McDonnell Douglas Corp.

National Labor Relations Board - Board Decisions

Mar 19, 1971

189 N.L.R.B. 87 (N.L.R.B. 1971)

McDONNELL DOUGLAS CORPORATION
McDonnell Douglas Corporation (Douglas Aircraft
Company Dn ision ) and Charles E. Mosman. Case
31-CA- 1744
March 19, 1971
DECISION AND ORDER
By CHAIRMAN MILLFR AND MEMBERS
FANNING, JENKINS, AND KENNEDY
On August 14, 1970, Trial Examiner Sidney Sher-
man issued his Decision in the above-entitled pro-
ceeding, finding that the Respondent had not engaged
in certain alleged unfair labor practices and recom-
mending dismissal of the complaint in its entirety, as
set forth in the attached Trial Examiner's Decision
Thereafter, the General Counsel filed exceptions to
the Trial Examiner's Decision and a supporting brief;
and the Respondent filed a reply brief thereto.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and
the entire record in the case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recommend-
ed Order of the Trial Examiner and hereby orders that
the complaint herein be dismissed in its entirety
TRIAL EXAMINER'S DECISION
SIDNI Y SHFRMAN, Trial Examiner The instant charge
was served upon Respondent on February 27, 1970, the
complaint issued on April 9, and the case was heard on
June 2 and 3 The only issue litigated was whether the
discharge of Mosman was unlawful After the hearing,
briefs were filed by Respondent and the General Counsel
Upon the entire record,' including observation of the
witnesses, the following findings and recommendations are
adopted
( ertam transcript corrections are duly noted
1. RESPONDENT'S BUSINESS
87
McDonnell Douglas Corporation,2 herein called Respon-
dent, is a Maryland corporation, with facilities in various
States, including the one here involved, at Palmdale,
California It is conceded, and the record shows, that
Respondent is engaged in commerce under the Act
ii. THE UNION
International Association of Machinists and Aerospace
Workers, District Lodge 720, hereinafter called the Union,
is a labor organization under the Act.
III THE UNFAIR LABOR PRACTICES
The only issue raised by the pleadings is whether
Mosman was discharged for engaging in union or
concerted activities
A Sequence of Events
Respondent has a contract with the Union covering its
Palmdale plant, which contains a grievance procedure
culminating in arbitration. Mosman was hired in April 1966
and at the time of his discharge on January 14, 1970, was
classified as a master painter He was considered proficient
in his work and admittedly made some valuable suggestions
for improvement of operating procedures He made
frequent use of the grievance procedure under the Union's
contract, having filed about 15 grievances. He was also a
frequent target of disciplinary action, having received eight
written reprimands for irregular attendance, straying from
his work station, and taking unauthorized work breaks,
and, although in June 1969 he was suspended for 3 days for
an offense in the last category, he was guilty in December
of 10 instances of absenteeism and tardiness. He was also
given to expressing freely his rather unfavorable opinion of
the qualifications of some of his fellow employees, as well
as of his immediate supervisor, Christiansen. This tendency
led to frequent complaints about him by the victims of his
jibes and, finally, in November embroiled him in an
altercation with one, Starkey, which came to the attention
of the general foreman. This led to an oral reprimand and a
warning of discharge A few months later, on January 14,
1970, Mosman again became involved in a similar incident
with the union "chairman" or shop steward, Tarm, which
was triggered by an inquiry by Mosman of Tarm
concerning a petition which he had undertaken to prepare
for signature by the master painters and presentation to the
Union and Respondent. Mosman was discharged for his
part in this incident.
Respondent's name appears as amended at the hearing
189 NLRB No 6
88 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Union presented a grievance over the discharge at
the penultimate step of the grievance procedure, but, after
the grievance was rejected by Respondent, the Union did
not pursue the matter further.
B. Discussion
The General Counsel contends that the discharge of
Mosman should be deemed unlawful because it was
precipitated by a discussion between him and Tarin of a
matter pertaining to employee concerted activities That
matter was the afore-described petition, which had already
been drafted by Tarin on January 14, for signature by
Respondent's master painters, including Mosman, and
which requested the Union to secure the removal of one,
Olenick, from the list of those eligible for assignment to
work as a master painter on an overtime basis This petition
procedure was in accord with the Union's contract, or, at
least, in accord with the parties' interpretation thereof 3
Respondent, on the other hand, contends that the
controlling consideration in discharging Mosman was his
entire employment record, particularly his difficult rela-
tions with his fellow employees and his immediate
supervisor, culminating in his alleged abusi ^eness on
January 14 toward Tarm, and that the fact that that
incident was touched off by a reference to the employee
petition was merely fortuitous and had no effect on the
discharge decision.
A proper evaluation of these conflicting contentions
would seem to require some understanding of the
personalities involved. Mosman appeared to be a relatively
young man. He had been employed by Respondent as a
painter since April 1966, becoming a master painter early in
1969. Respondent conceded his technical competence and
that he had made some valuable suggestions for improving
the operating procedures in the paint shop. At the same
time, the record establishes that his relations with his fellow
employees and his supervisors left something to be desired.
Mosman admitted that he had frequently expressed to
management an unfavorable opinion of the qualifications
of his fellow painters, including Tarin, and that word of this
had got back to the other painters. In addition, Assistant
Foreman Christiansen testified, without contradiction, that
some of the other painters had complained to him that
Mosman had expressed to them directly an unflattering
opinion of their qualifications, and Tarin testified without
contradiction that Mosman had frequently told him he was
not qualified to be a master painter Moreover, Mosman
acknowledged that he had often criticized Christiansen's
"policy" and differed with him as to how Mosman's job
should be done; and, although he denied that he had in so
S Olenick was not a master painter but was classified as a sign painter
Under the Union's contract (Art XIV, sec 3) he was eligible to share
overtime with the master painters only if they consented thereto They had
so consented in April 1969 but, because of alleged favoritism shown
Olenick by management in the matter of overtime assignments, the master
painters had decided to rescind their consent and this was effected through
the petition prepared by Tarin
4 1 was favorably impressed by Christiansen's demeanor and by the
many words told Christiansen that he was not a competent
supervisor, I credit Christiansen's testimony that Mosman
frequently made that aspersion 4 Moreover, I credit
Christiansen's uncontradicted testimony that when, as not
unfrequently happened, he found Mosman straying from
his work station and admonished him to return to work
Mosman would either make some flippant remark or
proceed to argue with Christiansen.
In November, Mosman became involved in an incident
which I deem significant, not only because of its influence
on subsequent events, but also because it affords a
revealing insight into Mosman's dealings with others This
incident began with an encounter between Mosman and
Starkey, a painter leadman Mosman's own version was
that, upon seeing Starkey standing about idly at quitting
time, Mosman, in an effort at raillery, suggested he pick up
a "pad" of the type used to prepare the exterior of aircraft
for painting, the implication being that he should stop
loitering and get to work, that Starkey took offense and
complained to Christiansen that Mosman had "cut him
down" in front of his crew, that, when Christiansen
reported this to Mosman, he disclaimed any intention of
disparaging Starkey and - promised there would be no
recurrence. The witness added that he then approached
Starkey and remonstrated with him as follows:
I asked Jess [Starkey] .. , "What's it all about Why
did you take offense? Why did you turn me in? There is
something behind that is prompting you to jump on
me," because we never had any fights or hassles to
speak of personally. So I wondered why it prompted
him . if there was some pressure on him to "nail me"
. . which later, has come out
This accusation that, in "turning in" Mosman, Starkey
was merely acting as a tool of others had the predictable
effect of rekindling Starkey's ire and causing him to carry
another complaint to Christiansen, who haled Mosman
before General Foreman Sharpnack. As to the subsequent
events in Sharpnack's office, Mosman's account indicates
that Sharpnack took Mosman to task for his antagonistic
attitude toward Respondent, which Mosman attempted to
justify by contending that Respondent was in his debt
because of work he had done before being reclassified as
master painter, for which he should have been paid at the
higher rate,5 and because of suggestions he had made at
Respondent's request "to upgrade the work of the plant and
their procedure " According to Mosman, Sharpnack
retorted that, if any misconduct by Mosman was ever
reported to Sharpnack again, Mosman would be
discharged 6
Christiansen's testimony was to the effect that the
discussion in Sharpnack's office pertained to Mosman's
attitude to Respondent, his fellow employees, and Chris-
objectivity of his testimony Mosman 's testimony was on the other hand,
marred by frequent, rambling efforts to give a favorable coloration to some
incident or remark
Mosman estimated that Respondent owed him $900 in backpay on
that account
6 Mosman's version was corroborated by Tarin Sharpnack had only a
vague recollection of the incident and could recall only that it involved a
"personal conflict" and that he warned Mosman against any recurrence
McDONNELL DOUGLAS CORPORATION 89
tiansen, himself; that Sharpnack warned that he did not
want to see Mosman in his office again; but that, as he left
the office, Mosman remarked that "this was not the end of
it."
The composite effect of the foregoing testimony is, and I
find, that in November Mosman became involved in an
altercation with Starkey because of a jibe levelled at him by
Mosman; that Christiansen attempted to settle the matter,
extracting a promise from Mosman that he would cause no
further trouble; that immediately thereafter he again made
some provocative remarks to Starkey, which caused
Mosman to be brought before Sharpnack; and that he
taxed Mosman with a hostile attitude to his fellow
employees and to management and warned him of
discharge for any recurrence I find further from Mosman's
own testimony that he did not deny the charge made by
Sharpnack about his hostile attitude but merely attempted
to justify it by citing various circumstances which he
believed placed Respondent in his debt Finally, I find that,
far from being chastened by the foregoing interview,
Mosman parted from Sharpnack on a note of defiance.
Thus, the record shows that prior to the final episode of
January 14, Mosman's relations with his fellow employees
and with Christiansen were strained as a result of
Mosman's frequent jibes at what he regarded as their
incompetence, that the Union's "chairman," or steward,
Tarin, received his fair share of these jibes, and that
Mosman was on notice that any further clash with others
would result in his discharge.
As already related, on January 14, Tarin had brought
with him to work a petition, which he had just prepared,
and which was to be signed by Mosman and the other
master painters, relating to the termination of the existing
overtime arrangement with regard to Olenick.7 According
to Tarin, Mosman greeted him that morning with the
remark, "Hey, mouth, where . . is that petition you were
supposed to bring today?" Tarin continued that he took
umbrage at this and retorted, "If anybody here is a `mouth,'
you're the `mouth,"'; that the two then exchanged
uncomplimentary remarks; that Tarin summoned Chris-
tiansen to the scene, that, as Christiansen approached,
Mosman observed that Tarin must have "a wild hair" up
his posterior; that Tarin demanded that Christiansen
squelch Mosman; that the former proposed that the dispute
be taken to the personnel office; and that, when Mosman
turned his attention to Christiansen, casting aspersions on
his supervisory ability, he announced that they were all
going to the personnel office.
Christiansen testified that Tarin appealed to him to get
Mosman off his back, explaining that he had just
"hollered" at Tarin and called him "mouth"; that, when the
witness then asked Mosman why he called Tarm "mouth,"
Mosman explained that he had merely wanted to discuss
the petition with Tarin; that the latter returned to the scene
at that point and exchanged some words with Mosman, in
the course of which exchange Mosman referred to
7 See In 3, above
a Boudreau also denied, contrary to the testimony of both Mosman and
Tann, that the latter used the word "mouth" at any time during the
incident
Christiansen as a poor assistant foreman, that he directed
the two men to desist, but they did not do so until he
repeated his order; and that he then repaired with Tarin to
the personnel office
Mosman's version was that he did not greet Tarin with
the phrase, "Hey, mouth," but that he started the
conversation with the inquiry, "What about the petition?"
Mosman added that, when Tarin did not answer, Mosman
said:
Are you all talk or is this all talk about the business, or is
this going to materialize . . . are you all talk about
getting this petition agreement made up or is it all
mouth?
According to the witness, Tarin retorted in a loud voice,
"Well, I'll tell you what's all talk and who's all mouth
around here . You're the mouth . . what in hell have
you done for this shop materialistically, spiritually or
morally?" Mosman added that he attempted to pacify
Tarin, but the latter summoned Christiansen, who admon-
ished Mosman to stay away from Tarin because he was
upset, which Mosman agreed to do, that he then explained
to Christiansen that he had merely inquired about the
petition; and that Tarin returned at this point, declared he
was tired of Mosman and his disparagement of Tarin as a
painter and as a shop steward, and demanded that the
matter be taken up with the personnel office.
Boudreau, a painter, who was present throughout the
altercation, at first professed to be uncertain whether, in
asking about the petition, Mosman addressed Tarin as
"mouth," but almost in the next breath declared that he did
not hear Mosman use that term , even though, as noted
above, Mosman admitted he used it, albeit in a somewhat
different context from that described by Tarin.8 Boudreau,
moreover, attributed to Tann an obscene epithet, but
Mosman was unable to corroborate this. Finally, there was
the testimony of Respondent's personnel director, Cochran,
which was substantially corroborated by Union Business
Agent Shaw, that at the heanng on Mosman's discharge
grievance Boudreau testified that Mosman had shouted,
"Hey, Mouth," to Tarin on the 14th Absent any
contradiction, I credit Cochran. It follows that little
reliance can be placed on Boudreau 's recollection.9
The next episode occurred in the office of Cochran,
Respondent's personnel director, where Tann and Chris-
tiansen gave their account of the incident . Mosman was
then called in and related his version out of the presence of
both the others. He admitted, according to the testimony of
Cochran, that he had called out to Tarin, "Hey, big mouth,
where is the paper you were bringing in," and had asked
him whether he was "all talk or was actually going to do
something about this"; that words were exchanged between
them, that Mosman then proceeded to argue with
Christiansen, asserting that he did not know how to run the
paint shop and taxing him with favoritism toward Tarin in
making job assignments and with "not treating people
Y He had no apparent reason to favor Mosman in his testimony and
seemed to be sincere The only conclusion to be drawn is that his memory
played tricks with him at the instant hearing
90 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
fairly and equally", and that Mosman disparaged Tann's
ability as a painter
In rebuttal, Mosman denied that he had admitted to
Cochran that he had called Tarin a "big mouth," or that he
had become involved in an argument with Christiansen. He
denied further that he had made any derogatory reference
to Christiansen in the course of the altercation on the 14th
but did not deny specifically that he had admitted
disparaging Tarin's workmanship
It appears from the foregoing that, while he denied he
had greeted Tarin with the phrase, "Hey, mouth," Mosman
acknowledged that he had roused Tarin's ire on the 14th by
following up an inquiry about the petition with remarks
implying that Tarin was "all talk" or "all mouth." Thus,
even if Mosman be credited, it is clear that it was he who
provoked Tarin by questioning his good faith in the matter
of the petition Moreover, I credit the mutually corrobora-
tive testimony of Tarm, Christiansen, and Cochran and
find that Mosman did in fact greet Tarm that morning with
the words, "Hey, mouth," and uttered the other remarks
ascribed to him by Tarin and Christiansen.
As already related, at the conclusion of the foregoing
interview on January 14, Mosman was notified by Cochran
of his discharge. The official reason for the discharge, as
stated on Respondent's personnel records, is, "Failure to
meet requirements of employment. Unsatisfactory personal
conduct " Christiansen, who appears to have played the
major role in the decision to discharge Mosman,'° testified
that, in recommending that discharge, he told Cochran that
he was "getting tired of Mr. Mosman's attitude toward . . .
the Company and myself and fellow employees" and that
his recommendation was based on that attitude, as reflected
in prior disciplinary actions taken against Mosman.11
One is forced to conclude from the entire record that
Respondent treated Mosman with unusual tolerance, and
there is no reason to doubt Christiansen's explanation that
this was out of deference to Mosman's technical proficien-
cy. Due to this consideration, Respondent had long
overlooked his idiosyncracy for "needling" his fellow
employees and his immediate supervisor, as well as his
generally insubordinate attitude. When, in November, an
incident occurred that bought the problem to the attention
of his general foreman, Sharpnack, Mosman was ordered in
no uncertain terms to desist from such conduct and was
warned, as he, himself, acknowledged at the hearing, that
any recurrence would result in his summary discharge.
Nevertheless, on January 14, there was a recurrence, when
Mosman questioned Tarin about the petition relating to
Olenick in a manner calculated to arouse Tarin's ire,
insisted on bandying words with Tarin even after
Christiansen ordered him to desist, and cast a slur on
Christiansen's competence as a supervisor 12
The General Counsel contends in his brief that Mosman's
discharge should be deemed unlawful because it was
precipitated by his inquiry about action being taken to
remedy the grievance of the master painters with regard to
the assignment of overtime. The General Counsel's
argument here seems to be twofold-namely, (I) that under
the rule of Burnup & Sims 13 Respondent's belief that
Mosman's inquiry involved a violation of a plant rule is no
defense, since there was in fact no such violation, and (2)
even if Mosman's language to Tarin was objectionable, it
was not so offensive as to deprive him of the Act's
protection As to (1), above, the General Counsel makes
specific reference to plant rule 15, which was cited by
Respondent's counsel at the hearing as among the rules
breached by Mosman on the 14th, and which forbids the
use of "profane, obscene, vile or abusive language to, or in
the presence of, other employees." It having been found
above that Mosman did vociferously greet Tarin with an
appellation, which under the circumstances might well have
been regarded as insulting, it is far from clear that such
greeting, as well as Mosman's subsequent remarks, were not
"abusive" within the meaning of the plant rule. Moreover,
the conduct of Mosman would seem to fall even more
clearly within the interdiction of plant rule 18, which
forbids "distracting the attention of others from work .. .
or causing confusion by such conduct as unnecessary
shouting .. .
i0 He testified that he recommended the discharge to Cochran, who
usually solicits Christiansen's recommendation regarding disciplinary
action against his subordinates, and that he could not recall any instance
where Cochran did not follow his recommendation Cochran at first
attempted to convey the impression that the discharge decision was in large
measure, if not entirely, his, but finally conceded that the "initial decision"
was made by Christiansen and Sharpnack and that Cochran's function was
merely to review that decision in an advisory capacity for conformity with
Respondent's over-all disciplinary policy I conclude therefore that the
moving spirit in the matter was Christiansen, who was most familiar with
the facts and that Cochran played only a secondary role (Sharpnack
testified that he recommended Mosman's discharge, but Sharpnack was not
examined as to the reason for his recommendation, and, absent anything to
the contrary, it seems fair to infer that he either relied on Christiansen's
recommendation or on the same considerations as prompted that
recommendation )
i i Relatively little stress was placed by Christiansen on Mosman's
record for "loitering" on the job unauthorized departures from his work
area, and absenteeism which, as already related, had earned him eight
written reprimands culminating in a 3-day disciplinary layoff in June The
record show moreover, that, because of about 10 other instances of
tardiness or absenteeism in December Christiansen had on January 13,
1970, prepared a memorandum concerning disciplinary action to be taken
against Mosman, which would however, have consisted only of a
"correction interview" (This interview was never held because of
Mosman's discharge the next day) In view of all these circumstances, I do
not believe that Mosman's absenteeism played a significant role in the
decision to discharge him and infer rather that Christiansen, at least, was
disinclined to take any strong measures because of Mosman's irregular
attendance alone, out of consideration for his proficiency as an employee
i2 Christiansen professed at the hearing to have been unaffected by
such slur However, as noted above, he attributed his decision to discharge
Mosman, in part, to his attitude toward Christiansen, and it would have
been strange , indeed , if he could have disassociated the latest manifestation
of such attitude from the prior ones
Christiansen conceded that Tann, like Mosman, was slow in complying
with the order to break off the argument The record shows also that Tarin
was not discharged but merely reprimanded for the incident The General
Counsel does not, however, contend that such apparently disparate
treatment of Tarin was, in itself, unlawful or somehow shows an improper
motive in discharging Mosman In any event, it would be a sufficient
answer to such contention that Mosman was admittedly the aggressor on
the 14th that , although Tarin was involved in an insubordinate episode in
December, this was, so far as the record shows, the only such incident in
his employment history, and that in that respect his record was far superior
to Mosman's
i N L R B v Burnup & Sims, Inc. 379 U S 21
McDONNELL DOUGLAS CORPORATION 91
As to the second branch of the General Counsel's
argument, the leading case in this area is Bettcher
Manufacturing Corporation, 14 where the Board found
unlawful the discharge of an employee for implying in the
course of a bargaining session that his employer was
deliberately misrepresenting his financial condition. The
Board there stated:
We do not hold, of course, that an employee may never
be lawfully discharged because of what he says or does
in the course of a bargaining conference. A line exists
beyond which an employee may not with impunity go,
but that line must be drawn "between cases where
employees engaged in concerted activities exceed the
bounds of lawful conduct in a `moment of animal
exuberance' (Milk Wagon Drivers Union v. Meadowmoor
Dairies, Inc., 312 U.S. 287, 293) or in a manner not
activated by improper motives, and those flagrant cases
in which the misconduct is so violent or of such serious
character as to render the employee unfit for further
service." 15
Applying that rule here, I find that Mosman did not act
"in a moment of animal exuberance," which phrase,
construed in the context of the Meadowmoor case, I take to
refer to the emotions engendered by confrontations
between adversaries, whether on the picket line, at the
bargaining table, or in a union meeting. For, Mosman's
remark to Tarin was not immediately preceded by any
drawing of lines or staking out of opposing positions or by
any events that were calculated to generate tensions but
was delivered "out of the blue," when Mosman happened
to come upon Tarin in the paint shop. As for Mosman's
motivation, the fact that, as Tarin testified without
contradiction, only a few days earlier Mosman had asserted
to Tarin that he had no interest in the petition militates
against any inference that Mosman was inquiring about the
petition because of any concern about its possible effect on
his overtime assignments. The only reason suggested by the
record for Mosman's action was his propensity for needling
others with or without provocation, in which case, it could
hardly be said that he was activated by proper motives.
As to whether Mosman's conduct was so flagrant as to
render him unfit for further service, it is clear that, in
discharging him, Respondent made the judgment that his
value as an employee, however great, was nullified by his
potential for disruption, as demonstrated by his record for
creating disharmony and flouting discipline and by his
persistence in such conduct on January 14, even after
Christiansen had intervened and despite the strongly
worded warning given him only a few months earlier.
Under these circumstances, Respondent was warranted in
believing that only by discharging Mosman could it insure
harmony and discipline in the paint shop.16
Basically, the difference between a case like Bettcher and
the instant one is that there is involved here not discipline
for a single, isolated incident but action taken on the basis
of a series of incidents, of which only the last had any
apparent relevance to concerted action. In such a case, it is
easier to disentangle the strands of motivation and to find
that it was the common denominator of all the
incidents-namely, the quarrelsome disposition of the
employee-rather than any unique aspect of the final
incident that prompted the discharge.
That finding becomes inescapable here when one
considers the total absence of union animus on the part of
Respondent,17 its generally permissive attitude toward
discussions of union matters on working time, and, more
specifically, the undisputed fact that not only did
Respondent's personnel director, Cochran, approve the
.petition procedure adopted by Tarin but Supervisor
Christiansen even helped draft the petition. In view of this,
it would be almost ludicous to impute to Respondent any
animus toward Mosman because of his reference to the
petition in his encounter with Tarin.
Thus, here, the situation is more nearly like that which
existed in Continental Oil Company, 161 NLRB 1059,
1061-1062, fn. 1, and Borg-Warner Corporation, 155 NLRB
1087, than that which existed in Beitcher. In Continental Oil,
it was found that, although the dischargee's conduct was
interspersed with some involvement in concerted activities,
he was not terminated for that reason but because of his
"continuous manifestations of personal dissatisfaction with
numerous aspects of his job and constant complaining
concerning management decisions as they affected him
. . , ." And, in the Borg-Warner case, where it found no
violation of the Act in the discharge of two employees for
concertedly voicing to management repeated, unfounded
complaints of maltreatment by a supervisor, the Board
stated:
Were the employees terminated because they engaged
in concerted activity? Or were they terminated for some
other and legitimate reason that would have impelled
the Respondent to take such action even independently
of their concerted activity? On the particular facts of
this case we are persuaded that the latter alone formed
the motivating basis for the terminations. To begin with,
there is nothing in the record to suggest that Respon-
dent resented the fact that Shepherd and Strayers had
acted together in presenting these complaints. . . . Nor
is there anything in the record to show that the
Respondent had a purpose to frustrate the presentation
of complaints by other probationary employees. . . . In
short here there is a complete absence of independent
evidence on which to rest an inference that the
Respondent acted either out of hostility toward or in
reprisal for the concerted activity in which the
employees engaged.
Here, too, there is a complete absence of evidence to
support an inference that the Respondent acted either out
14 76 NLRB 526.
", Accord: Soconr Mobile Oil Co., Inc., 153 NLRB 1244; enfd . 357 F.2d
662 (C. A. 2): Indiana Gear Works , 156 NLRB 397: Boaz Spinning Co., 165
NLRB 1019 , enforcement denied , 395 F.2d 512 (C.A. 5).
16 See Stuart F. Cooper Co., 136 NLRB 142, where two union adherents
were disciplined for persisting in soliciting, and arguing with, the members
of an antiunion function, despite the employer's admonitions to desist. The
Board found no violation because the employer's object was to restore
harmony in the plant. See, also, Hicks Ponder Co., 168 NLRB No. 103.
17 It had a long-term contract with the Union and there was nothing in
the record to suggest that Respondent's relations with the Union were
other than amicable.
92 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of hostility toward, or in reprisal for, Mosman's ostensible
interest in the petition drafted by Tarm.18
Accordingly, it is found that Mosman was discharged for
the reasons assigned by Respondent and not for those
alleged by the General Counsel,19 and it will be recom-
mended that the complaint be dismissed.
RECOMMENDED ORDER
It is hereby ordered that the instant complaint be
dismissed in its entirety.
is Cf Falcon Plavuc s, 164 NLRB 786, enfd 397 F 2d 965, 966 (C A 9),
where the Board refused to rely on the approach adopted by it in Beitcher
and held that the employee's insulting remark was merely seized on as a
pretext for discharge, the real reason being his concerted activities This
rationale was an alternative basis for the decision in Thor Poker Tool Co.
148 NLRB 1379, enfd 351 F 2d 584 (C A 7)
IS Although the complaint alleged only that Mosman's discharge was
unlawful because it was in reprisal for his engaging in union or concerted
activities and the case was in the main litigated on that theory, the General
Counsel in his brief suggests as an alternative basis for a violation finding
the theory that Mosman's remarks to Tarin were protected because they
implied a criticism of Tarin's competence as an employee representative,
and such criticism, like any other manifestation of disaffection from a
union is protected by the Act However, even if one overlooks the variance
between this violation theory and that alleged in the complaint , the result
would he the same To complete the General Counsel's syllogism, it would
he necessary to find not only that Mosman's remarks were a protected
criticism of Tarm but also that he was discharged because of the
"antiunion" aspect of the remarks There is little more reason to find that
Respondent was influenced by that aspect than that it was influenced by
the "concerted activities" aspect of Mosman's remarks, for, most of the
considerations cited above that militate against a finding of a discharge for
concerted activities militate against a finding that Mosman was discharged
because of apparent dissatisfaction with Tarin's handling of his union job
I find therefore that Respondent 's concern was about Mosman 's attitude
toward Tarin, not as a union functionary, but as a fellow employee, and
about the fact that the January 14 incident was further proof of Mosman's
incompatibility with his fellow employees Moreover, if one were to follow
the General Counsel's thesis to its logical conclusion and hold that Tarm's
union role made him fair game for any malcontent in the paint shop, what
would there be to prevent such a one from keeping the shop in an uproar
by continual verbal sniping at Tarin, so long as it was couched in terms of
disparagement of his performance of his union functions) I do not believe
that the Act should be so construed as to countenance such a result