The Beitcher Manufacturing Corp.

In the Matter of THE BE ITCHER MANUFACTURING CORPORATION and JAMES SAVOCA (AN INDIVIDUAL) Case No. 8-C-1976.-Decided March 3,1618 Mr. John Hull, Jr., for the Board. Messrs. Fred J. Perkins and Calvin If. Arter, of Cleveland,. Ohio, for the respondent. Mr. James Saroca, in person, the charging party. DECISION AND ORDER On December 19, 1946. Trial Examiner Isadore Greenberg issued his Intermediate Report in the above-entitled proceeding, finding that the respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the respondent filed exceptions to the Intermediate Report and a supporting brief. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and brief of the respondent, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner.' We agree with the Trial Examiner's finding that the respondent's discharge of employee Savoca, because of the remarks made by him at the April 5, 1946, bargaining meeting, was unlawful. Collective bargaining between an employer and his employees is plainly a form of employee activity protected by Section 7 of the Act. Usually negotiations take place between an employer and the repre- sentative or representatives of his employees. In the present case, 1 Those provisions of Section 8 (1) and (3) of the National Labor Relations Act, which the Trial Examiner herein found were violated, are continued in Section 8 (a) (1) and 8 (a) (3) of the Act as amended by the Labor Management Relations Act, 1947. 76 N. L. R. B., No. 83. 526 THE BETTCHER MANUFACTURING CORPORATION 527 it was the respondent who elected to appear before, and to conduct his bargaining negotiations with, his employees en masse.2 The process of collective bargaining takes on many aspects of ordinary trading 3 The stakes are high. Negotiation is designed to set up the framework for a long-run employer-employee relationship.4 A frank, and not always complimentary, exchange of views must be expected and permitted the negotiators if collective bargaining is to be natural rather than stilted. The negotiators must be free not only to put forth demands and counterdemands, but also to debate and challenge the statements of one another without censorship, even if, in the course of debate, the veracity of one of the participants occasion- ally is brought into question. If an employer were free to discharge an individual employee because he resented a statement made by that employee during a bargaining conference, either one of two undesirable results would follow : collective bargaining would cease to be between equals (an employee having no parallel method of retaliation), or employees would hestitate ever to participate personally in bargaining negotiations, leaving such matters entirely to their representatives. We do not hold, of course, that an employee may never be lawfully discharged because of what he says or does in the course of a bargaining conference. A line exists beyond which an employee may not with impunity go, but that line must be drawn "between cases where em- ployees engaged in concerted activities exceed the bounds of lawful conduct in `a moment of animal exuberance' (Milk Wagon Drivers Union v. Meadowmnoor Dairies, Inc., 312 U. S. 287, 293) or in a manner not activated by improper motives, and those flagrant cases in which the misconduct is so violent or of such serious character as to render the employee unfit for further service." 5 We find that Savoca's conduct, however regrettable, falls into the former rather than the latter category, and was not so extreme as to furnish justification for his discharge for engaging in concerted activities. Accordingly, we find, as did the Trial Examiner, that by discharging James Savoca on April 12, 1946, and by thereafter failing to reinstate him, the respondent discriminated in regard to his hire and tenure of employment, thereby discouraging membership in The Grievance 2 In view of the open nature of the meeting , it is immaterial whether, in answering Arter's contention , Savoca was carrying out the mandate of the majority of the employees, as found by the Trial Examiner , or was merely expressing his own views. The events in the tavern were merely a continuation of the session in the plant , and not- as the dissent suggests-a separate episode 3 Hill and Hook , Management at the Bargaining Table (1945 ), p. 255; Leonard J. Smith, Collective Bargaining ( 1946 ), p. 12. 4 Alexander R. Heron, "Collective Bargaining in Action : An Employer's View," Bureau of National Affairs Inc , Collective Bargaining Negotiations and Contracts, 10 • 101. 5 N L. R. B. v. Illinois Tool Works, 153 F. ( 2d) 811 , 815 (C . C. A. 7). 528 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Committee of The Bettcher Manufacturing Corporation, in violation of Section 8 (3) of the Act, and interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Sec- tion 7 of the Act, in violation of Section 8 (1) of the Act. ORDER Upon the entire record in the case and pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the respondent, The Bettcher Manufacturing Corporation, Cleveland, Ohio, and its officers, agents, successors, and assigns shall : 1. Cease and desist from : (it) Discouraging membership in The Grievance Committee of The Bettcher Manufacturing Corporation, or in any other labor organ- ization of its employees, by discharging any of its employees, or in any other manner discriminating in regard to their hire or tenure of employment, or any term or condition of their employment, because of statements appropriately made in the course of bargaining negotiations ; (b) Engaging in any like or related acts or conduct interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to form labor organizations, to join or assist The Grievance Committee of The Bettcher Manufacturing Corporation, or any other labor organization, to bargain collectively through repre- sentatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protec- tion, as guaranteed in Section 7 of the Act. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act : (a) Offer James Savoca immediate and full reinstatement to his former or a substantially equivalent position, without prejudice to his seniority or other rights and privileges; (b) Make whole James Savoca for any loss of pay he may have suffered because of his discriminatory discharge, by payment to him of a sum of money equal to the amount which he normally would have earned as wages during the period from April 12, 1946, the date of his discharge, to the date of the respondent's offer of reinstatement, less his net earnings, if any, during the same period; (c) Post at its plant in Cleveland, Ohio, copies of the notice attached hereto and marked "Appendix A." 6 Copies of such notice, to be in the event that this Order is enforced by decree of a Circuit Court of Appeals, there shall he inserted before the words "A Decision and Order," the words "A Decree of the United States Circuit Court of Appeals Enforcing." THE BETTCHER MANUFACTURING CORPORATION 529 furnished by the Regional Director for the Eighth Region, shall, after being duly signed by an authorized representative of the respondent, be posted by the respondent unmediately upon receipt thereof, and maintained by it for sixty (60) consecutive days thereafter, in con- spicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the respondent to insure that said notice is not altered, defaced, or covered by any other material; (d) Notify the Regional Director for the Eighth Region in writing, within ten (10) days from the date of this Order, what steps the respondent has taken to comply herewith. MEMBER MURDOCK took no part in the consideration of the above Decision and Order. MEMBER GRAY, dissenting in part: I am of the opinion that the complaint should be dismissed. I base my decision solely on the events which occurred at the tavern after the collective bargaining meeting had adjourned. In my view, the collective bargaining meeting at the Union hall was a closed meeting at which Savoca's remarks are entitled to protection as part of the give and take of the collective bargaining process. I take a different view, however, of the tavern incident, which was open to the public and occurred in a public place. Here, Savoca did not have the protection of a closed union meeting or bargaining conference and therefore took the risk of being disciplined for his unwarranted remarks to President Arter 1 No individual citizen or any organization of which he is a member should be exempt from responsibility for harmful, public ac- tions or statements, such as were made in this case. The stature of those accepting such responsibilities will increase. Inasmuch as Savoca's conduct at the tavern was concededly a princi- pal motivating cause for his discharge, I conclude that his discharge for that reason did not violate the Act, and that consequently the complaint should be dismissed. APPENDIX A NOTlci: TO ALL EMPLOYERS Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that : i Cf. my dissenting opinion in Matter of Atlantic Towing Company/ ( 10-C-1869). 75 N L R B. 1169 530 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL NOT discourage membership in TILE GRIEVANCE COiI- MITTEE OF TIIE BETTCIIER MANUFACTURING CORPORATION, or in any other labor organization of our employees, by discharging any of our employees, or in any other manner discriminating in regard to their hire or tenure of employment, or any term or condition of their employment, because of statements appropriately made in the course of bargaining negotiations. WE WILL NOT engage in any like or related acts or conduct in- terfering with, restraining, or coercing our employees in the exer- cise of their right to self-organization, to form labor organizations, to join or assist THE GRIEVANCE COMMITTEE OF TIIE BETTCHER MANUFACTURING CORPORATION, or any other labor organization, to bargain collectively through representatives of their own choos- ing, and to engage in concerted activities for the purpose of col- lective bargaining or other mutual aid or protection. WE WILL OFFER James Savoca immediate and full reinstatement to his former or a substantially equivalent position without preju- dice to any seniority or other rights and privileges previously en- joyed, and make him whole for any loss of pay suffered as a result of the discrimination practiced against him. TIIE BETTCIIER MANUFACTURING CORPORATION, Employer. Dated ------------------------ By -------------------------- (Representative) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. INTERMEDIATE REPORT Mr. John Hull, Jr., for the Board Messrs. Fred J. Perkins and Calvin K. At ter, both of Cleveland, Ohio, for the respondent. Mr. James Savoca, in person, the charging party. STATEMENT OF THE CASE Upon a charge filed May 15, 1946, by James Savoca, an individual, the Na- tional Labor Relations Board, herein called the Board, by its Regional Director for the Eighth Region (Cleveland, Ohio), issued its complaint dated September 30, 1946, against The Bettcher Manufacturing Corporation, herein called the respondent, alleging that the respondent had engaged in, and was engaging in, unfair labor practices affecting commerce within the meaning of Section 8 (1) and (3), and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat 449, herein called the Act. Copies of the complaint and notice of hearing thereon were duly served upon the respondent and the charging party. With respect to the unfair labor practices, the complaint alleged in sub- stance: (1) that the respondent, on or about April 12, 1946, discharged James Savoca, and since that date has refused to reinstate him, because he engaged in THE BETTCHER MANUFACTURING CORPORATION 531 concerted activities with other employees of the respondent, and because of his membership in, and activity on behalf of a labor organization of the respondent's employees known as The Grievance Committee of The Bettcher Manufacturing Corporation, thereby engaging in unfair labor practices within the meaning of Section 8 (1) and (3) of the Act; and (2 ) that since March 1, 1946, the respond- ent had engaged in a continuous course of conduct which has interfered with, restrained , and coerced its employees in the exercise of their rights as guaranteed in Section 7 of the Act, thereby engaging in unfair labor practices within the meaning of Section 8 (1) of the Act. On October 11, 1946, the respondent filed its answer in which it denied that it had engaged in any unfair labor practices, and affirmatively averred that it had discharged the said Tames Savoca for "legal and justifiable causes." Pursuant to notice, a hearing was held at Cleveland, Ohio, on October 28, 1946, before the undersigned , the Trial Examiner duly designated by the Chief Trial Examiner. The Board and the respondent were represented by counsel ; the charging party appeared in person Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues, was afforded all parties. At the conclusion of the hearing, the undersigned, without objection, granted a motion of counsel for the respondent to dismiss the complaint insofar as it alleged that the respondent had since March 1, 1946, engaged in a plan and continuous course of conduct which has interfered with, restrained, and coerced its employees in the exercise of their rights as guaranteed in Section 7 of the Act. The under- signed, without objection, also granted a motion made by Board counsel, to amend the complaint to conform to the proof in such formal matters as dates, spelling, and the like At the conclusion of the Board's case, counsel for the respondent moved to clismiss the complaint in its entirety This motion was denied Upon renewal of the same motion by respondent's counsel at the conclusion of the hearing, the undersigned reserved ruling That motion is disposed of by the recommenda- tions hereinafter made. At the conclusion of the hearing the undersigned heard oral argument by coun- sel for the respondent and the Board Although opportunity to file briefs and/or proposed findings of fact and conclusions of law was afforded the parties, no such briefs or proposed findings and conclusions were received Upon the entire record in the case, and from his observation of the witnesses, the undersigned makes the following: FINDINGS OF FACT I., THE BUSINESS OF THE RESPONDENT The respondent, The Bettcher Manufacturing Corporation, is an Ohio corpora- tion with its plant and principal offices located in Cleveland, Ohio The respond- ent is engaged in the manufacture of job stampings. During the 12-month period prior to the hearing, the respondent produced finished products of a value in excess of $750,000, of which in excess of 70 percent was shipped to points outside the State of Ohio. The principal raw material used by the respondent in its operations is sheet metal. During the same period it used such raw material of a value in excess of $350,000, of which in excess of 50 percent was received by it from points outside the State of Ohio. The respondent concedes that it is engaged in commerce within the meaning of the Act. 781902-48-vol. 76-35 532 DECISIONS OF NATIONAL LABOR RELATIONS BOARD II THE ORGANIZATION INVOLVED The Grievance Committee of The Bettcher Manufacturing Corporation is a labor organization admitting to membership employees of the respondent at its plant in Cleveland, Ohio. IlI. THE UNFAIR LABOR PRACTICES ; THE DISCHARGE OF d.01ES S-\VOCA A The factual settilig The respondent employs approximately 75 pioductiou workers in its plant. During March 1946, in order to further their demand for a wage increase, the employees organized The Grievance Committee of The Bettcher Manufacturing Corporation, hereinal ter referred to as the Grievance Coninuttee,' through which they requested the respondent to giant them an upward adjustment in their wages. The initial negotiations for an increase were carried on between Calvin K. Arter, the respondent's president and treasurer, and the coininittee of four employees, hereuibefore described, which had been selected to represent the employees Arter informed the committee that the respondent was operating at a loss and therefore could not afford to grant as large a wage increase as the employees were demanding The upshot of these negotiations was an offer by Arter of a flat increase of 7 cents per hour The committee informed Arter that it was "going to be pietty hard to convince [the employees] that the Company" was losing money, and invited him to attend the next meeting of the employees as a whole to "explain to the boys the situation " This invitation was accepted. The employees held their meetings in it hall over a tavern The next meeting, which Arter was invited to attend, was held on April 5, 1946, in the said hall. That night At-ter came to the tavern and waited theca to be called into the meeting. In the meantime, the committee reported to the approximately 35 employees in attendance on Arter's offer of a 7-cent per hour wage increase The evidence is undisputed, and the undersigned finds, that many of the employees had been drinking, and weie boisterous and disorderly to such an extent that the chairman at times lost control of the proceedings. Understandably, the tes- timony is in conflict as to exactly what action was taken on the conunittee's re- port Board witness Savoca testified that the respondent's offer was turned down "bv acclamation" and that the employees decided by vote to "accept nothing less than [a] 15 cents I increase] " Respondent's witness Byndas, who was chair- man of the meeting, testified that lie "asked [the employees] to vote on whether they would be willing to accept the seven-cent raise and the majority of their said no " The secretary of the meeting, Hess, testified that no formal vote on the question was taken, but that the men were divided about half and half as to whether or not to accept the respondent's offer. The only other witness as to this matter testified vaguely that "one says this much and one says that much" and that "some says 15, some says we ought to get as much as the rest of them, 181/2, and so forth." On the basis of the foregoing, the undersigned is persuaded, and therefore finds, that whether or not a torinal vote was taken, a nlajoiity of the employees present at the April 5 meeting indicated, after hearing the committee's report, and before Arter entered the meeting, that they were opposed to accept- 'The term "Grievance Committee" seems to have been used rather loosely by the em- ployees to describe both the organization as a whole, consisting of all the respondent's em- ployees, -s\ho met monthly as a body, and the committee of four which was selected by the employees to act as a grievance committee for them. THE BETTCHER MANUFACTURING CORPORATION 533 ance of the respondent's offer of a 7-cent per hour wage increase When this became evident, the members of the committee summoned Arter into the meeting to explain the respondent's position Arter was given the floor and he placed before the employees the respondent's contention that it was losing money and could not afford to increase wages by more than the 7 cents he had offered. Following Arter's presentation of the respondent's position, a general dis- cussion ensued. with employees expressing their opinions, and asking questions, and Arter answering on behalf of the respondent 2 Atter about 15 minutes of such discussion, Savoca, the eniploiee alleged in the complaint to have been discrimiinatorily discharged, was given the floor. He took issue with the re- spondent's refusal to grant more than a 7-cent wage increase, and disputed Arter's contention that the respondent wits operating ,it a loss. Although the testimony is somewhat in conflict as to Savoca s exact language, the undersigned is con- vinced from the record as a whole, and therefore finds, that during his remarks, which were interrupted by dissenting shouts from some other employees, Savoca stated in substance that he did not believe that the respondent was losing money as Alter asserted, because Arter was in the habit of taking expensive vacation trips; and that no employee, including himself, wished to work for a company which was losing money. When Arter offered to prove that the respondent was losing money by producing the Company's books,' Savoca retorted that he had had experience as a bookkeeper, and that books could be juggled to show a loss. Following the discussion, the employees voted to accept the respondent's offer, and the meeting adjourned. After the meeting, Arter, together with two other men, was sitting in a booth in the tavern below the meeting hall, in which, after a few moments, he was joined by Savoca' The testimony of both Arter and Savoca is in agreement, and the undersigned finds, that Arter began a conversa- tion between them by berating Savoca for the tatter's remarks during the meet- ing. Thereupon Savoca repeated in substance what he had said at the meeting, namely that he had had bookkeeping expel ience, that books could be manipulated to show a loss, and that if the respondent was actually losing money, he (Savoca) (lid not care to work for it i A week later, on April 12, 1946, Savoca was Sum- moned to Arter's office in the respondent's plant, where Alter discharged him, giving as the reason for the discharge the fact that Savoca had insulted him by in effect calling hire a "crook and a liar." 2 From Arter's testimony it is clear, and the undersigned finds, that even after lie came into the meeting, the loud and disorderly conduct which had characteiized the earlier part of the meeting, continued n g, there was noisy "cat calling and joking." etc "This offer was couched in profane language, in which, accoiding to the testimony, all those present were indulging The undersigned does not consider it necessary to resolve the conflict between the testimony of Savoca and that of Arter as to whether Savoca was invited by Arter to join this group, on whether he sat down at the table without an invitation As is hereinabove found, in any event, the testimony is undisputed that Arter initiated the ensuing discussion The above finding is based on Arter's testimony Savoca testified that lie disputed a statement Arter had made that the General Jlotors Corporation was losing money, and that with regard to the respondent's books, he merely said that Arter "should bring the books into the meeting so everyone could look at the books." From the record as a whole, the under signed is convinced that during their conversation in the tavern, following the meet- ing, Savoca and Artei in effect ieaffinied their respective statements made during the meeting, and therefore is persuaded that Arter s version of this conversation is the niore accurate. 6 AI: the same time Arter offered to show Savoca the respondent's books, but the latter expressed himself as being uninterested in them, saying, "I don't care about looking at tine books, I am interested in my job. I am a family man , I got five kids . 534 DECISIONS OF NATIONAL LABOR RELATIONS BOARD B The contentions of the parties as to the legality of Savoca 's discharge, and concluding findings with respect thereto In answer to a question by respondent's counsel, Arter testified as follows : Mr. Savoca's employment was terminated purely and simply because lie intimated that I was it liar and that I manipulated my books and for no other reason And at his own request that lie didn't want to work for a company that was losing money. On the basis of Arter's above-quoted testimony, and in the absence of any evidence in the record to support a contrary finding as 'to Arter's state of mind, the undersigned concludes and finds that the respondent's discharge of Savoca was motivated by Arter's resentment at the remarks made by Savoca during the meeting of April 5, and during the conversation between them immediately fol- lowing the said meeting. Counsel for the Board contends in substance that the remarks made by Savoca to Arter, whether ill-advised or not, NN en e confined to the subject then ender dis- cussion between the employees and the respondent, namely the wage increase sought by the employees; that such statements therefore constituted an exercise of Savoca's right, as defined in Section 7 of the Act, to engage in concerted activi- ties for the purpose of collective bargaining ; and that the respondent's discharge of Savoca for exercising that i ight cqnsequently was in violation of the Act The respondent argues that Savoca %%as discharged because he "in substance called [Arter] a liar and a trickster with his books and [said] he didn't want to work for it company that was losing money . . [and I that is not concerted activity." That the above-described meeting between Arter and the employees constituted a collective bargaining conference, though perhaps one unconventional in form, seems beyond question. Arter, the employer-representative, attended the meeting for the purpose of placing before the eniplo^ees the respondent's position as to the amount of wage increase it could afford to grant, and then entered into nego- tiations with the employees, who were arguing for it more substantial increase. Although the employees had not designated it bargaining committee to represent them on this occasion, but instead threw the floor open to all employees to enter into the discussion, which resulted in a somewhat disorderly procedure, this did not deprive the meeting of its essential character as a collective bargaining confer- ence, and one into which Arter entered voluntarily and without objection It is to be noted, moreover, that preceding Arter's entrance into this conference, a majority of the employees had made a decision to reject the respondent's offer of a 7-cent raise, and to demand it greater increase It follows, and the under- signed concludes and finds, that by arguing with Arter for a greater increase than the respondent was offering, Savoca was carrying out the mandate of the majority of the employees, and was thereby engaging in such concerted activities for the purpose of collective bargaining as are defined and protected by Section 7 of the Act. It remains to be decided whether the character of Savoca's remarks was such, even though they were made during the course of a concerted activity, as to exceed permissible bounds, and to divest them of the protection of the Act, and, consequently, to justify the respondent in discharging Savoca because Arter felt personally affronted by his statements In considering this question, the undersigned is not unmindful of the fact that in arguing for a greater wage increase than the respondent had offered, Savoca questioned the truth of Arter's assertion that the respondent was operating at a loss ; waved aside Arter's offer THE BETTCHER MANUFACTURING CORPORATION 535 to produce the respondent 's books as proof of this assertion ;. ,unplted` that if the books showed a loss, they might have been "juggled" for the purpose of supporting Arter's contentions ; and in addition, engaged in the bluster-' of declaring that no employee, including himself, wanted to work for a company which was losing money. Such a combination of pugnacity and bluff may not be an ideal pattern for the conduct of collective bargaining negotiations, bur unfortunately, as is common knowledge, not all collective bargaining is con- ducted on a level of gentility and restraint Tempers are often aroused, and frequently one or both parties engage in acrimony and cast aspersions at one another's motives. The Board does not, tinder such circumstances, under- take to act as a monitor or censor of the conduct of either employer or em- ployees Thus, for example, the Board has held that all employer's unproved accusation, during a collective bargaining conference, in the presence of em- ployees, that the union representative was corrupt, even though "ill-advised," did not constitute an unfair labor practice because it was made "during a heated argument" in the course of collective bargaining negotiations (Matter of Esser, Rubbc) Co, Inc, 50 N. L B B 288, 291) The undersigned assesses Soivoca's statements to Arter in a similar light From the record it is clear that the meeting at which the discussion took place was generally loud and boisterous, and that Arter as well as Savoca, in common with the others in attendance, was vigorous to the point of piofanity in his choice of language. That the verbal exchange between them developed some heat, under such circumstances, is not surprising' As has been pointed out above, it is not uncommon for such heated arguments to develop during bargaining negotiations, and for insult- ing reinaiks to be exchanged, and as we have seen, the Board has taken cog- nizance of this fact, and has not applied to statements made during a bargaining discussion, the same standards it would to those uttered under other cir- cumstances All of this is not to say that any abusive statement made by an employee to his employer dit ring the course of a bargaining conference is protected by the Act The Act does not grant immunity to an employee, even during collective bargaining, from the ordinary penalties for insubordination, it does, however, protect the right of employees to engage in collective bargaining vigorously and without sear of reprisal To be protected, it would appear that statements by employees during bargaining conferences must be addressed to or have some reasonable bearing on the bargainable issues ; otherwise, they would have an iusnfeient-relation-to-the-bargain ing-process to be termed "collective activ- ity" since the collective activity protected by the Act in such a situation is the bargaining process. Applying the foregoing test to the statements made by Savoca, one is forced to conclude that they fall within the purview of concerted activities for the purpose of collective bargaining as defined in, and protected by, the Act, since they were all directly addressed to the issue under discussion , i. e , whether or not the respondent could afford to grant the wage increase demanded by the employees Under the applicable decisions of the Board and the Courts, concerted activities ' It will be remembered that on the occasion of his discharge, Savoca pleaded with Aiter to be allowed to keep his job. s Arter, as well as Savoca , indulged in rather strong language . E g, as Savoca credibly testified , and the undersigned finds, Savoca, during the discussion , suggested that it the respondent granted a substantial wage increase , the morale of the employees would be heightened to such an extent as to result in greater production . Thereupon Arter de- manded "Can you put up $20 ,000 bond to guarantee that principle?" When Savoca answered that he could not, Arter retorted , "Then put your money where your mouth is " 536 DECISIONS OF NATIONAL LABOR RELATIONS BOARD which are protected by the Act are not divested of that protection because they may be unwise, tactless, or otherwise ill-advised Mattel of Reynolds Interna- tional Pen. Co., 70 N. L R B 932; N L. R B. v. Mackay Radio cE Telegraph Co, 304 U. S 333, 344 ° Not even every foi in of illegal conduct (as distinguished from conduct which is merely inadvisable) arising from concerted activity protected by the Act, justifies punitive action by an employer. Roth the Board and the Courts have recognized that a distinction is to be drawn between cases where employees engaged in concerted activities exceed the bounds of lawful conduct in "a moment of animal exuberance" (i1Id1 Wagon Drrzei s Union v Mcadoicnloor Dail tes, 312 U S. 287, 293), or in a manner not activated by improper motives, arid those flagrant cases in which the misconduct is so violent or of such serious character as to render the employee unfit for further service Compare N L R. B. v Fanstccl Metallurgical Coil), 306 U S. 240, and Sontbein Steannslinp Co. v. N. L. R. B., 316U S 31, with Bee,ksliit eKitt tting.llillsv X.L It B, 139 F. (2d) 134, 141 (C C A 3), cert denied 322 U S. 747, and N L R B v Stackpole Carbon Co., 105 P. (2d) 167, 176, cert. denied, 308 U S 605. In all such cases as the one at bar, we are confronted with the question whether the protection of the right of employees to full freedom in their concerted activi- ties should be subordinated to the undoubted right of the employer to maintain discipline and to punish insubordination. Flere the circumstances surrounding the particular incident in issue, as well as general principles, seem to iequire that the right of the employees involved to be free to exercise their statutory rights, be held paramount to the right of the employer to punish an employee whom he has deemed to have insulted him It must be remembered that Savoca's statements were uttered to Arter, not during working hours, nor even on the respondent' s lnremises , but in a setting where the pasties met presumably its equals , to bargain, over an issue then in dispute betiicen them The lack of restraint and intemperate language which characterized the discussion was, as we have seen, not confined to Savoca, but was also indulged in by Arter. With this background in mind, the night which the respondent seeks to vindicate is not that of punishing insubordination, but that of implementing its resentment against remarks which it feels were presumptuous, false, and insulting That right, the undersigned concludes and finds, is subordinate to the right of em- ployees to bargain collectively with their employer without the restraints which would necessarily be imposed if the employer were to be allowed to sit in judg- ment on the propriety of their bargaining arguments, and to penalize those of their representatives whom lie decreed to have overstepped the bounds of such propriety. The guaranty embodied in the Act of the right to bargain collectively is intended "to assure a privilege that in itself must be so actual and certain that fear and doubt are absent from the individual's mind, or the freedom is but an abstraction. If the speaker must hesitate before uttering his thoughts, if he must weigh and nicely balance every word so as to determine whether what lie is about to say is permitted or forbidden, the guaranty . . . is little more than theoretical." 10 In such circumstances, the speaker is "wholly at the mercy of 0 Compare • Thornhill v. Alabama, 301 U. S. 88, and Anierican Federation of Labor v Swing, 312 U S 321, in which the supreme Court held that picketing was within the pio- tection of the First Amendment, and that such protection is not lost by the misconduct or incivility of the pickets, unless such misconduct is so serious as to occasion imminent and aggravated danger of a breach of the peace. 10 Quoted troni opinion of the U S Circuit Court of Appeals for the Eighth Circuit dis- cussing the right of tree speech (N L R. B v. Montgomery TVard <C Co , decided October 23, 1946, 157 P. (2d) 486 (C C A. 8) ). THE BETTCHER MANUFACTURING CORPORATION 537 the varied understanding of his hearers and coiseluentll of whatever ,fnference may be diawn as to his intent and lneannig"" ( Thomas v. Colliois, 323 U S. 516, 525). The respondent argues further that even if Savoca 's statements 1o Arter during the meeting be deemed to be protected by the Act because they constituted a part of concerted activities , his reiteration of those statements after the meeting had adjourned , and the collective bargaining process was over ," did not constitute protected activities , and therefore furnished the respondent with a legitimate ground for discharging hen. The undersigned finds no merit in this contention. Savbca 's conversation with After immediately following the collective bargaining meeting was merely a continuo [ ion of the discussion betty een them during the meeting Savoca , in the second conversation , did nothing more than to reaffirm and defend the arguments lie had used during the prior discussion , and this only in response to the challenging remarks addressed to hum by Arter , who initiated the second conveisation Moreover , as is apparent front the record," both men were still in the same angry mood which had developed during the preceding aigumeut while the nieeting was still in progress In these circumstances, the undersigned is persuaded , and therefore finds, that the conversation between Savoca and Arter in the tavern , immediately following the close of the meeting, was part of the same heated argunient which had gone on between them during the preceding part of the evening, and is to be viewed in the same light as their prior debate. To attempt to deal with the two discussions separately and stand- ing apart, as the respondent urges , would be utteily unrealistic . The iespondent avowedly bases Savoca's discharge on its resentment at the type of arguments Savoca used in attempting to refute the respondent's claim that it was operating at a loss, and since these arguments were made both during and after the collective bargaining meeting, the undersigned finds it impossible to disentangle the two, and finds that even if it had been legal for the respondent to have discharged Savoca for making the statements on the occasion after the meeting closed, the discharge is still tainted with illegality because it was based at least pat tly on the respondent's objections to his statements made during the collective bargaining meeting, which, as has been found , constituted protected concerted activity. On the basis of the foregoing, and the entire iecoid , the undersigned concludes and finds that by discharging James Savoca on April 12 , 1946, and thereafter refusing to reinstate him," because lie had engaged in concerted activities with other employees of the respondent , the respondent discriminated with respect to Savoca 's hire and tenure of employment , thereby discouraging membershp in the 11 It is to be noted that Arter testified that lie discharged Savoca because the latter "intimated" that Alter was a liar and manipulated his books Flour the context of Savocas ieniarks, one could as readily nifei that his intent wits to argue that the conten- tion that the respondent was losing money was invalid as long as Arter's salary was suffi- cient to enable him to take expensive hunting trips, ,and that if the company's books were in that manner made to show a lo,s, they had been " juggled " 12 The employees, just before adjourning the meeting, voted to accept the respondents offer of a 7-cent raise 18 After testified as follows regarding the conversation, "well, I started out, I asked him something about wheie the hell did lie learn so much about books or something like that " Savoca testified that After opened the conversation by saying, "You know, Jim, you haven't got the mind of a five-year-old " " On the basis of Savoca s undenied testimony, which the undersigned credits, it is found that Savoca applied for reinstatement to the respondents employ several times aftei his discharge, and that such reinstatement was denied him. 538 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Grievance Committee," and interfering with, restraining , and coercing Its em- ployees in the exercise of the rights guaranteed in Section 7 of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the respondent set forth in Section III, above, occurring in connection with the operations of the respondent described in Section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow thereof V THE REMEDY Having found that the respondent has engaged in certain unfair labor practices affecting commerce, the undersigned will recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. ' It has been found above that the respondent's discharge of James Savoca on April 12, 1046, constituted unfair labor practices under the Act It will therefore be recommended that the respondent reinstate him to his tornier or substantially equivalent position,° without prejudice to his seniority and other rights and privileges. It will also be recommended that the respondent make him whole for any loss of pay lie may have suffered by reason of the respondent's discrimination against him by payment to him of ai sum of money equal to the amount he would have earned as wages from the date of his discharge from the respondent's employ, to the date of the respondent's offer of reinstatement , less his net earn- ings" during said period It will also be recommended that the respondent post appropriate notices to its employees in connection with the foregoing Upon the basis of the foregoing findings of fact and upon the entire record in the case, the undersigned makes the following: 15 As the Board has consistently held, a discharge foi engaging in concerted activities not only interferes with, restrains. and coerces the employees m the exercise of their rights under the Act, in violation of Section 8 (1), but also has the necessary effect of discouraging membership in the laboi organization catiying on such concerted activities, thus violating Section 8 (3) of the Act Matter of Rockingham Poultry Marketing Coopciative, Inc, 59 N. L R. B 486, 486-487 Mattes of Sandy Hill Iron and Brass Works, 55 Ni L R B 1 at 1-2 , Matter of Ei er Ready Label Corp , 54 N I. R B 551, 557-558 , Mattel of Texas Tex- tile Mills, 58 N L R B 352, 353 Despite the fact, as heiemabove found, that the re- spondent was not motivated by antiunion feelings in discharging Savoca, but merely by its resentment at his statements, which have been found to constitute protected concerted activities, its conduct is nevertheless illegal For when it is once made to appear from the primary facts that the employer has violated the express provisions of the Act, we may not inquire into his motives" even where it is shown that lie "has not wilfully violated" the Act Matter of Eureka Vacuum Cleaner Co , 69 N L R B 878, and cases cited in footnote 3 thereof 16 In accordance with the Board's consistent interpretation of the ter in. the expression "former or substantially equivalent position" is intended to mean "former position wherever possible, but if such position is no longer in existence, then to a substantially equivalent position ' See Matter of The Chase National Bank of the City of New Yotk, San Juan, Puerto Rico, Branch, 65 N. L R B. 827 a By "net earnings" is meant earnings less expenses, such as for transportation, room, and board, incurred by an employee in connection with obtaining work and working else- where than for the respondent, which would not have been incurred but for his unlawful discharge and the consequent necessity of his seeking employment elsewhere. See Matter of Crossett Luntbei Company, 8 N L R B 440 Monies received for work performed upon Federal, State, county. municipal, or other work-relief projects shall be considered as earnings See Republic Steel Corporation v. N L. R B., 311 U S 7 THE BETTCHER MANUFACTURING CORPORATION CONCLUsroNs OF LAW 539 1. The Grievance Committee of The Bettcher Manufacturing Corporation is a labor organization within the meaning of Section 2 (5) of the Act. 2 By interfering with, restraining, and coercing its employees in the exer- cise of the rights guaranteed in Section 7 of the Act, the respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (1) of the Act. 3 By discriminating in regard to the hire and tenure of employment of James Savoca, thereby discouraging membership in The Grievance Committee of The Bettcher llanufacturinii Corporation, the respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (3) of the Act 4 The aforesaid unfair labor practices are unfair labor practices affecting commerce ,vithin the meaning of Section 2 (6) and (7) of the Act. RECOMMENDATIONS Upon the basis of the above findings of fact and conclusions of law the under- signed recommends that the respondent, The Bettcher Manufacturing Corpo- ration, of Cleveland, Ohio, its officers, agents, successors, and assigns shall: 1 Cease and desist from discouraging membership in The Grievance Committee of The Bettcher Manufacturing Corporation, or any other labor organization of its employees, and interfering with, restraining, or coercing its employees in the exercise of their right to self-organ»ation, to join or assist The Grievance Com- mittee of The Bettelier Mamrfactuuug Corporation, or any other labor organiza- tion, to b:i gait collectively tin ough representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining, or other mutual aid or protection, by discharging or in any other manner dis- criminating in regard to the hire or tenure of employment or any term or condi- tion of employment of any of its employees. 2 Take the following affirmative action, which the undersigned finds will effectuate the policies of the Act: (a) Offer to James Savoca immediate and full reinstatement to his former or substantially equivalent position without prejudice to his seniority and other rights and privileges ; (b) Make whole James Savoca for any loss of pay he may have suffered by reason of the respondent's discrimination against him by payment to him of a sum of money equal to the amount determined in the manner set forth in the section entitled "The remedy" above; (c) Post immediately at its plant at Cleveland, Ohio, copies of the notice at- tached to the Inteiniediate Report, herein, marked "Appendix A " Copies of said notice, to be furnished by the Regional Director for the Eighth Region, after being signed by the respondent, shall be posted by the respondent immediately upon receipt thereof, and maintained by it for sixty (60) consecutive days there- after, in conspicuous places, including all places where notices to employees are customarily posted Reasonable steps shall be taken by the respondents to insure that said notices are not altered, defaced, or covered by any other material; (d) Notify the Regional Director of the Eighth Region in writing within ten (10) days from the date of the receipt of the Intermediate Report what steps the respondent has taken to comply therewith 540 DECISIONS OF NATIONAL LABOR RELATIONS BOARD It is further recommended that unless the respondent notifies said Regional Director in writing within ten (10) days from the receipt of this Intermediate Report that it will comply with the foregoing recommendations, the National Labor Relations Board issue an order requiring the respondent to take the action aforesaid As provided in Section 203.39 of the Rules and Regulations of the National Labor Relations Board, Series 4, effective September 11, 1946, any party or counsel for the Board may, within fifteen (15) days from the date of service of the order transferring the case to the Board, pursuant to Section 20338 of said Rules and Regulations, file with the Board. Rochambean Building, Wash- ington 25, D. C., an original and four copies of a statement in writing setting forth such exceptions to the Intermediate Report or to any other part of the record or proceeding (including rulings Upon all motions or ob)ections) as he relies upon, together with the original and four copies of a brief in support thereof; and any party or counsel for the Board may, within the same period, file an original and four copies of a brief in support of the Intermediate Report. Immediately upon the filing of such statement of exceptions and/or briefs, the party or counsel for the Board filing the same shall serve a copy thereof upon each of the other parties and shall file a copy with the Regional Director. Proof of service on the other parties of all papers filed with the Board shall be promptly made as required by Section 203 65. As further prodded in said Section 203 39, should any party desire permission to argue orally before the Board, request therefor must be made in writing to the Board within ten (10) days from the date of service of the order transferring the case to the Board ISADORE GRFENB>ERG, Trial Ea,antiine7. Dated December 19, 1946. APPENDIX A NOTICE TO ALL EMPLOYEES Pursuant to the recommendations of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that • WE WILL NOT discourage membership in THE GRIEVANCE COMMITTEE OF THE BETTCHER MANUFACTURING CORPORATION, or any other labor organiza- tion of our employees, or interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to form labor organizations, to join or assist THE GRIEVANCE COMMITTEE OF THE Bi:rTCHER MANUFACTUR- ING CORPORATION, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, by discharging or in any manner discriminating in regard to the hire or tenure of employment of any of our employees. WE WILL OFFER to James Savoea immediate and full reinstatement to his former or substantially equivalent position without prejudice to any seniority or other rights and privileges previously enjoyed, and make him whole for any loss of pay suffered as a result of the discrimination. All our employees are free to become or remain members of the above- named union or any other labor organization We will not discriminate in THE BETTCHER MANUFACTURING CORPORATION 541 regard to hire or tenure of employment or any term or condition of employ- ruent against any employee because of membership in or activity on behalf of any such labor organization. THE BETTCHER MANUFACTURING CORPORATION, Employer. By ----------- -------- ----------------------------- Dated ------------------------ (Representative) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material.