Marico Enterprises, Inc.

726 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Marico Enterprises, Inc. and Local 14, Service Em- ployees International Union, AFL-CIO. Cases 2-CA-21619 and 2-CA-21703 24 April 1987 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS STEPHENS AND CRACRAFT On 23 December 1986 Administrative Law Judge Joel P. Biblowitz issued the attached deci- sion. The General Counsel filed exceptions. 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 brief and has decided to affirm the judge's rulings, findings,' and conclusions 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 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 re- versing the findings Because we agree with the judge and adopt his finding that the dis- charge of Pauyo was not unlawful, we find it unnecessary to pass on the judge's alternative finding that even if the discharge were found to have been unlawful, Pauyo's altercation with employee Mitchell disqualified Pauyo from reinstatement. Chairman Dotson agrees with the judge's alternative finding. James Wasserman, Esq., for the General Counsel Harry N. Turk, Esq. (Epstein, Becker, Borsody & Green, P. G), for the Respondent. Roger H. Madon, Esq. (Sturm & Perl), for the Charging Party. DECISION STATEMENT OF THE CASE JOEL P. BIBLOWITZ, Administrative Law Judge. This case was tried before me in New York, New York, on 29 and 30 September 1986.1 The order consolidating cases, consolidated complaint, and notice of hearing issued on 25 July, and was based on charges filed on 14 April and 4 June and amended charges filed on 16 April and 2 July. The consolidated complaint alleges that Marico En- terprises, Inc. (Respondent) violated Section 8(a)(1) and (3) of the Act by discharging employee Joseph Pauyo because he joined and assisted Local 1-J, Service Em- 1 Unless indicated otherwise, all dates referred to herein relate to the year 1986 ployees International Union, AFL-CIO (the Union), and engaged in other concerted, activities for the purpose of collective bargaining or other mutual aid or protection. The consolidated complaint further alleges, that certain of Respondent's employees concertedly ceased work and went on strike commencing 2 April in protest of the above-mentioned unfair labor practice and although the employees unconditionally offered to return to work on 21 May (actually 27 May), Respondent refused, and con- tinues to refuse, to reemploy employees, also in violation of Section 8(a)(l) and (3) of the Act. On the entire record, including my observation of the demeanor of the witnesses, I make the following FINDINGS OF FACT I. JURISDICTION AND LABOR ORGANIZATION STATUS There being no dispute , I find that Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act, and that the Union is a labor organization within the meaning of Section 2(5) of the Act. II. THE FACTS In about mid-March, the Union began organizing Re- spondent's production and maintenance employees, most of whom are Haitian and speak Creole. On 27 March the Union filed a petition with the Board to represent Re- spondent's production and maintenance employees; the parties stipulated that Respondent received this petition on Monday, 31 March. The events in question occurred on Wednesday, 2 April. On that day, shortly before 3 p.m. an announcement was made over the plant's loud- speaker system informing the employees that representa- tives of the U.S. Immigration and Naturalization Service (Immigration) had arrived at the facility. That announce- ment triggered a confrontation between Pauyo and Jules Cohen, Respondent's president, which resulted in Pauyo's discharge within the hour. The General Counsel alleges that this discharge resulted from Pauyo's union and protected concerted activities on behalf of the other employees, although Respondent contends that Pauyo was discharged solely because of the dangerous condi- tion he was creating at the plant. Shortly before 3 p.m. that day, an announcement was made over the loudspeaker stating: "Wedler, your mother is on the phone," or some similar words, which was a signal to alert the employees that Immigration was at the facility. At that time, employees began leaving the plant through all available means. Pauyo testified that his supervisor, Wilfred Guillome, told the employees that Immigration was at the facility, and anyone who did not have their green card should follow one of the employ- ees who would take them out of the plant. About four employees from his department left. Shortly thereafter, after most of the employees returned, two fellow em- ployees spoke to Pauyo in Creole and told him that they felt that Cohen had called Immigration and they wanted him to speak to Cohen because he speaks English well. At that point Pauyo walked to the shipping department; 283 NLRB No. 112 MARICO ENTERPRISES 727 Cohen was already there, not far from- where his office is. Cohen testified that shortly before 3 p.m. that day, he was "advised" that Immigration was at the plant (al- though he never saw them) and when he walked out of his office he saw employees running out of the door. Martin Fishman, Respondent's controller; testified that, the two Immigration agents came into the first entrance of the building; he noticed them and spoke to • them before they entered the plant itself. They, said that they were from Immigration, and said they were not here at this time to do anything -they would like to come back at another time and they would like to have a list of our payroll and at that time anyone they would ask , they would want to see if they had a green card or not. While we were talking, they noticed a lot of people were leaving the building. One of them casu- ally, _ jokingly remarked , is it a coffeebreak, I have never seen people running so fast in all my life, and I said no again he assured me that they were not here to do anything at that time . Again they wanted a list of payroll at a future date. He -would not give me a date, it would be somewhere in the near future. At that time .they would ask people for green cards. If people did not have , a green card, they would not stop anyone from working, they would not arrest anyone or take anyone out of the buiilding. The only thing they would do, they would ask people to make appointments to go downtown to fill out necessary papers .and if need be, to go, before a hearing, and that's the only thing, they, asked if we would voluntarily comply ,with that, which I told them we would. Fishman asked them why they were at the plant and they said that they could not tell him, but that they rou- tinely do investigations in Rockland County because -of the large number of Haitians there. They left without en- tering the plant. Pauyo testified ' that on the "prior day, for the first time since he had been employed by Respondent (December 1985), the supervisors were asking employees for their green cards and, those that did not have ''it,' were told to bring it in the following day. Cohen testified that there was a "green card check" on 1 April; his son, Howard Cohen was in charge of it. "We do that occasionally" to keep their employment records timely. Howard Cohen- did not testify on this subject. Bruce Tucker, Respond- ent's distribution manager," testified that Howard Cohen was responsible for green-card checks at the facility; al- though he is not directly involved in them, they take place every 4 or 5 months. There was testimony 'from four witnesses! (Pauyo, Cohen, Tucker, and Supervisor Pauline Garbelotto) re- garding the subsequent confrontation between Pauyo and Cohen. Pauyo testified that he approached Cohen in a large area adjacent to the shipping and receiving depart- ment; at the time, approximately 45. employees were mill- ing about nearby. Pauyo told Cohen that he would like to talk to him; Cohen asked what he wanted to talk about and Pauyo said that some of the employees felt that Cohen had something to do with Immigration's presence at the plant. Cohen asked, "You want to have a discussion?" and when Pauyo said that he did, Cohen turned to the large group of employees' standing nearby and asked, "Do you want him to be your spokesperson? Do you want-him to talk for you?" The employees who understood English answered, "yes" immediately; the others, after having Cohen's question translated, an- swered "yes" in "French and Creole. Cohen' then said, "Let's have a discussion right here and now." Pauyo said that the employees were wondering about the coincidence of Respondent being notified on Monday of the Union's petition, Tuesday the supervisors were checking green cards and telling those employees with- out one 'to bring it, to work the following day, and on Wednesday the Immigration agents appeared at the plant. "I told him that seemed too much like a coinci- dence, and the people think that you had something to do with it." Cohen said that he had,nothing to do with Immigration's presence at the plant that day; he had orders to get out, and their presence messed up his pro- duction. Pauyo said that the employees were unhappy about other things as well; Cohen asked what they could be unhappy about, "They,got a job and they're getting paid." -Pauyo said that,the employees were fearful that if they speak to him about a grievance they could be fired and that if they want a raise they have to speak to a su- pervisor about it; on occasion, instead of a raise, the em- ployees' pay has been decreased. He said that the 'em- ployees need somebody to represent them, someone who could speak for them and -get things accomplished. Cohen then accused Pauyo of being one of the employ- ees who brought the Union in; Pauyo denied it and re- peated that the employees -needed somebody to speak for them. Cohen then said, "You must be one of the ones who started this whole shit about the Union." Pauyo said that -he, did not say anything about a union, he was talk- ing about "somebody" representing the employees, but "maybe a union may be the best thing 'for them." Cohen then made an obscence gesture with his middle finger in front of Pauyo's face. Pauyo told him it was "very child- ish" to make such a gesture and he could see why the employees would want ' a union and he made the same gesture to Cohen. - Cohen then said: "I want you out of my place, get out of here, you're fired."' Pauyo 'said that he had done nothing wrong and was not going any place; they could punch his timecard; but he, was not leaving the plant. Cohen then told the, employees to either return to work or, go home. Pauyo returned to his department and saw Cohen walk to -where the timecards were located. Shortly thereafter some fellow -employees told Pauyo that Cohen took his timecard. Pauyo went to the office and saw that his card was, not with the others; he ap- proached Cohen and asked' him,. Why did you fire me, why, did you punch out my card.", Cohen said that he did it because Pauyo was creating a riot and disturbance. Pauyo said, "You asked,for a discussion and- J gave you a discussion and now you want to fire me" Cohen called Pauyo "a wise ass" who talked about things that did not 728 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD need to be talked about .and "there's not going to be a union in my place." He said, "I want you out." Pauyo said that he would. not leave; Cohen could call the-police if he wished to do so. Some fellow employees took him by, the arm and walked out of the plant with him. Cohen testified that prior to Pauyo stepping forward and speaking to him, approximately 45 employees were standing around near the shipping area of the plant; he asked them to leave and return the following morning. Someone asked if he had called Immigration; he said that he did not. Well, Mr. Pauyo had started chiming in [at] that point, and he all of a sudden became their spokes- man and he went to the opening in front of these people and started going into a harangue about how we had been treating the people like slaves. Pauyo said that Cohen was a tyrant who was taking ad- vantage of the employees because they were poor, and accused Cohen of - calling Immigration, which Cohen denied. "I told him that I am very surprised that you are telling me you want a union representative, I always had an ' open door, I' always help the people out." He also said that his wage rate is comparable to union rates and to answer allegations of wage cuts, when new and faster machinery is installed, he is entitled to cut the piece-rate for that machine. Pauyo kept repeating the same argu- ments and, at one point, "the argument started to get heated." Pauyo then moved his body back and forth as though he were engaging in sexual intercourse. The em- ployees began laughing and Pauyo "got louder and louder, -and carried on more and more and the people became more and more excited with all of this." It was as if he was on stage and, he was having a ball for himself. I was trying to get the people out of there because of the fact that there could be some damage, people are liable to get hurt congre- gating like that. They are in an area where its a shipping area, there are rolls of goods around, there's -boxes around, there's things around there and they weren't standing in any clear aisle, they were standing wherever they could stand, and I felt that it was really an inflammatory situation and I wanted the people to go home and come back tom- morrow morning. Cohen testified that he had two safety-related fears, one for the employees and one for himself. A large number of people close together, getting agitated could fall over each other or cartons if they tried to leave the area at the same time. "Who knew what was going to happen? ... My valiant guess at that time, for whatever it's worth, was that' there could be a problem as far as people getting hurt." As to the perceived danger to him- self, he testified that with the recent overthrow of Duva- lier in Haiti, "the people had a very strong nationalistic feeling and it, looked terrifying enough' ... I really didn't know what could happen, but it seemed to my educated guess that there was a potential there." Cohen then asked Pauyo to please leave and return the follow- ing morning; Pauyo said that he would not leave unless Cohen .punched his card out. Cohen told him to stop being foolish and to leave. Pauyo repeated four or five times that he would not leave until Cohen; punched him out. "At that point I had enough." He instructed his per- sonnel director to punch his card out and he terminated Pauyo. "He asked to be fired five different times, and the fifth time as the situation was getting hotter and hotter, that's when I did it." Pauyo still refused to leave, but shortly thereafter, some fellow employees lead him out of the plant. The other employees left calmly. Cohen testified that during this confrontation with Pauyo he never made an obscene gesture at Pauyo; "to accent a point" during a very heated conversation, "from Mr. Pauyo's point," he pointed his second fmger toward Pauyo. "I may have said shit, What kind of bullshit is this or something like that." Other than that, he did not raise his voice and used no obscenity and he was "very calm and collected" during this discussion; he was not getting upset. Tucker testified that he was working on the dock about 40 feet away ' from the incident when he heard "loud noises"-"people screaming." He walked toward the area where'-the noise was coming from and saw Pauyo standing in front of 'Cohen with about 40 to '50 employees surrounding them. Pauyo was "screaming loudly"' that Cohen had called Immigration and had cut Pauyo's piece-rate wage on his machine. "Mr. Cohen was trying to calm him down"; he told Pauyo that he did not call Immigration as it would not be in his interest to do so. Pauyo continued to scream at Cohen with his arms flailing; he said that Cohen was an oppressor who was taking advantage of his people. Pauyo then made a sexual gesture of back and forth movements of his hips and made an obscene gesture with his middle fmger to Cohen; Cohen returned the gesture. After Pauyo made the gesture with his hips the employees began laughing. They became "very agitated, egging Joe on," although they were speaking Creole, Tucker did not know what they were saying. Cohen then asked the crowd "if this is the type of person that they would like representing them, representing the people as a union member." Cohen then asked Pauyo to leave because everyone was upset; Pauyo said that he would not leave unless,Cohen fired him. Cohen again asked him to leave so that every- one would calm down. "Joe still acting as wild as during the whole time said that he would .not leave, that Mr. Cohen would have, to fire him before he would leave." Cohen asked him, "Do you want me to fire you?" Pauyo said, "yes," and, Cohen said, "Okay, you're fired." Tucker did not observe anything subsequent to, that. Garbelotto testified that while she was working she heard .the code words for Immigration over the plant's loudspeaker system and observed employees running out of the plant. She, then saw Pauyo approach Cohen as he was coming out of his office, and yell at him, "You called Immigrations because you do not want the union in the shop." Cohen attempted to answer, but Pauyo "never gave Mr'. Cohen a chance to explain. He just kept yelling and making gestures." -Pauyo then yelled that Cohen was cutting their wages and they needed more money "and Mr. Cohen was just standing there, and MARICO ENTERPRISES every time he would try to talk to him, he would just yell right back at him." Pauyo made an obscene gesture to Cohen with his middle finger; she did not observe Cohen return the gesture. She never heard Pauyo ask Cohen to fire him, but "he just said something what are you going to do, fire me?" She did not hear Cohen tell Pauyo that he was fired. During this period, "Mr. Cohen was very calm and talking very nonchalant to him." About 15 to 20 employees were standing in the area. "As he was talking and yelling to Mr. Cohen they were all clapping and telling him, go ahead give it to him, give it to him ... I mean, it was such a thing, I never saw this in all my life in factories that I've worked, Never." About 3:30 pm. as Pauyo was leaving the plant a large number of employees followed him out of the plant; at the time, employees told him, "We're not put- ting up with this and if he is going to fire you and he's going to do things this way, we all leaving." He testified that "just about everybody that was in the crowd walked out"; only the supervisors remained. Someone called the Union and made an appointment to meet with a union representative on the following morning. On the morn- ing of 3 April, about 7 a.m., Sonia Corujo, organizer for the Union, arrived at her office; about 15 of Respond- ent's employees were already there. Because the employ- ees spoke Creole, they chose one of their group to act as an interpreter; he told Corujo of the events of the prior day and that they walked, out because Respondent ' fired Pauyo. Another employee complained about Respond- ent's lowering the employee's piecework rate while an- other employee complained that Respondent did not re- spect them. Corujo then went to the plant with these em- ployees; when they arrived she saw a large number of employees in the parking lot; she spoke to, a number of them; "'the basic thing that they were yelling about. They had fired Joe because Joe spoke for us." ' She then passed out picket signs ,to the employees; the picket signs said union recognition. On 27 May, the following letters, on union stationery individually signed by 35 striking individuals, were deliv- ered by the Union to Respondent, "The undersigned re- quests to return to work unconditionally and immediate- ly." By letter dated 28 May, Respondent, by Cohen, wrote to these individuals: We received your letter on May 27, 1986 in which you requested to return to work uncondition- ally and immediately. This is to advise you that your job has been -filled by a permanent replacement and that there is no other job opening at the present time. However, your name will be place [sic] on a preferential hiring list and you will be offered employment when there is a job opening which you are qualified to perform. Carlos Mitchell was hired by Respondent about 7 April as a strike replacement; about 10 April there was an altercation between him and Pauyo that Respondent alleges disqualifies Pauyo for reinstatement even if his 729 discharge violates Section 8(a)(1) and (3) of the Act.2 Mitchell (whose employment with Respondent ceased in July) testified that he was employed on the dock at the plant and Pauyo yelled from the picket line that he would get him if he started working for the Respondent. On 19 April, Mitchell went on his 10 a.m. break; as he reached the end of Respondent's parking lot and was about to cross the road, to get to a deli Pauyo drove up in his car and said, "Carlos, I'm going to kick your ass later." Mitchell crossed the road and as he got to the store, Pauyo came behind him and pushed him from behind; Mitchell turned around and grabbed Pauyo with his arms around his waist. At that point, a number of other people joined Pauyo,in hitting- and kicking Mitch- ell. Shortly thereafter, a van carrying employees arrived, followed shortly thereafter by Howard Cohen. At that time the hitting ceased. Mitchell testified that he hurt his wrist, suffered cuts and bruises, and was treated at a local medical center. Howard Cohen testified that on the day in question he observed Mitchell cross the picket line and saw Pauyo lean out of the window of his car and say something to Mitchell. Because it was about 100 feet from, the dock to the street he could not hear what was said. He then observed Pauyo park his car, get out, run across the street, and push Mitchell from behind. Mitchell grabbed Pauyo, who began to punch him. A number of other strikers also began to punch Mitchell, while Corujo attempted to stop them. Two dock em- ployees then drove across the street in one of Respond- ent's vans and broke up the fight. Howard Cohen then ran across the street and Mitchell "was a little shaken, but he was pretty good. He was cursing, he was very angry." Pauyo testified that on the day in question, as he was driving his car into Respondent's parking lot, he saw Mitchell getting ready to cross the street to go to the deli across the street from the plant. He told ]'Mitchell that what he was doing was wrong; by working, he was taking money out of the strikers' pockets. Mitchell used some obscenities and made an obscene gesture to Pauyo. Pauyo then parked his car and crossed the street to where Mitchell was standing and told Mitchell that what he was doing was wrong; Mitchell said that he had to make a living too. Pauyo said that he had informed Mitchell of the situation 'before he began working there and Mitchell said that he did not care. Pauyo said, "Why are you coming off like that? You want to fight me or something?" Mitchell said that he did, and when Pauyo began to remove his jacket, Mitchell took his sweater off and swung at Pauyo while his jacket was halfway down. Pauyo then grabbed Mitchell around the waist (from the front) and pushed him onto the trunk, of 'a car where he held him ,while Mitchell kept punching him or attempt- ing to punch him. Shortly thereafter, some of the pickets and Howard Cohen came and broke up the altercation. As stated,' supra, the 35 employees unconditionally ap- plied to return to work on 27 May; on the following day, 2 Shortly prior to the commencement of the instant hearing, Region 2 and the Union entered into a'unilateral settlement agreement of a com- plaint that alleged, inter alua, that "Respondent's pickets, including strik- ing employee Joseph Pauyo, physically assaulted an employee." 730 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Respondent informed them that their jobs had been filled by permanent replacements . Respondent defends -that 'it failed to reinstate these employees because its _ business had substantially decreased shortly prior to this time. Respondent's payroll states that for the workweek ending 4 April, it employed 113 unit employees . For the workweek ending 11 April, 45 employees were em- ployed. For the workweek ending 30 May, 88 unit em- ployees were employed by Respondent . For the work- week ^ ending 19 -September, Respondent employed 48 unit-employees. Received into evidence ,were Statements of Income of, Respondent for the 6 -month period ending 31 July 1985 and for the year ending 31 January; these statements were prepared by an accounting firm with the following caveat: All information included in these financial state- ments is the representation of the management of Marico Enterprises, Inc. A review consists princi pally of inquiries of companypersonnel and analyti- cal procedures applied to financial data . It is sub- stantially less in scope than an examination in acc- cordance with generally , accepted auditing stand- ards, the objective of which is the expression of an ,opinion regarding the financial statements taken as a whole. Accordingly, we do not express such an opinion. The sales for the above 6-month period were approxi- mately $6,800,000, with income before taxes and officers salary"6f $372,000; the same figures for the year were $13,800,000 and $463,000. Also received into evidence were monthly cumulative statements of income for May, June, and July and monthly sales of Respondent from February through July; these were prepared by Re- spondent's controller Martin Fishman, from Respond- ent's ledgers and journals. The sales and preofficer salary loss for the 4 months through 31 May were $3,414,000 and $230,000; through 30 June,, $3,840,000 and $344,000, and through 31- July, $4,200,000 and $510,000. Sales by' month (as compiled by Fishman) were:' February $963,000 March - • $1,100,000 April - $660,000 May $679,000 June $425,000 July $388,000 . Fishman testified that prior to April, Respondent's monthly sales figures ranged from $900,000 to $1,200,000. Howard Cohen testified that after the strike com- menced, Respondent placed an advertisement' in the newspaper for employees and he immediately began interviewing and hiring employees . When he hired people, he informed them that he was hiring them for a permanent position with Respondent. The last employee was hired about the end of May. He also testified that because business was "horrendously slow " (unlike any- thing Respondent had previously experienced) Respond- ent laid off 4 to 6 employees in mid-May and 8 to-10 em- ployees in July. Prior to the commencement of the strike , Respondent manufactured sheets and comforters (for waterbeds) at its Nanuet 'facility and- mattress pads at its Muncey facility until about May. Since about 1 September,, Respondent has sublet the Muncey facility to , Benny's Fashions, which makes all the mattress pads and about 5 percent of the sheets for Respondent at this facility. Prior to the strike, Benny's. Fashions only made sheets for Respond- ent. III. DISCUSSION AND ANALYSIS The substantial conflicts between the witnesses' testi- mony regarding the 2 April confrontation between, Pauyo and Cohen necessitates credibility findings in that regard. Careful observation of the - witnesses, and read- ings of the transcript , convince me that both Pauyo and Cohen were less than credible in their testimony regard- ing the incident. They each had good reasons to fabri- cate their testimony and portions of their testimony is simply not believable. My observation of Garbelotto and Tucker convince me that their testimony of, the incident (although not faultless) is a much more reliable recitation of the facts; they appeared to be testifying to the facts_a's best as they could remember them and had less reason to he than Cohen and Pauyo. That is not to say that I total- ly discredit Pauyo and Cohen's, version of the incident; however, where there are major conflicts in- their testi- mony, I credit the testimony of Garbelotto and Tucker. Initially I discredit Pauyo's, testimony that when Pauyo first told Cohen he would like to ' talk talk to 'him Cohen turned to the other employees and asked 'them if they wanted Pauyo to be their spokesperson .-My obser- vation of Cohen (and the fact that a large number of the employees do' not speak English) convince me that this is highly unlikely . Rather, I find that (as testified to by Tucker) ',this occurred near the conclusion ' of the con- frontation when Cohen asked 'the employees if Pauyo was the type of person they wanted to represent them.' I find that Pauyo began the incident by saying that the employees felt that Cohen had called Immigration, which Cohen denied. Pauyo told Cohen that it seemed like more than a coincidence that Respondent received notice of the Union's petition on Monday, there was a green card check on Tuesday, and Immigration appeared at the facility on Wednesday . Pauyo then said that the employees were unhappy about other things as well, their inability to speak to him - and having their piece- work rate cut by Respondent, and that was why they felt that they needed a union . Cohen said that he, always had an open-door policy for the employees, and he only cut the piecework rate when he, installed new and faster machinery. He said that he was surprised that they wanted a union. Crediting Garbelotto, Tucker, and (to a lesser degree) Cohen, I find that Pauyo kept yelling and making ges- tures (Garbelotto), was screaming loudly with his -arms flailing (Tucker), or went into a harangue (Cohen). Pauyo said that Cohen was an oppressor (or tyrant) taking advantage of his Haitian employees. Pauyo then made the back and forth gesture with his hips- imitating sexual intercourse; these gestures caused the other em- MARICO ENTERPRISES ployees to laugh and become agitated, clapping and giving encouragement to Pauyo. Pauyo then made an obscene gesture to Cohen with his middle finger, a ges- ture Cohen returned. Pauyo kept screaming at Cohen without giving him a chance to answer. Cohen asked the other employees if this was the type of person they wanted to represent them. Cohen then asked Pauyo to leave because everyone was agitated and upset; Pauyo refused to leave unless he was fired. Cohen repeated the request to Pauyo ("still acting as wild") who said that Cohen would have to fire him before he would leave. Cohen asked, "Do you want me to fire you?" Pauyo said he did and Cohen said, "You're fired." The issue is, simply stated, was Pauyo discharged because he stood up to represent his fellow employees regarding their griev- ances and recent union organization, or was he dis- charged because of the way he did it (i.e., the obscenities and insults he used), and does that deprive him of the protection of the Act. In Wright Line, 251 NLRB 1083, 1089 (1980), the Board set forth the rule it will henceforth apply in dis- crimination cases such' as the-instant matter: "First, we shall require that the General Counsel make a prima facie showing sufficient to support the inference that protected conduct was a `motivating factor' in the em- ployer''s decision. Once this is established, the burden will shift to the employer to demonstrate that the same action would have taken place even in the absence of the protected conduct." Initially it should be noted that the appearance of Immigration representatives at the facility 2 days after Respondent received notification of the Union's petition, and 1 day after an unusual green card- check at the facility, although highly suspicious, is not relevant to the ultimate conclusion herein as it did not precipitate Pauyo's discharge. What -began the process that culminated in Pauyo's discharge was his decision (protected, of course) to discuss that fact, and others, with Cohen. .It requires no citation that Pauyo's initial action of speaking to Cohen, after being encouraged to do so by fellow employees, constituted protected concerted activi- ties; in fact, Respondent, in his brief, agrees, "although Pauyo's activity may initially have been protected by Section 7, any such protection was lost because of his in- subordinate conduct." Both' the General Counsel and Respondent cite numer- ous cases in their briefs 'regarding how far an employee may go in his protected concerted activities before losing the protection of the Act. This issue generally arises in two areas: the prosecution of grievances, bargaining, or other union business by shop stewards or others who are both union officials and employees of the company and general, (often spontaneous) concerted activity by an 'em- ployee outside the realm of union business. As to the former, Hawaiian Hauling Service., 219 NLRB 765 (1975), principally -a deferral case, quoted ap- provingly from Bettcher Mfg. Corp., 76 NLRB 526 (1948): A frank, and not always complimentary, exchange of views must be expected and permitted the nego- tiators if collective bargaining is to be natural rather 731 than stilted. The negotiators must be free not only to put forth demands and counterdemands, but also to debate and challenge the statements of one an- other without censorship, even if, in the course of debate, the veracity of one of the participants occasion- ally is brought into question. If, an employer were free to discharge an individual employee because he resented a statement made by that employee daring a bargaining conference, either one of two undesir- able results would follow: collective bargaining would cease to be between equals (an employee having no parallel method of retaliation), or em- ployees would hestitate ever to participate personal- ly in bargaining negotiations, leaving such matters entirely to their representatives. In Thor Power Tool Co., 148 NLRB 11379, 1380 (1964), enfd. 351 F.2d 584 (7th Cir. 1965), a union committee- man was discharged because he called the plant superin- tendent a "horse's ass" during a discussion of an employ- ee's grievance. The Board found the discharge unlawful because the characterization "was protected activity be- cause it was part of the res gestae of the grievance discus- sion." In Calmos Combining Co., 184 NLRB 914 (1970), after a grievance discussion had been completed, and those participating had, apparently, returned to work, the plant manager heard the shop steward shouting. He asked him to stop shouting and was told: "You can't shut me up, I'll, shout all I want to." He -again asked him to be quiet, but the steward said, "I don't give a damn what you say, I'll shout all I want to, and if you don't like it, tell me to leave." The Board found that the steward's' continued intrasigence was not a part of the res gestae of the grievance discussion [citing Thor, supra]. Rather, the order to stop shouting was a rea- sonable and lawful order that should have been obeyed, and his refusal to do so was not related to Harts' protected processing of the grievance. In American Telephone Co., 211 NLRB 782, 783 (1974), the Board stated: However, we have long recognized that the dis- agreements which arise in the collective-bargaining setting sometimes tend to provoke commentary which may be less than mannerly, and that the use of strong language in the course of protected activi- ties supplies no legal justification for disciplining or threatening to discipline an employee acting' in a representative capacity, except in the most flagrant or egregious of cases. In Southern Bell Telephone Co., 260 NLRB 237, 240 (1982), the administrative law judge (as affirmed by the Board) stated: Recognizing that it is generally the employees of the employer who have been elected or designated by the union as officers of the union to represent it in the administration of the contract and the resolu- tion of grievances, the Board has held that employ- ees, when engaged in such activity, are protected 732 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD by Section 7 of the Act for conduct, attitudes, and statements which. might not otherwise be protected. However, as noted by. the Employer in its brief in which it largely ignores the fact that Leuckan was acting in his capacity as chief steward in the con- frontation here at issue, an employee so engaged may lose the protection of the Act if his conduct becomes so flagrant that it threatens the employer's ability to maintain order and respect in the conduct of its business or threats to "foul up" the employer's operations. - As to employee obscenities, or other strong language, during general concerted activities (rather than union ac- tivities), the Board stated in Atlantic Steel Co., 245 NLRB 814, 816 (1979): The Administrative Law Judge cited no deci- sions, however, and we know of none, where the Board has held that an employee's use of obscenity to a supervisor on the production floor, following a question concerning working conditions, is protect- ed as would be a spontaneous outburst during the heat of a formal grievance proceeding or in con- tract, -negotiations. To the contrary, the Board and the, courts have recognized (as did the Administra- tive Law Judge in passing) that even an employee who is engaged in concerted protected activity can, by opprobrious- conduct, lose the protection of the Act. The decision as to whether the employee has crossed that line depends on several factors: (1) the place of the discussion; (2) the subject matter of the discussion; (3) the nature of the employee's out- burst; and (4) whether the outburst was, in' any way provoked by an employer's unfair labor practice. Likewise, Chrysler Corp., 249 NLRB 1102, 1109 (1980), which stated: "The employees' right to engage in con- certed activity may permit some lee-way for impulsive behavior, which must be balanced` against the employer's right to maintain order and respect." In Firch Baking Co., 232 NLRB 772 (1977), the employee was asked by management what was bothering him. His answer blamed his difficulties on the lack of competence of the production supervisor and personnel manager, and did so in a loud and excited manner. This resulted in a suspen- sion. The Board found this violated the Act as his com- ments were not so egregious or outrageous to deprive him of the Act's protection. The Board stressed two fac- tors for finding ' no loss of the Act's protection: that the employee was invited by the company to state his views, and "the exchange of remarks occurred in a private office meeting and not on the plant floor where it could have had a negative effect on these supervisors' status in the eyes of other employees". In Webster Men's Wear, 222 NLRB 1262, 1267 (1976), a 16-year-old employee was fired for profanities and name calling directed at his store manager. However, the Board found that- the circumstances there, especially the fact that the store manager "...freely resorted to the use of provocative- statements and profanity in resisting the employee's complaint," warrant finding that the dis- charge violated the Act: While the namecalling and profanity participated in by Schmidt are certainly not to be condoned, nev- ertheless, such conduct must be evaluated in this context. And, I am persuaded that, on balance, 16- year-old employee Schmidt who was attempting to present an employee grievance was caught up in this "moment of animal exhuberance." - In the situation herein, the credited evidence estab- lishes that Pauyo's actions were unprovoked; other than returning Pauyo's obscene gesture with his middle finger, Cohen attempted to answer Pauyo's allegations and have him leave the area. In addition his outbursts-(not excused by youth as in Webster Mens Wear supra) were extreme and on the plant floor in the presence of a large number of employees. I also find insufficient evidence to establish that Cohen fired him because he stood up to represent the employees, and the Union. The only evidence in this regard is Cohen's statement to the employees, near the end of Pauyo's presentation: "Is this the type of person you want to represent you?" However, this,-apparently, refers to Pauyo's obscene and abusive actions rather than his union or concerted activities. In addition, Pauyo con- tinually refused toa leave unless he was fired; it was not until Cohen made three requests for Pauyo to leave (all refused) that he fired him. In Pacific Intermountain Ex- press Co., 264 NLRB 388 (1982), an employee, refused to obey -his supervisors repeated order, even when warned that his failure to do so would result in termination. The Board found the discharge lawful as the employee "bra- zenly flouted" his supervisors direction, which constitut- ed "the ultimate challenge to Respondent's authority." I find the instant situation analogous. - On the basis of the above, I find that although the General Counsel sustained its burden under Wright Line, supra, Respondent also met its burden of -proving that Pauyo would have been discharged even absent the union or concerted activity. Having found that this dis- charge did not constitute an unfair labor-practice, it fol- lows that the strike that followed was not an unfair labor practice strike. Therefore, Respondent's refusal to rein- state the strikers did not violate the Act. Accordingly, I shall recommend that the complaint be dismissed.3 CONCLUSIONS OF LAW 1. The Respondent is an employer within the meaning of Section 2(2), (6), and (7) of the Act. ' It should be noted that even if I had found that his discharge violated the Act, I would have found that his altercation with Mitchell disquali- fied him from reinstatement. I found Mitchell to be a more credible wit- ness as his testimony seemed more reasonable; as Mitchell was about to cross the street to go to the deli, Pauyo stopped his cat and made a com- ment to Mitchell. Pauyo could have left it at that; instead, he parked his car and crossed the street to get to Mitchell, making it more likely that Pauyo instigated the altercation. In addition, Mitchell was by himself al- though Pauyo had his supporters nearby across the street, making it less likely that Mitchell would -start the fight. I therefore find that Pauyo began swinging at Mitchell and for this reason, he should be denied rein- statement. Clear Pine Mouldings, 268 NLRB 1044 (1984). MARICO ENTERPRISES 2. The Union is a labor organization within the mean- ing of Section 2(5) of the Act. 3. Respondent has not engaged in any conduct in vio- lation of the Act as alleged herein. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed4 733 ORDER It is ordered that the complaint be dismissed in its en- tirety. 4 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. `