Smiths Industries

National Labor Relations Board - Board Decisions

Feb 21, 1995

316 N.L.R.B. 376 (N.L.R.B. 1995)

376
316 NLRB No. 77
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
2 We shall modify par. 2(b) of the judge’s recommended Order to
correct an inadvertent error. 3 This provision is set forth in sec. III,A of the judge’s decision.
Smiths Industries, Inc. and Local 330, United Auto-
mobile, Aerospace and Agricultural Implement
Workers of America (UAW), AFL–CIO. Case
7–CA–35686
February 21, 1995
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS STEPHENS
AND BROWNING
On September 26, 1994, Administrative Law Judge
Peter E. Donnelly issued the attached decision. The
Respondent filed exceptions and a supporting brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and brief and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions and to adopt the recommended Order as
modified.2
The judge found that the Respondent violated Sec-
tion 8(a)(5), (3), and (1) of the Act by refusing Union
Steward Donald Dekker’s request to go to the union
office to process a grievance on ‘‘union time’’ as pro-
vided by the contract, and by limiting his grievance fil-
ing activity to before or after work or his breaktime.
The judge further found that the Respondent violated
Section 8(a)(3) and (1) by suspending Dekker for pur-
suing a grievance instead of remaining at his work sta-
tion as ordered by his supervisor. In its exceptions, the
Respondent contends, inter alia, that Dekker had no
contractual right to go to the union office and that the
record does not support the judge’s finding that it was
unlawfully motivated when it suspended Dekker. For
the reasons given in the judge’s decision, and for the
additional reasons stated below, we find no merit in
the Respondent’s contentions.
The basic facts are undisputed and can be summa-
rized as follows. As set forth in the judge’s decision,
article XII of the parties’ contract provides that union
stewards are to be paid for a certain amount of time
spent per week in the handling of grievances (referred
to by the parties as ‘‘union time’’). When a steward
goes on union time, he runs his timecard through a
scanner to record for pay and accounting purposes the
time spent on union business.
On March 11, 1994, Dekker advised Supervisor Har-
old Mitchner that he was clocking off his job so that
he could go to the union office to discuss the ‘‘lugging
grievance’’ with his committee person. The lugging
grievance concerned Mitchner’s assignment of certain
work to electronic operators rather than to another
group of employees described as ‘‘luggers.’’ Mitchner
told Dekker that he could not leave his work station
for that purpose, and that he could attend to the matter
during his breaks or before or after work. Despite
Mitchner’s order, Dekker punched his timecard and
proceeded to the union office, where he discussed the
lugging grievance with his union committee person.
Later, Dekker was summoned to a disciplinary meeting
where he was advised that he was suspended for 3
days because he refused to obey a reasonable work
order.
Pursuant to article XII, section 1, of the parties’ col-
lective-bargaining agreement, union representatives en-
gaged in grievance handling activities are required to
advise their supervisors of the particular grievance they
are handling and the location they are visiting, and to
punch their timecards when they leave their work area.
There is no dispute that Dekker properly followed
these contractual provisions when he left his work area
to investigate the lugging grievance.
Nevertheless, the Respondent contends that Dekker’s
conduct was not in conformity with the contract be-
cause under the ‘‘clear and unambiguous’’ language of
article XII, section 3, paragraph 7,3 union stewards
may go to the union office only if a union committee-
man has requested their presence to investigate a griev-
ance. It is undisputed, the Respondent argues, that
Dekker’s committeeman had not requested his pres-
ence in the union office to investigate the lugging
grievance.
The difficulty with this argument is that it accords
no weight to the substantial evidence in the record sup-
porting the judge’s finding that ‘‘there has been a
longtime established practice in the workplace of stew-
ards visiting the Union office on Union business.’’
Under well-established precedent, that practice became
‘‘an implied term and condition of employment by
mutual consent of the parties.’’ Riverside Cement Co.,
296 NLRB 840, 841 (1989). This is so even if, as the
Respondent argues, ‘‘the practice may have constituted
a deviation from the letter of the parties’ . . . agree-
ment.’’ Sacramento Union, 258 NLRB 1074, 1075
(1981). Accord: Keystone Steel v. NLRB, 41 F.3d 746
(D.C. Cir. 1994). Therefore, the judge correctly con-
cluded that ‘‘despite this provision of the contract, the
practice governs and Dekker was not in violation of
the contract by visiting the Union office.’’ Accord-
ingly, it follows that the judge properly held that the
Respondent violated Section 8(a)(5) and (1) of the Act
377SMITHS INDUSTRIES
4 Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st
Cir. 1981), cert. denied 455 U.S. 989 (1982).
when it unilaterally changed the contractual provisions
and practices that allowed for the processing of griev-
ances consistent with Dekker’s activity.
Concerning the judge’s 8(a)(3) findings, it is also
well established that ‘‘an employer violates Section
8(a)(3) of the Act when he disciplines employees be-
cause of their status as shop stewards, . . . or because
of their conduct as union stewards in processing griev-
ances, policing the collective bargaining agreement, or
for engaging in other activities as union steward.’’ Pa-
cific Coast Utilities Service, 238 NLRB 599, 606
(1978), enfd. 638 F.2d 73 (9th Cir. 1980).
Contrary to the Respondent’s contention that evi-
dence of unlawful motivation is lacking, the record
shows that the Respondent’s decision to suspend
Dekker was motivated by the Respondent’s desire to
discourage Dekker from carrying out his grievance-re-
lated duties. At the hearing, Mitchner testified that he
could see no ‘‘reason for an investigation since there
had been enough discussion about the subject.’’ He
further testified that he could not understand why it
was necessary for Dekker to go to the union office at
that point. By Mitchner’s own admission, Dekker was
ordered not to engage in the processing of the griev-
ance because Mitchner believed that he had made a
valid assignment of the lugging work, and that no fur-
ther investigation was necessary. Thus, it is clear that
Mitchner harbored particular animus towards Dekker’s
pursuit of the lugging grievance.
Based on this evidence, we conclude that the Re-
spondent was unlawfully motivated when it suspended
Dekker for engaging in protected grievance-related ac-
tivities, and that the General Counsel has established
a prima facie case of discrimination.4 We further find
that the Respondent has failed to meet its burden of es-
tablishing that Dekker would have been disciplined
even in the absence of his protected conduct. Indeed,
as discussed above, the record affirmatively shows that
other union stewards have frequently left their work
stations to visit the union office on union time to han-
dle grievances without being disciplined. In any event,
Mitchner repeatedly stated, contrary to the clear provi-
sions of the collective-bargaining agreement, that
Dekker was required to attend to the grievance during
his breaks or before or after work. At no time did
Mitchner state that his primary concern with Dekker’s
conduct was the fact that he was going to the union
office without being asked by a committeeman. Ac-
cordingly, the Respondent’s reliance on this asserted
contractual requirement is clearly pretextual. Thus, we
adopt the judge’s finding that the Respondent violated
Section 8(a)(3) and (1) of the Act.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Smiths
Industries, Inc., Grand Rapids, Michigan, its officers,
agents, successors, and assigns, shall take the action
set forth in the Order as modified.
1. Substitute the following for paragraph 2(b).
‘‘(b) Remove from its files any reference to the sus-
pension of Donald Dekker, and notify him in writing
that this has been done and that evidence of this un-
lawful suspension will not be used as a basis for future
personnel action against him.’’
2. Substitute the attached notice for that of the ad-
ministrative law judge.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT suspend union steward employees for
engaging in grievance-filing activity on behalf of unit
employees.
WE WILL NOT refuse requests by union steward em-
ployees to process grievances on union time as pro-
vided in the current collective-bargaining agreement
between the parties.
WE WILL NOT limit the grievance-filing activities of
union steward employees to before or after their
worktime or on breaktime.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees in the exercise of
the rights guaranteed them by Section 7 of the Act.
WE WILL make whole Donald Dekker for any loss
of pay he may have suffered as a result of the dis-
crimination practiced against him.
WE WILL remove from our files any reference to the
suspension of Donald Dekker and notify him in writing
that this has been done and that evidence of this un-
lawful suspension will not be used as a basis for future
personnel action against him.
WE WILL allow requests by union steward employ-
ees to process grievances on union time as provided in
the current collective-bargaining agreement between
the parties.
SMITHS INDUSTRIES, INC.
Howard M. Dodd, Esq., for the General Counsel.
Peter J. Kok, Esq., of Grand Rapids, Michigan, for the Re-
spondent.
378 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 No opposition thereto having been filed, Respondent’s submis-
sion of an ‘‘Errata Sheet’’ dated September 2, 1994, correcting er-
rors in the transcript is hereby accepted into the record.
2 All dates refer to 1994 unless otherwise indicated.
DECISION
STATEMENT OF THE CASE
PETER E. DONNELLY, Administrative Law Judge. Upon
charges filed by Local 330, United Automobile, Aerospace
and Agricultural Implement Workers of America (UAW),
AFL–CIO (the Union or the Charging Party), a complaint
and notice of hearing issued on May 26, 1994, alleging that
Respondent violated Section 8(a)(1), (3), and (5) of the Act
by refusing Steward Donald Dekker’s request to process a
grievance on union time, limiting Dekker’s grievance filing
activity to before or on after work or breaktime, and refusing
to grant Dekker access to union time. The complaint further
alleges that Respondent violated Section 8(a)(1) and (3) of
the Act by suspending Dekker because of his grievance filing
activities. Pursuant to notice, the case was heard before me
on July 21, 1994. Briefs have been timely filed by the Gen-
eral Counsel and Respondent, which have been duly consid-
ered.1
FINDINGS OF FACT
I. EMPLOYER’S BUSINESS
Employer is engaged in the manufacture and retail sale of
aircraft controls and instrumentation. During the calendar
year ending December 31, 1993, the Employer, in the course
and conduct of its business operations, derived gross reve-
nues in excess of $500,000 and sold and shipped from its
Grand Rapids, Michigan facility goods valued in excess of
$50,000 directly to points outside the State of Michigan. The
complaint alleges, the answer admits, and I find that the Em-
ployer is an employer within the meaning of Section 2(2),
(6), and (7) of the Act.
II. LABOR ORGANIZATION
The complaint alleges, the answer admits, and I find that
the Union is a labor organization within the meaning of Sec-
tion 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Facts
The production and maintenance employees have been
represented since 1949 under a series of collective-bargaining
agreements with several owners, including Respondent who
assumed ownership in 1987.
In 1993, negotiations for a new contract were unsuccessful
and the contract expired on July 16, 1993. The parties oper-
ated under an extension of the contract until August 30,
1993, at which time the Respondent implemented its final
contract proposal. It was not until June 1994 that a new con-
tract was agreed upon with effective dates from June 4,
1994,2 to August 30, 1996. The parties stipulated that article
XII and the rules of conduct contain certain contract provi-
sions relevant to the issues in this case and remained un-
changed under the implemented proposal and in the new con-
tract. Article XII reads in relevant part:
ARTICLE XII
UNION REPRESENTATIVES AND PAYMENT OF
UNION REPRESENTATIVES
Section 1
1. All Union representatives who are allowed time
for the purpose of handling grievances that arise under
their jurisdiction, or for attending Shop Committee
meetings, will punch the time card provided after advis-
ing their Supervisor they are leaving their work station
for the purpose of handling a grievance and advising
him of the specific grievance and location to be visited,
or committee meeting, and punch the card back in
when he is ready to return to work, advising the Super-
visor he is again available for work. Prior to entering
an area other than this own work area, the Union rep-
resentative will contact the Foreman of the area and ad-
vise him of the specific grievance and the employee or
employees whom he will contact. Time spent by Union
representatives with management at management’s re-
quest will not be counted against the Union representa-
tive as part of his allowable time. Time spent by Union
representatives must be restricted to straight time hours,
unless a specific grievance arises pertaining to employ-
ees and work during the overtime hours.
. . . .
4. A Steward will be paid for a maximum of two (2)
hours a day, averaged over the week, for time properly
spent in handling grievances within his area. If there
are more than sixty (60) employees under the Steward’s
jurisdiction, the allowable time for handling grievances
within his area will be increased to three (3) hours a
day.
. . . .
7. The Company will provide space, telephone, and
furnishings for a Union Work Center (office) within the
Plant for authorized personnel only (Shop Committee
and President), the only exception would be when a
Committeeman requests Stewards or employees to in-
vestigate a grievance. The Committeeman will make
this request through the Stewards’ or employees’ Super-
visor, advising the Supervisor of the specific grievance.
The location of such Work Center shall be determined
by the Labor Relations Manager after consultation with
the Chairman of the Shop Committee.
Relevant portions of the ‘‘Rules of Conduct’’ read:
15. Refusal to accept a reasonable assignment or
workplace location assigned by Supervisor. . . .
NOTE: . . . .
1. Whenever the work assigned is within the employ-
ee’s job classification, he shall accept such work and
perform the same with the regular skill and speed. If
he refuses to accept and to perform such work, he shall
be deemed to be in violation of Shop Rule No. 15 and
379SMITHS INDUSTRIES
3 Shop rule 15 also provides for warning notice and 3-day suspen-
sion for a first offense and discharge for a second offense.
4 The agreement, initialed by Dykhuis on July 13, 1993, reads:
GENERAL TOPICS 1993 ITEM #1
FROM OUR DISCUSSION ON A NEW LABOR AGREE-
MENT. IT IS UNDERSTOOD THAT IN ORDER TO RE-
DUCE CYCLE TIME AND IN AN EFFORT TO ELIMINATE
THE MISROUTING OF PRODUCT, THE COMPANY AND
UNION AGREE:
EMPLOYEES MAY MOVE PRODUCT, UNDER THE DI-
RECTION OF THE SUPERVISOR, BETWEEN ADJACENT
DEPARTMENTS WITHIN THE MANUFACTURING BUILD-
ING.
5 The grievance procedures of the expired contract were still in ef-
fect, but without the arbitration provisions, as a part of the company
proposal being implemented at this time.
6 It appears that when a steward goes on or off union time, he runs
his timecard through a scanner to record for pay and accounting pur-
poses the time spent on union business so that he can be com-
pensated for that time as provided in art. XII, sec. 4, and so that
customers are not billed for union time.
the stated penalty of the present Labor Agreement shall
apply.3
. . . .
In the event of confliction between provisions of the
Labor Agreement and the Shop Rules, the provisions of
the Labor Agreement will govern.
In mid-February 1994, Harold Mitchner, a supervisor, in-
structed some of the electronic operators that after finishing
their work on the aircraft equipment assigned to them, they
were to move that product themselves to the next department
in the process. It was at about this time that one of the oper-
ators complained that this work was not unit work and
should be done by another group of employees described as
luggers. Sometime later, the union steward, Donald Dekker,
was called in and Mitchner explained to him that this work
assignment was permitted under a letter of agreement be-
tween the Union and the Company dated July 13, 1993,
shortly before the expiration of the contract, and Dekker
agreed to check it out. Thereafter, Dekker went to see Ken-
neth Dykhuis, the union committee person, at the union of-
fice.
Dykhuis confirmed that a letter of agreement did exist, but
that it was the intention of the parties, although not expressly
provided, that the agreement be applied only in emergency
situations for high priority or ‘‘hot’’ work.4 Later, Dekker
spoke again to Mitchner and told him what he had been told
by Dykhuis. When Mitchner maintained his position, he was
formally advised by Dekker that they were at the first or
verbal step of the grievance procedure.5
Sometime later, on March 10, Dekker and Mitchner met
again concerning the ‘‘lugger’’ grievance. It was at this
meeting that Dekker told Mitchner that he was going to log
out (‘‘wand off’’) to go on union time so that he could go
to the union office to handle the lugger grievance.6 Mitchner
told Dekker that he could not do that and that if he wanted
to write up a grievance, he should do so immediately and re-
turn to work at his job station since this was the correct pro-
cedure. Dekker expressed his opposition to Mitchner’s re-
fusal to allow him to go to the union office, nonetheless,
Dekker returned to work at this time.
On the morning of March 11, Dekker went to see
Mitchner at this office. Once again, Dekker told Mitchner
that in connection with the lugger grievance, he was
‘‘wanding’’ off in order to visit the union office to discuss
the grievance with his committee person, Dykhuis. Mitchner
took the same position he had taken the day before, telling
Dekker he was not permitted to leave his work for that pur-
pose. He told Dekker that he could attend to the matter dur-
ing his breaks or before or after work. Mitchner also gave
him the option of writing up the grievance at his workstation,
but made it clear that he was not to leave the job to take
up the grievance with his committee person at the union of-
fice.
Dekker complained that Mitchner was interfering with his
duties as shop steward, and despite Mitchner’s instructions,
he wanded off, left the work area and went to the union of-
fice where he met with Dykhuis. He asked Dykhuis to see
the letter agreement which Mitchner was contending allowed
union employees to do work normally done by luggers. After
reading the agreement, Dekker questioned Dykhuis about the
effect of the agreement and Dykhuis again told him that it
was not the intention of the signatories that unit employees
do work normally done by luggers except in emergency or
priority situations. Dekker, apparently accepting this interpre-
tation, returned to his work area about one-half hour later
with the intention of filing a grievance with Mitchner over
the matter.
To this end, Dekker went to Mitchner’s office, but as he
was presenting the lugging grievance, Mitchner told him that
there was a more important matter to attend to and he sum-
moned Dykhuis to his office for what was described as a dis-
ciplinary meeting. Also in attendance was Tom Saunders, a
supervisor representing the Company. Mitchner then asked
Dekker if he had been ordered not to go to the union office.
Dekker conceded that he had been ordered by Mitchner not
to go and that he had gone anyway. Dekker explained that
he was fed up doing union business on his work breaks and
that the contract did not prohibit him from going to the union
office on union time to look into grievances.
At this time, Mitchner gave Dekker a previously drafted
disciplinary action notice reading: ‘‘VIOLATION—SR
[SHOP RULE] 15—REFUSAL TO ACCEPT A REASON-
ABLE WORK ASSIGNMENT OR WORK PLACE LOCA-
TION ASSIGNED BY SUPERVISOR—1ST INFRAC-
TION.’’ The notice also provided for a 3-day suspension be-
ginning immediately and ending on March 16. The meeting
ended with Dekker being escorted off the premises by
Mitchner.
With respect to the matter of visitations on union time to
the union office, several of the stewards testified that it was
not unusual for them to visit the union office at the plant for
a variety of reasons and that they had never been prohibited
from making such visits. For example, Arnold Kreft Krpse,
longtime (30 years) steward, testified that whenever he need-
ed time for union business, he simply advised the supervisor
that he was going on union time and took care of the busi-
ness, which often involved visits to the union office as often
as once or twice a day. Whenever he returned from his union
business to resume his work, he advised his supervisor. Rob-
ert Wise, union vice president and former steward, testified
380 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
that in the course of his duties as steward, as often as once
or twice a week, he would visit the union office on union
business. Whenever he left work on union business, he ad-
vised his supervisor that he needed to leave on union time
and told the supervisor the reason for leaving. Thereafter, he
scanned off, did the union business, and then scanned back
on, reporting to his supervisor. Wise testified that this was
his practice under about six different supervisors and that he
was never prohibited from visiting the union office. Donald
Thompson, another steward, testified that because he was
new to the position it was often necessary for him to visit
the union office for advice on various union matters, some-
times as often as four or five times a week. At these times,
he simply told his supervisor that he needed to see his union
committee person, scanned out to go on union time, did the
business and upon his return to work, scanned back in again.
B. Discussion and Analysis
With respect to the issue of whether or not Respondent
violated Section 8(a)(3) by suspending Dekker, the General
Counsel contends that Dekker was suspended for engaging in
the protected concerted activity of processing a grievance.
Respondent contends that Dekker was suspended for refusing
to obey an order from his supervisor.
The basic facts are not in dispute. On March 10, when
Dekker told Mitchner that he was going to the union office
to investigate the lugger grievance, he was told by Mitchner
that he could not leave for that purpose and Dekker went
back to work. On March 11, Dekker again told Mitchner that
he was going to the union office to investigate the lugger
grievance. He was told that he could write up the grievance
immediately but could not go to the union office and was or-
dered to return to his work station. However, this time,
Dekker disobeyed Mitchner, wanded off, and went to the
union office anyway.
As set out above, the contract provides for stewards to
handle grievances on union time. The contract further pro-
vides that stewards be paid a maximum of either 2 or 3
hours per day averaged over the week for the handling of
grievances. Under the terms of the contract, the process is set
in motion by the steward ‘‘advising’’ his supervisor of the
specific grievances and location to be visited and punching
in and out as the contract required. In my opinion, article
XII, sections 1 and 2(4) of the contract, provide for Dekker
to investigate the lugging grievance on union time, and
Dekker acted in accordance with those provisions.
Respondent, however, contends that under article XII, sec-
tion 7, only ‘‘authorized personnel’’ (shop committee persons
and president) were allowed to visit the union office. How-
ever, in my opinion, this contract provision does not prohibit
such visits as Dekker made. The testimony of those stewards
who testified at the hearing fully supports the conclusion that
it has been the practice for stewards to visit the union office
frequently and routinely for various union-related purposes.
In view of the fact that there has been a longtime established
practice in the workplace of stewards visiting the union of-
fice on union business, I conclude that despite this provision
of the contract, the practice governs and Dekker was not in
violation of the contract by visiting the union office and he
was engaged in protected union activity.
Respondent also contends that Dekker’s 3-day suspension
was justified since Dekker, in refusing Mitchner’s order to
return to work was in violation of shop rule 15 of the rules
of conduct. I do not agree. In the first place, a careful read-
ing of shop rule 15 persuades me that it was intended to
apply to disagreements over work assignments and not to
stewards engaged in the investigation or processing of griev-
ance. In this case, Dekker was acting in conformity with his
responsibilities as a steward to handle a grievance. Any order
preventing Dekker from exercising that right cannot be con-
strued as a ‘‘reasonable work assignment.’’
I also note that the parties themselves have provided for
conflicts which might arise between the rules of conduct and
the labor agreement itself by providing, as set out above, that
the labor agreement shall govern. In the instant case, even
assuming the existence of a conflict between shop rule 15
and the labor agreement, since I have concluded that Dekker
was properly exercising a steward’s contractual right to han-
dle a grievance under the labor agreement, and that right
should prevail.
Respondent also argues that a shop committee newsletter
of June 25, 1980, somehow supports the position that Dekker
was obliged to obey Mitchner’s order to return to work. Ba-
sically, this letter was a shop committee interpretation of an
unnamed Supreme Court ruling and a reiteration of shop rule
15, discussed above. It is not probative evidence and pro-
vides no justification for Mitchner’s action in suspending
Dekker. Likewise, a prior 1984 arbitration decision submitted
by Respondent, along with documents enforcing it, purport-
ing to have resolved the same issue, actually provides no
probative evidentiary support for the position taken by Re-
spondent in the instant case, since the facts and the issue,
arising under the National Labor Relations Act, are dissimi-
lar.
In summary, I conclude that Dekker was engaged in pro-
tected concerted activity and acting in conformity with estab-
lished practice under the contract. I further conclude that
Mitchner, in suspending Dekker for pursuing that grievance
instead of returning to work as ordered, discriminated against
Dekker in violation of Section 8(a)(3) of the Act.
I further conclude that on March 10 and 11, 1994, Re-
spondent discriminated against Dekker by refusing to grant
him access to union time for the purpose of handling a griev-
ance. Respondent also discriminated against Dekker by not
allowing him to utilize union time for processing a grievance
as provided under the contract. In addition, by this same con-
duct, Respondent violated Section 8(a)(5) of the Act since at
the time of the violation set out above, the parties were oper-
ating under contract provisions and practices which allowed
for the processing of grievances consistent with Dekker’s ac-
tivity.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
ON COMMERCE
The activities of Respondent set forth in section III above,
occurring in connection with Respondent Employer’s oper-
ations described in section I above, have a close and intimate
relationship to trade, traffic, and commerce among the sev-
eral States and tend to lead to labor disputes burdening and
obstructing commerce and the free flow of commerce.
381SMITHS INDUSTRIES
7 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
8 If 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.’’
REMEDY
Having found that the Respondent has engaged in and is
engaging in unfair labor practices, I recommend that it cease
and desist therefrom and take certain action designed to ef-
fectuate the policies of the Act. I have found that Respondent
suspended Donald Dekker for reasons which offend the pro-
visions of Section 8(a)(3) and (1) of the Act. I shall therefore
recommend that Respondent make him whole for any loss of
pay he may have suffered as a result of the discrimination
practiced against him. All backpay and reimbursement pro-
vided herein, with interest, shall be computed in the manner
described in New Horizons for the Retarded, 283 NLRB
1173 (1987), and F. W. Woolworth Co., 90 NLRB 289
(1950).
CONCLUSIONS OF LAW
1. Respondent Smiths Industries, Inc. is an employer en-
gaged in commerce within the meaning of Section 2(6) and
(7) of the Act.
2. Local 330, United Automobile, Aerospace and Agricul-
tural Implement Workers of America (UAW), AFL–CIO is
a labor organization within the meaning of Section 2(5) of
the Act.
3. At all times material, the following described unit has
been an appropriate unit for the purposes of collective bar-
gaining within the meaning of Section 9(b) of the Act:
All production and maintenance employees employed at
Respondent’s Grand Rapids facility: but excluding all
Methods, Time Study, Time Keeping, Engineering,
Drafting, Tool Designing, Expediting, Sales, Field Serv-
ice, Office Clerical, Plant Protection, Foremen, Super-
visory Electronic Technicians, Test Lab Personnel, En-
gineering Gyro Lab Personnel, Material Lab Personnel,
Quality Control, All Salaried Personnel and all others
with authority to hire, promote, discharge, discipline or
otherwise effect changes in the status of employees or
effectively recommend such action.
4. At all times material, the Union has been, and is now,
the exclusive representative of the employees in the above-
described bargaining unit for the purposes of collective bar-
gaining within the meaning of Section 9(a) of the Act.
5. The Union and Respondent were parties to a collective-
bargaining agreement covering the above-described unit
which expired on July 16, 1993, and extended to August 30,
1993, at which time Respondent implemented its last pro-
posal, continuing in effect various provisions of the expired
contract, including article XII and the rules of conduct which
were later incorporated into the collective-bargaining agree-
ment reached by the parties effective June 4, 1994, to August
30, 1996.
6. By suspending Steward Donald Dekker for engaging in
union grievance filing activity, Respondent violated Section
8(a)(3) and (1) of the Act.
7. By refusing Steward Donald Dekker’s request to proc-
ess grievances on union time and by limiting Donald Deck-
er’s grievance-filing activity to before or after work or on his
breaktime, Respondent violated Section 8(a)(3), (5), and (1)
of the Act.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended7
ORDER
The Respondent, Smiths Industries, Inc., Grand Rapids,
Michigan, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Suspending union steward employees for engaging in
grievance-filing activity on behalf of unit employees.
(b) Refusing requests by union steward employees to proc-
ess grievances on union time as provided in the current col-
lective-bargaining agreement between the parties.
(c) Limiting the grievance filing activities of union stew-
ard employees to before or after their worktime or on
breaktime.
(d) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Make whole Donald Dekker for any loss of pay he
may have suffered as a result of the discrimination practiced
against him in the manner set forth in the remedy section of
this decision.
(b) Remove from its files any reference to the suspension
of Donald Dekker, and notify him in writing that this has
been and that evidence of this unlawful suspension will not
be used as a basis for future personnel action against him.
(c) Allow requests by union steward employees to process
grievances on union time as provided in the current collec-
tive-bargaining agreement between the parties.
(d) Preserve and, on request, make available to the Board
or its agents for examination and copying, all payroll records,
social security records and reports, and all other records nec-
essary to analyze the amount of backpay due herein.
(e) Post at its Grand Rapids, Michigan facility copies of
the attached notice marked ‘‘Appendix.’’8 Copies of the no-
tice, on forms provided by the Regional Director for Region
7, after being signed by Respondent’s authorized representa-
tive, shall be posted by the Respondent immediately upon re-
ceipt and maintained for 60 consecutive days in conspicuous
places, including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, de-
faced, or covered by any other material.
(f) Notify the Regional Director in writing within 20 days
from the date of this Order what steps Respondent has taken
to comply.