Firch Baking Co.

DECISIONS Firch PENELLO, 3(b) 8(a)(l) 2-1/2-day iIespondeni7s fir 1 In suspension IS d~sputed C & Inc., McKeon Comtmctron, 193 1 2-1/2-day Act.2 8(a)(l) ~ervice."~ ~lant. occuked ~ e s ~ o n d e n t 8(a)(l) activi- & Inc., (1975). 3 Bettcher ( 772 OF NATIONAL LABOR RELATIONS BOARD Baking Company and Donald L. Walters. Case 6-CA-9773 September 30, 1977 DECISION AND ORDER BY MEMBERS JENKINS, AND MURPHY On June 14, 1977, Administrative Law Judge Joseph L. Battle issued the attached Decision in this proceeding. Thereafter, the General Counsel filed exceptions and a supporting brief. Pursuant to the provisions of Section of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge, only to the extent consistent herewith. The Administrative Law Judge found that the Respondent did not violate Section of the Act when it gave a suspension to Donald L. Walters for insubordination. The conduct in question occurred during a meeting with management officials at which Walters reported dissatisfaction among the employees with regard to overtime, shift changes, and safety conditions, and asserted that all of the foregoing problems were the result of the incompe- tent manner in which these officials were performing their jobs. In dismissing the complaint, the Adminis- trative Law Judge reasoned that Walters' remarks to the production supervisor, Robert Cimino, and its personnel manager, Joseph Desser, had been disrespectful, and thus he concluded that Walters was disciplined for just cause and not because of any protected concerted activity engaged in by him. We disagree. The discussion which led to this disciplinary action was initiated by the Respondent because of Walters' refusal to work mandatory overtime.' During this meeting, which was attended by the union steward, Victor J. Marthaler. Jr.. in addition to the above- . , named persons, Walters was solicited as to what was "bothering" him and why management was having "trouble" with him. As stated above. Walters proceeded to elaborate on the reasons his and other employees' discontent and to place the blame for these problems on Cimino's and Desser's lack of competence in the handling of their jobs. His remarks included, inter alia, the following: "I don't think you're doing your job" and "better you say it This refusal resulted an additional 3-day which not herein. I Air Conditioning, NLRB 91 [that you're an ass] than me." Notwithstanding the fact that the language used was admittedly intemper- ate, the tone of the meeting loud and excited, and Walters' representations of Desser's character and Desser's and Cimino's competence insulting, we believe that the Administrative Law Judge erred in not finding the suspension to be violative of the Act. The Board has held that employees' attempts to implement the terms of collective-bargaining agree- ments, irrespective of whether these claims are found to be meritorious or whether the employee refers to contract clauses while making such complaints, are protected under Section 7 of the Two of the items raised by Walters as allegedly causing unhap- piness among the employees, overtime and safety conditions, are covered under the collective-bargain- ing agreement between the Respondent and the Union. Therefore, even assuming, as the Administra- tive Law Judge found, that Walters was insolent during the meeting, the disciplinary action taken against him was in violation of Section of the Act because he was engaged in protected concerted activity at the time in question. While the Board has held that an employee may be deprived of the protection of the Act if he commits improprieties in the course of his Section 7 activity, this occurs only in "flagrant cases in which the misconduct is so violent or of such serious nature as to render the employee unfit for further Walters did not engage in such egregious or outrageous misconduct herein as to warrant depriv- ing him of the Act's protections. This is especially the case as Walters was invited by the management officials to comment on the situation in the In addition, the exchange of remarks in a private office meeting and not on the plant floor where it could have had a negative effect on these supervisors' status in the eyes of other employees. Based on the above, we have decided to reverse the Administrative Law Judge's Decision herein. Ac- cordingly, we have revised the corresponding Order provision and have included the appropriate Remedy and Conclusions of Law and the notice to conform to this Decision. We have found, contrary to the Administrative Law Judge, that the engaged in certain unfair labor practices in violation of Section of the Act by suspending its employee, Donald L. Walters, for engaging in protected concerted (1971); John Sexton Co., a Division of Beatrice Foal Co., 217 NLRB 80 (1975); Roadway Express, 217 NLRB 278 The Manufacturing Corporation. 76 NLRB 526, 527 1948). 232 NLRB No. 120 rles. ctl'ectuate \uch :my Backpay F. (1950), 1 (1977).4 2(6) 8(a)(l) 2(6) lqc) officers, 1. affirmative /2 backpay "Appen- dix."5 hrector 8(a)(l) 2-1/2-day 4 lsis PlumbingandHea~ing Co.. 138 Enforcing 5 Natlonal read~ng 6 wh~ch Relations 773 FIRCH BAKING CO. In our opinion, it is necessary, in order to the purposes of the Act, that the Respon- dent be ordered to cease and desist from engaging in unlawful activity and to expunge from the employment record of the above-named employee record of said suspension and to make said employee whole for any loss of pay or other employment benefits he may have suffered as a result of said suspension. shall be computed in accordance with W. Woolworth Company, 90 NLRB 289 and Florida Steel Corporation, 231 NLRB 65 Upon the foregoing findings of fact and upon the record as a whole we make the following: 1. The Firch Baking Company is an employer engaged in commerce within the meaning of Section and (7) of the Act. 2. The Respondent has interfered with, re- strained, and coerced employees in the exercise of rights guaranteed in Section 7 of the Act by suspending Donald L. Walters for engaging in protected concerted activities, thereby violating Section of the Act. 3. The aforesaid unfair labor practice affects commerce within the meaning of Section and (7) of the Act. ORDER Pursuant to Section of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Firch Baking Company, Erie, Pennsylvania, its agents, successors, and assigns, shall: Cease and desist from: (a) Interfering with, restraining, and coercing employees in the exercise of rights guaranteed in Section 7 of the Act by suspending employees because they engage in protected concerted activities. (b) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of their rights guaranteed in Section 7 of the Act. 2. Take the following action: (a) Expunge from the employment record of Donald L. Walters any entry concerning his suspen- sion for 2-1 days for alleged insubordination. (b) Make Donald L. Walters whole for any loss of pay he may have incurred by reason of the Respondent's discrimination against him in the See. generally. NLRB 716 (1962). In the event that this Order is enforced by a Judgment of a United States Court of Appeals. the words in the notice "Posted by Order of the National Labor Board" shall read "Posted Pursuant to a manner described in "The Remedy" section of this Decision. (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of due under the terms of this Order. (d) Post at its place of business in Erie, Pennsylva- nia, copies of the attached notice marked Copies of said notice, on forms provided by the Regional for Region 6, after being duly signed by the Respondent's representative, shall be posted by the Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 6, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. MEMBER MURPHY, concurring: I agree with the conclusion of my colleagues. However, I believe that a more complete rationale is required. The Administrative Law Judge found that the Respondent did not violate Section of the Act when it gave a suspension to Donald L. Walters for alleged insubordination, that is, for telling Production Supervisor Cimino and Personnel Manager Desser that they were doing their jobs improperly and apparently for calling Desser, in effect, an "ass." In recommending the complaint be dismissed, the Administrative Law Judge reasoned that Walters' remarks to Cimino and Desser had been disrespectful and from this concluded that Walters had been disciplined for just cause and not for engaging in protected activity. I disagree. Walters' alleged misconduct occurred during a discussion initiated by Cimino and Desser concern- ing Walters' refusal to work mandatory overtime.6 After the overtime matter was disposed of, Desser asked Walters why Respondent was having so much trouble with him. At that point, Walters proceeded to elaborate on why many employees, not just himself, were discontented on the job and the matters raised included overtime, shift changes, and safety condi- tions-all matters involving terms and conditions of Judgment of the United Slates Court of Appeals an Order of the Labor Relations Board." This refusal resulted in an additional 3-day suspension is not disputed here. 7.t en~plojment. i11:;o. dt'spite hiin "leabe other t:mployees onl\. a:as botherins i>~~-ition that en~ployees down stair.^ safety hy current doing joh !he Descer rather an ass," "hetter !cju say \v.rnted talk ~neeting conJuct 112 w s , such justitication egregi~us.~ Cimino liot statement- tt rps ~ C . S I N C war.ranted fact, evocative szrious comments invired ;IS justlfication protected c~ctivities." ~wnduct may 11ot have opprobrious- 8(a)(l) ' The Bettcher & 1 (1974). F.2d I159 Houston McDonough 193 1123, 1129-30(1971). 2- 1/2-day Firch 8(a)(l) DECISIONS OF NATIONAL LABOR RELATIONS BOARD Desser's attempt to have out of it" and discuss what him, Walters persisted in his he "should be talking for the other that are upset about what's going on too." Furthermore, two of the items raised---overtime and hazards-were covered the then bargaining agreement. Thus, it was in the course of expressing these complaints that Walters criticized Desser, telling him he was not his way he should. To that comment unresponsively replied, "Are you calling me to which Walters commented it than me." Walters then said he to the matter over without anyone getting upset. But Desser persisted in his truculence, stating. "You're saying Mr. Cimino doesn't know how to do his job right and that I'm an asshole." Walters replied that "one out of two isn't bad." The then ended. Walters as a consequence of this was suspended for 2- dination." days for "insubor- It seems clear enough from the above that Walters in his discussion-or perhaps in what became his contiontation -with management, engaged in a protected concerted activity and that his alleged improper comments were a part of that activity. This Hoard has long held that the use of strong language in the course of activities supplies no legal for disciplining an employee except where the conduct is flagrant or Here Walters' claim that Desser and perhaps were doing their jobs properly was a legitimate and relevant part of his concern over working conditions. I t was not thrown out simply to ridicule or denigrate management but was. insofar as the record shows, seriously offered as an explanation of the source of the problems in the plant. Consequently-and despite Desser's extreme reaction to the cannot realistically be described as serious or egregious misconduct which, even though part of the of the protected activity, nevertheless disciplinary action. In in my view, Walters' criticism of management cannot in the circumstances here be properly characterized as misconduct at all. As for his responses to Desser's claims that Walters was calling him an ass or worse. Walters' replies were an integral part of his concerted activity and are scarcely to be considered misconduct. At worst. they were only rather uncomplimentary statements of opinion. Moreover, t h e were which Respondent evoked or and which it now tries to turn to its advantage for its disciplining Walters for his In any event, while Walters' been all that Respondent might wish of its employees, it was a part of Walters' protected activities and clearly not so if improper at all-as to be unprotected. Consequent- ly, I find that Respondent, by suspending Walters for engaging in such conduct, violated Section of the Act. Manufacturing Corporation. 76 NLRB 526. 527 (1948): see also American Telephone Telegraph Co.. 21 NLRB 782 and cases there cited,enfd. 521 (C.A. 2. 1975). See Shell and Concrete Co., A Division of Co., NLRB 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 in the exercise of rights guaranteed by Section 7 of the National Labor Relations Act by suspending or otherwise discriminating against any employees because they engage in protected concerted activities. WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of rights guaranteed them by the Act. WE WILL expunge from the employment record of Donald L. Walters any entry concerning his suspension for insubordination. WE WILL make Donald L. Walters whole for any loss of pay he may have suffered by reason of said suspension. DECISION JOSEPH L. BAWLE, Administrative Law Judge: This case was heard before me at Erie, Pennsylvania, on April 19, 1977, upon a complaint issued by the General Counsel of the National Labor Relations Board, amended at hearing, and an answer filed by Baking Company, herein called the Respondent. The issues raised by the pleadings relate to whether or not the Respondent violated Section of the National Labor Relations Act, as amended, by suspending Donald L. Walters, the Charging Party, on September 27, 1976, for 2-1/2 days. Briefs have been received from the General Counsel and the Respondent and have been duly considered. For the reasons which follow, I find that the General Counsel has failed to meet its burden of proof and recommend that the complaint herein be dismissed. revlied havine " ;hat tertain us?'Walters 1 fiom 2-1/2 19761, find during 2-1/2-day Inc., 775 FIRCH BAKING CO. Upon the entire record in this proceeding' and having observed the testimony and demeanor of the witnesses, I make the following: The complaint alleges, the answer admits, and I find that the Respondent is engaged in the production and nonretail sale of baked goods; its receipt and sale of goods and materials in interstate commerce are sufficient to satisfy the Board's standard for the assertion of jurisdiction; and the Respondent is an employer within the meaning of the Act. On September 27, 1976, as a result of his refusal to work mandatory overtime, alleged discriminatee Donald L. Walters met with Respondent's production supervisor, Cimino, and Respondent's personnel manager, Desser, in the presence of a union steward, Marthaler. A 3-day suspension which Walters received as a result of his refusal to work overtime is not in dispute in the case at bar. After the overtime matter was discussed, Desser asked Walters "why are we having so much trouble with you lately?" Walters that he felt thev were not trouble with him, "it's just that things were on my mind which I felt should be discussed between Mr. Cimino and myself." Speaking to Cimino, Walters said, "I feel that I know that you just got this promotion and this job, and you're just put in this position and I feel like there is a commotion going on downstairs, and I don't think you're doing your job because if you were, things would be different." Cimino asked Walters what he meant by that statement whereupon Walters "explained to him about the different hours that we've been having lately and the shift changing and the safety hazards." Desser asked Walters, "Why don't you just leave all the other employees out of this and let's have what is bothering just you and keep it between replied that he thought he "should be talking for the other employees that are upset about what's going on downstairs, too." Walters asked Desser "isn't what a personnel manager is for is to come to and talk to," and added that "we should complain to you . . . . You have never faced one of us that I can recall or anybody that's ever told me that you invited them into your office to explain what's wrong downstairs, if there's anything." According to Walters, he "just suggested to him that would be nice, if he suggested to everybody that his door is open." When Walters told Desser, "I don't think you're doing your job the way you are supposed to do it," Desser asked Walters, "Are you calling me an ass?" To this, Walters replied "better you say it then me." Walters told Cimino that he wished they could "just talk this out, be relaxed and The General Counsel's motion, that evidence of events occurring before and after the September 27 meeting be stricken the record, is denied. not get upset about it, any of us, and just come to a decision on what's going on downstairs." Desser then said, "Yeah, Walters, we know what your're talking about . . . . You're saying that Mr. Cimino doesn't know how to do his job right and that I'm an asshole." Walters' response was "one out of two isn't bad." The meeting ended after the Respondent advised Walters that he was suspended until further notice. Walters' suspension was confirmed by a letter to him from Cimino dated September 27, 1976. By a letter dated September 30, 1976, Cimino advised Walters that he was suspended for 3 days because of his refusal to work overtime and for days because of insubordina- tion. The letter states, in part, that "in conversation with Joe Desser and Bob Cimino regarding overtime to be performed on your shift that day [September 27, you made accusations and charges of gross incompetence against the production superintendent, Bob Cimino, and personnel director, Joe Desser, stating, in part, that they don't know how to do their jobs. Such insults to the recognized authority of your supervisors amounts to insubordination." Analysis In agreement with the Respondent, I that Walters was disciplined for just cause and not because of any concerted activity by him for the purpose of mutual aid and protection of other employees. Accordingly, I grant the Respondent's motions to dismiss the complaint herein, upon which motions I deferred ruling the hearing. In so finding, I note that in Walters' candid testimony, which I have credited, he admittedly told Cirnino that he did not think Cimino was doing his job. Although Cimino reasoned with Walters, Walters also told Desser that Desser was not doing his job the way he was supposed to do it. Unlike Cimino, Desser took offense at Walters' remark even after Walters assured Cimino that he did not want anybody to get upset. It is obvious to me that Desser considered Walters' remarks to be a personal insult and an indication of disrespect and that this led to the suspension which Walters received for insubordination. There is no showing that such remarks were tolerated before this occasion by the Respondent. Cf. Chickasha Mobile Homes, 202 NLRB 1057 (1973). Moreover, it appears that, at least as to Desser, Walters' remarks exceeded a mere explanation of the cause of Walters' dissatisfaction with his job. In these circumstances, I conclude that the complaint herein should be dismissed. [Recommended Order for dismissal omitted from publi- cation.]