VanTran Electric Corp.

National Labor Relations Board - Board Decisions

May 29, 1975

218 N.L.R.B. 43 (N.L.R.B. 1975)

VANTRAN ELECTRIC CORPORATION
VanTran Electric Corporation and International
Association of Machinists and Aerospace Workers,
AFL-CIO. Case 14-CA-7044
May 29, 1975
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS
FANNING AND JENKINS
On March 30, 1973, Administrative Law Judge
James M. Fitzpatrick issued the attached Decision in
this proceeding. Thereafter, 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
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 brief
and has decided to affirm the rulings, findings, and
conclusions 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 adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that Respondent, VanTran Electric
Corporation, Vandalia, Illinois, its officers, agents,
successors, and assigns, shall take the action set forth
in the Administrative Law Judge's said recommend-
ed Order.
1 N.L.R B. v. Weingarten, Inc., 420 U.S. 251 (1975). Following the
Supreme Court's decision both the General Counsel and the Respondent
filed statements of their respective positions.
DECISION
STATEMENT OF THE CASE
JAMES M. FITZPATRICK, Administrative Law Judge: This
proceeding under Section 10(b) of the National Labor
Relations Act, as amended (the Act), was tried before me
at Vandalia, Illinois, on December 21, 1972, on a
complaint alleging, and an answer denying, that VanTran
Electric Corporation (herein called Respondent or Compa-
ny) committed unfair labor practices in violation of Section
8(a)(1) of the Act by discharging an employee who refused
to attend an interview with his supervisors without the
presence of a union representative. The complaint was
founded on charges filed on September 5, 1972, by the
International Association of Machinists and Aerospace
Workers, AFL-CIO (herein the Charging Party).
Upon the entire record, my observation of the witnesses,
and consideration of the briefs filed by the General
Counsel and the Respondent, I make the following:
218 NLRB No. 13
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYER
43
Respondent is a Delaware corporation engaged at
Vandalia, Illinois, and Louisville, Georgia, in the manufac-
ture, sale, and distribution of electrical equipment and
related products. Only its Vandalia, Illinois, facility is
involved in the present matter.
During the year ending December 31, 1971, a period
representative of its operations, Respondent manufactured,
sold, and distributed at its Vandalia plant, and shipped
from that plant directly to points outside Illinois, products
valued in excess of $50,000. I find Respondent is an
employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Respondent employs between 95 and 100 employees at
Vandalia._ In early 1972 Local Lodge 1613 of the Interna-
tional Association of Machinists and Aerospace Workers
(herein called the Union) organized Respondent's pro-
duction and maintenance employees. The Union is a labor
organization within the meaning of Section 2(5) of the Act.
Beginning in May 1972 the Company and the Union
negotiated for a collective-bargaining agreement which was
entered into for a period of 1 year commencing August 18.
Among other things the contract provided a grievance
procedure, which had not existed prior thereto, and for
arbitration of grievances not thereby disposed of, provided
the parties consented to each arbitration and were able to
agree upon an arbitrator.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Issue
On August 30, 1972, Respondent discharged employee
Larry St. Cin and since that time has not reinstated him.
The complaint alleges, and the answer denies , that he was
discharged because he declined to attend an interview with
a foreman and the acting plant superintendent without a
union representative being present , when he had reason-
able ground to believe that discussions in the interview
could adversely affect his employment.
B. St. Cin's Employment History
At the time of his discharge St. Cin had been an
employee for about a year, having been hired August 23,
1971, to work as a winder. St. Cin was very active in the
Union. He had joined the Union in March. During the
period of the negotiations, which ran from mid-May into
August, he was one of three employee members of the
union negotiating committee. From August 18 until his
termination he was the Union's chief shop steward in the
plant.
St. Cin had a history of reprimands and confrontations
with his supervisors. In mid-July his immediate foreman,
Kenneth Barker, had reprimanded him for taking too long
a break away from his machine. On August 15 Barker
admonished him to speed up with his work or to get out
44 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and later that day, following an argument with St. Cin,
gave him a 4-1/2 day disciplinary suspension on grounds
of insubordination.
A day or two later St. Cin filed a first-step grievance
based upon his suspension. When on his return to work
August 22 he had not heard concerning this grievance, he
and another union steward, Gary Nickles, attempted to
invoke the second step of the grievance procedure which
called for reducing a grievance to writing and investigation
and discussion between the union shop committee and a
company representative. The Company refused to proceed
with the grievance on the ground that the contract was not
in effect prior to August 18. St. Cin contended it was
effective as of August 5.
About 9:30 on the morning of August 25 St. Cin and
Nickles left their machines for the purpose of filing another
grievance based on a spray painting condition in the plant.
Not being able to resolve this grievance at the first step,
they were given permission by Acting Superintendent
Smith and Foreman Barker to remain away from- their
machines in order to reduce it to writing. At 11:30 they still
had not finished their preparation. They also insisted upon
their right to immediately meet with the company vice
president pursuant to step two of the grievance procedure,
although he was not then available. Smith then gave them
a choice of returning to work or going home, and when
they did neither he expelled them from the premises.
C. The Discharge of St. Cin
On August 30 St. Cin was discharged under the following
circumstances. At about 7:15 a.m. James Snow, a supervi-
sor in another department, observed St. Cin away from his
winding machine and questioned whether he had any work
to do. Actually St. Cin was arranging for the replacement
of a broken bolt on his machine. Upon learning the true
situation, Snow left to return to his own department. St.
Cin, having returned to his own machine, called after Snow
who then came back. St. Cin asked Snow if he was his
foreman. Snow replied that Barker was, but that he (Snow)
was his boss too. St. Cin wanted to know how many bosses
one man could have. Snow replied that everyone in the
plant had three, Barker and Snow (both foremen) and
Smith (acting plant superintendent). St. Cin complained
that that was very confusing because one could tell him
one thing, another another thing, and the third could fire
him. St. Cin, according to Snow, accused him of harass-
ment and asked if Snow was watching him. Snow admitted
he was watching him, as he was watching everyone else. St.
Cin demanded to know for what reason, and remarked that
he thought he better tell his union committeemen about it.
As the argument developed, Snow began getting angry.
Although he admitted that he did not observe other
employees watching them, he testified credibly that he did
not desire to argue in front of others. When St. Cin
mentioned the need for his union committeeman, Snow,
according to St. Cin's testimony, said, "That's it, let's go to
the office." Snow testified he merely said, "Let's go to the
office." But he admitted he could have said something else.
And he also admitted that he was getting angry. In the
circumstances I credit,St. Cin's version of this remark. St.
Cin testified credibly that when he heard the remark he
thought they were going to throw him out. -
The office referred to was the one used by the plant
foremen. St. Cin followed Snow to the office. Snow went in
and sat down. St. Cin remained outside the doorway. At
about the same time the other foreman, Barker, and the
acting plant superintendent, Smith, arrived. Snow asked St.
Cin to step inside the office. He refused to come in without
his union committeeman. Snow said he did not -need his
committeeman (although he did not explain why he was
not needed) and for St. Cin to come on in. But St. Cin still
refused and Snow told him to go on home, that he did not
need him. According to Snow he knew he was getting
angry and did not want to show it. Smith also told St. Cin
to enter the office, that he did not need his union
representative and, according to Smith's testimony, indi-
cated they were going to discuss something to do with St.
Cin's job. However, Smith admitted that at the time he did
not know what had brought about the request from Snow
to enter the`off"ice, and Smith's purpose in asking St. Cin to
enter was to find out what the trouble was between them. It
was apparent, to him that Snow was getting angry. In the
circumstances I credit St. Cin's testimony that neither
Smith nor Snow explained what they meant by saying he
did not need his committeeman, as well as St. Cin's
testimony that Snow did not say that he just wanted to get
the problem between them resolved. Even after Smith
asked him to enter the office, St. Cin declined. Smith
thereupon discharged him for gross insubordination.
Subsequent to the discharge St. Cin filed a grievance
based on his discharge. This was processed through the
three steps provided for in the collective-bargaining
agreement without being resolved. The Union asked the
Company to arbitrate the question but the Company
refused.
D. Discussion
1. Availability of arbitration
The collective-bargaining agreement provides for griev-
ance procedures and arbitration where those are not
successful in disposing of the matter. The grievance
procedures are mandatory when invoked by a grievant.
Arbitration is voluntary, being dependent upon agreement
by both parties (a) that the particular dispute shall be
arbitrated and (b) who the arbitrator shall be. Here the
discharge of St. Cin was grieved through all three steps of
the grievance procedure, following which the Union
requested, and the Company rejected, arbitration. The
Union then filed the present charges with the Board on
September 5, less than a week after the discharge. No
litigant here contends that the Board should defer to
arbitration. See Hunter Saw Div. of Asko, Inc., 202 NLRB
330, fn. 2 (1973).
Even in discharge cases the Board will defer to agreed-
upon procedures which provide a method of resolving the
problem. See National Radio Company, Inc., 198 NLRB 527
(1972). However, where either party can veto arbitration as
the Company has done here, the Board has not deferred to
that method and has resolved the matter by Board
litigation. Tulsa-Whisenhunt Funeral Homes, Inc., 195
VANTRAN ELECTRIC CORPORATION
NLRB 106 (1972). Accordingly, deferral to arbitration in
the present matter is inappropriate.
2. Contentions of the parties
The principal issue in this case is a legal one, the facts
being substantially undisputed. On one hand the General
Counsel contends that Respondent violated Section 8(a)(1)
of the Act in discharging St. Cin, because under the
doctrine of Quality Manufacturing Company, 195 NLRB
197 (1972), and its progeny, the provisions of Section 7 of
the Act which guarantees employee rights to act in concert
for mutual aid and protection entitle an employee to union
representation at an interview demanded by his employer,
where the employee has reasonable ground to fear that the
interview will adversely affect his employment status. The
General Counsel contends that St. Cin had such reasonable
grounds here. The Company on the other hand contends
that an employee has no individual statutory right to union
representation when summoned to an interview with his
employer unless such right is supplied by a collective-
bargaining agreement, which is not the case here, citing
Western Electric Company, Hawthorne Works, 198 NLRB
623 (1972). No litigant here contends that the Union's
statutory right to participate in the interview is at issue. Cf.
Lafayette Radio Electronics Corp., 194 NLRB 491 (1971).
3. The nature of the interview
Respondent claims that the interview which St. Cin was
called to was investigatory in nature, not disciplinary, and
in any case was brought about at the instigation of St. Cin.
It is evident from the testimony of Snow that he intended
to use the privacy -of the foremen's office to resolve the
argument about his supervisory status over St. Cin. This
was a topic which directly related to the circumstances
under which the employee was to work. Resolution of the
problem would not have involved any management search
for new facts. In this respect the circumstances here differ
from those in Service Technology Corporation, a Subsidiary
of LTV Aerospace Corporation, 196 NLRB 845 (1972),
where the Board, dismissed a complaint alleging violations
of Section' 8(a)(1) and (3). Even allowing for the possibility
that a partial purpose of the interview here may have been
to probe St. Cin's attitude about supervision, the nature of
the interview was essentially noninvestigatory in purpose.
4. The appearance of jeopardy
As Respondent points out, St. Cin questioned Snow's
authority. This angered Snow and it was apparent to St.
Cin. St. Cin learned also that he was being watched. He
had to assess this situation against the backdrop of his
reprimand in mid-July and 4-1/2 day suspension on
August 15, only 2 weeks prior to the events in question. It
is evident from these circumstances that, at the point Snow
took him to the office, St. Cin had reason to be
apprehensive about his employment status. His effort to
obtain the counsel and assistance of his union committee-
men was a manifestation of his apprehension. When Snow
ordered him to the office he thought he was going to be
thrown out.
45
This is not a case where the equities are overwhelmingly
on either side. In fact an aura of oneupmanship pervades
the whole affair. Nevertheless, because St. Cin had some
reason to be apprehensive about his job situation, the case
fits the mold of Mobil Oil Corporation, 196 NLRB 1,052
(1972), and Quality Manufacturing Company, supra. If those
cases are still controlling , then, under Section 7 of the Act,
St. On was entitled to union representation and Smith's
discharge of him for refusing to participate in the interview
without union assistance was a violation of Section 8(a)(1)
of the Act.
5. Respondent's contention
Respondent argues (a) that Board law has changed since
Quality and Mobil, and (b) even if the case law has not
clearly changed, it is now unsettled and no violation should
be found. Respondent relies on the recent case of Western
Electric Company, Hawthorne Works, supra, decided by a
panel of Members Kennedy and Penello and Chairman
Miller.
In Western Electric Members Kennedy and Penello (who
together formed a majority of the panel) found no violation
of Section 8(a)(1) for the reasons expressed by Member
Kennedy in his dissents in Quality Manufacturing and
Mobil Oil. That position is that absent a contract
confemng upon an employee the right to be represented by
a union at an interview with management, the employee
enjoys no individual statutory right to such representation.
Chairman Miller joined with the majority of the panel in
Western Electric, but for different reasons . He found that
the company and union there had already appropriately
disposed of employee rights to union representation at
investigatory interviews by prior arbitrations and bargain-
ing. He did not reject the principle of Quality Manufactur-
ing and Mobil Oil. Nor did the panel majority in Western
Electric announce that those cases were overruled . Instead
the decision reads, "As to the 8(a)(1) allegation of the
instant complaint a majority of the Board is of the view that,
under the circumstances of this case, they should also be
dismissed." (Emphasis supplied.) The circumstances of that
case included those relied on by Chairman Miller. In
addition, the interviews there were more investigatory in
nature than in the present case in that adverse conse-
quences for the employees there developed only at a later
time. If the views of members Kennedy and Penello (that
no individual statutory right is involved) are, now the law,
these are , to be sure, distinctions without a difference and
Quality Manufacturing and Mobil Oil are shorn of prece-
dential vitality, even for a situation where the employee
asking for union assistance has some reasonable apprehen-
sion regarding his employment.
The three-member panel in Western Electric spoke for
the whole Board pursuant to a delegation of authority
under Section 3(b) of the Act, and they announce their
opinion as that of "a majority of the Board." Since,
however, the decision is founded on "the circumstances of
this case," it does not appear to be based upon a new
majority construction of the statute along the lines of
Member Kennedy's dissents . It appears to me, then that
the Board's majority still holds to the construction of the
Act voiced by the majority in Quality Manufacturing and
46 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Mobil Oil. See J. Weingarten, Inc., 202 NLRB 446, fn. 2
(1973):
The present case, on its facts, is closer to those earlier
cases than it is to Western Electric, so there seems to be no
reason why the circumstances in the present matter compel
the same result as Western Electric. I conclude, therefore,
that even though Western Electric is the more recent Board
pronouncement, the earlier cases are still applicable here
and are binding on me.
Accordingly, I conclude that, with respect to its
employee St. Cin, Respondent has committed an unfair
labor practice in violation of Section 8(a)(1) of the Act.
Respondent's motion to dismiss, on which I reserved
ruling, is denied.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section III,
above, occurring in connection with its operations de-
scribed in section I , above, have a close , intimate, and
substantial relation to trade , traffic; and commerce among
the several States. Those found to be unfair labor practices
tend to lead to labor disputes burdening and obstructing
commerce and the free flow of commerce and are unfair
labor practices within the meaning of Sections 8(a)(1) and
2(6) and (7) of the Act.
CONCLUSIONS OF LAW
1. Respondent is an employer within the meaning of
Section 2(2), and 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. By discharging Larry St. Cin on August 30, 1972,
and not thereafter reinstating him, because he declined to
attend an interview with management officials without
participation of his union representative, under circum-
stances where he had reason to believe the matters to be
discussed could adversely affect his employment status,
Respondent has interfered with, restrained, and coerced an
employee in the exercise of rights guaranteed in Section 7
of the Act, and committed, and is committing, unfair labor
practices within the meaning of Section 8(axl) of the Act.
4. Such unfair labor practices affect commerce within
the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent violated Section 8(a)(1)
of the Act, I recommend that it cease and desist therefrom
and take affirmative action designed to effectuate the
policies of the Act. I also recommend that Respondent
offer to Larry St. Cin immediate full, and unconditional
reinstatement to his former job or, if that job no longer
exists, to a substantially equivalent position, without
prejudice to his seniority or other rights, privileges or
working conditions, and make him whole for any loss of
1 In the event 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 Sec.
earnings he may have suffered as a result of discrimination
against him by paying him a sum of money equal to the
amount he would have earned from the date of his
discharge on August 30, 1972, to the date Respondent
offers him reinstatement, less his net earnings during that
period in accordance with the Board's formula stated in F.
W. Woolworth Company, 90 NLRB 289 (1950), with interest
thereon at the rate of 6 percent per annum as set forth in
Isis Plumbing & Heating Co., 138 NLRB 716 (1962). See
-Quality Manufacturing Company, supra . I further recom-
mend that Respondent make records available to Board
agents in connection with compliance therewith and that it
post appropriate notices.
Upon the foregoing findings of fact , conclusions of law,
and the entire record , and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDERI
VanTran Electric Corporation, its officers, agents,
successors, and assigns, shall:
1. Cease and desist from:
(a) Discouraging activities protected by the Act, includ-
ing membership in Local Lodge 1613 International
Association of Machinists and Aerospace Workers, AFL-
CIO, or any other labor organization, by discharging
employees or otherwise discriminating with respect to their
tenure of any term or condition of employment.
(b) Requiring that any employee take part in, an
interview or meeting without benefit of union representa-
tion, if such representation has been requested by the
employee and if the employee has reasonable grounds to
believe that the matters to be discussed may result in
action adversely affecting his employment.
(c) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of their
right to self-organization, to form labor organizations, to
join or assist a labor organization, to bargain collectively
through representatives of their own choosing, and to
engage in other concerted activities for the purpose of
collective bargaining or other mutual aid or protection, or
to refrain from any or all such activities.
2. Take the following affirmative action to effectuate
the policies of the Act:
(a) Offer Larry St. Cin immediate, full, and uncondition-
al reinstatement to his former job or, if that job no longer
exists, to a substantially equivalent position, without
prejudice to his seniority or other rights, privileges, and
working conditions, and make him whole for any loss of
earnings he may have suffered as a result of discrimination
against him in the manner set forth in the section hereof
entitled "The Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents , for examination and copying, all
records, reports, and other documents necessary to analyze
the amount of backpay due under the terms of this Order.
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.
VANTRAN ELECTRIC CORPORATION
(c) Post at its place of business in Vandaha, Illinois,
copies of the attached notice marked "Appendix." 2 Copies
of the notice on forms provided by the Regional Director
for Region 14, after being duly signed by its representative,
shall be posted by the Respondent immediately upon
receipt thereof and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all places
where notices are customarily posted. Reasonable steps
shall be taken by the Respondent to insure that said
notices are not altered, defaced, or covered by any other
material.
(d) Notify the Regional Director for Region 14, in
writing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
2 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 be changed to read
"Posted Pursuant to a Judgment of the United States Court of Appeals
Enforcing an Order of the National Labor Relations Board.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discourage activities protected by the
Act, including membership in Local Lodge 1613
47
International Association of Machinists and Aerospace
Workers, AFL-CIO, or any other labor organization,
by discharging employees or otherwise discriminating
with respect to their tenure or any term or condition of
employment.
WE WILL NOT require any employee to take part in
an interview or meeting without benefit of union
representation, if such representation has been request-
ed by the employee and if the employee has reasonable
grounds to believe that the matters to be discussed may
result in action adversely affecting his employment.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise
of their right to self-organization, to form labor
organizations, to join or assist a labor organization, to
bargain collectively through representatives of their
own choosing , and to engage in other concerted
activities for the purpose of collective bargaining or
other mutual aid or protection , or to refrain from any
or all such activities.
WE WILL offer Larry St. Cin his old job and pay him
any wages he has lost, with interest.
VANTRAN ELECTRIC
CORPORATION