Activ Industries, Inc.

834 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ACTIV Industries, Inc. and Gary Lee Domer. Case 5-CA-17012 26 November 1985 DECISION AND ORDER BY MEMBERS DENNIS, JOHANSEN, AND BABSON On 5 August 1985 Administrative Law Judge Marvin Roth issued the attached decision. The General Counsel and the Respondent filed excep- tions and supporting briefs, and the Respondent filed an answering brief. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings, I and conclusions2 and to adopt the recommended Order. i The General Counsel and the Respondent have excepted to some of the judge's credibility findings The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir 1951) We have carefully examined the record and find no basis for reversing the findings 2 While we agree with the judge's conclusion that the Respondent vio- lated Sec 8(a)(3) and (1) of the Act by issuing a disciplinary letter to em- ployee Gary Domer, we do not agree with the judge' s assertion in sec IV,B, par 1, of his decision that none of the reasons for finding a viola- tion turn on employer motivation In fact, the third reason the Judge cited for finding the letter unlawful is that the Respondent issued it to discipline Domer for his 15 November 1984 conversation with employee JoAnn Beatty solely because that conversation concerned the conse- quences of being represented by a union. The second reason the judge cited, in sec IV,B, par 1, for finding the letter unlawful is that the Respondent reasonably led Domer to believe that he was disciplined for conversations with Beatty that were protected by Sec 7 of the Act Domer had several conversations with Beatty about the Union and, as the judge found, none of those conversations lost their protected status The day Domer received the letter, Supervisor Rice told Domer only that he was disciplined for "harassing" Beatty "about the Union " Although the Respondent disciplined Domer solely for his 15 November conversation with Beatty, Respondent President Sergio Echeverria told Domer he was disciplined for more than one conversa- tion Echeverria erroneously told Domer 2 January 1985 that Beatty ac- cused Domes of having told her on one occasion he would "get her fat ass out of the plant if the Union got in " Echeverria also told Domer he was disciplined for "harassing" Beatty "about the Union," both at her home and at the plant Accordingly, whether or not a threat to get Beat- ty's "ass out of the plant" would have been protected had it been made by Domer, both Rice and Echeverria clearly indicated to Domer he was disciplined for other, protected conversations as well For these reasons, we agree with the judge's second basis for concluding the disciplinary letter was unlawful The first reason the judge cited for finding the Respondent 's discipli- nary letter to Domer unlawful is that the letter was issued pursuant to what the judge concluded was an "unlawful policy" against harassing employees As discussed above, we agree with the judge that the Re- spondent violated the Act by disciplining Domer and by Rice's and Echeverria's explanations to Domer of the reasons for it There is, how- ever, no evidence the Respondent ever announced a harassment "policy" to other employees Accordingly, we find it unnecessary to pass on the judge's conclusion that. "by invoking an unlawful policy against ' harass- ment,' the [Respondent] violated the Act " ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, ACTIV In- dustries, Inc., Kearneysville, West Virginia, its offi- cers, agents, successors, and assigns, shall take the action set forth in the Order. Annette M. Amato, Esq., for the General Counsel. Robert M. Steptoe, Esq., of Clarksburg, West Virginia, for the Respondent. DECISION STATEMENT OF THE CASE MARVIN ROTH, Administrative Law Judge. This case was heard at Martinsburg, West Virginia, on 12 June 1985.1 The charge and amended charge were filed on 6 February and 18 March respectively by Gary Lee Domer, an individual. The complaint, which issued on 20 March and was amended at the hearing, alleges that ACTIV Industries, Inc., formerly known as J. C. L. Zigor Corporation (the Company or Respondent), violat- ed Section 8(a)(l), (3), and (4) of the National Labor Re- lations Act. The gravamen of the complaint is that the Company allegedly issued a disciplinary warning letter to employee Domer because of his union activity and his involvement in an unfair labor practice hearing in Case 5-CA-16676 as the General Counsel's designated repre- sentative, and in order to discourage other employees from engaging in such activities. The Company's answer denies the commission of the alleged unfair labor prac- tices. All parties were afforded full opportunity to par- ticipate, to present relevant evidence, to argue orally, and to file briefs. The General Counsel and the Company each filed a brief. On the entire record in this case2 and from my obser- vation of the demeanor of the witnesses, and having con- sidered the briefs and arguments of the parties, I make the following FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY The Company, a West Virginia corporation, operates a plant in Kearneysville, West Virginia, where it is en- gaged in the business of manufacturing ammunition. In the operation of its business, the Company annually ships from its Kearneysville plant goods and materials valued in excess of $50,000 directly to points outside of West Virginia. I find, as the Company admits, that it is an em- ployer engaged in commerce within the meaning of Sec- tion 2(6) and (7) of the Act. I All dates herein are for the period from I July 1984 through 30 June 1985 unless otherwise indicated. 2 Certain transcript errors have been noted and corrected 277 NLRB No. 87 ACTIV INDUSTRIES 835 IL THE LABOR ORGANIZATION INVOLVED General Teamsters and Allied Workers, Local Union No 992, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (the Union) is a labor organization within the meaning of Section 2(5) of the Act. Ill. BACKGROUND: THE ORGANIZATIONAL AND ELECTION CAMPAIGNS, THE PRIOR UNFAIR LABOR PRACTICE PROCEEDING, AND GARY DOMER'S INVOLVEMENT IN THOSE EVENTS On 5 September the Union commenced an organiza- tional campaign among the Company's employees. Five employees, including Gary Domer (who first contacted the Union), were initially involved in the campaign. On the basis of testimony adduced at the present hearing, it appears that all but one of the Company's production and maintenance employees signed union authorization cards, or at least that the employees generally believed that all but one signed cards, the lone holdout being JoAnn Beatty.3 On 13 September the Company an- nounced a reorganization, and the next day the employ- ees were summoned individually to meet with manage- ment, and were informed whether they would remain or be terminated. The Company terminated 10 employees, all of whom had signed cards, including 2 of the 5 em- ployees who commenced the campaign (among the 5, the Company terminated Ruby Henry and Diane McDaniel and retained Domer, Melvin Prince, and Douglas Dockney). The Union filed an unfair labor prac- tice charge (Case 5-CA-16676), the General Counsel issued a complaint, and a hearing was conducted by Ad- ministrative Law Judge Thomas D. Johnston from Monday, 17 December, through Thursday, 20 Decem- ber. On 28 March Judge Johnston issued his decision and recommended Order, finding, and concluding in sum that the Company violated Section 8(a)(1) and (3) of the Act by coercive interrogation, indicating that employees were discharged because of the Union, and discrimina- torily discharging the 10 employees on 14 September be- cause of union activities. The Company filed exceptions, and the case is presently pending before the Board. In the meantime, the Union filed a representation petition (Case 5-RC-12323) and proceeded to an election which was held on 2 November The tally of ballots showed 13 votes for the Union and 4 against, with 10 challenged ballots, the 10 being the alleged discriminatees in the unfair labor practice proceeding. By Decision and Order issued 29 March J. C L. Zigor Corp., 274 NLRB 1477 (1985)), the Board held in sum that the outcome of the election could not be determined until the status of the alleged discriminatees is resolved. Gary Domer began as and remained the principal union adherent at the plant, and his involvement with the Union was known to management. In Case 5-CA- 16676, Judge Johnston found that George Deaner, who was plant manager from 3 July to 8 November, referred to Domer as a "ringleader" of the Union.4 Domer was the union observer at the 2 November election. Domer did not testify at the hearing. However, he was present at the hearing pursuant to a subpoena from the General Counsel throughout the 4-day hearing. Domer testified that about 10 December he told Acting Plant Manager Ken Rice that he was subpoenaed to attend the hearing. Rice testified that he did not recall whether Domer said he would be at the hearing. I find it unlikely that Domer, a conscientious and well-regarded employee, would simply absent himself from work without informing his supervisor. I credit Domer, and I find that the Company, including Company President Sergio Echeverria and Personnel Coordinator Linda Barnhart, knew in advance that Domer would be present at the hearing. IV. THE ALLEGED UNFAIR LABOR PRACTICES: THE DISCIPLINARY WARNING LETTER A. The Facts On Monday, 24 December, when Domer was at home for the week of Christmas, he received a letter in the mail dated 21 December from Company President Eche- verria. The text of the letter read as follows: Dear Gary: It has come to my knowledge that you have been repeteadly [sic] harassing JoAnn Beatty. Some of this harassment was stated in insulting terms. The purpose of this letter is to let you know that the company will not tolerate any kind of harass- ment among its employees, and that this type of in- cident will be treated as a major discipline problem. Be advised that new attempts by you to harass any other employee will result in immediate disci- plinary termination. In the event you feel the information I have re- ceived related to this incident is not true, you are invited to explain it to me. Domer had not previously received any notice from the Company concerning alleged harassment of Beatty. Domer telephoned Acting Manager Rice and asked what the letter was about. Rice answered that Beatty came to him about 10 or 11 December and complained that Domer was "harassing" her "about the Union." Rice added: "You know how she feels about the Union." Rice gave no other information about the alleged harassment. Domer asserted that the Company would not get rid of him that way, whereupon Rice responded that he did not think they had this in mind. Domer complained that the letter ruined his family's Christmas, whereupon Rice an- swered that he thought the letter was to be handed per- sonally to Domer. On 2 January, aftei Domer returned to work, he went to see Echevetria to find out what the letter was about. Domer testified in sum as follows: Echeverria said that Beatty came to Rice and com- plained that Domer was harassing her about the Union. I In Case 5-CA-16676, the administrative law judge found that the Union received cards for 25 of the 27 unit employees 4 The Company did not except to this finding, although the Company had no reason to, as Domer was not an alleged discrimmatee in that pro- ceeding 836 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Domer denied that he harassed Beatty, and asked if she could prove the charge. Echeverria said she could. Domer said that he did not appreciate getting the letter on Christmas Eve. Echeverria apologized for the timing, and explained that the letter was ready on 14 December but was not given to Domer because of the plant Christ- mas party that day. He told Domer that the letter would be placed in his personnel file Echeverria said that Beatty accused Domer of saying that he would get her "fat ass" out of the plant if the Union got in. Domer denied the accusation. (As will be discussed, Beatty never accused Domer of making such a remark.) Domer asked whether the alleged harassment took place at the plant or at Beatty's home. Echeverria answered "both" adding that "we won't tolerate it." He asked about scratches on Beatty's car, and Domer answered that he did not put them there. Domer suggested that they, Beatty and Rice, get together to discuss the matter. Echeverria said he would see Domer the next day. How- ever he did not contact Domer again concerning the matter. Echeverria, in his testimony, did not give a com- plete account of his conversation with Domer. He testi- fied that he could not recall if he told Domer what Beatty said, but that he probably said the harassment was reported in "nasty terms " He admitted that he did not ask for Domer's version of the alleged harassment. Eche- verria testified that he told Domer he "understood" that the alleged harassment took place at the plant and in working hours, which Domer denied, but that he added that "it was a misbehavior regardless of where it hap- pened, in the plant or out of the plant " Echeverria fur- ther testified that he promised to investigate the matter, that Domer did not suggest that everyone get together, and that (as will be discussed), he gave a fuller explana- tion why the letter was mailed I week after it was pre- pared. Domer also asked Beatty about the letter, but she was unwilling to discuss it. Beatty testified that Dorner said he was sorry, he did not mean to harass her, and that he thought they were just conversing. However, she admit- ted that she did not discuss any of the particulars of the alleged harassment, and did not even admit that she spoke to management. Domer testified that he was in- clined to drop the matter at this point, but that he decid- ed to take further action after Rice told him that the letter could affect future evaluations (which are the bases for pay increases) and promotions. Rice testified that he could not recall Domer asking about this Domer went to a private attorney, who advised him to obtain an affi- davit from Beatty, but she refused to give any statement. Domer checked with Personnel Coordinator Barnhart, learned that the letter was still in his personnel file, and thereafter filed the present charge. As indicated, there are some discrepancies between the testimony of Domer and that of the other witnesses (Echeverria, Rice, Beatty, and Barnhart), concerning Domer's contacts with them after he received the disci- plinary warning letter. However, I find that these differ- ences are not material to ultimate merits of this case. Rather, whether I credit Domer or any or all of the other witnesses, or find that their testimony taken togeth- er reflects the substance of what was said, 1-find that their testimony demonstrates several factors which are significant to the merits of the case. First, Echeverria dis- ciplined Domer solely on the basis of alleged "harass- ment" of Beatty Specifically, Echeverria did not, either in the letter or in his subsequent conversation, assert that Domer was disciplined for leaving his place of work without permission, engaging in union solicitation during working time, interfering with or impeding production, or otherwise violating any other company rule or policy. Second, although the letter did not describe the subject of the harassment, both Rice and Echeverria made clear to Domer that it involved prounion talk by Domer Third, Echeverria made clear to Domer that his conduct was objectionable regardless of whether or not it took place at the plant or during working time. As indicated, the disciplinary letter did not state when or where the alleged harassment took place. As will be discussed, Echeverria did not even know whether the harassment took place at the plant or on working time. Fourth, Domer was never informed as to the particulars of the alleged harassment. Therefore it was impossible for him to give his version of the events in question, other than to simply admit or deny (as he did) that he harassed Beatty. President Echeverria testified that on 4 or 5 December he returned to the plant from a business trip, and that Acting Plant Manager Rice then reported to him that Beatty complained to him the previous weekend that she had been harassed by Gary Domer When asked by counsel for the General Counsel what Rice specifically told him, Echeverria testified as follows: As I can recall, he told me that she was being harassed. She had been told that she had to join the Union in 30 days or otherwise her time card should be pulled out of the clock. That they were going to keep her ass out of the plant. That she was going to get out of the fucking door and this kind of lan- guage. Echeverria failed to indicate that Rice told him where or when this alleged conversation took place. Echeverria testified that Rice also told him that on one occasion when Beatty was assisting a machinist, Domer asked her to "get away from there, not to say anything, not to do anything, not to report to management or something like that." However, Echeverria admitted that he understood that this involved a different conversation from that de- scribed above. Nevertheless Echeverria asked no ques- tions, conducted no investigation, and did not speak to either Beatty or Domer about the matter Instead, ac- cording to Echeverria, he contacted his attorney, pre- pared a draft of the disciplinary warning letter, and on 14 December, when he met with the attorney, the attor- ney approved the letter. Echeverria's indifference to the time or location of the alleged harassment is confirmed by his actions following his conversation with Domer on 2 January. According to Echeverria and Acting Plant Manager Rice, he then asked Rice to conduct a "quiet, discreet investigation" of the matter. However, pursuant to Echeverria's instructions, this so-called investigation consisted only of Rice obtaining an unsigned and undat- ACTIV INDUSTRIES ed three-page statement from Beatty describing various incidents and conversations over a period of several months, some of which , but not all , involved Domer. The statement described a purported conversation on Thursday , November 15, with Domer which was similar in some respects but materially different in others from that described by Echeverria in his testimony . The state- ment failed to indicate whether or not the conversation took place at the plant or on working time . Beatty and Rice testified in sum that Rice assisted her in preparing the statement, at least to the extent of providing her with dates. Nevertheless Echeverria testified that on reading Beatty's statement he concluded that the disciplinary letter was justified Echeverria took no further action in the matter, and did not even bother to inform Domer of the results of the "investigation ."5 Echeverria's indiffer- ence to the time or location of the alleged harassment is further confirmed by a position letter which company counsel submitted to the Board's Regional Office during its investigation of the present charge . Company counsel stated as follows- On Saturday, December 1, 1984, Ms. Beatty re- ported to management that Domer confronted her shortly after she accepted the promotion [to lead packer]. More specifically, Beatty told management that Domer harassed her by telling her that if she took the lead packer job she would still do as the union told her; that she would mind her own busi- ness; that she would not be allowed to run to man- agement about problems; that if the union got in, she would have to join the union within 30 days and if she didn't, her "time card whould be pulled and [she would go] out the f- door "; and that if there was a strike, she would walk the picket line like everyone else. Company counsel went on to state that "As a result of this Complaint," Echeverria prepared and counsel ap- proved the disciplinary warning letter . At no point did company counsel indicate that the alleged harassment took place on working time, or that the disciplinary letter was based on any incident other than the alleged conversation described in the letter , or on any grounds other than alleged harassment of Beatty. 6 I find that the position letter may properly be considered as an admis- sion that Domer was disciplined solely on the basis of the purported conversation of November 15, that Domer was disciplined for alleged harassment of Beatty, and not for violating any other , company rule or policy, that the 5 Echeverria testified that he did not think a lady would make such an accusation in writing unless it were true. If I were to follow Echeverria's purported reasoning, I would have no alternative but to find a -violation in the present case, because the Board's General Counsel, who issued the complaint, and counsel for the General Counsel are both women For reasons which have been and will be discussed, including Echeverria's total lack of interest in hearing Doiner's side of the story, I find that Domer would have been disciplined regardless of the gender of the per- sons involved and regardless of what actually occurred 6 In the position letter, company counsel stated that he understood that Beatty first brought a complaint of harassment by Domer to management in late September, during the election campaign In fact, Beatty made a complaint to then Plant Manager George Deaner at that time, but it did not involve Domer, and she did not mention Domer's name 837 Company was indifferent to whether the harassment oc- curred on company time or premises, and that the Com- pany regarded the content of the conversation as crucial, rather than its time or location. It is settled law that the admissions of an attorney in the management of litigation are admissible against the client. Steve Aloi Ford, 179 NLRB 229 fn. 2 (1969). In light of Echeverria's testimo- ny, and the absence of any reference in either Beatty's written statement or the Company's position letter to the time or location of the alleged harassment, I do not credit the testimony of Rice that he reported to Echever- ria that Beatty said she was harassed on the floor during working hours. I further find that even if Echeverria knew or believed that the alleged harassment took place at work, he did not care, and that as he told Domer, the time and location played no part in his decision to disci- pline Domer.7 Beginning in August 1984 and continuing through and after the election campaign, there was considerable dis- cussion among the employees about the Union JoAnne Beatty, as the only employee outspokenly opposed to unionization, was conspicuously involved in these con- versations. Although Beatty and Domer differed in their views about the Union, they were friends and knew each other well. They worked together as a team, both served on the plant safety committee, and Domer came to her home to install a pole light for her. Beatty testified that she had more than five conversations with Domer about the Union, but that all of them were at work. Beatty fur- ther testified in sum as follows: On 14 September, the morning of the reorganization, a group of employees, in- cluding Domer and Beatty, were speculating on what might happen when they were summoned for their inter- views with management. Diane McDaniel said that Beat- ty's job was safe because she ratted. McDaniel and nine other employees were subsequently discharged. On 17 September after the discharges, Beatty received a tele- phone call at her home from an unidentified woman, who said Beatty was a "fucking rat" and would be sorry. Beatty told Plant Manager Deaner about the conversa- tion and telephone call. He told her that if she was har- assed she could contact the NLRB. However, she did not do so. Instead she talked to Domer. That week, as Beatty was driving away from work, Domer was driving behind her. She stopped and signaled Domer to pull over, which he did. Beatty told Domer that she was tired of hearing "they would get the fucking rat," that she felt "they" were referring to her, and that if he be- lieved she was the rat he should do something about it or forget it. Beatty gave several versions of Domer's re- 7 Echeverria testified that in harassing Beatty, Domer violated a plant rule against leaving place of work without permission. Echeverria admit- ted that he had no factual basis for this belief, but that it simply reflected his own speculation In fact, Domer and Beatty worked together in the same area, with Domer functioning as loader and Beatty as packer Therefore it would not have been necessary for Domer to leave his place of work in order to speak to Beatty, even if they were both at work. Beatty did not, either in her complaint to Rice or her testimony, com- plain that Domer interferred with her work. She did not even complain about Don er's alleged use of profanity Rather she testified that she ob- jected to Domer's remarks because she felt he was talking to her as if he were her boss, and because she felt that the alleged harassment, i e, prounion talk, should have stopped after the election 838 DECISIONS OF NATIONAL LABOR RELATIONS BOARD spouse. She initially testified that Domer said that she was probably the rat because she was the only employee who did not sign a union card. She subsequently testified that Domer said, "If you are the one who ratted, I will get the fucking rat." However, in her investigatory affi- davit Beatty stated that Domer said, "If you're the one who informed the Company then you are a fucking rat," and that Domer did not otherwise threaten her. Beatty testified that the affidavit was correct. Domer testified that he may have called Beatty a "fucking rat," but he never threatened her. I find that Domer never expressly or imphedly threatened to get Beatty. In November the Company offered to promote Domer and Melvin Prince to a newly created position of lead operator and to promote Beatty to a new position of lead packer. Prince and Beatty accepted immediately, but Domer told Echeverria that he wanted to think about it. Beatty testified that about 15 November Domer asked her if she was offered the lead packer job, and she an- swered, "Yes." Beatty described the ensuing conversa- tion as follows: He told me if I took that position I would still have to do what the Union said, that I wasn't -to talk to management, supervisors or run to them about various things, and that I was to do what I was told, and that if I didn't and the Union did get in I would have thirty days to sign the Union card or my time card would be pulled and out the fuck- ing door I would go. Also, if the Union went on strike I'd have to walk the picket lines just like ev- erybody else. I told him that he wasn't my boss and he wasn't to tell me what I was supposed to do and that no fucking man was going to tell me what I could do, and until he was my boss then I wouldn't have to listen to anything that he told me. Beatty further testified concerning an incident on 29 No- vember. Employee Vicky Morris had been assigned to work with Melvin Prince. Prince told her that she was unable to handle the job, and told her to work with an- other loader. Morris broke into tears Beatty, who was on the plant safety committee, thought she was injured and offered to help. Morris told her what happened, and Beatty agreed to go with her to see Acting Plant Manag- er Rice. As a result, Rice reprimanded Prince for im- properly assuming supervisory authority. Beatty testified that following this incident, Domer told her that she should mind her own business and let the other employ- ees take care of their own affairs. Beatty testified that about I December she reported both the 15 and 29 No- vember conversations to Rice. However, Rice testified that Beatty reported the 29 November conversation to him that same day, that he did not report this matter to Echeverria, that Beatty did not complain about the 15 November conversation until 1 December, and that he did report this complaint to Echeverria on 4 or 5 De- cember when Echeverria returned from an out-of-town trip. Echeverria testified that he was gone for 4 or 5 days. Therefore it is evident that he still was at the plant on 29 November. Nevertheless Rice did not regard the 29 November conversation as important enough to war- rant disciplinary action. However, when Beatty com- plained about a conversation which had taken place over 2 weeks earlier, Rice referred the matter to Echeverria. These facts tend to confirm what I have already found on the basis of the Company's own statements, namely, that Domer was disciplined solely because of his alleged remarks on 15 November. The facts further demonstrate that Echeverria and Rice were in fact indifferent to al- leged "harassment," unless that "harassment" took the form of prounion propaganda. It is also significant that Rice testified that on 29 November lab technician Brian Roberts told him that Melvin Prince said that "we or they will get JoAnn's ass out of here." Echeverria was so indifferent to the actual language used by Domer that he attributed to Domer the language which was alleged- ly used by Prince. He also took no action against Prince. In sum, Echeverria's prime concern was that Domer was engaging in prounion propaganda. Domer testified that he spoke to Beatty several times about the Union, that most, but not all, these conversa- tions took place at her home, and that either of them would initiate such conversations. He testified that on one occasion Beatty asked him what would happen if the Union got in. Domer answered that when he worked at a union plant the employees had 30 days in which to join the union there and everybody had to walk the picket lines. Beatty told Domer that when she worked in Vir- ginia, the Union caused that plant to shut down. Domer testified that he sometimes talked to Beatty at her work station, but not on this occasion. He further testified that Beatty never accused him of harassing her or told him to stop talking about the Union. Domer testified that he did not recall telling Beatty that she should keep her mouth shut or that if she did not join the Union within 30 days her card would be pulled and she would be "out the fucking door." With regard to the 29 November inci- dent, Domer testified that Beatty asked her whether she had done right by going with Morris to see Rice, and that he answered that she should have let them solve their own problems and kept her nose out of it. I credit Beatty concerning the 15 November conversation. As in- dicated, Domer was somewhat equivocal about Beatty's version, testifying that he did not recall such a conversa- tion. In contrast, Beatty testified that by October she be- lieved that Domer was the union "ringleader," and therefore she listened carefully to what he had to say about the Union. Additionally, as will be further dis- cussed, the employees commonly used profanity in their conversations. However, I credit Domer's testimony to the effect that they previously discussed their experi- ences with a union shop. I also credit Domer's specific testimony concerning the 29 November incident. It is un- likely that Domer would have known what happened unless Beatty told him. Therefore it is probable that Beatty initiated the conversation by telling Domer what happened and asking his opinion. B. Analysis and Concluding Findings The General Counsel and the Company, in their re- spective briefs, have addressed this case as one which ACTIV INDUSTRIES 839 turns on a question of motivation, 'i.e., whether or not the Company gave Domer the disciplinary warning letter in reprisal for his support of the Union and partici- pation in the first unfair labor practice proceeding, and used Beatty's complaint as a pretext for engaging in such reprisal. In so doing both sides have missed the mark 11 find that the disciplinary letter was violative of Section 8(a)(1) and (3) of the Act for three reasons, none of which turn on employer motivation. Therefore, insofar as the complaint alleges that the Company violated those sections of the Act, it is not even necessary to reach the question of motivation. First, as found, the Company dis- ciplined Domer because of his alleged harassment of a fellow employee, and on no other asserted ground. The Board has long held that an employer rule or policy against employee "harassment," "pressure," or making "trouble" for other employees, which may be applied to union or other concerted activity, is unlawful because such a rule may reasonably be interpreted by the em- ployer or employees as prohibiting lawful union or con- certed activity. Therefore, by invoking an unlawful policy against "harassment," the Company violated the Act, regardless of whether Domer was actually engaged in activity protected by Section 7 of the Act. General Electric Co., 255 NLRB 673, 680 (1981), and cases cited therein; see in particular, W. F. Hall Printing Co., 250 NLRB 803, 804 (1980), and Liberty Nursing Home of Lynchburg, 245 NLRB 1194, 1197 fn. 5 (1979), involving the term "harassment." Second, Echeverria and Rice in- dicated to Domer only that he was being disciplined for harassing Beatty, and that the harassment involved prounion talk. They did not tell Domer when the alleged harassment occurred, and they never told him that he was disciplined for leaving his work station, interfering with production, engaging in union solicitation on work- ing time, threatening Beatty with violence, using profani- ty (except insofar as Echeverria may have indicated that the harassment involved "nasty" language, which was commonly used in the plant), or for any other violation of a company rule or policy. Therefore Domer was rea- sontably led to believe that the "harassment" could or did involve all of his conversations with Beatty concerning the Union. In these circumstances, it was immaterial whether the alleged "harassment" took place on or off the job, or in- volved threats of violence or other unprotected conduct. General Electric Co., supra, 2'55 NLRB at 682.8 Third, the discipline violated Section 8(a)(1) and (3) because the actual but concealed basis for the discipline, i.e., Domer's statements to Beatty about November 15, constituted protected union and concerted activity Even on the B Therefore the Company's reliance on NLRB v General Indicator Corp, 707 F 2d 279 (7th Cir 1983) (Br 9-11), is misplaced In that case, the employer discharged the alleged discrimmatee for the asserted lawful reason that he disrupted the productivity schedule of other employees during working hours The issue presented was whether this asserted ground was a pretext for unlawfully discharging him because of his out- spoken opposition to the incumbent union steward The court determined that the evidence was insufficient to support the Board's determination that the discharge was pretextual In contrast, in the present case Domer was discharged for allegedly harassing Beatty For the reasons discussed above, the discipline was unlawful regardless of the Company's motiva- tion basis of - Beatty's version of the conversation, which I have credited, it is evident that Domer was simply ex- pressing his opinion that (1) the new position of lead packer would be a unit rather than a supervisory posi- tion, and therefore Beatty would be subject to a union contract and not a part of management, (2) if the Union came in the Company would execute a contract with a union-security clause, and if Beatty did not join the Union within 30 days she could be discharged, and (3) as a union member Beatty would be expected to walk a picket line like everyone else if the employees voted to strike. Indeed, in light of Beatty's own prior experience with a union shop, the employees' extensive discussions concerning the Union over a period of several months, and the organizational and election campaign, it is diffi- cult to see how Beatty could reasonably place any other interpretation on Domer's statements. Plainly Beatty did not understand Domer to mean that he had the power to fire her or even to tell her what to do. Thus she told Domer in firm language, accompanied by profanity, that he was not her boss. Such expressions of employee opin- ion constitute activity which is protected under the Act, regardless of whether they are accurate or truthful. Fac- tory workers cannot be expected to speak in the precise or polite phrases used by labor lawyers. Compare, Liber- ty Nursing Home, supra, 254 NLRB at 1202-1203 (em- ployee engaged in protected activity by telling another employee she could go over her head and have her fired if she failed to join the union, and that dues would be taken out of her paycheck even if she did not join). Domer's use of profanity did not remove his opinions from the ambit of protected activity. Compare Consum- ers Power Co., 245 NLRB 183, 188 (1979) (steward on union business engaged in protected activity when he told supervisor "I don't give a fuck who you call."). It is evident that when it came to profanity she was able to match Domer word for word.9 Beatty never testified that Domer interfered with her work. Rather, despite leading questions by company counsel, she testified that Domer spoke to her on her return from the office, when she had been offered the job of lead packer. Moreover Echeverria was indifferent whether the conversation took place on or off the job. Even if I were to view the entire course of the rela- tions between Domer and Beatty on the basis of Beatty's own testimony, I would find that Domer never engaged in words or actions which would constitute a threat of violence or other unprotected union activity. Domer never threatened Beatty with retaliation, and they re- mained on good terms throughout the election campaign. On 14 September it was Diane McDaniel and not Domer who said that Beatty ratted. The alleged anonymous caller of 17 September was a woman. Thereafter it was Beatty who "harassed" Domer, and not the other way around. Beatty testified that in late September Domer followed her in his car However, Domer and Beatty normally left work in the same direction, and it would 9 In the first unfair labor practice proceeding, the Company admitted that the employees freely used profanity to the plant (See decision of Judge Johnston at 277 NLRB 356, 366, Company's Brief in support of exceptions, p 44 ) 840 DECISIONS OF NATIONAL LABOR RELATIONS BOARD not be unusual for his car to be behind hers. Domer testi- fied that he never intentionally followed Beatty from work, and Beatty did not drive far enough to find out whether he was doing so. Instead she signaled him to pull over and proceeded to give him a tongue lashing, not because of what Domer had said or done, but be- cause of what other employees were saying about her. However, Dourer was an individual employee in his own right, he was not their "boss" any more than he was Beatty's boss, and he was not responsible for what they said or did. Thereafter all that occurred was the conver- sation of 29 November, in which Beatty invited Domer's opinon, and which Rice dismissed as unimportant, and the conversation of 15 November, in which Domer ex- pressed his opinion about unionization, and which Beatty did not even bother, to report to management until over 2 weeks later. As the present case involves an alleged violation of Section 8(a)(4) of the Act, in addition to the 8(a)(1) and (3) allegation, it is necessary for me to consider the ques- tion of employer motivation. I find that the Company disciplined homer in order to suppress prounion talk after the election. In this regard, it is significant that Rice was indifferent to Beatty's complaint that Domer told her to mind her own business, and was even indifferent to a report that Melvin Prince said that "We or they will get JoAnn's ass out of here." However, when Beatty be- latedly complained that Dourer was talking to her about the consequences of unionization, and indicating that she would have to join the Union sooner or later, 10 Rice and Echeverria immediately swung into action. They indicat- ed to Domer that they were concerned about the sub- stance of what he allegedly told Beatty, rather than the time, place, or circumstances of their conversation or conversations In sum, the Company was less concerned about "harassment" than it was about prounion talk which might convince Beatty to join the Union. Howev- er, I am not persuaded that the Company used Beatty's complaint as a pretext to retaliate against Domer because of his union activity or his participation in the first unfair labor practice hearing. During the same period of time in which the Company was proceeding to discipline Domer, it was offering him a promotion.) i As of 14 Sep- tember the Company knew that Domer was the union "ringleader." Nevertheless the Company retained Domer while' terminating other employees whose only union ac- tivity consisted of their signing a union card. Such ac- tions are inconsistent with an intent to single out Domer for discriminatory treatment. It is evident that the Com- pany regarded Dourer as a valuable employee, and was perfectly willing to retain his services, provided that after the election, at least, he ceased his efforts to per- suade Beatty to join the Union. 10 It is evident that the employees regarded the outcome of the elec- tion as a union victory Even company counsel inadvertently referred to the Union having won the election a i Domer never accepted the offer, either because of a misunderstand- ing as to who was to make the next contact, or because Domer was dis- satisfied with the pay However, the Company kept the offer open for over a month, and eventually offered the position to another employee Melvin Prince, also a union activist, was also offered a promotion, and he accepted it I further find that the Company was not motivated by Dower's involvement with the hearing before Judge Johnson. In this regard, I find that the Company decided before the hearing began that it would discipline Domer, although I do not wholly credit the Company's explana- tion for its delay in such action. Echeverria, Rice, and Linda Barnhart, whose full title is administrative assistant and personnel coordinator, tes- tified in sum as follows: After Rice reported Beatty's complaint to Echeverria, Echeverria contacted the Com- pany's attorney and prepared a draft of the disciplinary letter. On 14 December the attorney came to the plant to prepare for the hearing which was scheduled to com- mence on Monday, 17 December. (As found, at that time the Company knew that Domer was subpoenaed by the General Counsel. However, it had no way of knowing that Domer would be present at the counsel table.) The attorney approved and Barnhart typed the letter, and Echeverria instructed her to personally hand the letter to Dourer. However, Barnhart opined to Echeverria that she should give the letter to Domer on Monday, because they were scheduled to have a Christmas party for the employees on the evening of 14 December. Echeverria agreed. Domer was not present at the plant from 17 De- cember through 20 December because of his presence at the hearing. He returned to work on Friday, 21 Decem- ber. Barnhart was very busy that morning, as she was finishing up her work before the holiday period. From noon to 3:30 p.m. she attended a luncheon party for the office personnel . She returned to the office at 3:30, when the production employees were leaving work, and real- ized that she still had not given the letter to Domer. Acting on her own initiative, and without informing Echeverria, she changed the date on the letter from 14 December to 21 December and mailed it to Dourer. I credit the testimony of the company personnel that the letter was prepared and typed on 14 December, and that by that time the Company had decided to give the letter to Domer. I have no reason to question the integri- ty of company counsel, and I find it unlikely he would present testimony concerning an event when he had per- sonal knowledge that the event never occurred. Howev- er, I do not credit the testimony of the company person- nel to the effect that the ensuing delay took place simply because of a series of unanticipated events. For the rea- sons discussed, I find that Echeverria knew that Dourer had been subpoenaed to attend the hearing, and therefore that he did not expect that Barnhart could give the letter to Domer on Monday. Given the sensitive nature of the letter, I also find it unlikely that Barnhart would have taken it upon herself to change both the date and the means of delivering the letter, without having been so in- structed by Echeverria. Rather it is probable that the Company refrained from issuing the letter until after the hearing, in order to avoid making it an issue in that hear- ing. Therefore I am recommending that the 8(a)(4) alle- gation of the complaint be dismissed. CONCLUSIONS OF LAW 1. The Company is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. ACTIV INDUSTRIES 2. The Union is a labor organization within the mean- ing of Section 2(5) of the Act. 3. By interfering with, restraining, and coercing its em- ployees in the exercise of the rights guaranteed them in Section 7 of the Act, the Company has engaged in, and is engaging in, unfair labor practices within the meaning of Section 8(a)(1) of the Act. 4. By discriminatorily issuing a disciplinary warning letter to Gary Lee Domer, thereby discouraging mem- bership in the Union, the Company has engaged, and, is engaging, in unfair labor practices within the meaning of Section 8(a)(3) of the Act. 5. The General Counsel has failed to prove by a pre- ponderance of the credible evidence that the Company violated Section 8(a)(4) of the Act. 6. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. THE REMEDY . Having found that the Company has violated Section 8(a)(1) and (3) of the Act, I shall recommend that it be required to cease and desist therefrom and from any like or related conduct, to post appropriate notices, to ex- punge From the personnel records of Gary Lee Dames the disciplinary warning letter which was issued to him in December 1984, and all references thereto, to give written notice of such expunction to Domer, and to inform him that its unlawful conduct will not be used as a basis for further personnel actions against him. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- edn2 ORDER The Respondent, ACTIV Industries, Inc., Kearneys- ville, West Virginia, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Discouraging membership in General Teamsters and Allied Workers, Local Union No. 992, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or any other labor organization, by discriminatorily warning or threat- ening employees with discharge or other discipline be- cause of their union activities, including alleged "harass- ment" of other employees, or in any other manner dis- criminating against them with regard to their hire or tenure of employment or any term or condition of em- ployment. (b) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 12 If no exceptions are flied as provided by Sec 102 46 of the Board's Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec 102 48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses 841 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Remove from the personnel record of Gary Lee Domer, the disciplinary warning letter which was issued to him in December 1984, and all references thereto, and notify him in writing that this has been done and that its unlawful action will not be used against him in any way. (b) Post at its Kearneysville, West Virginia plant, copies of the attached notice marked "Appendix."13 Copies of the notice, on forms provided by the Regional Director for Region 5, after being signed by the Re- spondent's authorized representative, shall be posted by the Respondent immediately 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 Respond- ent to ensure that the notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. 13 If this Order is enforced by a judgment of a United Stales court of appeals, the words in the notice reading "Posted by Order of the Nation- al Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals enforcing an Order of the National Labor Relations Board " APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS 130ARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has or- dered us'to post and abide by this notice. WE WILL NOT discourage membership in General Teamsters and Allied Workers, Local Union No. 992, af- filiated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America or any other labor organization, by discriminatorily warning or threatening you with discharge or other discipline be- cause of your union activities, including alleged "harass- ment" of other employees, or in any other mariner dis- criminating against you with regard to your hire or tenure of employment or any term or condition of em- ployment. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act WE WILL remove from the personnel record of Gary Lee Domer, the disciplinary warning letter which we issued to him in December 1984, and all references there- to, and WE WILL notify him in writing that this has been done and that our unlawful action will not be used against him in any way ACTIV INDUSTRIES, INC