Blaw-Knox Foundry & Mill Machinery

National Labor Relations Board - Board Decisions

Jan 17, 1980

247 N.L.R.B. 333 (N.L.R.B. 1980)

BLAW-KNOX FOUNDRY & MILL MACHINERY
Blaw-Knox Foundry & Mill Machinery Inc. and
Larry Jordan. Case 6-CA-10764
January 17, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
PENELLO AND TRUESDALE
On August 21, 1979, Administrative Law Judge
Robert G. Romano issued the attached Decision in
this proceeding. Thereafter, Respondent filed excep-
tions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings,' and
conclusions2 of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the Respondent, Blaw-Knox Foundry &
Mill Machinery Inc., Wheeling, West Virginia, its
officers, agents, successors, and assigns, shall take the
action set forth in the said recommended Order,
except that the attached notice is substituted for that
of the Administrative Law Judge.
' Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to overrule
an administrative law judge's resolutions with respect to credibility unless the
clear preponderance of all of the relevant evidence convinces us that the
resolutions are incorrect. Standard Dry Wall Products. Inc., 91 NLRB 544
(1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the
record and find no basis for reversing his findings.
' Since we adopt the Administrative Law Judge's finding that Larry Jordan
did not threaten to kill Foreman Leonard Lewis, we find it unnecessary to
pass on his discussion as to whether such a threat, if made, would have
resulted in Jordan's losing the protection of the Act. Further, in light of our
finding that the direct cause of Jordan's discharge was his protected concerted
activity, we find it unnecessary to pass on the Administrative Law Judge's
finding that Respondent discharged Jordan because it believed he was a
militant and would become more militant when he finished his probationary
period.
In adopting the Administrative Law Judge's Decision, Member Penello
does not rely on the broad statement in par. 9 of the analysis section that "the
application of Section 7 does not depend upon the manner or method by
which employees choose to press their dispute, but rather the nature of the
matter they are protesting." With regard to the case cited by the Administra-
tive Law Judge for that proposition, Puerto Rico Food Products Corp..
Tradewinds Food. Inc.. and Island Can Corp.. 242 NLRB 899 (1979), Member
Penello notes that he did not participate therein.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discharge any probationary
employee for engaging in protected activity in
presenting a complaint to management and in
seeking to implement terms and conditions of
employment contained in a collective-bargaining
agreement for the purpose of the mutual aid and
protection of employees.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employees
in the exercise of the rights guaranteed them in
Section 7 of the National Labor Relations Act, as
amended.
WE WILL offer Larry Jordan immediate and
full reinstatement to his former position or, if that
position no longer exists, to a substantially
equivalent position, without prejudice to seniority
or other rights and privileges he previously
enjoyed; and WE WILL make him whole for any
loss of pay which he may have suffered as a result
of the unlawful discharge action taken against
him, with interest.
BLAW-KNOX FOUNDRY & MILL MACHIN-
ERY INC.
DECISION
STATEMENT OF THE CASE
ROBERT G. ROMANO, Administrative Law Judge: This
case was heard in Wheeling, West Virginia, on June 7, 1978.
The charge was filed by individual Charging Party Larry
Jordan on December 7, 1977.' The complaint alleges that on
or about August 21 Respondent discharged employee Larry
Jordan because of his concerted activities with other employ-
ees for the purpose of mutual aid and protection and in order
to discourage such concerted activities in violation of Section
8(a)(1) and Section 2(6) and (7) of the National Labor
Relations Act, as amended. Respondent filed an answer on
March 1, 1978, denying the commission of any unfair labor
practices.
Upon the entire record, including my observation of the
demeanor of the witnesses, and after due consideration of the
briefs filed by the General Counsel-and the Company on or
about July 11, 1978, I make the following:
' All dates are in 1977 unless otherwise stated.
247 NLRB No. 36
333
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
FINDINGS OF FACT
I. JURISDICTION
The Company is a Delaware corporation with principal
office located in Pittsburgh, Pennsylvania and it is engaged
in the manufacture of steel rolls and mill machinery with
facilities, inter alia. in the States of Pennsylvania, West
Virginia, and Indiana. Solely involved in this proceeding is
Respondent's Wheeling Works Division, a comparatively
new West Virginia facility. During the 12-month period
preceding the issuance of complaint in this matter Respon-
dent shipped goods and materials valued in excess of $50,000
from its Wheeling, West Virginia, facility directly to points
located outside the State of West Virginia, and during the
same period Respondent received goods and materials
valued in excess of $50,000 for use at its Wheeling, West
Virginia, facility directly from suppliers located outside the
State of West Virginia. The complaint alleges, Respondent
admits, and I find that the Company is an employer engaged
in commerce within the meaning of Section 2(6) and (7) of
the Act. I further find that United Steel Workers of
America, AFL-CIO, is a labor organization within the
meaning of Section 2(5) of the Act and has been and is the
collective-bargaining representative of a production and
maintenance unit composed of in excess of 600 hourly
employees at the Employer's West Virginia facility.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
During the past several years Respondent has undergone a
$40 million expansion of its facilities and work force. The
Employer's Wheeling Works Division is a very large
foundry and mill facility located at Wheeling, West Virginia,
where the Employer is engaged in the casting and manufac-
ture of armored tanks. Respondent's facility is composed of
a series of large and parallel adjacent bays essentially
running from "Bay A," a scrapyard on the north end of the
facility, to final fit up and inspection "Bay M" on the
southside. Because of product weight and size and to
facilitate production, several railroad track lines run through
Respondent's facility, insofar as pertinent, essentially in a
north-south direction and perpendicular to the production
bays. Overhead cranes are utilized as well throughout the
plant.
Respondent operates three shifts. During material times
armor molding foundry foreman on the second shift was
Benny Krahel and the on third shift was Leonard Lewis. An
office utilized by Krahel and by Lewis is located at the end
of "Bay C." Larry Gribben was the third-shift armor
finishing foreman, and the latter's department head was
Harold Yensen, who worked on the day shift. Gribben's
office was located at "Bay H". Lenny Riggles was an air-arc
instructor who worked with and under the supervision of
Gribben. Plant superintendent is Thomas Jochum. Jame
Patylek and Kenneth Saunders are director and assistant
director of industrial relations, respectively. Louis Jognow is
training director.
Sharon Asher was employed by Respondent from April
1977 until February 1, 1978. Asher had received initial
training as an air-arcer from Riggles, had then worked in
cleaning and finishing under the supervision of Antone
Matasac, and more recently began working as a sand
technician in the foundry department on the second shift,
apparently under the direct supervision of Bystol but in any
event also under the supervision of Foundry Foreman
Krahel. Larry Jordan, the Charging Party herein, was hired
on June 20, initially worked under second-shift Supervisor
Robert Thompson, and more recently was working as a
rough chipper on the third shift under Gribben's supervi-
sion. Asher and Jordan are first cousins. As of August 17
Asher was a regular employee with seniority, while Jordan
was still working his 60-day probationary period.
Respondent has certain regulations governing employ-
ment. These rules have existed since 1955, are the subject of
detailed orientation lectures to new employees, and are
additionally posted throughout the plant.2 Insofar as perti-
nent the regulations provid':
The following offenses may be cause for suspension, or
suspension preliminary to discharge:
6. Insubordination (refusal or failure to perform work
assigned or to comply with instructions of supervisory
forces) or use of profane, abusive, or threatening
language toward subordinates, fellow employees, or
officials of the Company.
7. Absence from duty, including absence from work
area, without notice to, and permission from, superin-
tendent or foreman, except in case of sickness or cause
beyond the employees control of a nature that prevents
his giving notice.
12. Conduct which violates the common decency or
morality of the community (including gambling on
company property).
B. The Events
1. The Asher-Lewis incident
On Wednesday, August 17, there were apparently few if
any employees working on the second shift in the foundry,
most having left early or not having worked at all that day.
Thus, Asher recalls that there were but two sand technicians
and about three other employees working on the entire
second shift. The second shift ends and the third shift begins
at 11 p.m. It was the custom of Foreman Lewis to arrive at
work I hour early (10 p.m.), so that he could survey the
work in his shop area, which covered several bays and
review with the second-shift foreman any pertinent work
orders and instructions for his shift. Asher relates that
between 10:45 and 10:50 p.m., as she had left her key in the
sand lab, she had occasion to go back to retrieve it. There
'From the credited testimony of Patylek, Sanders, and Jognow.
334
BLAW-KNOX FOUNDRY & MILL MACHINERY
she met Foreman Lewis, whom she had only seen once
before and at the time did not know by name. Asher had
transferred to this department only I week or so earlier.
Asher relates that Lewis first asked her a question about
certain heat-treat papers which, according to Asher, being
new, she knew nothing about. As Asher picked up her key
Foreman Lewis asked Asher was she still prejudiced. Asher
asked Lewis what he meant, and Lewis said that "Pencil"
(Allen Phillips, another third-shift cleaning and finishing
foreman) had said that Asher was prejudiced. Asher
inquired of Lewis did he mean Phillips and, upon receiving
an affirmance from Lewis replied, "Oh yeah, he razzes [kids]
me about that off and on."' Asher then left the sand lab and
began walking up "Bay C." Initially, Asher did not realize
that Lewis had followed behind her. Asher testified that she
was at this time touched on her person by Foreman Lewis
twice, testifying as to circumstances which, if fully credited,
would warrant the conclusion that Asher was touched
indecently in a degrading manner and under highly provoca-
tive circumstances. Asher further testified that following
being touched the second time, after having just informed
Lewis after the first touching, "I don't play," she was just
completely shocked and stood there a moment stunned.
Recovering somewhat, Asher told Lewis that she was going
to report him. Asher testified also that foreman Lewis then
replied with an obscenity that he did not care as it was her
word against his. According to Asher, Lewis then left and
went into his office in "Bay C."
Foreman Lewis had been employed by Respondent for
some 26 months at the time of hearing, having himself been
an hourly employee for 11 months and thereafter a supervi-
sor, although a supervisor for only 4 or 5 months at the time
of the incident in question. It was Lewis' testimony that on
August 17 he had arrived at the plant at 10 p.m., as usual,
and that after changing his clothes he had made a round
through the shop, during which time he had noticed a
particular hull core casting with a different type wash and
determined to investigate it. Lewis related that he initially
checked up on it in the quality control office at the end of
the bay and saw certain papers indicating the wash related to
a heat problem. On the way back he saw employee Asher at
or about 10:35 p.m.; he had seen Asher before in other bays,
but Asher had not worked in his department until recently
though on the second (different) shift. On direct examination
Lewis testified that he asked Asher if certain records on top
of the desk in the office were for the questioned casting and
recalled that Lewis had replied yes. On cross-examination
Lewis testified that he had inquired of Asher what the wash
was that he had checked on and if she had been told about it
by her supervisor. According to Lewis, Asher replied yes,
that it was a new wash that they were using. Lewis said their
conversation took place approximately in the middle of the
portion of bay C, which is part of Asher's work area, not far
from his office in bay C. Lewis testified that that was all that
was said, and that Asher was not upset at the end of their
conversation. There is thus major conflict in these versions
with Asher's testimony presenting accusations of serious
' Asher is a black female. Foreman Lewis and Phillips are white males.
Asher explained that Phillips had joked and kidded her earlier in that fashion,
and, although Asher regarded it as a little surpnsing when Lewis mentioned it
misconduct by Foreman Lewis of a nature which on its face
would appear to be conduct arguably violative of the
Employer's own regulations 6 and 12, and with Lewis
asserting that the accusation advanced by Asher was a
wholly unfounded one. Lewis otherwise acknowledged that
there had been no prior difficulties between Asher and
himself, and, as noted, employee Asher had only recently
transferred into his department and then on a different shift.
It is observed that Lewis, who denies that any improper
conduct had earlier occurred, could otherwise offer no
explanation or suggestion of (improper) motivation on
Asher's part in the subsequent leveling of such a complaint
accusation against him, and, apart from a consideration of
any potential there may be for a later embellishment by
Asher of a lesser incident following certain later events, the
record before me has neither revealed nor suggested any
improper motivation.
2. Asher's initial individual complaint to supervision
With Lewis' departure Asher initially looked around to
see if there was anyone in the area who might have observed
them or whom she might talk to about the incident. She saw
no one. Asher testified that she was upset at the time, and
that many things were flashing through her mind. She was
aware of the Union, and her initial reaction was to look for a
union representative as she understood employees were
supposed to do when they had a problem. However, after
walking a short distance with that purpose in mind, on
further reflection, Asher decided to go back to see if there
might be someone in management in the foreman's office
besides Lewis. Asher explained that at that point her
consideration was that it was an incident of a personal
nature which she did not want exploited all over the plant.
Asher went into the office and saw Benny Krahel,
afternoon foundry foreman, alone with Lewis. Krahel has
been employed by the Employer for 37 years and has been a
supervisor for 25 years. Asher began to speak to Krahel
about the incident. Lewis immediately became upset over
Asher's doing so. While not recalling specifically all that she
had told Krahel on this occasion, Asher testified that the
substance of it was that Lewis had gotten fresh with her, and
that she did not appreciate it and did not want it to happen
again. Further, Asher did specifically recall that one inquiry
made of her by Krahel at the time was as to what she had
meant by saying that Lewis had misconducted himself in
front of her, at which point Asher demonstrated to Krahel
how Lewis had "grabbed" her. Asher testified that Krahel
registered surprise and did not say anything more. With this
Lewis became even more upset, saying that Asher was not
giving him any opportunity to speak. Asher stated, "You're
going to listen to what I have to say first," and then stated
that she was not putting in a grievance but wanted the
incident to be known and did not want it to happen again.
(Asher explains that she did not know how to handle this
matter, and that there were not that many (other) women
working in the plant at that time.) Asher told Lewis that he
could then go ahead and say what he had to say. When
as Lewis had not been there at the time of the original joking. Asher testified
that Lewis had also made the remark to her at this time in a joking manner.
335
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Lewis asked Asher what did she mean, Asher replied that
Lewis knew what she meant and then left the office.
Krahel recalled that he initially saw Lewis that evening
about 10:40 to 10:45 p.m., and they went over the work to be
done. He also recalled that employee Asher, who worked for
him, came into the office about that time and told him that
she had a complaint against one of the supervisors. Krahel
asked who she was talking about, and Asher pointed to
Lewis. Krahel asked what did he do. Krahel's recollection
was that Asher kept going on about a complaint but would
not tell him what the complaint was, and that Lewis kept
asking what Asher was putting in a complaint against him
for. After Asher left Krahel asked Lewis, "What did you
do?" and Lewis said, "That's what I want to know, what did
I do?" According to Krahel, he then went back and forgot
all about Asher's complaint at the time. Krahel's testimony
was otherwise not wholly consistent with the above. At one
point Krahel relates that Asher did not appear upset but
later acknowledged that she usually had a smile on her face
and on this occasion had appeared mad. On direct examina-
tion he initially testified that Asher had repeatedly asked
him to tell Lewis to keep to himself and not to bother her,
but on cross-examination he denied that Asher had request-
ed that Lewis keep to himself and leave her alone, then
attributing it to Jordan's speaking to Lewis in a later
conversation that evening. Krahel did not specifically deny
Asher's testimony about demonstrating the alleged miscon-
duct. Preliminarily, I do not find convincing Krahel's
recollections that there was a general or unclear complaint
registered by Asher at this time, noting such is not even
consistent with the account made by Lewis of Asher's initial
visit to their office. Rather, I am convinced and I find that
Asher registered an immediate and sufficiently clear com-
plaint to Krahel on this occasion of alleged misconduct by
Lewis against Asher's personal integrity, which if true, as
noted, would appear violative of the Employer's own
employment regulations.
Thus, Lewis relates that he was sitting at a desk in the
office with Krahel present when Asher came in. Lewis
confirms that Asher immediately announced that she wished
to register with Krahel a complaint she had against Lewis,
that Lewis had asked what she meant, and that Asher had
told Lewis she did not want Lewis to say anything to her.
Lewis testified on direct examination that Asher did say to
Krahel, "All I want is for you to keep him away from me."
Lewis said that he did not know what Asher was talking
about, and Asher told Lewis, "Don't say anything, just don't
say anything, you had better stay away from me." Even
more significantly, on cross-examination by the General
Counsel, Lewis acknowledged that after Asher had pointed
to him and said him Asher had said to Krahel, "He grabbed
me and I want you to keep him away from me, I want him to
keep his hands off me, just keep him away from me. Tell him
to keep his hands off me." According to Lewis, he told
Asher that she should see a union representative, and Asher
turned around and walked out of the office. Lewis told
Krahel that he had only talked to Asher about a wash.
' The record contains other inconsistencies in Gribben's present testimony
and prior statements in regard to either telling Asher to go to a union steward
generally or to a union steward by specific name and the details of same. All
Krahel testified that he did not at that time suggest to Asher
that she go to a union steward because he knew there was
none on the second shift, nor did Krahel corroborate Lewis
that Lewis had done so at this time.
Asher testified that when she left the office she started
looking for a union representative, still not intending to file a
grievance but to obtain advice and protection more or less
for herself because she then wanted a union representative to
also be aware of this incident. Thus, Asher, upon leaving the
foreman's office located in armored molding, "Bay C,"
walked down "Bay C" (approximately 180 feet) to certain
railroad tracks and then proceeded down the tracks in a
southerly direction a similar distance towards "Bays F and
G," armor cleaning and finishing, respectively, where she
had previously worked.
Gribben at this time was third-shift foreman of the armor
finishing department and was hired as a supervisor in
approximately June 1977, having previously been a supervi-
sor in the coal fields. Gribben supervised approximately 35
employees, including employee Larry Jordan, a probationary
employee. According to the testimony of Gribben, he
individually instructed his mployees on their arrival in his
department that they were not to leave the work area unless
they notified their foreman. However, Gribben acknowl-
edged that such instruction would not go into effect until 11
p.m. and testified that his employees would frequently arrive
at the work area at or about 10:45 p.m. and mill around and
talk there until start of their shift at 1 p.m., when they were
required to be ready to go to work. On direct examination
Gribben testified that it was a little before 11 p.m., but on
cross-examination he testified more specifically that it was
between 10:45 and 10:55 p.m., that Asher came up to him
and said that Foreman Lewis had patted her on the rear end
in the foundry. Gribben confirmed that Asher was upset at
the time. Gribben testified, at least at one point, that it was
at this time that he first told Asher to go get a union
steward. On direct examination Gribben testified that he had
on a later occasion, infra, identified the union representative
that he sent Asher to see as Bob McCauley, or one of those
people. However, in an earlier affidavit given on this matter
he had identified Clarence Walters as the union steward
whom he on first occasion told Asher to see.4 Gribben relates
that Walters regularly worked in the bay across from him.
However, on the basis of the entire record before me,
including Respondent's failure to produce record evidence
otherwise, I am convinced that Walters was on vacation that
night.
Asher's testimony in any event was that she had come
across a group of air-arcers with whom she had previously
worked,including Lenny Riggles, who had instructed her as
an air-arcer. She recalls her discussion was with Riggles and
about five to six employees but no foreman, thus not
Gribbens. Riggles inquired what was wrong. Asher an-
swered she was upset because a foreman had gotten fresh
with her. Asher, who knew that Walters had replaced a
former steward, inquired where Union Representative Wal-
ters was and was informed that he was on vacation. It is
Asher's testimony that it was at or about this point that her
need not be reported herein. It is enough to reflect these circumstances and to
observe that I conclude I can place little reliance thereon in the race of Asher's
clear denial.
336
BLAW-KNOX FOUNDRY & MILL MACHINERY
cousin Larry Jordan had arrived. Jordan asked Asher what
was going on, what was wrong. Asher estimated that the
time was then between 10:50 and 10:55 p.m. Jordan's
testimony would place it earlier, at 10:45 p.m.' Asher
testifies that because of their relationship she was able to talk
to Jordan frankly about the alleged indecent touchings. It is
also presently observed that, contrary to the uncorroborated
testimony of Lewis and the at least inconsistent recollections
of Gribben, it was Asher's testimony that at no time had any
foreman directed her to search out and use a union
representative to handle the matter for her. (Riggles did not
testify.) I credit Asher on this point, as her testimony was
consistent, plausible, and convincing. Gribben's was not.
Jordan asked Asher where the foreman was located, and
when Asher replied down in the foundry Jordan suggested
that they both go down and talk to the foreman. Asher
recalled that she mentioned to Jordan at the time that he was
on probation and told Jordan that she did not want him to
get into any trouble on her account, and that Jordan had
replied not to worry about it because he was not going to do
anything to jeopardize his job. The record warrants the
finding (for comparison with Jordan's leaving his work area)
that it was theretofore permissible for an employee to visit a
foreman in another work area on a matter of interest to the
employee, e.g., in regards to a job bidding, provided that the
employee did so on his own time.' In regard to the right of
an employee to register a complaint against a foreman,
Industrial Relations Director Patylek confirmed that in a
case where there is no steward immediately available to an
employee normally the employee will generally inform the
foreman that the employee does not agree with the action of
the foreman and then take the matter up with a union
representative later.'
Asher observed that Jordan appeared calm at the time and
agreed to Jordan's suggestion, and they then set out for the
office together. Jordan's testimony was wholly consistent
with and corroborative of Asher. Jordan also testified
candidly that Asher had not asked him to go to the office
with her on her behalf, but rather that it was he who initially
had suggested to Asher that they both go and talk to the
foreman about the incident. Jordan knew that there was no
union steward on the second shift but candidly testified that
he did not know about the third shift, as he had only a few
days earlier transferred to the third shift. Asher, however,
had earlier testified that it was an agreement by both of them
' Jordan recalled that he had spoken to Asher for about 2 to 3 minutes after
he punched in. The record reveals peradventure, and I find that Jordan had
punched in that evening at 10:42 p.m., which would place his recollection of
the initial discussion with Asher at or about 10:45 p.m. as he otherwise
testified. Jordan also testified without contradiction that it took less than a
minute to walk to Lewis' office. (The distance traversed was about 350 (feet.)
Thus, I would observe at this point that Jordan's recollection would comport
with Krahel's recollection (discussed infra ), but that even taking Asher's
more conservative recollection of their initial discussion there was time for
Jordan to proceed to the office and return before II p.m. after having the
subsequent conversation with Lewis, which the weight of the record evidence
wholly convinces me was only of a few minutes duration. There is, however,
conflict in the evidence, discussed more fully infra, as to whether the
subsequent Jordan-Lewis conversation was before or after II p.m. and,
indeed, as to whether Jordan and Asher had set out for the foreman's office
before I1 p.m.
' Contrary to Gribben's recollection, Jordan testified that Gribben had not,
prior to August 17, told him that he was not to leave the work area. However,
Jordan otherwise frankly testified that Supervisor Robert Thompson. under
to go to the office to talk to Lewis, relating that, after
observing that Jordan was calm, she had not tried to stop
Jordan and testifying (with corroboration by Jordan) that
Jordan had not even known where Lewis' office was, and
that she had had to lead him to it.
According to Lewis, about 4 or 5 minutes after Asher left
his office the first time, Lewis recalling it as about 10:50
p.m., craneman Shaefer, who works for him, came into the
office and asked what had happened, relating that Asher was
down in the shop going through the bay telling everybody
that Lewis had grabbed her. Lewis related that he just
looked at Krahel at the time. A couple of minutes later
another craneman, Ritz, came in and reported the same
thing. Lewis related that these reports upset him, but that he
felt there was nothing that he could do about it, concluding
that people are going to say what they are going to say, and
he was not going to chase Asher down through the shop.
Krahel essentially corroborated Lewis that certain employ-
ees had come into their office and reported that Asher was
down on the tracks saying that Foreman Lewis was
bothering her.
3. The Jordan-Asher complaint to Lewis
At the outset it is initially noted that there is major
conflict as to whether the Jordan-Asher confrontation with
Lewis in the latter's office occurred on Jordan's worktime at
11:05 p.m., as recalled by Lewis and Gribben, or was
completed before I 11 p.m., as testified to by Jordan and
supported by Asher. Furthermore, beyond the timing of the
office visit, the overall credibility of Jordan on the one hand
and of Lewis and Gribben on the other are particularly
involved.
Lewis related that Asher and Jordan had not come to his
office until about 15 minutes after the cranemen had
reported on Asher's talk in the shop, and Lewis recalled also
that on the arrival of Jordan and Asher his wall clock
reflected the time as being 11:05 p.m. Gribben also related
that it was about 11:05 p.m. to 11:10 p.m., though he was
not exactly sure of the time, that air-arc instructor Riggles
reportedly came up to him and told him that he better get
over to the foundry, that Asher had just come over and got
Larry Jordan, that they were headed over to the foundry,
and that Jordan looked pretty mad. Gribben also related
that he felt it had to be after I 11 p.m. because he had started
whom he initially began work, had done so, and also that he had attended
orientation and was aware of Respondent's employment regulations in that
regard. Indeed, Jordan acknowledged that he was specifically instructed by
Thompson that he should be sure and check with his supervisor before leaving
the work area. However, Jordan also testified that after he had completed 30
days he had then figured that he had the other 30 days made and would have
to eventually bid on a job. He had then inquired of Thompson and was
advised by Thompson that he could travel about the plant to learn about other
jobs in the foundry provided he did it on his own time by coming in early or
did so on his break. Jordan testified without contradiction that he thereafter
had done so, including even coming in on nights on his own time to observe
some of the jobs. As noted earlier, Gribben also acknowledged that his
restriction on an employee's leaving his work area without permission did not
apply to his employees before their 11 p.m. starting time; thus, testimony of
foreman implementation of the regulation is compatible with that of Jognow's
testimony.
' Patylek also noted that an employee has 45 days to consider whether a
formal grievance should be thereafter filed and pursued.
337
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to assign the work to his employees, that he had already
assigned work to Jordan and certain others, and that union
policy prevented his making such assignments to employees
before II p.m.
Jordan testified that it was 10:45 p.m. when he talked to
Asher, that it took less than I minute to walk to Lewis'
office, and that he and Gribben had returned by 3 minutes to
11 p.m. Jordan testified that he was also sure he had
returned to his own work area before II p.m., because he
specifically recalled hearing the 11 p.m. blast while he was
back at his own work station. Asher was not able to testify
what time it was that she and Jordan had left Lewis' office,
though she estimated the time as between 10:50 and 10:55
p.m. when she had initially spoken to Jordan. However,
Asher testified that she knew that when she and Jordan left
to go to the office of Foreman Lewis that the employees in
cleaning and finishing (contrary to Gribben) were not at
work but were still standing around. Asher also effectively
testified that it would take less than a minute to walk from
there to the office, and that the meeting in the office had
lasted no more than a couple of minutes. Lewis confirmed
that the meeting lasting 2 minutes and also acknowledged
that he did not recall hearing the plant Il p.m. blast; and the
record also reveals that there were one to two cranemen in
his office at the time Asher and Jordan had arrived who had
not received their work assignment. In determining this
matter I note initially as being significant that a pre-I 1 p.m.
visit by Jordan and Asher to the foreman's office is wholly
compatible temporally with the timing of previous findings
of prior events determined on the basis of multiple sources
and consistencies. Especially noteworthy on this doubly
significant issue of the timing of the visit was Foreman
Krahel's testimony that he usually leaves work at 10:55 p.m.,
and that it was about 8 to 12 minutes before 11 p.m. that
Asher and Jordan had entered the foreman's office. Thus,
Krahel's recollection of the timing of the employees' arrival
which quite significantly involved the feature of his normal
practice in departing from the plant at 10:55 p.m. supports
Jordan and Asher, not Lewis or Gribben. I credit Asher and
Jordan, and I find that the Jordan-Asher-Lewis confronta-
tion was not only initiated but was also completed before 11
p.m.
From "Bay F" Gribben observed Jordan and Asher on the
way to "Bay C," and Gribben then ran after them, testifying
that he arrived at the foreman's office shortly after the
employees did. Upon the arrival at the 14 by 14 foot
forman's office Jordan and Asher entered and found Lewis
and Krahel seated at their desks. Apparently one or more
other employees or supervisors who did not testify were also
present. Jordan asked Asher which one it was, and Asher
pointed to Lewis. According to Jordan, Lewis started to
stand but then came forward in his chair and said that Asher
did not have any proof or witness about what happened, it
was his word against her word. Jordan asked Lewis how he
knew what Jordan had come in there for, and Lewis replied
that Asher had mentioned it earlier to someone else. Jordan
told Lewis that he was a foreman and should not even
consider doing anything like that. Lewis said it was her word
against his, and that if she wanted to go into the office with
it they could. Jordan replied that was between Asher and
him. In contrast, Lewis related that, after Asher had
identified Lewis, Jordan came over to Lewis at his desk and
stated to Lewis, "She said you grabbed her." Lewis replied
that he did not touch Asher. Jordan repeated, "She said you
did, and I believe her." Lewis said, "Well, I didn't touch
her." Asher did not recall all the details of this conversation,
but she did recall that during the conversation Jordan told
Lewis, "you don't put your hands on her no more." In
comparison it is noteworthy that Krahel's version was that
Jordan did tell Lewis, "don't bother her no more, don't
touch her no more, leave her alone." Asher recalled further
that Lewis then became upset, his face turned red, and Lewis
began yelling, "What is this, what is going on with you
people?" repeating that he had not done anything to Asher.
According to Jordan, Lewis asked Jordan, "What are you
going to do about it anyway?," and he first told Lewis, "If
you do it again, we'll take some sort of action, or we'll take
the steps necessary to get something done about it." Jordan
related that he was aware Gribben had entered the room
about this time. According to Jordan, Lewis asked him
again, but this time in a different way, what was he going to
do about it anyway. Jordan testified that he replied "Just
don't touch her again or we'll find out"; and recalled that at
that point his foreman, Gribben, touched him on the
shoulder, and they then left. Asher corroborated Jordan in
recalling that Lewis had asked Jordan what he was going to
do about it anyway, and essentially confirmed that Jordan
said, "Just don't put your hands on her anymore or you'll
see, or you'll find out"; that Gribben at that point said,
"Come on Larry, let's go"; and that Jordan had promptly
left.
In contrast, it was Lewis' testimony that, after Jordan had
said he believed Asher, and Lewis had again denied that he
had touched Asher, Jordan had started yelling at Lewis, and
while pointing a finger in the face of Lewis had stated to
Lewis, "If you ever touch her again, I'm going to kill you. "
[Emphasis supplied.] Lewis confirmed that by that time
Gribben had entered the room. Lewis expanded on such
testimony, relating that Jordan had cursed and yelled at him
several times in their conversation saying that he was going
to kill Lewis more than one time and was going to break his
neck, and that Jordan had used much profanity in doing so.
However, the General Counsel established on cross-exami-
nation that in a prior affidavit Lewis had related only one
threat to kill and had made mention of no profanity or
cursing by Jordan at the time. Krahel, on direct examina-
tion, recalled that Jordan had generally raised hell and
testified initially that Jordan had done a little swearing and
had used foul language, although later on cross-examination
he testified that Jordan was doing a lot of shouting and using
foul language. However, although cross-examined extensive-
ly, Krahel was unable to recall any specific instance of
Jordan's alleged cursing of Lewis or use of foul language
towards Lewis. Moreover, Krahel's testimony that the
threatening had not started until Gribben had arrived in the
office must again be regarded as especially revealing inas-
much as Gribben testified to only one threat by Jordan in the
office, discussed infra, at which time Gribben confirmed he
immediately got Jordan out of the office. Gribben also had
no recollection of any use of profanity by Jordan at all.
Jordan denied that he cursed Lewis. Asher testified in
corroboration of Jordan that not only did Jordan not curse
338
BLAW-KNOX FOUNDRY & MILL MACHINERY
Lewis in the office, but that Jordan does not curse at all.
Again, the testimony of Jordan (and the corroboration of
Asher) in denial of cursing and utterance of multiple threats
was consistent, while the testimony of Lewis in regard to
multiple threats, cursings, and profanity use was inconsistent
in varying degrees with and/or unconvincingly supported by
the testimonies of Krahel or Gribben. Accordingly, I do not
credit Lewis either as to Jordan's use of extensive profanity
(or Krahel otherwise to Jordan's lesser swearing or use of
foul language) nor as to Lewis' assertions that multiple
threats were uttered by Jordan in the office. Further, such
inconsistencies make even the probability of a threat to kill
itself somewhat suspect.
The testimony of Lewis that Jordan had said to Lewis
towards the end of their conversation, "If you ever touch her
again, I'm going to kill you," was corroborated specifically
by Krahel on direct examination, although Krahel on cross-
examination recalled it somewhat differently as, "If you ever
put your hands on her again, I'll kill you." Nonetheless,
Gribben also related that he observed Lewis at the time
sitting in his chair but leaning back with Jordan pointing a
finger in his face saying, if Lewis ever touched Sharon Asher
again, he was going to kill him. Thus, these three foremen
are on this record essentially mutually consistent and
corroborative that a specific threat to kill Lewis was uttered
by Jordan. On the other hand, prior inconsistencies noted do
have tendency to make consistency as to the threat to kill
suspect. For, in contrast, Jordan, corroborated by Asher,
denied that he ever threatened to kill Lewis in the office, and
while Jordan admits remarking to Lewis, "You'll find out"
or "you'll see what we would do," Jordan testified that he
had never specified what the consequences might be to Lewis
were Lewis to again improperly touch Asher. In short,
Lewis, corroborated by Krahel and Gribben, testified that
Jordan uttered a threat to kill Lewis if Lewis again touched
Asher improperl; while Jordan, corroborated by Asher,
denied any threat to kill Lewis was uttered by Jordan but
seemingly acknowledged that a certain remark was made
which if construable as of a threatening nature was also of an
unspecified nature.
It is observed that this major factual conflict is not on a
minor issue, for it would seem to readily appear that there is
a significant difference between a response arguably only of a
generally threatening overtone, particularly if to be viewed
as resulting from provoking circumstances, as compared
with the similar evaluation which must be made of a threat
to kill under the same circumstances, even were it to be
successfully argued that the latter threat was one reasonably
to be viewed under all the circumstances, e.g., of provoca-
tion, as one never intended for an actual fulfillment.
Resolution of this major disputation of fact is reserved for
full reflection upon all the evidence which may even further
assist in the resolution of the factual issue on the basis of
inherent probabilities.
Lewis related that he was very scared because of this
threat, and Krahel related that he left the room at that time
just before Gribben and Jordan went out the door because he
' ribben also testified that such procedure is one regularly followed by the
Employer's foremen to avoid confrontation with an employee by involving the
Union, which serves as a cushion in any discussion of complaint between
foreman and employee.
was scared, although it must be observed that it was then
also Krahel's regular quitting time. Gribben also initially
testified that he had not heard Lewis say anything to Jordan
because Lewis was too scared to say anything. However, the
General Counsel established on cross-examination that in an
earlier affidavit Gribben had related that he had also heard
Lewis deny an accusation of misconduct, had heard Lewis
tell Jordan and Asher that if they had any problem they
should get a union representative, and had heard Lewis say
that he would be glad to discuss this matter through proper
channels. Lewis also confirmed herein that after the alleged
threat to kill above was made he had suggested that Jordan
see a grievance man or union official.'
According to Gribben, Jordan was extremely upset at the
time. Gribben related that he grabbed Jordan's arm to get
him outside the office to try to get the atmosphere cooled
down a little bit, and he recalled that when he had touched
Jordan's shoulder he found it was tense. Gribben asserts he
had one thing in mind, to get Jordan out of the office. This
was no time to get a fight going, and he did not want an
interdepartmental conflict of any problem. Jordan denies
that he had become agitate; in the office and denies that he
had even raised his voice. However, I am wholly convinced
by the inherent probabilities of such a confrontation, as well
as the testimony of witnesses that they in fact did so, that it
is more probable than not that the participants did raise
their voices; viz, that Foreman Lewis did so following
Jordan's credited admonishment to Lewis that he was not to
put his hands on Asher again, and that Jordan did so also
with the credited Lewis' provocative inquiry of Jordan as to
what Jordan was going to do about it anyway, particularly in
view of Jordan's acknowledgment to Foreman Phillips later
that evening that he had talked to Lewis the way Lewis had
talked to him. However, a finding that voices were raised
does not automatically carry with it finding that a specific
threat to kill was made, particularly where other intemper-
ate remarks are acknowledged and are themselves plausible.
Asher testified without contradiction that immediately
after they left the office Asher asked Gribben whether
Jordan was going to get into any type of trouble. Asher
explained that she made the inquiry because of her concern
for Jordan's approaching Foreman Lewis and telling Lewis
to keep his hands off her. I note such concern would be
equally compatible over intemperate remarks by Jordan.
Asher, essentially corroborated by Jordan, testified that
Gribben replied on that occasion that he was Jordan's
foreman and not to worry about anything. Asher related also
that Gribben and Jordan talked additionally, but she did not
overhear that conversation. Asher testified without contra-
diction that she subsequently spoke to her former foreman,
Antone Matasac, who asked Asher if she wanted him to talk
to Lewis. Asher at that time replied no and requested that he
just let it ride. Asher thereupon left work, notably without
contacting any union representative.
Gribben testified that after he got Jordan and Asher9 out
of the office he then lectured Jordan outside Lewis' office
and on the way back to their work area. Thus, Gribben
It was Gribben's recollection that he first told Asher she had no business
getting Jordan to go over there as he had earlier told her to get a union
steward, and he testified that he at this time told her to go get Robert
McCauley (a steward on the third shift) over in "Bay J" if she had a problem.
(Continued)
339
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
recalled he told jordan that: "We don't leave departments,
it's against regulations," that if Jordan ever had a problem
he better go talk to his supervisor, that Jordan could get
fired for threatening people, that you never threaten a
foreman, and that you cannot threaten another employee or
foreman. Gribben related that he also told Jordan that he
would probably be laid off because of this incident, that
being a probationary employee most of these things go
against his work record, and that for leaving his work area
and threatening a foreman he would probably get laid off or
terminated. Gribben told Jordan that, maybe if Jordan
would put out a little bit of effort, "we can kind of cover it
over, or something." Gribben then told Jordan that he
should go back to work and that he was not to leave the
department unless Gribben was notified. At one point on
cross-examination Gribben also expanded on his testimony
on direct that Jordan had threatened to kill Lewis by
testifying that outside the office Jordan had repeated to
Gribben that if Lewis "ever touches her again, I'll kill him,"
but after further cross-examination he wholly retracted that
testimony."' Gribben testified that Jordan was an exception-
ally good worker, that he had no problem with Jordan
before, afterwards, or even that night, and that he had been
hopeful to the end that Jordan would not get discharged
because he did not get many good workers like Jordan.
Jordan testifies that on that occasion Gribben did not
warn him that he had violated any company rule, e.g.,
leaving his work area, and did not tell him that he was
risking discharge by what he had done. Rather, Jordan
testifies, that on that occasion Gribben told him that he did
not see how Jordan kept his control, and that if it had been
Gribben he would have hit the guy. Jordan testified that he
told Gribben that he did not go over there to hit the man;
that he just went over there to talk to him. According to
Jordan, they arrived at the work area about 2 to 3 minutes to
II p.m., and Gribben then assigned him his work. Jordan
also testified that he was sure that he had started to work on
time that evening because he recalled that the plant's II p.m.
blast was heard by him after he was back in his work area.
Furthermore, Jordan denied that in their walk back to the
work area that Gribben had mentioned anything to him
about being out of his assigned work area or mentioned
anything to him at that time about having threatened Lewis
in any manner. As noted earlier, I have already credited the
testimony of Jordan (supported by Asher and Krahel),
concluding, contrary to Gribben and indeed contrary to his
report of the incident allegedly made that very evening, that
this incident occurred before I I p.m. To such must now be
The retraction developed as follows. Gribben had first testified that
outside the office Jordan had said to him if he (Lewis) "ever touches her
again. I'll kill him." When it was brought to his attention that in a prior
written report allegedly written the night of the incident he had reported only
that Jordan said he was going to do physical harm to Lewis if he tLewis) ever
looked at Sharon (Asher) wrong again. Gribben then repeated that Jordan
had instead said he would kill him, and that he had soft-soaped the threat to
save Jordan. General Counsel then established that in a subsequent affidavit
(after the discharge) he had stated that Jordan had said to Gribben outside the
office that if Lewis ever even looked at Asher he would smash Lewis' face in.
There was no relation of a threat to kill in the affidavit. Under those
circumstances Gribben retracted the above threat to kill outside the office,
explaining it as possibly a carryover from the office. I place no reliance on it,
nor do I on any other suggested threat made outside the office in view of
Jordan's denials infra.
" The record reveals that Phillips had also arrived at Lewis' office at the
time of the commotion. Although Phillips did not testify. it may he reasonably
added the questionable recollection of any threat occurring
outside the office, denial of which by Jordan is also credited
for reasons above delineated. It follows, of course, that
Gribben's relations of prior assignment of work to Jordan
and Jordan's departure after 11 p.m., indeed between 11:05
and 11:10 p.m., are also to be rejected as at best misrecollec-
tions. Before resolving final credibility issues of the remain-
ing divergent versions of the lecture on a threat to a foreman
and probable loss of job or of expressed admiration on
control exercised, it continues to be helpful to consider
certain subsequent events which relate thereto and then to
evaluate the probabilities involved.
4. Subsequent incidents
a. Foremen Phillips and Lewis' approach of Jordan
Later that evening after the Asher-Jordan-Lewis confron-
tation Lewis called his superior, Superintendent Jochum,
and asked what should be done about the threat, as he had
never been threatened before. Lewis related that he did not
know what to do at the time and was shook up. Lewis also
reported to Jochum that he had been accused of "grabbing"
Asher, and that she and another employee had then come to
the office and there was a big commotion. According to
Lewis, Jochum told him that they would discuss it further in
the morning. Lewis testified that it was following the phone
call conversation with Jochum that at 11:30 p.m. he and
"Pencil" Phillips, another supervisor (in the armor cleaning
and finishing department) went over and spoke to Jordan.'
Lewis testified that on this occasion he asked Jordan why
Jordan had come into the office like that and threatened
him, and that Jordan replied, "Just leave him alone." Lewis
stated, "Well, if you ever have any trouble like that you
should have a union official with you, it makes things a lot
easier and there wouldn't be any trouble." According to
Lewis, Jordan just pointed in the direction of Lewis' bay and
told him to go back over where he belonged. On cross-
examination Lewis also related that in asking Jordan why he
came over to his office he again told Jordan that he did not
touch Asher. However, Lewis asserts that the reason he had
gone over to Jordan was because he thought they could talk
it out, rather than Lewis' leaving the plant and having
something happen to him, and that he had the other
supervisor with him as a witness. Lewis related that Jordan
again pointed to his bay, and it was clear to Lewis that
Jordan did not want to talk to him. As noted, Phillips did
inferred that he was aware of the Jordan-Lewis confrontation at or shortly
after its occurrence. Jordan would place the visit of Phillips and Lewis to his
work area about 2 hours later. However. Jordan did testify that in the interim
that Phillips had approached him twice, first to ask if he wanted to work
overtime and a second time to inquire if Jordan wanted to work weekends,
and on each occasion Jordan agreed to do. Although Jordan had been asked
to work overtime before he regarded Phillips' inquiries as somewhat unusual
because Phillips had never come over to his work area before. it was the first
time that Phillips had ever asked him to work overtime, and Phillips had
asked about overtime earlier than any foreman had ever asked before. Jordan
additionally testified that he had refused to work overtime on a Saturday and
Sunday fine time before for a foreman other than Gribben and had later
learned that that refusal had been marked down on his work record. which
testimony Respondent has not contested. Although the circumstances are
suspicious in view of Jordan's recent transfer, in my view they are not
persuasive of any effort at entrapment by Phillips.
340
BLAW-KNOX FOUNDRY & MILL MACHINERY
not testify and thus did not offer corroboration of Lewis in
any of the above particulars.
According to Jordan. it was about a few hours after the
incident that Foreman Lewis and Phillips came over to him
in his work area, and Phillips initially asked Jordan did he
know that he could be fired for talking back to a foreman.
Jordan replied that he had not talked back, they had had a
discussion, and that he had not yelled or cursed and had
talked to Lewis the way Lewis talked to him. Lewis said that
they could go in the office and straighten the whole thing
out. Jordan replied that was up to Lewis and Asher. With
that, Lewis told him not to ever come back to his work area
again. Jordan testified that he replied, "Well if you never
touch her, I won't have to come over to your area again."
Jordan also testified that he had never seen Lewis in his
work area before then, nor had he seen Phillips in his area
before that evening.
Jordan's account must be again viewed as not only
consistent with but a wholly plausible development from his
version of the prior incidents. Jordan's testimony essentially
confirms Lewis that a request was made by Lewis at this
time for them to talk the matter out. That development
appears much more congruous with Jordan's version of a
prior remark with at worst (from his vantage point) general
threatening overtones rather than the foremen's recollections
of an explicit threat to kill. Jordan's testimony also appears
the more credible for its being in nature an admission against
interest in its suggestion of a continued intent to pursue the
matter (on Jordan's part) in Lewis' work area should Jordan
become aware of any additional incident of Asher's being
touched offensively by Lewis. For this very reason it must be
regarded as having also potential significant bearing in the
evaluation of the recollections of Gribben as to subjects
lectured on that early occasion, since it is difficult to accept
that Jordan, who unquestionably on this record was an
exceptional worker, would have in that manner answered
Lewis had he but shortly earlier in fact been lectured by
Gribben that his prior remarks were an impermissible threat
for which it was likely he would lose his job and on which,
according to Gribben, he had appeared noticeably thought-
ful. Of course, Jordan has denied the above factual premises
of Gribben. It is further observed that the conduct of Jordan
at this time in responding to Lewis' offer to talk the matter
out is one wholly congruous with an employee believing
himself secure at the time because of the full backing of his
own supervisor and conduct simultaneously seemingly whol-
ly incongruous with an employee reasonably anticipating
imminent discharge (from Gribben's version of his lecture of
Jordan on such matters), which undoubtedly would arise
upon complaint from the very foreman then offering to talk
over the matter and resolve it. Thus, it would seem that had
Jordan been actually facing at that time the prospect of
likely discharge for an earlier threat to kill this supervisor,
on warning of his own supervisor, he would have exhibited
much more interest to pursue the prospects of any discussion
to resolve his personal problem with Lewis, or at least to
have contacted Gribben for guidance thereon, which the
' Sanders related that he did so txcause he watled an unbiased report.
While not perrfectly clear whether Sanders so instructed Tuel immediately, the
record is clear that at the time Sanders did so instruct Tuel that Sanders was
record reveals hc did not do. Lewis confirms the offlr to
discuss was made. Thus, Jordan's actions indicate the
probability that Jordan did not consider himself in jeopardy
at the time.
b. T happenligs oj .4ugust 18
On the following morning Lewis talked with his superior.
Superintendent Jochum. and asked what should be done as
he had never been threatened before. According to Lewis.
Jochum told him that Jordan should be discharged. explain-
ing to Lewis that he did not want any hourly workers
threatening supervisors, supervisors threatening hourly em-
ployees, hourly employees thrcatening hourly employees, or
supervisors threatening supervisors. However, with regard
to the Asher matter. Jochuml told Lewis that they would
have to talk this thing out and probably meet with the
Union.
It was Krahel's testimony that on the following morning.
August 18, he also had spoken to Jochum and had reported
Asher's complaint and Jordan and Asher's subsequent visit
to the office, and specifically that he had reported to Jochum
that when Gribben grabbed Jordan by the arm Jordan had
told Lewis, "If you touch her again. I'll kill you." As noted.
Jochum did not testify. It is observed that Jordan was not
discharged for another 2 weeks, although it appears from
Respondent's evidence in this record that a threat to kill a
foreman was reported to the plant superintendent by the
foreman involved, and that the incident was corroborated by
the second foreman in attendance and also in writing by the
foreman of the employee who allegedly had threatened the
foreman, infra.
Kenneth Sanders, assistant director of industrial relations,
related that on August 1 he also received a call from John
Tuel, apparently a bookkeeping clerk, advising Sanders of
the Asher incident and asking Sanders to look into it. Tuel
raised a question concerning the probationary status of
Jordan, relating also that Jordan was accused of threatening
a foreman. According to Sanders, he treated the two
incidents separately. He told Tuel that he wanted the
problem verified and that he wanted a written statement
from Gribben.' Sanders recalled that he also received a
contact from Lewis that day, and that Lewis was shook and
questioning what he should do. According to Sanders, Lewis
made a report of the incidents to him: viz, that he (Lewis)
had initially asked Asher a question, and that Asher later
came in and accused him of certain improper touchings.
(Again, in passing, I would note that on the basis of Sanders'
relation of this early report he received from Lewis in regard
to the nature of the accusation that Asher had raised any
consideration that there might have been some interim
embellishment on the part of Asher occasioned by subse-
quent events involving her cousin Jordan is convincingly
removed. I specifically find there was none.) Lewis denied
the accusation of Asher before Sanders. Sanders related that
Lewis then reported to him that Jordan and Asher had come
back later, and that Jordan had threatened to kill him.
aware that Gribben had not been preent fr the entire Jordan-Lewis
conversation. No explanlation is offered hy a written statement was no
prepared hy or requesied of Krahel. who was present for the entire incident.
341
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Sanders testified that he told Lewis that, if anything was to
be done on the Asher incident, let Asher push it, explaining
that at this time it was only a complaint and not a grievance.
Sanders instructed Lewis that so long as it was a complaint
that he was to let the department supervisors work on it and
correct any problems. Lewis confirmed that he spoke with
Sanders, but recalls it as being I day later. Under the
circumstances Lewis recites, I conclude that it is more likely
that Lewis spoke to Sanders on August 19.
James Patylek, director of industrial relations, testified
that he has occupied that position at the Employer's
Wheeling Works for 2 years and 8 months, ever since that
division opened. Patylek related that he also heard of the
incident the following day although from a supervisor whom
he was unable to recall. According to Patylek, he summoned
Sanders to discuss the matter. Sanders reported to him that
Asher had alleged that Lewis had improperly approached
her, and that Lewis alleged that Jordan had later threatened
Lewis' life. According to Patylek, he then directed Sanders
tht he was to substantiate the facts, and if the facts were
established to be that Jordan had threatened the life of Lewis
he was to be terminated. Concerning Asher, Patylek's
direction to Sanders was that he should take appropriate
action. At first Patylek related that this was a direction as to
Jordan if certain facts were established, and thus the decision
on discharge of Jordan was taken out of Sanders' hands.
However, Patylek later clarified that position to the extent
that he subsequently testified that Sanders would have
discretion to come back to him if he felt that discharge
action was too severe." (It is observed at this point as
somewhat strange that Sanders had earlier made no refer-
ence in his testimony to any preliminary discussions with or
receiving any such initial direction from Patylek as to these
incidents as of August 18, and, indeed, did not testify as to
them at all.) Patylek also testified specifically that he did not
discuss the matter with either Jochum or Yensen but rather
instructed Sanders to handle it. Sanders' failure to mention
Patylek's discussion and direction raises a question as to
whether their discussion was immediately after the incident's
occurrence.
Gribben testified that a foreman (indeed all foremen
involved) is required to write up a complete description of an
incident, whether the incident be an accident or an incident
involving a potential union grievance. This is procedure.
According to Gribben, whenever they have anything that is
out of the ordinary or any problems in their area, even if it is
another person coming from another area into their depart-
ment that may cause a problem in the department, they have
to write up a report and hand it in in the morning. This is
done by him so that Yensen has the report in front of him in
the case of any required discussion with the Union. On
cross-examination Gribben testified that he would assume
that Lewis also had to write up the same thing that he did,
" Patylek explained as background that this Employer had had very serious
problems of plant disorders in its East Chicago plant during similar plant and
work force expansion several years ago when, due to employer mistaken
leniency with insubordinate employees, plant discipline got out of hand.
According to Patylek, there were resultingly significant instances of employee
threats, violence, imprisonments, etc. He was directly involved in the
investigations. Patylek asserts that he was with firm resolve there would be no
repetition of that situation at the Wheeling Works. However, Patylek also
acknowledged that the Jordan incident was the first incident of an alleged
that any involved company people would have to write one
up, and that he had to write up one because Jordan was his
employee. Gribben retracted the foregoing somewhat to the
extent of asserting that he was not sure that Lewis would
write up the Jordan incident. Gribben testified that Lewis
would have to write up the Asher incident since that was
considered a different incident involving a different situa-
tion. Gribben then also specifically affirmed his understand-
ing that if an employee was insubordinate to him it would be
his job to write up that incident." Yet, the record before me
reveals that Lewis and Krahel testified that they did not
write up the incidents of August 17 at all.
Gribben also testified that he had made a written report of
the incident by the I a.m. break of the same shift because he
had to turn it in to Jochum before the latter arrived in the
morning. (Gribben's third shift that evening ran from I I
p.m. August 17 to 7 a.m. August 18.) According to Gribben,
he had informed Jordan on the way back from Lewis' office
that he would have to write the incident up. However,
Gribben also related that he came back to Jordan later and
told Jordan that he would do all he possibly could to keep
Jordan. Gribben related on direct examination that he
thereafter clipped the report seemingly to a department file
for Jochum (though on cross-examination seemingly relating
it was clipped to Jordan's file). Gribben reported the
incident on the following morning to his own department
supervisor, Harold Yensen, and advised Yensen that he had
written the incident up. Gribben also told Yensen that
Jordan was one of his best chippers, and that if there was
anything they could do to overcome this situation he would
like to keep Jordan.
Despite the above-indicated direction of Patylek and
indicated immediate awareness by management (Jochum,
Yensen, and Sanders) on August 18 that Jordan had
allegedly threatened to kill Lewis, Jordan was not fired until
August 31. Sanders nonetheless asserts there was no indeci-
sion in the subsequent discharge of Jordan, and Sanders
would explain the delay in the discharge of Jordan as just a
communication and training problem. Thus, according to
Sanders, Lewis was a new foreman. However, Sanders
testified that the correct procedure in handling such a threat
would have been for Lewis to have gotten another supervisor
and then discussed the incident with the Union, and if he
was going to fire Jordan to have fired him then."
As earlier noted, on the morning of August 18, according
to Lewis, Jochum told him that Jordan should be dis-
charged. Lewis relates, however, that when he went to work
that next evening he spoke to Gribben and asked if any
disciplinary action had been taken. Gribben replied that no
action had been taken, and that Jordan was still working for
him. Lewis related that it was a day or so later that he called
Sanders and spoke to Sanders about the incident. He asked
Sanders why Jordan had not been discharged. According to
threat to a foreman reported to him at the Wheeling plant and as noted above
that Sanders had certain discretions.
" Gribben testified that he has previously written up employees from other
departments who came into his work area in the sense of issuing written
warnings to them for not wearing safety glasses or for being out of their work
areas.
" Of course, Krahel was present for the entire alleged incident, and a
discussion with the Union would appear to have been easily much earlier
arranged than 2 weeks later.
342
BLAW-KNOX FOUNDRY & MILL MACHINERY
Lewis, Sanders told him that they were checking on things
because Lewis was a new supervisor. Sanders asked Lewis if
he had written his statement, and Lewis replied no. Sanders
then told Lewis that Gribben would write the statement.
Lewis said that Sanders inquired whether Jordan was still
working.
According to Jordan, it was a couple of days after the
incident that Gribben came up to him in his work area and
asked him if anyone from the main office had asked him
anything about the incident. Jordan said no. Gribben told
Jordan that Sharon Asher had initiated some action about it
in the main office, and that Gribben told Jordan not to
worry about it and that he would take care of it. Gribben did
not contradict this testimony. However, on the record before
me there is no warrant to conclude that Asher had prior to
Jordan's discharge pushed her complaint, discussed infra.
Lewis testified that it was about a week later (about
August 25) that Gribben had reported to him that he had
written the statement and showed the statement to him.
Gribben asked Lewis if he had also had to write a statement,
and Lewis replied "No." (Thus, Gribben would have known
that he Lewis did not write one.) According to Lewis,
Gribben also asked Lewis to read Gribben's statement. On
direct examination Gribben initially was not sure whether he
had shown the report to Lewis; then Gribben related he had
not shown his writeup to Lewis, that rather Lewis had tried
to see it, and finally suggested that someone else, e.g.,
Phillips, may have gotten the report from Lewis. Lewis'
version appears the more likely. In this instance I credit
Lewis, construing it as an admission against interest that he
was earlier aware of the content of the report and consider-
ing it in the light of Gribben's unconvincing testimony
thereon. Then problemsome, however, is the testimony of
Lewis on cross-examination that Gribben had told him that
Jordan was a good worker and that he wanted to try and
keep him if he could as is Gribben's testimony in that regard
that Lewis was peeved with Gribben for taking Jordan's side.
I presently observe that there is nothing in the report (more
fully discussed infra) which Gribben related he wrote shortly
after the incident that would occasion continued petulance
by Lewis after Lewis read it, for the report recites, inter alia,
not only that Jordan told Lewis "that he would kill him if he
ever touched Sharon again"; but also that Jordan had then
outside the office also stated to Gribben "that he was going
to do physical harm to Lewis if he ever looked at Sharon
wrong again." In short, inconsistencies remain.
5. The discharge of Larry Jordan
Sanders relates that it was sometime prior to August 31
that he had called Tuel and inquired where the written
statement from Gribben was. According to Sanders, Tuel
replied that it was in the plant mail to him. Sanders told Tuel
that, if he, Sanders, could be guaranteed that it was in the
mail, he would make the decision at that time. Sanders
" The pertinent statement of Grbben (undated), as testified by Gribben to
be a statement he wrote up on the very shift on which the incident had
occurred, provided, in pertinent part:
I then went right over to the foundry to get Larry back to his work area.
When I entered the office in the foundry Larry was telling Leonard Lewis
related that he then called Yensen, spoke a few minutes, and
a decision was made to discharge Jordan.
Gribben testified that on August 30 John Tuel, bookkeep-
er, contacted Gribben and requested a writeup. Gribben
related that he retrieved the report from the file and put it on
Yensen's desk or that he gave it to Tuel, who put it on the
desk for Yensen. In that respect the General Counsel offered
in evidence a written record relating to verbal instructions
addressed to Larry Gribben from John Tuel dated August
30 which provided:
We need a written statement from you that you heard
Larry Jordan threaten Leonard Lewis. If you can verify
this Larry Jordan will be discharged on 8/31/77. If you
cannot verify this fact, he will still be discharged on the
complaint of Leonard Lewis. Have Larry Jordan in the
office at 6:45 a.m. 8-31-77 to see H. Yensen.
Whatever might be properly concluded on this record as
to whether the alleged written report of Gribben was
available to Tuel, who did not testify, it is reasonably clear
that Tuel would not be reporting to Sanders prior to August
31 that the report was in th2 plant mail in view of his above
message to Gribben, which the record reveals did not come
to Gribben's attention until at the earliest 11 p.m. on August
30.
Jordan related that he was discharged on August 31.
According to Jordan, he had been asking Gribben all that
week how many days he had remaining until he would be in
the Union, knowing that he needed 60 working days to
complete his probationary period. On August 30 he asked
Gribben would he check again if Jordan remained after
work. On August 31 Jordan had worked the midnight shift
the day before and at the end of the shift went to Gribben.
He waited for Gribben for 45 minutes. Gribben came out of
the office, got a shop steward from the day shift, and they all
went to the office.
There were a lot of foremen in the office. Gribben told
Jordan that he was being fired for the incident of August 17.
Yensen was present and showed Jordan certain papers.
Jordan related that they were to the effect that he was being
fired for threatening to kill a foreman. Then Jordan was
handed some additional white papers which were to the
effect that Gribben had heard him say the threat. Jordan
then asked Gribben did he hear the threat to kill, and
Gribben replied "Yes.""
Jordan asked for a copy of the papers, but he was denied
them on the claim they were company property. Jordan was
told that he was not being fired for anything else, that he was
a good worker, and that the Company would give him a
good recommendation. According to Jordan, he denied that
he had made the threat to kill Lewis but was informed by
Yensen that there was to be no discussion about the matter;
he was just to hand on his stuff and turn in his key. As
noted, a steward was also present at this meeting. According
to Jordan, the steward said nothing in his behalf. When told
that it was all over Jordan inquired of the steward if he was
that he would kill him if he ever touched Sharon again and Lewis was
denying that he had did anything and he then told Larry & Sharon that if
they had any problems that they should get a union representative and he
would be glad to discuss the matter through the proper channels.
343
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
going to do anything. Jordan was told by the steward that
since he was not in the Union there was nothing that he
could do. Jordan testified that he had had no prior trouble
on the job or any prior warnings, nor is there any evidence of
the same on this record.
Gribben testified that on the morning of Jordan's dis-
charge Yensen brought Gribben in, advising that they were
going to have to discharge Jordan. Gribben related that he
asked Yensen if there was any way of keeping Jordan as he
was one of the better people in rough chip; that Gribben
could put him on anything, walk away, and come back in 8
hours and never have to check on the job. According to
Gribben, Yensen replied there was nothing that could be
done. When a man threatened another employee he had to
be disciplined; since Jordan was probationary, he had to be
discharged. He explained that when the employee is proba-
tionary, it gets progressively worse in their experience after
an employee gets into the Union. Gribben further related
that on August 31 Yensen, Tuel, Matisek, Jordan, he, and an
unidentified steward were present at the discharge interview
of Jordan. Yensen read Gribben's writeup, handed it to
Jordan, and asked if that was the way it was. According to
Gribben, Jordan read it and replied that it was. Yensen then
told Jordan that company policy was that he was not
allowed to leave his department, and on top of that he was
not allowed to threaten an employee or foreman. Being a
probationary employee they were going to terminate his
employment. Jordan was told that the decision had been
made by the department heads, and that they had no choice
but to abide by the department heads' decision. Gribben's
testimony that Yensen alone made the decision may be thus
discounted.
After being told on August 31 by a union steward that
there was nothing the Union could do, Jordan went to Kevin
Knight, Wheeling human relations counselor, to inquire
what he could do. Knight called Sanders and arranged for
Jordan to speak directly to Sanders. Sanders told Jordan that
the reason that he had been fired was because they came to
him with a problem and he decided that it was in the best
interest of the Company to fire him because he had
threatened to kill a foreman. According to Jordan, Sanders
also said that anything could be interpreted as a threat on a
foreman when you are a probationary employee, and that
any employee could be fired for threatening a foreman.
Jordan testified that he had not been reinstated since.
Sanders confirmed that he spoke to Jordan close to
August 31, that he told Jordan that he had reviewed the
facts with Gribben, and that he was receiving a written
statement from Gribben because there was a question of the
time initially between the date of the incident and his
discharge, although on another occasion he related that the
decision was not made earlier because he did not have
anything in his hand. Sanders acknowledged, at least at one
point, that Jordan told Sanders that he had not threatened
the life of Lewis. Sanders replied that he could not make a
distinction between kinds of threats and told Jordan that a
threat is a threat, explaining his probationary status.
Sanders, however, acknowledge that he had not spoken to
Jordan to get his side before effecting Jordan's discharge,
and that at the time of his discharge Jordan had completed
between 55-57 working days of his probationary period.
6. Certain additional considerations relating to the
discharge decision and the Company's rationale
The record has revealed beyond the real questioning that
Gribben, as Jordan's immediate foreman, wanted to keep
Jordan employed until the very end. Gribben related that
Yensen made the decision to discharge Jordan and asserted
that he did so on the expressed basis that the Jordan had to
be disciplined for the threat, and that Jordan, being a
probationary employee, had to be discharged for it. How-
ever, the record reveals again beyond questioning that
Yensen was fully aware of the facts of any threat 2 weeks
earlier by virtue of the immediate report thereon received
from Gribben, which was accompanied by the recommenda-
tion of Gribben that they retain Jordan in employment as he
was an exceptional worker. The uncontested fact also is that
Jordan was thereafter kept employed in Yensen's depart-
ment, without suspension, for 2 weeks prior to eventual
discharge. Although Yensen did not testify, fair inference is
that such was done with Yensen's full knowledge and
approval.
Sanders related initially on direct examination that the
eventual discharge decision on Jordan was made by the
department head and himself, with 50 percent input by the
front-line department head, Yensen, and 50 percent by
himself. On cross-examination Sanders further explicated
that it is important that the front-line supervisor make such
decision, and that Sanders would then in turn keep the
department head legally and contractually abreast. It must
be regarded as more than strange that under these circum-
stances Yensen did not testify as to the discharge of Jordan,
particularly in view of the present business explanation of
the unlikelihood that it would be 2 weeks after he knew the
facts that he decided to discharge Jordan (just as Superinten-
dent Jochum's inaction was earlier shown improbable under
similar circumstances). Sanders did testify, and he related
that he reviews a discharge decision with the department
supervisor(s) to be certain it is objective, that they consider
all the facts, including the totalness of the employee, and
that he had authority to hold up disciplinary action to be
certain of ascertaining the facts. However, there is no
testimony that Yensen or Jochum was pushing for a
discharge; indeed, a fair inference is to the contrary on the
basis of their 2-week inaction. While espousing consideration
of the totalness of the employee, in this instance that
standard clearly was not met. Sanders acknowledged that he
never spoke to Jordan to obtain his version of the incident
prior to Jordan's discharge, and Yensen's presentment of
papers to Jordan at the time of the exit interview hardly
qualifies in view of the evidence that he refused to discuss
the matter, quite understandably in the light that the
decision had already been made as is clearly indicated by
Tuel's memorandum instruction to Gribben dated August
30. Sanders offered explanations of inability to interview
Jordan prior to discharge, based on considerations of this
probationary employees' union representation, at best is not
persuasive and at worst is ironic. More to the point under
consideration, Sanders on still other occasion ackowledged
that it was he who made the decision to discharge, a
circumstance further revealing of why neither Yensen nor
Jochum testified, Indeed, the General Counsel established
344
BLAW-KNOX FOUNDRY & MILL MACHINERY
that in a prior statement given in this matter at the
investigatory stage Sanders had stated:
[I]t is my understanding that he [Jordan] threatened to
kill supervisor Leonard Lewis, and also harm his
family. As far as I am concerned, no employee is going
to get away with such threats, no matter how good a
worker he is, that is why I made the discharge decision.
Wholly apart from the decisionmaking issue under consider-
ation, it is also to be observed that Lewis testified that he had
received only one such threatening call at work and that
from another person who was identified and who was not
Jordan; he testified also to receiving other anonymous calls
at home, all of which he testified were received after Jordan
was discharged and none of which, in any event, were
attributed to Jordan by Lewis, nor on this record can
otherwise be assigned on the basis of evidence to Jordan,
either directly or indirectly.
Furthermore, Sanders' testimony in this area was at best
confused. Thus, Sanders related in this proceeding that since
no one corroborated Lewis on such threats he had passed
them off, a position clearly contrary to the earlier assertion
in his prior statement. However, Sanders even thereafter
related that when Lewis told him about the threats he had to
presume that these threats occurred, and further that he had
made a correlation of them to Jordan at the time, and that it
(again) was a factor in deciding to fire Jordan, only to recede
from that position as to the discharge reason and acknowl-
edge in view of inconsistencies being laid bare in the above
testimony that he could not remember whether the threats
were reported before or after the discharge. Nor could
Patylek assist Sanders in this matter of threats, although
they also were reported to him and indeed discussed directly
with Lewis, for Patylek also could only guess that they were
after Jordan's discharge with unsureness. The result is that
Lewis' testimony seemingly stands alone that they occurred
after Jordan's discharge, and I am, in any event, provided
with no clear or convincing evidentiary warrant in this
record to conclude or engage in speculation to the contrary.
Patylek's asserted early directions to Sanders are unmen-
tioned by Sanders, and I am convinced Patylek misrecollects
another time or incident.
Sanders also contended that from the outset he regarded
the Asher complaint and the Jordan threat incident as two
separate incidents. In regard to the Asher complaint, it was
Sanders' recollection that there had been one or two
meetings on the Asher matter as an internal complaint
before Jordan was discharged. However, Asher testified that
she had attended only one meeting before a formal grievance
was filed. On this matter Lewis not only confirmed Asher
that there was but one pregrievance discussion, but he was
able to identify the date as September 17, well after Jordan's
" Sanders revealed much when he stated that he had seen such incidents
before and did not like them. According to Sanders, at the pregrievance
discussion he was present with Lewis, and he called upon Asher, with Union
President Ed Kaminski also present, to suggest a solution. Sanders related
that Asher asked that there be no repetition and that the Company talk to
Lewis. Sanders agreed and expressed a willingness to talk to not only Foreman
Lewis but also to every foreman to insure that there would be no repetition.
Then as expressed by Sanders:
And she also said that she wanted the truth, and I was losing contact
with the meaning of what she wanted, and after going through 35
discharge on August 31, recalling that he was on vacation at
the time and had to come in for the discussion. It is observed
that this later consideration of the Asher matter is also
compatible with Lewis' testimony that he had received
comparable instructions from Sanders to let Asher be the
one to press her complaint and let the department heads
handle it.'
Finally, it is to be noted that Sanders related that it was
his view that the Asher incident did not mitigate the Jordan
incident because Jordan was not a union representative and
because the employees have union representatives on each
turn or shift, and that the names of the union representatives
are posted on employee bulletin boards, only to acknowledge
thereafter that the latter two considerations were after the
fact developments.
Sanders also related that in his discussion with Jordan
after discharge that he had suggested Jordan go to the
Union, and if the Union felt the facts warranted it that the
Union could then request his situation be voluntarily
reviewed by the Company, and he further suggested that
Jordan follow that procedure first as the easiest procedure
for him to deal with. According to Sanders, he never heard
from the Union on the matter. Jordan, on every approach to
the Union, received the rebuff that there was nothing that
could be done for him as he was a probationary employee, a
result I find difficulty in accepting that Sanders would not
have anticipated would be likely to be the Union's view of a
discharged probationary employee's case under the contract.
But probationary employees enjoy Section 7 rights under the
statute, and that is the point of this case.
II111. ANALYSIS, ADDITIONAL FINDINGS, AND
CONCLUSIONS
It is the General Counsel's contention that Jordan and
Asher engaged in protected concerted activity for the
purpose of mutual aid and protection in registering with
Lewis a complaint about the alleged misconduct of Lewis
towards Asher during working hours on August 17, and that
Respondent violated Section 8(a)(l) of the Act by terminat-
ing the employment of Jordan on August 31 for engaging in
that protected concerted activity and did so in order to
discourage such concerted activities.
Respondent contracontends that Jordan, acting solely
upon his cousin's statements, sought out Lewis and in the
presence of other hourly employees and supervisors shouted
at, cursed, and threatened the life of Foreman Lewis; and
asserts that it was as a result of this outburst on August 17
that after a careful investigation Jordan was discharged on
August 31 for violations of plant rules and regulations.
However, Respondent contends that it is unnecessary to
resolve the factual conflicts in these assertions, disputed by
minutes of discussion, and this one-on-one contact with no other
witnesses, except God, I couldn't give her the truth, so I said I can't ask a
man to verify a fact that he said didn't happen, and she wanted it
substantiated, and that was the nature of the grievance.
The parties stipulated that the formal grievance thereon was thereafter filed
on September 2. The grievance, covering the alleged improper conduct of
Lewis, was subsequently denied. The parties also stipulated that the grievance
was in the early stages of the formal grievance procedure pending union-
initiated action to the next highest level.
345
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the General Counsel's witnesses, because Jordan and Asher
were not in any event participating in legally recognizable
concerted activity. Respondent argues that they therefore
were not acting within the protection afforded by the Act.
Respondent contends alternatively that there is no evidence
that Respondent has sought herein to "chill" representative
activity, nor that its assigned reason for discharge (the threat
to kill), was a pretext. Respondent also argues that the
Board may not question Respondent's administration of its
employment regulations unless they offend some provisions
of the Act, relying on N.L.R.B. v. Ace Comb Co. and Ace
Bowling Co., Division of Amerace Corp., 342 F.2d 841, 847
(8th Cir. 1965). Respondent contends atternatively that even
if Jordan was involved in protected activity at some point
earlier, his subsequent words and actions that evening were
so excessive that Jordan has thereby effectively removed
himself from the protection of the Act.
The General Counsel argues that one of the reasons
advanced by Respondent during the course of this proceed-
ing is shown on the record clearly to have been a pretext and
argues that it was advanced merely to support Respondent's
tenuous justification for Jordan's discharge. The General
Counsel, however, would otherwise concede that the record
does establish that Respondent terminated Jordan with the
assigned reason of having made an alleged threat to kill
Foreman Lewis. The General Counsel apparently agrees
that it is unnecessary to resolve the basic conflict of disputed
fact between Asher and Lewis in regard to the underlying
allegations of the misconduct of Lewis, as the General
Counsel also argues that the actual merit of that complaint is
not germane to the material issue of the protected nature of
the independent acts of Asher and Jordan subsequently
raising complaint thereon.
Absent demonstrated malice or bad faith, of which there
is no evidence in this proceedings, I agree (Spinoza, Inc., 199
NLRB 525 (1972); Mushroom Transportation Co., Inc.. 142
NLRB 1150, 1158 (1963), reversed on other grounds 330
F.2d 683 (3d Cir. 1964)), and it would resultingly appear
that Asher must look to another forum for a determination
of that issue. However, the matter may not simply end there,
for subsequent conduct of Jordan and Asher is in material
issue. I have found that Asher told Jordan the specific
details supporting her accusation of the misconduct by
Lewis against her person, and I have concluded that such
allegation, if fully credited, was of a nature such as would
warrant finding that Asher was touched indecently, in a
degrading manner, and under highly provocative circum-
stances, and then told with obscenity that Lewis did not care
if Asher reported it as it would be her word against his. That
was the nature of the incident which Asher related to
Jordan, and that is the nature of the complaint which I find
Jordan had accepted as true and on which Jordan then
proceeded with Asher to confront Lewis. Additionally, I
have found that Asher had in the interim reported this
complaint in sufficiently clear terms to convey to her own
" Respondent would rely on Mushroom Transportation Co., Inc.. supra;
Signal Oil d Gas Co., 160 NLRB 644 (1966), enfd. 390 F.2d 338 (9th Cir.
1968); Northern Metal Co.. 175 NLRB 896 (1969), enforcement denied 440
F.2d 881 (3d Cir. 1971); Shelly & Anderson Furniture Mfg. Co., Inc.. 199
NLRB 250 (1972), enfd. 497 F.2d 1200 (9th Cir. 1974); and Leslie Metal Arts
Co., Inc.. 208 NLRB 323 (1974), enfd. 509 F.2d 811 (6th Cir. 1975). 1 have
foreman, Krahel, in Lewis' presence, her claim that there
was an improper touching of her person by Louis, at that
point stating that she did not intend to file a formal
grievance on the incident, but demanding that this conduct
not happen again. However, I further conclude and find that
Asher left the foreman's office having received no such
assurance from either foreman that such conduct would not
reoccur; indeed, Krahel testified that he had promptly
forgotten the matter after Asher left. It is thus plausible
when Asher testified that thereafter, contrary to her initial
intent, Asher initiated publication of her complaint to fellow
employees, and then sought to notify a union representative
to insure at least that the Union would be aware of this
incident's occurrence with the purpose specifically, but
unclearly in mind to somehow thereby enhance protection
for herself, though still not intending to file a grievance on it
not knowing really what to do at the time. There was no
steward on the second shift, and, upon asking fellow
employees about the third-shift steward, Walters, Asher was
advised that he was on vacation. It was at this point that
Asher met Jordan, described the situation to him, and
accepted his offer to accompany Asher and talk to Lewis
further concerning her complaint, which they then proceed-
ed to do. In my view, it is immaterial who enlisted whose aid
and support, as it is perfectly clear to me that their action
proceeded as a mutual effort to obtain a measure of
immediate protection for Asher in her working conditions.
It is the General Counsel's contention that the Board has
previously held that a concerted complaint advanced by
employees concerning their working conditions is expressly
protected by the Act, and he further correctly contends that
a complaint made by employees about supervisory harass-
ment is a recognized complaint concerning their working
conditions. K-Mart Enterprises, Inc.. 202 NLRB 358, 364-
365 (1973).
In support of its contention" that Asher and Jordan were
nonetheless not engaged in protected concerted activity in
their actions, Respondent makes a number of assertions
which it would appear may be conveniently grouped under
essentially four subcontentions generally respecting the
incident's lacking a work relationship, not being one
amenable to employee community of interest, lacking real
concerted activity by the employees, and lacking any real or
claimed representative status of Jordan. Respondent thus
argues: (a) the underlying Asher-Lewis incident itself was
not work related, and only accidentally happened to have
purportedly occurred within the four walls of its facility but
could have occurred anywhere; (b) there was no allegation
that any employee other than Asher had made such a
complaint or was likely to be similarly affected, certainly not
Jordan, Asher's complaint was on an incident so highly
personal in nature that no community of interest was likely
to exist as to her alleged problem, and that Jordan at the
time had no common or group concern himself in acting on
her behalf; (c) Asher did not solicit Jordan's help or indicate
carefully considered the authorities cited by Respondent and conclude that
there is nothing therein which would warrant a different result than that
reached herein. I do note that, while the Board's conclusion in Northern Metal
Co.. supra, was not later enforced by the court, I am bound by the Board's
determination, which holding the Board has apparently continued to follow.
Cf. St. Regis Paper Co., 192 NLRB 661, fn. 3 (1971).
346
BLAW-KNOX FOUNDRY & MILL MACHINERY
otherwise that it was her intention to involve other employ-
ees in her complaint against Lewis, although Respondent
argues that it was absolutely incumbent upon the General
Counsel to establish that Asher was engaged in an attempt
to coalesce or galvanize a group of employees to take action
on her complaint, that neither Jordan nor Asher sought
union representation that evening but had simply resorted to
self help, and that Respondent (reasonably) believed that it
was only Jordan's familial relationship to Asher which had
motivated him to seek out and confront Lewis on Asher's
behalf;' and (d) no member of management knew or
reasonably should have known that Jordan had designated
himself a self-appointed representative on behalf of Asher,
noting that Jordan did not so identify himself, did not
inquire as to Lewis' version of the incident, never attempted
to involve a union representative, did not act in furtherance
of a resolution of the employee complaint, and specifically
refused supervisor Lewis' offer made later that very evening
to talk about the matter and work it out, nor did Jordan ever
again seek to represent Asher's interest.
Respondent's argument that the underlying Asher-Lewis
incident was not work related must be rejected, for the
readily observed fact is that Asher was at work when the
alleged incident occurred, and it did constitute an aberration
of her working conditions. Respondent's arguments as to
lack of community of interest of other employees is found
equally unconvincing. The record reveals that there were
other women working in the foundry or plant, albeit their
numbers at the time of this incident were apparently not
many. However, it may be presumed that men as well as
women are interested in working conditions that safeguard
employees from physical and mental abuse extraneous to
their work performances. Cf. Gearhart-Owen Industries,
Inc., 226 NLRB 246, 262 (1976). Indeed, to establish that
there was arguable claim that such protection was already
contractually applicable at Respondent's Wheeling Works
facility and available to Asher and others, we have but to
look to the contract itself and observe expression by the
parties to the contract of their mutual policy that the
provisions of that agreement which govern the wages, hours,
and working conditions of employees are to be applied to all
of Respondent's employees "without regard to race, color,
religious, creed, sex, or national origin." Moreover, the fact
that a grievance on this matter was subsequently filed,
processed, and, though denied, denied on grounds other
than lack of contract coverage is perhaps the best evidence
that a grievance thereon was in fact a procedurally viable
one. But even if it were not, joint employee action undertak-
en in pursuit of such a claim is protected concerted activity,
for the actual merits of a given complaint proceeded on is
immaterial (cases cited, supra ).
The General Counsel has correctly observed that the
Board has previously held that the registering of an
" Respondent essentially contends that there must be a showing that the
activity was for the purpose of inducing or preparing for group action to
correct a grievance or complaint, and that, in contrast, individual griping or
complaining over essentially personal or idividual complaints is not protected
concerted activity, relying on Indiana Gear Works, A Division of the Buehler
Corporation. 156 NLRB 397 (1965), enforcement denied 371 F.2d 273, 276
(7th Cir. 1967), and Hugh H. Wilson Corp.. 171 NLRB 1040(1968), enfd. 414
F.2d 1345 (3d Cir. 1979). Apart from other considerations earlier noted, the
facts of Indiana Gear, supra, are inapposite. I have considered the remaining
individual complaint or grievance which is in pursuance of a
contractual right is itself an engagement in protected
concerted activity even if the complaint is expressed by a
single employee without filing a grievance. See C & I Air
Conditioning, Inc., McKeon Construction, 193 NLRB 911
(1971).'0 Thus, even were it to be concluded that Jordan and
Asher had acted in concert on August 17 but without
expressed intent to benefit a group, the nature of the
complaint registered, if subsequently grieved, as it eventually
was, would have direct significance and relevance under the
contract bearing upon all other women employees whose
employment in that particular was thus governed by the
contract. Indeed, a very ready presumption also fairly lies
that even an earlier addressment and resolution of the matter
by Respondent at an internal company complaint stage,
which would then have obviated formal grievance filing,
would have likewise inured to the immediate benefit of other
employees similarly situated prospectively. In that regard it
is not without significance that this Employer has agreed to
contractual grievance provisions which provide employees a
significant amount of time to consider whether a complaint
should be formally grieved. A complaint questioning a
foreman's conduct is generally expected in the interim to be
made directly to the foreman, and in any event all parties
agree that an employee, where there is no union representa-
tive immediately available at the time, may nonetheless
register the complaint initially with the foreman and later
contact and discuss the matter further with the Union and
decide what is to be done. The established grievance process
is thus one which favors early internal complaint registering,
addressment, and resolution. However, that process is a
continuing one, and there is thus no warrant on this record
to restrict an evaluation of employee protected activity to the
day on which the complaint is registered without practical
overview of the entire process which permits an employee up
to 45 days after an incident is thus complained of to consult
and seek advice of the Union whether formal grievance
should actually be pursued. In my view, Asher entered into
that protected process when she registered her complaint
initially with Krahel in Lewis' presence even though then
expressing an intent not to file a grievance, for that then-
present intent did not foreclose her continued option to
subsequently pursue with the Union a filing of a grievance
on the matter. Moreover, whatever may be concluded as to
Asher's initial protected concerted action in view of an
expressed disinclination to make her complaint public or file
a grievance, this record makes it perfectly clear that,
immediately following registering an initial complaint with
Krahel, Asher neither felt her complaint had been satisfacto-
rily recognized or acknowledged nor felt more secure in her
own person because of her registered complaint since,
contrary to her initial intention, she immediately publicized
her complaint to fellow employees, received their support,
cases cited by Respondent and find them also not to warrant any different
result on the facts found herein.
" Cf. Rodl'catv Express. Inc.. 217 NLRB 278, 279 (1975). enfd. 532 F.2d
751 (4th Cir 1976): Ilnrerlro Contrator. Inc.. 157 NLRB 1295 (1966). clfd
388 F.2d 495 (2d Cir. 1967). Esenlitally. effort at implementatiotl of an
agreefnlet i huit n1 extenion of the cocerted actisity which gave ric to the
agreement. Mrln RBnncV. et at d/h/a Butnev Bnr. Construction Company.,
119 NLRB 1516. 1519 (1962) Sec ako Drein & Arunp Manufaclturng. Inc..
221 NIRI 3019. 314 ( 1975)
347
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and initiated an unsuccessful effort then to contact the
Union to immediately reflect the latter's awarenesss of the
incident as well for her own protection, all prior to her
conversation with Jordan and thus prior to their visit to the
foremen's office. In my view, there is no question that
Jordan and Asher thereafter acted in concert for employee
mutual aid and protection in again registering Asher's
complaint with supervision, and that this time their joint
action did so in a more attention getting way than Asher had
been able to accomplish previously by herself. I am con-
vinced and find that these employees were engaged in
protected concerted activity at that time. " I have earlier
noted Sanders' testimony was that from the start he had
viewed, and he accordingly treated, Asher's incident with
Lewis and Jordan's incident with Lewis separately. Of
course, the two are related. Further, the probationary status
of Jordan is not a distinguishable feature of their concerted
activity, although Jordan was a probationary employee and
Asher was not, but rather a regular employee and member of
the Union. Jordan occupied protected status in any such
concerted action, for the law is clear that there is no license
under Federal law for an employer to interfere with or to
discriminate against probationary employees for an exercise
of the protected employee rights contained in Section 7 of
the Act. Georgia Pacific Corporation, 204 NLRB 47, 54
(1973); Seven-Up Bottling Co. of Detroit, Division of Beverage
Management, Inc., 223 NLRB 911 (1976). Nor may employ-
ees be discharged for engaging in concerted action in
registering a complaint or grievance on a management action
favoring an employee but at variance with policy then
applicable to all other employees. R & S Steel Corp., 222
NLRB 69, fn.3 (1976). It would seem the same rationale
would find application to circumstances where a manage-
ment action is taken against an employee contrary to policy
applicable to all employees and which is subsequently made
the subject of a concerted complaint or grievance."2
Respondent's other arguments in support of its contention
that Jordan and Asher were not engaged in protected
concerted activity are also inefficacious. They appear to stem
in the main from misconceptions as to the materiality of the
method and manner in which Jordan and Asher participated
in protected concerted activity, the wisdom of the employees
in so acting, and confusion over the potential immaterial
effect of what may be personal motivations of employees for
engaging in concerted activity, e.g., familial relationship, in
contrast with the actual material purpose or object of the
concerted activity in which they engage, which determines
whether the concerted activity is a protected one. Thus, the
application of Section 7 does not depend upon the manner or
method by which employees choose to press their dispute,
" The General Counsel has also argued that these employees had the right
under Sec. 9(a) to present their grievances alone, but the General Counsel
does not then further explicate any specific theory of 8(a)(l) consequent
unlawful discharge based on the exercise of Sec. 7 rights. Presumably, such a
theory would encompass of necessity some Sec. 7 right interference, a
seemingly alternative right to refrain from union activity in a certain matter,
as in the instant circumstances, and proceed with complaint or grievance
under Sec. 9(a). The argument would appear to have some surface allure as a
threatened loss of such access has itself been held to be a violation of Sec.
g(a)(1), although the threat was advanced in context for employee engagement
in union activity. Sacramento Clinical Laboratory. Inc., 242 NLRB 944 (1979).
However, I need not reach or resolve such issue herein since, as found above, I
but rather the nature of the matter they are protesting.
Puerto Rico Food Products Corp., Tradewinds Food, Inc.,
and Island Can Corp., 242 NLRB 899 (1979). Employees
engage in protected concerted and union activity for all sorts
of reasons. in that connection the General Counsel correctly
observes even more fundamentally that the reasonableness of
Jordan's actions in concert with Asher in seeking and
directly confronting Foreman Lewis in order to assure that
certain conduct allegedly engaged in by Lewis would not
reoccur, or the evaluation that their action may have been
unwise, unnecessary, or ineffectually approached and carried
out, does not remove its protected nature. See N.L.R.B. v.
Washington Aluminum Co., Inc., 370 U.S. 9 (1962);
N.L.R.B. v. MacKay Radio & Telegraph Co., 304 U.S. 333,
344-345 (1938); cf. C. & I. Air Conditioning, Inc., supra.
Thus, considerations of the lack of any real need for the
immediacy of their action, asserted lack of a professional
representative approach, failure to subsequently involve the
Union, or even failure to continue in their activities that
evening all bespeak of the method and manner in which
Jordan and Asher acted and do not speak to the nature or
object of their joint action which so clearly is discerned to be
action undertaken with the purpose to effect nonreoccur-
rence of the undesired working condition such as had
allegedly been visited upon Asher earlier that evening.
Consequently, whether there was another steward on the
third shift somewhere in the plant that Asher and Jordan
might have approached may be regrettable, but it is also
immaterial. I further reject any argument, implied or
otherwise, that Asher and Jordan would have to await at
least one reoccurence or the occasion of a second such
incident involving another employee to establish it was not
of an isolated nature or expressly relate at the time that their
effort was being undertaken on behalf of all others who
might become similarly situated before being able to insist on
Asher's right to certain established working conditions and
to engage in such protected concerted activity to protest the
first such violation and in concert seek to prevent a second
instance. Nor does Section 7 preclude an employee from
acting in concert and on behalf of another employee who
may be initially directly benefited. Aro, Inc., 227 NLRB 243,
244 (1976); King Soopers, Inc., 222 NLRB 1011 (1976).
Finally, I am also convinced that Jordan did not in any way
seek to establish himself as a minority bargaining representa-
tive on this matter or for other matters or seek to preclude
union involvement thereon, but rather inartfully sought to
effect, through direct confrontation of the supervisor, an
immediate assurance that there would be no reoccurrence of
the undesired working condition. In my view, the facts and
holding of Emporium Capwell Co. v. Western Addition
am convinced and conclude and find that Jordan and Asher were at this time
engaged in protected concerted activity otherwise.
" Thus, I also need not reach or consider whether the Employer's
employment regulations 6 and 12 would also find contractual grievance
application under the contract's local working conditions provisions, sec. 2.
par. 8, or were a matter outside the contract. A management working
condition action against Asher, simultaneously (arguably) at variance with
Respondent's published employment regulations applicable to all employees
would thus appear in any event to be claimable grounds for employees Jordan
and Asher's bringing such a protected complaint or grievance within the
meaning of R & S Steel Corp.. supra.
348
BLAW-KNOX FOUNDRY & MILL MACHINERY
Community Organization, et al, 420 U.S. 50 (1975), are thus
wholly inapposite to the situation herein depicted.
Respondent's alternative argument is also readily seen to
be without merit as animus is not an essential or critical
element in support of an 8(a)() discharge complaint
allegation where it is established that the conduct for which
the employee is discharged clearly and operatively involves a
protected concerted activity. Burnup & Sims, Inc., 379 U.S.
21, 23 (1964).
There thus remains but to consider whether Jordan, in
engaging in the aforesaid protected concerted activity, also
engaged in conduct which was so excessive, abusive, and
personally threatening that Jordan removed himself from
the protection of Section 7 of the Act. To begin with, I have
earlier found that Jordan did not engage in cursing and
multiple threats for reasons earlier noted. What is presently
undertermined and now to be resolved is whether Jordan on
any occasion in the office that evening threatened to kill
Foreman Lewis as Respondent's witnesses Lewis, Krahel,
and Gribben assert but as Jordan and Asher have denied.
The General Counsel contends that Jordan and Asher
were forthright and unwavering in their testimony, and that
their denials that Jordan threatened to kill Lewis should be
believed because their testimony contains no inconsistencies,
while the testimony of Respondent's witnesses on these
matters contains much inconsistency in the record, as well as
regular and substantial deviations from earlier testimony
given in affidavits, or statements. Respondent contracon-
tends that it has presented a sound, reasonable, and
nondiscriminatory reason for the discharge of Jordan, that
the General Counsel has only nitpicked with other testimony
and affidavits of Respondent's witnesses, and that their
corroborative testimony on the substantive matter of the
threat to kill should be credited rather than the self-serving
testimony of two persons, related by blood, who hold an
intense personal interest in the outcome of the case.
The General Counsel has alternatively contended that,
even if Respondent's witnesses were to be credited, under the
provocative circumstances evidenced in this case Jordan's
threat to kill Lewis would not remove his activities from the
Act's protection. The General Counsel would rely on Dreis
& Krump Manufacturing, Inc., 221 NLRB 309, 315, and
cases cited therein. However, Respondent asserts that
evaluation by the Board has been otherwise once a clear
threat of violence to an Employer has been established.
Respondent relies on Berns Wholesale Sporting Goods Co.,
188 NLRB 373 (1971), a case in which the Board concluded
that an employer may discharge an employee who had
threatened to break the employer's nose and who had
conceded that, at the time made, he meant it, although only
momentarily, even though the employer knew that the
employee was a union advocate and even though the threat
had occurred in the course of a grievance discussion.
The General Counsel's reliance on the Dreis & Krump
Manufacturing case, supra, on the basis of the holding that
"offensive, vulgar, defamatory, or opprobrious" language
does not remove an employee's activities from the protection
of the Act would appear misplaced in application to the
" The additional contention by the General Counsel that any effectuation of
the threat was conditional on a further act of the victim is rejected as it would
not minimize the coercion imparted.
promised threat to kill utterance. Thus, a threat to kill on its
face is readily observed to be something more than "offen-
sive, vulgar, defamatory, or opprobrious" language and is to
be reasonably viewed as a threat to do physical violence just
as much as a threat to break an employer's nose is as was
considered in Berns Wholesale Sporting Goods Co., supra.
The General Counsel has also sought to raise certain fairness
arguments resting essentially on the basis that in view of
Jordan's otherwise excellent work record consideration
should be given to certain "historic ramifications" of such an
incident as then explaining Jordan's action and making it the
more reasonably understandable, thus mitigating the inci-
dent to the extent such as not to render Jordan unfit for
further service. However, it seems to me that such conten-
tion, in the circumstances of this case, must fail. The
contention appears to call for an impermissible direct
judgmental review of the incident wholly apart from case
circumstances where it may be demonstrably shown that the
foregoing would be relevant as a consideration, e.g., in
contended condonation, or in illuminating a claimed pretext
circumstance, e.g., in case of alleged disparate treatment.
Thus, such a consideration would appear to be one fore-
closed to any evaluation anew by an administrative law judge
as the Board will not substitute its judgment for Respon-
dent's business judgment in dismissing an employee. Thur-
ston Motor Lines, Inc., 149 NLRB 1368 (1964). However, it
would be error to fail to recognize that utterances of such
nature do not exist in a vacuum but involve employees'
exercising their rights under the Act frequently under
stressing and emotionally charged circumstances. For exam-
ple, in a strike situation the Board has differentiated between
those cases "in which employees have arguably exceeded the
bounds of lawful conduct during a strike in a 'moment of
animal exuberance' from those cases in which the miscon-
duct is so flagrant or egregious as to require subordination of
the employee's protected rights in order to vindicate the
broader interests of society as a whole." W. C. McQuaide,
Inc., 220 NLRB 593 (1975). The Section 13 and Section 7
right of concerted activity must be useable in such stress
filled and emotionally charged events without undue stric-
ture for "every act of impropriety" on the one hand, but
with loss of the Act's provided protection for "serious acts of
misconduct." The matter is one of where the balance is to be
struck. Thus, the Board has concluded protection should not
be withheld in certain instances in which strikers, though
they verbally abused or threatened replacements with acts of
violence, did so in a manner unaccompanied by any physical
acts or gestures that would provide added emphasis or
meaning to their words sufficient to warrant finding that
they should not be reinstated to their jobs at the strike's
conclusion, but denied such protection to employees who by
physical acts and battery gave their threats a sense of
"immediacy and credence" which went beyond the normal
give-and-take of a labor dispute and extended into the area
of unprotected misconduct. Id. at 594. The Board has
approved protection continuance to an employee similarly
engaged in protected Sections 7 and 13 activity where the
employee had told three job applicants, in the presence of 50
349
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
strikers, not to go through the gate if they valued their lives
in Associated Grocers of New England, 227 NLRB 1200,
1203, 1207 (1977). The language used there was essentially
the same as is allegedly involved herein. In view of the
provocations of the alleged Asher-Lewis incident, and
particularly if given as well the provocation of the foreman's
preceding remark, I can see no real difference for the
exuberant striker in the sense of the likelihood thereby
effected was a similarly emotionally charged situation in
which the Section 7 right was being exercised. There, as
here, it was recognized as a close case; here, as there, it
would seem that the Act's protection should not be
withheld. I would have no hesitation in concluding for a
continuance of the protection of the Act in application to the
versions of Jordan and Asher were such to be credited.
Though in a sense somewhat anticlimatic after full reflection
on the above evidence, I am wholly convinced that there is
no warrant to credit Respondent's witnesses over Jordan and
Asher on this critical matter, but rather much reason to
credit, and I do credit, Jordan and Asher. Since such
credibility determination in effect resolves the entire case,
some further statement of reflections on the reasons for
crediting Jordan and Asher would appear warranted.
This case has involved much substantial contradictory
testimony between the General Counsel's and Respondent's
witnesses, principally as bearing upon the facts surrounding
two areas of whether Jordan ever actually threatened to kill
Lewis and whether Jordan left his work area on his own time
before the start of his shift or thereafter on Respondent's
time contrary to Respondent's employment regulations and
prior supervisory instruction. I have already found that
Jordan did not engage in this activity on company time but
rather on his own time, crediting the testimony of Jordan
supported by Asher and by Foreman Krahel, and in doing
so have discounted substantial portions of the testimony of
Lewis and Gribben to the contrary." In reaching that factual
determination I have had occasion to note that other grave
misgivings arose as to the accuracy of certain events
described in Gribben's report (in evidence) in that respect,
particularly in view of Gribben's assertion that such was
recorded that very evening. This is so since such written
report recites details as to the timing of Jordan's visit being
on Respondent's time which are wholly at odds not only
with Jordan's testimony and Asher's testimony but also with
that of Krahel. The discrepancies are major enough to
warrant conclusion that the document's recitals in those
respects are untrustworthy, and Gribben's testimony in
connection therewith, it follows, must be regarded as also
unreliable. I thus find myself wholly unpersuaded by such
document considered as independent evidence of the events
described therein. With regard to alleged utterances by
Jordan of threats to kill generally, I have also already
discredited Foreman Lewis in his expanded assertions that
there were multiple such threats and other similar threats of
violence uttered by Jordan in the office, Lewis having
departed from a prior statement in this regards and having
not been corroborated in such particulars by Krahel, who
was present for the entire conversation. Krahel has rather
" I would note in passing that such would appear not to be a conclusive
finding to establish the merit of General Counsel's case. KBM Electronics,
Inc.. r/a Carsounds. 218 NLRB 1352, 1359 (1975).
related that the alleged threatening had not actually started
until Gribben arrived, and both Krahel and Gribben then
recalled contrary to Lewis, that there was but one threat
made in the office. Similarly, I have found record need to
discredit Lewis as to alleged cursing by Jordan, denied
convincingly by Jordan and Asher. Though I have noted in
this respect there was some general and conclusionary
support from Krahel, such was itself wholly unconvincing in
view of Krahel's total inability to remember even the first
specific detail of such alleged cursing. But in the final
analysis it is the total scope of the testimony of Respondent's
own witnesses, replete with inconsistencies and vagaries,
which do in Respondent's basic contention. Cf., Bunny Bros.
Construction Corp., supra. Though numerous, I have essen-
tially set forth sufficient instances earlier and noted the same
essentially in context. They need not be repeated at this
juncture. To such I would only add the additional credibility
observation that, when one or more foremen in their
testimony, not only break ranks on the underlying dispbted
facts, as they have significantly done herein, but on a
significant number of occasions in doing so support the
General Counsel's witnesses on certain key factual matters,
the way is even the more eloquently pointed out for the
proper resolution of the credibility conflict of those matters
where in conflict with the General Counsel's witnesses,
particularly where the latter witnesses on the same record, as
the General Counsel has accurately pointed out, have been
consistent, forthright, prompt, and candid in their testimo-
ny, including while testifying in certain areas which were not
conducive to the advancement of their own position.
Additionally, there was nothing in the demeanor of Jordan
and Asher which would in the slightest way call for their
being discredited on any material issue herein. It is unques-
tioned that Jordan was an exceptional worker. To this must
be added that he gave the appearance of being a believable
witness and related a cohesive account. In contrast, Krahel
in certain areas of his testimony gave the appearance of
evasiveness, Lewis was totally unconvincing in his will-
ingness to testify to other unsupported threats, and Gribben
was at best shown demonstrably unreliable in his recollec-
tion of certain events of that evening. I thus also believed
Jordan when he said that he did not threaten to kill Lewis,
and I believed him also when he said that Gribben found the
control he exercised under all these circumstances remark-
able and expressed that very fact.
It follows and I find that, since Jordan's discharge 2 weeks
later unquestionably was for his actions on August 17, which
did not include a threat to kill Foreman Lewis, Jordan was
discharged at that time for engaging in protected concerted
activity and the discharge was thus in violation of Section
8(a)(1). Burnup & Sims, supra. On the basis of the entire
record, including the evidence that there have been instances
of vacillating and puffing of reasons advanced for the
discharge and retractions of the same, coupled with the
failure of Respondent to obtain Jordan's version during the
2-week period which Respondent unconvincingly would
seek to explain was used for careful consideration of the
issue of his discharge, and the 2-week delay itself where
350
BLAW-KNOX FOUNDRY & MILL MACHINERY
major representatives of management were already aware of
the full facts. I am wholly convinced that Jordan was
subsequently discharged on August 31 with but few days left
on his probationary status because Respondent at that time
decided it did not wish to continue him in its employ,
believing that, if Jordan was this militant in defending
employees' working conditions while a probationary em-
ployee, in their experience, it could be reasonably anticipated
that he would become even more so after he finished his
probationary status and joined the Union. For all of the
above reasons I conclude and find that Respondent dis-
charged its employee Larry Jordan, while he was still a
probationary employee, for engaging in protected concerted
activity in violation of Section 8(a)(1) of the Act.:'
CONCUSIONS OF LAW
1. Blaw-Knox Foundry & Mill Machinery Inc., Wheeling
Works Division, is an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
2. By discharging probationary employee Larry Jordan on
August 31, 1977, for engaging in protected concerted
activity in presenting a complaint to management and in
seeking to implement the terms and conditions of employ-
ment contained in a collective-bargaining agreement for
purpose of the mutual aid and protection of employees, the
Employer has engaged in unfair labor practices within the
meaning of Section 8(a)(1) and Section 2(6) and (7) of the
Act.
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I find it necessary to order Respon-
dent to cease and desist therefrom and to take certain
affirmative action designed to effectuate the policies of the
Act.
I have found that Respondent discharged probationary
employee Larry Jordan in violation of Section 8(a)(1) of the
Act. I find it necessary to order it to offer Larry Jordan
immediate and full reinstatement to his former position or,
in the event his former position no longer exists, to a
substantially equivalent one, without prejudice to his seniori-
ty or other rights and privileges, and to make said employee
whole for any loss of pay or other employment benefits he
may have suffered as a result of said unlawful discharge.
Backpay shall be computed in accordance with F. W
Woolworth Company, 90 NLRB 289 (1950), and Florida
Steel Corporation, 231 NLRB 651 (1977).2? Contrary to the
urging of the General Counsel, I find that a broad order is
not warranted in this case as the Respondent has not
demonstrated a proclivity to violate the Act, nor engaged in
'' Accordingly, Respondent's motion to dismiss the complaint is denied.
:~ See, generally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962).
' In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec. 102.48
of the Rules and Regulations, be adopted by the Board and become its
findings, conclusions, and Order, and all objections thereto shall be deemed
waived for all purposes.
such egregious or widespread misconduct as to demonstrate
a general disregard for employees' fundamental statutory
rights. Hickmott Foods. Inc.. 242 NLRB 1357 (1979).
Accordingly, Respondent will be ordered to cease and desist
from "in any like or related manner" infringing upon the
rights guaranteed to its employees by Section 7 of the Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER:'
The Respondent, Blaw-Knox Foundry & Mill Machinery,
Inc., Wheeling, West Virginia, its officers, agents, succes-
sors, and assigns, shall:
1. Cease and desist from:
(a) Discharging or in any like or related manner discrimi-
nating against probationary employees for engaging in
protected concerted activity in presenting a complaint to
management and in seeking to implement the terms and
conditions of employment contained in a collective-bargain-
ing agreement for the purpose of mutual aid and protection
of employees.
(b) In any like or related manner interfering with,
restraining, or coercing its employees in the exercise of their
rights protected by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Offer Larry Jordan immediate and full reinstatement
to his former position or, in'the event his former position no
longer exists, to a substantially equivalent position, without
prejudice to his seniority or other rights and privileges, and
make him whole for any loss of earnings he may have
suffered because of the discrimination against him in the
manner set forth in the section herein entitled "The
Remedy."
(b) Preserve and upon request, make available to the
Board or its agents, for examination and copying, all payroll
records, social security payment records, timecards, person-
nel records and reports, and all records necessary to analyze
the amount of backpay due under the terms of this
recommended Order.
(c) Post at its place of business in Wheeling, West
Virginia, copies of the attached notice marked "Appen-
dix."" Copies of said notice, on forms provided by the
Regional Director for Region 6, after being duly signed by
Respondent's representative, shall be posted by Respondent
immediately upon receipt thereof, and be maintained by it
for 60 consecutive days thereafter, in conspicuous places,
including all places where notices to employees are custom-
:' In the event that this Order is enforced by a Judgment of a United States
Court of Appeals, the words in the notice reading "Posted by Order of the
National 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."
351
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
arily posted. Reasonable steps shall be taken by Respondent
to insure that said notices are not altered, defaced, or
covered by any other material.
(d) Notify the Regional Director for Region 6, in writing,
within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith.
352