Catalytic, Inc.

CATALYTIC, INC. 97 Catalytic, Inc. and L.B.IE.W., Local Union 136. Case 10-CA-16250 12 April 1985 SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS HUNTER AND DENNIS On 30 September 1982 a Board panel issued a Decision and Order 1 in this proceeding, finding that the Respondent had engaged in unfair labor practices in violation of Section 8(a)(1) and (3) of the National Labor Relations Act. The Board held that the Respondent violated the Act by discharg- ing employee Samuel D. Thrash Jr. and by sus- pending and discharging employee Philip Lang. With regard to Thrash the Board found that, al- though Thrash had engaged in strike-related mis- conduct, his behavior did not rise to the level of misconduct so serious as to render him unfit for re- instatement. Applying the standard then prevailing for determining the reinstatement rights of return- ing strikers, the Board held that the Respondent had violated the Act by discharging Thrash. The Respondent filed a petition for review of the Board's Decision and Order with the United States Court of Appeals for the Eleventh Circuit, and the Board filed a cross-application for enforcement of its Order. On 19 August 1983 the court enforced the Board's Order.2 Thereafter, the Respondent filed a petition for writ of certiorari to the United States Supreme Court. On 22 February 1984, in Clear Pine Mouldings,3 the Board reevaluated the appropriate standard for determining the reinstatement rights of employees engaging in strike-related misconduct. Adopting the standard formulated by the United States Court of Appeals for the Third Circuit in NLRB v. W. C. McQuaide, Inc., 552 F.2d 519, 527 (3d Cir. 1977), the Board announced in Clear Pine Mouldings that it would apply the following objective test for de- termining whether verbal threats directed at fellow employees justify an employer's refusal to reinstate: "whether the misconduct is such that, under the circumstances existing, it may reasonably tend to coerce or intimidate employees in the exercise of rights protected under the Act."4 1 264 NLRB 1157 2 714 F 2d 158 s 268 NLRB 1044 ° Above at 1046 The Board also applied an analogous standard to the assessment of strikers' verbal and nonverbal conduct directed against per- sons who do not enjoy the protection of Sec 7 of the Act Infra at 1046 fn 14 Member Dennis concurred in the adoption of the McQuaide test Following the issuance of Clear Pine Mouldings, the United States Supreme Court on 30 April 1984 granted certioraris in this proceeding, vacated the judgment of the court of appeals insofar as it per- tained to the discharge of Samuel D. Thrash Jr.,6 and remanded the proceeding to the court of ap- peals with directions that the case be remanded to the Board for further consideration of Thrash's dis- charge in light of Clear Pine Mouldings. On 15 August 1984 the court of appeals remanded this proceeding to the Board.' On 30 October 1984 the Board accepted the remand from the court of appeals. The Respondent and the General Counsel filed statements of posi- tion. The Board has reconsidered its Decision and Order in light of the entire record and the state- ments of position and has decided to affirm its con- clusion that the Respondent violated Section 8(a)(1) and (3) of the Act by discharging Samuel D. Thrash Jr. The facts underlying Thrash's discharge establish the following. On 30 August 1980,8 shortly after commencement of a strike directed against the Re- spondent, striker Thrash telephoned the residence of nonstriking employee Sanford Simon. The call was made at 4 p.m., while Simon was working at the struck plant, and was answered by Simon's wife, Diane. It is undisputed Thrash's call was di- rectly related to the strike.9 Without identifying himself, Thrash stated at the outset, "you God damned bitch," and immediately hung up the tele- phone terminating the call. This is the full extent of the misconduct attributed to Thrash. Because the Simons had received other anony- mous calls during the strike, their telephone was equipped with a tap and tracer at the time of Thrash's call.1 ° As a result, Thrash was identified as the caller of 30 August and was arrested. There- after, Thrash pleaded guilty to a criminal offense under the criminal code of the State of Alabama and was fined $110. As a further result of the call to the Simons' residence, the Respondent dis- charged Thrash on 11 September. The strike termi- nated on 17 September. As an initial matter, we fully recognize that the placement and receipt of an anonymous telephone 5 104 S Ct 2164 8 The Court did not disturb the judgment of the court of appeals with respect to other portions of the case 7 739 F 2d 540 8 All dates are in 1980 unless noted otherwise B Thrash testified without contradiction that he telephoned the home of Sanford Simon "because he was working and I wasn't " 10 There is no contention that Thrash was involved in or participated in any other anonymous telephone calls to the Simons' residence It is also undisputed that the other anonymous calls preceding Thrash's call were harassing and threatening in character 275 NLRB No. 16 98 DECISIONS OF NATIONAL LABOR RELATIONS BOARD . call is offensive and intrusive to privacy irrespec- tive of the actual words used by the caller. Our primary task in this proceeding, however, is to de- termine whether the conduct at issue reasonably tends to coerce or intimidate.' Under the standard set forth in Clear" Pine Mouldings, supra, we con- clude that the single, brief telephone call attributed to Thrash does not meet the Clear Pine Mouldings standard justifying the denial of reinstatement: ' - At the outset, we note that although Thrash re- ferred to Diane Simon as a "God damned bitch," he did not threaten either her person or property. Thus- as we noted in our original decision, the Re- spondent conceded in its earlier brief to the Board that Thrash's statement "was not violent" in char- acter. We, also note that the -epithet attributed to Thrash differs substantially from the remarks attrib- uted to striking employees in Clear Pine Mouldings which were directly or indirectly threatening in character. )1 We are, of course, mindful that in cer- tain circumstances a profane epithet unaccompa- nied by an overt or indirect threat might also be coercive or intimidating if it raises the reasonable likelihood of an imminent physical confrontation. That is not' the case here. Moreover, during the call Thrash did not imply that he knew the loca- tion of the Simon's home and made no indication that adverse consequences might befall the Simons if' Sanford Simon continued--to work. Indeed, during the call Thrash made no mention whatso- ever of the strike.12 Finally; we emphasize that there is no evidence that Thrash was aware of previous anonymous phone calls to the Simons' residence or that Thrash participated in any other such calls. Nor is there evidence "that Thrash was in any manner involved in a campaign or plan of harassment directed at nonstriking employees or otherwise engaged in misconduct. In short, we are presented- with -a single telephone call where neither an overt or im- plied threat was made nor the reasonable likelihood raised of an imminent physical confrontation. In " In Clear Pine Mouldings the threatening statements were ( 1) that a nonstriking employee was taking her life in her hands by crossing a picket line and would live to regret it, (2) that a nonstriking employee's house might be burned ; (3) that the hands of certain employees should be broken, and (4) that an employee should be "straighten[ed] out " 12 In another context we recently found lawful an employer 's vulgar and obscene reference to an employee 's exercise of rights protected under the Act See Premier Rubber Co, 272 NLRB 466 ( 1984) (supervisor's statement to an employee displaying a union badge as a "chicken shit badge") Thus, we recognize as a practical matter that not every use of profanity or vulgarity in response' to the exercise of Sec 7 rights runs afoul of the Act and that occasional vulgarity and epithets are to be ex- pected during the course of a strike and in' the workplace We shall of course continue to evaluate each factual circumstance on a case-by-case basis to determine whether the conduct at issue is coercive or intimidat- ing or otherwise unprotected' by the Act Member Dennis did not participate in Premier Rubber and does not rely on this footnote - these circumstances, we 'find the evidence insuffi- cient to establish that Thrash's call of 30 August had a reasonable tendency to coerce or intimidate within the meaning of Clear Pine Mouldings.13 Ac- cordingly,.we, find that Thrash did not forfeit'his reinstatement rights and that the Respondent vio- lated the Act by discharging Thrash. THE REMEDY Having found that the Respondent violated Sec- tion 8(a)(3) and (1) of the Act, we shall order that it cease and desist therefrom and affirmatively take such action as will dissipate the effects of its unfair labor practices. - Having found that Samuel D. Thrash Jr. was un- lawfully discharged, we find it necessary to order the Respondent to offer him full reinstatement to his former position or,' if such position no longer exists, to a substantially equivalent position, with- out prejudice to his seniority or-'other rights and privileges, and to make- him- whole for any loss of earnings suffered by him as a result of the Re- spondent's unlawful actions. Loss of earnings shall be computed as prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), plus interest computed in the manner and amount prescribed in Florida Steel Corp., 231 NLRB 651 (1977).14 ORDER - The National Labor Relations Board orders.that the Respondent, Catalytic, Inc.; Wilsonville, Ala- bama,.its officers, agents, successors, and assigns, shall - 1. Cease and desist from (a) - Discharging or otherwise, discriminating against any employee for supporting I.B.E.W., Local Union 136 or any other union. (b) In any like. or related manner interfering with, restraining, or coercing employees in.the ex- ercise of the rights 'guaranteed them by Section 7 of the Act. - 2. Take the following affirmative action which it is found will effectuate the purposes of the Act. (a) Offer Samuel D. Thrash Jr. immediate and full reinstatement to his former job or, if that job no longer exists, to a substantially equivalent posi- tion, without prejudice to his seniority or any other rights or privileges previously enjoyed, and make him whole for any loss of earnings and other bene- 13 We are cognizant that Thrash 's anonymous telephone call was ille- gal under state law and that Thrash was adjudicated in state court to have violated that law Because it is our burden to evaluate Thrash's con- duct under the National Labor Relations Act rather than under state criminal law, we find that the matters raised in the - state criminal pro- ceeding are not dispositive of the separate and distinct issues raised under the Act - 14 See generally Isis Plumbing Co , 138 NLRB 716, 717-721 (1962) CATALYTIC, INC. fits suffered as a result of the discrimination against him in the manner set forth in the remedy section of the decision. (b) Preserve and, on request, make available to the Board or its agents for examination and copy- ing, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (c) Remove from its files any reference to the unlawful discharge and notify the employee in writing that this has been done and that the dis- charge will not be used against him in any way. (d) Post at its facility in Wilsonville, Alabama, copies of the attached notice marked "Appen- dix."15 Copies of the notice, on forms provided by the Regional Director for Region 10, after being signed by the Respondent's authorized representa- tive, shall be posted by the Respondent immediate- ly upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply. 1b If this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the Na- tional Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the Nation- al Labor Relations Board." APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government 99 The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. Section 7 of the Act gives employees these rights. To organize To form, join, or assist any union To bargain collectively through representa- tives of their own choice To act together for other mutual aid or pro- tection To choose not to engage in any of these protected concerted activities. WE WILL NOT discharge or otherwise discrimi- nate against any of you for supporting I.B.E.W., Local Union 136 or any other union. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of the rights guaranteed you by Section 7 of the Act. WE WILL offer Samuel D. Thrash Jr. immediate and full reinstatement to his former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to his seniority or any other rights or privileges previously enjoyed and WE WILL make him whole for any loss of earnings and other benefits resulting from his discharge, less any net interim earnings, plus interest. WE WILL notify him that we have removed from our files any reference to his discharge and that the discharge will not be used against him in any way. CATALYTIC, INC.