Charles Myers & Co.

National Labor Relations Board - Board Decisions

May 20, 1971

190 N.L.R.B. 448 (N.L.R.B. 1971)

448 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Charles Meyers & Company and Helma Anna. Case
14-CA-5777
May 20, 1971
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND KENNEDY
On January 26, 1971, Trial Examiner Frederick U.
Reel issued his Decision in the above-entitled proceed-
ing, finding that Respondent had not engaged in the
unfair labor practices alleged in the complaint and
recommending that the complaint be dismissed in its
entirety, as set forth in the attached Trial Examiner's
Decision. Thereafter, the General Counsel filed excep-
tions to the Trial Examiner's Decision and a brief in
support thereof. The Respondent filed a brief in opposi-
tion to General Counsel's exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its power
in connection with this case to a three-member panel.
The Board has reviewed the rulings of the Trial Ex-
aminer made at the hearing and finds that no prejudi-
cial error was committed. The rulings are hereby
affirmed. The Board has considered the Trial Ex-
aminer's Decision, the exceptions and briefs, and the
entire record in the case, and hereby adopts the
findings, conclusions and recommendations of the Trial
Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor Re-
lations Act, as amended, the National Labor Relations
Board adopts as its Order the recommended Order of
the Trial Examiner and hereby orders that the com-
plaint herein be, and it hereby is, dismissed in its en-
tirety.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
FREDERICK U. REEL, Trial Examiner: This proceeding,
heard at St. Louis, Missouri, on December 14 and 15, 1970,'
pursuant to a charge filed the preceding September 1, and a
complaint issued October 27, presents primarily the question
whether Respondent, herein called the Company, violated
Section 8(a)(1) and (3) of the Act when on August 14 it
discharged the Charging Party while she was engaged, in her
capacity as a union representative, in a discussion with the
plant superintendent. Upon the entire record, including my
observation of the witnesses, and after due consideration of
the briefs filed by General Counsel and by the Company, I
make the following.
I All dates herein refer to the year 1970 unless otherwise stated
190 NLRB No. 86
FINDINGS OF FACT
I THE BUSINESS OF THE COMPANY AND THE
LABOR ORGANIZATION INVOLVED
The Company, an Illinois corporation engaged at Belle-
ville, Illinois , in the manufacture of pants, annually ships
products valued in excess of $50,000 to points outside the
State, and is an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act. The United Gar-
ment Workers of America, AFL-CIO, Local 298, herein
called the Union, is a labor organization within the meaning
of Section 2(5) of the Act.
II THE ALLEGED UNFAIR LABOR PRACTICES
The Company and the Union had a collective-bargaining
agreement which provided, inter alia, for grievances to be
presented through unioi committeemen. Helma Anna, who
had been in the Company's employ since 1957, served as a
union committeewoman and had frequent occasion to present
grievances to Richard Fox, the plant superintendent. Mrs.
Anna's conduct on these occasions would border on the ag-
gressive. She frequently raised her voice to the point where
her conversations with Fox, during working hours, would
cause other employees in the area to drop their work and
listen to the altercation. In March the Company gave her a
written warning that continuation of her insolent and in-
subordinate conduct could result in her discharge. She had
also received a number of oral warnings, and her union as-
sociates had cautioned her to be more circumspect.
The episode which resulted in the termination of her em-
ployment originated with Company's discharge in May of
employee Evelyn Selader. This discharge was the subject of
an unfair labor practice charge, which eventuated in a settle-
ment agreement pursuant to which Selader was reinstated on
July 20. Early in August Fox heard that a rumor was circulat-
ing that the Company had not given Selader full reinstate-
ment but was treating her as a new employee. According to
Selader, Fox, on August 14, accused her of starting this ru-
mor and called her a liar when she denied it. Fox on the
witness stand denied that he called Selader a liar, but at the
very least I am satisfied that she so construed his remarks
Selader promptly complained to her committeewoman,
Anna, who promptly arranged for a meeting at Fox's desk on
the sewing floor.
The meeting was attended by Anna, Selader, and Fox, and
also by Ruth Benson, another union committeewoman, and
by Marie Mank, Fox's assistant. After some discussion of the
rumor, Fox said (according to both Anna and Selader) that
Selader should not talk to anyone in the plant during working
hours. (Fox and his assistant both testified that Fox merely
told Selader it would be advisable if both he and she said
nothing further about the rumor, but I am ready to assume
that Anna and Selader understood him to utter a more sweep-
ing prohibition.) At this point Selader, Benson, and Mank
returned to their work stations. Anna, however, remained at
Fox's desk where she became increasingly loud and vitupera-
tive. In a tone of voice which carried a considerable distance
and which led employees in the area to stop work, she told
Fox that she had her rights,.that Selader could talk to her
whenever Selader wanted to, that Fox should have his mouth
bashed in, that it was high time someone stepped on him (or
on his toes), and that she was going to do it. Her tirade
concluded with her repeatedly daring Fox to discharge her,
which he eventually did
As stated in N.L.R.B. v. Thor Power Tool Co., 351 F.2d
584, 587 (C.A. 7, 1965):
CHARLES MEYERS & CO.
As other cases have made clear, flagrant conduct of an
employee, even though occurring in the course of section
7 activity, may justify disciplinary action by the em-
ployer. On the other hand, not every impropriety com-
mitted during such activity places the employee beyond
the protective shield of the act. The employee's right to
engage in concerted activity may permit some leeway for
implusive behavior, which must be balanced against the
employer's right to maintain order and respect.
The facts in this case show the balance tipping in favor of the
Company. The testimony of disinterested persons, including
officers of the Union and the other union committeewoman
(who was called as a witness by General Counsel), leaves no
room for doubt but that Anna, on this occasion as well as on
previous occasions, had carried out her duties as union com-
mitteewoman in a fashion which unnecessarily disrupted op-
erations at the plant. Even assuming that Fox had unwarrant-
edly called Selader a liar, and even assuming that he had
unwarrantedly limited her freedom to converse in the plant,
Anna's conduct in protesting these actions and her taunting
of Fox with a repeated demand that he fire her exceeded the
limits of statutory protection. See Calmos Combining Co.,
184 NLRB No 107. Moreover, Anna had previously been
warned by Fox and cautioned by her union associates about
449
her tendency to engage in such conduct, so that the culminat-
ing episode cannot be styled a mere "moment of animal exu-
berance." Thor, supra, 148 NLRB 1379, 1386, quoting the
familiar Meadowmoor language.
The complaint as to Anna must therefore be dismissed. A
similar fate befalls the allegation that the Company violated
Section 8(a) (1) by prohibiting an employee from talking to
a union committeewoman The most the evidence shows in
that respect (and even this is sharply controverted) is that
Selader was told not to talk to "anyone." This prohibition
would, of course, necessarily include union people, but the
sense of the prohibiton (if indeed it was made) is unrelated
to any Section 7 right.
CONCLUSION OF LAW
The Company has not engaged in the unfair labor practices
alleged in the complaint
Upon the foregoing findings of fact, conclusion of law, and
the entire record, and pursuant to Section 10(c) of the Act,
I hereby issue the following recommended:
ORDER
The complaint is dismissed in its entirety.