Salem Tube, Inc.

142 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Salem Tube, Inc. and Paul Edward Williams. Case 6-CA-20689 August 21, 1989 DECISION AND ORDER BY MEMBERS CRACRAFT, HIGGINS, AND DEVANEY On November 10, 1988, Administrative Law Judge Arline Pacht issued the attached decision. The General Counsel filed exceptions and a sup- porting brief and the Respondent filed a cross-ex- ception together with a brief in support, and an answer to the General Counsel's 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 briefs 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. ' 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. In light of our agreement with the judge 's finding that Williams was not engaged in concerted activity, we find it unnecessary to pass on the judge's finding, in fn 12 of her decision , that if Williams had engaged in concerted activity at the meeting his actions would have been protected under the Act In adopting the judge's dismissal of the General Counsel 's 8(a)(1) alle- gations, we note Williams' own testimony in which he qualified his ac- tions at the August 13, 1989 meeting as being motivated by solely indi- vidual reasons Julie Stern, Esq., for the General Counsel. Seamus M. Tuohey, Esq., Mitchell Rait, Esq. (Grotta, Glassman & Hoffman), of Roseland, New Jersey, for the Respondent. John Sparks, Esq. (Bogarty, McEwen & Sparks), of Grove City, Pennsylvania, for the Charging Party. DECISION STATEMENT OF THE CASE ARLINE PACHT, Administrative Judge. Upon a charge filed on February 5, 1988, a complaint issued on March 31, 1988, alleging that Salem Tube, Inc. (the Respondent or the Company) violated Section 8(a)(1) and (3) of the National Labor Relations Act (the Act) by discharging Paul Williams on August 14, 1987,1 because he engaged in union and/or protected concerted activities. The Re- spondent filed a timely answer denying it had violated the Act. At the hearing held in Greenville , Pennsylvania, on August 11 , 1988, all parties were afforded full opportuni- ty to participate . On the entire record,2 having carefully observed the witnesses' demeanor and considered the General Counsel's and Respondent 's briefs, I make the following FINDINGS OF FACT 1. JURISDICTION The Company, a Delaware corporation, with its office and principal place of business in Greenville, Pennsylva- nia, is engaged in the manufacture and nonretail sale of stainless tubing products . During the 12-month period ending December 31, 1987, Respondent, in the course and conduct of its business operations, purchased goods and materials in excess of $50,000 directly from vendors and shipped goods and materials valued in excess of $50,000 directly to purchasers located outside the Com- monwealth of Pennsylvania. Accordingly, the Respond- ent admits and I find that the Company is now , and has been at all times material herein, an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICES Paul Williams, employed by Salem Tube from August 1983 until his discharge on August 14, 1987 , took part in a variety of protected, concerted activities throughout much of his career there. In 1984 and 1985 , he served on an in-plant committee which attempted to resolve em- ployee complaints with management . Then, starting in the summer of 1985 , he figured prominently in a union campaign. Although Paul Stoyer was the employee who initiated contact with the United Auto Workers and functioned as the principal union promotor, he relied on Williams as one of his chief "lieutenants." During this drive, Williams discussed the benefits of union represen- tation with other employees, and distributed authoriza- tion cards, eventually obtaining approximately 40 signa- tures, close to half of the total ultimately collected. Company President Michael Olsher responded to the UAW campaign in several ways: he issued a few letters to the work force which spelled out the potential pitfalls of union representation,3 and held a series of small group I All events took place in 1987 unless otherwise indicated 2 Counsel for the General Counsel (the General Counsel) appended to her brief an unopposed motion to correct transcript The motion is grant- ed and received in evidence as G C Exh 11. 9 The record contains four letters which Olsher sent to the employees However, Williams testified that Olsher issued a fifth letter in which he threatened to fire anyone who voted for the Union. Williams did not produce this letter nor did the General Counsel issue a subpoena for its production Consequently, I conclude that Williams simply invented this fictitious letter out of whole cloth . Although the Company 's letters were strongly antiunion , I find nothing in them that offends Sec 8(c) of the Act. (See G .C Exhs. 2-5 ) 296 NLRB No. 19 SALEM TUBE, INC. meetings designed to solicit and address employee dissa- tisfactions. Williams participated in several of these meet- ings where, as he testified, he was encouraged to speak his mind . Thus, he admittedly felt no constraint in telling Olsher during the course of these meetings , that in the absence of written rules governing working conditions, the employees needed union representation to protect them against management's broken promises. After the union election,' and in response to many complaints such as Williams' regarding the need for writ- ten procedures, Olsher caused a set of proposed work rules to be drafted and implemented in May 1986. He also promised the employees that they would have an opportunity to comment upon and help amend the rules (known as the Working Document ) within 6 months of their publication. After the rules had been in effect for almost a year, Williams reminded Olsher of his promise to afford em- ployees a comment period : he prepared a petition dated March 13, which requested that the Company meet with the employees to review the Working Document. Wil- liams also was responsible for circulating the petition among the workers. He obtained 69 signatures in addi- tion to his own, and delivered it to Plant Superintendent Robert Snyder. Thereafter, by open memo of March 26 to the work force, the Company agreed to form a man- agement-employee committee to review the working document and requested volunteers. From the 12 or 13 employees who registered interest or were nominated, management chose 8. When one of the employees origi- nally selected for the committee declined to serve, Wil- liams asked to take his place. Without explanation, Snyder and Perry Geeck , vice president of operations, rejected his request. The joint review committee met regularly over a period of months and agreed to amend the Working Document in a number of areas. One of the revisions of the disciplinary code has a bearing on Williams' dis- charge. The original Working Document provided for two categories of violations : category 1 included conduct of a less serious nature for which a first offense would result in a warning; category 2 violations, those which were deemed more serious and included insubordination, could lead to "more severe discipline up to and including termination for a first offense." However, another and apparently contradictory section of the Working Docu- ment also provided : "Insubordination will be five days off for the first offense, termination for the second of- fense." (See G.C. Exh. 6 at 18 to 21.) The joint commit- tee resolved this ambiguity by deleting the section au- thorizing that a warning be given for a first offense. (See R. Exh. 7 at 25.) However, the parties differ as to when this revised policy took effect. Plant Superintendent Snyder testified that his notes showed that the joint com- mittee members agreed to delete the Working Docu- ment's contradictory language on July 29 and, in accord- ance with the committee's practice, the revision took effect immediately, even though the new rules were not published until sometime in September. However, Earl Stoyer, a member of the joint committee, could not 4 The UAW lost the election by a wide margin. 143 recall when the committee had agreed to the deletion. Moreover, he and Williams both indicated that the em- ployees had no notice that the disciplinary code had been altered prior to publication of the revised rules in September. Williams further testified that some of his fellow work- ers urged him to prepare a second petition to request that employee members of the joint committee be elected rather than handpicked by management . Williams did so and again circulated it, gathering a total of 75 signatures, with his name heading the list. Believing he had "stuck his neck out" enough , Williams asked coworker Mark Rhoades to submit this petition to management . Rhoades agreed and at the outset of a companywide meeting on August 13, handed copies of the petition to Olsher and Snyder. According to Rhoades , Olsher agreed to consid- er it. A. The August 13 Meeting and Williams' Discharge The events immediately preceding Williams' discharge on August 14 began at a meeting held the previous day. The Company invited all personnel to the August 13 meeting in order to explain the terms of a new insurance plan and announce a pay raise . Olsher regarded the meeting as very important: it was his opportunity to ex- plain that the long-delayed wage hike would not only offset the employees contribution to the health plan, but also would constitute an absolute 3-percent increase. Much planning had occurred prior to the meeting : insur- ance company officials were present and explanatory ma- terials had been prepared for distribution to the work force. The meeting was held in a large room of the plant which had thin steel walls set on cement blocks. Re- spondent's executives and an insurance company spokes- person sat at the head of the room just in front of a series of opened windows, facing the more than 100 workers who, in the absence of other seating arrange- ments, stood about or leaned against tables and walls. Williams was fortunate to find a catbird seat; he perched on a forklift stationed at the front right side of the room, and from this vantage point some 3 or 4 feet off the ground, could see and be seen, at least by those in the front of the room. Olsher addressed the group for approximately 45 min- utes and then turned the meeting over to Jean Mackay, the insurance company representative. While she was preparing some materials for a slide presentation, Wil- liams left the room. The parties offer widely divergent views both of Williams' conduct during the meeting and his manner of departure. According to Olsher and Snyder, Williams made "thumbs-down" gestures and shook his head as if signify- ing dissent some three or four times while Olsher was speaking. He then took the most conspicuous route out of the plant, walking straight across the room in front of the company officials, rather than taking a longer and less intrusive path around the audience . While on his way out, he allegedly threw his hands down in a motion which seemed to Olsher to signify disgust. Once outside the plant, he revved his motorbike for some 2 to 3 min- 144 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD utes, creating such a loud noise that he disrupted Mackay's presentation. Williams acknowledged that he had little interest in the Company's health insurance program,5 but denied making any derogatory gestures while Olsher was speak- ing or that he intended any affront by his departure. He did admit that just as he was leaving , he gave one thumbs down signal to a buddy sitting nearby who had greeted him with a thumbs up sign . He further explained that he had to depart at that time because of parental ob- ligations and had waited until Olsher completed his re- marks. He chose the shortest route out to reach his mo- torbike which he ordinarily parked at that location, one commonly used by employees for the same purpose. He started the bike and drove off making no more noise than was customary given the nature of his vehicle. Only one of the employees who testified, Gary Schadt, ob- served Williams making the gestures which Olsher de- scribed.6 In Schadt's opinion Williams was signaling to no one in particular, that "he totally disagreed with what they had to say." While a few employees saw him leave, no one failed to hear the uproar created when Williams started his bike. Estimates of how much time was lost because of Williams' exit varied from 1 to 4 minutes. Olsher reacted swiftly to Williams' departure. Several employees noted that as soon as the noise had abated, Olsher whispered something to Geeck and started to leave the room. In fact, Olsher testified that he told Geeck: "as far as I'm concerned, he's [Williams] fired." After the meeting, Olsher instructed Geeck and Snyder to impose the most severe penalty possible under the Working Document . Olsher explained at the hearing that he regarded Williams' negative conduct as totally inap- propriate, for the meeting had not been called to air grievances or debate employment policy. He also pointed out that Williams could have wheeled his bike away from the facility before starting it if he had any regard for the rights of others. Thus, Olsher believed that Wil- liams' dissenting gestures , his conspicuous exit and his deafening retreat, were intended to disrupt the meeting and revealed his disdain for him and the Company. The following day, Williams was summoned to Geeck's office where Geeck and Snyder advised him that he was terminated for gross insubordination related to the disturbance he had created at the meeting the day before. Subsequently, Williams received a letter from Snyder which recapitulated the grounds for his termina- tion. Specifically, the letter stated that Williams made a spectacle of [himself) throughout the meet- ing by making obvious thumbs down hand signals when important oral presentations were being made.... You left the meeting by walking directly in front of the podium in an obvious attempt to fur- 5 Williams explained that he intended to seek health coverage under his wife's medical plan 6 Schadt , who was seated in the front and center of the room, stated that he saw Williams both nodding his head in a negative manner and making the thumbs down gesture several times Other employees did not observe Williams making any untoward movements, but this may be be- cause they were standing toward the rear of the crowd and had their view somewhat obscured. ther disrupt the meeting. You then proceeded to start and "rev up" the engine on your motorcycle for several minutes, making it impossible for em- ployees to hear. The letter then advised that pursuant to the Working Document, Williams had the right to request a hearing before a panel which would include supervisors, the Plant Superintendent and an impartial plant employee of his choosing. Williams decided not to request a hearing because the Respondent had reserved the right to veto his employee representative. Discussion and Concluding Findings The General Counsel contends that the Respondent exaggerated and distorted Williams' actions at the August 13 meeting, seizing upon them as an excuse to dispose of an employee who over a period of years had engaged aggressively in union and protected, concerted activities. The Respondent counters that Williams was terminated for offensive , insubordinate conduct at that meeting. Where, as here, unlawful and legitimate reasons are offered to explain a discharge, the General Counsel bears the burden of proving that the employee was en- gaged in union and/or concerted, protected activity and that the employer discriminated against him for that reason. Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982). Only if the General Counsel succeeds in proving each element of a prima facie case, does the burden shift to the Respondent to establish that the discharge would have occurred even in the absence of the protected con- duct. Id. B. The 8(a)(3) Allegation The record establishes that Williams was a committed and effective union advocate. However, although Re- spondent certainly knew of Williams' union activity, I am not persuaded that this was the reason for his dis- charge.' When an employee is dismissed close in time to his union activity, the Board often infers that the employer acted with a discriminatory motive and that the asserted reason for the discharge was pretextual. See, e.g., Atlanta Blue Prints & Graphics Co., 244 NLRB 634 (1979). By the same token, where a significant lapse of time occurs between the union activity and discharge , an inference of discriminatory motivation may not be arranted . See, e.g., Irving Tanning Co., 273 NLRB 6 (1984) (5-month hiatus between union involvement and discharge ); Carolina Paper Mills, 254 NLRB 1071 ( 1981) (union activities 3 to 6 months prior to discharge creates no inference of un- lawful reprisal). Here, Williams' termination occurred almost 18 months after his union activity ceased. The record fails to show that any employee (except Williams) ° Respondent denies in its brief that company officials were aware that Williams was a leading union proponent However, Stoyer testified credi- bly that he frequently discussed union matters and Williams' role in them with supervisors Moreover, Olsher acknowledged that Williams boldly asserted the need for a union during group meetings he conducted during the union campaign. SALEM TUBE, INC. filed charges of discriminatory treatment because of union activity. Thus, without other evidence, I find no reason to conclude that Williams ' role in the union cam- paign influenced the Respondent to retaliate against him. The General Counsel submits that regardless of the length of time that elapsed, Respondent's antiunion bias persevered . To support this assertion , she points to hand- written notes on a March 26 signup sheet which refer to several employees listed there as "active in prior organi- zation" or "vocal." (G.C. Exh. 10.) Counsel's argument is unconvincing, however, for the only two employees referred to in this manner (that is, Stoyer and Rhoades), were among the eight employees the Respondent select- ed for the joint review committee. Moreover, as the Respondent aptly argues , if the Com- pany was simply waiting for an opportune moment to fire Williams for his union advocacy , an earlier opportu- nity presented itself in June. There is no dispute that during that month, Williams drove a towlift through a large puddle on the shop floor, and as Snyder and Geeck were passing by, splashed dirty water on Geeck's suit and tie.8 Snyder related that rather than apologizing, Williams yelled that the Company could cover the clean- ing costs . Williams recalled the incident but denied that he intended to douse Geeck or that he made the rude remark attributed to him . Olsher testified that he was in- censed when he later heard about Williams' behavior, but Geeck assured him that since he was uncertain if the act was intended and he was still quite new at his job, he did not wish to take any punitive action. This was not the first time that Williams and Snyder gave conflicting accounts of past confrontations. In Oc- tober 1985, while Williams was serving as a committee- man charged with presenting employees' grievances, he began berating Snyder for operating a crane while em- ployees were laid off. According to Snyder, Williams did not simply object to his action; rather, with a large number of employees looking on , Williams hurled ob- scene epithets at him. Snyder added that shortly after this episode, Williams apologized for his intemperate be- havior. Snyder then assured Williams that he would drop the matter out of concern for his family. He also forth- rightly acknowledged at the instant hearing that he did not wish to fire a union activist in the midst of an orga- nizing campaign. Williams, on the other hand, denied that he had cursed Snyder or that he had apologized to him. His denials lacked credibility . He could find not one witness to support his version of this encounter. To the contrary, three witnesses, who seemed to harbor no ani- mosity toward Williams, confirmed Snyder's account. One of these witnesses also recalled that Snyder acted with composure, remaining silent in the face of Williams' tirade. Snyder's restraint on that occasion was consistent with his demeanor in this trial: he impressed me as a mild-mannered , even-tempered and trustworthy witness. It was clear that he had been upset and even humiliated by Williams' profane abuse, not by the fact that he was criticized for operating the crane. Consequently, I do not find that Williams testified honestly about the 1985 brou- 8 Williams did not contest the fact that he splashed Geeck but main- tained that it was unintentional. 145 haha with Snyder. Bearing in mind that he also invented a letter purportedly issued by the Respondent during the union campaign, I can only conclude that Williams, not Snyder, dissembled about his behavior in the June water- dousing incident with Geeck.9 It is not plausible to assume that Respondent's officials would wait until August to fire Williams out of antiunion animus when they had a good opportunity to be rid of him in June, closer in time to his union activity. Without doubt, the letters which Respondent issued to employees during the UAW campaign revealed the Company's desire to defeat the union . But antiunion propaganda does not necessarily evidence bias toward a particular individual because of his union activism. In sum, this record provides no basis for concluding that Respondent was motivated by antiunion animus when Williams was discharged 18 months after his union activ- ity ceased. Accordingly, I do not find that Respondent violated Section 8(a)(3) of the Act in dismissing the Charging Party. C. The 8(a)(1) Allegation Alternatively, the General Counsel submits that Re- spondent violated Section 8(a)(1) of the Act by firing Williams for engaging in concerted, protected activity. Specifically, counsel refers to Williams' leadership role in preparing and circulating two petitions, both of which, in effect, urged that the Respondent grant the employees a greater voice in regulating their working conditions. Whether a wrongful discharge is alleged under Section 8(a)(1) or under Section 8(a)(3), the Government still must bear the burden of proof required by Wright Line, supra. I do not find that the General Counsel has met that burden. Although Williams' efforts with regard to the petitions clearly constituted concerted , protected ac- tivity, the record evidence does not establish that Re- spondent discharged him for that reason. As outlined above, Williams drafted and circulated the March petition. Without doubt, he was a bold advocate of the employees' interests and did not hesitate to hold Respondent's hand to the fire. Management surely knew of Williams' role in this regard since he had to pass the petition around among a large number of employees to gather so many signatures . Moreover, he hand delivered it to Snyder. However, Respondent did not receive the petition with hostility; to the contrary, the Company ap- parently reacted positively. Before the month was out, Respondent had agreed to establish an employee-man- agement review committee and sought volunteers for it. In selecting the participants, management chose several 9 When Geeck (who was not employed by Respondent at the time of the UAW campaign) told Williams at his discharge interview that "we don't like your kind of employee ," he could well have been referring to the June water-splashing incident , not to Williams' union advocacy Simi- larly, Snyder could have had his October 1985 encounter and the June incident with Geeck in mind when he told Stoyer, after Williams' dis- charge, that he "did not want the son of a bitch in the shop " Several employees testified that they had arguments with Snyder and, yet , unlike Williams, were not disciplined for insubordination However, the record shows that neither man behaved in as egregious a manner as did Wil- liams Therefore, I do not regard these two situations as evidence that Williams suffered disparate treatment 146 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD employees who were known to be prounion or "vocal." Once formed, the joint committee met regularly and ap- parently reached consensus on a number of modifications to the Working Document. There is no evidence that Respondent was aware of Williams' role with respect to the second petition. Indeed, his request that Rhoades hand it to management so that he need not "stick his head out" suggests that Williams may have been fairly circumspect in circulating the document . So far as this record shows then , Olsher did not know that Williams was responsible for the peti- tion. Olsher's comment to Rhoades that he would con- sider the petition does not indicate that he received it with suspicion or ill-will . In other words, I find no reason to infer that Respondent discharged Williams out of displeasure with his protected, concerted activities prior to the fateful meeting of August 13. The General Counsel urges that, at the very least, Re- spondent violated Section 8(a)(1) by discharging Wil- liams for conduct at the August 13 meeting which, stand- ing alone, constituted concerted, protected activity. As authority for this position, counsel cites Whittaker Corp., 289 NLRB 933 (1988). In that case, the company presi- dent held a series of meetings with employees to inform them they would not receive their regular annual wage increase. At one such meeting, in response to an invita- tion for questions, one employee criticized the employ- er's decision and stated that since he had not had the benefit of consulting the Company's books, he could not conclude that the action was justified. The next day, that employee was discharged for insubordination . Disagree- ing with the administrative law judge, the Board con- cluded that the employee was engaged in concerted ac- tivity and held that the discharge was unlawful. In reaching this conclusion , the Board first turned to Meyers Industries, t ° where it ruled that: [i]n general, to find an employee's activity to be "concerted," we shall require that it be engaged in with or on the authority of other employees, and not solely by and on behalf of the employee him- self. However, in Whittaker, the Board further commented that the "activity of a single employee in enlisting the support of his fellow employees for their mutual aid and protection is as much `concerted activity' as is ordinary group activity. . . . Such individual action is concerted as long as it is 'engaged in with the object of initiating or inducing . . . group action... ."' (Citations omitted.) Id. Further, the Board instructed that "the object of induc- ing group action need not be express . . . . Particularly in a group-meeting context, a concerted objective may be inferred from the circumstances." Id. In applying these standards to the circumstances before it in the Whittaker case, the Board found that the employee's statement was not simply a personal com- plaint, but "implicitly elicited support from his fellow 10 268 NLRB 493, 497 ( 1984); remanded sub nom Pr,!! Y. NLRB, 755 F 2d 941 (D.C. Cir 1985), cert denied 474 US. 948 (1985). reaffd 281 NLRB 882 ( 1986). enfd . sub nom Pre!! Y. NLRB, 835 F.2d 1481 (D C Cir 1987), cert denied 128 LRRM 2664 (June 20, 1988) employees against the announced change . . . . This is clearly the initiation of group action ...." Id. at 934. Further, the Board regarded as irrelevant the fact that the employee did nothing more to enlist group support or that his coworkers did not accept the invitation to group action. Id. Certain parallels exist between Whittaker and the present case. Here, as in that matter, the employer called a group meeting; here, Williams' head-nodding and thumbs down gestures could be construed as an expres- sion of dissent." The parallels stop there. In the present case, Respondent had assembled the work force for its own purposes; no one had been invited to pose questions or express comments . In fact, Respondent had not yet completed its presentation . More importantly, the evi- dence fails to prove that Williams was staging a protest or initiating a call to action by his comrades . At most, Respondent, the one employee who saw him, and per- haps Williams himself, interpreted his course of conduct as a personal comment suggesting to anyone who may have been watching that he was disinterested in the Company's new insurance policy. I cannot find in his conduct anything that resembles an attempt to mobilize group action. See Ontario Knife Co. v. NLRB, 637 F.2d 840 (2d Cir. 1980). In light of the circumstances present here, I find that unlike the employee in Whittaker Corp., Williams' actions did not amount to concerted activity. See Meyers Industries, supra.' a Without record support that Williams was engaged in concerted activity, the General Counsel has not estab- lished a prima facie case and the burden of proof does not shift to the Respondent to justify its actions. Thus, it is beyond the scope of this Decision to determine wheth- er the Respondent overreacted to Williams' conduct, in- flicting a punishment which several employees believed far exceeded the crime. However, it is well settled that the Board may not substitute its judgment for that of an employer in deciding whether a discharge was warranted as long as the Act was not violated. See Acrylic Optics Corp., 222 NLRB 1105, 1106 (1976). Based on the above considerations, it follows that the Respondent's discharge of Williams on August 14 because of his behavior the previous day does not violate Section 8(a)(1) of the Act. Accordingly, I must recommend that the complaint in the above-captioned case be dismissed. CONCLUSIONS OF LAW 1. The Respondent is an employer engaged in com- merce with the meaning of Section 2(6) and (7) of the Act. " I do not credit Williams' assertions that he neither nodded his head in a negative manner nor made thumbs down motions during Olsher's presentation His fabrication on other matters described above convinces me that Olsher, Snyder, and Schadt honestly described his conduct during the meeting 12 Having concluded that Williams was not engaged in concerted ac- tivity, it is unnecessary to decide whether his conduct was protected Suffice to say , although Williams' conduct in and after the meeting was intemperate and insulting , nevertheless, it would be protected under the Act. See Container Corp. of America, 244 NLRB 318(1979). SALEM TUBE, INC. 2. The Respondent has not engaged in the unfair labor practices alleged in the complaint in this proceeding for the reasons set forth above. On the basis of these findings of fact and conclusions of law and on the entire record in this proceeding, I issue the following recommended" ORDER 147 It is ordered that the complaint in this proceeding be dismissed in its entirety. 19 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 Board's Rules and Regula- and Order, and all objections thereto shall be deemed waived for all pur- tions, be adopted by the Board and shall become its findings, conclusions poses