Robbins & Meyers, Inc.

National Labor Relations Board - Board DecisionsNov 12, 1968

173 N.L.R.B. 710 (N.L.R.B. 1968)

710 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Hunter Division , Robbins & Myers , Inc. and Bobby Settle. Case 26-CA-3060 November 12, 1968 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING AND ZAGORIA On August 27, 1968, Trial Examiner Bernard J. Seff issued his Decision in the above-entitled proceeding, finding that the Respondent had not engaged in the alleged unfair labor practices and recommending that the complaint be dismissed in its entirety, as set forth in the attached 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 connection with this case to a three-mem- ber panel. The Board has reviewed the rulings of the Trial Examiner 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. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby adopts as its Order the Recommended Order of the Trial Examiner, and orders that the complaint herein be, and it hereby is, dismissed in its entirety. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE BERNARD J. SEFF, Trial Examiner This case was heard before me in Memphis, Tennessee, on July 22, 1968, upon allegations in the complaint issued on May 31, 1968, based upon a charge filed on April 16, 1968, that the above-named Respondent had violated Section 8(a)(1) and (3) of the Act by discharging Bobby Settle because of his union and/or con- certed activities In its answer the Respondent denied that it had violated the Act Upon the entire record in the case, including my observa- tion of the witnesses and their demeanor while testifying, and a consideration of the briefs filed with me by counsel for the General Counsel and the Respondent, respectively, I make the following FINDINGS OF FACT I [HE BUSINESS OF THE RESPONDENT Respondent is an Ohio corporation with a plant and place of business located at Memphis, Tennessee , where it is engaged in the manufacture of fans, heating equipment and motors During the past 12 months , Respondent purchased and received at its Memphis , Tennessee , plant, products and materials valued in excess of $50,000 directly from points outside the State of Tennessee , and, during the same period, Respondent manufactured , sold and shipped from its Mem- phis, Tennessee , plant products valued in excess of $50,000 directly to points outside the State of Tennessee Respondent is an employer engaged in commerce within the meaning of the Act. II THE LABOR ORGANIZATION INVOLVED The Union, International Union of Electrical, Radio and Machine Workers, AFL-CIO, Local Union No 790, is a labor organization within the meaning of the Act. III. THE EVENTS LEADING UP TO THE SUSPENSION AND DISCHARGE OF EMPLOYEE SETTLE Foreman Fant told General Foreman Shinault that Settle had been away from his work station for 20 minutes on Wednesday morning, March 13, 1968, and that on both Monday, March 11, and Tuesday, March 12, Fant had noticed that Settle was away from his assigned post and therefore Fant was timing the present absence Settle returned to his work station 20 minutes after leaving it Fant questioned Settle about this incident. Settle shouted in a loud voice that he would stay in the restroom as long as he needed to even if it was 30 minutes. Settle said there was nothing in the Respondent's rules which defined how long an employee could stay in the restroom. Fant told him if he did stay away from his job he would have to write a warning on Settle and Settle answered that he did not care how many warnings were written, he, Settle, would not accept them Shinault was present with Fant during this noisy colloquy and noticed that Settle was wearing safety glasses with colored lenses Upon being questioned as to where he got the colored glasses Settle told Shinault it was none of his business. Shinault said it was his business-he was in charge of it and he should know where Settle got them. Settle refused to tell Shinault where he had secured the glasses. Shinault told Settle that no one could work in the machine shop without wearing clear safety glasses. Settle said he could not wear clear glasses they hurt his eyes. Settle asked if there were other jobs open but upon being told there were no vacancies elsewhere he said he needed to work so he would wear the clear glasses. Shinault took Settle to the office of the director of personnel, Eugene Garrety, and after telling Settle to wait in the lobby explained to Garrety that Settle raised his voice and neither Fant nor Shinault could talk to him Garrety told Shinault to let Settle take his morning break and then to get the union shop steward and go back and see if she could talk to him The shop steward, Mrs Shelton, together with Fant and Shinault told Settle to tone down his voice but their combined efforts were unsuccessful and other employees stopped their 173 NLRB No 113 HUNTER DIV., ROBBINS & MYERS, INC 711 work to look on at the controversy Shmault told Settle to put on his safety glasses and he replied that he did not have to wear the damn glasses. Mrs Shelton testified without con- tradiction that when she asked Settle to quiet down he said he was paying the Union $4 25 a month to do as he pleased. Shrnault told Settle that he was suspended This fact was reported to Mr Garrety who asked Shinault to prepare a written report on the incident and the matter would be discussed further next day, March 14 Shinault stated that he had occasions in the past to warn Settle both orally and once in writing that he must wear clear safety glasses It was explained that the only employees who were permitted to wear colored safety glasses were those who were engaged in welding and soldering operations. Shmault told Mr. Garrety and Plant Manager Sickinger that he did not want Settle in the machine shop again because "anyone that we couldn't correct and talk to and communicate with, I did not need " The General Counsel sought to elicit testimony from the Union president, Bilbo McIver, and union shop steward, William Sutton, that it was the practice of the Union not to file a grievance while an employee was in suspended status and the facts relating to the suspension were under investigation Sutton stated that sometimes this happened but when a union member requested that a grievance be filed on his behalf this was done. McIver said that it was his policy to inform the employee in question that under the terms of the contract a grievance had to be filed within 5 days from the time of the suspension or it could not be filed at all. Both Garrety and Shinault testified that it was the Company's policy to first suspend an employee, then get together with the supervisor and determine the facts and lastly to request a written report concerning the incident in question When these steps had been taken a meeting would then take place among the supervisor in question, the plant manager and the director of personnel at which time final disposition would be made of the matter. On Friday afternoon, March 15, a meeting was held in Garrety's office and after reviewing the facts it was decided that Settle should be discharged, a telephone call was made to Settle's number, he was not in and his wife was told that Settle had been discharged Sometime around 2 30 p.m. on March 15, Mrs. Shelton called at Mr Garrety's office and secured grievance papers which she took home over the weekend. The grievance was filed on behalf of Settle on Monday, March 18 IV. THE ALLEGED UNFAIR LABOR PRACTICE The General Counsel sought to make his case in chief through the testimony of Eugene Garrety, Respondent's director of personnel, who was called to the stand as a 43(b) witness. The main thrust of the General Counsel's theory is that the responsible company officials had received all the information they needed to reach a decision on the case by March 14, 1968, but did not reach a conclusion until sometime after 2.15 p.m on March 15, by which time their attention had been called to the fact that Settle intended to file a grievance protesting his suspension. The union shop steward, Shelton, had called at Garrety's office to secure grievance forms from him and stated that the purpose of her securing grievance forms was to file a case on behalf of Settle. Shortly before 5 p m., after a conference among Shinault, Plant Manager Sickinger and Garrety, a telephone call was made to Settle, who was not at home at the time of the call, and Mrs Settle was told that her husband had been discharged. The General Counsel took the position that it was not until the Respondent had knowledge of Settle's intention to file a grievance that his discharge was decided upon. In the opinion of the General Counsel the decision to discharge Settle was triggered when the Respondent learned that he would file a grievance and shortly thereafter determined to discharge him. Thus the timing of the Company's action was both precipitate and suspicious. Garrety explained that it was company policy if a suspen- sion occurs during the middle part of a particular week, Friday has normally been the target date to conclude the matter. In the instant case Settle was suspended on Wednesday, March 13 and was discharged on Friday, March 15. Garrety testified that Settle was discharged for loafing, not following instructions, loitering in the restroom, not wearing safety equipment and belligerently stating with respect to safety glasses that he did not have to wear the damn things It was also brought out that Settle had received both written and oral warnings that he was required to wear clear safety glasses Garrety, Shmault and Sickinger all testified that the fact of Settle's decision to file a grievance had nothing to do with his discharge. Respondent has enjoyed uninterrupted relations with the Union for 16 years and in the normal course of its dealings with the labor organization handles many grievances. Garrety testified that in the past year the Union has filed ap- proximately 130 grievances The General Counsel did not allege that Respondent had ever taken disciplinary action against other employees who filed grievances nor was any evidence adduced to explain why Settle should have been treated differently from any other employee with respect to being discharged for filing a grievance. Settle himself testified and, for the most part, did not refute the testimony offered by the Respondent There was one substantial variance which related to the tone of voice used by Settle when he was being questioned by his supervisors and union steward Shinault, Fant and Shelton all testified that Settle spoke in a loud angry voice and in fact was so noisy that employees at nearby work stations stopped work to listen to the dispute Settle denied he raised his voice and said that Shmault became angry and spoke to him in a loud voice There is no reason to doubt the accuracy of Shinault, Fant and Shelton's testimony on this point. It strains credulity to imagine that these three witnesses fabricated their stories. I credit this testimony and do not credit Settle who was unconvincing and evasive as he testified with respect to this point There are serious difficulties with the General Counsel's position. First there is undisputed testimony that Re- spondent's machine shop foreman, Alvie Shmault, told Plant Manager Sickinger on March 14, 1968, that he did not want Settle back in the shop because any employee who could not be corrected or talked to was not needed. Shinault also told the Union president, Bilbo McIver, on March 14, 1968, that Settle would not be back at work. The above-referred-to conversations took place on March 14, and offer convincing proof that one day before the Respondent had any knowledge that Settle intended to file a grievance Shinault had decided that Settle would be discharged. Secondly the evidence is not disputed that the Respondent received approximately 130 grievances dunng the past year, 712 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that the incumbent union has represented its employees since 1952, that the Union represents 700 employees in the bargaining unit. It appears clear from the record that the filing of grievance is a routine matter. The record does not contain even a suggestion that the filing of a grievance invites reprisals on the grievant. No testimony was adduced by the General Counsel to the effect that suddenly, without any reason, upon Settle's deciding to file a grievance, an accepted routine fact of industrial life was to be regarded as so unusual as to justify the discharge of the grievant. Thirdly, and as a corollary to the second point supra, it is emphasized that there is a complete absence of any evidence of union animus or discriminatory intent. In conclusion it should be noted that no evidence was adduced by the General Counsel establishing a causal connection between the discharge of Settle and his filing of a grievance. On the facts in the instant case it seems clear that Settle was insubordinate in refusing to follow the instructions of his supervisor Shinault, that he refused to wear clear safety glasses as he was instructed to do; that he resisted even the efforts of his union representative to elicit from him a quiet voiced explanation of his problem, that he asserted he was paying $4.25 per month in union dues to "do as he pleased." From all the evidence I conclude that Settle was discharged for the reasons assigned by the Respondent and not because a grievance was filed on his behalf by the Union I shall therefore recommend dismissal of the complaint in its entirety CONCLUSIONS OF LAW 1 The Respondent is an employer within the meaning of Section 2(2) of the Act, 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. The Respondent has not engaged in the alleged unfair labor practices RECOMMENDED ORDER It is recommended that the complaint be dismissed.