National Semiconductor Corp.

National Labor Relations Board - Board Decisions

Oct 26, 1984

272 N.L.R.B. 973 (N.L.R.B. 1984)

NATIONAL SEMICONDUCTOR CORP 973
National Semiconductor Corporation and United
Electrical, Radio & Machine Workers of Amer
Ica Case 32-CA-4255
26 October 1984
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
ZIMMERMAN AND DENNIS
On 20 September 1983 Administrative Law
Judge Michael D Stevenson issued the attached
decision The General Counsel and the Charging
Party filed exceptions and supporting briefs and
the Respondent filed cross exceptions and a sup
porting brief and an answering brief to the Gener
al Counsel s exceptions
The National Labor Relations Board has delegat
ed its authority in this proceeding to a three
member panel
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge s rulings findings I and
conclusions and to adopt the recommended Order
as modified 2
The judge found inter aia that the Respondent
violated Section 8(a)(1) by applying its solicitation
rule to prohibit employees from circulating a peti
tion during nonworktime by confiscating the peti
tion and by interrogating employees concerning
the petition s circulation but that the Respondent
did not violate Section 8(a)(1) and (3) by suspend
mg and then discharging employee John Cun
ningham We affirm the judge s findings based on
the following analysis
The Respondent a manufacturer and nonretail
seller of electronic components operates a facility
in Santa Clara California employing about 9200
persons including 300-350 on the 3 day a week 6
p m to 6 a m shift John Cunningham worked as a
production technician and operator on the 6 p m
shift until his discharge 13 February 1982 3
On Wednesday morning 3 February in Building
A production department D1C employees Carol
Martinez and Dianne Jones were spending the last
part of their break smoking cigarettes in the corn
1- The Respondent has excepted to some of the judge s credibility find
tngs The Board s established policy is not to overrule an administrative
law judge s credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are Incorrect Standard Dry
Wall Products 91 NLRB 544 (1950) enfd 188 F 2d 362 (3d Cir 1951)
We have carefully examined the record and find no basis for reversing
the findings
2 To clarify that the Respondent violated Sec 8(a)(1) by applying its
rule concerning solicitation to prohibit employees from circulating pet
tions protected by Sec 7 of the Act simply during nonworktime rather
than during nonworkume and in nonwork areas we shall amend Conclu
mon of Law 3 and par 1(a) of the recommended Order and issue a new
notice to employees
3 All dates are 1982 unless otherwise indicated
dor Cunningham beginning his own break
emerged from the Bump Fab production depart
ment through swinging double doors into the hall
way He asked Martinez and Jones if they had
heard about a petition he was circulating regarding
a fellow employee who had recently lost her job
Cunningham gave each woman a copy of the peti
tion to read Jones copy already had 15 signatures
on it
At that point Cunningham s immediate supervi
sor James Duffy walked past and noticed Cun
ningham with the two women Duffy was on his
way to relieve employee Jacqueline Nicholson
during her break Duffy said This is a work area
John to which Cunningham replied I know
that Jim Duffy then walked over to the group
and asked Jones who had given her the document
and whether he could see it Cunningham said
You don t have to show it to him but Jones
gave it to Duffy Duffy momentarily looked it over
and noticed that it was a petition Jones said she
had received it from Cunningham Cunningham
then lunged at Duffy in an unsuccessful attempt to
retrieve the document Duffy directed Cunningham
to accompany him to his office with the intention
of preparing a disciplinary notice for violating the
Respondent s distribution and solicitation rule
During the brief walk to Duffy s office which
was one of several cubicles in a large room on the
second floor Cunningham insisted that his rights
had been violated that Duffy had no right to con
fiscate the petition and that he intended to report
the matter to the Board
On reaching his cubicle Duffy telephoned em
ployee Nicholson to advise her of the delay in re
lieving her She asked Duffy to come immediately
because her machine was malfunctioning and an
alarm was sounding Duffy informed Cunningham
that he had to leave immediately because of an
emergency in the evap room Cunningham mo
mentarily blocked Duffy s exit but Duffy managed
to get around him At first Duffy told Cunningham
to wait then he instructed Cunningham to follow
him
As the two men returned to the first floor Cun
ningham lunged for the petition as they neared the
stairwell door making moderate physical contact
with Duffy Duffy demanded and received Cun
ningham s badge indicating that Cunningham was
being suspended for striking Duffy Cunningham
denied striking Duffy but gave him his badge The
two men exchanged brief remarks and continued
toward the evap room Cunningham made one or
two more unsuccessful attempts to retrieve the pe
tition from Duffy each involving body contact
272 NLRB No 148
974 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon entering the evap room Duffy proceeded
directly to the wall telephone and called security
to report that he was being attacked by an employ
ee Cunningham who was closely following Duffy
made another attempt for the petition while Duffy
was on the telephone resulting in moderate inci
dental contact between the two
By this time the swing shift general plant super
intendent James Mather and several security guards
arrived in the hallway outside the evap room
Duffy followed closely by Cunningham returned
to the hallway area As Duffy talked with Mather
about the matter he reached into his pocket to
show Mather the petition and Cunningham made
his last attempt to retrieve the petition This time
Cunningham successfully grabbed the petition but
again made contact with Duffy bumping and shov
ing him Duffy told all persons present that Cun
ningham was suspended for 3 days for striking a
supervisor pending further investigation Mather
escorted Cunningham off the premises
While on suspension Cunningham received three
warning notices The warning notices were for
striking a supervisor for soliciting and distributing
in a work area and for interfering with a supervi
sor in the performance of his duties
On 10 February in the office of Director of Per
sonnel Relations Michael Hart Cunningham pro
vided the Respondent with a detailed statement of
his position and with Cunningham s knowledge
their conversation was recorded On 13 February
the Respondent terminated Cunningham
The judge concluded properly that Cunningh
am s circulation of a petition to reinstate a fellow
employee is protected concerted activity 4 and we
agree with the judge that Duffy violated Section
8(a)(1) by asking Jones who had given her a copy
of the petition and whether he could see it We
also affirm the judge s findings that the Respondent
violated Section 8(a)(1) by applying its solicitation
rule to the petition and by confiscating the petition
Cunningham Jones and Martinez were all on non
worktime and thus under the Respondent s own
rule 5 Cunningham was entitled to solicit whether
or not they were in a work area 6
NLRB v Hendricks County Rural Electric Corp 454 U S 170 173 fn
3(1981)
5 The rule in pertinent part states
1 0 Employees are entitled to engage in verbal solicitation during
non work time both in
1 1 Work areas and
1 2 Non work areas
6 Indeed a rule prohibiting solicitation on employees own time is pre
sumptively invalid Republic Aviation Corp v NLRB 324 U S 793 (1945)
Our Way Inc 268 NLRB 394 (1983)
We find that circulation of the petition constitutes solicitation not dB
tnbution We see no difference between seeking signatures on a petition
rather than an authorization card which the Board has long held to con
We agree also with the judge that Cunningham s
suspension and discharge did not violate Section
8(a)(1) and (3) of the Act for the following reasons
only Over the course of a 10 to 20 minute period
Cunningham made repeated attempts to retrieve
the petition Although Duffy unlawfully confiscat
ed the petition Cunningham s numerous attempts
at self help were at least not justified and at worst
reckless Not only did Cunningham make physical
contact with Duffy he momentarily blocked
Duffy s egress from his second floor cubicle to
attend to an emergency in the evap room Further
on their return to the first floor and the evap room
Cunningham again attempted to retrieve the peti
boon from Duffy once more making physical con
tact with Duffy It is undisputed that in the evap
room there were several dangerous chemical con
tamers and that Cunningham knew of the chemi
cals presence and their dangerous nature The
judge accurately characterized this maneuver as
reckless conduct reflecting a conscious disre
gard for the safety of others Accordingly we
find that the Respondent s discharge of Cun
ningham was not unlawful
AMENDED CONCLUSION OF LAW
Substitute the following for Conclusion of Law
3
3 By applying its rule concerning solicitation to
prohibit employees from circulating petitions pro
tected by Section 7 of the Act during nonwork
time by interrogating employees about such peti
tions and by confiscating such petitions from em
ployees the Respondent violated Section 8(a)(1) of
the Act
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re
spondent National Semiconductor Corporation
Santa Clara California its officers agents succes
sors and assigns shall take the action set forth in
the Order as modified
1 Substitute the following as paragraph 1(a)
(a) Applying its rule concerning solicitation to
prohibit employees from circulating petitions pro
tected by Section 7 of the Act during nonwork
time interrogating employees about such petitions
and confiscating such petitions from employees
stitute solicitation Stoddard Quirk Mfg Co 138 NLRB 615 620-621
(1962) Rose Co 154 NLRB 228 229 fn 1(1965)
NATIONAL SEMICONDUCTOR CORP 975
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT apply our rule concerning solicita
tion to prohibit you from circulating petitions pro
tected by Section 7 of the Act during nonwork
time interrogate you about such petitions and con
fiscate such petitions from you
WE WILL NOT in any like or related manner
interfere with restrain or coerce you in the exer
cise of the rights guaranteed you by Section 7 of
the Act
NATIONAL SEMICONDUCTOR CORPORATION
DECISION
STATEMENT OF THE CASE
MICHAEL D STEVENSON Administrative Law Judge
This case was tried before me at Santa Clara California
on April 26 and at Oakland California on April 27 and
28 and May 23-26 1983 1 pursuant to a complaint issued
by the Regional Director for the National Labor Rela
lions Board for Region 32 on December 16 and to an
amendment to complaint issued on February 23 and
which is based on a charge filed by United Electrical
Radio & Machine Workers of America (the Union) on
February 4 The complaint alleges that National Semi
conductor Corporation (Respondent) has engaged in cer
tam violations of Section 8(a)(1) and (3) of the National
Labor Relations Act (the Act)
Issues
1 Whether Respondent violated Section 8(a)(1) of the
Act by committing one or more of the following Acts
(a) By discriminatorily enforcing a rule against taking
work breaks in a corridor of the facility because of em
ployees protected concerted activity
(b) By confiscating from employees an employee pet
tion relating to protected concerted activity
(c) By interrogating employees concerning an employ
ee petition relating to protected concerted activity
(d) By first suspending and subsequently discharging
employee John Cunningham because he engaged in pro
tected concerted activity
2 Whether Respondent violated Section 8(a)(1) and
(3) of the Act by committing the conduct described in
1(d) above in order to discourage memebership in a labor
organization
All parties were given full opportunity to participate
to introduce relevant evidence to examine and cross ex
amine witnesses to argue orally and to file briefs Briefs
which have been carefully considered were filed on
1 All dates herein refer to 1982 unless otherwise indicated
behalf of the General Counsel the Charging Party and
Respondent 2
On the entire record of the case and from my obser
vation of the witnesses and their demeanor I make the
following
FINDINGS OF FACT
I RESPONDENT S BUSINESS
Respondent admits that it is a Delaware corporation
engaged in the manufacture and nonretail sale of elec
tronic components and having an office and place of
business located in Santa Clara California It further
admits that during the past year in the course and con
duct of its business it has sold and shipped goods and
materials valued in excess of $50 000 directly to custom
ers outside the State of California Accordingly it admits
and I find that it is an employer engaged in commerce
and in a business affecting commerce within the meaning
of Section 2(2) (6) and (7) of the Act
II THE LABOR ORGANIZATION INVOLVED
Respondent admits and I find that United Electrical
Radio & Machine Workers of America is a labor orgam
zation within the meaning of Section 2(5) of the Act
III THE ALLEGED UNFAIR LABOR PRACTICES
A The Facts3
1 General background
Respondent is an international corporation having
branches located in Southeast Asia Europe and the
United States Within the United States there are ap
proximately seven facilities around the country About
40 000 persons are employed by Respondent worldwide
In the Santa Clara facility site of the events of this case
about 9200 persons are employed On the 6 p m to 6
a m shift 3 days per week about 300-350 persons are
employed The principal antagonists were employed on
this shift
The alleged discriminatee is John Cunningham age 37
an employee since August 1977 Prior to his discharge
on February 13 Cunningham worked as a production
technician and operator For about a year before his ter
mination Cunningham was supervised by James Duffy a
statutory supervisor under the Act Before Duffy was
promoted to supervisor in early 1981 the two men
worked together without major incident After Duffy
was promoted to supervisor a series of incidents oc
curred between Duffy and Cunningham culminating in
the incident of February 3 This last incident beginning
2 I grant the motion of the General Counsel contained in fn 2 p 2 of
his brief First it is directed that the exhibit file be corrected in accord
with my rulings at hearing to reflect that G C Exh 12 and R. Exhs 5
and 6 be placed in a rejected exhibit file Other errors have been noted
and corrected
3 There are several conflicts in the testimony Resolving these conflicts
and judging credibility generally is crucial to arnving at a proper deci
span Although both sides were aware of the conflicts even before the
case began no motion to sequester the witnesses was made I cannot ac
count for this omission under the circumstances
976 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
about 4 a m on February 3 led to the termination of
Cunningham a few days later Before reciting the events
of the morning in question I first note certain back
ground events which will assist in putting the key events
in focus
Beginning shortly after he was hired Cunningham was
a strong proponent of the Union to say the least An in
formal organization called the UE Organizing Commit
tee existed on Respondent s premises This committee
consisted primarily of Cunningham and a small group of
other employees In advocating the Union Cunningham
distributed union literature at various times in places
both within the outside of company premises wore
union insignia on his clothing and frequently mentioned
the Union at certain departmental meetings It should be
noted however that in the strictest sense there was no
union organizing campaign in progress at any times ma
tenal to this case so far as the record shows That is no
union authorization cards were ever distributed no gen
eral meetings of interested employees were ever held
and no election had ever been scheduled Indeed as will
be more clearly recited below Cunningham s tactics fre
quently were condemned not only by Duffy and other
representatives of management but also by some rank
and file employees
For example Dianne Jones a witness presented by the
General Counsel related how she had observed Cun
ningham enter a work area about a year before the inci
dent in question While employees were engaged in pro
duction that is on worktime Cunningham distributed
union literature to a female employee Another incident
according to Jones occurred just a few weeks prior to
February 3 Cunningham had been distributing literature
in the cafeteria and a female employee named Fern
Baker had thrown the literature away Jones observed
Cunningham walking behind Baker in the hallway grab
her by the arm and spin her around angrily saying
You don t throw my union papers in the garbage
Baker replied that she could throw anything away that
she did not want to read Cunningham replied No you
can t throw my union papers away The incident was
then broken up by a supervisor named Fran Cun
ningham also called by the General Counsel did not
deny the first incident but did contradict Jones as to the
second incident According to Cunningham Baker had
taken certain union literature which he had given her in
the cafeteria wrinkled it up and thrown it over her
shoulder hitting Cunningham in his head He did not re
spond at the time because it just didn t suit my objec
tives at all (Tr 771) Instead about a week later he ob
served Baker walking in the hallway and he touched
her on the shoulder and asked her why she threw the
leaflet at him She responded that she could do anything
she wanted and at this point Fran the supervisor
broke it up I credit Jones on this point because I find
that she had nothing to gain in her testimony and more
importantly this evidence is consistent with other testi
mony reflecting a pattern of conduct by Cunningham in
responding to adverse circumstances 4
4 The General Counsel denied that he was impeaching Jones with this
part of Cunningham s testimony He contended (Tr 615 616) I m simply
Other relevant background evidence was provided by
Irvin Lee Tullis a uniformed security guard employed
at Respondent In February 1981 he received information
that a person was passing out literature in Respondent s
cafeteria without an employee badge A supervisor di
rected Tullis to go there and investigate In the cafeteria
Cunningham was passing out union literature while he
was on a 20 minute break Cunningham admitted that he
was not wearing his employee badge in violation of com
pany rules However he also testified that except for re
porting to work at the beginning of an employee s shift
the rule about wearing name badges was only loosely en
forced In this respect Cunningham was supported by
Duffy who testified that while at work he wears a name
badge occasionally (Tr 1292) In any event Cun
ningham responded to Tullis in front of 75-150 employ
ees using the cafeteria at the time by first refusing to
give his name or showing his employee badge Then in a
loud and abusive tone of voice Cunningham called
Tullis a son of a bitch security guard who didn t have
any sense like all security officers Cunningham used
other profanities which the witness was reluctant to
repeat Then Cunningham who refused to show his
badge or even give his name demanded Tullis name
and badge number which the witness provided Cun
ningham also claimed he was being harassed because he
was distributing union literature Tullis a mild mannered
person reacted to Cunningham by withdrawing from the
area and reporting the incident to his supervisor 5 Cun
ningham admitted the encounter with Tullis but denied
using abusive language or profanities He also testified
that he did identify himself and show his badge eventual
ly I credit Tullis account of the incident as I find him
to be a more credible witness and further as noted
above I discern a pattern to Cunningham s behavoir
under certain conditions This evidence fits the pattern I
particularly reject as improbable Cunningham s explana
non for not wearing his employee badge He testified
that in going on break he changed from a working
smock to a windbreaker He removed the employee
badge from the smock and inadvertently placed it in his
pocket rather than attaching it to his windbreaker While
I cannot speculate on Cunningham s real motives for not
wearing the badge I find that he was not that he knew
he was in violation of the Company s rule and that he
reacted to Tullis in the manner related above
In November 1981 Duffy held a meeting of his 10 em
ployees titled Team up to Win This meeting was to
discuss the Company s financial condition and various
methods of cutting costs and increasing production Em
ployee suggestions were solicited Cunningham raised the
possibility of layoffs and demanded to know which em
ployees would be affected Cunningham refused to relin
quish the floor even after Duffy denied that layoffs were
imminent No other employee supported Cunningham
trying to provide additional facts on that particular Instance which will
explain what was happening In partial agreement with the General
Counsel I find It was Cunningham and not Jones who was Impeached
5 A few days later Cunningham was disciplined in part for his treat
ment of Tullis However since the entire matter played no role in Cun
ningham s discharge I consider the evidence as general background only
NATIONAL SEMICONDUCTOR CORP 977
and two other employees Alicia Moss and Jackie Nich
olson spoke up asking Cunningham to be silent but he
persisted saying We have a right to know When
Duffy asked who he was purporting to speak for Cun
ningham answered the Union Organizing Committee
Finally Dully ended the meeting and told Cun
ningham to accompany him to Duffy s office on the
second floor of Building A There Duffy accused Cun
ningham of disrupting the meeting and of soliciting for
the Union on worktime in violation of company rules
Duffy told him not to bring up the Union again during
worktime When Cunningham denied he had violated
company rules Duffy obtained a copy of the rule in
question from Respondent s human relations department
Cunningham asked to see it but Duffy refused believing
that the three ring binder in which the policy was con
tamed was confidential He did not think of removing
the document from the binder and showing it to Cun
ningham As Duffy began to read the policy to Cun
ningham the latter began to take notes Duffy objected
to this procedure too so he began to paraphrase the doc
ument When Cunningham discontinued the taking of
notes Duffy read the document in haec verba The doc
ument in question reads as follows
SUBJECT SOLICITATIONS
Solicitation of any type or distribution or circula
tion of any literature or materials is not permitted
on working time In addition distribution or circu
lation of any literature or materials of any kind is
not permitted in working areas of company prem
ises at any time At no time or place shall any solic
itation or distribution in any way connected with
the sale of goods or services for profit be permitted
For purposes of enforcement and clarification the
above mentioned rule stated in permissive manner
1 0 Employees are entitled to engage in verbal
solicitation during non work time both in
1 1 Work areas and
1 2 Non work areas
2 0 Employees are entitled to distribute literature
during non work time but only in non work areas
3 0 Solicitation or distribution in any way con
nected with the sale of goods or services for profit
is expressly forbidden on company premises
4 0 Solicitations for contributions donations re
tirement parties functions etc are expressly forbid
den on company premises or within company facili
ties without prior approval of the Human Relations
Employee Relations Departments or the local facili
ty manager [G C Exh 4]
Cunningham denied that this rule had been distributed to
employees or posted on any bulletin boards This testi
mony was contradicted by Michael Hart Respondent s
director of employee relations who testified that as of
February 1981 he had Respondent s policy posted on
bulletin boards in the Santa Clara facility I credit this
testimony In addition Hart directed that supervisors
hold meetings to explain Respondent s policy to employ
ees More specifically Duffy held a meeting with his ern
ployees to explain the new rule Duffy told the group
that the corridors outside the area by the lockers (to be
further described below) were considered a work area
Cunningham stated repeatedly that he did not understand
Duffy s remarks No other employee said they did not
understand A few weeks later a supervisor from the
human relations department named Tina Rulo 6 held a
similar meeting with Duffy s employees including Cun
mngham to reiterate Respondent s policies regarding so
liciting and distributing She articulated a twofold ration
ale for designating the hallways as a work area (1)
Safety considerations due to the movement of dangerous
chemicals acids and gasses through the corridors and
(2) a cleanliness factor which would be affected by
people eating or drinking in the hallway
Before turning to the crucial events in question I note
briefly a description of Respondent s premises Building
A contains certain production facilities on the first level
and other production facilities and supervisor offices in
eluding Duffy s on the second level General Counsel
Exhibit 2 is a general diagram of the area in question al
though not drawn to scale All corridors in question are
8 feet wide Additional details will be recited below as
necessary
2 The events of February 3
The morning of February 3 was a Wednesday the last
day of a 3 day 12 hour per day workweek Two current
longtime employees of Respondent Carol Martinez and
Dianne Jones testified at the hearing They are em
ployed in a production department named DLC Sort lo
cated in Building A (first level) While on break they
had left Building A driven to a nearby Seven Eleven
Food Store and returned to the corridor where they
were spending the remaining minutes of their break (See
R Exh 17) Nearby was a men s and women s wash
room two public telephones employee lockers ashtrays
attached to the wall about 3 or 4 feet from the floor and
a water fountain (R Exhs 8 11 12 13 and 18)
As the two women talked and smoked cigarettes Cun
ningham emerged from swinging double doors (R Exh
11) leading from a production department called Bump
Fab into the corridor area The women were about 10
feet from the doors He was beginning his break as the
women were finishing theirs Cunningham asked the
women if they had heard about a petition he was circu
lating with respect to a woman who had lost her job a
few days before Cunningham gave each of the women a
copy of the petition to read (G C Exh 3) and added
that a prior petition drive on behalf of another employee
had been successful as this person had been reinstated
Fifteen persons had signed the petition presented to
Jones About 50 copies were then being circulated
throughout the Company by Cunningham and others
This activity had begun about a week before the day in
question
6 At the time of the hearing this person had left Respondent s employ
and did not testify
978 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As the women were reading the petition Duffy was
about to enter into the same double doors from which
Cunningham had exited a few minutes before Duffy was
on his way to relieve employee Jacqueline Nickolson a
current employee and witness at hearing She was sched
uled to begin a break at this time but in accord with
usual practice Duffy operated her machine while she was
gone
Before Duffy entered the doors he turned his head
and saw Cunningham with the two women The two
women were not under the supervision of Duffy Duffy
said This is a work area John and Cunningham re
plied I know that Jim Then Duffy walked over to
the group to see what the paper was At this point there
is another important conflict in the evidence According
to Cunningham Duffy stated Is this some more of that
union stuff or words to that effect Duffy denied
making any reference to a union In resolving this credi
bility issue I note that immediately after the incident
ended Cunningham wrote a 12 page account of the
matter which he later gave to the Board as part of an
affidavit While Cunningham was a careful note taker
and statement writer the 12 page statement does not
contain Duffy s alleged opening remark On March 26
Duffy wrote a supplemental statement for the NLRB in
vestigator and Duffy s alleged remark still does not
appear On March 29 Cunningham wrote a letter to a
Board agent about the matter in issue and still did not
mention Duffy s alleged statement
Looking to the testimony of Martinez and Jones I
note that Martinez never testified about the matter at all
while Jones testified that Duffy asked whether the paper
had anything to do with the Union However Jones tes
timony was elicited only after her memory had been re
freshed by a statement she had given to the General
Counsel sometime before she was called as a witness
Jones had first testified that Duffy had asked only what
were they doing and that Cunningham was not supposed
to be soliciting or distributing papers in a work area Im
mediately after the incident was over Jones gave a state
ment to Respondent s security guards and on February 8
Jones gave another statement to personnel official Tina
Rubo In neither statement did Jones refer to Duffy s al
leged remark On the basis of this evidence I credit
Duffy s testimony that he did not make this remark and
discredit Cunningham and Jones testimony that he did
In any event there is substantial agreement that Duffy
asked Jones who had given the document to her and
whether he could see a copy of the paper Although
Cunningham stated You don t have to show it to him
Jones did give the petiton to Duffy who looked it over
momentarily and saw that it was a petition Jones also in
dicated that she had received it from Cunningham Cun
ningham then lunged at Duffy attempting to retrieve the
document but was unable to do so No body contact
was made at this time Duffy then directed Cunningham
to accompany him to his office intending to prepare a
disciplinary notice for Cunningham violating Respond
ent s distribution and solicitation rule Duffy intended to
attach the petition to the warning notice
Duffy s office was on the second level of Building A
To get there the two men walked to a stairwell walked
upstairs and entered a large room which contained sev
eral cubicles arranged by movable petitions about 5 or 6
feet high (R Exh 10) During the 1 minute walk to
Duffy s office Cunningham told Duffy that he had no
right to confiscate the petition that Duffy had violated
his rights and that Cunningham intended to report the
matter to the NLRB in the morning 7
Once inside his cubicle office Duffy went to call
Nickolson to say that he would be delayed in relieving
her Nickolson reported however that her machine was
malfunctioning and that an alarm was sounding She did
not know what the trouble was but asked Duffy to come
there immediately
According to Duffy he told Cunningham that there
was an emergency in the evap room and that he had to
leave immediately Cunningham momentarily blocked his
way as Duffy attempted to leave the cubicle Cun
ningham denied blocking the cubicle Then Duffy man
aged to go around him and as he left he told Cun
ningham to wait for him then seconds later told Cun
ningham to accompany him
The brief exchange in Duffy s cubicle was witnessed
by an employee Hannelore Holland who was seated
about 10-12 feet away from Duffy s cubicle Her atten
lion was drawn by the angry voices coming from the cu
bide She heard Cunningham say That will have to be
my business She also observed Cunningham blocking
Duffy s exit from the cubicle I credit Duffy s acocunt of
this incident but find that Cunningham was only con
trilling his efforts to retrieve the petition and that Duffy
was obstructed for a minute or less
As Duffy and Cunningham began to retrace their steps
back to the first floor so that Duffy could respond to the
malfunctioning machine Cunningham once again lunged
for the petition as the men were near the doors leading
to the stairs on the second floor Duffy claimed that
Cunningham blocked him hard with his shoulder while
Cunningham conceded only incidental contact as he
reached over Duffy s shoulder in an attempt to recover
the petition I find that there was moderate contact
amounting to pushing and shoving between Duffy and
Cunningham
This time Duffy confronted Cunningham and demand
ed Cunningham s badge This meant that Cunningham
was being suspended for striking Duffy Cunningham
surrendered his badge to Duffy although denying that
he had struck him Duffy placed the badge and the peti
ton in one of his pockets Both men were aware of three
female employees nearby apparently observing the con
frontation Both men seemed to be playing to their au
dience to a degree based on their remarks made to each
other For example Cunningham loudly asked Duffy
why he was telling a he about his having been struck
Similarly Duffy s request for Cunningham s badge may
7 At this point and at other periods in the case Cunningham requested
of Duffy that a witness be present In light of the General Counsel s re
peated assurances in this case (e g Tr 305) that no violation is alleged
under the principles of NLRB v J Weingarten 420 U S 251 (1975) I will
generally Ignore this part of the evidence as irrelevant to the basic issues
However It should be noted that It was Cunningham s general practice in
his dealings with Duffy and with Hart to request that a witness be
present if discipline was expected
NATIONAL SEMICONDUCTOR CORP 979
well have been more for the benefit of the witnesses than
any other factor. Curiously, none of the women were
called as witnesses although they were apparently identi-
fied.
In any event, as the two men finally arrived at the
evap room downstairs, there were one or two more un-
successful attempts by Cunningham to retrieve the peti-
tion and each attempt led to body contact between the
two. Finally, as Duffy entered the evap room he went
first to a telephone where he called plant security and
stated that he was being attacked by an employee. While
Duffy was on the phone, Cunningham roughly made a
grab for the petition. Duffy claimed that he was punched
in the jaw and knocked back over a table near the tele-
phone This version is supported by witness Nickolson,
who was observing the two men as they entered her
work area. Cunningham denied any contact with Duffy
at all, although again conceding that he lunged for the
petition in Duffy's pocket while the latter was on the
phone.
In a statement to Tina Rub o on February 8 about the
incident, Duffy never mentioned that Cunningham had
punched him in the jaw Similarly, in Duffy's affidavit to
the Board, he never mentioned the alleged punch. In an
employee warning sheet prepared by Duffy about Cun-
ningham's action on February 3, there is no mention of
any punch in the face at this point. When confronted
with all of this, on cross-examination, Duffy responded
with some exasperation, "I said, 'I think he hit me,' I
didn't say 'he hit me." (Tr. 354.) Nickolson was even
more graphic in her testimony than Duffy, saying that
Cunningham hit Duffy with a closed fist, knocking him
back against a table. However, in her statement to the
Company's security officer, prepared a few minutes after
the incident happened, she stated that it appeared to her
that Cunningham went to grab the telephone. Immediate-
ly after the call had been made to security, Duffy sug-
gested that Cunningham and he go outside the evap
room back through the double doors. At this point,
Duffy stated, "John, if you hit me again, I'll have to
defend myself."
Moments later, about three or four uniformed security
officers and General Plant Superintendent James Mather
arrived. Duffy stated that he had been hit or attacked by
Cunningham and that he had suspended Cunningham for
that reason. Duffy also stated that the incident had begun
when Cunningham was soliciting in the hallway.
All parties agree that Duffy had no marks, cuts, or
bruises on his face and that he required no medical atten-
tion. After the security guards arrived, Duffy never
stated that he had been struck in the face and the police
were never involved. Accordingly, I find that Duffy was
not hit or punched in the face by Cunningham, but
rather had again sustained moderate incidental contact as
Cunningham continued to attempt to retrieve the peti-
tion
The security force was led by Mather, the highest
ranking company official present on the premises at that
hour. As he and several other uniformed security officers
arrived in the hallway outside the evap room, Duffy
stated that Cunningham hit him after the incident had
started. Duffy then reached Into his pocket and showed
Mather the petition, saying "this is what he was after."
At this point Cunningham made his final lunge into
Duffy and grabbed the petition from his hand, once
again bumping and shoving Duffy in the process.
Mather, a trained Karate master, was ready to break up
what he thought was an assault on Duffy. At this point,
Duffy told Mather and the other guards that Cun-
ningham was suspended for 3 days for striking a supervi-
sor pending further investigation.
Before Cunningham was escorted off the premises, he
first took his notebook out to record the names of all
persons involved in the incident. Later, Cunningham told
Mather that Duffy had no right to confiscate the peti-
tion, and as proof of that, Cunningham went on, "You
[Mather] haven't taken the petition from me."
Before Nickolson left work that morning, she received
a telephone call from Cunningham. He asked her and
any others from Duffy's department who were interested
to meet him at a nearby restaurant, so Cunningham
could give his side of the incident. Neither Nickolson
nor anyone else went to meet with Cunningham.
Subsequent to February 3, Duffy was directed by his
supervisor to issue three warning notices to Cunningham:
for striking a supervisor, for soliciting and distributing in
a work area, and for interfering with a supervisor in the
performance of his duties. (G.C. Exhs. 5, 6, and 7.) On
February 10, Cunningham was requested to come to
Hart's office and give a detailed statement of his position.
Cunningham did so and with his knowledge, his state-
ment was tape recorded. (R. Exh. 23) A transcript of
this statement was admitted into evidence. (R. Exh. 22.)
On February 13, Hart had a telegram sent to Cun-
ningham stating that Cunningham was fired from the
Company. (G.C. Exh. 9.)
B. Analysis and Conclusions
I The alleged discriminatory enforcement of
Respondent's rules with respect to taking breaks in
certain corridors, and other alleged violations of the
Act
Respondent presented an abundance of evidence prov-
ing that the taking of breaks in the corridors of Building
A is dangerous. Thus, I find that certain chemicals are
transported at irregular times between the chemical mix
sections of the building and the production and process-
ing areas, such as bump fab and evap. According to wit-
ness James Steward, Respondent's director of industrial
safety and an expert in industrial safety, the chemicals
are basically divided Into acids and solvents. These
chemicals are dangerous to human skin and mucous
membranes A photograph showing the type of cart used
to transport these chemicals was received into evidence.
(R. Exh. 17.) In light of the above it is not surprising
that Respondent purported to designate the hallways as
work areas, and held occasional meetings of employer
groups to discourage the taking of breaks in the hall-
ways. Nevertheless, I find that application of Respond-
ent's solicitation rules to prevent Cunningham's circula-
980 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion of the petition was discriminatory and violated Sec-
tion 8(a)(1) of the Act 8
Respondent's policy on solicitations is reflected above.
I find that Respondent violated the Act by application of
this rule to Cunningham for the following reasons First,
Respondent's enforcement of the rule was ambiguous, in-
consistent, and confusing. Thus, both Jones and Marti-
nez, two long term current employees of Respondent on
the night shift, testified that they regularly took at least
part of their breaks in the relevant lower level hallways
of Building A. These two women were supervised by
Fran Nelson, who did not testify. Even she, on occasion,
as well as other employees on a daily basis, took breaks
in the area where this incident began
I credit Cunningham's testimony that he, too, frequent-
ly took breaks in these same hallways. He went on to
testify that Duffy occasionally observed him at these
times and said nothing. The latter part of his testimony
seems less likely since, at least as compared to other su-
pervisors on the night shift, Duffy did attempt to enforce
Respondent's policy with respect to employees not
taking breaks in the hallways 9 As recent as 4 months
prior to the hearing in this case, Duffy continued to
complain to his supervisor, Saldana, that other supervi-
sors were not enforcing Respondent's policy on no
breaks in the hallways (Tr. 1294-95.)
Not only did Respondent tolerate inconsistent enforce-
ment of its policy by its supervisors, it also held out the
area in question as suitable for the taking of breaks.
Thus, in the immediate area where this incident began
there were two public telephones, ashtrays attached to
the wall, employee lockers and washrooms, a water
fountain, a timeclock, and garbage cans suitable for dis-
posal of refuse left over from employee trips to the
Seven Eleven Food Store or the cafeteria. In addition,
there were no signs prohibiting loitering or the taking of
breaks in the area. While there were no chairs or vend-
ing machines there, some employees were permitted to
squat down or lean against the wall with impunity In
sum, I find that the hallway where this incident began
could not properly be called a work area because of the
8 The General Counsel has agreed with Respondent not to challenge
the facial validity of Respondent's policy on solicitations (Tr 1693-
1700 ) I feel bound by this agreement Therefore, I make no finding on
this point However, even where a policy is assumed to be facially valid,
its application to protected concerted activity may violate the Act See
William L Bonnell Co v NLRB, 405 F 2d 593, 595 (5th Or 1969),
Revere Camera Co v NLRB, 304 F 2d 162, 165 (7th Or 1962)
9 During the hearing I indicated my confusion with respect to Re-
spondent's position on this point as Indicated by this exchange with Re-
spondent's counsel
Is the Respondent going to deny that there was a custom and
practice of taking breaks in this hallway that we've been referring
to9
MR PARAS There may have been people who did it, Your Honor,
but it was contrary to the company's policies
JUDGE STEVENSON Perhaps so But that isn't really what I asked
We all know that there are rules on the books and sometimes people
don't enforce them and sometimes they are Now, if it's your posi-
tion that these were all lawbreakers there day after day, then maybe
we have to go into it But
MR PARAS Well, there are departmental variances obviously, as
there are in every operation But in Mr Duffy's operation, we un-
derstand that the company rules with regard to taking breaks in that
corridor were enforced
inconsistent supervisor enforcement activity and because
the area seemed to be held out as a break area.
Where ambiguities appear in work rules, promulgated
by an employer, the ambiguities must be resolved against
the promulgator of the rules rather than the employees
who are required to obey them. ° So, too, when an em-
ployer creates confusion and uncertainty in the minds of
employees or some of them by inconsistent enforcement
of work rules, then the Respondent must be held ac-
countable.
In further support of finding a violation of Section
8(a)(1), I further find that when Duffy approached Cun-
ningham and the two women, Duffy knew that Cun-
ningham was on a break and that he was in a nonwork
area. In the alternative, even if the hallway area could be
construed generally as a work area, all agree that no
work was occurring there when Duffy approached Cun-
ningham and the two women. That is, there was no
movement of chemicals of any other work in progress."
In Republic Aviation Corp. v. NLRB, 324 U.S. 793, 803-
804 fn. 10 (1945), the Court stated, in pertinent part:
It is no less true that time outside working hours
. . . [including] rest periods, is an employee's time
to use as he wishes without unreasonable restraint,
although the employee is on company property It
is therefore not within the province of an employer
to promulgate and enforce a rule prohibiting union
solicitation by an employee outside of working
hours, although on company property.
In this case, Cunningham was using his breaktime not
to solicit for a union but to solicit signatures for a peti-
tion to reinstate another employee who had been termi-
nated. Circulation of a petition for this purpose is a pro-
tected concerted activity under Section 7 of the Act."
That is, circulation of a petition on behalf of a dis-
charged employee is protected activity under Section 7.
Such activity is protected even if the discharge of the
employee was lawful." Duffy knowingly and willfully
interfered with Cunningham's protected activity and co-
erced him and the two women in the exercise of their
Section 7 rights It makes no difference that Duffy may
not, at first, have known of Cunningham's protected ac-
tivity. Duffy had no right to approach Cunningham in
the first place, under the circumstances present here.
Further, Duffy's course of conduct and his intention to
discipline Cunningham even after he learned of the spe-
cific protected activity makes the finding of the violation
certain.' 4
i ° J C Penney Co. 266 NLRB 1223 (1983), Jas. H Matthews & Co v
NLRB, 354 F 2d 432, 441 (8th Or 1965)
" This would be still another theory under which application of Re-
spondent's rule to Cunningham was unlawful See Clougherty Packing
Co. 240 NLRB 932 (1979)
12 Youngstown Osteopathic Hospital Assn, 224 NLRB 574 (1976), Amoco
Fabrics Co. 260 NLRB 336, 348-350 (1982), Cf Hawthorne Mazda, Inc.
251 NLRB 313, 315 (1980)
13 Hendricks Electric Corp v NLRB, 603 F 2d 25, 27 (7th Or 1979)
remanded 247 NLRB 498 (1980), enf denied other grounds 627 F 2d 766
(7th Or 1980), revd 454 US 170 (1981)
" It is unnecessary to determine whether Cunningham was soliciting
or distributing because under either characterization the violation stands
NATIONAL SEMICONDUCTOR CORP 981
I further find that Duffy's confiscation of the petition
violated Section 8(a)(1) of the Act as wel1. 15 Duffy testi-
fied that he intended to staple the petition to the discipli-
nary notice which he was going to prepare for violation
of Respondent's no-solicitation rule. Had such a notice
been prepared, it too would clearly have been null and
void under the circumstances.
I found above that Duffy did not say, "Is this some
more of that union stuff." He did, however, ask Jones
who had given the document to her, and whether he
could see it. I agree with the General Counsel (Br. p. 25)
that such questioning about the nature and source of a
protected petition is virtually a definitive violation of the
Act. Accordingly, I find that this questioning violates
Section 8(a)(1) of the Act.16
2. The alleged unlawful discharge of Cunningham
The General Counsel alleges that the discharge of
Cunningham violates Section 8(a)(1) and (3) of the Act.
Despite my findings of 8(a)(1) violations of the Act
above, and despite the fact that Respondent knew of
Cunningham's union and other protected activities for
about a year prior to the incident in question, it does not
automatically follow that the violations are established.
Rather, further analysis is required.
I begin by noting Duffy's description of Cunningham
as always acting in an agressive manner toward Duffy.
Much of the animosity expressed toward Duffy occurred
in the course of Cunningham allegedly asserting his
rights under Section 7 of the Act, or what he claimed
were his rights. However, "Section 7 rights are . . . not
a sword with which one may threaten or curse supervi-
sors." 17 Evidence in this case shows that Cunningham
was occasionally abusive and disdainful of Respondent's
rules and regulations. Witness, for example, the incidents
with Fern Baker and Tullis as related above. The Gener-
al Counsel contends (Br. pp. 28-29) that Cunningham's
case received "special attention" because of Respondent's
desire to build a case against him. However, the record
refutes this contention. First, I credit Duffy's testimony
that he recommended that Cunningham be disciplined
for allegedly disrupting the "Team Up to Win" meeting,
and that a company official denied this recommendation,
saying that Duffy had been wrong in his handling of the
matter. I further credit Hart's testimony that to the
extent that Cunningham's case had been treated with any
special care, e.g., notification of Roy Brandt, a company
executive, of the incident at his home at 6 a m., it was
not to build an unfair case against Cunningham but
rather to defend the Company's position in later proceed-
ings. That is, it was fully expected that Cunningham
would complain to the Board as he had told both Duffy
and Mather at the time of the incident. In short, even if
Respondent welcomed the opportunity to discharge Cun-
ningham, that does not make the discharge unlawful
under the Act, if he would have been terminated in any
13 Amoco Fabrics, Co , supra, 260 NLRB at 350
16 PPG Industries, 251 NLRB 1146 (1980)
" Champion Parts Rebuilders v NLRB, 709 F 2d 178 fn 7 (3d Cir
1983)
event. 18 The Act does not protect employees from their
own misconduct or insubordination." This is true even
where union animus is present."
To recapitulate my findings of fact above, Cun-
ningham made four or five attempts to retrieve the peti-
tion from Duffy. At no time did he intentionally strike,
hit, punch, or slap Duffy. However, I find that he re-
peatedly bumped, jostled, and pushed Duffy in attempt-
ing to get the petition back In the field of labor manage-
ment relations law, no less than in other areas of juris-
prudence, a man is held to intend the foreseeable conse-
quences of his conduct. 21 Cunningham must have fore-
seen that by repeatedly lunging for the petition he would
inevitably make contact with Duffy. I note that Duffy
stood 5 feet 10 inches and weighed 160 pounds, while
Cunningham stood 6 feet 4 inches, weighed 195 pounds,
and had an exceptionally long reach
Cunningham's rationale for attempting to retrieve the
petition was to protect the signers from being singled out
by the Company if their names were seen prematurely
and without the protection of other signers whose names
were on other copies of the petition. I find that Cun-
ningham's concern was sincere. I also find that Cun-
ningham was fully informed of available remedies such
as filing charges with the NLRB which he had done on
several past occasions. In addition, there was an internal
grievance system available by which an employee could
file a complaint against a supervisor with Hart or some-
one in his department. Yet with all of this, Cunningham
elected to resort to self-help. Thus, at this point, I turn to
and adopt the issue as framed by the General Counsel
(Br. p. 31):
. • . whether Cunningham's conduct in attempting
to retrieve the unlawfully confiscated petition was
sufficiently egregious as to remove him from the
protection of the Act.
Turning to the case of Atlantic Steel Co., 245 NLRB
814 (1979), for guidance, I note the Board's statement
that "even an employee who is engaged in concerted
protected activity can, by opprobrious conduct, lose the
protection of the Act." As to whether an employee has
crossed the line, the Board in Atlantic Steel Co., instructs
me to look at several factors to which I now turn:22
a. Whether the outburst was, in any way, provoked by
an employer's unfair labor practice
Here I have found that Duffy provoked the incident
and thereby committed unfair labor practices." I also
18 Golden Nugget, Inc , 215 NLRB 50 (1974), PG Berland Paint City,
199 NLRB 927 (1972)
9 Guardian Ambulance Service, 228 NLRB 1127, 1131 (1977)
20 H M Patterson & Son, Inc , 244 NLRB 489, 490 (1979)
21 Texas Electric Coop, 197 NLRB 10, 14 (1972), citing Radio Officers
v NLRB, 347 US 17, 45 (1954)
22 I have taken the license of rearranging the listing and restating the
wording of these factors to better fit the facts of this case
23 The more extreme an employer's wrongful provocation, the greater
would be the employee's justified sense of indignation and the more
likely its excessive expression NLRB v M & B Headware Co, 349 F 2d
170, 174 (4th Or 1965)
982 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
find that Duffy was not motivated by animus against the
Union nor Cunningham's union activities or other pro-
tected activities, but rather was the victim of poor train-
ing and Respondent's confusing policy relative to the
taking of breaks in hallways. I find further that after the
incident began, Duffy did not act in any provocative
way other than to maintain possession of the petition.
Even though Cunningham was provoked, his response
lasted between 10-20 minutes. During this period of
time, Cunningham should have cooled off and stopped
his efforts to regain possession of the petition.24
b. The place of the discussion
Respondent contends (Br. p 43) that greater tolerance
should be made for improprieties which occur in the
course of formal grievance meetings and collective bar-
gaining because it is expected that passions and tempers
will be aroused. Yet, the converse could be argued. An
employee engaging in protected activity on break who is
improperly singled out by an errant supervisor can be ex-
pected to make a vigorous response precisely because he
had a reasonable expectation of being left alone. In addi-
tion, I note that the incident did not begin in a work or
production area as found above. However, it did end up
in the evap room, a production area, and production to a
degree was thereby affected. This factor, on balance,
weighs in favor of Respondent.
c The subject matter of the protected activity
In another context, the Board has indicated its view
that not all Section 7 rights are necessarily of equal
nature and strength. 25 Thus, while union organizational
activity is entitled to the greatest protection of the Act,
petition circulating may be entitled to a lesser degree.
This factor too must be counted for Respondent.
d. The nature of the employee's outburst
I have made detailed findings above as to what Cun-
ningham did and continued to do and the resulting
bumping and jostling of Duffy, even after Duffy told
Cunningham to surrender his employee badge. In E. I.
du Pont & Co., 263 NLRB 159 (1982), the Board stated:
An employee is not justified in resorting to vio-
lent self-help to settle differences with a supervi-
sor. . . . We do not condone physical assaults by
an employee on a supervisor, or even slaps his su-
24 In Prescott Industrial Products Co, 205 NLRB 51 (1973), modified
500 F 2d 6 (8th Or 1974), a case cited and relied on by the General
Counsel (Br p 31) the Board stated
there is a line beyond which employees may not go with impu-
nity while engaging in protected concerted activities and that if em-
ployees exceed the line the activity loses its protection That line is
drawn between cases where employees engaged in concerted activi-
ties exceed the bounds of lawful conduct in a moment of animal exu-
berance or in a manner not motivated by improper motives and those
flagrant cases in which the misconduct is so violent or of such char-
acter as to render the employee unfit for further service [Emphasis
added ]
Here there was indeed more than a "moment of animal exuberance",
Cunningham's actions were witnessed by other employees and were
clearly so insubordinate as to render him unfit for further service
28 Montgomery Ward & Ca, 265 NLRB 60 (1982)
pervisor, we consistently find that employee's con-
duct to be unprotected activity, and an employer's
discharge of that employee for such conduct is nor-
mally upheld.
In the DuPont case, the Board found an employee's re-
flexive pushing of a supervisor in the chest to move him
away was not serious enough to lose the protection of
the Act, particularly when considered in light of exten-
sive past harassment of the employee by the supervisor
being pushed away. The instant case is different. Here
while the body contact was moderate and only incidental
to Cunningham's effort to retrieve the petition, it was re-
peated and lasted for several minutes in several different
locations and tended to incite violence.26
Further, I find no past campaign by Duffy or any
other Respondent representative to provoke Cun-
ningham. Indeed, as noted above, Duffy was precluded
from disciplining Cunningham for insubordination after
the "Team Up to Win" meeting. I also note that Cun-
ningham was disciplined for two past occasions of ex-
pressing insubordination to Duffy.27
I have found above that Cunningham sincerely was
concerned about the employees who signed the petition.
Yet, it seems that his concern for their well-being, in the
absence of any evidence showing objectively a well-
founded concern, either by Cunningham or by the sign-
ing employees, means that the rationale for Cunningh-
am's behavior is less than compelling. Accordingly, in
considering what Cunningham did and why, I continue
to weigh the evidence in Respondent's favor.
For me this case is not free from doubt. However, on
balance, I must rule in favor of Respondent, particularly
in considering the final events of this drama. First, the
parties stipulated that when Duffy and Cunningham
were in the evap room and the former was calling secu-
rity several containers of dangerous chemicals were
present and Cunningham knew of them and the dangers
they posed. (Tr. 1170.) Yet notwithstanding this knowl-
edge of the chemicals and knowing that an employee
was observing, Cunningham made another attempt to re-
trieve the petition, making contact with Duffy in the
process. This can only be characterized as reckless con-
duct, i.e., a conscious disregard for the safety of others.
Next, just before Mather and the security guards arrived,
Duffy told Cunningham that if he was hit again, Duffy
would defend himself. Then the others arrived Notwith-
standing Duffy's warning, the lapse of several minutes
since the incident began, and the arrival of persons who,
while employed by Respondent, were neutral to the con-
troversy and there to restore the peace, Cunningham
made a final lunge at Duffy and this time managed to
regain the petition These final disruptive acts when
weighed with all other evidence are sufficient to tip the
balance to Respondent in a very close case."
28 Contrary to Respondent, I find that the cases of Fibracan Corp. 259
NLRB 161 (1981), Houston Coca Cola Bottling Co, 256 NLRB 520
(1981), do not apply to the present case because their facts are different
22 This fact was not relied on by Respondent to sustain Cunningham's
discharge, and I do not consider It in that vein Rather, I view it relevant
only to Cunningham's state of mind during the events in Issue
28 See Woodruff & Sons, Inc , 265 NLRB 345 (1982)
NATIONAL SEMICONDUCTOR CORP. 983
In sum, I find that Respondent did not violate Section
8(a)(1) of the Act in discharging Cunningham for insub-
ordination to a supervisor, for interference with a super-
visor's duties, and for striking a supervisor. (G.C. Exh.
9)29
While the ruling on the 8(a)(1) violation was difficult
and close, I have no difficulty at all under the Board's
decision in Wright Line, 251 NLRB 1083 (1980), enfd
662 F 2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989
(1982), and NLRB v. Transportation Management Corp.,
462 U.S. 393 (1983), in finding that the General Counsel
has failed to establish a prima facie case of discrimination
against Cunningham under Section 8(a)(3) of the Act.
That is, I do not find credible proof that Cunningham's
protected conduct was a motivating factor in his dis-
charge. Based on my analysis of the evidence above, I
will recommend to the Board that both the 8(a)(1) and
(3) violations be dismissed.3°
CONCLUSIONS OF LAW
1 Respondent National Semiconductor Corporation is
an employer engaged in commerce within the meaning
of Section 2(2), (6), and (7) of the Act
2 The Union, United Electrical, Radio & Machine
Workers of America, is a labor organization within the
meaning of Section 2(5) of the Act.
3. By applying its solicitation and distribution policy to
prevent during nonworktime in a nonwork area, the cir-
culation of a petition to reinstate a discharged employee,
by confiscating said petition, and by interrogating em-
ployees with respect to said petition, Respondent violat-
ed Section 8(a)(1) of the Act
4. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
29 Hart testified without elaboration that between January 1981 and
February 1982 that Respondent discharged approximately 20 other em-
ployees for insubordination to supervisors It is not possible to determine
whether their conduct was comparable to Cunningham's
00 The Charging Party contends, Br pp 20-21, that Respondent shift-
ed the reasons for the discharge of Cunningham If true, an inference is
raised of unlawful motivation It is true that counsel for Respondent rep-
resented at one point that Cunningham was discharged for striking Cun-
ningham and for an earlier act of insubordination (Tr 428 ) Later I was
told that Respondent's entire defense is based on what occurred after
Cunningham was accused of soliciting (Tr 552) Then evidence was of-
fered in support of a prior insubordinate act (Tr 991-992) Then Hart
testified to three reasons for discharging Cunningham, all arising out of
the February 3 incident (Tr 1566) Subsequently, I raised the Issue as to
whether the evidence admitted in support of the prior act of insubordina-
tion should remain in the record since, according to Hart, it was not
relied on in the discharge of Cunningham (Tr 1705-06) The evidence
was permitted to remain in the record for a different purpose Thus, the
shifting reasons really never occurred Inadvertent misstatements were
made by Respondent's counsel and this caused the confusion Finally, it is
true that Duffy originally Intended to discipline Cunningham for solicit-
ing On February 8, Duffy even Issued a warning notice to Cunningham
for solicitation/distribution of materials in a work area (G C Exh 6)
However, solicitation was never suggested as a reason for Cunningham's
discharge This warning notice, one of three issued by Duffy, was Issued
on orders of his supervisor who never testified in this case However, 1
credit fully Hart's testimony that he made the final decision to discharge
Cunningham and that he did not rely on any alleged violation of Re-
spondent's solicitation policy Hence, once again, no shifting reasons
5. Other than found above, Respondent has committed
no other unfair labor practices.
THE REMEDY
It having been found that Respondent has engaged in
certain unfair labor practices, it is recommended that it
cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed3j
ORDER
The Respondent, National Semiconductor Corpora-
tion, Santa Clara, California, its officers, agents, succes-
sors, and assigns, shall
1. Cease and desist from
(a) Applying any company rule to prohibit employees
from circulating a petition during nonworktime in now-
work areas, where said circulation is protected by Sec-
tion 7 of the Act
(b) Confiscating any petition from employees, the cir-
culation of which is protected by Section 7 of the Act.
(c) Interrogating employees concerning the circulation
of a petition protected by Section 7 of the Act
(d) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of their
rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Post at its Santa Clara, California office copies of
the attached notice marked "Appendix." 32 Copies of the
notice, on forms provided by the Regional Director for
Region 32, after being signed by the Respondent's au-
thorized representative, shall be posted by the Respond-
ent immediately upon receipt and maintained for 60 con-
secutive days in conspicuous places including all places
where notices to employees are customarily posted. Rea-
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by
any other material.
(b) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
IT IS FURTHER ORDERED that the complaint be dis-
missed insofar as it alleges violations of the Act other
than those found in this decision
o' no exceptions are filed as provided by Sec 102 46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec 102 48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses
32 If 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 Na-
tional Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board "