G & S Metal Products Co., Inc.

National Labor Relations Board - Board Decisions

Apr 24, 1970

182 N.L.R.B. 111 (N.L.R.B. 1970)

G & S METAL PRODUCTS COMPANY
G; & S Metal, Products Company, 'Inc. and Local No.
416, International Brotherhood of Teamsters , Chauf-
feurs, Warehousemen and Helpers of America. Cases
8-CA-5300 and 8-CA-5345
I
April 24, 1970
DECISION AND ORDER
BY MEMBERS FANNING, BROWN, AND JENKINS
On October 3, 1969, Trial Examiner Lloyd Buchanan
issued his decision in the above-entitled proceeding,
finding that Respondent had engaged in and was engaging
in certain unfair labor practices and recommending that
it cease and desist therefrom and take certain affirmative
action, as set forth in the attached Trial Examiner's
Decision. The Trial Examiner also found that Respondent
had not engaged in certain other unfair labor practices
alleged in the complaint and recommended that these
allegations be dismissed. Thereafter, the General Counsel
filed exceptions to the Trial Examiner's Decision and
a brief in support of said exceptions. The Respondent
filed a brief in opposition to the General Counsel's
exceptions and in support of the Trial Examiner's Deci-
sion.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the National
Labor Relations Board has delegated its powers in con-
nection with this case to a three-member panel.
The Board has reviewed the rulings of the Trial Exam-
iner-made at the hearing and finds that no prejudicial
error was committed. The rulings are hereby affirmed.
The Board has considered the Trial Examiner's Decision,
the exceptions and briefs, and the entire record in this
case, and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner, as modified
herein.
We affirm the Trial Examiner's conclusions finding
the independent 8(a)(1) violations, but we do not thereby
necessarily adopt all his comments regarding the Board's
ruling on the interim appeal from his initial dismissal
of those allegations on the ground that they were barred
by the 6-month limitation of Section 10(b). Support
for our position that the independent 8(a)(1) violations,
though not specified in the charge, were properly includ-
ed in the complaint, can be found in Fremont Hotel
Inc.,' and cases cited therein.
The Trial Examiner found that the discharge of Rita
Devaney did not constitute a violation of Section 8(a)(3)
of the Act, with which we agree. He also, however,
failed to find that her suspension and discharge constitut-
ed a violation of Section 8(a)(1) of the Act, with which
we disagree.
The Trial Examiner found that for some weeks prior
to January 27, 1969, there had been a series of slashings
of employees' coats in Respondent's plant. On January
27, employee Brady had her coat slashed and spoke
to both her supervisor and Respondent's vice president
' 162 NLRB 820
111
about it. Hearing nothing, she again spoke to her supervi-
sor who arranged a meeting with Respondent's president
on February 3, 1969. Employees Williams and King
had their coats slashed also, and were included in the
meeting of February 3. Approximately 4:30 p.m. on
February 3, Devaney was leaving the plant when a
fellow employee informed her that her brand new coat
was slashed.-She returned to the plant where she met
her supervisor taking employees Brady, Williams, and
King to the front office. When he asked her what was
the matter, she informed him that " some son-of-a-bitch
cut my coat," and she wanted to know "What kind
of goddam shit is this?" When Devaney arrived at
the front office, she asked Vice President Gould "what
the hell was going on " and told President Schwartz
that she "was mad, God damn good and mad."
The four employees asked Schwartz to reimburse
them for the damage to their coats, but Schwartz refused.
He did inform the employees that he would criminally
prosecute anyone found guilty of slashing coats, and
perhaps buy a big locker to keep the coats in until
the 4:30 p.m. quitting time.
The following day when Devaney reported to work,
she was informed that she was suspended for 3 days
because of her foul and abusive language when coming
into the main office. Devaney reported back to work
on February 7, and worked a full day. She was discharged
that day, although she had done a full day's work
and had not caused any trouble, for the alleged reason
that her attitude had not changed.
We note that the evidence reflects that Devaney had
not used profanity in the plant from her employment
until her discharge, except on this one occasion. We
further note that, upon returning from her 3-day suspen-
sion, Devaney was very careful not to offend anyone
and remained to herself at her work bench. This allegedly
was taken by management to indicate that Devaney's
attitude had not changed, and, therefore, she was dis-
charged. '
We do not condone the kind of language used by
Devaney, but despite the Trial Examiner's characteriza-
tion of it as the "vilest and filthiest in any compilation,"
we do not think that the vulgarities used were so repre-
hensible as reasonably to have moved the Respondent
to suspend the offending employee and then invoke
the ultimate penalty, that of discharge, when she returned
to work and was very circumspect in her behavior.
Under the circumstances of this case, we are convinced
that this alleged reason for discharge was a pretext.
In our view, Devaney, Brady, Williams, and King
were engaged in protected, concerted activity when they
went into the front office to protest the lack of protection
for their wearing apparel. The fact that Devaney was
the most vociferous is to be expected since her coat
had been slashed that day, while the coats of the other
employees were slashed some days before.
Under the facts of this case we find that Devaney
was suspended and subsequently discharged for her
participation in the presentation of employee grievances,
a right guaranteed by Section 7 of the Act, and that
182 NLRB No. 22
112 DECISIONS OF NATIONAL I ABOR RELATIONS BOARD
such suspension and discharge violated Section 8(a)(1)
of the Act 2
THE REMEDY
Having found that the Respondent has engaged in
unfair labor practices in violation of Section 8(a)(1)
of the Act we shall order that it cease and desist
therefrom and take certain affirmative action designed
to effectuate the policies of the Act It further has
been found that the Respondent has discriminated against
employee Rita Devaney by suspending her for 3 days
and by subsequently discharging her in violation of
Section 8(a)(1) of the Act We shall therefore order
the Respondent to offer her immediate and full reinstate
meat to her former or substantially equivalent position,
without prejudice to her seniority or other rights and
privileges, and to make her whole for any loss of pay
she may have suffered as a result of this discrimination
against her by payment to her of a sum of money
equal to that which she would have earned as wages
from the date of the discrimination to the date of rein-
statement, less her net earnings during such period,
in accordance with the formula prescribed in F W Wool
worth Company, 90 NLRB 289, together with interest
at the rate of 6 percent per annum to be added to
such backpay, such interest to be computed in
accordance with the formula prescribed in Isis Plumbing
& Heating Co 138 NLRB 716
CONCLUSIONS OF LAW
I Respondent is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act
2 Local No 416, International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of
America, is a labor organization within the meaning
of Section 2(5) of the Act
3 By promising to send the best workers and their
husbands on an expense-paid trip to Chicago, a week
or 10 days before a Board conducted election, Respond
ent interfered with, restrained, and coerced employees
in the exercise of rights guaranteed them in Section
7 and thereby violated Section 8(a)(1) of the Act
4 By promising employees hospitalization, life insur
ance, and a pension plan 2 days before the Board-
conducted election of July 25, 1968, Respondent inter-
fered with, restrained, and coerced employees in the
exercise of rights guaranteed them in Section 7 and
thereby further violated Section 8(a)(1) of the Act
5 By promising automatic and merit raises to the
employees if the Union did not win the election,
Respondent interfered with, restrained, and coerced
employees in the exercise of rights guaranteed them
in Section 7 and thereby further violated Section 8(a)(l)
of the Act
6 By the interrogation of employees as to their union
sympathies Respondent interfered with, restrained, and
coerced employees in the exercise of rights guaranteed
2 N I R B v Washington Aluminum Co 370 U S 9
them in Section 7 and thereby further violated Section
8(a)(1) of the Act
7 By suspending and ultimately discharging Rita Dev-
aney for her manner in presenting an employee griev
ance, Respondent restrained and coerced employees in
the exercise of rights guaranteed them in Section 7
and thereby further violated Section 8(a)(1) of the Act
8 The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec
tion 2(6) and (7) of the Act
9 Respondent did not violate the Act by refusing
to allow an employee to change shifts
ORDER
Pursuant to Section 10(c) of the National Labor Rela-
tions Act, as amended, the National Labor Relations
Board adopts as its Order, the Recommended Order
of the Trial Examiner, as herein modified, and hereby
orders that the Respondent, G & S Metal Products
Company, Inc , Cleveland, Ohio, its officers, agents,
successors, and assigns , shall take the action set forth
in the Trial Examiner's Recommended Order, as so
modified
I Insert the following as paragraph 1(c), the present
paragraph 1(c) being relettered 1(d)
"(c) Discharging employees or otherwise discriminat
ing in regard to their hire, tenure of employment, or
any term or condition of employment, because they
have engaged in concerted activities for the purpose
of mutual aid or protection "
2 Insert the following as paragraphs 2(a) and (b),
the present paragraphs 2(a) and (b) being relettered
2(c) and (d), respectively
"(a) Offer to Rita Devaney immediate and full rein
statement to her former job, or, if her job no longer
exists, to a substantially equivalent position , without
prejudice to her seniority or other rights and privileges,
and make her whole for any loss of pay suffered by
reason of the discrimination against her in accordance
with the method set forth above in the section entitled
`The Remedy ' "
"(b) Preserve and, upon request, make available to
the Board and its agents , for examination and copying,
all payroll records, social security payment record, time-
cards, personnel records and reports, and all other
records necessary or useful to determine the amount
of backpay due under the terms of this Recommended
Order "
3 Insert the following as the last two indented para
graphs of the notice
WE WILL NOT discharge any of our employees
or discriminate in regard to their hire, tenure of
employment, or any term or condition of employ-
ment , because they have engaged in concerted activ-
ities for the purpose of mutual aid or protection
WE WILL offer Rita Devaney immediate and
full reinstatement to her former job, or if her
job no longer exists, to a substantially equivalent
position, without prejudice to her seniority or other
G & S METAL PRODUCTS COMPANY
rights and privileges , and we will make her whole
for any loss of pay suffered by reason of our
discrimination against her. ,
IT IS FURTHER ORDERED that those portions of the
complaint as to which no violations have been found
are hereby dismissed.
TRIAL EXAMINER'S DECISION
LLOYD BUCHANAN, Trial Examiner : Two points of
general interest beyond the bounds of this case may
be noted . The first and of basic and overdue consider-
ation is the validity of the distinction too frequently
claimed between language of the shop and that of the
traditional drawing room . There may be no distinction
between some shops and some so-called drawing rooms.
The test here is not my or the Board ' s concept of
propriety or the permissible , but whether there was
an unlawful distinction or discrimination with respect
to one employee.
The second point of general interest relates to the
effect of Section 10(b) of the National Labor Relations
Act, as amended (73 Stat. 519). On the ground that
"some relationship " (in the language of the cases) does
not exist between the allegations of the complaint and
the language of the four charges filed, and that they
are not "closely related ,"' I dismissed at the hearing
the allegations of independent violation of Section 8(a)(1)
of the Act.
It would appear that "a common thread ," argued
by the General Counsel in his interim appeal to the
Board from the 8 (a)(1) dismissal , in the 8 (a)(1) and
(3) events alleged is not sufficient under Section 10(b)
unless a relationship or the common character of the
events not cited in the charges filed can be discerned
from the events which are cited . The relationship, wheth-
er "close" or merely "some ," should , it seemed to
me, similarly be discernible if the purpose of Section
10(b) is to be met . Beyond the identity of the Respondent
Company and the Charging Union, there does not appear
to be any common thread or any relationship, close
or otherwise.
The Board granted the General Counsel ' s request
for special permission to appeal , granted the appeal
on the record to that point , and the General Counsel's
memorandum , and reversed the Trial Examiner "on
the ground that the allegations of the charges are
sufficiently related to those in the complaint to support
the complaint ."2 To which of the four charges such
relationship was found has not been declared. The Board
remanded the proceeding to me for further hearing.
For the benefit of those who may seek to understand
Board procedure and interpretation of Section 10(b),
it may be noted that I explained in my erroneous dismiss-
' North Country Motors; Ltd, 133 NLRB 1479, 1480, citing N L.R B
v Pecheur Lozenge Co., Inc, 209 F. 2d 393 (C A 2) While concerned
with Section 10(b), everyone involved understands that a charge merely
serves to initiate an investigation, etc
R We shall consider below the General Counsel's later argument
that the testimony concerning interference in June should have been
received to show company animus
113
al that there is no reference in the charges to so-
called independent violation of Section 8(a)(1) or interfer-
ence, restraint, or coercion, and therefore no relationship
at all which I could recognize between the charges
and the 8(a)(1) allegations of the complaint-beyond
the printed reference to Section 8(a)(1) in the forms
entitled, "Charge Against Employer" and, at the end
of the significant portion of the forms, which reads
in print "Basis of the Charge (Be specific as to facts,
names, addresses, plants involved, dates, places, etc.)"
and calls for insertion by the Charging Party of the
facts constituting the basis for the charge, the following
printed sentence: "By the above and other acts, the
above-named employer has interfered with, restrained,
and coerced employees in the exercise of the rights
guaranteed in Section 7 of the Act. "3
Indeed, aside from these printed references to interfer-
ence, the three charges filed in Case 8-CA-5300 on
January 13 and 23 and February 27, and served on
January 15 and 27 and March 3, respectively, allege
as their basis only discrimination against two employees
who are not mentioned in the consolidated complaint
and unlawful refusal to bargain, which is likewise not
mentioned in the complaint. Those charges were not
dismissed but were kept open although no complaint
issued with respect to the claims therein described.
In short, none of the items specifically cited in the
three charges in 8-CA-5300 has been alleged in the
consolidated complaint. But those charges, or one of
them, have been retained as the vehicle to support
the allegations of interference in July 1968." The sole
apparent5 reason for consolidating these cases for hearing
was reflected in the inclusion of the complaint' s allega-
tions of interference which, aside from their relationship
to any of the charges, could not because of the 6-
month limitation be alleged under the fourth charge,
which alleges discrimination against employee Devaney
in Case 8-CA-5345 and is dated February 10, 1969.
That discrimination and several instances of interference
on July 15 and 23 and one on October 30, 1968, are
alleged in the complaint.
The function of the charge being to set in motion
the Board's machinery in order to ascertain whether
or not a complaint should issue, the charges in
9 This has been referred to through the years as "derivative 8(a)(1)"
as distinguished from "independent 8(a)(1)," the latter now determined
to be sufficiently related to the charges herein
4 This is not intended to leave the Board "not satisfied with the
presentation of the case " in this Decision, but to present facts and
considerations which were not presented to the Board on the interim
appeal and have not been since This more complete review of the
facts presented to it for the first time might well lead to the conclusion
that the entire matter might be reexamined We shall note below that,
aside from any question of relationship , some strain is necessary to
find that some of the alleged violations in July occurred within 6
months of the date of the filing and service of even the first charge
in the earlier proceeding.
5 That the older charges were not being relied on or being further
investigated is suggested by the fact that the single allegation of discharge
in the consolidated complaint did not flow from investigation of those
older charges, which could have supported it (a new charge was not
necessary), but stemmed from the charge filed in the new proceeding
on February 10
114 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
8-CA-5300 apparently did not themselves prompt action
to a decision to issue a complaint related to or based
on them. ' With, the filing of the 8-CA-5345 charge,
we now have a claim that the otherwise 10(b)-barred
conduct was related to the violation cited in one or
more of the charges filed-although neither on their
face nor from the testimony is it clear that the allegations
of violation "on or about July 15, 1968," relate to
events within 6 months of the filing and service of
the first charge.
The dismissal at the trial, thereafter reversed, was
of the allegations of interference in July.5 That in Octo-
ber, although not alleged as discriminatory, could proper-
ly be found, if sustained, to be violative of Section
8(a) (3), and it occurred less than 6 months prior to
the filing of the 8-CA-5345 charge.7
Relationship is necessary presumably to apprise a
respondent, not of details of the actual violations to
be alleged, but of the general nature of the investigation
to be made and the allegations which may follow so
that he may have at least a very rough idea, but an
idea, of what he-may face. It is true, as the General
Counsel pointed out, that it is the complaint which
serves notice of the particular conduct alleged to be
violative. Until the Board declared differently, I thought
that the charges here bore no relation, particular or
general , to the allegations of independent interference
since they referred to violations of different sections
of the Act, only one of which was thereafter alleged;
and as to that one the charge was not timely for the
independent interference now urged. It was with this
in mind that I stated, in dismissing the allegations of
independent 8(a)(1) violation, that I could think of
no situation in which a complaint alleging interference
could to any greater extent transcend and indeed be
unrelated to the charge. I have since been and will
be hereafter guided by the Board's decision on the
interim appeal.
Unless I misunderstand (the facts and reasons have
here been detailed as they could not be when the issue
arose at the trial and as they were not in the interim
appeal), allegations of violative interference are deemed
related and sufficiently supported by the form's printed
reference to interference , restraint , and coercion by
"the above and other acts," whatever other reference
there may or may not be in the charge.
The consolidated complaint (issued February 28, 1969;
charges filed in 8-CA-5300 on January 13 and 23 and
February 27, and in 8-CA-5345 on February 10, 1969),
as amended, alleges that the Company has violated
Section 8(a) (3) of the National Labor Relations Act,
as amended (73 Stat. 519), by suspending Rita Devaney
for 3 days beginning February 3, 1969, and discharging
her on February 7 because of her union and other
protected concerted activities; and Section 8(a) (1) of
6 Dismissing an allegation of discriminatory suspension , the Board
in General Electric Company, Automatic Blanket Plant, 155 NLRB
1365, 1368, noted the remoteness of interference 10 months before
which had been cited to show union animus.
The complaint itself thus provided notice within the statutory period
the Act by said acts and by interrogation, threat, and
promises on or about July 15, 1968, promises on or
about July 23, and a refusal in or about the third week
in August to allow an employee to change shifts. The
allegations of violation are denied; the suspension and
discharge are admitted; but it is claimed'that they were
for just cause.
The case was tried before me at Cleveland, Ohio,
on May 8 and June 10, 1969.
Upon the entire record in the case and from my
observation of the witnesses I make the following:
FINDINGS OF FACT (WITH REASONS THEREFOR) AND
CONCLUSIONS OF LAW
1. THE COMPANY' S BUSINESS AND THE LABOR
ORGANIZATION INVOLVED
The facts concerrling the Company's status as an
Ohio corporation, the nature and extent of its business,
and its engagement in commerce within the meaning
of the Act are admitted; I find and conclude accordingly.
I also find and conclude that, as admitted, the Union
is a labor organization within the meaning of the Act.
II. THE UNFAIR LABOR PRACTICES
A. The Alleged Independent Violation of Section 8(a) (1)
Devaney testified that a week or 10 days before
a Board-conducted election on July 25 involving" the
UAW, Schwartz, the Company ' s president , called her
into his office and, while explaining that he would be
guilty of bribery were he to grant any benefits at that
time , promised to send the best workers and their hus-
bands on an expense -paid trip to Chicago. McCarty,
who was discharged on February 28, 1969, testified
that about the second week in July Schwartz called
her to his office , suggested the possibility of a trip
to Chicago for several of -the girls , and asked her to
persuade them to follow his thinking . (McCarty withdrew
her earlier statement that it was at a meeting of all
of the employees at least a week before July 23 that
Schwartz spoke of the Chicago trip .) According to Brady,
still employed by the Company , it was at a meeting
on July 23 (this brings us clearly within the 6-month
period ; Brady was the General Counsel's last witness)
that Schwartz spoke of taking some employees to Chica-
go.
Such variances as to dates and whether or not it
was at a meeting scarcely- enhance this testimony. But
Schwartz told us, in the phrase so many times employed,
that a week or 10 days before July 25, with several
supervisors and employees in the office , he spoke of
a hope to send supervisors and then of "some type
of policy [to be] set up " for trips to Chicago to show
the employees what competitors are doing . There is
no sufficient explanation for such dangling of benefits
in futuro at a time when a representation election was
at hand . I find and conclude that Schwartz was campaign-
ing with benefits in violation of Section 8(a)(1).
G & S METAL PRODUCTS COMPANY
I have here assumed the timeliness of the charges
filed, the first as alleged on January 15. With one refer-
ence to the second week of July and the allegation
of "on or about July 15," one must but can strain
to find that this interference occurred within 6 months
of the date of the filing of the earliest charge. If it
has not been pointed out which of the charges is related
to the allegations of interference, we do have at least
some references to dates, references which can be
emphasized for a finding that this July 1968 interference
occurred within 6 months of the service of the earliest
charge. I feel compelled by the circumstances to date
to engage in this lesser exertion for a finding that,
if the charges sufficiently relate to the allegations of
interference , then the first of those charges so relates
and was timely served, the General Counsel having
thus sustained his burden despite the indefiniteness con-
cerning essential dates. I would not (and would not
be called upon to) make such a finding, nor would
I hesitate now to recommend that it be reversed, had
my earlier dismissal not been reversed.
McCarty testified further that at a meeting with
employees placed by the General Counsel at "about
a week or so before the election;" Schwartz warned
that, with the UAW in, the night shift would be closed
down because Foreman Porchia could not work both
shifts. According to Devaney this, including his inability
to work both shifts, had been said to her by Porchia
about July 1, and then by Schwartz to her personally,
not in a meeting , about July 9 or 10. The connection
between the UAW and Porchia's inability to work both
shifts is nowhere explained. I credit Schwartz' testimony
that there were several discussions concerning the absen-
tee rates on the night shift and its effect on quality,
without reference to or threat with respect to the Union.
(Brady placed such a threat at the meeting a day or
two before July 25. She also told us that, although
the UAW lost the election , the night shift was discontin-
ued the following month.)
Her recollection refreshed, Devaney testified that in
her conversation with Schwartz a week or 10 days
before July 25, she asked him about the automatic
raise which the employees were supposed to get in
June; and that he replied, as noted above, that he
could not grant that lest the Union charge him with
bribery.
Other and more reliable testimony was received on
this point. McCarty's sister, Tomallo, no longer in the
Company's employ, testified that at a meeting 2 or
3 days before July 25 Schwartz told the employees
that they would be getting a substantial raise and that,
while he could not quote the amount, they knew what
it would be. Whether or not there was a policy of
increases about January and July of each year, Tomallo
was employed during three such dates and received
three increases although she denied that the second
was 6 months after the first.
Brady told us that at the same meeting about July
23 Schwartz promised that, among the changes to be
made if the UAW did not get in, there would be raises
twice a year and merit increases. Brady had herself
115
received an increase after she asked for one later
in 1967, the year in which she was employed, and
then again in July 1968. She did not receive an increase
in January 1969. Townes, employed between August
1967 and January 9, 1969, asked for and received a
5-cent increase after 3 months , another a month later,
and thereafter (date not given ) a 20-cent increase. If
this did not follow even "roughly" a July-January pat-
tern, the explanation that she had a very poor attendance
record does not explain both the absence of regularity
in the increases and yet,the granting thereof.
The sum total of the evidence received with respect
to increases granted does not support Schwartz ' testimo-
ny (although the latter is bolstered by Devaney's testimo-
ny, were that relied on, that she asked him concerning
the automatic increase, and also that Porchia had told
her of a policy to grant semiannual increases) that it
has been the Company's policy for 4 or 5 years to
give raises "roughly" at the beginning of July and
January of each year; that it has "not been an automatic"
but something which they "follow through"; and that
in addition there are merit raises. In any event, Schwartz
was not here reminding the employees of existing favora-
ble aspects concerning wage increases. He promised
increases if the UAW were voted down and in any
event made promises immediately before the election,
in violation of the Act; I so find and conclude. It
would add little to consider Schwartz' promise, in
response to employee Versey's request for more vacation
pay, to "make it up to" her after it all blew over,
in a few weeks.
Devaney testified further that, in her private conversa-
tion with Schwartz a week or 10 days before July
25, he told her that the Company was in the process
of getting hospitalization , life insurance , and a pension
plan "but they couldn ' t get it right then because of
the union." She also told us that Schwartz spoke of
insurance to all of the employees at a meeting about
July 23, explaining that he could not do anything about
it "until after the union was settled."
Several employees testified that at the employee meet-
ing on July 23 Schwartz introduced two insurance repre-
sentatives who spoke of a life insurance and pension
plan and a group hospitalization program already in
being. The employees had never before heard of either
or received any material concerning them. Although
quite unreliable with respect to the date as she placed
it before her vacation in early July, Versey, Devaney's
sister, testified that she was called into the office where
Schwartz spoke to her concerning insurance and the
pension plan allegedly discussed at a meeting the day
before, when she had been absent. In any event this
was after the commencement of the UAW 's organization-
al campaign and the filing of the petition on June 28.
I credit this testimony in the face of Schwartz' clearly
uncertain testimony that he had distributed a pension
plan booklet before July 1. I find and conclude that
Schwartz on July 23 unlawfully promised hospitalization
and a life insurance and pension plan. The allegation
of promise of a credit union is not supported.
116 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Versey testified that a day or two before the election,
at a meeting attended by Foremen Hyde and Porchia
and the employees, Hyde asked whether she could do
anything to prove that the Company would come through
with its promises; Roberts, no longer at the Company,
asked for $2 an hour and an increase in 6 months;
and Hyde replied, "Shake on it," and they shook hands.
Townes testified that about July 15 (again we have
"on or about July 15, 1968," when that is the critical
date) Hyde asked her how she felt about the UAW
and promised that, if the Company ,won, Townes would
get a raise and; a party. I find and conclude that the
promise was unlawful' and in context that the interroga-
tion was also. Hyde was asked only about and denied
that she had promised Townes a salary increase.
McCarty testified that about the third week in August,
when she complained about her job on the day shift
after the night shift had been abolished, Foreman Bern-
stein replied that he had told her that she "should
have stayed with the Company." This does not support
the allegation of refusal to allow Townes to change
shifts. A possibly violative statement attributed to Bern-
stein was neither alleged nor litigated. Bernstein did
not testify.
B. The Alleged Violation of Section 8(a)(3)
Union activity commenced about December 17, 1968,
when two representatives of the Union" met with Deva-
ney, Versey, and Tomallo at the home of Devaney's
babysitter.10 The three girls asked for and received union
cards which they and McCarty and Brady distributed
at the plant. Devaney testified that she distributed cards
in the restroom.
A week or two after the first meeting, one of the
union representatives met with Devaney and Versey
at the latter's home, and Devaney gave him 47 signed
cards. He gave Devaney and Versey "25 or 50" more
cards, which they took into the plant and gave to girls
who were interested in signing for a union. Apparently
15 or 20 cards were now signed, they were collected,
and Devaney gave • them to the union representative
at her home.'1
Whatever the extent of Devaney's participation, in
none of this is there any indication of company knowl-
edge thereof. Nor is there warrant for inferring such
knowledge on the basis of the small plant rule.12 Indeed,
Devaney on February 4 attributed her suspension, of
which more below, to the fact that she had gone into
the office the day before (no reference there to concerted
8 A separate allegation and finding with respect to the party are
quite unnecessary
8 Now the Teamsters, the Charging Union herein We recall that
the earlier references were to the UAW
10 Why at her babysitter's house and what, if any, relationship she
had with any of the employees, we do not know Versey later testified
concerning the meetings at the babysitter's house
11 The signed cards were not produced at the trial. There is no
claim of majority or refusal to bargain. There were 76 eligible voters
in the July election.
12 Cf Saxon Paint Stores, Inc , 160 NLRB 1757, 1760, where there
were 70 eligible voters
activity even at that time) and to "what happened in
July." While Devaney's conclusion is not controlling,
her concerted activity on behalf of the Union certainly
did not loom in her own mind as a possible cause
for the action against her. In the earlier UAW campaign
her activity consisted of signing a union card.
On the issue of company knowledge of union activity,
McCarty, in her conversation with Bernstein, noted
above, told him that she had voted for the UAW in
July. As she put it, "Everbody knew about it." McCarty
also testified that in December she got employees to
sign union cards and gave them to Devaney. Because
I do not know what claims may be made in this connec-
tion (I was favored with neither briefs nor oral argument),
I would point out that I have not forgotten the testimony,
noted above, that Schwartz called Devaney into his
office in July; he also, called in McCarty. There is no
claim of discrimination in connection with, McCarty's
termination.
The testimony concerning Devaney's union activities
does not support the claim that they prompted or were
considered in action taken against her. Nor do the
findings of interference, above, indicate special attention
to Devaney by the . Company in that connection or
knowledge of her union activity as distinguished from
union activity generally on behalf of the UAW at that
earlier period. Not related to cards or union activity,
but,to the question of concerted activity and the issue
of discrimination, are certain events on February 3,
which we shall now consider.
Just after punching out on. February 3, Devaney was
outside the plant and on the way 'to her, car "when
Tomallo told her that her (Devaney's),coat was 'cut.
The coat was new, and' it now showed a 12-inch cut
through the outside material and the lining above the
right pocket,, and a 4-inch cut immediately, behind the
first. (Employees" coats were hung 'in'two large open
-closets.)
Devaney immediately returned to the plant and ran
into her foreman Porchia, who was himself on the
way to the office with several other employees. Devaney
testified that she asked him, "what' in the hell was
going on," and that he replied that he was going to
find out.
We now pick up Brady. She testified that on January
27, exactly I week earlier, she was in line to punch
out when a girl told her that her (Brady's) coat was
cut. Brady spoke :o Porchia about it, and he said that
he would check in the front office for her. Two or
,three days later she 'asked Porchia about it, and he
told her to talk to Gould, the Company's vice president.
She spoke with Gould but, hearing nothing further,
again approached Porchia. In the meantime two other
girls' coats had been cut,13 and Porchia was asked to
arrange an appointment with Schwartz to see if he
could do something about it. Porchia arranged an appoint-
18 Coat slashing had begun about a month before. We have no evidence
of action concerning it by management or employees prior to that
herein described
G & S METAL PRODUCTS COMPANY
ment for all three, and they were now, about 4:30
on February 3, on their way to Schwartz' office.
Unlike these others, who had first taken it up at
a lower level, Devaney immediately went to the top.
This is not noted by way of criticism; but it indicates
that her attitude was different from that of other employ-
ee s.
Brady told us that in the outer office Devaney asked
Porchia, "What the hell is this for?" and that "he
tried to quiet her down some."
At this' point we return to Devaney's testimony. She
told us that as the group got to the outer office, she
asked Gould, as she had Porchia, "what the hell was
going on ." 'He told her to be quiet, that Schwartz
was on the telephone in the inner office.
Presumably to show that her language was not unusual
in that environment, and quite acceptable, Devaney
told us that Gould had on one' occasion in December
1968 cursed in the shop. (She first placed this in the
shop office.) This was not denied by Gould, with respect
to whom we received only a stipulation that he would
testify as did Porchia and Hyde concerning the events
of February 3. It is clear from Devaney's testimony
that Gould did not reply to her in kind.
Devaney's testimony of cursing by supervisors (none
is attributed to other employees) was not corroborated.
To the extent that they were questioned concerning
this, the General Counsel's witnesses, in different
degrees, testified only to Devaney's obscenities.
While Gould allegedly spoke so only once, Devaney
attributed many14 such transgressions to Porchia between
October 1968 and February 1969., She cited one occasion
when he employed a particularly foul phrase, and told
us that she heard similar language : from. Porchia' at
various times. Porchia denied the two specific instances
cited,by Devaney, and that he ever- used such language.
Scarcely corroborative of Devaney's testimony is Bra-
dy's statement that Porchia did on one occasion use
an obscentiy attributed to him by Devaney; she later
declared that she could not remember whether or not
he had said that.
Continuing with the events of February 3, Devaney
testified that she and three other employees, with Porchi-
a, Hyde, and Gould, now went into Schwartz' office.
Devaney continued, "He looked at all of us, he looked
at me , and he stared at me." (For this last, we have
neither reason nor explanation from Devaney.) Devaney
thereupon told Schwartz that she "was mad, [she] was
God damn good and mad." Schwartz replied that he
had just gotten through talking to the Labor Board,
and he was mad too. (No one else mentioned the Board,
and we are left to wonder about Schwartz' provocation.
At any rate his reply to Devaney'was mild.) The three
girls now spoke up in turn, and decently, in contrast
with Devaney's attitude, asking Schwartz to reimburse
them for their damaged coats. To each, Schwartz replied
that he could not,'his hands were tied.' '
11 The General Counsel seems not to have expected reference to
more than one "incident " It was seemingly a recently acquired habit
of Porchia's
117
Still according to Devaney, Schwartz continued by
telling her that his door had always been open to her,
that she could come in at any time to see him and
talk to him; and that she replied that if he had lived
up to the promises that he had made to the girls in
July, none of them would have had to go to his 'office.
This last was neither corroborated nor denied. It had
no connection with anything else that had been said,
and certainly had nothing to' do with the slashing of
the coats. It was wholly extraneous and a too-pat injec-
tion, which I do, not credit, to show bitterness and
some connection with the earlier activities. Schwartz
allegedly then threw his hands in the air and turned
around; and Brady told him that if he could not speak
to the girls civilly, they would leave. Again, none of
this last was mentioned by any one else, and there
is no antecedent for Brady's reference, as testified by
Devaney, to lack of civility. Devaney's account of the
visit ended with Schwartz' question as he looked at
her, "What do you expect, whenever I have to have
a girl walk into, my office with a glare in her eye?"
And her own question, "Didn't I have a right to have
a glare in my eye?".
The facts to this point can now be weighed to deter-
mine whether Devaney was engaged in concerted activi-
ty. As they approached and entered the office and then
spoke with Schwartz, not only was each of the girls
concerned only with and complaining concerning her
own personal loss but, if there were any discussion
of the situation between Devaney and the others, there
is no evidence concerning it. With an appointment made
for. them to see Schwartz , it is not clear that even
the other three were acting in concert. There is not
a bit of evidence that Devaney sought to enlist the
support of her fellow employees or that they sought
hers. Clearly, Devaney had alone decided to go to
the office, and was on: her way there without support
or joint action by any, other employee. Just as clearly,
the three others were on their way without discussion
with Devaney and without reference to what, if anything,
she might do.15 Without agreement among themselves,
each served as spokesman for herself alone; each protest-
ed the loss to herself.
Acting for herself alone and on her own throughout,
Devaney neither organized nor participated in concerted
activities. The others had an appointment because of
what had occurred several days earlier . It does not
appear that Devaney even knew of this conference
to be held. Her own coat now slashed, she made her
way to Schwartz' office, breathing fire and brimstone
on the way, in the outer office, and in his office. The
simultaneity of the protests stems from the fact that
all quit work at the same time , and at the same time
went to voice a protest; the others because of what
had occurred some days before, Devaney because she
was taking immediate and direct action. This did not
convert individual action into concerted activity. Deva-
ney's invective throughout was centered on her own
11 Cf. Hugh H Wilson Corporation v N.L.R.B , 414 F 2d 1345
(C A. 3, 1969)
118' DECISIONS OF NATIONAL LABOR RELATIONS BOARD
circumstances."She was not spokesman for the others
even if more vigorous. Devaney was not recognized
as a "leader" at this time (nor apparently at any other)
even when the question was put directly to Brady.
We are not called upon to determine whether, had
Devaney been engaged in concerted activities, she would
thereby have been immunized against company action
or exculpated from the consequences of her subsequent
acts. Aside from the absence of concerted activity,
we must consider whether the action taken against Deva-
ney was discriminatory or a pretext presumably prompt-
ed by the nonexistent concerted activity. We continue
now with further testimony concerning February 3 and
the decision that the action taken against Devaney was
not so unreasonable as to indicate that the Company
sought and found a pretext for taking such action.
According to Brady, when the group entered
Schwartz' office, he asked Devaney why she was glaring
at him, and she replied that he would glare too had
his coat been cut. Schwartz now "cursed one time"
and said that "he was tired [of this] goddamned mess."
When Brady charged him with being angry because
they came into his office about their coats, he asked
what she suggested be done about the coats, and said
that perhaps the Company would buy a large locker
and lock the coats up until 4:30. It dows not appear
that Schwartz referred to concerted activity when he
spoke of the "mess."
Having noted that Gould did not reply in kind to
Devaney's remarks (nor did Prochia), we can further
recognize from Devaney's own testimony that Schwartz
did not join her in the gutter. This supports Porchia's
testimony, in his description below of the events in
Schwartz' office, that he had never otherwise heard
profanity there.
Nor is it to be held, because he replied that ' he
also was angry, but did not in her presence take action
against Devaney, that Schwartz thereby condoned her
language . The immediate suspension of which she was
notified on her return to work was sufficiently prompt.
We recall that the meeting in Schwartz' office took
place afterhours on February 3. When Devaney went
to the timecard rack the next morning , Porchia called
her into the office and told her that she was suspended
for 3 days because of her foul and abusive language
"when coming into" the main office. At the same time
he handed her a notice to that effect. Hyde and Roseman,
the personnel supervisor, were present. Pointing her
finger at the other three, Devaney said that "they were
all liars " if they denied that her layoff was for "going
into the main office to talk to . . . Schwartz, and
for what had happened in July."
Devaney thus combined "what had happened in
July"" with her going into the office as the reason
" The facts in"this connection can be contrasted with those in Electro-
mec Design and Development Company, Inc , 168 NLRB 763, where
details concerning the extent of concerted activity were importantly
in issue
' Cf N L R.B v Kay Electronics, Inc., 410 F.2d 499 (C.A. 8),
where the court noted "the remoteness" of the date of discharge
less than 2 months after the employee's clearly recognized union activity
for her layoff. But we have seen that what happened
in July was not unique with or concentrated in Devaney.
Nor was she the only one who now went to the office.
Neither did events in July immunize Devaney or any
other employee against responsibility for actions in Feb-
ruary. If Devaney still nurtured a grievance over what
had occured 6 or 7 months before, there is no evidence
that anyone else did; and her February actions are
not to be condoned because she recalled and connected
them with earlier events. The issue is whether the Com-
pany in fact suspended Devaney because of her foul
and abusive language and whether it was justified in
doing so. Her remarks on February 4, after she was
notified that she had been suspended, that Roseman,
Hyde, and Porchia were "all liars" and as she "then
. . . turned around and . told" Porchia, "I will
be back in three days," provided additional background
and provocation for later action.
Having found that the suspension was warranted and
lawful, I would not overlook the testimony by Porchia,
Hyde, and Schwartz, which I credit and which attributes
even worse language to Devaney. Porchia testified that
as he was on his way to the office with the three
other employees, Devaney came in from outside and
greeted him with a scatological profanity and a reference
to the canine ancestry of whoever had cut her coat.
Attempts were made to "calm her down," but she
used profanity throughout the conversation or meeting;
Schwartz did not. Porchia testified further that none
of the girls used profanity in the plant.
Hyde testified that on the way to the office with
the others on February 3 she heard Devaney screaming
"all kinds of language" which a man would not use.
Hyde did confirm one of the expressions which Porchia
later attributed to Devaney.
Schwartz' version is that he had issued a' notice''
that any one caught 'slashing a coat would be criminally'
prosecuted, and that a conference had been set up
for some of the girls; that Devaney rushed in, glared,
and directed a tirade at him, and that he "glared right
back" and told her that he "wouldn't stand for that
any more." We recall Devaney's testimony that
Schwartz remarked on her glaring at him. The word
is apt according to my observation. Despite his testimony
concerning her tirade, Schwartz later agreed that "in
the office at, that time she didn't use any abusive lan-
guage ." If the suspension notice be taken literally as
referring to Devaney' s language "When coming into"
the main office, and not while she actually confronted
Schwartz , it is consistent with his own recollection
that she did not use abusive language in the office.
The testimony by the other witnesses, including Deva-
ney, in this respect is more complete and more reliable.
Her propensity is clear : among other things, she told
Schwartz, as she put it, she "was mad . . . God
damn good and mad. . . ." Certainly Porchia and other
The latter was the basis for the employer' s alleged discrimination in
that case, and thus the much stronger counterpart of the earlier interfer-
ence which is pointed to in the instant case as suggesting and supporting
discrimination in February
G & S METAL PRODUCTS COMPANY
supervisors had heard Devaney on the way to the offices,
in the outer office, and in Schwartz' office. After the
four employees left, a meeting.was held "concerning"
Devaney's conduct, and the 3-day suspension was issued
because, as Schwartz now put it, of the "abusive lan-
guage used in the office."
While the decision to suspend Devaney was reached
after consultation, Porchia had the authority to effect
it, and the burden of performance was his as it was
he who supervised her and was in immediate control
and responsibility. He of course had heard Devaney
in both offices and on the way there. Nor was the
notice handed to Devaney on the morning of February
4 unclear or misleading as far as she was concerned.
If we can assess and grade filth, Devaney in her
testimony concerning her own language and in her insou-
ciant recital of what she had allegedly heard from Porchia
and Gould, used the vilest and filthiest in any compila-
tion.
Slashing of a new1' coat is certainly provocative.
Our concern is with the extent to, which Devaney was
provoked and her reaction and the Company's. Here
we have not been left to our own evaluation of her
attitude and language; the reaction of each of the three
others whose coats were cut itself emphasizes the
extreme, unwarranted, and insubordinate nature of Deva-
ney's. To excuse her conduct and to show that the
Company's reaction was unreasonable and discriminato-
ry, Devaney attempted to picture the atmosphere as
one in which attitude and language like hers are common.
In this her testimony is markedly different from that
of other witnesses on both sides.
While we are not limited by the evaluation made
by Devaney or the Charging Union, my own appraisal
of the situation apparently mirrors theirs. The suspension
occurred on February 4 and the discharge on February
7; but the charge dated and filed•'on the next regular
workday, February 10, makes no reference to the suspen-
sion. While the complaint and the General Counsel
leave no pebble unturned, a decent regard for the facts
might have made unnecessary part, if not all, of this
litigation.
In due course and as -she had threatened, Devaney
returned to work on February 7. Her attention now
directed to that afternoon, she testified that she and
another girl were returning-from the washroom' when
Schwartz and Gould caught up and passed them. Deva-
ney concluded her recital of this, the only incident
before the end of the day, with her testimony: "Harry-
[Schwartz] turned around and laughed at me and I
turned around to Wanda and I told Wanda, something
was up." 19
" The relevance not apparent at the time, I struck Devaney's statement
that one of the other girls was now wearing a new coat I reinstate
that testimony It was thereafter adopted by Devaney .
'B Of no greater significance is another item to which Devaney's
attention was now directed She had difficulty in starting her car on
the Company's parking lot, and as she and three other girls were
struggling with the battery, Roseman and two attorneys for the Company
allegedly "pointed their finger" at her (only) and laughed I credit
the denials and the explanation offered Here is further manifestation
119
February 7 was payday and, as Devaney stood in
line to receive her check from Porchia and to punch
out, he handed her two checks and an envelope. Presum-
ably, one check was for the last full workweek and
the other up to and including February 7. The envelope
contained a notice which read: "You are hereby notified
that you are fired from G & S Metal Products Company.
Your attitude is the same as it was, when you were
suspended."
Devaney (supported by her sister) testified that, when
she asked what it meant, Porchia shrugged his shoulders
and admitted that he did not have anything to do with
it, saying "I have got a job to do and I had to do
it." Questioned concerning this on cross-examination,
Porchia denied it. I credit his denial. He testified that
Devaney had had "a pleasant attitude" prior to her
suspension; but that when she returned on February
7 she stared and looked "mad," Devaney did not contra-
dict this; she testified only that there had been, no
swearing that day. Porchia told us further that he stayed
away from her that day because he did not want to
get involved with her; unable to express himself but
obviously indicating that she had disturbed him, Porchia
testified that she was "arrogant" on February 7, and
that she "kept to herself, which was unusual"; and
he concluded that she should be discharged and recom-
mended it. McCarty apparently noticed improvement
in Devaney's attitude or conduct as she testified that
Devaney "went out of her way to be nice that day."
This was evidently not communicated to Porchia. .
It has been found that the Company had no knowledge
in February of union or other protected concerted activi-
ty by Devaney; that she was not engaged in concerted
activity during the events of February 3; and that she
was suspended for adequate cause. When we superim=
pose on this, her ugly remarks to the personnel supervisor
and the two foremen on the morning of February 4
and then her belligerent parting shot to Porchia, it is,
understandable that little more was needed to warrant
discharge. Her attitude on her return provided sufficient
and valid cause.
Although Devaney's words and manner in and outside
the office on February 3 would leave their imprint,
this is not a case of second punishment for her February
3 conduct. The Company does not seek to justify the
discharge on that ground; but it must be recognized.
With the reason for discharge not more directly spelled
out, we need not speculate on possible conclusions
had Devaney' s union activities and company knowledge
thereof been shown.
As we consider Devaney's discharge, we must note
that, if the Company's reaction toward, her attitude,
which the discharge notice described as the same as
when she had been suspended, be deemed to be harsh,
we still have no more evidence of discriminatory purpose
than existed on February 4, with no intervening events
to suggest additional concerted activities, further compa-
ny knowledge, or discriminatory intent or basis therefor.
of a persecution complex and more filthy language, which I need
not detail
120 DECISIONS 'OF NATIONAL LABOR RELATIONS BOARD
The specialized meaning which the word, "attitude"
has acquired in connection with concerted activities
is not '..necessarily that recognized by a foreman20 or
a businessman who is concerned by such factors as
responsiveness, insubordination, abusiveness, lack of
cooperation (again in no invidious sense ), etc.
If Porchia or other company representatives did not
use the word, Devaney's manner and language on Febru-
ary 3 had been obnoxious. That was her "attitude"
at that time; and it continued so on February' 7 even
if the notice now' handed to her -employed a word
which is looked on' with suspicion. While I observed
Porchia's reaction and demeanor, I will not attempt
to describe for him what he did not detail on the record.
Suffice • it to say that he was disturbed and upset by
Devaney's manner or attitude on February 7.21 Sharing
the now supercharged atmosphere, and to avoid it, Porc-
hia recommended her discharge.
It would not strengthen the General Counsel's position
to argue that, if it did not on February 3 appear necessary
to discharge Devaney, such action on February 7 indi-
cates discriminatory intent. First, we may not ignore
the evidence of Devaney's manner, or attitude on the
latter date. An employer may hope, that discipline for
conduct on one day will be succeeded by a happier
relationship; but when the hope proves unjustified, it
is not unreasonable and certainly not discriminatory
to eliminate the t5oublesome cause and avoid repetition.
Further, it may be argued that, so far from' indicating
discriminatory intent, 'the lesser punishment first meted
out indicates a desire to avoid the greater; and therefore
the absence of discriminatory intent . I do not draw
either of these contrary conclusions from the mere fact
that the discipline here was dual.'The testimony taken
as a whole points the way.
Having made credibility findings, I should further
note Devaney's demeanor on the stand, which in this
case was unmistakable and most eloquent. The legal
principles which govern this case are few and simple.
The problem has been to establish the facts and to
discern reason or motive. Observation of the witnesses,
all of the General Counsel's as well as those for the
Company,' has to an unusual extent aided in finding
the answer. Consistently seeking to avoid comment con-
cerning demeanor, and having succeeded with few excep-
tions, I must in this case detail my observations since
they support the testimony and are basic to determination
of'the issues before us.
How Devaney felt as she testified, I do not attempt
to divine. But angry, and combative she appeared to
be. Whether she was aroused by the incidents concerning
which she testified or by her recollection of them, or
whether she is generally at or near that level, I. noted
no detumescence in her attitude. If Porchia could not
adequately express himself with respect to Devaney's
R0 Porchia repeatedly referred to Devaney's attitude in. connection
with her appearance or physical aspect
11 If there be an inclination not'to accept as valid Porchia's reaction
,to'Devaney's attitude on February 7, there is still no sufficient basis
'for finding unlawful discrimination.
attitude and This own reaction beyond saying that she
was unpleasant and looked angry'22 I can fully under-
stand, having observed Devaney on the stand.
To attempt to describe Devaney's appearance and
apparent attitude23 when she seemed to be displeased
yet not vocal, would be unkind in the extreme. Suffice
it to say that she was combative, unfriendly, even minato-
ry in appearance, and certainly provocative. As her
language had been, so was her manner, peccant. If
a poor or even naughty wordl were used in the February
7 notice and if Porchia or any other witness called
by the Company lacked finesse and was not trained
in the niceties of our specialized terms, violation by
discrimination has not been shown.
Even, on the witness stand Devaney exhibited no
squeamishness or reluctance in repeating obscenities
which she and others had allegedly used. One need
not expect squeamishness from Devaney as she testified
particularly to what Porchia had allegedly said. But
if demeanor means anything, the ease, freedom, and
lack of hesitancy which characterized her own utterances
or repetition confirmed the defense that she used foul
and abusive language, and was disciplined therefor.
While the concept bf personal abrasiveness frequently
suggests a longstanding attitude and reaction, the obnoxi-
ous quality and effect here appear to have manifested
themselves first on February 3 and on Devaney's return
on February 7. Her attitude and its effect are clear
and can be appreciated. Indecently outspoken on Febru-
ary 3, she was sullen on•February 7-as she was observ-
ably at the hearing. One could feel most uncomfortable
faced by such an attitude or conduct; and one can
understand that Porchia did. -
Nor Was 'thi's on 'February 7 a 'form' of 'concerted
activity: Devaney' was, as before, resentful, and she
was not making common cause with others in'her resent-
ful attitude, - nor 1 they ' with her. From 'this' strew • of
testimony emerges a picture of an orderly, if not altogeth-
er satisfactory, environment disturbed by a sudden per-
sdnal revolt.
Porchia 'was not evasive in attempting to explain
why he discharged Devaney. My impression is that
a clash,bf personalities (not clearly defined, but apparent-
ly with respect to taste and authority) had developed
even if •Porchia were not able and apparently had not
been 'instructed to describe it as such. But were this
denominated as "no reason," the fact remains that
no discriminatory reason has been shown. If Porchia
could not declaim that Devaney's silence was "the most
22 Where others agreed that Devaney glared at Schwartz, Porchia
testified that she "stared " He told us that the men under him do
not curse: they "are very intelligent along that line "
13 The word is not forbidden even 'if it all too frequently in other
cases represents a discriminatory evaluation of an employee's protected
concerted activity As no abracadabra must be recited ere a finding
of discrimination can be made, so is no such finding to be based
on use of a term which is.often highly suggestive but here explained
and quite understandable In too many cases "attitude " refers to known
and recognized protected concerted activity Here the reference is
explicitly to Devaney's attitude on February 3, and we recall that,
not engaged in concerted activity , she was at that time foul-mouthed
and belligerent , and was on that account suspended
G'& S METAL PRODUCTS COMPANY
perfect expression of scorn," Devaney's observed man-
ner was sufficiently indicative, and he reacted to it.
Whatever the tendency to allow for "animal exuber-
ance" so-called (in the absence of oral arguments and
briefs, but with other cases in mind, this is anticipatory24
as it must also be with respect to analysis on review),
the setting, typified by the . other employees and by
the Company's representatives who appeared at the
hearing, is not one of exuberance. Nor am I unaware
of the holdings which refer to"part of the give and
take relationship between employees and supervisors.
. . .1121 Even more to the point is the quiet dignity
(I use both words carefully and literally) which Porchia
displayed.
We have seen that neither Schwartz' promises of
general benefits some 6 months before nor any knowledge
of concerted activities, by Devaney will support a finding
of discrimination by Schwartz. As we consider Porchia's
role, no question has been raised concerning histauthority
to suspend or discharge or affectively so to recommend.
Nor does it appear, whatever the' Company's animus,
that Porchia ever opposed unionization or interfered,
as did Foreman Hyde, with any protected activity. Porc-
hia's action and the Company's on his recommendation
were not based on Devaney's concerted activity; nor
was it their reaction (not otherwise indicated) to any
such activity. ,
With respect to her language, manner, or attitude,
the issue is not Devaney's judgment or taste, or lack
of them. A decision with 'respect to these we must
hopefully leave to her. Thus her opinion of what is
proper or allowable in the shop or the, office is,- if
relevant, certainly not determinative. The issue is wheth-
er Schwartz and, other supervisors used i or permitted,
accepted,,.or condoned such language in the plant or
addressed to themselves particularly and thus discrimi-
nated when they refused to, accept,Devaney's., In the
complete absence. of evidence that, they did; in the
calm and decent air which Schwartz and the others2e
suggested as I observed them and as the transcript
itself indicates, there is no proof of discrimination in
Devaney's discharge.
We cannot, even were we inclined to descend into
the gutter, censure the Company's refusal to accept
Devaney's language and continued combativeness in
both word and manner. Indeed, reference to "animal
exuberance" is self-reflecting; and to censure Schwartz
would be to cite' a different taste or standard for our-
selves. 'Deeming Devaney's language and her manner
as I observed her to be offensive, I cannot deny to
the Employer the right to regard it similarly and to
base thereon first suspension and then discharge. An
appraisal that the Company's reason was not a good
one (after pious repetition of "good reason, bad reason,
14 One cannot anticipate all claims or objections, especially where
briefs have not been filed Meeting some is not wasted effort if it
forestalls them even at the risk of later being dubbed unnecessary
1B Alabama Rod and Wire Division, 176 NLRB No 25
The testimony concerning the three other employees in Schwartz'
office not only contrasts their attitude with Devaney's but it reflects
the atmosphere in the plant
121
or none at all") wouldi still not provide proof of discrimi-
nation. Beyond this, a contrary holding would constitute
an attempt to establish a different rule or atmosphere
since it stands uncontradicted that none of the employees
used profanity in the shop. The Company was attempting
to maintain a symbiosis between a decent -consideration
of several complaints and reasonable discipline and har-
mony. Devaney's discharge no more reflected a haruspi-
cal concern with possible future protected concerted
activities than it did recollection of any former concerted
activity. She had been verbally, and was now.in manner,
offensive, a circumstance which could be and was lawful-
ly eliminated.
With so much publicized emphasis on and concern
over racial shortcomings, problems, and prejudices, the
situation here is at least different as wee note Porchia's
calmness and decency. I was impressed and would add
for the record, since this may not be apparent from
the bare transcript, that he is a gentleman in the literal
sense and to the point where he was reluctant'to express
his obvious feelings even to the extent that he could.
This is indeed a commentary in these days of racial
strife, and in a community which has seriously witnessed
it. Of course it proves no general condition since one
cannot generalize from any 'single circumstance; but
it is one instance and is of tinterest even if it does
not determine the issues here.
To the extent that animus, considered below, is reflect-
ed from the earlier interference found, it may be weighed
most directly if we infer or assume that Schwartz was
himself instrumental in the action taken against Devaney
pp February 4 and 7; although no attempt was made
to show this,beyond reference to the meting after
the employees left on February 3 and Porchia's statement
that he recommended the discharge on February 7.
Thus we would assume that Schwartz, having displayed
animus in' July,' now vented his' spleen discriminatorily
(wholly or in part aside from the provocation now pre-
sented by Devaney) and therefore himself discriminatori-
ly prompted the suspension and the discharge. But to
the extent that the interference by Schwartz found above
may be cited to show animus against Devaney or knowl-
edge of her concerted activity, it should be noted that
each of the four types of interference found was directed
against all' of the employees, not specifically against
Devaney alone. Devaney was not at all involved in
the interference by Supervisor Hyde nor by that allegedly
committed by Supervisor Bernstein: Some of the interfer-
ence was directed 'to a greater extent against employees
other than Devaney, who remained on the Company's
payroll.
If the decisions to suspend and to, discharge were
made by, Schwartz, it is understandable that he would
want to avoid confrontation with Devaney in view of
her "attitude," specifically the language which she had
used and her proclivity as further borne out by her
verbal reaction after the suspension and later after the
discharge. Certainly we have no evidence of existing
or intervening concerted activities which might conceiva-
bly prompt the earlier or the later action.
122 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
If the fragmented testimony leaves an element of
'doubt , the entire picture , from Schwartz ' apparent reluc-
tance (even at the trial , his was a lesser role ) to come
to the forefront in these scenes, through Porchia's calm
authority , to Devaney ' s insufferable forcefulness , pellu-
cidly reveals that the action finally taken was without
reference to concerted activity and in the interest of
discipline and decency.
Having observed the witnesses, I have attempted
to a far greater extent than usual to present a complete
picture of a personality to the extent that it is relevant
to the issues; a picture that is understandable and con-
vincing (as conclusions must be ) even as I have been
convinced by the witnesses . I have thus found and
described Devaney's conduct and manner to be sufficient
and lawful reason for the action taken against her.27
It is admitted and we can find that Devaney was
discharged ; to find by inference that she was unlawfully
discharged because of her concerted activities would
be unwarranted . I find and conclude that, no more
than suspension on February 4, was the February 7
discharge violative . So far is the General Counsel from
sustaining his burden of proof , that were the ultimate
burden the Company ' s, it would be adequately shown
that neither Devaney ' s suspension nor her discharge
was discriminatory within the meaning of the Act.
There is no testimony to support the allegation in
the answer that Devaney abused other employees. It
would be farfetched to infer such abuse from her use
of foul language in their presence . The further defense,
declared in the answer , that no coats were cut during
Devaney's suspension but that coats were again cut
on February 7, when she returned , although supported
by testimony , was clearly an afterthought : There is
no evidence that this was considered as an additional
reason when Devaney was discharged . Nor is there
proof to support the unworthy implication that Devaney
committed any of the slashings.
We must not overlook any animus or motivation
for discharge reflected by the interference found. In
this connection , we need not repeat what has been
noted concerning absence of any indicated animus, or
reason for directing animus, against Devaney.
As distinguished from the question whether the July
interference could be found violative , the General Coun-
sel in his memorandum to the Board in support of
his interim appeal claimed for the first time that proof
of interference was necessary and admissible to show
company animus which was reflected in the alleged
discrimination.
The difference between background to show animus
or to explain later events , and finding violation in such
background was succinctly indicated in the Bryan Manu-
facturing Company case.2' The Court there declared
27 The adequacy of the reasons, unless they be unlawful, is for
the Employer to determine . Cf Miami Coca -Cola Bottling Company,
138 NLRB 1209, 1224-25, Lincoln Bearing Company , 155 NLRB 1141,
1145 I am here passing on the credibility of the witnesses and their
reason.
28 Local Lodge 1424, IAM v. N L R B [Bryan Manufacturing Co ],
362 U 5.411,416.
that despite Section 10 (b), "evidentiary use of anterior
events" is proper to shed light on later events. This
is quite different from finding such anterior events to
be violative. But in the Farmers' Cooperative Compress
case20 the court declared :"We note that where the matter
is litigated , even though the particular violation has
not been specifically charged , the Board can find such
a violation ." Thus if a complaint could not be based
on matters barred by the statutory limitation , violation
could nevertheless be found once the matter is litigated
as "background."
This latter is the position taken by the General Counsel
in the instant case-and we have a backdoor finding
of violation despite the statutory limitation . (I have
not detailed testimony concerning interference not
alleged and admittedly more than 6 'months prior to
the first charge filed, which was offered as further back-
ground-to-show -background animus, presumably in sup-
port of the proof of animus indicated in the mid-July
events. A still earlier event on July 1 introduces the
promise of insurance ; another consists of a threat by
Porchia about July 1 and not alleged ', which Devaney
appears to have confused with the allegation of Schwartz'
threat to abolish the night shift.)
Further and aside from its remoteness in point of
time, the July 1968 interference by Schwartz was not
connected with the action taken against Devaney by
Porchia. (We have considered whether such action was
prompted by Schwartz ; one'may but need not so infer
from the facts presented .) As for interference by a
minor supervisor, while the Company has been found
liable therefor , such interference is hardly connected
with and does not prove animus bearing on Devaney's
suspension or discharge.
It is clear that proof of company animus may indeed
explain and place in a discriminatory light actions which
may otherwise appear to be innocent . But such proof
is no substitute for and does not itself obviate proof
of discriminatory acts or, to say the least , of knowledge
of union activities . Background is to be relied on to
explain what is otherwise ambiguous or unclear or "in
evaluating the weight to be afforded "30 evidence concern-
ing events in issue . As the Supreme Court stated in
Erie Resistor:31
When specific evidence of a subjective intent to
discriminate or to encourage or discourage union
membership is shown , and found , many otherwise
innocent or ambiguous actions which are normally
incident to the conduct of a business may, without
more , be converted into unfair labor practices.
The "foreground " proof here itself indicates that
there was no discrimination . While there is evidence
that the Company is opposed to the unionization of
its employees , there is no substantial evidence that
such opposition was carried to the extent of discharging
Devaney or any other employee for union activity.
29 United Packinghouse Workers v N L R B [Farmers' Cooperative
Compress ], 416 F. 2d 1126 (C A D C )
M & W Marine Ways, Inc, 165 NLRB 191
^' N L R B. v Erie Resistor Corp 373 U.S 221, 227
G & S METAL PRODUCTS COMPANY
L'ENVOI
The filing of various charges which after investigation
by the Regional Director did not appear to warrant
issuance of a complaint suggest that in the face of
these insufficient efforts it would be wise as a matter
of policy to let sleeping dogs lie. (The reference here
is to the July 1968 alleged interference.) There has
apparently not been any violation since July 1968. There
is no suggestion but that decent peace and harmony
prevail; and these might well be furthered without what
incorrectly appeared to me earlier to be reliance on
a questionable administrative decision issued to shore
up an unsupported claim of discrimination. If it be
in order I would suggest that as a matter of policy
a cause celebre be not further developed out of what
is essentially a piddling situation.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and
conclusions of law and the entire record in the case,
I recommend that the Company, G & S Metal Products
Company, Inc., Cleveland, Ohio, its officers, agents,
successors, and assigns, shall:
1. Cease and desist from:
(a) Promising benefits to employees in connection
with union activity, or sympathy.
(b) Unlawfully interrogating employees concerning
union activity or sympathy.
(c) In any like or related manner interfering with,
restraining, or coercing its employees in the exercise
of the rights guaranteed in Section 7'of the Act.
2. Take the following affirmative action which is nec-
essary to effectuate the policies of the Act:
(a) Post at its place of business in Cleveland, Ohio,
copies of the attached notice marked "Appendix."32
Copies of said notice, on forms provided by the Regional
Director for Region 8, shall be posted by the Company,
after being duly signed by its representative, immediately
upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places,
including all places where notices to its employees are
customarily posted. Reasonable steps shall be taken
by the Company to insure that said notices are not
altered, defaced, or covered by any other material.
(b) Notify the Regional Director for Region 8, in
writing, within 20 days from the receipt of this Decision,
what steps have been taken to comply herewith.33
94 In the event no exceptions are filed as provided by Section 102 46
of the Rules and Regulations of the National Labor Relations Board,
the findings, conclusions, recommendations, and Recommended Order
herein shall, as provided in Section 102.48 of the Rules and Regulations,
be adopted by the Board and become its findings, conclusions, and
order, and all objections thereto shall be deemed waived for all purposes
In the event that the Board's Order is enforced by a Judgment of
a United States Court of Appeals, the words in the notice reading
"Posted by Order of the National Labor Relations Board" shall be
changed to read "Posted Pursuant to a Judgment of the United States
Court of Appeals Enforcing an Order of the National Labor Relations
Board "
11 In the event that this Recommended Order is adopted by the
123
I FURTHER RECOMMEND that thq complaint be dis-
missed insofar as it alleges violation of Section 8(a)(3)
of the Act.
Board, this provision shall be modified to read- "Notify the Regional
Director for Region 8, in writing, within 10 days from the date of
this Order, what steps Respondent has taken to comply herewith "
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT interfere with, restrain, or coerce
employees by promise of benefits in connection
with union activity or sympathy or by unlawful
interrogation concerning such activity or sympathy.
WE WILL- NOT in any like or related manner
interfere with, restrain, or coerce our employees
in the exercise of the right to self-organization,
to form labor organizations, to join or assist Local
No. 416, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of
America, or any other labor organization, to bargain
collectively through representatives of their own
choosing, and to engage in other concerted activities
for the purpose of collective bargaining or other
mutual aid or protection, or to refrain from any
or all such activities, except to the extent that
such right may be affected by an agreement requir-
ing membership in a labor organization as a condi-
tion of employment, as authorized in Section 8(a)(3)
of the Act.
All our employees are free to become or remain,
or refrain from becoming or remaining, members of
Local No. 416, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America,
or any other labor organization, except to the extent
that such right may be affected by an agreement requiring
membership in a labor organization as a condition of
employment, as authorized in Section 8(a)(3) of the
Act.
G & S METAL PRODUCTS
COMPANY, INC
(Employer)
Dated By
(Representative ) (Title)
This is an official notice . and must not ' be defaced
by anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be altered,
defaced , or covered by any other material.
124 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Any questions doncernmg this notice or compliance 1695 Federal Office Building, 1240 East Ninth Street,
with its provisions may be directed to the Board ' s Office, Cleveland , Ohio 44199 , Telephone 216-522-3715