Great Lakes Carbon Corporation v. National Labor Relations Board

425 F.2d 26, 73 L.R.R.M. (BNA) 2831, 1970 U.S. App. LEXIS 10275

• Court: Court of Appeals for the Seventh Circuit
• Decided: March 17, 1970
• Docket: 17676_1
• Status: Published

Opinions

DUFFY, Senior Circuit Judge.

The Great Lakes Carbon Corporation (Company) operates a petroleum coke processing plant in Chicago, Illinois. We have before us a petition by the Company 'to review a decision and order of the National Labor Relations Board (Board).¹ The Board has filed a petition for enforcement of its order.

The labor contract in effect at the time of the events here in question is not described in the decision of the Board. We think it is important to note that the contract provides for a Union Shop, a check-off, a grievance procedure calling for presentation of grievances by the “Workmen’s Committee,” culminating, if necessary, in compulsory arbitration. The contract also contains two no-stoppage, no-strike clauses, the second of which reads: “18.01. Should differences arise between the Company and its employees as to the meaning and application of the provisions of this Agreement, or should any local trouble of any kind arise in the Plant, there shall be no suspension of work or interruption of production on account of such differences, but an earnest effort shall be made to settle such differences immediately.”

The contract with the Union permitted the Company to sub-contract some work as long as it did not displace Company employees or take work away from the employees.

Donald Cmar had been employed by the Company since 1961. He was chosen as Chairman of the Workmen’s Committee in 1966. He and another committeeman were given leaves of absence by the Company in July or August 1966 to attend a school which the Union was conducting for Union committeemen at the Michigan State University.

The first difficulty between Cmar and superintendent Glenn Stahl was in September 1966 when Cmar directed an employee to stop the performance of his work.² The Company gave Cmar written notice that “further action of this nature will result in disciplinary action.”

The second incident to which the Company took exception occurred on March 22, 1967. Due to severe weather conditions the previous winter, piles of “contaminated” coke had accumulated. It was necessary that these piles be removed and dumped. Many of the employees already were working overtime. The Company notified the independent contractor who did the dumping work to remove this contaminated coke. This led to a work stoppage by some employees and a threatened walkout.

Superintendent Stahl testified that Cmar said to him “Glenn, I’m going to give you 30 minutes to get that contractor out of here or I’m going to pull everybody out of this plant.”

Stahl withdrew the contractor from the removal task and the walkout did not occur. No grievance was ever filed over this incident.

On March 29, 1967, the Company sent a letter to Cmar with a copy to the Union, pointing out that the grievance sections of the contract were clear and that any slowdown or stoppage of work would not be tolerated; that Cmar would have to abide by the agreed-upon procedure as a condition of his continued employment. Pertinent parts of the letter stated: “Let me make it very clear to you, Mr. Cmar, that if you once again cause any disruption or delay in the normal operation of the plant, you will be discharged. If you once again threaten us with a work stoppage or a ‘walk out’ of one or more of our employees, you will be discharged. In order for you to continue in our employ, you must conduct yourself in a manner satisfactory to us, and in the same manner as all of our other employees are required to conduct themselves. * * * You are not allowed to tell any employee to disobey orders given by management and you are not to disobey any orders given to you. * * * We have agreed to a procedure for the orderly adjustment of differences. You will abide by that procedure as a condition of your continued employment.”

The critical incident occurred on April 28, 1967. Cmar insisted on leaving the plant early to take employee John Kazmierezak to the Union Hall in connection with a claimed rate grievance which had not been filed.

Cmar went to Lawrence Beadle, the foreman, and using extremely vulgar and provocative language, threatened to take Kazmierczak to the Union Hall. The foreman asked Cmar to finish the shift (about one and a half hours’ work) but Cmar refused. Foreman Beadle then replied also using vulgar language. Cmar then threatened to beat foreman Beadle and added he would do so off the premises or he would have him “taken care of” by a ten cent telephone call. Cmar then filed a grievance on behalf of Kazmierczak and left to go to the Union Hall.

When superintendent Stahl learned what had happened, he made an investigation and after consultation with supervisory personnel, decided to “separate” Cmar the following morning. He phoned Cmar to come and see him Monday morning, but Cmar replied “There is no need of me coming in; I know I'm fired. Instead of coming in to see you, I am going to the Labor Relations Board and I won’t have any trouble getting back to work." He did go to the Labor Board and the Board has ordered that he be reinstated.

The trial examiner found that during an inspection by a representative of the Illinois Factory Inspection Bureau, superintendent Stahl was caught by employee Cmar attempting to mislead the inspector as to the identity of a defective truck. This was, indeed, a serious charge. But even the Board now admits this charge was entirely false. The Board could do little less as it clearly appears from the evidence that it was personnel manager Kuntz and not Stahl who had any contact with the Factory Inspector. The examiner’s finding in this respect shows how unreliable his findings were, yet, the Board “ * * * hereby adopts the findings, conclusions and recommendations of the Trial Examiner.”

The trial examiner also found that employee Kazmierczak was forced by the Company to work in a dusty silo after he had presented his doctor’s report which indicated he should not do this kind of work. Again, a serious charge depicting a heartless employer. The difficulty is that this finding is absolutely false and the Board now admits the “error” by the examiner. The evidence clearly shows that the Company relieved Kazmierczak just as soon as he presented the doctor’s report that he was in poor health. It is indeed difficult to understand the action of the Board “ * * * and hereby adopts the findings, conclusions and recommendations of the Trial Examiner.”

When the charges were made against the Company, there was no complaint as to the March 29, 1967 warning letter which had been sent to Cmar. The complaint was that the discharge of Cmar was illegal.

It was the trial examiner who conceived the idea that the Company’s letter was an unfair labor practice. However, the Board approves this but makes no comment as to the propriety or impropriety of the March 29th letter.

This Court has stated “Of course anyone charged with violation of the law is entitled to know specifically what complaint he must meet and to have a hearing upon the issue presented * * *. There is a denial of procedural due process of law when the issues are not clearly defined and the employer is not fully advised of them.” N. L. R. B. v. Bradley Washfountain Co., 192 F.2d 144, 149 (7 Cir., 1951). Also see Engineers & Fabricators, Inc. v. N. L. R. B., 376 F.2d 482, 485 (5 Cir., 1967).

Therefore we hold that the writing of the letter by superintendent Stahl to employee Cmar cannot be deemed in violation of Section 8(a) (1).

The Supreme Court has stated “We do not require that the examiner’s findings be given more weight than in reason and in the light of judical experience they deserve.” Universal Camera Corp. v. N. L. R. B., 340 U.S. 474, 497, 71 S.Ct. 456, 469, 95 L.Ed. 456 (1951). The record shows this examiner was unreliable. In the light of reason and judicial experience we cannot agree here with his findings. Therefore, we hold that under the circumstances of this case, the firing of Cmar was not a violation of Section 8(a) (3).

The petition of the Labor Board for enforcement of its order is

Denied.

1 . The order of the Board was issued on May 16, 1969 and is reported at 175 N.L. R.B. No. 166.

2 . Cmar later claimed he did not tell the employee to “stop work” hut “to push a button” which would have stopped the machinery where the employee worked.