Southwest Ornamental Iron Co.

National Labor Relations Board - Board Decisions

Feb 27, 1973

201 N.L.R.B. 1023 (N.L.R.B. 1973)

SOUTHWEST ORNAMENTAL IRON CO. 1023
Southwest Ornamental Iron Co. and Claude A.
Larrabee. Case 17-CA-5264
February 27, 1973
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS JENKINS
AND KENNEDY
discharging Larrabee on May 23, 1972. The parties waived
their right to file briefs.
Upon the entire record made in this proceeding,
including my observation of the witnesses who testified, I
hereby make the following:
FINDINGS OF FACT AND CONCLUSIONS
1. BUSINESS OF THE EMPLOYER
On November 14, 1972 , Administrative Law Judge
Max Rosenberg issued the attached Decision in this
proceeding . Thereafter , the Charging Party filed
exceptions and Respondent filed a statement in
opposition to the 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 has
decided to affirm the rulings , findings, and conclu-
sions of the Administrative Law Judge and to adopt
his recommended Order.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended , the National Labor
Relations Board hereby orders that the complaint
herein be, and it hereby is , dismissed in its entirety.
1 As to the 8(a)(1) violation allegedly involved in Respondent 's denial of
Larrabee's request for the presence of the shop steward, we do not rely on
the Administrative Law Judge 's citation of Chevron Oil Company, 168
NLRB 574, 578 . The subsequent reprimand and warning of Larrabee for
poor production involved a very brief period of time and the incident
terminated at or about the same time as Larrabee's request for the presence
of the shop steward . In such circumstances, we do not consider the Chevron
principle applicable.
DECISION
STATEMENT OF THE CASE
MAx ROSENBERG , Administrative Law Judge: With all
parties represented , this proceeding was tried before me in
Kansas City , Missouri , on October 19, 1972, on a
complaint filed by the General Counsel of the National
Labor Relations Board and an answer filed thereto by
Southwest Ornamental Iron Co., herein called the Respon-
dent." At issue is whether Respondent violated Section
8(a)(1) of the National Labor Relations Act, as amended,
by threatening, reprimanding , and warning employee
Claude A. Larrabee regarding his productivity and refusing
to comply with his request that he be allowed to have a
representative of Local No. 435 , American Federation of
Grain Millers , AFL-CIO, herein called the Union , present
during the aforesaid disciplinary action . Also at issue is
whether Respondent violated Section 8(a)(3) of the Act by
I The complaint , which issued on August 30, 1972, is based on a charge
filed on July 25, 1972, and served on July 27, 1972.
Respondent , a Kansas corporation , operates a plant at
Bonner Springs, Kansas, where it is engaged in the
fabrication and manufacture of various types of steel
products . During the annual period material to this
proceeding , Respondent purchased products directly from
enterprises located outside the State of Kansas valued in
excess of $50,000 . The complaint alleges, the answer
admits, and I find that Respondent is an employer engaged
in commerce within the meaning of Section 2(6) and (7) of
the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of
Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
The complaint alleges that Respondent violated Section
8(a)(1) of the Act when , on May 2, 1972,2 it denied
employee Claude A . Larrabee's request that a union
representative be present during a discussion with Respon-
dent's production foreman , Terrell McConnell, in which
the latter reprimanded Larrabee for failing to meet
production standards . The complaint further alleges that
Respondent offended the provisions of Section 8(a)(3) by
discharging Larrabee on May 23 because he had filed a
grievance against it pursuant to a collective-bargaining
agreement then in effect between Respondent and the
Union. For its part, Respondent denies the commission of
any unfair labor practices proscribed by the statute.
It is undisputed and I find that Larrabee was employed
by Respondent in April 1962 and worked as a machine
operator until his separation on May 23. Larrabee was a
member of the bargaining unit covered by a labor
agreement between Respondent and the Union which was
effective from September 1, 1971, to August 31 , 1974, and
which contained a grievance and arbitration provision. On
the morning of May 2, Larrabee was approached at his
work station by McConnell and, during an ensuing
conversation , the latter informed the employee that
McConnell had been making a periodic timestudy of work
performances . McConnell reported that he had checked
the productive efforts of Larrabee and fellow employee
Bob Green and had discovered that Green , who performed
similar duties , had an output which exceeded Larrabee's by
approximately 100 percent . Larrabee retorted that "I take
my time and try to do quality work ," to which McConnell
rejoined that "we expect quality and quantity work" and
commented that if Larrabee "didn't speed up my pro-
2 Unless otherwise indicated , all dates herein fall in 1972.
201 NLRB No. 153
1024 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
duction he was going to put it on my record and he was
going to fire me." Larrabee then stated that, if he received
a merit raise , Respondent might expect him to increase his
productivity.3 When McConnell observed that Respondent
was "not running a retirement home for" Larrabee, the
latter became angry and he requested that the shop
steward should be brought into the discussion. McConnell
responded that "he didn't want to disrupt the shop on
company time to bring the steward over to the work area"
and the foreman walked away. At this juncture, Larrabee
sought out James Miller, the union president who worked
in the plant, and reported that McConnell had reprimand-
ed him without allowing the shop steward to be present.
This was not the first occasion on which Larrabee had
been warned about his lack of productivity. By his own
admission, Larrabee had previously been reprimanded
"pretty often" for failing to meet production standards
and, on these occasions, had been warned of possible
termination unless his work performance improved. In-
deed, on March 16, 1971, Larrabee drafted a grievance
which recited that "on Monday, March 8, 1971, Mr.
McConnell approached me with the statement that I was
not running these two machines fast enough to suit him.
And that he thought that I was 'doggin' it, and that I was
not going to get away with it now that He was Supervisor.
And that he was going to have the Company write me an
inefficiency warning letter... .
Continuing the narrative, on the morning on May 3,
Supervisor Robert Curtis visited Larrabee's work station
and set up the speed on the latter' s machine. In the
presence of McConnell, Larrabee was told that "if I didn't
keep the machine at that speed that I could walk right out
the gate, if I didn't like keeping the machine at that speed I
could walk right out the gate." As McConnell and Curtis
prepared to leave, Larrabee commented that "if they ever
come over again to chew me out, that I wanted them to
bring the entire grievance committee with them." Shortly
thereafter, Larrabee informed Union President James
Miller and Shop Steward Karl Sheidt that he intended to
file a grievance against McConnell and Curtis.
On May 22, Larrabee composed the grievance which
reads as follows:
On May 2, 1972, Mr. T. McConnell came to my work
area and made the discourteous remark, that the
company was not running a 'Retirement Home' for me.
And as usual, made HIS ONE SIDED DEMANDS,
and threats in an effort to force me to "SPEED UP"
my production. (this has never worked, and it never
will work, until the Company Officials agree to pay me
a "MERIT RAISE" in exchange.) Then, I asked Mr.
McConnell to bring the shop stewards to my work area,
and HE FLATLY REFUSED.
On May 3, 1972, Mr. Robert Curtis came to my work
area and set up the speed on my machine demanding
that I keep it at that speed, and if I didn't like it, that I
could walk right out the gate. I asked him to bring the
union shop stewards to my work area and HE ALSO
FLATLY REFUSED.
I have discussed the matter many times with both Mr.
3 In his own words , Larrabee testimonially confessed that " I did refuse
[to produce to the maximum] in the sense that I did not speed up
McConnell and Mr. Curtis that I am working at the
company, mainly for wages. And that any confrontation
by any company official to try to force me to speed up
my production will automatically stir up a labor
dispute. Unless, of course, they are prepared to bargain
collectively.
In the interest of fair labor practices, I shall always
strive to keep my production on the same level with my
wages , according to my seniority. "
The grievance was presented to President Miller, Shop
Steward Scheidt , and Secretary-treasurer John Shoemaker
that day. After reading the document, the union officials
returned it to Larrabee with instructions for Larrabee to
recast it because it did not appropriately charge McCon-
nell and Curtis with a contract violation. Larrabee
redrafted the instrument that evening and again proffered
it to the union representatives on the morning of May 23.
After reading the grievance, they again refused to entertain
it or sign it. At this point, McConnell and Curtis
approached the assemblage and inquired as to why
Larrabee "was disrupting the shop." The latter replied that
he had a grievance which he wished to file. Together with
Miller and Scheidt, Larrabee proceeded with McConnell
and Curtis to the office of George Gibson, an assistant to
Respondent's vice president. Miller turned the grievance
over to Gibson , and, after reading its contents , Gibson
simply remarked, "O.K." Turning to Miller and Scheidt,
Larrabee asked them if they still persisted in refusing to
sign the grievance, and the former replied in the affirma-
tive. Larrabee then inquired, "Do you guys intend to
represent me on this grievance?" and the union officials
stated that "they didn't think [LarrabeeJ had a legitimate
grievance." Thereupon, Larrabee, Miller, and Scheidt
returned to their jobs.
At the end of the work shift on May 23, Larrabee was
summoned to the office of Supervisor Hinkle. Hinkle
announced that Respondent was dissatisfied with both the
quantity and quality of Larrabee's work, after conferring
with a Foreman Shoemaker. Hinkle then stated that
Larrabee was terminated. After receiving his paychecks
and retrieving his tools, Larrabee left the plant. It is
undisputed and I find that, in the terminal interview, the
only reason assigned for Larrabee's discharge was that his
productivity did not measure up to Respondent's stand-
ards. Moreover, it is also undisputed and I find that,
although McConnell was responsible for the decision to
effect the termination, he was unaware that Larrabee had
filed a grievance on May 23. Rounding out the narrative,
Larrabee filed a claim in June with the Kansas Department
of Labor Employment Security Division . In that claim, he
stated that "I did refuse to meet certain production
requirements."
Based on the foregoing facts, which are not essentially in
dispute, I find and conclude that Respondent severed
Larrabee from its employment rolls, not because he had
filed a grievance on May 23, but because he had
consistently failed to meet Respondent's production
demands unless he received a merit increase. I therefore
production." Larrabee further admitted that he had been consistently
denied merit increases because of poor production.
SOUTHWEST ORNAMENTAL IRON CO. 1025
conclude that Larrabee's discharge was not violative of
Section 8(a)(3) of the Act.
Moreover, I am not convinced that Respondent violated
Section 8(a)(1) by refusing to allow the presence of the
shop steward on May 2 and 3 when Larrabee was
reprimanded by McConnell and warned to improve his
work efficiency, and when Curtis set up the speed on
Larrabee's machine. As the Board noted in Chevron Oil
Company, 4 "a grievance in the statutory sense does not
arise unless and until a management decision has been
formulated to affect adversely an employee's wages, hours,
or other terms and conditions of employment, and the
decision is on the brink of implementation." On May 2,
McConnell had made a periodic production check and
discovered, as he had in the past, that Larrabee was not
cutting the mustard and warned him, as McConnell had in
the past, either to increase production or suffer the penalty
of discharge. The following day, Curtis speeded up the
output of Larrabee's machine to accomplish greater
productivity. At this juncture, no decision had been
reached on Larrabee's employment fate. At this time,
4 168 NLRB 574, 578
5 In the event that 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
Larrabee communed with his union representatives and
explained the content of the reprimand. The representa-
tives advised him to draft up a grievance for their
consideration and submission to management . He did so
on May 22, but was unable to convince the union officials
that the grievance was meritorious and was instructed to
revise the instrument. On May 23, Larrabee presented the
revised grievance to the Union and they again refused to
process it because it lacked merit. Nevertheless, both
Miller and Scheidt accompanied Larrabee to the office of
Gibson where, together with McConnell and Curtis, the
grievance was fully explored. Under these circumstances, I
am not convinced and therefore conclude that Respondent
did not violate Section 8(a)(1) of the Act by its conduct on
May 2 and 3. I shall therefore recommend that the
complaint be dismissed in its entirety.
ORDERS
It is hereby ordered that the complaint filed herein be
dismissed in its entirety.
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.