G & S Metal Products Co., Inc.

G & S METAL PRODUCTS COMPANY G; & S Metal, Products Company, 'Inc. and Local No. 416, International Brotherhood of Teamsters , Chauf- feurs, Warehousemen and Helpers of America. Cases 8-CA-5300 and 8-CA-5345 I April 24, 1970 DECISION AND ORDER BY MEMBERS FANNING, BROWN, AND JENKINS On October 3, 1969, Trial Examiner Lloyd Buchanan issued his decision in the above-entitled proceeding, finding that Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. The Trial Examiner also found that Respondent had not engaged in certain other unfair labor practices alleged in the complaint and recommended that these allegations be dismissed. Thereafter, the General Counsel filed exceptions to the Trial Examiner's Decision and a brief in support of said exceptions. The Respondent filed a brief in opposition to the General Counsel's exceptions and in support of the Trial Examiner's Deci- sion. 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 con- nection with this case to a three-member panel. The Board has reviewed the rulings of the Trial Exam- iner-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 hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, as modified herein. We affirm the Trial Examiner's conclusions finding the independent 8(a)(1) violations, but we do not thereby necessarily adopt all his comments regarding the Board's ruling on the interim appeal from his initial dismissal of those allegations on the ground that they were barred by the 6-month limitation of Section 10(b). Support for our position that the independent 8(a)(1) violations, though not specified in the charge, were properly includ- ed in the complaint, can be found in Fremont Hotel Inc.,' and cases cited therein. The Trial Examiner found that the discharge of Rita Devaney did not constitute a violation of Section 8(a)(3) of the Act, with which we agree. He also, however, failed to find that her suspension and discharge constitut- ed a violation of Section 8(a)(1) of the Act, with which we disagree. The Trial Examiner found that for some weeks prior to January 27, 1969, there had been a series of slashings of employees' coats in Respondent's plant. On January 27, employee Brady had her coat slashed and spoke to both her supervisor and Respondent's vice president ' 162 NLRB 820 111 about it. Hearing nothing, she again spoke to her supervi- sor who arranged a meeting with Respondent's president on February 3, 1969. Employees Williams and King had their coats slashed also, and were included in the meeting of February 3. Approximately 4:30 p.m. on February 3, Devaney was leaving the plant when a fellow employee informed her that her brand new coat was slashed.-She returned to the plant where she met her supervisor taking employees Brady, Williams, and King to the front office. When he asked her what was the matter, she informed him that " some son-of-a-bitch cut my coat," and she wanted to know "What kind of goddam shit is this?" When Devaney arrived at the front office, she asked Vice President Gould "what the hell was going on" and told President Schwartz that she "was mad, God damn good and mad." The four employees asked Schwartz to reimburse them for the damage to their coats, but Schwartz refused. He did inform the employees that he would criminally prosecute anyone found guilty of slashing coats, and perhaps buy a big locker to keep the coats in until the 4:30 p.m. quitting time. The following day when Devaney reported to work, she was informed that she was suspended for 3 days because of her foul and abusive language when coming into the main office. Devaney reported back to work on February 7, and worked a full day. She was discharged that day, although she had done a full day's work and had not caused any trouble, for the alleged reason that her attitude had not changed. We note that the evidence reflects that Devaney had not used profanity in the plant from her employment until her discharge, except on this one occasion. We further note that, upon returning from her 3-day suspen- sion, Devaney was very careful not to offend anyone and remained to herself at her work bench. This allegedly was taken by management to indicate that Devaney's attitude had not changed, and, therefore, she was dis- charged. ' We do not condone the kind of language used by Devaney, but despite the Trial Examiner's characteriza- tion of it as the "vilest and filthiest in any compilation," we do not think that the vulgarities used were so repre- hensible as reasonably to have moved the Respondent to suspend the offending employee and then invoke the ultimate penalty, that of discharge, when she returned to work and was very circumspect in her behavior. Under the circumstances of this case, we are convinced that this alleged reason for discharge was a pretext. In our view, Devaney, Brady, Williams, and King were engaged in protected, concerted activity when they went into the front office to protest the lack of protection for their wearing apparel. The fact that Devaney was the most vociferous is to be expected since her coat had been slashed that day, while the coats of the other employees were slashed some days before. Under the facts of this case we find that Devaney was suspended and subsequently discharged for her participation in the presentation of employee grievances, a right guaranteed by Section 7 of the Act, and that 182 NLRB No. 22 112 DECISIONS OF NATIONAL I ABOR RELATIONS BOARD such suspension and discharge violated Section 8(a)(1) of the Act 2 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 further has been found that the Respondent has discriminated against employee Rita Devaney by suspending her for 3 days and by subsequently discharging her in violation of Section 8(a)(1) of the Act We shall therefore order the Respondent to offer her immediate and full reinstate meat to her former or substantially equivalent position, without prejudice to her seniority or other rights and privileges, and to make her whole for any loss of pay she may have suffered as a result of this discrimination against her by payment to her of a sum of money equal to that which she would have earned as wages from the date of the discrimination to the date of rein- statement, less her net earnings during such period, in accordance with the formula prescribed in F W Wool worth Company, 90 NLRB 289, together with interest at the rate of 6 percent per annum to be added to such backpay, such interest to be computed in accordance with the formula prescribed in Isis Plumbing & Heating Co 138 NLRB 716 CONCLUSIONS OF LAW I Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act 2 Local No 416, International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America, is a labor organization within the meaning of Section 2(5) of the Act 3 By promising to send the best workers and their husbands on an expense-paid trip to Chicago, a week or 10 days before a Board conducted election, Respond ent interfered with, restrained, and coerced employees in the exercise of rights guaranteed them in Section 7 and thereby violated Section 8(a)(1) of the Act 4 By promising employees hospitalization, life insur ance, and a pension plan 2 days before the Board- conducted election of July 25, 1968, Respondent inter- fered with, restrained, and coerced employees in the exercise of rights guaranteed them in Section 7 and thereby further violated Section 8(a)(1) of the Act 5 By promising automatic and merit raises to the employees if the Union did not win the election, Respondent interfered with, restrained, and coerced employees in the exercise of rights guaranteed them in Section 7 and thereby further violated Section 8(a)(l) of the Act 6 By the interrogation of employees as to their union sympathies Respondent interfered with, restrained, and coerced employees in the exercise of rights guaranteed 2 N I R B v Washington Aluminum Co 370 U S 9 them in Section 7 and thereby further violated Section 8(a)(1) of the Act 7 By suspending and ultimately discharging Rita Dev- aney for her manner in presenting an employee griev ance, Respondent restrained and coerced employees in the exercise of rights guaranteed them in Section 7 and thereby further violated Section 8(a)(1) of the Act 8 The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec tion 2(6) and (7) of the Act 9 Respondent did not violate the Act by refusing to allow an employee to change shifts ORDER Pursuant to Section 10(c) of the National Labor Rela- tions Act, as amended, the National Labor Relations Board adopts as its Order, the Recommended Order of the Trial Examiner, as herein modified, and hereby orders that the Respondent, G & S Metal Products Company, Inc , Cleveland, Ohio, its officers, agents, successors, and assigns , shall take the action set forth in the Trial Examiner's Recommended Order, as so modified I Insert the following as paragraph 1(c), the present paragraph 1(c) being relettered 1(d) "(c) Discharging employees or otherwise discriminat ing 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 mutual aid or protection " 2 Insert the following as paragraphs 2(a) and (b), the present paragraphs 2(a) and (b) being relettered 2(c) and (d), respectively "(a) Offer to Rita Devaney immediate and full rein statement to her former job, or, if her job no longer exists, to a substantially equivalent position , without prejudice to her seniority or other rights and privileges, and make her whole for any loss of pay suffered by reason of the discrimination against her in accordance with the method set forth above in the section entitled `The Remedy ' " "(b) Preserve and, upon request, make available to the Board and its agents , for examination and copying, all payroll records, social security payment record, time- cards, personnel records and reports, and all other records necessary or useful to determine the amount of backpay due under the terms of this Recommended Order " 3 Insert the following as the last two indented para graphs of the notice WE WILL NOT discharge any of our employees or discriminate in regard to their hire, tenure of employment, or any term or condition of employ- ment , because they have engaged in concerted activ- ities for the purpose of mutual aid or protection WE WILL offer Rita Devaney immediate and full reinstatement to her former job, or if her job no longer exists, to a substantially equivalent position, without prejudice to her seniority or other G & S METAL PRODUCTS COMPANY rights and privileges , and we will make her whole for any loss of pay suffered by reason of our discrimination against her. , IT IS FURTHER ORDERED that those portions of the complaint as to which no violations have been found are hereby dismissed. TRIAL EXAMINER'S DECISION LLOYD BUCHANAN, Trial Examiner : Two points of general interest beyond the bounds of this case may be noted . The first and of basic and overdue consider- ation is the validity of the distinction too frequently claimed between language of the shop and that of the traditional drawing room . There may be no distinction between some shops and some so-called drawing rooms. The test here is not my or the Board ' s concept of propriety or the permissible , but whether there was an unlawful distinction or discrimination with respect to one employee. The second point of general interest relates to the effect of Section 10(b) of the National Labor Relations Act, as amended (73 Stat. 519). On the ground that "some relationship " (in the language of the cases) does not exist between the allegations of the complaint and the language of the four charges filed, and that they are not "closely related ,"' I dismissed at the hearing the allegations of independent violation of Section 8(a)(1) of the Act. It would appear that "a common thread," argued by the General Counsel in his interim appeal to the Board from the 8(a)(1) dismissal , in the 8(a)(1) and (3) events alleged is not sufficient under Section 10(b) unless a relationship or the common character of the events not cited in the charges filed can be discerned from the events which are cited . The relationship, wheth- er "close" or merely "some," should , it seemed to me, similarly be discernible if the purpose of Section 10(b) is to be met . Beyond the identity of the Respondent Company and the Charging Union, there does not appear to be any common thread or any relationship, close or otherwise. The Board granted the General Counsel ' s request for special permission to appeal , granted the appeal on the record to that point , and the General Counsel's memorandum , and reversed the Trial Examiner "on the ground that the allegations of the charges are sufficiently related to those in the complaint to support the complaint ."2 To which of the four charges such relationship was found has not been declared. The Board remanded the proceeding to me for further hearing. For the benefit of those who may seek to understand Board procedure and interpretation of Section 10(b), it may be noted that I explained in my erroneous dismiss- ' North Country Motors; Ltd, 133 NLRB 1479, 1480, citing N L.R B v Pecheur Lozenge Co., Inc, 209 F. 2d 393 (C A 2) While concerned with Section 10(b), everyone involved understands that a charge merely serves to initiate an investigation, etc R We shall consider below the General Counsel's later argument that the testimony concerning interference in June should have been received to show company animus 113 al that there is no reference in the charges to so- called independent violation of Section 8(a)(1) or interfer- ence, restraint, or coercion, and therefore no relationship at all which I could recognize between the charges and the 8(a)(1) allegations of the complaint-beyond the printed reference to Section 8(a)(1) in the forms entitled, "Charge Against Employer" and, at the end of the significant portion of the forms, which reads in print "Basis of the Charge (Be specific as to facts, names, addresses, plants involved, dates, places, etc.)" and calls for insertion by the Charging Party of the facts constituting the basis for the charge, the following printed sentence: "By the above and other acts, the above-named employer has interfered with, restrained, and coerced employees in the exercise of the rights guaranteed in Section 7 of the Act. "3 Indeed, aside from these printed references to interfer- ence, the three charges filed in Case 8-CA-5300 on January 13 and 23 and February 27, and served on January 15 and 27 and March 3, respectively, allege as their basis only discrimination against two employees who are not mentioned in the consolidated complaint and unlawful refusal to bargain, which is likewise not mentioned in the complaint. Those charges were not dismissed but were kept open although no complaint issued with respect to the claims therein described. In short, none of the items specifically cited in the three charges in 8-CA-5300 has been alleged in the consolidated complaint. But those charges, or one of them, have been retained as the vehicle to support the allegations of interference in July 1968." The sole apparent5 reason for consolidating these cases for hearing was reflected in the inclusion of the complaint' s allega- tions of interference which, aside from their relationship to any of the charges, could not because of the 6- month limitation be alleged under the fourth charge, which alleges discrimination against employee Devaney in Case 8-CA-5345 and is dated February 10, 1969. That discrimination and several instances of interference on July 15 and 23 and one on October 30, 1968, are alleged in the complaint. The function of the charge being to set in motion the Board's machinery in order to ascertain whether or not a complaint should issue, the charges in 9 This has been referred to through the years as "derivative 8(a)(1)" as distinguished from "independent 8(a)(1)," the latter now determined to be sufficiently related to the charges herein 4 This is not intended to leave the Board "not satisfied with the presentation of the case " in this Decision, but to present facts and considerations which were not presented to the Board on the interim appeal and have not been since This more complete review of the facts presented to it for the first time might well lead to the conclusion that the entire matter might be reexamined We shall note below that, aside from any question of relationship , some strain is necessary to find that some of the alleged violations in July occurred within 6 months of the date of the filing and service of even the first charge in the earlier proceeding. 5 That the older charges were not being relied on or being further investigated is suggested by the fact that the single allegation of discharge in the consolidated complaint did not flow from investigation of those older charges, which could have supported it (a new charge was not necessary), but stemmed from the charge filed in the new proceeding on February 10 114 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 8-CA-5300 apparently did not themselves prompt action to a decision to issue a complaint related to or based on them. ' With, the filing of the 8-CA-5345 charge, we now have a claim that the otherwise 10(b)-barred conduct was related to the violation cited in one or more of the charges filed-although neither on their face nor from the testimony is it clear that the allegations of violation "on or about July 15, 1968," relate to events within 6 months of the filing and service of the first charge. The dismissal at the trial, thereafter reversed, was of the allegations of interference in July.5 That in Octo- ber, although not alleged as discriminatory, could proper- ly be found, if sustained, to be violative of Section 8(a) (3), and it occurred less than 6 months prior to the filing of the 8-CA-5345 charge.7 Relationship is necessary presumably to apprise a respondent, not of details of the actual violations to be alleged, but of the general nature of the investigation to be made and the allegations which may follow so that he may have at least a very rough idea, but an idea, of what he-may face. It is true, as the General Counsel pointed out, that it is the complaint which serves notice of the particular conduct alleged to be violative. Until the Board declared differently, I thought that the charges here bore no relation, particular or general , to the allegations of independent interference since they referred to violations of different sections of the Act, only one of which was thereafter alleged; and as to that one the charge was not timely for the independent interference now urged. It was with this in mind that I stated, in dismissing the allegations of independent 8(a)(1) violation, that I could think of no situation in which a complaint alleging interference could to any greater extent transcend and indeed be unrelated to the charge. I have since been and will be hereafter guided by the Board's decision on the interim appeal. Unless I misunderstand (the facts and reasons have here been detailed as they could not be when the issue arose at the trial and as they were not in the interim appeal), allegations of violative interference are deemed related and sufficiently supported by the form's printed reference to interference , restraint , and coercion by "the above and other acts," whatever other reference there may or may not be in the charge. The consolidated complaint (issued February 28, 1969; charges filed in 8-CA-5300 on January 13 and 23 and February 27, and in 8-CA-5345 on February 10, 1969), as amended, alleges that the Company has violated Section 8(a) (3) of the National Labor Relations Act, as amended (73 Stat. 519), by suspending Rita Devaney for 3 days beginning February 3, 1969, and discharging her on February 7 because of her union and other protected concerted activities; and Section 8(a) (1) of 6 Dismissing an allegation of discriminatory suspension , the Board in General Electric Company, Automatic Blanket Plant, 155 NLRB 1365, 1368, noted the remoteness of interference 10 months before which had been cited to show union animus. The complaint itself thus provided notice within the statutory period the Act by said acts and by interrogation, threat, and promises on or about July 15, 1968, promises on or about July 23, and a refusal in or about the third week in August to allow an employee to change shifts. The allegations of violation are denied; the suspension and discharge are admitted; but it is claimed'that they were for just cause. The case was tried before me at Cleveland, Ohio, on May 8 and June 10, 1969. Upon the entire record in the case and from my observation of the witnesses I make the following: FINDINGS OF FACT (WITH REASONS THEREFOR) AND CONCLUSIONS OF LAW 1. THE COMPANY'S BUSINESS AND THE LABOR ORGANIZATION INVOLVED The facts concerrling the Company's status as an Ohio corporation, the nature and extent of its business, and its engagement in commerce within the meaning of the Act are admitted; I find and conclude accordingly. I also find and conclude that, as admitted, the Union is a labor organization within the meaning of the Act. II. THE UNFAIR LABOR PRACTICES A. The Alleged Independent Violation of Section 8(a) (1) Devaney testified that a week or 10 days before a Board-conducted election on July 25 involving" the UAW, Schwartz, the Company 's president , called her into his office and, while explaining that he would be guilty of bribery were he to grant any benefits at that time , promised to send the best workers and their hus- bands on an expense -paid trip to Chicago. McCarty, who was discharged on February 28, 1969, testified that about the second week in July Schwartz called her to his office , suggested the possibility of a trip to Chicago for several of -the girls , and asked her to persuade them to follow his thinking . (McCarty withdrew her earlier statement that it was at a meeting of all of the employees at least a week before July 23 that Schwartz spoke of the Chicago trip .) According to Brady, still employed by the Company , it was at a meeting on July 23 (this brings us clearly within the 6-month period ; Brady was the General Counsel's last witness) that Schwartz spoke of taking some employees to Chica- go. Such variances as to dates and whether or not it was at a meeting scarcely- enhance this testimony. But Schwartz told us, in the phrase so many times employed, that a week or 10 days before July 25, with several supervisors and employees in the office , he spoke of a hope to send supervisors and then of "some type of policy [to be] set up" for trips to Chicago to show the employees what competitors are doing . There is no sufficient explanation for such dangling of benefits in futuro at a time when a representation election was at hand . I find and conclude that Schwartz was campaign- ing with benefits in violation of Section 8(a)(1). G & S METAL PRODUCTS COMPANY I have here assumed the timeliness of the charges filed, the first as alleged on January 15. With one refer- ence to the second week of July and the allegation of "on or about July 15," one must but can strain to find that this interference occurred within 6 months of the date of the filing of the earliest charge. If it has not been pointed out which of the charges is related to the allegations of interference, we do have at least some references to dates, references which can be emphasized for a finding that this July 1968 interference occurred within 6 months of the service of the earliest charge. I feel compelled by the circumstances to date to engage in this lesser exertion for a finding that, if the charges sufficiently relate to the allegations of interference , then the first of those charges so relates and was timely served, the General Counsel having thus sustained his burden despite the indefiniteness con- cerning essential dates. I would not (and would not be called upon to) make such a finding, nor would I hesitate now to recommend that it be reversed, had my earlier dismissal not been reversed. McCarty testified further that at a meeting with employees placed by the General Counsel at "about a week or so before the election;" Schwartz warned that, with the UAW in, the night shift would be closed down because Foreman Porchia could not work both shifts. According to Devaney this, including his inability to work both shifts, had been said to her by Porchia about July 1, and then by Schwartz to her personally, not in a meeting , about July 9 or 10. The connection between the UAW and Porchia's inability to work both shifts is nowhere explained. I credit Schwartz' testimony that there were several discussions concerning the absen- tee rates on the night shift and its effect on quality, without reference to or threat with respect to the Union. (Brady placed such a threat at the meeting a day or two before July 25. She also told us that, although the UAW lost the election , the night shift was discontin- ued the following month.) Her recollection refreshed, Devaney testified that in her conversation with Schwartz a week or 10 days before July 25, she asked him about the automatic raise which the employees were supposed to get in June; and that he replied, as noted above, that he could not grant that lest the Union charge him with bribery. Other and more reliable testimony was received on this point. McCarty's sister, Tomallo, no longer in the Company's employ, testified that at a meeting 2 or 3 days before July 25 Schwartz told the employees that they would be getting a substantial raise and that, while he could not quote the amount, they knew what it would be. Whether or not there was a policy of increases about January and July of each year, Tomallo was employed during three such dates and received three increases although she denied that the second was 6 months after the first. Brady told us that at the same meeting about July 23 Schwartz promised that, among the changes to be made if the UAW did not get in, there would be raises twice a year and merit increases. Brady had herself 115 received an increase after she asked for one later in 1967, the year in which she was employed, and then again in July 1968. She did not receive an increase in January 1969. Townes, employed between August 1967 and January 9, 1969, asked for and received a 5-cent increase after 3 months , another a month later, and thereafter (date not given) a 20-cent increase. If this did not follow even "roughly" a July-January pat- tern, the explanation that she had a very poor attendance record does not explain both the absence of regularity in the increases and yet,the granting thereof. The sum total of the evidence received with respect to increases granted does not support Schwartz ' testimo- ny (although the latter is bolstered by Devaney's testimo- ny, were that relied on, that she asked him concerning the automatic increase, and also that Porchia had told her of a policy to grant semiannual increases) that it has been the Company's policy for 4 or 5 years to give raises "roughly" at the beginning of July and January of each year; that it has "not been an automatic" but something which they "follow through"; and that in addition there are merit raises. In any event, Schwartz was not here reminding the employees of existing favora- ble aspects concerning wage increases. He promised increases if the UAW were voted down and in any event made promises immediately before the election, in violation of the Act; I so find and conclude. It would add little to consider Schwartz' promise, in response to employee Versey's request for more vacation pay, to "make it up to" her after it all blew over, in a few weeks. Devaney testified further that, in her private conversa- tion with Schwartz a week or 10 days before July 25, he told her that the Company was in the process of getting hospitalization , life insurance , and a pension plan "but they couldn 't get it right then because of the union." She also told us that Schwartz spoke of insurance to all of the employees at a meeting about July 23, explaining that he could not do anything about it "until after the union was settled." Several employees testified that at the employee meet- ing on July 23 Schwartz introduced two insurance repre- sentatives who spoke of a life insurance and pension plan and a group hospitalization program already in being. The employees had never before heard of either or received any material concerning them. Although quite unreliable with respect to the date as she placed it before her vacation in early July, Versey, Devaney's sister, testified that she was called into the office where Schwartz spoke to her concerning insurance and the pension plan allegedly discussed at a meeting the day before, when she had been absent. In any event this was after the commencement of the UAW 's organization- al campaign and the filing of the petition on June 28. I credit this testimony in the face of Schwartz' clearly uncertain testimony that he had distributed a pension plan booklet before July 1. I find and conclude that Schwartz on July 23 unlawfully promised hospitalization and a life insurance and pension plan. The allegation of promise of a credit union is not supported. 116 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Versey testified that a day or two before the election, at a meeting attended by Foremen Hyde and Porchia and the employees, Hyde asked whether she could do anything to prove that the Company would come through with its promises; Roberts, no longer at the Company, asked for $2 an hour and an increase in 6 months; and Hyde replied, "Shake on it," and they shook hands. Townes testified that about July 15 (again we have "on or about July 15, 1968," when that is the critical date) Hyde asked her how she felt about the UAW and promised that, if the Company ,won, Townes would get a raise and; a party. I find and conclude that the promise was unlawful' and in context that the interroga- tion was also. Hyde was asked only about and denied that she had promised Townes a salary increase. McCarty testified that about the third week in August, when she complained about her job on the day shift after the night shift had been abolished, Foreman Bern- stein replied that he had told her that she "should have stayed with the Company." This does not support the allegation of refusal to allow Townes to change shifts. A possibly violative statement attributed to Bern- stein was neither alleged nor litigated. Bernstein did not testify. B. The Alleged Violation of Section 8(a)(3) Union activity commenced about December 17, 1968, when two representatives of the Union" met with Deva- ney, Versey, and Tomallo at the home of Devaney's babysitter.10 The three girls asked for and received union cards which they and McCarty and Brady distributed at the plant. Devaney testified that she distributed cards in the restroom. A week or two after the first meeting, one of the union representatives met with Devaney and Versey at the latter's home, and Devaney gave him 47 signed cards. He gave Devaney and Versey "25 or 50" more cards, which they took into the plant and gave to girls who were interested in signing for a union. Apparently 15 or 20 cards were now signed, they were collected, and Devaney gave • them to the union representative at her home.'1 Whatever the extent of Devaney's participation, in none of this is there any indication of company knowl- edge thereof. Nor is there warrant for inferring such knowledge on the basis of the small plant rule.12 Indeed, Devaney on February 4 attributed her suspension, of which more below, to the fact that she had gone into the office the day before (no reference there to concerted 8 A separate allegation and finding with respect to the party are quite unnecessary 8 Now the Teamsters, the Charging Union herein We recall that the earlier references were to the UAW 10 Why at her babysitter's house and what, if any, relationship she had with any of the employees, we do not know Versey later testified concerning the meetings at the babysitter's house 11 The signed cards were not produced at the trial. There is no claim of majority or refusal to bargain. There were 76 eligible voters in the July election. 12 Cf Saxon Paint Stores, Inc , 160 NLRB 1757, 1760, where there were 70 eligible voters activity even at that time) and to "what happened in July." While Devaney's conclusion is not controlling, her concerted activity on behalf of the Union certainly did not loom in her own mind as a possible cause for the action against her. In the earlier UAW campaign her activity consisted of signing a union card. On the issue of company knowledge of union activity, McCarty, in her conversation with Bernstein, noted above, told him that she had voted for the UAW in July. As she put it, "Everbody knew about it." McCarty also testified that in December she got employees to sign union cards and gave them to Devaney. Because I do not know what claims may be made in this connec- tion (I was favored with neither briefs nor oral argument), I would point out that I have not forgotten the testimony, noted above, that Schwartz called Devaney into his office in July; he also, called in McCarty. There is no claim of discrimination in connection with, McCarty's termination. The testimony concerning Devaney's union activities does not support the claim that they prompted or were considered in action taken against her. Nor do the findings of interference, above, indicate special attention to Devaney by the . Company in that connection or knowledge of her union activity as distinguished from union activity generally on behalf of the UAW at that earlier period. Not related to cards or union activity, but,to the question of concerted activity and the issue of discrimination, are certain events on February 3, which we shall now consider. Just after punching out on. February 3, Devaney was outside the plant and on the way 'to her, car "when Tomallo told her that her (Devaney's),coat was 'cut. The coat was new, and' it now showed a 12-inch cut through the outside material and the lining above the right pocket,, and a 4-inch cut immediately, behind the first. (Employees" coats were hung 'in'two large open -closets.) Devaney immediately returned to the plant and ran into her foreman Porchia, who was himself on the way to the office with several other employees. Devaney testified that she asked him, "what' in the hell was going on," and that he replied that he was going to find out. We now pick up Brady. She testified that on January 27, exactly I week earlier, she was in line to punch out when a girl told her that her (Brady's) coat was cut. Brady spoke :o Porchia about it, and he said that he would check in the front office for her. Two or ,three days later she 'asked Porchia about it, and he told her to talk to Gould, the Company's vice president. She spoke with Gould but, hearing nothing further, again approached Porchia. In the meantime two other girls' coats had been cut,13 and Porchia was asked to arrange an appointment with Schwartz to see if he could do something about it. Porchia arranged an appoint- 18 Coat slashing had begun about a month before. We have no evidence of action concerning it by management or employees prior to that herein described G & S METAL PRODUCTS COMPANY ment for all three, and they were now, about 4:30 on February 3, on their way to Schwartz' office. Unlike these others, who had first taken it up at a lower level, Devaney immediately went to the top. This is not noted by way of criticism; but it indicates that her attitude was different from that of other employ- ee s. Brady told us that in the outer office Devaney asked Porchia, "What the hell is this for?" and that "he tried to quiet her down some." At this' point we return to Devaney's testimony. She told us that as the group got to the outer office, she asked Gould, as she had Porchia, "what the hell was going on." 'He told her to be quiet, that Schwartz was on the telephone in the inner office. Presumably to show that her language was not unusual in that environment, and quite acceptable, Devaney told us that Gould had on one' occasion in December 1968 cursed in the shop. (She first placed this in the shop office.) This was not denied by Gould, with respect to whom we received only a stipulation that he would testify as did Porchia and Hyde concerning the events of February 3. It is clear from Devaney's testimony that Gould did not reply to her in kind. Devaney's testimony of cursing by supervisors (none is attributed to other employees) was not corroborated. To the extent that they were questioned concerning this, the General Counsel's witnesses, in different degrees, testified only to Devaney's obscenities. While Gould allegedly spoke so only once, Devaney attributed many14 such transgressions to Porchia between October 1968 and February 1969., She cited one occasion when he employed a particularly foul phrase, and told us that she heard similar language: from. Porchia' at various times. Porchia denied the two specific instances cited,by Devaney, and that he ever- used such language. Scarcely corroborative of Devaney's testimony is Bra- dy's statement that Porchia did on one occasion use an obscentiy attributed to him by Devaney; she later declared that she could not remember whether or not he had said that. Continuing with the events of February 3, Devaney testified that she and three other employees, with Porchi- a, Hyde, and Gould, now went into Schwartz' office. Devaney continued, "He looked at all of us, he looked at me , and he stared at me." (For this last, we have neither reason nor explanation from Devaney.) Devaney thereupon told Schwartz that she "was mad, [she] was God damn good and mad." Schwartz replied that he had just gotten through talking to the Labor Board, and he was mad too. (No one else mentioned the Board, and we are left to wonder about Schwartz' provocation. At any rate his reply to Devaney'was mild.) The three girls now spoke up in turn, and decently, in contrast with Devaney's attitude, asking Schwartz to reimburse them for their damaged coats. To each, Schwartz replied that he could not,'his hands were tied.' ' 11 The General Counsel seems not to have expected reference to more than one "incident " It was seemingly a recently acquired habit of Porchia's 117 Still according to Devaney, Schwartz continued by telling her that his door had always been open to her, that she could come in at any time to see him and talk to him; and that she replied that if he had lived up to the promises that he had made to the girls in July, none of them would have had to go to his 'office. This last was neither corroborated nor denied. It had no connection with anything else that had been said, and certainly had nothing to' do with the slashing of the coats. It was wholly extraneous and a too-pat injec- tion, which I do, not credit, to show bitterness and some connection with the earlier activities. Schwartz allegedly then threw his hands in the air and turned around; and Brady told him that if he could not speak to the girls civilly, they would leave. Again, none of this last was mentioned by any one else, and there is no antecedent for Brady's reference, as testified by Devaney, to lack of civility. Devaney's account of the visit ended with Schwartz' question as he looked at her, "What do you expect, whenever I have to have a girl walk into, my office with a glare in her eye?" And her own question, "Didn't I have a right to have a glare in my eye?". The facts to this point can now be weighed to deter- mine whether Devaney was engaged in concerted activi- ty. As they approached and entered the office and then spoke with Schwartz, not only was each of the girls concerned only with and complaining concerning her own personal loss but, if there were any discussion of the situation between Devaney and the others, there is no evidence concerning it. With an appointment made for. them to see Schwartz , it is not clear that even the other three were acting in concert. There is not a bit of evidence that Devaney sought to enlist the support of her fellow employees or that they sought hers. Clearly, Devaney had alone decided to go to the office, and was on: her way there without support or joint action by any, other employee. Just as clearly, the three others were on their way without discussion with Devaney and without reference to what, if anything, she might do.15 Without agreement among themselves, each served as spokesman for herself alone; each protest- ed the loss to herself. Acting for herself alone and on her own throughout, Devaney neither organized nor participated in concerted activities. The others had an appointment because of what had occurred several days earlier . It does not appear that Devaney even knew of this conference to be held. Her own coat now slashed, she made her way to Schwartz' office, breathing fire and brimstone on the way, in the outer office, and in his office. The simultaneity of the protests stems from the fact that all quit work at the same time , and at the same time went to voice a protest; the others because of what had occurred some days before, Devaney because she was taking immediate and direct action. This did not convert individual action into concerted activity. Deva- ney's invective throughout was centered on her own 11 Cf. Hugh H Wilson Corporation v N.L.R.B , 414 F 2d 1345 (C A. 3, 1969) 118' DECISIONS OF NATIONAL LABOR RELATIONS BOARD circumstances."She was not spokesman for the others even if more vigorous. Devaney was not recognized as a "leader" at this time (nor apparently at any other) even when the question was put directly to Brady. We are not called upon to determine whether, had Devaney been engaged in concerted activities, she would thereby have been immunized against company action or exculpated from the consequences of her subsequent acts. Aside from the absence of concerted activity, we must consider whether the action taken against Deva- ney was discriminatory or a pretext presumably prompt- ed by the nonexistent concerted activity. We continue now with further testimony concerning February 3 and the decision that the action taken against Devaney was not so unreasonable as to indicate that the Company sought and found a pretext for taking such action. According to Brady, when the group entered Schwartz' office, he asked Devaney why she was glaring at him, and she replied that he would glare too had his coat been cut. Schwartz now "cursed one time" and said that "he was tired [of this] goddamned mess." When Brady charged him with being angry because they came into his office about their coats, he asked what she suggested be done about the coats, and said that perhaps the Company would buy a large locker and lock the coats up until 4:30. It dows not appear that Schwartz referred to concerted activity when he spoke of the "mess." Having noted that Gould did not reply in kind to Devaney's remarks (nor did Prochia), we can further recognize from Devaney's own testimony that Schwartz did not join her in the gutter. This supports Porchia's testimony, in his description below of the events in Schwartz' office, that he had never otherwise heard profanity there. Nor is it to be held, because he replied that ' he also was angry, but did not in her presence take action against Devaney, that Schwartz thereby condoned her language . The immediate suspension of which she was notified on her return to work was sufficiently prompt. We recall that the meeting in Schwartz' office took place afterhours on February 3. When Devaney went to the timecard rack the next morning, Porchia called her into the office and told her that she was suspended for 3 days because of her foul and abusive language "when coming into" the main office. At the same time he handed her a notice to that effect. Hyde and Roseman, the personnel supervisor, were present. Pointing her finger at the other three, Devaney said that "they were all liars" if they denied that her layoff was for "going into the main office to talk to . . . Schwartz, and for what had happened in July." Devaney thus combined "what had happened in July"" with her going into the office as the reason " The facts in"this connection can be contrasted with those in Electro- mec Design and Development Company, Inc , 168 NLRB 763, where details concerning the extent of concerted activity were importantly in issue ' Cf N L R.B v Kay Electronics, Inc., 410 F.2d 499 (C.A. 8), where the court noted "the remoteness" of the date of discharge less than 2 months after the employee's clearly recognized union activity for her layoff. But we have seen that what happened in July was not unique with or concentrated in Devaney. Nor was she the only one who now went to the office. Neither did events in July immunize Devaney or any other employee against responsibility for actions in Feb- ruary. If Devaney still nurtured a grievance over what had occured 6 or 7 months before, there is no evidence that anyone else did; and her February actions are not to be condoned because she recalled and connected them with earlier events. The issue is whether the Com- pany in fact suspended Devaney because of her foul and abusive language and whether it was justified in doing so. Her remarks on February 4, after she was notified that she had been suspended, that Roseman, Hyde, and Porchia were "all liars" and as she "then . . . turned around and . told" Porchia, "I will be back in three days," provided additional background and provocation for later action. Having found that the suspension was warranted and lawful, I would not overlook the testimony by Porchia, Hyde, and Schwartz, which I credit and which attributes even worse language to Devaney. Porchia testified that as he was on his way to the office with the three other employees, Devaney came in from outside and greeted him with a scatological profanity and a reference to the canine ancestry of whoever had cut her coat. Attempts were made to "calm her down," but she used profanity throughout the conversation or meeting; Schwartz did not. Porchia testified further that none of the girls used profanity in the plant. Hyde testified that on the way to the office with the others on February 3 she heard Devaney screaming "all kinds of language" which a man would not use. Hyde did confirm one of the expressions which Porchia later attributed to Devaney. Schwartz' version is that he had issued a' notice'' that any one caught 'slashing a coat would be criminally' prosecuted, and that a conference had been set up for some of the girls; that Devaney rushed in, glared, and directed a tirade at him, and that he "glared right back" and told her that he "wouldn't stand for that any more." We recall Devaney's testimony that Schwartz remarked on her glaring at him. The word is apt according to my observation. Despite his testimony concerning her tirade, Schwartz later agreed that "in the office at, that time she didn't use any abusive lan- guage." If the suspension notice be taken literally as referring to Devaney' s language "When coming into" the main office, and not while she actually confronted Schwartz , it is consistent with his own recollection that she did not use abusive language in the office. The testimony by the other witnesses, including Deva- ney, in this respect is more complete and more reliable. Her propensity is clear : among other things, she told Schwartz, as she put it, she "was mad . . . God damn good and mad. . . ." Certainly Porchia and other The latter was the basis for the employer' s alleged discrimination in that case, and thus the much stronger counterpart of the earlier interfer- ence which is pointed to in the instant case as suggesting and supporting discrimination in February G & S METAL PRODUCTS COMPANY supervisors had heard Devaney on the way to the offices, in the outer office, and in Schwartz' office. After the four employees left, a meeting.was held "concerning" Devaney's conduct, and the 3-day suspension was issued because, as Schwartz now put it, of the "abusive lan- guage used in the office." While the decision to suspend Devaney was reached after consultation, Porchia had the authority to effect it, and the burden of performance was his as it was he who supervised her and was in immediate control and responsibility. He of course had heard Devaney in both offices and on the way there. Nor was the notice handed to Devaney on the morning of February 4 unclear or misleading as far as she was concerned. If we can assess and grade filth, Devaney in her testimony concerning her own language and in her insou- ciant recital of what she had allegedly heard from Porchia and Gould, used the vilest and filthiest in any compila- tion. Slashing of a new1' coat is certainly provocative. Our concern is with the extent to, which Devaney was provoked and her reaction and the Company's. Here we have not been left to our own evaluation of her attitude and language; the reaction of each of the three others whose coats were cut itself emphasizes the extreme, unwarranted, and insubordinate nature of Deva- ney's. To excuse her conduct and to show that the Company's reaction was unreasonable and discriminato- ry, Devaney attempted to picture the atmosphere as one in which attitude and language like hers are common. In this her testimony is markedly different from that of other witnesses on both sides. While we are not limited by the evaluation made by Devaney or the Charging Union, my own appraisal of the situation apparently mirrors theirs. The suspension occurred on February 4 and the discharge on February 7; but the charge dated and filed•'on the next regular workday, February 10, makes no reference to the suspen- sion. While the complaint and the General Counsel leave no pebble unturned, a decent regard for the facts might have made unnecessary part, if not all, of this litigation. In due course and as -she had threatened, Devaney returned to work on February 7. Her attention now directed to that afternoon, she testified that she and another girl were returning-from the washroom' when Schwartz and Gould caught up and passed them. Deva- ney concluded her recital of this, the only incident before the end of the day, with her testimony: "Harry- [Schwartz] turned around and laughed at me and I turned around to Wanda and I told Wanda, something was up." 19 " The relevance not apparent at the time, I struck Devaney's statement that one of the other girls was now wearing a new coat I reinstate that testimony It was thereafter adopted by Devaney . 'B Of no greater significance is another item to which Devaney's attention was now directed She had difficulty in starting her car on the Company's parking lot, and as she and three other girls were struggling with the battery, Roseman and two attorneys for the Company allegedly "pointed their finger" at her (only) and laughed I credit the denials and the explanation offered Here is further manifestation 119 February 7 was payday and, as Devaney stood in line to receive her check from Porchia and to punch out, he handed her two checks and an envelope. Presum- ably, one check was for the last full workweek and the other up to and including February 7. The envelope contained a notice which read: "You are hereby notified that you are fired from G & S Metal Products Company. Your attitude is the same as it was, when you were suspended." Devaney (supported by her sister) testified that, when she asked what it meant, Porchia shrugged his shoulders and admitted that he did not have anything to do with it, saying "I have got a job to do and I had to do it." Questioned concerning this on cross-examination, Porchia denied it. I credit his denial. He testified that Devaney had had "a pleasant attitude" prior to her suspension; but that when she returned on February 7 she stared and looked "mad," Devaney did not contra- dict this; she testified only that there had been, no swearing that day. Porchia told us further that he stayed away from her that day because he did not want to get involved with her; unable to express himself but obviously indicating that she had disturbed him, Porchia testified that she was "arrogant" on February 7, and that she "kept to herself, which was unusual"; and he concluded that she should be discharged and recom- mended it. McCarty apparently noticed improvement in Devaney's attitude or conduct as she testified that Devaney "went out of her way to be nice that day." This was evidently not communicated to Porchia. . It has been found that the Company had no knowledge in February of union or other protected concerted activi- ty by Devaney; that she was not engaged in concerted activity during the events of February 3; and that she was suspended for adequate cause. When we superim= pose on this, her ugly remarks to the personnel supervisor and the two foremen on the morning of February 4 and then her belligerent parting shot to Porchia, it is, understandable that little more was needed to warrant discharge. Her attitude on her return provided sufficient and valid cause. Although Devaney's words and manner in and outside the office on February 3 would leave their imprint, this is not a case of second punishment for her February 3 conduct. The Company does not seek to justify the discharge on that ground; but it must be recognized. With the reason for discharge not more directly spelled out, we need not speculate on possible conclusions had Devaney' s union activities and company knowledge thereof been shown. As we consider Devaney's discharge, we must note that, if the Company's reaction toward, her attitude, which the discharge notice described as the same as when she had been suspended, be deemed to be harsh, we still have no more evidence of discriminatory purpose than existed on February 4, with no intervening events to suggest additional concerted activities, further compa- ny knowledge, or discriminatory intent or basis therefor. of a persecution complex and more filthy language, which I need not detail 120 DECISIONS'OF NATIONAL LABOR RELATIONS BOARD The specialized meaning which the word, "attitude" has acquired in connection with concerted activities is not '..necessarily that recognized by a foreman20 or a businessman who is concerned by such factors as responsiveness, insubordination, abusiveness, lack of cooperation (again in no invidious sense), etc. If Porchia or other company representatives did not use the word, Devaney's manner and language on Febru- ary 3 had been obnoxious. That was her "attitude" at that time; and it continued so on February' 7 even if the notice now' handed to her -employed a word which is looked on' with suspicion. While I observed Porchia's reaction and demeanor, I will not attempt to describe for him what he did not detail on the record. Suffice • it to say that he was disturbed and upset by Devaney's manner or attitude on February 7.21 Sharing the now supercharged atmosphere, and to avoid it, Porc- hia recommended her discharge. It would not strengthen the General Counsel's position to argue that, if it did not on February 3 appear necessary to discharge Devaney, such action on February 7 indi- cates discriminatory intent. First, we may not ignore the evidence of Devaney's manner, or attitude on the latter date. An employer may hope, that discipline for conduct on one day will be succeeded by a happier relationship; but when the hope proves unjustified, it is not unreasonable and certainly not discriminatory to eliminate the t5oublesome cause and avoid repetition. Further, it may be argued that, so far from' indicating discriminatory intent, 'the lesser punishment first meted out indicates a desire to avoid the greater; and therefore the absence of discriminatory intent . I do not draw either of these contrary conclusions from the mere fact that the discipline here was dual.'The testimony taken as a whole points the way. Having made credibility findings, I should further note Devaney's demeanor on the stand, which in this case was unmistakable and most eloquent. The legal principles which govern this case are few and simple. The problem has been to establish the facts and to discern reason or motive. Observation of the witnesses, all of the General Counsel's as well as those for the Company,' has to an unusual extent aided in finding the answer. Consistently seeking to avoid comment con- cerning demeanor, and having succeeded with few excep- tions, I must in this case detail my observations since they support the testimony and are basic to determination of'the issues before us. How Devaney felt as she testified, I do not attempt to divine. But angry, and combative she appeared to be. Whether she was aroused by the incidents concerning which she testified or by her recollection of them, or whether she is generally at or near that level, I. noted no detumescence in her attitude. If Porchia could not adequately express himself with respect to Devaney's R0 Porchia repeatedly referred to Devaney's attitude in. connection with her appearance or physical aspect 11 If there be an inclination not'to accept as valid Porchia's reaction ,to'Devaney's attitude on February 7, there is still no sufficient basis 'for finding unlawful discrimination. attitude and This own reaction beyond saying that she was unpleasant and looked angry'22 I can fully under- stand, having observed Devaney on the stand. To attempt to describe Devaney's appearance and apparent attitude23 when she seemed to be displeased yet not vocal, would be unkind in the extreme. Suffice it to say that she was combative, unfriendly, even minato- ry in appearance, and certainly provocative. As her language had been, so was her manner, peccant. If a poor or even naughty wordl were used in the February 7 notice and if Porchia or any other witness called by the Company lacked finesse and was not trained in the niceties of our specialized terms, violation by discrimination has not been shown. Even, on the witness stand Devaney exhibited no squeamishness or reluctance in repeating obscenities which she and others had allegedly used. One need not expect squeamishness from Devaney as she testified particularly to what Porchia had allegedly said. But if demeanor means anything, the ease, freedom, and lack of hesitancy which characterized her own utterances or repetition confirmed the defense that she used foul and abusive language, and was disciplined therefor. While the concept bf personal abrasiveness frequently suggests a longstanding attitude and reaction, the obnoxi- ous quality and effect here appear to have manifested themselves first on February 3 and on Devaney's return on February 7. Her attitude and its effect are clear and can be appreciated. Indecently outspoken on Febru- ary 3, she was sullen on•February 7-as she was observ- ably at the hearing. One could feel most uncomfortable faced by such an attitude or conduct; and one can understand that Porchia did. - Nor Was 'thi's on 'February 7 a 'form' of 'concerted activity: Devaney' was, as before, resentful, and she was not making common cause with others in'her resent- ful attitude, - nor 1 they ' with her. From 'this' strew • of testimony emerges a picture of an orderly, if not altogeth- er satisfactory, environment disturbed by a sudden per- sdnal revolt. Porchia 'was not evasive in attempting to explain why he discharged Devaney. My impression is that a clash,bf personalities (not clearly defined, but apparent- ly with respect to taste and authority) had developed even if •Porchia were not able and apparently had not been 'instructed to describe it as such. But were this denominated as "no reason," the fact remains that no discriminatory reason has been shown. If Porchia could not declaim that Devaney's silence was "the most 22 Where others agreed that Devaney glared at Schwartz, Porchia testified that she "stared " He told us that the men under him do not curse: they "are very intelligent along that line " 13 The word is not forbidden even 'if it all too frequently in other cases represents a discriminatory evaluation of an employee's protected concerted activity As no abracadabra must be recited ere a finding of discrimination can be made, so is no such finding to be based on use of a term which is.often highly suggestive but here explained and quite understandable In too many cases "attitude " refers to known and recognized protected concerted activity Here the reference is explicitly to Devaney's attitude on February 3, and we recall that, not engaged in concerted activity , she was at that time foul-mouthed and belligerent , and was on that account suspended G'& S METAL PRODUCTS COMPANY perfect expression of scorn," Devaney's observed man- ner was sufficiently indicative, and he reacted to it. Whatever the tendency to allow for "animal exuber- ance" so-called (in the absence of oral arguments and briefs, but with other cases in mind, this is anticipatory24 as it must also be with respect to analysis on review), the setting, typified by the . other employees and by the Company's representatives who appeared at the hearing, is not one of exuberance. Nor am I unaware of the holdings which refer to"part of the give and take relationship between employees and supervisors. . . .1121 Even more to the point is the quiet dignity (I use both words carefully and literally) which Porchia displayed. We have seen that neither Schwartz' promises of general benefits some 6 months before nor any knowledge of concerted activities, by Devaney will support a finding of discrimination by Schwartz. As we consider Porchia's role, no question has been raised concerning histauthority to suspend or discharge or affectively so to recommend. Nor does it appear, whatever the' Company's animus, that Porchia ever opposed unionization or interfered, as did Foreman Hyde, with any protected activity. Porc- hia's action and the Company's on his recommendation were not based on Devaney's concerted activity; nor was it their reaction (not otherwise indicated) to any such activity. , With respect to her language, manner, or attitude, the issue is not Devaney's judgment or taste, or lack of them. A decision with 'respect to these we must hopefully leave to her. Thus her opinion of what is proper or allowable in the shop or the, office is,- if relevant, certainly not determinative. The issue is wheth- er Schwartz and, other supervisors used i or permitted, accepted,,.or condoned such language in the plant or addressed to themselves particularly and thus discrimi- nated when they refused to, accept,Devaney's., In the complete absence. of evidence that, they did; in the calm and decent air which Schwartz and the others2e suggested as I observed them and as the transcript itself indicates, there is no proof of discrimination in Devaney's discharge. We cannot, even were we inclined to descend into the gutter, censure the Company's refusal to accept Devaney's language and continued combativeness in both word and manner. Indeed, reference to "animal exuberance" is self-reflecting; and to censure Schwartz would be to cite' a different taste or standard for our- selves. 'Deeming Devaney's language and her manner as I observed her to be offensive, I cannot deny to the Employer the right to regard it similarly and to base thereon first suspension and then discharge. An appraisal that the Company's reason was not a good one (after pious repetition of "good reason, bad reason, 14 One cannot anticipate all claims or objections, especially where briefs have not been filed Meeting some is not wasted effort if it forestalls them even at the risk of later being dubbed unnecessary 1B Alabama Rod and Wire Division, 176 NLRB No 25 The testimony concerning the three other employees in Schwartz' office not only contrasts their attitude with Devaney's but it reflects the atmosphere in the plant 121 or none at all") wouldi still not provide proof of discrimi- nation. Beyond this, a contrary holding would constitute an attempt to establish a different rule or atmosphere since it stands uncontradicted that none of the employees used profanity in the shop. The Company was attempting to maintain a symbiosis between a decent -consideration of several complaints and reasonable discipline and har- mony. Devaney's discharge no more reflected a haruspi- cal concern with possible future protected concerted activities than it did recollection of any former concerted activity. She had been verbally, and was now.in manner, offensive, a circumstance which could be and was lawful- ly eliminated. With so much publicized emphasis on and concern over racial shortcomings, problems, and prejudices, the situation here is at least different as wee note Porchia's calmness and decency. I was impressed and would add for the record, since this may not be apparent from the bare transcript, that he is a gentleman in the literal sense and to the point where he was reluctant'to express his obvious feelings even to the extent that he could. This is indeed a commentary in these days of racial strife, and in a community which has seriously witnessed it. Of course it proves no general condition since one cannot generalize from any 'single circumstance; but it is one instance and is of tinterest even if it does not determine the issues here. To the extent that animus, considered below, is reflect- ed from the earlier interference found, it may be weighed most directly if we infer or assume that Schwartz was himself instrumental in the action taken against Devaney pp February 4 and 7; although no attempt was made to show this,beyond reference to the meting after the employees left on February 3 and Porchia's statement that he recommended the discharge on February 7. Thus we would assume that Schwartz, having displayed animus in' July,' now vented his' spleen discriminatorily (wholly or in part aside from the provocation now pre- sented by Devaney) and therefore himself discriminatori- ly prompted the suspension and the discharge. But to the extent that the interference by Schwartz found above may be cited to show animus against Devaney or knowl- edge of her concerted activity, it should be noted that each of the four types of interference found was directed against all' of the employees, not specifically against Devaney alone. Devaney was not at all involved in the interference by Supervisor Hyde nor by that allegedly committed by Supervisor Bernstein: Some of the interfer- ence was directed 'to a greater extent against employees other than Devaney, who remained on the Company's payroll. If the decisions to suspend and to, discharge were made by, Schwartz, it is understandable that he would want to avoid confrontation with Devaney in view of her "attitude," specifically the language which she had used and her proclivity as further borne out by her verbal reaction after the suspension and later after the discharge. Certainly we have no evidence of existing or intervening concerted activities which might conceiva- bly prompt the earlier or the later action. 122 DECISIONS OF NATIONAL LABOR RELATIONS BOARD If the fragmented testimony leaves an element of 'doubt , the entire picture , from Schwartz ' apparent reluc- tance (even at the trial , his was a lesser role) to come to the forefront in these scenes, through Porchia's calm authority , to Devaney 's insufferable forcefulness , pellu- cidly reveals that the action finally taken was without reference to concerted activity and in the interest of discipline and decency. Having observed the witnesses, I have attempted to a far greater extent than usual to present a complete picture of a personality to the extent that it is relevant to the issues; a picture that is understandable and con- vincing (as conclusions must be) even as I have been convinced by the witnesses . I have thus found and described Devaney's conduct and manner to be sufficient and lawful reason for the action taken against her.27 It is admitted and we can find that Devaney was discharged ; to find by inference that she was unlawfully discharged because of her concerted activities would be unwarranted . I find and conclude that, no more than suspension on February 4, was the February 7 discharge violative . So far is the General Counsel from sustaining his burden of proof , that were the ultimate burden the Company 's, it would be adequately shown that neither Devaney 's suspension nor her discharge was discriminatory within the meaning of the Act. There is no testimony to support the allegation in the answer that Devaney abused other employees. It would be farfetched to infer such abuse from her use of foul language in their presence . The further defense, declared in the answer , that no coats were cut during Devaney's suspension but that coats were again cut on February 7, when she returned , although supported by testimony , was clearly an afterthought : There is no evidence that this was considered as an additional reason when Devaney was discharged . Nor is there proof to support the unworthy implication that Devaney committed any of the slashings. We must not overlook any animus or motivation for discharge reflected by the interference found. In this connection , we need not repeat what has been noted concerning absence of any indicated animus, or reason for directing animus, against Devaney. As distinguished from the question whether the July interference could be found violative , the General Coun- sel in his memorandum to the Board in support of his interim appeal claimed for the first time that proof of interference was necessary and admissible to show company animus which was reflected in the alleged discrimination. The difference between background to show animus or to explain later events , and finding violation in such background was succinctly indicated in the Bryan Manu- facturing Company case.2' The Court there declared 27 The adequacy of the reasons, unless they be unlawful, is for the Employer to determine . Cf Miami Coca-Cola Bottling Company, 138 NLRB 1209, 1224-25, Lincoln Bearing Company, 155 NLRB 1141, 1145 I am here passing on the credibility of the witnesses and their reason. 28 Local Lodge 1424, IAM v. N L R B [Bryan Manufacturing Co ], 362 U 5.411,416. that despite Section 10 (b), "evidentiary use of anterior events" is proper to shed light on later events. This is quite different from finding such anterior events to be violative. But in the Farmers' Cooperative Compress case20 the court declared :"We note that where the matter is litigated , even though the particular violation has not been specifically charged , the Board can find such a violation ." Thus if a complaint could not be based on matters barred by the statutory limitation , violation could nevertheless be found once the matter is litigated as "background." This latter is the position taken by the General Counsel in the instant case-and we have a backdoor finding of violation despite the statutory limitation . (I have not detailed testimony concerning interference not alleged and admittedly more than 6 'months prior to the first charge filed, which was offered as further back- ground-to-show-background animus, presumably in sup- port of the proof of animus indicated in the mid-July events. A still earlier event on July 1 introduces the promise of insurance ; another consists of a threat by Porchia about July 1 and not alleged ', which Devaney appears to have confused with the allegation of Schwartz' threat to abolish the night shift.) Further and aside from its remoteness in point of time, the July 1968 interference by Schwartz was not connected with the action taken against Devaney by Porchia. (We have considered whether such action was prompted by Schwartz ; one'may but need not so infer from the facts presented .) As for interference by a minor supervisor, while the Company has been found liable therefor , such interference is hardly connected with and does not prove animus bearing on Devaney's suspension or discharge. It is clear that proof of company animus may indeed explain and place in a discriminatory light actions which may otherwise appear to be innocent . But such proof is no substitute for and does not itself obviate proof of discriminatory acts or, to say the least , of knowledge of union activities . Background is to be relied on to explain what is otherwise ambiguous or unclear or "in evaluating the weight to be afforded "30 evidence concern- ing events in issue . As the Supreme Court stated in Erie Resistor:31 When specific evidence of a subjective intent to discriminate or to encourage or discourage union membership is shown , and found , many otherwise innocent or ambiguous actions which are normally incident to the conduct of a business may, without more , be converted into unfair labor practices. The "foreground " proof here itself indicates that there was no discrimination . While there is evidence that the Company is opposed to the unionization of its employees , there is no substantial evidence that such opposition was carried to the extent of discharging Devaney or any other employee for union activity. 29 United Packinghouse Workers v N L R B [Farmers' Cooperative Compress], 416 F. 2d 1126 (C A D C ) M & W Marine Ways, Inc, 165 NLRB 191 ^' N L R B. v Erie Resistor Corp 373 U.S 221, 227 G & S METAL PRODUCTS COMPANY L'ENVOI The filing of various charges which after investigation by the Regional Director did not appear to warrant issuance of a complaint suggest that in the face of these insufficient efforts it would be wise as a matter of policy to let sleeping dogs lie. (The reference here is to the July 1968 alleged interference.) There has apparently not been any violation since July 1968. There is no suggestion but that decent peace and harmony prevail; and these might well be furthered without what incorrectly appeared to me earlier to be reliance on a questionable administrative decision issued to shore up an unsupported claim of discrimination. If it be in order I would suggest that as a matter of policy a cause celebre be not further developed out of what is essentially a piddling situation. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law and the entire record in the case, I recommend that the Company, G & S Metal Products Company, Inc., Cleveland, Ohio, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Promising benefits to employees in connection with union activity, or sympathy. (b) Unlawfully interrogating employees concerning union activity or sympathy. (c) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of the rights guaranteed in Section 7'of the Act. 2. Take the following affirmative action which is nec- essary to effectuate the policies of the Act: (a) Post at its place of business in Cleveland, Ohio, copies of the attached notice marked "Appendix."32 Copies of said notice, on forms provided by the Regional Director for Region 8, shall be posted by the Company, after being duly signed by its representative, immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to its 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. (b) Notify the Regional Director for Region 8, in writing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith.33 94 In the event no exceptions are filed as provided by Section 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, recommendations, and Recommended Order herein shall, as provided in Section 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and order, and all objections thereto shall be deemed waived for all purposes In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall be changed to read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " 11 In the event that this Recommended Order is adopted by the 123 I FURTHER RECOMMEND that thq complaint be dis- missed insofar as it alleges violation of Section 8(a)(3) of the Act. Board, this provision shall be modified to read- "Notify the Regional Director for Region 8, in writing, within 10 days from the date of this Order, what steps Respondent has taken to comply herewith " APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT interfere with, restrain, or coerce employees by promise of benefits in connection with union activity or sympathy or by unlawful interrogation concerning such activity or sympathy. WE WILL- NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of the right to self-organization, to form labor organizations, to join or assist Local No. 416, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities, except to the extent that such right may be affected by an agreement requir- ing membership in a labor organization as a condi- tion of employment, as authorized in Section 8(a)(3) of the Act. All our employees are free to become or remain, or refrain from becoming or remaining, members of Local No. 416, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or any other labor organization, 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 in Section 8(a)(3) of the Act. G & S METAL PRODUCTS COMPANY, INC (Employer) Dated By (Representative) (Title) This is an official notice . and must not ' be defaced by anyone. 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. 124 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Any questions doncernmg this notice or compliance 1695 Federal Office Building, 1240 East Ninth Street, with its provisions may be directed to the Board ' s Office, Cleveland , Ohio 44199 , Telephone 216-522-3715