Mannington Mills, Inc.

176 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Manmngton Mills, Inc. and William D Frie. Case 4-CA-11726 21 September 1984 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS ZIMMERMAN AND HUNTER On 9 February 1982 Administrative Law Judge William A Pope II issued the attached decision The Respondent filed exceptions and a supporting brief, and the General Counsel filed an answering brief The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings, and conclusions only to the extent consistent with this Decision and Order The judge concluded that the Respondent's rep- rimand, warning, and subsequent discharge of em- ployee William Fne violated Section 8(a)(1) of the Act He found that Fne had been engaged in pro- tected concerted activity when he complained to his foreman about work assignments and threatened to refuse to perform those assignments in the future The judge further found that the Respond- ent subsequently discharged Fne due to his earlier complaints about work assignments The Respondent excepts to the judge's finding that Fne was engaged in concerted activity when he threatened to refuse to carry out future work as- signments, and contends that Fne was discharged because of his subsequent involvement in a horse- play incident in which he allegedly placed another employee's safety in jeopardy For the reasons set forth below, we agree with the Respondent that Frie was not engaged in concerted activity when he threatened to refuse to accept certain work as- signments 1 Employee Fne was a crew leader in the Re- spondent's shipping department and was the elect- ed representative of that department's employees to the Respondent's safety committee 2 Shipping de- partment employees had a longstanding complaint about the Respondent's practice of requiring the night-shift crews to perform loading operations left unfinished by the previous shift employees In July 1980 Fne, acting in his capacity as employee repre- 1 Since we are dismissing the complaint on this basis we find It unnec- essary to pass on the Respondent's motivation for discharging Fne 2 The safety committee was a joint management employee forum for both safety and nonsafety complaints The employees of the Employer are not represented by a labor organization sentative, informed the safety committee about this employee complaint Fne was told to take up the matter with his shift foreman and to try to resolve it at that level Thereafter on 10 October 1980 Fne engaged in a discussion with Foreman Jack Ales- tock regarding the work assignments Fne com- plained that he and other employees on the ship- ping department's second shift objected to perform- ing loading operations uncompleted by the first shift During the discussion Fne stated to Alestock that the night crew was not going to do the day- shift work in the future, 3 and then shouted to fellow employee Wayne McAllister, who was standing approximately 20 feet away, "isn't that right, Wayne" McAllister's reply could not be heard Fne testified, but was not specifically cred- ited, that a number of employees, including Frank Pal, Wayne McAllister, and Jeff McAllister, had previously indicated to him that they were going to start to refuse to do the extra work None of these employees testified at the hearing to corrobo- rate Fne's assertion Employees Tom Lewis and Douglas Van Jr testified that they had complained to Fne and to the Respondent about the extra work assignments but did not testify that they had ever expressed an intention to refuse to do that work The record reveals that Fne acted alone in in- forming the Respondent that the night-shift em- ployees would not perform loading work left un- completed by the first shift 4 There is also nothing in the record to show that any employee author- ized or instructed Fne to issue such a threat or had discussed the matter with him and was aware of and supported his intention to do so Even accept- ing Fne's testimony that certain employees told him that they were going to refuse to do the extra work, that by itself was not authority for Fne to threaten a partial work stoppage on their behalf and did not place the Respondent on notice that Fne was speaking for any other employee when he issued his threat Fne's overture to McAllister was made after he had issued the threat and was more in the nature of an afterthought than solicitation for McAllister to join with him In such circumstances, we conclude contrary to the judge that Fne's threat was an individual action rather than concert- 3 Foe testified that he told Alestock that the men were complaining about the work assignment and would refuse to do that work in the future Alestock testified that Fne stated that he was tired of the extra work assignments and that he was going to refuse to do it in the future The judge did not resolve this credibility question As discussed below we find, under either version, that Fne s threat to refuse to perform the work assignment was not concerted activity 4 By contrast, Fries complaint to Alestock about the extra work as signments was made on behalf of the employees whom he represented in his capacity as safety committee representative and was authorized by the Respondent's representatives on that committee 272 NLRB No 15 MANNINGTON MILLS 177 ed activity Meyers Industries, 268 NLRB 493 (1984) We conclude that Frie's threat did not constitute concerted activity protected by Section 7 of the Act We shall therefore dismiss the complaint in its entirety _ ORDER The complaint is dismissed MEMBER ZIMMERMAN, dissenting Contrary to my colleagues, I agree with the judge that employee William Frie's 16 October 1980 1 complaints to Shipping Department Foreman Jack Alestock about employees being required to perform work left unfinished by a previous shift constituted protected concerted activity, and that the Respondent's actions in - reprimanding and threatening Frie on 16 October and discharging him on 1 December because of his protected con- certed activity violated Section 8(a)(1) of the Act Unlike my colleagues, I find that the facts estab- lish that Frie's conduct constituted actual protected concerted activity, because Frie was acting in his capacity as an employee representative when com- plaining to Alestock about work assignments, Browning Industries, 213 NLRB 269 (1974) The record also clearly establishes that the Respondent had direct knowledge of the concerted nature of Frie's conduct Frie held a responsible position as checker of a work crew in the Respondent's shipping depart- ment According to Personnel Director Martin Gene Lankenau, Frie occupied the most responsi- ble job in the crew and one of his prime functions was to ensure that the trucks were properly loaded Thus, it could come as no surprise to the Respondent that when Frie voiced complaints about incompletely loaded trucks left from a prior shift, he was speaking of a matter which was of vital concern to himself and the crew he directed Furthermore, the facts demonstrate that for a period of about 7 years, Frie served as an elected employee representative of shipping department employees on the plant safety committee 2 Al- though the Respondent claims that in 1977 or 1978 it changed the jurisdiction of the safety committee and thereafter prohibited the committee from con- sidering nonsafety related issues, the record clearly establishes that even after the change employee representatives continued to raise nonsafety issues before the committee, only to have them referred 1 All dates herein refer to 1980, unless otherwise specifically stated 2 The safety committee is a Joint management employee committee • made up of various management officials, including Personnel Director Lankenau, and employee representatives from each department by the committee to the personnel office In this connection, it is undisputed that in July 1980 Frie raised before the committee the employees' com- plaints about being assigned a previous shift's unfin- ished work In addition, the record shows that the Respondent was well aware that many of its em- ployees were concerned about being required to perform work left unfinished by other shifts When viewed in this context, I conclude that Frie's 16 October complaint to Alestock about work assignments was a continuation of Frie's pre- vious complaint to the safety committee, and a reit- eration of the employees' general ongoing unhappi- ness and concern about being required to finish an- other shift's work Accordingly, because Frie was acting in a representative capacity, and his com- plaint involved matters directly related to the terms and conditions of employment of the Respondent's employees, his conduct constituted protected con- certed activity The Respondent therefore violated Section 8(a)(1) by reprimanding and threatening to discharge him for complaining to Foreman Ales- tock about the Respondent's work assignments 3 I also agree with the judge that the Respondent violated Section 8(a)(1) of the Act by discharging Frie on 1 December because of his protected con- certed activity, and that the Respondent's asserted reasons for the discharge, i e, engaging in horse- play with two other employees, and his overall dis- ciplinary record, were pretextual In adopting the judge's conclusion that the Gen- eral Counsel made a prima facie showing that Frie's 16 October protected concerted activity was a motivating factor in the Respondent's 1 Decem- ber decision to discharge Frie, I rely on the evi- dence cited by the Judge, 4 and, additionally, the testimony of Plant Superintendent Frederick Ed- wards Jr that Assistant Personnel Director Smith stated to him that part of the reason Frie received greater discipline than the two other participants in the horseplay incident 5 was because File had been 3 I would specifically adopt the Judge s conclusion that Fne's use of mild profanity in the course of his complaints was not so flagrant as to render him unfit for further service with the Respondent, or sufficiently - disruptive to renfove the statements from protection under the Act See generally Postal Service, 250 NLRB 4 (1980) 4 In finding that the General Counsel established a prima facie case, the Judge observed that, of the three individuals involved in the horse- play incident, only Fne was discharged the two other horseplay partici pants had not been previously involved in protected concerted activity, Lankenau and his assistant, Thomas Smith, who had unlawfully both rep nmanded and threatened to discharge Frie in connection with the 16 Oc tober protected activity, made the decision to discharge Fne, and Lan kenau and Smith acknowledged that they reviewed and considered Fne s disciplinary record (including the 16 October protected activity) prior to deciding to discharge him As described in detail by the Judge, the November horseplay" Inc) dent consisted of Fne and employee Reilly momentarily lifting employee McAllister by his arms and legs to a height about 3 feet above the ground 178 DECISIONS OF NATIONAL LABOR RELATIONS BOARD warned in the recent "insubordination write-up," i.e., his unlawful writeup because of his 16 October protected activity, that any further disruption of the work force by him would result in his dis- charge. The record shows that Smith was referring to Frie's 16 October written reprimand when refer- ring to Frie's "insubordination write-up." I further rely on Frie's uncontroverted testimony that during the 1 December discharge meeting Smith told Frie that his 16 October protected concerted activity was considered in reaching the discharge decision. In attempting to satisfy its Wright Line burden° the Respondent essentially argues that Frie's more serious role in the 21 November horseplay incident and his overall poor disciplinary record would have resulted in his discharge, even in the absence of the 16 October protected concerted activity. The Respondent points out that McAllister merely received a written reprimand for his involvement in the horseplay because he was the "victim" of the horseplay, and had received previously only one disciplinary warning. As to Reilly's lesser pun- ishment of a 3-day suspension, the Respondent argues that, even though Reilly was the "instiga- tor" of the incident in that he first grabbed McAl- lister by the arms, his action in holding McAllister as Fne lifted McAllister by the legs did not place McAllister in as much danger as did Frie's actions. In addition, Reilly had received previously only one disciplinary writeup. The Respondent also pre- sented evidence to the effect that its rules against horseplay are strictly enforced, and Frie was not the first employee to be discharged for engaging in horseplay. In adopting the finding that the Respondent's reasons for the discharge were a pretext, I note that the reasons (i.e., Fne's cumulative disciplinary record, including the unlawful 16 October repri- mand, and Frie's involvement in the 21 November horseplay incident) were inextricably intertwined, and, as such, there exists no separate lawful reason for the discharge. As set forth, infra, the Respond- ent admitted that its decision to discharge Frie was motivated by Frie's 16 October protected concert- ed activity, as well as Frie's involvement in the horseplay incident. In view of this and the fact that the 16 October reprimand provided that any fur- ther breaches of work rules or other disruptive conduct by Frie would result in his discharge, 7 it is 6 Wright Line, 251 NLRB 1083 (1980). The Respondent asserts that the judge impermissibly substituted his judgment for that of the Respondent by stating that the Respondent's distinction between Reilly's involvement and Fne's Involvement in the horseplay incident "furnishes no reasonable grounds" for the Respondent's imposition of disparate punishment. I find no merit in the Respondent's assertion 7 For example, the 16 October memorandum states "He had been put on notice that any further outbursts of this nature will result in his being clear that Frie's 16 October conduct and the 21 November incident were considered together when deciding to discharge Frie. Therefore, the evidence presented by the Respondent fails to establish that Frie's involvement in the horseplay, absent his 16 October protected concerted activity, would have resulted in his discharge. The evidence shows that Frie's 16 October written reprimand and warning (which was unlawful) provided, in substance, that any further breaches of work rules or other disrup- tive conduct by Frie would result in his discharge. The evidence shows that Reilly, who was at least as culpable as Frie in the 21 November inci- dent, merely received a 3-day suspension, while Frie was summarily discharged. The disparity in discipline between Frie and Reilly, the Respond- ent's admission that Frie had been warned in the unlawful written reprimand that further miscon- duct would result in his discharge, and the Re- spondent's admission that it relied on Frie's com- plete record in reaching its discharge decision lead to the conclusion that the 16 October written warning provided the causal connection between the 21 November horseplay incident and the Re- spondent's decision to discharge. I therefore con- clude that the Respondent failed to satisfy its burden under Wright Line. Moreover, with respect to the Respondent's con- tention that Frie's comparatively worse disciplinary record contributed to the decision to discharge Frie, the Respondent produced no evidence show- ing: (1) a policy or practice of basing discharge de- cisions on the number of writeups in an employee's file; (2) that Frie was warned prior to receiving the unlawful written warning, and that he was close to discharge based on the number of disciplinary wri- teups in his file; (3) that Frie's other disciplinary writeups involved safety violations; or (4) that Frie's 16 October written warning was not consid- ered in discharging Frie. Accordingly, I would adopt the judge's conclu- sion that Frie was unlawfully discharged. released . . When Mr. Fne left his office, he understood that if It hap- pens again he will be released" DECISION WILLIAM A. POPE II, Administrative Law Judge. The complaint in this case was issued by the Regional Direc- tor for Region 4 on February 6, 1981, based on a charge filed by William D. Frie, the Charging Party, and alleges that Mannington Mills, the Respondent, violated Section 8(a)(1) of the National Labor Relations Act by discharg- ing the Charging Party because he had acted as a spokes- man for other employees in protesting working condi- tions. The Respondent denied that it had violated the MANNINGTON MILLS 179 Act, as alleged, and trial' on the issues was held in Wil- mington, Delaware, on October 7, 1981, before me I ISSUES The issues in this case are (1) whether the Charging Party was engaged in a protected concerted activity, within the meaning of the Act, on October 16, 1980, when he complained to his supervisor about assignment of certain work to the second shift in the Respondent's shipping department, and (2) whether the Respondent violated Section 8(a)(1) of the Act by issuing a verbal and/or written warning to the Charging Party, and then, subsequently, by discharging him, because of that com- plaint 2 The General Counsel argues that Fne's actions on Oc- tober 16, 1980, involving a complaint which he made to Jack Alestock, the Respondent's shipping department foreman, constituted a protected concerted activity, be- cause he was acting as a spokesman for other employees in the Respondent's shipping department concerning a recurring requirement by the Employer that second shift employees complete loading trucks left unfinished by the first shift The General Counsel further contends that the Respondent, having knowledge that Fne's actions on October 16, 1980, were a protected concerted activity, violated Section 8(a)(1) of the Act, by first issuing a warning to him on the same day because of his com- plaint, and then again on December 1, 1980, by firing him because of his protected activities on October 16, 1980 The Respondent, however, argues that the com- plaint made by Fne on October 16, 1980, was made by him in his individual capacity, and not on behalf of other employees and, therefore, was not a protected concerted activity within the meaning of the Act In any event, even if it were a protected concerted activity, Fne was discharged on December 1, 1980, because he had en- gaged in dangerous horseplay, and not because of the events on October 16, 1980 That being the case, argues the Respondent, there was no violation of the Act I dis- agree II FACTUAL BACKGROUND In general, the sequence of events prior to the termina- tion of Fne's employment is not in dispute On October 16, 1980, William Fne, a company employee of approxi- mately 14 years and a checker 3 in the shipping depart- ment of the Respondent's Salem, New Jersey manufac- turing plant, engaged in a conversation with Jack Ales- tock, the shipping department foreman, during which Fne complained that he and/or other employees on the shipping department's second shift objected to being re- quired to finish loading trucks which the first shift had started, but failed to complete loading Alestock reported ' The Charging Party was advised of his right to counsel, however, he elected to proceed to trial relying on representation by the General Counsel, and he declined to exercise his right to present witnesses and participate in the examination of witnesses 2 The Respondent stipulated that, at all times material herein, it was an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act 3 Although not supervisors, checkers evidently had some responsibility for making sure that trucks were loaded properly the conversation to management officials in the Respond- ent's personnel department, who, subsequently, on the same day, orally and in wnting 4 reprimanded Fne and warned him that his employment would be terminated if such conduct was repeated A little over 1 month later, on November 21, 1980, Fne was observed by Rick Ed- wards, the plant superintendent, engaging in what is de- scribed in the record as horeseplay involving two other employees, Wayne McAllister and Ed Reilly 5 Edwards did not intervene to stop the incident, but he sent a writ- ten report of it to Alestock, the shipping department foreman, in which he recommended that the employees receive a warning or that more severe action be taken if warranted by their work records This matter was also reported to the Company's personnel department, and an investigation was conducted by Assistant Personnel Di- rector Thomas Smith, 6 who recommended that Fne he discharged Smith's recommendation was adopted by Personnel Director Gene Lankenau, and on December 1, 1980, Fne was called to a meeting which was attended by Lankenau, Smith, and Plant SupeAntendent Edwards, at which Smith informed him that his employment was terminated 7 Both Smith and Lankenau acknowledged that they had reviewed Fne's personnel file and were aware of the warning which he had received after the October 16, 1980 incident, but both maintained that Fne would have been discharged because of the horseplay in- cident, alone, even if he had no previous record of disci- plinary action 8 The other two individuals involved in 4 A memorandum dated October 16, 1980, signed by Thomas Smith, assistant director of personnel, which was placed in Fne's personnel file, states, in pertinent part At approximately 1 15 p m Mr Alestock, Mr Fne, Mr Lan kenau, and myself talked about this During the discussion it came out that Mr Fne did in fact make the statement that he would refuse the direction of his supervisor to finish an incomplete load left by the day crew, and proceeded to repeat the statement in a loud disruptive manner to another checker on the other side of the loading dock Mr Fne attempted to justify his action by complaining about his crew work load, overtime, types of load, and amount loaded I told Mr Fne that whatever the reason he may give could not justify his action of this morning, and that we would not tolerate It He had been put on notice that any further outbursts of this nature will result in his being released He was also reminded that his re sponsibility was to follow the instructions given to him by the fore man and if he has a problem with It he should discuss It after he has followed the instructions He was reminded that the proper proce dures were not new to him, as he had a similar problem in 1975, which is a part of his record When Mr Fne left his office, he understood that if it happens again he will be released 5 The incident, which occurred on company property, during the evening shift, just after the lunchbreak was over, took place when Reilly grabbed McAllister under his arms from behind, after which Fne grabbed McAllister's feet and, together, Reilly and Fne lifted McAllister off the ground to a height of 3 feet or less 6 Smith's investigation, It seems, did not include any contact with the Charging Party, who worked for 2 days after the incident, then was on vacation until he returned to work on December 1, 1980 7 Fne testified that Smith told him, [Men, we took this in front of the Board, for your horseplaying, and the Board come up with six—five weeks ago for you threatening to sit down, that we going to have to let you go from Mannington Mills" 8 Smith testified that "Mr Fne had no less than six wnteups that has to do with work performance—work performance in the area, actions were on insubordination such as attempting to refuse to perform a task And, his accumulative record is what determined his release" (R Exh 153) None of the wnteups Involved what Smith referred to as safety in- cidents 180 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the horeseplay incident were also disciplined; however, the punishment which they received was much less severe than that received by the Charging Party. As re- flected in the testimony of Plant Superintendent Ed- wards, Reilly was suspended for 3 days, and McAllister was given a- wntten warning.9 III. FINDINGS AND CONCLUSIONS With respect to the first issue raised in this proceeding, I find that Frie's complaint to Shipping Department Foreman Jack Alestock on October 16, 1981, although perhaps intemperately phrased, constituted a protected concerted activity within the meaning of Section 7 of the Act, which gives employees the right "to engage in . . . other concerted activities for the purpose of collective bargaining or other mutual aid or protection." The Respondent acknowledges that "taking over loads from another shift was an ongoing concern among em- ployees,"" but contends that "even if Frie's complaint could be characterized as involving a matter of concern to other employees, it is clear that his outburst was unre- lated to any group action." Thus, Respondent argues, "on the record as developed by the General Counsel it is clear that while the employees may have been dissatis- fied, Frie's threat to refuse to take over loads was made solely on an individual basis."" Moreover, the Respond- ent asserts, even if "Frie's outburst constituted concerted activity, there is no evidence that Mannington had reason to believe that Fne was engaged in concerted ac- tivities and it is well settled that to constitute a violation of Section 8(a)(1) it is imperative that the General Coun- sel establish that the employer had knowledge of the concerted nature of the employee's activity."" In sup- port of its argument that Frie was acting in his individual capacity, rather than on behalf of and with the support of his fellow employees, Respondent points out that in the course of his conversation with Shipping Department Foreman Alestock and Personnel Director Gene Lan- kenau on October 16, Fne constantly used the pronoun "I" rather than "we." Moreover, Respondent notes, there is a "lack of corroborative evidence that other em- ployees had expressed an intent to refuse to take over the loads."'4 It is well settled that an individual acting alone may, nevertheless, be engaged in a protected concerted activi- ty within the meaning of Section 7 of the Act. As stated by the U.S. Court of Appeals for the Third Circuit in Mushroom Transportation Co. v. NLRB, 330 F.2d 683, 685 (3d Cir. 1964): 9 Smith testified that the personnel records of Reilly and McAllister each contains only one wnteup, and that he decided to impose lesser sanctions on them because of their "involvement in the horseplay as it occurred, and their personnel records" (R Exh. 156.) Smith character- ized McAllister as the victim of the horseplay, Reilly as the instigator, and Fne, the Charging Party, as the escalator. According to Smith, Frie's actions were the most serious, because he "actually put Mr McAllister in the position of possible bodily harm " (R Exh 160) is "Memorandum on Behalf of Respondent," p 11 " Id at 11 " Id at 12 ' a Id at 14, citing NLRB v Burnup & Sims, 379 US 21, 23 (1964) i4 at 15 It is not questioned that a conversation may con- stitute a concerted activity although it involves only a speaker and a listener, but to qualify as such, it must appear at the very least that it was engaged in with the object of initiating or inducing or prepar- ing for group action or that it had some relation to group action in the interest of employees. The National Labor Relations Board has variously held that an employee acting alone was engaged in a protected concerted activity when, by filing a safety complaint with the California OSHA office, his actions related to conditions of employment that were matters of mutual concern to all the affected employees; 15 when an individual employee's remarks constituted an action seek- ing to solicit protected group activity by attempting to enlist the support of fellow employees for their mutual protection;" and when the individual's protest involved a group concern such as the work assignment of all second shift employees.17 As might be expected, there are discrepancies between the account of the October 16 incident given by the Charging Party, William D. Frie, and that given by the Respondent's witness, Jack Alestock, the shipping de- partment foreman. According to Frie's testimony, his conversation with Alestock was amicable, and lasted only 2 or 3 minutes: As I said before, I told Jack that the men were coming to me, was [sic] complaining that they was getting tired of taking these loads over, they was going to start refusing to take the loads over. So, Jack looked at me like I was lying. So, I yelled two to three doors over to Wayne McAllister, that's a checker, I said: "Wayne, isn't that right that the men are getting tired of taking over loads." So, before he could hear an answer back from Wayne McAllister, Jack took off downstairs." According to Alestock, however, Fne was excited and used profanity: Mr. Frie said to me, he said: "You caused the crew to work overtime yesterday by taking a man from their crew." He further stated that: "I am getting tired of this same shit, and I am not going to take over any more trucks when I'm working night shift from the day shifts." He then said: "Isn't that right Bill—Wayne." And Wayne says: "What's that Frie?" He says: "We're not going to take over any more trucks when we're on the night shift from the day shift" That was it. Wayne made a reply but I don't know what it was." i5 Surrey Corp., 229 NLRB 1064 (1977), enf denied on other grounds 601 F 2d 256 (6th Cir. 1979) 19 Red Ball Motor Freight, 253 NLRB 871 (1980) " Ontario Knife Co, 247 NLRB 1288 (1980) 19 R Exh 20 Is R. Exh 113 According to Alestock, Fne became upset on October 16, when Alestock told him that he was going to take one man from Fries crew to work elsewhere MANNINGTON MILLS 181 I find it unnecessary to decided which, if either, of the two versions is the more truthful, because under either account of the incident, it is clear that Fne's complaint to Alestock "had some relation to group action in the in- terest of employees," 20 and, therefore, constituted a pro- tected concerted activity Under both accounts of the in- cident, Fne's complaint and the alleged work stoppage threat related to working conditions, or more specifical- ly, to the work assigned to evening shift employees Ac- cording to Fne, he was acting as spokesman for other employees in protesting the assignment to the evening shift of work left unfinished by the day shift Clearly, an employee who acts as spokesman for other employees in voicing a complaint concerning working conditions is en- gaged in a protected concerted activity 21 But, even as- suming, arguendo, that Alestock's version of the incident is the more correct of the two, it does not support the Respondent's interpretation that Fne was acting in his in- dividual capacity Although, according to Alestock, Fne said that he was not going to finish loading any more trucks left partially loaded by the day shift, Alestock also said that Fne then proceeded to attempt to enlist the support of Wayne McAllister, another shipping depart- ment checker, in joining in concerted group action in the form of a work stoppage It is apparent that Fne's com- plaint was not related solely to personal dissatisfaction with his work assignment, but rather that also he was seeking the correction of working conditions which were of concern to a group of employees for whom he was speaking 22 Even under Alestock's version of the event, Fne's remarks "constituted an action by an individual seeking to solicit protected group activity and was thus concerted in nature "23 Neither the allege use of profanity by Fne nor the al- legedly disruptive nature of his actions operates in this instance to strip his remarks of the protected concerted activity status to which they would otherwise be enti- tled While the National Labor Relations Board has held that intemperate actions, such as repeated and blatant use of profanity, may amount to intentional insubordination sufficient to remove an employee's actions from Section 7 protection," "this occurs only in 'flagrant cases in which the misconduct is so violent or of such serious nature as to render the employee unfit for further serv- ice "25 While Fne's use of the phrase "I am getting tired of this same shit" in his conversation with Jack Alestock on October 16, 1980, if Alestock's testimony to that effect is accepted, may have been intemperate, it was a relatively mild and isolated use of profanity which can hardly be described as repeated, blatant, flagrant, or rendering Fne unfit for further service, such as would be required to strip away the Section 7 protection surround- ing the incident Further, there is no evidence that his actions were violent or disrupted the work at the Re- spondent's plant in any significant way 28 Mushroom Transportation Co, supra 21 Browning Industries, 213 NLRB 269 (1974) 22 Northeastern Dye Works, 203 NLRB 1222 (1973) 28 Red Ball Motor Freight, supra 24 Fibracan Corp, 259 NLRB 161 (1981) 25 Firch Baking Co, 232 NLRB 772 (1977), see also Zurn Industries, 255 NLRB 632 (1981) Before an employer can be found to have violated Section 8(a)(1) by discharging an employee for miscon- duct arising out of a protected activity, however, it must be shown that, in addition to the fact the "discharged employee was at the time engaged in a protected activi- ty, that the employer knew it was such, that the basis of the discharge was an alleged act of misconduct in the course of that activity, and that the employee was not, in fact, guilty of that misconduct " 26 In this instance, the employer, Mannington Mills, Inc , contends even if its employee, Fne, was engaged in a protected activity, it did not have knowledge of that fact I find that conten- tion to be unsupported by the evidence First, as testified to by the employer's witness, Jack Alestock, Fne's re- marks put the Respondent on notice that they plainly fell within the protection of Section 7, because he solicited others to join in concerted action for their mutual pro- tection Second, the employer knew that the issue of "taking overloads from another shift was an ongoing concern among employees " 27 And, finally, for the Re- spondent to contend that it was aware that its shipping department employees were generally concerned with this issue, but that it chose to construe Fne's remarks only as a matter of concern to himself, as an individual, is a specious rationalization which I do not accept Not only was Mannington Mills, by its own admission, long aware of the concern of its employees over the loading issue, so as to be charged with knowledge of the concerted nature of Fne's complaint," there is evidence of actual knowledge on the part of officials of Manning- ton Mills that Fne was acting as a spokesman for other employees with regard to this matter According to Fne's unrebutted testimony, as an employee member of the safety committee (a joint management-employee committee which met periodically in Respondent's plant to consider safety problems)," he had on one or more occasions in 1980, prior to the October 16 incident, com- plained during safety committee meetings about the re- quirement that evening shift employees in the shipping department finish loading trucks which the day shift had not completed loading According to Fne's testimony Q When did you first bring up the matter about the first shift—you know, the problems of the weight loads? A That had to be around July, something like that, the first time I brought it up to them Q Okay, could you explain—which year is this— July of what year? A Of '80-1980 Q Okay, now, can you describe exactly what the problem was with too much weight? A Yes, when our men—one shift would always end up coming in and have to finish the other shifts load half the time, plus we'd have to do our own 28 NLRB v Burnup & Sons, 379 US at 23 27 Memorandum on Behalf of Respondent," p 11 28 Carbet Corp 191 NLRB 892 (1971) 29 Safety committee meetings were customarily attended by Gene Lan kenau, Respondent's personnel director, or his assistant Thomas Smith, or by both 182 DECISIONS OF NATIONAL LABOR RELATIONS BOARD two loads, too It was rough enough to do your own two loads in eight hours, plus finish somebody else's load and do your own load, too Q And why did you bring that particular thing up to the safety committee? A Because the men brought it to me as their rep- resentative Q When you brought up the complaints at the safety committee meeting, what happened? A Well, the first time I brought it up—well, what I understood, they got a hold of our foreman, and I do not know whatever happened then, I never heard what happened, that he brought stuff forward that we did load more weight than the other shift or what, I don't know Q How many times did you bring it up at the safety committee? A One or two times Like I said, they'd ask us at the safety meetings if we could settle this with our foreman in our department—if it's something we could settle, bring it up to him first, and, then, if we could settle it without bringing it to the safety meet- ing, we would settle it 30 The question here is whether or not Mannington Mills had knowledge of the concerted nature of Fne's activi- ties concerning the complaint, not whether he selected the proper forum in which to raise the complaint or even whether the complaint was meritorious 31 It is irrelevant to the question at issue that the safety committee may have had no junsdiction32 to consider matters other than those related to safety The fact that on one or more oc- casions, within 3 months of the October 16 incident, Fne brought up the load issue, in the context of his position as an employee representative, before a joint manage- ment-employee committee, even if it lacked jurisdiction, was sufficient to give the Respondent actual knowledge of the concerted nature of Fne's activities The remaining issue to be resolved is whether Section 8(a)(1) of the Act was violated by the oral and written warnings which Fne received from his employer as a result of the October 16 incident, or by his discharge on December 1, 1980 Section 8(a)(1) of the Act provides that "[It shall be an unfair labor practice for an employ- er to interfere with, restrain, or coerce employees in the exercise of the rights guranteed in Section 7" Con- sidering all of the evidence in this case, I find that Man- nington Mills' actions in reprimanding Fne because of the complaint which he made to his foreman, Jack Ales- tock, on October 16, 1980, and his subsequent discharge on December 1, 1980, were unfair labor practices in vio- lation of Section 8(a)(1) 3 ° R Exhs 16-18 " NLRB v Interboro Contractors, 388 F 2d 495 (2d Cir 1967) 33 According to the testimony of Personnel Director Gene Lankenau and his assistant, Thomas Smith, in 1978 the Jurisdiction of the safety committee was restricted to safety related matters Although employee members of the committee continued to bring up non safety related prob- lems from time to time during safety committee meetings, Lankenau and Smith deferred discussing such problems until after the safety committee meetings were over, usually in Lankenau's office Following his conversation with his foreman, Jack Alestock, on October 16, 1980, Fne was called to Man- nington Mills' personnel offices, where he was warned orally, and in writing, that any repetition of his earlier actions would result in the termination of his employ- ment 33 For the reasons previously stated, Fne's actions on October 16 constituted a protected concerted activity within the meaning of Section 7 of the Act, and there- fore, the effect of the warning given on that occasion to Fne was to inhibit him from engaging in future protect- ed concerted activities involving the assignment of work to his crew It is immaterial that Mannington Mills may have acted in the good-faith, but mistaken, belief that Fne's actions on October 16 were not protected by Sec- tion 7 The test for violation of Section 8(a)(1) of the Act is "'whether the employer engaged in conduct which, it may reasonably be said interfered with the free ex- ercise of employee rights under the Act '"34 That the warning given by Mannington Mills in this instance meets that test can hardly be disputed Short of actual termination of his employment at that moment, Manning- ton Mills could hardly have done more to "interfere with restrain, or coerce" its employee in the exercise of his Section 7 rights Accordingly, I find that the warning given to Fne on October 16, 1980, was an unfair labor practice, in violation of Section 8(a)(1) of the Act Next to be considered is the question of whether Man- nington Mills' termination of Fne's employment on De- cember 1, 1980, was also an unfair labor practice, in vio- lation of Section 8(a)(1) of the Act, because it was moti- vated by Fne's participation in the protected concerted activity in which he was involved on October 16, 1981 The standard to be applied in determining Mannington Mills' motivation to discharge its employee, Fne, was set out by the Board in Wright Lute, 251 NLRB 1083 (1980), enfd 662 F 2d 899 (1st Cir 1981) [W]here the motivation for discharge is at issue, the General Counsel must make a prima facie showing sufficient to support an inference that protected ac- tivity by employees was a motivating factor in an employer's decision to discharge The employer then has the burden of showing that the employees would have been discharged absent that protected activity 35 Although the warning given to Fne following the Oc- tober 16 incident was an unfair labor practice, that does not establish that his discharge on December 1, 1980, was also an unfair labor practice, because the stated reason for the termination of his employment was his in- volvement in a "horseplay" incident on November 21, 1980 The General Counsel argues that it has made the requisite prima facie showing through evidence of the disparately severe punishment imposed upon Fne, com- pared to the punishment imposed on the other employees involved in the so-called horseplay incident, neither of 33 See fn 4, supra, for the text of the written warning placed in Fries personnel file 34 Dover Garage!! Inc , 237 NLRB 1015, 1016 (1978) Zurn Industries, 255 NLRB at 63 MANNINGTON MILLS 183 whom was discharged, and the fact that Mannington Mills' assistant personnel director, Thomas Smith, linked the discharge, at least in part, to Fne's earlier protected concerted activity Further, argues the General Counsel, the Respondent has not met its burden under the Wright Line case, supra, because it has failed to sustain its burden of showing that Fne would have been discharged even if he had not engaged in protected activity The Respondent argues that at worst the evidence of record merely shows that Fne was told he was being discharged because of the horseplay incident and his entire record, not because of his protected concerted ac- tivities, and that the fact that he was discharged after the October 16 incident is insufficient to establish that he was discharged in response to his conduct on October 16 But, continues the Respondent, even if the General Counsel could make a prima facie showing that Fne's protected conduct was a factor in his discharge, the record as a whole demonstrates that he would have been discharged anyway, because of the horeseplay in which he was involved on November 21, 1980 According to Personnel Director Lankenau and his assistant, Thomas Smith, Mannington Mills viewed horseplaying very seri- ously, and Fne's conduct warranted discharge without regard to his previous record, because he had placed an- other employee in danger of serious bodily harm In ad- dition, the Respondent contends, there are other factors which support the conclusion that Frie's discharge was unrelated to the October 16 incident, such as the fact that he was not discharged until 1-1/2 months later, he had previously complained about work assignments but no action had been taken against him, and other employ- ees had made similar complaints without disciplinary action being taken against them I find that the General Counsel has made the requisite prima facie showing in this case The evidence of record shows that of the three individuals involved in the so- called horseplay incident only William Fne was dis- charged, that apparently neither of the other two indi- viduals had previously been involved in protected con- certed activities, that Personnel Director Lankenau and his assistant, Thomas Smith, who made the decision to discharge Fne, were the same two individuals who had previously warned him that his job was in jeopardy be- cause of the October 16 incident, and that both Lan- kenau and Smith acknowledged that they had reviewed and considered Fne's disciplinary record when they de- cided to terminate his employment Standing alone, that evidence is sufficient to establish, prima facie, that Fne's involvement in protected October 16 activity was a moti- vating factor in the Respondent's decision to terminate his employment, and that, under the Wright Line case, shifts the burden to the Respondent to show that Fne would have been fired absent the protected activity The Respondent seems to say that it regarded the al- legedly disrespectful and disruptive manner in which Fne conducted himself to be more serious than the sub- stance of his complaint 36 However, considering the situ- 36 The Respondent points out in its brief that neither Frie nor other employees had been disciplined in the past for complaining about work assignments, presumably in a more polite and less disruptive manner anon which prevailed at Mannington Mills' plant at that time, it is apparent that the Respondent was more con- cerned that Fne's actions might lead to concerted em- ployee action, such as a work stoppage The Respondent acknowledges that its management was well aware of longstanding dissatisfaction among its shipping depart- ment employees over the continuing company practice of requiring night shift" crews to finish the loading of trucks begun by day-shift crews, yet, insofar as can be ascertained from this record, the Respondent's manage- ment did not take any steps to change or eliminate the practice 37 It is hardly surprising therefore that the Re- spondent's management acted quickly and firmly when Fne threatened to destroy the status quo by renewing the old complaint and apparently attempting to solicit another employee's participation in a work stoppage Clearly, from the Respondent's perspective, it was in its interest to prevent the further spread of discontent among its employees by whatever measures might be necessary, including, as threatened in Fne's case, by ter- minating the employment of employees regarded as trou- blemakers Viewed in that context, it is apparent that the Respondent's management would and did closely ob- serve Fne's conduct after the October 16 incident, and seized upon his first transgression as a pretext to termi- nate his employment 38 The evidence of record simply does not support the Respondent's contention that Fne's discharge was not re- lated to the October 16 incident To begin with, both Thomas Smith, Respondent's assistant personnel director, who made the initial decision to discharge Fne because of his participation in the November 21 horseplay inci- dent, and his supervisor, Gene Lankenau, the personnel director, who approved the decision, testified that their decisions were based, at least in part, on Fne's previous disciplinary record, including the October 16 incident According to Smith's testimony The incident that Mr Fne was involved with was referred to me, I reviewed the record of the indi- viduals involved—I talked to the individuals as to their Involvement The disciplinary action that was metered our [sic] to the individuals was based on the incident—the involvement in the incident as well as their accumulative disciplinary action within the records [R Exhs 147-148 ] And Lankenau gave similar testimony concerning his review of Smith's recommendation to discharge Fne Mr Smith came to me, my assistant, and said that the incident had occurred, horseplay, concerning Mr Fne, Mr Reilly, Mr McAllister, and recom- mended some very definite disciplinary steps One of my first question to him when he does that is, does the employee admit to the incident9 he said in this case, "yes" And, I said "Well, let's take a 37 This is not meant to Imply that the Respondent should have taken any steps It is irrelevant to the resolution of the issues of this case whether or not Frie s complaint was mentonous, in whole or in part 38 See Red Ball Motor Freight, 253 NLRB 871 (1980) 184 DECISIONS OF NATIONAL LABOR RELATIONS BOARD look." I reviewed the record and primarily the inci- dent, and my own judgment was that Mr. Smith's recommendation was certainly a sound one. Frank- ly, I probably would have had to take from the company's standpoint, the position to fire Bill unfor- tunately regardless of his record, based upon that one incident. But certainly, the entire record, no one incident other than that', would be it the Octo- ber 16th and any other ones, regardless of those his entire record and the fact that the incident of horse- play, and escalation thereof, that verified my inves- tigation of it, talking separately to Mr. Alestock, led me to say: "Yes, I'm sorry but we're going to have to fire Bill." I asked Mr. Smith why he wasn't taking similar action with the other two individuals, Mr. McAllis- ter; and he pointed to their record. I believe the es- calation of the incident by Bill was the factor, and his entire record was the, factor that made his disci- plinary action warranted in this case. Certainly Mr. McAllister was the victim, and the situation with a fine record, I could see no reason other than warn him about horseplay; taking no fur-' ther action. [R. Exhs. 184-185.] In the face of the testimony of the Respondent's key management personnel who made the decision to dis- charge Frie on December 1, 1980, there is no reasonable conclusion to be drawn other than Frie's participation in the protected October 16 activity was a motivating factor in his discharge. Remaining to be considered is the Respondent's alter- nate defense, that even if Fne's discharge was motivated, in part, by his participation in the October 16 protected activity, he would have been discharged anyway solely on the basis of the later horesplay incident. I find that the evidence quite clearly shows that the horeseplay inci- dent was no more than a minor incident, which might have warranted some disciplinary action, but which would not have resulted in the termination of Frie's em- ployment in the absence of his participation in the pro- tected October 16 incident. The so-called horseplay incident was trivial in nature. It lasted only a few minutes, resulted in neither injury nor significant disruption of work activity, and was con- sidered by Rick Edwards, the Respondent's plant super- intendent, to be so minor that he did not intervene but, instead, allowed the incident to continue until he was ob- served. While the actions of Fne and Reilly in lifting McAllis- ter's feet off the ground may well have placed McAllis- ter in some potential danger of bodily injury, the danger was of a relatively low order of magnitude since, insofar as this record indicates, the parties to the incident were acting in jest, without malice, ill will, or any intent to cause injury. That such activity was inappropriate in a place of employment is not subject to dispute, but Fne's role in the incident was no more life or safety endanger- ing than that of Reilly, and does not justify the disparity in the punishment imposed upon the two employees. It was apparently Reilly who first grabbed and immobilized McAllister, and it was Reilly and Frie who jointly lifted McAllister off the ground. While Frie entered Into the affair after Reilly, to characterize Reilly as the instigator and Frie as the escalator, as the Respondent seeks to do, amounts to a distinction without difference, and furnishes no reasonable grounds for the Respondent discharging Frie while imposing only a short suspension upon Reilly. The Respondent's attempt to justify the disparity in the severity of punishment imposed on Frie, compared to that imposed on Reilly, is contrived and artificial, and I find the disparate punishments to be strong evidence that the Respondent acted for other reasons when it dis- charged Frie. Besides the disparity in punishment, there is other evi- dence that the Respondent did not act in good faith or impartially apply its policy on safety." First, although Assistant Personnel Director Smith testified that he talked to the individuals involved before he decided upon the appropriate punishment, it was Frie's uncontro- verted testimony that Smith did not contact him about the incident prior to December 1, 1980, when he re- turned to work after a vacation and was called to the personnel offices, where he was told by Smith and Lan- kenau that his employment was terminated. I find this to be strong evidence of lack of good faith, and a predispo- sition on Smith's part to discharge Frie. And, finally, Frie's discharge cannot be justified on the basis that his record, apart from the October 16 incident, was unsatis- factory or materially worse than that of Reilly. Although Reilly had only one prior disciplinary report in his file, while Frie had six such reports prior to the incident on October 16, 1980, none of the six were related to safety, and they covered a period of 8 years, the earliest report involving an incident on October 2, 1972. 40 The Re- spondent did not warn Frie prior to the October 16 inci- dent that his job was in jeopardy because of his work record, and I find it incredible to believe that the Re-' spondent's view was changed because of his participation in the horeseplay incident on November 21, 1980, which was neither work related nor similar to any type of prior infraction. Rather, I fuid from the evidence that the only occurrence which distinguished Frie's conduct from Reilly's was File's protected complaint on October 16, and it was because of that complaint, and for no other reason, that Frie was discharged. On the basis of the entire record, therefore, I conclude and find that not only has the Respondent failed to rebut the prima facie case established by the General Counsel, but a preponderance of the evidence affirmatively proves that Frie was discharged because of his protected activi- ties on October 16, 1980. Frie would not have been dis- charged anyway, as asserted by the Respondent, because he violated the Respondent's company policy against "horseplay" on November 21, 1980. Under the circum- stances of this case, I find that the horseplay incident was nothing more than a pretext used by the Respondent 39 It is of no relevance that the Respondent may have previously dis- charged other employees for "horseplay" What is relevant is whether the Respondent dealt consistently and objectively with the employees in- volved with Fne in the November 21 incident 40 The other reports dealt with Incidents on June 1, 1973, March 20, 1975, March 28, 1978, July 26, 1979, and January 4, 1980 MANNINGTON MILLS 185 to conceal its real reason for discharging Fne, which in this instance was to rid itself of an employee whom it had come to regard as a troublemaker because of his in- volvement in activities protected by Section 7 of the Act Therefore, Fne's discharge violated Section 8(a)(1) of the Act CONCLUSIONS OF LAW 1 The Respondent is an employer engaged in com- merce within the meaning of Section 2(6) and (7) of the Act 2 The Respondent committed an unfair labor practice on October 16, 1980, in violation of Section 8(a)(1) of the Act, by reprimanding its employee, William D Fne, and threatening him with termination of his employment be- cause, on October 16, 1980, he had engaged in protected concerted activity within the meaning of Section 7 of the Act, by complaining to his foreman on behalf of himself and others, about work assignments 3 The Respondent committed an unfair labor practice on December 1, 1980, in violation of Section 8(a)(1) of the Act, by terminating the employment of its employee, William D Fne, because of protected concerted activity within the meaning of Section 7 of the Act, in which he had engaged on October 16, 1980 4 The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act REMEDY Having found that the Respondent has engaged in cer- tain unfair labor practices, I find it appropriate to order it to cease and desist therefrom, and to take certain af- firmative action designed to effectuate the policies of the Act The Respondent, having committed an unfair labor practice by reprimanding its employee, William D Fne, and threatening him with termination of his employment, shall be required to rescind the reprimand and threat, and withdraw any record of either from the personnel record of William D Fne The Respondent, having committed an unfair labor practice by unlawfully discharging its employee, William D Fne, shall offer to reinstate him to his former em- ployment, without predjudice to any rights or privileges, and make him whole for any loss of earnings he may have sustained as a result of the termination of his em- ployment Backpay shall be computed in accordance with the formula approved in F W Woolworth Co, 90 NLRB 289 (1950), with interest computed in the manner prescribed in Florida Steel Corp, 231 NLRB 651 (1977), see general- ly Isis Plumbing Co, 138 NLRB 716, 717-721 (1962) [Recommended Order omitted from publication ]