Consumers Power Co.

National Labor Relations Board - Board Decisions

Nov 13, 1986

282 N.L.R.B. 130 (N.L.R.B. 1986)

130 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Consumers Power Company ' and Michigan State
Utility Workers Council, AFL-CIO. Case 7-
CA-20060
13 November 1986
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
JOHANSEN AND STEPHENS
On 14 January 1983 Administrative Law Judge
Richard H. Beddow Jr. issued the attached deci-
sion . The Respondent filed exceptions and a sup-
porting 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 brief and has
decided to affirm the judge's rulings, fmdings,1 and
conclusions and to adopt the recommended Order
as modified.2
The judge concluded the Respondent violated
Section 8(a)(1) by discharging employee Robert
Knight because Knight protested unsafe working
conditions. We agree with the judge's conclusion,
but only for the following reasons.
Those facts that are fully set forth in the judge's
decision are only briefly summarized below. We
also take note of certain additional facts which are
supported by uncontroverted evidence in the
record.
The Respondent provides natural gas and related
products to customers in Grand Rapids and other
Michigan cities. Robert Knight is one of 10 meter-
men assigned to the Respondent's Grand Rapids fa-
cility. Knight is supervised by Region Meter Serv-
ices Supervisor Stuart Currie.
The Respondent held weekly meetings with its
metermen . Customer violence and other safety
issues were frequently discussed at those meetings.
Among the incidents discussed was an instance in
1977 or 1978 in which a customer broke employee
Ed Podell's arm . Employee Harvey Snyder told
those present at the meeting that he was "a little
upset." He said he thought he deserved to be pro-
tected from those kinds of incidents but now knew
' 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.
No exceptions were filed to the judge's finding that he should not defer
to an arbitrator 's decision reducing employee Robert Knight's discharge
to a 75-day disciplinary layoff.
2 We shall modify the recommended Order to conform to our conclu-
sions
he was not. He stated : "[I]t was really the first time
I had found ' out going into a place, being alone,
that I do not have protection . ..."
Employees also learned at these weekly meetings
that in 1979 a customer "took a hammer to" an em-
ployee's car, and a meterman later was sent to the
customer's home with police protection to restore
the customer's gas service.
In May 19813 a customer telephoned the Re-
spondent and threatened to hit Robert Knight over
the head and "throw" him "down the basement."
Knight first learned about this incident after return-
ing to the Respondent's facility, and he discussed it
at a weekly meeting . Knight then learned that an-
other meterman had been threatened by the same
customer, but that the Respondent never noted the
customer's records so that other metermen would
be forewarned. Knight told Supervisor Currie that
a notation should have been made concerning the
incident.
According to Currie, when an employee reports
he or she has been threatened, Currie files a "prop-
erty protection form." The threat is then perma-
nently recorded in the Respondent's records so that
any later work order for that customer is coded to
indicate "threats of violence." Currie indicated,
"that way we can protect our people from going
into an unsafe condition." Currie testified, howev-
er, he could not recall a property protection form
being filed while he was supervisor based on vio-
lent incidents the metermen reported before 12
June 1981. No other evidence was introduced indi-
cating property protection forms were filed before
Currie became a supervisor. According to employ-
ee Snyder, employees believed that the Respondent
would "prosecute" if a "vehicle is involved." But,
"if it involves you, a big part of it, you are on your
own."
On 10 June 1981 the Respondent assigned
Robert Knight to exchange a broken gas meter at a
home on Alba Street in Grand Rapids. When
Knight arrived at the address, the customer or-
dered Knight not to go beyond the sidewalk. After
Knight persuaded the customer to allow him to
check the numbers on her meter, he explained to
her that he was there to change the meter because
the glass was broken. The woman then told Knight
"the power company said it is supposed to be that
way." According to Knight, the woman "had a
wide-eyed look and flashing eyes," and he thus
concluded "there was something wrong with the
woman, either she had been drinking or was high
on drugs or crazy or whatever." He then returned
to his truck and called his dispatcher, who told
S All dates are 1981 unless otherwise indicated
282 NLRB No. 24
CONSUMERS POWER COMPANY 131
Knight to leave the area . As Knight drove away
from the customer 's home, the customer made a
fist and took a swing at the truck . Knight later
called the dispatcher and told her that if she sent
another meterman to that address , the meterman
should have police protection.
That evening , Knight told Supervisor Currie
what had happened to him . Currie asked Knight if
he "felt threatened in any way ." Knight said,
"No." Currie then asked Knight if he "in any way
receive[d] a threat from this lady." Knight again
said, "No."4 According to Currie ; had Knight told
him he had been threatened , Currie would have
filed a property protection form about the incident.
On 12 June Currie had employee Tom Young
dispatched to the Alba Street address initially with-
out police protection . When Young attempted to
replace the meter, the customer kicked him. Currie
later sent Young back to that address with police
protection.
Knight had heard Young dispatched to Alba
Street on his truck radio . When Knight returned to
the Respondent's Grand Rapids facility that
evening, he asked Young if he had police protec-
tion when he went to Alba Street that day. Young
said he had not been given police protection until
after the customer kicked him.
According to Knight, he got "kind of hot under
the collar" because his warning had gone unheed-
ed. He told Young , "[C]ome on Tom, we had
better ' go and get supervision in on this before
somebody gets killed ." Knight and Young then ap-
proached Supervisor Currie , who was talking to
employee Ed Podell.
Earlier that day, Young had helped revive a
child who had been in a motorcycle accident and
Young began his discussion with Currie by telling
him about this incident . When Young finished,
Currie asked Young what happened when he went
to replace the broken meter on Alba Street . Knight
then interrupted and said , "God damn you, Stuart,
why did you send him out there without police
protection?" or "[W]hy in the hell didn't you give
Tom police protection over on Alba Street[?] . . ,
Somebody is going to get killed if you don 't start
getting a little police protection on some of these
calls."5 At approximately this time, Young turned
away and began walking toward a sink where he
intended to wash blood' from his hands.
4 Knight testified he told Currie to provide police protection to any
meterman sent to the Alba Street house . Currie denied Knight told him
that, and the judge did not credit one version over the other. We find it
unnecessary to resolve this conflict in the testimony,
5 Currie testified to the first version and Knight to the second The
According to Knight, Currie said, "I'll take care
of it,"' moving his hands in front of Knight as if to
gesture or shake a finger in Knight's face. 1 Knight
said he reacted by defensively bringing his hands
up between himself and Currie with fists clenched.
Although Currie claimed -Knight struck him, the
judge found Knight did not. Podell then stepped
between Knight and Currie, pushed Knight back,
and said, "[L]et's cool down and take care of this
Monday."
The judge found Knight was engaged in concert-
ed activity based on the Board's decision in Alleluia
Cushion Co.7 Subsequent to the judge's decision,
the Board overruled Alleluia in Meyers Industries,8
setting forth a definition of "concerted activities"
under which an employee will be found to have
acted concertedly when he or she acts "with or on
the authority of other employees."9
Knight clearly acted "with" Young within the
meaning of Meyers when the two approached
Currie about Young's having been sent to Alba
Street without police protection. Knight also acted
"on the authority of' Young because Young acqui-
esced in Knight's suggestion that "we had better
go and get supervision in on this before somebody
gets killed."
Unlike our dissenting colleague, we do not find
significant the fact that, Young walked away from
Knight's discussion with ' Currie toward a sink. We
do not conclude Young thus intended to repudiate
Knight's assertions, nor do we conclude Young in-
tended to indicate that he was not a party to
Knight's complaint. What Young intended is sub-
ject to a number of interpretations, the most com-
pelling of which is that Young simply intended to
wash blood from his hands.
We would not, at any rate, deny Knight the pro-
tection of the Act even if Knight had approached
Currie alone because we find that Knight 's acts are
a continuation of his and other employees' concert-
ed activity. We find the metermen acted concerted-
ly when they brought safety complaints to their
weekly meeting with the Respondent and discussed
with the, Respondent how it should have reacted to
violent incidents. We note in particular that the
metermen, including Knight, suggested specifically
that the Respondent should provide them with
more protection. Thus, even if Knight had acted
alone, his individual complaint would have been a
6 Currie did not testify that he raised his hands in front of Kbight's
face, but the judge, crediting Knight's testimony , found Currie had done
so We adopt this finding.
T 221 NLRB 999 (1975)
8 268 NLRB 493 ( 1984), remanded sub nom Prill v. NLRB, 755 F.2d
941 (D.C . Cir. 1985), cert denied 106 S .Ct 313, 352 ( 1985), reaffirmed
judge did not credit one version over the other We find it unnecessary 281 NLRB 882 (1986)
to resolve this conflict in the testimony. 9 268 NLRB at 497.
132 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
continuation of his and his coworkers' earlier con-
certed complaints at the Respondent's weekly
meetings. 10
We also cannot agree with our dissenting col-
league that Currie lacked knowledge of Knight and
Young's concert. Although our colleague is correct
that Currie was not privy to Knight and Young's
conversation before they approached Currie,
Currie was aware Knight and Young approached
him together. It was then Currie, not Knight or
Young, who first mentioned Young's being sent to
Alba Street that day and it was Knight, not Young,
who responded. Young did not object `to Knight's
complaints about the Alba Street incident. Accord-
ingly, we find the conclusion inescapable that
Currie knew Knight and Young had approached
Currie together to discuss what had happened to
Young. The Respondent was, at any rate, well
aware of Knight's and the other employees' con-
certed safety complaints at the Respondent's
weekly meetings and that Knight's complaint to
Currie was a continuation of that activity.,
Accordingly, we find Knight was engaged in
concerted activity when he approached Currie and
that the Respondent knew it. Because we also find
Knight acted for the employees' mutual aid or pro-
tection, we conclude Section 7 protected Knight
when he approached Currie about the fact that
Currie sent Young to Alba Street without police
protection.
The Respondent contends and our dissenting col-
league would find that the Respondent discharged
Knight for assaulting his supervisor, not for "com-
plaining about working conditions." The Board has
long held, however, that there are certain param-
eters within which employees may act when en-
gaged in concerted activities. The protections Sec-
tion 7 affords would be meaningless were we not
to take into account the realities of industrial life
and the fact that disputes over wages, hours, and
working conditions are among the disputes most
likely to engender ill feelings and strong re-
sponses.1l Thus, when an employee is discharged
for conduct that is part of the res gestae of protect-
ed concerted activities, the relevant question is
whether the conduct is so egregious as to take it
10 See JMC Transport, 272 NLRB 545 fn 2 (1984), enfd 776 F 2d 612
(6th Cir 1985).
11 See Bettcher Mfg Corp, 76 NLRB 526, 527 (1948), Ben Pekin Corp.,
181 NLRB 1025 (1970), enfd. 452 F.2d 205 (7th Cir 1971). In enforcing
the Board's order in Ben Pekin, the court stated . "'[N]ot every impropri-
ety committed during [Section 7] activity places the employee beyond
the protective shield of the Act' and 'the employee's right to engage in
concerted activity may permit some leeway for impulsive behavior 452
F 2d at 207' (quoting NLRB v Thor Power Tool Co., 351 F 2d 584, 587
(7th Cir 1965))
outside the protection of the Act,12 or of such a
character as to render the employee unfit for fur-
ther service.13 We do not believe Knight crossed
that line.
Knight raised his fists to Currie reflexively, re-
sponding to Currie's moving his hands in front of
Knight as if to gesture or shake a finger in Knight's
face. Knight was admittedly "hot under the
collar." Nevertheless, Knight retreated when
Podell intervened and, most importantly, as the
judge found, never struck a blow.
The Respondent obviously did not regard
Knight's similar reaction to his supervisor in Janu-
ary or February so inherently egregious as to war-
rant his discharge then. We likewise do not find
Knight's later conduct so egregious as to lose the
protection of the Act now.14 We also find that his
conduct was not of such a character as to render
him unfit for further service. Accordingly, we find
the Respondent violated Section 8(a)(1) when it
discharged Knight.' s
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent, Consumers Power Company, Grand
Rapids, Michigan, its officers, agents, successors,
and assigns, shall take the action set forth in the
Order as modified.
1. Substitute the following, for paragraph 1(a).
"(a) Discharging or laying off its employees for
activity protected by Section 7 of the Act."
2. Substitute the attached notice for that of the
administrative law judge.
12 Firch Baking Co, 232 NLRB 772 (1977); Postal Service, 250 NLRB 4
fn. 1, 5-6 (1980)
12 Bettcher Mfg. Corp, supra, 76 NLRB at 527
14 See E. I duPont & Co, 263 NLRB 159, 159-160 (1982)
15 Because we find the Respondent discharged Knight for conduct
that was part of the res gestae of his protected activities and not egre-
gious, we find it unnecessary to pass on the judge's findings that the Re-
spondent mechanistically applied its disciplinary policy to retaliate, or
otherwise retaliated, against Knight for his safety complaint to Currie
See Postal Service, supra, 250 NLRB at 6. Because we find it unnecessary
to pass on whether the Respondent retaliated against Knight, we find ir-
relevant the fact that Currie warned Knight in January or February to be
"very careful" about raising his fists again.
The Respondent also argues that its disciplinary policy "mandat[es]"
discharging Knight . The Respondent's contention is undermined in part
by the fact that it did not discharge Knight in January and did not initial-
ly discharge him in June It instead agreed to permit Knight to remain in
pay status until he could retire, indicating it had substantial discretion in
choosing the action it could take against Knight The Respondent's disci-
plinary policy cannot, at any rate, lawfully "mandat[e]" that Knight be
discharged in violation of Sec. 8(a)(1) Cf Crown Central Petroleum Corp
v NLRB, 430 F 2d 724, 729 (5th Cir 1970) ("the disciplining of employ-
ees for insubordination , while certainly the right of management, is not
such an inherent management prerogative as to be immune from chal-
lenge as a primary violation of § 8(a)(1)")
CONSUMERS POWER COMPANY
CHAIRMAN DOTSON, dissenting. -
I cannot agree that the Respondent violated Sec-
tion 8(a)(1) by discharging employee Robert
Knight because I find Knight was not acting in
concert with any other employee during the inci-
dent that gave rise to his discharge, and because
the Respondent could not have known Knight had
acted concertedly at any other relevant time. I also
find that Knight was, at any rate, discharged for
assaulting his supervisor, not for any reason prohib-
ited by the Act.
Knight and employee Tom Young approached
Supervisor Stuart Currie on 12 June 1981 ostensi-
bly to complain about the fact that Currie had sent
Young without police protection to a home at
which Knight had earlier been threatened. Young,
however, did not participate in Knight's discussion
with Currie about the incident. Instead, Young
began the conversation by telling Currie about how
earlier in the day he had helped revive a child who
had been involved in a motorcycle accident. While
Knight discussed his complaint with Currie, Young
turned away and, began walking toward a sink
where he intended to wash his hands. Knight alone
told Currie, "God damn you, Stuart, why did you
send [Young] out there without, police protection?"
or "[W]hy in the hell didn't you give Tom police
protection over on Alba Street[?]" Knight also
acted alone when he raised his fist to Currie after
Currie said, "I'll take care of it" and moved his
hands in front of,Knight as if to gesture or shake
his finger.
I am not convinced Young acted "with" Knight
in complaining to Currie, nor am I convinced
Knight acted "on the authority of" Young so as to
make Knight's complaint "concerted" within the
meaning of Section 7 as the Board defined it in
Meyers Industries, 268 NLRB 493'(1984), remanded
sub nom. 'frill v. NLRB, 755 F.2d 941 (D.C. Cir.
1985), cert. denied 106 , S.Ct. 313, 352 (1985), reaf-
firmed 280 NLRB 1024 (1986). Young indicated
little or no concern about Knight's complaint. If
anything, Young demonstrated that he repudiated
Knight's, complaint or, at least, that he did not
regard himself as party"to the discussion.'
My colleagues find Knight acted "with" Young
within the meaning of Meyers when the two ap-
proached Currie about Young's having been sent to
Alba Street without' police protection. There is,
however, no way Currie could have known what
Young and Knight intended when they approached
him. Also, Young began his discussion with Currie
by telling him of the incident in which he revived
' See Ontario Knife Ca v NLRB, 637 F 2d 840, 845-846 (2d Cir 1980)
133
a .,child, not about what had happened to him on
Alba Street.
The majority also finds Knight acted "on the au-
thority" of Young because Young acquiesced in
Knight's suggestion to speak to Currie about
Knight's complaint. That conversation, however,
did not occur in Currie's presence and my col-
leagues suggest no other way Currie would have
learned Young authorized Knight to speak for him.
While the majority contends Currie should have
known Knight spoke to Young because Knight
knew about the incident, the fact that they spoke
does not itself suggest that Young authorized
Knight to speak on his behalf.
Accordingly, I fmd that Knight did not act in
concert with Young, and that the Respondent
could not have known of Knight's concerted ac-
tivities at any other time.2
I would, at any rate, dismiss the complaint on
the ground that the Respondent discharged Knight
solely for assaulting his supervisor.
The record shows Knight's 12 June 1981 threat
to his supervisor was not his first. In January or
February 1981 Knight and Currie argued over
whether Knight received a work order over his
truck radio. During their discussion, Knight turned
his back to Currie. Currie touched Knight's shoul-
der and said: "[N]ow wait a minute friend." Knight
then turned to Currie with his fists raised and said:
"I am not your friend, don't call me your friend."
Currie warned Knight to be "very careful about
that kind of action" because "the consequences. of
that could be very serious."
That Knight was discharged when he again
raised his fists to his supervisor on 12 June, just 4
to 5 months later, should therefore have surprised
neither Knight nor the Board.
My colleagues do not 'find that the Respondent
retaliated against Knight for his safety complaint,
and my review of the record convinces me that
they are correct in declining to do so. The record
suggests that the Respondent was in fact receptive,
not hostile, to safety 'complaints. It held regular
weekly meetings to discuss safety issues and em-
ployees regularly raised safety complaints without
reprisal . Thus, the only reasonable conclusion is
that the Respondent was solely motivated by
Knight's second assault on his supervisor in decid-
ing to discharge him. As I do not believe the Act
prohibits that decision, I conclude the Respondent
did not violate Section 8(a)(1).
2, The majority also relies on JMC Transport, 272 NLRB 545 (1984),
enfd 776 F.2d 612 (6th Cir. 1985). I dissented in that case. Circuit Judge
Wellford agreed with my conclusion and dissented from the court's deci-
sion to enforce the Board's order.
134 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
cause he engaged in protected concerted activity by
complaining about unsafe working conditions.
At the close of the hearing the General Counsel elect-
ed to present oral arguments. Subsequently, a brief was
filed by Respondent. On a review of the entire record in
this case, and from my observation of the witnesses and
their demeanor, I make the following
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 lay off any of you
for activity protected by Section 7 of the Act.
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 Robert Knight 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 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.
CONSUMERS POWER COMPANY
Glenn M. Price Esq., for the General Counsel.
Gregory A. Sando Esq., of Jackson, Michigan, for the Re-
spondent.
Floyd Bergstrom, of Grand Rapids, Michigan, for the
Charging Party.
DECISION
STATEMENT OF THE CASE
RICHARD H. BEDDOW JR., Administrative Law Judge.
This matter was heard in Grand Rapids, Michigan, on
October 12, 1982. The proceeding is based on a charge
filed November 25, 1981, by Michigan State Utility
Workers Council, AFL-CIO. The General Counsel's
complaint alleges that Respondent Consumers Power
Company of Jackson, Michigan, violated Section 8(a)(1)
of the National Labor Relations Act by causing the disci-
pline and 75-day layoff without pay of an employee be-
FINDINGS OF FACT
1. JURISDICTION
Respondent is engaged in the storage, sale, and distri-
bution of natural gas and related products. It maintains
facilities in Grand Rapids, Michigan, as well as other
Michigan cities, and annually has gross revenues in
excess of $1 million, and receives goods and materials
valued in 'excess of $500,000 from points outside of
Michigan. It admits that at all times material it has been
an employer engaged in operations affecting commerce
within the meaning of Section 2(2), (6), and (7) of the
Act.
II. LABOR ORGANIZATION
The Michigan State Utility Workers Council, AFL-
CIO (the Union) is now and has been at all times materi-
al a labor organization within the meaning of Section
2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICE
Robert Knight is 1 of approximately 10 metermen em-
ployed in Grand Rapids under the supervision of Meter
Services' supervisor, Stuart Currie. Knight's position re-
quires that he go to customer locations and turn on
meters, change meters, repair meter sockets, and perform
related work.
On the morning of June 10, 1981, Knight was assigned
a work order to exchange a broken meter on Alba
Street, pursuant to a customer request. On his arrival, the
resident first ordered' him not to come from the road up
her driveway. He told her it was city property. She re-
lented but then refused to let him beyond the sidewalk.
He then talked her into letting him look at the meter to
see if he had the correct address and he explained it was
to change the meter because of broken glass. She then
repeated several times that the power company had said
it was supposed to be that way. Knight's observation of
the women's behavior and appearance led him to believe
that something was wrong with her and that she was
either "crazy, drunk, or on drugs." As he got into his
truck and called his dispatcher, who told him to leave
the area, the woman followed him to the truck, made a
fist, and took a swing at the truck as he started to leave.
He moved down the street, completed his call to the dis-
patcher, and told the dispatcher that if another service
man was sent to that address he should have police pro-
tection because the woman was crazy, drunk, or on
drugs. Knight testified that at the end of the workday he
also told Supervisor Currie that the woman was crazy,
drunk, or on drugs and that if he sent anyone back there
the meterman should be given police protection. He also
CONSUMERS POWER COMPANY
turned in a work order with a penciled notation,,-"The
customer won't let me at meter."
Currie testified that Knight told him that the woman
had said , "you cannot come on my property"; that
Knight had responded that the meter was not located on
her property; and the woman had backed up a few steps
and drew an imaginary line and stated, "you cannot
come across this line." Knight then told her that that
was not her property either, and at that point he went
back to the truck and left the premises.
Currie further testified he asked Knight if he had felt
threatened in any way and Knight said, "no." Currie
again asked, "[d]id you in any way receive a threat from
this lady?" Knight again said, "no." Currie testified that
he asked him these questions because , if he had received
a threat, Currie would have asked him to fill out a
"property protection form," which would have been
used to record on that customer 's permanent records the
'fact that a threat had been made. He further denied
Knight said anything about police protection at that
time. He also noted that the dispatcher did not notify
him that Knight had called about the incident . He fur-
ther testified that he was not aware of any property pro-
tection forms ever being issued between the time he
became a supervisor in March 1978 and June 10, 1981.
On Friday morning , June 12 , 1981 , Knight heard on
his radio that meterman Tom Young 's truck was being
sent to the Alba Street address. That afternoon, near 4
p.m., when both had returned to Respondent 's facilities,
Knight asked Young if he had police protection on the
call. Young replied "[N]o, not until after [he] had been
assaulted." Knight asked what had happened and was
told that Young had learned a lot of new four-letter
words and had been kicked by the woman. After hearing
this response, Knight became "kind of hot under the
collar," and said, "come on Tom, we had better go and
get supervision in on this before somebody gets killed."
The two approached Currie, who was talking to another
employee, Ed Podell, at the telephone counter. Currie
testified that Young first told him about his efforts to
revive a child who had just been injured in a motorcycle
accident and then ,, as Currie' asked 'Young to explain
what had taken place at the Alba Street address, Knight
interrupted and said , "God damn you, Stuart, why did
you send him out there without police protection?"
Knight testified he said, "[W]hy in the hell, didn't you
give Tom police protection over on Alba Street, before
somebody gets killed . Somebody is going to get killed if
you don 't start getting a little protection on these calls."
Knight testified that Currie said he would take care of it,
while moving his hands up in front of him, apparently as
if to gesture or shake his finger in Knight's face (Currie
did not recall having shaken his finger in Knight 's face).
Knight testified that he then defensively brought his
hands up between himself and Currie with his fist
clenched. Currie then said something to the effect of:
"what is meaning of this ,[or] we are not going to put up
with this," when Podell stepped between them, pushed
Knight back, and said, "lets cool down and take care of
this Monday." Currie said he would see Knight Monday
in his office and Knight replied , "You are damn right
you will."
135
x Currie testified that he started to explain to Knight
that he had informed Young of the situation before he
sent him out , but before he could finish Knight stepped
close to him with his fists raised and with a flushed face,
and he struck Currie 'in the upper left chest with his
right fist as he was hollering something . Curriie tele-
phoned his superintendent , Robert Vaughn, later that
evening and told him that Knight had hit him. On
Monday morning Vaughn reviewed the incident with
Currie and then interviewed Young and Podell. He then
went to see Knight , after being informed Knight was in
the training room. Knight was with several union offi-
cers, one of whom expressed his concern about Vaughn
talking to Young and Podell without benefit of anybody
from the Union being present . Vaughn then became agi-
tated and said he would continue the matter under inves-
tigation.
On Wednesday morning, June 17, 1981, Vaughn in-
formed his supervisor and other officials of the situation.
They reviewed the matter and concluded that Knight
had struck Currie. They further concluded that under
the Employer 's constructive discipline policy assault or
threat of physical violence is a first-offense discharge and
it was decided to suspend Knight pending further investi-
gation. Consideration of the fact that Knight had 32
years of service and was old enough to take retirement
led to a proposal that the Company consider offering
Knight The opportunity of taking early retirement. This
option was discussed with the Union and a formal meet-
ing was set up in which the various persons present
during the incident described what had occurred[. Both
union and management representatives asked questions.
William R. Mills, Respondent's corporation director of
union relations, who has the final authority for, discipli-
nary matters in the Company, short of a "`Presidential
Hearing process," concluded that there had been an as-
sault, a threat, and a battery. At this point, the parties di-
rected their attention to the early retirement possibility.
A recess was called, and Davis, the local union officer,
and Knight talked privately.
Knight initially decided to accept the early retirement
proposal and signed a agreement . to that effect, however,
a month later, he withdrew his request. He then Was dis-
charged, effective June 17, 1981. The discharge was ap-
pealed to arbitration where it was reduced to a 75-day
disciplinary layoff by an arbitration award dated hfovem-
ber 12, 1981.
Prior to the incidents of June 10 and 12, 1981 , several
events had occurred at Respondent 's meter service de-
partment which have a bearing on this case. Sometime in
early May 1981 , Knight was threatened as he was on an
assignment to South Division Street to make a collection
or turn off the electricity. A customer became very irate,
swore, threw the money on the floor, stood between
Knight and a second floor door, and threatened to hit
Knight over the head and throw him down the base-
ment . No actual battery took place, however, the matter
was discussed at the Wednesday morning meeting regu-
larly held between the rheterman an d Supervisor Currie.
Although Knight had not been warned of any potential
problem , he learned that another meterman had been
136 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
threatened there earlier. Knight then told Currie that no-
tations should be made on work, orders if there was a
threat of violence.
Knight further testified that safety matters frequently
were discussed at these regular Wednesday meetings and
on one occasion, shortly before Currie became supervi-
sor, Podell had his arm broken by a customer under simi-
lar circumstances. This matter was discussed and con-
cern was expressed over what was perceived to be a
company attitude that valued property but not the safety
of its workers.
Harvey Snyder, a former employee of the meter de-
partment, testified that he also was involved in an inci-
dent during the summer of 1979 that was discussed at the
Wednesday meeting. The incident had involved threats,
violence, and police participation. Again, employees
were concerned because of a perceived feeling that the
Company was leaving the employees on their own and
not taking any actions to back them up.
Supervisor Currie testified that in January or February
1981 an incident occurred between himself and Knight
involving a question of whether Knight had received a
radio call from the dispatcher. During the incident
Currie touched or tapped Knight on his left shoulder.
Knight reacted by clenching and raising his hands. Noth-
ing further occurred and Currie made a complaint or no-
tification to his superiors; however, he did admonish
Knight that he should be careful and the consequences of
such actions could be very serious. Currie testified that
he was aware of only two occasions when "property
protection" forms had ever been filled out, one for the
Young incident on June 12, 1981, and on one occasion
thereafter. Currie admitted that Knight had spoken to
him about safety concerns and a need for protection as a
result of the South Division Street incident but denied
that the situation was one where Knight had personally
received a threat. He admitted that a phone threat was
made to Respondent while Knight was on the premises,
and although the dispatcher then called and asked
Knight if everything was all right, he was not 'told until
after he returned to the office that the customer had
threatened to throw Knight down the stairs. No proper-
ty protection form was filled out as a result of the inci-
dent.
Mills testified that as Respondent's corporation direc-
tor of union relations, he was instrumental in the prepa-
ration of Respondent's disciplinary policy. This policy
expression was not a negotiated document. Under one
heading the policy list "Major Offences," including "2.
Insubordination" and "3. Abusive language directed at a
Supervisor." These offences "may require severe discipli-
nary action (but short of discharge) on the first occa-
sion." Under the next heading "First-Offence Dis-
charge," the policy states: "these are acts of misconduct
of such a nature that constructive progessive discipline
steps to rehabilitate the employee are inappropriate. Such
acts would constitute cause for discharge on the first oc-
casion and require no preliminary steps in progressive of
discipline. Examples of these infractions would include
but not be limited to: 1. Theft. 2. Assault or threat of
physical violence. 3. Sabotage. 4. Curbing of meter
reads."
Mills, who is a lawyer, testified that it was his "inten-
tion" in drafting the policy that Respondent define as-
sault as "not a battery" but including "something more
than a fear of someone touching. Threats themselves are
not enough."
When Shepard called Mills on June 17, 1981, he ex-
pressed the conviction that Knight had struck his super-
visor and they were in the process of following the disci-
plinary policy. Subsequently, after the initial suspension
and investigation, Mills testified that it was his conclu-
sion that "based upon our Progressive Disciplinary Poli-
cies, that whether or not the blow was struck was rela-
tively unimportant. Our policy called for discharge, first
offense, for either the assault or the threatening lan-
guage. Whether or not a blow is struck was unimpor-
tant."
Knight and the Union were not told that Knight was
being discharged for "assault" and "threatening re-
marks," and the first time that this was presented as a
reason for termination was at the hearing on October 12,
1982. During the arbitration proceedings the principal
subject of inquiry was whether or not Knight had struck
Currie and the subject of Knight's concern over safety
matters was not discussed. The arbitrator framed the
issue as "was the Grievant's discharge based on just
cause?" He thereafter found he could not "characterize
Grievant's said action as assaultive or threatening, and
without provocation by Currie" and, as noted, he award-
ed Knight reinstatement, subject to a 75-day disciplinary
layoff.
IV. DISCUSSION
The issues in this proceeding are whether the Board
should defer to the arbitrators award and whether the
Respondent violated the Act by discharging or otherwise
subjecting the alleged discriminatee to a disciplinary pen-
alty. With respect to the latter issue, Respondent con-
tends that Knight was not engaged in a concerted activi-
ty; that Knight was discharged for assaulting his supervi-
sor and not for complaining about working conditions;
and that even if Knight's conduct was concerted, it was
so outrageous as to be unprotected.
A. Nature of the Alleged Discriminatee's Conduct
The unfair labor practice necessarily is related to
Knight's having been engaged in a protected concerted
activity. In Brown & Root, Inc. v. NLRB, 634 F.2d 816
(1981), it recently was affirmed that employee activities
are protected when, as a concerted protest, they com-
plain about and even refuse to work in what they per-
ceive to be unsafe conditions. Moreover, it is well estab-
lished that one employee's protest over safe conditions is
a protected purpose and it can be considered to be a con-
certed activity if, as here, it directly involves the further-
ance of a right which insures to the benefit of fellow em-
ployees. Alleluia Cushion Co., 221 NLRB 999 (1975).
Here, the General Counsel has not only shown that
Knight protested about safe working conditions that re-
lated to threats and physical attacks on himself and
fellow employees, but also that employees Podell and
Snyder had raised similar concerns, and that these con-
CONSUMERS POWER COMPANY
cerns were mutually discussed at regular weekly meet-
ings between the employees and management. Accord-
ingly, I conclude that Knight was engaged in a protect-
ed, concerted activity on June 12, 1981, when he ap-
proached Supervisor Currie with an inquiry and com-
plaint about Respondent's failure to provide a fellow em-
ployee with police protection after Knight himself had
been involved in an earlier incident at the same location.
B. The Employee's Termination
Knight was suspended shortly after his protest, with
the anticipation that he would be discharged, inasmuch
as Respondent allegedly believed that Knight had struck
Supervisor Currie. Here, I find that the incident involved
Knight's clenching and raising his hands in a defensive
position in front of his chest as Supervisor Currie, while
raising his hand and gestering in front of Knight's face,
was apparently avoiding Knight's attempt to voice a
complaint about safety matters: This occurred against a
background where Currie previously had physically
tapped Knight on the shoulder during a previous discus-
sion only a few weeks previously.
Respondent's highest level of management investigated
the incident; however, they looked only at the matter of
whether an actual striking had occurred. No apparent
concern was expressed by Respondent regarding possible
provocation for the employee's behavior or the reasons
that precipitated the incident. Although the Respondent
subsequently arranged a "deal" whereby in lieu of dis-
charge, Knight would be allowed 'to take an early retire-
ment , allegedly because of his age and many years of
good service, Knight withdrew his initial agreement to
the arrangement. There is no indication, however, that
Respondent ever considered any lesser charge or penalty
than "first-offense discharge" for "assault or threat of
physical violence" as a possible method of resolving the
matter.
As presented in its own investigation and at the subse-
quent arbitration proceeding, Respondent's expressed sin-
gular concern was whether or not a striking had oc-
curred. At the hearing, however, Respondent's most in-
volved senior official relied on his technical definition of
the term "assault" as justification for discharge. He fur-
ther testified that it was his conclusion in June 1981 that:
"Our policy called for discharge first offense, for either
the assault or'the threatening language. Whether or not a
blow is struck was unimportant." This testimony presents
Respondent's policy in absolute, mandatory terms. Yet
Respondent's policy is actually worded, "Such acts
would constitute cause," phraseology that is nonmanda-
tory in nature.' Moreover, "battery" is not mentioned, yet
both "assault" and "threat of physical violence" are.
Thus, the naming of the latter two acts would appear to
be redundant if in fact the term assault was not intended
to mean or embrace physical violence. Again, the term
"violence" is used and not the term "contact," which
would approximate what occurred in the incident of
June 12.
I find that Knight's action was a reflexive reaction and
that physical contact, if any, was moderate and amount-
ed to nothing more than Knight's hand brushing against
Supervisor Currie's chest. There was no attempted blow,
137
threatening gesture, or threatening words by Knight and
no other contact between the two men occurred. Re-
spondent's reaction was to make a mechanistic applica-
tion of its so-called discipline policy with an absolute
intent to discharge Knight for his alleged first offense
violation. Respondent made no allowance for the non-
mandatory terminology in its policy that would appear
to allow a balanced evaluation of all surrounding circum-
stances, such as the provocation by the supervisor and
the insubstantial nature of the alleged assault. Moreover,
Respondent could have made a justifiable attempt to
pursue its right to enforce reasonable discipline in the
workplace by charging Knight with its offense of "'Abu-
sive language directed at a supervisor," but instead, Re-
spondent took a minor incident and blew it completely
out of proportion, without apparent thought to circum-
stances or alternatives, and charged Knight with its most
serious catergory of misconduct and imposed the most
severe penalty possible.
I conclude that Respondent's decision to discharge
Knight under these circumstances was arbitrary, dis-
criminatory, and capricious and I infer that it would not
have occurred were it not for Knight's protected, con-
certed protests about safe working conditions, and Re-
spondent's desire to seize the opportunity to rid itself of
an apparent troublemaker. The relied-on offense was so
minor that it cannot be regarded as outrageous conduct
that would vitiate the employee's protected conduct and
it likewise can not be considered to be such that ajjustifi-
able discipline would be termination for a first offense.
See E. I. du Pont & Co., 263 NLRB 159 (1982), or sus-
pension for 75 days, Postal Service, 250 NLRB 4 (1980).
Accordingly, I find that the General Counsel has met
her overall burden of proof and persuasively shown that
Respondent's discharge of Knight violates Section 8(a)(1)
of the Act as alleged.
C. Deferral to the Arbitrator's Award
I find the arbitrator's decision in this matter repugnant
to the purposes and policies of the Act for several rea-
sons. First, although he found that Knight should 1be re-
instated, he went on to penalize Knight with a 75-day
disciplinary layoff, and the issue of whether Knight was
engaged in protected conduct was not addressed. See
Raytheon Co., 140 NLRB 883 (1963), and Suburban
Motor Freight, 247 NLRB 146 (1980). Also, although he
downgraded the level of punishment to be inflicted for
the incident because: "such conduct, while short of a bat-
tery, is disrespectful and threatening to supervisor at the
least, and cannot be condoned," he otherwise did not
evaluate any aspect of Knight's conduct as being part of
the res gestae of the concerted protected activity, and
not of such an extreme nature that it would likely entitle
Respondent to discipline Knight under Board law. See
Firch Baking Co. 232 NLRB 72 (1977), and American
Telephone & Telegraph Co., 211 NLRB 782 (1974). Ac-
cordingly, I conclude that deferral to the decision of the
arbitrator, as urged by Respondent, would not be appro-
priate under the circumstances of this case. See also
Richmond Tank Car Co., 264 NLRB 174 (1982).
138 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
,within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. By discharging Robert Knight on June 17, 1981, and
by otherwise imposing a 75-day disciplinary layoff, Re-
spondent engaged in an unfair labor practice in violation
of Section 8(a)(1) of the Act.
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, it is recommended that Respond-
ent be ordered to cease and desist therefrom and to take
the affirmative action described below, which is designed
to effectuate the policies of the Act.
With respect to the necessary affirmative action, it is
recommended that Respondent be ordered to reinstate
Robert Knight, if it has not already done so, to his
former job or, if such job no longer exists, to a substan-
tially equivalent position, without prejudice to his senior-
ity or other rights and privileges previously enjoyed, and
make' him whole for any loss of earnings he may have
suffered because of the discrimination practiced against
him by payment to him of a sum of money equal to that
which he normally would have earned from the date of
the discrimination to the date of reinstatement, in accord-
ance with the method set forth in F. W. Woolworth Co.,
90 NLRB 289 (1950), with interest as prescribed in Flori-
da Steel Corp., 231 NLRB 651 (1977), see generally Isis
Plumbing Co., 138 NLRB 716 (1962), and that Respond-
ent remove from its files any references to the discharge
and suspension of Knight and notify him in writing that
this had been done and that evidence of this unlawful
discipline will not be used as a basis for future personnel
action against him.
Otherwise, it is not considered to be necessary that a
broad order be issued.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed'
ORDER
The Respondent, Consumers Power Company, Grand
Rapids, Michigan, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Discharging, suspending , or laying off any employ-
ees or otherwise discriminating against them in retalia-
tion for engaging in protected concerted activities.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Offer Robert Knight immediate and full reinstate-
ment and make him whole for the losses he incurred as a
result of the discrimination against him in the manner
specified in the remedy section.
(b) Remove from its files any reference to the unlawful
discharge and notify the employee in,writing that this
has been done and that the discharge will not be used
against him, in any way.
(c) Preserve and, on request, make available to the
Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records nec-
essary to analyze the amount of backpay due under the
terms of this Order.
(d) Post at its Jackson, Michigan, facility, copies of the
attached notice marked "Appendix."2 Copies of the
notice, on' forms provided by the Regional Director for
Region 7, after being signed by the Respondent's author-
ized representative, shall be posted by the Respondent
immediately upon receipt and maintained for 60 consecu-
tive days in conspicuous places including all places
where notices to employees are- customarily posted. Rea-
sonable 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 Re-
spondent has taken to comply.
' If no exceptions are filed as provided by Sec. 102 46 of the Board's 2 If this Order is enforced by a judgment of a United States court of
Rules and Regulations, the findings, conclusions, and recommended appeals, the words in the notice reading "Posted by Order of the Nation-
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
Board and all objections to them shall be deemed waived for all pur- the United States Court of Appeals Enforcing an Order of the National
poses. Labor Relations Board "