Noble Metal Processing, Inc.

National Labor Relations Board - Board Decisions

Mar 31, 2006

346 N.L.R.B. 795 (N.L.R.B. 2006)

NOBLE METAL PROCESSING, INC.
346 NLRB No. 78
795
Noble Metal Processing, Inc. and Fred Dowell. Case
7–CA–48054
March 31, 2006
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS
LIEBMAN AND WALSH
On August 25, 2005, Administrative Law Judge Mar-
garet G. Brakebusch issued the attached decision. The
Respondent filed exceptions and a supporting brief, the
General Counsel filed an answering brief, and the Re-
spondent filed a reply brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions1 and briefs and has decided to
affirm the judge’s rulings, findings, and conclusions2 and
to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Noble Metal Processing,
Inc., Warren, Michigan, its officers, agents, successors,
and assigns, shall take the action set forth in the Order.
CHAIRMAN BATTISTA, concurring.
For the reasons set forth below, I agree with my col-
leagues that the Respondent violated Section 8(a)(3) by
issuing employee Fred Dowell a written warning. In this
regard, I agree with my colleagues that Dowell’s conduct

1 The General Counsel has moved to strike the Respondent’s excep-
tions on the ground that they do not comply with Sec. 102.46 of the
Board’s Rules and Regulations. We deny the motion because the Re-
spondent’s exceptions adequately set forth the findings and conclusions
to which the Respondent has excepted.
2 In adopting the judge’s finding that the Respondent unlawfully is-
sued a written warning to employee and Union Steward Fred Dowell,
we find it unnecessary to rely on her discussion of Wright Line, 251
NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied
455 U.S. 989 (1982).
We agree with the judge that Dowell was engaged in protected activ-
ity when, during a meeting between Quality Department Manager
Charles Smith and quality department employees, he protested the
unilateral nature of the Respondent's announced changes in the depart-
ment. Further, balancing the four factors articulated in Atlantic Steel
Co., 245 NLRB 814 (1979), we agree with the judge that Dowell did
not lose the protection of the Act based on his conduct during the meet-
ing. (Dowell told other employees that they did not have to listen to
Smith, and Dowell got up to leave the meeting before complying with
Smith’s instructions to return to his seat.) Although we find merit in
the Respondent’s contention that the judge erred in failing to weigh the
absence of unlawful provocation—the fourth Atlantic Steel factor—as
militating against continued protection, we find that this factor is
clearly outweighed by the initial three factors.
We observe that the complaint did not challenge the facial validity
of the Respondent’s work rules.
was protected and did not lose protection because of the
manner in which he acted.
Facts
On January 14, 2005, Respondent convened a meeting
of its quality department employees to discuss how the
operations of a facility it had just purchased would be
integrated with those of its quality control operations.
During the meeting, Dowell, the chief union steward,
told Respondent’s quality manager, Charles Smith, that
the Respondent could not make the planned changes
without bargaining. Dowell also told the seven to nine
employees in attendance that they did not have to listen
to Smith because the changes were unilateral. As Dowell
then proceeded to leave the meeting, Smith issued sev-
eral instructions that Dowell return to his seat; Dowell
did so. Dowell was subsequently disciplined for his ac-
tions during the meeting.
Analysis
The judge found that Dowell’s discipline was unlawful
under a Wright Line1 analysis, and alternatively, under
the Atlantic Steel2 four-part test. Although I agree that
Dowell’s discipline was unlawful, I find that Wright Line
is inapplicable. Because it is undisputed that Dowell was
disciplined solely for his conduct at the January 14 meet-
ing, the appropriate analysis is whether the conduct for
which he was disciplined was initially protected under
the Act and, if so, whether he lost that protection at any
point. See Hahner, Foreman & Harness, Inc., 343
NLRB 1413, 1425 fn. 8 (2004).3 As the Board stated
recently in Stanford Hotel, 344 NLRB 558 (2005),
“[w]hen an employee is [disciplined] for conduct that is
part of the res gestae of protected concerted activities, the
pertinent question is whether the conduct is sufficiently
egregious to remove it from the protection of the Act.”
I agree with the judge and my colleagues that Dowell’s
conduct at the January 14 meeting was initially pro-
tected. Applying the four factors set forth in Atlantic
Steel, supra, I also agree that Dowell’s conduct did not
cost him the Act’s protection. I do not, however, agree
with all aspects of the judge’s Atlantic Steel analysis.
Under Atlantic Steel, supra, these four factors are ana-
lyzed: (1) the place of the discussion; (2) the subject mat-
ter of the discussion; (3) the nature of the employee’s
outburst; and (4) whether the outburst was, in any way,

1 Wright Line, 251 NLRB 1083, 1088, fn. 11 (1980), enfd. 662 F.2d
899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982).
2 Atlantic Steel Co., 245 NLRB 814 (1979).
3 If Dowell’s conduct remained protected at all times, a violation
will be found, but if the conduct’s protected status was ultimately lost,
no violation will be found. See, e.g., Trus Joist MacMillan, 341 NLRB
369 (2004).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD796
provoked by an employer’s unfair labor practices. Ad-
dressing the first factor—the place of the discussion—I
note that in addition to the judge’s finding that Dowell’s
conduct did not take place in a work area and thus was
not disruptive of the work process, his conduct occurred
at an employee meeting called by the Respondent to an-
nounce impending changes in its quality department
where Dowell worked. I find that this meeting was an
appropriate forum where employees, like Dowell, rea-
sonably could be expected to express their views regard-
ing the announced changes that affected their conditions
of work. Even though the Respondent did not expressly
solicit employee views, the “Board has specifically re-
jected the contention . . . that an employee who protests a
management decision at an employee meeting called to
announce that decision is guilty of unprotected [conduct]
if the employer did not first solicit the employee’s
views.” Cibao Meat Products, 338 NLRB 934 (2003).
Further, this was not a situation where Dowell made his
comments in derogation of a management directive to
remain quiet. Cf. Eagle-Picher Industries, 331 NLRB
169 (2000) (conduct unprotected where employee disre-
garded express directive to hold questions and comments
to end of meeting).
As to the second Atlantic Steel factor—the subject
matter of the discussion—I agree with the judge that
Dowell’s remarks related directly to a change in working
conditions affecting not only Dowell, but the other seven
to nine employees at the meeting. In making his re-
marks, Dowell, as the chief union steward, was protest-
ing the Respondent’s unilateral conduct which, he be-
lieved, was contrary to the existing collective-bargaining
agreement as well as to the Act. Thus, like the employee
in Stanford Hotel, Dowell’s “conduct occurred in the
context of his attempted assertion of a fundamental right
under the Act,” here, the right to bargain, and “weighs
strongly in favor of a finding that [his] remarks were
protected.” 344 NLRB at 559.
As to the third Atlantic Steel factor—the nature of
Dowell’s behavior at the meeting—I am troubled by his
attempt to leave the meeting and by his statement to em-
ployees that they did not have to listen to Smith because
his announced changes were unilateral and illegal. How-
ever, I ultimately conclude that this conduct was not so
egregious as to warrant forfeiture of the Act’s protection.
Thus, with respect to Dowell’s attempt to leave the meet-
ing, I find significant the fact that he did not encourage
other employees to follow him and he did not exit the
meeting room. To the contrary, when he was instructed
to sit down, he ultimately did so. I also note that the Re-
spondent apparently did not view Dowell as insubordi-
nate by trying to leave the meeting. Although the Re-
spondent argues in its exceptions that he was, the actual
disciplinary warning issued to Dowell does not cite him
for insubordination, even though the Respondent had a
work rule specifically addressing insubordination.
As for Dowell’s statement to employees during the
meeting, it must be considered in context. As chief
steward, Dowell was acting as the employees’ bargaining
representative during the meeting. It was in this capacity
that he stated that employees did not have to listen to
Smith, and he carefully linked this advice to his view that
the unilateral changes announced by Smith were contrary
to the Respondent’s duty to bargain. Further, by return-
ing to his seat, he stayed to listen to Smith, and the other
employees followed his lead. In a similar context, where
an employee representative “challenged management”
about certain planned actions that he considered unlaw-
ful, and “acted purposefully and emphatically towards
management” in challenging its plans, the Board found
the employee’s actions protected, notwithstanding that
his conduct may have been accompanied by “disrespect-
ful, angry and shocking outbursts” directed at the re-
spondent’s president. See Lana Blackwell Trucking, 342
NLRB 1059, 1062 (2004). Here, I do not consider
Dowell’s statements as offensive as those in Lana
Blackwell. Nor did Respondent appear, at the time
Dowell made his statement, as offended as it now claims
it was. The warning issued Dowell makes no mention of
his acting improperly by telling employees that they did
not have to listen to Smith.
As to the fourth Atlantic Steel factor—whether
Dowell’s conduct was provoked by the Respondent’s
unfair labor practices—the judge found that this factor
“cannot be applied” because there was no evidence that
the Respondent committed any concurrent unfair labor
practices during the meeting that provoked Dowell’s
comments and conduct. Concededly, Dowell was not
“responding to unlawful or provocative behavior by the
Respondent,” and this weighs against a finding that his
conduct was protected. See American Steel Erectors,
Inc., 339 NLRB 1315, 1317 (2003). However, this is the
only factor that I find favors a finding that Dowell’s con-
duct was not protected.
In sum, although I do not condone Dowell’s behavior
at the January 14 meeting, I cannot conclude, under the
four-factor test of Atlantic Steel, that it was so egregious
as to cost him the protection of the Act. Accordingly, I
concur in the finding that the warning issued to him for
his actions at this meeting violated Section 8(a)(3).
NOBLE METAL PROCESSING, INC. 797
Darlene Haas Awada, Esq., for the General Counsel.
James D. Cockrum, Esq., for the Respondent.
DECISION
STATEMENT OF THE CASE
MARGARET G. BRAKEBUSCH, Administrative Law Judge.
This case was tried in Detroit, Michigan, on July 5, 2005. The
original charge was filed by Fred Dowell, an individual
(Dowell) on November 2, 2004.6 On January 27, 2005, an
amended charge was filed. On May 26, 2005, the Regional
Director for Region 7 of the National Labor Relations Board
(the Board) issued a complaint and notice of hearing. The
complaint alleges that on or about January 18, 2005, Noble
Metal Processing, Inc. (Respondent) issued a written verbal
warning to Dowell because he engaged in protected concerted
activities by contesting changes in employee terms and condi-
tions of employment at an employee meeting with Respondent.
The complaint further alleges that Dowell protested the changes
in his representative function as a union steward. Respondent
filed a timely answer to the complaint denying the alleged un-
fair labor practices.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by counsel for the General Counsel and by counsel for Respon-
dent, I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent, a corporation, with an office and place of busi-
ness in Warren, Michigan, has been engaged in the laser weld-
ing of metallic materials and nonretail sale of laser welded flat
blanks and laser welded tubular products to various automobile
manufactures. Annually, Respondent derives gross revenues in
excess of $500,000 and purchases and receives at its Warren,
Michigan facility, goods valued in excess of $50,000 directly
from points outside the State of Michigan. Respondent admits
and I find that it is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act and that
Local 155, International Union, United Automobile, Aerospace
and Agricultural Implement Workers of American (UAW),
AFL–CIO (the Union) is a labor organization within the mean-
ing of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background
Fred Dowell, who is classified as a quality technician,7 began
working for Respondent in September 1998. In approximately
1999, the Union became the collective-bargaining representa-
tive for all full-time production employees, manufacturing en-
gineering technicians, quality technicians, and die setters em-
ployed at the Warren, Michigan facility. On January 26, 2004,
the Union and Respondent entered into a collective-bargaining
agreement with an expiration date of December 15, 2009. The
agreement provides for annual automatic renewal in the ab-

6 All dates are in 2005, unless otherwise indicated.
7 Quality inspectors or technicians take measurements of parts pro-
duced and document the results.
sence of either party’s timely notice to terminate, modify or
make changes. Currently, there are three designated union
stewards and three alternate stewards. Dowell is not only the
chief steward, but also the designated steward for the first shift.
The other two stewards work the second and third shifts respec-
tively. Dowell is supervised by Quality Supervisor Neil Ander-
son and Anderson is supervised by Quality Manager Charles
Smith.
On January 13, 2005, Dowell filed two grievances with Re-
spondent’s human resource manager, Michelle Verkerke. In
grievance number 40, Dowell alleged that Respondent made
“non-negotiated unilateral changes” in the quality department.
The grievance further accused Respondent of creating a hostile
work environment and of disparately treating employees in
quality control. Grievance number 38 alleged that Respondent
bumped employee Latris Brown from first shift to second shift
in violation of the collective-bargaining agreement. In the
grievance, Dowell further alleged that Respondent had shown
favoritism to white employees with less seniority.
Dowell testified that during the most recent collective-
bargaining negotiations, Respondent informed the Union of its
plans to purchase a facility identified as Prototube and dis-
cussed with the Union how the Prototube employees would fit
into the existing bargaining unit. Dowell estimated that ap-
proximately eight or nine of the Prototube employees became
union members and two of the new employees perform quality
work. Quality Manager Charles Smith testified that when Re-
spondent initially purchased the Prototube division in 2004, the
new division operated outside Respondent’s quality system.
Respondent determined in January 2005, however, that the
Prototube division would “roll” into Respondent’s quality sys-
tem. It was anticipated that as a result of the “roll up,” there
would be a new welding system requiring inspections and there
would be a new door for the additional box trucks bringing in
the smaller quantities for the Prototube inspections. Quality
Supervisor Neil Anderson testified that with the acquisition of
the Prototube work, additional products required inspection.
B. The January 14 Meeting
On January 14, 2005, Quality Manager Charles Smith held a
meeting with quality department employees. Smith testified
that the purpose of the meeting was to lay out the changes in
the department that were the result of Respondent’s taking on
the Prototube division. Smith testified that he was unaware of
any discussions with Dowell concerning these changes prior to
January 14. Smith testified that the intent of the meeting was to
lay out the different changes and the responsibilities for each of
the employees.
Dowell estimated that approximately seven to nine employ-
ees attended the meeting and sat around a conference table.8
Dowell recalled that as Smith discussed the proposed changes,
employee Leslie Carter asked him (Dowell) if Smith could
make the anticipated changes. Dowell told Carter that Smith
was not supposed to make unilateral changes without bargain-
ing. It is undisputed that Dowell’s comment initiated a dia-

8 The only individuals testifying about the meeting were employees
Dowell and Leslie Carter and Supervisors Smith and Anderson.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD798
logue between Smith and Dowell. Smith recited the manage-
ment-right’s clause of the collective-bargaining agreement and
Dowell in turn recited the recognition clause of the agreement.
Dowell explained that after an interchange back and forth with
Smith, he became frustrated and walked to the door. He told
Smith that he had better things to do. Dowell testified that at
that point of the conversation, Smith told him that he resented
Dowell’s calling him prejudiced. Dowell recalled that he re-
turned to the table and told Smith that while he had not called
Smith prejudiced, this was the opinion of the people in their
department.9 Dowell recalled that he then sat down at the table
and Smith finished telling the employees about the changes.
Dowell denied that he ever called Smith a racist during the
meeting. Dowell also denied instructing employees not to lis-
ten to Smith.
Smith testified that during the meeting, Dowell stood up and
proceeded to walk out of the room stating that he “didn’t have
time for this.” As he walked toward the door, he also told the
employees that they didn’t have to listen to Smith. Smith re-
called that he told Dowell: “[H]e did have time for this because
we weren’t doing any incoming inspection.” Smith maintained
that he told Dowell that there were important things they
needed to cover and for him to sit down. Smith testified that he
and Dowell continued to discuss whether there had been a vi-
able change and that Dowell stated that the action in question
was another reference to Smith’s prejudice. Smith recalled that
he told Dowell that he didn’t like being referred to as preju-
diced and that it hurt his feelings. Smith asserted that Dowell
responded that he didn’t care how it made Smith feel and he
again tried to leave the meeting. Smith recalled that he told
Dowell that he could not leave because they needed to discuss
what was going to happen with the job. Smith testified that at
that point Dowell again sat down and the meeting continued.
Smith estimated that during his 2-minute discussion with
Dowell, he told Dowell to sit down approximately three times.
Leslie Carter testified that during the meeting, Smith ex-
plained how the additional Prototube work would be incorpo-
rated into the bargaining unit’s work. Carter recalled that he
looked at Dowell and asked him if Respondent could make the
discussed changes. Although Dowell replied that Respondent
could not do so, Smith countered by saying that Respondent
could do so. Carter acknowledged that while both Smith and
Dowell raised their voices during the discussion, Dowell did
not use any profanity. Carter also recalled that Dowell walked
toward the door during the meeting and Smith directed him
back to his seat. Carter denied that Dowell had at any time
called Smith or anyone else a racist during the meeting. Carter
further denied hearing anyone use the word “prejudiced” during
the meeting.
Anderson testified that while Smith was explaining the
changes to employees, Dowell stood and began to disagree with
Smith. Dowell stated that Smith could not make the proposed
changes without bargaining with the Union. Anderson recalled
that Dowell told the employees that they didn’t have to listen to

9 On direct examination, Dowell testified that Smith used the word
“racist” and on cross-examination, Dowell testified that Smith used the
word “prejudiced.”
Smith because the changes were unilateral and illegal. Ander-
son testified that Dowell told Smith that the actions in issue
were an example of Smith making changes because he was
prejudiced. Smith told Dowell that he took great offense and
he did not like Dowell’s accusing him of being prejudiced.
Anderson recalled that Dowell used the word “prejudiced”
approximately three or four times. Anderson also recalled that
Smith told Dowell to sit down approximately three of four
times.
C. Events Following the Meeting
On January 18, 2005, Dowell filed a grievance to protest
“the unilateral non-negotiated demotions, reclassification, and
wage reduction” on behalf of two quality department employ-
ees. In his grievance, Dowell asserted that Respondent took
such action while maintaining a less senior person in the de-
partment. Dowell also alleged that in taking such action, Re-
spondent violated the collective-bargaining agreement and
showed racial preference.
On January 19, Dowell and the third-shift steward met with
Smith at approximately 7:30 a.m. Smith presented Dowell with
a counseling form for a verbal correction. In the written de-
scription of the occurrence upon which the discipline was
based, Smith described Dowell as disorderly, antagonistic, and
disrespectful. Smith added that Dowell raised his voice and
told employees that he (Smith) was not able to make the
changes in issue. Smith added that Dowell told employees that
“this was an example” of Smith’s being prejudiced. Smith also
included in the disciplinary notice that Dowell started to leave
the room, stating that he had more important things to do. The
verbal correction identifies Dowell’s conduct as violative of
subsections 19 and 30 of section 3.9 of the employee rules of
conduct.10
Smith testified that prior to January 14, he and Dowell had
discussed Respondent’s right to make changes to work proc-
esses. He recalled one prior discussion with Dowell in which
they discussed whether Respondent could reduce the number of
quality technicians under the management-right’s provision of
the collective-bargaining agreement. Smith asserted that while
he and Dowell had prior discussions about management rights,
he had never disciplined Dowell for his conduct during the
prior discussions. He explained that the difference between the
prior discussions with Dowell and the discussion with Dowell
on January 14 was Dowell’s tone of voice. Respondent’s coun-
sel asked Smith what he perceived to be different about
Dowell’s behavior in the January 14 meeting that resulted in his
getting a discipline when prior discussions had not resulted in
discipline. In response, Smith identified not only Dowell's tone
of voice, but also the level of volume and Dowell’s stance.
While Smith acknowledged that he raised his voice with

10 Sec. 3.9 Unacceptable Activities provides a listing of conduct for
which violations may result in discipline including immediate dismissal
without warning. Subsection is identified as “Obscene or abusive lan-
guage toward any manager, associate or customer; indifference or
rudeness toward a customer or fellow associate; any disorderly, antago-
nistic, disrespectful conduct on company premises.” The conduct that
is identified in subsec. 30 includes: “Threatening, intimidating, coerc-
ing, disturbing or otherwise interfering with associates or supervision.”
NOBLE METAL PROCESSING, INC. 799
Dowell during the meeting, he asserted that he did so because
Dowell raised his voice. Smith testified that he was trying to
regain control of his meeting.
III. ANALYSIS AND CONCLUSIONS
A. Whether Respondent Unlawfully Disciplined Dowell
The complaint alleges that Respondent issued a written ver-
bal warning to Dowell because he engaged in protected con-
certed activities by contesting changes in employee terms and
conditions of employment at an employee meeting with Re-
spondent and thereby also engaging in his representative func-
tion as union steward. Because Respondent’s motivation is a
critical element in determining the lawfulness of Dowell’s dis-
cipline, a Wright Line11 analysis must be used. In Wright Line,
the Board set out the causation test that it would employ in all
cases alleging violations of 8(a)(3). The analysis is based upon
the principle that an employer’s unlawful motivation must be
established as a precedent to finding an 8(a)(3) violation.
American Gardens Management Co., 338 NLRB 644, 645
(2002). Under this analysis, the General Counsel must make an
initial “showing sufficient to support the inference that pro-
tected conduct was a ‘motivating factor’ in the employer’s de-
cision.” To meet this initial burden, the General Counsel must
first show the existence of activity protected by the Act. Sec-
ondly, the General Counsel must prove that the employer knew
that the employee had engaged in such protected activity.
Thirdly, the General Counsel must demonstrate that the alleged
discriminatee suffered some adverse employment action. Fi-
nally, the General Counsel must also establish a motivational
link, or nexus between the employee’s protected activity and
the adverse employment action. Shearer’s Foods, Inc., 340
NLRB 1093 fn. 4 (2003).
Respondent asserts that Dowell’s discipline was merited be-
cause he engaged in conduct that was unacceptable under the
existing employee work rules. Specifically, Dowell received
the verbal correction because it was determined that he engaged
in disorderly, antagonistic, and disrespectful conduct on com-
pany premises. Additionally, he is charged with disturbing or
otherwise interfering with associates or supervision in violation
of the work rules. Respondent maintains that Dowell received
the discipline because of his insubordinate behavior and that
Dowell has attempted to “hide behind the claim of ‘protected
conduct’ to avoid discipline.” Counsel for the General Counsel
maintains that Dowell was disciplined because he spoke out
during the January 14 meeting and protested what he and other
employees believed to be Respondent’s unilateral changes and
racial discrimination. Counsel for the General Counsel asserts
that Dowell engaged in protected concerted activity as well as
having acted in a representative capacity while challenging
Respondent’s proposed changes. Counsel for the General
Counsel also submits that Dowell did nothing to lose the pro-
tection of the Act when he engaged in this protected concerted
and union activity.

11 Wright Line, 251 NLRB 1083, 1088 fn. 11 (1980), enfd. 662 F.2d
899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982) approved in
NLRB v. Transportation Management Corp., 462 U.S. 393 (1983).
1. Whether Dowell’s conduct lost the protection
of the Act
In NLRB v. Thor Power Tool,12 the Seventh Circuit analyzed
the issue of balancing an employee’s right to engage in pro-
tected activity and an employer’s right to maintain order in the
workplace. The court noted: “Initially, the responsibility to
draw the line between these conflicting rights rests with the
Board, and its determination, unless illogical or arbitrary, ought
not to be disturbed.” In addressing this balance of interests, the
Board has noted: “A line exists beyond which an employee
may not with impunity go, but that line must be drawn ‘be-
tween cases where employees engaged in concerted activities
exceed the bounds of lawful conduct in ‘a moment of animal
exuberance’” Respondent maintains that Dowell’s conduct on
January 14 exceeds lawful conduct and is beyond the protection
of the Act. I find, however, that neither the record evidence nor
the prevailing Board authority supports this conclusion.
The Board has repeatedly held that strong, profane, and foul
language, or what is normally considered discourteous conduct,
while engaged in protected activity, does not justify disciplin-
ing an employee acting in a representative capacity. Max Fac-
tor & Co., 239 NLRB 804, 818 (1978); Postal Service, 250
NLRB 4 (1980). See also Thor Power Tool, supra, where a
member of the union grievance committee lost his temper dur-
ing a grievance discussion and called the plant superintendent a
“horse’s ass.” The conduct, however, was not found to be so
egregious that the committee person lost the protection of the
Act. In Consumer Power Co., 282 NLRB 130, 132 (1986), the
Board held that when an employee is disciplined for conduct
that is part of the “res gestae of protected concerted activities,”
the relevant question is “whether the conduct is so egregious as
to take it outside the protection of the Act, or of such a charac-
ter as to render the employee unfit for further services.”
In Atlantic Steel Co., 245 NLRB 814 (1979), the Board ar-
ticulated the factors to be balanced in determining whether an
employee’s concerted protected activity loses the protection of
the Act due to opprobrious conduct. The factors are (1) the
place of the discussion; (2) the subject matter of the discussion;
(3) the nature of the outburst; and (4) whether the outburst was
provoked by unfair labor practices. Applying these factors, it
appears that Dowell’s conduct was not so opprobrious as to
merit the loss of the Act’s protection.
While Dowell protested Respondent’s alleged unilateral
changes in his January 13 grievances and at the January 14
meeting, there is no complaint allegation that Respondent im-
plemented unilateral changes or engaged in any other violation
of Section 8(a)(5) of the Act. Additionally, there is no allega-
tion that Respondent engaged in any independent 8(a)(1) viola-
tion through statements or conduct. Accordingly, there is no
evidence that Dowell’s comments and conduct were provoked
by unfair labor practices and thus Atlantic Steel Co.’s fourth
factor cannot be applied. The application of the remaining
three factors, however, reflects that Dowell did not lose the
protection of the Act.
Citing Overnight Transportation Co., 343 NLRB 1431, 1440
(2004), Respondent argues that public displays of insubordina-

12 351 F.2d 584, 587 (7th Cir. 1965).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD800
tion weigh against the protection of the Act because they are
more likely to disrupt work activities. While Dowell’s state-
ments and behavior occurred in the presence of other employ-
ees, such conduct did not occur while employees were in their
work area and it is not alleged to have disrupted the work proc-
ess. Additionally, while Dowell challenged Respondent’s right
to make the proposed changes, I don’t find that his behavior
constituted a “public undermining” of Smith’s authority.13
Clearly, the subject matter of the discussion was protected
activity. By his comments, Dowell protested changes in the
work process that he believed to be contrary to the collective-
bargaining agreement. There is no dispute that on the day prior
to the meeting, Dowell and other employees began the circula-
tion of a petition to protest the “non-negotiated unilateral
changes” which they believed to have been implemented by
Respondent. While there is dispute within the record as to
whether Dowell referenced Smith as a “racist” or as “preju-
diced,” the issue of Respondent’s racial discrimination was
woven into Smith’s and Dowell’s discussion. Both Dowell and
Carter testified that this was an issue that employees presented
to Dowell to address in his role as union representative. The
day prior to the meeting, Dowell filed two grievances that ref-
erenced Respondent’s alleged racial preference and “showing
racial favoritism toward white workers with less seniority.”
Respondent asserts that the changes in the work process were
not unilateral changes subject to bargaining and that allegations
of racial favoritism were without basis. I note, however, that
the protected nature of Dowell’s complaints does not turn on
their merits. See NLRB v. City Disposal Systems, 465 U.S. 822,
840 (1984). Additionally, protection of the Act is not denied to
an employee “regardless of the inaccuracy or lack of merit of
the employee’s statements absent deliberate falsity or mali-
ciousness, even where the language used is stinging and harsh.”
Guardian Industries, 319 NLRB 542, 549 (1995). As counsel
for the General Counsel submits in her brief, there is no evi-
dence that Dowell was deliberately false or malicious in his
statements. His comments about Smith’s racial prejudice ap-
pear to be based upon his and other employee’s concerns. His
interpretation of the collective-bargaining agreement appeared
to be the basis for his asserting that Respondent had unlawfully
implemented unilateral changes.
Respondent asserts that it was the nature of Dowell’s out-
bursts or behavior that differed from his conduct in previous
discussions with management. Smith asserts that it was the
tone and volume of Dowell’s voice as well as his “stance” that
distinguished the discussion on January 14 from their other
discussions about management rights. Smith and Anderson
testified that Smith told Dowell to return to his seat approxi-
mately three or four times. Dowell and Carter testified that
Smith told Dowell to return to his seat only one. While Dowell
admits that he threatened to leave the meeting, he did not do so.
There is no allegation that he used any profanity or that he
made any threats toward Smith or any other management offi-
cial.
The overall record does not demonstrate that Dowell’s con-
duct on January 14 was so egregious as to be considered inde-

13 Ibid.
fensible. As noted above, the Board has allowed a degree of
latitude in circumstances where employees are engaged in al-
legedly inappropriate, yet protected activities.14 In its recent
decision in Union Carbide Corp.,15 the Board affirmed the
administrative law judge in finding that an employee’s conduct
in raising a collective-bargaining issue did not take him outside
the protection of the Act. While the Board noted that the em-
ployee’s behavior was rude and disrespectful in calling his
supervisor a “fucking liar,” his conduct was not so “out of line”
as to remove him from the protection of the Act. In Severance
Tool Industries, 301 NLRB 1166, 1170 (1991), a union bar-
gaining committeeman called the employer’s president a son-
of-a-bitch and threatened to discredit the president’s personal
reputation as he protested a vacation pay issue. Affirmed by
the Board, the administrative law judge found that despite the
employer’s contentions that the conduct was insubordinate,
disrespectful, and belligerent, the conduct was nonetheless
protected concerted activity and protected by Section 7 of the
Act.
In his brief, counsel for Respondent cites a number of cases
where the Board has found an employee’s conduct sufficiently
egregious as to remove the employee from the protection of the
Act. In Caterpillar Tractor Co., 276 NLRB 1323, 1326 (1985),
the Board found that a union steward’s conduct was malicious,
defamatory, insubordinate, obnoxious, wholly unjustified, and
outside the protection of the Act. The steward’s conduct in-
volved his publishing and disseminating throughout the plant a
cartoon with accompanying profanity. The cartoon depicted a
supervisor as a razorback pig with grotesque features urinating
on a stick figure that was labeled “common law-life worker.”
In Honda of America Mfg., 334 NLRB 751, 752 (2001), the
employee utilized a written publication to launch a person at-
tack on management, insinuating that they were untruthful,
unethical, and disparaging their intelligence and competence.
Respondent has also pointed out that there are other cases when
an employee engages in profane and vulgar attacks on a super-
visor, the employee loses the protection of Section 7 of the
Act.16 The record reflects, however, that while Dowell chal-
lenged Smith in front of other employees, his conduct did not
involve the use of profanity or vulgarity and did not constitute a
malicious attack on Smith or any other management official.

14 See Syn-Tech Window Systems, 294 NLRB 791 (1989), in which
a union steward’s pointing his finger angrily at respondent’s representa-
tive and threatening him with an unspecified “problem” if employees’
grievances were not remedied was not found sufficiently egregious to
remove the protections of the Act. See also Lana Blackwell Trucking,
342 NLRB 1059, 1065 (2004), where an employee’s “disrespectful,
angry, and shocking outbursts” toward the manager and president oc-
curred in the context of concerted activities and did remove the em-
ployee from the protection of the Act.
15 331 NLRB 356 (2000).
16 See North American Refractories, 331 NLRB 1640, 1642 (2000),
where an employee referred to his supervisor as “a stupid mother-
fucker” and a “dumb asshole” and Foodtown Supermarkets, Inc., 268
NLRB 630 (1984), where the employee repeatedly called his supervisor
a “son-of-a-bitch.”
NOBLE METAL PROCESSING, INC. 801
Consequently, I do not find that Dowell’s conduct on January
14 removed him from the protection of the Act.17
2. Whether the General Counsel and Respondent have met
their burdens under Wright Line
Accordingly, having found that Dowell’s conduct did not
lose the protection of the Act, I must then determine whether
counsel for the General Counsel has met the initial burden of
establishing a prima facie case. As discussed above, I find that
Dowell’s statements and conduct during the January 14 meet-
ing were also within his role as union representative. Crediting
Dowell and Carter, it appears that the discussion began with
Carter’s asking Dowell if Respondent could make the proposed
changes. Dowell’s protests and assertions to Smith involved
what Dowell and other employees perceived to be Respon-
dent’s unlawful unilateral changes. The discussion with Smith
also involved the issue of whether Respondent was favoring
white employees and demonstrating racial preference. While
Respondent asserts that Dowell and other employees were in
error in these allegations, there is no question that such matters
clearly related to terms and conditions of employment. Thus,
regardless of whether Respondent was engaging in the alleged
conduct and regardless of the accuracy of Dowell’s personal
opinions, Dowell’s actions were squarely within the parameters
of protected concerted activity.18 Thus, counsel for the General
Counsel has established that Dowell was engaged in protected
activity that was known to Respondent and that he received a
written verbal warning.
The remaining element for the Wright Line burden of proof
imposed on the General Counsel may be sustained even where
there is no direct evidence of motivation and there is inferential
evidence arising from the circumstances. Additionally, it may
be found that where an employer’s proffered nondiscriminatory

17 For the most part, Dowell and Carter’s description of the events
on January 14 correlate to the description given by Anderson and
Smith. One distinction involves whether Smith told Dowell to sit down
one time or as many as three or four times. Both Anderson and Smith
testified that Dowell told employees that they did not have to listen to
Smith. Anderson testified that Dowell told employees that they did not
have to listen to Smith because what he was telling them was illegal.
Dowell denied instructing employees not to listen to Smith. While
Carter testified concerning the exchange between Smith and Dowell, he
did not confirm nor deny that Dowell instructed employees as asserted
by Smith and Anderson. Dowell contends that Smith only told him to
sit down once and he did so. Dowell acknowledges, however, that the
entire interchange with Smith lasted as long as 10 or 15 minutes. Based
upon the total evidence, I credit Smith and Anderson and find that it is
more likely that their recall is more accurate than Dowell’s with respect
to certain aspects of this discussion. I find that it is more likely that
Dowell may have told employees that they did not have to listen to
Smith and that Dowell may have been told more than once to return to
his seat. Even if I credit the testimony of Smith and Anderson with
respect to Dowell’s alleged statement to employees and with respect to
the number of times that Smith asked Dowell to return to his seat, I do
not find the alleged conduct sufficiently egregious to remove Dowell
from the protection of the Act.
18 See NLRB v. City Disposal System, 465 U.S. 822, 835 (1984),
where the Court noted that the protection of the Act is not lost when a
single employee, acting alone, participates in an integral aspect of
collective bargaining.
motivational explanation is false, even in the absence of direct
evidence of motivation, a trier of fact may infer unlawful moti-
vation. Shattuck Denn Mining Corp. v. NLRB, 362 F.2d 466,
470 (9th Cir. 1966). The Board has found that under certain
circumstances animus will be inferred in the absence of direct
evidence and such a finding may be inferred from the record as
a whole. Fluor Daniel, Inc., 304 NLRB 970 (1991). Motiva-
tion of animus may also be inferred from the record as a whole,
where an employer’s proffered explanation is implausible or a
combination of factors circumstantially support such an infer-
ence. Union Tribune Co. v. NLRB, 1 F.3d 486, 490–491 (7th
Cir. 1993); Data System Corp., 305 NLRB 219 (1991). In the
instant case, Respondent’s basis for disciplining Dowell ap-
pears implausible. Respondent does not deny that on the day
prior to the meeting, Dowell filed two grievances alleging that
Respondent made unilateral changes and engaged in racial
discrimination. The overall record indicates that when Dowell
again raised these concerns in Smith’s scheduled meeting, Re-
spondent retaliated by issuing a written verbal warning. Smith
admits that he and Dowell had prior discussions about man-
agement rights and Dowell was not disciplined for expressing
his opinion. Smith relies upon Dowell’s tone of voice, volume
level of voice, and stance as the factors that set apart the
Dowell’s conduct on January 14 as compared to previous dis-
cussions. Smith acknowledges, however, that both he and
Dowell raised their voices during the discussion. Accordingly,
the timing of the discipline as well as Respondent’s implausible
explanation for the discipline warrants an inference of animus
sufficient to establish the requisite motivational link. Counsel
for the General Counsel also submits that the written verbal
warning provides direct evidence of Respondent’s unlawful
motivation, citing the explicit language in the discipline. I note
that the written verbal correction referenced Dowell’s state-
ments to Smith that he could not make the changes to the jobs,
but must “bargain for each and every change.” Thus, based
upon direct and inferential evidence, General Counsel has made
a prima facie showing sufficient to support the inference that
Dowell’s protected activity was a motivating factor in Respon-
dent’s decision to discipline Dowell.
Under Wright Line, supra, the burden now shifts to Respon-
dent to demonstrate that the same action would have taken
place even in the absence of the protected activity. American
Gardens Management Co., 338 NLRB 644, 645 (2002). Prior
to the trial in this matter, counsel for the General Counsel sub-
poenaed from Respondent the personnel records to show the
issuance of verbal counseling to employees for insubordination
or for a violation of employee rule 3.9, number 19 for the pe-
riod from January 1, 2004, through the date of the trial. Human
Resources Manager Michelle Verkerke testified that there were
no records to show the issuance of verbal counseling discipline
that comport to the parameters set out by counsel for the Gen-
eral Counsel’s subpoena.19 Other than a reference to a recent
suspension, Respondent provided no records to show that any
other employees had engaged in conduct similar to Dowell or
had been similarly disciplined for such conduct.

19 Verkerke testified, however, than an employee had been sus-
pended the prior week for insubordination.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD802
Respondent asserts that Dowell’s conduct is particularly
egregious because of his duty to “work now, grieve later.”
Respondent contends that as a steward, Dowell was aware of
the industrial norm requiring an employee to “work now and
grieve later.” Counsel for Respondent submits that Dowell
chose to disrupt the meeting and interfere with the management
of the Company rather than utilize the grievance process. The
record reflects, however, that prior to the meeting and subse-
quent to the meeting, Dowell filed grievances with respect to
these concerns. As pointed out by counsel for the General
Counsel, the Board has previously noted “Whether the pro-
tested working condition was actually as objectionable as the
employee believed it to be or whether the objection could have
been pressed in a more efficacious or reasonable manner is
irrelevant to whether their concerted activity is protected by the
Act.” Tamara Foods, 258 NLRB 1307, 1308 (1981), enfd. 692
F.2d 1171 (8th Cir. 1982), cert. denied 461 U.S. 928 (1983).
Based upon the total record evidence, I find that Respondent
has not met its burden of demonstrating that it would have dis-
ciplined Dowell absent his union and protected activity, and
that his discipline was substantially motivated by union and
protected activity in violation of Section 8(a)(3) and (1) of the
Act.
CONCLUSIONS OF LAW
1. Noble Metal Processing, Inc. is an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7) of
the Act.
2. Local 155, International Union, United Automobile, Aero-
space and Agricultural Implement Workers of America
(UAW), AFL–CIO is a labor organization within the meaning
of Section 2(5) of the Act.
3. By issuing a written verbal warning to Fred Dowell on
January 19, 2005, Respondent violated Section 8(a)(3) and (1)
of the Act.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act.
The Respondent having discriminatorily disciplined Fred
Dowell, it must rescind the January 19, 2005 discipline and
notify him in writing that it has done so.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended20
ORDER
The Respondent, Noble Metal Processing, Inc., Warren,
Michigan, its officers, agents, successors, and assigns, shall
1. Cease and desist from

20 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended 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 purposes.
(a) Disciplining employees because they engage in protected
concerted activities and because of their activities as a union
representative for other employees.
(b) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Within 14 days from the date of this Order, remove from
its files any reference to the unlawful discipline issued to Fred
Dowell on January 19, 2005, and within 3 days thereafter notify
Fred Dowell in writing that this has been done and that the
discipline will not be used against him in any way.
(b) Within 14 days after service by the Region, post at its
Warren, Michigan facility copies of the attached notice marked
“Appendix.”21 Copies of the notice, on forms provided by the
Regional Director for Region 7, after being signed by the Re-
spondent's authorized representative, shall be posted by the
Respondent immediately upon receipt and maintained for 60
consecutive days in conspicuous places including all places
where notices to employees are customarily posted. Reasonable
steps shall be taken by the Respondent to ensure that the notices
are not altered, defaced, or covered by any other material. In
the event that, during the pendency of these proceedings, the
Respondent has gone out of business or closed the facility in-
volved in these proceedings, the Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all current em-
ployees and former employees employed by the Respondent at
any time since January 19, 2005.
(c) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we violated
Federal labor law and has ordered us to post and obey this no-
tice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.

21 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 Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
NOBLE METAL PROCESSING, INC. 803
WE WILL NOT discipline or otherwise discriminate against
any of you for engaging in protected concerted activities or for
your activities in support of Local 155, International Union,
United automobile, Aerospace and Agricultural Implement
Workers of America (UAW), AFL–CIO, or any other union.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce you in the exercise of the rights guaranteed
you by Section 7 of the Act.
WE WILL, within 14 days from the date of the Board’s Order,
remove from our files any reference to the unlawful discipline
of Fred Dowell, and WE WILL, within 3 days thereafter, notify
him in writing that this has been done and that the discipline
will not be used against him in any way.
NOBLE METAL PROCESSING, INC.