Finlay Brothers Co., Inc.

FINLAY BROS. CO. 737 Finlay Brothers Company, Inc. and Louis A. Bon- nett. Case 39-CA-2910 14 January 1987 DECISION AND ORDER Harvey M Schrage, Esq., for the General Counsel. Burton Kainen and Susan Wright, Esgs (Siegel, O'Connor, Schiff, Zangari & Kainen, P. C.), of Hartford, Connecti- cut, for the Respondent. Anne Goldstein, Esq. (Kestell, Pogue & Gould), of Hart- ford, Connecticut, for the Charging Party. BY CHAIRMAN DOTSON AND MEMBERS BABSON AND STEPHENS On 20 August 1986 Administrative Law Judge Harold B. Lawrence issued the attached decision. The General Counsel filed exceptions and a sup- porting brief, and the Respondent filed a brief in support of the judge's decision. 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,' and conclusions2 and, to adopt the recommended Order. ORDER The recommended Order of the administrative law judge is adopted and the complaint is dis- missed. 1 The General Counsel has excepted to some of the judge's credibility findings, The Board's established policy is not to overrule an administra- tive law ,fudge'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 re- versing the findings. In discrediting Bonnett's testimony regarding pink slips, the judge found that "his [Bonnett's] testimony that he had not said he would take a pink slip before he would wear a work uniform . was belied in the tape-recorded conversation he had with Kalagher." Contrary to this find- ing, the transcript of ' the tape-recorded conversation indicates that Bon- nett's testimony was contradicted in a conversation not with Kalagher, but with David Brouillette, the production manager. In this regard, the judge also found that "in the space of a few minutes on the witness stand he [Bonnettl changed Ins opinion of MacKenzie from a fair and reasona- ble man to one whom be did not trust " The record clearly indicates, however, that Bonnett's stated view of MacKenzie as "fair and reasona- ble" was in response to a question that referred to Bonnett's relationship with MacKenzie prior to their telephone conversation regarding the uni- form policy. In contrast, Bonnett's statement that he did not trust Mac- Kenzie referred to his reaction immediately after this conversation. De- spite these errors by the judge, we rind insufficient basis to disturb his credibility resolutions. We note that the judge stated that Charging Party Bonnett told the Respondent's owner, MacKenzie, that he allegedly had six signatures on a petition protesting the work uniform policy when MacKenzie actually testified that Bonnett said he had seven signatures. Additionally, in para- phrasing the testimony of the Respondent's president, Kalagher, the judge stated that Kalagher testified that it "angered" him when he dis- covered that Bonnett had tape recorded one of their conversations when Kalagher actually testified that it "really hurt" him. These inadvertent errors are insufficient to affect the result of our decision. 2 We adopt the judge's conclusion that the Respondent did not violate Sec. 8(axl) and (4) of the Act by refusing to rehire Bonnett. In so doing, however, we additionally note the record is insufficient to support the judge's inference that "it seems almost certain" that the letter from the Board enclosing a copy of Bonnett's charge was on Kalagher's desk when he received Bonnett's call at 9 a.m. on 3 January 1986 DECISION STATEMENT OF THE CASE HAROLD B. LAWRENCE, Administrative Law Judge. This case was heard by me at Hartford, Connecticut, on 5 May 1986. The charge and two amended charges were filed by Louis A. Bonnett against Finlay Brothers Com- pany, Inc. (the Respondent), on 6 and 15 January and 12 February 1986. The complaint, issued on 20 February 1986, alleges violations of Section 8(a)(1) of the National Labor Relations Act (the Act) in that on 23 December 1985,11 Respondent's president threatened employees with loss ' of future promotional opportunities; on 27 Decem- ber, Respondent's owner threatened employees with ter- mination; on 2 January 1986 Respondent fired Bonnett and on 3 January 1986 refused to rehire him. Section 8(a)(1) and (4) of the Act is claimed to have been violat- ed by the refusal to rehire Bonnett because he filed a charge with the Board. Respondent's answer denies all material -allegations of wrongdoing and statutory violation and alleges affirma- tive defenses to the effect that deferral should be given to a decision of a Connecticut unemployment insurance referee; that the General Counsel is estopped from reliti- gating issues decided by the referee; that no conduct of Respondent violated the Act; and that the General Counsel seeks unwarranted relief herein.2 The parties were afforded full opportunity to be heard, to call, examine, and cross-examine witnesses, and to in- troduce relevant evidence. Posthearing briefs have been filed on behalf of the General Counsel and on behalf of Respondent. On the entire record, including my observation of the demeanor of the witnesses, and after consideration of the briefs submitted on behalf of the respective parties, I make the following FINDINGS OF FACT 1. JURISDICTION There is no issue regarding jurisdiction. Respondent's answer admits allegations to the effect that in 1985 Re- spondent, which engages in the nonretail printing busi- ness, formerly in Hartford and now in Bloomfield, Con- necticut, purchased and received from outside the State of Connecticut goods and materials valued in excess of $50,000 and shipped merchandise of like value to points 1 All dates are in 1985 except as otherwise stated. 2 At the hearing, I dismissed the affirmative defenses relating to defer- ral, for reasons set forth in the decision, and to Respondent's asserted fail- ure to violate the Act in which the right to interpose other defenses later in the proceedings was reserved. Answers must be interposed within the time hunts provided by the Board Rules at the outset of the proceeding and may only be amended later. 282 N]LRB No. 104 738 DECISIONS OF NATIONAL LABOR RELATIONS BOARD outside the State. It is admitted, and I accordingly find, that Respondent is, and at all times material has been, en- gaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICES A. The Facts3 The facts of this case, as they emerge from the testi- mony, both of Respondent's witnesses and those called by the General Counsel, including Bonnett, may be brief- ly stated. Respondent is a commercial printer employing about 80 persons, of whom approximately 45 work di- rectly in the production end. Because their clothes tend to get soiled from contact with inks and the presses, Re- spondent has provided, at its own expense, work uni- forms maintained by a cleaning service. Use of the'uni- forms was optional with the employees. In 1985, Kevin Kalagher, Respondent's president, de- cided to make the wearing of company-provided work uniforms mandatory for that group of 45 employees. The decision was made in conjunction with the removal of Respondent's plant to new facilities. Kalagher testified that his objectives were to ensure that employees in the shop presented a neat appearance by wearing clean work clothes at all times and to foster a better sense of team operation. On 6 December a notice was posted by David M. Brouillette, the production manager, making, the wearing of work uniforms mandatory from and after 9 December and giving the employees information regard- ing the issuance of the clothing and installation of locker facilities. Bonnett objected to the compulsory wearing of uni- forms as undemocratic. He testified that he had come to the United States from South America, among other rea- sons, to escape that kind of regimentation. He vocifer- ously protested against the new rule to Kalagher and to fellow employees. He approached six employees who told him that they would sign a petition that he said he was preparing in protest against the mandatory uniform rule. On several occasions, including a discussion with an employee who worked in Respondent's office and a dis- cussion with,Kalagher himself, Bonnett declared that he would take a pink slip rather than wear the work uni- form. Besides protesting to Kalagher, Bonnett telephoned Malcolm MacKenzie, the owner of the Company and the chairman of its board of directors. He reached MacKen- zie at home. In a conversation that MacKenzie charac- terized as polite and temperate, Bonnett voiced his objec- tions to the mandatory uniform rule. MacKenzie testified that during the conversation Bonnett told him that he had six signatures on a petition, leading MacKenzie to ' The matters narrated in this decision without evidentiary comment are those facts found by me on the basis of admissions in the answer, data contained in the exhibits, stipulations between or concessions by counsel, undisputed or uncontradicted testimony , and, in instances where conflicts in the testimony did not warrant discussion, the testimony, which I have credited By a postheanng stipulation, which is made a part of the record of these proceedings, the General Counsel, the Charging Party, and Re- spondent stipulated to the correctness of a transcript of a tape-recorded conversation between the Charging Party and Kevin Kalagher, Respond- ent's president, a portion of which is quoted in this decision believe that a number of employees objected to the uni- forms and that the issue should be looked into. In fact, as Bonnett admitted in his own testimony, the petition was never written, let alone signed. He did not deny having misled MacKenzie. MacKenzie promised Bonnett that he would look into the matter and directed Kalagher to find out how the employees felt about it. Kalagher distributed a questionnaire on 30 December, a vote was taken, and, according to Kalagher, the new uniform rule was over- whelmingly approved. Only 2 persons out of 39 who voted opposed it. Bonnett insisted, not without some justice, that the vote proved nothing because the question propounded to the employees did not present the issue properly.4 Con- sequently, he continued to refuse to comply with the rule. On 30 December 1985 Bonnett filed a charge alleging that since 20 December Respondent had been making threats of denial of promotions and in other ways inter- fering with rights guaranteed in Section 7 of the Act. A copy of the charge was sent to Respondent by the Board under cover of a letter dated 31 December, and a regis- tered mail receipt for the letter shows delivery on 3 Jan- uary. On 2 January 1986 Kalagher told Bonnett that he would have to insist on Bonnett's compliance with the rule. Bonnett responded that he would not wear the uni- form until he had checked out the legality of the rule making it mandatory. Kalagher fired him. At 9 a.m. the following day, 3 January, Bonnett telephoned Kalagher and stated that he had determined that the rule was legal, and he requested reinstatement. Kalagher said he would call him back. At 2 p.m. Kalagher advised Bon- nett that he would not be reinstated. ' ' Kalagher's explanation for his refusal to take Bonnett back is the same as his explanation for firing him in the first place. He testified that 'the issue of obedience to orders had been gone into at length and Bonnett' had de- liberately elected to disobey the new regulation; it was felt that he was not the type of employee whom Re- spondent wanted to 'employ. A circumstance, which could not have been out of Ka- lagher's mind at this juncture undoubtedly made matters more difficult for ' Bonnett on 3 January 1986. Bonnett had surreptitiously tape recorded his last conversation with Kalagher, utilizing a small recording device con- cealed in his clothing. Kalagher discovered it during the conversation. He testified that it angered him. Respondent opposed! Bonnett's application for unem- ployment insurance benefits. After a hearing, 'a Connecti- cut unemployment insurance referee ruled that Bonnett had been lawfully discharged. The Respondent pleaded affirmatively that the decision should be deferred to that referee's decision: That, is not possible, inasmuch as it is apparent from the referee's decision that the issues which Instead of simply asking whether the employees wished to have the wearing of work uniforms optional or mandatory, the questionnaire, after noting that uniforms and laundering service were provided as a company- paid benefit, asked whether the employees would like the "uniform serv- ice",continued or discontinued . There was no hint that the rule would be rescinded. An employee would therefore be likely to infer that if he voted to discontinue the uniform service he would merely be assuming an expense previously paid for him by the Company FINLAY BROS. CO. 739 are of concern in this proceeding were not involved, and for the further reason that the instant proceedings in- volve a charge of violation of Section 8(a)(4) of the Act. However, as the General Counsel concedes, the unem- ployment insurance referee's decision is admissible in evi- dence, though not controlling, and may be considered by me as persuasive with respect to issues common to both proceedings. Western Publishing Co., 263 NLRB 1110 fn. 1 (1982). I have read it and find that it does not impel a conclusion different from that which I have reached on the basis of the evidence adduced before me at the hear- ing. I note, however, that the referee's opinion that Bon- nett's viewpoint on the work uniform was "irrational" (an opinion unsupported by the evidence which I heard) cannot be a consideration in this case, since the merits and the reasonableness of an employee's protest have no bearing on the question of whether the protest consti- tutes protected concerted activity. NLRB v. Washington Aluminum Co., 370 U.S. 9 (1962); Dries R. Krump Mfg., 221 NLRB 309 (1975). B Analysis 1. The discharge Several considerations lead me to conclude that Bon- nett was lawfully discharged. First, it is uncontroverted that Bonnett persistently dis- obeyed a company rule making mandatory the wearing in the shop of a prescribed work uniform provided by Respondent. The General Counsel notes, in his posthearing brief, Respondent's growing impatience with Bonnett's activi- ties, and equates it with animus toward concerted pro- tected activity. They are not the same thing. Another employee who persisted in his objection into the new year was given an opportunity to change his mind at the same time Bonnett was; he did change his mind and was not fired. If Bonnett was engaging in concerted protect- ed activity, Respondent had the right to answer him. Furthermore, after it responded to Bonnett's objection, by taking a poll and reconsidering and adhering to its de- cision, rightly or wrongly, Respondent was within its rights in refusing Bonnett permission to post or distribute another questionnaire, for Respondent had the right to terminate an argument which it believed could become disruptive of plant discipline and productivity. Douglas Aircraft Co., 260 NLRB 1354 (1982), relied on by the General Counsel, does not compel a different conclusion. In that case, the employer took active measures to curtail the collection of signatures on a petition which an em- ployee was trying to circulate in a nonworking area on nonworking time. In the present case, there was at most a suggestion by MacKenzie and Kalagher that Bonnett hold up on his activities until the Employer itself could look into the situation, there was no overt interference with collection of signatures because the petition was never prepared by Bonnett, and Bonnett's activities in furtherance of his protest appear to have taken place in working areas during working time. Bonnett's activities met the requisites of "concerted" activity. When the rule went into effect around 9 De- cember Bonnett approached other employees and asked them whether they would sign a petition protesting it, which he told them he was about to write. The evidence is clear that he received encouraging responses from some half dozen employees. Their encouragement was sufficient to establish that he was acting on their behalf or by their authority as of the time he spoke to them. Alcan Cable, 269 NLRB 184 (1984). The activity of a single employee in attempting to enlist support of fellow employees for a proposition believed to be in furtherance of their mutual aid and comfort is concerted activity, for, as the Board has noted, the group activity which is un- mistakably "concerted" seldom exists without an individ- ual activity which gets it started. NLRB Y. Owens-Cor- ning Fiberglas Corp., 407 F.2d 1357, 1365 (4th Cir. 1969), enfg. 172 NLRB 20 (1968). But while the evidence in this case establishes that Bonnett was not acting alone, the issue remains whether Bonnett's activity was protected. I conclude that his con- duct exceeded the bounds of protected concerted activi- ty. Employees so engaged are normally allowed some latitude for improper behavior. See Postal Service, 250 NLRB 4 (1980). Nevertheless, it is well settled that they are not thereby rendered immune from discharge for fail- ure to comply with their employer's rules and require- ments. Bird Engineering, 270 NLRB 1415 (1984). Bonnett disobeyed an explicit and clearly understood company rule after being urged to comply and after being given several opportunities and a period of time in which to make his decision. His conduct passed the bounds of protest and became insubordination. He uti- lized a means of protest which was improper and pro- longed an argument after the Employer reconsidered and reaffirmed its original decision. The evidence of the Em- ployer's attitude shows, not animus, but a desire to termi- nate a disruptive situation and to get on with implemen- tation of its policy. See Mead Corp., 275 NLRB 323 (1985); Beacon Upholstery Co., 226 NLRB 1360, 1366- 1367 (1976). Second, I credit Kalagher's testimony that Bonnett's refusal to comply with the clothing directive was the reason for his discharge, rather than the fact that he ar- ticulated a protest against it and engaged in concerted activity to have it reconsidered. I found no reason, either in their demeanor or their credibility, to doubt the credibility of MacKenzie and Kalagher, but the record clearly discloses that Bonnett is not a stickler for precision in relating facts. Examples abound. The most important was his testimony that he had not said he would take a pink slip before he would wear a work uniform, which was belied in the tape-re- corded conversation he had with Kalagher in which he himself said to Kalagher that he had made precisely that statement repeatedly from the time the directive came down.'' In the space of a few minutes on the witness stand he changed his opinion of MacKenzie from a fair and reasonable man to one whom he did not trust. He testified that he told Kalagher that he was looking into I did not consider Bonnett's credibility impaired by reason of his sur- reptitious use of the tape recorder to obtain evidence The objective was disclosure and the tape was made available for use by Respondent as well as the General Counsel 740 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the legality of the new company regulation; the rest of his testimony shows that he never, made any investiga- tion into its legality until the day, he was fired (and then he did not seek the advice of a lawyer). He misstated the progress of his petition to MacKenzie, telling him in their telephone conversation that there were signatures on it when in fact it had not yet been written, and telling Kalagher and his fellow employees that he was prepar- ing a petition when in fact he never wrote one or circu- lated one. Third, I find no persuasive evidence in the record which would tend to show that Bonnett was fired either for protesting the rule or for filing a charge with the Board. During the conversation between Kalagher and Bon- nett, which Bonnett tape recorded, Bonnett stated that he was preparing a petition and attributed statements to MacKenzie and tried to obtain damaging statements from Kalagher. The pertinent portion of the conversation was as follows: BONNETT: I'm the one that put myself, with the real issues, not the way you guys put it. I was the one that put, if the the people really want to do it mandatorily. That was the whole issue and I talk to Mr. MacKenzie about it and he said to me don't do something. I don't want it to look in the company like your challenging. KALAGHER: You see . . . . BONNETT: Kevin . . . . KALAGHER: You were . . . a petition you know that's uhm and we don't want that either. That is not the way ... . BONNET-r: You don't want us to do a petition in the company. KALAGHER: Why At most, the foregoing conversation demonstrated that Kalagher did not think a petition among the employees was the way to resolve the issue. That is a far cry from admission of conduct amounting to a violation of the Act. Nothing is established against MacKenzie, who was not a party to the conversation which was recorded, and Kalagher's statement, which undoubtedly reflected both his view and MacKenzie's, that there were better ways to settle the issue, neither suggests that they would have resorted to illegal means to suppress Bonnett's protest or that circulation of a petition would actually have been prohibited. It cannot even be contended that any inference ought to be drawn from the timing of the discharge. That ap- pears to have been the result of the fact that Kalagher was lenient with Bonnett, waited a long time before acting, gave Bonnett several admonitions, and provided him with one last opportunity before firing him by tell- ing him that the rule had to be enforced. That was after the vote was taken on 30 December. On 2 January, Bon- nett was given an opportunity to begin complying with the rule. Only after he expressed his intention to contin- ue refusing to wear the work uniform until he satisfied himself of its legality was he fired. That was 3 weeks after the rule had gone into effect. Because the notice of the filing of the charge did not reach Respondent until the next day, it is germane only in connection with Respondent's refusal to rehire Bon- nett. I think the significant factor in that connection is that nothing had happened overnight to cause Kalagher to change his mind. He had acted only after continued defiance. Bonnett's tactic with the tape recorder did not help matters and had to have been in mind when Bonnett telephoned him the next morning . As it was, Bonnett was only telling, him that he had belatedly checked the law 'and had discovered that Respondent had been right all along. I have also considered the timing of Kalagher's return telephone call. Bonnett called Kalagher at 9 a.m. on 3 January and Kalagher called him back with the answer about 2 p.m. Had Kalagher received notice of the filing of the charge between the time he received Bonnett's phone call and the time he called Bonnett back, the sig- nificance of the time element would have to be evaluat- ed. However, the General Counsel introduced testimony by an employee of the post office in Hartford from which it seems almost certain that the letter from the Board, enclosing a copy of the charge, was on Ka- lagher's desk when he received Bonnett 's call. If it was the reason for the refusal to rehire Bonnett, it would have been more natural for Kalagher simply to have told him that at 9 a.m. Instead, he promised to call Bonnett back. Under the circumstances, there is no preponder- ance of the evidence that would' establish that the refusal to rehire Bonnett is traceable to the fact that he filed the charge. I conclude, therefore, that Bonnett was discharged for disobedience, not for remonstrating 'against the mandato- ry uniform rule or for filing a charge against Respondent with, the Board. The asserted reason for his discharge is not pretextual. I find that he would have been fired for disobedience and would not have been rehired even if he had not spoken to other employees or gone to the Board. 2. The threats The complaint alleges threats of loss of future promo- tion opportunities made to employees "in Bonnett's work area" by Kalagher and threats of termination made to them by telephone by MacKenzie. Neither allegation is proven. There appears to be little question that whatever was said was said directly, to Bonnett alone. According to Bonnett, the Kalagher remarks were an admonition to refrain from conduct that would keep him from moving ahead and that might jeopardize his future with the Company: He said don't do something stupid that might stop you from moving ahead in the future, you are a very smart man, you're a good worker, and don't do anything that might jeopardize your future with this company. I said why, because I'm trying to present a peti- tion, organize people to vote against this issue in a democratic way. He said Merry Christmas to you and your family, and he left. FINLAY BROS. CO. 741 The definition of the "something stupid" is not supplied in anything said by Kalagher, and Bonnett 's argumenta- tive attempt to supply the deficiency is incompetent to do so. Inasmuch as the subject of conversation was Bonnett's adamant refusal to wear the work uniform , it seems obvi- ous to me that Kalagher's reference was to Bonnett's dis- obedience, rather than to his activity- in protesting the di- rective. The most that can be granted to the General Counsel's case is' that the remark might be ambiguous, though I do not believe that to be the case. Assuming, arguendo, that ambiguity exists, the statement by Ka- lagher is still not of the kind which the Board has held to constitute a threat ' to the employees in violation of Section 8(a)(1). See, e.g., Volt Information Sciences, 274 NLRB 308 fn. 33 (1985); Leggett's Department Store, 137 NLRB 403; 404 (1962); Lerner Shops, 91 NLRB 151, 152 fn. 4 (1950); Invalex Sales Co., 152 NLRB 773, 775 (1965). The only conversation in which MacKenzie participat- ed was the occasion when Bonnett telephoned him, so he could not have made a threat to anyone , else simulta- neously. The conversation was not being broadcast. Bon- nett telephoned 'MacKenzie on Friday, 27 December, and quotes MacKenzie to the following effect:, "and he said to me why are you making so many aves, I thought you were leaving anyway." Bonnett denied he was leaving. Thereafter, nothing else was said about him leaving or being fired according to Bonnett 's own testi- mony. MacKenzie testified that he was under the impres- sion that Bonnett was leaving because he had heard that he had said he would take a pink slip before wearing the work uniform. I fail to discern any threat of discharge in the remark. The testimony of both, witnesses was that they proceeded to discuss Bonnett's objection to the work uniform rule and MacKenzie promised to look into it, largely on the strength of Bonnett's false statement that he had signatures on a petition. The statement attributed to MacKenzie is very remote from the kind of remark which was found to suggest a threat of dismissal as discussed in the cases cited above or in Monarch Water System, 271 NLRB 558 (1984), relied on by the General Counsel. ("You guys are going to have to quit trying to get this money, because .. . somebody is going to end up being dismissed over it.") CONCLUSIONS OF LAW 1. Respondent is now , and has been at all times materi- al, an employer engaged in commerce within the mean- ing of Section 2(2), (6), and (7) of the Act. 2. Respondent has not engaged in unfair labor prac- tices within the meaning of the Act. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed' ORDER The complaint is dismissed. B If no exceptions are filed 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