Carborundum Resistant Materials Corp.

National Labor Relations Board - Board Decisions

Nov 30, 1987

286 N.L.R.B. 1321 (N.L.R.B. 1987)

CARBORUNDUM MATERIALS CORP. 1321
Carborundum Resistant Materials Corporation, a Di-
vision of Carborundum Company ,, Inc., a Sub-
sidiary of Sohio Chemical and Industrial Prod-
ucts Company and Marilyn Magyar . Case 22-
CA-13751
30 November 1987
DECISION AND ORDER
BY MEMBERS JOHANSEN, BABSON, AND
STEPHENS
On 6 December 1985 Administrative Law Judge
Steven B. Fish issued the attached decision. The
General Counsel filed exceptions and a supporting
brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding, to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge' s rulings, findings, I and
conclusions only to the extent consistent with this
Decision and Order.
The complaint, as amended , alleges that the Re-
spondent violated Section 8(a)(4) and (1) of the Act
when its supervisor, Casting Department Foreman
Phillip McVay, threatened employee Marilyn
Magyar with a lawsuit and other unspecified re-
prisals because she had filed an unfair labor prac-
tice charge with the Board ." The judge credited
testimony that, in September 1984, McVay had
threatened to get Magyar and to sue her because
she had filed an unfair labor practice charge with
the Board. He found, however, that the Respond-
ent could not be held accountable for McVay's
statements and had not violated the Act by them
because McVay was a low-level supervisor whose
remarks concerned the filing, of a lawsuit on his
personal behalf. He also found there was no evi-
dence that the statements were made with the
knowledge of, or were otherwise attributable to,
i The Respondent has excepted to some of the judge 's credibility find-
ings . The Board's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect . Standard Dry
Wall Products, 91 NLRB 544 (1950), enfcl 188 F 2d 362 (3d Cir 1951).
We have carefully examined the record and find no basis for reversing
the findings.
2 On 11 March 1985 Charging Party Magyar filed a charge with the
Board alleging that the Respondent had violated Sec 8(a)(1) and (4) by
threatening her because she had filed a charge under the Act. On 19
April 1985 the Regional Director issued a complaint alleging that the Re-
spondent had violated Sec. 8(aXl) by threatening Magyar with a lawsuit
and other unspecified reprisals because she had filed, a charge under the
Act On 10 May 1985 the Regional Director approved the withdrawal of
that aspect of the charge alleging an 8(a)14) violation based on that con-
duct. On 11 June 1985 Magyar filed an amended charge reinstating the
allegation that the same conduct also violated Sec. 8(a)(4) At the hearing
on 17 June 1985 , the judge granted the General Counsel 's request to
amend the complaint to include the 8(a)(4) charge filed on 11 June
the Respondent, or that they involved a form of re-
taliation within the framework of McVay's supervi-
sory responsibilities. In reaching his conclusions,
the judge relied on Postal Service, 275 NLRB 360
(1985).
Contrary to the judge, we find that this case is
distinguishable from Postal Service and, for the fol-
lowing reasons, we find that the Respondent, by
McVay's statements violated the Act.3
In Postal Service, the Board dismissed an allega-
tion that the respondent had violated Section
8(a)(1) when a temporary supervisor privately in-
formed the union president that she intended to file
a lawsuit against the union for, inter alia, harassing
her by filing grievances with the respondent re-
garding her purported preferential treatment by the
respondent. The Board held that the comments,
which it found were made by a temporary low-
level supervisor and which concerned the filing of
a lawsuit on her own behalf and which did not in-
volve any form of retaliation within the framework
of her supervisory responsibilities, could not be
construed to involve any threatened retaliation at
the workplace by the respondent. The Board con-
cluded, in the absence of evidence that the re-
spondent knew of the remarks or any additional
circumstances that would make them attributable
to the respondent, that the statements were not un-
lawful.
In contrast to Postal Service, the credited testimo-
ny in the instant case shows that McVay was not a
temporary supervisor. Rather, he was the casting
department foreman , was in charge of all employ-
ees in the casting department, and had held that
position for approximately 10 years. His statement
that he would "get" Magyar and would sue her
personally for jeopardizing his job because of her
involvement with the unfair labor practice charge
is both a threat directly related to the workplace as
well as a threat to file a lawsuit. The threat4 to
"get her" thus involves a form of retaliation by
McVay within the framework of his supervisory
responsibilities. This is unlike the situation in Postal
Service, in which it is clear that the statements in
issue solely concerned a threat to sue. Finally, we
note that in Postal Service, the alleged threat was
directed toward the union for filing grievances al-
8 In dismissing the complaint in its entirety on the basis on which he
did, the judge did not rule on a number of other issues raised by the par-
ties In light of our reversal of his dismissal , these issues-which include
whether the instant complaint is barred by Sec 10(b) of the Act, whether
the 8(a)(4) charge , which was previously withdrawn , was improperly re-
instated, whether the matter should be deferred to arbitration, and wheth-
er the violation , if found, warrants a remedy-are addressed below.
Member Johansen did not participate in Postal Service and expresses no
view on its validity
4 See, e g, Safety Railway Service Corp, 198 NLRB 385, 387 (1972).
286 NLRB No. 126
1322 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
leging that the respondent gave the temporary su-
pervisor preferential treatment in her employee ca-
pacity. Here , McVay's statements were directed
toward an employee who had filed charges with
the Board alleging interference by the Respondent,
which led to an investigation into McVay's con-
duct in his supervisory capacity.5 In sum, we find
that McVay's statements here are properly attribut-
able to the Respondent and that the Respondent
violated Section 8(a)(1) of the Act by threatening
an employee because she had filed a charge with
the Board .6 See, e.g., Clyde Taylor Co., 127 NLRB
103, 108 (1960); Houston Chronicle Publishing Co.,
227 NLRB 1829, 1831-1832 (1977).
Turning to the remaining issues, we note that the
Respondent contends that the matter, which it
argues involves only an alleged 8(a)(1) violation, is
subject to the contractual grievance procedure and
should be deferred to arbitration under United
Technologies Corp., 268 NLRB 557 (1984). Alterna-
tively, the Respondent argues that, even if a viola-
tion is found , it is de minimis and does not warrant
a remedy within the meaning of Titanium Metals
Corp., 274 NLRB 706 (1985), because the incident
is isolated and occurred in the context of an overall
harmonious collective-bargaining relationship. The
General Counsel argues that deferral is inappropri-
ate and, further, that a remedy is required when, as
here, the violation involves interference in an em-
ployee's access to the Board's processes. We find
merit in the General Counsel's arguments.
In United Technologies, the Board returned to the
policy established in Collyer Insulated Wire, 192
NLRB 837 (1971), and made it clear that it would
defer to arbitration complaints alleging 8(a)(1), (3),
s See Member Dennis' separate opinion , concurring in relevant part, in
Postal Service.
6 Inasmuch as we have found that McVay's threat violated Sec. 8(aXl)
of the Act , we find it unnecessary to consider whether the statements
also violated Sec 8 (a)(4) The Order provides an adequate remedy. Ac-
cordingly , we also find it unnecessary to pass on the Respondent's con-
tention that the 8(aX4) charge , which had been previously withdrawn,
was untimely reinstated . Finally, the Respondent also contends that the
entire complaint , based on a charge filed 11 March 1985 , was barred by
Sec 10(b) because the date of the alleged threat was 10 September 1984
In support of its argument , the Respondent points out that a document
listing Magyar 's grievance filed with the Union , which was introduced
into evidence at hearing, refers to 10 September 1984 as the "Complaint
Date " We note that the document contains no explanation of what is
meant by "Complaint Date." Further , we note that attached to the docu-
ment in question is a sheet enumerating various instances of alleged har-
assment of Magyar by the Respondent, which occurred both before and
after September 1984. When questioned at the hearing , Magyar stated
that she did not know why the union representative who prepared the
document cited 10 September as the "Complaint Date" and had no idea
to what it referred She also testified without contradiction that she
signed the document on 19 April 1985 (which is shown on the document
as the "Grievance Date") In light of the total record , we find that the
Respondent has not established that the entire complaint was time-barred
Moreover, it appears that the judge in crediting Magyar 's testimony con-
cerning the September conversation credited her statement that it oc-
curred in late September.
or (5) violations when the underlying issues are
cognizable under the grievance-arbitration provi-
sions of the parties' collective-bargaining agree-
ment. Subsequent to United Technologies, however,
the Board has expressly reaffirmed its longstanding
policy that the resolution of questions concerning
access to the Board's processes is solely within the
Board's province to decide. In International Har-
vester Co., 271 NLRB 647 (1987), the Board, quot-
ing language from Filmation Associates, 227 NLRB
1721, 1722 (1977), stated:
The prohibition expressed in Section 8(a)(4)
against discharging or otherwise discriminating
against an employee because he has filed
charges or given testimony under the Act is a
fundamental guarantee to employees that they
may invoke or participate in the investigative
procedures of this Board without fear of re-
prisal and is clearly required in order to safe-
guard the integrity of the Board's processes. In
our view the duty to preserve the Board's process-
es from abuse is a function of this Board and
may not be delegated to the parties or an arbitra-
tor. [Emphasis added.]
Where, as here, we find that the 8(a)(1) violation
involves interference with access to the Board's
processes, we also find that deferral to arbitration
is not appropriate. Houston Chronicle Publishing
Co., above, 227 NLRB at 1831 fn. 1.
We further find no merit to the Respondent's
contention, based on Titanium Metals Corp., above,
that a finding of a violation in this case does not
warrant a remedy. In Titanium Metals Corp., the
Board found an 8(a)(1) violation when a supervi-
sor's threats to "get" an employee and to "watch
[him] very close[ly] in the future" were directed
toward a grievance committeeman who had pre-
sented a grievance on behalf of another employee.
The Board, however, further found that the threat
was an isolated event and occurred in the context
of an overall harmonious 30-year collective-bar-
gaining relationship . On these and other facts, the
Board declined to issue a remedial order. In so
doing, it agreed on the particular facts of that case
with the judge that the policy considerations noted
in Musicians Local 76 (Jimmy Wakely Show), 202
NLRB 620 (1973), were applicable to the facts in
Titanium Metals Corp.,' We reject the Respond-
ent's contention that these policy considerations are
similarly applicable to the instant situation, which
involves interference with an employee's access to
7 In Jimmy Wakely Show, the Board found certain conduct in technical
contravention of the Act but ultimately of a de minimis nature
Member Johansen did not participate in Titanium Metal Corp., and ex-
presses no view on its validity.
CARBORUNDUM MATERIALS CORP. 1323
the Board 's processes . Accordingly, we shall issue
an appropriate remedial order.8
AMENDED CONCLUSIONS OF LAW
Substitute the following f'or Conclusion of Law
2.
"2. The Respondent violated Section 8(a)(1) of
the Act by threatening an employee with unspeci-
fied reprisals , including the filing of a lawsuit, be-
cause she had filed an unfair labor practice charge
with the Board."
REMEDY
Having found that the Respondent has violated
the Act by threatening an employee with unspeci-
fied reprisals , including filing of a lawsuit, because
she had filed an unfair labor practice charge with
the Board , we shall order the Respondent to cease
and desist therefrom and to take certain affirmative
action designed to effectuate the policies of the
Act.
ORDER
The National Labor Relations Board orders that
the Respondent, Carborundum Resistant Materials
Corporation, a Division of Carborundum Compa-
ny, Inc., a Subsidiary of Sohio Chemical and In-
dustrial Products Company, Keasbey, New Jersey,
its officers, agents, successors , and assigns, shall
1. Cease and desist from
(a) Threatening employees with unspecified re-
prisals, including filing of a lawsuit, because they
have filed unfair labor practice charges with the
Board.
(b) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them by Section 7
of the Act.
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act.
9 The Respondent contends that the Supreme Court opinion in Bill
Johnson's Restaurants v. NLRB, 461 U S 731 (1983), precludes the finding
of an unfair labor practice in circumstances where , as here, an individual
has threatened to file a well-founded lawsuit against another individual
In Bill Johnson's, the Supreme Court held that the Board may not enjoin
the filing and prosecution of a state court lawsuit unless the suit lacks a
reasonable basis in fact or law We note, however, the existence of cer-
tain factors that serve to distinguish this case from Bill Johnson's First,
we note that the threat here with its reference to "getting" an employee
is a threat related to the workplace . Thus, the unlawful statement encom-
passes more than a threat to file a lawsuit. Additionally, Bill Johnson's
dealt with an actual lawsuit . Here , we are dealing with a threat to file a
lawsuit. The Board has historically distinguished between the filing of
employer lawsuits against employees and employer threats to sue for pro-
tected activity The latter has consistently been found to be an unfair
labor practice and we find nothing in Bill Johnson s that would affect that
longstanding Board law . See, e g , Clyde Taylor Co, above, 127 NLRB at
108; Houston Chronicle Publishing Co., 227 NLRB at 1831-1832, West
Point Pepperell, 200 NLRB 1031, 1039-1040 (1972) Accordingly, we find
Bill Johnson 's inapplicable to the facts of this case.
(a) Post at its plant in Keasbey, New Jersey,
copies of the attached notice marked "Appendix."9
Copies of the notice, on forms provided by the Re-
gional Director for Region 22, after being signed
by the Respondent's authorized representative,
shall be posted by the Respondent immediately
upon receipt and maintained for 60 consecutive
days in conspicuous places including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent
to ensure that the notices are not altered, defaced,
or covered by any other material.
(b) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply.
9 If 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 Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representa-
tives of their own choice
To act together for other mutual aid or pro-
tection
To choose not to engage in any of these
protected concerted activities.
WE WILL NOT threaten you with unspecified re-
prisals, including filing of a lawsuit, because you
have filed unfair labor practice charges with the
Board.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
CARBORUNDUM RESISTANT MATERI-
ALS CORPORATION, A DIVISION OF
CARBORUNDUM COMPANY, INC., A
SUBSIDIARY OF SOHIO CHEMICAL
AND INDUSTRIAL PRODUCTS COMPA-
NY
1324 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Bernard Mintz, Esq., for the General Counsel.
William Gorenc Jr., Esq., of Cleveland, Ohio, for the Re-
spondent.
DECISION
STATEMENT OF THE CASE
STEVEN B. FISH, Administrative Law Judge. Pursuant
to charges filed on 11 March 1985, by Marilyn Magyar,
against Carborundum Resistant Materials Corporation, a
Division of Carborundum Company, Inc., a Subsidiary
of Sohio Chemical and Industrial Products Company
(Respondent), the Regional Director for Region 22
issued a complaint and notice of hearing on 19 April
1985. The complaint alleged that Respondent violated
Section 8(a)(1) of the Act by threatening Magyar with a
lawsuit and other reprisals because she filed charges
under the Act against Respondent. On 11 June 1985
Magyar filed an amended charge against Respondent, re-
sulting in an amendment to the complaint on 17 June
1985, alleging that the same conduct of Respondent also
violated Section 8(a)(4) of the Act.
The hearing with respect to the issues raised by the
complaint, as amended, was heard before me on 17 June
1985 in Newark, New Jersey.
Briefs have been received from Respondent and the
General Counsel and have been carefully considered.
On the entire record, including my observations of the
demeanor of the witnesses, I make the following
FINDINGS OF FACT
1. JURISDICTION
Respondent, a Delaware corporation, maintains a place
of business in Keasbey, New Jersey, where it is engaged
in the manufacture, sale, and distribution of carborundum
buck and related products and services. During the past
year Respondent purchased goods and materials valued
in excess of $50,000, directly from suppliers located out-
side the State of New Jersey.
It is admitted and I so find that Respondent is an em-
ployer engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act.
II. FACTS
Magyar has been employed by Respondent for 9 years,
and is presently employed as a caster . Phillip McVay,
the casting department foreman, is her immediate super-
visor. 11
Respondent and Local 8-490, Oil, Chemical and
Atomic Workers Union, AFL-CIO (the Union), have
had a longstanding collective-bargaining relationship
covering various classifications of employees at its Keas-
bey, New Jersey plant. The current collective-bargaining
agreement runs from 25 February 1984 to 28 February
1986. The contract contains a grievance procedure,
which provides for submission of an initial grievance by
an employee to their foreman at the first step, and for
various steps culminating in arbitration, if necessary.
' McVay's supervisory status is admitted by Respondent.
On 3 July 1984 Magyar filed an unfair labor practice
charge with Region 22 in Case 22-CA-13322. The
charges were amended on 10 and 16 August 1984. These
charges allege in substance that Respondent violated
Section 8(a)(1) of the Act in January and February 1984,
by interfering with, restraining, and coercing Magyar, by
interfering with her filing and processing of grievances
under the contract with the Union, and by engaging in
surveillance of its employees.
During the course of the investigation of the above
charges, Magyar accused McVay of refusing to give her
permission to see higher union officials, had subjected
her to more difficult working conditions, and had pro-
hibited her from wearing and verbally harassed her over
the wearing of a T-shirt.2
On 31 July, Board Agent Brian Schrieber met with
Respondent's supervisors, McVay and Ted Possert, Re-
spondent's casting department superintendent, and
McVay's immediate superior. McVay was asked ques-
tions concerning the various incidents alleged by Magyar
concerning McVay's conduct.
Shortly thereafter , sometime in August 1984, Magyar
approached McVay on the casting floor. She told
McVay that she did not blame him personally for the ac-
tions that she charged him with at the Labor Board. She
added that she felt that he was acting at the behest of his
supervisor , Ted Possert. McVay replied that he ran the
department.3
On 17 August 1984 the Regional Director approved
the withdrawal of that portion of Magyar's charge re-
garding interference with access to union representatives
for filing of grievances, verbal harassment, and subject-
ing her to more onerous working conditions. Also on 17
August, a complaint and notice of hearing was issued
against Respondent with respect to Magyar's charges, al-
leging violations of Section 8(a)(1) of the Act by the ac-
tions of Possert, of keeping under surveillance the activi-
ties of employees by photographing employees engaged
in a strike, and by interfering with processing of employ-
ee grievances by interrupting union representatives while
engaged in grievance investigations. The complaint con-
tained no reference to any actions of McVay, and
McVay's name was not included in the document.
On 9 November 1984 the Acting Director issued a
letter to the parties , advising that the portions of the
charge (which had been included in the complaint) deal-
ing with the alleged interference with the processing of
grievances would now be administratively deferred to
the parties' grievance arbitration procedure.
On 31 December 1984, the Acting Regional Director
issued an order, reconsidering its earlier decision to issue
a complaint on the surveillance allegation of the com-
z The T-shirt read "Kiss my ass, I'm on vacation "
a I credit McVay's version of this conversation over Magyar's asser-
tions that McVay threatened a lawsuit against her at that time I note that
this alleged threat in August by McVay was not made the subject of any
of the complaints issued here, nor any of the numerous grievances filed
by Magyar Additionally, as will be noted more fully infra, McVay did
not discuss the matter of his options with his attorney until September
1984, wherein his lawyer suggested a lawsuit Thus, I find it unlikely that
McVay would mention suing Magyar prior to that time
CARBORUNDUM MATERIALS CORP.
plaint, withdrawing the complaint and dismissing that al-
legation of the charge.
Magyar subsequently appealed this action of the
Region, resulting in the General Counsel denying the
appeal on 25 January 1985.
The charges that led to the filing of the instant com-
plaint were filed as noted on 11 March 1985. This charge
alleged that Respondent since about 15 September 1984
threatened and coerced Magyar because she filed
charges under the Act.
On 19 April 1985 the Regional ]Director issued a letter
deferring to the parties' grievance procedure the portions
of this charge alleging an interference with the process-
ing of grievances.4
Also, on 14 April, the instant complaint was issued, al-
leging that Respondent by McVay threatened Magyar
with a lawsuit and other unspecified reprisals because she
filed charges in Case 22-CA-13222, in violation of Sec-
tion 8(a)(1) of the Act.
On 10 May 1985 the Regional Director approved the
withdrawal of that portion of the charge that alleges a
violation of Section 8(a)(4) of the Act.
By letter dated 4 June 1985, Respondent submitted a
statement of position to the Region, requesting that the
Region also defer to the arbitration procedure, the mat-
ters alleged in the instant complaint. The letter points out
among other things that on 19 April 1985, Magyar filed a
grievance with Respondent alleging a series of incidents
by Respondent's officials, including the matter referred
to in the instant complaint.
The record reveals that Magyar did file such a griev-
ance on 19 April 1985, setting forth 10-11 incidents in-
volving McVay and/or Possert, dating from July 1983 to
February 1985. One of these incidents does seem to refer
to the incident alleged in the instant complaint. The
grievance refers to "September" 1984 and claims that
McVay told her that "he would get even with me for
NLRB charges and that he planned to sue me personally
for endangering his job."5
The Region did not respond in writing, to Respond-
ent's request for deferral, but orally advised its attorney
that it would not do so, along with reasons therefor.
On 11 June 1985 Magyar filed an amended charge, al-
leging that Respondent violated Section 8(a)(4) of the
Act by its conduct about 15 September 1984 of threaten-
ing Magyar with lawsuits because of her charges at the
Board.6
Subsequent to the filing of this amended charge, the
Region moved to amend the complaint at the hearing
here, to allege that the same conduct alleged in the in-
4 The record does not explain what specific conduct of Respondent is
referred to in this letter . I note that the instant charge makes no reference
to any allegation of interference with grievance processing . Additionally,
the record does not reflect what allegations in this regard Magyar made
during the investigation of Case 22-CA-13751.
5 The record reveals that at the time of hearing here, Magyar 's griev-
ances were still in the grievance procedure , and the Union had not as yet
decided whether to take any or all of them to arbitration
6 The General Counsel asserts that the amended charge was filed
before it received Respondent's position paper requesting deferral.
1325
stant complaint, violated Section 8(a)(4) of the Act, as
well as Section 8(a)(1) as previously asserted.7
The sole incident alleged in the complaint to be a vio-
lation of the Act, concerns an alleged conversation be-
tween Magyar and McVay sometime in September 1984.
According to Magyar, the conversation occurred in the
last week of September 1984, in the presence of fellow
employee Ted Gryzb. She did not recall how the con-
versation began, but claims that McVay said to her
"you'll get yours after January." Magyar asked McVay
what he meant and he replied that in January her 6-
month protection from the Labor Board would be up.
McVay also allegedly advised Magyar that after January
she would get hers and that he would sue her personally
for the charges that she filed at the Labor Board for
jeopardizing his job. She allegedly replied that in that
case she would sue McVay for crippling her on the job,
referring to an injury she previously had sustained on
her right hand.
Gryzb recalled the conversation, although he placed
its occurrence sometime in November. He substantially
corroborates Magyar's version of the discussion, al-
though his recollection as to the commencement of the
conversation is more detailed. Gryzb recalled that
Magyar was not feeling well that day and had just re-
turned from the ladies' room. McVay ordered her to get
back to work and an argument ensued. Magyar told
McVay to stop picking on her or she would go back to
the Labor Board. At that point, according to Gryzb,
McVay asserted that the statute of limitations on the
Labor Board charges would run out at some point, and
at that time he would get her for it and sue her personal-
ly for jeopardizing his job. Magyar replied that she
would sue him for the injury to her hand and the con-
versation concluded.
Gryzb testified to a further conversation with McVay
in March 1985, after McVay had just had another argu-
ment with Magyar. McVay at that time approached
Gryzb8 and told him that Sohio does not like discrimina-
tion cases against them , and if Magyar continues going
to the Labor Board and making trouble for him, he will
sue her if he loses his job as a result. Gryzb replied that
he wished that McVay and Magyar would make up and
walked away.
Additionally, Thomas Schmelze, also an employee of
Respondent and shop steward for the Union, testified
that sometime between December 1984 and March 1985,
McVay spoke to him at the plant, and stated that if
McVay lost any time from work because of Marilyn
Magyar, his lawyer would take action.9
McVay, for his part denies making any statements to
any employees including Magyar about suing her for her
filing of NLRB charges. McVay does admit, however,
' The General Counsel when asked why the Region was now moving
to amend the complaint to include an 8(a)(4) violation, when it had previ-
ously approved a withdrawal of such an allegation, stated merely that it
had "reconsidered."
a Gryzb, in addition to being an employee of Respondent, was also fi-
nancial secretary of the Union
9 The complaint does not allege , nor does the General Counsel con-
tend, that McVay's statements to Gryzb (individually) or to Schmelze
violated the Act
1326 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
that he was upset over the allegations made against him
by Magyar in the Labor Board charges, that he believed
that his job was in jeopardy because of those charges,
and that he felt "that twenty years of work may be
going down the drain."' 0
Accordingly, McVay testified that in early September,
while he was on vacation he consulted with his personal
attorney, as well as personal friend , Bill McDonald.
McVay informed McDonald that Magyar had filed
charges against him at the Labor Board, that they were
untrue, and asked what options were available to him.
McDonald asked how strong is the Company against dis-
crimination. McVay responded that Sohio has a very
strong, well publicized, and posted policy against dis-
crimination. McDonald replied that McVay was being
charged with discrimination, and he could be dismissed.
McDonald continued that if Respondent keeps seeing his
name popping up all the time, they are to get sick and
tired of it.
McVay asked what could be done. McDonald re-
sponded that a letter could be sent to Magyar and/or the
Union stating that if this harassment continued, there
could be further action taken. The other alternative of-
fered by McDonald was filing a lawsuit against Magyar
for defamation of character. McDonald did not discuss
with McVay what chances of success such a lawsuit
might be and the conversation ended. Neither McVay
nor McDonald took any action with respect to filing
such a suit.
On 10 September McVay spoke to his immediate supe-
rior, Possert, as well as Possert's boss, Les Constable,
production manager. McVay informed them that he had
spoken to his attorney, and felt that Respondent would
be sick and tired of seeing his name coming up from Ma-
gyar's charges, and that he felt that his job could be in
jeopardy. Constable replied that McVay should not
worry about his job.
McVay also told Constable and Possert that his attor-
ney had advised him that if Magyar continued to file
charges against him, he had the right to sue her for defa-
mation of character. Respondent's officials made no com-
ments about the possibility of a lawsuit, but assured
McVay that he need not worry about being fired.
McVay, however, admitted that he was not fully satis-
fied with these assurances because he did not know how
much authority Constable possessed.
Later on that same day, McVay spoke with Possert in-
dividually, and related the options that his attorney had
outlined for him with regard to Magyar's charges (i.e., a
letter or a lawsuit). Possert was, according to McVay,
noncommittal about the matter, stating only that he did
not blame McVay for seeing an attorney.
I credit Magyar's testimony over McVay's denials that
he threatened her with the filing of a lawsuit because of
her filing of NLRB charges. I note McVay's admissions
that he was concerned about the possible loss of his job,
resulting from Magyar's accusations, that he consulted an
attorney about the matter, and was advised that he had
the right to sue her for defamation of character. Further-
10 McVay also admitted that he had problems sleeping because of the
pendency of these charges.
more, he expressed his concerns about his job to higher
company officials, and although they assured him that he
would not be fired, McVay admitted that he had doubts
about these assurances.
Thus, I find it likely that he would express his con-
cerns to Magyar, to let her know that he might file suit
against her because of the possibility of these charges af-
fecting his job.
Moreover, employee Gryzb substantially corroborated
Magyar's version of the conversation in most material re-
spects. Actually Gryzb gave a more detailed and logical
version of the discussion, which I tend to believe more
accurately reflects what transpired. I therefore credit his
testimony about what was said therein. As noted, howev-
er, both Magyar and Gryzb concur that McVay threat-
ened to sue Magyar personally for jeopardizing his job
by filing charges with the Board.
Moreover, Gryzb also credibly testified to a separate
conversation that he had with McVay individually in
March 1985. In this conversation, following an argument
with Magyar, McVay told Gryzb that if Magyar contin-
ued to make trouble for him by going to the Labor
Board, he would sue her if he lost his job as a result.
Similarly, employee Schmelze credibly testified to a simi-
lar conversation with McVay concerning Magyar, where
McVay mentioned the possibility of his lawyer taking
action against her. These credited remarks of McVay to
these employees tends to substantially enhance the credi-
bility of Magyar as to the September conversation with
McVay, and her assertion that he threatened to sue her
personally. I t
III. ANALYSIS
It is well settled that a threat by an employer,' 2 or a
union,' 3 to resort to a lawsuit because of the filing of
unfair labor practice charges is violative of Section
8(a)(1) or 8(b)(1)(A) of the Act.
Additionally, the mere threat of reprisals against em-
ployees for filing charges or participating in Board hear-
ings is violative of Section 8(a)(1) and (4) of the Act.
Shirt Shed, 252 NLRB 292, 301 (1980). The phrase "dis-
crimination" under Section 8(a)(4) includes threats of re-
taliatory action. Fuqua Homes, 211 NLRB 399, 400
(1974); John Hancock Insurance Co. v. NLRB, 191 F.2d
483 (D.C. Cir. 1951).
The General Counsel, relying on the above-cited au-
thorities, argues that the remarks made by McVay to
Magyar in late September 1984, violated Section 8(a)(1)
and (4) of the Act. Although I agree with the General
Counsel that McVay's comments to Magyar would be so
violative of the Act, if they were attributable to Re-
spondent, I am not persuaded that the General Counsel
has established this crucial element of its case.
11 I note again that the statements made by McVay to Gryzb and
Schmelze are not alleged in the complaint nor argued by the General
Counsel to constitute independent violations of the Act
12 Clyde Taylor Co, 127 NLRB 103, 108 (1960); Houston Chronicle
Publishing Co., 229 NLRB 1829 , 1831, 1832 (1977), Wolverine World Wide,
243 NLRB 425 , 432 (1979); West Point Pepperell, 200 NLRB 1031, 1039
(1972).
13 Electrical Workers IBEW Local 11 (LA. Electrical Contractors), 258
NLRB 374, 375 (1981).
CARBORUNDUM MATERIALS CORP.
In my view, the case of Postal Service, 275 NLRB 360
(1985) (U.S.P.S.), is dispositive of this issue, and man-
dates dismissal of the instant complaint. The judge in
that case, citing many of the same authorities relied on
by the General Counsel, found an 8(a)(1) violation based
on a statement by a supervisor to a union official that she
would file a lawsuit against the union because the union
filed grievances against her.
The Board reversed the judge, and dismissed this alle-
gation of the complaint, stating as follows., 275 NLRB at
361:
Unlike the judge, we do not hold the Respondent
accountable for DuPatz' remarks. Here DuPatz' re-
marks, while acting as a temporary low-level super-
visor, concerned the filing of a civil lawsuit on her
own personal behalf and cannot be construed to in-
volve any threatened retaliation by the Respondent.
The cases relied on by the judge involving threats
by an employer or union are thus inapposite. In the
absence of any knowledge by the Respondent of
these statements or any additional circumstances
which would make them attributable to the Re-
spondent, we do not find that such a statement by
DuPatz is unlawful. In this regard , we particularly
note that the threat of the lawsuit did not involve a
form of retaliation by DuPatz within the framework
of her supervisory responsibilities. Accordingly, we
shall dismiss this allegation of the complaint.
The facts of the instant case are virtually indistinguish-
able from those of the U.S.P.S. in all significant respects.
Thus McVay, like the supervisor therein, was a low-
level supervisor whose remarks concerned the filing of a
lawsuit on his own personal behalf. Similarly, as in
U.S.P.S., the record contains no evidence of any knowl-
edge by Respondent of McVay's statements to Magyar,
or any additional circumstance that make them attributa-
ble to Respondent.
In this regard, the facts that other officials of Respond-
ent were aware that McVay had spoken to his attorney
and had been advised that he had the right to file a law-
suit, and that one superior stated that he did not blame
McVay for consulting an attorney, can hardly be consid-
ered sufficient circumstances making his remarks to
Magyar attributable to Respondent. At no time did any
1327
of Respondent's officials encourage McVay to file a law-
suit against Magyar. Indeed, the record reveals that they
implicitly discouraged such a suit by assuring him that he
need not worry about being fired as a result of Magyar's
accusations. Most importantly there is no evidence that
any of Respondent's officials were aware that McVay in-
tended to threaten Magyar directly with the filing of a
lawsuit, or to discuss the subject with her in any way.
Clearly such officials did not encourage any such con-
duct. Nor is there any record evidence that Magyar was
aware of any of McVay's discussions with his superiors
about these matters.
Additionally, as in U.S.P.S., the threat of a lawsuit
here, also did not involve a form of retaliation by
McVay within the framework of his supervisory respon-
sibilities.
Accordingly, I conclude as did the Board in U.S.P.S.,
that McVay's statements to Magyar "cannot be con-
strued to involve any threatened retaliation by the Re-
spondent."14
I therefore find that Respondent cannot be held ac-
countable for McVay's statements to Magyar and recom-
mend that the instant complaint be dismissed.15
CONCLUSIONS OF LAW
1. Respondent is an employer within the meaning of
Section 2(2), (6), and (7) of the Act.
2. Respondent has not engaged in any conduct in vio-
lation of the Act as alleged.
[Recommended Order for dismissal omitted from pub-
lication.]
14 Indeed, the facts of the instant case militate even more strongly in
favor of such a finding than in U.S.PS. The entire thrust of McVay's
concerns here, was his fear of losing his own job and being fired by the
Respondent because of having been accused of violating Respondent's
own policies against discrimination . Thus, there is no basis for concluding
that McVay was speaking for Respondent , nor any basis for a reasonable
belief by Magyar, that McVay was speaking for anyone but himself in his
remarks to her
is In view of my disposition of the instant matter on the above
grounds, I need not and do not decide various other issues raised by Re-
spondent as defenses These issues include whether the instant complaint
is barred by Sec 10(b) of the Act, whether the General Counsel has
transgressed the holdings of Winer Motors, 265 NLRB 1457 (1982), and
Ducane Heating Corp, 273 NLRB 1389 (1985), by resurrecting the previ-
ously withdrawn 8(a)(4) charge, whether the matter should be deferred
to arbitration , or whether even if a violation is found , a remedial order is
warranted based on Titanium Metals Corp, 274 NLRB 706 (1985).