Lenkurt Electric Co., Inc.

National Labor Relations Board - Board Decisions

May 19, 1970

182 N.L.R.B. 510 (N.L.R.B. 1970)

510 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Lenkurt Electric Co., Inc. and Local Union 1969 , Interna-
tional Brotherhood of Electrical Workers, AFL-CIO.
Case 20-CA-5567
May 19, 1970
DECISION AND ORDER
By CHAIRMAN MCCULLOCH AND MEMBERS FANNING
AND BROWN
On December 1, 1969, Trial Examiner Eugene K.
Kennedy issued his Decision in the above-entitled pro-
ceeding, finding that the Respondent had not engaged
in the unfair labor practices alleged in the complaint
and recommending that the complaint be dismissed in
its entirety, as set forth in the Trial Examiner's Decision.
Thereafter, the General Counsel filed exceptions to the
Trial Examiner's Decision and a supporting brief, and
the Respondent filed an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the National
Labor Relations Board has delegated its powers in con-
nection with this case to a three-member panel.
The Board has reviewed the rulings of the Trial Exam-
iner made at the hearing and finds that no prejudicial
error was committed. The rulings are hereby affirmed.
The Board has considered the Trial Examiner's Decision,
the exceptions and briefs, and the entire record in this
case, and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner only to the
extent consistent herewith.
We cannot agree with the Trial Examiner's conclusion
that Jordan's conduct while acting as a union steward
in prosecuting a grievance on behalf of another employee
removed him from the Act's protection' and warranted
dismissal of the complaint in its entirety.
Jordan was hired by Respondent in October 1967
as a production worker. Because of his superior ability
he was advanced rapidly'and, by January 1968, had
been promoted through several classifications to the
status of electronic technician I in department 40. He'
was designated union steward of that department in
July 1968 and served in that capacity until February
1969 when he was transferred to department 75. Shortly
thereafter, he was appointed steward of department
75 and acting in that capacity during the ensuing months
filed two grievances on behalf of other employees against
Foreman Calhoun, which resulted in Jordan's being for-
mally disciplined and eventually transferred to another
department.
The first grievance involved a statement made by
Calhoun to three employees in his department to the
effect that if they did not get a haircut they would
not be allowed to work and that if they persisted in
wearing long hair they would be terminated. Calhoun
called these employees into his office one at a time.
One of them requested permission to see steward Jordan,
and Calhoun agreed and attempted to locate Jordan
in order to send him to, the employee. At that time
Jordan could not be located. Later, as the last of three
employees was entering Calhoun's office, Calhoun
noticed Jordan engaged in a conversation with the
employee who had earlier sought his assistance. There-
after, Calhoun called Jordan into his office and orally
disciplined him: he advised Jordan that he had violated
the collective-bargaining agreement by failing to obtain
permission of his supervisor to conduct Union business
and by "jumping the gun and soliciting a grievance
which is not part of the duties of a shop steward."
The second grievance followed closely thereafter and
was likewise directed against the conduct of Foreman
Calhoun. Two days after the filing of the first grievance
Calhoun began reassembling some shelving in the staging
area. On the following workday he assigned an employee,
Brown, to complete the work. Sometime later, Brown
was granted permission by Calhoun to speak to Jordan.
Later that day, Jordan presented Calhoun a written
grievance on behalf of Brown concerning additional
pay to which Brown was allegedly entitled for working
out of his classification on the shelving job. The grievance
was denied by Calhoun and subsequently withdrawn
by Brown. Thereafter, Calhoun, at the direction of
Respondent's labor relations manager, gave Jordan a
written disciplinary notice on a company form:
On April 28, 1969 you overstepped the role of
departmental steward as defined in Sect. 2, Article
III of the labor agreement. You did this by speci-
fically soliciting a grievance. The role of a steward
at Lenkurt is that of investigating and adjusting
grievances, not soliciting them! We will expect
you to conduct yourself as a steward as established
by practice and called for by the labor agreement.
Failure to do so in the future will mean disciplinary
action; including termination.I
The company form also contained a space wherein- the
employee was supposed to affix his initials to acknowl-
edge receipt of the disciplinary notice. When Jordan
acknowledged receipt, he noted the following on the
form in the space marked "Remarks":
The issue which is being discussed in this memo
was the investigation of a complaint (my own)
leading to a grievance (employee in my group).
I therefore am fully within my rights according
to Article III, Sect. 2 of the contract.
An hour later Jordan was transferred from department
75 to department 40 and assigned the position of cold
check troubleshooter, an unskilled job which required
' Art III, sec 2, of the collective-bargaining agreement between
the parties, which formed the basis for the Employer's disciplinary
actions, provides I
Stewards shall report to their immediate supervisors and request
permission to leave the job before leaving work to conduct Union
business Permission will always be granted unless such action
would seriously interfere with operations In such instances, the
supervisor will make arrangements for the steward to leave the
job as promptly as possible
Stewards will be allowed to conduct their Union business within
their regularly scheduled working hours , within their assigned areas
of representation Union business for this purpose is defined to
mean the investigation of complaints that may lead to grievances,
handling and adjustment of grievances , and attendance at meetings
with representatives of the Employer
182 NLRB No. 78
LENKURT ELECTRIC CO.
only 30 minutes to learn. Prior to Jordan being assigned
this job, it was held by a technician II, a job classification
less skilled than that of Jordan. Moreover, Jordan's
section supervisor in the new department considered
the cold check job too tedious to be performed continu-
ously by any one technician. He believed it preferable
to rotate the position among his technicians. Neverthe-
less, Jordan, unlike, other employees, was obliged to
remain in this menial position for a lengthy period.
Nor was Jordan permitted, under threat of dismissal,
to leave his department 40 job area in order to act
as the union steward in department 75. During the
ensuing period, the' employees in department 75 did
not have a union steward available to them, and the
situation was not altered until after complaint issued
in this case, at which time Jordan was loaned back
to department 75.
Unlike the Trial Examiner, we find that the evidence,
considered in its totality, presents a strong prima facie
case to support the allegations in the complaint to the
effect that Respondent violated Section 8(a)(1) of the
Act by issuing a disciplinary threat to Jordan'because
of his activities as a union steward and Section 8(a)(3)
and (1) by transfering Jordan because of these same
union activities.
As detailed above, Jordan filed only two grievances,
each of which resulted in a disciplinary admonition
from the object of these grievances; namely, Foreman
Calhoun. In each instance Jordan was admonished for
"soliciting a grievance" , as being contrary to article
III, section 2, of the collective-bargaining agreement.
That the gravamen of Jordan's offense to Calhoun was
in fact the solicitation of grievances is clear from Cal-
houn's attitude in general. For example, Calhoun did
not object to grievances being filed by the Union, even
if they were directed against himself, as long as they
were filed under-what he conceived to be the terms
of the contract. Thus, when Calhoun was warning the
three employees about their long hair, upon request,
he attempted to locate steward Jordan to enable them
to grieve if they so desired. What Calhoun objected
to was the solicitation of grievances per se, which he
conceived to be contrary to the contract, and for which
he twice disciplined Jordan.
We do not, however, agree that the language of
these contract provisions standing alone precludes a
union steward from soliciting a grievance or in any
way indicates that the Union has waived or limited
its right to solicit grievances.2 Rather, the restrictive
language of this paragraph indicates only that before
a union steward conducts union business during working
hours he must first secure permission from the Employer,
a permission that must be given as promptly as the
production schedule will permit. Nor does the language
in the provision authorizing the union steward to investi-
gate complaints in any way limit the steward's authority
to act on a grievance only after receiving a formal
complaint or precludes the steward from himself noting
2 The provisions of the contract here involved are quoted in in
1, supra
511
a contract violation or making a complaint. We note
that the facts reveal that each employee had asked
to speak with Jordan, and permission was granted. In
any event, the solicitation of grievances is a protected
activity for stewards as well as other employees. A
waiver of the right to engage in such activities must
be clearly and unequivocally set forth in the contract.
As the contract does not clearly and unequivocally place
a limitation on a union steward regarding the solicitation
of grievances, Jordan was engaged in a protected activi-
ty.3 Accordingly, the admitted direct evidence of
Respondent's agent to the effect that Jordan was disci-
plined or threatened with job loss solely for soliciting
grievances, an activity which under the circumstances
in this case we find to be protected, and the almost
immediate transfer to a less desirable job constitute
a prima facie case that Respondent has violated Section
8(a)(1) and (3) of the Act.
Nor do we find that Respondent offered sufficient
evidence to dissipate the unfavorable inferences to be
drawn from the General Counsel's evidence. Based on
this evidence, we cannot, as did the Trial Examiner,
conclude that Jordan was disciplined and transferred
because he solicited grievances in order to injure or
effect the removal of his foreman and that such conduct
removed him from the Act's protection. The Trial Exam-
iner found both that Respondent reasonably believed
that Jordan solicited the Brown grievance for the primary
purpose of "getting" Calhoun and that Jordan did in
fact solicit the grievance for that purpose. The evidenti-
ary, path taken by the Trial Examiner does not withstand
detailed analysis.
Foreman Calhoun testified that shortly after he
received the grievance Brown came into his office and
asked for its withdrawal. According to Calhoun, Brown
then,told him that he had heard from other employees
that Jordan had asked them to,file grievances and Jordan
had told them that if they filed enough grievances,
he would "get rid of this guy for you." Calhoun testified
that Brown told him he felt he was being used by
Jordan "to get at Calhoun" and again asked for the
return of his grievance. Although employee Brown had
appeared in the hearing room but had not been called
as a witness, the Trial Examiner nevertheless found
that Brown's testimony was unnecessary to the establish-
ment of Respondent's defense; namely, that it reasonably
believed that Jordan solicited the grievance for the
express purpose of "getting Calhoun." The Trial Exam-
iner found that this conclusion was supported by certain
direct probative evidence. He noted that the grievance
was filed on behalf of Brown before it was even known
whether or not the Company was going to pay Brown
at a higher rate of pay for the out of classification
work. The Trial Examiner felt that this action connoted
a kind of eagerness which was supportive of Calhoun's
testimony. The Trial Examiner believed that Brown's
act of tearing up the grievance also confirmed the reason-
ableness of Calhoun's reliance on what Brown had told
3 F J. Buckner Corp ., 163 NLRB 81, enfd 401 F 2d 910 (C A
9), cert denied 393 U S 1084
512 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
him. The Trial Examiner also felt that Jordan's conces-
sion on cross-examination that he told Brown when
he signed the grievance, against Foreman Calhoun,
"We've got him now, he won't be able to squirm out
of this," went beyond supporting the reasonableness
of Calhoun's position and, in the light of the entire
record, constituted probative evidence that Jordan did
in fact solicit the grievance for the primary purpose
of "getting" Calhoun, a purpose unprotected by the
Act. We cannot agree.
The Trial Examiner's conclusions rest largely on hear-
say evidence4 admitted to show Respondent's motive
in disciplining Jordan and on the purported concession
of Jordan on cross-examination, in referring to Calhoun,
"We've got him now, he won't be able to squirm out
of this." We are not convinced, based on this evidence,
either that Respondent actually disciplined Jordan for
the reason advanced or that Jordan in fact did solicit
the Brown grievance in order to have his foreman
removed. We note that Jordan filed only two grievances
during his entire stewardship of department 75 and that
both times he was explicitly disciplined for soliciting
a grievance although each employee had previously asked
to speak with him. No mention was made to Jordan
that he was being disciplined because he had solicited
a grievance from Brown for the purpose of injuring
or causing the removal of Foreman Calhoun. Rather,
Jordan was only told that he was being disciplined
for engaging in what is in fact a protected activity
under the circumstances here present; namely, the solici-
tation of a grievance.
It is, of course, only the Brown grievance that is
in direct contention here regarding the alleged miscon-
duct. of Jordan. We are asked to believe that Respondent
formally disciplined and threatened one of its better
employees (one who had in very rapid order been
advanced by the Company) because another employee
told Foreman Calhoun that he had heard other employees
say that Jordan was out "to get Calhoun." We are
asked to believe that this was in fact the real reason
for the discipline even though the Employer admittedly
never discussed this matter with Jordan informally, and
never formally advised him that it was the reason for
the disciplinary action. Instead, Jordan was twice disci-
plined for the stated reason that he was soliciting griev-
ances. Under these circumstances, we find it difficult
to explain Respondent's reticence with a union steward
in a disciplinary matter , and cannot infer, as did the
Trial Examiner, that the Respondent's motives in disci-
plining Jordan, which included a threat of termination,
were those articulated at the hearing rather than those
contained in the language of the disciplinary notices
themselves.
Accordingly, we conclude, the hearsay evidence and
the ambiguous exclamation made by Jordan at the time
Brown signed his grievance notwithstanding, that the
actual reason stated in the disciplinary notice was in
' The General Counsel objected to the admission of this evidence
at the hearing and specifically excepted to this aspect of the Trial
Examiner ' s Decision.
fact the reason for the action taken. It follows, then,
that Respondent violated Section 8(a)(1) of the Act
when it formally disciplined and threatened Jordan with
loss of his job because he solicited a grievance, a
protected activity, and that it violated Section 8(a)(3)
and (1) of the Act when it transferred Jordan to a
less desirable and less responsible job for engaging
in this same union activity.
Moreover, were we to agree with the Trial Examiner
that the solicitation or filing of grievances in an "attempt
to damage or effect the removal of a supervisor" is
not a protected activity, we would limit the principle
to those cases where the employee was motivated by
nonwork-related considerations. Accordingly, even
assuming that Calhoun reasonably believed that Jordan
was trying "to get him," it is clear from Calhoun's
own testimony that he had no basis for believing that
Jordan was acting for other than work-related consider-
ations. Thus, Calhoun testified that Brown informed
him that Jordan was soliciting employees to file griev-
ances, and if there were enough grievances he (Jordan)
would get rid of Calhoun for them. Calhoun's testimony
as to what Scholfield told him clearly depicted a Jordan
who was at least partly concerned with Calhoun's per-
formance of work that could have been done by a
unit employee.
THE REMEDY
Having found that the Respondent has engaged in
and is engaging in unfair labor practices within the
meaning of Section 8 (a)(1) and (3) of the Act, we shall
order that it cease and desist therefrom and take certain
affirmative action designed to effectuate the policies
of the Act.
Having found that Respondent unlawfully disciplined
or threatened and then transferred Grant Jordan, we
shall order that Respondent reinstate him to his former
or a substantially equivalent position of employment,
without prejudice to his seniority and other rights and
privileges , and to make him whole for any loss of
earnings he may have suffered as a result of Respondent's
unlawful conduct. Backpay shall be computed in the
manner set forth in F. W. Woolworth Company, 90
NLRB 289, with interest added thereto in the manner
set forth in Isis Plumbing & Heating Co., 138 NLRB
716.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of the Act.
2. The Union is a labor organization within the mean-
ing of the Act.
3. By issuing a disciplinary threat to union steward
Grant Jordan because he solicited a grievance, Respond-
ent has violated Section 8(a)(l) of the Act.
4. By discriminatorily transferring union steward
Grant Jordan for soliciting a grievance, Respondent has
violated Section 8(a)(3) and (1) of the Act.
LENKURT ELECTRIC CO
5 The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act
ORDER
Pursuant to Section 10(c) of the National Labor Rela-
tions Act, as amended, the National Labor Relations
Board hereby orders that the Respondent, Lenkurt Elec-
tric Co , Inc , San Carlos, California, its officers, agents,
successors , and assigns, shall
1 Cease and desist from
(a) Disciplining or threatening , or in any other manner
interfering with, restraining , or coercing employees for
soliciting grievances in the performance of their duties
as union stewards
(b) Transferring or in any other manner discriminating
against employees for soliciting grievances when acting
as union stewards
(c) In any like or related manner interfering with,
restraining , or coercing employees in the exercise of
their rights under the Act
2 Take the following action designed to effectuate
the policies of the Act
(a) Offer to Grant Jordan immediate and full reinstate-
ment to his former job or, if that job no longer exists,
to a substantially equivalent position without prejudice
to his seniority or other rights or privileges , and make
him whole for any loss of earnings he may have suffered
by reason of Respondent ' s discrimination against him
as set forth in the section of this Decision entitled
"The Remedy "
(b) Notify the above-named employee, if presently
serving in the Armed Forces of the United States,
of his right to full reinstatement , upon application, in
accordance with the Selective Service Act and the Uni-
versal Military Training and Service Act, as amended,
after discharge from the Armed Forces
(c) Preserve and, upon request , make available to
the Board or its agents, for examination and copying,
all payroll records , social security payment records,
timecards, personnel records and reports , and all other
records necessary to analyze the amount of backpay
due under the terms of this Order
(d) Post at its San Carlos, California, plant copies
of the attached notice marked "Appendix "5 Copies
of said notice, on forms provided by the Regional
Director for Region 20, after being duly signed by the
Respondent's representative, shall be posted by
Respondent immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter,
in conspicuous places, including all places where notices
to employees are customarily posted Reasonable steps
shall be taken by Respondent to insure that said notices
5 In the event that the Board s Order is enforced by a judgment
of a United States Court of Appeals the words in the notice reading
Posted by Order of the National Labor Relations Board shall read
Posted pursuant to a Judgment of the United States Court of Appeals
enforcing an Order of the National Labor Relations Board
513
are not altered , defaced , or covered by any other mate-
nal
(e) Notify the Regional Director for Region 20, in
writing , within 10 days from the receipt of this Decision,
what steps have been taken to comply herewith
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discipline or threaten, or in any
other manner interfere with , restrain , or coerce
employees for soliciting grievances in the perform-
ance of their duties as union stewards
WE WILL NOT transfer or in any other manner
discriminate against employees for soliciting griev-
ances when acting as union stewards
WE WILL NOT in any like or related manner
interfere with , restrain, or coerce our employees
in the exercise of their rights guaranteed by Section
7 of the Act
WE WILL immediately reinstate Grant Jordan
to his former job or , if that job no longer exists,
a substantially equivalent position without prejudice
to his seniority or other rights or privileges, and
make him whole for any loss of pay he may have
suffered by reason of the discrimination practiced
against him
WE WILL notify the above -named employee, if
presently serving in the Armed Forces of the United
States , of his right to full reinstatement , upon appli-
cation , in accordance with the Selective Service
Act and the Universal Military Training and Service
Act, as amended , after discharge from the Armed
Forces
LENKURT ELECTRIC CO ,
INC
(Employer)
Dated By
(Representative ) (Title)
This is an official notice and must not be defaced
by anyone
This notice must remain posted for 60 consecutive
days from the date of posting and must not be altered,
defaced, or covered by any other material
Any questions concerning this notice or compliance
with its provisions, may be directed to the Board's
Office, 13050 Federal Building , 450 Golden Gate Avenue,
Box 36047, San Francisco, California 94102, Telephone
415-556-3197
514 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
EUGENE K KENNEDY, Trial Examiner This matter
was heard in San Francisco, California, on August 26
and 27, 1969 The issues involved are whether Lenkurt
Electric Co , Inc , herein Respondent , violated Section
8(a)(1) and (3) of the National Labor Relations Act,
as amended , herein the Act, by reprimanding an employ-
ee and transferring him within the plant because of
his actions as a union steward I
Upon the entire record in this proceeding and upon
observation of the demeanor of the witnesses and consid-
eration of the briefs filed by the General Counsel and
Respondent, I hereby make the following
FINDINGS OF FACT
I THE BUSINESS OF THE RESPONDENT
Respondent is a Delaware corporation manufacturing
electronic products in San Carlos, California During
the past year in the course of its business operations,
it sold and shipped, from California, products valued
in excess of $50,000 directly to customers located outside
the State of California During the same period , Respond-
ent, in the course and conduct of its business operations,
received in the State of California goods valued in
excess of $50,000 which were shipped directly from
points outside the State of California Respondent is,
and at all times material herein has been an employer
engaged in commerce and in operations affecting com-
merce within the meaning of the Act
II THE LABOR ORGANIZATION INVOLVED
Local Union 1969, International Brotherhood of Elec-
trical Workers , AFL-CIO, herein the Union, is, and
at all times material herein has been , a labor organization
within the meaning of the Act
III THE ALLEGED UNFAIR LABOR PRACTICES
The Issues
Respondent , on May 1, 1969, transferred employee
Grant Jordan , a union steward , to another department
and also reprimanded him for his conduct in connection
with employee Brown
The General Counsel and Respondent vary in charac-
terizing the events attending this reprimand and transfer
The General Counsel' s emphasis is on the fact that
Jordan was reprimanded and transferred after he incurred
the displeasure of Respondent while acting as a union
steward
Respondent stresses that Jordan ' s activities were
removed from the Act's protection because the real
I The charge was filed on May 2 1969 and a complaint issued
on June 5 1969
purpose of Jordan was to "get nd" of his supervisor,
Leo Calhoun, and further that the collective-bargaining
agreement not only did not permit soliciting grievances
for such a purpose but for any purpose Respondent
claims Jordan was using his office as union steward
to solicit grievances from employees in order to embar-
rass his supervisor, Calhoun, and thereby to effect his
transfer from department 75 where Jordan was assigned
at the time Respondent contends such an abuse of
the office of union steward does not preclude Respondent
from making a transfer of the union steward to preserve
harmonious working conditions or from reprimanding
him for such activities Respondent further argues that
the activities of Jordan warranted his dismissal and
that he was fortunate in not being discharged
Background and Events
2 This grievance grew out of an incident on May 21 1%9 About
May I 1%9 Jordan had been transferred from department 75 to
department 40 The Union had not changed its designation of Jordan
as steward in department 75 On May 21 1%9 Jordan requested
permission to go to department 75 to function as steward and was
refused permission by his supervisor thus giving rise to the grievance
filed by the Union Jordan estimated department 40 is about 400 feet
from department 75 He was told if he did go to department 75 he
would be terminated The complaint alleges an unlawful threat occurring
on May 1 and presumably it refers to the file memo incident noted
below and not the episode on May 21 1%9 This incident is not
presented for resolution by the pleadings as to whether it constitutes
an unfair labor practice although in his brief the General Counsel
cites the incident as a type violative of Sec 8(a)(1) of the Act
Jordan was hired by Respondent in October 1967
in the classification of production worker He gave evi-
dence of having superior ability as indicated by his
promotion to the classification of electronic technician
I in January 1968, skipping some intermediate classifica-
tions In November 1968, Jordan was transferred from
department 40 to department 75 He had been appointed
union steward in department 40 in July 1968 and March
1969 he was appointed steward in department 75
At the time of the hearing a grievance was being
processed involving the question of whether a union
steward could act as steward in an area to which he
was not assigned to work 2
An incident which is characterized in the record as
the "haircut grievance" occurred in late April 1969
and bears on the events precipitating the dispute present-
ed here On April 24, 1969, Roy Brunicardi, Respondent's
labor relations manager , told Leo Calhoun, Jordan's
foreman in department 75, that an employee in his
department named John Chapot needed a haircut There-
upon Calhoun made an inspection of his department
and noted that employees Ferraira and Dow also needed
haircuts Calhoun called in employee Chapot in connec-
tion with his haircut He then called in Ferraira for
the same purpose and Ferraira said he wanted to see
the union steward Calhoun told Ferraira to return to
his work and he would send the steward to him Calhoun
then went out to see Jordan but he could not find
him at his place of work or his supervisor , Rosenstock
Calhoun then called in Dow and also then noticed Jordan
LENKURT ELECTRIC CO.
talking to Ferraira away from Jordan's work area. When
Calhoun finished talking with Dow he had a conversation
with Jordan in his office.3 Calhoun advised Jordan he
was in violation of the collective -bargaining agreement
on two points . One, that he did not obtain permission
of his supervisor to conduct union business , and that
he was "jumping the gun and soliciting a grievance
which is not part of the duties of a shop steward."
Jordan conceded the first point but expressed disagree-
ment as to the second and requested permission to
call the union office. Calhoun agreed, and also told
Jordan that Steven Dow, the last employee called in
by Calhoun because of his hair style, wanted to see
Jordan.
When Calhoun was advising Jordan of his alleged
breach of the collective -bargaining agreement, he called
his attention to the following provisions of the collective-
bargaining agreement in effect:
Article III, Section 2. Stewards shall report to
their immediate supervisors and request permission
to leave the job before leaving work to conduct
Union business. Permission will always be granted
unless such action would seriously interfere with
operations . In such instances , the supervisor will
make arrangements for the steward to leave the
job as promptly as possible.
Stewards will be allowed to conduct their Union
business within their regularly scheduled working
hours , within their assigned areas of representation.
Union business for this purpose is defined to mean
the investigation of complaints that may lead to
grievances , handling and adjustment of grievances,
and attendance at meetings with representatives
of the Employer.
' Jordan denies this conversation occurred . Where Jordan's testimony
conflicts with Calhoun 's, it is not credited . Calhoun appeared to be
a careful and conscientious witness while Jordan's demeanor as a
witness seemed less than candid Jordan 's testimony with relation.to
the events leading to the Brown grievance , the central event involved,
seemed deliberately vague and evasive For example, on cross-examina-
tion , Jordan testified as follows:
Q. (By Mr. Hoefs ) Now I'd like to call your attention to that
second grievance, the one involving Mr Brown, and ask you
some questions about that , and I understand from your testimony
this morning that took place on or about April 28, 1969 when
you observed Mr Brown working in the staging area assembling
some shelves; is that right)
A. No.
Q What did you observe"
A. I did not observe Mr . Brown working.
Q You didn' t see him working over there at all')
A. No.
Q. You didn 't know what he was doing , is that right"
A I did not observe Mr. Brown working.
Q. You heard from other employees what he was doing"
A. Mr. Brown told me what he was doing.
Q. He came to you?
A. I had heard from other employees first.
Q. Who were the other employees"
A I have no memory of that
Q And your testimony is that Brown came to you, to report
this incident You were not going to Brown"
A. No, it is not.
Q. What is it? You went to Brown"
A I went to Brown and spoke to him
515
The so-called haircut grievance was filed by Jordan
after Calhoun sent some of the employees home because,
in his judgment , they did not meet Respondent ' s stand-
ards of personal grooming. The record does not reflect
the disposition of this grievance.
The Brown Incident
The immediate events giving rise to this proceeding
involved a grievance filed by employee Steven Brown
who was under the supervision of Calhoun. On Saturday,
April 26, 1969, Calhoun started to make up some sample
shelving to be used in connection with an expansion
of his department. On Monday, April 28, 1969, he asked
Brown to complete the work he had started . In connec-
tion with the Brown incident , the record contains an
attenuated version by Jordan . Calhoun 's and Brunicardi's
version of what was reported to them by Brown differs
significantly from Jordan's.4
On direct examination Jordan related that he filed
a grievance with Calhoun, and that later in the day
he was given a file memo and transferred . Jordan relates
his supervisor, Calhoun, told him: "he had heard from
employees that I had made some statements that I
was out to get him or something like this , some derogato-
ry statement." Jordan also testified he told Calhoun
he had no malice towards him.
On cross-examination he conceded that after the griev-
ance was prepared he said to Brown referring to Calhoun,
"We've got him now, he won't be able to squirm out
of this." Jordan also conceded Brown tore up his griev-
ance when he regained it from Jordan.
Jordan's account of the Brown grievance is notable
for what it omits rather than what it includes. The
explanation of the origin of the Brown grievance that
Brown related to Respondent 's officials fleshes out the
skeletal version of Jordan by the testimony of Brunicardi
and Calhoun.
Respondent, through Calhoun, was presented with
the Brown grievance shortly after Calhoun had a basis
for believing Jordan was soliciting grievances in connec-
tion with the haircut episode of April 26, 1969, which
Calhoun believed to be a breach of the collective-bargain-
ing agreement by Jordan.
On April 28, 1969, just before noon, Brown asked
Calhoun for permission to see Jordan. About half an
hour later Jordan and Brown came to Calhoun's office
with a grievance for Brown to get more pay for his
work on the shelving that morning . According to the
grievance , Brown should have been paid at a higher
rate than his usual rate.5 Calhoun took the grievance
' Respondent ' s Counsel stated on the record that Brown was to
be called as a witness Brown was not called and no reason was
given for this apparent change of mind However , Respondent's defense
was amply established without the testimony of Brown who was a
member of the collective -bargaining unit represented by the Union,
the Charging Party in this proceeding.
' It seems that Jordan may have been "jumping the gun" here
as Brown's paycheck for the morning of April 28 , 1969, could scarcely
have been prepared prior to noon and it would seem that at the
minimum an inquiry as to what Brown was to be paid would have
-preceded the filing of a grievance Failure to make such an inquiry
516 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and gave it to his superior, a Mr. Zimmerman. Shortly
after Calhoun returned to his office, Brown came in
again and asked Calhoun for his grievance back. In
answer to Calhoun's query as to the reason, Brown
told Calhoun that he had heard from other employees
that Jordan had asked other employees in the department
to file grievances, and had told them if these were
enough grievances, "I will get rid of this guy (Calhoun)
for you." Brown also told Calhoun he ^ felt he was
being used by Jordan. Brown further told Calhoun that
early on the morning of April 28, 1969, Jordan came
to where he was working and told him to keep track
of his time and he would get more money for him.
Brown agreed and kept track of his time. When he
finished, he went to see Jordan and asked him how
he got more money. Jordan instructed him to see Calhoun
to get permission to talk to Jordan about union business
and Brown did so. On his return to Jordan, he found
him with a grievance form filled out. Brown told Calhoun
he balked at signing it, but Jordan told him it was
just a formality, and Brown signed it.
Calhoun asked Brown if he would repeat the conversa-
tion with other company officials and Brown agreed.
(He later repeated the same story to Calhoun and Labor
Relations Manager Brunicardi.) Calhoun reported the
events to his superior, Plant Superintendent Zimmerman,
and they both looked for Labor Relations Manager
Brunicardi, but could not locate him.
After Calhoun returned to his office, Systems Assem-
bly Supervisor Scofield came into his office." Scofield
was under Calhoun's supervision and in his department.
Calhoun's testimony describes the conversation with
Scofield.
Q. What did Mr. Scofield tell you?
A. When I was in my office, Mr. Scofield came
in and said, "What gives between you and Grant?"
[Jordan] And I said, "What do you mean?" And
he said, "Grant was just over talking to some
of my people and I went up and said, "I am
on Union business" and he turned around to me
and said "What was Leo [Calhoun] doing Satur-
day?" And I said, "I don't know; I was working
my own area."
Well, "who worked over in the staging area?"
and I told Grant "I don't know. I wasn't keeping
track of anybody over there; I was just watching
my own people." And Grant said, "Well, okay"
and left.
Scofield told Calhoun he got the impression Jordan
was trying to get him to file a grievance against Calhoun
for the work done in the staging area.
Later in the day, Labor Relations Manager Brunicardi
called Calhoun to inquire why Calhoun wanted to see
reflected Jordan's eagerness to get a grievance filed against Calhoun.
Jordan's assumption that Brown was not to be paid at a higher rate
may have been well founded but his failure to make even an inquiry
prior to filing the grievance reflects the probability the purpose of
this grievance was to harass Calhoun rather than to get Brown more
money.
" Scofield's job classification was included in the bargaining unit
represented by the Union.
him. Calhoun advised him of the conversations with
Brown and Scofield and asked permission to terminate
Jordan. Brunicardi informed Calhoun he would look
into the matter.
On Tuesday, April 29, 1969, Calhoun. received the
grievance concerning Brown back from Zimmerman and,
as instructed, wrote on it that the grievance was denied,
and there was no contract violation and handed it to
Jordan. Later in the day as Calhoun walked past Brown,
Brown told him, "Leo, you don't have to worry about
that grievance; I tore it up. Grant Jordan was not happy
about it, but I did it anyway."
Brunicardi discussed the Brown incident with union
officials . After he concluded that Jordan would not be
adequately dealt with by the Union for his conduct
relative to Brown, he instructed Calhoun to give Jordan
a file memo. This amounted to a reprimand to be included
in Jordan's personnel file. Brunicardi also believed that
the hostility between Calhoun and Jordan indicated a
separation during working hours, and after inquiries
as to where there was a need, arranged for Jordan's
transfer to department 40, with no change in pay and
doing work included in his job description.
Discussion
The question of permissibility of soliciting grievances
under the terms of the collective-bargaining agreement
is not presented here as an abstraction. The additional
factor present is that a grievance was solicited, so'
Respondent reasonably believed, for the express purpose
of "getting Calhoun." The apparent intent was to embar-
rass Calhoun, and have him transferred from the depart-
ment by having grievances filed for that purpose. The
timing of the grievance filed on behalf of Brown at
the very least reflected an eagerness on the part of
Jordan to get a grievance on file. Jordan's testimony
that Brown tore up his grievance (instead of processing
it further) supports a finding that Calhoun acted reason-
ably in relying on the conversations he had with Brown
and Scofield about Jordan's conduct. Also supporting
the reasonableness of Calhoun's belief in Jordan's con-
cession on cross-examination he told Brown referring
to Calhoun, "We've got him now, he won't be able
to squirm out of this." Jordan also conceded on cross-
examination that he asked Scofield what work Calhoun
had been doing on Saturday, April 26, 1969.
This testimony by Jordan constitutes probative evi-
dence, in light of the entire record, that Jordan in
fact did solicit the Brown grievance for the primary
purpose of "getting" Calhoun.
The intent by Jordan to have the grievance injure
Calhoun was the reason for Respondent reprimanding
and transferring Jordan. This is demonstrated by, the
contrast in Respondent's action in connection with the
incident involving employee haircuts. There Calhoun
believed Jordan was violating the bargaining agreement
by soliciting grievances without permission from his
supervisor. He merely gave Calhoun a verbal reprimand.
However, it was a very different story in connection
with the Brown incident where Calhoun and Respondent
LENKURT ELECTRIC CO.
had ample reason to believe Jordan was soliciting primari-
ly to damage Calhoun. Here Calhoun wanted to have
Jordan fired and Brunicardi authorized a written repri-
mand for his personnel file and arranged his transfer
so he could be separated from Calhoun. This disparity
in treatment in handling the two incidents supports the
view that Jordan was not reprimanded and transferred
because he merely solicited grievances but because he
solicited grievances for the purpose of damaging his
supervisor. It seems safe to assert without the prospect
of successful contradiction that the parties to the collec-
tive-bargaining agreement did not contemplate that the
provision giving the union stewards certain privileges
during working time could be employed to attempt to
damage or effect the removal of a supervisor. It seems
equally safe to assert the Act does not protect such
activities and an employee may be disciplined for them
even if he was acting under the guise of performing
his steward functions.
Solicitation of grievances and the Collective-Bargaining
Agreement
Although Jordan avoided testifying that he solicited
grievances from employees, the General Counsel in
his brief apparently contends Jordan was disciplined
for so doing. Inasmuch as Jordan's file memo recites
this as a reason for his reprimand it may be the basis
for such contention. However, it is noted there is a
contemporaneous written record of Respondent wherein
it is recited that Jordan was soliciting grievances in
order to "get Calhoun."
The relevant contract provisions are quoted above
and do no explicitly deal with the authority of a steward
to solicit grievances. The most relevant clause is the
one giving the right of the steward to investigate com-
plaints. In the note Jordan attached to the file memo
relating to the Brown incident he wrote as follows:
The issue which is being discussed in this memo
was the investigation of a complaint (my own)
leading up to a grievance (employee in my group).
I therefore am fully within my rights according
to Article III. Sec. 2 of the contract.
Literally construed, a complaint must precede the investi-
gation, and an investigation without a prior complaint
would exceed the authority of the steward. Aside from
the technical construction of the agreement, the issue
of the propriety of "soliciting" grievances becomes
needlessly confused by focusing on the right to solicit
grievances outside the context of actual events. In the
case at hand, for example, it would seem absurd to
argue the collective-bargaining agreement permits solicit-
ing primarily to harm a supervisor. On the other hand
it can readily be imagined, in a different context, the
beneficent effect of a union steward encouraging an
employee to assert his rights for the employee's own
benefit. Thus the propriety of solicitation of grievances
should be judged in the context in which it occurs.
Consequently, there is no necessity here for a finding
517
that soliciting a grievance is per se permitted or prohibit-
ed by the collective-bargaining agreement.
Therefore, irrespective of how the above provision
is interpreted , Respondent was entitled to discipline
Jordan without being in violation of the Act since Jor-
dan's conduct in soliciting the Brown grievance was
for a purpose not contemplated by the collective-bargain-
ing agreement or protected by the Act.
Respondent's claim that it transferred Jordan because
the continuing presence of Jordan and Calhoun in the
same department would continue an inharmonious situa-
tion seems eminently reasonable and well-founded.
Respondent had adequate basis for this belief.
The record contains considerable testimony on the
nature of Jordan's work before May 1, 1969, and after
his transfer on that date. It would support a finding
that the job after May 1, 1969, was less demanding.
Whether or not it was more or less desirable would
depend on a subjective value judgment. It included
work within the job description of Jordan's classification
and he received the same rate of pay as in his prior
job. At best, the record offers slight evidence Jordan's
job and work assignments after May 1, 1969, were
objectively less desirable. Because of the other consider-
ations attending the transfer , this factor is of no signi-
ficance here.
The General Counsel cites a prior National Labor
Relations Board proceeding involving Respondent report-
ed in 177 NLRB No. 87, as bearing on Respondent's
intent in the present proceeding. Nothing is found in
that case to change the findings indicated herein.
Concluding Findings
Respondent was warranted in reprimanding Jordan
because it had good cause to believe he was using
his Union steward's privileges to "get" his supervisor,
Calhoun. Further, Jordan solicited the Brown grievance
primarily to "get" his supervisor Calhoun.
The transfer of Jordan was reasonably necessary to
preserve harmony among Respondent's work force.
Even if it were part of a disciplinary move by Respondent
it would not constitute unlawful discrimination in viola-
tion of Section 8(a)(3) of the Act, since it was for
a cause unrelated to the purposes of the Act.
CONCLUSIONS OF LAW
1. Respondent is engaged in commerce and in opera-
tions affecting commerce within the meaning of the
Act.
2. The Union is a labor organization within the mean-
ing of the Act.
3. The Respondent has not violated Section 8(a)(3)
or 8(a)(1) of the Act.
RECOMMENDED ORDER
It is recommended the complaint be dismissed in
its entirety.