Berns Wholesale Sporting Goods Co.

BERNS WHOLESALE SPORTING GOODS CO. Berns Wholesale Sporting Goods Co . and International Brotherhood of Teamsters, Chauffeurs, Warehouse- men and Helpers of America, Local Union No. 452. Case 27-CA-2848 February 4, 1971 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND BROWN On August 5, 1970, Trial Examiner Fannie M. Boyls issued her Decision in the above-entitled pro- ceeding, finding that the Respondent had not engaged in any of 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 Deci- sion and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its powers in connection with this case to a three-member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no preju- dicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and brief, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, with the following addition. The Trial Examiner found, and we agree, that the Respondent discharged Gary Cox not because of his union activities, but because of Cox's threat to break the nose of the Respondent's president, which was misconduct of such an egregious nature as to warrant his discharge. We are unpersuaded by our dissenting colleague's lengthy discourse in defense of the proposition that an employer may not discharge an employee who threat- ens to break his employer' s nose, and who concedes that when he made the threat he meant it. We think an employer may effect such a discharge even though he knows the employee is a union advocate and even though the threat occurs in the course of a grievance discussion. It is our further view that he may take sufficient time to consult counsel before advising the employee of his discharge, without being found sus- pect by this Board for having done so. We therefore adopt the Trial Examiner's recommendation that the complaint be dismissed. Vice President Jack Bernstone had referred to Cox, who was employed on July 14, 1969, in his October 10 preelection antiumon speech as one of ORDER 373 Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board adopts as its Order the Recommended Order of the Trial Examiner and hereby orders that the complaint herein be, and it hereby is, dismissed in its entirety. MEMBER BROWN, dissenting in part: My colleagues adopt the Trial Examiner's finding that the Respondent did not discharge Gary Cox be- cause he engaged in union or concerted activities, but because of his assertedly egregious misconduct, I can- not agree. Gary Cox was the recognized employee leader in the union organizing drive and served as the Union's observer at the Board conducted election on October 17, 1969. The Respondent admits its knowledge of Cox's union activity and, as the Trial Examiner found, the Respondent had expressed its opposition to his efforts to organize the plant.' On December 3, 1969, the employees, upset over some recent dis- charges, decided to request a meeting with manage- ment to discuss the firing of two fellow workers. As their spokesman, Cox first went to the immediate su- pervisor of warehouse employees, Mike Bernstone, who was President Nate Bernstone's son. Mike told Cox that the two men had been fired for just cause, and that in any event it was none of the employees' business. Cox then went to the office shared by the president and Vice President Jack Bernstone and asked them to meet with the employees to discuss the discharges. Jack Bernstone stated that Cox would have to discuss the matter with Respondent's comp- troller who was absent because of illness . Cox under- stood Jack Bernstone to be suggesting a meeting only with the one company official who would be unable to explain the reasons for the discharges, and believ- ing that the Bernstones were attempting to avoid a meeting with the employees, Cox said it was clear to him that "you are giving us the run-around." Nate Bernstone thereupon took off his glasses, shook a fin- ger at Cox, and in an angry tone of voice said, "Cox, you are a troublemaker. You have been one ever since you came here. You get back to your desk and go to work." Cox left the office and started toward his work station stopping momentarily at the drinking foun- tain. Simultaneously Nate Bernstone came out of his the new employees and "paid organizers" who would leave after they had "saddled" employees with the Union After the election, President Nate Bernstone told Cox, "The election is over with. Now let's do our jobs and get back to the normal procedure of business " Bernstone testified that he singled out Cox because, "to my knowledge Gary Cox was the leader of the union organization there " 188 NLRB No. 47 374 DECISIONS OF NATIONAL LABOR RELATIONS BOARD door to the office and accosted Cox telling him again to get back to work, adding "and I don't want any kibitzing today." When Cox asked the meaning of "kibitzing," Bernstone called Cox a "Schmo" and an "Ignoramus." In response Cox said, "How would you like your nose broken?" Bernstone threw down the papers he was carrying, doubled his fists, and said "Okay, try and break it. I am an old man, but I am not afraid of you." Cox immediately retracted his statement with these words, "Nate, I wouldn't hit you, I had no intention of hitting you. I have nothing against you as a human being." Cox thereupon re- turned to his work. The only employee within hearing distance testified that Cox did not talk in a loud tone of voice, even though, as found by the Trial Examiner, Bernstone probably repeated his name calling as he invited Cox to try punching him in the nose. The next day Respondent discharged Cox, telling him that Res- pondent could not have in its employ anyone who had threatened to punch one of the owners in the nose and that Cox had made his threat in front of the employ- ees and had embarrassed Bernstone. The evidence presented in this case, including the credited testimony, graphically establishes to my sat- isfaction that the real reason for the discharge of Cox was his union leadership and activity. During the un- ion campaign President Nate Bernstone, in conversa- tion with employee Nash when the latter was leaving Respondent's employ, said that he thought Gary Cox was a "troublemaker," and that Respondent was hav- ing "trouble with the Union" because of Cox. Later in Jack Bernstone's speech to employees, in which Respondent's antiunion animus was clearly revealed, Cox was singled out as a union leader and a "paid organizer," with comments disparaging his motive and intent in playing that role. Finally, as heretofore indicated, when Cox attempted to arrange a meeting between employees and management, President Nate Bernstone called Cox "a troublemaker ever since you came here," and ordered him to return to his work station. It was the manner in which President Bern- stone followed Cox when he was complying with this order and reiterated this command accompanied by Bernstone's derogatory remarks and name calling that evoked the response from Cox for which my col- leagues would deny him the protection of the Act. The continuity of Respondent's condemnation of Cox's union activity clearly reveals Respondent's real mo- tive for the discharge to be an unlawful one and the so-called misconduct, into which Cox was goaded, as a pretextual reason. This conclusion is further under- scored by the fact that Respondent delayed its pun- ishment until the next day. Respondent claims that the purpose of the delay in the discharge of Cox was to allow consultation with Respondent's "manage- ment and labor relations" counsel. In my view, the very fact of such a delay by Nate Bernstone who, as events discussed herein demonstrate, has a proclivity toward immediate emotional response, is proof that Respondent did not consider Cox's comment a source of serious embarrassment or a challenge to order. Rather, it suggests that Respondent wished to de- termine whether it now had provoked an incident which could serve as a pretext to cover the real unlaw- ful reason for his discharge. I agree with my colleagues that Cox's encounter with Nate Bernstone, immediately following the pro- tected activity in which Cox engaged both Nate and Jack Bernstone, must be considered as an integral part of the res gestae activity. Here again the Respondent's antiunion motive is revealed by Nate Bernstone's reference to Cox's "troublemaker" role and the period to time that role had persisted, thus disclosing that he had in mind Cox's union activity. By vocally associating Cox's "troublemaking" with both his union activity and his concerted activity and continuing this frame of reference into the incident relied upon as a basis for discharge, Respondent un- derscored the presence of its antiunion motive. Finally, I cannot agree with my colleagues that in the circumstances in which Cox's "offensive" state- ment was made, his conduct was so egregious as to deprive him of the protection of the Act or to render him unfit for further employment.' In so holding, they impose upon an employee, under the pressure of a heated exchange uttered in anger arising within the context of protected concerted activity and in re- sponse to comments of a provocative nature, a higher standard than they require of the corporation presi- dent who precipitated the exchange, and then justify the discharge on the ground that the official was em- barrassed because of an imagined loss of "order and respect." My colleagues apparently agree that Cox's response was provoked by Nate Bernstone's insulting name calling and that it was immediately retracted by Cox both in word and conduct. However, they conclude that Cox conceded that he meant what he said. This finding is based on the fol- lowing testimony of Cox: "In all honesty at the very moment I said it, I did mean it. Just a flash of the second when he came around the end of the table, I realized how ridiculous it was. " (Emphasis supplied.) I cannot understand how my colleagues can attach any legal significance to Cox's momentary impulse which quickly spent itself when he recognized "how ridic- ulous it was." I would further observe that at no time, despite the taunting and gesticulations of President 2 In Crown Central Petroleum Corporation v N L R B, 430 F 2d 724, enfg 177 NLRB No 29, the Fifth Circuit observed, "the disciplining of employees for insubordination , while certainly the right of management is not such an inherent management prerogative as to be immune from challenge as a primary violation of Section 8(a)(1) " BERNS WHOLESALE SPORTING GOODS CO. 375 Bernstone, did Cox even feign any overt act or raise his voice, thus negating any threat implied by the specific question directed to the official. Moreover, only one employee overheard the exchange and on the basis of his testimony the Trial Examiner conclud- ed that "Bernstone probably repeated his name call- ing as he invited Cox to try punching him in the nose." Another employee only saw the two men talking, the gestures of Bernstone, and saw Cox walk away. In these circumstances, it is difficult to conceive how Cox's conduct in any way controverted the Employer's "right" to maintain "order and respect" among its employees.' If on the basis of the facts in this case, Cox's dis- charge is for good cause, then the standard being applied herein constitutes an open invitation to an employer, desiring to rid himself of a prounion em- ployee, to belittle, berate, antagonize, and goad the employee into an emotional response which can be construed as a threat and the employer may rest as- sured that no consideration will be given to the degree of provocation. In my opinion, this makes neither good law nor good sense. In view of the foregoing, I would find that Respon- dent violated Section 8(a)(3) and (1) of the Act in the discharge of Gary Cox and require it to offer him full reinstatement to his former position and make him whole for all losses suffered by him by reason of its unlawful conduct. 3 Red Top, Inc., 185 NLRB No. 138 TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE FANNIE M. BoyLs, Trial Examiner: This case, initiated by a charge filed on December 5, 1969, amended charges filed on December 11, 1969, and January 6 and February 12, 1970, and a complaint issued on February 25, 1970, was tried before me in Denver, Colorado, on April 14, 15, and 17, 1970. The complaint alleges that Respondent violated Section 8(a)(1) and (3) of the National Labor Relations Act. Respondent's answer denies that it engaged in any of the unfair labor practices alleged. Subsequent to the hearing the General Counsel and Respondent filed helpful briefs. Upon the entire record, including my observation of the demeanor of the witnesses, and after due consideration of the briefs, I make the following: FINDINGS OF FACT Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act and that it ,will effectuate the policies of the Act to assert jurisdiction herein. II. THE LABOR ORGANIZATION INVOLVED International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local Union No. 452, herein called the Union, is a labor organization within the meaning of Section 2(5) of the Act. III THE UNFAIR LABOR PRACTICES ALLEGED A. Issues Employee Ronald Smith was suspended on December 3, 1969, and never thereafter reinstated. Just prior to his sus- pension another employee, Wendell Givens, had been dis- charged. On or about December 4, 1969, Respondent also discharged employee Gary Cox after the latter had sought to arrange a meeting between management representatives and Respondent's employees to discuss the discharges of Smith and Givens. Cox had been a recognized employee leader in the union movement since prior to a representation election on Octo- ber 17, 1969.1 Smith had also been active in the union cam- paign. The General Counsel contends that both Smith and Cox were discharged because of their union activities and that Cox was, in addition, discharged because he engaged in the protected concerted activity of attempting to arrange a meeting between Respondent and its employees to discuss the terminations of Smith and Givens. Respondent contends that Smith was suspended and nev- er reinstated because of excessive absenteeism and his fail- ure to present documentary evidence in support of the alleged reason for his last absence. Respondent asserts that it did not even know that Smith was a union supporter. It contends that Cox was discharged because he threatened to punch Respondent's president in the nose and not because he was a union leader or because he sought to arrange the meeting. No independent 8(a)(1) violations are alleged? Credibili- ty issues are presented in deciding Respondent's motivation in terminating Smith and Cox. Also presented in the ques- tion whether a statement of a threatening nature made by Cox to Respondent's president in connection with his at- tempt to arrange a meeting between Respondent and the employees was, under the circumstances shown infra, of such a serious nature as to remove his action from the protective cloak of the Act. B. Background: Union Activities and Respondent's Reaction Thereto Gary Cox was employed by Respondent as a receiving clerk in the warehouse on July, 14, 1969. About a month later he and some of the other warehouse employees with whom he talked decided that a union was needed in the I THE BUSINESS OF RESPONDENT Respondent is a Colorado corporation , engaged at Den- ver, Colorado, in the business of wholesaling s porting goods. In the course and conduct of its business , Respon- dent annually purchases and receives goods valued in excess of $50,000 directly from sources located outside the State of Colorado. On the basis of these undisputed facts, I find that 1 Because of challenged ballots sufficient in number to affect the results of the election and objections to the election filed by the Union, the results of the election had not been determined at the time of the unfair labor practices alleged in this case 2 The complaint originally alleged that Respondent had violated Section 8(a)(1) by threatening to sell its business if the Union won the election, but the General Counsel acknowledged at the commencement of the hearing that he had no evidence to support this allegation and his motion to dismiss that allegation of the complaint was granted. 376 DECISIONS OF NATIONAL LABOR RELATIONS BOARD plant. Cox, after making inquiry of several unions as to their willingness to represent a small unit of Respondent's pro- duction and maintenance employees , found that Teamsters Local No. 452 was willing to undertake the job . With some assistance from another new employee , Ronald Smith (who had been hired on July 28 , 1969), and several other employ- ees, he commenced signing up employees in the Union. A representation petition was filed on September 3 and an election was conducted on October 17. Cox served as the Union's observer at the election. During the preelection period , Respondent's officials had three meetings with its approximately 12 employees in the bargaining unit at which it discussed the election issues and sought to persuade the employees that they did not need the Union to represent them. It is not alleged that these speeches were unlawfully coercive or went beyond the pro- tective shield of Section 8(c) of the Act. Certain statements made by Respondent's vice president, Jack Bernstone, how- ever, in the October 10, 1969 , speech which he read to employees are pointed to by the General Counsel as show- ing union animus and a belief by Respondent that certain new employees (namely, Cox and Smith) were paid union organizers who obtained their employment for the purpose of organizing the plant and that they intended to leave - Respondent's employment as soon as Respondent's em- loyees were saddled with a union . Thus, Vice President ernstone, early in his speech , stated: . Let's take a closer look at what Berns Wholesale Sporting Goods sees ; the attempt by what appears to be paid organizers, to sway our employees and get them to let the Teamsters Union handle every personal mat- ter which an employer might want to take up with us. Later in his speech, he stated: New help has come into this firm, a few of whom have been trying to sell you a "bill of goods ," which is that you no longer have to deal with Nate and Jack, who gave you your jobs to begin with. ... Job security ... is teamwork, which comes from good relations between a business firm's leadership and its help. It is working together. But the Union apparently has some men in here who are agitating to break this situation up. Have you thought anything about what the real motives of these men are who are trying to get you to loin up? Are they really interested in each of you and your progress? Or is it reasonable to suppose they want to separate you from good-faith relations and access to Nate and Jack, to whom to present and with whom to work out your problems, by pulling money out of your pay-checks and having the Union talk for you, and let them "crack the whip.' Berns is then bound to "knuckle-under." Apparently, this is what they are tynng to put across to you. It has been mentioned on our premises that there are employees who will promptly leave our employment as soon as they vote for the Union. Why? Apparently some are trying to saddle our employees with a Union organization and then move on somewhere else. Cox and Smith testified that at that point in his speech when Bernstone mentioned "paid organizers," he looked directly at Cox first, then shifted his eyes to Smith and other employees. Marvin Kramer, the only other employee hired as late as July 1969, thought Bernstone might have been looking at him. Bernstone, on the other hand, testified that he did not look at any particular employee when he men- tioned paid organizers and did not have in mind any partic- ular person or persons when he referred to "new help" and "paid organizers." I am satisfied, however, that whether or not Bernstone looked at any of the three new employees when he made these statements he did have Cox, the union leader, and perhaps also his other two new employees, in mind when he referred to paid organizers and that he was expressing disapproval of their attempts to organize the plant. Respondent admits that it knew that Cox was a leader in the union movement but denies that it knew of Smith's union activities . It is a fair inference, however, from Vice President Bernstone's reference in his October 10 speech to new employees being paid organizers that Respondent be- lieved he was likewise involved with the Union . It is noted, moreover, that Smith was sitting beside Cox at one or more of the three preelection meetings addressed by Jack or Nate Bernstone and that he, like Cox, refused to accept Respondent's literature which was being passed out after one of the meetings by a representative of Respondent. C. The Suspension of Ronald Smith At the time Smith applied for a job with Respondent, Vice President Jack Bernstone checked with Smith s former em- ployer and was told that Smith was a good worker but that his absenteeism record was not good. Bernstone then in- formed Smith that Respondent could not permit excessive absenteeism and Smith assured Bernstone that he would turn over a new leaf and not be absent .3 After the first month of his employment with Respon- dent, however, Smith's attendance record again became bad. Respondent's records show that between August 23 and December 3, 1969, when he was suspended, he was absent on 11 days. This was more than twice as many ab- sences as any other employee had during the period of Smith's employment, the runnersup being Cox with 5 days of absences and Gallegos and Warren with 3 days of ab- sences each. In early October Respondent's comptroller, Howard Edelman , on the occasion of handing out paychecks, orally warned Smith that he had a record of absenteeism and latenesses which Respondent could not continue to put up with. Smith had been absent on a Friday and Saturday twice in September. Edelman called Smith into his office in late October and warned him again about his absences after Smith ' had been absent on Monday , October 20, and on Saturday, October 25 . He told Smith that Respondent could not continue to put up with his absenteeism record and that in the future if he was out because of illness , he would have to bung in a doctor's certificate. Smith was again absent on Saturday , November 22, and on Friday, November 28 (the day after Thanksgiving) and on December 1 and 2 (Monday and Tuesday of the follow- ing week).' On Friday morning, November 28, a woman identifying herself as Smith's sister telephoned President Nate Bernstone that Smith would not be in that day. She reported that their father , apparently in Michigan, was ill and that it had been decided that Smith should go to see him. Before Smith returned to the plant on the following 3 The above findings are based upon the credited testimony of Jack Bern- stone, reinforced by notations made by him on Smith's application for em- ployment ° From mid-March to mid-October, Respondent's busiest season, all ware- house employees are required to work a half-day every Satruday From mid-October until mid-March, they are required to work a half-day only on alternate Saturdays. Smith was scheduled to work a half-day on November 22 but not on November 29 BERNS WHOLESALE SPORTING GOODS CO. Wednesday, Nate and Jack Bemstone and Edelman had a conference regarding Smith's absences . Since almost all of his absences had occurred around weekends, they doubted that he had in fact been absent because of his father' s illness after Thanksgiving and decided to suspend him until he furnished proof that his absences were for that reason and to discharge him if it were discovered that his absences were not for the reason given by his sister. Accordingly, when Smith returned on Wednesday, he was summoned to the office. Jack Bernstone told him that although he had been warned about his absenteeism, Res- pondent could not depend on him to be at the plant and do his work. When Smith explained that he had been absent because of his father's illness, Bemstone asked if he had any proof that his father was ill. Smith replied that he could get proof. Bemstone then told Smith that he was being suspend- ed until he furnished such proof. As he left the office, Smith repeated that he could get the proof and Bernstone told him he could return to work if he did.5 Smith never furnished the proof requested of him and never returned to the plant or communicated with Respon- dent. A letter from his father's doctor, dated January 14, 1970, which was produced at the hearing, throws no light on the condition of his father's health around Thanksgiving when Smith was absent from work without permission. Smith testified that at the time of his suspension he was told that he was given a week in which to furnish proof as to the reason for his absence, that he was unable to obtain any doctor's report within that time and that he therefore did not bother to report to the plant. Smith's testimony about being given only a week to obtain the proof is in conflict with Jack Bernstone's testimony that no time limit was men- tioned, but even if Smith's version in this respect be cred- ited, my conclusion regarding Respondent's motivation in suspending Smith would be unaffected. ram satisfied from all the evidence that Respondent was not discriminatorily motivated in suspending him and that it in fact suspended and failed to reinstate him because of his excessive absenteeism and his failure to furnish the re- quested proof as to the reason for his latest absences. Al- though Respondent had no hard and fast rule regarding the discipline of employees for excessive absenteeism and gave some consideration to the reasons for the absences and whether or not they were with the permission of manage- ment in assessing the seriousness of the offenses, it had from time to time reprimanded other employees for absenteeism records far less serious than that of Smith and had dis- charged or accepted the resignation of at least two other warehouse employees because of excessive absenteeism. D. The Discharge of Gary Cox After being suspended, Smith waited outside the plant in his car until Cox arrived at the plant. He told Cox that he had been discharged and had been given a week in which to prove that he had been out of the State because of his father's illness. He asked that Cox see him later to talk further about Respondent's treatment of him. Nate Bern- stone looked at them while Smith was talking to Cox. Another employee, Wendell Givens, had been discharged 5 The above account is based upon the credited testimony of Vice Presi- dent Jack Bernstone and Respondent's bookkeeper, Judith Holden, as well as that part of Smith's testimony which is consistent with this account I do not credit Smith's testimony, denied by Bernstone , that during the interview Bernstone said that he and Cox were troublemakers and that Bernstone could not tolerate that. There would appear to have been no occasion for Bernstone to make such a remark at that time and Smith 's testimony in this respect did not have a ring of truth. 377 on the preceding day for smashing up a truck. The dismissal of the two employees in the small unit of only about 12 employees within a period of 2 days was a subject of discus- sion among the other warehouse employees . Two of the employees came to Cox's work station to express concern about the action which Respondent had taken . Cox sought out other employees and talked to them about the matter. It appeared to be the consensus of the employees that they should have a meeting with Respondents officials to .pt management's side of the disciplinary action taken. Cox accordingly first went to Mike Bemstone, who was Presi- dent Bernstone's son and was considered by the warehouse employees as one of their immediate supervisors , to request that such a meeting be arranged . Mike Bemstone told Cox that the two men had been fired for just cause and that it was none of the employees' business. He added, however, that he was not the ultimate authority and that Cox should talk to Vice President Jack Bernstone. Cox then, about 9 or 9:30 a.m., went to the office shared by Nate and Jack Bernstone. The accounts of Cox and the Bemstones as to what took place there are not entirely consistent . Cox gave the following account . He asked them if they would be willing to meet with the employees. Jack Bemstone asked, "What about?" and Cox replied that the employees would like to discuss the discharges of Givens and Smith. Jack Bemstone stated that Cox would have to take the matter up with Howard Edelman , Respondent's comptroller, who was then absent because of illness. Cox asked when Edelman would be back and Bernstone replied that he did not know, explaining that Edelman had the flu. Cox stated, "We don't want to talk to Howie about this. We want to talk to you and Nate. You are the bosses. You are the ones that made the decision. If Howie has anythin g to say, it will be what you tell him to say . We would rather meet with you and Nate." He added that he thought the employees were being given "a run-around . " At about this point Nate Bernstone took off his glasses , shook a finger at Cox, and in an angry tone said, "Cox, you are a troublemak- er. You have been the one ever since 'ou came here. You get back to your desk and go to work.' Cox, ignoring Nate Bernstone, again asked Jack Bemstone if he would be will- ing to meet with the employees and Jack Bernstone replied, "I have told you, you have to meet with Howie . Is that clear?" Cox retorted, "It is clear. The only thin that is clear to me is that you are giving us a run-around .' As Cox left the office, he reminded Jack Bernstone of assurances made to the employees in one of his preelection speeches that they could meet with him at any time on any subject .6 Nate Bernstone's version is that Cox came into the office and told Jack Bernstone, "I want to have a meeting"; that Jack Bernstone replied that Howard Edelman was out sick and that they would wait until the next day to have the meeting ; that Cox replied, "Why should we wait until then? You are the boss. I want a meeting right now." Nate Bem- stone then told Cox, "Now, Gary, Jack has told you that we will have the meeting tomorrow. You go back to your bench and get to work, and we will forget about it until that time." Cox made no reply and left the room . Jack Bernstone's version was similar . He added that Cox had announced that he wanted a meeting "about the employees" or "to discuss the dismissal of the employees ," but did not mention any names and Jack Bernstone did not know what employees Cox was referring to; and that he, Jack Bemstone, had replied, "Well, if you want to have a meeting about the 6 Indeed, according to Jack Bernstone's credited testimony, he and Nate Bernstone had assured the employees in their preelection speeches that Respondent's "doors were always open" and that Respondent's officials "were happy to give anybody an audience at any time " 378 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employees, Howard Edelman is the man who has the work records of the employees. He has their activities. He has the timecards. Howard happens to be sick at this time. We expect him back the next day. Just as fast as he comes back, we will try to arrange a meeting and you will have that meeting." Both Nate and Jack Bernstone denied that Nate took off his glasses or shook a finger at Cox during the interview or that he called Cox a troublemaker or that Cox accused them of giving the employees "a run-around." Cox testified in convincing detail. Both he and the two Bernstones appear to be quick tempered and distrustful of the other's motives and these attitudes may have colored their interpretation and recollection of what was said. I am convinced that the Bernstones did not intend to require that Cox or the employees meet with Edelman alone but only wanted him present when the Bernstones might meet with Cox or the employees. I am convinced, on the other hand, that Cox understood their position to be that the meeting would be only with Edelman, who would not be in a good position to explain the Bernstones' reasons for the termina- tions of Givens and Smith and that Cox was therefore an- gered by what he believed was an attempt by the Bernstones to avoid meeting with the employees. I am persuaded that Cox's account of the interview on the whole is more accu- rate than that of the Bernstones. The details of the meeting in the office, however, are not too important. Let us turn now to the testimony regarding what hap- pened immediately after Cox and Nate Bernstone left the office. Here, too, there is a conflict in the testimony regard- ing what was said and the sequence in which it occurred. According to Cox, after going out the office door nearest Jack Bernstone's desk, he stopped at the nearby water foun- tain for a drink, then started toward his work station at about the same time that Nate Bernstone came out of the office door nearest his own desk. Nate Bernstone said, "Cox, you get back over to your desk and I don't want any kibitzing today." Cox replied, "I would like to know what is kibitzing so I will know what not to do today." In anger, Bernstone said, "Cox, you are a Schmo." Cox then asked the meaning of "Schmo." When Bernstone replied that it was an "ignoramus," Cox replied, "How would you like your nose broken?" Bernstone then threw down some papers he was carrying, doubled his fist and said, "Okay. T`ry and break it. I am old man, but I am not afraid of you.' Cox then told him, "Nate, I wouldn't hit you.... I have nothing a st you as a human being. The only thing I don't like about you is your greed." Bemstone retorted, "The only thing I don't like about you is your tactics." Cox then said, "It looks like we are stuck with each other," and returned to his work station. Nate Bernstone's version of what took place immediately following the office interview is that before Bernstone said anything, Cox said, "How would you like a punch in the nose?" Bernstone then took off his glasses and told Cox that perhaps he would like to try it. It is then, according to Bemstone, that he called Cox a "Schmo." Cox asked what a "Schmo" was and Bernstone replied that it was a "fool." Cox then returned to his work. Two employees were working near enough to Cox and Nate Bernstone to observe them as they came out of the office and one near enough to hear what was being said. The latter, Sam Zwiebel, is an elderly man who was working as a packer at his bench about 10 or 12 feet from Cox and Bernstone. He at first testified that nothing was said prior to the time Cox asked, "How would you like a punch in the 7 Nate Bernstone was 61 years old and 5 feet 5 1/2 inches tall, Cox was 35 years old and 5 feet 10 inches tall nose?", then testified that after they came out of the office, "they started talking, but I didn't pay any attention." He testified that Cox does not talk loud and that he could not hear or did not remember what was said before Cox uttered the threatening remark. He further testified that following Cox's remark, Bernstone started taking off his glasses and said, "You are a Schmo, you are a fool, you don't have the guts to do it." Then Bernstone told Cox, "You better go to your job," and Cox left. The other witness to the incident was Kathryn Warren, a shipping clerk who worked about 30 feet from the office and faced the office as Cox and Nate Bernstone emerged. She testified that Cox came out first and stopped at the drinking fountain and that although she could not hear what was said from her work station, she saw them exchang- ing words after they met; that she then saw Bernstone slam some papers down on a cart and make a fist; some more words were exchanged between the two, then Cox walked to his work station and Bernstone picked up his papers and went about his business. Warren's testimony appears entirely consistent with Cox's. I am convinced that wiebel, though honestly trying to relate what he recalled, was not entirely accurate in his recollection. It is possible that Bernstone, when in effect daring Cox to carry out his threat, repeated his characteriza- tion of Cox as a "Schmo" and also called him "a fool." Zwiebel appeared to be firm in his belief that Bernstone had uttered these words after Cox uttered the threat. This would be consistent with Bernstone's testimony that he called Cox a "Schmo" and defined the term as a "ool" after the threat was made. I am convinced, however, that Bernstone had previously called Cox a "Schmo" and defined the term as an "ignoramus" and that this was what provoked Cox into making the threatening statement. Cox's account sounded more logical and convincing than did Bernstone's. I find that the encounter occurred substantially as related by Cox, but with Bernstone probably repeating his name- calling as he invited Cox to try punching him in the nose. Nate Bernstone did not dischar a Cox until he reported for work on the following morning, December 4. The reason for this delay, according to Bernstone's credited testimony, is that in view of the pending "management and labor rela- tions"-apparently referring to the unresolved representa- tion question-he thought it advisable to consult counsel before taking any action. When discharging Cox, Nate Bernstone told him that Respondent could not have anyone in its employ who had threatened to punch one of the owners in the nose; that Cox had made this threat in front of one of the employees and had embarrassed Bernstone and that Cox was therefor being discharged.8 8 Nate and Jack Bernstone and Cox agreed, essentially, that Nate Bem- stone made this statement. There is other and inconsistent testimony regard- ing other statements allegedly made by one of the persons present . Thus, Leo Hamel, Respondent's credit manager, who had been called in to witness the discharge, testified that Nate Bernstone told Cox that it had been brought to his attention that Cox had been going around informing the employees that he was going to punch Bernstone in the nose; that Hamel then asked Cox if this was true and Cox said "Yes, he didn't deny it"; whereupon Nate Bernstone said that under the circumstances he had no alternative but to release Cox Cox, on the other hand, testified that after he was told that he was fired for having threatened to punch Bernstone in the nose and embar- rassed Bernstone before other employees, Cox started explaining that he had not meant his statement as a personal threat and had meant only that if Bemstone did not stop calling people names, he was going to get his nose broken. At that point, according to Cox, Bernstone said - "I don't want to hear your argument Get out." Nate and Jack Bemstone as well as Hamel denied that these things were said . I shall not resolve these conflicts in the testimony, for whatever else in addition to what is set forth in the test above may have been said, it does not appear relevant to any issue in this case BERNS WHOLESALE SPORTING GOODS CO. The General Counsel contends in the first place that Cox's discharge was discriminatorily motivated and that his threatening statement to Nate Bernstone was merely a pre- text for discharging him to rid the _plant of its union leader. The General Counsel also contenthat, in any event, Cox was engaging in protected concerted activity at the time of the remark ; that the threatening statement was not such misconduct as would remove his conduct from the protec- tion of the Act; and that regardless of Respondent's motiva- tion, it could not lawfully discharge Cox under the circumstances. I am not persuaded that Respondent was motivated by any unlawful considerations in effecting the discharge. To be sure, Respondent had opposed the Union in the preelec- tion campaign and it knew of Cox's leadership in the union movement. However, it employed counsel to advise it on labor matters and appears to have sincerely attempted to stay within the law in expressing opposition to the Union. After the election on October 17,Nate Bernstone sought out Cox, shook hands with hun and said, "The election is over. Let's get back to our jobs and be amicable and take care of the business." As counsel for Respondent points out, if Respondent had wanted to get rid of Cox because of his leadership in the Union, it undoubtedly would have taken advantage of a good opportunity when, prior to Thanksgiv- ing, Cox asked for permission to be offpnon the Friday and Saturday after Thanksgiving in order to make a trip to Illinois to see his family and announced that he intended to go whether or not he was given permission. By the expedient of refusing to grant the permission, Respondent might have easily rid itself of Cox, but , instead, it granted the permis- sion. The General Counsel's alternative theory-that Cox was engaging in a protected concerted activity in requesting a meeting between management and employees and that the threatening remark, provoked by Nate Bernstone , in con- nection with Cox's protected action was not such egregious conduct as would remove it from the protective cloak of Section 7 presents a more difficult problem. The Bernstones as well as Cox appeared to have quick tempers and lacked a toleration for or ability to understand each other . Cox manifested little respect for authority and did not attempt to use tact in dealing with management representatives inconnection with the December 3 incident as well as upon prior occasions . For example, at the conclu- sion of one of the preelection speeches by one of the Bern- stones, Nate Bernstone, noticing that Cox did not have a pamphlet being passed out by Respondent 's representa- tives, said, "Cox, you forgot to take one." Cox replied, "No, sir, I didn't forget. I don't want one." Bernstone then asked, "You read the union propaganda and Cox answered, "No, sir. The Union don't put out any of this stuff .... They have more respect for your intelligence."9 On another occasion in late October when, after being called into the office by Comptroller Edelman and told that Respondent could not continue to put up with his record of latenesses and that when he was absent he should notify Respondent of the reason for the absence , Cox retorted : Well, you have done your job." Moreover, Cox's statement to his supervisor, Mike Bernstone, when requesting time off on the 2 days after Thanksgiving, and without even waiting for his employer's reply to the request, that he was going to take 9 Employee Kramer, who observed Cox upon this occasion , characterized his conduct as "a rude gesture " 379 time off even if permission were not granted, likewise ap- pears somewhat contemptuous. It was this attitude, I be- lieve, , which led to the unfortunate sequence of events culmi- nating in Cox's discharge. Although the interview in the office at which Cox had engaged in the protected activity of requesting a meeting between Respondent's officials and the employees had tech- nically ended when Cox left the office, his encounter with Nate Bernstone almost immediately following that inter- view, must, I believe, realistically be considered as a contin- uation or extension of that meeting . Nate Bernstone's re- quest that Cox get back to his desk, except for an admoni- tion against kibitzing, was a repetition of what he had just told Cox in the office . It is well settled that "The employee's right to engage in concerted activity may permit some lee- way for impulsive behavior, which must be balanced aggainst the employer's right to maintain order and respect." N.L.R. B. v. Thor Power Tool Co., 351 F.2d 584, 587 (C.A. 7). There is no question in my mind but that if Cox's remarks had been limited to abusive language of a nature similar to that used by Nate Bernstone, his conduct would have fallen within the protective shield of the Act. A threat of physical violence, however, even wh en uttered in the heat of right- eous anger, is of a more serious nature . Cox conceded at the hearing that at the moment he uttered the threat , he meant it. Nate Bernstone obviously believed that he meant it and immediately prepared to defend himself . Employee Zwiebel a few feet away was waiting ready to separate the two if a fist fit should follow. Such a threat by an employee to his employer cannot, in my view, be condoned or shielded from the normal conse- quences of such conduct merely because it was made in connection with protected concerted activities of the em- ployee and even thou it was preceded by provocative language, but of a non eatening nature, by the employer. The right of an employer to maintain order and insist on a respectful attitude by his employees toward him is an im- portant one. A threat of physical violence upon the person of the employer especially when, as here, it is made in the presence and hearing of another employee or employees, would, if undisciplined, tend to diminish the respect of other employees for their employer and encouraged insubor- dinate conduct by them. As Nate Bernstone told Cox when discharging him, Cox had embarrassed him before the other employees. r find under the circumstances of this case that Cox's threat to break the nose of Respondent 's president, uttered in the presence of other employees , was misconduct of such an egregious nature as to warrant Respondent in dis- charging him even though the threat was uttered in the heat of anger arising out of Respondent's refusal to grant the employees an immediate audience and following statements of a provocative nature by Respondent's president. CONCLUSIONS OF LAW On the facts set forth above, I find that Respondent did not violate Section 8(a)(3) or (1) of the Act by suspending and thereafter failing to reinstate Ronald Smith or by dis- charging Gary Cox. There is accordingly issued the following: RECOMMENDED ORDER It is hereby ordered that the complaint herein be, and it hereby is, dismissed.