Honeywell, Inc.

National Labor Relations Board - Board Decisions

Jun 26, 1980

250 N.L.R.B. 160 (N.L.R.B. 1980)

I)ECISIONS OF NATIONAL LABOR RELATIONS BOARD
Honeywell, Inc. and Patrick Q. Browne. Case 4-
CA-9731
June 26, 1980
DECISION AND ORDER
BY MIMBHIRS JENKINS, PEINF. I.O, AND
TRULSI)A IE
On January 14, 1980, Administrative Law Judge
Robert W. Leiner issued the attached Decision in
this proceeding. Thereafter, the General Counsel
filed exceptions and a supporting brief and Re-
spondent filed a brief in response to the General
Counsel's exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings, and conclusions of the Administrative Law
Judge only to the extent consistent herewith.
The circumstances surrounding Respondent's is-
suance of a warning notice to and its suspension of
employee Patrick Q. Browne are set forth in detail
in the Administrative Law Judge's Decision and
need not be fully recited herein. Sometime in mid-
August 19 7 8 ,' one of Respondent's supervisors,
Vince Wilton, discovered the following message
scratched into a metal separator in the men's lava-
tory:
All yer rub off de truth. All yer don't want no
black electrician. Den all yer say dat Jerry,
Vince & Kennedy ain't bigot. Dey take it from
a black and give it to a white. Ah here dat
Turner and Ferral call de shots 2nd shift. Dey
say dey don't want no black electrician and
Kennedy disqualified Pat Browne. All Pow.2
Wilton showed this graffiti to Lee Cardiman, Re-
spondent's labor relations director, who said that
the writing "was disgraceful and caused racial
unrest in the plant." Wilton told Cardiman that he
suspected that Browne was the author since, inter
alia, Browne's name appeared thereon. In addition,
Respondent was well aware of Browne's dissatis-
faction with its recent decision to deny him a pro-
motion from millwright to electrician, since
Browne had indicated to Wilton that he believed
that the decision was racially motivated and that
he (Browne) was going to contest it. Thus, from
the names and circumstances mentioned in the
I All dates refer to 1978 unless otherwise indicated
2 "Vince & Kennedy" apparently refer to Supers isors Wiltonl arid
Leslie Kennedy "Turner and Ferral" are apparently employees.
250 NLRB No. 19
graffiti, Respondent deduced that the promotion in-
cident was the subject of the writing and that
Browne was most likely the author.
During this period, Browne was also quite vocal
about what he felt was a "too close" relationship
between the employees' collective-bargaining rep-
resentative, United Instrument Workers, Local 116,
AFL-CIO (hereinafter the Union), and Respond-
ent. Browne had told his supervisors, Wilton and
Jerry Passanante, that they were "too friendly"
with the shop steward, George Hayes, for the
Union to be representing the employees fairly.
In any event, Cardiman decided at the time that
he would discipline the author if he could be con-
clusively identified3 and, to that end, he retained a
handwriting expert. 4 The expert subsequently iden-
tified the handwriting as that of Browne. On Octo-
ber 17, Respondent's supervisor, Leslie Kennedy,
confronted Browne, who denied that he had writ-
ten on the wall. Kennedy then gave Browne a
written "warning notice" which stated:
You are hereby given a 20-day disciplinary
layoff effective immediately for intolerable and
inexcusable conduct in making public deroga-
tory comments about Supervisors and other
employees, creating discord and unrest in the
work force and attempting to cause serious
conflict in the plant. Such conduct is detrimen-
tal to all employees and cannot be tolerated
from anyone. Any further actions along these
lines will lead to further discipline up to and
including discharge.
Browne's suspension was thereafter reduced to 10
days.
The General Counsel alleges that Browne's sus-
pension violated Section 8(a)(1) since it was moti-
vated by Browne's criticism of the Union's repre-
sentation of Respondent's employees, as evidenced
by the comments written on the union leaflets as
well as the dissatisfaction expressed by Browne to
his supervisors. However, the Administrative Law
:' The record indicates that Respondent had prior to this time become
concerned with frequent defacing of walls at its facility, particularly with
racial slurs, and, at least since April 25. had posted a notice in this
regard:
I here have been repeated instances of defacing walls in this facility
Certain instances have insolved racial or ethnic slurs Such behavior
is intolerable and any employee founid engaging in same will be dis-
charged
As noted by the Administralive Law Judge. Cardiman subsequently
forwarded to the handwriting expert Iwo leaflets circulated by the Unioin
on which sonmeone had inscribed handwritten comments criticizing the
quality iof the Union's representation of Respondent's employees He tes-
tified that he suspected that Brlowne was also the author of these com-
ments hut he wanted Io be sure According to Cardiman, he had reports
that these altered leaflets were being posted (on company bulletin boards
and were "laying all (oer the shop, making an untidy work place" Car-
diman testified he wanted to talk to Hrowne about it and "tell him that
there was a time arnd place for that informatiton
iM)
HONEYWELL, INC.
Judge found that the evidence was insufficient to
prove that Respondent took Browne's criticism se-
riously and that its action was motivated by this
criticism. We agree.
However, the Administrative Law Judge also
found that Respondent's conduct was not motivat-
ed by Browne's criticism of its promotion policy
with respect to minorities since, in his opinion,
"Respondent would have disciplined Browne re-
gardless of his racial attack, because of its graffiti
nature."5 We disagree with this conclusion and, for
the reasons set forth below, we find that Browne's
suspension was the result of Respondent's unlawful
intent to punish Browne for criticizing its promo-
tion policies. Accordingly, Respondent's suspension
of Browne violated Section 8(a)(1) of the Act. 6
Although Respondent at the hearing contended
that Browne was merely disciplined pursuant to its
rule against defacing company property, the cir-
cumstances surrounding the incident belie this as-
sertion. Initially, we note the priority or special
treatment accorded this case by Respondent, as
evidenced by the drastic steps taken to prove that
Browne was the author of the graffiti, and the
reason proffered by Respondent to explain why
such an expensive and scientific effort was under-
taken. Although Respondent admitted that numer-
ous instances of graffiti, racial in content and other-
wise, had been discovered in the past and were of
great concern to it, at no time had it ever taken the
extraordinary step of hiring a handwriting expert
to determine the author of restroom graffiti. The
Administrative Law Judge found that Respondent's
justification for the special treatment accorded this
writing was that there was internal evidence point-
ing to the author and that Respondent was in-
censed because in this case specific supervisors
were named as being racially bigoted.7 As noted
above, Cardiman's testimony reveals that he was
upset by the substance of the writing and not the
forum and at that time he resolved to discipline the
5 Although the General Counsel did not advance this theory, the Ad-
ministrative Law Judge correctly found that this issue was raised in Re-
spondent's answer and was fully litigated at the hearing.
I We agree with the Administrative Law Judge that Browne's criti-
cism of Respondent's promotion policy as being racially discriminatory
constitutes concerted activity protected under Sec 7. See, e g. General
Teamsters Local Union No. 528, a/w International Brotherhood o/ Team-
sters, Chauffeurs, Warehousemen and Helpers of America (Theatres Service
Company), 237 NLRB 258 (1978).
Respondent does not specifically contend that the comments in the
graffiti amounted merely to "racial slurs." The Administrative Law
Judge correctly found that this case does not involve mere implementa-
tion of a lawful rule against graffiti "relating to generalized racial animos-
ity," but rather a particular complaint concerning discrimination with re-
spect to promotions. In any event, we do not believe that the comments
contained in the graffiti were so offensive as to threaten plant discipline
or otherwise make them unprotected. See, e.g., American Cast Iron Pipe
Company, 234 NLRB 1126 (1978); United Parcel Service, Inc., 230 NLRB
1147 (1977).
author, knowing full well that it was most likely
Browne. Thus, even assuming that, unlike the more
commonplace "unsigned" graffiti, the presence of
Browne's name in the writing was a unique factor
enabling Respondent to narrow the field of sus-
pects, it does not necessarily follow that Respond-
ent for that reason alone would have taken the ex-
pensive and unusual step of hiring an expert to
prove authorship if, for example, the substance of
the statement had been an obscene sexual refer-
ence. Rather, we believe it reasonable to infer from
Cardiman's testimony that it was the protected ac-
tivity of naming supervisors and others as engaging
in racial discrimination that precipitated the un-
precedented and sophisticated investigation in
order to prove conclusively that Browne was the
author of the graffiti.
We need not, however, rest our decision wholly
upon this ground. On the contrary, Respondent's
claim that Browne was disciplined merely pursuant
to its rule against defacing company property is
also contradicted by Respondent's answer to the
complaint and by the language of the warning
notice itself.
In its answer, Respondent alleges that the disci-
pline was meted out to Browne "for defacing com-
pany property, and making derogatory comments
about Supervisors and other employees leading to
discord in the work force." (Emphasis supplied.)
Thus, Respondent's answer in effect admits a moti-
vation based upon the substance of the writing; i.e.,
a complaint about discriminatory promotion poli-
cies. More damning, however, is the language of
the "warning notice" itself. There is absolutely no
reference in the notice to defacing company prop-
erty as a reason for the discipline. More important-
ly, the reason stated for the suspension is Browne's
"intolerable and inexcusable conduct in making
public derogatory comments about Supervisors and
other employees, creating discord and unrest in the
work force and attempting to cause serious conflict
in the plant." We are, therefore, compelled to find
that this statement from Respondent's own pen is a
virtual admission that, in its eyes, Browne's trans-
gression was the public airing of his grievance con-
cerning discrimination, not the manner in which he
chose to air it. Thus, although Respondent might
have been justified had it in fact disciplined
Browne for violating its rule against defacing com-
pany property, we find that its action here was in-
stead motivated by Browne's complaint concerning
discriminatory promotion policies, the substance of
which is protected under the Act. Accordingly,
161
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent violated Section 8(a)(1) by suspending
him for engaging in such activity.8
CONCLUSIONS OF LAW
1. Respondent, Honeywell, Inc., is an employer
within the meaning of Section 2(2), (6), and (7) of
the Act.
2. United Instrument Workers, Local 116, AFL-
CIO, is a labor organization within the meaning of
Section 2(5) of the Act.
3. By suspending Patrick Q. Browne for engag-
ing in protected concerted activity, Respondent has
engaged in an unfair labor practice within the
meaning of Section 8(a)(1) of the Act.
4. The aforesaid unfair labor practice affects
commerce within the meaning of Section 2(6) and
(7) of the Act.
THE REMEDY
Having found that Respondent has violated Sec-
tion 8(a)(1) of the Act, we shall order that Re-
spondent cease and desist therefrom and take ap-
propriate affirmative action to effectuate the poli-
cies of the Act.
Having found that Respondent unlawfully issued
a warning notice to and suspended Patrick Q.
Browne because he engaged in protected concerted
activity, we shall order that Respondent rescind
said warning notice and expunge from its records
all memorandums of or reference thereto and
advise Browne in writing of said action. We shall
additionally order Respondent to make Browne
whole for any loss of earnings suffered by reason
of the action against him, by payment to him of a
sum of money equal to what he would have earned
absent the unlawful conduct, less net interim earn-
ings, if any, during such period, with interest there-
on to be computed in the manner prescribed in
Florida Steel Corporation.9
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the Respondent, Honeywell,
Inc., Fort Washington, Pennsylvania, its officers,
agents, successors, and assigns, shall:
1. Cease and desist from:
8 In view of our conclusion that Respondent's warning notice and sus-
pension of Browne violated Sec. 8(aXI), we shall, inter alia, order that
the notice be revoked Accordingly, we find it unnecessary to pass on the
General Counsel's additional claim that the language of the notice itself
constitutes a violation of Sec. 8(aKI) since it inhibits Browne in the future
from exercising his Sec. 7 right to criticize the Union.
9 231 NLRB 651 (1977) See, generally, Isis Plumbing & Hearing Co.,
138 NLRB 716 (1962). The General Counsel's request that interest be
computed at a rate 9 percent is hereby denied.
(a) Suspending or otherwise disciplining employ-
ees for complaining that its promotion policies are
racially discriminatory.
(b) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of their rights guaranteed in Section 7 of the
Act.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Rescind its written warning notice issued to
and its suspension of Patrick Q. Browne and ex-
punge from its records all memoranda of or refer-
ence thereto.
(b) Advise Patrick Q. Browne in writing that the
warning notice and suspension have been rescinded
and the records of this notice and suspension have
been expunged.
(c) Make Patrick Q. Browne whole for any loss
of earnings he may have suffered as a result of his
unlawful suspension in the manner set forth in the
section of this Decision entitled "The Remedy."
(d) Preserve and, upon request, make available to
the Board or its agents, for examination and copy-
ing, all payroll records, social security payment
records, timecards, personnel records and reports,
and all other records necessary to analyze the
amount of backpay due under the terms of this
Order.
(e) Post at its Fort Washington, Pennsylvania,
facilities copies of the attached notice marked "Ap-
pendix."' ° Copies of said notice, on forms pro-
vided by the Regional Director for Region 4, after
being duly signed by Respondent's representative,
shall be posted by it immediately upon receipt
thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by Re-
spondent to insure that said notices are not altered,
defaced, or covered by any other material.
(f) Notify the Regional Director for Region 4, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply
herewith.
'o In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Eenforcing an
Order of the National Labor Relations Board"
162
HONEYWELL, INC.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all parties were represent-
ed and afforded the opportunity to present evi-
dence in support of their respective positions, it has
been found that we have violated the National
Labor Relations Act in certain respects and we
have been ordered to post this notice and to carry
out its terms.
The National Labor Relations Act gives you,
as employees, certain rights including the
right:
To engage in self-organization
To form, join, or help a union
To bargain collectively through a repre-
sentative of your own choosing
To act together for collective bargaining
or other mutual protection
To refrain from any or all of these things.
Accordingly, we give you these assurances:
WE WILL NOT suspend or otherwise disci-
pline employees for complaining that our pro-
motion policies are racially discriminatory.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employ-
ees in the exercise of their rights guaranteed in
Section 7 of the Act.
WE WILL rescind our written warning
notice issued to and our suspension of Patrick
Q. Browne and expunge from our records all
memoranda of or reference thereto.
WE WILL advise Patrick Q. Browne in writ-
ing that the warning notice and suspension
have been rescinded and the records of this
notice and suspension have been expunged.
WE WILL make Patrick Q. Browne whole
for any loss of earnings he may have suffered
as a result of his unlawful suspension, with in-
terest.
HONEYWELL, INC.
DECISION
STATEMENT OF THE CASE
ROBERT W. LEINER, Administrative Law Judge: This
case was heard in Philadelphia, Pennsylvania, on Octo-
ber 11, 1979, pursuant to a charge duly filed and served,'
and upon a complaint issued on May 15, 1979. In its
t The charge was filed on November I. 1978, and a copy served on
Respondent on November 3, 1978.
answer and at the hearing, Respondent Honeywell, Inc.,
admitted certain allegations of the complaint, including
those relating to certain jurisdiction and the supervisory
capacity of Respondent's agents. The issue raised by the
pleadings is whether Respondent violated Section 8(a)(l)
of the National Labor Relations Act, as amended (herein
the Act), by suspending Patrick Q. Browne, the Charg-
ing Party herein, for a period of 10 days because he criti-
cized the union grievance committee of United Instru-
ment Workers, Local No. 116, AFL-CIO, herein called
the Union. Respondent's answer denies the commission
of any unfair labor practices in the admitted 10-day sus-
pension of Browne, specifically denies he was suspended
for criticizing the grievance committee, and alleges that
Browne was suspended for (a) defacing company proper-
ty; and (b) making derogatory comments about supervi-
sors and other employees leading to discord in the work
force.
At the hearing, the General Counsel and Respondent
were represented by counsel and all parties were given
full opportunity to call to examine and cross-examine
witnesses. At the conclusion of the hearing, the parties
waived oral argument and thereafter the General Coun-
sel and Respondent submitted post-hearing briefs. 2
Upon the entire record in this case, including the
briefs, and from my observation of the witnesses, I make
the following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
Honeywell, Inc., Respondent herein, a Delaware cor-
poration, maintains an office and place of business in
Fort Washington, Pennsylvania, where it is engaged in
the manufacture and service of automated control sys-
tems and computers. During the year 1978, a representa-
tive period of Respondent's business operations, at the
Fort Washington, Pennsylvania, facility, received materi-
als valued in excess of $50,000 directly from points out-
side the Commonwealth of Pennsylvania. Respondent
admits, and I find, that at all material times it is and has
been an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The complaint alleges, Respondent admits, and I find
that United Instrument Workers, Local 116, AFL-CIO,
herein called the Union, is, and has been at material
times, a labor organization within the meaning of Section
2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
All events herein took place in Respondent's Fort
Washington, Pennsylvania, facility where it employs
I The General Counsel's brief includes a motion to correct the record:
his inadvertent submission of a document as G.C Exh. 8 whereas a dif-
ferent document was intended (i.e., the prior statement of a Respondent
supervisor). Respondent, by letter dated December 13, 1979, does not
oppose. I have, suo sponte, entered this letter into evidence as part of
G.C Exh. 8 and have withdrawn the existing exhibit and made the sub-
stitution, identified as G C. Exh. 8.
163
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
about 1,000 employees in its production and maintenance
unit which works on two shifts, the day shift and the
night shift. Respondent's maintenance department em-
ploys about 85 employees. The chief supervisor is Leslie
Kennedy and subordinate maintenance supervisors are
Jerry Passanante and Vince Wilton, all admitted by Re-
spondent to be supervisors within the meaning of Section
2(11) of the Act. Both Passanante and Wilton from time
to time were supervisors of the Charging Party.
Patrick Q. Browne, the Charging Party, a black, was
hired in Respondent's Fort Washington facility on Sep-
tember 19, 1977, as a maintenance helper, labor grade
eight, the lowest grade at the facility. On or about Janu-
ary 10, 1978, Browne successfully bid on the job of
"millwright" at labor grade six and, having thereafter
qualified, was promoted thereto. Every new job in Re-
spondent's plant carries with it, after successfully bidding
or "posting" for the job, a 60-day qualifying period
wherein the employees proves to Respondent that he is
capable of performing the job. Thus, bidding for the
opening occurs prior to being awarded the qualifying
period. Sometime in April 1978, Browne bid on a job,
labor grade five, in the classification "Electrician B." On
May 1, 1978, his bid was accepted and Browne com-
menced his 60-day qualifying period in this qualification.
The 60-day period expired on or about June 30, 1978,
and Brown failed to get the job. This result came about
under the following circumstances.
Sometime shortly before Browne bid (posted) for the
"Electrician B" job in April, Browne told his supervi-
sors, Wilton and Passanante, that they were "too friend-
ly" with the shop steward (George Hayes) for the Union
to give fair representation. Passanante answered that it
was merely the method by which they communicated.
Browne said that it was not mere communication and
that Hayes said that Passanante and Hayes were good
friends.
Subsequently, in April 1978, after he had bid for the
electrician job, but 2 days before he was interviewed for
it, Browne had a conversation with two employees who
said they would not work with a black electrician.
Browne told them he did not believe Passanante would
discriminate against him but, if he did so, Browne would
take the matter up with higher supervisors and then to
the Federal Government.
When Passanante heard of this discussion, he came to
see Browne and called him aside, saying he heard
Browne would file a grievance if he did not get the elec-
trician's job. Browne admitted that Passanante had never
discriminated against him before, but that, in view of his
discussion with the two employees, if Passanante stopped
him from getting the job, he would "go further."
Passanante told Browne that he had progressed from
the lowest pay grade, labor grade eight, to labor grade
six, and now was bidding for grade five; that employees
of many years' employment were not not even grade six,
much less a grade five, and that Browne's bid had "got a
lot of people envious of you." Passanante then said:
"I think you can do the job fine. [Within] two
weeks time, if you can show me you can perform,
you got the job. If you can't then definitely I would
disqualify you.
Two days later, Passanante (with Shop Steward Hayes
present) interviewed Browne for the job, noted that he
did not have any knowledge of electricity, asserted that
2 years of experience was a job prerequisite and that, as
far as Passanante was concerned, he would not give him
the job. Nevertheless, shortly thereafter, Supervisor
Wilton told Browne that, regardless of what had oc-
curred, he was to start his qualifying 60-day period.
During the 60-day qualifying period. Browne had a
conversation with Chief Maintenance Supervisor Leslie
Kennedy. In that conversation, Kennedy called him into
the conference room and told Browne that there had
been a lot of "static" in Browne having posted for the
electrician job. He told Browne that there were employ-
ees who did not want to work with him in that job and
that he wanted Browne to disqualify himself from fur-
ther application for the position. Kennedy told him that
Respondent would also hold his old job as a millwright
open for him if he wanted to go back to it. When he told
Kennedy that he refused to disqualify himself, Kennedy
told him that he should go and see his shop steward.
Browne then told Kennedy that he believed that Kenne-
dy and Supervisor Passanante were discriminating
against him.3
Shortly after this conversation with Kennedy, Supervi-
sor Wilton called the Shop Steward George Hayes and
Patrick Browne into the conference room and told them
that he was going to discuss Browne's performance
during the qualifying period. Wilton told them that the
Company had decided to disqualify Browne because he
took too much time on the job and was not producing
enough; and, in addition, his performance with regard to
his own safety and the safety of others left much to be
desired. When Browne asked Wilton to identify the job
he had worked on that took too long, Wilton specified a
particular job which had taken him 5 hours to perform.
At that point, Browne reminded Wilton that 3 hours of
the 5 hours were occupied by a discussion with the shop
steward (Hayes) and a union committeeman who spoke
to him regarding his assertion that Supervisor Passanante
was discriminating against him. Hayes, in Wilton's pres-
ence, corroborated Browne's statement with regard to
the loss of the 3 hours. Browne ended the conversation
by saying that Wilton was unfairly evaluating him, was
discriminating against him, and that Browne would file a
complaint with the Federal authorities. Wilton said that
he would be in touch with Browne.
a Kennedy did not tell Browne the reason for the static. When asked
who was discriminating against him, Browne at first testified he told
Kennedy that "you all are discriminating against me." In cross-examina-
tion he was asked if he told Supervisor Kennedy that Kennedy was dis-
criminating against him Browne answered that he believed only Passan-
ante was discriminating against him-"Just Jerry [Passanantel." He then
said he told Kennedy that it was Kennedy and Passanante who were dis-
criminating against him because of his race. Even when Wilton extended
his qualifying period an additional 30 days in order to permit him to qual-
ify, he testified that he accused Wilton of racial discrimination. See text,
infra. When asked if he thought that Respondent refused to give him the
electrician's job because of racial discrimination or union activities,
Browne said "Possibly."
164
IIONEYWEI.L, INC
Within a few days, Wilton told Browne that Respond-
ent was extending the qualifing period for an additional
30 days because, during the preceding 60-day qualifying
period, Browne had worked with an electrician and had
not worked independently. Because of this, Wilton said
that there had been insufficient opportunity to decide
whether Browne was capable of independent work. The
30-day extension was to expire on or about July 31, 1978.
At the end of the 30-day period, on or about July 26,
1978, Supervisor Wilton told Browne that he was not
going to be awarded the job and was disqualified be-
cause: (I) he did not perform enough work and (2) be-
cause of the prior safety factors. Crediting Wilton, I find
that Browne answered that Wilton and the Respondent
were discriminating against him based on racial consider-
ations, but that Browne did not mention that he was
being discriminated against because Browne previously
criticized the close relationship between Respondent and
the Union or because of any union activity in which
Browne engaged. Whatever Browne may have felt, the
record shows that he told Kennedy and Wilton that the
discrimination was racial.
Subsequent to his disqualification from obtaining the
electrician position on July 26, 1978, Browne transferred
back to his job as a millwright. Browne admitted that,
during the 60-day qualifying period, he had trouble
wiring a lathe and, on another occasion, caused fuses to
blow out because of his work.4
Browne's Written Criticisms of Respondent and the
Union
The testimony of Supervisor Wilton is for the most
part undisputed and is credited. He was Browne's super-
visor in the maintenance department when Browne was a
millwright helper (labor grade eight) and also when
Browne was promoted to millwright (labor grade six).
Wilton had no problems with Browne's performance or
conduct while he was a millwright. At the same time
that Browne posted for the job as "Electrician B" in
April 1979, he applied to become a supervisor in the
maintenance department. Although he was turned down
for the position of supervisor, Wilton, on April 4, 1978,
in commenting on Browne's application for the supervi-
sory position, stated that Wilton had a "very good atti-
tude towards life and work, has a willingness to learn"
and also shows a "good sense of job responsibility."
In July 1978, Shop Steward Hayes showed a writing
to Wilton. Wilton thereafter showed it to Supervisor
Kennedy and to Director of Labor Relations Lee E.
Cardiman. This document (G.C. Exh. 2) described (to
Cariman) by Wilton as "floating" throughout the shop, is
entitled "Important Notice" and is a mock invitation to
all night-shift hourly employees to a "party" to celebrate
the pay raise of a new, unnamed supervisor whom the
invited employees helped to qualify for the promotion.
The document specifically invites only maintenance de-
partment employees and states that all "brown noses" are
to be admitted free but they must donate their "contin-
'I do not, of course, make any finding on the question whether Re-
spondent denied Browne the promotion because of his race.
ued undercover work." Browne admits he was the
author of the document.
Sometime in July 1978, Wilton saw a typewritten
union notice (G.C. Exh. 6) on the company bulletin
board with some handwriting on it. He pointed it out to
Shop Steward Hayes but says he did not mention it to
Supervisor Kennedy. It remained on the bulletin board.
That union notice, addressed to "all members of Local
116," contained in its typewritten body messages regard-
ing a new member of the union grievance committee,
parking on the Company's parking lot, and was signed
by the Union committee consisting of five employees. At
the bottom, next to the names of the committee mem-
bers, Browne admits writing, in July or August 1978, the
words "TIME TO CHANGE THIS COMMITTEE,
THEY HAVE LOST THEIR EFFECTIVENESS." In
addition, immediately next to the names, Browne wrote:
"They are too friendly with you know who."
Browne also admits writing on another copy of the
same union handout (G.C. Exh. 7), next to the names at
the bottom of the documents which he found lying
around on the benches in the men's locker room and left
them on the benches for co-employees to read. They
read them.
Cardiman testified, and I find, that both union leaflets
were given to him at the beginning of October 1978.
Contrary to any testimony to the contrary, I conclude
that he knew of the existence of General Counsel's Ex-
hibits 6 and 7 in the beginning of August. If Supervisor
Wilton knew, Cardiman knew.
Supervisor Kennedy similarly testified that he never
saw General Counsel's Exhibits 6 or 7 until the day after
he served on Browne a written notice of discipline (G.C.
Exh. 11) on October 17, 1978. Kennedy testified, in addi-
tion, that he was vaguely aware of Browne making criti-
cal references against the union committee ("Maybe
someone mentioned in it in a conversation . . ." I do not
credit Wilton's testimony that he, Browne's supervisor,
was not aware of Browne's criticism of union officials. I
conclude, crediting Browne, that Kennedy, Wilton, and
Passanante knew that Browne criticized the close rela-
tionship of Respondent with the Union. I further con-
clude that Cardiman, through Passanante, Wilton, and
Kennedy, knew that Browne criticized both the Union
and Respondent and accused Respondent of antiblack
bias.
In mid-August 1978, after returning from 2 weeks' va-
cation (the annual 2-week plant shutdown), Wilton, in
visiting the men's lavatory, discovered certain graffiti
scratched into a metal wall separator. He showed it to
Supervisor Kennedy, his superior, and Kennedy told him
to inform Cardiman, the chief of labor relations.
Reproduced copies of the graffiti (G.C. Exh. 3) con-
tain the following language:
All yer rub off de truth. All yer don't want no
black electrician. Den all yer say dat Jerry, Vince &
Kennedy ain't bigot. Dey take it from a black and
give it to a white. Ah here dat Turner an Ferral
call de shots 2nd shift. Dey say dey don't want no
black no electrician and Kennedy disqualified Pat
Browne. All Pow.
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DECISIONS O()F NATIONAL LABOR RELATIONS BOARD
At Kennedy's direction, Wilton showed it to a Labor
Relations Director Cardiman. Cardiman said that the
substance was disgraceful and caused racial unrest.
Wilton told Cardiman that he suspected that the Charg-
ing Party was the author of this material because
Browne's name was in the scratching and because of
handwriting on other notes which Browne had previous-
ly given to Wilton. Cardiman told Wilton and Kennedy
that, if they ever discovered who scratched that material
in to the wall, they were going to discipline them. In
fact, Cardiman testified that he said that he would dis-
charge 5 whoever it was that wrote that if he could be
identified. He, like Kennedy, said that he made this state-
ment before he ever saw General Counsel's Exhibit 6 or
7, above, which he said he first saw in October 1978. I
have found nevertheless that Respondent knew of
Browne's accusations.
In any event, when Wilson showed him the graffiti
(G.C. Exh. 3) on the wall in the men's room, Cardiman
told Wilton not to disturb the scratchings. Cardiman tes-
tified that, on the advice of counsel, he sought the opin-
ion of a handwriting expert. He submitted various sam-
ples6 of handwriting, including photographs of General
Counsel's Exhibits 2 and 3, specimens of Browns' known
printing, and the printed applications of other employees,
to the handwriting expert on and after September 25,
1978. On the basis, inter alia, of comparing General
Counsel's Exhibits 2 and 3 with known samples from
Browne's handwriting, the handwriting expert gave his
opinion that General Counsel's Exhibits 2 and 3 were the
handwriting of Charging Party Browne. This opinion
was rendered in a letter to Cardiman dated October 4,
1978, received on or about October 6 or 7.
However, before he actually received the handwriting
expert's opinion letter dated October 4, Cardiman direct-
ed his secretary to also submit to the handwriting expert
two further documents: General Counsel's Exhibits 6 and
7 which, Cardiman alleges, had by then come into his
possession. Thus, coincidentally, according to Respond-
ent, on October 4, 1978, Cardiman's secretary sent to the
handwriting expert these two further documents which
Cardiman believed to be in Browne's handwriting and
which he submitted to the handwriting expert to further
corroborate that General Counsel's Exhibits 2 and 3
were also in Browne's handwriting.
In response to the submission of the two further docu-
ments, the handwriting expert, on October 5, 1978, sent a
further opinion letter to Cardiman. He declared that
General Counsel's Exhibits 6 and 7 (the handwriting on
the two union handbills) were handprinted by Browne. 7
s At least since April 25, 1978, Respondent had posted a notice (Resp
Exh. 2) or its policy in general with regard to the defacing of walls and
with racial slurs in particular:
There have been repeated instances of defacing walls in this facili-
ty. Certain instances have involved racial or ethnic slurs.
Such behavior is intolerable and any employee found engaging in
same will be discharged.
6 The General Counsel nowhere argues that Respondent's submissions
to the handwriting expert were in any way prejudicial or irregular
7 Browne admits that the handwriting which appears on G C Exhs 6
and 7 at the bottom is his and that he wrote on them in July or August
1978.
When he received the handwriting expert's further
letter declaring that General Counsel's Exhibits 6 and 7
were in Browne's handwriting (G.C. Exh. 10) Cardiman
decided to act against Browne. As above noted, he de-
clared that, if were up to him, he would have discharged
Browne. There is evidence that Respondent, in the past,
discharged an engineering employee for racial graffiti.
However, he consulted his superior and, as a result, after
consulting with Respondent's attorney, Respondent disci-
plined Browne in the following manner.
On October 17, 1978, Kennedy called Browne into his
office in presence of the shop steward, George Hayes.
He asked Browne if he had written General Counsel's
Exhibit 2. Browne admitted that he had done so. He then
showed Browne photocopies of the handprinted matters
taken from the bathroom wall (G.C. Exh. 3) and Browne
denied that it was his writing. Kennedy told Browne that
Respondent had investigated the matters with a hand-
writing expert who said that Browne had written it.
Browne said that Kennedy knew better than that and
again denied doing so. At this point, Kennedy handed
Browne a "warning notice" in which, inter alia, he was
given a 20-day disciplinary layoff for "intolerable and in-
excusable conduct in making public derogatory com-
ments about Supervisors and other employees, creating
discord and unrest in the work force and attempting to
cause serious conflict in the plant." The warning notice
observed that such conduct "is detrimental to all em-
ployees and cannot be tolerated from anyone. Any fur-
ther actions along these lines will lead to further disci-
pline up to and including discharge." The document
(G.C. Exh. 11) is signed by Kennedy. Thereafter, due to
a grievance filed by the Union, the 20-day disciplinary
layoff was reduced to 10 days, but the remainder of the
"warning notice" remained in effect. 8
Discussion and Conclusions
The General Counsel argues, in particular, that what-
ever other motivation Respondent had in issuing the dis-
ciplinary notice suspending Browne for 10 days, Re-
spondent was, at least in part, influenced by the fact that
Browne had openly criticized Respondent's close rela-
tionship with the Union. Indeed, Browne had placed this
criticism in writing as early as July 1978, when he added
the printed matter to General Counsel's Exhibits 6 and 7,
the former being seen by Supervisor Wilton in July 1978.
Respondent denies being influenced by these exhibits
prior to October 4, 1978, after it decided to discipline
whoever it was who had been the author of the men's
room graffiti, all the while reasonably suspecting that it
was Browne because of internal evidence in the graffiti.
No lengthy discussion is required to indicate that there is
no evidence linking Respondent's desire to punish the
author of the graffiti to Browne because of Browne
8 The General Counsel attacks the warning notice as so ambiguous as
to inhibit Browne from attacking the alleged too-close relationship of the
Union and Respondent. In so arguing, the General Counsel notes the lan-
guage regarding "discord and unrest" rather than Browne's public de-
rogatory remarks." Such an attack must await an allegation of unlawful-
ness in a timely complaint It should be noted, however, that nothing in
the warning notices relates to graffiti, or to the rule against graffiti.
166
HONEYWELL, INC.
having criticized Respondent's "close relationship" with
the Union. While it is true that General Counsel's Exhib-
its 6 and 7 were in existence as early as July 1978, and
Respondent was aware both of General Counsel's Exhib-
it 6 ("They are too friendly with you know who. Time
to change this committee they have lost their effective-
ness") and of Browne's earlier accusation of over-friend-
ly relations between Respondent and the Union, Re-
spondent's disciplinary response did not take place until
October 1978. The mere succession of events does not
necessarily prove that the subsequent October punish-
ment was caused by its prior knowledge. This is the post
hoc, propter hoc fallacy.
Respondent urges and the General Counsel does not
deny that it had a preexisting policy of punishing or at-
tempting to punish persons who defaced its walls with
ethnic slurs. There is no question that such policy preex-
isted any problems which Browne had with Respondent.
Moreover, there is no question that the material appear-
ing in General Counsel's Exhibit 3, the men's room graf-
fiti, does contain allegations against Respondent, and par-
ticularly Respondent's supervisors, Kennedy, Wilton, and
Passanante, relating to racial discrimination. In particu-
lar, while racial epithets and slurs admittedly often
appear on the walls of its men's room and graffiti is
merely erased or painted over by Respondent, such a
result is due to Respondent's inability to discover the
author of the graffiti. The graffiti appearing in General
Counsel's Exhibit 3, however, according to Respondent,
presented a special case: in General Counsel's Exhibit 3,
specific supervisors were named as being racially bigoted
and, in addition, there was internal evidence pointing to
the author. Thus it is immaterial, in view of the General
Counsels argument, that Respondent has been unsuccess-
ful in punishing the authors of such material because it
has been unable to discover who they were. Here, ac-
cording to the opinion of an expert, the author was dis-
covered and Respondent promptly punished the alleged
perpetrator according to a previous published rule and
according to and consistent with prior Respondent prac-
tice.
Although Respondent knew that Browne, from time to
time, criticized the relationship between Respondent and
the Union, aside from Supervisor Passanante telling
Browne that the relationship was merely a method of
communication between the parties, there is no indica-
tion that Respondent took Browne's criticism seriously.
Thus, notwithstanding that Respondent knew of
Browne's criticism of its relationship with the Union, and
even if it knew he was the author of General Counsel's
Exhibit 6, criticism of the union committee, such knowl-
edge does not demonstrate that the punishment which
Respondent handed out to Browne was caused by that
condition. For instance, it is nowhere alleged that
Browne's April 1978 criticism of the relationship be-
tween Union and Respondent led to his disqualification
from the electrician's job. Moreover, since Respondent
knew or suspected, at least arguendo, that Browne draft-
ed the accusations in General Counsel's Exhibit 6 as
early as July 1978, perhaps after his disqualification, Re-
spondent took no action.
Thus, as General Counsel urges, as early as April 1978
(6 months before it disciplined him), Respondent knew of
Browne's accusations against its alleged too-close rela-
tionship and saw the accusation posted on its bulletin
board in July 1978 by a draftman who it might suspect
was Browne. No retaliation resulted proximate to either
accusation.
I conclude that there is no preponderant proof that the
discipline of October 17, whose beginnings flowed from
about October 4 (the confirmation from the handwriting
expert), resulted from Respondent's knowledge of
Browne's accusations concerning its relations with the
Union or the composition of the union committee.
Secondly, even if the General Counsel proved that Re-
spondent was so displeased with Browne's accusations
that it would retaliate against him, I conclude that Re-
spondent would have lawfully disciplined Browne for his
graffiti carvings attacking its supervisors as bigots9 with-
out regard to his assertions of a too-close relationship be-
tween the Union and Respondent. Klate Holt Company,
161 NLRB 1606 (1966).
Thirdly, I conclude that Respondent's published rule
(Resp. Exh. 2) against defacing walls and racial/ethnic
was lawfully promulgated.
Had Respondent disciplined him solely for violating its
lawful rule against defacing its walls, regardless of the
content of the message, I would recommend dismissal of
the complaint since such employee conduct is not pro-
tected under the Act regardless of the otherwise protect-
ed and concerted substance, Cashway Lumber. Inc., 202
NLRB 380 (1973). Similarly, if Respondent had imple-
mented its lawful rule against an act of graffiti relating to
generalized racial animosity-i.e., as the rule notes,
"racial or ethnic slurs"-I would similarly conclude that
the employee conduct was not protected under Section 7
and that discipline therefore was not violative of the pro-
hibitions of Section 8(a)(1) of the Act.
In the present case, however, although Wilton testified
that Cardin wanted to pursue this particular graffiti be-
cause of "the racial slurs involved," Cardiman himself
said that he was incensed by Browne's assertion that Re-
spondent "didn't want a black electrician, taking from a
black and giving to a white." In view of evidence show-
ing Supervisor Kennedy, in the 60-day probationary
period, seeking to have Browne disqualify himself from
the electrician bid because of racial "static" Kennedy
I Nowhere does the General Counsel attack Respolndent's reliance on
the handwriting expert's opinion that Browne was the author of the graf
fiti (G C Exh 3) Apart from the expert's opinion, it must also be noted
that the graffiti names "Turner and Ferral" as calling "de shots" on
Browne's second shift Browne, in his April conversation silth Supervisor
Passanante, named "Farrel" as an employee who said "they ain't got no
black electrician" Thus, this internal evidence tends to support the ex-
pert's opinion of Browne's authorship. contrary to Browne's denial In
the absence of other evidence. I discredit Browne's denial and conclude
not only that Respondent reasonably believed Browne was the author.
but also that, in fact, he was the author of G C Exh 3 L R. v
Burnup and Sims. Inc. 379 U S. 21 (1964)
In addition, it should be noted that the General Counsel's presentation
of the evidence and his brief nowhere suggests a violalion other than that
based on Respondent's alleged discrimination because of Broa rne's croii
cism of the union committee I pass on the matter (of Brosnes' accusa-
tions In the graffiti since the matter sas raised in Respondent's answer
and litigated before me
167
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was receiving against Browne, the question is whether
Cardiman (and Respondent) was motivated, in whole or
in part, by the substance of Browne's racial slur, i.e.,
whether Cardiman would have disciplined him because
of the attack on Respondent's alleged racial promotion
policy and racially bigoted supervisors. If the content
was irrelevant and Respondent punished merely the
racial slur because it was in graffiti, the 10-day discipline
would relate to unprotected conduct. If the racial con-
tent, however was a substantial motivating factor and
graffiti merely a convenient pretext, then under the
Board rule (see, e.g., Standard Motor Products, Inc., 246
NLRB No. 47 (1979)), the discipline would have been an
unlawful response to a protest regarding an unlawful
promotion policy, unlawfully implemented-matters of
direct interest to all unit employees-and a concerted ac-
tivity protected under Section 7 of the Act.10
As above, while the matter is not free from doubt, I
conclude that, in the face of Respondent's preexisting
lawful rule against racial graffiti, the unrebutted evidence
of discharge of the engineering employee for racial graf-
fiti, and Respondent's ability to prove authorship in this
particular case, I conclude that Respondent would have
disciplined Browne regardless of his racial attack, be-
cause of its graffiti nature, regardless of its allegations of
Respondent's unlawful promotion policy. In further sup-
port of this conclusion, I observed that Respondent
failed to attempt to discipline Browne when it discov-
ered, in July-August 1978, from his writings on the union
handbills (G.C. Exhs. 6 and 7) Browne's sentiments relat-
ing to (I) Respondent's relationship with the Union and
(2) the Union's alleged discrimination against blacks.
When the attack named supervisors and was enshrined in
graffiti, I conclude that made the difference. Whether
Respondnt would have disciplined Browne for similar
statements included in a union leaflet is a matter not
'o No such theory was advanced in the complaint in the General
Counsel's brief. I pass on the issue, again, based on facts litigated at the
hearing under Respondnl's answer (G C. Exh. I(e)).
before me. Cf. Standard Motor Productions, Inc., supra,
and whether Respondent may have been pleased that it
was Browne who wrote the graffiti is likewise immateri-
al.
Thus, while Cardiman did testify that he resented
Browne's graffiti assertion that Respondent "didn't want
a black electrician, taking from a black and giving to a
white," I do not conclude that it was this element which
motivated Cardiman but rather the underlying racial
graffiti attack.
As long as Respondent's discipline is consistent with
prior conduct, affirmatively free of pretext and disparate
action, and, here, in accordance with its preexisting, pub-
lished rule, there is no reason to believe it seized upon an
opportunity to punish Browne for the subject matter of
the graffiti. In any case, there is no proof on this point.
In short, assuming the substance of Browne's message
can be lawfully distributed in a leaflet, it cannot be
scratched into the walls especially if there is a lawful
rule against it.
CONCI USIONS OF LAW
1. Honeywell, Inc., Respondent herein, is an employer
engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
2. United Instrument Workers, Local 116, AFL-CIO,
herein called the Union, is a labor organization within
the meaning of Section 2(5) of the Act.
3. A preponderance of the credible evidence fails to
show that Respondent's discipline of Patrick Q. Browne,
on or about October 17, 1978, was a result of Browne
having criticized the Union's grievance committee, the
Union's relationship with Respondent, Respondent's pro-
motional policy with regard to minorities, or because he
engaged in any other concerted activity protected by
Section 7 of the Act.
[Recommended Order for dismissal omitted from pub-
lication.]
168