Chemical Workes Local 604 (Essex International)

National Labor Relations Board - Board Decisions

Dec 14, 1977

233 N.L.R.B. 1239 (N.L.R.B. 1977)

LOCAL 604, INTERNATIONAL CHEMICAL WORKERS
Local 604, International Chemical Workers Union,
AFL-CIO (Essex International) and Steven Ed-
mond Leep. Case 9-CB-3338
December 14, 1977
DECISION AND ORDER
BY MEMBERS JENKINS, PENELLO, AND MURPHY
On July 28, 1977, Administrative Law Judge
Claude R. Wolfe issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
with a statement of position in support thereof.
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
statement of position and has decided to affirm the
rulings, findings, and conclusions of the Administra-
tive 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 the Respondent, Local 604,
International Chemical Workers Union, AFL-CIO,
Jeffersonville, Indiana, its officers, agents, and
representatives, shall take the action set forth in the
said recommended Order.
DECISION
STATEMENT OF THE CASE
CLAUDE R. WOLFE: Administrative Law Judge: This
case was heard before me at Louisville, Kentucky, on
March 7, 1977, pursuant to charges filed on August 16,
1976, and an amended complaint issued on February 23,
1977, and again amended at hearing. The complaint alleges
that Local 604, International Chemical Workers Union,
AFL-CIO, herein called the Respondent or the Union,
violated Section 8(b)(1XA) of the Act by threatening
employees at Essex International, subsidiary of United
Technologies, herein called the Company or the Employer,
with discharge from employment for signing a petition to
remove a union steward; by threatening Steven Edmond
Leep' with physical violence and removal from his job
t The Charging Party's name was erroneously spelled "Stephen" on the
complaint. The charge and his testimony reflect the proper spelling.
2 See Highway and Local Motor Freight Employees Local Union No. 667
(Owens.Corning Fiberglass Corporation), 228 NLRB 398 (1977).
3 The facts set forth herein are based on a synthesis of the credited
aspects of the testimony of all witnesses, the exhibits, and careful
consideration of the logical consistency and inherent probability of the facts
233 NLRB No. 183
because he had reported other employees for violating
Employer's work rules; and by causing Leep to be fined
and suspended from membership in the Union for
reporting employees who violated the Employer's work
rules, notwithstanding his obligation as a leadman to report
such conduct. The Respondent denies the commission of
any unfair labor practice.
Upon the entire record, including my observation of the
witnesses, and after due consideration of the parties' briefs,
I make the following:
FINDINGS AND CONCLUSIONS
I. JURISDICTION
The complaint alleges, the Respondent admits, and I find
that at all times material, the Employer, a Michigan
corporation, has been engaged in the manufacture of
aluminum extrusions at its Jeffersonville, Indiana, facility,
and has, during the past 12 months, a representative
period, sold and shipped goods and materials valued in
excess of $50,000 from said location directly to points
outside the State of Indiana. The Employer is, and has
been at all times material, an employer engaged in
commerce within the meaning of Section 2(6) and (7) of the
National Labor Relations Act.
II. THE LABOR ORGANIZATION
The Union is a labor organization within the meaning of
Section 2(5) of the Act.
III. AGENCY
The Respondent admits that Dale Lee and Tom Lynch
were its union stewards at all times material with
contractual authority to present grievances to the Employ-
er, but denies "that they are agents of Respondent, or
acting on its behalf for any other purpose." This contention
amounts to a claim that if the Union's stewards engaged in
the conduct alleged in the complaint, and such conduct is
unlawful under the Act, the Respondent may not be held
responsible for their conduct. Respondent's disclaimer of
responsibility for its steward's acts is contrary to well-
established law and is rejected.2
IV. THE UNFAIR LABOR PRACTICES
3
A. Fining and Suspension of Steven E. Leep
The Respondent and the Employer are parties to a
collective-bargaining agreement covering a unit of employ-
ees, including work leaders, at the Jeffersonville, Indiana,
plant. All employees involved in this case are members of
that unit and members of the Respondent.
Steven Leep 4 is an order filler and work leader in the
paint department. In addition to his regular production
found. Although I may not, in the course of this decision, advert to all of the
record testimony or documentary evidence, it has been carefully weighed
and considered and to the extent that testimony or other evidence not
mentioned herein might appear to contradict the findings of fact, that
evidence has not been disregarded but has been rejected as incredible,
lacking in probative worth, surplusage, or irrelevant.
Leep impressed me as a thoroughly honest witness. He was clearly
(Continued)
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
duties he has been specifically instructed by Foreman
William Kimmel that it is his responsibility to report to
Kimmel whenever any employee is absent from his
assigned work area without prior notice, or is not
performing his work properly. 5 Kimmel credibly testified
that if Leep did not report on employees as instructed "he
wouldn't have his job very long."
I also credit Leep's uncontradicted testimony that he had
been instructed by Kimmel, prior to April 1976,6 to report
employees who wore tank shirts to work. A tank shirt is a
sleeveless garment much like a basketball player's shirt or a
man's sleeveless undershirt. Kimmel credibly testified that
there was a longstanding policy prohibiting tank shirts in
the shop, and that many employees, including Leep, had
been required to change clothing when they appeared at
work in a tank shirt.
Sometime prior to April 22, Leep reported employees
Robert Whalen and Anthony McKinley, on several
occasions, because they left their work stations without
first getting someone to relieve them, and, on or about
April 22, Leep reported to Kimmel that McKinley was
wearing a tank shirt at work.
On April 22, Whelan and McKinley filed intraunion
charges against Leep alleging as follows:
Steve E. Leep has in the past and continuing to date
made statements to management against fellow mem-
bers of our Local Union causing them to receive
Disciplinary Action and/or harrassment [sic] from
members of supervision.
A trial was had on these charges on June 14,7 and Leep was
found guilty as charged and received the following penalty:
That Steven E. Leep be fined twenty five (25) dollars,
and shall be suspended from all membership rights for
a period of two (2) years after fine is paid.
The result was memorialized in a letter from the Respon-
dent to Leep dated June 16, which also notified him of his
appeal rights. Leep filed no appeal. Tom Lynch, who
served at Leep's request as his representative at the trial,
averred that Leep indicated to him that he wanted to file an
appeal but that Lynch went no further with the case
because of "my lack of time and lack of interest in the case
at this time."
I agree with General Counsel's contention that the fining
and suspension of Steven Leep violated Section 8(b)(1)(A)
of the Act. The Respondent's able argument that Leep's
job duties did not require him to report employees for the
infractions discussed above, and that a failure to report
them would not subject him to possible discharge, is
directly contrary to the credited testimony of Leep and
Kimmel, which establish that the duty to report is an
essential part of Leep's job. Furthermore, the fact that the
trying hard to truthfully testify without evasion or speculation. Although at
times he was momentarily confused by the wording of questions, he gave
prompt answers as the import of the questions were made clear to him. and I
find him a credible witness as to matters he recalls.
I There is no evidence nor allegation that Leep is a supervisor within the
meaning of Sec. 2(11) of the Act.
6 All dates are in 1976, unless otherwise specifically stated.
I It appears from the credible testimony of Leep that the accusations
Respondent may not have specifically requested the
Employer to impair Leep's employment status is totally
irrelevant to the issue before me. I am persuaded that Leep
was required, as part of his job duties as a work leader, to
report to supervision the absences from work and the
wearing of tank shirts, and that the fine and suspension
were designed to, and did, restrain Leep in the performance
of specific duties required of him by the Employer.
Compliance by Leep with the Respondent's ruling that he
must not report fellow members would clearly affect his
employment status by causing him to lose his job. For, as
Kimmel credibly testified, if Leep were to fail to report the
infractions which he had been instructed to report "he
wouldn't have his job very long." Whether this statement
by Kimmel implies discharge or transfer to another job is
of no consequence. The result is the same. His job would
be in jeopardy and his employment status would be
impaired if he obeyed the Union's verdict.
For the foregoing reasons, I conclude and find that the
Respondent's fine and suspension of Leep for performing
his work duties directly affect his employment status and
violate Section 8(b)(1)(A) of the Act.8
B. Threat by Dale Lee
A petition to remove Dale Lee as steward was circulated
among the employees in May. Employee William Mott
testified for the General Counsel, on direct examination,
that Dale Lee told him in May that Respondent's business
representative, Charles Chapman, had told Lee that
whoever signed the petition would lose their job. On cross-
examination, Mott testified that Lee first asked him if he
had heard of the petition, and, receiving an affirmative
answer, asked if he had signed it, to which he replied no.
Then, according to Mott on cross-examination, Lee said,
"Well, that's good because whoever signed it is going to
lose their job." Mott made no reference to Chapman on
cross-examination.
Dale Lee denied discussing the petition with Mott; or
telling him Chapman had stated that signers would lose
their jobs; or that Chapman told Lee that signers would
lose their jobs. Chapman denied telling Lee that anyone
signing the petition would lose their jobs.
On the basis of my observation of the comparative
demeanor of Mott, Lee, and Chapman as they testified,
and the inconsistency in Mott's otherwise unsupported
testimony, I conclude that the General Counsel has failed
to prove by a preponderance of the credible evidence that
Lee made the threat of discharge alleged in the complaint
and testified to by Mott. I will therefore recommend that
allegation of the complaint be dismissed.
made at the trial in support of the charge were primarily that he had
reported to his foreman that Whelan and McKinley had left their work area
at numerous times. To which Leep replied, in substance, it was part of his
job. It further appears that Leep's actions in reporting employees for
weanng tank shirts were complained of at the trial.
8 See Local 5795, Communications Workers of America, AFL-CIO
(Western Electric Co., Inc.), 192 NLRB 556 (1971).
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LOCAL 604, INTERNATIONAL CHEMICAL WORKERS
C. Statements of Tom Lynch
On August 3, employee Fred Huddleston went to sleep
behind a stack of cardboard during a lunch break while the
paint line was shut down. When the line started up again
Huddleston was still sleeping and did not appear at his
work station. Leep reported to Plant Supervisor Huffman
that Huddleston was absent from his work station. Lynch
testified that someone told him that Leep wanted him
because there was trouble on the paint line. En route to see
Leep, Lynch was told by three employees that Huddleston
was sleeping behind the cardboard. Lynch had one of those
men wake up Huddleston and proceeded up to Leep.
According to Leep he was told by Lynch that Huddleston
was sleeping and to wake him up, which he did not do.
Lynch's version of this conversation is that he asked Leep
what was going on, and was told that Huddleston was
missing and Leep didn't know where he was. Lynch said he
then angrily walked back to the paint room, and Supervisor
Huffman immediately came to him, told him he had talked
to Huddleston about sleeping, and not being ready to go to
work. According to Lynch, Huffman then told him that
Leep's actions were uncalled for and he wished it would be
dropped at that point. On cross-examination Lynch first
testified that Huffman did not mention Leep's name but
said that he (Huffman) had talked to Huddleston and that
he had not "got on" Huddleston, was sorry it had to
happen that way, and suggested, "Let's just drop it." After
so testifying, Lynch modified his testimony and stated that
Leep's name was mentioned in that Huffman said he had
been informed by Leep on the phone that Huddleston was
sleeping. Although I consider Lynch's testimony regarding
his conversation with Huffman to be internally inconsistent
and unreliable, I make no findings as to what was actually
said, other than that I do not accept Lynch's claim that
Huffman was apologizing for Leep's conduct, because the
content of this conversation is not critical to any issue
before me.
Later that day, when only Lynch and Leep were still in
the paint area, they had a conversation. According to Leep,
Lynch told him it was "low-down" for him to report on
another member for not being back, and that if Huddleston
wanted to press charges against Leep for "ratting" on him
Lynch would sign them himself. Leep continued that
Lynch said he was after Leep's job, was going to see that it
was done, and was going to take Leep to Plant Manager
Bob Nix and see that it was straightened out because
neither Lynch nor the other men had to work with a "rat"
like Leep. According to Lynch, he called Leep over to him
and asked, "What in the hell are you trying to prove this
time," and, when Leep just shrugged, Lynch said, "Well,
I'm going to tell you one thing, if Fred Huddleston wants
to pursue this any further in a reprimand form9 I will back
it to the hilt, and the man that I will start with is with Bob
Nix." Lynch continues that he made a personal challenge
to Leep, "it was not a threat it was a promise," by telling
him that he would break his neck if he ever got Lynch
involved in anything like that again and that if Lynch was
the young people that Leep was dealing with on the paint
line he would be waiting outside the door with a crosstie
and break his neck out there if Leep reported him.
Lynch avers that Kimmel came to him on August 4 and
told him he was sorry about what had happened re
Huddleston and that Leep should have awakened Huddle-
ston rather than report him. In this connection, I note that
Leep was not aware Huddleston was sleeping until after he
had reported him missing on August 3.
Lynch was obviously nursing a deep hostility to Leep as
he testified. He became so agitated on the stand that his
voice trembled, and it was clear to me that he was
extremely angry with Leep as a person, as well as with his
actions in reporting on employees. I have no doubt from
his demeanor that he would not hesitate in carrying out his
"promise" to physically assault Leep, given but slight
provocation.
It is difficult to imagine anything more coercive than
Lynch's intemperate threats to break Leep's neck, and I am
convinced that this threat was directed at restraining Leep
from reporting employees who were absent from their
assigned stations at a time they were supposed to be
present. I find these threats of physical injury to be
restraint and coercion in violation of Section 8(bX)(1XA)
designed to cause Leep to be derelict in his reporting duties
and thus run the risk of discharge or job change. I further
credit Leep's assertions that Lynch threatened to cause his
removal as work leader because such a threat is consistent
with Lynch's other threats and I observed Leep to be a
more careful and credible witness. In my opinion, Lynch's
testimony was so tinged with outright animosity toward
Leep that it cannot be credited when it conflicts with that
of Leep on significant points. Leep displayed no animosity
toward either Lynch or the Respondent. Lynch's threat to
secure Leep's removal from his job for reasons other than
those permitted by the Act is a patent violation of Section
8(b)(I)(A) of the Act.
THE REMEDY
In order to remedy the unfair labor practices found
herein my recommended Order will require the Respon-
dent to (1) cease and desist from its conduct found
unlawful herein; (2) post an appropriate notice to its
members in the form and manner set forth below; (3)
rescind the fine and suspension from membership of
Steven E. Leep, reimbursing him for any monies he has
paid in satisfaction of the fine; and (4) reinstate him to full
membership status with all rights and privileges to which
members are entitled. My recommended Order shall also
require the Respondent to advise Steven E. Leep, in
writing, of his full reinstatement to union membership and
the rescission of his fine and suspension.
CONCLUSIONS OF LAW
Upon the basis of the above findings of fact and the
entire record in the case, I make the following conclusions
of law:
9 I construe "in a reprimand form" to mean filing intraunion charges.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1. The Employer 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 Respondent is a labor organization within the
meaning of Section 2(5) of the Act.
3. The Respondent, at all times material herein, acted
as collective-bargaining representative of the employees of
the Employer in an appropriate unit including, among
others, all employees named in this Decision.
4. Tom Lynch and Dale Lee are, and have been at all
times material, agents of the Respondent within the
meaning of Section 2(13) of the Act.
5. By fining and suspending Steven E. Leep from union
membership because he reported other members to the
Employer supervisors for work rule infractions, at a time it
was part of Steven E. Leep's work duties to so do, the
Respondent affected Leep's employment status and there-
by violated Section 8(b)(1)(A) of the Act.
6. By the above found statements and acts of Tom
Lynch, for the reasons recited above, the Respondent
violated Section 8(b)(1)(A) of the Act.
7. The Respondent has not committed any other unfair
labor practices alleged in the complaint.
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:
ORDER '0
The Respondent, Local 604, International Chemical
Workers Union, AFL-CIO, Jeffersonville, Indiana, its
officers, agents, and representatives, shall:
1. Cease and desist from:
(a) Fining and/or suspending its members because of
their performance of the work duties assigned them by
their employer.
(b) Threatening employees with physical injury because
of their performance of their duly assigned work duties.
(c) Threatening employees with removal from their jobs
because of their performance of their duly assigned work
duties, or for any reason other than those permitted by the
membership requirements of the Act.
(d) In any like or related manner restraining or coercing
employees in the exercise of their Section 7 rights.
2. Take the following affirmative action which is
deemed necessary to effectuate the purposes of the Act:
(a) Rescind the fine and suspension from membership of
Steven E. Leep, reinstate him as a member in good
standing, and advise him in writing of said rescission and
reinstatement.
(b) Refund to Steven E. Leep any portion of the
aforesaid fine which he may have paid.
(c) Post at its offices and meeting halls copies of the
attached notice marked "Appendix."" Copies of said
notice, on forms provided by the Regional Director for
Region 9, after being duly signed by the Respondent's
authorized representative, shall be posted by the Respon-
dent immediately upon receipt thereof, and be maintained
by it for 60 consecutive days thereafter, in conspicuous
places, including all places where notices to members are
customarily posted. Reasonable steps shall be take by the
Respondent to ensure that said notices are not altered,
defaced, or covered by any other material.
(d) Furnish signed copies of the notice to the Regional
Director for Region 9, for posting by Essex International,
said employer being willing, at all locations where notices
to its employees are customarily posted.
(e) Notify the Regional Director for Region 9, in writing,
within 20 days from the date of this Order, what steps the
Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be, and it
hereby is, dismissed insofar as it alleges unfair labor
practices not found herein.
10 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.
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.
Ad In the event that this 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."
APPENDIX
NOTICE To EMPLOYEES AND MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT fine and/or suspend employees from
union membership, or threaten them with removal from
their jobs or physical violence, because of their
performance of work duties, including the reporting of
other employees for violations of work rules, assigned
them by their employer.
WE WILL NOT in any like or related manner restrain
or coerce employees in the exercise of their rights
guaranteed by Section 7 of the National Labor
Relations Act.
WE WILL rescind the fine and suspension from union
membership placed on Steven E. Leep on June 14,
1976, and advise him in writing of said rescission, and
WE WILL refund any portion of the fine that Steven E.
Leep may have paid.
LOCAL 604, INTERNATIONAL
CHEMICAL WORKERS
UNION, AFL-CIO
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