Square D Co.

National Labor Relations Board - Board Decisions

Jun 14, 1973

204 N.L.R.B. 154 (N.L.R.B. 1973)

154 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Square D Company and International Brotherhood of
Electrical Workers, Local 2220, AFL-CIO. Case 9-
CA-6992
June 14, 1973
DECISION AND ORDER
BY MEMBERS JENKINS, KENNEDY, AND PENELLO
On January 24, 1973, Administrative Law Judge
William J. Brown issued the attached Decision in this
proceeding. Thereafter, the Respondent filed excep-
tions 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 at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge to the
extent that they are consistent herewith.
The Union has represented Respondent's employ-
ees since the commencement of production in 1957.
Over this long period of time it has filed and processed
many grievances pursuant to the parties' contractual
grievance-arbitration procedures. The Administrative
Law Judge has found that on two occasions, in Febru-
ary 1972 and again in late March or early April 1972,
Respondent Shift Supervisor Moberly told Union
Steward Walton at grievance meetings concerning
walk-space obstructions that the grievances
amounted to nit-picking and that Walton should file
no more grievances on the subject, and he concluded
that Respondent thereby violated Section 8(a)(1) of
the Act. However, the record shows that only a single
meeting took place between Moberly and Walton
concerning a walk-space grievance at which Moberly
talked to Walton in the aforementioned manner.
Thereafter, according to Walton's own testimony.
"Every time the aisle was piled up and we wanted it
cleared up we filed a grievance." Many other types of
grievances were also filed, at least 60 pertaining solely
to the matter of access to the salaried workers' can-
teen, which Respondent has been processing on an
individual basis though involving the same subject
matter. No one has suffered disciplinary action for
filing these grievances.
In the circumstances described, we do not find that
Moberly's remarks to Walton on the single, isolated
occasion noted above rises to the level of an 8(a)(1)
violation. But even were we to assume that such re-
marks may have been in technical contravention of
the Act, we do not believe that they are sufficient to
justify either the finding of an unfair labor practice or
the issuance of a remedial order.'
In so concluding, we are not, of course, unmindful
of our Collyer 2 resolve to encourage collective bar-
gaining by requiring parties to adjust their differences
through their own agreed-upon methods. But we re-
ject our dissenting colleague's charge that our disposi-
tion of the case "permit[s] Respondent to discourage
use of the grievance-arbitration machinery." Viewed,
as they must be, in the total context of the parties'
bargaining relationship, Moberly's remarks do not
evidence a rejection by Respondent of the principles
of collective bargaining or indicate a repudiation of
the terms of its agreement with the Union. For sure,
they do not appear to have had an inhibiting effect on
the subsequent filing of grievances.
Accordingly, we shall dismiss the complaint in its
entirety.
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 herein
be, and it hereby is, dismissed in its entirety.
MEMBER JENKINS , dissenting:
For the reasons set out in the Administrative Law
Judge's decision, I would affirm his finding of a viola-
tion of Section 8(a)(1) in Respondent's efforts to pre-
vent the union from filing grievances. Inasmuch as we
have been told repeatedly by the courts that if we find
a violation we must provide a remedy, I would do so.
Even more curious, however, is the willingness of two
sponsors of the Collyer deferral-to-arbitration policy
to permit Respondent to discourage use of the griev-
ance-arbitration machinery, which in Collyer they
hailed as the most appropriate method for resolving
disputes which in any way touch upon the substance
of the union contract. If the Collyer majority requires
the union to go the grievance-arbitration route rather
than come to this Board in cases of statutory viola-
tjons, and then will not remedy an employer's efforts
unlawfully to shut off access to that route, the Act is
indeed made meaningless.
1 See American Federation of Musicians, Local 76, AFL-CIO (John C
Wakely), 202 NLRB No. 80.
2 Collyer Insulated Wire, a Gulf and Western Systems Co., 192 NLRB 837.
DECISION
WILLIAM J . BROWN , Administrative Law Judge: This pro-
ceeding under Section 10(b) of the National Labor Rela-
tions Act, as amended, came on to be heard at Lexington,
SQUARE D COMPANY 155
Kentucky, on October 11, 1972. The original charge of un-
fair labor practices was filed on April 24, 1972, by the
Charging Party, hereinafter sometimes referred to as the
Union, and the complaint herein was duly issued on June
30, 1972, by the General Counsel of the National Labor
Relations Board, acting through the Board's Regional Di-
rector for Region 9. It alleged, and the duly filed answer of
the Respondent, hereinafter sometimes referred to as the
Company, denied the commission of unfair labor practices
defined within the scope of Section 8(a)(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 briefs were received from the General Counsel and the
Company and 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
1. 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, is engaged at its plant in
Lexington, Kentucky, in the manufacture of electrical
equipment and, during the 12-month period preceding is-
suance of the complaint herein, purchased and caused to be
shipped to its Lexington plant directly from points outside
the Commonwealth of Kentucky, goods and materials val-
ued in excess of $50,000. I find, as the Company concedes,
that it is an employer engaged in commerce within the pur-
view of Section 2(6) and (7) of the Act.
II THE LABOR ORGANIZATION INVOLVED
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
The Union has been the collective-bargaining representa-
tive of the Company's production and maintenance em-
ployees since the commencement of production in 1957. At
all material times employer-employee relations have been
governed by a collective-bargaining agreement. The current
agreement runs for the term March 1971 to February 28,
1974. It contains a provision to the effect that disputes over
interpretation or application of the agreement shall be ad-
justed under an established grievance procedure. The grava-
men of the General Counsel's complaint is that Supervisors
Verne Curtis, Darrell Moberly, and Bobby Dale by words
and deeds frustrated the grievance process and the adminis-
tration of the agreement. The Company has denied the
commission of the unfair labor practices alleged. Alterna-
tively it asserts that all instances of alleged unfair labor
practices are embraced by the existing agreement between
the Company and the Union and that the Board should
defer to the existing contractual arbitration procedures.
A. Verne Curtis
Verne Curtis, second shift manager and admittedly a su-
pervisor, is alleged in paragraph 5(a) of the complaint to
have, in the period from November 1971, through April
1972 to have engaged in four instances of unfair labor prac-
tices.
General Counsel alleges in paragraph 5(a)(i) of the com-
plaint that, during the month of November 1971, Curtis
refused to discuss a grievance at a prearranged grievance
meeting, terminated said meeting with a vulgar demand
that the grievant and the union representative leave the
office and physically ousted an employee representative of
the Union with the threat that a future refusal would result
in discharge. The grievant in question, Bobby Cole, appears
to have miscalculated the date of this meeting and in fact
the incident in question occurred September 28 and is bar-
red by the limitations of Section 10(b) of the Act. In any
event I credit Curtis' account to the effect that Curtis en-
gaged in no verbal or physical improprieties on this occa-
sion. I therefore recommend dismissal of the allegations of
the complaint in paragraph 5(a)(i).
The complaint alleges in paragraph 5(a)(ii) that during
December 1971, Curtis replied to a request from Union
Steward Hayes that a chief steward be present during the
discussion of disciplining of two employees in Curtis' office,
by vulgarly ordering the steward to leave the room. Hayes'
recollection of the discussion and events on this matter is
shown to have been indistinct and the evidence indicates
that the matter was resolved with the assistance of the chief
steward. There would appear to be no unfair labor practices
involved in this incident and I recommend dismissal of
paragraph 5(a)(ii) of the complaint.
Paragraph 5(a)(iii) of the complaint alleges that, during
February 1972, Curtis threatened a chief steward with dis-
charge if he continued to refuse to let Company foremen
make appointments for his conduct of union business. As
the company brief points out, this matter must have arisen
in December 1971, when a conversation occurred between
Camuse and Curtis concerning the latter's refusal to allow
Camuse to see a management official. I credit Curtis' denial,
in any event, of having threatened Camuse with discharge
on the occasion in question and I recommend dismissal of
the allegations of the complaint in this regard.
It is alleged in paragraph 5(a)(iv) of the complaint that the
Company engaged in unfair labor practices in the course of
a grievance meeting on or about April 17, by ridiculing the
Union and its officers and accusing the officers of collecting
1 The allegations of paragraphs 5(a) and (b) of the complaint characterize
the unfair labor practices therein alleged as having "vulgar" overtones. It is
assumed that the vulgantyin question was most probably not unknown in
the shop and, in appraising the evidence, I attach no particular significance
to the vulgar aspects of the discussions involved . Since the nature of the
unfair labor practices here alleged involves the use or abuse of the contractu-
al procedures themselves , I cannot see much to be said for deferring to
arbitration in this case.
156 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
excessive dues while doing nothing for the employees. Ca-
muse testified that , in the course of a grievance meeting in
April 1972, General Foreman Curtis said that the Union
charged excessive dues and wasted the receipts on expensive
trips, using funds that could be applied to repair of the
parking lot . I conclude that this comment was not of a
nature such as to constitute an unfair labor practice but
rather within the protection afforded free speech devoid of
coercion.
B. Darrell Moberly
Moberly, a company employee since 1958 and manager
of plant 2 on the first shift for 2-1/2 years, at the time of the
hearing herein , is alleged to have engaged in conduct consti-
tuting interference , restraint, and coercion under the Act on
six different occasions.
Paragraph 5(b)(i) of the complaint alleges that in Febru-
ary 1972 Moberly told a union steward that a certain griev-
ance filed concerning an uncorrected safety problem
amounted to no more than nitpicking and that he should file
no more grievances on the particular matter . The steward
in question , James Walton , testified that in the course of a
February 1972 meeting, Moberly said that certain griev-
ances filed concerning obstructions in a walk-space
amounted to nitpicking , and should not have been filed, and
that he should file no more grievances on the matter. The
evidence indicates that the matter of crawl space could
reasonably be considered a matter of substantial concern to
employee safety and I find that Moberly's interdiction of
further protests could well inhibit the processes of bargain-
ing or safety discussions on the subject . I conclude that the
allegations of paragraph 5(b)(i) of the complaint are sus-
tained by the preponderance of the evidence and I conclude
that the Company engaged in the unfair labor practices
alleged in this section of the complaint.
Paragraph 5(b)(ii) of the complaint alleges that the Com-
pany engaged in unfair labor practices through Moberly's
conduct, on or about March 23, in taking incomplete griev-
ances from a union steward on the false claim that the chief
steward had agreed that the steward should stop filing the
particular grievances . This allegation relates to an encoun-
ter between employee Walton, a union steward, and Mober-
ly. Walton testified that a problem existed relating to the
lack of a canteen in plant 2 and the Company's blocking of
access from plant 1. A grievance was processed on the sub-
ject and Moberly announced that there would be no more
grievances entertained in the matter . Since the Union failed
to seek further relief within the established contractual pro-
cedures available, I cannot conclude that the policies of the
Act would be furthered by the finding of unfair labor prac-
tices in this incident and I recommend dismissal of the
allegations of paragraph 5(b)(iii) of the complaint.
Paragraph 5(bxiii) of the complaint alleges that Moberly,
about March 23 threatened an employee with disciplinary
action if he persisted in filing grievances on employee re-
quests . This item relates to the enforcement of the plant rule
against allowing hourly rated employees access to the sala-
ried workers canteen . The Company enforced the rule in
March 1972 and a number of hourly employees filed griev-
ances . When the Company supervisors noted the steward,
Walton, working on them , Moberly took the grievances,
without protest from Walton , discussed their handling with
Personnel Manager Cowley , and then returned the griev-
ances to Chief Steward Blackwell . This incident relates en-
tirely to an apparent misunderstanding resulting from
company efforts to minimize the volume of discussions over
many complaints on the same subject . There is no evidence
of a rejection by the Company on the principles of collective
bargaining nor does the evidence indicate a repudiation of
either the terms of the agreement . I recommend dismissal of
the allegations of paragraph 5(b)(iii ) of the complaint.
The complaint alleges in paragraph 5(b)(iv) that Moberly
committed unfair labor practices on an unknown date in
late March or early April 1972, by telling a union steward,
in the presence of the chief steward and an employee that
he wanted no more grievances filed on a matter even though
the Union might have advised the employee to file the griev-
ance . Union Steward Walton testified that he filed a griev-
ance concerning a safety problem arising out of the narrow
width of an aisle frequently used by employees in getting
tools . Following the filing of this grievance the situation was
remedied but recurred when the aisle again filled up and
Walton filed five or six additional grievances on the subject.
Thereupon at a meeting in Moberly 's office Moberly ac-
cused Walton of nitpicking and told him to file no more
grievances on the subject. Although Moberly denied issuing
such a prohibition I credit Walton 's account. I find
Moberly's interdict to be an instance of interference, re-
straint , and coercion as alleged in the complaint.
Paragraph 5(b)(v) of the complaint alleges that in March
or April 1972 Moberly directed a chief steward , in the pres-
ence of a steward and an employee, not to authorize the
steward to file a grievance against Moberly's orders , threat-
ening the steward with suspension if he did so authorize the
filing . This aspect of the case is another facet of the continu-
ing grievance filing concerning the Company rule prohib-
iting unit employees from using the salaried employees
canteen . I credit Moberly's testimony that the grievances in
question were not signed and conclude that there occurred
no unfair labor practices of the nature alleged in this partic-
ular section of the complaint.
Paragraph 5(b)(vi ) of the complaint alleges that the Com-
pany , through Moberly , engaged in unfair labor practices
by telling a chief steward , about April 21, in the presence
of a steward and employees, that all of the steward 's safety
complaints were ridiculous and a waste of time. Steward
Walton testified that on the date in question Moberly stated
to him that his safety complaints were ridiculous and a
waste of time . Moberly did not directly dispute the account
of Walton but the incident in question clearly appears to be
an expression of opinion and I can find no unfair labor
practices in this instance.
C. Bobby Dale
Dale, admittedly a supervisor in his job as a department
SQUARE D COMPANY 157
manager on the -second shift , is alleged in the complaint to
have engaged in six separate instances of conduct
amounting to violation of Section 8(a)(1) of the Act. Prior
to his becoming a supervisor Dale had worked for some
period as a unit employee. At that time Dale had been a
chief steward , a board member , and local vice president.
Section 5(c)(i) of the complaint alleges that Dale engaged
in unfair labor practices within the scope of Section 8(a)(1)
of the Act on or about October 27 by telling a union steward
that he would have to come to the chief steward's workplace
to discuss union business inasmuch as the chief steward
would not be allowed to leave his work location.
Steward Kenneth Hayes testified that on October 27,
1971, foreman Dale told him that Chief Steward Camuse
would no longer be permitted to leave his work group for
the handling of union business. Dale denied making such a
statement and I credit his denial . I recommend dismissal of
these allegations of the complaint.
The complaint alleges in paragraph 5(c)(ii) that on or
about October 27 Dale delayed a steward in communicating
with his chief steward while questioning the steward as to
the nature of the business to be discussed . Hayes testified
that on the same occasion as referred to in the discussion
above , Dale questioned him concerning union business. The
evidence indicates, however, that the only delay and inquiry
involved in the situation was merely such minor amount of
time as was necessary for the department manager to satisfy
himself that the rights of the Company to insure that claims
of union business are appropriate, were maintained. I can
see no unfair labor practice in evidence on this aspect of the
case, and therefore recommend dismissal of the allegations
of Par. 5(c)(ii) of the complaint.
The complaint alleges in paragraph 5(c)(iii), that Dale
engaged in unfair labor practices sometime during February
1972 by insisting that the chief steward have appointments
for the conduct of union business . It appears from Camuse's
testimony, however, that most this issue was considered but
that no firm position was, ever taken by the Company on it.
There does not appear to be a preponderance of testimony
to establish the allegations of paragraph 5(c)(iii ) of the com-
plaint and I recommend its dismissal.
Paragraph 5(c)(iv) of the complaint alleges the commis-
sion of unfair labor practices by Dale's action about April
17, in delaying a chief steward while Dale tried to find
another foreman to see if the chief steward was wanted in
the other foreman 's department . The evidence indicates that
the delay involved amounted to no more than 20 minutes
while Dale took steps to see if Camuse's presence was neces-
sary. Thus there was at most a minor delay, for sufficient
cause, in the handling of the matter in question . No unfair
labor practice appears to have been involved in this reason-
able and necessary delay . I recommend dismissal of the
allegations of section 5(c)(iv) of the complaint.
It is alleged in Par . 5(c)(v) of the complaint that on or
about April 24, 1972 Dale engaged in unfair labor practices
by giving a chief steward a reprimand in retaliation for the
filing of a grievance by the chief steward. Camuse testified
that he was given an oral warning on April 25 or 26 because
he had filed a grievance charge against Dale. The evidence
indicates that the reprimand was given Camuse for leaving
his work station without first securing his foreman's permis-
sion. While there can be no doubt but that there were mutu-
al recriminations and jockeying for the last word on many
occasions, I cannot conclude that the evidence preponder-
ances in favor of finding an unfair labor practice episode.
Rather the evidence indicates that the reprimand given Ca-
muse appears justified in the circumstances . I recommend
dismissal of the allegations of paragraph 5(c)(v) of the com-
plaint.
Paragraph 5(c)(vi) of the complaint alleges that on num-
erous occasions since October 24, 1971, Dale questioned the
chief steward, Camuse, as to matters of union business.
Camuse testified that Dale, the immediate supervisor of
Camuse, hampered him in the performance of his stewardly
duties by questioning him concerning his conduct of his
stewardly office. The evidence appears, however, to indicate
that Dale did no more than inquire as to the nature and
necessity for action on union business conducted by Ca-
muse to ensure that there was not an overemphasis on griev-
ances at the possible expense of productivity. I recommend
dismissal of the allegations of paragraph 5(c)(vi) of the com-
plaint.
IV. THE EFFECT OF THE UNFAIR LABOR
PRACTICES UPON COMMERCE
The activities of the Company set forth in section III,
above, and there found to constitute unfair labor practices,
occurring in connection with the business operations of the
Company as set forth in section I, above, have a close,
intimate, and substantial relation to trade, traffic, and com-
merce among the several States and tend to lead to labor
disputes burdening and obstructing such 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 from any like or related
unfair labor practices, take such affirmative action as ap-
pears necessary and appropriate to effectuate the policies of
the Act.
On the basis of the foregoing findmgs 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 purview 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 telling a union steward that the Company wanted
no more grievances filed on a subject the Company engaged
in unfair labor practices defined within the scope of Section
8(a)(1) of the Act.
158 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
4. By telling a steward in the presence of the chief stew- practices as alleged in the complaint.
and and another employees that it wanted no more griev- 5. The aforesaid unfair labor practices affecting com-
ances filed on a particular subject even if advised so to file merce within the purview of Section 2(6) and (7) of the Act.
by the Union, the Company has engaged in unfair labor [Recommended Order omitted from publication.]