Buehler Corp.

National Labor Relations Board - Board Decisions

Dec 28, 1965

156 N.L.R.B. 397 (N.L.R.B. 1965)

INDIANA GEAR WORKS 397
sentative where a valid representation election, which we did not win, has been
conducted by the National Labor Relations Board among the employees of
Stoltze Land & Lumber Company within the preceding 12 months.
LUMBER AND SAWMILL WORKERS LOCAL UNION No. 2797,
Labor Organization.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
If members have any question concerning this notice or compliance with its provi-
sions, they may communicate directly with the Board' s Regional Office, 327 Logan
Building, 500 Union Street, Seattle, Washington , Telephone No. 682-4553.
Indiana Gear Works, a Division of the Buehler Corporation and
Jerry W. Packard . Case No. 25-CA-2080. December 28, 1965
DECISION AND ORDER
On August 9, 1965, Trial Examiner Phil Saunders issued his Deci-
sion in the above-entitled proceeding, finding that Respondent had
not engaged in the unfair labor practices alleged in the complaint and
recommending that the complaint be dismissed in its entirety, as set
forth in the attached Trial Examiner's Decision. Thereafter, the
General Counsel filed exceptions to the Trial Examiner's Decision and
a supporting brief. The Respondent filed a brief in answer to the
General Counsel's exceptions.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Members Fanning, Brown, and Zagoria].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and the entire record
in this case, and finds merit in the exceptions. Accordingly, the Board
adopts the findings, conclusions, and recommendations of the Trial
Examiner only to the extent consistent with this Decision and Order.
The complaint alleges that employee Jerry W. Packard was dis-
charged on November 14, 1964, for engaging in protected concerted
activity.
Briefly, the facts show that on or about November 9, 1964, the
Respondent announced to its employees its annual wage package. This
package provided for wage increases of 2 cents to 16.4 cents per hour.
Subsequently, the employees of the Respondent's gear department,
whose 2-cent-per-hour increase was much smaller than they had
expected, expressed their displeasure during a number of meetings with
156 NLRB No. 40.
398 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
supervisors and management officials. Packard was present at these
group discussions and announced his own displeasure with the
increase.' These discussions brought about no changes in the Com-
pany's wage package. While working on the night shift on Novem-
ber 13, 1964, Parkard taped a number of cartoons to a lamp shade
suspended over the workbench in the gear department. This was not
an uncommon form of communication among the employees.2 These
cartoons had been cut out of newspapers and taped to yellow sheets of
paper on which employees had written comments concerning their
dissatisfaction with the wage increase. The cartoons contained such
expressions as, "And we love you too" and "My God John," expressions
which can only have been mocking emulations of Respondent's Presi-
dent Buehler's typical forms of addressing the employees. While the
evidence shows that Packard was perhaps the leading spirit in the
preparation and posting of the cartoons, the evidence also establishes
that the cartoons did not represent a single individual's effort, that
Packard was not the only employee so engaged, that a number of
employees in the gear department suggested captions for the cartoons
and offered Packard other newspaper pictures with captions, and that
other employees hung similar cartoons on the lampshade 3
On the morning of November 14, General Superintendent Kinney
in the course of a routine check of the various departments saw the
cartoons and subsequently removed them and took them to the office
of Personnel Director Glassmeyer. There followed a series of con-
ferences among a number of supervisors and other management per-
sonnel and after a resort to samples of Packard's handwriting it was
the consensus that Packard was responsible for "a majority" of the
cartoons .4 The supervisors along with the other management per-
'During a meeting with Supervisor Heiliger , Packard told Heiliger that he (Packard)
would forego the raise if the Company needed the money so badly that 2 cents an hour
was all that it could afford
2 On inspection of the record , it is clear that there was a practice in the Respondent's
plant to use cartoons placed on bulletin boards and lampshades to advise all employees
about such things as bowling averages and golf scores . Furthermore, employee Sprecher
testified that on the night in question , he placed a newspaper clipping concerning a vaca-
tion plan at Eli Lilly Co. on the bulletin board. There is no doubt that the Respondent
was aware of this practice.
3 Employee Richard Vanderpool testified that he put two cartoons to which he had
added captions on the lampshade . Contrary to the Trial Examiner's finding that there was
no evidence showing that Packard had adopted suggestions of other employees , employee
James Rasor testified that he had somewhat changed a newspaper cartoon and given it
to Packard, and this cartoon essentially in the form given to Packard was hung by
Packard from the lampshade.
A It is clear from an inspection of the cartoons themselves that they were not all
prepared by the same person. Packard ' s cartoons were made by neatly trimming news-
paper clippings and taping them on yellow paper with the captions neatly lettered on the
yellow paper . Cartoons prepared by employee Vanderpool are clippings apparently torn
from a newspaper with the captions printed on the cartoons themselves . The cartoon
given to Packard by employee Rasor was just an elaboration on an existing cartoon
obtained from either a newspaper or a magazine rather than like one of Packard's original
works.
INDIANA GEAR WORKS 399
sonnel then reviewed certain past incidents in which Packard was
involved 5 and concluded that the "total" of Packard's conduct con-
stituted good cause for his discharge. When Packard came to work
that evening, he was called to a meeting attended by Superintendents
Morgan and Kinney, Assistant Personnel Director Hurst, and Joe
Jones, night-shift chairman of the employees' shop committee. Assert-
ing that Packard could have used more acceptable channels for voicing
a complaint, Morgan showed the cartoons to Packard and asked
Packard if he was responsible for them. Packard admitted that he
was, but added that he was not the only one involved. He refused,
when asked by Jones, to reveal the identity of the other employees.
He was then asked by Morgan if he understood the wage increase and
what it would mean to him, and he was then given his termination
notice.
Upon the foregoing facts, the Trial Examiner found that the
Respondent did not violate Section 8 (a) (1) of the Act by discharging
Packard. He was of the opinion that there was insufficient evidence
to show that Packard's actions were concerted within the meaning of
the Act, or if concerted that the Respondent knew of its concerted
nature at the time of the discharge. In any case, however, the Trial
Examiner was of the opinion that Packard's activity was of such
flagrant nature, "that it lost the protection of the Act," and concluded
that "in any event and apart from Packard's activity involving the
cartoons, the Respondent had good cause to terminate him." We do
not agree.
In findings that Packard's activity was not concerted, the Trial
Examiner was of the opinion that activity to be concerted must have
an object of inducing group action by employees to correct a grievance.
However that may be, the Trial Examiner has overlooked the fact
that Packard's activity was not so much an individual action designed
to induce action on the part of other employees, as it was group action
whose object was to induce the employer to correct a grievance. It
is true that there was no formal agreement among the employees as
to the course of action to be pursued as a group, and no one selected
Packard to act as a spokesman. The record shows, however, that
Packard was not the only employee engaged in posting cartoons
which expressed a dissatisfaction with the 2-cent-an-hour wage
increase and that other employees participated with Packard in pre-
paring and posting the cartoons as a demonstration of their concern
over a problem affecting all of them. We think it is unrealistic to
say that in such circumstances the particular cartoon posting activity
is not to be considered as concerted activity within the meaning of
6 The previous infractions of company rules listed by the Respondent in Packard's
termination notice included : ( 1) credit complaints , ( 2) disobedience , and (3 ) poor attitude
and conduct toward his job and fellow employees
400 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Section 7 of the Act. Certainly, the employees believed they had a
legitimate grievance and the legitimacy of their object cannot be
questioned. Indeed, Superintendent Morgan recognized the cartoons
as a complaint against the employer's wage practice, and specifically
asked Packard, during the termination interview, whether "he under-
stood the wage increase and what it meant to him." We find that the
evidence is sufficient to support a finding that Packard's activity
constituted concerted activity.6
We also disagree with the Trial Examiner's finding that Respond-
ent had no knowledge of the concerted activity at the time of Packard's
discharge.? Thus, when Morgan during the termination interview
confronted Packard with the cartoons, Packard told him that he was
not the only employee involved. Moreover, Respondent's management
personnel were convinced that Packard was responsible for "a major-
ity" of the cartoons, and they knew that the cartoons were expressing
a dissatisfaction shown by more than one employee. Accordingly, the
evidence is clear that before Respondent discharged Packard, it
acquired knowledge of the concerted nature of his activities.
We do not agree with the Trial Examiner that Packard's activity
was unprotected or that the cartoons were of such an offensive char-
acter as to merit Packard's discharge.
The criteria applicable to cases such as the instant one is whether
the employees in the course of concerted activities engaged in such
flagrant, violent, serious, or extreme misconduct as to render them
unfit for further service.8 In our opinion, the cartoons were not of
such serious character as to disqualify Packard from reinstatement.
The greater number of cartoons were clearly inoffensive and at best
establish only a minor satirical reference to a 2-cent-per-hour wage,
increase. Nor do the cartoons that referred to the Respondent's presi-
dent by using the name "John" and the phrase "I love you all," furnish
any more cogent basis for the discharge. For the record shows that
the Respondent's president on numerous occasions directed written
communications to the employees which he concluded by using the
phrase "I love you all" and signing his name as "John" and that a
very personal atmosphere prevailed in the plant which was encouraged
by the Respondent. These cartoons could not reasonably be con-
strued as anything more than an expression of the employees' dis-
6 Washington Aluminum Company , Inc., 370 U . S. 9; Walls Manufacturing Company,
Inc., 137 NLRB 1317 , enfd 321 F . 2d 753 , cert denied 375 U S 923 , George E. Light
Boat Storage, Inc., 153 NLRB 1209; and Bonded Armored Carrier , Inc., 147 NLRB 100.
7 We will assume , without deciding , that an employer's prior knowledge of his em-
ployees ' concerted activity is an essential element in support of a finding of an illegal
discharge for such activity . See Walls Manufacturing Company, supra
8 So cony Mobil Oil Company, Inc., 153 NLRB 1244; National Furniture Manufacturing
Company, Inc., 134 NLRB 834.
INDIANA GEAR WORKS 401
satisfaction by pointing up the disparity between president Buehler's
professed love for his employees and the alleged meagerness of the
wage increase.
The remaining cartoon states, "I'll tell you where you can stick
your 2 cents per hour." At the outset, we note that the Respondent
neither singled out this cartoon among all others as being especially
offensive nor relied upon it as the crucial basis for its discharge action.
Furthermore, as heretofore indicated, the Respondent was informed
by Packard that other employees had participated in the preparation
of the cartoons and admittedly believed that some of the cartoons were
prepared by other employees. Nevertheless, we have no evidence that
it took any measures to ascertain which employees-Packard or oth-
ers-had participated in making this particular cartoon. However,
assuming, arguendo, that the cartoon was offensive in character, we
do not approve of vulgarity, but do not consider this to be of such a
grievous nature as to make Packard unfit for further service. Such
mode of expression must be viewed in the context in which it occurs.
Thus, its use is not at all unusual in work-a-day associations among
industrial workers.9 Factory and foundry employees do not always
employ the language used in polite formal society while at work.10
It is also a fact that tempers are aggravated and attitudes harden
in the stress and strain of sensitive situations such as the one involved
herein. Absolute restraint might be more desirable, but cannot be
expected realistically.
In view of the foregoing, we find that the nature of the cartoons
did not deprive Packard of the protection which the Act affords to
employees engaged in concerted activities.11
As indicated above, the Trial Examiner found that the Respond-
ent had good cause to discharge Packard even apart from his cartoon
activity. In that connection the Trial Examiner had reference to
certain past incidents involving Packard. These incidents concerned
(1) a credit inquiry regarding a garnishment proceeding, (2) bringing
a radio into the gear department, (3) disobedience while driving on
the parking lot, (4) leaving sarcastic notes for day-shift employees,
and (5) not doing his share of the work. A review of the record
shows that most of the incidents mentioned above occurred from 3
months to a year before the discharge and that at no time was Packard
warned in writing by the Respondent that such conduct made him
vulnerable to discharge even though the Respondent readily conceded
that it had a policy to give written warnings for rule infractions that
0 National Furniture Manufacturing Company, Inc ., supra
10 See Louisiana Manufacturing Company, 152 NLRB 1301, and Nebraska Bag Company,
et al., d/ b/a Nebraska Bag Processing Company, 122 NLRB 654
"Cf. Butcher Boy Refrigerator Door Company, 127 NLRB 1360, 1370-1372, enfd.- 290
F. 2d 22 (C.A. 7), and Oneita Swatting Mills, Inc., 153 NLRB 51.
402 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
would amount.to cause for discharge. Furthermore, 2 or 3 months
before the discharge, Packard's foreman, Charles McCarthy, told
Packard that his work was satisfactory. While it is true that the
above-mentioned incidents found in Packard's record were the sub-
ject matter of the termination notice, it is clear that the termination
conference itself was basically concerned with the cartoons. In light
of this fact, and the admission by Morgan and other management
personnel that the cartoons were the reason for the discharge, its
seems obvious to us that the other reasons mentioned for the discharge
were clearly pretextual.
Upon consideration of all the matters set forth above and on the
record as a whole, we find that Packard's conduct constituted pro-
tected concerted activity, and that the Respondent violated Section
8(a) (1) of the Act by discharging Packard for engaging in such
activity.
THE REMEDY
Having found that the Respondent has engaged in unfair labor
practices in violation of Section 8(a) (1) of the Act, we shall order
that it cease and desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act. It has been found that
the Respondent has discriminated against Jerry W. Packard by dis-
charging him in violation of Section 8(a) (1) of the Act. We shall
therefore order the Respondent to offer him immediate and full rein-
statement to his former or substantially equivalent position, without
prejudice to his seniority or other rights and privileges, and to make
him whole for any loss of pay he may have suffered as a result of this
discrimination against him by payment to him of a sum of money
equal to that which he would have earned as wages from the date of
the discrimination to the date of reinstatement, less his net earnings
during such period, in accordance with the formula prescribed in
F. W Woolworth Company, 90 NLRB 289, together with interest on
such sum, such interest to be computed in accordance with the formula
-prescribed in Isis Plumbing d Heating Co., 138 NLRB 716.
CONCLUSIONS OF LAW
1. Indiana Gear Works, a Division of the Buehler Corporation, is
an Employer engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. The evidence adduced herein establishes that Jerry W. Packard
was discharged on November 14, 1964, and that such discharge con-
stitutes a violation of Section 8 (a) (1) of the Act.
3. The unfair labor practice enumerated above is an unfair labor
practice affecting commerce within the meaning of Section 2(6) and
(7) of the Act.
INDIANA GEAR WORKS
ORDER
403
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the National Labor Relations Board hereby orders that the
Respondent, Indiana Gear Works, a Division of The Buehler Cor-
poration, Indianapolis, Indiana, its officers, agents, successors, and
assigns, shall:
1. Cease and desist from :
(a) Discharging employees or discriminating in regard to their
hire, tenure of employment, or any term or condition of employment,
because they have engaged in concerted activities for the purpose of
collective bargaining or other mutual aid or protection.
(b) In any like or related manner interfering with, restraining, or
coercing employees in the exercise of their right to engage in, or to
refrain from engaging in, any or all of the activities specified in
Section 7 of the Act, except to the extent that such right may be
affected by an agreement requiring membership in a labor organiza-
tion as a condition of employment, as authorized by Section 8(a) (3)
of the Act, as modified by the Labor-Management Reporting and Dis-
closure Act of 1959.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act:
(a) Offer to Jerry W. Packard immediate and full reinstatement
to his former or substantially equivalent position, without prejudice
to his seniority or other rights and privileges previously enjoyed.
(b) Make Jerry W. Packard whole for any loss of pay he may have
suffered by reason of the discrimination against him, in the manner
and in accordance with the methods referred to in the section above
entitled "The Remedy."
(c) Notify the above-named employee if presently serving in the
Armed Forces of the United States of his right to full reinstate-
ment upon application in accordance with the Selective Service Act
and the Universal Military Training and Service Act, as amended,
after discharge from the Armed Forces.
(d) Preserve and, upon request, make available to the Board or
its agents, for examination and copying, all payroll records, social
security payment records, timecards, personnel records and reports,
and all other records necessary or useful to determine the amount of
backpay due under the terms of the Order.
(e) Post at its plant in Indianapolis, Indiana, copies of the attached
notice marked "Appendix." 12 Copies of said notice, to be furnished
12 In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "a Decision and Order" the words "a
Decree of the United States Court of Appeals , Enforcing an Order."
217-919-66-vol. 156-27
404 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
by the Regional Director for Region 25, shall, after being duly signed
by the Company's representative, be posted by the Company immedi-
ately upon receipt thereof, and be maintained by it for 60 consecu-
tive days thereafter, in conspicuous places, including all places where
notices to employees are customarily posted. Reasonable steps shall
be taken by the Company to insure that said notices are not altered,
defaced, or covered by any other material.
(f) Notify the Regional Director for Region 25, in writing, within
10 days from the date of this Order, what steps have been taken to
comply herewith.
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify all employees that :
WE WILL NOT discharge any of our employees or discriminate
in regard to their hire, tenure of employment, or any term or
condition of employment, because they have engaged in concerted
activities for the purpose of collective bargaining or other mutual
aid or protection.
WE WILL NOT in any like or related manner interfere with,
restrain , or coerce employees in the exercise of their right to
engage in , or to refrain from engaging in, any or all of the activ-
ities specified in Section 7 of the Act, except to the extent that such
right may be affected by an agreement requiring membership in
a labor organization as a condition of employment, as authorized
by Section 8(a) (3) of the Act, as modified by the Labor-
Management Reporting and Disclosure Act of 1959.
WE WILL offer Jerry W. Packard immediate and full reinstate-
ment to his former or substantially equivalent position, without
prejudice to his seniority or other rights and privileges previously
enjoyed.
WE WILL make Jerry W. Packard whole for any loss of pay
he may have suffered by reason of the discrimination against him.
INDIANA GEAR WORTS, A DIVISION OF THE
BuEHLFR CORPOP,AITION,
Employer.
Dated------ ---------- By-------------------------------------
(Representative ) ( Title)
INDIANA GEAR WORKS 405
NoTE.-We will notify the above-named employee if presently
serving in the Armed Forces of the United States of his right to full
reinstatement upon application in accordance with the Selective
Service Act and the Universal Military Training and Service Act, as
amended, after discharge from the Armed Forces.
This notice must remain posted for 60 consecutive days from the
date of posting, and must not be altered, defaced, or covered by any
other material.
Employees may communicate directly with the Board's Regional
Office, 614 ISTA Center, 150 West Market Street, Indianapolis,
Indiana, Telephone No. Melrose 3-8921, if they have any question
concerning this notice or compliance with its provisions.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
The unfair labor practice charge on which the complaint herein is based was filed on
November 17, 1964. The complaint was issued on January 29, 1965, against Indiana
Gear Works, a Division of The Buehler Corporation, herein the Company or the
Respondent, alleging violation of Section 8(a)(1) and (3) of the National Labor
Relations Act, as amended. The Company filed an answer denying the commission
of any unfair labor practices. The parties were represented by counsel and participated
fully in the hearing before Trial Examiner Phil Saunders. The parties also filed
briefs and they have been duly considered by me in making my findings herein.
Upon the entire record, and from my observation and demeanor of the witnesses,
I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
The Respondent is, and has been at all times material herein, a corporation duly
organized under, and existing by virtue of, the laws of the State of Indiana. At all
times material herein, the Respondent has maintained its principal office and place of
business at Indianapolis, Indiana, and is, and has been at all times material herein,
engaged at said plant and location in the manufacture, sale, and distribution of gears,
gear trains, and related products. During the past year, which is a representative
period, the Respondent, in the course and conduct of its business operations, manu-
factured, sold, and distributed at said Indianapolis plant, products valued in excess
of $50,000, of which products valued in excess of $50,000, were shipped from said
plant directly to States of the United States other than the State of Indiana.
The complaint alleges, the answer admits, and I find that the Respondent is an
employer engaged in commerce as defined by the Act.
II. THE CHARGING PARTY
The charge in this proceeding was filed by Jerry W. Packard, the alleged discrimi-
natee, and there is no labor organization as such involved in the case.'
M. THE ALLEGED UNFAIR LABOR PRACTICES
A. The facts
Jerry Packard was discharged by the Company on November 14, 1964.2 Packard
was first hired by the Company in 1962 at an hourly rate of $1.80. In 1964 Packard
was transferred to the gear department as a gear lab inspector, and this was his job
"Packard is the only alleged 8(a)(3) involved, and there are no independent 8(a)(1)
allegations in the complaint.
a All dates are 1964 unless specifically stated otherwise.
406 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
at the time of the discharge.3 Packard worked on the night shift and his regular
hours were 5 p.m. to 1.30 a.m. and on many occasions worked 2 hours' overtime.
At the time of termination Packard was receiving $2.41 per hour as a result of auto-
matic and cost-of-living increases.
The testimony relied on in this record shows that on or about November 9, 1964,
Respondent President John Buehler announced its annual wage package to the
employees. In essence, this package provided that the less skilled employees would
get an hourly wage increase of 2 cents an hour while the more highly skilled person-
nel would get larger raises .4
During the night shift on November 13, Packard cut out various cartoons from a
newspaper and affixed them to yellow scratch paper, wrote captions on them, and then
attached these cartoons to the fluorescent light in the gear lab 5 According to Pack-
ard different employees suggested the captions for his cartoons, but he did not testify
that he used any of these suggested captions. This record also shows that during the
same night shift on November 13, employee Richard Vanderpool also put up two
cartoons on the light in the gear lab (General Counsel's Exhibits Nos. 4-A and 4-B),
and on the same occasion Gilbert Sprecher placed a clipping about the vacation plan
of Eli Lily Company on the bulletin board located in front of the gear lab. James
Rasor prepared the caption on one other cartoon (General Counsel's Exhibit No. 3),
and this was also affixed to the light in the gear lab.
On the morning of November 14, Charles Kinney, day-shift general superintendent,
arrived at work about 7 a.m. and started to check the various departments in the
plant. When Kinney arrived at the gear lab the cartoons were pointed out to him,
and after completing his rounds of the departments Kinney returned to the gear lab
and took the cartoons to the office of the Respondent's personnel manager, Robert
Glassmeyer. Assistant personnel director, Richard Hurst, was then called in, and
after looking at the cartoons Hurst stated, "It sounds like Jerry Packard." Hurst
then brought in Packard's personnel file and Kinney, Glassmeyer, and Hurst then
compared the printing on the yellow scratch sheets on which the cartoons were
mounted, with samples of Packard's printing from his personnel file, and concluded
that the captions on the cartoons were in Packard's handwriting Kinney then called
Night-Shift Superintendent Jack Morgan and told him that some derogatory and
malicious posters had been left in the gear lab. Morgan went to the plant and also
made comparisons of the handwriting on the captions with samples in Packard's
file, and then stated that it appeared to him a majority of the cartoons had been
made by Packard. At this time the four Respondent's supervisors also discussed
certain past incidents in which Packard had been involved.
This record established that a few months earlier Packard had been warned by
Morgan about disobeying and swearing at a plant guard while driving his car in the
Respondent's parking lot. Superintendent Morgan informed Packard that any fur-
3 Packard 's primary work area was in the gear lab, an enclosed room 24 feet wide by
50 feet long, located adjacent to the gear department . There is a small office in the
gear lab used by the gear department superintendent located on the right side of the
gear lab immediately inside the door. Toward the rear and along the side and rear
walls of the gear lab are workbenches used by the gear lab employees . There is also
a worktable in the center of the lab at the rear and a fluorescent light hangs over this
worktable . Employees in the gear lab customarily affix the charts they use in their work
to the overhead fluorescent light. A person entering the gear lab door and looking to-
ward the worktable and fluorescent light at the other end could see papers hanging from
the light . The job of the gear lab inspectors is to check certain elements of gears brought
into the lab by other gear department employees . Any discrepancies are then brought
to the attention of the foremen so that necessary changes can be made on the gear
grinders and cutters . Three employees worked in the gear lab on the night shift-
Jerry Packard , Gil Sprecher , and Dick Vanderpool
* Several employee witnesses called by General Counsel testified in general terms that
on occasion other employees ( unnamed) had expressed dissatisfaction with the wage
increase announced in November.
5General Counsel 's Exhibits Nos. 5 ( a) through 5(f). The caption on General Coun-
sel's Exhibit No. 5(a) contains the phrase "John don't love me any more ." General
Counsel's Exhibit No . 5(c) contains the phrase "and we love you too." General Coun-
sel's Exhibit No. 5(f ) contains the phrase "My God John ." Packard testified that the
name "John" was the most common name that came to his mind and that is why he
used that name on the captions . Packard denied that by using the name "John" he
intended to refer to President John Buehler . Packard also denied that he was referring
directly to Buehler when he wrote the captions "John don't love me anymore," "and
we love you too" on the cartoons.
INDIANA GEAR WORKS 407
ther repetition of such conduct would result in "serious corrective action." Packard
admitted this incident in his testimony. Another matter discussed was a credit com-
plaint on Packard (Respondent's Exhibit 1). Hurst had discussed this complaint
with Packard when it was received, but Packard stated that at this time it was merely
called an "employment verification." The management group further discussed inci-
dents when Utility Foreman Dick Lee and Assistant Superintendent Charles McCarty
had warned Packard concerning the latter's unsatisfactory attitude and work 6 In
this respect the record shows that about the time of the radio incident, Lee also had a
conversation with Packard about cooperating with other employees. Lee stated that
on a subsequent occasion employee Feider complained to him about Packard's coop-
eration, and that he then mentioned these matters to Foreman Morgan Further-
more, in September 1964, Foreman McCarty had received a complaint from Day-
Shift Gear Superintendent Kornmann to the effect that one of the night-shift gear lab
inspectors had been leaving sarcastic notes for the day-shift operators. McCarty
traced the notes back to Packard, and warned him not to leave notes for day employ-
ees which could be interpreted as being sarcastic. McCarty also talked to Packard
at the same time concerning his attitude toward his fellow workers on the night shift
and the sarcastic manner in which he talked to other employees. During the latter
part of October 1964, after McCarty returned from his vacation, Gil Sprecher, a
night-shift gear lab inspector, complained to McCarty that Packard was not doing
his share of the work. As a result of this complaint, McCarty talked with Feider, who
confirmed that he had complained earlier about Packard to Lee. Feider also stated
to McCarty, referring to Packard, that it was the first time in his opinion that the
Company had hired a clown to entertain the people. McCarty then reported these
conversations to Morgan, and they decided to observe Packard's performance to see if
any improvement was made.
As a result of this discussion relating to Packard by Morgan, Kinney, Glassmeyer,
and Hurst, it was then decided to call Charles McCarty, Packard's immediate super-
visor. Kinney then read some of the cartoon captions to McCarty over the telephone
and also described the cartoons. McCarty informed Kinney that it "sounded like
Jerry Packard," and that he had noticed some yellow scratch paper near Packard's tool
box. McCarty then informed Kinney that the Company should terminate Packard,
and at this point it was decided that the total of Packard's conduct constituted good
cause for his discharge.?
It also appears from this record that it is customary for the Company to notify
the shop committeeman if and when an employee in his department is to be termi-
nated. However, the Company was not sure whether Jon Osborne-Packard's shop
committeeman-would be working on November 14, and as a result the night-shift
chairman of the shop committee, Joe Jones, was called, and Jones then came to the
plant about 3:30 p.m. Upon arrival Jones was shown the cartoons and he stated
that they looked "kind of slanderous" to him. Jones was then also given an opportu-
nity to compare the handwriting of the captions with samples from Packard' s person-
nel file and he concluded that the writing was the same. Jones was then given a copy
of the termination memo, and the incidents of prior misconduct were discussed with
him. After explanations of the reasons for discharge Jones did not question any fur-
ther the decision to terminate Packard. He requested permission to sit in on the
termination conference and this was granted. As chairman of the shop committee,
Jones stated that he probably could have appealed the discharge decision to the presi-
dent of the Company, but he did not do so. Jones testified that he did not consider
that Packard was being unfairly treated.
At the termination conference Morgan first informed Packard that he thought they
knew each other well enough that if he (Packard) had a complaint he could come to
him and discuss it, or could discuss it with someone in the personnel office, and could
6 Dick Lee had replaced McCarty when the latter had been in the hospital during June
and July 1964, and when he was on vacation during the first 2 weeks of October 1964
The Company has a policy prohibiting employees from bringing radios into the plant
except for special sports occasions. At some time during June or July, Packard brought
a radio into the plant. Lee saw the radio and advised Packard of the Company's policy
and told him he would have to remove the radio. Packard did so; however, the follow-
ing weekend Packard again brought the radio back into the plant and Lee reprimanded
Packard for having violated his instructions. Packard admitted bringing a radio into
the plant on one occasion and being told by Lee to remove it.
7A termination memo was then prepared setting forth all of the various incidents of
misconduct involving Packard (General Counsel's Exhibit 6). It was also decided
that Packard would be terminated at 4 p in. that evening-tbe start of his shift-and that
Morgan, Hurst, and Kinney would be present at the termination conference.
408 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
not understand why Packard thought it was necessary to go to this extreme to make
his thoughts known. Morgan then showed Packard the cartoons and asked him if
he had done this. Packard admitted that he had, but stated that he was not the only
one involved. Joe Jones then asked Packard to give the names of others involved
and Packard replied that he would not. Packard was also asked whether he under-
stood the wage increase and what it would mean to him. Packard was then handed
a copy of the termination memo and told that he was being terminated. The only
item on the termination memo which Packard questioned was the first item-credit
complaint. According to Joe Jones, a witness called by the General Counsel, Packard
was given adequate time to question any of the other statements concerning his past
conduct as listed on the termination memo. Shortly before the conference ended
Morgan returned with Packard's toolbox, and on top of the box was a yellow scratch
pad of the same size as the paper to which the cartoons had been affixed.8
B. Contentions and conclusions
The General Counsel mainly contends that Packard was discharged for engaging
in protected concerted activity; that the Company had every opportunity to know that
Packard was not acting alone in seeking redress of the gear department's grievance
over the 2-cent-per-hour raise; and that Packard was acting in concert with other
employees when the cartoons were prepared and posted.
In respect to the cartoons the General Counsel specifically points out that a com-
parison between General Counsel's Exhibits Nos. 3, 4-A, 4-B, and 5-A through F,
reveals that they are not the product of the same person; and that no effort was made
by the Respondent to ascertain the identity of the other employees taking part in this
protest despite the obvious differences and admitted doubts as to the authorship of
at least three of the cartoons.
It should first be noted here that there was testimony showing that at various times
clippings and cartoons of a humorous nature relating to bowling, golf, and other
sporting events are frequently posted by employees on different walls and bulletin
boards in the plant, and there appears to be no company policy against such postings.
However, Personnel Director Glassmeyer stated that he had never seen cartoons
posted in the plant of an insulting nature directed toward the president of the Com-
pany as those involved in this proceeding.
In my analysis of the factors surrounding the cartoons involved herein-it appears
to me that there is lacking sufficient evidence to show that Packard's action in prepar-
ing and posting his captioned cartoons was for the object of initiating, or inducing,
or preparing for group action any activity about the amount of the wage increase
announced by the Company. And, of course, it is well established by the Board and
the courts that this is a vital element for a finding of concerted activity. In fact,
there is no testimony or any verbal assertions whatsoever that Packard's preparation
and posting of his cartoons were in any manner even calculated to induce group
action by the employees to correct a grievance, and such as an "indispensable" pre-
liminary step to employee self-organization.9 Moreover, Packard himself freely
admitted that he knew of no agreement among employees to present their complaint
as a group to the Company, and further admitted that to his knowledge no one had
been selected to act as a spokesman in presenting such a complaint grievance on the
Respondent's 1964 wage package. Therefore, it can be readily ascertained from
Packard's own testimony that he was not engaged in protected concerted activity. The
General Counsel relies on the fact that two or three other employees in the lab
department either helped Packard prepare the cartoons or made some of the cartoons
themselves. However, even these circumstances do not necessarily convert these
efforts into protected concerted activity as to be such it must be activity looking
toward group action, and in this case there is no convincing evidence in proof thereof.
Certainly, there is no evidence that Packard had received any authority from the
other employees to speak in their behalf, and the record contains Packard's own
admission to the contrary, as aforestated. In total aspects of the factual picture pres-
ent here-there is insufficient evidence to support a finding that Packard's activities
involved any effort on his part to initiate or promote any group action to do anything
about the employees' complaints, and it must be deemed, therefore, to be an individual
effort and nothing more. As pointed out previously herein Packard had received a
prior warning about his authorship and the leaving of sarcastic notes to day-shift
8 Directly after Packard was discharged on November 14-Jon Osborn, Packard's own
committeeman , as aforestated , was also given the reasons for the termination.
8 See N.L.R.B . v. The Office Towel Supply Company, Incorporated, 201 F. 2d 8318, 841,
setting aside 97 NLRB 449.
INDIANA GEAR WORKS 409
employees, and in a meaningful sense the cartoons involved here were merely an
extension of his own personal habits and characteristics which the previous warning
had failed to correct.lo
Additional evidence in this record shows that the Company would consider it
proper for an employee to make any complaint directly to his supervisor, and then
to Glassmeyer in the personnel department, or to his shop committeeman or shop
chairman, but there appears to be no requirement that complaints be channeled
specifically through the shop committee. Personnel Director Glassmeyer testified
that shortly after the November 1964 wage package was announced, the day-shift
shop committee raised a question about it. Conferences were then held and as a
result the Company made certain changes in its 1964 wage package 11 In point out
the above because it appears to me that this action and corrective measure shows the
good-faith intentions of the Company when it was met with rightful and purposeful
employees' concerted activities, and further shows that at least one sizeable number
of employees had successfully protested some aspect of the wage package when there
was legitimate group direction and participation in their concerted efforts-rather
than some individual employee merely slinging personal vilifications against the pres-
ident of the Company because of his own dislikes. It might be argued here that the
mere posting of the cartoons on the light fixture in the gear lab was activity that must
be deemed sufficient to induce group action. However, from my observation and
demeanor of Packard, along with the other factors here, I firmly believe that this
conduct was merely in satisfaction of his own personal whim or gratification, and
the carrying out of further habitual sarcastic reflections against those he worked for
and with. There is nothing substantial in this record to show otherwise.
Even assuming, however, that Packard was engaged in concerted activity-it is
necessary to establish that at the time of the discharge the Company had knowledge
of such activity. In efforts to show such knowledge the General Counsel produced
testimony through four or five witnesses to the effect that some employees had con-
versations with Foreman Russell Terrell in the gear lab sometime between the date
the annual package was announced and the date of Packard's discharge. The testi-
mony as to the contents of this conversation was very vague. Apparently one
employee had asked Terrell a question about the wage package and Terrell spent a
few minutes explaining the package. Packard did not participate in the discussion.
These witnesses for the General Counsel also testified about a conversation with Chief
Inspector Ted Heiliger concerning the wage package. This conversation also took
place in the gear lab sometime between the announcement of the package and Pack-
ard's discharge. Heiliger testified that Packard had made the statement to him that
the amount of the increase was less than expected. Heiliger then spent a few min-
utes explaining the increase. Packard testified on direct examination that he had told
Heiliger that if the Company could not afford to give more, then it could keep his
2 cents an hour. On what cross-examination Packard admitted that he could not
remember what any particular person had said. In my analysis of this testimony it
is noted that neither Heiliger nor Terrell was a supervisor or foreman of Packard, and
there is certainly no testimony whatsoever by any witness to show that Heiliger or
Terrell had communicated the fact of the above conversations to the management per-
sonnel (Morgan, Glassmeyer, Kinney, and Hurst), who made the actual decision to
terminate Packard, as aforestated. Nothing that happened during either of the above
episodes could be construed as placing Respondent on notice that Packard was one of
a group of employees engaged in group action to do something about the amount of
the wage increase. Furthermore, at the termination conference Foreman Morgan told
Packard that he was free to talk to supervisors over his complaints. Packard did not
then, or at any other time during this conference, state that he had ever registered any
complaint over the matter with Terrell or Heiliger. At the start of the termination
conference, Packard was also asked to give the names of any other employees who
were involved in making the cartoons, but he declined to do so. In this respect
the Respondent's position is as follows:
Respondent submits that under these circumstances, further inquiry was not
reasonably called for, and that Packard's unsupported claim that others were
"involved" was not sufficient to establish that at the time of the discharge,
Respondent had knowledge of the concerted nature of the activity. Respondent
had no reason to believe that Packard's activity was for or on behalf of anyone
other than himself.
10 Lloyd Fiscus testified that around Christmas time someone had put up a sign at
the entrance to the gear lab reading , "You are not entering fairyland."
n Respondent's Exhibit 2.
410 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I agree , and as I have found even with the assumption that Packard was engaged in
concerted activity, there is insufficient evidence to show company knowledge of this
activity at the time Packard was discharged.
In addition to the above, it is also well-recognized law that an employee engaged in
concerted activity ( assuming again that Packard was so engaged and with knowledge
to the Company) loses the protection of the Act when he oversteps the bounds of
lawful activity and engages in flagrant misconduct. In Bettcher Manufacturing Cor-
poration, 76 NLRB 526, the Board stated in part as follows:
A line exists beyond which an employee may not with impunity go, but
that line must be drawn between cases where employees engaged in concerted
activities exceed the bounds of lawful conduct in a moment of animal exuber-
ance or in a manner not activiated by improper notices, and those flagrant cases
in which the misconduct is so violent or such serious character as to render the
employee unfit for further service.
The evidence in this record shows that the cartoons prepared and posted by Packard
were pointedly aimed and directed at President Buehler, holding him up to contemptu-
ous ridicule, and were insulting, sarcastic, and malicious, and showing a clear dis-
loyalty to the company and indefensible by all accepted standards of conduct. Two
of the cartoons contained the proper name "John," General Counsel's Exhibits Nos.
5(a) and (f), and to use a variation of the phrase "I love you," General Counsel's
Exhibits Nos. 5(a) and (c). Packard denied that by using the name "John" or varia-
tions of the phrase "I love you," he intended to refer to President John Buehler. How-
ever, five witnesses testified that use of the word "John" was an obvious reference to
John Buehler, and that use of the phrase "I love you" was again a clear cut reference
to John Buehler as this was a customary and widely known phrase used by him in
verbal and written communications to employees.12 Furthermore, the malicious and
derogatory nature of the cartoons prepared by Packard is self-apparent to anyone
seeing them. For instance, the caption on General Counsel's Exhibit No. 5(e) states,
"I'll tell you where you can stick your 2 cents an hour!" Such a personal flagrant
outpouring of misconduct would most certainly have a serious and disruptive effect
on any effective plant discipline, and most assuredly also rendered Packard's continued
services with the Company useless.13
In my analysis here this record shows that there were recognized channels for com-
plaints of employees; that such channels had been used by a large number of employ-
ees in registering their group complaint about the wage package and a change was
thereafter made; that the Company through supervisors had advised employees about
the wage package; and that the Company has no animus whatsoever to employees
who presented complaints through means not activated by improper and flagrant
misconduct.
In a brief summary of the other reasons given for Packard's discharge, as afore-
stated, it is pointed out that the only item Packard questioned on his termination
memorandum was the reference to a credit inquiry. It is apparent from reading this
document that it dealt with some aspects of garnishment proceedings, and at the time
Assistant Personnel Director Hurst had some discussion with Packard about it.14 At
his termination conference Packard did not question any of the other matters on the
memorandum, and the evidence in these respects show that Packard had been
warned about bringing a radio into the lab, warned against disobedience while driving
in the parking lot, warned about leaving sarcastic notes for day-shift employees, and
warned on two or three occasions about his uncooperative attitude or not doing his
share of the work.15 From merely these reasons and incidents it appears to be that
the Company had good cause to terminate Packard even apart from his activities
involving the cartoons.
In concluding here I have no doubt that Morgan and McCarty were considerably
upset and annoyed by Packard's contentious attitude toward his work, and his con-
tinuous lack of a cooperative spirit, and they undoubtedly seized upon Packard's
cartoons as the final act in a rather long series of difficulties with him. The decision
12 Examples of communications to employees by John Buehler are in evidence-and
close with the phrase, "I love you, John."
13 See Socony Mobil Oil Company, Inc, 153 NLRB 1244
14 That credit complaints are considered serious offenses by Respondent is evidenced
from General Counsel No. 10, which shows that of the 17 employees terminated by the
Company during the years 1963, 1964, and 1965 (to April 1), 4 were discharged for
credit complaints.
15It is readily admitted that no written warnings were given to Packard even though
the Respondent's policy is aimed toward such a practice
PENN CORK & CLOSURES, INC. 411
to discharge Packard may of course been hastened by thoughts that Packard was a
potential agitator of certain imagination and ingenuity in the gear department, but
evidence to support such a motivation is extremely tenuous. In fact, it exists almost
exclusively, if not entirely so, upon an evaluation of the circumstances that the Com-
pany had a comfortable and secured relationship with the shop committee, and did
not want it to be disturbed. However, the facts that must be relied on without mere
speculation is that Packard was a dissenting element who objected to the wage
package. Equally clear are the facts that his objections registered through the
cartoons caused concern in their pointed direction and personal attack on President
Buehler. To my knowledge the Act does not protect malicious ridicule or flagrant
misconduct, nor activity to destroy plant discipline, nor does it protect the misconduct
of an employee who renders himself unfair for further service by his own individual
deeds. Moreover, the Company did not know that Packard was leading any group as
openly acknowledged in Packard's own testimony, and to put the frosting on the cake,
so to speak, the night-shift chairman of the shop committee, Joe Jones, stated that
under the particular circumstances involved in this discharge he did not feel that
Packard was unfairly treated. Neither do I. I conclude and find that on the record
presented here a preponderance of the evidence does not support the complaint that
Packard was discharged in violation of Section 8 (a) (3) and (1) of the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. The Respondent is engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. The allegations of the complaint that the Company has engaged in and is engag-
ing in unfair labor practices within the meaning of Section 8(a) (1) and (3) of the
Act have not been sustained.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law , and upon
the entire record in this case, it is recommended that the complaint herein be dis-
missed in its entirety.
Penn Cork & Closures, Inc. and Alejandrino Vega Sustache and
District Lodge No. 15 of the International Association of Ma-
chinists, AFL-CIO, Party to the Contract . Case No. P9-CA-
171. December 28,1965
DECISION AND ORDER
Upon charges duly filed on March 9, 1965, by Alejandrina Vega
Sustache, an individual, the General Counsel for the National Labor
Relations Board, by the Regional Director for Region 29, issued a
complaint on June 22, 1965, against Penn Cork & Closures, Inc.,
herein called the Respondent, alleging that it had engaged in and was
engaging in unfair labor practices affecting commerce within the
meaning of Section 8(a) (1) and (2) of the National Labor Relations
Act, as amended. Copies of the complaint, the charge, and notice of
hearing were duly served upon the Respondent and upon District
Lodge No. 15 of the International Association of Machinists, AFL-
CIO, Party to the Contract, and upon the Charging Party.
With respect to the unfair labor practices, the complaint alleged,
in substance, that by continuing to deduct union membership dues
under employee checkoff authorizations following union deauthoriza-
156 NLRB No. 39.