affirm the Administrative Law Judge's rulings, findings, and conclusions, except as modified below. This case arises out of an allegation that Eleanor King, an employee of Respondent, was terminated in violation of Section 8(a)(1) and (3) of the Act. Re- spondent denies any violation of the Act and con- tends instead that King's termination resulted from a proper application of article VIII, section 2(c) of the collective-bargaining agreement, which provides for automatic termination if an employee "following a lay-off for lack of work . . . fails or refuses to return to work within five (5) regularly scheduled working days of such [a notice of] recall is sent to his last address on record with the Company." Eleanor King went on sick leave on April 14, 1970. In May 1970, the bargaining unit, of which Mrs. King was a member, went on strike and the strike continued until June 4. 1971. On June 4, 1971, Respondent and the Union entered into a strike-settlement agreement which provided, in relevant part: Employees will be called back to work as needed under the callback provisions of the present Agreement. There is no specific provision of the agreement which bears the heading "Callback," but a reading of the text of the agreement indicates that the reference is necessarily to the seniority article which specifies the order of recall from layoff and also the provision above quoted relating to the procedure for recall-i.e., the sending of a notice of recall to the employee's last known address, and the understanding that an em- 1 The title of "Trial Examiner" was changed to "Administrative Law Judge" effective August 19, 1972 ployee is to be terminated if he fails or refuses to return to work within 5 working days. A registered letter of recall was sent to Eleanor King after the signing of the strike-settlement agree- ment, but at the time it was sent Mrs. King was in Florida, from whence she returned about noon on Thursday, June 10. There is a factual dispute as to whether, on June 10 and 11, Eleanor King telephoned the Company. It is not disputed that she telephoned the Company on June 12, on which date she was advised that her employment had been terminated on the ground that she had not reported for work within 5 working days of the date of the recall letter. Eleanor King thereupon filed a grievance under the grievance and arbitration procedures of the agree- ment. The grievance was properly filed at step 2 and was denied in that step. Eleanor King thereupon noti- fied the Company that the grievance would be taken to the next step of the procedure. The grievance was not processed further. According to the testimony of Eleanor King, she attempted to get Respondent's an- swer to the grievance in the next step but was unsuc- cessful in obtaining any answer. Although the contract provides for a forfeiture of a grievance by the Company if it fails to answer in timely fashion, no claim of forfeiture was made and there is no evidence that arbitration of the grievance was ever sought. In- stead, no further action was taken by Mrs. King or her union representatives until an unfair labor practice charge was filed on October 18, 1971, alleging that the termination was discriminatory. The contract contains a clause prohibiting discrimi- nation "against any employee because of his exercis- ing his rights guaranteed by Section 7 of the Labor-Management Relations Act." It also contains a full grievance procedure terminating in binding ar- bitration. Contrary to the determination of the Administra- tive Law Judge herein, we are of the view that the propriety of the termination of Eleanor King was a matter which could and should have been determined pursuant to the grievance and arbitration provisions of the agreement. We are not persuaded that the Ad- ministrative Law Judge was correct in his conclusion that Mrs. King's failure to receive an answer at the third step constituted a "refusal" on the part of Re- spondent to recognize the existing procedures. There was ample opportunity for the grievant and her Union to claim a forfeiture and/or to seek arbitration. In- stead of pursuing any of those remedies, the Union chose, prematurely we think, to file a charge with this Board. In the Collyer 2 case, the Board pointed to the con- gressionally expressed and court-approved policy fa- g Collver Insulated Wire. A Gulf and Western Systems Co.. 192 NLRB 837. 203 NLRB No. 32 306 DECISIONS OF NATIONAL LABOR RELATIONS BOARD voring voluntary settlement of labor disputes through the arbitral process. As the Board stated in Collyer, "When the parties have contractually committed themselves to mutually agreeable procedures for re- solving their disputes during the period of the con- tract, we are of the view that those procedures should be afforded full opportunity to function." We see no reason why such a policy should not prevail in the present case. King's employee status and any rights she may have involve, in large measure, interpreta- tions of the contract and/or the modifying strike-set- tlement agreement. As the parties have an agreed-upon method for resolving disputes essentially involving contractual interpretations, we conclude that the issues should be referred to the contractual grievance and arbitration proceeding under the prin- ciples established by the Board in the Collyer case.' We shall so order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board hereby orders that the complaint be, and it hereby is, dismissed, provided that: Jurisdiction of this proceeding is hereby retained for the limited purpose of entertaining an appropriate and timely motion for further consideration upon a proper showing that either (a) the dispute has not, with reasonable promptness after the issuance of this Decision, either been resolved by amicable settlement in the grievance procedure or submitted promptly to arbitration, or (b) the grievance or arbitration proce- dures have not been fair and regular or have reached a result which is repugnant to the Act.' MEMBER KENNEDY, dissenting: I do not agree with my colleagues that this case should be deferred under the principles established by the Board in Collyer Insulated Wire, A Gulf and West- ern Systems Co., 192 NLRB 837. Instead, I would dismiss the complaint. The Respondent and the Union entered into a strike-settlement agreement on June 4, 1971. As a result of that agreement the Respondent on Saturday, June 5, sent letters of recall by certified mail to five employees including Eleanor King, the alleged discri- minatee in this case . Mrs. King was on vacation in Florida from June 1 until she returned to her home on 3 See United Aircraft Corporation, 192 NLRB 382, and see also National Radio Company, Inc, 198 NLRB No I Titus-Will Ford Sales, Inc., 197 NLRB 147 The Respondent has re- quested oral argument . This request is hereby denied because the record and statements submitted adequately present the issues and the positions of the parties the afternoon of Thursday, June 10. She said that she picked up her letter of recall from the post office on June 10 and claimed that she tried to telephone the Company several times about 4 p.m. or thereafter that same afternoon. She also claimed that she telephoned the Company several times-about six times in all- on Friday, June 11, but in each instance there was no answer. The undisputed and uncontradicted testimony of the Respondent's president, Herbert Johnson, was that the Respondent had two telephone lines to its plant and that when one line is busy, the other line rings. He further testified that at no time during that week were both lines busy and that he and another supervisor were carefully listening for telephone calls because they expected to receive some calls as a result of the five letters of recall being sent out on June 5. Johnson stated that since he had not received any response by 5 or 5:30 p.m. on Friday, June 11, he mailed out three additional recall letters at that time. It was not until the next day, Saturday, June 12, at 9 a.m. that Mrs. King first spoke with Johnson on the telephone concerning the recall letter. To accept Mrs. King's statement that she made numerous attempts on June 10 and June 11 to tele- phone the Respondent's plant would mean that Re- spondent deliberately did not answer any of its telephone calls received at its plant for a portion of one business day and for the entire business day on June 11 simply for the purpose of avoiding the possi- bility of receiving a call from Mrs. King. Such a con- clusion strains credulity. Furthermore, I find no basis for the Administrative Law Judge's conclusion that Respondent's president timed the mailing of the letter of recall to Mrs. King to coincide with Mrs. King's vacation. The timing of the mailing of the recall letters to all five of the employees, including Mrs. King, on June 5 is explained by the fact that the Respondent and the Union reached a strike-settlement agreement on June 4. While the execution of the strike-settlement agree- ment on June 4 explains the date Respondent mailed its five recall letters on June 5 (and indeed refutes any contention that the letter to Mrs. King was timed to coincide with her absence from the city), in my view, the propriety of Respondent's discharge of Mrs. King in no way involves the interpretation of the strike- settlement agreement.' 3This case is distinguishable from National Radio Company, Inc, 198 NLRB No I. in which I joined my colleagues in deferring to arbitration both 8(a)(3) allegations as well as 8(a)(5) allegations In that case the alleged discrtmmatee was given a 3-day suspension on December 10, 1969, for one reason and subsequently discharged on March 17 , 1970, for other reasons which were intertwined with the 8(a)(5) allegations and which involved inter- pretation of the provisions of the collective-bargaining agreement Under those circumstances , I felt that deferral of the entire case under the Collyer principles was appropriate JEMCO, INC. I would dismiss the complaint herein since deferral to arbitration is inappropriate and the evidence fails to establish a violation of the Act. TRIAL EXAMINER'S DECISION WILLIAM J. BROWN, Trial Examiner: This proceeding un- der Section 10(b) of the National Labor Relations Act, as amended, hereinafter referred to as the Act, came on to be heard at Niles, Michigan, on February 8, 1972. The original charge of unfair labor practices was filed on October 19, 1971,' by United Steelworkers of America, AFL-CIO, the Charging Party, hereinafter referred to as the Union, and the complaint herein was issued on December 13 by the General Counsel of the National Labor Relations Board, acting through the Board's Regional Director for Region 7. It alleged, and the duly filed answer of Jemco, Inc., the Respondent, hereinafter sometimes referred to as the Com- pany denied the commission of unfair labor practices within the scope of Section 8(a)(3) and (1) of the Act. At the hearing the parties appeared and participated as noted above with full opportunity to present evidence and argument on the issues. Subsequent to the close of the hear- ing the General Counsel and the Company submitted writ- ten briefs which have been fully considered. On the entire record herein and on the basis of my observation of the witnesses, I make the following: FINDINGS OF FACT I. THE BUSINESS OF THE COMPANY The pleadings and evidence establish that the Company, a corporation organized and existing under and by virtue of the laws of the State of Michigan, has its principal office and place of business in Buchanan , Michigan , where it is en- gaged in the business of precision machining and related work. The Company's answer to the complaint admits that it is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act, and at the hearing herein the company president, Mr. Herbert O. Johnson, stipulated that the Company annually furnishes services valued in excess of $50,000 to companies which annually ship goods valued in excess of $50,000 directly to customers outside the State of Michigan. In 190 NLRB 166 where jurisdiction over the Company was asserted, it was found that the Company annually ships from its Buchanan plant goods valued in excess of $50,000 directly to points located outside the State of Michigan. I find that the Company is an employer engaged in commerce and that assertion of jurisdiction is warranted.' i Dates hereinafter , unless otherwise noted , relate to the calendar year 1971 21 reject as frivolous the contention of the Company that the Regional Office , whence issued the complaint herein, was incapable of impartial investigation of the merits of the charge because the Regional Office investi- gators are themselves members of a union 11 THE LABOR ORGANIZATION INVOLVED 307 The pleadings and evidence establish and I find that the Union is a labor organization within the purview of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES At all material times there has been in effect a collective- bargaining agreement between the Union and the Company covering production and maintenance employees of the Bu- chanan operation, with certain exclusions not here material. The agreement contains maintenance of membership provi- sions. Eleanor King, alleged to have been discriminatorily discharged on June 10, was employed by the Company as a machine operator form January 1966 until her discharge; her testimony reveals that she was at all times during her employment active in union affairs, having served as finan- cial secretary of the Union and on its grievance and negoti- ating committees as well as on the Union 's strike committee in connection with a union 1971. In her work on the strike committee she prepared the picket lists, served doughnuts and coffee to the pickets, and relieved on the picket line. Her testimony that while engaged in this latter activity on May 31, 1971, Johnson brushed her with his car in the plant driveway, in a incident resulting in court proceedings, stands undenied by Johnson. I conclude that Company President Johnson was , at all material times , aware of her longstanding and current substantial support of the Union. On April 14, 1969, Mrs. King injured her elbow while at work running a turret lathe and was off work until late October 1969. She remained under a physician's care for the injury for the balance of 1969 and until some time in 1970 when she resumed running machines. On April 13, 1970, she injured her arm at work and her immediate supervisor, Hal- terman, sent her to Johnson who said no other work was available; she went on sick leave starting April 14, and subsequently had surgery on her arm in May, 1971.3 From June 1, 1971, until June 9, 1971, Mrs. King was on vacation in Florida, returning about noon on Thursday, June 10. On her return from Florida a registered letter from the Compa- ny was awaiting her. The letter G. C. Exh. 3, dated and postmarked June 5, called her back to work and asked that she notify the Company by telephone or letter, of her inten- tion with respect to return to work. The letter specified that her job was to be that of production worker "B" Job Classi- fication 6.° Mrs. King testified, and I credit her account, that on receipt of the Company letter on June 10 she called the Company several times about 4 p.m. but no one answered the telephone ; she telephoned again the following day, Sat- urday, and spoke to Johnson informing him that she had had surgery on her injured arm, which Johnson acknowl- edged his awareness of, and that she would return to work after a release from her physician . Johnson stated that a physician 's release was immaterial since she was terminated. Mrs. King filed a grievance on June 16 protesting her termination and asking restoration of her seniority and a 7 This injury appears to have been a compensable injury. There is. apparently , no contention that this was not a proper classifica- tion and rate 308 DECISIONS OF NATIONAL LABOR RELATIONS BOARD return to work when discharged from her physician 's care. On that date Johnson denied the - grievance stating that her seniority terminated when she failed to notify the Company within 5 scheduled work days from the Company 's letter of recall . On June 19 , Mrs. King notified the Company that she was taking the grievance to the next step and requesting a meeting with Johnson . Although Johnson denies receipt of this notice , G.C. Exh . 7, I credit her testimony that G.C. Exh. 8 is a Post Office return receipt for the notice , and that Johnson refused the further processing of the grievance. I conclude that Johnson 's refusal to recognize the existing procedures for processing of the grievance precludes any contention that the issues involved in Mrs. King's discharge should be exclusively in the domain of the grievance and arbitration procedures of the agreement and that the issue of her discharge is properly before the Board for adjudica- tion. In resolving the almost Incredible perplexities of the testi- mony in this case , there appears to be one key which, to my mind , unmistakably furnishes the touchstone needed for a resolution of the conflicting claims and accounts . The re- cord indicates unmistakably that Johnson knew of Mrs. King's absence from the area at the time he sent out the letter of recall on June 5 . I conclude that Johnson knew of her absence and of her probable return about June 10, timed the letter of recall to coincide with her absence , and refused to answer the telephone in the late afternoon of June 10. In view of Johnson 's intemperate opposition to continued rec- ognition of the Union and his apparent particular antago- nism toward Mrs. King , I conclude that his act in terminating her was motivated by his animus against her for her longstanding leadership in union activities among em- ployees of the plant and constituted an unfair labor practice as alleged in the complaint. IV THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Company set forth in section III, above, occurring in connection with the company business operations described in section I, above , have a close, inti- mate , and substantial relationship to trade , traffic , and com- merce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow thereof. V THE REMEDY In view of the findings above set forth to the effect that the Company has engaged in unfair labor practices affect- ing commerce , it will be recommended that it be required to cease and desist therefrom and, in view of the findings of discriminatory discharge , from any unfair labor practic- es, N.L.R.B. v. Entwistle Mfg. Co., Inc., 120 F.2d 532 (C.A. 4). It will also be recommended that the Company take such affirmative action as appears necessary to effectuate the policies of the Act, including reinstatement of the employee discriminatorily refused reinstatement , with backpay com- puted in accordance with the remedial relief policies enun- ciated in F. W. Woolworth Company , 90 NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB 716. On the basis of the foregoing findings of fact and upon the entire record in this case , I make the following: CONCLUSIONS OF LAW 1. The Company 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 purview of Section 2(5) of the Act. 3. By terminating the employment of Eleanor King on June 10 and thereafter refusing her reinstatement in reprisal for her activities on behalf of the Union , the Company has engaged in unfair labor practices within the scope of Section 8(a)(3) and ( 1) of the Act. 4. The aforesaid unfair labor practices affect commerce within the meaning of Section 2 (6) and (7) of the Act. [Recommended Order omitted from publication.]