Catalytic, Inc.

National Labor Relations Board - Board Decisions

Apr 12, 1985

275 N.L.R.B. 97 (N.L.R.B. 1985)

CATALYTIC, INC. 97
Catalytic, Inc. and L.B.IE.W., Local Union 136. Case
10-CA-16250
12 April 1985
SUPPLEMENTAL DECISION AND
ORDER
BY CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
On 30 September 1982 a Board panel issued a
Decision and Order 1 in this proceeding, finding
that the Respondent had engaged in unfair labor
practices in violation of Section 8(a)(1) and (3) of
the National Labor Relations Act. The Board held
that the Respondent violated the Act by discharg-
ing employee Samuel D. Thrash Jr. and by sus-
pending and discharging employee Philip Lang.
With regard to Thrash the Board found that, al-
though Thrash had engaged in strike-related mis-
conduct, his behavior did not rise to the level of
misconduct so serious as to render him unfit for re-
instatement. Applying the standard then prevailing
for determining the reinstatement rights of return-
ing strikers, the Board held that the Respondent
had violated the Act by discharging Thrash. The
Respondent filed a petition for review of the
Board's Decision and Order with the United States
Court of Appeals for the Eleventh Circuit, and the
Board filed a cross-application for enforcement of
its Order. On 19 August 1983 the court enforced
the Board's Order.2 Thereafter, the Respondent
filed a petition for writ of certiorari to the United
States Supreme Court.
On 22 February 1984, in Clear Pine Mouldings,3
the Board reevaluated the appropriate standard for
determining the reinstatement rights of employees
engaging in strike-related misconduct. Adopting
the standard formulated by the United States Court
of Appeals for the Third Circuit in NLRB v. W. C.
McQuaide, Inc., 552 F.2d 519, 527 (3d Cir. 1977),
the Board announced in Clear Pine Mouldings that
it would apply the following objective test for de-
termining whether verbal threats directed at fellow
employees justify an employer's refusal to reinstate:
"whether the misconduct is such that, under the
circumstances existing , it may reasonably tend to
coerce or intimidate employees in the exercise of
rights protected under the Act."4
1 264 NLRB 1157
2 714 F 2d 158
s 268 NLRB 1044
° Above at 1046 The Board also applied an analogous standard to the
assessment of strikers ' verbal and nonverbal conduct directed against per-
sons who do not enjoy the protection of Sec 7 of the Act Infra at 1046
fn 14 Member Dennis concurred in the adoption of the McQuaide test
Following the issuance of Clear Pine Mouldings,
the United States Supreme Court on 30 April 1984
granted certioraris in this proceeding, vacated the
judgment of the court of appeals insofar as it per-
tained to the discharge of Samuel D. Thrash Jr.,6
and remanded the proceeding to the court of ap-
peals with directions that the case be remanded to
the Board for further consideration of Thrash's dis-
charge in light of Clear Pine Mouldings. On 15
August 1984 the court of appeals remanded this
proceeding to the Board.'
On 30 October 1984 the Board accepted the
remand from the court of appeals. The Respondent
and the General Counsel filed statements of posi-
tion.
The Board has reconsidered its Decision and
Order in light of the entire record and the state-
ments of position and has decided to affirm its con-
clusion that the Respondent violated Section
8(a)(1) and (3) of the Act by discharging Samuel
D. Thrash Jr.
The facts underlying Thrash's discharge establish
the following. On 30 August 1980,8 shortly after
commencement of a strike directed against the Re-
spondent, striker Thrash telephoned the residence
of nonstriking employee Sanford Simon. The call
was made at 4 p.m., while Simon was working at
the struck plant, and was answered by Simon's
wife, Diane . It is undisputed Thrash's call was di-
rectly related to the strike.9 Without identifying
himself, Thrash stated at the outset, "you God
damned bitch," and immediately hung up the tele-
phone terminating the call. This is the full extent of
the misconduct attributed to Thrash.
Because the Simons had received other anony-
mous calls during the strike, their telephone was
equipped with a tap and tracer at the time of
Thrash's call.1 ° As a result, Thrash was identified
as the caller of 30 August and was arrested. There-
after, Thrash pleaded guilty to a criminal offense
under the criminal code of the State of Alabama
and was fined $110. As a further result of the call
to the Simons' residence, the Respondent dis-
charged Thrash on 11 September. The strike termi-
nated on 17 September.
As an initial matter, we fully recognize that the
placement and receipt of an anonymous telephone
5 104 S Ct 2164
8 The Court did not disturb the judgment of the court of appeals with
respect to other portions of the case
7 739 F 2d 540
8 All dates are in 1980 unless noted otherwise
B Thrash testified without contradiction that he telephoned the home
of Sanford Simon "because he was working and I wasn't "
10 There is no contention that Thrash was involved in or participated
in any other anonymous telephone calls to the Simons' residence It is
also undisputed that the other anonymous calls preceding Thrash's call
were harassing and threatening in character
275 NLRB No. 16
98 DECISIONS OF NATIONAL LABOR RELATIONS BOARD .
call is offensive and intrusive to privacy irrespec-
tive of the actual words used by the caller. Our
primary task in this proceeding, however, is to de-
termine whether the conduct at issue reasonably
tends to coerce or intimidate.' Under the standard
set forth in Clear" Pine Mouldings, supra, we con-
clude that the single, brief telephone call attributed
to Thrash does not meet the Clear Pine Mouldings
standard justifying the denial of reinstatement: ' -
At the outset, we note that although Thrash re-
ferred to Diane Simon as a "God damned bitch,"
he did not threaten either her person or property.
Thus- as we noted in our original decision, the Re-
spondent conceded in its earlier brief to the Board
that Thrash's statement "was not violent" in char-
acter. We, also note that the -epithet attributed to
Thrash differs substantially from the remarks attrib-
uted to striking employees in Clear Pine Mouldings
which were directly or indirectly threatening in
character. )1 We are, of course, mindful that in cer-
tain circumstances a profane epithet unaccompa-
nied by an overt or indirect threat might also be
coercive or intimidating if it raises the reasonable
likelihood of an imminent physical confrontation.
That is not' the case here. Moreover, during the
call Thrash did not imply that he knew the loca-
tion of the Simon's home and made no indication
that adverse consequences might befall the Simons
if' Sanford Simon continued--to work. Indeed,
during the call Thrash made no mention whatso-
ever of the strike.12
Finally; we emphasize that there is no evidence
that Thrash was aware of previous anonymous
phone calls to the Simons' residence or that Thrash
participated in any other such calls. Nor is there
evidence "that Thrash was in any manner involved
in a campaign or plan of harassment directed at
nonstriking employees or otherwise engaged in
misconduct. In short, we are presented- with -a
single telephone call where neither an overt or im-
plied threat was made nor the reasonable likelihood
raised of an imminent physical confrontation. In
" In Clear Pine Mouldings the threatening statements were ( 1) that a
nonstriking employee was taking her life in her hands by crossing a
picket line and would live to regret it, (2) that a nonstriking employee's
house might be burned ; (3) that the hands of certain employees should be
broken, and (4) that an employee should be "straighten[ed] out "
12 In another context we recently found lawful an employer 's vulgar
and obscene reference to an employee 's exercise of rights protected under
the Act See Premier Rubber Co, 272 NLRB 466 ( 1984) (supervisor's
statement to an employee displaying a union badge as a "chicken shit
badge") Thus, we recognize as a practical matter that not every use of
profanity or vulgarity in response' to the exercise of Sec 7 rights runs
afoul of the Act and that occasional vulgarity and epithets are to be ex-
pected during the course of a strike and in' the workplace We shall of
course continue to evaluate each factual circumstance on a case-by-case
basis to determine whether the conduct at issue is coercive or intimidat-
ing or otherwise unprotected' by the Act
Member Dennis did not participate in Premier Rubber and does not
rely on this footnote -
these circumstances, we 'find the evidence insuffi-
cient to establish that Thrash's call of 30 August
had a reasonable tendency to coerce or intimidate
within the meaning of Clear Pine Mouldings.13 Ac-
cordingly,.we, find that Thrash did not forfeit'his
reinstatement rights and that the Respondent vio-
lated the Act by discharging Thrash.
THE REMEDY
Having found that the Respondent violated Sec-
tion 8(a)(3) and (1) of the Act, we shall order that
it cease and desist therefrom and affirmatively take
such action as will dissipate the effects of its unfair
labor practices. -
Having found that Samuel D. Thrash Jr. was un-
lawfully discharged, we find it necessary to order
the Respondent to offer him full reinstatement to
his former position or,' if such position no longer
exists, to a substantially equivalent position, with-
out prejudice to his seniority or-'other rights and
privileges, and to make- him- whole for any loss of
earnings suffered by him as a result of the Re-
spondent's unlawful actions. Loss of earnings shall
be computed as prescribed in F. W. Woolworth Co.,
90 NLRB 289 (1950), plus interest computed in the
manner and amount prescribed in Florida Steel
Corp., 231 NLRB 651 (1977).14
ORDER -
The National Labor Relations Board orders.that
the Respondent, Catalytic, Inc.; Wilsonville, Ala-
bama,.its officers, agents , successors , and assigns,
shall -
1. Cease and desist from
(a) - Discharging or otherwise, discriminating
against any employee for supporting I.B.E.W.,
Local Union 136 or any other union.
(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 which it
is found will effectuate the purposes of the Act.
(a) Offer Samuel D. Thrash Jr. immediate and
full reinstatement to his former job or, if that job
no longer exists, to a substantially equivalent posi-
tion, without prejudice to his seniority or any other
rights or privileges previously enjoyed, and make
him whole for any loss of earnings and other bene-
13 We are cognizant that Thrash 's anonymous telephone call was ille-
gal under state law and that Thrash was adjudicated in state court to
have violated that law Because it is our burden to evaluate Thrash's con-
duct under the National Labor Relations Act rather than under state
criminal law, we find that the matters raised in the - state criminal pro-
ceeding are not dispositive of the separate and distinct issues raised under
the Act -
14 See generally Isis Plumbing Co , 138 NLRB 716, 717-721 (1962)
CATALYTIC, INC.
fits suffered as a result of the discrimination against
him in the manner set forth in the remedy section
of the decision.
(b) Preserve and, on request, make available to
the Board or its agents for examination and copy-
ing, all payroll records, social security payment
records, timecards, personnel records and reports,
and all other records necessary to analyze the
amount of backpay due under the terms of this
Order.
(c) Remove from its files any reference to the
unlawful discharge and notify the employee in
writing that this has been done and that the dis-
charge will not be used against him in any way.
(d) Post at its facility in Wilsonville, Alabama,
copies of the attached notice marked "Appen-
dix."15 Copies of the notice, on forms provided by
the Regional Director for Region 10, after being
signed by the Respondent's authorized representa-
tive, shall be posted by the Respondent immediate-
ly 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.
(e) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply.
1b 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 Na-
tional Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
99
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 discharge or otherwise discrimi-
nate against any of you for supporting I.B.E.W.,
Local Union 136 or any other union.
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.
WE WILL offer Samuel D. Thrash Jr. immediate
and full reinstatement to his former job or, if that
job no longer exists, to a substantially equivalent
position, without prejudice to his seniority or any
other rights or privileges previously enjoyed and
WE WILL make him whole for any loss of earnings
and other benefits resulting from his discharge, less
any net interim earnings, plus interest.
WE WILL notify him that we have removed from
our files any reference to his discharge and that the
discharge will not be used against him in any way.
CATALYTIC, INC.