Activ Industries, Inc.

National Labor Relations Board - Board Decisions

Nov 26, 1985

277 N.L.R.B. 834 (N.L.R.B. 1985)

834 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ACTIV Industries , Inc. and Gary Lee Domer. Case
5-CA-17012
26 November 1985
DECISION AND ORDER
BY MEMBERS DENNIS, JOHANSEN, AND
BABSON
On 5 August 1985 Administrative Law Judge
Marvin Roth issued the attached decision. The
General Counsel and the Respondent filed excep-
tions and supporting briefs, and the Respondent
filed an answering brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings, I and
conclusions2 and to adopt the recommended
Order.
i The General Counsel and the Respondent have excepted to some of
the judge's credibility findings The Board's established policy is not to
overrule an administrative law judge's credibility resolutions unless the
clear preponderance of all the relevant evidence convinces us that they
are incorrect Standard Dry Wall Products, 91 NLRB 544 (1950), enfd
188 F 2d 362 (3d Cir 1951) We have carefully examined the record and
find no basis for reversing the findings
2 While we agree with the judge's conclusion that the Respondent vio-
lated Sec 8(a)(3) and (1) of the Act by issuing a disciplinary letter to em-
ployee Gary Domer, we do not agree with the judge' s assertion in sec
IV,B, par 1, of his decision that none of the reasons for finding a viola-
tion turn on employer motivation In fact, the third reason the Judge
cited for finding the letter unlawful is that the Respondent issued it to
discipline Domer for his 15 November 1984 conversation with employee
JoAnn Beatty solely because that conversation concerned the conse-
quences of being represented by a union.
The second reason the judge cited, in sec IV,B, par 1, for finding the
letter unlawful is that the Respondent reasonably led Domer to believe
that he was disciplined for conversations with Beatty that were protected
by Sec 7 of the Act Domer had several conversations with Beatty about
the Union and, as the judge found, none of those conversations lost their
protected status The day Domer received the letter, Supervisor Rice
told Domer only that he was disciplined for "harassing" Beatty "about
the Union " Although the Respondent disciplined Domer solely for his
15 November conversation with Beatty, Respondent President Sergio
Echeverria told Domer he was disciplined for more than one conversa-
tion Echeverria erroneously told Domer 2 January 1985 that Beatty ac-
cused Domes of having told her on one occasion he would "get her fat
ass out of the plant if the Union got in " Echeverria also told Domer he
was disciplined for "harassing" Beatty "about the Union," both at her
home and at the plant Accordingly, whether or not a threat to get Beat-
ty's "ass out of the plant" would have been protected had it been made
by Domer, both Rice and Echeverria clearly indicated to Domer he was
disciplined for other, protected conversations as well For these reasons,
we agree with the judge's second basis for concluding the disciplinary
letter was unlawful
The first reason the judge cited for finding the Respondent 's discipli-
nary letter to Domer unlawful is that the letter was issued pursuant to
what the judge concluded was an "unlawful policy" against harassing
employees As discussed above, we agree with the judge that the Re-
spondent violated the Act by disciplining Domer and by Rice's and
Echeverria's explanations to Domer of the reasons for it There is, how-
ever, no evidence the Respondent ever announced a harassment "policy"
to other employees Accordingly, we find it unnecessary to pass on the
judge's conclusion that. "by invoking an unlawful policy against ' harass-
ment,' the [Respondent] violated the Act "
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, ACTIV In-
dustries , Inc., Kearneysville, West Virginia, its offi-
cers, agents, successors , and assigns , shall take the
action set forth in the Order.
Annette M. Amato, Esq., for the General Counsel.
Robert M. Steptoe, Esq., of Clarksburg, West Virginia, for
the Respondent.
DECISION
STATEMENT OF THE CASE
MARVIN ROTH, Administrative Law Judge. This case
was heard at Martinsburg, West Virginia, on 12 June
1985.1 The charge and amended charge were filed on 6
February and 18 March respectively by Gary Lee
Domer, an individual. The complaint, which issued on 20
March and was amended at the hearing, alleges that
ACTIV Industries, Inc., formerly known as J. C. L.
Zigor Corporation (the Company or Respondent), violat-
ed Section 8(a)(l), (3), and (4) of the National Labor Re-
lations Act. The gravamen of the complaint is that the
Company allegedly issued a disciplinary warning letter
to employee Domer because of his union activity and his
involvement in an unfair labor practice hearing in Case
5-CA-16676 as the General Counsel's designated repre-
sentative, and in order to discourage other employees
from engaging in such activities. The Company's answer
denies the commission of the alleged unfair labor prac-
tices. All parties were afforded full opportunity to par-
ticipate, to present relevant evidence, to argue orally,
and to file briefs. The General Counsel and the Company
each filed a brief.
On the entire record in this case2 and from my obser-
vation of the demeanor of the witnesses, and having con-
sidered the briefs and arguments of the parties, I make
the following
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
The Company, a West Virginia corporation, operates a
plant in Kearneysville, West Virginia, where it is en-
gaged in the business of manufacturing ammunition. In
the operation of its business, the Company annually ships
from its Kearneysville plant goods and materials valued
in excess of $50,000 directly to points outside of West
Virginia. I find, as the Company admits, that it is an em-
ployer engaged in commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
I All dates herein are for the period from I July 1984 through 30 June
1985 unless otherwise indicated.
2 Certain transcript errors have been noted and corrected
277 NLRB No. 87
ACTIV INDUSTRIES 835
IL THE LABOR ORGANIZATION INVOLVED
General Teamsters and Allied Workers, Local Union
No 992, affiliated with International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of
America (the Union) is a labor organization within the
meaning of Section 2(5) of the Act.
Ill. BACKGROUND: THE ORGANIZATIONAL AND
ELECTION CAMPAIGNS, THE PRIOR UNFAIR LABOR
PRACTICE PROCEEDING, AND GARY DOMER'S
INVOLVEMENT IN THOSE EVENTS
On 5 September the Union commenced an organiza-
tional campaign among the Company's employees. Five
employees, including Gary Domer (who first contacted
the Union), were initially involved in the campaign. On
the basis of testimony adduced at the present hearing, it
appears that all but one of the Company's production
and maintenance employees signed union authorization
cards, or at least that the employees generally believed
that all but one signed cards, the lone holdout being
JoAnn Beatty.3 On 13 September the Company an-
nounced a reorganization, and the next day the employ-
ees were summoned individually to meet with manage-
ment, and were informed whether they would remain or
be terminated. The Company terminated 10 employees,
all of whom had signed cards, including 2 of the 5 em-
ployees who commenced the campaign (among the 5,
the Company terminated Ruby Henry and Diane
McDaniel and retained Domer, Melvin Prince, and
Douglas Dockney). The Union filed an unfair labor prac-
tice charge (Case 5-CA-16676), the General Counsel
issued a complaint, and a hearing was conducted by Ad-
ministrative Law Judge Thomas D. Johnston from
Monday, 17 December, through Thursday, 20 Decem-
ber. On 28 March Judge Johnston issued his decision and
recommended Order, finding, and concluding in sum that
the Company violated Section 8(a)(1) and (3) of the Act
by coercive interrogation, indicating that employees
were discharged because of the Union, and discrimina-
torily discharging the 10 employees on 14 September be-
cause of union activities. The Company filed exceptions,
and the case is presently pending before the Board. In
the meantime, the Union filed a representation petition
(Case 5-RC-12323) and proceeded to an election which
was held on 2 November The tally of ballots showed 13
votes for the Union and 4 against, with 10 challenged
ballots, the 10 being the alleged discriminatees in the
unfair labor practice proceeding. By Decision and Order
issued 29 March J. C L. Zigor Corp., 274 NLRB 1477
(1985)), the Board held in sum that the outcome of the
election could not be determined until the status of the
alleged discriminatees is resolved.
Gary Domer began as and remained the principal
union adherent at the plant, and his involvement with
the Union was known to management. In Case 5-CA-
16676, Judge Johnston found that George Deaner, who
was plant manager from 3 July to 8 November, referred
to Domer as a "ringleader" of the Union.4 Domer was
the union observer at the 2 November election. Domer
did not testify at the hearing. However, he was present
at the hearing pursuant to a subpoena from the General
Counsel throughout the 4-day hearing. Domer testified
that about 10 December he told Acting Plant Manager
Ken Rice that he was subpoenaed to attend the hearing.
Rice testified that he did not recall whether Domer said
he would be at the hearing. I find it unlikely that Domer,
a conscientious and well-regarded employee, would
simply absent himself from work without informing his
supervisor. I credit Domer, and I find that the Company,
including Company President Sergio Echeverria and
Personnel Coordinator Linda Barnhart, knew in advance
that Domer would be present at the hearing.
IV. THE ALLEGED UNFAIR LABOR PRACTICES: THE
DISCIPLINARY WARNING LETTER
A. The Facts
On Monday, 24 December, when Domer was at home
for the week of Christmas, he received a letter in the
mail dated 21 December from Company President Eche-
verria. The text of the letter read as follows:
Dear Gary:
It has come to my knowledge that you have been
repeteadly [sic] harassing JoAnn Beatty. Some of
this harassment was stated in insulting terms.
The purpose of this letter is to let you know that
the company will not tolerate any kind of harass-
ment among its employees, and that this type of in-
cident will be treated as a major discipline problem.
Be advised that new attempts by you to harass
any other employee will result in immediate disci-
plinary termination.
In the event you feel the information I have re-
ceived related to this incident is not true, you are
invited to explain it to me.
Domer had not previously received any notice from
the Company concerning alleged harassment of Beatty.
Domer telephoned Acting Manager Rice and asked what
the letter was about. Rice answered that Beatty came to
him about 10 or 11 December and complained that
Domer was "harassing" her "about the Union." Rice
added: "You know how she feels about the Union." Rice
gave no other information about the alleged harassment.
Domer asserted that the Company would not get rid of
him that way, whereupon Rice responded that he did not
think they had this in mind. Domer complained that the
letter ruined his family's Christmas, whereupon Rice an-
swered that he thought the letter was to be handed per-
sonally to Domer. On 2 January, aftei Domer returned
to work, he went to see Echevetria to find out what the
letter was about. Domer testified in sum as follows:
Echeverria said that Beatty came to Rice and com-
plained that Domer was harassing her about the Union.
I In Case 5-CA-16676, the administrative law judge found that the
Union received cards for 25 of the 27 unit employees
4 The Company did not except to this finding, although the Company
had no reason to, as Domer was not an alleged discrimmatee in that pro-
ceeding
836 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Domer denied that he harassed Beatty, and asked if she
could prove the charge. Echeverria said she could.
Domer said that he did not appreciate getting the letter
on Christmas Eve. Echeverria apologized for the timing,
and explained that the letter was ready on 14 December
but was not given to Domer because of the plant Christ-
mas party that day. He told Domer that the letter would
be placed in his personnel file Echeverria said that
Beatty accused Domer of saying that he would get her
"fat ass" out of the plant if the Union got in. Domer
denied the accusation. (As will be discussed, Beatty
never accused Domer of making such a remark.) Domer
asked whether the alleged harassment took place at the
plant or at Beatty's home. Echeverria answered "both"
adding that "we won't tolerate it." He asked about
scratches on Beatty's car, and Domer answered that he
did not put them there. Domer suggested that they,
Beatty and Rice, get together to discuss the matter.
Echeverria said he would see Domer the next day. How-
ever he did not contact Domer again concerning the
matter. Echeverria, in his testimony, did not give a com-
plete account of his conversation with Domer. He testi-
fied that he could not recall if he told Domer what
Beatty said, but that he probably said the harassment was
reported in "nasty terms " He admitted that he did not
ask for Domer's version of the alleged harassment. Eche-
verria testified that he told Domer he "understood" that
the alleged harassment took place at the plant and in
working hours, which Domer denied, but that he added
that "it was a misbehavior regardless of where it hap-
pened, in the plant or out of the plant " Echeverria fur-
ther testified that he promised to investigate the matter,
that Domer did not suggest that everyone get together,
and that (as will be discussed), he gave a fuller explana-
tion why the letter was mailed I week after it was pre-
pared.
Domer also asked Beatty about the letter, but she was
unwilling to discuss it. Beatty testified that Dorner said
he was sorry, he did not mean to harass her, and that he
thought they were just conversing. However, she admit-
ted that she did not discuss any of the particulars of the
alleged harassment, and did not even admit that she
spoke to management. Domer testified that he was in-
clined to drop the matter at this point, but that he decid-
ed to take further action after Rice told him that the
letter could affect future evaluations (which are the bases
for pay increases) and promotions. Rice testified that he
could not recall Domer asking about this Domer went
to a private attorney, who advised him to obtain an affi-
davit from Beatty, but she refused to give any statement.
Domer checked with Personnel Coordinator Barnhart,
learned that the letter was still in his personnel file, and
thereafter filed the present charge.
As indicated, there are some discrepancies between the
testimony of Domer and that of the other witnesses
(Echeverria, Rice, Beatty, and Barnhart), concerning
Domer's contacts with them after he received the disci-
plinary warning letter. However, I find that these differ-
ences are not material to ultimate merits of this case.
Rather, whether I credit Domer or any or all of the
other witnesses, or find that their testimony taken togeth-
er reflects the substance of what was said, 1-find that
their testimony demonstrates several factors which are
significant to the merits of the case. First, Echeverria dis-
ciplined Domer solely on the basis of alleged "harass-
ment" of Beatty Specifically, Echeverria did not, either
in the letter or in his subsequent conversation, assert that
Domer was disciplined for leaving his place of work
without permission, engaging in union solicitation during
working time, interfering with or impeding production,
or otherwise violating any other company rule or policy.
Second, although the letter did not describe the subject
of the harassment, both Rice and Echeverria made clear
to Domer that it involved prounion talk by Domer
Third, Echeverria made clear to Domer that his conduct
was objectionable regardless of whether or not it took
place at the plant or during working time. As indicated,
the disciplinary letter did not state when or where the
alleged harassment took place. As will be discussed,
Echeverria did not even know whether the harassment
took place at the plant or on working time. Fourth,
Domer was never informed as to the particulars of the
alleged harassment. Therefore it was impossible for him
to give his version of the events in question, other than
to simply admit or deny (as he did) that he harassed
Beatty.
President Echeverria testified that on 4 or 5 December
he returned to the plant from a business trip, and that
Acting Plant Manager Rice then reported to him that
Beatty complained to him the previous weekend that she
had been harassed by Gary Domer When asked by
counsel for the General Counsel what Rice specifically
told him, Echeverria testified as follows:
As I can recall, he told me that she was being
harassed. She had been told that she had to join the
Union in 30 days or otherwise her time card should
be pulled out of the clock. That they were going to
keep her ass out of the plant. That she was going to
get out of the fucking door and this kind of lan-
guage.
Echeverria failed to indicate that Rice told him where or
when this alleged conversation took place. Echeverria
testified that Rice also told him that on one occasion
when Beatty was assisting a machinist, Domer asked her
to "get away from there, not to say anything, not to do
anything, not to report to management or something like
that." However, Echeverria admitted that he understood
that this involved a different conversation from that de-
scribed above. Nevertheless Echeverria asked no ques-
tions, conducted no investigation, and did not speak to
either Beatty or Domer about the matter Instead, ac-
cording to Echeverria, he contacted his attorney, pre-
pared a draft of the disciplinary warning letter, and on
14 December, when he met with the attorney, the attor-
ney approved the letter. Echeverria's indifference to the
time or location of the alleged harassment is confirmed
by his actions following his conversation with Domer on
2 January. According to Echeverria and Acting Plant
Manager Rice, he then asked Rice to conduct a "quiet,
discreet investigation" of the matter. However, pursuant
to Echeverria's instructions, this so-called investigation
consisted only of Rice obtaining an unsigned and undat-
ACTIV INDUSTRIES
ed three-page statement from Beatty describing various
incidents and conversations over a period of several
months, some of which , but not all , involved Domer.
The statement described a purported conversation on
Thursday , November 15, with Domer which was similar
in some respects but materially different in others from
that described by Echeverria in his testimony . The state-
ment failed to indicate whether or not the conversation
took place at the plant or on working time . Beatty and
Rice testified in sum that Rice assisted her in preparing
the statement, at least to the extent of providing her with
dates. Nevertheless Echeverria testified that on reading
Beatty 's statement he concluded that the disciplinary
letter was justified Echeverria took no further action in
the matter , and did not even bother to inform Domer of
the results of the "investigation ."5 Echeverria 's indiffer-
ence to the time or location of the alleged harassment is
further confirmed by a position letter which company
counsel submitted to the Board's Regional Office during
its investigation of the present charge . Company counsel
stated as follows-
On Saturday, December 1, 1984, Ms. Beatty re-
ported to management that Domer confronted her
shortly after she accepted the promotion [to lead
packer]. More specifically , Beatty told management
that Domer harassed her by telling her that if she
took the lead packer job she would still do as the
union told her; that she would mind her own busi-
ness ; that she would not be allowed to run to man-
agement about problems; that if the union got in,
she would have to join the union within 30 days
and if she didn't, her "time card whould be pulled
and [she would go] out the f- door "; and that if
there was a strike, she would walk the picket line
like everyone else.
Company counsel went on to state that "As a result of
this Complaint ," Echeverria prepared and counsel ap-
proved the disciplinary warning letter . At no point did
company counsel indicate that the alleged harassment
took place on working time, or that the disciplinary
letter was based on any incident other than the alleged
conversation described in the letter , or on any grounds
other than alleged harassment of Beatty . 6 I find that the
position letter may properly be considered as an admis-
sion that Domer was disciplined solely on the basis of
the purported conversation of November 15, that Domer
was disciplined for alleged harassment of Beatty , and not
for violating any other , company rule or policy, that the
5 Echeverria testified that he did not think a lady would make such an
accusation in writing unless it were true. If I were to follow Echeverria's
purported reasoning, I would have no alternative but to find a -violation
in the present case, because the Board's General Counsel, who issued the
complaint, and counsel for the General Counsel are both women For
reasons which have been and will be discussed, including Echeverria's
total lack of interest in hearing Doiner's side of the story, I find that
Domer would have been disciplined regardless of the gender of the per-
sons involved and regardless of what actually occurred
6 In the position letter, company counsel stated that he understood that
Beatty first brought a complaint of harassment by Domer to management
in late September, during the election campaign In fact, Beatty made a
complaint to then Plant Manager George Deaner at that time, but it did
not involve Domer, and she did not mention Domer's name
837
Company was indifferent to whether the harassment oc-
curred on company time or premises, and that the Com-
pany regarded the content of the conversation as crucial,
rather than its time or location. It is settled law that the
admissions of an attorney in the management of litigation
are admissible against the client. Steve Aloi Ford, 179
NLRB 229 fn. 2 (1969). In light of Echeverria's testimo-
ny, and the absence of any reference in either Beatty's
written statement or the Company's position letter to the
time or location of the alleged harassment, I do not
credit the testimony of Rice that he reported to Echever-
ria that Beatty said she was harassed on the floor during
working hours. I further find that even if Echeverria
knew or believed that the alleged harassment took place
at work, he did not care, and that as he told Domer, the
time and location played no part in his decision to disci-
pline Domer.7
Beginning in August 1984 and continuing through and
after the election campaign, there was considerable dis-
cussion among the employees about the Union JoAnne
Beatty, as the only employee outspokenly opposed to
unionization, was conspicuously involved in these con-
versations. Although Beatty and Domer differed in their
views about the Union, they were friends and knew each
other well. They worked together as a team, both served
on the plant safety committee, and Domer came to her
home to install a pole light for her. Beatty testified that
she had more than five conversations with Domer about
the Union, but that all of them were at work. Beatty fur-
ther testified in sum as follows: On 14 September, the
morning of the reorganization, a group of employees, in-
cluding Domer and Beatty, were speculating on what
might happen when they were summoned for their inter-
views with management. Diane McDaniel said that Beat-
ty's job was safe because she ratted. McDaniel and nine
other employees were subsequently discharged. On 17
September after the discharges, Beatty received a tele-
phone call at her home from an unidentified woman,
who said Beatty was a "fucking rat" and would be sorry.
Beatty told Plant Manager Deaner about the conversa-
tion and telephone call. He told her that if she was har-
assed she could contact the NLRB. However, she did
not do so. Instead she talked to Domer. That week, as
Beatty was driving away from work, Domer was driving
behind her. She stopped and signaled Domer to pull
over, which he did. Beatty told Domer that she was
tired of hearing "they would get the fucking rat," that
she felt "they" were referring to her, and that if he be-
lieved she was the rat he should do something about it
or forget it. Beatty gave several versions of Domer's re-
7 Echeverria testified that in harassing Beatty, Domer violated a plant
rule against leaving place of work without permission. Echeverria admit-
ted that he had no factual basis for this belief, but that it simply reflected
his own speculation In fact, Domer and Beatty worked together in the
same area, with Domer functioning as loader and Beatty as packer
Therefore it would not have been necessary for Domer to leave his place
of work in order to speak to Beatty, even if they were both at work.
Beatty did not, either in her complaint to Rice or her testimony, com-
plain that Domer interferred with her work. She did not even complain
about Don er's alleged use of profanity Rather she testified that she ob-
jected to Domer's remarks because she felt he was talking to her as if he
were her boss , and because she felt that the alleged harassment, i e,
prounion talk, should have stopped after the election
838 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
spouse. She initially testified that Domer said that she
was probably the rat because she was the only employee
who did not sign a union card. She subsequently testified
that Domer said, "If you are the one who ratted, I will
get the fucking rat." However, in her investigatory affi-
davit Beatty stated that Domer said, "If you're the one
who informed the Company then you are a fucking rat,"
and that Domer did not otherwise threaten her. Beatty
testified that the affidavit was correct. Domer testified
that he may have called Beatty a "fucking rat," but he
never threatened her. I find that Domer never expressly
or imphedly threatened to get Beatty.
In November the Company offered to promote Domer
and Melvin Prince to a newly created position of lead
operator and to promote Beatty to a new position of lead
packer. Prince and Beatty accepted immediately, but
Domer told Echeverria that he wanted to think about it.
Beatty testified that about 15 November Domer asked
her if she was offered the lead packer job, and she an-
swered, "Yes." Beatty described the ensuing conversa-
tion as follows:
He told me if I took that position I would still
have to do what the Union said, that I wasn't -to
talk to management, supervisors or run to them
about various things, and that I was to do what I
was told, and that if I didn't and the Union did get
in I would have thirty days to sign the Union card
or my time card would be pulled and out the fuck-
ing door I would go. Also, if the Union went on
strike I'd have to walk the picket lines just like ev-
erybody else.
I told him that he wasn't my boss and he wasn't
to tell me what I was supposed to do and that no
fucking man was going to tell me what I could do,
and until he was my boss then I wouldn't have to
listen to anything that he told me.
Beatty further testified concerning an incident on 29 No-
vember. Employee Vicky Morris had been assigned to
work with Melvin Prince. Prince told her that she was
unable to handle the job, and told her to work with an-
other loader. Morris broke into tears Beatty, who was
on the plant safety committee, thought she was injured
and offered to help. Morris told her what happened, and
Beatty agreed to go with her to see Acting Plant Manag-
er Rice. As a result, Rice reprimanded Prince for im-
properly assuming supervisory authority. Beatty testified
that following this incident, Domer told her that she
should mind her own business and let the other employ-
ees take care of their own affairs. Beatty testified that
about I December she reported both the 15 and 29 No-
vember conversations to Rice. However, Rice testified
that Beatty reported the 29 November conversation to
him that same day, that he did not report this matter to
Echeverria, that Beatty did not complain about the 15
November conversation until 1 December, and that he
did report this complaint to Echeverria on 4 or 5 De-
cember when Echeverria returned from an out-of-town
trip. Echeverria testified that he was gone for 4 or 5
days. Therefore it is evident that he still was at the plant
on 29 November. Nevertheless Rice did not regard the
29 November conversation as important enough to war-
rant disciplinary action. However, when Beatty com-
plained about a conversation which had taken place over
2 weeks earlier, Rice referred the matter to Echeverria.
These facts tend to confirm what I have already found
on the basis of the Company's own statements, namely,
that Domer was disciplined solely because of his alleged
remarks on 15 November. The facts further demonstrate
that Echeverria and Rice were in fact indifferent to al-
leged "harassment," unless that "harassment" took the
form of prounion propaganda. It is also significant that
Rice testified that on 29 November lab technician Brian
Roberts told him that Melvin Prince said that "we or
they will get JoAnn's ass out of here." Echeverria was
so indifferent to the actual language used by Domer that
he attributed to Domer the language which was alleged-
ly used by Prince. He also took no action against Prince.
In sum, Echeverria's prime concern was that Domer was
engaging in prounion propaganda.
Domer testified that he spoke to Beatty several times
about the Union, that most, but not all, these conversa-
tions took place at her home, and that either of them
would initiate such conversations. He testified that on
one occasion Beatty asked him what would happen if the
Union got in. Domer answered that when he worked at
a union plant the employees had 30 days in which to join
the union there and everybody had to walk the picket
lines. Beatty told Domer that when she worked in Vir-
ginia, the Union caused that plant to shut down. Domer
testified that he sometimes talked to Beatty at her work
station, but not on this occasion. He further testified that
Beatty never accused him of harassing her or told him to
stop talking about the Union. Domer testified that he did
not recall telling Beatty that she should keep her mouth
shut or that if she did not join the Union within 30 days
her card would be pulled and she would be "out the
fucking door." With regard to the 29 November inci-
dent, Domer testified that Beatty asked her whether she
had done right by going with Morris to see Rice, and
that he answered that she should have let them solve
their own problems and kept her nose out of it. I credit
Beatty concerning the 15 November conversation. As in-
dicated, Domer was somewhat equivocal about Beatty's
version, testifying that he did not recall such a conversa-
tion. In contrast, Beatty testified that by October she be-
lieved that Domer was the union "ringleader," and
therefore she listened carefully to what he had to say
about the Union. Additionally, as will be further dis-
cussed, the employees commonly used profanity in their
conversations. However, I credit Domer's testimony to
the effect that they previously discussed their experi-
ences with a union shop. I also credit Domer's specific
testimony concerning the 29 November incident. It is un-
likely that Domer would have known what happened
unless Beatty told him. Therefore it is probable that
Beatty initiated the conversation by telling Domer what
happened and asking his opinion.
B. Analysis and Concluding Findings
The General Counsel and the Company, in their re-
spective briefs, have addressed this case as one which
ACTIV INDUSTRIES 839
turns on a question of motivation, 'i.e., whether or not
the Company gave Domer the disciplinary warning
letter in reprisal for his support of the Union and partici-
pation in the first unfair labor practice proceeding, and
used Beatty's complaint as a pretext for engaging in such
reprisal. In so doing both sides have missed the mark 11
find that the disciplinary letter was violative of Section
8(a)(1) and (3) of the Act for three reasons, none of
which turn on employer motivation. Therefore, insofar
as the complaint alleges that the Company violated those
sections of the Act, it is not even necessary to reach the
question of motivation. First, as found, the Company dis-
ciplined Domer because of his alleged harassment of a
fellow employee, and on no other asserted ground. The
Board has long held that an employer rule or policy
against employee "harassment," "pressure," or making
"trouble" for other employees, which may be applied to
union or other concerted activity, is unlawful because
such a rule may reasonably be interpreted by the em-
ployer or employees as prohibiting lawful union or con-
certed activity. Therefore, by invoking an unlawful
policy against "harassment," the Company violated the
Act, regardless of whether Domer was actually engaged
in activity protected by Section 7 of the Act. General
Electric Co., 255 NLRB 673, 680 (1981), and cases cited
therein; see in particular, W. F. Hall Printing Co., 250
NLRB 803, 804 (1980), and Liberty Nursing Home of
Lynchburg, 245 NLRB 1194, 1197 fn. 5 (1979), involving
the term "harassment." Second, Echeverria and Rice in-
dicated to Domer only that he was being disciplined for
harassing Beatty, and that the harassment involved
prounion talk. They did not tell Domer when the alleged
harassment occurred, and they never told him that he
was disciplined for leaving his work station, interfering
with production, engaging in union solicitation on work-
ing time, threatening Beatty with violence, using profani-
ty (except insofar as Echeverria may have indicated that
the harassment involved "nasty" language, which was
commonly used in the plant), or for any other violation
of a company rule or policy. Therefore Domer was rea-
sontably led to believe that the "harassment" could or did
involve all of his conversations with Beatty concerning
the Union.
In these circumstances, it was immaterial whether the
alleged "harassment" took place on or off the job, or in-
volved threats of violence or other unprotected conduct.
General Electric Co., supra, 2'55 NLRB at 682.8 Third,
the discipline violated Section 8(a)(1) and (3) because the
actual but concealed basis for the discipline, i.e., Domer's
statements to Beatty about November 15, constituted
protected union and concerted activity Even on the
B Therefore the Company's reliance on NLRB v General Indicator
Corp, 707 F 2d 279 (7th Cir 1983) (Br 9-11), is misplaced In that case,
the employer discharged the alleged discrimmatee for the asserted lawful
reason that he disrupted the productivity schedule of other employees
during working hours The issue presented was whether this asserted
ground was a pretext for unlawfully discharging him because of his out-
spoken opposition to the incumbent union steward The court determined
that the evidence was insufficient to support the Board's determination
that the discharge was pretextual In contrast, in the present case Domer
was discharged for allegedly harassing Beatty For the reasons discussed
above, the discipline was unlawful regardless of the Company's motiva-
tion
basis of - Beatty's version of the conversation, which I
have credited, it is evident that Domer was simply ex-
pressing his opinion that (1) the new position of lead
packer would be a unit rather than a supervisory posi-
tion, and therefore Beatty would be subject to a union
contract and not a part of management, (2) if the Union
came in the Company would execute a contract with a
union-security clause, and if Beatty did not join the
Union within 30 days she could be discharged, and (3) as
a union member Beatty would be expected to walk a
picket line like everyone else if the employees voted to
strike. Indeed, in light of Beatty's own prior experience
with a union shop, the employees' extensive discussions
concerning the Union over a period of several months,
and the organizational and election campaign, it is diffi-
cult to see how Beatty could reasonably place any other
interpretation on Domer's statements. Plainly Beatty did
not understand Domer to mean that he had the power to
fire her or even to tell her what to do. Thus she told
Domer in firm language, accompanied by profanity, that
he was not her boss. Such expressions of employee opin-
ion constitute activity which is protected under the Act,
regardless of whether they are accurate or truthful. Fac-
tory workers cannot be expected to speak in the precise
or polite phrases used by labor lawyers. Compare, Liber-
ty Nursing Home, supra, 254 NLRB at 1202-1203 (em-
ployee engaged in protected activity by telling another
employee she could go over her head and have her fired
if she failed to join the union, and that dues would be
taken out of her paycheck even if she did not join).
Domer's use of profanity did not remove his opinions
from the ambit of protected activity. Compare Consum-
ers Power Co., 245 NLRB 183, 188 (1979) (steward on
union business engaged in protected activity when he
told supervisor "I don't give a fuck who you call."). It is
evident that when it came to profanity she was able to
match Domer word for word.9 Beatty never testified
that Domer interfered with her work. Rather, despite
leading questions by company counsel, she testified that
Domer spoke to her on her return from the office, when
she had been offered the job of lead packer. Moreover
Echeverria was indifferent whether the conversation
took place on or off the job.
Even if I were to view the entire course of the rela-
tions between Domer and Beatty on the basis of Beatty's
own testimony, I would find that Domer never engaged
in words or actions which would constitute a threat of
violence or other unprotected union activity. Domer
never threatened Beatty with retaliation, and they re-
mained on good terms throughout the election campaign.
On 14 September it was Diane McDaniel and not Domer
who said that Beatty ratted. The alleged anonymous
caller of 17 September was a woman. Thereafter it was
Beatty who "harassed" Domer, and not the other way
around. Beatty testified that in late September Domer
followed her in his car However, Domer and Beatty
normally left work in the same direction, and it would
9 In the first unfair labor practice proceeding, the Company admitted
that the employees freely used profanity to the plant (See decision of
Judge Johnston at 277 NLRB 356, 366, Company's Brief in support of
exceptions, p 44 )
840 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
not be unusual for his car to be behind hers. Domer testi-
fied that he never intentionally followed Beatty from
work, and Beatty did not drive far enough to find out
whether he was doing so. Instead she signaled him to
pull over and proceeded to give him a tongue lashing,
not because of what Domer had said or done, but be-
cause of what other employees were saying about her.
However, Dourer was an individual employee in his own
right, he was not their "boss" any more than he was
Beatty's boss, and he was not responsible for what they
said or did. Thereafter all that occurred was the conver-
sation of 29 November, in which Beatty invited Domer's
opinon, and which Rice dismissed as unimportant, and
the conversation of 15 November, in which Domer ex-
pressed his opinion about unionization, and which Beatty
did not even bother, to report to management until over
2 weeks later.
As the present case involves an alleged violation of
Section 8(a)(4) of the Act, in addition to the 8(a)(1) and
(3) allegation, it is necessary for me to consider the ques-
tion of employer motivation. I find that the Company
disciplined homer in order to suppress prounion talk
after the election. In this regard, it is significant that Rice
was indifferent to Beatty's complaint that Domer told
her to mind her own business, and was even indifferent
to a report that Melvin Prince said that "We or they will
get JoAnn's ass out of here." However, when Beatty be-
latedly complained that Dourer was talking to her about
the consequences of unionization, and indicating that she
would have to join the Union sooner or later, 10 Rice and
Echeverria immediately swung into action. They indicat-
ed to Domer that they were concerned about the sub-
stance of what he allegedly told Beatty, rather than the
time, place, or circumstances of their conversation or
conversations In sum, the Company was less concerned
about "harassment" than it was about prounion talk
which might convince Beatty to join the Union. Howev-
er, I am not persuaded that the Company used Beatty's
complaint as a pretext to retaliate against Domer because
of his union activity or his participation in the first unfair
labor practice hearing. During the same period of time in
which the Company was proceeding to discipline
Domer, it was offering him a promotion.) i As of 14 Sep-
tember the Company knew that Domer was the union
"ringleader." Nevertheless the Company retained Domer
while' terminating other employees whose only union ac-
tivity consisted of their signing a union card. Such ac-
tions are inconsistent with an intent to single out Domer
for discriminatory treatment. It is evident that the Com-
pany regarded Dourer as a valuable employee, and was
perfectly willing to retain his services, provided that
after the election, at least, he ceased his efforts to per-
suade Beatty to join the Union.
10 It is evident that the employees regarded the outcome of the elec-
tion as a union victory Even company counsel inadvertently referred to
the Union having won the election
a i Domer never accepted the offer, either because of a misunderstand-
ing as to who was to make the next contact, or because Domer was dis-
satisfied with the pay However, the Company kept the offer open for
over a month, and eventually offered the position to another employee
Melvin Prince, also a union activist, was also offered a promotion, and he
accepted it
I further find that the Company was not motivated by
Dower's involvement with the hearing before Judge
Johnson. In this regard, I find that the Company decided
before the hearing began that it would discipline Domer,
although I do not wholly credit the Company's explana-
tion for its delay in such action.
Echeverria, Rice, and Linda Barnhart, whose full title
is administrative assistant and personnel coordinator, tes-
tified in sum as follows: After Rice reported Beatty's
complaint to Echeverria, Echeverria contacted the Com-
pany's attorney and prepared a draft of the disciplinary
letter. On 14 December the attorney came to the plant to
prepare for the hearing which was scheduled to com-
mence on Monday, 17 December. (As found, at that time
the Company knew that Domer was subpoenaed by the
General Counsel. However, it had no way of knowing
that Domer would be present at the counsel table.) The
attorney approved and Barnhart typed the letter, and
Echeverria instructed her to personally hand the letter to
Dourer. However, Barnhart opined to Echeverria that
she should give the letter to Domer on Monday, because
they were scheduled to have a Christmas party for the
employees on the evening of 14 December. Echeverria
agreed. Domer was not present at the plant from 17 De-
cember through 20 December because of his presence at
the hearing. He returned to work on Friday, 21 Decem-
ber. Barnhart was very busy that morning, as she was
finishing up her work before the holiday period. From
noon to 3:30 p.m. she attended a luncheon party for the
office personnel . She returned to the office at 3:30, when
the production employees were leaving work, and real-
ized that she still had not given the letter to Domer.
Acting on her own initiative, and without informing
Echeverria, she changed the date on the letter from 14
December to 21 December and mailed it to Dourer.
I credit the testimony of the company personnel that
the letter was prepared and typed on 14 December, and
that by that time the Company had decided to give the
letter to Domer. I have no reason to question the integri-
ty of company counsel, and I find it unlikely he would
present testimony concerning an event when he had per-
sonal knowledge that the event never occurred. Howev-
er, I do not credit the testimony of the company person-
nel to the effect that the ensuing delay took place simply
because of a series of unanticipated events. For the rea-
sons discussed, I find that Echeverria knew that Dourer
had been subpoenaed to attend the hearing, and therefore
that he did not expect that Barnhart could give the letter
to Domer on Monday. Given the sensitive nature of the
letter, I also find it unlikely that Barnhart would have
taken it upon herself to change both the date and the
means of delivering the letter, without having been so in-
structed by Echeverria. Rather it is probable that the
Company refrained from issuing the letter until after the
hearing, in order to avoid making it an issue in that hear-
ing. Therefore I am recommending that the 8(a)(4) alle-
gation of the complaint be dismissed.
CONCLUSIONS OF LAW
1. The Company is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
ACTIV INDUSTRIES
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. By interfering with, restraining, and coercing its em-
ployees in the exercise of the rights guaranteed them in
Section 7 of the Act, the Company has engaged in, and
is engaging in, unfair labor practices within the meaning
of Section 8(a)(1) of the Act.
4. By discriminatorily issuing a disciplinary warning
letter to Gary Lee Domer, thereby discouraging mem-
bership in the Union, the Company has engaged, and, is
engaging, in unfair labor practices within the meaning of
Section 8(a)(3) of the Act.
5. The General Counsel has failed to prove by a pre-
ponderance of the credible evidence that the Company
violated Section 8(a)(4) of the Act.
6. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
THE REMEDY
. Having found that the Company has violated Section
8(a)(1) and (3) of the Act, I shall recommend that it be
required to cease and desist therefrom and from any like
or related conduct, to post appropriate notices, to ex-
punge From the personnel records of Gary Lee Dames
the disciplinary warning letter which was issued to him
in December 1984, and all references thereto, to give
written notice of such expunction to Domer, and to
inform him that its unlawful conduct will not be used as
a basis for further personnel actions against him.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
edn2
ORDER
The Respondent, ACTIV Industries, Inc., Kearneys-
ville, West Virginia, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Discouraging membership in General Teamsters
and Allied Workers, Local Union No. 992, affiliated with
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, or any other
labor organization, by discriminatorily warning or threat-
ening employees with discharge or other discipline be-
cause of their union activities, including alleged "harass-
ment" of other employees, or in any other manner dis-
criminating against them with regard to their hire or
tenure of employment or any term or condition of em-
ployment.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
12 If no exceptions are flied as provided by Sec 102 46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec 102 48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses
841
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Remove from the personnel record of Gary Lee
Domer, the disciplinary warning letter which was issued
to him in December 1984, and all references thereto, and
notify him in writing that this has been done and that its
unlawful action will not be used against him in any way.
(b) Post at its Kearneysville, West Virginia plant,
copies of the attached notice marked "Appendix."13
Copies of the notice, on forms provided by the Regional
Director for Region 5, after being signed by the Re-
spondent's authorized representative, shall be posted by
the Respondent immediately upon receipt and maintained
for 60 consecutive days in conspicuous places including
all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respond-
ent to ensure that the notices are not altered, defaced, or
covered by any other material.
(c) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
13 If this Order is enforced by a judgment of a United Stales court of
appeals, the words in the notice reading "Posted by Order of the Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals enforcing an Order of the National
Labor Relations Board "
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS 130ARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us'to post and abide by this notice.
WE WILL NOT discourage membership in General
Teamsters and Allied Workers, Local Union No. 992, af-
filiated with International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America or
any other labor organization, by discriminatorily warning
or threatening you with discharge or other discipline be-
cause of your union activities, including alleged "harass-
ment" of other employees, or in any other mariner dis-
criminating against you with regard to your hire or
tenure of employment or any term or condition of em-
ployment.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act
WE WILL remove from the personnel record of Gary
Lee Domer, the disciplinary warning letter which we
issued to him in December 1984, and all references there-
to, and WE WILL notify him in writing that this has been
done and that our unlawful action will not be used
against him in any way
ACTIV INDUSTRIES, INC