Caterpillar Tractor Co.

National Labor Relations Board - Board Decisions

Sep 30, 1985

276 N.L.R.B. 1323 (N.L.R.B. 1985)

CATERPILLAR TRACTOR CO.
Caterpillar Tractor Company and Robert C. Wagner.
Case 4-CA-13073
30 September 1985
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
DENNIS AND JOHANSEN
On 22 November 1983 Administrative Law
Judge David S. Davidson issued the attached deci-
sion. The Respondent filed exceptions and a sup-
porting brief, and the General Counsel filed a brief
in response to the Respondent's exceptions.
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, a and
conclusions only to the extent consistent with this
Decision and Order.
The judge found that the Respondent unlawfully
suspended the Charging Party, Union Steward
Robert C. Wagner, from 26 April to 8 June 19822
for engaging in protected concerted activity. Spe-
cifically, the judge found that Wagner was engaged
in protected concerted activity when he drew and
displayed a cartoon which assertedly protested the
actions of Supervisor Ray Kemper in prohibiting
Wagner from engaging in extended discussion with
other union stewards, during working time, about a
recently published layoff/downgrade list. The
judge further found that Wagner's cartoon was not
so offensive, defamatory, or opprobrious as to
remove it from the protection of the Act. Accord-
ingly, the judge concluded that the Respondent's
suspension of Wagner violated Section 8(a)(1) of
the Act. We disagree. Even assuming arguendo
that Wagner was engaged in protected concerted
activity, we find that Wagner's conduct was suffi-
ciently offensive to lose any protection it might
otherwise have had under the Act. Accordingly,
we find that the Respondent did not violate Sec-
tion 8(a)(1) of the Act by disciplining Wagner for
drawing and displaying the cartoon in question.
Facts
Charging Party Wagner regularly used cartoons
as a means of in-plant communication; in his 5-1/2
' 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), enfd. 188 F.2d 362 (3d Cir. 1951).
We have carefully examined the record and find no basis for reversing
the findings.
2 All dates are 1982.
1323
years of employment prior to the events in ques-
tion, he drew "hundreds" 'of cartoons at the plant.
During the first week of April, he drew a series of
four cartoons satirizing the Respondent's prohibi-
tion against the in-plant sale of submarine sand-
wiches by another employee. Wagner's cartoons
were drawn on company-owned index-type cards,
approximately 6 by 12 inches. These cartoons, and
their extensive captions, are fully described in sec-
tion III,A,2 of the judge's attached decision.3
Wagner drew most of these cartoons at the plant,
either during his breaktimes or while his machine
was running automatically (Wagner was an auto-
matic screw machine operator). Other employees
made copies of all four of these cartoons, and
Wagner and other employees posted them in vari-
ous parts of the plant. The Respondent made no at-
tempt at the time to find out who drew and distrib-
uted these cartoons.
On 22 April, the Respondent posted lists of em-
ployees who were to be downgraded or laid off.
On the 23 April evening shift, another shop stew-
ard, Dave Shoemaker, and his supervisor, Ray
Kemper, had two discussions about the accuracy of
the lists. Wagner came to Shoemaker's department
to discuss possible mistakes on the list. After dis-
cussing this matter with Plant Engineering Supervi-
sor Calaman, Stewards Wagner and Shoemaker re-
mained in Shoemaker's department to continue
their discussion. When Kemper approached them,
they asked for his permission to consult with a
third steward in another area about another possi-
ble era or on the downgrade/layoff list. Kemper
told them that he could not grant such permission
without Calaman's approval. Kemper also told
Wagner to return to his own work area. About 20
minutes later, Wagner and Shoemaker were again
in Shoemaker's department. Kemper approached
them and told them that Calaman had denied them
permission to go to another department to discuss
the accuracy of the downgrade/layoff list with a
third union steward. There followed, according to
Shoemaker, a "heated discussion" between the two
stewards and Kemper. Both Wagner and Shoemak-
er told Kemper that they would file grievances
against him, protesting Kemper's treatment of them
and his attitude towards them.
Later the same day, 23 April, Shoemaker filed a
grievance in which he recounted that Kemper had
refused to give Shoemaker and Wagner permission
to check on the accuracy of the downgrade/layoff,
3 The cartoon discussed in the second paragraph of that section is in-
correctly described as first stating, "I'm defying Joe Diehl's Sub Squad";
the cartoon first states, "I'm not afraid of the Sub Squad." Also, the ref-
erence to $150 in that same paragraph is incorrect; as reflected on the
cartoon and substantiated in testimony , the correct figure is $1.50
276 NLRB No. 151
1324 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and had advised them to file a grievance if they
wanted to. Shoemaker's grievance closed by stat-
ing, "His [Kemper's] attitude towards us was very
bad." Shoemaker's grievance was filed under the
"Harmonious Relations" clause of the collective-
bargaining agreement.4 The specific action request-
ed in Shoemaker's grievance was "apology and a
little bit more respect." Later the same day,
Kemper replied in writing to Shoemaker's griev-
ance, stating, "I do not feel I acted out of order."
Shoemaker indicated on the grievance form that he
did not accept Kemper's answer. The next day, or
the day following, 24 or 25 April, Calaman asked
Shoemaker to please settle the matter with
Kemper. Later that day, Kemper apologized to
Shoemaker.
Wagner also filed a grievance against Kemper.
Although no copy of it was available for introduc-
tion into evidence, Wagner testified that:
I wrote down, for example, that I didn't like
the way Ray [Kemper] stabbed his finger in
the air at me when he ordered me out of the
area. I didn't like the loud-mouth way that he
ordered me out of the way, the vociferous
manner that he dealt with me. I didn't like
being treated as a common low life worker,
which we perceived as being the practice of
management.
Wagner also testified that the specific action he re-
quested in resolution of his grievance was an apol-
ogy. According to Wagner, he was discharged (on
26 April) before he received any response, to his
grievance.
During his lunch period on 26 April, 3 days after
the incident with Kemper, Wagner, assisted by
fellow employee Ron Hampton, drew a cartoon of
Kemper. The cartoon is accurately described by
the judge in section III,A,4 of his decision, as fol-
lows:
The figure's face has a porcupine snout, long
fangs, and pointed ears. The figure's head is
bulbuous (perhaps crowned with a large
"afro"). The figure has a grossly obese trunk,
clearly defined male genitals , and chicken-like
legs and feet. The figure is urinating on a
4 The "Harmonious Relations" clause states:
ARTICLE I
Purpose
(1 1) The purpose of this Agreement is to establish harmonious re-
lations between the parties and to facilitate orderly adjustment of
grievances, complaints, and disputes which may arose from time to
time between the Company and the Union. This Agreement is en-
tered into in consideration of the mutual performance thereof in
good faith by the parties
much smaller stick figure labelled "common
low life worker." The large figure wears a tie
on which is written, "I'm The Boss!"' The dis-
torted portion of the large figure's trunk is la-
belled, "FAT. MANAGEMENT BULGE."
The large figure is emitting what are supposed
to be five turds, separately labelled "W-O-K-
E-R." The figure is surrounded by the follow-
ing statements:
Hello, I'm Ray Kemper the Razorback.
Oink.
I'm so fat because I don't do a goddam
thing except carry a clipboard. And fuck with
you lower class.
Oink. I'm on a 5-year plan. I might be a fat
slob but I'm mean!
If you fuckers worked harder I could get
fatter and have more fun drinking and spend-
ing my profit share!
I need more production so I can buy more
food to eat. I'm hungry.
I'm mean, fat and hungry.
If it was up to me I'd fire the whole shop.
Burp. You basterds [sic] talk to each other
and I'm going to forcefully stop it.
If I find out who put this picture up of me
I'll fire him.
Oink. Fuck the workers.
Wagner testified that he drew Kemper to look
like a razorback pig "because of the mean in him.
He just acted mean to me . . . I was mad about it."
Wagner explained that Kemper had acted mean to
him in denying him and Shoemaker permission to
further discuss the downgrade/layoff list with a
third steward on 23 April. Wagner also explained
that the wording on the cartoon reading, "You bas-
terds [sic] talk to each other, and I'm going to
forcefully stop it," referred to the same incident.
After drawing the cartoon, Wagner showed it to
other employees. Unnamed persons made copies of
the cartoon and posted it at various locations in the
plant.
Later the same day, 26 April, Wagner was sum-
moned to Calaman's office. Also present, in addi-
tion to Calaman, were Wagner's foreman, Lutz,
and Union Committeman Roberts. Wagner and
Roberts were briefly alone, and Roberts told
Wagner, "They're firing you, man." Roberts asked
Wagner if he knew anything about it. Wagner re-
plied, "Yeah, I know what it's about." Calaman
and Lutz then returned. Calaman showed Wagner
copies of the five cartoons discussed above, and
asked Wagner if he had drawn any of them. Ac-
cording to Wagner:
CATERPILLAR TRACTOR CO.
I was afraid for my job so I did everything I
could to keep from answering him. I was very
careful with my wording when I was in there,
neither to lie my way out of it nor to answer
him at all.
Thus, Wagner told Calaman that he had nothing to
do with the distribution of the cartoons within the
plant, but "just didn't answer" Calaman's question
about whether Wagner had drawn the cartoons.
Calaman told Wagner that he had compared the
writing on the cartoons with Wagner's writing on
a grievance he had filed earlier, as well as some of
the terminology on the cartoons with some of the
terminology in the grievance, and that he had good
reason to believe that Wagner had drawn the car-
toons. Wagner asked for and received permission
to speak alone with Roberts. Wagner told Roberts
that he had drawn the cartoons. Roberts told
Wagner, "Don't quote me on this, but don't admit
nothing." Wagner returned to the meeting and told
Calaman, "I'm not admitting to anything." Based
on his comparison of the writing on the cartoons
and on the earlier grievance written by Wagner,
Calaman determined that Wagner had drawn the
cartoons. Calaman then discharged Wagner.
Wagner did not file a grievance over his dis-
charge. However, pursuant to provisions in the col-
lective-bargaining agreement, a disciplinary hearing
on Wagner's discharge was conducted on 3 May.
In attendance were Calaman and Assistant Plant
Manager Foore, and Wagner, Roberts, and the
Union's bargaining committee chairman Laughman.
With some encouragement from Laughman,
Wagner admitted "to everything I did." More spe-
cifically, Wagner admitted partial authorship of the
cartoons, without specifying which particular parts
he had authored, and without identifying anyone
else involved. The Respondent did not alter its po-
sition based on this hearing; 'Wagner remained dis-
charged.
In telephone conversations subsequent to the 3
May disciplinary hearing, Assistant Plant Manager
Foore and Union Committee Chairman Laughman
agreed that Wagner's discharge would be reduced
to a suspension, and that it would be left up to
Foreman Calaman and Union Committeeman Rob-
erts to determine the length of the suspension.
Eventually, it was agreed that Wagner would be
suspended for 30 days.
The record establishes, and the judge found, that
the Respondent disciplined Wagner solely on the
basis of Wagner's role in the drawing of the
Kemper cartoon; Wagner's drawing of the other
cartoons discussed above played no part in the Re-
spondent's decision to discipline Wagner.
1325
Additional Background
As the judge found, cartooning was common-
place in the plant. Wagner testified that he had
drawn hundreds of cartoons during his 5-1/2 years
of employment, and that writing cartoons was a
"common practice" in the plant. Employees
Lehigh and Luckenbaugh testified that they had
seen cartoons in bathrooms, on desks, on toolboxes,
on soda machines-"anywhere and everywhere."
Some cartoons were said to have derided specific
employees or supervisors. Some cartoons were
vulgar by almost any standard.5 Prior to the inci-
dent in question, no employees appear to have been
disciplined for engaging in cartooning. However,
Calaman testified that in his 19 years of employ-
ment he had never seen a cartoon like the one in
question, "ridiculing a particular supervisor with
obscene language," and Wagner himself testified
that the same people who normally distributed his
cartoons around the plant "worked against" him in
this instance. According to Wagner:
I don't believe I'd care to have this one spread
around . . . [I]t wasn't in keeping with the
type of cartooning that I did do. There were
things on there that I didn't want spread
around; however, things that I would say and
[think] among myself. Certain nicknames the
different [foremen] had, we never called them
to their face, for example, that appeared on
here.
Analysis and Conclusion
The judge found that Wagner's drawing of the
Kemper cartoon constituted concerted activity for
mutual aid or protection and thus, without more,
was protected under Section 8(a)(1) of the Act.
More specifically, the judge's finding of concerted
activity is based on the involvement of another em-
ployee in the actual drawing of the cartoon, as well
as the involvement of other employees in copying,
distributing, and posting the cartoon throughout
the plant. The judge's finding that Wagner's draw-
ing of the Kemper cartoon was protected activity
is based on his findings that the statements on the
cartoon focus on Kemper's supervisory relationship
to the employees in his shop,6 and that the particu-
s Wagner testified about a cartoon-clipped out of a magazine-which
had remained posted for 1-1/2 years around 1981 and which depicted a
man masturbating while sitting at a desk Luckenbaugh testified about a
cartoon that was posted prior to 1982 an an employee's toolbox, which
depicted an outhouse with the word "management" written on the door
and the word "employees ... down underneath where the shit would
go " Security guard Enterlane testified about a cartoon he found posted in
1977, which had been clipped out of Hustler magazine and altered to
depict a foreman as a child molester' 'Enterlane testified he removed the
cartoon because it was "defaming a person."
6 As seen, however, Wagner himself was not in Kemper's shop.
1326 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
lar statement on the cartoon, "Burp. You basterds
[sic] talk to each other and I'm going to forcefully
stop it," relates to Kemper's refusal to permit
Wagner and fellow Steward Shoemaker to consult
with a third steward in another part of the plant
about possible errors on a downgrade/layoff list,
and to Kemper's instructing Wagner to return to
his work area.
We find it unnecessary to pass on the judge's
finding, and the reasoning in support of that find-
ing, that Wagner was engaged in concerted activity
in drawing the cartoon of Foreman Kemper.
plant, with an inevitable negative effect on
Kemper's supervisory status in the eyes of the
other employees.1'
Accordingly, we find that Wagner's misconduct
in drawing and publicizing his cartoon of Kemper
went beyond the scope of protection afforded by
the Act. Consequently, we conclude that the Re-
spondent did not violate the Act in disciplining
Wagner for engaging in this misconduct. Accord-
ingly, we shall dismiss the complaint.
ORDER
Rather, for the reasons discussed below, we find, The complaint is dimissed.
contrary to the judge, that Wagner's misconduct
was so egregious that it exceeded the scope of
whatever protection it might otherwise have been
entitled to under the Act.
The Board has found that an employee's use of
obscenity was protected where it constituted a
spontaneous outburst during the heat of a formal
grievance proceeding or contract negotiations, or
was provoked by an employer's unfair labor prac-
tice.7 However, it is well settled that concerted ac-
tivity loses its protection under the Act when the
actions are malicious, defamatory, or insubordi-
nate.8 It is also well established that union stewards
involved in the processing of grievances lose the
protection of the Act when their conduct is ex-
traordinary, obnoxious, wholly unjustified, and a
departure from the res gestae of the grievance pro-
cedure.9 Here, by any reasonable standard, Wag-
ner's epithets against Kemper were malicious, de-
famatory, insubordinate, obnoxious, and wholly un-
justified.
Nor can Wagner's conduct be said to have been
condoned in the past by the Respondent. True, as
fully discussed in section III,A,5 of the judge's de-
cision, the use of obscene language and display of
vulgar cartoons were not unusual. However, while
bad language may not be uncommon in a plant en-
vironment, insulting, obscene personal attacks such
as that launched by Wagner against Kemper need
not be tolerated; Wagner's obnoxious obscenities in
the cartoon were not shown to have been tolerated
in other contexts and they far exceed any reasona-
ble characterization as mere shop talk.1 ° More-
over, Wagner's obscenities were not directed to
Kemper in private, but were instead published in
written form and disseminated throughout the
7 Woodruff & Sons, 265 NLRB 345, 347 (1982).
8 Harris Corp., 269 NLRB 733, 738-739 (1984). See also Atlantic Steel
Co, 245 NLRB 814, 816 (1979); American Hospital Assn., 230 NLRB 54
(1977); Hawaiian Hauling Service, 219 NL,R.B 765, 766 (1975), enfd 545
F.2d 674 (9th Cir. 1976).
9 Union Fork & Hoe Co., 241 NLRB 907, 908 (1979); Clara Barton Ter-
race Convalescent Center, 225 NLRB 1028, 1036 (1976).
10 See, e .g., New Process Gear, 249 NLRB 1102, 1108 (1980).
11 Cf. Firch Baking Co , 232 NLRB 772 (1977)
Joseph C. Kelly and Michael P. Berger, Esqs., of Philadel-
phia, Pennsylvania, for the General Counsel.
Jason S Shapiro, Esq., of Harrisburg, Pennsylvania, for
the Respondent.
DECISION
STATEMENT OF THE CASE
DAVID S. DAVIDSON , Administrative Law Judge. The
charge in this case was filed on July 12, 1982, and the
complaint issued on August 26 , 1982, alleging that Re-
spondent violated Section 8(a)(1) of the Act by discharg-
ing Robert C. Wagner on April 26 , 1982, because of con-
certed activities. In its answer Respondent denies the
commission of any unfair labor practices.
A hearing in this case was held before me in York,
Pennsylvania, on January 27, 1983 . Briefs have been re-
ceived from the General Counsel and Respondent.'
The issue in this case is whether Respondent violated
an employee 's Section 7 rights by disciplining him for
drawing an obscene cartoon pointed at what he per-
ceived to be a supervisor 's interference with the exercise
of his duties as a shop steward.
On the entire record in this case, including my obser-
vation of the witnesses and their demeanor , I make the
following
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF RESPONDENT
Respondent, an Illinois Corporation, manufactures
heavy equipment at its York, Pennsylvania plant. Its
annual sale of goods shipped to points directly outside
the Commonwealth of Pennsylvania is in excess of
$50,000. I find that Respondent is an employer engaged
in commerce within the meaning of the Act and that it
will effectuate the policies of the Act to assert jurisdic-
tion in this case.
1 Respondent's unopposed posthearing motion to reopen the record for
the purpose of receiving R. Exh. 2 is granted, and the exhibit is received.
Respondent 's motion to correct the transcript is also granted.
CATERPILLAR TRACTOR CO. 1327
H. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning
of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
1. Introduction
The Caterpillar Tractor Plant at York, Pennsylvania, is
a large industrial facility employing approximately 3000
workers. Its Building D, where the activities at issue oc-
curred, has an area of 683,200 square feet (1220 feet long
by 560 feet wide) which is divided into various produc-
tion departments supervised by a typical hierarchy of
foremen and plant administrators. Employees are as-
signed job classifications which fall within I of 11 occu-
pational groups; their pay rates are determined by the lo-
cation of their job classifications on a 12-step "Labor
Grade" scale which ranges from $9.18/hour to
$12.16/hour. The plant normally operates around the
clock; the second shift runs from 3:36 p.m. to 11:36 p.m.
During the last several years the Company has had to
lay off and "downgrade" a number of its workers.
Downgrading protects senior employees from layoffs by
moving them to lesser positions, bumping less senior em-
ployees down the job ladder, so that the least senior will
be the first laid off. The collective-bargaining agreement
establishes how seniority is to be determined and the
procedures and priorities to be followed in implementing
reductions in force.
Robert Wagner had been employed at York since June
1977. In April 1982,2 he worked on the second shift as
an automatic screw machine operator in Building D, De-
partment 23; he was also the union steward in Depart-
ment 23. During the month of April five cartoons lam-
pooning certain management actions were drawn by
Wagner and posted in various parts of Building D. The
fifth and most vulgar cartoon, drawn on April 26, re-
ferred to what Wagner perceived as interference by Su-
pervisor Ray Kemper with Wagner's monitoring of a re-
cently posted layoff/downgrade list. Wagner was dis-
charged on April 26, after management identified
Wagner as author of the cartoons. On May 12, Wagner's
discharge was reduced to a 30-day suspension; on June 8,
Wagner was reinstated.
2. The Caruso and Diehl cartoons
Shortly after Wagner arrived at work on April 2, he
saw posted on a coffee vending machine a cartoon
drawn by another employee titled "The Sub Squad."
Employee Dale Stough told Wagner that the cartoon
satirized the Company's prevention, during the day's ear-
lier shift, of employee Frank Caruso's in-shop sale of
submarine sandwhiches. Wagner, the second-shift opera-
tor of the same machines Caruso ran, and a man who ap-
parently regularly used cartooning as a means of commu-
nication (he testified that he drew "hundreds" of car-
toons at the York plant), responded to the incident by
drawing four cartoons of his own: one of Caruso and
three of Security Chief Joe Diehl. Wagner drew all the
cartoons on company-owned sheets of index card materi-
al approximately 6 inches wide and 12 inches long which
were otherwise used as "count route cards." Wagner
drew the cartoons over a 1-week period beginning on
April 2.
The Caruso cartoon shows a beak-nosed man with a
large protruding abdomen who is standing beside a ven-
dor's cart. Above the figure's head is Caruso's name with
an arrow pointing from the name to the figure. Below
the figure is a caption: "I'm defying Joe Diehl's Sub
Squad. They can kiss my ass. I'm defying Joe Diehl's
Sub Squad by having a sub sale Tuesday, April 6, 1982,
all day on Company time (heh, heh, heh) $150 apiece.
They won't dare stop me. Dept. 23 MY 1209 and MY
1210." (The MY numbers refer to the machines operated,
on their separate shifts, by Caruso and Wagner.)
The first Diehl cartoon shows a snarling man wearing
a holstered pistol and holding a cartoon similar to the
cartoon which first drew Wagner's attention to the sub
incident. To the right of the figure are the titles "J.
Diehl" and "S.S. Guard Boss Colonal Klink"3 with
arrows pointing from the titles to the figure. Surrounding
the figure are a number of statements being made by the
figure:
If I find out who put this picture of me I'll de-
stroy him. I'll really make them pay. Sure we're
dam near going out of business, but I have more im-
portant things like sub-control to worry about.
I'm mean, watch out for me, I used to be a para-
trooper.
By the way MY blood pressure is 110/80.
I look like James Watt.
Next time I catch anyone with subs I'll FIRE
first and ask questions later . . . No, I'm not mad
I'll kill anyone I catch putting pictures like this
of me up!
I'll sic the german shepard on you guys.
The second cartoon in this series is headed by Joe
Diehl's name bracketed by the names "Dr. Jeckle" and
"Mr. Hyde." Below the names is a lateral view of a
man's body containing two faces and two sets of extrem-
ities facing in opposite directions. The right side of the
drawing, below the "Mr. Hyde" inscription, is shown
kicking a smaller figure labeled "common worker." A
statement along the right side of the sheet reads: "You
basterds make fun of me? I'll kill you. I'll sic a German
Shepard on you, No one makes fun of me and lives! I
used to be a paratrooper. I'm mean. Grrrr-Grrrr-Grrrr-
Grrrr-Grrrr, etc. Globe Security could never handle my
complex job. I'm really mean. If I find out who is re-
sponsible for this picture of me I'll destroy him. We have
the whole shop under tight surveillance. Us upper class
workers are allowed to bring in cake, cookies, subs, etc.
but if you low class basterds do I'll destroy you!" (The
reference to Globe Security pertained to the possibility
2 All dates are in 1982 unless otherwise noted.
3 In this and other quotations which follow from Wagner's cartoons
the spelling appears as in the originals.
1328 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that the Company might lay off its own security person-
nel and have their jobs handled by an outside agency.)
On the left side of the cartoon, the "Dr. Jeckle" half is
saying: "Hello, I'm a nice guy. I like a little good na-
tured joking here and there. I'm very interested in the
well-being of all the employees at cat. If you guys ever
have a problem I can help out with, you can count on
good natured me to help out. I'm good, kind, helpful,
faithful, loving and charitable. I'm your guardian angle. I
never get up on the wrong side of the bed etc. etc. My
blood pressure is real low cause I don't do a damn thing.
I'm such a nice guy I'm so nice blah-blah-blah."
The final cartoon in the series shows a figure, wearing
a holstered pistol and a parachute, with a scarred face
and the word "God" on his head, standing on a stool la-
beled "pedistle." "Joe ' Diehl" is written immediately to
the right of the figure's neck. The figure, as in the previ-
ous cartoons, is making several statements:
I'm needed here, I don't do anything and I don't
make anything. If Globe moves in to take us over
I'll take over management with a sub squad coup.
Airborn.
I used to be a paratrooper.
We're watching the sewage being discharge for
"sub" evidence.
I'm in upper management.
If I find out who's putting these pictures of me
up I'll destroy him! I'm a powerful man. Grrr-Grrr-
Grrrr. I don't want you S.O.B.'s out in the shop to
have a sense of humor either. I'll kill anyone I see
laughing. If Caterpillar knew how to manage
people like I do no one would be smiling. I'll sic a
german shepard on you basterds. I'm better than all
you common laborers. When I step on you workers
I hate cleaning (ugh) your remains off my shoes.
While there is minor disagreement as to when these
cartoons were drawn and posted, it is clear that all were
drawn within a 1-week period beginning April 2. With
the exception of the Diehl/Jekyll and Hyde piece, which
Wagner drew at home, the cartoons were drawn at the
plant, either during Wagner's breaktimes or while his
machine was running automatically. Wagner made and
posted copies of the Caruso caricature. He saw other
copies of that cartoon posted around the plant. Wagner
posted the Diehl/Colonel Klink cartoon in the toilet area
near his work department; he "believed" that he posted
the Diehl/Jekyll and Hyde cartoon and he could not
recall if he had posted the last Diehl piece. Copies of all
were made and posted in various parts of Building D
presumably by other employees although Wagner
claimed that he made no copies. Apparently copies were
made on company copying machines.
Little evidence was offered regarding employee reac-
tion to the cartoons. Wagner testified that "everybody
laughed" about the Caruso cartoons, that he "heard all
kinds of comments about it," and that Caruso said noth-
ing when he saw it. Employee Walter Lehigh saw sever-
al copies of the Diehl/Klink cartoons; his reaction was
not noted. An unknown individual made at least one
copy of the same cartoon to which several statements
were added. Plant security guard Enterline removed
from various locations, altogether, 10 copies of the
Caruso, Diehl/Klink, and Diehl/God cartoons pursuant
to instructions he received when he became a guard to
remove any defamatory or derogatory material he saw in
the plant. He gave them to Hilton Poore,, the assistant
plant manager, who retained copies of some of them. No
evidence was offered indicating that the cartoons had
any sort of disruptive effect on plant discipline or oper-
ations. The Company made no known attempt to locate
or discipline the author and distributors of the cartoons
before Wagner's April 26 cartoon appeared.
3. The discussion among Kemper, Wagner, and
Shoemaker about downgrades
It is undisputed that about 9 p.m. on Thursday, April
22, the Company posted lists of employees who were to
be downgraded and laid off. The following night Shop
Steward Dave Shoemaker and Supervisor Ray Kemper
engaged in two discussions concerning the accuracy of
the posted lists.4 Wagner had come over to Shoemaker's
department, which Kemper supervised, to talk to Shoe-
maker about possible mistakes in the list; one or both of
them had talked to Plant Engineering Supervisor Cala-
man who had said he would check into the matter. Cala-
man left and, as Wagner and Shoemaker continued to
talk, Kemper approached them. They asked permission
to consult with a third steward in another area about a
further mistake in the list. Kemper said he could not
permit them to do so without the approval of Calaman,
Kemper's superior. Kemper told Wagner to return to his
own work area. About 20 minutes later, Wagner and
Shoemaker were again together in Kemper's department.
Kemper approached them and said that Calaman did not
give them permission to go to the third department to
check on the accuracy of the lists. A heated discussion
ensued which attracted the attention of others on the
shop floor. Both stewards told Kemper that they would
file grievances against Kemper over the incident protest-
ing Kemper's treatment of them and the attitude he dis-
played toward them.
That evening during his lunch hour, Shoemaker filed a
grievance protesting Kemper's denial of permission to
them to check out other mistakes and Kemper's attitude
toward them. In his written reply, Kemper stated that he
did not feel that he "acted out of order." However, the
following week at an informal meeting to resolve the
grievance Kemper said that he thought his answer was
fair but that he would apologize to Shoemaker. Wagner
filed a similar grievance with his foreman.5
4 The findings as to the two conversations are based principally on the
testimony of Shoemaker whose recollection seemed most complete and
least colored by the emotions which attached to the aftermath of the inci-
dent. While Kemper placed the two discussions on separate nights, his
version seems least likely to be correct . His testimony that Wagner
became agitated and raised his voice while he did not was contradicted
by Wagner and Shoemaker, and the grievances filed by both of them im-
mediately after the incident over Kemper 's handling of the matter are
corroborative of their testimony.
5 Wagner so testified. While Respondent's counsel stated that no copy
could be found in its files , Wagner's testimony as to his presentation of
the grievance to his foreman was uncontradicted.
CATERPILLAR TRACTOR CO.
4. The Kemper cartoon
On April 26, prompted by the April 23 incident with
Kemper, Wagner and fellow employee Ron Hampton
drew, on a count route card , a caricature of Kemper.
The figure 's face has a porcupine snout, long fangs, and
pointed ears . The figure's head is bulbous (perhaps
crowned with a large "afro)" The figure has a grossly
obese trunk, clearly defined male genitals, and chicken-
like legs and feet. The figure is urinating on a much
smaller stick figure labled "common low life worker."
The large figure wears a tie on which is written, "I'm
the Boss!" The distorted portion of the large figure's
trunk is labeled, "FAT MANAGEMENT BULGE."
The large figure is emitting what are supposed to be five
turds , separately labeled "W-O-K-E-R." The figure is
surrounded by the following statements:
Hello, I 'm Ray Kemper the Razorback.
Oink.
I'm so fat because I don't do a goddam thing
except carry a clipboard . And fuck with you lower
class.
Oink. I'm on a 5-year plan. I might be a fat slob
but I'm mean!
If you flickers worked harder I could get fatter
and have more fun drinking and spending my profit
share!
I need more production so I can buy more food
to eat. I'm hungry.
I'm mean, fat and hungry.
If it was up to me I'd fire the whole shop.
Burp. You basterds talk to each other and I'm
going to forcefully stop it.
If I find out who put this picture up of me I'll
fire him.
Oink. Fuck the workers.
After drawing the cartoon, Wagner showed it to the
other workers. According to 'Wagner, he then lost track
of it and "the same machinery," i.e., unnamed fellow
workers, who distributed his previous cartoons, copied
and posted it.
Kemper first saw a posted copy of the cartoon be-
tween 4:30 and 5 p.m.6 He threw it away, but when he
found a second copy posted about half an hour later, he
brought it to his superior, Calaman. Calaman described
Kemper as "visibly upset" over the cartoon when he en-
tered Calaman's office.
Around 10:30 that evening, Wagner was called to a
meeting in Calaman's office, which included Calaman,
Wagner's line foreman, Leo Lutz, and Wagner's union
committeeman, Eddie Roberts. At that meeting Wagner
was confronted with the cartoon of Kemper and copies
of the four earlier cartoons which Enterline had brought
to Foore. Wagner refused to admit to any involvement
6 Although Wagner testified that he drew the cartoon later in the
evening during his lunchbreak, Calaman's description of what happened
between the time the cartoon was brought to him and the time Wagner
was called to his office makes his version more plausible. In any event,
the difference is not material, as there is no contention that Wagner was
disciplined because he drew the cartoon during working time.
1329
in the creation or distribution of the cartoons.' Based on
comparison of the handwriting on the cartoons and a
grievance which Wagner had filed about a year earlier,
Calaman concluded that Wagner was the author of the
cartoons and discharged him.
On May 3, there was a disciplinary hearing to review
the discharge. At that meeting, Wagner admitted partial
authorship of the cartoons, without indicating which
parts he had done or identifying his coauthor. On May
11, Roberts, negotiating for Wagner, reached agreement
with Calaman that Wagner's discharge would be reduced
to a 30-day suspension. Wagner agreed to the compro-
mise and was reinstated on June 8.
Although the General Counsel contends that Wagner's
discipline was based on all five cartoons, I credit Cala-
man that his decision was based on the Kemper cartoon
only. The General Counsel relies on Union Chairman
Laughman's recollection that Assistant Plant Manager
Foore used the word "drawings" in relation to Wagner's
discharge, and the fact that all five drawings were dis-
played before Wagner when he was discharged on April
26. However, despite the fact that Enterline had given
the earlier cartoons to Foore, there is no indication that
Respondent made any effort to determine their author or
do anything about them until April 26. I concluded that
the earlier cartoons as well as an earlier grievance writ-
ten by Wagner were considered and displayed only as
part of the process of determining the authorship of the
Kemper cartoon and that the discipline of Wagner was
based on that cartoon alone.
5. The effect of the Kemper cartoon
No evidence was offered to show that the Kemper
cartoon had any direct effect on production. Calaman
and Kemper both testified that Kemper was upset by the
cartoon. Wagner showed the cartoon to some of his co-
workers who responded by laughing. Kemper testified
that after he discovered the cartoon he felt "an air of un-
easiness between me and my coworkers. Like, they
didn't want to stop and talk to me or me to stop and talk
to them. It was an uncomfortable feeling." This subjec-
tive perception of Kemper's, undoubtedly colored by his
own personal response to the drawing, is the strongest
evidence offered to show impairment of Kemper's super-
visory function. However, Kemper's sensitivity to em-
ployee emotions and attitudes is to be questioned in the
light of his testimony concerning their reactions to
downgrade and layoff lists. He testified that no employ-
ees in his area were upset by the downgrade and layoff
list posted on April 22, despite having 4 or 5 of the 22
people in his area directly affected by that list and de-
spite the fact that the list was deliberately posted late in
the shift because "we knew it was going to be a lot of
talk." I conclude that the uneasiness felt by Kemper was
his subjective, justifiable, reaction to a vulgar satire
7 According to Wagner, while he refused to admit involvement, he did
not deny it. According to Calaman, although Wagner initially avoided
answering as to his involvement, he later denied responsibility and chal-
lenged Calaman to "pin this" on him. The conflict is not material to the
issue in the case.
1330 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
aimed at him. In any event, his testimony points to no
impact on production or on his ability to supervise.
The evidence does show a history of cartooning in the
plant and the use of obscenities on the shop floor. Al-
though Respondent instructed its guards to remove de-
rogatory and defamatory cartoons , shop employees had
frequently posted cartoons aimed at fellow employees
and supervisors . Respondent had not disciplined employ-
ees for any cartoon , and at times offensive cartoons had
remained posted for considerable periods of time. While
Enterline testified that in 7 years before April 1982, he
had removed only one caricature , the picture he re-
moved in 1977 , was a cartoon from Hustler magazine
which had been personalized to depict a specific foreman
as a child molester.
Notwithstanding Enterline 's testimony that he re-
moved only one cartoon in 7 years , there is substantial
evidence that cartooning was widespread , that other car-
toons derided supervision , and that they used vulgar im-
agery and terms. Employee Walter Lehigh testified with-
out contradiction that another employee had made a
make-shift bulletin board in the shop on which were dis-
played as many as 25 cartoons at a time. They were
either hand-drawn or cut out of publications and sati-
rized politics , individual employees, and management.
This "bulletin board" was used for at least 1-1 /2 years.
Respondent took it down only after Wagner was dis-
charged, and no one was disciplined in connection with
it. Lehigh and employees Mike Gehly and Jeffrey Luck-
enbaugh testified that cartoons were regularly posted
throughout the shop . Gehly described a cartoon ridicul-
ing a foreman 's toupee. Luckenbaugh described one car-
toon depicting "management" seated on the stool in an
outhouse with the space below labeled "employees." He
testified that it remained posted on an employee 's tool-
box for months . Tour Coordinator Mincer, silent on the
general exhibition of cartoons , recalled several times
when he had observed posted copies of magazine pic-
tures of nude women . On two occasions he asked em-
ployees to cover the pictures while a tour group went
through; once he removed and discarded the picture.
Wagner testified that he had drawn "hundreds " of car-
toons at Caterpillar and that he had seen one cartoon,
drawn by another person , posted for over a year.
Although Kemper and Calaman claimed to have never
seen a cartoon in the shop like the Kemper cartoon, it is
implicit in their testimony that they viewed the Kemper
cartoon in a class by itself and not that they disputed the
history of cartooning described by employee witnesses.
Even to Wagner the established practice of cartooning
differed in degree from the Kemper cartoon. Thus,
Wagner did not want it circulated "[b]ecause it wasn't in
keeping with the type of cartooning that I did do. There
were things there that I didn 't want spread around; how-
ever, things that I would say and think among myself."
The crude "things" on the cartoon , however , were not
of a language foreign to the shop floor; such language
was broadly tolerated , and as indicated above, crudeness
was not foreign to all earlier cartoons.
No witness testified that vulgarity was unheard on the
shop floor . Supervisor Kemper admitted to occasionally
using the words "damn ," "shit," "crap," and said that "I
don't even use the word `fuck' as a rule." Calaman re-
called disciplining an employee who called a supervisor,
to the supervisor 's face, a "no good bastard ." However,
before disciplining the employee , Calaman repeatedly
"tried to give [the employee] an opportunity to settle
down and back off of that position." When the employee
refused , he was discharged and subsequently reinstated
after a 3-day suspension . It seems clear from the cited in-
cident that the discipline was not for the employee's use
of vulgarity but for his direct insubordination . Mincer
testified that supervisors were instructed to "always
remain cool and calm"; he understood that instruction to
preclude the use of profanity . His perception is obviously
different from Kemper 's, perhaps indicating a difference
between "instructed " behavior and behavior in actual
practice.
The testimony of the union witnesses indicated that
the language used on the shop floor was at least as crude
as the language used in Wagner 's "Kemper" cartoon.
Shoemaker testified to the "constant" use of words like
"bastard" and "screw" and words "much stronger" than
those. Lehigh testified that he heard "`shit,' `piss,' even
`fuck"' used in the plant by hourly employees and fore-
men and that such language was "common shop talk."
Lehigh once posted a cartoon on which he may have
written an obscenity like "Hey , shit come here." Lucken-
baugh testified that he heard foul language from "[j]ust
about everybody you talk to. It would be may be every
5 minutes or something ." He said that he had "worked
beside people that were like the church-going type that
would never even say a foul word to someone that says
`fuck' every other word." He also testified to posting
onto his machine in sight of other employees a cartoon
on which he had written the term "mother fucker."
Ghely testified that the language of the shop was "every-
day street language," and the commonly used were
words like " `screw,' `fuck,' `damn,' `shit,' and on and
On.,,
B. Concluding Findings
1. Did Wagner 's involvement in drawing the
Kemper cartoon constitute concerted activity under
Section 7 of the Act
As found above, discipline was based on the Kemper
cartoon and not the cartoons about Diehl. That cartoon,
of the five Wagner cartoons in evidence, was drawn by
Wagner and one other employee whom Wagner reluc-
tantly identified at the hearing. Wagner showed it to
other employees , one or more of whom duplicated it and
posted it around the shop . The involvement of a second
employee in drafting the cartoon and of one or more
other employees in disseminating it makes it clear that
Wagner was engaged in concerted activity . The question
remains whether it was "for the purpose of collective
bargaining or other mutual aid or protection" within the
meaning of Section 7.
Respondent argues that the Kemper cartoon was moti-
vated by an "entirely personal dispute ." However, the
evidence is to the contrary . The statements on the car-
toon focus on Kemper 's relationship to the shop employ-
CATERPILLAR TRACTOR CO.
ees as a supervisor. The incident regarding the discussion
over downgrades was the only dispute bei ween Wagner
and Kemper shown to exist at the hearing and is clearly
referred to in the left margin of the cartoon. That dispute
concerned the efforts of Wagner and Shoemaker as stew-
ards to enforce the contract rights of other employees.
Kemper mentioned no other dispute with Wagner even
though Kemper noted at the hearing that "I had many
conversations over the past years and supervision with
him." Wagner's cartoon, thus, was not personal and re-
lated to the quality of Kemper's supervision and the
manner in which that supervision was exercised. Such
concerns are directly related to working conditions,
Leslie Metal Arts Co., 208 NLRB 323 (1974), enfd. 509
F.2d 811 (6th Cir. 1975), and the public airing of Wag-
ner's and Shoemaker's dissatisfaction with Kemper's han-
dling of their discussion of the downgrades list was pro-
tected concerted activity. Honeywell, Inc., 250 NLRB 160
(1980), enfd. 107 LRRM 3213 (3d Cir. 1981).
Respondent also argues that Wagner lost protection of
the Act by making his dispute personal through his fail-
ure to utilize the contractual grievance process and that,
in any event, at the time of Wagner's discipline, Re-
spondent had no good-faith reason to believe that the
cartoon involved concerted action.
As for the first, Respondent relies on dicta in Farmers
Union Cooperative Marketing Assn., 145 NLRB 1 (1963),
that "where an employee does not utilize his contractual
right to grieve or goes over the head of his bargaining
agent to press his individual claim, his grievance be-
comes personal and `loses the statutory protection."' Id.
at 3. However, as explained in J. A. Ferguson Construc-
tion Co., 172 NLRB 1494, 1499 (1968), when Farmers
Union Cooperative is read in toto, the specific phrase
cited merely indicates that when a grievance which is
entirely personal is brought by an employee without
resort to the contractual grievance procedure, it is not
protected concerted activity, even if it would have been
protected if brought under a contractually established
grievance process. Here the grievance was not entirely
personal, and nothing in Farmers Union suggest that the
only form of concerted activity which is protected is
resort to the contractual grievance procedure where it
exists. See also American Hospital Assn., 230 NLRB 54,
55 (1977).
Finally, Respondent argues that because it lacked
knowledge of group involvement in the Kemper cartoon
Respondent was unaware of the concerted nature of the
activity at issue. However, it is well established that
"[g]roup action is not deemed a prerequisite to concerted
activity, for the reason that a single person's action may
be the preliminary step to acting in concert." Salt River
Valley Users Assn., 99 NLRB 849, 853 (1952). The ques-
tion, as Honeywell, Inc., supra, makes clear, is not one of
determining the number of employees involved in the ac-
tivity but one of determining if the questioned activity
affected the furtherance of employees' rights. Respond-
ent, prior to disciplining Wagner, clearly knew that the
Kemper cartoon referred to such a question. Calaman
testified that, after Kemper gave him the cartoon, "I
thought about it, and the statements that were on the
poster were statements that Ray had told me were in
1331
conversations that he had had on previous days with
Bob Wagner in his area, between Department 22 and
Department 20. The more I thought about that, I
thought, okay, the sayings or, there and some of the feel-
ings that were being expressed were things that Bob was
saying." The "sayings" and "feelings" so expressed re-
ferred, as Calaman implicitly admits, to Wagner's criti-
cism of Kemper's handling of the discussion which at-
tempted to correct errors in the downgrade list. Thus,
Calaman was aware that the Kemper cartoon directly re-
ferred to the protest over Kemper's response to the stew-
ards' requests, a protest seen by Calaman as not wholly
invalid the day after Wagner's discharge in his handling
of Shoemaker's grievance.
For all the foregoing reasons, Wagner's drawing of the
Kemper cartoon constituted concerted activity for
mutual aid or protection and thus, without more, was
protected under Section 8(a)(1) of the Act.
2. Did the cartoon lose its protection
It is clear that otherwise protected concerted activity
can lose the Act's protection. The Act strives to achieve
a balance between the right of employees to organize for
mutual aid and protection and "the equally undisputed
right of employers to maintain order in their establish-
ments." Republic Aviation Corp. v. NLRB, 324 U.S. 793,
798 (1945). It is a balance struck through the use of
standards which can not be so rigidly applied that the
Board is prevented from acting with "administrative
flexibility." Ibid.
The standard applied must be especially discerning in
those cases involving speech. "[F]ederal law gives a
union license to use intemperate, abusive, or insulting
language without fear of restraint or penalty if it believes
such rhetoric to be an effective means to make its point."
Letter Carriers v. Austin, 418 U.S. 264, 283 (1974). In
Letter Carriers, the Court, protecting a union's publica-
tion of a list of "scabs," reiterated the position it took in
Linn v. United Plant Guard Workers, 383 U.S. 53 (1966),
noting: "Mr. Justice Clark put it quite bluntly: `The most
repulsive speech enjoys immunity provided it falls short
of a deliberate or reckless untruth."' (Citation omitted.)
Letter Carriers, supra at 283-284. While Letter Carriers
and Linn were libel actions, the principles applied by the
Court came from the National Labor Relations Act, and
what the Court immunized from the reach of libel ac-
tions was speech protected by Section 7 of the Act. In
applying these principles in New York University Medical
Center, 261 NLRB 822 (1982), enfd. in pertinent part 702
F.2d 284 (2d Cir. 1983), the Board adopted the adminis-
trative law judge's decision holding: "Employee litera-
ture, otherwise protected, loses this status only in limited
circumstances, such as if the literature contains attacks
on an employer's products or services; material so dis-
ruptive as to threaten plant discipline; and malicious
falsehoods." (Citations omitted.) Id. at 824.
In the present case, as there was no attack on the em-
ployer's products or services, the focus falls on whether
the cartoon threatened plant discipline or contained mali-
cious falsehoods.
1332 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In deciding when offensive language threatens plant
discipline , the Board has sought a balance "between
cases where employees engaged in concerted activities
exceed the bounds of lay 1 conduct in a moment of
animal exuberance . .. or in a manner not activated by
improper motives , and those flagrant cases in which the
misconduct is so violent or of such serious character as
to render the employee unfit for further service."
Bettcher Mfg. Corp., 76 NLRB 526, 527 (1948). As set
forth in American Hospital Assn., 230 NLRB 54 (1977),
the burden is on the employer to justify the withdrawal
of protection from the employee activity. The employer
meets the burden by showing that the language constitut-
ed insubordination, as in Fibracan Corp., 259 NLRB 161
(1981), where the employee persisted in using profanity
towards a supervisor who had specifically informed her
of his objections to the language; or that the language
threatened disruption of discipline , as in Southwestern Bell
Telephone Co., 200 NLRB 667 (1972), where employees
were disciplined for wearing printed T -shirts which were
objectionable to supervisors and fellow employees.8
In this case, Respondent has offered no evidence to
show that the cartoon was insubordinate . Kemper felt a
vague uneasiness between himself and the hourly em-
ployees, an uneasiness apparently noticed only by
Kemper. While Calaman testified that he never saw an-
other cartoon which ridiculed a specific supervisor with
obsence language, the evidence shows that there had
been other cartoons less vulgar but certainly as specific
in their ridicule of supervisors , including the Diehl car-
toons drawn by Wagner , which were not treated as in-
subordination . The evidence presented shows only that
Kemper was disturbed by the cartoon. In Thor Power
Tool Co., 148 NLRB 1379 (1964), enfd. 351 F.2d 584 (7th
Cir. 1965), the judge upheld by the Board, noted that "if
[the employee 's] expression was generally within the
ambit of statutory protection , the fact that it transgressed
[the supervisor 's] threshold of tolerance (for the invec-
tive of others) would not forfeit that protection." Id., 148
NLRB at 1388. The cartoon itself does not directly refer
to Kemper with profanity ; it merely depicts him as using
profane language and engaging in vulgar activity (urinat-
ing on "a common low life worker"). The language is
less direct than that the Board found protected in Kay-
Fries, Inc., 265 NLRB 1077 (1982), (an employee told his
supervisor, "F- the $80; shove the $80 up your f-ing
ass") and in Sullair P.T.O., Inc., 250 NLRB 614 (1980),
enf. denied 641 F.2d 500 (7th Cir. 1981) (an employee
told his supervisor that he was a "f-ing poor manag-
er"). It seems clear that Wagner 's Kemper cartoon had
neither insubordinate intent or effect . Wagner used the
common, vulgar language of the shop to air his griev-
ance. The Kemper cartoon, within the specific context of
the York Caterpillar Plant's history of vulgar language
and cartooning , was comparable to the statement in Kay
Fries, above, which the administrative law judge there
described as "certainly foul and discourteous, especially
when it was overheard in part by fellow employees and
several members of management , suffice it to say that it
is a statement commonly understood as a vulgar way of
telling someone to `keep it."' Kay Fries, id. at 1089.
Unlike the communications in Postal Service, 241 NLRB
524 (1979), Wagner's cartoon contained no invitation to
employees to take matters in their own hands. Nor is
there any showing that Wagner , who was not supervised
by Kemper , no longer was fit to perform the duties of
his job because of the drawing and dissemination of the
cartoon.
Respondent also failed to show that the cartoon threat-
ened to disrupt discipline in the shop . Normal behavior
in the shop included the use of the rough, crude lan-
guage common to large industrial plants and included
cartooning which lampooned supervisors . Respondent's
only action in the past to deal with materials it consid-
ered offensive was to instruct its guards to remove them,
leaving it to the guards to decide what to remove and
taking no action to identify those responsible when such
materials , including Wagner's cartoons aimed at Diehl,
were removed. Thus, whatever understandable distaste
Respondent had for such materials , it had not regarded
them as a threat to plant discipline in the past, and there
is no showing that past cartoons or the Kemper cartoon
had any impact on employee discipline or any adverse
impact on production . Unlike the T-shirts in Southwestern
Bell, above, or Caterpillar Tractor Co. v. NLRB, 230 F.2d
357 (7th Cir. 1956),9 there is no showing that the
Kemper cartoon had a divisive impact on employees or
was likely to cause disruption among them , nor is there
any showing that Wagner persisted in displaying his car-
toon after being expressly asked not to.
Finally, the cartoon falls well short of the "deliberate
or reckless untruth" which the Supreme Court held nec-
essary to exist for a statement to lose the Act's protec-
tion as a malicious falsehood . Linn, above, at 63; Letter
Carriers, above, at 281. There is no proof that Wagner
did not believe that Kemper's atttitude had been hostile
during the discussion of downgrades . As the administra-
tive law judge noted in New York University Medical
Center, above, it is the grievant's belief that a situation
occurred which is important . That an incident may or
may not have occurred goes only to help establish the
justification of the belief in the occurrence . It is also "im-
material to a determination that an employer has unlaw-
fully discharged an employee for giving currency to in-
accurate information . . . that the employer acted upon a
good faith belief that the information was deliberately or
maliciously false if such were not the case. " Veeder-Root
Co., 237 NLRB 1175, 1177 (1978), quoting El Mundo
Broadcasting Corp.. 108 NLRB 1270 (1954). Moreover, it
is clear that the cartoon was a caricature, metaphoric
and satiric in nature , and not literal . As such, despite its
offensive and repulsive nature , it did not lose its protec-
tion under the Act. Letter Carriers, above, at 284-286.
Accordingly, I conclude that the drawing and dissemi-
nation of the cartoon was concerted activity for the pur-
pose of employees' mutual aid and protection, that Re-
8 A third alternative , that the language is threatening to the purpose of 9 After Letter Carriers, above , it is open to question whether the slogan
the institution , as in Lutheran Social Service of Minnesota , 250 NLRB 35 on the T-shirts in Caterpillar Tractor still would be considered unprotect-
( 1980), is not applicable here ed.
CATERPILLAR TRACTOR CO.
spondent has not shown that it was so offensive, defama-
tory, or opprobrious as to remove it from the protection
of the Act, and that the discipline imposed on Wagner
therefore violated Section 8(a)(l) of the Act.
IV. THE REMEDY
Having found that Respondent engaged in unfair labor
practices, I shall recommend that it be ordered to cease
and desist therefrom and to take certain affirmative
action designed ' to effectuate the policies of the Act.
As I have found that Respondent unlawfully suspend-
ed Robert C. Wagner, I shall recommend that Respond-
ent make him whole for the period of his suspension by
payment to him of a sum of money equal to that which
he normally would have earned but for the unlawful sus-
1333
pension , with interest thereon to be computed as provid-
ed Florida Steel Corp., 231 NLRB 651 (1977).1®
On the basis of the above findings of fact and the
entire record in this case, I make the following
CONCLUSIONS OF LAW
1. Caterpillar Tractor Company is an employer en-
gaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
2. Respondent engaged in unfair labor practices in vio-
lation of Section 8(a)(1) of the Act by suspending Robert
C. Wagner because of his protected concerted activity.
[Recommended Order omitted from publication.]
ao See generally Isis Plumbing Co., 138 NLRB 716 (1962).