Kay Fries, Inc.

National Labor Relations Board - Board Decisions

Dec 16, 1982

265 N.L.R.B. 1077 (N.L.R.B. 1982)

KAY FRIES, INC.
Kay Fries, Inc. and International Chemical Workers
Union, Local 677, AFL-CIO. Case 2-CA-
17565
December 16, 1982
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
ZIMMERMAN
On March 9, 1982, Administrative Law Judge
Elbert D. Gadsden issued the attached Decision in
this proceeding. Thereafter, the Respondent filed
exceptions and a supporting brief, and the General
Counsel filed partial exceptions and a supporting
brief.
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, l and conclusions2 of the Administrative Law
Judge, as modified below, and to adopt his recom-
mended Order as modified herein.
We disagree with the Administrative Law
Judge's finding that the Respondent's unilateral in-
stitution of a proof requirement for funeral leave
did not violate Section 8(a)(5) by virtue of the
Union's failure to timely request bargaining over
such rule. Here the record reveals that the Re-
spondent instituted and began enforcing the proof
rule prior to any notification to the Union and thus
the Union was faced, not with a mere proposed
change, but rather a fait accompli.3 Nor did the
Union acquiesce in the unilateral change. For, upon
learning of the change, Union President Paul,
I The Respondent has excepted to certain credibility findings made by
the Administrative Law Judge. It is the Board's established policy not to
overrule an administrative law judge's resolutions with respect to credi-
bility unless the clear preponderance of all of the relevant evidence con-
vinces us that the resolutions are incorrect. Standard Dry Wall Produc¢
Inc.. 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have
carefully examined the record and find no basis for reversing his fndings.
a While we agree with the Administrative Law Judge's finding that the
Respondent's asserted reasons for discharging Maurice were a pretext, we
disavow his statement that Wright Line. a Division of Wright Line. Inc,
251 NLRB 1083 (1980), is not applicable to the facts herein. Rather, the
Board has held that, where a pretext discharge is found, "[n]o substantive
objective is served by our reiterating and recasting an administrative law
judge's finding and conclusions in order to achieve a formalistic consist-
ency with Wright Line . . ." Limestone Apparel Corpg, 255 NLRB 722
(1981). This is so because a finding of pretext necessarily means that the
reasons advanced by the employer either did not exist or were not in fact
relied on, and therefore establishes that the employer has failed to rebut
the General Counsel's prima facie case.
Member Jenkins would affirm the Administrative Law Judge in this
regard.
3 The City Hosapital of East Liverpool, Ohio. 234 NLRB 58 (1978), and
Clarkwood Corporation, 233 NLRB 1172 (1977), relied on by the Adminis-
trative Law Judge, are therefore inapposite; in both lack of diligence by
the Union was shown.
Grievance Chairman Maurice, and International
Representative Meade each protested the rule, and
Maurice processed grievances regarding denials of
funeral pay for lack of sufficient proof. Finally, the
record reveals that, when protesting the rule to
Wasilewski, the Respondent's personnel director,
Union President Paul agreed to discuss alternatives
to the rule at an upcoming grievance meeting on
September 29. We find that such action constituted
a timely protest and request to bargain over the
proof requirement and that, therefore, the Re-
spondent's unilateral imposition of such violated
Section 8(a)(5). 4
Additional Conclusion of Law
By unilaterally instituting a rule requiring the
submission of proof to obtain funeral leave, the Re-
spondent violated Section 8(a)(5) and (1) of the
Act.
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, as modi-
fied below, and hereby orders that the Respondent,
Kay Fries, Inc., Stony Point, New York, its offi-
cers, agents, successors, and assigns, shall take the
action set forth in said recommended Order, as so
modified:
1. Insert the following as paragraphs l(g) and
(h):
"(g) Refusing to bargain in good faith with Inter-
national Chemical Workers Union, Local 677,
AFL-CIO, by unilaterally instituting changes in
terms and conditions of employment.
"(h) In any other manner interfering with, re-
straining, or coercing its employees in the exercise
and enjoyment of rights guaranteed them by Sec-
tion 7 of the Act."
2. Insert the following as paragraph 2(b) and re-
letter the subsequent paragraphs accordingly:
"(b) Expunge from its personnel files any refer-
ence to the discharge of Donald Maurice and
notify him in writing that this has been done and
that evidence of this unlawful conduct will not be
used as a basis for future personnel actions against
him."
3. Substitute the attached notice for that of the
Administrative Law Judge.
4 Since the record shows that the Respondent subsequently entered
into a written agreement with the Union by which it abandoned the rule,
we shall not order that the Respondent bargain over the change.
265 NLRB No. 132
1077
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportu-
nity to present evidence and state their positions,
the National Labor Relations Board found that we
have violated the National Labor Relations Act, as
amended, and has ordered us to post this notice.
WE WILL NOT restrain or coerce our em-
ployees in the exercise of their protected rights
by:
(a) Telling employees we will turn over
their grievances to a company physician for
him to institute legal action against employ-
ees because employees file grievances
against the Company for questioned sanitary
practices of the physician.
(b) Refusing a discharged Union's designat-
ed grievance chairman (agent) access to our
facility to process grievances.
(c) Conditioning reinstatement of a dis-
charged union agent upon his relinguishing
his position as grievance chairman (agent)
for the Union.
(d) Telling employees to bring their prob-
lems to management and if management
cannot resolve them it will refer them to the
Union.
WE WILL NOT discourage employees' mem-
bership in, or support of, International Chemi-
cal Workers Union, Local 677, AFL-CIO, or
any other labor organization by violating our
contract with such labor organization, or by
discharging employees because they suppot-t or
carry on activities on behalf of the Union, or
because they threaten to go to and/or file
charges with the Board, or file complaints
with other Government administrative agen-
cies, or otherwise discriminate against them in
any manner with respect to their tenure of em-
ployment, or any term or condition of employ-
ment.
WE WILL NOT refuse to bargain in good
faith with International Chemical Workers
Union, Local 667, AFL-CIO, by unilaterally
changing terms and conditions of employment.
WE WILL NOT in any other manner interfere
with, restrain, or coerce employees in the exer-
cise and enjoyment of rights guaranteed them
by Section 7 of the National Labor Relations
Act, except to the extent that such rights may
be affected by lawful agreements in accord
with Section 8(aX3) of the Act.
WE WILL offer Donald Maurice immediate
reinstatement to his former position or, if such
position no longer exists, to a substantially
equivalent position, without prejudice to his
seniority or other rights previously enjoyed,
and make him whole for any loss of pay suf-
fered by reason of our discrimination against
him, with interest.
WE WILL expunge from our personnel files
any reference to the discharge of Donald Mau-
rice and notify him in writing that this has
been done and that evidence of this unlawful
conduct will not be used as a basis for future
personnel actions against him.
WE WILL retract and expunge from the per-
sonnel records of employee Darryl Thaler, the
written warning which we issued to him for
filing a grievance about health and safety prac-
tices during physical examinations of employ-
ees.
All our employees are free to become, remain, or
refuse to become or remain, members of Interna-
tional Chemical Workers Union, Local 677, AFL-
CIO, or any other labor organization.
KAY FRIES, INC.
DECISION
STATEMENT OF THE CASE
ELBERT D. GADSDEN, Administrative Law Judge:
Upon a charge and an amended charge of unfair labor
practices filed on October I and November 21, 1980, re-
spectively, by Donald Maurice, on behalf of Internation-
al Chemical Workers Union, Local 677, AFL-CIO,'
herein called Maurice or Charging Party, against Kay
Fries, Inc., herein called Respondent, an original and an
amended complaint and notice of hearing were issued by
the Regional Director for Region 2, on behalf of the
General Counsel on November 20, 1980, and June 17,
1981, respectively.
I An examination of the charges (G.C. Exh I(a) and i(b)) herein
shows that both charges were filed by Donad Maurice. Under item 5 on
each charge, which is to be completed at the time of iling, ppears the
namne of the International of which Maurice's Local 677, AFL-CIO, is an
ffiliate. The record herein shows that Doad Maurice wa an elected
grievance chairman for the Union and represented the Union in dealings
with Respondent, which considered him and trated him as such over the
pat 3 or 4 years. Robert Meade, International representative and David
Paul, president of Local 677, both testifed herein on behalf of the Union
and Maurice. I therefore conclude that both charges were filed on behalf
of the Union since the Union by it conduct appears to have approved,
ratified, and/or acquiesced in the charges and the bearing herein. Paustoar
Bri Conmany, 223 NLRB 451, 453 (1976). Sec. 102.9 of the Board's
Rules and Regulations and Statements of Procedures provide: WLo May
Fik: Charge may be filed by any person or labor organization. Does not
have to be an "aggrieved" person. Bmp8l Engrring Comny, 94 NLRB
719 (1951); McComb Manofauing Company, 95 NLRB 596 (1951})
Kaas Milling Ca v. N.L.R, 185 F.2d 413 (10th Cir. 1950).
1078
KAY FRIES, INC.
The amended complaint in substance alleges that Re-
spondent warned and advised its employees to refrain
from filing grievances with the Union until they sought
its permission to do so, in violation of Section 8(aXl) of
the Act; that Respondent threatened an employee union
agent (responsible for processing grievances) with a law-
suit or with discharging him if he continued to file griev-
ances, in violation of Section 8(aXl), or file a charge
with the Board in violation of Section 8(aXl) and (4) of
the Act; that Respondent unilaterally changed working
conditions by changing its bereavement policy, in viola-
tion of Section 8(aXI) of the Act; that by changing such
bereavement policy without giving notice to or affording
the Union an opportunity to negotiate and bargain with
it on the change, Respondent violated Section 8(aXS) of
the Act; that by discharging, and since thereafter failing
and refusing to reinstate, the union agent employee it dis-
charged, Respondent violated Section 8(aX3) and (1) of
the Act; and by refusing the discharged union agent
access to its facility for the purpose of processing and
adjusting employee grievances, Respondent violated its
union contract and Section 8(aX1) of the Act.
Respondent timely filed an answer and an amended
answer denying that it has engaged in any unfair labor
practices as alleged in the amended complaint, and al-
leged five affirmative defenses set forth as follows:
SECOND AFFIRMATIVE DEFENSE
The Complaint is barred by Section 10(b) of the
Act.
THIRD AFFIRMATIVE DEFENSE
The Complaint's allegations extend beyond mat-
ters encompassed by the underlying charge.
FOURTH AFFIRMATIVE DEFENSE
The charging party, an individual (Donald Mau-
rice), is without capacity to allege a violation of
Section 8(aXS) of the Act.
FIFTH AFFIRMATIVE DEFENSE
Donald Maurice was discharged for cause.
SIXTH AFFIRMATIVE DEFENSE
The matters complained of in the Complaint are
within the scope of the grievance and arbitration
provisions of the current collective bargaining
agreement between Respondent and Union; the
General Counsel and the Board should defer to
those contract procedures.
A hearing in the above matter was held before me in
New York, New York, on July 27, 28, and 29, August
31, and September I and 2, 1981. Briefs have been re-
ceived from counsel for the General Counsel and counsel
for Respondent, respectively, which have been carefully
considered.
Upon the entire record in the case and from my obser-
vation of the witnesses, I hereby make the following:
FINDINGS OF FACT
1. JURISDICTION
Respondent is now, and has been at all times material
herein, a New York corporation, with an office and
place of business in Stony Point, New York, herein
called its facility, where it has been engaged in the man-
ufacture and nonretail sale of organic chemicals.
In the course and conduct of its business operations,
Respondent annually sells and ships from its facility
products, goods, and materials valued in excess of
S50,000 directly to points outside the State of New York.
The complaint alleges, the answer admits, and I find
that Respondent is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The complaint alleges, the answer admits, and I find
that International Chemical Workers Union, Local 677,
AFL-CIO, herein called the Union, is now and has been
at all times material herein, a labor organization within
the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background Facts
Kay Fries, Inc., the Respondent herein, is engaged in
the manufacture and nonretail sale of organic chemicals
at its Stony Point, New York, facility. At the hearing,
the parties stipulated that at all times material herein the
following named persons occupied the positions follow-
ing their respective names, and are now, and have been
at all times material herein, supervisors within the mean-
ing of Section 2(11) of the Act, and are agents of Re-
spondent, acting on its behalf: Joseph Wasilewski, per-
sonnel director since August 11, 1980; Jeff Beattie,
former personnel director until August 11, 1980; Robert
Gaines, supervisor; William Bicknell, supervisor; Richard
M. Brooks, supervisor; Don Schickle, supervisor; Dave
Colvin, plant manager; Peter Dapas, production man-
ager; Steve Bierman, supervisor; Robert O'Neil, supervi-
sor.
It is undisputed that Respondent had very poor labor
management relations in 1980 and that it hired Personnel
Director Wasilewski for the purpose of improving such
relations. The record undisputedly shows that Rosalie
Barbera was personnel assistant under the supervision of
Wasilewski.
The following personnel constitute an appropriate unit
for purposes of collective bargaining within the meaning
of Section 9(b) of the Act:
All analytical laboratory technicians, maintenance,
shipping, receiving, and production employees em-
ployed at Respondent's Stony Point, New York, fa-
cility, excluding executives, superintendents, assist-
ant superintendents, supervisors, assistant supervi-
sors, foremen, chemist, engineers, technical appren-
tices, research assistant, plant stenographers and
typist, office employees, and timekeepers, and su-
pervisors as defined in Section 2(11) of the Act.
1079
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
At all times material herein, the Union has been the
designated and exclusive collective-bargaining repre-
sentative of Respondent's employees in the above-de-
scribed unit, and during that time it has been recognized
as such by Respondent. Moreover, Respondent and the
Union have executed successive collective-bargaining
agreements, the most recent of which is effective by its
terms for the period December 17, 1979, to December
17, 1982.2
B. Respondent's Labor Relations and the Union
Activity of Donald (Don) Maurice
The record contains considerable undisputed and cred-
ited testimony that Respondent and the Union have had
turbulent labor relations, with numerous (three to four
hundred, plus) grievances having been filed between Oc-
tober 1977 and September 1980. Respondent's approxi-
mately 140 employees are represented by Local 677, and
the entire unit struck and maintained an around-the-clock
picket line at the plant from June through December
1979. About 20 employees were arrested on various
days, including Donald (Don) Maurice, union grievance
chairman, who was arrested twice for disorderly con-
duct. The parties (Respondent and the Union) neverthe-
less entered into an amnesty agreement on December 17,
1979, with respect to the strikers, and executed a collec-
tive-bargaining agreement, effective December 17, 1979,
through December 17, 1982.
The record shows that on October 8, 1979, the follow-
ing union persons were elected to the offices following
their respective names, until November 1981: David
(Dave) Paul, president; James Bosico, vice president; K.
Rodney, recording secretary; Frank Curtain, financial
secretary; James Lovell, guide; George Reeves, sergeant-
at-arms; and L. P. Picarello, Richard Seminatra, and L.
Edwards, trustees.
Donald Maurice, who had previously served as griev-
ance chairman, was elected to a second term for the
period October 1979 through November 1981. From
July through December 1979, Maurice also served on
the negotiating committee. He also served as strike cap-
tain during the strike, at which time he was present on
the picket line daily.
The record further shows that during the period of
January through March 1980, four grievances were filed
by Richard Seminatra, mostly relating to safety factors.
Grievance Chairman Donald Maurice testified with gross
uncertainty (as is largely shown on the record) as to the
date on which he met with former Personnel Director
Jeff Beattie, Union President Dave Paul, and Union Vice
President James Bosico. During the meeting, which
Maurice finally said, after considerable questions by re-
spective counsel and the bench, occurred in March or
April 1980, and that Beattie warned himself, Paul, and
Bosico, "that if Mr. Seminatra didn't stop putting these
grievances in, there was no room in the company for him
and they would have to let him go, and we should talk to
Mr. Seminatra about his processing grievances. " s
I The facts set forth above are undisputed and are not in conflict in the
record.
I Although Beattie is no longer in Respondent's employ and did not
appear and testify or deny the above statement, neither is the unspecific
Since the credited evidence fails to establish that the
above alleged 8(aXl) statement was made by former Di-
rector Beattie on a date subsequent to April 1, 1980, or
that such statement and attitude continued well beyond
April 1, into the 10(b) period (the charges herein having
been filed on October 1, 1980, and November 21, 1980,
respectively), the allegation clearly appears to be barred
by Section 10(b) of the Act. Marvex Processing & Finish-
ing Corp., 229 NLRB 188 (1977). Consequently, I find
that the allegation set forth in paragraph 11 of the
amended complaint is barred by Section 10(b) of the
Act, and the same hereby is dismissed.
In May 1980, Respondent arranged for all of its em-
ployees to undergo a required physical examination by a
physician at the expense of the Company. The examina-
tions were conducted in a medical trailer on or near the
premises of Respondent. On May 21, employees, includ-
ing employee Darryl Thaler, reported for examination.
During the course of the examinations, Thaler observed
that the doctor dipped his fingers in alcohol after exam-
ining each employee without washing his hands. Thaler
left the trailer and filed a grievance (G.C. Exh. 9) which
stated:
In undergoing required physical examination by
company doctor, that said doctor in examining gen-
tilia for hernia, passed from person to person (4-5
prior) without washing his hands before examining
me. Common sense & good medical practice should
have been exercised by doctor, who must be aware
of possible germ transmittal from his carelessness.
Such activity by a doctor can only be used as a
point that company physicals are being used to de-
humanize those examined under the guise of
benevolent caring for health.
Two days later, on May 23, Thaler met Union Presi-
dent Dave Paul outside one of the plants. Paul told
Thaler (not admitted for the truth) that he was returning
from a meeting with former Personnel Director Beattie
and former Safety Administrator Joseph Dick, and "Re-
spondent was considering suing him [Thaler] for slander"
regarding the contents of his recently filed grievance.
On Monday, May 26, Supervisor William Bicknell di-
rected Thaler to go to the office of Director Beattie.
When Thaler arrived, Paul was present and Beattie told
Thaler his "grievance was uncalled for, it was a vicious
attack against our company doctor and they were slan-
derous remarks." Thaler tried to discuss the matter but
Beattie told him Respondent was going to turn the written
grievance over to the company doctorfor his legal action.
date (March or April 1980) on which Maurice said the Itatement was
made, corroborated by the testimony of Paul, who was present during
the conversation, or Bosico, who was also present but did not appear and
testify herein. Hence, I do not credit Maurice's testimonial date of the
conversation not only because I was persuaded by his groa uncertainty
in stating possibly December 1979, January 1980, and finally March or
April 1980, but also because his testimony is uncorroborated and a more
accurate date on which the conversation occurred is crucial to Respond-
ent's atarmative defense (Sec. 10(b) of the Act). Moreover, this resolution
is particularly supported, when it is noted that Maurice is the sole alleged
discriminatee herein. His testimonial uncertainty in this regard is self-
serving.
1080
KAY FRIES, INC.
Subsequently, in June, Thaler received a written warn-
ing as follows:
You are being issued this written warning be-
cause you directed false, vicious and slanderous ac-
cusations toward our company doctor. The griev-
ance procedure will not be allowed to be used in a
pretentious manner that attacks people instead of
problems. (G.C. Exh. 8.) 4
In reference to the above-cited evidence, paragraph 10
of the amended complaint herein alleges that "on or
about June 2, 1980, Respondent, acting through Jeff
Beattie, at its facility, threatened its employees with law-
suits if they filed a grievance with the Union." An exam-
ination of employee Thaler's grievance described above
clearly reveals that the essence of his complaint was con-
cern for sanitary practices of the Company's examining
physician, more specifically, the cleanliness of his hands
while employees undergo mandatory physical examina-
tion.
Although Thaler's grievance may be considered draft-
ed in "hard language," so to speak, I do not believe that
fact can be said to diminish its genuineness, or that the
language is so far off color as to have been maliciously
motivated. The latter conclusion is particularly true
when it is kept in mind that the history of the relations
between the parties (Respondent and the Union) in the
plant has been unequivocally negative. Under these cir-
cumstances, I find that the substance of Thaler's griev-
ance was related to sanitation and safe health procedures,
which affect all employees. The evidence does not show
that other employees did not share the same concerns.
Such concerns certainly and clearly fall within the net of
protected concerted activity. Wolverine World Wide, Inc.,
243 NLRB 425, 431-432 (1979), and Razco, Inc., d/b/a
Hit'N Run Food Store, 231 NLRB 660, 675 (1977).
A literal reading of the language of Thaler's grievance
demonstrates that it was initiated on behalf of Thaler and
fellow employees, and not solely on his individual behalf,
since all employees stood to benefit from procedures
which would enhance sanitation and safe health. This is
so, notwithstanding the validity or invalidity of Thaler's
conclusions. Alleluia Cushion Coa, Inc., 221 NLRB 999
(1975).
I therefore conclude and find that by suggesting or ad-
vising employee Thaler in the meeting of May 26, and
thereafter issuing a written warning to him on or about
June 2, that his grievance was uncalled for and Respond-
ent was giving it to its physician to institute legal action
against Thaler for filing such grievance, Respondent
threatened, coerced, and restrained its employees in the
exercise of their Section 7 rights, in violation of Section
8(aXl) of the Act. Wolverine World Wide, Inc., and
Razco, Inc., supra
The contract between the parties provides as follows:
' Although Paul did not corroborate Thaler's testimony with respect
to the Beattie-Thaler conversation on May 26, 1980, the above warning
(O.C. Exh. 8) supports Thaler's testimony. I therefore credit Thaler's ac-
count of the conversation because I was also persuaded by his demeanor
that he was testifying truthfully.
ARTICLE VIII-SETTLEMENT OF GRIEVANCES
A. Should any difference arise between the Compa-
ny and the Union or between the Company and an
employee, the matter will be settled in the following
manner.
Subdivisions under the above article provide for
procedural steps in processing a grievance. Howev-
er, the above quoted language clearly provides that
the subject of a grievance may be any difference
which arise between the Company and the Union,
or between the Company and an employee. Conse-
quently, the contract between the parties does not
specify or limit the subjects of a grievance. Under
these circumstances, I find the above general lan-
guage broad enough to include the subject matter of
Thaler's grievance, and that said grievance is not
restricted or excluded from the grievance process
by construction of the contract.
C. Respondent's Bereavement Policy and its Change in
the Procedure for Qualifying for Benefits Thereunder
The following provision of the current contract (effec-
tive December '17, 1979-December 17, 1982) between
the parties was discussed during negotiation sessions held
May through December 1979:
ARTICLE XIX-DEATH IN FAMILY
In the event of death of a member of his immediate
family, an employee will receive time off with pay
within a seven (7) day period following the death
for a period of three (3) days.
Immediate family is defined as grandfather, grand-
mother, father, mother, brother, sister, stepfather,
stepmother, stepsister, husband, wife, child, father-
in-law and mother-in-law.
An employee will receive time off with pay for one
(1) day to attend the funeral of a brother-in-law,
sister-in-law, aunt and uncle.
During negotiations for the current contract, the par-
ties did not discuss or agree upon a procedure to be fol-
lowed by employees in qualifying for bereavement pay
under the above provision. Nevertheless, prior to August
22, 1980, the practice or procedure used by employees
and accepted by Respondent in applying for bereave-
ment leave, was the employee simply notifying his imme-
diate supervisor of the number of days he would be
absent from work, or his leaving a message to that effect
on the answering service. The supervisor would certify
his approval to the payroll department and the employee
would be paid. Submission of proof of death and rela-
tionship was not required.
However, as early as 1974, employee McMillan was
discharged by Respondent for submitting false informa-
tion to verify death and relationship to receive bereave-
ment payment. In March 1980, employee Cavezzi was
suspended for 3 days for falsifying evidence of death (of
1081
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
his grandmother, when in fact it was his wife's grand-
mother) and accepting payment for bereavement leave
under the death and family provision. Several months
later (early August 1980) the Singh Brothers individual-
ly, and on different dates, applied for death leave to
attend the same uncle's funeral on different dates, a week
apart. When Production Manager Dapas demanded
proof of death, proof was submitted confirming only the
death of the uncle which occurred on a date different
from the dates alleged by each of the brothers.
On August 11, 1980, Joseph Wasilewski commenced
his employment as personnel director with Respondent.
He was immediately advised by Production Manager
Peter Dapas that he would have to tighten up on the
procedure for employees qualifying for the contract
death-leave benefit as a result to several abuses thereof
by employees. In mid-September Wasilewski told Union
President Dave Paul about the employees abusing the
death leave provision and Paul, who was aware of some
of the abuses, agreed to discuss the matter with Wasi-
lewski at a convenient time. Notwithstanding, without
any further discussion, Personal Director Wasilewski
commenced enforcing the proof rule in early September
1980 and continued to do so until November 1980; as fol-
lows:
Effective immediately all requests for "Death in
Family" payments must be approved by Personnel
prior to submission to payroll.
In order to receive such approval the affected em-
ployee must provide acceptable evidence that a
death in family had indeed occurred, and evidence
of the employees' relationship with the deceased.
(G.C. Exh. 7.)
Wasilewski promulgated the above requirement for
proof but did not specify what kinds of proof would be
acceptable to Respondent. A copy of the above provi-
sion was transmitted to all supervisors but not to em-
ployees. Wasilewski contended he forwarded an informal
copy to the Union, which Union President Paul denied
the Union received. Wasilewski delegated the responsi-
bility of formulating the kinds of proof and processing
claims for death-leave benefit to his personnel assistant,
Rosalie Barbera. Within a period of a week or two, re-
quests for death-leave benefits were made by employees
McGilvary, John Sleight, John Lovell, and Judson, all of
whose requests were substantiated by obituaries which
were either in the local or foreign newspapers. Payments
were made thereupon I or 2 weeks or more subsequent
to their request. However, McGilvary filed a grievance
on September 5, 1980, because of the delay in payment
pending verification of proof. On September 6, 1980,
Sleight filed a grievance claiming that Respondent's
proof requirement inferred that he was lying about the
need for such death leave. Grievance Chairman Maurice
processed both grievances in mid-September 1980, and I
therefore find that Maurice knew about the proof re-
quirement as of that time, even though the record does
not show that he demanded Respondent to bargain with
the Union thereon.
The foregoing undisputed and hereunder credited evi-
dence of record established the following facts:
(a) In a memorandum (G.C. Exh. 7) dated
August 22, 1980, Respondent (Wasilewski) unilater-
ally changed its policy for employees qualifying for
bereavement leave pay. A copy of the memoran-
dum was distributed to all supervisors but not to the
employees.
(b) The former policy for bereavement leave
simply required employees to notify their immediate
supervisor of the death and the days they would be
absent, or to call the company's answering service
and leave a message to that effect.
(c) The new proof requirement instituted on
August 22, 1980, required the employees to provide
proof (mostly documentary copy of obituary) of
death and the employee's relationship to the de-
ceased, prior to being paid for such leave.
(d) Although Respondent (Wasilewski) contends
it sent an informal copy of its memorandum (G.C.
Exh. 7) to the Union, the Union (President Dave
Paul) denied having received a copy thereof. Since
Respondent was unable to substantiate that it trans-
mitted, or that the Union received, a copy of its
memorandum, I credit the Union's denial and find,
that Respondent did not notify the Union of its
changed policy (G.C. Exh. 7) requiring proof of
death and relationship for death leave benefits.
(e) Under the credited facts, the Union (Donald
Maurice) first acquired actual and unequivocal
knowledge of Respondent's unilaterally instituted
proof of death rule on September 16, 1980, when
John Sleight's grievance was filed and Grievance
Chairman Donald Maurice processed both Roland
Singh's and Sleight's grievances with Respondent's
Personnel Director Joseph Wasilewski. This meet-
ing occurred only six working days prior to the dis-
charge of Maurice on September 24, 1980, infra.
(f) According to the undisputed and credited tes-
timony of Wasilewski, Wasilewski mentioned the
problem of employee abuses of death leave during
an informal conversation with Union President
Dave Paul in early September and again, on Sep-
tember 19, 1980. When Wasilewski told Paul that
Respondent was requiring proof of death and rela-
tionship, Paul said it was unfair to group the good
employees with the "bad apples" (employees who
abused death leave). Wasilewski offered to discuss
alternative procedures with Paul and Paul suggested
that they do so at the next third level grievance
meeting scheduled for September 29, 1980.
(g) At the time Maurice (the Union) first learned
on September 16, 1980, that Respondent was en-
forcing a unilaterally promulgated proof of death
rule of which neither the Union nor the employees
had been notified, Wasilewski told Maurice the new
proof procedure was designed to deter fraud and
centralize approval of death leave authority in the
Personnel Director. Maurice did not request Re-
spondent to bargain on the rule at any time prior or
subsequent to his discharge on September 24, 1980.
1082
KAY FRIES, INC.
(h) Two days later, September 18, Maurice ad-
vised his supervisor, Dave Colvin, that he would be
attending the funeral of an uncle on the following
day, September 19, and he did not know whether or
not he would furnish proof of death. He said,
maybe they could straighten out this proof of death
matter. Supervisor Colvin said Maurice warned him
that "he didn't want to hear any shit about bringing
in proof." I credit Colvin's testimony in this regard
because it is consistent with other credited state-
ments by Maurice. Maurice was in fact absent on
Friday, September 19, and when he returned to
work on Monday, September 22, he gave Supervi-
sor Richie Brooks a funeral prayer card (G.C. Exh.
12) but was later notified by personnel (Rosalie Bar-
bera) that the prayer card was insufficient as proof
of death; and that a copy of the obituary was
needed to establish his relation to the deceased.
(i) Union Executive Board Member John Lovell
testified he believed he saw a copy of Respondent's
proof of death memorandum (G.C. Exh. 7) on the
bulletin board on or after August 22, 1980, but he
was not sure. I do not credit Lovell's testimony as
to the date he saw the memo because, not only was
he not sure where and when he saw the memoran-
dum, if in fact he saw it at all, but he also said he
did not mention the memo's existence nor its con-
tents to any union member or agent. Consequently,
I find that Lovell (the Union) had knowledge of
Respondent's unilaterally instituted proof of death
rule at the time Maurice acquired knowledge there-
of on September 16, 1980.
(j) International Representative Robert Meade
testified, and I credit his essentially undisputed ac-
count, that he called Wasilewski on September 24
or 25 and told him that Respondent could not
change the funeral leave policy without negotiating
with the Union. Wasilewski said he did not think
the Company was changing anything and refused to
discuss it further. On September 29, when he said
he would have to grieve the matter, Wasilewski
said, "do what you've got to do." He told Wasi-
lewski there will be many grievances filed with the
attitude of the Company. Thereafter he grieved the
funeral leave policy. The record does not show that
Meade ever unequivocally requested or demanded
Respondent to bargain on the proof rule, even as
late as the September 29 grievance meeting.
(k) Union President Dave Paul did not request
Respondent to bargain on the required proof rule
prior to his meeting with Wasilewski on September
29. Wasilewski had already suggested discussing al-
ternatives for his proof rule and the evidence clear-
ly indicates that Paul had reasonable grounds for
knowing that the proof rule was in effect. In any
event, the evidence does not show that Paul in any
way indicated that the Union requested bargaining
on the rule.
(1). Employee Darryl Thaler testified that he took
one day's death leave in October 1980. When he re-
turned to work his supervisor asked him for proof
of death. Several days later, he presented his super-
visor with a newspaper clipping regarding the death
and the supervisor told him it was not necessary.
About 30 days later, employee Walter Luther took
i day's death leave. Luther testified that when he
returned to work he was not asked for proof but he
voluntarily submitted an obituary to his supervisor,
Bicknell, who asked, "what's that for?"
I credit the testimonial accounts of Thaler and
Luther, not only because I was persuaded by their
demeanor that they were testifying truthfully, but
particularly, because Thaler's version is essentially
undenied and Luther's is essentially consistent with
Thaler's with respect to uniform enforcement, even
though Luther had some problem recalling the pre-
cise time of the conversation.
(m) The change instituted in Respondent's policy
(G.C. Exh. 7) is a significant change which affects
the terms and conditions of employment of the em-
ployees, as is more fully explained, infra.
(n) Neither the management-rights clause, nor the
zipper clause of the contract, contains language
which may be reasonably construed as the Union
having expressly waived its right to bargain on uni-
laterally promulgated work rules, which affects
terms and conditions of employment.
(o) Maurice did not formally protest Respond-
ent's unilateral action during the grievance meeting
on September 16, but he did take issue with the
equity of Respondent's proof rule. However, the
record does not contain any evidence that Maurice
or the Union ever advised or suggested that the
Union waived its right to bargain on the proof rule,
or that it in fact requested Respondent to bargain
on the newly instituted proof of death rule.
(p) On November 16, 1980, Respondent's August
22 proof requirement was superceded by a written
agreement between Respondent and the Union,
which in part, provided as follows: "It is not neces-
sary for employees suffering a death in family to
routinely provide evidence of such deaths."
(q) By unilaterally instituting its "proof of death
and relation" policy, without notifying or consult-
ing with the Union, Respondent did fail to bargain
collectively with the Union. Schrajff's Candy Com-
pany, 244 NLRB 581, 583-584 (1979); Interstate
Transport Security/Division of PJR Enterprise Inc,
240 NLRB 274, 279 (1979); Womack Industries, Inc,
238 NLRB 43 (1978).
In Schraff's Candy, supra, the employer had a long-
standing practice of posting prospective work rules on
the bulletin board for employee feedback before imple-
menting the rules. Employees dissatisfied with the rules
would bring their dissatisfaction to the attention of man-
agement and there would be a give-and-take spirit of col-
lective bargaining. Suddenly, the employer unilaterally
posted and implemented what it labeled "New Company
Rules and Regulations," which changed and altered
longstanding practices affecting wages, hours, and work-
ing conditions. The employer contended it made the
changes pursuant to the management-rights clause in the
contract. The Board affirmed the Administrative Law
1083
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Judge's decision, which held such changes were bargain-
able, and, having been implemented without notification
or consultation with the union, were in violation of Sec-
tion 8(a)(1) and (5) of the Act. He held the union did not
waive its right to bargain in the management-rights
clause of the contract.
In Interstate Transport Security, supra, the employer
had a loose sick leave reporting system wherein employ-
ees simply reported illness-related absences to their su-
pervisor. After the election, the employer informed em-
ployees "that it was now company policy to require a
doctor's certificate for even I day of sick leave," and
that there would be "no more free time off" for "illness-
related absences." The Board affirmed the Administra-
tive Law Judge's decision that the sick leave policy
change of employer violated Section 8(a)(5) and (1) of
the Act.
Perhaps even more like here, the employer in Womack
Industries supra, unilaterally instituted a requirement that
employees furnish a doctor's excuse for absences from
work due to illness. The Administrative Law Judge
found that the change fell within the exercise of general
supervisory function necessary for the day-to-day main-
tenance of discipline, thereby removing it from the cate-
gory of mandatory subjects of collective bargaining. Ac-
cordingly, he dismissed the allegation as set forth in the
complaint. In reversing the dismissal of the Administra-
tive Law Judge, the Board said:
Mandatory subjects of bargaining are those
which set a term or condition of employment or
regulate the relation between the employer and em-
ployee. Plant rules clearly affect conditions of em-
ployment and are mandatory subjects of collective
bargaining. Thus, we have held that the initiation of
new and more stringent rules with respect to absen-
teeism which represent a significant change from
prior practice without consulting or bargaining with
the union violates Section 8(aX5) and (1) of the Act.
Here, the record shows that the Respondent's ab-
sentee policy was initiated in May and represented a
significant change from its prior practice of not requir-
ing written documentation from a physician for all ab-
sences due to illness. By implementing this change
without consulting or bargaining with the Union,
the Respondent violated Section 8(a)(5) and (1) of
the Act. [Emphasis supplied.]
Based upon the foregoing credited facts, reasons, and
legal authority cited herein, I conclude and find that Re-
spondent unilaterally changed its policy for employees
qualifying for bereavement leave pay, without notifying
or consulting with the Union. By doing so, Respondent
did fail and refuse to bargain collectively with the
Union, the duly authorized representative of its employ-
ees.
Counsel for Respondent argues that Respondent (Wa-
silewski) unilaterally instituted its new proof requirement
rule (G.C. Exh. 7) pursuant to article IIC and article
IIID of the collective-bargaining agreement (G.C. Exh.
6) between the parties.
Specifically, the above-cited articles provide as rele-
vant herein, as follows:
IIC. The Union recognizes the rights to manage are
vested exclusively in the Company. This includes
the right to promulgate work rules and regulations.
IIID. It is the intent of the parties hereto that the
provisions of this agreement, which supercedes all
prior agreements and understandings, oral or writ-
ten, expressed or implied, between such parties,
shall govern their entire relationship and shall be the
sole source of any and all rights or claims which either
party may assert against the other in arbitration here-
under, or otherwise. The provisions of this Agreement
can be amended, supplemented, rescinded, or otherwise
altered only by mutual agreement in writing hereafter
signed by the parties hereto. [Emphasis supplied.]
Counsel for Respondent further argues that Respond-
ent's new proof rule does not in any way alter the lan-
guage or the substance of its bereavement policy set
forth in article XIX of the contract, and that since the
contract contains the above-described management-rights
clause (art. IIC) which, when read with the zipper clause
in article IIID of the contract, shows that the Union ex-
pressly waived its right to bargain on "work rules" and
the subject proof rule herein. In support of its argument,
Respondent cites Leroy Machine Co., Inc., 147 NLRB
1431 (1964), where an employer unilaterally instituted a
rule requiring employees with records of excessive ab-
senteeism to submit to physical examination by a physi-
cian of their choice, at the expense of the employer. Re-
fusal to submit to such examination was grounds for dis-
cipline. The Board held that since the management
agreement between the parties conferred on the employ-
er the right to determine the "qualifications of employ-
ees," the plain meaning of such language did encompass
physical examinations. Consequently, such language re-
moved the subject physical examinations from the scope
of collective-bargaining during the term of the contract.
Here, as distinguished from the contract in Leroy Ma-
chine, supra, the language of the management-rights
clause does not specifically address the subject of re-
quired proof for entitlement to family death leave bene-
fits. Nor was the subject of such proof discussed during
contract negotiations when the family death provision
was adopted by the parties. The contract does not dis-
cuss employee-proof in relation to "personal and sick-
ness" days under article XXIII. There, in fact, the con-
tract specifically provides that contractual absences such
as holidays, vacation, personal days, bereavement time,
etc., are not subject to disciplinary action.
Although withholding pay for bereavement leave may
not constitute disciplinary action, it certainly does affect
the compensation rights of employees and therefore af-
fects the terms and conditions of employment. Conse-
quently, in the absence of such specificity in the con-
tract, I find that neither the management-rights clause
nor the zipper clause of the contract herein, constituted
an expressed or an implied waiver by the Union of its
1084
KAY FRIES, INC.
statutory right to bargain on the subject "proof rule."
Pepsi-Cola Distributing Company of Knoxville Tennessee,
Inc., 241 NLRB 869, 870 (1979), enfd. 646 F.2d 1173 (6th
Cir. 1981).
Although the employer in Pepsi-Cola Distributing was
a successor employer, it nevertheless unilaterally discon-
tinued its predecessor's practice of annually paying its
route salesmen a bonus of I percent per case of Pepsi-
Cola, upon its asserted right to do so pursuant to the
management-rights clause of the contract. In holding that
the Union's right to bargain on the subject was not
waived by the language in the management-rights clause
of the contract, the Board said:
The law is settled that the right to be consulted
concerning unilateral changes in terms of employ-
ment is a right given by statute and not one ob-
tained by contract and that, in order to establish a
waiver of a statutory right, there must be a showing
of a clear relinquishment of the right. Whether
there has been a clear relinquishment of the right is
to be decided on the facts and circumstances sur-
rounding the making of the contract. Having con-
sidered all the circumstances herein, we conclude
that there has been no showing that the Union relin-
quished its statutory right to bargain over the year
end bonus.
On the basis of the foregoing, we find that the
Union has not clearly and unmistakably waived its
right to be consulted with regard to any change in
this condition of employment. Inasmuch as a waiver
is not lightly inferred, we conclude that, in the cir-
cumstances herein, there was no waiver by the
Union, and Respondent should have bargained with
the Union prior to discontinuing its predecessor's
established practice of paying the year end bonus to
its route salesmen.
Respondent further argues that in the past (1977), Re-
spondent unilaterally promulgated and instituted shop
rules, which included a prohibition against falsifying
work records or failing to furnish required record infor-
mation; that in 1980 Respondent unilaterally promulgated
additional rules and regulations including a prohibition
against falsifying work records; that in February 1980
Respondent unilaterally promulgated a rule requiring em-
ployees to provide it with their home telephone number,
so as to enable Respondent to have immediate access to
them should such necessity occur; and that in neither
event did Respondent bargain with the Union. Nor were
any of the prior unilaterally promulgated rules subse-
quently rescinded by Respondent.
Respondent's argument seems to suggest that the
Union's silence or ultimate acquiescence in Respondent's
past enumerated unilateral actions established a prece-
dent wherein the Union, for all times and purposes,
waived its right to protest and bargain on all unilateral
actions. Such a proposition is untenable, however, since
the courts and the Board have repeatedly held to the
contrary. Specifically, in N.LR.B. v. Miller Brewing
Company, 408 F.2d 12, 15 (9th Cir. 1969), the court held,
as pertinent herein, as follows:
Each time the bargainable incident occurs-each
time new rules are issued-Union has the election
of requesting negotiations or not. An opportunity
once rejected does not result in permanent "close-
out"; as in contract law, an offer once declined but
then remade can be subsequently accepted.
Additionally, in Boland Marine and Manufacturing
Company, Inc., 225 NLRB 824, 829 (1976), the Board,
citing N.L.R.B. v. Miller Brewing Company, supra, said:
[A] union does not waive its right to bargain over
rules by its conduct in acquiescencing in the em-
ployer's promulgation of rules in the past.
Counsel for Respondent also argues that Respondent's
new proof of death rule is a rule of procedure, as op-
posed to a rule of substance to which no disciplinary
action was tied. While it is true no disciplinary sanction
was appended to Respondent's new proof rule, enforce-
ment of the rule for failure to comply therewith would
nonetheless result in nonpayment of the death leave
benefit provided for under the substantive provision of
article XIX of the collective-bargaining agreement.
Under these circumstances, it cannot be rationally argued
that, in operation, Respondent's new proof rule, which is
also vague as to kinds of proof required, does not impose a
more onerous burden upon employees to prove death
and relationship to the deceased, especially at a time
when the employee is in a state of bereavement. As such,
the rule has a character of substance because it affects
the terms and conditions of employment (proof of death
and relationship, or pay is withheld), and is therefore a
proper subject for bargaining. Schrafft's Candy Company.
supra, and Womac Industries, supra.
Moreover, as counsel for the General Counsel points
out in Murphy Diesel Company, 184 NLRB 757 (1970),
there, very much like here, the employer had an informal
procedure for employees to report when they would be
absent. Without notifying or consulting with the Union,
the employer unilaterally posted a notice requiring em-
ployees to present proof or information concerning their
absence to their foreman upon their return for his consid-
eration. The Board affirmed the trial examiner's findings,
who said:
Plant rules, particularly where penalties are pre-
scribed for their violation, clearly affect conditions
of employment and are mandatory subjects of col-
lective bargaining. When, therefore, Respondent on
August 15, 1969, posted work rules governing em-
ployees absenteeism and tardiness, admittedly with-
out prior notice and bargaining with the Union, it
violated the Act unless the posting was a mere
statement of existing rules or unless the Union had
waived its right to bargain about the subject....
Id. at 762.
Finally, Respondent argues that even if its new proof
requirement is a rule of substance, the Union neverthe-
1085
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
less knew about the rule and failed to either protest or
request bargaining on the matter. By neglecting to do so,
Respondent argues, the Union waived its right to protest
and bargain on the subject.
In this regard, the evidence shows that Director Wasi-
lewski mentioned the new proof requirement to Union
President Paul in early September, and again on Septem-
ber 19. Precisely what Wasilewski said to Paul on both
occasions is not clear from the record. However, it is
clear that on September 19, Paul did understand that Re-
spondent was either contemplating instituting, or had in
fact unilaterally instituted its proof rule. It was at that
time that Paul said "It is unfair to group the good em-
ployees with the bad apples," and Wasilewski offered to
discuss alternatives. Paul said "yes," and suggested Sep-
tember 29. Wasilewski agreed to discuss the proof policy
on September 29. However, at no time did Paul express
a formal protest or requested Respondent to bargain on
the subject.
It is clear from the record evidence that Maurice had
actual knowledge of Respondent's proof policy on Sep-
tember 16, when he asked Wasilewski why was he treat-
ing grievant Sleight like a second class citizen when
Sleight had such a good work record. The record shows
that union executive Board Member Lovell knew about
Respondent's proof rule on or shortly before September
16, the precise time is not clear. However, Lovell did
not mention the existence nor the contents of the rule to
the Union or to management. Thus, at most, Paul's
above-described statement, and Maurice's above-de-
scribed question to Wasilewski might have suggested
they did not agree with the proof policy, and possibly
constituted a subtle protest. The record shows it was no
more than that, and neither Lovell, Paul, Maurice, nor
Meade at any time requested Respondent to bargain on
the new proof rule.
Under the above circumstances, I find that, although
the Union (Paul, Lovell, and Maurice) knew about Re-
spondent's unilaterally instituted proof policy on and
shortly before September 16, it did not timely protest
and/or request Respondent to bargain on the subject.
This includes the times during which Maurice held the
heated conversations with Wasilewski about the rule on
September 22, 1980. By failing to timely protest and re-
quest Respondent to bargain, the Union thereby waived
its right to bargain on the proof rule. The City Hospital of
East Liverpool, Ohio, 234 NLRB 58 (1978). See Clark-
wood Corporation, 233 NLRB 1172 (1977), where the em-
ployer unilaterally removed two pay telephones and
closed some restrooms and locker facilities. The union
had advance notice of these changes and only registered
a delayed protest. The Board, in reaffirming its position
in American Buslines; Inc., 164 NLRB 1055 (1967), said:
[T]hat a union which receives timely notice of a
change in conditions of employment must take ad-
vantage of that notice if it is to preserve its bargain-
ing rights and not be content in merely protesting
an employer's contemplated action. Such lack of
diligence by a union amounts to a waiver of its
right to bargain and that is precisely what occurred
here with respect to both the pay phone and res-
troom changes.
Also, in Cessna Aircraft Company, 172 NLRB 696, 707
(1968), the Board said:
. . .the union must do more [than merely object]; it
must "enforce its bargaining rights diligently by at-
tempting to persuade the Respondent to alter its de-
cision if it found the decision unacceptable." While
it is true that the Respondent indicated that its deci-
sion was not bargainable, this did not reflect, in the
context of all the facts and surrounding circum-
stances, an uncompromising attitude which fore-
closed bargaining .... Additionally, the Respond-
ent offered to discuss any problems or adverse ef-
fects that the Union foresaw would be created by
these changes.
I credit Meade's testimony that he talked to Wasi-
lewski on September 22 and 25 about his policy but I do
not credit his testimony that he at any time requested
Respondent to bargain on the subject.
Consequently, I find that Respondent's violation of
Section 8(a)(5) and (1) of the Act was waived by the
Union and therefore paragraphs 17, 18, and 22 of the
complaint are hereby dismissed.
D. Respondent's Discharge of Donald (Don) Maurice
As herein before established, Maurice was a very
active union adherent and grievance chairman. Since first
serving as grievance chairman in 1977, he has processed
300 or 400 grievances with Respondent. Neither the
Union's constitution nor the contract between it and Re-
spondent contained a written provision for a grievance
chairman as an officer of the Union. Nevertheless, the
Union has elected a grievance chairman since 1961, and
such chairman has adjusted grievances with Respondent
ever since. Highway and Local Motor Freight Employees
Local Union No. 667, et al. (Owens-Corning Fiberglass
Corporation), 228 NLRB 398 (1977), and Glaziers &
Glassworkers Local No. 513 (Linclay Corporation of Amer-
ica), 191 NLRB 461 (1971).
Director of Production David Colvin testified that on
or about September 17, he had a very brief conversation
with Maurice about the funeral leave policy. During
their conversation Maurice told him he did not want to
"hear any shit" about bringing in proof because he was
going on funeral leave on Friday, September 19, 1980,
which leave he did in fact take to attend the funeral of
an uncle.
A composite of the undisputed and credited testimony
shows that when Maurice returned to work on Monday,
September 22, Supervisor Richie Brooks approached him
in the shop and asked him for proof of death in the
family. Maurice handed Brooks a prayer card (G.C. Exh.
12) about 11:15 a.m. On that same morning, Supervisor
Brooks gave Maurice a letter (G.C. Exh. 13) from Direc-
tor of Personnel Joseph Wasilewski, advising as follows:
". .. The enclosed proof of death in family is not ac-
ceptable. A copy of the obituary is needed where it es-
tablishes your relation to the deceased."
1086
KAY FRIES, INC.
On September 22, Wasilewski's secretary, Rosalie Bar-
bera, showed Wasilewski Maurice's prayer card as proof
of death and told him she did not think it was sufficient.
Wasilewski agreed and advised her to return it to Mau-
rice, which she did. Wasilewski testified that about 11:15
a.m., he received a telephone call from Maurice, and
their conversation was as follows:
He called me on the phone and said, I got this
note that says that the prayer card wasn't good
enough as proof, and I said that's right; it's not.
That's not sufficient proof.
And he kind of said, well, what kind of proof do
I have to bring in?
I said, well, you could bring in an obituary.
And-actually, he said something much stronger
that that. He said, what the fuck must I do, and,
what kind of proof must I bring in, what kind of
fucking proof do you want.
And I said, well, you could bring in an obituary;
that would be helpful.
And he said-well, I don't know which preceded
which, but, in any event, he said that as far as he
was concerned the prayer card was proof enough and
that he wasn't going to bring in any additional proof.
And I said, well, if you don't bring any addition-
al proof in, you're not going to get paid. And he
said, what the fuck you mean, I'm not going to get
paid. He said, if I don't get paid there's going to be
fucking trouble in this plant.
I said, wait a minute, wait a minute, calm down,
calm down, take it easy. I said, don't get excited
about this. I said, I don't see any real problem about
your bringing in proof. I said, people have brought
in proof left and right here for the last month or
two. I said, what's the big deal with you. I said,
why don't you take it easy, see if you can bring in
your proof, and that will be the end of it. And he
said, we'll see. And at that the phone conversation
ended.
About an half hour later, Wasilewski testified Maurice
called him again and accused him of taking $80 out of
his pay. Before he could reply, Maurice said "well, you
know what, he said, fuck the $80; shove the $80 up your
fucking ass. " He also said he did not want the $80, that he
would get it back one way or the other, and that if he [Wa-
silewski] wanted cooperation, he was not going to get iffrom
him or the Union from then on. He told Maurice he was
abusing his position as grievance chairman and advised
him to utilize the grievance procedure. Maurice became
very angry and started raising his voice and using pro-
fane language, warning him that he was going to win this
thing; that he was not going to take "this fucking shit," ad-
vising that "I was going to be sorry I ever did that to
him" and that "I was going to see trouble and grievances at
the plant like I had never seen before. "
Maurice's testimonial version of the telephone conver-
sations is as follows:
I said if the company is willing to give me the
time off and pay my expenses I'll gladly go down
and get the birth certificate.
It was either the first or second meeting, I said to
him, what the fuck are you doing to people, Joe. I
said you're fucking with the employees I said when
they have a death benefit, a death in the family, you're
asking them for proof.
I said John Sleight you held back two days pay.
I says, what do you expect from people. I says, we
have-I says, you're unilaterally changing the con-
tract. The contract doesn't call for proof and all of
this
Maurice further testified that his second telephone
conversation with Wasilewski was as follows:
And I says, Joe, just what the fuck do you think
you're doing. I said, you're going to hold back a
day's pay on me. I says, you held back money on
John Sleight.
I says when I get my paycheck, I better have my
money in my paycheck. I says I'm going to the
Labor Board on it.
And he says don't be such a big fucking baby to me.
I blew my stack. And after that, I can't bring to
memory just what I said but I did blow my stack.5
According to the testimony of Managers William
Bicknell, Alfred Pellegrino, and Richard Brooks, they
overheard parts of Maurice's telephone conversations
with Wasilewski. Bicknell said he heard Maurice say
"don't fuck me around," "you want cooperation, you've
seen the last of cooperation." Pellegrino said he heard
Maurice say "Joe, I think you're fucking me around."
Brooks said he heard Maurice say "come on Joe, don't
fuck me around." Bicknell further testified that he has
never heard an employee tell a member of management
anything like "take the $80 and shove it up your ass." He
acknowledged that he used obscene language towards
' I credit the above testimonial account of Wasilewski, except for his
denial that he told Maurice "don't be such a big fucking baby," because
Maurice acknowledged he uttered most of the profanity and obscenities
attributed to him by Wasilewski. I was so persuaded by Maurice's candid
admission or failure to deny he uttered such language, that I believed him
when he said Wasilewski made the "big baby" statement. However,
while Maurice did not acknowledge making the "shove it" statement, he
nevertheless did not emphatically and convincingly deny making that
statement and uttering other obscenities attributed to him by Wasilewski,
Bicknell, Pellegrino, and Brooks. Maurice simply said, "I can't bring to
memory just what I said but I did blow my stack." I interpret Maurice's
latter statement to mean he probably did make the "shove it" statement.
Moreover, from my having observed the ease with which Maurice articu-
lated the foul and profane language while testifying herein, I was easily
persuaded that the "shove it" statement and the other obscene and pro-
fane language attributed to him, came from his smoking stack, since the
undeniable record evidence shows he was extremely angry during the
telephone conversations on September 20. 1 also credit Maurice's testimo-
ny and discredit Wasilewski's denial, that Maurice told him during the
telephone conversation that "he [Wsikewski] wsa unilaterally changing
the contract; that the contract does not call for proof and all of this." I
credit Maurice's version not only because I was persuaded by his demea-
nor that he was testifying truthfully in this regard, but also because his
statement about the contract is consistent with his experience as a griev-
ance chairman, and his participation on the negotiating committee where
he must have known that the proof requirement was not discussed. Final-
ly, the substance of the obscenities and profanity uttered by Maurice
during the telephone conversations with Wasilewski on September 22 is
corroborated in small part by Supervisors Bicknell, Pellegrino, and
Brooks, as hereafter shown.
1087
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Maurice and was called on the carpet by management
for doing so, but admitted he was not suspended, repri-
manded or had such warnings placed in his personnel file.
Bicknell told Wasilewski that he, Brooks, and Pellegrino
had overheard parts of Maurice's conversation as above
described. I find that Maurice did not tell Supervisor
Pellegrino or any other member of management that "all
supervisors suck." The latter statement, if made at all by
Maurice, was made in a private conversation with fellow
employees with Maurice not knowing that anyone from
management was present, as Pellegrino finally admitted.
After Bicknell informed Wasilewski that he, Brooks,
and Pellegrino had overheard Maurice's telephone con-
versation with him, Wasilewski called Manager Dave
Colvin and asked him to investigate the incident. He also
pulled Maurice's personnel ,file and found that it con-
tained two prior warnings, one for calling a member of
management (Joe Bick) a "Jew bastard"; and a second
warning for leaving the plant without authorization.
That is, his car was illegally parked on the plant's prem-
ises and he was directed by management to move it. In-
stead of moving it and returning to the shop, Maurice
drove out of the plant abandoning his job. Maurice's files
did not contain any other warnings which were not
agreed to be expunged from his file. Consequently, based
upon his examination of Maurice's personnel file and
learning what other managerial personnel overheard as
described-above, Wasilewski said he decided to discharge
Maurice for using foul and abusive language towards him;
and threatening Respondent by telling Manager Gaines, if
he did not get his money on Thursday, he was going to get
evil, which Maurice denied, and for telling himself (Wasi-
lewski) he was going to withhold cooperation of the Union
from the Company and make trouble in the plant. Maurice
was in fact discharged after the 4 o'clock meeting on
September 24.
Wasilewski acknowledged that he did not warn Mau-
rice about his telephone conversations on September 22,
nor on September 23 or 24. However, he noticed that on
September 22 Maurice filed approximately 20 more
grievances, which were more grievances than the Com-
pany ordinarily would have received the entire year.
It is nevertheless observed that the evidence does not
establish that any of the 20 grievances filed on Septem-
ber 22 were frivolous or personally filed on behalf of
Maurice. In the absence of such proof, it can be reason-
ably assumed that they were not filed on Maurice's
behalf and were not frivolous.
Based upon the foregoing credited testimony, I con-
clude and find that as a result of Wasilewski's rejection
of Maurice's evidence of proof (prayer card) of death
and relation, submitted pursuant to Respondent's unilat-
erally instituted "proof" rule, Maurice, in anger, initiated
the above-described September 22 telephone conversa-
tions. It is quite apparent from the conversations that
Maurice was primarily concerned with the impact of en-
forcement of the proof rule upon himself on that occa-
sion. However, it is also apparent from his questions and
statements, "what the fuck are you doing to people,
Joe," "you are fucking with the employees," "you are
unilaterally changing the contract," and "you withheld
two days pay from John Sleight," that Maurice was con-
cerned with the effect of enforcement of the proof rule
on fellow employees as well. It is therefore clear that
since Maurice was grievance chairman and was express-
ing concern about the proof rule on behalf of himself and
fellow employees, he was in fact concertedly protesting
the practicality, wisdom, and equity of the proof rule.
This is so even though Maurice's protest might have
been loud, discourteous, and uttered in some profane and
foul language.
The question raised by the above circumstances is
whether Maurice's telephone protest constituted protect-
ed concerted activity under the Act.
In this regard, it has been long settled by the Board
and the courts that concerted activity for the objectives
stated in Section 7 of the Act can be unprotected if it is
unlawful, violent, in breach of contract, or indefensible
because they demonstrate a lack of loyalty to the em-
ployer and deemed unnecessary to carry on the workers'
legitimate concerted activities. N.LR.B. v. Washington
Aluminum Company, Inc., 370 U.S. 9, 17 (1962). In such
situations the test seems to suggest that an accommoda-
tion must be sought between the "undisputed right of
self-organization assured to employees . . . and the
equally undisputed right of employers to maintain disci-
pline .... Opportunity to organize and proper disci-
pline are both essential elements in a balanced society."
Republic Aviation Corporation v. N.LR.B., 324 U.S. 793,
797-798 (1945).
The evidence is undisputed that Donald Maurice has
been a very active and diligent grievance chairman,
having processed some 300 to 400 grievances with Re-
spondent over the past 3-1/2 years. Maurice had proc-
essed two grievances under the proof rule on behalf of
two employees only 3 working days earlier. While he
had not filed a grievance or requested Respondent to
bargain on the matter, he was nevertheless protesting the
required proof, and, as such, was engaged in protected
concerted activity (the right to complain about the ambi-
guity, equity, and onerous effects of the rule).
Having found that Maurice was engaged in protected
concerted activity during his telephone conversations
with Wasilewski on September 22, the question remains as
to whether such activity became unprotected by Maurice's
use of any threatening, profane and obscene language while
talking with Director Wasilewski. Before analyzing this
question it is perhaps appropriate to point out here that
Board law has long recognized the fact that the use of
profane, obscene, and vulgar language is not uncommon
in the industrial sphere. Passaic Crushed Stone Company,
Inc., 206 NLRB 81, 85 (1973). There is no dispute herein
that Respondent is an industrial enterprise (factory) en-
gaged in the manufacture of organic chemicals. More-
over, the undisputed and credited testimony of Dave
Paul established that such profane and obscene language,
as used by Maurice, is heard daily in the plant. Employ-
ee Walter Luther undeniably heard employee Frank
Curtin state in a grievance meeting, in the presence of
Wasilewski and Manager Kay, that "we have to discuss
this goddamn contract and I am not going to take any of
your fucking bull shit"; and "that he was marrying this
Pollock bitch so he could beat her fucking ass."
1088
KAY FRIES, INC.
In a department meeting with Manager Steve Bierman,
Manager Frank Kay, and Director Joe Wasilewski,
Thaler undeniably heard Manager Maggio say, "I could
take this before any fucking lawyer and you guys would
lose and I would win"; and employee Bob Cronk said
upper management's opinion of them was that they were
a "bunch of fucking assholes." In a meeting with Man-
ager Frank Kay, John Lovell undeniably told Kay, "his
fucking head was in the air"; and Kay undeniably asked
him, "what the fuck he wanted him to do." During the
past 9 years only one employee was ever given a written
warning for telling Supervisor Brooks "to take his over-
time and shove it up his ass." No employee has been sus-
pended or discharged for using such foul language, prior to
the discharge of Maurice. I credit the account of Paul,
Luther, Thaler, and Lovell because their accounts are
consistent and I was persuaded by their demeanor that
they were testifying truthfully.
1. Discussion
With the above undisputed background in mind, it is
clear that the use of profane and foul language by and
among employees and members of management was
common in Respondent's plant. Nonetheless, it is particu-
larly observed that most of the foul words used by Mau-
rice were used as expletives and did not have an ethnic
or personal connotation, such as the employee calling a
supervisor a "mexican m- f-"; "taco vender"; and
"beaner," in Coors Container Company, 238 NLRB 1312
(1978); or as, when a supervisor asked an employee why
was he not at his machine, and the employee responded,
"why don't you kiss my damn ass," in Jeffrey Manufac-
turing Division, Dresser Industries, Inc., 248 NLRB 33
(1980). In Coors, the employee was engaged in protected
activity and such language was considered to be a part
of the industrial work sphere. Consequently, discharge of
the employee was held unlawful. The discharge of the
employee in Jeffrey Manufacturing was held unlawful be-
cause the remarks were not delivered in a threatening or
insubordinate manner.
The Board has repeatedly held that strong profane and
foul language, or what is normally considered discourte-
ous conduct while engaged in protected activity, does
not justify disciplining an employee acting in a repre-
sentative capacity. Max Factor & Co., 239 NLRB 804,
818 (1978), and United States Postal Service, 250 NLRB 4
(1980).
Here, Maurice, in a loud and angry voice, certainly
made considerable use of obscene language (various
forms of the word f-), and Wasilewski used the same
obscene word (f--ing) on one occasion during their Sep-
tember 22 discourse. However, it is particularly noted
that such obscene language was used by Maurice and
Wasilewski as impersonal expletives. The only other ob-
scene language used by Maurice which could possibly be
interpreted as having carried a discourteous and personal
connotation to Director Wasilewski was Maurice's
heated response to Wasilewski's admonition that he
would not be paid for death leave without submitting
sufficient proof of death. Maurice replied: "F- the $80;
shove the S80 up your f-ing ass." While the latter state-
ment is certainly foul and discourteous, especially when
it was overheard in part by fellow employees and several
members of management, suffice it to say that it is a
statement commonly understood as a vulgar way of tell-
ing someone to "keep it." Finally, it is further noted that
Maurice did not at any time address Wasilewski by a
foul or vulgar name as "mexican m- f-," "kiss my
damn ass," as the employee addressed a member of man-
agement in the Coors and Jeffrey cases, supra, where dis-
cipline of the employee was held unlawful.
Since Maurice's use of four expletives, including the
"shove it" statement, were made during a heated tele-
phone protest of Respondent's unilaterally instituted
proof of death rule, I find that such language was uttered
while Maurice was engaged in protected activity. Here,
Maurice was acting in his capacity as grievance chair-
man on behalf of himself and other employees. I do not
find that Maurice's obscene and foul language at anytime
became unlawful, violent, in breach of contract, indefen-
sible, or otherwise egregious, so as to have stripped his
protesting activity of Section 7 protection. In fact, as the
evidence has established, the use of such language was a
part of the industrial sphere at Respondent's plant be-
tween employees and management.
2. Maurice's allegedly threatening remarks
The second question raised by Maurice's conversations
with Wasilewski on September 22 is whether Maurice
actually threatened management. In this regard, the evi-
dence shows that Maurice said, "if I don't get paid
there's going to be fucking trouble in this plant"; "that if
you want cooperation, you are not going to get it from
me or the Union from now on"; "that he was not going
to take this fucking shit, and Wasilewski was going to be
sorry he ever did that to him"; that Wasilewski "was
going to see trouble and grievances like he had never
seen before"; and told Supervisor Gaines that "if he did
not get his money on Thursday he was going to get
evil." 6
On that afternoon, or between September 22 and 25,
Maurice filed or processed the filing of 20 grievances,
which were more than the Company would have nor-
mally received within a year. However, the evidence
does not show that any of the 20 grievances, nor any of
the 300-400 previously filed grievances were frivolous,
or that any of them were personally filed on Maurice's
behalf.
In determining if and in what manner Maurice threat-
ened Wasilewski and other supervisors as above de-
scribed, it is first observed that the credited testimony of
Supervisors Bicknell, Colvin, Gaines, Brooks, and Pelle-
grino indicated they overheard only some parts of the
telephone conversations between Maurice and Wasi-
lewski. Their accounts mostly described expletives (f-)
by Maurice and essentially no threats to do wrongful
harm to Wasilewski. Thus, the question of threatening
remarks to Wasilewski during the telephone conversa-
6 I credit Gaines' testimony in this respect because I was persuaded by
his demeanor that he was telling the truth; and also because his account
is consistent with other credited testimony of Maurice's dmissions of
statements he made while in a state of anger on September 22.
1089
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tions is one involving largely the credibility of Wasi-
lewski and Maurice alone.
Comparing Wasilewski's own above-described testimo-
nial account with his memorandum of September 24
(G.C. Exh. 15), it is noted he indicated, as Maurice credi-
bly testified, that Maurice said he was going to the
Labor Board if he did not receive his death-leave pay. In
the same memorandum Wasilewski characterized Maur-
ice's remarks as threatening him. Interestingly, in another
memorandum dated October 7, 1980 (G.C. Exh. 3), Wa-
silewski clearly indicated that he considered "threaten-
ing": Resort to outside agencies (NLRB, OSHA, etc).
Consistent with this understanding of Maurice's allegedly
threatening remarks is Wasilewski's undenied statements
to International Representative Robert Meade during the
September 29 grievance meeting on Maurice's discharge.
There, Representative Meade asked Wasilewski what
was the Union defending. Wasilewski replied: "Well, he
used vile and obscene language, he threatened a number of
our supervisors, and this is why we discharged him." The
supervisors had given Wasilewski prepared statements of the
alleged threats of Maurice.
After considerable efforts by Meade to persuade Wasi-
lewski during the September 29 grievance meeting to
permit him to see the statements and interview the re-
spective supervisors, the interview with the supervisors
revealed the following undisputed information elicited by
Meade: Meade asked Supervisor Colvin what constituted
the threats, Dave Colvin said he threatened me. When
Meade asked how, Colvin said Don came up to him and
told him if he didn't get paid for the death holiday that he
was going to file a grievance with the Labor Board. When
Meade asked what kind of a threat was that, Colvin said
it was a threat against his position if he did not do what
Maurice wanted. When asked what did Maurice want,
Colvin said he threatened to go to the Labor Board or he
was going to the health department, and where does it end.
Finally, Colvin acknowledged that Maurice did not make
any personal threat against himself but he (Colvin) con-
sidered it a threat against the Company. At that point,
Meade said he asked Wasilewski if that was the best he
had, and the latter said he had other statements.
When Meade asked Bicknell if he felt personally
threatened by Maurice, Bicknell said there was no way
that he was scared of Maurice in any fashion, but that
Maurice was using his position to try to intimidate some-
body. Meade continued to testify as follows:
A. And I said, "Well, how's that?" and he said,
"Well, you can see by the number of grievances he's
put in. It's everything. It's the grievances. That's all
we hear from him. He's going here, he's going to
do this. He's trying to intimidate somebody." And I
said, "Well, do you feel personally intimidated? Are
you scared? Are you afraid he's going to hit you
with a stick or something?" and he said, "No way."
But he felt that he was trying to intimidate the com-
pany unless they did what he wanted.
Meade then questioned Bicknell about Maurice using
the word "fuck" and asked him was that not a part of
shop talk, and had he not also used the word towards
Maurice. Bicknell acknowledged that it was shop talk
and that he had used the same language towards Mau-
rice. Subsequently, Company Supervisors Brooks and
Gaines entered the room. Meade said he asked both gen-
tlemen how did they feel threatened by Maurice, and
they responded that he constantly threatened the Company
that he was going to file grievances; and that he was going
to OSHA or some other public agency, which they said
was wrong action on his part.
It is therefore clear from the foregoing undisputed and
credited evidence that Maurice's remarks: "There's going
to be f-ing trouble in this plant"; "That if you want co-
operation you aren't going to get it from me or the
Union from now on"; "That you are going to be sorry
for what you did to me"; "You are going to see griev-
ances like you had never seen before"; and that "If I
don't get my money I am going to get evil," were not
interpreted by either Wasilewski or Supervisors Bicknell,
Colvin, Brooks, and Gaines, as threatening them with
physical harm, or to do physical injury or other unlawful
harm to the Company.
On the contrary, Wasilewksi and the aforenamed su-
pervisors all equated Maurice's remarks with filing griev-
ances with the Company or filing charges with the
Board or other public agencies. When Maurice's above-
quoted language is considered in the context of the
heated protected protest about Respondent's unilaterally
instituted proof of death rule, it is quite evident that
Maurice was warning Wasilewski that the company-
union's already turbulent relations were not going to im-
prove but worsen (trouble). The many grievances previ-
ously filed, and the 20 additional grievances filed Sep-
tember 22-25, tended to further substantiate what Mau-
rice meant by trouble and grievances.
Perhaps more importantly it is also clear that Maur-
ice's language indicated, and Wasilewski and the
aforenamed supervisors understood him to mean, that he
(Maurice) and the Union would no longer make efforts
to informally resolve employee grievances with manage-
ment. Instead, they would resort to the contractual
grievance procedure and to the Board and other govern-
mental administrative procedures, since Respondent was
so unrelenting in enforcing its unilaterally adopted proof
of death rule. In order to conclude otherwise, I would
have to ignore and discredit all of the undisputed testi-
mony and documentary evidence, some of which is Re-
spondent's own witnesses and documents. Certainly
threats or warnings by an employee to exercise the right
to resort to such contractual and legal procedures fall
within the protection of Section 7 of the Act. Austell Box
Board Corporation, 249 NLRB 345 (1980).
Maurice's remarks to withhold cooperation of himself
and the Union from Wasilewski are distinguishable from,
and certainly not as vague as, employee Green's remarks
in Southwestern Bell Telephone Company, 190 NLRB 427
(1971), where one supervisor would not disclose which
management person refused to change Green's work as-
signment. Green interrupted and said, "well, I don't care
whose decision it is, whether its your's, Rawlin's, Mel-
lina's ... whosever's decision it is I'm going to say he is
1090
KAY FRIES, INC.
a chicken s-s.o.b. I will f-" 7 him 24 hours a day some
way. When asked did he mean what he said, Green said
"well, I sure do, and you can expect no cooperation
from me in anyway." When asked what he meant by
that, Green said "you will find out." The Board ap-
proved the Administrative Law Judge's finding that the
employer's I-day suspension of Green for threatening to
do some harm to, or make things difficult for, the em-
ployer was not unlawful. However, it is particularly
noted that Green, unlike Maurice herein, was not shown
to have been engaged in protected activity at the time of
his utterance. Maurice did not address Wasilewski by a
foul name as Green addressed (chicken s-s.o.b.) man-
agement. Moreover, Green's remarks left clear reasons
for speculative apprehension by the employer as to what
Green was going to do (physically or otherwise) to a
member of management. Maurice's remarks left no room
for such speculation, and the proof of that fact was
borne out in the final analysis by Wasilewski and the
other supervisors admitting no apprehension of harm, but
only additional grievances and complaints filed with gov-
ernment agencies by Maurice and the Union. The entire
conversation of September 22 (Wasilewski and Maurice)
was carried on by telephone and the evidence does not
establish as a fact, who, or that any identified employees,
were in his immediate presence. I do not know if they
were identified it would make a difference. It is noted
that International Representative Meade told Wasilewski
to expect many grievances during their conversations on
September 22 or 25.
Finally, it has been found herein that Respondent has
failed to establish that Maurice threatened Personnel Di-
rector Wasilewski or any of Respondent's supervisors
with personal harm. Nor was Respondent able to demon-
strate that Maurice threatened to cause injury to the
Company or unlawful difficulty for it. At most, Re-
spondent established that Maurice warned or threatened
to file grievances, and did in fact file grievances pursuant
to the grievance procedure of the contract, and threat-
ened to file charges with governmental agencies, includ-
ing the Board. However, the evidence failed to show
that any grievances or charges filed, were instigated by
Maurice, or that those processed by Maurice were frivo-
lous and designed to harass Respondent. In the absence
of such proof, it may reasonably be inferred from the es-
tablished facts that the number of grievances filed or
processed by Maurice represents what has been clearly
established by the evidence: the gravity of the discord
between the Union and Respondent.
While it has been found herein that Maurice did utter
considerable obscene words as expletives during the Sep-
tember 22 conversations, it has also been found that Wa-
silewski used the same expletive once during the conver-
sation; and that such profane, obscene, and vulgar lan-
guage is a part of the industrial sphere at Respondent's
plant. Only the obscene "shove it" statement by Maurice
was addressed to Wasilewski. However, even though
that statement is vulgar and was discourteously ad-
dressed to Wasilewski, such statement was nevertheless
' The word used is obscene and may be literaly translated to "foul
up" or 'screw up."
uttered during a heated and protected protest (activity)
by Maurice. While Maurice's loud and foul protest is not
worthy of commendation, at least the evidence shows
such language was not uncommon between employees
and management. However, the question is whether such
conduct was so excessive as to deprive his protest of
protected activity.
Since the protected activity (foul and obscene tele-
phonically protesting enforcement of a unilaterally
adopted proof requirement against employees) in which
Maurice was engaged was not unlawful, violent, in
breach of contract, or indefensible because it demonstrat-
ed a lack of loyalty to Respondent, I do not find that
such "shove it" statement nor any of the other remarks
uttered by Maurice were so unreasonable and egregious
that they were sufficient to strip his protest activity of
Section 7 protection.
Finally, it is especially noted, according to the cred-
ited testimony, that Wasilewski was apparently provoked
by Maurice's threat to go to the Labor Board, when he
retorted, "don't be such a big f-ing baby." The record
shows Maurice was further provoked by Wasilewski's
latter statement and he responded with multiple exple-
tives including the "shove it" statement. As I observe
both witnesses (Wasilewski and Maurice), I did not
detect any expressions of animosity for one against the
other. On the one hand, I received the distinct impres-
sion that Wasilewski was the cool and reasonable person-
nel director trying to improve relations between the
Company and the Union. On the other hand, I saw Mau-
rice as a zealous grievance chairman and union adherent
whose active daily vocabulary included profane and ob-
scene language, and whose aggressive union activities
could very well be a thorn in the side of an employer
acting in good faith.
On September 22, Maurice and Wasilewski were
caught in a verbal cross-fire while discussing enforce-
ment of the Company's unilaterally adopted proof rule.
Maurice overreacted, only short of exceeding the limits
of Section 7 protection. Wasilewski was probably willing
to overlook the matter but either, later (2 days) realized
or was persuaded that Maurice might have provided him
the opportunity to remove the Maurice thorn from his
side by discharging him. But for the protected conduct
of Section 7, I think Wasilewski might have had ample
grounds for discharge. However, in the context of the
poor company-union relations reflected throughout the
record (before and after the discharge of Maurice), the
evidence is clear that Respondent's discharge of Maurice
was motivated by Maurice's grievance filing, his threat
to file more grievances and his actually filing more
grievances, and his threat to go to the Labor Board be-
cause he thought informal resolution of problems with
Respondent was futile. While such conduct by a union
agent can be annoying, in the absence of evidence of
frivolous complaints and a manifested intent to harass
Respondent, for which evidence I examined the record
here without success, I am persuaded by all of the cred-
ited evidence that Maurice's conduct was still within the
scope of Section 7, as the above-cited legal authorities in-
dicate. Union member-employee Walter Luther further
1091
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
testified that on March 11 and 12, 1981, he accompanied
Managers David Colvin and Peter Dapas to a Chemical
Manufacturer's Association convention in Philadelphia,
Pennsylvania. While there, Luther said, Mr. Colvin said
"Don Maurice was not fired for what he did, that inci-
dent, but was fired because he was no longer working
for the Company, he was working for the Union."
Colvin denied he made such a statement.8
Consequently, I conclude and find upon the foregoing
evidence reasons, and cited legal authority, that Re-
spondent's discharge of Donald Maurice was substantial-
ly motivated by his aggressive union grievance filing
(processing), his angered protest of Respondent's en-
forcement of the proof of death rule, and because Mau-
rice threatened to go to the Labor Board if he did not
receive pay for death leave. This conclusion is further
supported by Wasilewski's responses to the Union's
effort to have Respondent reinstate Maurice discussed,
infra. Additionally, I conclude and find that Respond-
ent's contended reasons (foul, obscene, abusive, and
threatening language to management) for discharging
Maurice were not the real reasons for discharging him.
Rather, such contended reasons were of a pretextual
nature, perhaps exaggerated, to conceal the unlawfulness
of Respondent's real reason for discharging him. Under
these circumstances, Respondent's discharge of Donald
Maurice was discriminatory and in violation of Section
8(a)(l), (3), and (4) of the Act.
Counsel for the General Counsel has established that
Maurice's protected activity was the substantial motivat-
ing cause for his discharge. Since Respondent has failed
to demonstrate that Maurice would have been dis-
charged in the absence of his threats to go to the Labor
Board and his zealous grievance filing activity, Wright
Line, a Division of Wright Line, Inc., 251 NLRB 1083
(1980), is not applicable to the facts as found herein.
E. The September 29 Grievance Meeting of
Respondent and the Union on the Discharge of
Donald Maurice
Robert Meade has served as International representa-
tive of the Union since 1979. In this capacity he serves
13 locals and 25 different plants, including Local 677 of
Respondent's plant. On September 24, 1980, the day
Maurice was discharged, Meade received a telephone
call from Dave Paul, president of Local 677, who told
him that Donald (Don) Maurice had been suspended by
Respondent for foul and abusive language, like calling a
foreman an "Ass Hole." Meade said he told Paul he
would call Joe Wasilewski and see how serious the
charges were. Meade called Wasilewski on September 25
and they agreed to discuss Maurice's discharge at the
next scheduled grievance meeting on Monday, Septem-
ber 29, 1980.
* I credit Luther's testimony because it is consistent with the prior
credited evidence and findings herein. I was also persuaded by Luther's
demeanor that he was testifying truthfully and I discredit Colvin's mere
denial. Based upon this credited testimony, which is consistent with the
foregoing credited evidence regarding the reasons for Maurice's dis-
charge, I find this to be additional evidence of Respondent's discriminato-
ry motive for the discharge of Maurice.
On the following Monday, September 29, Meade ap-
proached the plant and saw Don Maurice who advised
him that Respondent would not allow him on the prem-
ises. Meade contacted Wasilewski and told him Maurice
was not permitted to enter the plant. Wasilewski told
him Maurice could enter the premises if he were escort-
ed by someone. Thereupon Meade and Dave Paul went
out of the plant and brought Maurice into the plant.
They entered the third step of the grievance and present
for the Company were: Joe Wasilewski, personnel direc-
tor, Dave Colvin, production manager, and another gen-
tleman. Present for the Union were: Meade, Dave Paul,
Don Maurice, Frank Curtin, George Reeves, John
Lovell, and probably one or two others. After an argu-
ment about the presence of Don Maurice, Meade testi-
fied that the meeting proceeded in part as pertinent
herein as follows:
He asked Wasilewski, "what did he do?" He said,
"Well, he used vile and obscene language, he
threatened a number of our Supervisors, and this is
why we discharged him." I said, "Well, who did he
threaten?" He said, "Well, we're not going to tell
you that now. We don't want any reaction." I said,
"How the hell can I defend that if you're not going
to tell us who?"
After considerable reluctance to tell who the supervi-
sors were, to show Meade their statements, and, finally,
to allow him to interview them, the supervisors (Bick-
nell, Colvin, Brooks, and Gaines) all said Maurice did
not threaten them or the Company with harm; but that
he threatened to file more grievances and to file a charge
with the Board or other agencies, as previously found
herein. Supervisor Brooks admitted profane and obscene
language was common shop talk but Supervisor Gaines
denied that it was shop talk. I nevertheless do not credit
Gaines' denial because I was not persuaded by his de-
meanor that it was truthful, and because it is contrary to
the abundance of credited testimony herein.
Wasilewski then told Meade that Maurice was calling
him about his own funeral leave and not someone else's,
and he did not have to talk with him. Meade tried to ex-
plain that as shop steward, even representing his own
complaints, Maurice was engaged in protected activity.
Wasilewski did not agree with any distinction between
the Company recognizing Maurice as chief shop steward,
as distinguished from an individual employee. Wasilewski
then told him, Maurice had to leave the room and
Meade tried to explain that, since Maurice was the shop
steward, they could not go forward or present the griev-
ances without Maurice; that that would be holding up
the grievance machinery. Wasilewski said "Well they
would have to be held up because he's fired and he can't
be the chief shop steward." Meade tried to explain that
Maurice need not be an employee so long as he was a
shop steward, he was still entitled to represent the em-
ployees for the purpose of processing grievances. Since
they could not go forward with Maurice, Meade said
they agreed to set up another meeting at a later time.
The Respondent made its employment status decision
that Don Maurice was discharged. The meeting ended
1092
KAY FRIES, INC.
and, as he was driving on the Garden State Parkway, he
stopped and went to a public telephone and called Wasi-
lewski and their conversation was as follows:
A. "I talked to you last week and we were talk-
ing about an apology and maybe a two day suspen-
sion and now you come up and you want to hang
the guy. What is it?" He said, "Well, you know they
want him. You know they want his ass." I said,
"Christ sakes, get it some other way. You know and
I know if you wanted Maurice you can follow him
around there for a month and fire him for ten dif-
ferent reasons, but not phony bullshit like this."
And he said, "Well, what chance? Are we going to
hang Maurice to get a chance for that place to op-
erate?" He said, "Let me work on it a little while.
You know how these people are here" because at the
meeting they had brought up a hit list.
Their conversation ended with them arguing about a
suspension of 2 days to 2 weeks, an apology by Maurice,
and Maurice returning upon the condition of relinquishing
his chief shop steward (grievance chairman) position, which
Meade said he would not buy.
In a letter dated October 3, 1980 (G.C. Exh. 2), Re-
spondent advised the Union (Meade), after a long recita-
tion of its position and the Union's position, that the
Company had proper cause to discharge Donald Maurice
for using foul and abusive language towards the person-
nel director and maintenance supervisor; threatening the
maintenance manager, director of production, and per-
sonnel director; failure to fulfill his responsibility, and
obligation to settle labor-management disputes peaceful-
ly, utilizing contractual grievance machinery; and failure
to act responsibly after receiving a disciplinary suspen-
sion for the use of foul, abusive, and threatening lan-
guage to company officials. More specifically, the Com-
pany said Maurice violated company rules I and 13, cat-
egory II, of the posted and distributed "Work Rules and
Regulations," dated 2-80, and article II, section D and
E, of the union contract. The letter was signed by
Joseph Wasilewski.
About 10 days after the receipt of the Company's deci-
sion upholding the discharge of Maurice, Meade said
they proceeded to the Company again for a grievance on
the discharge. Again they met with company opposition
to admit Maurice on the premises and after some discus-
sion with Wasilewski in an effort to obtain his permission
to allow them to escort Maurice on the premises, they
left the premises since the Company denied such permis-
sion. The Company had also denied their request to meet
at a church in a grievance meeting.
Sometime after the first of the year, while at the plant
on other business, Meade said he asked Wasilewski about
the Maurice case and the latter said maybe they can
settle the case. He said, "great, let's do it," and Wasi-
lewski said they will have to talk suspension. He said,
"Christ, how much suspension, the guy has been gone
forever," and Wasilewski said Maurice cannot come back
as chief steward (grievance chairman). Meade said he told
him that was the heart of the controversy, he has to
return as chief steward. Wasilewski then said, "why can't
he settle for part money" and Meade said, "why don't
you talk to Maurice it's your offer," and Wasilewski said
he would.
Meade said that a few weeks later, while at the plant
for another meeting, Wasilewski told him Maurice said
there was no way he would come back without being
chief steward. When he was asked what did he offer
Maurice, Wasilewski reluctantly said, "25," he said "dol-
lars or thousands," and Wasilewski said, "you, know,
thousands."
It is particularly noted that Respondent (Wasilewski)
did not introduce any testimony to refute or controvert
the extensive testimonial account of his conversations
with International Representative Meade on September
24 and 29. 9
F. Respondent's Refusal to Permit Grievance
Chairman Access to Premises to Attend Grievance
Meeting
Article IV, B, of the current contract between the par-
ties provides as follows:
B. A business agent of the Union shall have access
to the plant for the purpose of adjusting grievances,
negotiating the settlement of disputes, and generally
for the purpose of carrying into effect the provi-
sions and aims of this agreement. Whenever possible
he shall make an appointment in advance for such
visits. In any event, the agent of the Union shall on
arrival at the Plant clear through the regular chan-
nels of the Company for receiving visitors.
Since the undisputed evidence demonstrates that Re-
spondent refused Grievance Chairman (steward) Donald
Maurice access to its plant to attend grievance meetings
on or about September 29 and October 7, respectively,
because he was discharged by Respondent on September
24, counsel for the General Counsel contends Respond-
ent has violated the above-cited section of the contract
and Section 8(a)(1) of the Act. Respondent does not
offer any defense to this allegation and the evidence is
uncontroverted that Respondent refused Maurice access
on September 29, but relented and permitted him to
enter escorted by Representatives Meade and Paul. On
the second occasion, Respondent refused Maurice access
to the premises, even if he were escorted by Meade and
Paul. Respondent maintained its refusal even after Meade
explained to Wasilewski that Maurice was to enter the
plant in his official union capacity and as grievant. Under
these circumstances, I conclude and find that Respond-
ent's refusal constituted coercion against and restraint
upon the exercise of employees' Section 7 rights, in vio-
lation of Section 8(a)(Xl) of the Act.
The evidence does not establish that Maurice would
be a dangerous risk if he had been admitted to the plant,
but even if he would have been, Respondent could have
9 I find Meade's account essentially uncontroverted by Wasilewski
However, to the extent that Wasilewski may have denied any part of
Meade's account, I discredit his denial because I was not persuaded by
the denial, or any frail explanation, that it was sufficient to refute the
credited account of Meade. Meade's account is consistent with all of the
credited evidence of record.
1093
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
had Maurice escorted into and out of the plant by one of
its guards or other designees. Since no justification has
been advanced for Respondent's refusal, I find that Re-
spondent's refusal in this regard violated article IV, B, of
the contract and Section 8(aXI) of the Act. Pioneer Inn
Associates, 228 NLRB 1263, 1264 (1977); Southern Florida
Hotel & Motel Association, 245 NLRB 561 (1979); and
General Electric Company, 160 NLRB 1308 (1966).
G. Respondent Allegedly Advised Employees To
Refrain From Filing Grievances But To Bring its
Problems to It
The complaint herein also alleges that on or about Oc-
tober 6, 1980, Maintenance Supervisor Donald Schickle
warned and advised employees to refrain from filing
grievances with the Union, unless and until they sought
Respondent's permission to do so.
The evidence shows that Supervisor Schickle held a
meeting with all maintenance pipefitters, the yard labor-
er, and Shop Steward Walter Luther on or about Octo-
ber 1, 1980. During the meeting, Schickle discussed rules
and procedures to be followed at the Company. Luther
testified that Schickle also told the employees "if they
had any problems with the Union, he wanted them to
come see him, and if he could not help them with the
problems, even if they were personal problems, then he
would direct them to the proper union official." Luther
said that Schickle told other employees and himself the
same thing on the next day. Schickle denies Luther's un-
corroborated account.
Schickle's account of what he said is as follows:
Q. Would you tell me essentially what you said
with respect to how employees should handle prob-
lems?
A. I stated that all-any problems that the em-
ployees had I wanted them to come to me with the
problem, and that I would try and handle that prob-
lem and do what had to be done for them, and if I
couldn't I would direct them to the department or to
the Union or whatever was needed to expedite the
problems
Schickle said he specifically said payroll problems or
personal problems. Subsequent to the meeting, he said a
shop steward came to him and told him he (Schickle)
had been misinterpreted by some employees that they
should not go to the Union. Schickle denied the assertion
and held a meeting the next day with the pipefitters and
other persons, during which he said the following:
A. I explained to those present at that meeting
that the statement I made about coming to me with
problems had been misinterpreted by a few individ-
uals at the first meeting and what I would like to
clarify it at this meeting so that there wasn't-so
that I didn't make the same mistake twice.
Q. And what clarification did you give?
A. The same, that I did not tell the employees
not to go to the Union, that I simply told them that
I would prefer they come to me with every prob-
lem so that I have a chance to handle it first.' °
The above testimonial statements of Schickle to the pi-
pefitters are, as the General Counsel argues, very much
similar to the statement of the supervisor in Berbiglia,
Inc, 237 NLRB 102 (1978), who told the employees, "if
you have a problem come to me. That's what I'm here
for." Except here, Schickle's statements are even clearer
in telling the employees to come to him first, and if he
could not resolve the problem, he would refer them first
to management and then to the Union. Moreover, here,
Schickle testified he attempted to clarify his statements
on the next day, but when he was asked how he clarified
them, he said he said the "same." He only denied that he
told the employees not to go to the Union. I can hardly
discern a clarification which refutes Luther's version. If
anything, Schickle's attempted clarification is more of an
affirmation of what Luther testified he said on both days.
While I understand what Respondent (Schickle) was
trying to accomplish in good faith, regretfully Schickle
did not express himself within the context of his objec-
tive and the best interest of Respondent. Consequently, I
conclude and find upon his explicit testimony that he so-
licited employee grievances within the context of Berbig-
lia, supra, and Communication Systems Construction, Inc.,
209 NLRB 652, 655 (1974). In doing so, Respondent co-
erced and restrained its employees, in violation of Sec-
tion 8 (aX)(1) of the Act.
Conclusions
Although the record contains an abundance of testimo-
ny, I have nevertheless found such testimony, in substan-
tial part, truthful and free of conflict. While the testimo-
ny of Maurice and Wasilewski, in particular, is crucial to
several of the issues presented for determination, I have
found their affirmative testimony for the most part to be
truthful, and to a greater extent, their denials, untruthful.
Although Director Wasilewski denied certain members
of management used foul and obscene language in ex-
change with employees on several occasions, I did not
credit Wasilewski's denial in this regard, not only be-
cause he merely denied it, but because several employees
had so testified specifically. Also, several supervisors ad-
mitted such language was shop talk. None of the manag-
ers who were accused of using such language (Maggio
and Kay) testified herein to the contrary. Hence, it is
well established by the credited testimony that such ob-
scene exchanges between employees and management
were not uncommon.
Additionally, since Maurice unequivocally learned on
September 16 that Respondent was enforcing its unilater-
ally adopted proof rule, he was engaged in lawful protest
of the rule only 3 or 4 working days later, on September
' Although Schickle denied Luther's testimonial version of what he
told the pipefitters during the October meeting, a reading of his own
above-testimonial version shows that it is essentially consistent with
Luther's version. I therefore Credit Luther's because I was persuaded by
Luther's demeanor, a opposed to Schickle's demeanor, that he was testi-
fying truthfully. Moreover, it is also noted that Luther's account is con-
sistent with the record evidence of Respondent's apparently good-faith
efforts to minimize the number of grievances being filed by the Union.
1094
KAY FRIES, INC.
22. When the Union failed to request bargaining on the
matter after Maurice was discharged (not before Septem-
ber 29), the Union waived its right to request bargaining.
Director Wasilewski also merely denied that he condi-
tioned reinstatement of Maurice upon his relinquishing
his union position of grievance chairman. Again, I was
not persuaded by Wasilewski's testimony nor his demea-
nor that his weak denial was truthful. In this regard, I
noted that Wasilewski did not deny that he offered Mau-
rice a money settlement and made other statements about
his efforts to settle the Maurice grievance with manage-
ment, as Meade testified. Meanwhile, I was persuaded by
Meade's uncontroverted testimony and his demeanor that
he was testifying truthfully in describing his postdis-
charge conversations with Wasilewski. The record
shows that Respondent was making some reasonable ef-
forts to improve relations between itself and the Union
herein. Unfortunately, some of the measures taken by
Respondent to achieve those ends fell short of being
lawful. Thus, after viewing the evidence of record from
every dimension most favorable to Respondent, I find
that it supports the findings herein made.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section III,
above, occurring in connection with the operations of
Respondent described in section I, above, have a close,
intimate, and substantial relationship to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
v. THE REMEDY
Having found that Respondent has engaged in unfair
labor practices warranting a remedial order, I shall rec-
ommend that it cease and desist therefrom and that it
take certain affirmative action to effectuate the policies
of the Act.
It having been found that Respondent threatened an
employee by telling him it will turn over his grievances
to the company physician to institute legal action against
the employee, and issuing a written warning to him for
filing a grievance against it for questionable sanitary ex-
amining practices of the physician, in violation of Sec-
tion 8(aXl) of the Act; that by discharging, and since
thereafter failing and refusing to reinstate a union griev-
ance chairman (steward) employee because he filed nu-
merous grievances, Respondent violated Section 8(a)(1)
and (3) of the Act; that by discharging said union griev-
ance chairman employee because he threatened to go to
or file a charge with the Board and other governmental
administrative agencies, Respondent violated Section
8(a)() and (4) of the Act; that by refusing the dis-
charged union grievance chairman access to its facility to
attend grievance meetings and process grievances, Re-
spondent violated its contract with the Union, as well as
Section 8(a)(1) of the Act; that by telling employees to
bring their problems to management and if management
could not resolve them it would refer them to the Union,
Respondent violated Section 8(a)(1) of the Act; and that
by conditioning the reinstatement of said union grievance
chairman upon the condition that he relinquish his griev-
ance chairman's (steward) position, Respondent violated
Section 8(a)(1) of the Act, the recommended Order will
provide that Respondent make the discharged union
grievance chairman whole for any loss of earnings he
may have suffered within the meaning and in accord
with the Board's decision in F. W. Woolworth Company,
90 NLRB 289 (1950), and Florida Steel Corporation, 231
NLRB 651 (1977)," except as specifically modified by
the wording of such recommended Order.
Because of the character of the unfair labor practices
herein found, the recommended Order will provide that
Respondent cease and desist from or in any other
manner interfering with, restraining, or coercing employ-
ees in the exercise of their rights guaranteed by Section 7
of the Act. N.L.R.B. v. Entwistle Mfg. Co., 120 F.2d 532,
536 (4th Cir. 1941).
Upon the basis of the above findings of fact and upon
the entire record of this case, I make the following:
CONCLUSIONS OF LAW
I. Kay Fries, Inc., is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of the
Act.
2. International Chemical Workers Union, Local 677,
AFL-CIO, is, and has been at all times material herein, a
labor organization within the meaning of Section 2(5) of
the Act.
3. By threatening employees by telling them it will
turn over their grievances to the company physician for
him to institute legal action against employees for filing a
grievance against the Company for questionable sanitary
examining practices of company physician, and issuing a
written warning to them for filing such grievance, Re-
spondent has violated Section 8(aXl) of the Act.
4. By refusing the discharged union grievance chair-
man (steward) access to its facility to process grievances,
Respondent has violated its contract with the Union and
has violated Section 8(aXl) of the Act.
5. By conditioning the reinstatement of the discharged
union grievance chairman (steward) upon his relinquish-
ing his union position as grievance chairman (steward),
Respondent has violated Section 8(aX1) of the Act.
6. By telling employees to bring their problems to
management and if management cannot resolve them,
management will refer them to the Union, Respondent
violated Section 8(a)(1) of the Act.
7. By discriminatorily discharging Donald (Don) Mau-
rice and thereafter failing and refusing to reinstate him,
because he continued to file grievances on behalf of the
employees, Respondent has violated Section 8(aX)(1) and
(3) of the Act.
8. By discriminatorily discharging Donald (Don) Mau-
rice because he threatened to go to and/or file charges
or complaints with the Board and/or other governmental
administrative agencies, Respondent has violated Section
8(aXl) and (4) of the Act.
H1 See, generally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962).
1095
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
9. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
Upon the foregoing findings of fact, conclusions of
law, and the entire record, and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended:
ORDER 12
The Respondent, Kay Fries, Inc., Stony Point, New
York, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Threatening employees by telling them Respondent
will turn over their grievances to the company physician
for him to institute legal action against them for filing
grievances against Respondent for questionable sanitary
examining practices of the Company's physician, and is-
suing and including in the personnel files of employees, a
written warning for doing so.
(b) Refusing discharged grievance chairman (steward)
access to its facility for the purpose of processing griev-
ances.
(c) Conditioning reinstatement of unlawfully dis-
charged grievance chairman (steward) upon his relin-
quishing his union position as grievance chairman (stew-
ard).
(d) Telling employees to bring their problems to man-
agement and, if management cannot resolve them, it will
refer them to the Union.
(e) Discouraging membership in, or activities on behalf
of, International Chemical Workers Union, Local 677,
AFL-CIO, or any other labor organization, by discharg-
ing employees who support such organizations or carry
on its activities.
(f) Discriminatorily discharging employees because
they threatened to go to or file charges with the Board
or complaints with other governmental administrative
agencies.
1s In the event no exceptions are filed as provided by Sec. 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, and recommended Order herein shall, as provided
in Sec. 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.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Offer to Donald Maurice immediate and full rein-
statement to his former position or, if such position no
longer exists, to a substantially equivalent position, with-
out prejudice to his seniority or other rights previously
enjoyed, and make him whole for any loss of pay suf-
fered by reason of the discrimination against him, with
interest, in the manner described in the section of this
Decision entitled "The Remedy."
(b) Retract and expunge from the personnel records of
Darryl Thaler, the written warning (G.C. Exh. 8) issued
to him.
(c) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other
records necessary to analyze the amount of backpay due
under the terms of this recommended Order.
(d) Post at its plant and place of business copies of the
attached notice marked "Appendix."' s Copies of said
notice, on forms provided by the Regional Director for
Region 2, after being duly signed by Respondent's au-
thorized representative, shall be posted by it immediately
upon receipt thereof, and be maintained by Respondent
for 60 consecutive days thereafter, in conspicuous places,
including all places, where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by Re-
spondent to ensure that said notices are not altered, de-
faced, or covered by any other material.
(e) Notify the Regional Director for Region 2, in writ-
ing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be dis-
missed insofar as it alleges violations of the Act not
found herein.
'S 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 Enforcing an
Order of the National Labor Relations Board."
1096