253 N.L.R.B. 486 (N.L.R.B. 1980)

OMC Stern Drive

National Labor Relations Board - Board DecisionsNov 28, 1980

253 N.L.R.B. 486 (N.L.R.B. 1980)

I)ECISIONS OF NATIONAL LABOR RELATIONS BOARD OMC Stern Drive, a Division of Outboard Marine Corporation and Local 473, United Automobile, Aerospace and Agricultural Implement Workers of Americi. Case 13-CA-18095 November 28, 1980 DECISION AND ORDER 1Y MEMBE'RS JENKINS, PENEI.LO, AND ZIMMERMAN On July 25, 1980, Administrative Law Judge James M. Fitzpatrick issued the attached Decision in this proceeding. Thereafter, Respondent filed ex- ceptions and a supporting brief, and the General Counsel filed a brief in answer to Respondent's ex- ceptions. 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 briefs and has decided to affirm the rulings,' find- ings,' and conclusions of the Administrative Law KRespondent excepts to the Adminlistrativ e Law Judgc's denial of its Inollon to strike the testimony (If enlployee Fencl on he grounds thait the (;encral Clounsll failed to produce a statement allegedly made by Fencl to the Regional Office. ()ur examination of the record convinces us that tlih alleged sat;llenrillt does not nlow, nor did it ever, exist. Accordingly, we agree with the Administrative Iav, Judge's denial of Respondenl's otiollm II strike I encl's tesliiloilly See N' L. hRB. v. Seine and Line Fisher- mern's U ruon ,J San Pdro, aJiliated wilh SeauJrers International Union o' \Â¥ort/h i11icrita, .'1. ('10 [au/ Biazev lch d/b/a M.' I. Liberator], 374 F2d '(74, 97i (1th Cir 19'67), cert denied 389 UI S 911 Responldent also, excepts to the exclusion of certain evidence it sought to dmil itou the recold, ad to the denial rif its lmotion for a continu- ance W'e find hat the proffered evidence was not relevant to the issues in this case and the Respondenlt was not prejudiced by its exclusion. Re- garditg the riiolion for conitinuance, we have carefully examined the record anid cannot say that the Administrative Law Judge abused his dis- cretiotn when denying Respoldent's motion See Abrahamuon Chrysler- 'ltmourlth Inc., 225 NLRB 923, fn. 1 11976). 2 Respoindent has excepted I certain credibility findings made by the Adnilinst iralive aw Judge II is the Board's established policy not to o',errule an administrative lawl' judge's resolutions with respect to credi- bility unless the clear preponlderance iof all iof the relevant evidence con- vinces us that the resolutionlls are incorrect Standard Dry Wall Produa.ts 1,n., 9 NRB 544 (195()) enfd. 188 F2d 362 (3d Cir. 1951) We have carefully cxanlined the record and find ino basis for reversing his findings. We have further considered Respondent's contention that the Administra- tive I aw Judge has cevidenlced a bias or at least an appearance of bias in this proceeding We have carefully considered the record and attached I)ecision ad find these charges unlsuppx)rted and without merit. Respondent's extenlsive exceptitons and brief challenge several factual finditigs il the Adiministratis l.aw Judge's Decision-eg, exception 110 to the finding "that there is lno evidence that when Muellenback gave Fencl a write-up l ()October 6 he said it was for removing the pink copy front the Miltitnore write-up " This error is insignificant and does not un- dernmine the Administrative Llaw Judge's Decision. We have scrutinized Respoiidellt's .tiler such xceptiins, and conclude that the errors. neither separately nor cunulatively, cast ay doubt on the Administrative Law Judge's fiiding that Resplondentt unlawsfully suspended anid discharged Fencl Respondent also excepts to the finding that employee Madsen observed lencl searching tlhrough his toolbox on Octrber 5 for the pink copy of a writeup 'Ihe Administrative l.aw Judge inadvertently placed this event on October 5 rather than October , ad we hereby correct this error. 253 NLRB No. 62 Judge and to adopt his recommended Order, as modified herein.3 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge, as modi- fied below, and hereby orders that the Respondent, OMC Stern Drive, A Division of Outboard Marine Corporation, Waukegan, Illinois, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, as so modified: 1. Substitute the following for paragraph l(a): "(a) Suspending or discharging employees for engaging in union or other protected concerted ac- tivities." We note tlhat the reritaii ng evidence of the events t1tl ()ctober 5 still sup- ports the Adninlisiratise aw Judge's finding that Fendcl. in response to repeated requests fir the pink copy, stated that he did rnot have it Finally, Respondent, citing Columbus C'oted Frabri. Division of Borden C'hemicaul, Borden, Inc., 202 NLRB 932 (1973), excepts to the Administra- tivse l.aw Judge's reliance on previous "writeups" ie, warnings) as evi- dence of the animosity that Industrial Relations Director Parks held toward Fencl and his union activities. We find this exception without merit In Columbus Crted Iabrics, the parties agreed that a steward. who wished to discuss a possible grievance with the grievant and the foreman involved during working time, must obtain the permission of his foreman. Because failing to obtain a foreman's permission clearly trans- gressed that pricedure, and would not be a reasonable oversight by a ste- ward, 'we held that, under the circumstances, the respondent's warning tot stewards fr ignoring that rule was not unlawful However, we have also held, as the Administrative Law Judge noted, that etrployces who pursue in good faith an alleged mistaken interpreta- lion of a collective-bargaining agreement are nonetheless still engaged in protected activity and do niot forfeit the protections of the Act. See Standard ggregut ('orp., 213 NLRB 154, 159 (1974); he Singeir Compa- ny. Climate C (ntrol Division, 198 NLRB 870, fn 5 11972). We believe that Fencl's activities were good-faith attempts to process grievances, and that the alleged violations of the grievance procedure were, at most, techni- cal, and certainly were not so clearly transgressions as to remove said grievance activity from the protections of the Act. As evidence of Fencl's good faith, we note that his use of working time to conduct union business other than processing grievances ceased once all arbitrator ruled that such activity violated the collective-bargaining agreement ' The Administrative Law Judge found that Fenl's suspension and discharge violated Sec. 8(a)(4) as well as Sec. 8(a))3) We find it unneces- sary to pass on the 8(a)( 4 ) portion of the complaint Fenl's remedy would remain the same, in any event We do find, however. in agreement with the Administrative Law' Judge, that, by giving unexcused absences to employees Fencl and Madsen, who gave last-minute notice that they would be absent from work, after it learned that they went ito the Board's Regional ffice in Chicago. Respondent interfered with the statutlorily protected right to file charges and present testimony to the Board In so finding, we nte that Respondent had in the past granted excused ab- sences to employees who had notified the Company at the last minute that they would be absent for routine rather than urgent reasons. Member Penello agrees that Respondent interfered with slatutory rights under these circumstances, but does not rely on E. H. Limited d/b/ a Earringhouue Imports, 227 NLRB 1107 1977), enfiorcement denied ub nom. Servicr Emnployeev Inrternatona Unionl . I.Local 25(0, AFL -C'IO. (X) F.2d 30 ([)D.C Cir 1979), in which he dissented We also find it unnecessary to rely on the Administrative a'w Judge's discussiotn in sec 111,C, of his Decision, of waiver of employee rights We shall modify the Administrative Law Judge's recommended ()rder and the accompanying notice to accord with our usual reinstatement lan- guage 486 OMC STEFRN DRIVE4 2. Substitute the following for paragraph 2(a): "(a) Offer Donald Fencl immediate and full rein- statement to his former position or, if that position no longer exists, to a substantially equivalent posi- tion, without prejudice to his seniority or other rights and privileges previously enjoyed, and make him whole for any loss of earnings or benefits he may have suffered by reason of Respondent's dis- crimination against him as set forth in the section of this Decision entitled 'The Remedy."' 3. Substitute the attached notice for that of the Administrative Law Judge. APPENDIX NOTICE To EMPI OY ES POSTED BY ORDER OF THE NATIONAL LABOR REILATIONS BOARD An Agency of the United States Government After a hearing at which all sides had an opportu- nity to present evidence and state their positions, the National Labor Relations Board found that we have violated the National Labor Relations Act, as amended, and has ordered us to post this notice. The Act gives employees the following rights: To engage in self-organization To form, join, or assist any union To bargain collectively through repre- sentatives of their own choice To engage in activities together for the purpose of collective bargaining or other mutual aid or protection To refrain from the exercise of any or all such activities. WE WILL NOT suspend or discharge employ- ees for engaging in union or other protected concerted activities. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employ- ees in exercising rights guaranteed by Section 7 of the Act. WE WILL offer Donald Fencl immediate and full reinstatement to his former position or, if that position no longer exists, to a substantially equivalent position, without prejudice to his seniority or other rights and privileges previ- ously enjoyed, and WE WILI. make him whole for any loss of earnings or benefits suffered by reason of the discrimination against him, with interest. WE WILL. expunge from our records the re- ports from thepersonnel department dated Oc- tober 6, 1978, relating to the suspension of Donald Fencl on October 6 and his discharge on October 10, 1978. OMC STERN DRIVIE, A DIVISION 01 OUTBOARD MARINE CORPOR\ I ION DECISION STATEMIN I O 1 HtU CASE JAMES M. FITZPATRICK, Administrative Law Judge: In this case a clever personnel official maneucred a con- tentious shop steward into blatant insubordination and then fired him. As found below, this ploy was unlawful discrimination. The steward should have his job back plus his lost earnings. This proceeding arises from unfair labor practice charges filed October 2 and amended October 13, i978,' by Local 473, United Automobile, Aerospace and Agri- cultural Implement Workers of America, herein called the Union, against OMC Stern Drive, A Division of ()ut- board Marine Corporation, herein called Responden.l ()n December I a complaint based on these charges issued alleging that Respondent had engaged in unfair labor practices proscribed by Sections 8(a)(1), (3), and (4) of the National Labor Relations Act, as amended, herein called the Act. Before answering Respondent moved for a more definite statement, which was granted in part by order on December 20, and additional information was provided Respondent on January 5, 1979. Thereafter Re- spondent answered the complaint and subsequently at the hearing verbally enlarged its answer admitting jurisdic- tional allegations, admitting that it had suspended em- ployee Donald Fencl on October 6, admitting it dis- charged him on October 10, and has not since reinstated him, but denying it did so because he engaged in union activity or other protected, concerted activity consisting of the filing and processing of grievances or because he gave testimony to the National Labor Relations Board. Thus, the issue in dispute is Respondent's motive in sus- pending and terminating Fencl. The matter was heard before me at Chicago, Illinois, on April 30, May through 4, and May 9, 1979. Based on the entire record, including my observation of the witnesses, and consideration of the briefs of the General Counsel and Respondent, I make the following: FINDIN(S OF FACI I. THE EMPLOYER Respondent is a corporation engaged at Waukegan. Il- linois, in the manufacture of marine motors and accesso- ries. In these operations it annually receives at its plant in Waukegan materials valued over $50,000, which are shipped directly to it from outside Illinois, and annually sells products valued over $50,000, which it ships from its plant directly to points outside Illinois. Respondent employs over 400 persons and is an employer engaged in interstate commerce. I All dates herein are in 1978 unless olhervl,e ilndicated 487 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The management structure in Respondent's plant is not material to this case, except for its director of industrial relations, James Parks, and two supervisors, James Muel- lenback and Michael Miltimore. The plant works three shifts, 5 days a week, Monday through Friday. II. THIE UNION The Union is a local labor organization affiliated with United Automobile, Aerospace and Agricultural Imple- ment Workers of America. Since its certification by the Board in 1962 it has represented Respondent's produc- tion and maintenance employees at its Waukegan facili- ties regarding their terms and conditions of employment, and has engaged in collective bargaining on their behalf with Respondent which has resulted in a series of collec- tive-bargaining agreements applicable to them. The cur- rent greement, effective August 11, 1977, was agreed to at the end of a 3-month strike. III. tIHI ALLEGED UNFAIR ABOR PRACTICES A. Background 1. The grievance procedure problem Under the current collective-bargaining agreement (and presumably under prior agreements as well) the di- rection of the work force, including the discipline and discharge of employees, is reserved to management. Strikes and lockouts are prohibited and employees may not leave work without permission. Instead, an elaborate five-step grievance procedure is provided with binding arbitration as the sixth step. Other union activity in the plant is limited by the following provision: It is agreed that there will be no union activity during scheduled working hours other than that ap- propriate to the enforcement of this Agreement through the grievance procedure as herein pro- vided. This trade-off thus purports to circumscribe not only the constitutional and statutory right to strike, but also to re- strict union activity during working hours to participa- tion in the grievance procedure. Prior to the current agreement this provision was liberally construed to permit union officials to engage in a variety of union ac- tivities in the plant not directly involving grievances. But they were not paid by the Company for time spent in such activities. During the prior agreement from 1974 to 1977 the grievance apparatus had not worked to the satisfaction of the parties. In the Company's view the Union abused the grievance procedures. The Union placed the blame on Industrial Relations Director Parks, accusing him of a negative attitude toward all issues grieved. In fact, in February 1977 when the Union gave notice of intent to negotiate changes in the agreement it suggested to higher management that Parks not participate in the negotia- tions. 2 The Company promptly rejected the suggestion ' The Union's letter of intent to modify the agreement was signed by Walter Ryhicki, president of the Local, William Caldwell, grievance chairman, and Donald Fencl, chairman of the union bargaining commit- that Parks be excluded from the bargaining. During the negotiations, which eventually resulted in a strike settle- ment and the current agreement, the grievance proce- dure problem was thoroughly discussed. In an effort to improve the climate for agreement the Union verbally pledged not to abuse the grievance procedure. A few weeks after the current agreement took effect on August 11, 1977, management began strictly enforcing the above-quoted contractual provision limiting in-plant union activity to grievance procedures and also began strictly construing the grievance procedures themselves. This approach met resistance from union officials who endeavored to continue past practice. The events leading up to Fencl's suspension and discharge were a part of this on-going controversy. 2. Participation of Fencl in grievances Fencl began working for Respondent in 1971. During the 4 years prior to his discharge on October 10, 1978, he worked as a salvage motor drive repair mechanic in the salvage department under the supervision of James Muellenback. From 1974 on he was union steward on the day-shift for his own and one or more other depart- ments. In addition, at various times in 1977 and 1978, he served as union committeeman on the day-shift for the west-end area of the plant. During contract negotiations in 1977 he served as chairman of the union negotiating committee (although President Rybicki was the Union's principal spokesman). He also was a member of the Union's executive board, having been elected sergeant-at- arms in 1976. Throughout his employment with the Company he actively engaged in a variety of union func- tions including the processing of grievances. Since the most recent collective-bargaining agreement became ef- fective in August 1977, and while he was actively work- ing,3 he was responsible for filing one-third of all the written grievances filed in the plant. Apart from the merits of these grievances, Parks took the position that under the new agreement even proce- dural details in the grievance process must be strictly ad- hered to. In an effort to enforce this interpretation with respect to Fencl he took various adverse personnel meas- ures calculated to limit his union activities. For example, on occasion Parks decreed that Fencl should not be paid for time he said he spent processing grievances. Numer- ous warnings, which were memorialized in writing and placed in his personnel file, were given for alleged tech- nical defects in using the grievance procedures. These warnings included such subjects as spending excessive time in processing grievances; omitting the first or verbal step and commencing with the second or written step; joining with another steward to assist in a grievance which the other steward was processing; and the tardy tee and the alleged discriminatee in the present matter. All of these per- sons were also employees of the Company The effort to unseat Parks as chief company negotiator, as well as considerable other evidence in the record, amply demonstrates the personal animosity between Parks and some union officials, including Rybicki and Fencl. : Hetween August IS, 1977. and May 25, 1978. the Union filed 127 written grievances, 45 of them by Fenc From May 25 to August he ,Was on medical leave From August I, 1978, through October 31, 1978, the tinioln filed 29 written grievances. 8 by Fencl 488 OMC STERN DRIVE filing of a union activity pass reporting the time he had been engaged in a grievance. Beyond this, he was given additional warnings for engaging in union-related activi- ties which management contended were not appropriate- ly within the definition of grievance procedures. Fencl responded to these various measures by filing numerous grievances on his own behalf based on them. A running battle developed between Fencl on the one hand and Parks and Muellenback on the other regarding Fencl's union activities (including his grievance procedure activi- ty). Assuming, without finding, that Fencl's liberal con- struction of the agreement was erroneous, none of the in- cidents in which he was involved were serious defaults in his own employment obligations. Almost all involved his activity as a union functionary in matters not directly related to his own job. Job wise, some delay in his own work likely resulted. But he was good at his job and this record does not establish that the Company suffered any measureable loss as a result of his time spent in union ac- tivities. Even assuming, again without finding, that Parks' contract interpretations were sound and that based on them management properly could have rejected grievances which were technically defective or could have protested to the Union that its representative was not operating correctly, such would not justify discrimi- nation against Fencl, the employee, because Fencl, the union representative, made mistakes. Chrysler Corpora- tion, 228 NLRB 486, 490 (1977); Consumers Power Co., 245 NLRB 183 (1979). Such repeated discrimination sub- stantially adds to the total evidence of Parks' animosity toward him and the union activities in which he en- gaged. In addition to his duties as a steward and area commit- teeman, which involved him in the grievance procedures, Fencl was also engaged in other union activities in the plant in his capacity as chairman of the Union's health, education, and welfare committee. Regarding such activ- ity Parks issued him a "final written warning" on Sep- tember 23, 1977, which read as follows: We take this means to advise you that if you contin- ue to lose time from your work as a result of activi- ties not specifically covered under the contract, you will be subject to a disciplinary layoff and other ap- propriate disciplinary action. This is your final written warning. By a first-step grievance Fencl endeavored to verbally persuade his supervisor James Muellenback to withdraw the warning. Muellenback refused, in effect taking the position that under the collective-bargaining agreement the only union activities which could be approved were the processing of grievances. But he suggested Fencl could talk with Parks. Fencl then went to Parks who took the same position, telling Fencl he should let Parks worry about the health and welfare of the employees. He told Fencl to refrain from that sort of activity. Accord- ing to Fencl, as he was leaving, Parks said, "Let me tell you something right now. If you don't refrain from your union activities, this corporation- I will personally see-I will get rid of you one way or the other." I find that Parks made this remark and that his reference to union activities, taken in context, meant union activities other than the processing of grievances. In testifying Parks categorically denied that he said he or the Compa- ny was going "to get Fencl." But he did not report ex- actly what was said in the conversation although he ad- mitted it occurred. Fencl, on the other hand, recalled the words used. Because of his greater specificity, I credit his version. The comment of Parks is a clear indication of his conscious policy to take personnel action against Fencl for union activities in the plant beyond what Parks construed as appropriate processing of grievances and supports the findings made hereinafter that the ultimate suspension and discharge of Fencl were unlawful dis- criminations. Star Expansion Industries Corporation, 164 NLRB 563, 565 (1967). B. he Discharge of Fencl 1. The absences of October 2 a. Fencl absence On Monday, October 2, Fencl did not report for work at the Waukegan plant. Instead, he went with Rybicki to the Board's Regional Office in Chicago. Prior to the commencement of his shift he telephoned the guard at the plant gate with the message that he would not be in for work because of personal business reasons. The guard informed Muellenback. According to Fencl this was a normal way of inform- ing the Company of an absence. Evidence of past prac- tice indicates that it was one of several methods in use and was within the range of methods which employees reasonably might expect would be acceptable to the Company. The most acceptable method was substantial advance notice in writing. Thus, about a year earlier on October 24, 1977, Rybicki had written a note to his su- pervisor that he would be on union business the next day and would not be at work. And in connection with the same occasion the Union's recording secretary sent Parks a notice on October 24, 1977, informing him that Ry- bicki, Fencl, and three other employees would be absent the following day "due to union related responsibilities." However, a day's advance notice was not always given. Thus, a few weeks later, on November 14, 1977, the re- cording secretary gave Parks a note informing him that Rybicki and Fencl "will be absent today from the plant for the purpose to transact union business." And on Feb- ruary 20, 1978, the union president and recording secre- tary after the fact gave Fencl's supervisor an explanation of the reasons why he had been absent 3 days earlier. They explained that he had been given a last minute no- tification by the union president to go to the Board's Re- gional Office in Chicago and noted that Fencl had called in to have himself excused. Several days notice was given on June 6, 1978, when Recording Secretary An- derson informed Parks in writing that she and two others would be absent on union business for 2 days the follow- ing week. On that occasion Parks excused the absences. In the other instances noted above it would have been normal, if such absences were unexcused, for such to be recorded in some fashion. Fencl's personnel file reveals 489 I)FCISIONS OF NATIONAL LABOR RELATIONS BOARD no such information and I infer that the absences noted above in fact were excused. An employee received no pay when absent, whether excused or not. The adverse significance of not being excused was that a memoran- dum of that fact was placed in the employee's personnel file. One obvious advantage of advance notice of an ab- sence is that management more conveniently may reas- sign employees to fill in for the absent person where nec- essary. Apparently that was not a significant problem on prior occasions when Fencl was absent and prior notice was given before commencement of the shift. However, his supervisor, Muellenback, testified that on October 2 he pulled other employees off different work areas to perform Fencl's job. He gave no details as to whether such reassignments would have been easier had he had greater advance notice. Although I take his word that he in fact reassigned replacements for Fencl, he did not ex- plain why replacements were necessary on that day. The nature of Fencl's work was not such that his absence or- dinarily kept others from doing their jobs. He was a sal- ,age motor drive repair mechanic in department 43. Al- though a total of eight employees performed work of that nature, only he and Richard Miller regularly worked in that department, the other six being loaned out to other departments. He and Miller did not work on an assembly line so that assembly line employees were not held up by their absence. The consequence of their absence was that the work not performed had to be done later. In these circumstances I find that there was no se- rious production delay created by Fencl's absence on October 2. The only apparent delay would have been the I-day delay in his own work and Muellenback in fact was able to avoid that by reassigning others to cover the job. At the Board's office in Chicago, Rybicki, accompa- nied by Fencl, filed unfair labor practice charges against the Company. They were there the entire day. Fencl himself did not file charges, nor did he give an affidavit, but he did consult with a Board investigator respecting Rybicki's charges and answered some questions. I find he was giving evidence within the meaning of Section 8(a)(4) of the Act. b. Madsen absence Rybicki and Fencl were not the only company em- ployees in the Board's office that day. John Madsen, an inspector, also came to the office to file charges against the Union for not pressing a grievance against the Com- pany. Although he saw Rybicki and Fencl there he was involved with a different matter and did not talk with them. Like Fencl, he had telephoned the plant guard prior to commencement of his shift saying that he would be absent in order to go to the Board to file a complaint. The guard made a note that his reason for absence was "personal" and informed his supervisor, Michael Milti- more. The method used by Madsen in informing the Company of his intended absence further supports the finding made above that telephonic notice prior to the commencement of the shift on the day of absence was a method which employees reasonably believed to be ac- ceptable notice. 2. The refusals to excuse absences a. Muellenback refuses to excuse Fencl On Tuesday morning, October 3, shortly after Fencl began working, Muellenback came to his work station to inquire why he had been absent the day before. Fencl said it was personal business and, when pressed, added he had been at the Board. Muellenback then left for a short while and, on his return, informed Fencl his ab- sence would not be excused. Fencl explained that it was important that he be at the Board office, but Muellen- back replied that he could have mailed a letter which would have provided a form showing Muellenback that he had to be at the Board office. Whether Muellenback meant a letter to the Company or a letter to the Board is not clear. It is apparent that Muellenback evaluated Fencl's ac- tivities on October 2 in making his determination as to whether or not to excuse him. He obviously considered some reasons for absence more important than others and that he did not consider being at the Regional Office sufficiently important to outweigh whatever inconve- nience (if any) resulted from the shortness of the advance notice which Fencl had given. This is clear from Muel- lenback's testimony indicating that he expected a day's advance notice. Yet on some prior occasions that amount of notice had not been required. Moreover, it is not clear from the record that the amount of lead time made any real difference. In either case, the Company did not real- ize his production for that day and, unless great inconve- nience attached to shorter notice as contrasted with longer notice, there would seem as much reason to excuse him in one case as in the other. What it comes down to is that Muellenback did not consider his pres- ence at the Board office a good reason for being absent and used the shortness of advance notice as a substitute rationale. Thus, Fencl's presence at the Board office re- garding an investigation under the Act was the reason he was not excused. b. Miltimore refuses to excuse Madsen On Monday, October 2, Madsen's supervisor, Milti- more, knew Madsen was absent and that he had called in prior to commencement of his shift with word that he would be absent for personal reasons. At that point Mil- timore made no decision whether or not to excuse him. The next morning, October 3, shortly after Miltimore ar- rived, Madsen went to his office to advise him he had gone to the Board the day before to file a charge. Milti- more gave no indication whether or not he was excused. He was uncertain about what to do and consulted first with his own immediate superior, Quality Control Man- ager John Koerber, then with Parks, because Parks was more knowledgeable regarding Board related absences. His final decision was that the absence was unexcused, a decision in which Parks concurred. Like Muellenback, they made an evaluation as to whether being at the Board was a good enough reason for being excused and concluded it was not. Miltimore reasoned that Madsen's need to be at the Board office had not arisen suddenly and he could have given Miltimore more notice which 490 OMC STERN DRIVE would have been helpful. Just how helpful it would have been is not made clear. But the sequence of events does make clear that only after learning that Madsen was at the Board office filing a charge did Miltimore and Parks decide that that activity was not an adequate reason for being excused. Even though Miltimore denied that Mad- sen's presence at the Board had anything to do with the decision, he and Parks of necessity evaluated the merit of his presence there and found insufficient merit. There is no dispute that some personal reasons for absence were accepted excuses even when notice of the absence was short. Absent some convincing evidence, not found in this record, that Madsen's short notice created operation- al problems, his presence at the Board office instead of at work was the "but for" reason he was unexcused. At or about 1:30 on Tuesday afternoon Miltimore in- formed Madsen he was not excused for Monday. Some- what later that day Madsen asked if he could have a word with him, saying he wanted to speak as a friend be- cause Miltimore over the years had treated him fairly and he wanted to tell him in advance that he might grieve the matter of the unexcused absence. According to Miltimore, he expressed his own appreciation of Madsen coming to him on a friendly basis, as opposed to an employer employee relationship. He acknowledged that grieving the matter was definitely Madsen's right and he would not take it personally. Just before quitting time that afternoon Madsen also talked with Fend, his shop steward, about not being ex- cused for the day before. He told him he had been absent and had tried, unsuccessfully, to get excused. From the testimony of Madsen and Fencl it is clear that Fencl un- derstood Madsen already had talked with Miltimore. He thus had some reason for thinking that a first verbal step grievance already had occurred.4 Because it was late in the day Fencl told him they should wait until the next day when there would be more time to investigate and process the matter. 3. The grievances over refusal to excuse absences On Wednesday, October 4, Fencl filed two grievances protesting the refusals to excuse the absences of himself and Madsen on October 2. a. The Fencl grievance At or about 9 a.m., Wednesday, Fencl handed Muel- lenback the grievance concerning himself. According to Muellenback, whom I credit in this respect, he and Fencl had no conversation respecting it. He simply accepted the written grievance subsequently turning it over to the personnel department. It is clear that he did not refuse to accept the document or refuse to process it on the ground that the first-step verbal discussion had been omitted. b. The Madsen grievance Prior to the start of their shift on Wednesday, Fencl and Madsen again talked about Madsen's grievance. Madsen indicated he still wished to pursue the matter ' The collective-hargaining agreement prov ides thai the first step it a grievance may be perforrmed by either the employee or a shop steward and asked Fencl to speak with Miltimore. Around 9:15 in the morning, Fencl asked Muellenback for a union activi- ty pass (which would allow him to leave his work sta- tion to engage in his steward functions), explaining to him that Madsen had an unexcused absence for October 2 and wished to grieve the matter to the next step and that Fencl would attempt to avoid putting the grievance in writing. Muellenback issued him the union activity pass so he could talk to Miltimore and Madsen. Fendcl then went to Miltimore's office. He told him he had spoken the day before with Madsen and that he un- derstood Miltimore would not excuse him. He said Madsen wished to pursue the issue but Fencl also asked Miltimore to excuse Madsen. Miltimore refused. Fencl then indicated that, although Madsen had wished to pursue the issue, he would like to talk to him again to see if he still was of the same mind. Miltimore gave him permission to talk with Madsen at his work station. Fencl then talked with Madsen informing him that Milti- more would still not excuse him. Madsen said he wished to put the grievance in writing so Fencl returned to his department and wrote up the grievance. He then re- turned to Madsen who signed it and then went back to Miltimore whom he again asked to reconsider. He argued that Madsen had not been an absentee problem and that the matter in reality had been taken care of by the steps Miltimore had already taken. Miltimore held to his refusal to excuse Madsen so Fencl handed him the grievance. At Fencl's request he initialed the union activ- ity pass and noted the time. Fencl then returned to his department where he filed the union activity pass in the timecard box. A short while later Miltimore came to Fencl and asked him to retrieve the union activity pass because he thought he had noted the wrong time on it. Fencl re- trieved the pass and commented that since they had been through the first step of the grievance he should mark it as the second step. He did so. For his part Miltimore changed the time noted on the card. Fencl then redepo- sited the pass in the timecard box. Although Miltimore denies that Fencl made any notations on the card the card in fact is marked step 2. Accordingly, I do not credit Miltimore's denial that Fencl made the notation. As of October 4, Fencl had reason to believe Madsen had verbally discussed the grievance with Miltimore the day before, thereby fulfilling the first step of the griev- ance. The testimony of Fencl, which I credit, also shows that on October 4, prior to the filing of the written grievance, he verbally asked Miltimore to excuse Madsen and Miltimore refused. In testifying about their conversa- tion on October 4, Miltimore said Fencl asked him if he had not excused Madsen for his absence on October 2 and that he replied he had not. He testified that Fencl then stated his wish to go into the department and speak with Madsen, to which Miltimore gave his approval. By a leading question from Respondent's counsel he was then asked whether that was all that was said in the con- versation and he responded, "the best I can recall." I do not consider this a positive denial under oath that the conversation occurred in the manner testified to by Fencl. Accordingly, I credit the Fencl account. 491 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Sometime later in the day, Miltimore conferred with Parks who wrote out in handwriting an answer to, or the first step disposition of, the Madsen grievance, denying it on the ground there was no necessity for Madsen to be absent on October 2 because he could have mailed his in- formation to the Board. In addition, the response stated that, in violation of the contract, there had been no verbal discussion of the grievance. Parks also wrote out a draft of a disciplinary warning or writeup to Fencl for omitting the first step of the grievance. I find these were decisions of Parks in which Miltimore concurred. I base this on the fact that Miltimore was unfamiliar with the grievance process, this being his first experience. I infer he was not particularly familiar with the grievance pro- visions in the collective-bargaining agreement. When asked on cross-examination as to when he decided it was important to issue Fencl a writeup, he replied, "sometime after he had presented me with the grievance and I became fully aware of the fact that I had not had the op- portunity to respond to it verbally in the first step." In the circumstances it is reasonable to infer that Parks helped him become "fully aware." It is appropriate to note here that the so-called wri- teups used to reprimand or warn employees are on a standard form called the report from personnel depart- ment. This is in triplicate, the top copy being white and designated for the personnel department, the middle being yellow and designated for the employee's supervi- sor, and the bottom being pink and designated for the employee. At the time Parks wrote out the language for the writeup to Fencl, he told Miltimore that when he de- livered it to Fencl (which was expected to occur the next day) he should make sure he retrieved the pink copy. In his own testimony Parks explained that he spe- cifically instructed that all three copies be returned be- cause he had no doubt that a formal disciplinary hearing on the matter would result. Thus, he already had con- cluded that a serious disciplinary issue would be made of the alleged bypassing by the steward of the first step in grieving. When Miltimore left him on the evening of Oc- tober 4, both the response to the grievance and the wri- teup were still in Parks' handwriting, his intent being that his secretary would type them up the following morning for Miltimore's signature. 4. Miltimore's writeup of Fencl a. Delivery of the writeup on Thursday At or about 8 in the morning on October 5, after Parks' drafts of the response to the Madsen grievance and the writeup of Fencl had been typed, Miltimore came to the personnel office, read them over, and signed them. It is possible that he felt some uncertainty about them because he did nothing further regarding them until shortly after 11 a.m. when he approached Madsen at his work station and asked him if he had talked with Fencl about writing a grievance. Madsen replied he had spoken with Fencl. Miltimore then asked when Fencl had ap- proached him, to which Madsen responded that it had been shortly after break time during a lull in the work and that Fencl had a union activity pass. From Madsen, Miltimore went to Fencl, presenting him with the writeup in triplicate. Fencl refused to agree to its contents or to sign it. He removed the pink em- ployee copy and put it in the top of his toolbox. Milti- more asked him to return the pink copy. He not only had his instructions from Parks, but his own practice in dispensing writeups had been to return all copies to the personnel department. But such was not universal prac- tice in the shop. Parks testified that sometimes employees kept the pink copy when they first were handed wri- teups. And the practice that Fencl (who had received numerous writeups) had followed with Muellenback was to keep the pink employee copy when the writeup was first handed to him. On this occasion when Miltimore questioned his retention of the pink copy Fencl told him that the normal procedure which he had always fol- lowed was to keep the pink employee copy. Based on the testimony of Miltimore I also find that Fencl said the pink copy was his, that he was the one written up, that he was entitled to it, that it was going to his lawyer, and that they would find out who Miltimore was. Thus, it is clear that from the time the pink copy first came into his hands Fencl asserted it was evidence to be used later on his behalf. Miltimore left without the pink copy. Later during the lunch break, Madsen asked Fencl if he could see the writeup. Fencl showed it to him and then Madsen returned it to Fencl. Fencl also showed the pink copy to Muellenback who read it and asked what it was all about. Fend replied he thought it was about his not having a union activity pass and not following the proper procedure. Muellenback then checked his own record of union activity passes which showed that he had issued one to Fencl and he said, "I don't know what it's all about." Fencl expressed the view that the writeup should be pulled from his record. Muellenback agreed to look into it and get back to him. What happened to the pink copy after that is unclear. Fencl testified that the last time he saw it was when Muellenback handed it back to him after checking his own records, at which point Fencl put it in the top of his own toolbox along with a lot of other papers. He planned on giving it to the union attorney, but later could not find it. b. Miltimore seeks return of the pink copy A short while after the conversation between Fencl and Muellenback, Miltimore came to Fencl's work sta- tion and requested the return of the pink copy of his wri- teup. Fencl replied that he had talked with his own su- pervisor about it, that the matter was in the grievance procedure, and that he needed the pink copy for process- ing of the grievance. Thus, he again asserted the eviden- tiary nature of the document. He said that as soon as Muellenback got back to him with an answer and he himself was able to make a copy of it, he would be happy to return the original. Until he received the answer from his supervisor he would keep the document as union property. 492 OMC STERN DRIVE c. Muellenback with Miltimore seeks return of the pink copy Around noon Miltimore solicited the assistance of Muellenback in retrieving the pink copy. Together they approached Fencl at his work station and, according to the testimony of Fencl given on cross-examination, which I credit, Muellenback began by responding to Fencl's earlier verbal request that the writeup be pulled from his record by saying that he could not pull it and that it would stay as such.5 Muellenback continued that he wanted the pink copy returned. Fencl replied he needed it to process the grievance, that at that time he was unable to return it to him, and, besides, he did not have it. Muellenback asked where it was. Fencl repeated he did not have it and Muellenback again asked him where it was. Fencl then said he was on his way to his lawyers. Muellenback asked him who his lawyer was. Fencl answered that it was Jed Stone. At the time Stone, attorney for the Union, was engaged with Parks and others in an arbitration hearing involving Rybicki being held in the company office. Muellenback told him to try to get it back from Stone. Fencl pleaded for a little time. Muellenback asked him what he needed time for, to which Fencl replied, "I have to check it out, where it's at." But the two supervisors indicated they wanted the pink copy immediately. Fencl replied, "I can't give it to you. I don't have it." Based on the testimony of Madsen, who was observing from some distance and whom I credit in this respect, I find that in the presence of the two supervisors, Fencl searched through his toolbox and other personal belong- ings without finding the pink copy. Fencl offered, ac- cording to both Muellenback and Miltimore, to go with them to the company office to see if attorney Stone had it. Miltimore replied he would check it out. Both super- visors then left. Miltimore went to his own office and attempted, with- out success, to telephone those involved in the arbitra- tion hearing. They were all out to lunch. Around I p.m. he went to the vicinity of the company office to await their return. When they arrived he spoke with Parks, ap- parently not talking at all with Stone. When Parks heard what had happened he took the white and yellow copies of the writeup and told Miltimore that was fine, to do nothing more, that he, Parks, would handle the situation from that point. I find that at the time of his conversation with the two supervisors, Fencl looked for, but did not find, the pink copy and, in fact, did not know where it was. At other points he testified credibly that he had many papers in his toolbox, among his personal effects, and in the folder he used for union matters. I infer these items were in some disarray, a fact which probably was obvious to the two supervisors. s Muellenback and Miltimore, both of whom gave an account of the conversation on this occasion, made no reference to this response by Muellenback. On the other hand, neither specifically denied that he made the statements. Considering that neither gave as full an account of the entire conversation as Fenc did in the course of being cross-examined by Respondent's counsel, I credit the testimony of Fencl. d. Muellenback again seeks return of the pink copy Around 2 that same afternoon Muellenback again asked Fencl if he had recovered the pink copy and if he would return it. Fencl replied he was unable to return it. Muellenback then said he had understood that either Fencl or his attorney had it. Fencl then confessed that he had misled him because he had needed a little time, ap- parently to locate the document. He said that although he had looked all over for it, he could not find it, and did not know what had happened to it. Consequently, he could not return it. The above finding is based on the credited testimony of Fencl. Muellenback's version of the conversation varies somewhat. According to him, Fencl came to him and informed him he had lost the pink copy. Muellen- back then questioned him why he had told him he had turned it over to his attorney when he had lost it. Fencl responded by saying he had a duplicate copy. But Muel- lenback insisted on having the original. To the extent Muellenback's version differs from that of Fencl, I find he was mistaken. I reach this finding because had Fencl offered him a substitute copy it would be likely that such duplicate copy still exists. Yet none of the parties in this proceeding produced such a copy. The exhibit offered and received in evidence is a xerox copy of the original white copy in the possession of Parks. e. Fencl inquires about the Miltimore writeup Early Friday morning, October 6, Fencl inquired of Muellenback whether Miltimore's writeup was going into his personnel record. Muellenback said he would find out and get back to him. He then contacted the per- sonnel office and was informed that the writeup would remain in Fencl's personnel file. Apparently he then told this to Fencld who asked him what the disposition of it was.6 Muellenback replied that if Muellenback had the pink copy of the writeup (presumably to hand to Fencl at this point) the disposition would be on it. He told Fencl that if he had any more to offer on the matter he should contact his union committeeman for the west-end area. 5. The Muellenback writeup a. Muellenback serves Fencl with his writeup and Fencl keeps the pink copy Shortly after noon on Friday Muellenback, accompa- nied by Miltimore, called Fencl out of his work area and handed him another writeup, according to his testimony, because Fencl had removed the pink copy from the Mil- timore writeup. However, there is no evidence he said this at the time. The document itself is ambiguous. It read as follows: During the course of the work shift, 10-5-78, you violated the contract specifically Part 1, Paragraph r Ihis Is an apparent reference to hat portion of the wriieup form (report from personnel department) entitled "Disposition" in which per sonnel officials sometimes note the official hasis for the final disposition of the problem 493 )tDE'CISIONS OF1 NATIONAL. LABOR REI.ATIONS BOARD 15 when you removed the part of the company forms without authority, and Paragraph 19 when you failed to return that form as requested by a member of management. You subjected yourself to serious disciplinary action, including termination. The contract contains no part 1, paragraph 15, or para- graph 19. The language apparently refers to the factory rules and regulations which contain a part I listing fac- tory rules, violation of which constitute cause for dis- charge. Rule 15 of part I bans, "theft from the Company or from a fellow employee," and rule 19 bans "insubordi- nation to management by refusal to obey instructions, in- cluding failure or refusal to perform work assigned." All three copies of the writeup were together when Muellenback handed it to Fencl and asked him to sign it. He did not sign it but in the portion of the form pro- vided for disposition he wrote the following: Completely unaware of the happenings which they are talking about. If I did this I am now being ac- cused of theft that I am not guilty of. In the past that portion of the form had sometimes been used for such notations. After making the entry, Fencl removed the pink copy and handed the white and yellow copies to Muellenback. Muellenback ordered him to hand over the pink copy also. He responded that Muel- lenback could not give a direct order to a union official. Muellenback repeated his order and Fencl again refused, indicating that the supervisor could do anything but he would not receive anything. The two supervisors left. Muellenback returned the white and yellow copies to Parks who questioned him about the fate of the pink copy. On the above facts I find that Fencl understood what the writeup was about and by making his notation on the form was pointing up its technical inaccuracy. I also find, based on the testimony of Muellenback that he "re- turned" the other copies to the personnel office where he spoke with Parks, that, as in the case of the Miltimore writeup, Parks had originated the document although it was signed by the supervisor. b. Muellenback orders Fencl to hand over the pink copy of the Miltimore writeup According to the uncontradicted testimony of Fencl, Muellenback accompanied by Miltimore again came to Fencl's work area early Friday afternoon. Muellenback ordered Fencd to return the pink copy of the writeup which Miltimore had given him. Claiming to be acting in his capacity as a union steward, Fencl responded that he did not have it and was not returning it. Muellenback re- peated his order, warning Fencl he might be charged with insubordination and risked discharge if he refused. Fencl said he did not know what happened to the pink copy and that he did not have it. He further said that anything in his union briefcase belonged to the Union and he lacked authority to hand over such material, but in any case, he did not have it and could not deliver something he did not have. Muellenback asked if he was refusing to hand it over. Fencl repeated his position. The supervisors then left. c. Parks suspends Fencl for refusing to hand over the pink copy After leaving Fencl, Muellenback reported immediate- ly to Parks that Fencl had twice refused to hand over the pink copy. Parks then took over completely. He got hold of James Eckhart, the Union's west-end area com- mitteeman, had him sign out on a union activity pass, and with him proceeded to the vicinity of Muellenback's desk. From there he called to Fencl and, after some diffi- culty catching his attention over the noise of the plant, motioned him to come out of his work area and stand in front of Parks at Muellenback's desk. They engaged in some sarcastic interchange as to where Parks wished Fencl to position himself, in the course of which Fencl bent forward momentarily holding his hands in a prayer- ful position. Parks, obviously annoyed, told him to stand upright.7 Warning Fencl that his continued insubordina- tion would have the most serious consequences, Parks ordered him to return the pink copy of the writeup. Except for Parks, the testimony of all others present in- dicates he used the singular, and I so find. By then, of course, Fencl had received two pink copies. He asked what copy. Parks admonished him not to be cute that he knew what copy Parks wanted. Fencl said he did not know what copy he was talking about and was not giving him any pink copy because he did not know what he was asking for. He added that anything he had he was retaining as union property in his union briefcase and was not turning over anything in his union briefcase. Parks again ordered him to turn over the pink slip and again he refused on the ground he did not have it. With Fencl's second refusal to produce the pink copy, Parks directed Muellenback to sign out Fencl's timecard and told Fencl he was suspended pending a disciplinary hearing the following Monday. He ordered him to leave immediately. Fencl demurred, saying he was scheduled to work 8 hours plus 2 hours' overtime. Parks said he was trespassing and again ordered him to leave. Fencl reiterated that he was there to work the regular shift plus overtime. He indicated they would have to eject him to get him out. Parks then left to get the police. Fencl went to wash up. Fencl testified that he asked Parks for something in writing to allow him to leave, that Parks refused, and that is why he was adamant about leaving. This account is inconsistent with that of all other witnesses present, in- cluding Parks, Muellenback, and Eckhart. I find that, al- though Fencl may have been thinking he needed some- thing in writing, he did not verbalize the request until later when the police arrived. Since it was in the middle of a shift, Fencl would have needed a pass for the plant 7 Parks, Muelleiback, and Eckharl testified that Fencl got down on his knees. But all three were biased against Fencl. Madsen, who was watch- ing from some distance, testified Fencl merely leaned over. In rebuttal Fencl credibly denied that he kneeled down and further testified that prior to that occasion he had undergone extensive surgery on both knees which made kneeling, or any quick movement, difficult and painful. In all the circumstances I find he did not get down on his knees. 494 OMC STERN DRIVE guard to allow him to take his automobile out of the parking lot. d. Fencl is arrested After going to the washroom, Fencl got coffee from the coffee machine and about 2 p.m. returned to his work area intending to ask Muellenback whether he was issuing him a pass to get out of the plant and the parking lot. He found Muellenback in the company of Parks, Mi- chael McNally (personnel supervisor and assistant to Parks), and two municipal policemen. One of the police officers spoke privately with Fencl informing him that Parks claimed he was trespassing. Fencl denied he was trespassing, saying he was there to work and that, although Parks had asked him to leave, he was trying to obtain the proper documents to leave. He said he wished to avoid terminating his own services under the contract and needed something in writing stat- ing he was suspended or discharged, and giving him per- mission to take out his toolbox, the contents of which were worth $1,000. In an effort to mediate, the police- man turned to Parks telling him that all Fencl wanted was a statement of why he was being terminated. Parks refused to give any statement of reasons on the ground that Fencl would learn the particulars at his disciplinary hearing the following Monday. The policeman then turned again to Fencl, who was going through his tool- box, and asked him to leave. Fencl refused. His mediation having failed the officer asked Parks if he wished to sign a complaint. Parks did so. The police then handcuffed Fencl and escorted him from the plant. Fencl was formally charged with trespassing and dis- orderly conduct. On January 19, 1979, he was brought to trial and acquitted on both counts. 6. The disciplinary hearing At 2:30 in the afternoon of Monday, October 9, the disciplinary hearing was held on Fencl's suspension. Parks and Plant Superintendent Ed Nelson represented the Company. Fencl was assisted by Rybicki and Griev- ance Chairman William Caldwell. At this hearing Parks handed Fencl three more wri- teups, all dated October 6, the previous Friday, and signed by Parks. The first charged him with gross insub- ordination on October 6 for refusing to hand over the pink copies of the two writeups he had received. The second charged him with gross insubordination, sufficient to warrant discharge, for refusing to leave following his suspension. The third charged him with continued insub- ordination justifying discharge by persisting in his refusal to leave thereby necessitating his arrest and removal. Al- though Fencl had seen none of these prior to October 9, all three purport to give him notice that, "A disciplinary hearing will be scheduled for 2:30 p.m. on October 9, 1978." On this occasion Fencl was apparently allowed to keep the pink copy of all three of the writeups. The record does not reflect what, if anything, addi- tional transpired at the October 9 hearing. No final result was announced at that time but a further hearing was called for the next day, October 10, at 1:30 p.m. At that time, the same persons being present, Parks announced that Fencl was discharged for an insubordinate attitude, his persistence in refusing to leave the plant even after the police had arrived and his forcing the Company to sign a complaint having him arrested in order to eject him from the plant. C. Discussion The questions here are presented in the context of a longstanding controversy over application of the collec- tive-bargaining agreement in which management has in- sisted on a strict, mechanistic interpretation and union of- ficials, notably Rybicki and Fencl, have insisted on a more flexible construction. But the meaning of the con- tract is not the crucial issue. The legality of those provi- sions and the validity of either party's interpretation of them are matters which.it is unnecessary to reach in this Decision. For the purposes of this case it may be as- sumed, without finding, that management is entitled to its version. Such approach, however, does not insulate Re- spondent from an evaluation of its conduct, including measures taken in accordance with its claimed applica- tion of the contract, in determining causal relationships and motives which resulted in the suspension and dis- charge of Fencl. Only if the contractual provisions con- stitute a clear and unmistakeable waiver of the employee rights involved in the particular incidents at issue would they affect the outcome. See Gary Hlobart Water Corpora- tion v. NL.R.B., 511 F.2d 284 (7th Cir. 1975). 1 do not find such waiver here. What happened here is that Parks, in his zeal to achieve the most from the contract, allowed himself to be carried away to the point of ignoring fundamental statutory rights. This occurred when he either directed, or acquiesced in, adverse personnel action against Fencl for engaging in conduct which the statute protects. The whole background shows Parks' animosity toward Fencl, as well as Rybicki, and the union roles they played. The bad blood between them dated from prior to the 1977 negotiations and grew in intensity as shown by Parks' prediction later that year that he would get rid of Fencl one way or the other. In the final chapter before Fencl's discharge, he zeroed in on him in several ways even though less hostile options were available. If Fencl was an overly disputatious steward, Parks was an equally contentious industrial relations dir ctor. When construed in the light of this animosity, the de- cisions not to excuse the October 2 absences of Fencl and Madsen, made after supervision learned each was at the Board office, were discriminatory and inherently de- structive of rights protected by Section 7 of the Act. They help explain the reasons Fencl was suspended and discharged a few days later. It is beyond dispute that Fencl was engaged in pro- tected activity on October 4 when he grieved the refus- als to excuse Madsen and himself. Miltimore's writeup of him, which was an adverse personnel action taken for engaging in that activity, was, without more, an interfer- ence with Section 7 rights and a discrimination which discouraged membership in the Union. Parks and Milti- more sought to justify the writeup on the ground that Fencl omitted the first step grievance. That justification 495 I)ECISIO)NS OF NATIONAL. LABOR RELATIONS BOARD lacks merit (1) because Fencl reasonably believed the first step already had taken place, and (2) because the contract does not clearly and unequivocally waive em- ployee rights to the extent of jeopardizing a union stew- ard's employment for making an error in a grievance procedure. The Miltimore writeup was another management thrust in the duel between Parks and Fencl with the ulti- mate goal of maneuvering Fencl into a position where the coup de grace could be administered. The employee (or pink) copies of the Miltimore and Muellenback wri- teups were evidence of that purpose which Fencl had reason to keep. His acquisition of them and his posses- sion of them thereafter were in accordance with past practice. While management was certainly entitled to seek their return no significant business reason necessitat- ing return has been shown. On the other hand, substan- tial reason existed for Fencl to keep the evidence, par- ticularly in his steward capacity. In these circumstances, he may have been technically insubordinate in not hand- ing them over, but to hold him insubordinate in any meaningful way honors form over substance. And that is exactly what Parks did in sending Miltimore to retrieve the first pink copy. Then a further effort to pyramid the case against Fencl was made by issuing the Muellenback writeup because Fencl had refused to hand over his evi- dence of the first one. Predictably, he reacted the same way to the second writeup. He took the pink copy and refused to return it. Thus, Parks (with Fencl's coopera- tion) doubled the case against him. He parlayed this by personally ordering the return of a pink copy. True to form, Fencl again refused. The case for suspension being complete Parks suspended him. As to the Miltimore writeup, there is the added factor that at some point after Fencl showed it to Muellenback, he lost the pink copy and was incapable of returning it. He testified that was the last he saw of it, and I so find. But management was giving no quarter, for he was being charged with insubordination even if he did not have it to produce. In my view Fencl was on stronger ground in insisting on his official union status and refusing to give up evidence, a position he took with respect to both pink copies. Cf. AMF Voilt, Inc. a subsidiary of AMF Incorpo- rated, 223 NLRB 363 (1976). Parks played this game of one-upmanship with the economic strength of the employer and, in these last stages particularly, used the employee's job as a lever to advance management's game. The inherent ability of an employer to overpower the individual employee by such means is one reason the policy of the Act supports col- lective employee action. In his grievance activities, in- cluding his efforts to retain the pink copies in the face of management orders to give them up, Fencl was asserting rights protected by the Act. Suspending him for doing so was unlawful discrimination contrary to Section 8(a)(3) and (1) of the Act. Star Expansion Industries Corporation, supra. This last chapter in Fencl's employment with Re- spondent began with the absences of Madsen and himself to give evidence at the Board office. Because they were at the Board, their supervisors refused to excuse them. These refusals stimulated the jousting with grievances and writeups which within a few days led to Fenci's sus- pension. Thus, their being at the Board office to give evidence was a "but for" cause, not only in their being held unexcused, but also in Fencl's activities to remedy those claimed injustices and eventually in his suspension. Because of this, including the coincidence of timing, the suspension violated Section 8(a)(4) of the Act as well as 8(a)(3) and (1). E. H., Limited. d/b/a Earringhouse Im- ports, 227 NLRB 1107, 1108, 1109, 1110 (1977). The legal significance of events following Parks' an- nouncement of Fencl's suspension are more troublesome to resolve. Respondent could lawfully order anyone to leave its premises, even employees in good standing, and certainly suspended employees. Moreover, it could law- fully take any measure reasonably necessary to achieve compliance with its order. Here Fencl refused to comply with Parks' order to leave and in effect invited forceful ejection. Parks later assigned this as a ground for dis- charge asserting that Fencl forced the Company to have him arrested. Actually Parks seized the opportunity to have him arrested. Although Fencl was insubordinate in refusing to leave the plant when requested, I do not find this misconduct so flagrant, considering all the circumstances, as to de- prive him of the Act's protection. See The Bettcher Man- ufacturing Corporation, 76 NLRB 527 (1948). The events do not stand in isolation. Parks and Fencl were engaged in a duel, part of a lengthy contest between Company and Union. When Fencl, in my view foolishly, refused to leave and persisted in that refusal, Parks pressed his ad- vantage and had him arrested. Practically speaking he did not need to go that far. He had other alternatives. For example, he could have taken advantage of the police officer's effort to mediate following Fencl's signal that he would leave if he got something in writing. But Parks rejected the opportunity, even though he must have known an exit pass would be needed in mid-shift, thereby maintaining his hard-line position. His right to do so is not an issue here. What is at issue is his (and therefore Respondent's) motive throughout this whole course of events. His out of hand rejection of the police officer's effort fits the pattern of a program to maneuver the steward into an untenable position and then lower the boom on him. This is not one of those mixed motive cases with some evidence of discriminatory reason for discharge as well as valid cause. This is the case of the professional person- nel official sparring with an amateur, part-time, union of- ficial who is also an employee. At stake is the employee's job. Based on the entire record I find that one of Parks' long range purposes was to rid himself of Fencl. The confrontation over the pink copies, which he engineered, provided the opportunity. Fencl's own insubordination gave support to Parks' position. But I do not find Fencl's insubordination sufficient, given the peculiar circum- stances here of Parks' scheming and his rejection of a conciliatory opportunity in favor of the arrest route, to forfeit the normal protection against discrimination which the Act provides. To hold otherwise would allow the employer the fruits of discrimination and place a pre- mium on the kind of machinations in which Parks en- 496 OMC STERN DRIVE gaged. For these reasons I find the insubordination was not the real reason Fencl was discharged. I find that his zealous union activity was. It follows that his discharge, like his suspension, violated Section 8(a)(3) and (1) of the Act. Star Expansion Industries Corporation. supra. As with the suspension, the incadents which set off the chain of events resulting in Fencl's discharge were the presence of himself and of Madsen at the Board office on October 2. On this basis I find the discharge also violat- ed 8(a)(4) and (1) of the Act. E. .., Limited, d/b/a Ear- ringhouse Imports, .supra. IV. THlE. LEFFCTS 01 TriH UNFAIR ABOR PRACTICeS UPON COMMERCE The unfair labor practices of Respondent set forth in section III, above, occurring in connection with the op- erations described in section 1, above, have a close and substantial relation to trade, traffic, and commerce among the several states and tend to lead to labor dis- putes burdening and obstructing commerce and the free flow of commerce. CONCLUSIONS OF1 LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the mean- ing of Section 2(5) of the Act. 3. By suspending the employment of Donald Fencl on October 6, 1978, and by discharging him on October 10, 1978, and thereafter failing to reinstate him Respondent (I) committed unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act and (2) committed unfair labor practices within the meaning of Section 8(a)(4) and (1) of the Act. 4. These unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondent engaged in unfair labor practices, I recommend that it cease and desist therefrom and take certain affirmative action to effectuate the poli- cies of the Act. I recommend that Respondent be or- dered to offer Donald Fencl immediate and full reinstate- ment to his former position or, if that position is not available, to a substantially equivalent position, without prejudice to his seniority or other rights and privileges previously enjoyed, and that he be made whole tor any loss of earnings incurred as a result of being suspended on October 6, 1978, and discharged on October 10, 1978, with backpay to be computed as prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), and with interest as set forth in Isis Plumbing & Heating Co., 138 NLRB 716 (1962), and Florida Steel Corporation, 231 NLRB 651 (1977). I further recommend that Respondent be required to preserve and make available to Board agents, upon re- quest, all pertinent records and data necessary in analyz- ing and determining whatever backpay may be due. I also recommend that Respondent be required to post ap- propriate notices at its Waukegan plant. Upon the foregoing findings of fact, conclusions of law, and the entire record in this case, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER8 The Respondent, OMC Stern Drive, A Division of Outboard Marine Corporation, Waukegan, Illinois, its agents, successors, and assigns, shall: 1. Cease and desist from: (a) Suspending or discharging employees for engaging in union or other concerted protected activities or for giving evidence to the Board. (b) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of their rights 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 as guaranteed in Section 7 of the Act, or to refrain from any or all such activities. 2. Take the following affirmative action which it is found will effectuate the policies of the Act: (a) Offer to Donald Fencl immediate and full reinstate- ment to his former position or, if that position is not available, to a substantially equivalent position, without prejudice to his seniority or other rights and privileges prevously enjoyed, and make him whole for any loss of earnings in the manner set forth in the section entitled "The Remedy." (b) Expunge from its records the reports from person- nel department dated October 6, 1978, relating to the suspension of Donald Fencl on October 6 and his dis- charge on October 10, 1978. (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, time- cards, personnel records and reports, and all other re- cords necessary to analyze the amount of hackpay due under the terms of this Order. (d) Post at its Waukegan, Illinois, plant copies of the attached notice marked "Appendix."9 Copies of said notice, on forms provided by the Regional Director for Region 13, after being duly signed by Respondent's au- thorized representative, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 con- secutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or cov- ered by any other material. ' In the event no exceptions are filed as provided hb Sec 102 4 of the Rules and Regulations of the National abor Relations Board. the find- ings. conclusions. and recommended Order herein shall. as proided in Sec. 10248 of the Rules and Regulations, be adopted h the HBoard and become its findings. conclusions, and Order, and all objections ilierelo shall he deemed aived for all purposes 9 In the event no exceptions are filed as provllded by Sec 102 4 of the Rules and Regulations of the National abor Relations Board. he find- ings, conclusions, aid recommended Order herein shall, a prolided in Sec 102.48 of the Rules and Regulations, be adopted hb he loard arid become ilt findings, conclusions, arid Order, ad all objectliors thereto shall he deemed saised for all purposes 497 498 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (e) Notify the Regional Director for Region 13, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith.