Max Factor & Co.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Max Factor & Co. and Luisa Gratz. Cases 31-CA- 6798 and 31-CA-6827 December 13, 1978 DECISION AND ORDER By CHAIRMAN FANNIN(; AND MEMBERS JENKINS AND MtURPHIY On November 11, 1977, Administrative Law Judge Jerrold H. Shapiro issued the attached Decision in this proceeding. Thereafter, Respondent filed excep- tions and a supporting brief, and the Charging Party filed a brief in opposition to Respondent's exceptions and in support of the Administrative Law Judge's Decision. Respondent, urging the Spielberg doctrine, subsequently filed an additional motion for reconsid- eration of the Administrative Law Judge's Decision and dismissal of complaint. The General Counsel filed a motion to strike Respondent's motion, with a letter statement in support, and the Charging Party filed a statement in support of the General Counsel's motion and opposing Respondent's motion for dis- missal. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered Respondent's motion for reconsideration of the Administrative Law Judge's Decision and dismissal of the complaint based on deferral to an arbitrator's award issued af- ter the Administrative Law Judge's Decision. Re- spondent cites the Spielberg case in support of its motion. In Spielberg, respondent defended, inter alia, on the ground that its refusal to reinstate certain strikers was in accordance with a prior arbitration award by which all parties had agreed to be bound. After issuance of the award, finding that respondent was not obligated to reinstate the individuals con- cerned, a charge was filed with the Board. The Board agreed with the trial examiner that the Board is not bound by an arbitration award, noting that the Board has exercised its discretion to remedy unfair labor practices "even though the parties had used ar- bitration," for, as the court stated in N.L.R.B. v. Walt Disney Productions, 146 F.2d 44 (9th Cir. 1945), 325 U.S. 877, "Clearly, agreements between private par- ties cannot restrict the jurisdiction of the Board." The Board, however, in the circumstances of that case decided to exercise its discretion to recognize the arbitrator's award, noting that the arbitration it- I Spielberg Manufacturing Companr. 112 NL.RB 1080 (1955). self was part of a strike settlement agreement ratified by the employees, and that all parties had actively participated and acquiesced in the arbitration pro- ceeding. The Board went on to note that, "In sum- mary, the proceedings appear to have been fair and regular, all parties had agreed to be bound, and the decision of the arbitration panel is not clearly repug- nant to the purposes and policies of the Act." We have carefully reviewed the arbitrator's award relied on herein by Respondent. It does not appear that the arbitration proceedings were other than fair and regular, nor does any party so contend. How- ever, the Charging Party and the General Counsel contend that deferral to the arbitration award herein would engender a result repugnant to the purposes and policies of th: Act. We agree. The arbitrator did not pass on the unfair labor practice aspects of the Charging Party's suspension and discharge herein, nor did he specifically consider the additional unfair labor practice allegations which the Administrative Law Judge found went to the heart of the Act and were closely interwoven with Respondent's warning, suspending, and discharging the Charging Party. We conclude, therefore, that deferral to the arbitration award herein would not effectuate our protection of Section 7 rights, but rather would be repugnant to the purposes and policies of the Act. Furthermore, as the arbitration hearing took place after the Board's hearing in this proceeding and as the arbitrator's de- cision issued after that of the Administrative Law Judge, deferral would be unwarranted irrespective of the merits of the arbitration proceeding (including the arbitrator's decision), under Spielberg standards. Accordingly, we hereby deny Respondent's motion to dismiss the complaint and defer this matter to ar- bitration.3 The Board has considered the record and the at- tached Decision in light of the exceptions and briefs 2 Timpte. Inc.. 233 NLRB 1218. fn. 2 (1977). See General American Transportation Corporation, 228 NLRB 808 (1977): National Rejectors Industries. 234 NLRB 251 (1978). We note also the opin- ion of the Circuit Court of Appeals for the Ninth Circuit in Stephenson v. N L. R.B.. 550 F.2d 535 (1977). to the effect that the Board should not defer when the arbitrator has not considered the statutory issues, a position the Board has itself taken in such cases as Monsanto Chemical Companvy, 130 NLRB 1097. 1099 (1961). The court also indicated its approval of an addi- tional pierequisite to the Spielberg formula based on the arbitral tnbunal having decided only issues in its competence, as suggested by the Circuit Court of Appeals for the District of Co;lumbia in Banyard v. N LRB., 505 F 2d 342. 347 ( 1974). Member Murphy, with reference to the latter issue. is not in accord with a criterion that requires the Board to pass on the competence of an arbitral tribunal to decide a particular issue. However, in The Kansas Ci)' Star (ompany, 236 NLRB No. 119 fn. 1 (1978), she expressed disagreement with Electronic Reproduction Service Corporarion. et al.. 213 NLRB 758 (1974). of which the court, in Stephenson, supra. was critical as showing Board willing- ness to defer to an arbitrator's award even though no indication is given that the arbitrator considered the unfair labor practice issue. In Electronic Repro- duction. Members Fanning and Jenkins dissented on that issue. 804 MAX FACTOR & CO. and has decided to affirm the rulings, findings,4 and conclusions of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the Respondent, Max Factor & Co., Los Angeles, California, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. The Respondent has excepted to certain credibility findings Inade b) the Administrative Law Judge It is the Board's established policy not to over- rule an Administrative Law Judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Siandard Dry HWall Products, Inc., 91 NLRB 544 (1960), enfd. 188 F.2d 362 (3d Cir. 19,1). We have carefully examined the record and find no basis for reversing his findings. An inad- vertent error appears in fn. 9 of the Administrative Law Judge's Decision, which is hereby corrected to read as follows: "Maxwell is black. Gratz and Bryant are white." DECISION STATEMENT OF THE CASE JERROLD H. SHAPIRO, Administrative Law Judge: Upon charges filed by Luisa Gratz in Case 31-CA-6798 on Feb- ruary 3, 1977, as amended on February 14, 1977, and in Case 31-CA-6827 on February 14, 1977, the General Counsel of the National Labor Relations Board, herein called the Board, by the Regional Director of the Board, Region 31, on March 23, 1977, issued an order consolidat- ing these cases and a consolidated complaint against Max Factor & Co., herein called Respondent, alleging that Re- spondent has engaged in unfair labor practices within the meaning of Section 8(aXl1) and (3) of the National Labor Relations Act, a.: amended, herein called the Act. Respon- dent filed an answer denying the commission of the alleged unfair labor practices. A hearing was held in this proceed- ing on July 6 and 7, 1977. Upon the entire record, from my observation of the de- meanor of the witnesses, and having considered the post- hearing briefs, I make the following: FINDINGS OF FACT I THE BUSINESS OF RESPONDENT Max Factor & Co., the Respondent, is a Delaware cor- poration with an office and its principal place of business located in Los Angeles, California, where it is engaged in the manufacture and nonretail sale of cosmetic products. Respondent annually sells and ships goods or services val- ued in excess of $50,000 directl) to customers located out- side the State of California. Respondent admits it is an employer engaged in commerce within the meaning of Sec- tion 2(6) and (7) of the Act. II1 THE LABOR ORGANIZATION INVOLVED Respondent admits that Warehouse, Processing & Dis- tribution Workers Union, Local 26, International Long- shoremen and Warehousemen's Union, herein called the Union, is a labor organization within the meaning of Sec- tion 2(5) of the Act. 1tl. THE ISSUES The ultimate issues to be decided are whether Respon- dent violated Section 8(a)(l) and (3) of the Act by threat- ening to discipline, suspending and discharging its employ- ee, Luisa Gratz, because of her performance as the Union's chief steward. Also to be decided is whether Respondent violated Section 8(a)(1) of the Act by offering Gratz eco- nomic benefits for the purpose of dissuading her from con- tinuing to serve as the Union's chief steward. IV. THE ALLEGED UNFAIR LABOR PRACTICES A. The Facts 1. Background The Union represents the production, maintenance, and warehouse employees employed at Respondent's Los An- geles facility. The unit is a large one, reaching a high of 1,360 employees in 1975 which was thereafter reduced to approximately 800 employees as the result of layoffs. Since 1959 the Union has been a party to successive collective- bargaining contracts with Respondent covering the em- ployees. Luisa Gratz, the alleged discriminatee, has worked since approximately 1968 for Respondent as a production employee. She was a union steward from 1969 to 1974 and from 1972 until 1974 also served as assistant chief steward. She was elected chief steward in 1974 which position she occupied continuously until February 3, 1977, when she was discharged. The provisions in the current collective-bargaining con- tract which deal with the chief steward's duties have re- mained substantially the same since 1971. Section 4, in per- tinent part, provides that "[t]he Chief Steward shall be permitted to visit any and all plant locations when the grievance procedure makes it necessary. There shall be no restrictions on the right of the Chief Steward to receive and return telephone calls from duly designated officers of the local union and the International Union." Section 4 also states that "a Union steward" shall not leave his or her work station and go into another department "for the pur- pose of handling grievances or transmitting other Union business" without receiving permission from the foremen of both departments, which permission shall not be with- held arbitrarily. Section 18, which sets out a four-step grievance-arbitration procedure culminating in binding neutral arbitration provides that "[t]he Chief Steward . . . shall have the right to be present at all steps of the griev- 805 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ance procedure." ' Otherwise the collective-bargaining contract is silent about the chief steward's right to engage in union business during working hours. Respondent has always paid the chief steward for engag- ing in union business during working hours, except for the steward's attendance at arbitration proceedings. Since at least 1970, however, there has been a continuous dispute between Respondent and the Union about the amount of time a chief steward should devote to union business dur- ing working hours. The Union has taken the position that the chief steward should be allowed to spend all of the time which the steward believes is necessary to perform union business. Respondent has taken the position the chief stew- ard, inasmuch as he or she is an employee being paid by the Company to work, is obligated to spend a reasonable amount of time performing production or maintenance work. Respondent closely watched the two employees who served as chief steward immediately prior to Gratz. They were constantly told by management that they were abus- ing their use of work time to engage in union business. Also, management continually complained to the Union's business representative that these chief stewards were abus- ing their use of work time to engage in union business. However, prior to discipling Gratz, as described infra, no chief steward had been disciplined or had received a for- mal warning notice threatening them with discipline for abusing their work time to engage in union business. On November 14, 1972, Eugene Wooten, who was then Respondent's director of industrial relations, wrote Union Business Representative John Lee that there remained un- resolved the issue of "[w]hat constitutes a reasonable amount of time the Union Stewards should spend away from their normal work duties to investigate and process alleged grievances." He emphasized that the Company did not believe that any departmental stewards had attempted to abuse or misuse their positions but was concerned only about the amount of time the chief steward and the acting chief steward spent investigating and processing grievances and in conducting general union business during their dai- ly work shifts. He indicated Respondent intended to deal with the problem by instituting a system of separate time- cards on which these two union officials would record their "time away from work" which would be reviewed each week by management. Wooten informed Lee that, based upon this information, the Company would evaluate the amount of time spent by the chief steward away from work "on union business." The plan was apparently placed into effect for a period of 6 months. The acting chief steward referred to in Wooten's letter was the alleged discriminatee, Gratz. During 1972 and 1973, while performing her duties as acting chief steward, Gratz received a verbal warning from management in November 1972, a written one in March At step I of the grievance procedure, the grievant submits the grievance to the foreman. Thereafter, at step 2. a meeting is held between the gnevant's steward and the personnel manager and. if that is not successful in resolving the grievance, then the matter is discussed at the weekly step 3 meeting between the Union's grievance committee and the ('ompan)'s di- rector of industrial relations. In the event these three steps fail to settle the grievance. step 4 provides for binding arbitration. 1973, and was discharged in April 1973 for conduct she had engaged in while serving as acting chief steward.2 Gratz filed a grievance challenging the discharge. The grievance was heard by an arbitrator who, on November 24, 1973, issued an opinion in which he directed Respon- dent to reinstate Gratz with full backpay. During September 1976, Gratz spent virtually all of her work time performing union business as chief steward. In October and November 1976 she spent all of her work time performing union business as chief steward and as of De- cember 9, 1976, had spent all of each workday in Decem- ber performing union business as chief steward. On De- cember 9, 1976, Bill Piercy, Respondent's director of personnel and industrial relations, issued Gratz a written threat of disciplinary action which, in substance, warned Gratz she would be disciplined if, in the future, she failed to perform "a reasonable amount of work" within her job classification or failed to "comply with the labor agree- ment" when excused to conduct union business. The cir- cumstances leading up to this disciplinary warning notice are as follows. On February 12, 1976, Respondent hired a new person- nel manager, James Bryant. At the time there were approx- imately 200 contract grievances on file against the Compa- ny which were at the second or third steps of the contractual grievance procedure. Respondent's director of industrial relations, Piercy, during February 1976, told Gratz that in order to resolve these grievances she had per- mission to take all the time off from work that was neces- sary. No progress was made in resolving the grievances. As a matter of fact, the total number of grievances increased. In approximately August 1976, Piercy told Gratz he felt she was not spending enough time doing production work. Gratz pointed out that Piercy had told her to spend as much time as was necessary to get rid of the outstanding grievances. Piercy acknowledged this, but told her that too much time had passed and that now she had to spend more time working since Piercy could no longer justify her con- duct. In October 1976, Piercy again told Gratz he felt she was not spending enough time working. Gratz stated that she was performing union business and, as chief steward, had the right to spend as much of her work time on union business as was necessary, even if it took all of her working time. In December 1976, shortly before December 9, Piercy again spoke to Gratz and told her that he was under pres- sure from other members of management because Gratz was not working. Piercy also stated that the Company felt that since Gratz had been hired to perform production work, she would have to perform a reasonable amount of work. Gratz' reply, in substance, was that she was just per- forming her job as the Union's chief steward and that the reason she was forced to spend so much work time on union business was that the Company's supervisors were not handling grievances properly at the first step of the grievance procedure. Piercy told her that if the Union wanted to employ Gratz as a full-time business agent on the Union's payroll, this was fine, but the Company had not hired her to work full time for the Union. Gratz an- 2 Neither the discharge nor the disciplinary warnings involve an alleged abuse of 'sorking ntme for union businiess. 806 MAX FACTOR & CO. swered, if Piercy was dissatisfied he should discharge her. Piercy said this was not what he had in mind. Gratz de- clared that she intended to keep on acting as she had been doing in the past and, if Piercy did not like it, Piercy could discharge her.3 During the same period of time in which Piercy. as de- scribed above, spoke to Gratz personally about the amount of time she was spending on union business, the same topic was mentioned during grievance meetings. There, the rep- resentatives of the Respondent took the position that the chief steward must perform a reasonable amount of work. Specifically, Bryant indicated that Respondent believed that 50 percent of Gratz' time should be devoted to pro- duction work. The Union's representatives answered that the chief steward was entitled to take whatever time was necessary to perform her business for the Union. Also dis- cussed was whether Gratz, as chief steward, had the right to investigate grievances during worktime. Respondent's representatives said no. The Union's representatives said yes. On December 9, 1976, as indicated previously, Gratz re- ceived an interoffice memo signed by Piercy which threat- ened her with discipline and which reads as follows: You have been informed by myself and Jim Bryant over the past several months that the Company ex- pects you to perform work within your job classifica- tion. You are being paid by the Company to perform work within your job classification -not to carry on Union business which is not covered in the labor agreement. In our discussions it was also pointed out that all prior Chief Stewards were able to perform work in addition to their responsibilities and duties as Chief Steward. Your response has been that the con- tract permits you to spend as much time as you feel is necessary to conduct Union business. The purpose of the grievance procedure is to process grievances in an orderly manner with no interruption or cessation of work during this process. In reviewing the amount of work you have per- formed during the month of November 1976. our rec- ords show you worked approximately 4-1 /2 hours. It is my understanding that this represents a typical ex- ample of the amount of work you have performed each month during the past several months. When I Pierci' was asked during the hearing if he eser accused (GrJai, i ullide of the December 9. 1976 disciplinar, warning. of not engaging In union husl- ness during those limes she was awa) from her swork sialtin during working time. In reply. Pierc, testified he had spoken about this to, (irta. prior Io December 9. on either two or three separate iocasions. PlercN's des riptiorl If these consersations was vague, e'asile, and insoher enl and dnoe ri n inclide ans mention of (;ratz spending working ltime n nmitler, unrelated to union business, let alone ans criticism of (iralz for enrgagni l II his Ispe of condu et Later, howe er. Piercs testified that on anothiier Ol aslonl he tlId Gratz he did not think she was speaking to emplosres about union business and testified that Gratz admitted to him, "she would listen Ito ecr.hoIdx and all their problems." which ranged fromr things ike hhabsiting problehml) to wage garnishments I his testimorls was nolt gien In a1 sraighitirw.rd or convlncing manner Since Pierc's earlier testinlons gielin in response Io min question. had onitted this alleged con ersialtin. I close! h ob,crscd hill in an effori Io determine whether his failure to inklude iIt i his earlicr teslimons was nterel an o'versight On Ihe basis of his bearing and dc- meanor while testifying. I concluded Ihat this laler testianond .a, as fahbrlc.i tion. Aucordingl?. I hase rejecled it recently brought this to your attention, you indicated this was no doubt correct. This is totally unacceptable. In our opinion some of the reasons you are unable to perform a reasonable amount of work is: you are more interested in taking care of all types of Union business rather than performing the duties of your production job; your practice of submitting multiple grievances on the same subject; seeking out a gratui- tous offer of assistance to employees which in many cases does not relate to a specific grievance, and roam- ing the plants trying to find a violation of the agree- ment. Nothing in Section 4 or Section 18 of the labor agreement permits or authorizes the Chief Steward to investigate grievances, roam the shop looking for grievances, or offering your assistance and time to em- ployees on every imaginable subject. The filing of ad- ditional grievances on the same subject matter, prior to the determination of the first grievances, is not in the best interest of the Union or the Company. Multi- ple grievances increase the workload of the Union and the Company. Both parties are required to record and process the same, thus placing additional work on the Union and the Company without any benefit derived therefrom. The answer to the first grievance will solve the problem. The represented office of the Chief Steward does not license you to neglect your regular job duties, nor does your office empower you to engage in personal or Union activities that you can reasonably do outside your working hours or outside the work hours of the employees you represent. Any grievance handling ac- tivities that can be reasonably performed outside your or other employees' regular work hours should be han- dled outside of working hours. Writing up grievances, looking into questionable contract violations, consult- ing with other Union representatives or other i., ivities you can reasonably do without interrupting your own or other employee's work, should be done outside of regular work hours. The rule of reasonableness of grievance handling also applies to an employee or other Union representatives who want to discuss an alleged gnevance or a grievance with you. Unless this grievance raises a safety question or concerns a com- plaint that will not lend itself to a retroactive adjust- ment, the grievant or other Union representative loses nothing by speaking to you at a time that does not interfere with their or 'our regular production job. In reviewing the Labor Agreement, Section 18C, it states: "The Chief Steward and/or representative of the Union shall have a right to be present at all steps of the grievance procedure". However, in each of the steps as outlined in the grievance procedure, a mem- ber of management is also required to be present. This has not been the situation when you have been ex- cused from your job to conduct Union business. 'Therefore, this letter is to inform you that, in the fu- ture, when you have been excused from your job on Company time to conduct Union business, you are expected to comply with the labor agreement. In addi- tion, you are expected to perform a reasonable 807 DECISIONS OF NATIONAL LABOR RELATIONS BOARD amount of work within your job classification. Should you fail to comply with this request as well as with the Labor Agreement, the Company will find it necessary to take appropriate disciplinary action. On December 9, Gratz responded, in writing, to Piercy's warning. Gratz stated. in substance, that she felt the charges levied against her were a pretext designed to cloak the Company's obstruction of the settlement of grievances and she denied having violated the collective-bargaining contract. On December 10, at the weekly third step grievance meeting, attended by Piercy and Bryant for the Company and by Gratz and Lee for the Union, plus several union stewards, Gratz read out loud Piercy's warning and her answer. Lee objected to the warning and stated the Union would fight any attempt by Respondent to restrict Gratz from functioning as chief steward and suggested it would be more profitable for the Company to direct its efforts toward resolving the causes of the employees' grievances, rather than in limiting Gratz' ability to resolve the griev- ances. Piercy explained that management kept telling him that no other chief steward had spent so little time working as Gratz and that the Company had to get more work out of Gratz. Respondent's position, expressed by Piercy and Bryant, was that Gratz would have to perform a reasonable amount of work. The Union's position, expressed by Lee and Gratz, was that Gratz should be able to take as long as was necessary to perform her work as the chief steward.4 In addition to expressing the view that Gratz was spend- ing an unreasonable amount of working time working for the Union as its chief steward and not enough working for Respondent as a production employee, Respondent be- lieved Gratz was acting as chief steward in a manner that was not conducive to a harmonious collective-bargaining relationship. Piercy, Respondent's director of industrial re- lations, testified that based upon his long experience as a union official,5 he held the belief that Gratz was not per- forming her duties as chief steward properly. Specifically, Piercy testified that Gratz refused to compromise and that it was this attitude which was responsible for the huge backlog of grievances. He also testified that too many un- meritorious grievances were filed by employees because Gratz failed to discourage them from filing the grievances. The record also establishes that Respondent openly ex- pressed its animosity toward Gratz because of this belief that she was acting in an uncompromising and aggressive manner as chief steward.6 Thus, in the summer of 1976, 4 The description of what was stated at this meeting about the December 9 threat of discipline is based upon a composite of the testimony gisen hs Brant. Gratz. Piercv. and Union Steward Valle Piercy. prior to assuming his position with Respondent In Augusl 1975 had previously been the southern California regional director for the Union's parent organization. the International Longshoremen & Wa;re housemen's Union There are indications in the record thai long before the emplos imeenl of Bryant and Piercy. Respondent's management had voiced its displeasure about Gratz' alleged uncompromising and aggressive attitude while ;iaclg as a steward and acting chief steward. Thus. the arbitrator In his oplilion of November 20. 1973, which ordered the (Company tio reinstate Gratzl. tnlde the following observation: "This hearing spanned foiur days and there accu- mulated a welter of contention and conflicting testimonys concerning disparaging evidence of [Gratz'l unique status as a mecuriail disruptive Personnel Manager Bryant, while discussing a grievance with Gratz at the second step of the grievance procedure, accused Gratz of soliciting the grievance which Bryant said was without merit and also accused Gratz of being "pushy" and "aggressive." 7 And, in late September 1976, Bryant told Gratz that while she had been on vacation he was able to resolve 18 grievances with the acting chief steward, Bouldin, because Bouldin, unlike Gratz, did not act like a representative of the Union but was "neutral." Bryant told Gratz that he likes to work with this type of person. Bryant also stated that management had advised him to watch Gratz because she was "very sharp" and vol- unteered the information that the Company did not like Gratz because she was "pushy" and too "aggressive." Fi- nally, between April and July 1976, when Department Steward Daly informed Bryant that Gratz had refused to authorize Daly to compromise an employee's grievance, Bryant commented: "all right, I am going to get [Gratz] for this." 8 On August 11, 1976, Gratz went to the Company's per- sonnel office and told Charles Maxwell, the Company's safety personnel supervisor, that she wanted to speak with Personnel Manager Bryant about the promotion of Jim Turner, who was a black employee. Gratz stated that Bryant was a "racist" and if Maxwell did not summon Bryant that she would enter his office unannounced. 9 Max- well communicated this to Bryant, who promptly left his office and spoke with Gratz in the personnel office. Those present in the area were two black employment applicants, Maxwell, and several employees at work. Gratz told Bryant she wanted to discuss Turner. Bryant answered that he had asked Maxwell to interview Turner to determine whether he was qualified for the job and after the interview Bryant would be in a position to discuss the matter. Gratz called Bryant a "racist." Bryant stated he did not intend to take that kind of a comment. Gratz again asserted that Bryant was a "racist" and told him that Turner should be given a trial period. Bryant indicated that Gratz should return to work and pointed his finger in the general direc- tion of Gratz' work station. Gratz told him not to point his finger at her. Bryant warned that if Gratz did not return to work he would fire her. Gratz invited Bryant to fire her and then walked out of the personnel office commenting that she did not have to listen to Bryant's stupid remarks.'w i nlonl Ste ward vs hose (conduct as an investigator and processor of griev- ances. unlike other stewards. was thoroughly exasperating toi management." 7 here is no evidence that (iratz solicited this grievance. To the contrary. the record reveals she did not solicit it. , In response to a leading question. Daly dated this incident as having rccurred in "July or August" 1976 Bryant testified it took place 2 or 3 months after f ebruarN 1976. the date he started to work for the Company. Ihe record indicaites hilt the grievance involved was filed either dunng the period Respondent had failed to post a promotion roster as required by the ctunirlct or shordll after it wa;s poste'. The roster was supposed to hase been posted in April 1976 aind was not posted until late June 1976. Accord- ingls I halie concluded that the incident described above occurred between April and July 1976 Maxell and (Gratz Ire blalck Brsant is while. i Bryant testified that this incident look place in August 1976. Gratz' log Indicates that the exact date was August 11. 1976. Gratz did not testify about the incident; hence. the findings set forth in the text are based upon a composite of Brant's and Maxwell's t.llimony to the extent their testi- mrnony is not inconsistent I have rejected Maxwell's testimony that Gratz called Branilt a "racist pig." rather than simply a "racist." inasmuch as 808 MAX FACTOR & CO. Bryant, who was upset over this incident, was inclined to suspend Gratz but was talked out of doing this by the Union's business representative, John Lee, who convinced him that a verbal reprimand was the best way to handle the situation. Accordingly, at the next weekly third step griev- ance meeting, both Bryant and Lee spoke to Gratz about the incident. Lee told her that the Union did not condone her conduct and Bryant warned that similar conduct in the future would result in disciplinary action, possibly Gratz' discharge. On November 10, 1976, Gratz filed the following griev- ance against Respondent: Bryant - did barge into the Hawthorne cafeteria while the Chief Steward was legitimately engaged in conver- sation with [a company representative] and threatened to suspend her if she conducted any conversation with any members of personnel department . . . [Bryantl hollered and made overt accusations which he had not investigated. Bryant typically reacts personally to grievances and other complaints from union members that have prevented the meaningful handling of grie- vances or other issues requiring sophisticated indul- gence. Request the company take immediate measures to restrain Bryant from allowing his feelings to inter- vene with the grievance procedure and the Chief Steward's rights and responsibilities. The circumstances surrounding this grievance can be stat- ed briefly. The Union and Respondent were joint partici- pants in the Red Cross' blood bank campaign. The Re- spondent's nurse administered the program for the Company. In response to questions posed by several em- ployees, pertaining to their rights as blood donors to call upon the blood bank for blood for members of their fami- lies, Gratz went to the nurse for information. There is no evidence that Gratz spoke to the nurse in an abusive man- ner or otherwise acted improperly. Bryant testified that the nurse, who had a heart condition, came to him after her conversation with Gratz and stated she was going home as she was experiencing pains in her chest, explaining that she had discussed the blood bank program with Gratz who had upset her. It was at this point that Bryant, on November 10, 1976, confronted Gratz in the Company's cafeteria where she was having a discussion with another company official about grievances. Bryant abruptly interrupted this discussion and in a loud and belligerent tone of voice ac- cused Gratz of arguing with the company nurse which had resulted in a heart attack and that the nurse intended to sue the Company. Bryant, who had not seen fit to question Gratz about her version of what had occurred, declared that he intended to "fix" or "get" Bryant and forbade her from talking to the employees in the personnel department who work under his immediate supervision without his per- mission. Bryant filed the aforesaid grievance and at a grievance meeting held December 16, 1976. Bryant apolo- gized to Gratz and admitted that he had handled the mat- Bryant, to whom the remark was directed. attributes the epithet "racist" to Gratz. ter poorly and told Gratz she did not need his permission to talk to the employees who worked in personnel. 2. The events surrounding Gratz' 3-day suspension Gratz began her workday on Monday, December 27, 1976. by going to Bryant's office and asking for certain information which the Company, in connection with a pending arbitration proceeding, previously had agreed to furnish the Union.'' Bryant refused to honor the request, stating that the employees in personnel did not have suffi- cient time that day to compile the information. Gratz stat- ed that she would get the information herself by visiting the employees who were employed in the particular depart- ment that was involved in the arbitration. Bryant stated she could not do this as it constituted preparing for arbitration on company time, a right he said she did not have, and also told Gratz that the Company had agreed to furnish the information to the Union and would eventually do so. Gratz left, but not before declaring she did not intend to take any more "crap" from Bryant and told Bryant to "get off my ass." 12 The next day, December 28, Gratz filed a contractual grievance against Respondent over this inci- dent charging Bryant. in substance, with having "denied the Chief Steward the right to get material necessary for a scheduled arbitration" and asked that Bryant refrain from "making personal judgment and restricting the Union." 13 During the morning of December 27. 1976, approxi- mately 2 hours after Bryant's refusal to furnish information to Gratz or to allow Gratz to visit the employees to get the information, Bryant called Gratz to his office where, in the presence of Union Steward Daly and Safety Personnel Manager Maxwell, Bryant handed Gratz an "Employee Warning Notice" signed by Piercy, which reads as fol- lows: 14 In my letter to you dated December 9. 1976, you were informed you were expected to perform a reason- able amount of work, in addition to your Chief Stew- ard responsibilities. From December 9 through De- 1 The description of what occurred during this encounter is based upon the credible testimony of Bryant who. in connection with what was said during this conversation. impressed me as a more credible witness than Gratz. I have also rejected Gratz' testimony, given in connection with this conversation. that the Respondent had previously specifically agreed to turn over the requested information to Gratz. Bryant credibly testified that the agreement was that the Compans's attorney would furnish the information to the Union's attorney I find it difficult to believe that, if there was an agreement to give the information to Gramt she would not have reminded Bryant abtxut it. Gratz admittedly did not mention such an agreement when she spoke with Bryant nor did she refer to it in the grievance she later filed over this incident. I: In suspending Gratz later during the day. the record reveals that Re- spondent did not rely upon Gratz' outburst at this meeting as a reason for the suspension. Accordingly. in discu sing the legality of the suspension infra, I have not referred to Gratz' conduct at this meeting, The grievance is dated December 27. 1976: however. Gratz testified that she did not prepare the gnevance until after work on December 27 at home Accordingly. I find Gratz did not transmit this grievance to the Com- pans until December 28 at the earliest. Bryant crediblv testified that the decision to issue this warning had been made by Bryant and Piercy the previous week. but the warning was not Issued until Monday. December 27. )hcause thev wanted to wait until after Christmas before giseing it to Gratz 809 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cember 22, 1976, you have worked 5 hours.l5 This is totally unacceptable. Further disregard of my December 9, 1976, letter will result in further disciplinary action up to and in- cluding your termination. The pertinent events which occurred at this meeting can be briefly stated. Bryant challenged the accuracy of the warn- ing. Lee, the union business representative, was told about the warning and participated in the conversation over the office phone's squawk box.l6 Gratz challenged the warning and told Lee she would not sign it. Lee advised Gratz to sign it and assured her that the Union would file a griev- ance challenging its validity. Gratz, in response, directed a four letter word to Lee and told Lee she would take care of the warning herself by filing charges with the Board. Be- fore leaving the office, Gratz told Bryant that she did not intend to let Bryant use her "to kiss the ass" of Wurm- brand, the Company's vice president and director of manu- facturing.t 7 Bryant stated that she had no right to talk that way to him and that he intended to teach her she was not in charge of the Company. As Gratz left Bryant's office and entered the personnel office, she stated that Bryant was a "big Phoney" and a "little twerp." 18 Later that day, at approximately 4 p.m., Gratz was sum- moned to Bryant's office where, in the presence of Daly and Maxwell, Bryant gave her another "Employee Warn- ing Notice" signed by Bryant which informed her she was suspended for 3 days.'9 Despite Bryant's repeated efforts to convince Gratz to acknowledge receipt of the notice by signing it, Gratz refused. The warning notice states that Gratz was being suspended because of a "violation of plant rule #39 - use of profane and abusive language." Under the portion of the notice entitled "remarks" Bryant had written the following explanation: During the working days from December 9 through December 22. Gratz spent all but 5 hours of her work lime performing union business as chief steward. She spent approximately 99 percent of her work time during this period performing union business as chief steward. 16 There is a dispute whether Lee participated in this meeting or in the one held later where Gratz was suspended. Gratz and Daly testified that Lee spoke at the later meeting, whereas Bryant and Maxwell testified he spoke at this one. The person who could have resolved this conflict. Lee. was not questioned by the General Counsel concerning this matter. 7 The record reveals that employees had the impression that Bryant took his orders from Wurmbrand. 18 The four persons present in Bryant's office testified about what took place. Maxwell impressed me as the most credible and reliable of the four witnesses. Accordingly. the description of the meeting, which has been set forth in the text, is based upon Maxwell's testimony and the testimony of Gratz, Bryant. and Daly only to the extent that their versions are not incon- sistent with Maxwell's. I recognize that the written statement of this meeting prepared by Bryant and Maxwell on December 27, shortly after the conclu- sion of the meeting, does not state Gratz called Bryant a "phoney" and that Bryant failed to testify Gratz uttered this remark However. Maxwell im- pressed me with his sincerity when he testified that Gratz used this term. Moreover, he was corroborated by Marian La Monte. who testified that from her office. adjacent to Bryant's, she overheard Gratz. as Gratz left Bryant's office. state: "You [referring to Bryantl are a little twerp. You are nothing but a big phoney." Bryant and Gratz testified about what was said at this meeting. Of the two. Bryant. in connection with this meeting, impressed me as the more credible witness. Accordingly. the description of this meeting is based upon his testimony. Specifically. I reject Gratz' testimony that Lee participated in this meeting. As indicated previously, the General Counsel failed to call Lee to testify concerning this disputed matter, and Maxwell convincingls testi- fied that Lee was involved in the earlier meeting rather than this one On 12/27/76 at approximately 11:20 a.m. you were issued a written warning. As a result of this written warning, you aggrevated the situation by having a temper tantrum using profane and abusive language in the presence of my office staff as well as R. Daly and Chuck Maxwell. This is the second occurrence of a similar action.20 You, as Chief Steward, should set an example rather than to act in this manner. As a result of your action, you are being given a three day disci- plinary layoff effective 12/28/76 through 12/30/76 Any further incidents of this nature will result in further disciplinary action up to and including termi- nation. On December 28, 1976, the Union filed grievances against Respondent challenging, among other things, the validity of Gratz' suspension. These grievances were dis- cussed by the parties at a third step grievance meeting held on or about January 7, 1977. Present for Respondent were Bryant and Piercy, and for the Union there were Lee, Gratz, and several union stewards. When Lee asked man- agement to state the facts which resulted in Gratz' suspen- sion, it is undisputed that Bryant responded Gratz was "too pushy" and had a "bad attitude." In explaining what was wrong with Gratz' attitude, Bryant told the union rep- resentatives that when Gratz entered his office, she would normally say, "you [referring to Bryant] have a problem." whereas she should say "we have a problem." Bryant told Gratz that until her "attitude" changed Gratz would con- tinue "to have a problem." On January 10, 1977, Lee wrote Piercy a letter concern- ing the subject, "chief steward and Union business" which reads as follows: The Union, concerned with the suspension of our Chief Steward during the discussion of a contractual matter, again requests a meeting with the company to discuss an objective and practical solution to the prob- lem that stems from the great number of unresolved grievances and arbitration before us. The company cannot expect the Union to abandon its right and obligation under our collective bargaining agreement, nor does the Union desire to spend more time than is necessary in processing grievances on a day to day basis. It is requested that the parties meet soon so that our Chief Steward not be placed in further jeopardy. Respondent did not answer this communication. 3. The events surrounding Gratz' discharge In January 1977, after Gratz' return to work from her suspension, Piercy at either a second step or third step grievance meeting, complained that Gratz was spending too much time on union business and not enough time performing production work. Piercy stated that Gratz should spent at least 50 percent of her work time perform- ing production work. Piercy also stated that he had re- 11 I he record reveals that the 'second occurrence" refers to the episode described Iupra. wherein (;rat, on August 11. 1976. called Bryant a "racist." 810 MAX FACTOR & CO. ceived numerous complaints from workers, supervision, and top management about Gratz' failure to perform pro- duction work and warned that if he allowed this state of affairs to continue, management would discharge him as well as Gratz. Gratz' reply, in substance, was that she was not acting improperly because she was obligated, as chief steward, to administer the collective-bargaining contract and, during the time she was not doing production work, she was handling grievances and engaged in other union business.2 Also, early in January 1977, Bryant told Union Steward Bouldin that in dealing with Gratz "he could not make any headway. Him and Her could not see eye to eye. Every time they got together it was always nothing but a big argu- ment." On February 1, 1977, Respondent received a copy of a grievance filed jointly by Gratz and Union Steward Wil- liams which charged Respondent with violating the collec- tive-bargaining contract in that: Management is deliberately and arbitrarily not hear- ing grievances in the second step. There are currently over 200 grievances in the second step, approximately 50% have never been heard and no response on many more. Request company comply with contract. In fact, there were substantially more than 200 grievances clogging the contractual grievance procedure at the second and third steps, and it is undisputed that one of the prob- lems which had contributed to the parties' inability to deal with these grievances was Bryant's failure to attend second step grievance meetings and Piercy's failure to attend third step meetings as required by the contract.22 These circum- stances had prompted Gratz to write to in October 1976 Piercy complaining that the second and third steps of the grievance procedure had been frustrated to the point where the normal processing of grievances had reached a stand- still. Gratz explained to Piercy that this situation had arisen in part because Bryant was not satisfying the requirements of the second step of the grievance procedure which re- quired that Bryant, as personnel manager, meet with the Union to resolve grievances. Gratz asked for Piercy's help in resolving the problem. When Piercy failed to reply, the Union filed unfair labor practice charges with the Board concerning Piercy's refusal to meet with the Union at the third step of the grievance procedure to discuss grievances. The charge was apparently settled informally. Returning to the aforesaid grievance filed by Gratz on February 1, 1977, the incident which triggered the filing of this grievance was Bryant's failure to attend a second step grievance meeting which was scheduled for February 1, 1977, without advis- 21 Piercy. Gratz, and Union Steward Bushnell testified about the above- described conversation. Their testimony does not conflict in any significant respect except for the date of the meeting. Accordingly, the above descrip- tion is based upon a synthesis of their testimony. Regarding the date. Bush- nell placed the meeting as having taken place in January 1977. following Gratz' return to work. Gratz testified it occurred in the middle of November 1976, whereas Piercy was silent on the subject. Since Bushnell impressed me as the most reliable of the three witnesses. I have dated it in accordance with his recollection. 22 The record establishes that Piercy, whose presence is necessary at third step grievance meetings, failed to attend such meetings due to other busi- ness commitments. ing Gratz that he would be unable to attend. On February I, when Gratz attempted to reschedule the meeting, Bryant put off discussing the matter. Later on February I, at approximately 10:15 a.m., Gratz went to the Company's warehouse to speak to Union Stew- ards Bouldin and Westbrook. Gratz and Bryant had re- cently agreed to schedule a special second step grievance meeting to discuss 40 grievances which had been filed by warehouse employees. It was for the purpose of determin- ing whether some of these grievances had become moot and to secure certain information pertaining to 15 of the grievances that Gratz wanted to talk with the two ware- house department stewards. She asked Westbrook's fore- man, Moran, for permission to speak to him about the grievances. Moran, after phoning the personnel depart- ment told Gratz that "personnel" said she could speak to Westbrook only in the presence of management. Gratz ob- jected. She phoned Bryant, who stated that Moran was correct and that Gratz could speak to Westbrook only in the presence of a member of management. Gratz chal- lenged Bryant's assertion that this restriction was embod- ied in the collective-bargaining contract. Bryant conceded that "maybe it is not in the contract," but stated that Piercy's December 9, 1976, letter to Gratz contained the restriction. Gratz, accepting the restriction, asked to speak to Westbrook. Bryant then took the position she could only visit Westbrook on her own time. Gratz indicated she was on a break period. Bryant then took the position that the visit had to take place during Westbrook's break period. This was impossible since Westbrook and Gratz took dif- ferent break periods. At this point, frustrated in her effort to speak with Westbrook, Gratz reported the matter to union business respresentative Lee.23 Lee phoned Bryant and, as Bryant testified, Bryant told him "our position was that [Gratz] could participate in grievance resolutions with supervisors, but as far as investi- gations, she could not do it." Lee objected. Bryant told him to speak to Piercy. Lee phoned Piercy and told him Gratz had "a number of grievances in the warehouse," and wanted to talk with Westbrook about them. Piercy asked how long it would take. Lee stated he did not know and was asking that Gratz be allowed to take whatever time was necessary to inter- view Westbrook about the grievances. Piercy answered, "okay, I will call Bryant." 2 U Later that day, Bryant spoke to Gratz and advised her that the restriction that she could speak to Westbrook only in the presence of a member of management had been lift- ed and she could have 10 minutes to go into the warehouse and speak with Westbrook. Bryant stated that she would need probably anywhere from 20 to 30 minutes, explaining to Bryant she had to discuss 15 grievances with Westbrook and asked if Brant could do this in only 10 minutes. When Bryant indicated that he (Bryant) would be unable to do what Gratz had to do in 10 minutes, Gratz asked why Bryant only allowed her 10 minutes. Bryant answered that 2s The description of what occurred between Gratz. Moran, and Bryant, as set forth above, is based on the credible and uncontradicted testimony of Gratz. 24 Lee and Piercy testified about this conversation. Lee impressed me as the more credible witness. Accordingly. I have credited his version. 811 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Piercy said Gratz was to be allowed 10 minutes and Gratz could either take this amount of time or leave it. Gratz declined the offer, stating she could not accomplish any- thing in 10 minutes.25 Gratz the;l phoned Lee and advised him that she had been told by Bryant she had only 10 minutes to speak with Westbrook which was insufficient time to discuss the griev- ances. Lee suggested that she take the 10 minutes and if more time was needed she then speak with Bryant again and tell him she needed more time. Gratz rejected this sug- gestion. declaring "they are playing games with me. They can stuff it." Lee said he would talk to Bryant and meet Gratz the next morning at the plant. Lee phoned Bryant and asked why Gratz had been al- lowed only 10 minutes to speak with Westbrook. Bryant answered that those were Piercy's instructions. Lee told him that considering the number of grievances involved 10 minutes was not sufficient time. Bryant replied "that is what Piercy said, ten minutes." Lee asked it it was a "rigid" 10 minutes. Bryant stated that "if [Gratz] needed more time, we might extend it." Lee advised Bryant he would visit the plant the next day and that the Union intended to go into the warehouse and investigate the grievances and take whatever time was necessary to investigate them. Respondent's initial refusal to allow Gratz to speak with Union Steward Westbrook outside of the presence of man- agement and its later refusal to allow her to speak with him for more than 10 minutes triggered the filing of two con- tractual grievances by Gratz against the Company. One of the grievances, which was delivered to Respondent on Feb- ruary I, charged that Respondent was arbitrarily and ca- priciously denying permission to the warehouse stewards to take up union business with the chief steward and asked that the Company stop harassing the Union's stewards and the chief steward and to comply with the contract. The second grievance, which was delivered to the Company February 2, charged Respondent with attempting to im- pose unilateral restriction upon the chief steward in viola- tion of past practices and the contract, and asked that the Company cease violating the contract and deal with the union in good faith. On February 1, 1977, at the conclusion of her shift, the first shift, Gratz remained in the plant's cafeteria sitting at a table eating with several employees, two of whom were second shift union stewards. Bryant, as he left the plant, observed this. The next morning, February 2, Bryant inter- cepted Gratz as she was on her way to punch the timeclock and stated he wanted to talk with her.26 Gratz stated she 25 Bryant and Gratz testified about this conversation. Gratz impressed me as the more credible witness. Accordingly, I have credited her version. I specifically reject Bryant's testimony that he told Gratz she could take "somewhere around 10 minutes" or "approximately 10 minutes" to talk with Westbrook and that, in reply, Gratz said she would take all the time she needed. I recognize Piercy testified that on February I. after talking with Lee, he instructed Bryant that Gratz could take 10 minutes to talk with Westbrook but, if necessary, for Bryant to allow her to take 1. 2. or 3 minutes more. In this regard. Bryant initially did not corroborate, as he testified Piercy "told me to go ahead and give [Gratz] 10 minutes to look into these grievances in the warehouse." Later, Bryant testified that Piercy used the phrase "approximately 10 minutes." In any event, whatever Piercy told Bryant, I am persuaded that Bryant in effect told Gratz that she had only 10 minutes to visit Westbrook and discuss the grievances. Bryant testified that his reason for wanting to talk with Gratz on Feb- would return as soon as she punched in and checked into her department. She punched the timeclock and was on the way into her department when she approached union busi- ness representative Lee, who was talking with two union stewards. As Gratz approached, the two stewards left and Lee started to talk to her about the warehouse grievances. Gratz cut him short, stating she could not talk since she had not as yet reported to her department for work. Bryant, who had come into the department looking for Gratz, joined them. Bryant stated he understood that Gratz had conducted an illegal union meeting the previous eve- ning on the second shift. Gratz asked "what?" Bryant in a loud tone of voice stated: "What's this I understand about you conducting an illegal Union meeting last night on the night shift." Gratz denied this and the conversation be- came heated. Union Steward Williams, while passing the area, observed the heated nature of the conversation so he joined the group. Bryant continued to accuse Gratz of holding an illegal union meeting in the cafeteria and inter- rogated her about this. Gratz repeatedly denied she had been doing anything improper. She explained to Bryant she was eating in the cafeteria while waiting for a ride home and that the two second-shift stewards who were sit- ting with her had received permission from their supervis- ors to be there. Bryant ignored this explanation and insist- ed that Gratz had been conducting an illegal union meeting. By this time both Gratz and Bryant had com- pletely lost control over their tempers and, as Williams tes- tified, the conversation was getting "salty." Bryant suggest- ed that they continue the conversation away from the floor of the packaging department, where they were standing, and move to a nearby hallway. There, Bryant resumed in- terrogating Gratz about her presence in the cafeteria the previous day after her shift had ended and continued to accuse her of holding an illegal union meeting. Gratz con- tinued to deny the accusation. Lee pointed out that he had not come to the plant to listen to Bryant and Gratz argue, but to find out about the warehouse grievances that Gratz wanted to investigate. Bryant stated that Gratz had told him that she intended to take all of the time she needed to investigate the grievances. Gratz responded: "wait a min- ute that is a lie. I never said that. I said I needed maybe 15 minutes, maybe 20 minutes, maybe a half of hour." Bryant repeated that Gratz had told him she intended to take all of the time she needed to investigate the grievances and com- mented that no chief steward was going to operate that way as the chief steward did not own the Company. Gratz reiterated that Bryant was a liar. Bryant warned that if Gratz called him a liar once more, she would be either suspended or fired. Gratz, nonetheless, stated: "Bryant you are lying, I never said that." Lee reiterated that he had come to the plant to discuss the problem concerning the warehouse grievances and not to listen to an argument be- tween Gratz and Bryant. Gratz stated she wanted to dis- cuss the problem concerning the warehouse grievances and ruary 2 was to determine if she had been holding an illegal union meeting in the cafeteria the previous evening. Respondent makes no contention that Gratz held an illegal union meeting or otherwise acted improperly by being in the cafeteria. In any event, the record does not support an inference that Gratz was conducting an illegal meeting or was otherwise acting improper- ly. 812 MAX FACTOR & CO. asked Lee to get Bryant "off of her back" and to get him to stop accusing her of holding an illegal union meeting. Lee asked Bryant to talk with him and the two moved off to one side. In the meantime Gratz phoned Union Steward Bushnell and spoke to him for about 10 minutes. By the time Gratz finished her phone conversation, Bryant and Lee had finished their conversation and were waiting for Gratz. As Gratz completed her phone conversation, Bryant, who was standing with Lee and Williams about 10 feet from where Gratz was using the phone, pointed to the floor with his finger and told Gratz, "you come here this instant . . . did you hear me. You come here." Gratz re- plied that she was not a dog and if Bryant wanted her to come to him to say "please." Bryant said "please" and Gratz complied, whereupon Bryant once again brought up the subject of the illegal union meeting and asked why Gratz had held an illegal union meeting. Gratz repeatedly told him there had been no such meeting so she could not answer questions about something that had not taken place. Williams observed that Gratz had become extremely upset, so he interrupted and told Gratz to calm down and to go back to work. Williams told Bryant he was telling Gratz not to answer his questions but to return to work. Gratz left the area and went to work.27 On February 2, shortly after the above-described episode between Bryant and Gratz, a meeting was held at the plant at approximately 10 a.m. between Percy and Bryant for the Respondent, and Lee, Valle, and Williams for the Union. As Bryant testified, the incident between Gratz and Bryant which had occurred shortly before was "discussed some- what." However, there was no mention or suggestion that Gratz would be disciplined on account of what had taken place. Also discussed was whether there was some way the parties could do a better job in trying to resolve the large number of outstanding grievances. During the discussion about this topic, Williams made the observation that Bryant and Gratz could not seem to establish a good work- ing relationship. Bryant stated he had tried his best to es- tablish a relationship with Gratz but that she was a "hard person to work with" because "she was really hard to get along with and she was really pushy." On February 3, Gratz instead of reporting for work went to the Borad's offices to file charges against the Respon- dent. She received a telegram that day from the Respon- dent notifying her she was discharged effective February 3 "for violation of plant rule 39 (uwe of abusive language) plant rule 19 (insubordination) and failure to perform a reasonable amount of work." The same day Bryant filled out an "Employee Warning Notice" for Gratz in which he stated Gratz was discharged "for violation of plant rule #39, plant rule #19,28 and failure to perform a reasonable amount of work." In the part of the notice set aside for 27 Gratz. Williams. and Bryant testified about the events which occurred on the morning of February 2 between Bryant and Gratz. Williams and Gratz impressed me as sincere and reliable witnesses when testifying about this episode. whereas Bryant did not. Accordingly. the above description of what occurred the morning of February 2 is based upon a composite of Gratz' and Williams' testimony. 28 Rule 19 states. "employees shall not be insubordinate or refuse to fol- low management's . orders" Rule 39 states. "employees shall not use profane or abusive language." "remarks" Bryant wrote the following explanation for Gratz' discharge: On February 2, 1977, mn a conversation with J. Bryant. ..you used abusive language in the presence of several employees. This is the same violation for which you were suspended on December 28 through December 30. 1976. In addition, during said incident of February 2, 1977, you refused to follow instructions given by J. Bryant. You have been advised by memo dated December 9, 1976, which Piercy gave you about your not per- forming a reasonable amount of work. You received a written warning on December 27. 1976, regarding this matter. Since then you have been verbally informed on several occasions your work record has not satisfactorily improved. B. Ultimate Findings and Discussion I. Respondent offers Gratz economic benefits The complaint alleges Respondent violated Section 8(aX I) of the Act by offering benefits to Gratz for refrain- ing from engaging in union activities. The facts pertinent to this allegation can be stated briefly. During October or November 1976, Gratz was called into Bryant's office where Bryant and Piercy spoke to her about their feeling that she was spending too much time on union business and not enough time performing produc- tion work. During the conversation Piercy told Gratz she was an intelligent person who could do "other things" with her life and pointed out that Union Business Representa- tives Yabarra and Lee did not like her and would not sup- port the positions she took as chief steward. Piercy asked, "why do you stay?" Gratz answered that she believed in what she was doing for the Union. Bryant expressed the opinion that Gratz was a very intelligent person, with a bright future, who certainly could better herself and asked if she would consider working at another job. Piercy asked if Gratz would consider working for the Company in a management position. Gratz replied in the negative. Piercy then asked if she would ever consider returning to law school.2 9 Gratz answered in the negative, stating she could not afford to financially. Piercy asked "what if we gave you the money?" Gratz asked whether this meant she would have to give up the job as the Union's chief steward. Piervy smiled and answered in the affirmative. Gratz replied "thank you" and stated she would find a way to pay her own way if she decided to return to law school.30 (ir.i;z had previously attended law chisLl. t0 I he description of what took place at this meeting is based upon (;rat,' credible testilmonN Pierco testified ahbut r completelI different version of the portion of Ihe meeting which deals with the discussion about Gratz returning to law school and generally denied having ever offered Gratz aJjoh with management or having a conversation with her concerning such an offer He did not deny CGratz' lestimons concerning the olher portions of the conversation described above. Brsant could only vaguely remember the portion of the conversation which dealt with la. school and was unable to remember anything else that was said at this meeting. When Gratz testified about this meeting. in bearing and deme;:'or. she impressed me as a more credible witness than either Piercv or Bryant I have carefulls cmnsidered , ('urinued 813 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Based upon the foregoing, I find that in October or No- vember 1976, Piercy and Bryant, in an effort to dissuade Gratz from continuing to serve as the Union's chief stew- ard, told Gratz that the union representatives did not like her and would not support her. Then, in a further effort to persuade her to give up the position as chief steward, they promised her economic benefits in the form of a better position with the Company and money to return to law school. 3' By engaging in this conduct the Respondent, as alleged in the complaint, violated Section 8(a)(1) of the Act. 2. Respondent issues Gratz disciplinary warnings and discharges her The complaint alleges Respondent violated Section 8(a)(l) and (3) of the Act by suspending Gratz for 3 days on December 27, 1976, and discharging her on February 3, 1977. The alleged misconduct which triggered the suspen- sion arose out of the earlier disciplinary warnings given Gratz December 9 and December 27, 1976, which, in sub- stance, threatened her with discipline if she did not spend a reasonable amount of work time performing production work rather than union business. Similarly, the major fac- tor which led to Gratz' discharge, Piercy testified, was her failure to perform a reasonable amount of production work. Respondent takes the position that its motivation in issu- ing the two disciplinary warnings was a desire to obtain a reasonable amount of work from Gratz and that Gratz' discharge was substantially motivated for the same reason. General Counsel and Charging Party take the position that the real reason behind the disciplinary warnings and dis- charge was Gratz' devoted and energetic observance of her duties as chief steward. In my opinion, the General Coun- sel's and Charging Party's position has merit. In conclud- ing that Respondent's reliance upon Gratz' failure to per- form a reasonable amount of work was utilized as a pretext to cloak a discriminatory motive, I was persuaded by these considerations :32 a. Gratz pursued an active and aggressive campaign of pol- icing the collective-bargaining contract which angered Re- was necessary for her, in one respect. to use the affidavit she submitted to the Board to refresh her recollection: nonetheless. inasmuch as she im- pressed me as a sincere witness trying to accurately recall what was stated during this particular meeting, I have credited her version in its entirety as refreshed by the affidavit. 3' In view of Respondent's animosity toward Gratz because of her un- compromising and aggressive performance as chief steward infra. I am of the opinion that the offer of economic benefits to Gratz was motivated by this animus. 32 In view of my conclusion that Gratz was threatened with discipline and discharged for discriminatory reasons in violation of Sec. 8(a)(3) and (I) of the Act. I have not considered whether, under the circumstances iof this case, the threats to discipline Gratz and her discharge for spending an un- reasonable amount of work time performing as chief steward constitute a violation of Sec. 8(a)(1) of the Act. regardless of Respondent's motivation. Compare Warner Gear Division, Borg-Warner Corporation. 102 NLRB 1223 (1953). with Cameron Iron Works, Inc., 194 NLRB 168 (1971), and Northeast Constructors. Division of Cines Corp., 198 NLRB 846 (1972). spondent. In particular, Respondent's officials were dis- pleased with the aggressive and uncompromising manner in which she pressed employees' grievances. The record establishes that Respondent was concerned about the num- erous unresolved grievances at the second and third steps of the grievance procedure and blamed Gratz for this situa- tion, believing that she was not performing as chief steward in a manner which was conducive to a harmonious collec- tive-bargaining relationship. Specifically, Piercy felt Gratz was failing to discourage employees from filing unmeritori- ous grievances and that after grievances were filed she pur- sued them in such an uncompromising fashion that it was impossible for Respondent to settle any, thus resulting in a huge backlog of grievances. Also, it is undisputed that Respondent openly expressed its hostility toward Gratz because of what it thought was her aggressive and uncompromising performance as chief steward. This is demonstrated by the following conduct: (1) In the summer of 1976, Bryant accused Gratz of soli- citing a grievance and, in the context of their discussion about this grievance, accused Gratz of being "pushy" and "aggressive." (2) During the late spring or summer of 1976, Bryant told Union Steward Daly he intended to "get" Gratz for refusing to compromise about a grievance. (3) In September 1976, Bryant told Gratz that in Gratz' absence on vacation he was able to resolve a substantial number of grievances with Acting Chief Steward Bouldin, because Bouldin, unlike Gratz, was "neutral" and did not act like a representative of the Union. Bryant told Gratz that he preferred to work with this type of a person. Bryant also told Gratz that management had instructed him to watch her because she was "very sharp" and that manage- ment did not like her because she was "pushy" and "ag- gressive." (4) In November 1976, after Gratz spoke to the Com- pany's nurse on behalf of several employees, Bryant, with- out securing Gratz' version of her conversation with the nurse, created a scene in the Company's cafeteria by loudly accusing Gratz of causing the nurse to have a heart attack and threatened "to get" Gratz.3 (5) On December 9, 1976, Piercy, in the disciplinary warning he issued Gratz, criticized her for, among other things, filing "multiple grievances on the same subject" which, Piercy stated in his warning, was "not in the best interest of the Union or the Company." (6) In January 1977, Bryant told Union Steward Boul- din that he was unable to make any "headway" in dealing with Gratz because they did not see "eye to eye." (7) On February 2, 1977, during a discussion between union and company representatives about how they could resolve the numerous unresolved grievances, Bryant infer- red that Gratz was the person responsible for the backlog of grievances, explaining to the union representatives that Gratz was a difficult person to work with because she was "really pushy." In sum, Respondent, during all the time material in this case, was extremely hostile toward Gratz because of her : There is no evidence that Gratz, because of improper conduct, was responsible for the nurse's heart attack or that Bryant should have reason- ably believed that this was the case. 814 MAX FACTOR & CO. performance as chief steward and did not hesitate to open- ly express its hostility. b. Respondent did not merely voice its displeasure about Gratz' performance as chief steward, but attempted to con- vince Gratz to give up the position by explaining that her superiors in the Union did not like her and would not sup- port her and, in violation of Section 8(a)(1) of the Act, offered Gratz a better position with the Company or money to return to law school if she ceased serving as chief steward. c. On January 10, 1977, Union Business Representative Lee, because of his concern that Respondent would carry out its threats of December 9 and December 27 and disci- pline Gratz for not performing a reasonable amount of work, wrote a letter to Piercy, Respondent's director of industrial relations, in which Lee expressed this concern and asked for a meeting for the purpose of reaching "an objective and practical solution" to the problem of Gratz performing her duties as chief steward during working hours. Lee requested that the meeting take place "soon" so that Gratz' position with the Company would not be placed "in further jeopardy." It would seem that if Respon- dent were genuinely concerned about Gratz' excessive use of company time to perform her tasks as chief steward, this letter would have been answered and a meeting scheduled. However, the letter was ignored. I am of the opinion that Respondent's failure to respond is further evidence that its concern about Gratz' excessive use of work time to per- form as chief steward was a pretext. d. On or about December 28, 1976, the Union's grievance contesting the validity of Gratz' suspension was discussed at a grievance meeting. During the discussion, the Union's representatives asked Bryant and Piercy to explain the facts which resulted in Gratz' suspension. It would seem that if Respondent had legitimate reasons for suspending Gratz, Piercy or Bryant would have explained them to the Union's representatives. Bryant answered the inquiry, how- ever, by stating that Gratz was "too pushy" and had a "bad attitude." Then, in explaining to the Union's representa- tives what was wrong with Gratz' attitude, Bryant stated that when Gratz entered his office with a grievance she normally said, "you [referring to Bryant] have a problem" instead of saying "we have a problem." This explanation of the reason for Gratz' suspension, viewed in the context of Bryant's previous complaints that Gratz performed as chief steward in an aggressive manner rather than as a "neutral," is tantamount to an admission that Gratz was suspended because of the way she performed her duties as chief stew- ard. e. The record establishes that Respondent discriminated against Gratz in its treatment of her as chief steward. Re- spondent imposed more stringent conditions upon Gratz' activities as chief steward than were imposed upon other chief stewards. Piercy's disciplinary warning of December 9 indicated that Gratz was not allowed to investigate griev- ances during working time or to conduct union business during working time outside of the presence of manage- ment. The penultimate paragraph of the December 9 disci- plinary warning specifically threatened Gratz with "appro- priate disciplinary action" if she failed to "comply with the labor agreement" and conducted union business outside of the presence of a member of management. Thereafter, on February 1, 1977, when Gratz attempted to investigate the warehouse grievances, Bryant initially refused to allow Gratz to investigate them on company time or outside of the presence of management. The record establishes, with- out contradiction, that other employees who served as chief steward, before and after Gratz, were allowed to in- vestigate grievances on company time and were allowed to engage in union business on company time outside of the presence of management. Likewise, Respondent has al- lowed Gratz' successor as chief steward, Bouldin, to spend more work time on union business than it was prepared to allow Gratz. In 1976 Bryant told the Union's representa- tives that Respondent was demanding Gratz spend 50 per- cent of her working hours doing production work and in January 1977, Piercy informed the Union's representatives that Respondent was demanding Gratz spend at least 50 percent of her working hours performing production work. However, Gratz' successor as chief steward, Bouldin. whom Bryant. as described supra, enjoys working with since he is "neutral," has been allowed to spend 30 percent of his working hours performing production work and the remainder as chief steward. Respondent offered no expla- nation for this disparate treatment. Under the circumstanc- es. it is a fair inference that Respondent's disparate treat- ment of Gratz was motivated by its hostility toward her because of her performance as chief steward and is further evidence that the disciplinary warnings and Gratz' dis- charge were discriminatorily motivated. In view of the foregoing circumstances, (a) through (e) supra, I find that Gratz' failure to perform a reasonable amount of production work was not the real reason for the disciplinary warnings issued to Gratz December 9 and 27. 1976, or for her discharge.' Rather, the underlying and motivating reason for the disciplinary warnings and the discharge was Gratz' energetic observance of her duties as chief steward. Accordingly, by issuing the disciplinary warnings of December 9, 1976, and December 27, 1976, 14 i recognize that Gratz was ostensibly discharged for a multitude of reasons, one of which was her failure to perform a reasonable amount of sAork However. Pierc. testified that the "main issue" or the "important thing" which resulted In Gratz' discharge was ihe fact that she refused to work a reasonable amount of time. It is clear from Pierc)'s testiomony that the other reasons which weie listed in Gratz' termination notice would not hase resulted in the discharge. absent her failure to work a reasonable amount of time 815 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and by discharging Gratz, Respondent violated Section 8(a)(3) and (1) of the Act." In concluding that Respondent seized upon Gratz' use of company time to perform her duties as chief steward as a pretext to issue the disciplinary warnings and to discharge Gratz on account of the zealous manner in which she per- formed as chief steward, I have not ignored the fact that during the period in which she was issued the two discipli- nary warnings, Gratz spent all of her working time per- forming as chief steward and during the period immedi- ately prior to her discharge (January 3 through February 2, 1977) spent approximately 74 percent of her working time performing as chief steward.36 However, the record estab- lishes that the chief stewards who preceded Gratz spent substantial amounts of their working hours performing union business without being issued an "Employee Warn- ing Notice," let alone being discharged or otherwise disci- plined.3 7 And, in comparison with the amount of working time Gratz spent on union business immediately prior to her discharge (74 percent), it is undisputed that her succes- sor as chief steward, Bouldin, spends a comparable amount of time (70 percent), with Respondent's blessing.3 8 More- over, the uncontradicted testimony of Valle and Bouldin establishes that, as chief steward, Gratz engaged in the identical kind of union business during company time that Respondent has always permitted its chief stewards.39 Un- der the circumstances, I do not view this case as one in 35 The complaint lacks a specific allegation relating to the disciplinary warning issued Gratz on December 9 and the "Employee Warning Notice" issued to her December 27. Nevertheless, "it is well established that when an issue relating to the subject matter of a complaint is fully litigated at a hearing .. the Board [is] expected to pass upon it even though it is not specifically alleged to be an unfair labor practice in the complaint." Monroe Feed Store, 112 NLRB 1336, 1337 (1955). Therefore inasmuch as these warnings were related to the general subject matter of the complaint in that they arose from the same nucleus of operative fact; Respondent did not object to testimony regarding the subject matter; and the facts supporting it were fully litigated-I have considered the legality of these warnings and conclude that in issuing them to Gratz, Respondent violated the Act. Loren: d Sons, inc., 217 NLRB 471 (1975); Rochester Cadet Cleaners, Inc.. 205 NLRB 773 (1973); Granada Mills, Inc., 143 NLRB 957 (1963). 36Gratz' daily log from January 3. 1977. through February 2, 1977, indi- cates that, excluding those days on which she attended arbitration proceed- ings, she spent approximately 74 percent of her working hours on union business. Since the log contains no entries for January 14. 20, and 21. I have relied upon the log kept by Gratz' supervisor for those dates. Otherwise. I have used Gratz' log, rather than the supervisor's, because it is substantially more detailed and impresses me as the more reliable account. In any event. there is not an appreciable difference between the two logs. The supervisor's indicates, excluding the days spent at arbitration proceedings. that Grati spent approximately 78 percent of her working hours performing union business. " Bouldin, who served as chief steward from 1971 to 1974. spent 50 per- cent of his working time performing union business and on some days spent his entire workday doing union business. Valle, who served as chief steward prior to Bouldin, spent approximately 30 percent to 40 percent of his work- ing time performing union business and on a few occasions spent an entire workday doing union business. 3s Bouldin, who was appointed acting chief steward immediately upon Gratz' discharge, spends approximately 70 percent of his work time doing union business. 39 In addition. I note that a letter, C.P. Exh. i. sent in 1972 to Union Representative Lee by Respondent's Director of Industrial Relations Woo- ten indicates that prior to 1976, when Respondent first attempted to impose restrictions upon Gratz' performance as chief steward. Respondent had al- ways construed the governing collective-bargaining agreement as permitting its chief stewards to investigate as well as process grievances and to engage in general union business during their daily work shifts. which "an employee provides an employer with a sufficient cause for [her] dismissal by engaging in conduct for which [she] would have been terminated in any event." See Klate Holt Company, 161 NLRB 1606, 1612 (1966). The conclu- sion that Respondent, during the normal course of busi- ness, would not have discharged or otherwise formally dis- ciplined Gratz, absent its animus toward her because of the manner in which she performed as chief steward, is bol- stered further by the undisputed fact that compelling rea- sons existed to account for the greater amount of time spent by Gratz on union business than had been spent by her predecessor, Bouldin. Thus, massive layoffs which af- fected hundreds of employees occurred during Gratz' ten- ure as chief steward. Inasmuch as the governing collective- bargaining contract provides for plantwide seniority and for "bumping" in the case of layoffs, the layoffs generated grievances. Also, women employees, who constitute ap- proximately 70 percent of the work force, became more active in presenting grievances, because they felt they could relate better to a female chief steward than they had been able to relate to male chief stewards. In addition, changes in the collective-bargaining contract-such as the introduction of a job registration procedure-placed addi- tional responsibilities on the chief steward during Gratz' tenure. There was also an increase in the number of the forms and reports which the chief steward was responsible for processing. Also, in the summer of 1975 there was a change in Respondent's ownership which resulted in a sub- stantial change of management personnel who were not familiar with the terms of the governing collective-bargain- ing agreement, thus creating more work for Gratz. The net result was that when Bryant began his employment as per- sonnel manager in February 1976, there were approximate- ly 200 outstanding grievances at the second and third steps of the grievance procedure. Piercy, Respondent's director of industrial relations, at this time admittedly told Gratz that she could take all of the time she needed away from work in order to resolve these grievances. It was only after Respondent had openly expressed its animosity toward Gratz because of her alleged uncompromising and aggres- sive manner in pursuing grievances and threatened to "get" her because she had refused to compromise a grievance that Piercy in August 1976 began to criticize Gratz for spending too much working time on union business. I rec- ognize that Piercy testified that he commenced, in August 1976, to criticize Gratz for spending too much time away from work because no progress had been made in settling the grievances, even though Gratz had been working on the matter for several months. However, viewed in the context of Respondent's hostility toward Gratz and its disparate treatment of Gratz described supra, I am convinced that a more reasonable inference is that Piercy's dissatisfaction with the amount of working time Gratz spent on union business was not motivated by a concern for production or discipline but instead was motivated by Respondent's hos- tility toward her performance as chief steward.4 40 It is undisputed that Gratz' supervisor never complained about her absences from work. Nor is there evidence that Gratz' absences affected production. Ihe sole evidence that Gratz' absences from work to perform union business affected discipline or production was Piercy's uncorroborat- cd testimons. which was completels lacking in specificity, that supervisors 816 MAX FACTOR & CO. 3. Respondent suspends Gratz On December 27, 1976, Gratz was suspended from work for 3 days. The "Employee Warning Notice" signed by Bryant which enumerates the reasons for the suspension refers to the August 11, 1976, incident which has been de- scribed in detail supra, where Gratz called Bryant a "rac- ist." It is perfectly clear, however, that the misconduct which triggered the suspension, and but for which the sus- pension would not have occurred, was the incident which took place on December 27, 1976, in Bryant's office. There, in response to the issuance of an "Employee Warning No- tice" threatening her with disciplinary action if she did not obey Piercy's December 9 disciplinary warning and per- form a reasonable amount of work, Gratz told Bryant she would not let him use her "to kiss the ass" of the Com- pany's vice president and director of manufacturing and called Bryant a "big phoney" and "a little twerp." At the outset it must be recognized that Gratz' suspen- sion did not arise out of conduct which occurred during the course of the work relationship. Rather, the suspension was the result of Gratz' alleged misconduct wnile serving as the authorized representative of the employees. The meeting between Bryant and Gratz during which the alleged mis- conduct occurred was intimately related to the restrictions imposed upon Gratz as chief steward by Piercy's Decem- ber 9 disciplinary warning and the longstanding dispute between the Union and Respondent concerning the amount of work time a chief steward was pnvileged to use to perform union business. Any doubt that when the mis- conduct occurred Bryant was meeting with Gratz in her capacity as chief steward is removed by Bryant's admoni- tion contained in Gratz' suspension notice that, "[Gratz] as the Chief Steward, should set an example rather than [to] act in this manner." In sum, it is clear that the misconduct which triggered Gratz' suspension occurred during a meet- ing where the subjects affected all of the employees in the bargaining unit represented by Gratz and that Gratz was not summoned to this meeting as an employee but in her capacity as chief steward. Therefore, even though Gratz may have been insolent and abusive toward Bryant, her suspension violated Section 8(a)(1) of the Act because she was engaged in protected concerted activity at the time in question. While the Board has held that an employee may be de- prived of the protection of the Act if the employee commits improprieties in the course of Section 7 activity, this occurs only in "flagrant cases in which the misconduct is so vio- lent or of such serious character as to render the employee unfit for further service." The Bettcher Manufacturing Cor- poration, 76 NLRB 526, 527 (1948). See also N.L.R.B. v. Thor Power Tool Company, 351 F.2d 584, 587 (7th Cir. 1965). and Crown Central Petroleum Corporation v. N.L.R. B., 430 F.2d 724, 730 (5th Cir. 1970). Gratz' conduct which triggered her suspension. in my opinion, was not egregious or so outrageous as to warrant depriving her of the Act's protection. This is especially the case as Gratz' and employees and management complained to him that (;railL was engaged in union business during working time. abusive outburst was made in response to an unlawful dis- ciplinary warning which threatened her wtih discharge if she did not abide by the discriminatory limitations set forth in Piercy's previous disciplinary warning which was also unlawful. In sum, I find that Gratz' outburst was spontaneous. not the product of a conscious effort to de- grade Bryant or undermine his authority, but was pro- voked by the unlawful conduct of Respondent. Under the circumstances, Gratz' conduct was not so egregious that it would warrant the conclusion that she acted outside the protection of the Act. Accordingly, as Gratz' suspension was for what I have found constituted protected concerted activity. I conclude that the suspension was in violation of Section 8(a)(1) of the Act. Even assuming that Gratz was not engaging in protected concerted activity when she engaged in the misconduct for which she was suspended, I would still conclude that the suspension violated the Act inasmuch as Gratz' outburst was spontaneous and provoked by the Respondent's un- lawful conduct. See N.L.R.B. v. Mueller Brass Co., 501 F.2d 680, 686 (5th Cir. 1974), citing N.L.R.B. v. M & B Headwear Co.. Inc., 349 F.2d 170, 174 (4th Cir. 1965) ("An employer cannot provoke an employee to the point where she commits such an indiscretion as is shown here and then rely on this to terminate her employment"). Thus, it is clear that but for the unlawful disciplinary warnings issued Gratz on December 9 and 27, she would not have engaged in the misconduct which triggered her suspension. In this regard the "Employee Warning Notice" dated December 27, 1976, filled out by Bryant, which explains the reason for Gratz' suspension states, in pertinent part, "[o]n De- cember 27, 1976. . . you were issued a written warning. As a result of this written warning, you aggrevated the situa- tion by having a temper tantrum .... As a result of your action, you are being given a three-day disciplinary layoff .... " Clearly, an admission by Respondent that Gratz' misconduct, but for which she would not have been sus- pended, was provoked by the disciplinary warning of De- cember 27 which, as found supra, was unlawful. In addition, I conclude that the record establishes that the suspension was unlawfully motivated; hence, for this additional reason, it violated Section 8(a)(3) and (1) of the Act. Thus, as described supra, the suspension took place in the context of Respondent's extreme animus toward Gratz because of her performance as chief steward. Because of this animosity, Respondent, shortly before suspending Gratz, had given her two unlawfully motivated disciplinary warnings. And, on December 28, 1976, as described in de- tail supra, Bryant made what was tantamount to a confes- sion that Gratz was suspended because of the aggressive manner in which she performed as chief steward. These circumstances persuade me that the evidence preponder- ates in favor of a finding that Gratz' suspension was dis- criminatorily motivated in violation of Section 8(a)(3) and (I) of the Act.4 1 41 In so concluding. I have carefully considered the fact that on August 11. 1976. (iratz called Brsant a "racist" in front of employees and. as a result. sas threatened with discipline if she engaged in similar conduct. Nevertheless. while I do not mean to condone this conduct. I am cons inced that he record estabhshes (iratz' suspension several months later was sig- Contrinued 817 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 4. Respondent discharges Gratz On February 3, 1977, Gratz was discharged. As I have indicated previously, the Respondent's director of industri- al relations, Piercy, testified in substance that the discharge would not have occurred absent Gratz' failure to perform a reasonable amount of production work. I have concluded, supra, that this was not the real reason for Gratz' discharge but was a pretext used to cloak a discriminatory motive, hence, the discharge violated Section 8(a)(3) and (I) of the Act. Assuming that I have erred in evaluating the record in this respect and the evidence fails to establish Respondent used Gratz' failure to perform a reasonable amount of work as a subterfuge to discriminate against Gratz, I would still be constrained to conclude that Gratz' discharge vio- lated Section 8(a)(l) of the Act. Respondent's telegram which notified Gratz she was dis- charged and the "Employee Warning Notice" filled out by Bryant contemporaneously with the discharge state Gratz was discharged for three reasons: (I) directing abusive lan- guage toward Bryant on February 2; (2) refusing to obey Bryant's instructions on February 2; and (3) failing to per- form a reasonable amount of work. The reference to Gratz' use of abusive language and insubordination refers to the conversation between Gratz and Bryant. held February 2, described in detail supra, wherein Gratz called Bryant a liar and at one point momentarily refused to obey his instruc- tion. Bryant admitted that it was the insubordination and abuse directed toward him on February 2 which triggered Gratz' discharge, that but for this misconduct she would not have been discharged. Piercy admitted that it was this misconduct which was "the straw that broke the camel's back," thus triggering Gratz' discharge. As was the case with the conduct triggering Gratz' sus- pension, it must also be realized that Gratz' discharge did not arise out of the work relationship. Rather, the dis- charge was triggered by misconduct engaged in by Gratz while she was acting in her capacity as chief steward. The meeting between Gratz and Bryant during which Gratz' misconduct took place concerned two subjects-the hold- ing of an illegal union meeting by Gratz as chief steward and Gratz' request that she be allowed to investigate em- ployees' grievances in the warehouse during working time-both of which involve Gratz as the employees' bar- gaining representative. Therefore, even though Gratz may have conducted herself in a manner that can be character- ized as abusive and insubordinate, her discharge violated Section 8(aXl) of the Act because she was engaged in pro- tected concerted activity at the time in question. Gratz' disputed conduct-stating that Bryant was a liar and refusing to rejoin Bryant to continue their conversa- tion-was not separate and apart from their conversation concerning the alleged illegal union meeting and the inves- tigation of the warehouse grievances, thus, it was a part of nificantly motivated by Respondent's animus against her on account of the uncompromising and aggressive manner she pursued employees' grievances and policed the collective-bargaining contract Piercy, also, was emphatic in his testimony that the major factor which entered into Respondent's decision to discharge Gratz was her failure to perform a reasonable amount of work. the res gestae of the protected activity. Obviously, Bryant found Gratz' behavior unpleasant and uncalled for. How- ever, it is common knowledge that disagreements which arise in a setting involving the administration of a collec- tive-bargaining contract sometimes tend to provoke com- mentary and conduct which may be less than mannerly. Nevertheless. it is settled that the use of strong language or what would normally be considered discourteous conduct in the course of protected activity supplies no legal justifi- cation for disciplining an employee acting in a representa- tive capacity, except in the most flagrant or egregious of cases. N.L.R.B. v. Thor Power Tool Company, 351 F.2d 584, 586-587 (7th Cir. 1965); Crown Central Petroleum Corp. v. N.L.R.B., 430 F.2d 724, 729-731 (5th Cir. 1965); Hawaiian Hauling Service LTD. v. N.L.R.B., 545 F.2d 674, 676-677 (9th Cir. 1976); and The Bettcher Manufacturing Corpora- tion, 76 NLRB 526 527 (1948). More specifically, it is set- tled that an employee, such as Gratz, who participates in union activities in connection with the administration of a collective-bargaining contract is free to question the veraci- ty of her employer and that this statutory right does not depend upon whether the employee is polite or blunt in doing so. Crown Central Petroleum Corp. v. N.L.R.B., su- pra,' Hawaiian Hauling Services Ltd. v. N. L. R. B., supra, and Bettcher Mfg. Corp., supra. See also William C. Linn v. United Plant Guard Workers of America, Local 114, et al., 383 U.S. 53. 60-61 (1966) ("[T]he Board has concluded that epithets such as . . . 'liar' are commonplace in these [or- ganization] struggles and not so indefensible as to remove them from the protection of Section 7, even though. the statements are erroneous and defame one of the parties to the dispute"). In the instant case, I do not find Gratz' conduct in refus- ing to return from the telephone to where Bryant was standing unless he asked her politely to be so objectionable or so provocative as to justify the imposition of discipline for insubordination. Gratz did not rudely break off the conversation to use the phone; rather, she left the area to use the phone only after Bryant had interrupted the con- versation and moved off to one side to speak with Lee. Her momentary refusal to return and renew the conversation until Bryant asked her politely was not unreasonable con- sidering Bryant's rudeness.4 3 Nor do I find that Gratz for- feited the protection of the Act by calling Bryant a liar.44 Thus, when Bryant incorrectly stated that Gratz had told him the previous day that she intended to take all the working time she needed to investigate the warehouse grievances, Gratz could only meaningfully pursue the sub- ject by indicating that Bryant was lying. "It is true that [Gratz] could have been more moderate in [her] language 47 Bryant directed Gratz. "you come here this instant . .did you hear me? You come here." while at the s.me time pointing his finger to the ground in a manner in which a person instructs an animal. Gratz had not previously ignored or refused Bryant's request that she rejoin him to contin- ue their conversation. 4 This is not the first time that the epithet "liar" has been used during a discussion between a representative of the Union and a representative of the Respondent in connection with the administration of the collective-bargain- ilr agreement. During a grievance meeting. Respondent's director of indus- trial relations called the employees representing the Union "f ing liars" and Respondent's represenltllites have called employees who file grievances "liar." 818 MAX FACTOR & CO. while asserting this position, [however], [tjhe lack of this diplomacy does not render conduct unprotected" Hawaiian Hauling Service Ltd, 219 NLRB 765, 766 (1975) enfd. on this point 545 F.2d 674, 676-677 (9th Cir. 1976). Finally, in assessing Gratz' conduct to determine wheth- er it was sufficiently flagrant so as to warrant the conclu- sion that she acted outside the protection of the Act, it is essential that Gratz' conduct not be considered in isola- tion, but in its context. She was obviously angry and emo- tionally upset over Bryant's accusations that she had con- ducted an illegal union meeting. In this regard, Bryant commenced the conversation on the floor of the plant by berating Gratz in a belligerent manner for holding an ille- gal union meeting the previous day in the Company's cafe- teria. This accustion was false. Nevertheless, Bryant ig- nored Gratz' denials and continued to rebuke Gratz for holding an illegal union meeting. Clearly, it was due to Bryant's conduct that this conversation was not conducted in the spirit of tranquility and reason. Thereafter, when Lee managed to switch the subject of the conversation to the warehouse grievances, Bryant proceeded to falsely accuse Gratz of having told him she would take all the working time she needed to investigate the grievances. Thus, in questioning Bryant's veracity and in temporarily refusing to rejoin him to continue their conversation, it is plain that Gratz acted in a highly emotional context, created by Bryant, while defending herself against Bryant's unjust ac- cusations. Under the circumstances, Gratz' conduct ap- pears to have been spontaneous and was not the product of a conscious decision to degrade Bryant or to undermine his authority in the eyes of those witnessing the incident. Based upon the foregoing, I find that, even assuming Gratz was abusive and insubordinate during her February 2 meeting with Bryant, her discharge which this miscon- duct triggered violated Section 8(a)(l) of the Act because she was engaged in protected acitvity at the time in ques- tion and her misconduct was not of such a nature so as to deny her the protection of the Act. Upon the basis of the foregoing findings of fact and the entire record, I make the following: CONC( USIONS OF LAW 1. Max Factor & Co., the Respondent, is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Processing & Distribution Workers Union, Local 26, International Longshoremen and Warehousemen's Union, the Union, is a labor organization within the meaning of Section 2(5) of the Act. 3. By offering employee Luisa Gratz economic benefits for the purpose of dissuading her from continuing to serve as the Union's chief steward, Respondent violated Section 8(a)(1) of the Act. 4. By issuing disciplinary threats to employee Luisa Gratz and suspending and discharging her because of her performance as the Union's chief steward, Respondent vio- lated Section 8(a)(3) and (I) of the Act. 5. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondent violated Section 8(a)(3) and (I) of the Act by issuing disciplinary threats to its employee, Luisa Gratz, and by suspending and discharging Gratz for her performance as the Union's chief steward, it is necessary, in my opinion, in order to effectuate the pur- poses of the Act, that Respondent be ordered to cease and desist from engaging in such unlawful conduct and to ex- punge from the employment records of the above-named employee any record of said disciplinary threats, suspen- sion, and discharge, and to offer her immediate and full reinstatement to her former job or, if that job no longer exists, to a substantially equivalent position, without preju- dice to her seniority and other rights and privileges and to make her whole for any loss of pay or other employment benefits she may have suffered as the result of said suspen- sion and discharge. Backpay shall be computed on a quar- terly basis in accordance with F. W. Woolworth Company, 90 NLRB 289, 291-294 (1950), with interest thereon as pre- scribed in Florida Steel Corporation, 231 NLRB 651 (1977). See, generally, Isis Plumbing & Healing Co., 138 NLRB 716 (1962). As the unfair labor practices committed were of a char- acter which go to the very heart of the Act, I shall recom- mend an order requiring Respondent to cease and desist therefrom and to cease and desist from infringing in any other manner upon the rights of employees guaranteed by Section 7 of the Act. Upon the basis of the foregoing findings of fact, conclu- sions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recom- mended: ORDER 45 The Respondent, Max Factor & Co., Los Angeles, Cali- fornia, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discouraging membership in Processing & Distribu- tion Workers Union, Local 26, International Longshore- men and Warehousemen's Union, or any other labor orga- nization, by issuing disciplinary threats, suspending, discharging or otherwise discriminating against any em- ployee with respect to hire, tenure of employment, or any term or condition of employment because of the employ- ees' performance as a union steward. (b) Promising employees economic benefits for the pur- pose of dissuading them from continuing to serve as a union steward for the above-named Union or any other union. (c) In any other manner interfering with, restraining, or coercing its employees in the exercise of rights guaranteed in Section 7 of the Act. 4 In e e.enl nil exceptrins arc filed as pr..lided hb Sec 102.46 of the Rule, ind Regulations of Ihe National Labor Relations Board. the findings. ,.,ncluJins. .and recommended Order herein shall, as provided in S:ec 102 48 of the Rules and Regularionl. h-i .dlptled by the Board and beconie It, findmngs. conclusions, and Order and 1al objectlions thereto shall he deemeCd u.,l1ed for all purposes 819 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. Take the following affirmative action which is neces- sary to effectuate the policies of the Act: (a) Offer Luisa Gratz immediate and full reinstatement to her former position or, if such position no longer exists, to substantially equivalent employment, without prejudice to seniority or other rights and privileges previously en- joyed, and make her whole for any loss of earnings she may have suffered as a result of her suspension and dis- charge in the manner set forth in The Remedy section of this Decision. (b) Expunge from Luisa Gratz' personnel file and from all other records, all copies of, or reference to, the discipli- nary warnings issued to her on December 9 and 27, 1976, as well as those "Employee Warning Notices" referring to her suspension and discharge. (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all pay- roll records, social security payment records, timecards, personnel records and reports, and all other records neces- sary to analyze the amount of backpay due and the right of reinstatement under the terms of this Order. (d) Post at its place of business in Los Angeles, Califor- nia, copies of the attached notice marked "Appendix." 4 Copies of said notice, on forms provided by the Regional Director for Region 31, after being duly signed by Respon- dent's representative, shall be posted by Respondent imme- diately upon receipt thereof and be maintained by it for 60 consecutive days thereafter, in conspicuous places, includ- ing all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or cov- ered by any other material. (e) Notify the Regional Director for Region 31, in writ- ing, within 20 days from the date of this Order, what steps have been taken to comply herewith. 4 In the event that this Order is enforced by a judgment of a United States Court of Appeals. the words in the notice reading "Posed b) Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT discourage membership in Processing & Distribution Workers Union, Local 26, Internation- al Longshoremen and Warehousemen's Union, or any other labor organization, by issuing disciplinary threats, suspending, discharging or otherwise discrimi- nating against employees with respect to hire, tenure of employment, or any term or condition of employ- ment because of the employees' performance as a union steward. WE WILL NOT promise employees economic benefits for the purpose of dissuading them from continuing to serve as a union steward for the above-named Union or any other union. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their rights guaranteed in Section 7 of the National Labor Relations Act. WE WILL offer Luisa Gratz immediate and full rein- statement to her former position or, if such position no longer exists, to substantially equivalent employment, without prejudice to seniority or other rights and privi- leges previously enjoyed, and make her whole for any loss of earnings she may have suffered as a result of her 3-day suspension and discharge, plus applicable interest. WE WILL expunge from Luisa Gratz' personnel file and from all other records, all copies of, or reference to, the disciplinary warnings issued to her on Decem- ber 9, 1976, and December 27, 1976, as well as the "Employee Warning Notices" referring to her suspen- sion and discharge. MAX FACTOR & CO 820