Buehler Corp.

INDIANA GEAR WORKS 397 sentative where a valid representation election, which we did not win, has been conducted by the National Labor Relations Board among the employees of Stoltze Land & Lumber Company within the preceding 12 months. LUMBER AND SAWMILL WORKERS LOCAL UNION No. 2797, Labor Organization. Dated------------------- By------------------------------------------- (Representative) (Title) This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. If members have any question concerning this notice or compliance with its provi- sions, they may communicate directly with the Board' s Regional Office, 327 Logan Building, 500 Union Street, Seattle, Washington , Telephone No. 682-4553. Indiana Gear Works, a Division of the Buehler Corporation and Jerry W. Packard. Case No. 25-CA-2080. December 28, 1965 DECISION AND ORDER On August 9, 1965, Trial Examiner Phil Saunders issued his Deci- sion in the above-entitled proceeding, finding that Respondent had not engaged in the unfair labor practices alleged in the complaint and recommending that the complaint be dismissed in its entirety, as set forth in the attached Trial Examiner's Decision. Thereafter, the General Counsel filed exceptions to the Trial Examiner's Decision and a supporting brief. The Respondent filed a brief in answer to the General Counsel's exceptions. Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel [Members Fanning, Brown, and Zagoria]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and briefs, and the entire record in this case, and finds merit in the exceptions. Accordingly, the Board adopts the findings, conclusions, and recommendations of the Trial Examiner only to the extent consistent with this Decision and Order. The complaint alleges that employee Jerry W. Packard was dis- charged on November 14, 1964, for engaging in protected concerted activity. Briefly, the facts show that on or about November 9, 1964, the Respondent announced to its employees its annual wage package. This package provided for wage increases of 2 cents to 16.4 cents per hour. Subsequently, the employees of the Respondent's gear department, whose 2-cent-per-hour increase was much smaller than they had expected, expressed their displeasure during a number of meetings with 156 NLRB No. 40. 398 DECISIONS OF NATIONAL LABOR RELATIONS BOARD supervisors and management officials. Packard was present at these group discussions and announced his own displeasure with the increase.' These discussions brought about no changes in the Com- pany's wage package. While working on the night shift on Novem- ber 13, 1964, Parkard taped a number of cartoons to a lamp shade suspended over the workbench in the gear department. This was not an uncommon form of communication among the employees.2 These cartoons had been cut out of newspapers and taped to yellow sheets of paper on which employees had written comments concerning their dissatisfaction with the wage increase. The cartoons contained such expressions as, "And we love you too" and "My God John," expressions which can only have been mocking emulations of Respondent's Presi- dent Buehler's typical forms of addressing the employees. While the evidence shows that Packard was perhaps the leading spirit in the preparation and posting of the cartoons, the evidence also establishes that the cartoons did not represent a single individual's effort, that Packard was not the only employee so engaged, that a number of employees in the gear department suggested captions for the cartoons and offered Packard other newspaper pictures with captions, and that other employees hung similar cartoons on the lampshade 3 On the morning of November 14, General Superintendent Kinney in the course of a routine check of the various departments saw the cartoons and subsequently removed them and took them to the office of Personnel Director Glassmeyer. There followed a series of con- ferences among a number of supervisors and other management per- sonnel and after a resort to samples of Packard's handwriting it was the consensus that Packard was responsible for "a majority" of the cartoons .4 The supervisors along with the other management per- 'During a meeting with Supervisor Heiliger, Packard told Heiliger that he (Packard) would forego the raise if the Company needed the money so badly that 2 cents an hour was all that it could afford 2 On inspection of the record , it is clear that there was a practice in the Respondent's plant to use cartoons placed on bulletin boards and lampshades to advise all employees about such things as bowling averages and golf scores . Furthermore, employee Sprecher testified that on the night in question , he placed a newspaper clipping concerning a vaca- tion plan at Eli Lilly Co. on the bulletin board. There is no doubt that the Respondent was aware of this practice. 3 Employee Richard Vanderpool testified that he put two cartoons to which he had added captions on the lampshade . Contrary to the Trial Examiner's finding that there was no evidence showing that Packard had adopted suggestions of other employees , employee James Rasor testified that he had somewhat changed a newspaper cartoon and given it to Packard, and this cartoon essentially in the form given to Packard was hung by Packard from the lampshade. A It is clear from an inspection of the cartoons themselves that they were not all prepared by the same person. Packard 's cartoons were made by neatly trimming news- paper clippings and taping them on yellow paper with the captions neatly lettered on the yellow paper. Cartoons prepared by employee Vanderpool are clippings apparently torn from a newspaper with the captions printed on the cartoons themselves . The cartoon given to Packard by employee Rasor was just an elaboration on an existing cartoon obtained from either a newspaper or a magazine rather than like one of Packard's original works. INDIANA GEAR WORKS 399 sonnel then reviewed certain past incidents in which Packard was involved 5 and concluded that the "total" of Packard's conduct con- stituted good cause for his discharge. When Packard came to work that evening, he was called to a meeting attended by Superintendents Morgan and Kinney, Assistant Personnel Director Hurst, and Joe Jones, night-shift chairman of the employees' shop committee. Assert- ing that Packard could have used more acceptable channels for voicing a complaint, Morgan showed the cartoons to Packard and asked Packard if he was responsible for them. Packard admitted that he was, but added that he was not the only one involved. He refused, when asked by Jones, to reveal the identity of the other employees. He was then asked by Morgan if he understood the wage increase and what it would mean to him, and he was then given his termination notice. Upon the foregoing facts, the Trial Examiner found that the Respondent did not violate Section 8 (a) (1) of the Act by discharging Packard. He was of the opinion that there was insufficient evidence to show that Packard's actions were concerted within the meaning of the Act, or if concerted that the Respondent knew of its concerted nature at the time of the discharge. In any case, however, the Trial Examiner was of the opinion that Packard's activity was of such flagrant nature, "that it lost the protection of the Act," and concluded that "in any event and apart from Packard's activity involving the cartoons, the Respondent had good cause to terminate him." We do not agree. In findings that Packard's activity was not concerted, the Trial Examiner was of the opinion that activity to be concerted must have an object of inducing group action by employees to correct a grievance. However that may be, the Trial Examiner has overlooked the fact that Packard's activity was not so much an individual action designed to induce action on the part of other employees, as it was group action whose object was to induce the employer to correct a grievance. It is true that there was no formal agreement among the employees as to the course of action to be pursued as a group, and no one selected Packard to act as a spokesman. The record shows, however, that Packard was not the only employee engaged in posting cartoons which expressed a dissatisfaction with the 2-cent-an-hour wage increase and that other employees participated with Packard in pre- paring and posting the cartoons as a demonstration of their concern over a problem affecting all of them. We think it is unrealistic to say that in such circumstances the particular cartoon posting activity is not to be considered as concerted activity within the meaning of 6 The previous infractions of company rules listed by the Respondent in Packard's termination notice included : ( 1) credit complaints , ( 2) disobedience , and (3 ) poor attitude and conduct toward his job and fellow employees 400 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Section 7 of the Act. Certainly, the employees believed they had a legitimate grievance and the legitimacy of their object cannot be questioned. Indeed, Superintendent Morgan recognized the cartoons as a complaint against the employer's wage practice, and specifically asked Packard, during the termination interview, whether "he under- stood the wage increase and what it meant to him." We find that the evidence is sufficient to support a finding that Packard's activity constituted concerted activity.6 We also disagree with the Trial Examiner's finding that Respond- ent had no knowledge of the concerted activity at the time of Packard's discharge.? Thus, when Morgan during the termination interview confronted Packard with the cartoons, Packard told him that he was not the only employee involved. Moreover, Respondent's management personnel were convinced that Packard was responsible for "a major- ity" of the cartoons, and they knew that the cartoons were expressing a dissatisfaction shown by more than one employee. Accordingly, the evidence is clear that before Respondent discharged Packard, it acquired knowledge of the concerted nature of his activities. We do not agree with the Trial Examiner that Packard's activity was unprotected or that the cartoons were of such an offensive char- acter as to merit Packard's discharge. The criteria applicable to cases such as the instant one is whether the employees in the course of concerted activities engaged in such flagrant, violent, serious, or extreme misconduct as to render them unfit for further service.8 In our opinion, the cartoons were not of such serious character as to disqualify Packard from reinstatement. The greater number of cartoons were clearly inoffensive and at best establish only a minor satirical reference to a 2-cent-per-hour wage, increase. Nor do the cartoons that referred to the Respondent's presi- dent by using the name "John" and the phrase "I love you all," furnish any more cogent basis for the discharge. For the record shows that the Respondent's president on numerous occasions directed written communications to the employees which he concluded by using the phrase "I love you all" and signing his name as "John" and that a very personal atmosphere prevailed in the plant which was encouraged by the Respondent. These cartoons could not reasonably be con- strued as anything more than an expression of the employees' dis- 6 Washington Aluminum Company , Inc., 370 U . S. 9; Walls Manufacturing Company, Inc., 137 NLRB 1317 , enfd 321 F . 2d 753 , cert denied 375 U S 923 , George E. Light Boat Storage, Inc., 153 NLRB 1209; and Bonded Armored Carrier, Inc., 147 NLRB 100. 7 We will assume, without deciding, that an employer's prior knowledge of his em- ployees' concerted activity is an essential element in support of a finding of an illegal discharge for such activity . See Walls Manufacturing Company, supra 8 So cony Mobil Oil Company, Inc., 153 NLRB 1244; National Furniture Manufacturing Company, Inc., 134 NLRB 834. INDIANA GEAR WORKS 401 satisfaction by pointing up the disparity between president Buehler's professed love for his employees and the alleged meagerness of the wage increase. The remaining cartoon states, "I'll tell you where you can stick your 2 cents per hour." At the outset, we note that the Respondent neither singled out this cartoon among all others as being especially offensive nor relied upon it as the crucial basis for its discharge action. Furthermore, as heretofore indicated, the Respondent was informed by Packard that other employees had participated in the preparation of the cartoons and admittedly believed that some of the cartoons were prepared by other employees. Nevertheless, we have no evidence that it took any measures to ascertain which employees-Packard or oth- ers-had participated in making this particular cartoon. However, assuming, arguendo, that the cartoon was offensive in character, we do not approve of vulgarity, but do not consider this to be of such a grievous nature as to make Packard unfit for further service. Such mode of expression must be viewed in the context in which it occurs. Thus, its use is not at all unusual in work-a-day associations among industrial workers.9 Factory and foundry employees do not always employ the language used in polite formal society while at work.10 It is also a fact that tempers are aggravated and attitudes harden in the stress and strain of sensitive situations such as the one involved herein. Absolute restraint might be more desirable, but cannot be expected realistically. In view of the foregoing, we find that the nature of the cartoons did not deprive Packard of the protection which the Act affords to employees engaged in concerted activities.11 As indicated above, the Trial Examiner found that the Respond- ent had good cause to discharge Packard even apart from his cartoon activity. In that connection the Trial Examiner had reference to certain past incidents involving Packard. These incidents concerned (1) a credit inquiry regarding a garnishment proceeding, (2) bringing a radio into the gear department, (3) disobedience while driving on the parking lot, (4) leaving sarcastic notes for day-shift employees, and (5) not doing his share of the work. A review of the record shows that most of the incidents mentioned above occurred from 3 months to a year before the discharge and that at no time was Packard warned in writing by the Respondent that such conduct made him vulnerable to discharge even though the Respondent readily conceded that it had a policy to give written warnings for rule infractions that 0 National Furniture Manufacturing Company, Inc ., supra 10 See Louisiana Manufacturing Company, 152 NLRB 1301, and Nebraska Bag Company, et al., d/ b/a Nebraska Bag Processing Company, 122 NLRB 654 "Cf. Butcher Boy Refrigerator Door Company, 127 NLRB 1360, 1370-1372, enfd.- 290 F. 2d 22 (C.A. 7), and Oneita Swatting Mills, Inc., 153 NLRB 51. 402 DECISIONS OF NATIONAL LABOR RELATIONS BOARD would amount.to cause for discharge. Furthermore, 2 or 3 months before the discharge, Packard's foreman, Charles McCarthy, told Packard that his work was satisfactory. While it is true that the above-mentioned incidents found in Packard's record were the sub- ject matter of the termination notice, it is clear that the termination conference itself was basically concerned with the cartoons. In light of this fact, and the admission by Morgan and other management personnel that the cartoons were the reason for the discharge, its seems obvious to us that the other reasons mentioned for the discharge were clearly pretextual. Upon consideration of all the matters set forth above and on the record as a whole, we find that Packard's conduct constituted pro- tected concerted activity, and that the Respondent violated Section 8(a) (1) of the Act by discharging Packard for engaging in such activity. THE REMEDY Having found that the Respondent has engaged in unfair labor practices in violation of Section 8(a) (1) of the Act, we shall order that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. It has been found that the Respondent has discriminated against Jerry W. Packard by dis- charging him in violation of Section 8(a) (1) of the Act. We shall therefore order the Respondent to offer him immediate and full rein- statement to his former or substantially equivalent position, without prejudice to his seniority or other rights and privileges, and to make him whole for any loss of pay he may have suffered as a result of this discrimination against him by payment to him of a sum of money equal to that which he would have earned as wages from the date of the discrimination to the date of reinstatement, less his net earnings during such period, in accordance with the formula prescribed in F. W Woolworth Company, 90 NLRB 289, together with interest on such sum, such interest to be computed in accordance with the formula -prescribed in Isis Plumbing d Heating Co., 138 NLRB 716. CONCLUSIONS OF LAW 1. Indiana Gear Works, a Division of the Buehler Corporation, is an Employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The evidence adduced herein establishes that Jerry W. Packard was discharged on November 14, 1964, and that such discharge con- stitutes a violation of Section 8 (a) (1) of the Act. 3. The unfair labor practice enumerated above is an unfair labor practice affecting commerce within the meaning of Section 2(6) and (7) of the Act. INDIANA GEAR WORKS ORDER 403 Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Indiana Gear Works, a Division of The Buehler Cor- poration, Indianapolis, Indiana, its officers, agents, successors, and assigns, shall: 1. Cease and desist from : (a) Discharging employees or discriminating in regard to their hire, tenure of employment, or any term or condition of employment, because they have engaged in concerted activities for the purpose of collective bargaining or other mutual aid or protection. (b) In any like or related manner interfering with, restraining, or coercing employees in the exercise of their right to engage in, or to refrain from engaging in, any or all of the activities specified in Section 7 of the Act, except to the extent that such right may be affected by an agreement requiring membership in a labor organiza- tion as a condition of employment, as authorized by Section 8(a) (3) of the Act, as modified by the Labor-Management Reporting and Dis- closure Act of 1959. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (a) Offer to Jerry W. Packard immediate and full reinstatement to his former or substantially equivalent position, without prejudice to his seniority or other rights and privileges previously enjoyed. (b) Make Jerry W. Packard whole for any loss of pay he may have suffered by reason of the discrimination against him, in the manner and in accordance with the methods referred to in the section above entitled "The Remedy." (c) Notify the above-named employee if presently serving in the Armed Forces of the United States of his right to full reinstate- ment upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. (d) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary or useful to determine the amount of backpay due under the terms of the Order. (e) Post at its plant in Indianapolis, Indiana, copies of the attached notice marked "Appendix." 12 Copies of said notice, to be furnished 12 In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "a Decision and Order" the words "a Decree of the United States Court of Appeals , Enforcing an Order." 217-919-66-vol. 156-27 404 DECISIONS OF NATIONAL LABOR RELATIONS BOARD by the Regional Director for Region 25, shall, after being duly signed by the Company's representative, be posted by the Company immedi- ately upon receipt thereof, and be maintained by it for 60 consecu- tive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Company to insure that said notices are not altered, defaced, or covered by any other material. (f) Notify the Regional Director for Region 25, in writing, within 10 days from the date of this Order, what steps have been taken to comply herewith. APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify all employees that : WE WILL NOT discharge any of our employees or discriminate in regard to their hire, tenure of employment, or any term or condition of employment, because they have engaged in concerted activities for the purpose of collective bargaining or other mutual aid or protection. WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of their right to engage in, or to refrain from engaging in, any or all of the activ- ities specified in Section 7 of the Act, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized by Section 8(a) (3) of the Act, as modified by the Labor- Management Reporting and Disclosure Act of 1959. WE WILL offer Jerry W. Packard immediate and full reinstate- ment to his former or substantially equivalent position, without prejudice to his seniority or other rights and privileges previously enjoyed. WE WILL make Jerry W. Packard whole for any loss of pay he may have suffered by reason of the discrimination against him. INDIANA GEAR WORTS, A DIVISION OF THE BuEHLFR CORPOP,AITION, Employer. Dated------ ---------- By------------------------------------- (Representative ) ( Title) INDIANA GEAR WORKS 405 NoTE.-We will notify the above-named employee if presently serving in the Armed Forces of the United States of his right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. Employees may communicate directly with the Board's Regional Office, 614 ISTA Center, 150 West Market Street, Indianapolis, Indiana, Telephone No. Melrose 3-8921, if they have any question concerning this notice or compliance with its provisions. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE The unfair labor practice charge on which the complaint herein is based was filed on November 17, 1964. The complaint was issued on January 29, 1965, against Indiana Gear Works, a Division of The Buehler Corporation, herein the Company or the Respondent, alleging violation of Section 8(a)(1) and (3) of the National Labor Relations Act, as amended. The Company filed an answer denying the commission of any unfair labor practices. The parties were represented by counsel and participated fully in the hearing before Trial Examiner Phil Saunders. The parties also filed briefs and they have been duly considered by me in making my findings herein. Upon the entire record, and from my observation and demeanor of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT The Respondent is, and has been at all times material herein, a corporation duly organized under, and existing by virtue of, the laws of the State of Indiana. At all times material herein, the Respondent has maintained its principal office and place of business at Indianapolis, Indiana, and is, and has been at all times material herein, engaged at said plant and location in the manufacture, sale, and distribution of gears, gear trains, and related products. During the past year, which is a representative period, the Respondent, in the course and conduct of its business operations, manu- factured, sold, and distributed at said Indianapolis plant, products valued in excess of $50,000, of which products valued in excess of $50,000, were shipped from said plant directly to States of the United States other than the State of Indiana. The complaint alleges, the answer admits, and I find that the Respondent is an employer engaged in commerce as defined by the Act. II. THE CHARGING PARTY The charge in this proceeding was filed by Jerry W. Packard, the alleged discrimi- natee, and there is no labor organization as such involved in the case.' M. THE ALLEGED UNFAIR LABOR PRACTICES A. The facts Jerry Packard was discharged by the Company on November 14, 1964.2 Packard was first hired by the Company in 1962 at an hourly rate of $1.80. In 1964 Packard was transferred to the gear department as a gear lab inspector, and this was his job "Packard is the only alleged 8(a)(3) involved, and there are no independent 8(a)(1) allegations in the complaint. a All dates are 1964 unless specifically stated otherwise. 406 DECISIONS OF NATIONAL LABOR RELATIONS BOARD at the time of the discharge.3 Packard worked on the night shift and his regular hours were 5 p.m. to 1.30 a.m. and on many occasions worked 2 hours' overtime. At the time of termination Packard was receiving $2.41 per hour as a result of auto- matic and cost-of-living increases. The testimony relied on in this record shows that on or about November 9, 1964, Respondent President John Buehler announced its annual wage package to the employees. In essence, this package provided that the less skilled employees would get an hourly wage increase of 2 cents an hour while the more highly skilled person- nel would get larger raises .4 During the night shift on November 13, Packard cut out various cartoons from a newspaper and affixed them to yellow scratch paper, wrote captions on them, and then attached these cartoons to the fluorescent light in the gear lab 5 According to Pack- ard different employees suggested the captions for his cartoons, but he did not testify that he used any of these suggested captions. This record also shows that during the same night shift on November 13, employee Richard Vanderpool also put up two cartoons on the light in the gear lab (General Counsel's Exhibits Nos. 4-A and 4-B), and on the same occasion Gilbert Sprecher placed a clipping about the vacation plan of Eli Lily Company on the bulletin board located in front of the gear lab. James Rasor prepared the caption on one other cartoon (General Counsel's Exhibit No. 3), and this was also affixed to the light in the gear lab. On the morning of November 14, Charles Kinney, day-shift general superintendent, arrived at work about 7 a.m. and started to check the various departments in the plant. When Kinney arrived at the gear lab the cartoons were pointed out to him, and after completing his rounds of the departments Kinney returned to the gear lab and took the cartoons to the office of the Respondent's personnel manager, Robert Glassmeyer. Assistant personnel director, Richard Hurst, was then called in, and after looking at the cartoons Hurst stated, "It sounds like Jerry Packard." Hurst then brought in Packard's personnel file and Kinney, Glassmeyer, and Hurst then compared the printing on the yellow scratch sheets on which the cartoons were mounted, with samples of Packard's printing from his personnel file, and concluded that the captions on the cartoons were in Packard's handwriting Kinney then called Night-Shift Superintendent Jack Morgan and told him that some derogatory and malicious posters had been left in the gear lab. Morgan went to the plant and also made comparisons of the handwriting on the captions with samples in Packard's file, and then stated that it appeared to him a majority of the cartoons had been made by Packard. At this time the four Respondent's supervisors also discussed certain past incidents in which Packard had been involved. This record established that a few months earlier Packard had been warned by Morgan about disobeying and swearing at a plant guard while driving his car in the Respondent's parking lot. Superintendent Morgan informed Packard that any fur- 3 Packard 's primary work area was in the gear lab, an enclosed room 24 feet wide by 50 feet long, located adjacent to the gear department . There is a small office in the gear lab used by the gear department superintendent located on the right side of the gear lab immediately inside the door. Toward the rear and along the side and rear walls of the gear lab are workbenches used by the gear lab employees . There is also a worktable in the center of the lab at the rear and a fluorescent light hangs over this worktable . Employees in the gear lab customarily affix the charts they use in their work to the overhead fluorescent light. A person entering the gear lab door and looking to- ward the worktable and fluorescent light at the other end could see papers hanging from the light . The job of the gear lab inspectors is to check certain elements of gears brought into the lab by other gear department employees . Any discrepancies are then brought to the attention of the foremen so that necessary changes can be made on the gear grinders and cutters . Three employees worked in the gear lab on the night shift- Jerry Packard , Gil Sprecher , and Dick Vanderpool * Several employee witnesses called by General Counsel testified in general terms that on occasion other employees (unnamed) had expressed dissatisfaction with the wage increase announced in November. 5General Counsel's Exhibits Nos. 5 ( a) through 5(f). The caption on General Coun- sel's Exhibit No. 5(a) contains the phrase "John don't love me any more." General Counsel's Exhibit No. 5(c) contains the phrase "and we love you too." General Coun- sel's Exhibit No. 5(f ) contains the phrase "My God John ." Packard testified that the name "John" was the most common name that came to his mind and that is why he used that name on the captions . Packard denied that by using the name "John" he intended to refer to President John Buehler . Packard also denied that he was referring directly to Buehler when he wrote the captions "John don't love me anymore," "and we love you too" on the cartoons. INDIANA GEAR WORKS 407 ther repetition of such conduct would result in "serious corrective action." Packard admitted this incident in his testimony. Another matter discussed was a credit com- plaint on Packard (Respondent's Exhibit 1). Hurst had discussed this complaint with Packard when it was received, but Packard stated that at this time it was merely called an "employment verification." The management group further discussed inci- dents when Utility Foreman Dick Lee and Assistant Superintendent Charles McCarty had warned Packard concerning the latter's unsatisfactory attitude and work 6 In this respect the record shows that about the time of the radio incident, Lee also had a conversation with Packard about cooperating with other employees. Lee stated that on a subsequent occasion employee Feider complained to him about Packard's coop- eration, and that he then mentioned these matters to Foreman Morgan Further- more, in September 1964, Foreman McCarty had received a complaint from Day- Shift Gear Superintendent Kornmann to the effect that one of the night-shift gear lab inspectors had been leaving sarcastic notes for the day-shift operators. McCarty traced the notes back to Packard, and warned him not to leave notes for day employ- ees which could be interpreted as being sarcastic. McCarty also talked to Packard at the same time concerning his attitude toward his fellow workers on the night shift and the sarcastic manner in which he talked to other employees. During the latter part of October 1964, after McCarty returned from his vacation, Gil Sprecher, a night-shift gear lab inspector, complained to McCarty that Packard was not doing his share of the work. As a result of this complaint, McCarty talked with Feider, who confirmed that he had complained earlier about Packard to Lee. Feider also stated to McCarty, referring to Packard, that it was the first time in his opinion that the Company had hired a clown to entertain the people. McCarty then reported these conversations to Morgan, and they decided to observe Packard's performance to see if any improvement was made. As a result of this discussion relating to Packard by Morgan, Kinney, Glassmeyer, and Hurst, it was then decided to call Charles McCarty, Packard's immediate super- visor. Kinney then read some of the cartoon captions to McCarty over the telephone and also described the cartoons. McCarty informed Kinney that it "sounded like Jerry Packard," and that he had noticed some yellow scratch paper near Packard's tool box. McCarty then informed Kinney that the Company should terminate Packard, and at this point it was decided that the total of Packard's conduct constituted good cause for his discharge.? It also appears from this record that it is customary for the Company to notify the shop committeeman if and when an employee in his department is to be termi- nated. However, the Company was not sure whether Jon Osborne-Packard's shop committeeman-would be working on November 14, and as a result the night-shift chairman of the shop committee, Joe Jones, was called, and Jones then came to the plant about 3:30 p.m. Upon arrival Jones was shown the cartoons and he stated that they looked "kind of slanderous" to him. Jones was then also given an opportu- nity to compare the handwriting of the captions with samples from Packard' s person- nel file and he concluded that the writing was the same. Jones was then given a copy of the termination memo, and the incidents of prior misconduct were discussed with him. After explanations of the reasons for discharge Jones did not question any fur- ther the decision to terminate Packard. He requested permission to sit in on the termination conference and this was granted. As chairman of the shop committee, Jones stated that he probably could have appealed the discharge decision to the presi- dent of the Company, but he did not do so. Jones testified that he did not consider that Packard was being unfairly treated. At the termination conference Morgan first informed Packard that he thought they knew each other well enough that if he (Packard) had a complaint he could come to him and discuss it, or could discuss it with someone in the personnel office, and could 6 Dick Lee had replaced McCarty when the latter had been in the hospital during June and July 1964, and when he was on vacation during the first 2 weeks of October 1964 The Company has a policy prohibiting employees from bringing radios into the plant except for special sports occasions. At some time during June or July, Packard brought a radio into the plant. Lee saw the radio and advised Packard of the Company's policy and told him he would have to remove the radio. Packard did so; however, the follow- ing weekend Packard again brought the radio back into the plant and Lee reprimanded Packard for having violated his instructions. Packard admitted bringing a radio into the plant on one occasion and being told by Lee to remove it. 7A termination memo was then prepared setting forth all of the various incidents of misconduct involving Packard (General Counsel's Exhibit 6). It was also decided that Packard would be terminated at 4 p in. that evening-tbe start of his shift-and that Morgan, Hurst, and Kinney would be present at the termination conference. 408 DECISIONS OF NATIONAL LABOR RELATIONS BOARD not understand why Packard thought it was necessary to go to this extreme to make his thoughts known. Morgan then showed Packard the cartoons and asked him if he had done this. Packard admitted that he had, but stated that he was not the only one involved. Joe Jones then asked Packard to give the names of others involved and Packard replied that he would not. Packard was also asked whether he under- stood the wage increase and what it would mean to him. Packard was then handed a copy of the termination memo and told that he was being terminated. The only item on the termination memo which Packard questioned was the first item-credit complaint. According to Joe Jones, a witness called by the General Counsel, Packard was given adequate time to question any of the other statements concerning his past conduct as listed on the termination memo. Shortly before the conference ended Morgan returned with Packard's toolbox, and on top of the box was a yellow scratch pad of the same size as the paper to which the cartoons had been affixed.8 B. Contentions and conclusions The General Counsel mainly contends that Packard was discharged for engaging in protected concerted activity; that the Company had every opportunity to know that Packard was not acting alone in seeking redress of the gear department's grievance over the 2-cent-per-hour raise; and that Packard was acting in concert with other employees when the cartoons were prepared and posted. In respect to the cartoons the General Counsel specifically points out that a com- parison between General Counsel's Exhibits Nos. 3, 4-A, 4-B, and 5-A through F, reveals that they are not the product of the same person; and that no effort was made by the Respondent to ascertain the identity of the other employees taking part in this protest despite the obvious differences and admitted doubts as to the authorship of at least three of the cartoons. It should first be noted here that there was testimony showing that at various times clippings and cartoons of a humorous nature relating to bowling, golf, and other sporting events are frequently posted by employees on different walls and bulletin boards in the plant, and there appears to be no company policy against such postings. However, Personnel Director Glassmeyer stated that he had never seen cartoons posted in the plant of an insulting nature directed toward the president of the Com- pany as those involved in this proceeding. In my analysis of the factors surrounding the cartoons involved herein-it appears to me that there is lacking sufficient evidence to show that Packard's action in prepar- ing and posting his captioned cartoons was for the object of initiating, or inducing, or preparing for group action any activity about the amount of the wage increase announced by the Company. And, of course, it is well established by the Board and the courts that this is a vital element for a finding of concerted activity. In fact, there is no testimony or any verbal assertions whatsoever that Packard's preparation and posting of his cartoons were in any manner even calculated to induce group action by the employees to correct a grievance, and such as an "indispensable" pre- liminary step to employee self-organization.9 Moreover, Packard himself freely admitted that he knew of no agreement among employees to present their complaint as a group to the Company, and further admitted that to his knowledge no one had been selected to act as a spokesman in presenting such a complaint grievance on the Respondent's 1964 wage package. Therefore, it can be readily ascertained from Packard's own testimony that he was not engaged in protected concerted activity. The General Counsel relies on the fact that two or three other employees in the lab department either helped Packard prepare the cartoons or made some of the cartoons themselves. However, even these circumstances do not necessarily convert these efforts into protected concerted activity as to be such it must be activity looking toward group action, and in this case there is no convincing evidence in proof thereof. Certainly, there is no evidence that Packard had received any authority from the other employees to speak in their behalf, and the record contains Packard's own admission to the contrary, as aforestated. In total aspects of the factual picture pres- ent here-there is insufficient evidence to support a finding that Packard's activities involved any effort on his part to initiate or promote any group action to do anything about the employees' complaints, and it must be deemed, therefore, to be an individual effort and nothing more. As pointed out previously herein Packard had received a prior warning about his authorship and the leaving of sarcastic notes to day-shift 8 Directly after Packard was discharged on November 14-Jon Osborn, Packard's own committeeman , as aforestated , was also given the reasons for the termination. 8 See N.L.R.B. v. The Office Towel Supply Company, Incorporated, 201 F. 2d 8318, 841, setting aside 97 NLRB 449. INDIANA GEAR WORKS 409 employees, and in a meaningful sense the cartoons involved here were merely an extension of his own personal habits and characteristics which the previous warning had failed to correct.lo Additional evidence in this record shows that the Company would consider it proper for an employee to make any complaint directly to his supervisor, and then to Glassmeyer in the personnel department, or to his shop committeeman or shop chairman, but there appears to be no requirement that complaints be channeled specifically through the shop committee. Personnel Director Glassmeyer testified that shortly after the November 1964 wage package was announced, the day-shift shop committee raised a question about it. Conferences were then held and as a result the Company made certain changes in its 1964 wage package 11 In point out the above because it appears to me that this action and corrective measure shows the good-faith intentions of the Company when it was met with rightful and purposeful employees' concerted activities, and further shows that at least one sizeable number of employees had successfully protested some aspect of the wage package when there was legitimate group direction and participation in their concerted efforts-rather than some individual employee merely slinging personal vilifications against the pres- ident of the Company because of his own dislikes. It might be argued here that the mere posting of the cartoons on the light fixture in the gear lab was activity that must be deemed sufficient to induce group action. However, from my observation and demeanor of Packard, along with the other factors here, I firmly believe that this conduct was merely in satisfaction of his own personal whim or gratification, and the carrying out of further habitual sarcastic reflections against those he worked for and with. There is nothing substantial in this record to show otherwise. Even assuming, however, that Packard was engaged in concerted activity-it is necessary to establish that at the time of the discharge the Company had knowledge of such activity. In efforts to show such knowledge the General Counsel produced testimony through four or five witnesses to the effect that some employees had con- versations with Foreman Russell Terrell in the gear lab sometime between the date the annual package was announced and the date of Packard's discharge. The testi- mony as to the contents of this conversation was very vague. Apparently one employee had asked Terrell a question about the wage package and Terrell spent a few minutes explaining the package. Packard did not participate in the discussion. These witnesses for the General Counsel also testified about a conversation with Chief Inspector Ted Heiliger concerning the wage package. This conversation also took place in the gear lab sometime between the announcement of the package and Pack- ard's discharge. Heiliger testified that Packard had made the statement to him that the amount of the increase was less than expected. Heiliger then spent a few min- utes explaining the increase. Packard testified on direct examination that he had told Heiliger that if the Company could not afford to give more, then it could keep his 2 cents an hour. On what cross-examination Packard admitted that he could not remember what any particular person had said. In my analysis of this testimony it is noted that neither Heiliger nor Terrell was a supervisor or foreman of Packard, and there is certainly no testimony whatsoever by any witness to show that Heiliger or Terrell had communicated the fact of the above conversations to the management per- sonnel (Morgan, Glassmeyer, Kinney, and Hurst), who made the actual decision to terminate Packard, as aforestated. Nothing that happened during either of the above episodes could be construed as placing Respondent on notice that Packard was one of a group of employees engaged in group action to do something about the amount of the wage increase. Furthermore, at the termination conference Foreman Morgan told Packard that he was free to talk to supervisors over his complaints. Packard did not then, or at any other time during this conference, state that he had ever registered any complaint over the matter with Terrell or Heiliger. At the start of the termination conference, Packard was also asked to give the names of any other employees who were involved in making the cartoons, but he declined to do so. In this respect the Respondent's position is as follows: Respondent submits that under these circumstances, further inquiry was not reasonably called for, and that Packard's unsupported claim that others were "involved" was not sufficient to establish that at the time of the discharge, Respondent had knowledge of the concerted nature of the activity. Respondent had no reason to believe that Packard's activity was for or on behalf of anyone other than himself. 10 Lloyd Fiscus testified that around Christmas time someone had put up a sign at the entrance to the gear lab reading , "You are not entering fairyland." n Respondent's Exhibit 2. 410 DECISIONS OF NATIONAL LABOR RELATIONS BOARD I agree, and as I have found even with the assumption that Packard was engaged in concerted activity, there is insufficient evidence to show company knowledge of this activity at the time Packard was discharged. In addition to the above, it is also well-recognized law that an employee engaged in concerted activity (assuming again that Packard was so engaged and with knowledge to the Company) loses the protection of the Act when he oversteps the bounds of lawful activity and engages in flagrant misconduct. In Bettcher Manufacturing Cor- poration, 76 NLRB 526, the Board stated in part as follows: A line exists beyond which an employee may not with impunity go, but that line must be drawn between cases where employees engaged in concerted activities exceed the bounds of lawful conduct in a moment of animal exuber- ance or in a manner not activiated by improper notices, and those flagrant cases in which the misconduct is so violent or such serious character as to render the employee unfit for further service. The evidence in this record shows that the cartoons prepared and posted by Packard were pointedly aimed and directed at President Buehler, holding him up to contemptu- ous ridicule, and were insulting, sarcastic, and malicious, and showing a clear dis- loyalty to the company and indefensible by all accepted standards of conduct. Two of the cartoons contained the proper name "John," General Counsel's Exhibits Nos. 5(a) and (f), and to use a variation of the phrase "I love you," General Counsel's Exhibits Nos. 5(a) and (c). Packard denied that by using the name "John" or varia- tions of the phrase "I love you," he intended to refer to President John Buehler. How- ever, five witnesses testified that use of the word "John" was an obvious reference to John Buehler, and that use of the phrase "I love you" was again a clear cut reference to John Buehler as this was a customary and widely known phrase used by him in verbal and written communications to employees.12 Furthermore, the malicious and derogatory nature of the cartoons prepared by Packard is self-apparent to anyone seeing them. For instance, the caption on General Counsel's Exhibit No. 5(e) states, "I'll tell you where you can stick your 2 cents an hour!" Such a personal flagrant outpouring of misconduct would most certainly have a serious and disruptive effect on any effective plant discipline, and most assuredly also rendered Packard's continued services with the Company useless.13 In my analysis here this record shows that there were recognized channels for com- plaints of employees; that such channels had been used by a large number of employ- ees in registering their group complaint about the wage package and a change was thereafter made; that the Company through supervisors had advised employees about the wage package; and that the Company has no animus whatsoever to employees who presented complaints through means not activated by improper and flagrant misconduct. In a brief summary of the other reasons given for Packard's discharge, as afore- stated, it is pointed out that the only item Packard questioned on his termination memorandum was the reference to a credit inquiry. It is apparent from reading this document that it dealt with some aspects of garnishment proceedings, and at the time Assistant Personnel Director Hurst had some discussion with Packard about it.14 At his termination conference Packard did not question any of the other matters on the memorandum, and the evidence in these respects show that Packard had been warned about bringing a radio into the lab, warned against disobedience while driving in the parking lot, warned about leaving sarcastic notes for day-shift employees, and warned on two or three occasions about his uncooperative attitude or not doing his share of the work.15 From merely these reasons and incidents it appears to be that the Company had good cause to terminate Packard even apart from his activities involving the cartoons. In concluding here I have no doubt that Morgan and McCarty were considerably upset and annoyed by Packard's contentious attitude toward his work, and his con- tinuous lack of a cooperative spirit, and they undoubtedly seized upon Packard's cartoons as the final act in a rather long series of difficulties with him. The decision 12 Examples of communications to employees by John Buehler are in evidence-and close with the phrase, "I love you, John." 13 See Socony Mobil Oil Company, Inc, 153 NLRB 1244 14 That credit complaints are considered serious offenses by Respondent is evidenced from General Counsel No. 10, which shows that of the 17 employees terminated by the Company during the years 1963, 1964, and 1965 (to April 1), 4 were discharged for credit complaints. 15It is readily admitted that no written warnings were given to Packard even though the Respondent's policy is aimed toward such a practice PENN CORK & CLOSURES, INC. 411 to discharge Packard may of course been hastened by thoughts that Packard was a potential agitator of certain imagination and ingenuity in the gear department, but evidence to support such a motivation is extremely tenuous. In fact, it exists almost exclusively, if not entirely so, upon an evaluation of the circumstances that the Com- pany had a comfortable and secured relationship with the shop committee, and did not want it to be disturbed. However, the facts that must be relied on without mere speculation is that Packard was a dissenting element who objected to the wage package. Equally clear are the facts that his objections registered through the cartoons caused concern in their pointed direction and personal attack on President Buehler. To my knowledge the Act does not protect malicious ridicule or flagrant misconduct, nor activity to destroy plant discipline, nor does it protect the misconduct of an employee who renders himself unfair for further service by his own individual deeds. Moreover, the Company did not know that Packard was leading any group as openly acknowledged in Packard's own testimony, and to put the frosting on the cake, so to speak, the night-shift chairman of the shop committee, Joe Jones, stated that under the particular circumstances involved in this discharge he did not feel that Packard was unfairly treated. Neither do I. I conclude and find that on the record presented here a preponderance of the evidence does not support the complaint that Packard was discharged in violation of Section 8 (a) (3) and (1) of the Act. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. The Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The allegations of the complaint that the Company has engaged in and is engag- ing in unfair labor practices within the meaning of Section 8(a) (1) and (3) of the Act have not been sustained. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law , and upon the entire record in this case, it is recommended that the complaint herein be dis- missed in its entirety. Penn Cork & Closures, Inc. and Alejandrino Vega Sustache and District Lodge No. 15 of the International Association of Ma- chinists, AFL-CIO, Party to the Contract. Case No. P9-CA- 171. December 28,1965 DECISION AND ORDER Upon charges duly filed on March 9, 1965, by Alejandrina Vega Sustache, an individual, the General Counsel for the National Labor Relations Board, by the Regional Director for Region 29, issued a complaint on June 22, 1965, against Penn Cork & Closures, Inc., herein called the Respondent, alleging that it had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8(a) (1) and (2) of the National Labor Relations Act, as amended. Copies of the complaint, the charge, and notice of hearing were duly served upon the Respondent and upon District Lodge No. 15 of the International Association of Machinists, AFL- CIO, Party to the Contract, and upon the Charging Party. With respect to the unfair labor practices, the complaint alleged, in substance, that by continuing to deduct union membership dues under employee checkoff authorizations following union deauthoriza- 156 NLRB No. 39.