Owens Illinois, Inc.

National Labor Relations Board - Board Decisions

Sep 22, 1988

290 N.L.R.B. 1193 (N.L.R.B. 1988)

OWENS ILLINOIS 1193
Owens ' Illinois, Inc. and Louise M. Colarusso. Case
4-CA-16071
September 22, 1988
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
JOHANSEN AND CRACRAFr
On February 5, 1988, Administrative Law Judge
Robert W Leiner issued the attached decision The
General Counsel filed exceptions and a brief in sup-
port of the exceptions and in support of the deci-
sion, and the Respondent filed cross -exceptions and
a brief in support of the cross-exceptions and in
support of the decision
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 beefs and has
decided to affirm the judge 's rulings, findings, i and
conclusionsa and to adopt the recommended Order
as modified
We agree, for the reasons set forth by the judge,
that the Respondent violated Section 8(a)(1) of the
Act by denying employee Louise Colarusso a pay
raise scheduled to begin on April 1, 1986,3 by sus-
pending her on March 20, and by discharging her
on April 8 We disagree , however, with the judge's
recommendation that the Respondent not be or-
dered to remstate Colarusso to her previous posi-
tion with full backpay
The judge based his recommendation on Colar-
usso's "examples of untruthfulness" in her testimo-
ny at the hearing The specific examples enumer-
ated by the judge were (1) Colarusso's testimony
that Maintenance Supervisor McHale told her on
March 10 that the vents in the medical department
had been cleaned and her subsequent accusation
that Safety Director Guffrovich had had the vents
cleaned , (2) Colarusso's "evasive" testimony con-
cerning whether Industrial Relations Director
Shank asked her on March 20 for a copy of the
Kirby Health Center report , (3) Colarusso 's testi-
mony that Union Shop Steward Slavoski told her
that employees were complaining of tiredness,
' The General Counsel and the Respondent have excepted to some of
the judge's credibility findings 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
a Member Johansen, who did not participate in Meyers Industries, 281
NLRB 882 (1986), affil sub nom Pnll Y NLRB, 835 F 2d 1481 (1987),
agrees with the judge 's conclusion that employee Colarusso was engaged
in protected , concerted activity
3 All dates are in 1986 unless otherwise noted
burning eyes, or headaches due to air quality, (4)
Colarusso's statement to Shank 4 on March 19 that
she had torn up and thrown away the Kirby
Health Center report when in fact she had other
copies of it, and (5) Colarusso's testimony that she
made entries in her diary regarding the significant
events in this case at the time the events occurred
The Board has stated that it will withhold its
usual remedy of reinstatement and backpay from a
discnminatee who makes false statements at a hear-
mg when the discrimmatee's conduct "amount[s] to
a malicious abuse of the Board 's processes under
circumstances which require forfeiture of remedy
to effectuate the purposes of the Act " Service
Garage, 256 NLRB 931 ( 1981 ) We find, for the
reasons explained below, that it would not effectu-
ate the purposes of the Act to deny Colarusso a
full remedy
The judge did not find Colarusso to be a gener-
ally untrustworthy witness Although he discredit-
ed those portions of her testimony listed above, he
credited the major portion of her testimony and
relied on this credited testimony in finding that the
Respondent violated Section 8(a)(1) as alleged in
the complaint by the General Counsel and in the
charge by Colarusso
In light of the fact that Colarusso was a general-
ly trustworthy witness, we find the judge 's recom-
mended remedy unnecessarily harsh In fashioning
an appropriate remedy , we must be mindful that
"[t]he Board does not exist for the 'adjudica-
tion of private rights', it 'acts in a public capacity
to give effect to the declared public policy of the
Act to eliminate and prevent obstructions to inter-
state commerce by encouraging collective bargain-
ing "' Phelps Dodge Corp v NLRB, 313 U S 177,
193 (1941), quoting National Licorice Co v NLRB,
309 U S 350, 362 (1940) The judge's recommend-
ed remedy disregards this principle In fact, his
denial of the normal remedy leaves the effects of
the Respondent's unlawful conduct unremedied
and thus fails to effectuate the policies of the Act
See Multi-Hydromatic Welding Co, 113 NLRB 755,
757 (1955)
Other factors also support the ordering of rem-
statement and backpay in this case The Respond-
ent has completely failed to meet its burden of es-
tablishing that Colarusso is unfit for further em-
ployment with the Respondent [i The Respondent
4 The judge mistakenly recited that this statement was made to Guffro-
vich rather than to Shank
5 The Board has described a respondent's burden in such cases as fol-
lows
When seeking to be excused from his obligation to reinstate or to
pay backpay to a discriminatee because of misconduct which was
not a factor in the discriminatory action, an employer has a heavier
Continued
290 NLRB No 155
1194 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
never contended to the judge, either at the hearing
or in its posthearing brief, that if the judge found
the violations as alleged, Colarusso should be
denied reinstatement and backpay because of her
false statements in her testimony. Nor did the Re-
spondent introduce any evidence to establish that
Colarusso's false testimony would have any impact
on her performance if reinstated.
The judge's speculation, based on no record evi-
dence, that reinstatement would negatively impact
on Colarusso's performance because she "occupies
a delicate position in the health field where em-
ployer and employee confidence are concerned"
neither meets the Respondent's burden nor nullifies
the need for the Respondent to meet this burden.
Further, the soundness of the speculation is sus-
pect, given the fact that the Respondent's officials
who testified were also discredited by the judge, at
least in part, and there is no indication in the
record that the Respondent took any action what-
soever against these officials. Cf. Service Garage,
supra (reinstatement not ordered when the re-
spondent affirmatively established that it would not
have hired the discriminatee if it had been aware
that the discriminatee falsified his employment ap-
plication). Also, we note that it is undisputed that
during her employment Colarusso had been rated
as a "highly effective" employee.'
For all these reasons, we find, contrary to the
judge, that it will not effectuate the purposes of the
Act to require forfeiture of the traditional remedy
of reinstatement with full backpay.7 Although we
burden than when he is merely seeking to justify the original dis-
crunination In the former case , he has the burden of proving mis-
conduct so flagrant as to render the employee unfit for further serv-
ice, or a threat to "efficiency in the plant " [Mandarin , 228 NLRB
930, 931-932 ( 1977), quoting ODan,el Oldsmobile, 179 NLRB 398,
405 (1969)]
" The circuit court cases relied on by the judge to deny reinstatement
and backpay to Colarusso are distinguishable . In NLRB v. Magnusen, 523
F 2d 643 (9th Cir. 1975), the court denied reinstatement to a discrimuia-
tee who admitted after the hearing that he had given false testimony and
that he had in fact claimed and been paid for work that he had not per-
formed . The court emphasized that the discnminatee had "stole [n] from
his employer and . severely impeded the vital fact -finding process by
repeated [ly] lying ." (Id at 646 ) In the instant case , however, Co-
larusso has engaged in no egregious conduct against the Respondent.
Nor, in light of her general credibility, has she "severely impeded" the
factfmding process . Similarly, unlike here, the discirmmatee in NLRB v.
Jacob E Decker & Sons, 636 F 2d 129 (5th Cir 1981), was convicted of a
felony after his discharge , and the respondent in NLRB v Western Clini-
cal Laboratory , 571 F 2d 457 (9th Cir 1978), introduced evidence that the
discruninatee was incompetent to perform his laboratory duties and might
thereby endanger the health and safety of patients Finally, the court in
Iowa Beef Packers v NLRB, 331 F 2d 176 (8th Cir 1964), denied rein-
statement to a discnmmatee whose testimony the judge discredited in
toto and who the judge found lied on the face of the charge that was
filed In the instant case, however, Colarusso was generally credible and
the charge allegations were found to be supported by her testimony
7 Even if we were to agree with the judge that reinstatement was not
warranted , the judge incorrectly cut off the backpay period on the date
of Colarusso's discharge See East Island Swiss Products, 220 NLRB 175
(1975)
do not condone Colarusso's false testimony' at the
hearing, we do not find that conduct, under the
circumstances present in this case, justifies the pen-
alties imposed on Colarusso by the judge. See gen-
erally American Navigation Co., 268 NLRB 426
(1983).8 Accordingly, we will modify the judge's
recommended Order to provide reinstatement and
full backpay for Colarusso.
AMENDED REMEDY
We will order the Respondent to offer'discrimin-
atee Louise M. Colarusso immediate and full rein-
statement to her former position or, if that position
no longer exists, to a substantially equivalent posi-
tion, without prejudice to her seniority or other
rights and privileges previously enjoyed, and to
make her whole for any loss of earnings and other
benefits suffered as a result of the discrimination
practiced against her with backpay to be computed
in the manner set forth in F. W. Woolworth Co., 90
NLRB 289 (1950), plus interest as computed in
New Horizons for the Retarded.9
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent, Owens Illinois, Inc., Pittston, Pennsylva-
nia, its officers, agents, successors, and assigns,
shall take the action set forth in the Order as modi-
fied.
1. Substitute the following for paragraph 2(a).
"(a) Offer Louise M. Colarusso immediate and
full reinstatement to her former position or, if that
position no longer exists, to a substantially equiva-
lent position, without prejudice to her seniority or
other rights and privileges previously enjoyed, and
make her whole for any loss of earnings and other
benefits suffered as a result of the discrimination
practiced against her with backpay to be computed
in the manner set forth in the amended remedy sec-
tion of this decision."
gin American Navigation , the Board distinguished the situation in
which a discriminatee in compliance proceedings concealed interim earn-
ings for certain quarters from that in which the concealment cut across
all backpay quarters In the former situation , the Board found that a
remedy that denied backpay only for the quarters in which concealed
employment occurred would effectuate the purposes of the Act, whereas
in the latter situation the discnminatee would be denied all backpay In
fashioning these different remedies , the Board was guided , as we are
here , by considerations of the public interest in both assuring the inter-
grity of its proceedings and seeing that unfair labor practices are reme-
died
s 283 NLRB 1173 (1987). Interest on and after January 1, 1987, shall be
computed at the "short-term Federal rate" for the underpayment of taxes
as set out in the 1986 amendment to 26 US C § 6621 Interest on
amounts accrued prior to January 1, 1987 (the effective date of the 1986
amendment to 26 U.S C § 6621), shall be computed in accordance with
Florida Steel Corp, 231 NLRB 651 (1977)
OWENS ILLINOIS
2 Insert the following as paragraph 2(b) and re-
letter the subsequent paragraphs accordingly
"(b) Remove from its files any reference to the
unlawful discharge and notify her in writing that
this has been done and that the discharge will not
be used against her in any way "
3 Substitute the attached notice for that of the
administrative law judge
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 the National Labor Relations Act
and has ordered us to post and abide by this notice
WE WILL NOT deprive any employee of a pay
raise, or suspend or discharge employees because
they engage in concerted activities protected under
Section 7 of the Act
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
WE WILL offer Louise M Colarusso immediate
and full reinstatement to her former job or, if that
job no longer exists, to a substantially equivalent
position, without prejudice to her seniority or any
other rights or privileges previously enjoyed and
WE WILL make her whole for any loss of earnings
and other benefits resulting from her discharge, less
any net interim earnings, plus interest
WE WILL notify her that we have removed from
our files any reference to her discharge and that
the discharge will not be used against her in any
way
OWENS ILLINOIS, INC
Joel H Levinson, Esq, for the General Counsel
Richard M Goldberg ; Esq (Hourigan , Kluger, Spohrer &
Quinn), of Wilkes-Barre, Pennsylvania, for the Re-
spondent
DECISION
STATEMENT OF THE CASE
ROBERT W LEINER, Administrative Law Judge This
matter was heard on and between 28-30 September 1987
in Wilkes-Barre, Pennsylvania, on the General Counsel's
complaint' alleging, in substance, that Owens Illinois,
' The underlying unfair labor practice charge was filed by Louise M
Colarusso on 8 September 1987 and served on Respondent on or about 9
September 1986 The complaint is dates I May 1987
1195
Inc (the Company or Respondent) violated Section
8(a)(1) of the National Labor Relations Act, by (a) on or
about 18 March 1986 denying its employee , Louise M
Colarusso , a wage increase , and (b) on or about 20
March 1986 suspending, and on or about 8 April 1986,
terminating her employment , all because she engaged in
concerted activities for the mutual aid or protection of
employees while collecting certain dust samples and sub-
mitting the samples for independent analysis In the alter-
native, the General Counsel alleges violation of Section
8(a)(l) of the Act because Respondent engaged in the
above conduct because it believed that Colarusso had
spoken with employees concerning the results of the in-
dependent laboratory analysis of the dust samples Re-
spondent's timely answer admits certain allegations of
the complaint, denies others, and denies the commission
of any unfair labor practices In particular , Respondent
alleges that the Charging Party was not engaged in pro-
tected concerted activities and alleges that she was dis-
charged and otherwise disciplined because of insubordi-
nation
At the hearing, all parties were represented by coun-
sel, were given full opportunity to call and examine wit-
nesses, to submit oral and written evidence, and to argue
orally on the record At the close of the hearing , the par-
ties waived the right to present final argument and elect-
ed to submit briefs Thereafter, the General Counsel and
Respondent filed timely posthearing briefs that have been
carefully considered
On the entire record , including the briefs, and from
my particular observation of the demeanor of the wit-
nesses as they testified , I make the following
FINDINGS OF FACT
I JURISDICTION RESPONDENT AS STATUTORY
EMPLOYER
The complaint alleges, Respondent admits, and I find
that at all material times, Respondent, an Ohio corpora-
tion, manufactures at its production facility in Pittston,
Pennsylvania, television face panels, and during the year
prior to May 1987, in the course and conduct of its busi-
ness operations , sold and shipped products from its Pitt-
ston plant valued in excess of $50,000 directly to points
outside the Commonwealth of Pennsylvania Respondent
admits and I find that at all material times it has been an
employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act
II THE UNION AS A STATUTORY LABOR
ORGANIZATION
The complaint alleges, the Respondent admits, and I
find that at all material times Glass , Pottery, Plastics and
Allied Workers International Union, Local 243 (the
Union) at all material times is and has been a labor orga-
nization within the meaning of Section 2(5) of the Act 2
2 Louise Colarusso is not a member of the production and maintenance
bargaining unit of which the Union is the collective-bargaining represent-
ative Colarusso, a registered nurse, Respondent's head nurse, is a salaried
rather than an hourly paid employee There is no contention that she is a
Continued
1196 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
III THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
Respondent's Pittston plant, about 10 miles from
Wilkes-Barre, Pennsylvania, occupies about 800,000
square feet, employs about 850 employees in its produc-
tion and maintenance unit together with approximately
150 administrative employees, and manufactures the glass
face plates for color television tubes and cathode ray
tubes. Among the chemical ingredients used in the manu-
facture of glass for these tubes are arsenic, antimony, and
lead, exposure to each of which is highly toxic under
certain conditions. These chemicals, and other ingredi-
ents, are mixed in the plant area called the batchhouse.
Batchhouse employees and employees who work in the
furnace area where the chemical and glass ingredients
are introduced into furnaces, wear filter respirators in
order to avoid inhaling these chemicals. The respirators
are worn because of the danger that the air ventilation
system in the plant production area will be insufficient to
carry away the airborne corrosive dust materials which
the employees handle. It is the inhalation of airborne
toxic dust that Respondent seeks its employees specifical-
ly avoid. The employees are further protected from
undue exposure by restrictive regulations promulgated
by the Secretary of Labor under the Occupational Safety
and Health Act of 1970 (84 Stat. 1593) (OSHA) and par-
ticularly 29 CFR § 1910.1018 relating to the protection
of employees from exposure to inorganic arsenic.
Monitoring of the air with special air pumps and filters
is performed on a regular basis by Respondent in the
areas where the employees wear respirators, the batch-
house and the furnace area. Monitoring was not per-
formed in administrative areas . Although the plant,
through its own safety department, tests and monitors
the corrosive possibilities of airborne dust perhaps sever-
al hundred times per year (Tr. 467-468), Respondent, on
a corporate divisional basis, also monitors air in the
plant. Thus Respondent's divisional industrial hygiene
department, covering 4 plants and 3000 employees, em-
ploys a divisional industrial hygienist (Terrance L. Rich-
ardson) who, on a quarterly basis, monitors the air qual-
ity at the Pittston plant where the employees wear respi-
rators. In particular, he does dust monitoring for air-
borne dust levels of lead, antimony, arsenic, silicon, and
welding fumes. He also monitors noise and chemical sol-
vent exposure along with routine physical examinations
of employees in the batch and furnace department, in-
cluding urine analysis and blood testing.
Respondent's particular interest and concern is air-
borne dust rather than the appearance of corrosive
chemicals in dust itself Notwithstanding that dust itself
is of lesser consequence and interest, the place where the
dust is found, particularly if the dust might be carried in
the ventilation system, is significant. The plant adminis-
trative area and offices enjoy a forced-air, vented, venti-
lation system. The production area does not have such a
system.
supervisor and Respondent does not argue that by professional status or
otherwise she is not an "employee" protected by the Act
As above noted, 29 CRF § 1910, the Code of Federal
Regulations, particularizing the OSHA statute, contains
about 1000 subparts governing and regulating chemical
toxic substances in industrial settings. In particular, sub-
part 1018 is the standard relating to inorganic arsenic.
The "Permissible Exposure Limit" under subpart 1018, is
10 micrograms of inorganic airborne arsenic per cubic
meter in an 8-hour period. The regulation also establishes
an "Action Level." If monitoring shows that the air-
borne arsenic level is below 5 micrograms per cubic
meter in the 8-hour period, then there is no need to con-
tinually monitor the area by the air filter method As a
general proposition, however, the OSHA regulation re-
quires employer action if there is a change in levels of
airborne arsenic suggesting that additional exposure is
present.
As will be seen, the evidence demonstrates Respond-
ent's serious concern with the possibility of detrimental
effects among its employees because of the toxicity of
airborne arsenic. Consistent with this interest, Respond-
ent maintains a laboratory in Toledo, Ohio, where it ana-
lyzes samples of toxic materials sent to it from its various
plants. The analytical techniques used in the Toledo lab-
oratory may not be and, on this record, sometimes were
not, as delicate as those techniques in other laboratories
(Tr. 360-362).
B. Colarusso's Submission of Dust Samples to Kirby
Health Center
Respondent's machine shop employees were moved
from their upstairs location to the basement around April
1985. Joseph Slavoski, a machine shop employee of 19
years and, in the summer of 1985 , a union-shop steward
and member of the union business committee, held meet-
ings with Respondent' s plant manager (Townsend) and
industrial relations director (John "Jack" Shank) about
once a month concerning grievances and other plant
problems. As plant nurse, Colarusso was often present.
By the summer of 1985, more than half of the dozen em-
ployees in the machine shop were complaining of tired-
ness, dizziness , and sore throats. As a result, Slavoski
took these- complaints to the joint union -management
(business committee) meetings and complained of em-
ployee health problems on several occasions in the early
fall of 1985. In response, the plant manager and the in-
dustrial relations director said they would investigate the
problems. In one conversation in the fall of 1985, Sla-
voski asked Industrial Relations Director Shank to have
someone come down to the machine shop and answer
employee complaints concerning the air environment in
the basement machine shop. Shank, however, said that it
was mostly a problem of the employees' change of sce-
nery, going from upstairs to downstairs There is howev-
er, no dispute that in the summer and fall of 1985, Re-
spondent was engaged in a construction program at the
Pittston plant that resulted in high levels of dust in the
ventilation system that serves the administrative offices
of the plant. Slavoski twice specifically denied mention-
ing employee complaints over air quality or physical
symptoms to Louise Colarusso, or to Deborah (Debbie)
Savoia, Colarusso's lunchtime companion. (Tr. 32; 38-
OWENS ILLINOIS 1197
40) Colarusso contradicted Slavoski and testified that
she did have a conversation with him concerning the ma-
chine shop employees ' complaints and symptoms of tir-
edness, burning eyes , and headaches (Tr 50) In view of
this contradiction , I do not credit Colarusso 's testimony
of such a conversation with Slavoski a
In the summer of 1985 , Savoia, secretary to Shank in
the personnel department , regularly complained to head
nurse Louise Colarusso , an employee of Respondent for
19 years She complained of burning of the eyes, sore
throat, coughing , and tiredness , symptoms and com-
plaints that Colarusso herself testified she had experi-
enced in the same period In addition , Colarusso testified
that commencing in the fall of 1985 and into the spring
of 1986, she had several times fallen , had experienced
nausea and diarrhea , also suffering from neuritis and
pains of the feet No independent medical evidence sup-
ports this testimony I nevertheless credit such testimony
By November 1985 , Deborah Savoia had consulted a
physician (Dr Casterline) and submitted a urine sample
because of these symptoms At the beginning of Decem-
ber 1985 , Savoia received the laboratory report on her
urine sample It showed abnormally high readings of
both arsenic and iron 4 Having received the urinalysis
report around December 5, Savoia gave the report to
Colarusso Colarusso told Savoia to discuss the report
with Dr Joseph Campanella , Respondent 's plant physi-
cian Colarusso read the Savoia medical reports and gave
them to Dr Campanella Sometime immediately thereaf-
ter, Savoia saw Dr Campanella about the report and, al-
though the matter was never discussed in Colarusso's
presence, Dr Campanella did discuss the matter with
Respondent 's plant director of health and safety, Colar-
usso's supervisor, Margaret (Peggy) Guffrovich (Tr
135-136)
In January 1986, Savoia, who worked down the hall
from Colarusso in the medical department, gave Colar-
usso a Pennsylvania Department of Health article on ar-
senic (G C Exh 3) Knowing of Savoia 's urine sample
showing an abnormal arsenic level, and having read this
literature, Colarusso, sometime in early January 1986,
spoke to Safety Director Peggy Guffrovich about dust in
the administrative area and asked Guffrovich to take
samples Guffrovich sent over Plant Chemist Del Cragle
In January, Del Cragle did perform dust tests in the
medical department and, thereafter, Guffrovich showed
Colarusso the test results The results showed that the
levels of arsenic and lead, according to Respondent's
Toledo, Ohio laboratory, were of a nondetectable level
Guffrovich said that dust accumulations came from con-
struction in the plant and the results showed various
trace quantities of elements but no arsenic (Tr 231, 450-
452) She also credibly testified that after she had given
permission for Cragle to do the January dust sampling,
another laboratory technician told her that Colarusso
wanted to do further dust sampling and he asked Guffro-
vich for permission Guffrovich gave the laboratory
technician permission to perform the further test that
was apparently not performed (Tr 452-453, 464)
In early February , Colarusso testified that a machinist
(Richard Zabrovian) told Colarusso of many employees
in the machine shop who were sick a Thereafter, in Feb-
ruary 1986 , Colarusso told Safety Director Guffrovich
that employees in the machine shop were complaining
about the air and dust
Particularly as a result of her own and Savoia 's symp-
toms, and having read the arsenic literature given to her
by Savoia , Colarusso on 12 February 1986, collected a
sample of dust from an air exhaust vent in the medical
department Since Colarusso 's automobile was in the
repair shop, Colarusso asked Savoie to take this dust
sample to the nearby Kirby Health Center for analysis,
and Savoia agreed
On 13 February, during the morning coffeebreak in
the company cafeteria, Savoia mentioned to a coem-
ployee that she was going to drop off the sample Sla-
voski overheard the conversation and asked Savoia if she
would be willing to take a dust sample which he would
collect over to the Kirby Health Center for analysis
Savoia agreed Later in the morning , Slavoski asked a
coemployee in the machine shop to gather a dust sample
from the machine shop area , place it in a plastic bag, and
return it to him Slavoski told the employee (Zabrovian)
that he wanted to send the dust out as a sample (Tr 22)
Zabrovian then gave him the dust sample in the plastic
bag and Slavoski turned it over to Savoia 6
Savoia then brought the two dust samples to the Kirby
Health Center and presented them under her own name
She paid $30 to the hospital for the analysis of Slavoski's
sample, and $30 for analysis of Colarusso's sample This
second $30 had been given to her by Colarusso for that
purpose
Savoia received a 27 February 1986 report on the two
samples from the Kirby Health Center (G C Exh 7) on
5 March 1986 On the same day, Savoia gave a copy of
the report, bearing Savoia's name, to Colarusso When
Colarusso got the copy from Savoia, she deleted Savoia's
name and address from the report and made copies of it
C The Kirby Health Center Report (G C Exh 7)
The hospital report showed analysis of dust from two
bags for both arsenic and antimony The Colarusso dust
sample from the medical area showed 22 micrograms of
arsenic and 190 micrograms of antimony per gram of
S Although this matter does not dispose of the question of whether, as
noted, Colarusso was engaged , with other employees, in concerted pro-
tected activities, I find it important to note my discrediting of Colarusso
in this testimony because of repeated lapses of credibility on her part Al-
though the General Counsel now suggests that Slovoski simply did not
recall complaining to Colarusso (Br 2-3), he originally argued that Sla-
voslu's original denial was a result of confusion (Tr 38-39) Slavoski nev-
ertheless again denied discussing complaints with Colarusso (Tr 40)
4 The laboratory's normal value for arsenic was "below 25," whereas
Savoia's urine showed a reading of 39 units of arsenic (G C Exh 8 )
3 Zabrovian did not testify
6In early December , Savoia took a second urine test and it showed
that her arsenic and iron levels had decreased significantly and were
within normal limits She told Dr Campenella of this 2 December urinal-
ysis when she saw him on 2 January She spoke of the result of the test
to Colarusso on the next day, 3 January 1986 Savoia also testified that
when she complained to the Company about the volume of the airflow in
the administrative area on 6 December, it was adjusted and her symp-
toms decreased At a later date she had been told (Tr 236) that the air
system had been working at an increased capacity during the period of
new construction
1198 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
dust The Slavoski sample showed 105 micrograms of ar-
senic and 570 micrograms of antimony per gram of dust
Although Colarusso was able to read and understand
the weights assigned to the arsenic and antimony find-
ings, she did not know their significance in terms of pos-
sible health effects
On the next day, 6 March 1986 , Colarusso encountered
her old friend, Jorge Garcia-Pons, the industrial engi-
neering supervisor (a peer of Industrial Relations Direc-
tor Shank in the hierarchy ) in the Pittston plant As a
matter of coincidence, Garcia-Pons had been assigned
the new duties of plant purchasing agent and a secretary
was to be assigned to the purchasing department to assist
him The secretary to be transferred was Debbie Savoia
who was to leave her job as secretary to the industrial
relations director and become Garcia-Pons' clerical as-
sistant Garcia-Pons knew of the regular lunchtime rela-
tionship between Savoia and Colarusso and wanted in-
formation as to what type of clerical was being assigned
to him Colarusso told him that Savoia was sick with ar-
senic toxicity and that Colarusso, herself, had been sick
with similar symptoms She also told him that she had
collected a dust sample from the medical department,
had submitted it to the Kirby Health Center , and that the
report showed arsenic in the dust Colarusso also told
him, however, that she did not know what the reported
"numbers" meant and wanted to show Garcia-Pons the
report to discover its health significance She also told
him that the report showed arsenic in the dust in the ma-
chine shop as well as in the medical administrative office
Colarusso invited him to her office and told him that she
would show him the report, which she did Garcia-Pons
looked over the report (Tr 80, 396)
Garcia-Pons recalls seeing the Kirby Health Center
letterhead and told Colarusso that he could not interpret
the values listed in the report The testimony of Colar-
usso and Garcia-Pons then becomes contradictory Ac-
cording to Colarusso, Garcia-Pons read the report and
said "Jesus Christ I told [Machine Shop Supervisor
Gerald] Dean to make sure that there 's no arsenic there "
On the other hand, Garcia-Pons testified that he told her
that not only could he not interpret the values, but that
because of Respondent 's continued air and blood testing,
the values were "meaningless", that Colarusso was "en-
tering into a witch hunt", that her investigation was a
waste of time , and that she should forget about the
whole thing However , he testified that he added that, if
she insisted on interpreting the Kirby Health Center's
figures, she should see Plant Health Engineer Joseph
Nardone or Plant Physician Dr Joseph Campenella At
this point, according to Colarusso, she told Garcia-Pons
that she wanted the information held in the strictest con-
fidence until she received an interpretation of the "num-
bers " Garcia-Pons told her that his "lips are sealed" (Tr
83)
Contrary to Garcia-Pons' assertion that he told her to
speak to Supervisor Nardone or Dr Campenella, Colar-
usso testified that Garcia-Pons then told her to call
OSHA for an interpretation of the arsenic values Colar-
usso says that she asked him for advice about what she
should ask OSHA concerning the figures, that Garcia-
Pons told her to ask OSHA what were the permissible
air levels, and that if OSHA reported that it was msignif-
icant, she should just forget about it (Tr 83)
Colarusso then telephoned OSHA, described the di-
mensions of the area in which she obtained the sample,
and read the Kirby Health Center report directly to the
OSHA official She mentioned only the arsenic level of
220 micrograms per gram and did not mention the anti-
mony (Tr 86) The OSHA official told her that the ac-
ceptable or permissible air level of arsenic was 10 micro-
grams per cubic meter in the air and that her dust sample
of 220 micrograms per gram was a negligible amount of
arsenic (Tr 86-87)
I credit Colarusso 's version and discredit Garcia-Pons
I find that he told her to contact OSHA and did not tell
her to speak only with Plant Supervisor Nardone and
Dr Campenella I also do not credit his denial of telling
Colarusso that he had told Mechanical Area Supervisor
Dean 7 to be careful of arsenic in the machine depart-
ment Furthermore , I also credit Colarusso , over Garcia-
Pons' denial , that she telephoned him on the same day, 6
March, to tell him of the result of her OSHA conversa-
tion, in substance, that OSHA said the arsenic level was
negligible 8 I make these credibility resolutions both on
the basis of my observation of the demeanor of Garcia-
Pons and Colarusso and on the reasonableness of the tes-
timony There is no explanation on the record why Co-
larusso would have called OSHA but for Garcia-Pons'
suggestion, the suggestion of an old friend and a trained
engineer Indeed , if Garcia-Pons had suggested that she
contact only Nardone and Campenella , it would appear
to me that Colarusso would have done so It was, how-
ever, on Garcia-Pons' suggestion that she called OSHA
She did so In retrospect, in view of the consequences
(described below) that flowed from his apparently un-
thinking suggestion that she call OSHA, I can readily see
why Garcia-Pons would deny his making that suggestion
to Colarusso notwithstanding their long friendship The
evidence of record concerning Respondent's attitude re-
lating to any of its employees taking dust samples to an
outside agency for testing , much less actually contacting
OSHA concerning these samples, demonstrates the
reason for Garcia-Pons' untruthful testimony I do not
credit his denials In reaching this conclusion, I have
considered and rejected the counterargument that Su-
pervisor Garcia-Pons, an employee of 29 years (Tr 383),
aware of Respondent 's rigid chain of hierarchical com-
mand and its distaste for OSHA, would not make such a
suggestion 8
7 Dean did not testify
8 On the same day that she spoke to Garcia-Pons and had also spoken
to OSHA, Colarusso fell again and collected another dust sample, which
she brought to the Kirby Health Center for testing on 14 March The
second Kirby Health Center report is dated 21 March (G C Exh 5) and
plays no role in this case
a Though this credibility resolution appears to me to be fully support-
able, I nevertheless have made it in the face of other vital credibility res-
olutions that directly and consistently undermine Colarusso's veracity In
this case, I was guided by Judge Hand 's famous dictum that "nothing is
more common in all kinds of judicial decisions than to believe some and
not all [of a witness'] testimony " NLRB v Universal Camera Corp, 179
F 2d 749, 754 (2d Cir 1950), vacated and remanded on other grounds 340
US 474 (1951)
OWENS ILLINOIS
D The Events of 13 March 1986
The events of 13 March 1986 are in dispute regarding
Colarusso's conversations in the maintenance department
office I nevertheless find that on the morning of 13
March, in the maintenance department office , she spoke
with Assistant Plant Engineer Bill McHale and asked
him if he knew anything about the plant being fined by
OSHA for dust in the ventilation system When McHale
answered that he knew nothing about it , Respondent's
environmental foreman , George Potak, said that there
had been no OSHA fine or citation but that there was a
fine imposed by the Pennsylvania Department of Envi-
ronmental Resources (DER) and that it was a result of a
short shut down of Respondent 's smokestack electrostat-
ic precipitator After Potak told her that the Respondent
had been fined by DER rather than OSHA (Tr 385),
Colarusso said that Respondent , bypassing its filters, was
pumping polutants into the air that were being sucked
into the plant air intakes , and that employees were get-
ting sick in the plant, complaining of red eyes and sore
throats
Colarusso , in substance , denies the above conversation
that she was accusing the Company of anything, but,
rather, was asking questions of what was going on I do
not credit her version even if her assertions were in the
form of questions As I observed her, such questions,
forcefully put, implied company inaction
Furthermore , there is an alleged dispute concerning
the reaction of a secretary in the office, Diane Gubiotti
Supervisor Potak testified that Gubiotti asked him, after
Colarusso left the office, "do we have a problem?" and
Potak answered that there was no problem that he was
aware of He then explained to Gubiotti the operation of
the smokestack electrostatic precipitators According to
Colarusso , Gubiotti told her, as Colarusso was leaving,
that Gubiotti's cousin had been exposed to chemicals and
died of Hodgkins disease I do not find any actual dis-
pute here I find that all the above occurred because
there is no inconsistency
Although I have found that Colarusso made the above
accusations-whether in question form or not-I reject
Respondent's argument that such accusations constituted
one of the reasons for later discharging Colarusso, not-
withstanding that it appears in its letter of termination
(G C Exh 6) 10 It is enough to find , as I do, that Colar-
usso stated that the plant 's ventilation system, perhaps
bypassing filters, did not filter out harmful chemicals
E Later events of 13 March 1986
Later in the day, Safety Director Peggy Guffrovich
called Colarusso into her office in the presence of the
plant environmental engineer , Joe Nardone The events
precipitating this meeting are as follows
After Colarusso had earlier visited the plant mainte-
nance office (speaking to Supervisors McHale and Potak
concerning the DER citation and fine), Plant Supervising
10 The next morning, 14 March, George Potek told Colarusso by
phone that he and Guftrovsch were doing tests on filters in the ventila-
tion system Colaruaso asked him to let her know what the results were
Potak evidently made the phone call because of what Guffrovich learned
later in the prior afternoon (13 March)
1199
Engineer Ostrowski telephoned Guffrovich and told her
that Colarusso had been in the maintenance office that
morning asking questions about the DER citation and
making statements that upset the secretary, Diane Gu-
biotti Guffrovich reported this telephone call to Indus-
trial Relations Director Shank who told her to get a
copy of the DER citation and review it with Colarusso
Guffrovich then called Environmental Engineer Nar-
done and asked him to bring a copy of the DER citation
to her office When he did so, she telephoned Colarusso
and told her of the complaint from the plant engineer
(Ostrowski) that Colarusso had not only upset Gubiotti
but had made accusations inconsistent with the DER ci-
tation
Colarusso entered Guffrovich's office and knew that
Nardone was an environmental specialist Guffrovich
asked her why she was questioning Supervisor McHale
about the DER fine Colarusso told her she was only in-
terested in the dust in the ventilation system and thought
that if the fine had something to do with that situation,
the employees would not get any more dust through the
system Guffrovich then asked Colarusso why she ques-
tioned McHale about the fine in view of Del Cragle's
earlier testing that showed , as Colarusso knew, no ar-
senic or other toxins Colarusso told her that she thought
that there were chemicals present in the dust, that the
employees should be concerned about it, and that she
herself was showing symptoms of arsenic toxicity Nar-
done said that he had similar complaints and had been to
see Dr Campanella Colarusso said not only that she
knew that he had been down to see Campanella but that
she was going to see her family doctor to be tested for
chemicals She told Guffrovich that there were four new
cases of cancer together with mental health and heart
problems in the plant and that she did not believe that
the Respondent's tests for harmful chemicals were con-
clusive
After Guffrovich told Colarusso that she had upset
Gubiotti by her statements concerning the inadequate
ventilation system , Nardone and Guffrovich told Colar-
usso that the plant ventilation system contained two sep-
arate sets of filters for effluent from the furnaces that fil-
tered the air coming into the office ventilation system
Guffrovich told her not to make statements in the form
of accusations in front of people like Gubiotti who did
not understand the ventilation system When Colarusso
replied that these matters should not be hidden from the
employees , Guffrovich answered that she did not ask
Colarusso to hide anything
Colarusso then said that she did not believe that Re-
spondent's tests were conclusive and told them that she
had taken a dust sample from her office and sent it to the
Kirby Health Center for testing, that she contacted
OSHA, that the analysis , unlike the Del Cragle test,
showed the presence of arsenic , but that the arsenic was
not shown to be at a toxic level Colarusso also stated
that Respondent had never had continuing monitoring of
the air in the medical department Guffrovich testified
that Colarusso's statement-that Colarusso had sent a
sample of dust to the Kirby Health Center and had con-
tacted OSHA "stunned " her (Tr 284, 444) When Guf-
1200 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
frovich asked why she had taken a sample without
asking or telling Guffrovich or anybody else what she
was doing, Colarusso answered that she submitted the
sample because she was having symptoms, feeling sick
and she just wanted to see what the testing results would
be from an independent laboratory.
Nardone then asked Colarusso what the test results
showed. Colarusso told him that it showed arsenic of 220
micrograms per gram of dust (Tr. 595) and that OSHA
said this was negligible when she telephoned (Tr. 284).
Nardone tried to describe the type of test that Kirby
Hospital Center must have used and Colarusso said that
she did not know what kind of test Kirby had used. Guf-
frovich then asked Colarusso for a copy of the test re-
sults and, when Colarusso said she did not have one at
the plant, Guffrovich asked her to bring a copy in the
next day. Colarusso agreed (Tr. 445).
Guffrovich and Nardone then reported the results of
their conversation with Colarusso to Industrial Relations
Director Shank (Tr. 284). In particular, they told him
that Colarusso had taken a dust sample and submitted it
to an outside laboratory, had contacted OSHA about it,
and that Guffrovich asked for a copy of the results.
Shank testified that between his 13 March receipt of this
information from Guffrovich and Nardone and 17
March, he had at least two phone conversations with the
divisional office in Toledo, in one of which a company
lawyer was involved. Other participants in the conversa-
tions were Plant Manager "Skip" Townsend and the Re-
spondent's divisional industrial relations director in
Toledo, George Herron. He told all three of them of the
results of the Colarusso conversation including her con-
tacting OSHA (Tr. 285-287). One element of the conver-
sations (Tr. 480) was the form of discipline to be admin-
istered to Colarusso. The possibilities discussed by these
supervisors ranged from a written warning to dis-
charge. t t None of these decision-makers appeared as
witnesses. Shank could not recall who raised the possibil-
ity of discharge in these conversations. By 17 March, ac-
cording to Shank, as a result of the various conversa-
tions, the group decision was to limit discipline only to a
rescission of Colarusso's approaching 6-percent pay raise
that was to be effective on 1 April 1986. (Tr. 303-304.)
A first result of Shank speaking with Respondent's di-
visional industrial relations director, George Herron, was
that Herron notified the divisional industrial hygienist,
Terrence L. Richardson, to fly to the Pittston plant and
do air sampling because the plant nurse had a dust
sample analyzed that showed arsenic (Tr. 335-337). No
other Herron instructions appear in the record. Richard-
son ultimately arrived on 18 March.
On the next day (14 March after the Colarusso-Nar-
done-Guffrovich conversation, Guffrovich told her that
she had not. When Guffrovich asked her why she had
not brought it in , Colarusso told her that she did not
know if she was going to give a copy to Guffrovich and
that she would have to "see" about it.
11 It is essential to an understanding of the conclusions here that the
discharge of Colarusso was raised as a disciplinary possibility resulting
from her conduct on 13 March, alone
F. Events of 18 March
About 8:30 a.m. on 18 March, Richardson and Guffro-
vich came to the medical office and told Colarusso that
Richardson had come to do air sampling. Colarusso's as-
sistant , nurse Michaelene Lyons, was also present at this
time . Colarusso suggested that a dust sample be taken
below one of the ventilation grills . When Colarusso said
that someone had cleaned the grills in her office, Guffro-
vich denied that the vents had been cleaned. Colarusso
insisted that Guffrovich had had the vents cleaned. 12
Colarusso told Guffrovich that Supervisor McHale had
told her that the laborers had cleaned the vents over the
weekend. Colarusso told Guffrovich of seeing threads of
cloth on the grating on the vent showing that some cloth
had been used to clean the vents. When Guffrovich said
she knew nothing of it, Colarusso said that Guffrovich
had cleaned the grills over the weekend but Guffrovich
denied it (Tr. 338-340; 447-449). I do not credit Colarus-
so's testimony that she only said that McHale told her he
had cleaned the vents. I find that she accused Guffrovich
of cleaning the vents (Tr. 108-109). At this time, Rich-
ardson was using air pumps in the medical department
testing for arsenic.
Later in the day, Richardson (without Guffrovich)
came to the medical office to check the air pumps. Mi-
chaelene Lyons, the assistant nurse , was present. Rich-
ardson and Colarusso spoke of the tests in January that
Del Cragle had taken and Colarusso asked Richardson
why Respondent's Toledo laboratory, a high quality lab-
oratory, could not detect arsenic whereas the Kirby
Health Center could. Richardson said that the older
equipment at the Toledo laboratory was not sensitive
enough to pick up the arsenic. I do not credit Richard-
son's further testimony that Colarusso, half whispering,
then told him that she and Michaelene Lyons had come
12 Colarusso testified that she noticed that the vents had been cleaned
in the medical department on the morning of 10 March (Monday) She
said she telephoned Maintenance Supervisor McHale that morning and
asked him to stop by She testified that , on the same morning , when he
came to her office , she asked him whether the vents were all cleaned in
the medical department and who had cleaned them (Tr 580-582) Ac-
cording to Colarusso , McHale told her that the laborers had cleaned the
vents and that they were starting to clean all the vents in the plant As
will be noted in the text , when Shank , on 18 March , later summoned
McHale to confront Colarusso concerning whether the laborers or
McHale had cleaned the vents or whether he had told Colarusso that he
had cleaned the vents , McHale credibly testified that (a) Colarusso had
asked him whether he had cleaned the vents over the weekend and he
had told her that he had not (Tr. 376), that (b) apparently about I week
later, at 10 a.m on 18 March 1986, Peggy Guffrovich telephoned him
and asked him if he had cleaned the vents in the medical office and he
had told her that he had not (Tr 375-376} and that (c) later in the day,
on 18 March 1986, he told Shank, Colarusso, and Guffrovich, for the
third time, when he was called into Shank's office, that he had not
cleaned the vents in the medical office and, looking directly at Colarusso,
said that he had told Colarusso that he had not cleaned the vents (Tr.
298, 375) Shank testified that Colarusso then said that she must have
"misunderstood" and that the confrontation ended (Tr 298) When Co-
larusso testified in rebuttal , she did not deny Shank 's testimony or at-
tempt to explain it away. For instance , she did not say that she told
Shank that she "misunderstood ," only to save McHale embarrassment or
that McHale was untruthful On this record , I credit Shank and find that
McHale never told Colarusso that he cleaned the vents, nor did Guffro-
vich ever tell Colarusso that McHale cleaned the vents or that she had
ordered him to do so I make no finding regarding who actually cleaned
the vents This McHale testimony appears again later in the text
OWENS ILLINOIS
in early over the weekend and cleaned the grills on the
air vents I do not credit Richardson in such testimony
(although I find that he immediately told this to Guffro-
vich who then told Shank) because nurse Michaelene
Lyons, an employee presently employed by Respondent
and a witness called by Respondent , credibly testified
contrary to Richardson 's testimony whereas Richardson
testified that Colarusso had whispered , in a serious tone,
that she and Michaelene Lyons had cleaned the vents,
Michaelene Loyons testified that Colarusso actually told
him, in a facetious tone "Well, Michaelene and I must
have come in to clean the vents over the weekend" (Tr
557) Richardson, in rebuttal , testified that Colarusso did
not use a facetious tone (Tr 648) and specifically stated
that he thought that Michaelene Lyons was mistaken in
her testimony He could not explain how she came to the
conclusion that Colarusso was facetious in making her
statement to Richardson (Tr 649) 13
Still later on 18 March , or on the next morning, there
was a third conversation between Richardson and Colar-
usso In this third conversation, not mentioned by Colar-
usso but testified particularly to by Richardson , Colar-
usso allegedly told hum that employees other than
Debbie Savoia had arsenic poisoning and not to trust
Guffrovich and Shank concerning the arsenic exposures,
the arsenic levels , and test results Richardson testified
that Colarusso told hum that "they" had been out to get
her since 1971 , and that she was the only person in the
plant who was truly concerned about the health and wel-
fare of the employees Richardson allegedly told her that
he could not believe that Shank and Guffrovich were
not concerned with the health and welfare of the em-
ployees in the plant, and that although Richardson knew
them only for 8 months, he considered them trustworthy
(Tr 344-345) In rebuttal , Colarusso demed most of this
testimony (Tr 588 et seq) and asserted that to make
such statements to a high divisional supervisor, but a
stranger to the rigid plant "chain of command," would
be "putting her head in the guillotine " (Tr 617)
I specifically discredit Richardson's testimony con-
cerning this alleged conversation except that Colarusso
said that Savoia and other employees had symptoms of
arsenic poisoning, and I cannot credit his testimony, nor
Shank's lame corroboration , that he mentioned such a
conversation to Shank (except that Savoia and other em-
ployees had arsenic symptoms) sometime between 18 and
20 March Had such an underlying conversation been re-
ported to Shank-from a divisional official-as I view
the evidence developed in this case and the analysis
hereafter made, Shank would have disciplined or even
discharged Colarusso on the spot or at least thereafter
mentioned such a devastating show of disloyalty to her
in one of several subsequent disciplinary interviews He
rs Richardson testified that he made notes (later destroyed but used to
support a later memorandum) of this conversation with Colarusso and
thereafter immediately told Guffrovich of what Colarusso had allegedly
whispered and also mentioned it to Shank after telling Guffrovich (Tr
405-406, 342) Guffrovich, a credible witness, corroborated that Richard-
son told her what Colarusso allegedly said (Tr 449) but, of course, was
not present at the event Shank could not explain why he faded to testify
about this matter at a later state unemployment compensation hearing
where he testified to various Colarusso untruths (Tr 517-519)
1201
would not silently tolerate such derrogatory statements
concerning (even truthful) accusations of untrustworthi-
ness of Guffrovich and himself regarding the health and
welfare of the 1000 employees in the plant Nothing in
Shank's testimony in later disciplinary interviews relates
to a Colarusso accusation of untrustworthiness , and Guf-
frovich , who was present at various subsequent discipli-
nary interviews with Colarusso, does not suggest the ex-
istence of such an alleged statement by Colarusso On
the other hand , as noted here, I have credited Shank
covering a later "trade" by Colarusso concerning ac-
tions showing Respondent's alleged historic desire to
"get" Colarusso This later matter was never denied by
Colarusso in rebuttal
G The Disciplinary Interview on the Afternoon of 18
March 14
In the afternoon of 18 March , Guffrovich telephoned
Colarusso and told her that Shank wanted to see her in
his office When Colarusso got there , she found Guffro-
vich in the office Shank told her that disciplinary action
was going to be taken against her for insubordination,
and that the discipline would be that the 6 -percent April
pay raise would be denied to her He told her that she
was a valuable asset to the Company and he did not
want to lose her Colarusso credibly testified that he then
told her that he might have to take further action against
her and would let her think about it (Tr 114) I credit
Colarusso and do not credit Shank 's assertion that he
wanted to put the whole matter to rest ("put the whole
issue to bed") (Tr 293) and did not mention that even
with Colarusso 's false accusations against Guffrovich
(cleaning the vents), and her going outside the chain of
command to OSHA, he had no intention of discharging
her-even with the "lies"-pnor to the 18 March meet-
ing (Tr 291-293) It was the events that arose during the
18 March meeting, including her false assertion that she
acted on Garcia-Pons' suggestion in contacting OSHA,
that, Shank testified , caused the suspension and discharge
commencing 20 March It was the "lies" that came out
at the 18 March interview that caused him to notify
Plant Manager Townsend and tell hum that the Colarusso
matter had not been "put to bed " Townsend did not tes-
tify and did not corroborate such a Shank phone call
Shank testified that as a result of the 18 March inter-
view, however, he decided to investigate further (a) why
Colarusso called OSHA, (b) why she went outside with
the samples, and (c) the cleaning of the air vents
After the meeting , apparently on the morning of 19
March, Richardson told him that Colarusso said other
employees had arsenic symptoms (Tr 305-306) and
Garcia-Pons, in the late afternoon of 19 March, was
called in by Shank and denied advising her to call
OSHA (Tr 478-495) 15
is The dating and chronology of events occurring in interviews 18-20
March involving Colarnsso , Shank, and Guffrovich are in some dispute
The above chronology is an attempt to resolve certain inconsistencies in
any case, I conclude that the precise dates of the occurrences are not de-
cisive
is Garcia-Pons denied advising her to contact OSHA but admitted that
she showed him the Kirby Hospital report Shank, when asked if he
Continued
1202 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
H. The Disciplinary Interview of 19 March
In the afternoon of 19 March, Guffrovich called Co-
larusso again and told her to come to Shank's office.
Guffrovich was present. Shank told her that not only
was she going to lose the pay raise, but she would be
possibly terminated He asked her why she had gone to
OSHA in spite of Respondent's formidable in-house ex-
pertise (Tr. 297) and had spoken to Garcia-Pons con-
cerning the Kirby Hospital Center test which showed
220 micrograms of arsenic and had not discussed it with
Shank. Colarusso said that she had spoken to Garcia-
Pons because he was "logical and methodical" and that
he had told her to speak to OSHA to find out what the
numbers meant and then to drop the matter if there was
a negligible showing. Colarusso added that although she
had been very discreet in contacting OSHA, she had a
right to do so and even to accompany an OSHA inspec-
tor to the place of plant contamination (Tr. 120).
When Shank asked her for the names of other employ-
ees suffering from arsenic symptoms (Richardson had in-
formed him of his 18 March conversations with Colar-
usso), she said she had heard of it but knew no names.
Shank then said that he wanted a copy of the Kirby Hos-
pital Center results; that she had shown a copy to
Garcia-Pons; and that Colarusso had promised to give a
copy to Guffrovich but had failed to deliver. Colarusso
told Shank that she had not promised to give it to Guf-
frovich but only said that she would "see about it" (Tr.
117). Shank then asked why Colarusso had called Guf-
frovich a liar concerning Guffrovich cleaning the vents
and Colarusso said that she had not accused her of lying
about the cleaning of the vents. Turning to Guffrovich,
Colarusso said that if Guffrovich told Shank of an accu-
sation of Guffrovich being a liar, Guffrovich herself was
lying.
Colarusso said that Maintenance Supervisor McHale
told her that his laborers had cleaned the vents in the
medical office and the cafeteria. Guffrovich then said
that she had spoken to McHale and he had denied clean-
ing the vents. When Colarusso insisted that McHale told
her that he had cleaned the vents, Shank telephoned for
McHale's presence. Shank then asked him if he told Co-
larusso that he had cleaned the vents. McHale, speaking
directly to Colarusso, said-with force-that he had not
cleaned the vents and earlier had told that to Colarusso
(Tr. 298; 374). McHale testified that at 9 a.m. Colarusso
asked him if he had cleaned the vents over the weekend
and he told her he had not (Tr. 375-376); that at 10 a.m.,
Guffrovich asked him if he had cleaned the vents in the
medical department and he told her that he had not (Tr.
372-373); and that, in the afternoon, when, in the pres-
ence of Colarusso and Guffrovich, Shank asked if Colar-
usso was correct when she said that McHale cleaned the
would have fired Garcia-Pons or retaliated against him if he believed that
he had told Colarusso to contact OSHA testified that he could not
answer that question and that he did not know whether he would fire or
retaliate against him (Tr 514-515) His demeanor leads me to conclude,
and the record shows, that Respondent was not pleased with Colarusso's
or any other employee's contact of OSHA Although Garcia-Pons testi-
fied concerning his 6 March conversation with Colarusso, he failed to
testify concerning his 19 March conversation with Shanks
vents, McHale said to Colarusso (Tr. 298; 374): "No,
G-d damn it. No. And I told you so."
This confrontation does not appear in Colarusso's
direct examination and, more significantly, is not denied
in her extensive rebuttal. Moreover, in rebuttal, she
failed to deny Shank's testimony that, at this point, she
told Shank that: "I must have misunderstood [McHale]."
(Tr. 298.) Under these circumstances, I credit McHale,
Guffrovich, and Shank regarding this incident and con-
clude that Colarusso was not credible in testifying that
McHale told her that he had cleaned the vents (Tr. 581-
582). McHale credibly testified that vents in the medical
area had not been cleaned for 5 years (Tr. 378). As noted
above, I make no findings about who cleaned the vents.
When Shank then asked her for a copy of the Kirby
Health Center test results, Colarusso told him that she
had torn up the copy and thrown it away. In fact, while
this was technically true, Colarusso admitted that she
had other copies.
It was after this meeting , as noted above, that Shank
called in Garcia-Pons who denied advising her to go to
OSHA.
I. Disciplinary Meeting of 20 March
On the morning of 20 March, Guffrovich and Shank
came to Colarusso's office and Shank asked her what the
220 micrograms meant. Colarusso said that the 220 mi-
crograms showed a negligible amount of arsenic in the
dust according to what OSHA had told her. Colarusso
told Shank that he was harassing her; i 6 that ever since
1971, Shank and his two predecessors (Tr. 496) had been
out to "get her" concerning an incident involving a 1971
industrial injury.
Shank told her that he did not know what she was
talking about insofar as the 1971 incident went. He told
her that if there had been a plot to fire her and if that
plot had been passed from one industrial relations direc-
tor to each successor, they had somehow omitted in-
forming Shank because he knew nothing about it. Colar-
usso then told him (Tr. 496-497) that she wished the
whole thing would end and that it would be better for
her to die from arsenic.
In a second meeting of 20 March, in the afternoon (Tr.
497), Guffrovich called Colarusso into Shank's office
where Shank told her that he was bringing the matter to
a conclusion; that her behavior in the past week had
been insubordinate, improper, and unethical; that the
'0 Colarusso told Shank and Guffrovich that they were harassing her,
and had been constantly harassing her Although she did not then tell the
alleged real reason for such conduct to them , she testified that it was be-
cause of her refusal to take early retirement , Respondent , prior to this
time, had been seeking to reduce its payroll by 20 percent Respondent
was offering eligible employees early retirement complete with a bonus
system which , in Colarusso 's case, would provide full salary for a year
Shank credibly testified that it was Respondent 's plan to seek voluntary
early retirement from certain employees but that, failing this, there would
be involuntary layoffs in order to meet the mandated 20-percent reduc-
tion in payroll Shank also credibly testified that he had earlier told Co-
larusso to stop advising employees to reject Respondent's offer of volun-
tary retirement because they could receive severence pay and unemploy-
ment compensation if they were involuntarily separated Shank told Co-
larusso to stop giving such advice to employees because it was contrary
to company goals (Tr 295-297)
OWENS ILLINOIS
Company had patiently waited for a copy of the test re-
sults which had not been forthcoming, that based on her
actions, the Company could no longer entrust her with
the duties of head nurse , and that Shank was placing her
on suspension and that she should report back in 2 weeks
for further disposition He also told her that Respondent
would take legal means to get the Kirby Health Center
results Shank apparently did not discharge her on 20
March in order to permit an interval in which he might
get a copy of the report
Thereafter on 31 March , Shank sent a letter to the
Kirby Health Center (R Exh 6) 11' asking for the results,
but on 19 May, Kirby Health Center (R Exh 7) refused
to divulge them because of the absence of Colarusso's
consent
At the same time , as one of the reasons for discharge,
Shank told Colarusso that he could not trust her because
she had written an anonymous letter to a local newspa-
per accusing the Company of nepotism Colarusso denied
ever having written the letter Respondent has neither
pursued this assertion nor mentioned it in its 8 April
letter terminating her nor in its brief It no longer men-
tions the letter as a basis for discipline
Two weeks later, on 4 April , Colarusso reported to
the plant but was told that she was still on suspension
and, on 8 April, Colarusso went to the plant for work
but she was handed a letter of termination (G C Exh 6),
the substance of which appears mfrs
According to Colarusso , in the 20 March afternoon
interview, Shank gave three reasons for terminating and
suspending her (a) for writing the anonymous letter, (b)
for calling Guffrovich a liar, and (c) because he "wanted
that [arsenic] dust That dust belongs to me " Colarusso
told him that the Kirby Health Center had the dust She
particularly testified that Shank, at that time, did not
again ask for a copy of the Kirby Health Center report I
find Colarusso 's testimony irrelevant , if true, because Co-
larusso had previously testified (1'r 118-119) that Shank,
at least on 19 March , had asked for a copy of the test
results and that Colarusso had told him that she had torn
up the copy and thrown it away , a deceptive answer
since she had other copies
Colarusso testified that in the 19 years she had been
employed as a nurse by the Company , i s she knew that
the Company regularly monitored the environment
inside and outside the plant for hazardous substances
She also testified that she was acting in her professional
capacity as a nurse for Owens Illinois in collecting, and
then sending, the sample to the Kirby Health Center not-
withstanding she did not send or submit a bill to the
Company for this conduct, and that she took the dust
sample of 12 February because she was concerned about
her own symptoms and because Debbie Savoia was sick
(Tr 160) Colarusso also testified she did not show
Shanks a copy of the Kirby Health Center report be-
cause she believed that it would be evidence to support
'r In particular, the letter shows that Shank was aware by 13 March
(apparently based on the Guffrovich-Nardone report of Colarusso's state-
ments of that morning) that Colarusso "or other salaried employees
presented [unauthorized] samples for analysis "
1B Respondent consistently rated Colarusso as a "highly effective" em-
ployee (Tr 307)
1203
Shank in his effort to force her to take early retirement
(Tr 210) Colarusso knew that 13 employees were slot-
ted to take early retirement (Tr 210)
I have substantially credited Colarusso 's testimony
over that of Richardson , especially regarding the alleged
whispering of her admission of cleaning the vents and
also regarding Colarusso telling Richardson that Guffro-
vich and Shanks were not to be trusted Such an accusa-
tion does not appear in either Shank 's testimony (to
whom Richardson allegedly relayed this information) or
in the termination letter that Shank sent to Colarusso list-
ing the reasons for her being terminated or in Shank's
subsequent testimony in an unemployment compensation
hearing As I have mentioned above , had Colarusso
made such a defamatory statement about Guffrovich and
Shank, I believe that she would have been disciplined if
not discharged on the spot on 19 March after Richardson
reported it
J Elements of Colarusso's Rebuttal Testimony
1 Among other things in her rebuttal, Colarusso testi-
fied that Shank had made particular issues of both her
saying that there was arsenic in the plant and her failure
to seek him out, particularly to tell him of her finding
She was asked why, in the disciplinary interviews, she
said to him (Tr 624) "Why would you say [to Shank] 'is
this what you don 't want me to tell you about'-refer-
ring to the presence of arsenic-when, at the same time,
Shank was admittedly asking her for a copy of the Kirby
Hospital test results She answered that Shank was
making "such a do about my having that sample and that
220 [microgram analysis]" (Tr 623) When particularly
asked why she was asserting that Shank did not want to
hear about arsenic in the plant at the same time that he
was asking for, and she was refusing to submit an avail-
able copy of, the test results , she answered (Tr 624)
"Well, I felt he should have trusted me I told him what
the figure was Jorge [Garcia-Pons] had seen this "
When asked whether she did not think that giving a
copy of the report to Shank , her supervisor, was a
matter of importance to Respondent, Colarusso admitted
that she thought it was important In particular, she ad-
nutted that notwithstanding her opinion , based on the
OSHA contact, that the 220 micrograms of arsenic per
gram of dust was a "negligible" amount of arsenic in the
dust, she was sure that Shank should have seen a copy of
the report (Tr 626) Such a Colarusso statement is tanta-
mount to an admission of insubordination
2 In rebuttal, on the third day of the hearing, in at-
tempting to support her credibility , Colarusso for the
first time testified that she had forgotten that she had
kept a daily log of events commencing 6 March and
ending with her termination Since her testimony and
credibility had been continuously and sometimes success-
fully attacked, the evident intent of using the log (GC
Exh 15) was to bolster her veracity and overall credibil-
ity after attack Regarding this daily log, she testified,
obdurately and falsely, that (1) the back of the log was
kept on a daily basis when the evidence showed that she
had kept the back of the log, not on a daily basis, but
had written it as a summation at a time other than on a
1204 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
daily basis; (2) in keeping the log she had no intention of
using it as evidence (Tr. 610) but, almost at the same
time , she testified that she knew that whatever happened,
she was going to record the events for use "as a main
source" (Tr. 611); and (3) she evenly spaced the events
recorded at the back of the log to get them on a single
page when it was evident that she did not know, when
she started recording them on the back page, how many
events were to be recorded so that they could be fitted
in on a single page.
What started out as Respondent's attempt to impeach
Colarusso's credibility on a technically material (but by
no means a collateral) matter, yet one that might not
necessarily reach vital elements of her overall credibility,
soon developed into Colarusso's clearly false, but unsha-
kable, insistence that she kept the diary on a daily basis.
Her self-contradictions and the implausibility of her testi-
mony demonstrated that she was untruthfully describing
the log, its purpose , and perhaps its contents. Thus, what
started out as a relatively minor matter, eventually devel-
oped, over a lengthy examination caused principally by
her own implausibility, into a substantial impediment,
leading to my reevaluating any and all contradicted testi-
mony.
Lastly, it should be noted that Respondent' s termina-
tion letter (G.C. Exh. 6) to Colarusso, dated 8 April
1986, lists many reasons for the discharge, some of which
are true and some untrue. Among them are (1) counsel-
ing an employee (i.e., Deborah Savoia) that she was
being made ill by toxic levels of arsenic; (2) disregarding
results of Respondent's air tests that showed no unsafe
levels of chemicals in the office area; (3) her disregard of
advice of the plant physician regarding potential expo-
sures in the office area. In addition, (4) she acted without
authorization in obtaining dust samples and transmitting
them to the Kirby Health Center and (5) purposely with-
held the Kirby Health Center report from management;
(6) she questioned maintenance supervision about a cita-
tion received from the Pennsylvania Department of En-
vironmental Resources accusing management of pumping
arsenic into the office system despite test results to the
contrary; (7) she lied to her supervisor concerning the
arsenic level, being "200," as "negligible."
At the hearing, however, as reasons supporting the
discharge, Respondent relied principally on Colarusso's
untruthfulness in three instances' 9 and her refusal to pro-
vide a copy of the Kirby Health Center report (Tr. 504-
507). Shank admitted that the three "lies," diapositive of
the discharge, were not mentioned in the above termina-
tion letter (Tr. 510). On the other hand, two of the three
"lies" were first mentioned in his testimony in the unem-
ployment compensation hearing on 29 May 1986, 2
months after the discharge letter.
19 The three alleged "lies" (Tr 494-495) were. ta) accusing Guffrovich
of ordering McHale to clean the vents , switching to McHale cleaning the
vents, and then saying she had "misunderstood ", (b) Garcia-Pons truth-
fully contradicted her assertion that he had suggested contacting OSHA,
and (c) refusing to identify the other employees displaying arsenic symp-
toms she mentioned to Richardson
IV. DISCUSSION AND CONCLUSIONS
A. The Prima Facie Case
Respondent, in citing Board precedent, particularly
Meyers Industries, 268 NLRB 493 (1984) (Meyers 1) re-
manded sub nom. Prill v. NLRB, 755 F.2d 941 (D.C. Cir.
1985), cert. denied 474 U.S. 948 (1985), reaffd. 281
NLRB 882 (1986) (Meyers II), enfd. 835 F.2d 1481 (D.C.
Cir. 1987), argues in its brief that (a) Colarusso was not
engaged in concerted protected activities, and (b) in any
event, was discharged because she was caught in blatant
untruths and because of her insubordinate refusal to turn
over the test report from the Kirby Health Center (R.
Br. 5-6).
To determine whether the Board would find that Co-
larusso was engaged in "concerted activities" and, ulti-
mately, in concerted activities protected by Section 7 of
the Act, I note that the Board has determined, in its
Meyers Industries I, above, that:
In general, to find that an employee's activity to
be "concerted," we shall require that it be engaged
in with or on the authority of other employees, and
not solely by and on behalf of the employee him-
self. Once the activity is found to be concerted, an
8(a)(1) violation will be found if, in addition, the
employer knew of the concerted nature of the em-
ployee's activity, the concerted activity was pro-
tected by the Act, and the adverse employment
action at issue (e.g., discharge) was motivated by
the employee's protected concerted activity.
[Meyers I, 268 NLRB at 497.]
A corollary to the above Meyers Industries rule appears
in Monarch Water Systems, 271 NLRB 558 fn. 3 (1984),
in which the Board held (Chairman Dotson dissenting)
that:
Threats made and actions taken by an employer
against an employee based on the employer's belief
that the employee engaged in or intended to engage
in protected concerted activity are unlawful even
though the employee did not in fact engage in or
intend to engage in such activity.20
There can be little question that the effort of Colarusso
in contacting OSHA, whether or not encouraged by
Garcia-Pons, and in separately sending out the sample of
dust, with Savoia's knowing assistance , to the Kirby
Hospital were each a protected activity because they each
related to a health matter concerning potentially toxic
Y0 The Board has subsequently cited Monarch Water Systems favorably
for the same proposition in Daniel Construction Co., 277 NLRB 795
(1985). Accord Independent Stations Co, 284 NLRB 394(1987) Thus, it
would appear that under Monarch Water Systems, supra , the diapositive
issue with regard to an employer's motive in a discharge under these cir-
cumstances hinges on the Respondent 's perception of whether the employ-
ee or employees are engaged in concerted protected activities rather than
on the fact of whether they were so engaged . Alternatively , regardless of
the employer's perception , a violation occurs if the employer discharges
an employee for engaging in concerted protected activities which, in
turn, hinges on whether the employees were actually engaged in concert-
ed protected activities and the employer knew it See Independent Sta-
tions Co, supra
OWENS ILLINOIS
working conditions in Respondent 's plant Compare
NLRB v Washington Aluminum Co, 370 U S 9 ( 1962),
Serendippity-Un-Ltd, 263 NLRB 768, 774-775 (1982), Al-
leluia Cushion Co, 221 NLRB 999 (1975), and Meyers In-
dustries, supra, with Every Woman 's Place, 282 NLRB
413 (1986), and Tamara Foods, 258 NLRB 1307 (1981)
The facts that the taking of the sample and the OSHA
contact were unauthorized are not material under the
Act Eastex, Inc v NLRB, 437 U S 556, 566 (1978)
Regarding whether this protected activity is also con-
certed, the evidence shows that Respondent perceived that
Colarusso was engaged in concerted activity For, as ap-
pears in Respondent 's 31 March letter to the Kirby Hos-
pital Center (R Exh 6) demanding a copy of the test re-
sults, Respondent stated
On or about 13 March 1986 , Owens-Illinois became
aware of the fact that Ms Louis Colarusso, or other
salaried employees, acting without authorization and
on their own behalf, acquired sample(s) of materials
from our operation and presented these sample(s) to
Kirby Memorial Health Center for analysis [Em-
phasis added ]
I would also request that Kirby Memorial Center
provide me with the results of all sample analysis
submitted to you by Ms Colarusso or other unau-
thorized employees [Emphasis added ]
I therefore conclude, on the basis of the above letter,
that Respondent, as early as 13 March 1986, perceived
that more than one sample had been sent to Kirby
Health Center for analysis , and that Colarusso was acting
with other employees (Zabrovia, Slavoski, and Savoia) in
submitting these samples to the hospital for analysis In
fact, she was Each of these employees (Zabrovia, Sla-
voski , and Savoia) knew that other, co-employees were
concerned about dust problems and each collected and
then submitted the samples with such knowledge In
such circumstances , I conclude that Respondent per-
ceived that its employees were acting "together," there-
fore "m concert" and therefore that they were engaged
in "concerted activities" within the meaning of Section 7
of the Act Meyers Industries I and II, supra In addition,
the employees were actually engaged in a concerted ac-
tivity
Having already concluded that the employees were
also engaged in protected activities because they were
concerned with their health in the Pittson plant, I draw
the inference from Respondent's letter to the Kirby
Health Center (R Exh 6) that the concerted activity of
these employees in submitting the samples was for the
purpose of analyzing the samples to see if there were
noxious or corrosive substances in them I therefore need
to go no further to conclude that , within the meaning of
Tamara Foods, supra (1981), Monarch Water Systems,
supra, and Independent Stations Co, supra, Respondent
knew that Colarusso and other employees were engaged
in protected, concerted activities within the meaning of
Section 7 of the Act when, without authorization, they
"acquired sample(s) of materials from our operation and
1205
presented these sample(s) to Kirby Memorial Health
Center for analysis "81
The underlying facts, of course , show that on or about
12 February 1986, Colarusso , Savioa, and Slavoski sub-
mitted the samples because of Slavoski 's complaints, Co-
larusso's alleged symptoms , and Savoia 's urinalysis show-
ing arsenic toxicity , and because of coughing , headaches,
and sore eyes in the machine shop department Indeed, in
late December or early January , when, after Debbie
Savoia had visited the company doctor concerning her
arsenic poisoning, Colarusso told Peggy Guffrovich of
the reason why Debbie Savioa had seen the doctor, Guf-
frovich said that she knew about it
Furthermore, Respondent apparently knew or be-
lieved , as a result of Nardone and Guffrovich reporting
back to Shank on their 13 March conversation with Guf-
frovich (they reported back on the day they spoke to
Colarusso, 13 March), that more than one sample had
been submitted to the Kirby Health Center There would
be no reason for Shanks to state (in his letter to Kirby
Health Center of 31 March) that he believed that on 13
March more than one sample may have been submitted if
that were not then known to him
B Respondent 's Motive for the Refusal to Grant the
Pay Increase, for the Suspension and for the Ultimate
Termination of Colarusso
I conclude that , in the prima facie case , two elements
of animus regarding Colarusso 's engaging in the protect-
ed concerted activities are manifested in the record The
uncontradicted and credited Colarusso testimony is that
Respondent maintains a strict "chain of command"
system of subordinates reporting only to their superiors
Similarly, Respondent is adverse to its employees con-
tacting OSHA concerning perceived unhealthy working
conditions especially in view of Respondent 's in-house
analytical expertise (1) Respondent resented Colarusso
violating its strict corporate system, manifested in the
Pittston plant, of the "chain of command " (Tr 588 )
Thus Colarusso's uncontradicted and credited testimony
convinces me that Respondent maintained such a strict
chain of command system in the Pittston plant that it
would amount to an employee , as Colarusso testified,
placing her neck "in the guillotine" if she circumvented
the chain of command by going around the employee's
own immediate supervisor This had been true in Colar-
usso's 19 years of experience with the Company Wholly
consistent with, and as I view the evidence, dispositive
of this conclusion is Peggy Guffrovich 's testimony (Tr
443, et seq) that she was "stunned" when Colarusso told
her that she had submitted a dust sample to the Kirby
Health Center for testing of toxic substances and had
gone outside the Company for this purpose In a similar
vein , as Shanks testified, when Guffrovich and Nardone
reported back to him of their 13 March conversation
with Colarusso, they reported that Colarusso had taken a
dust sample and submitted it to an "outside laboratory"
21 As noted above, this was one of the reasons listed for the discharge
(0 C Exh 6) and constitutes evidence of unlawful motivation under the
present facts
1206 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
(Tr 284) Shank's repeated questioning of Colarusso on
this point shows that, like Guffrovich, he was incredu-
lous that she had done so when Respondent had such
great "in house expertise" (Tr 297, 534) (2) Perhaps an
even more significant support for a finding of Respond-
ent's animus is that Colarusso not only violated the chain
of command and went outside to the Kirby Health
Center with a dust sample showing toxic conditions
inside the plant, but she went to OSHA to determine the
significance of the level of arsenic
Shank testified that Respondent would not look favor-
ably on a company official "blowing the whistle" and
going to OSHA (Tr 515) and admitted that it would be
a "serious matter" for an employee to report the Compa-
ny's arsenic violations (Tr 514) While Shank under-
standably testified that it is not company policy to dis-
charge employees for going to OSHA (Tr 514), he ad-
mitted that for Colarusso, Respondent 's nurse, part of
Respondent's "safety team ," to report the matter to
OSHA, especially before the going to the "in house
people" was "a little treasonous" (Tr 534) He could
not-would not-answer whether , if Garcia-Pons sug-
gested that Calarusso contact OSHA, he would be dis-
charged
I therefore conclude on the basis of the uncontradicted
testimony of Colarusso, and the admissions of Guffrovich
and Shank, that Respondent harbored animus against Co-
larusso, both for sending the dust samples to the Kirby
Health Center and contacting OSHA concerning the sig-
nificance of the Kirby Health Center arsenic report
Regarding the timing of the termination, it appears that
Respondent was fully aware of Colarusso engaging in
protected concerted activities by 13 March 1986 Shank
then conducted at least two telephone conversations
with management officials both within and outside the
Pittston plant22 concerning discipline of Colarusso Co-
larusso was told of Respondent 's decision to discipline
her on 18 March by depriving her of the 6-percent pay
raise and on 20 March of the decision to suspend and
discharge her
By 13 March 1986, Nardone and Guffrovich had re-
ported to Shank that Colarusso had, on her own, without
authority , collected and dispatched a dust sample to
Kirby Health Center for analysis and had thereafter con-
tacted OSHA to determine the significance of the num-
bers from the Kirby Hospital Center report (Tr 284) By
14 March, the next day, Colarusso had reneged on her
promise to give Guffrovich a copy of the Kirby Health
Center report (G C Exh 7) Since there were two tele-
phone conversations between Shank and higher officials,
including Respondent's attorney, in the period of 13
through 18 March (in which Shank notified them that
Colarusso had contacted OSHA and was telling employ-
ees of arsenic in the ventillation system, Tr 285-287), I
find that all company officials , certainly no later than 16
or 17 March, were aware of the facts as stated above,
concerning Colarusso 's activities and Colarusso's refusal
22 None of the company officials in Toledo who participated in the de-
cision to terminate Colarusso were called to testify and therefore give the
reasons for the termination Shank testified that he alone did not make the
determinati on to suspend and then terminate Colarusso after depriving
her for the 6-percent pay raise
to turn over a copy of the report After the 18 March
deprivation of the 6-percent pay raise, Shank notified her
on 20 March that she was to be suspended pending dis-
charge Thus the period between Respondent first learn-
mg of Colarusso engaging in protected concerted activi-
ties (13 March) and the determination to suspend and dis-
charge her (20 March) occurred in a period of 1 week
The decision to discharge was the result of telephone
conversations with higher management during that
period I therefore conclude, on the basis of the nature of
Colarusso's activities, Respondent's animus , and the
speed of Respondent 's action, that the General Counsel
has proved a prima facie case that Respondent discrimi-
nated against Colarusso in denying the pay increase on
18 March and ultimately terminated the employment of
Colarusso (commencing 20 March ) because of her pro-
tected concerted activities of sending the samples to
Kirby Health Center and contacting OSHA, which ac-
tions constitute violations of Section 8(a)(1) of the Act
Meyers II, supra
C Respondent's Defense
In Respondent 's timely brief, it takes the position that
Colarusso was not engaged in concerted activity within
the meaning of the Act As part of the discussion of the
prima facie case above, I have found to the contrary, and
reject Respondent's position that Colarusso was con-
cerned only for her personal safety and her own fear
that she was suffering from arsenic poisoning in submit-
ting the dust sample to the Kirby Health Center and in
contacting OSHA Respondent's perception of Colarus-
so's conduct was that she was acting with others, as
indeed she was
Respondent, following Shank's testimony, next takes
the position that Respondent desired only to deprive Co-
larusso of her 6-percent pay increase as a result of con-
versations between Shank and other top management of-
ficials in the period 13 through 18 March Respondent
states that it was only events , i e , lies and continued in-
subordination, which came to light during the meetings
of 18 and 19 March 1986 The above Respondent posi-
tion is not consistent with the position as set forth in the
Respondent's termination letter of 8 April 1986, where
no lies are mentioned Respondent has also abandoned
Shank's 20 March assertion that Colarusso was being dis-
charged, in part, because she wrote an anonymous letter
to the local newspaper accusing the plant of sponsoring
nepotism Such omissions and shifting defenses do not in-
spire confidence in the reasons advanced for the dis-
charge That "lies," as a reason for discharge first appear
2 months later in the unemployment compensation hear-
ing, only makes matters worse Such late rationalization
smacks of careful rethinking-perhaps a lawyer's inter-
vention
It was clear, as Shank testified (Tr 300 et seq) that
Colarusso 's conduct prior to 18 March was insufficient
to cause her being suspended and discharged , and it was
Shank's and Respondent 's intent to discipline Colarusso,
on the basis of her conduct prior to 18 March, only with
the deprivation of the 6-percent wage increase (R Br 6,
Tr 293) It was that further lies came out of the 18
OWENS ILLINOIS
March meeting (Tr 291 et seq) The conduct that
formed the basis of the decision to deprive her only of
her 6-percent pay raise included not only the 13 March
report that Shanks had received back from Nardone and
Guffrovich regarding the submission of the sample to
Kirby Health Center and the contacting of OSHA (Tr
297), but Colarusso's conduct in going to McHale and
asking about the DER citation, her false accusation of
Guffrovich in cleaning the vent , and the conversation
with Diane Gubbiotti Moreover, at the 18 March meet-
mg, various bits of Colarusso 's conduct were also taken
into account and were deemed by Shanks to be insuffi-
cient to cause discipline further than the deprivation of
the pay increase These included Colarusso accusing
Shanks of harassing her over Colarusso 's conduct in ad-
vising employees not to take early retirement even
though Shanks had previously told her that it was con-
trary to company policy for them to do so (Tr 294 et
seq )
Respondent contends , however, that it was Colarusso's
conduct commencing in the meeting of 18 March and
thereafter that caused Respondent to terminate her This
conduct included blatant untruths of three particular
types (a) lying in saying that Guffrovich cleaned the
vents or Bill McHale told her that laborers had cleaned
the vents, (b) regarding the fact that Garcia-Pons told
her to call OSHA, and (c) telling Richardson that em-
ployees other than Deborah Savoia showed symptoms of
arsenic poisoning and telling Shank that she did not
know who they were (Tr 495-496) Shanks testified at
the instant hearing that these "lies," in conjunction with
Colarusso's adamant refusal to surrender a copy of the
Kirby Health Center report , demonstrated that Colar-
usso, part of Respondent's health team , was a liar who
could no longer be trusted in employment As above
noted , the 8 April discharge letter is silent on "lies" as a
basis for discharge, and at the 29 May unemployment
compensation hearing , as the General Counsel points out
(G C Br 36), Shanks was equivocal on whether lies,
alone, would have caused the discharge, and he nowhere
relied on Colarusso's defamatory statements to Richard-
son at any time I analyze the "lies" defense for princi-
pally remedial purposes
1 Colarusso untruthfully testified regarding Bill
McHale
In the meeting of 19 March, Guffrovich told Colar-
usso that she had spoken to McHale and McHale said
that he had not cleaned the vents This was after Colar-
usso denied accusing Guffrovich of having ordered the
cleaning of the vents When Colarusso then insisted that
McHale told her that he cleaned the vents, Shank called
in McHale and McHale , speaking to Colarusso, said
"No, G-d Damn it, I told you so " Colarusso, accord-
ing to Shanks, answered "I must have misunderstood "
(Tr 298 ) In spite of Colarusso's extensive rebuttal testi-
mony, Shanks' version of this Colarusso confrontation
with Maintenance Supervisor Bill McHale on 19 March,
while not corroborated by Guffrovich, and only partly
corroborated by McHale , was never denied Nothing in
Guffrovich's or McHale's demeanor or testimony
showed untrustworthiness I therefore conclude on the
1207
basis of demeanor testimony, certainly bolstered by Co-
larusso's failure in rebuttal to contradict Shanks' testimo-
ny, that McHale and Guffrovich were, on this point,
truthful witnesses, and that Colarusso was untruthful in
her testimony that McHale told her on or about 10
March that the laborers cleaned the vents in the medical
office I also conclude that she falsely accused Peggy
Guffrovich of directing McHale to clean the vents (Tr
448-449) None of this appears in the 8 April 1986 dis-
charge letter (G C Exh 6) and I am persuaded that Re-
spondent was not seriously concerned with it in dis-
charging her That the lies first became a defense at the
29 May unemployment compensation hearing, almost 2
months after the 8 April enumeration of reasons is signif-
icant
2 The alleged lie concerning Garcia-Pons
Based on the intrinsic probabilities of the events, I
was, and am, prepared to conclude that Colarusso was
truthful and Garcia-Pons was untruthful with regard to
whether Garcia-Pons suggested to Colarusso that she
contact OSHA in order to get an interpretation of the
significance of the arsenic numbers 23 Thus, I do not
credit Shank 's testimony that in her 19 March conversa-
tion with Colarusso , he asked her why she had gone to
OSHA (Tr 291) Rather, I credit Colarusso (Tr 115)
that Shank asked her why she had first spoken to
Garcia-Pons and not Shank Thus, I conclude that by 19
March, Garcia-Pons already had informed Shank that
Colarusso had sent a dust sample to Kirby Health Center
for testing When Colarusso then told him that her con-
tacting OSHA was Garcia-Pons' suggestion, Shank
called in Garcia-Pons and got a denial Under ordinary
circumstances, there would be no reason for Colarusso,
as a result of a conversation with a long-time friend
(whom she rescued from alcoholism) like Garcia-Pons,
to independently seek out OSHA if the long-time friend
suggested that she speak to Dr Campenella or environ-
mentalist Nardone On the other hand , given Respond-
ent's inhospitable attitude toward employees-particular-
ly supervisors-particularly high supervisors-like
Garcia-Pons who suggest that employees contact OSHA
with regard to poisonous elements on Respondent's
premises, there would be every reason for Garcia-Pons
to seek to minimize his role once his connection to the
OSHA matter was exposed Hence, it is clearly consist-
ent that between 6 March and 18 March , he would tell
Shanks that Colarusso submitted the dust sample to
Kirby Health Center and then deny to Shanks, on
Shanks' later direct inquiry , that Garcia-Pons recom-
mended the OSHA route to Colarusso
In short, Colarusso did not disclose to Shanks that she
had contacted Garcia-Pons Rather, it was Shanks who
asked her why she had first spoken to Garcia-Pons about
the "220 " I conclude that even if Garcia -Pons denied to
Shank suggesting OSHA to Colarusso , and even if Shank
La This issue, of course, relates not only to credibility but to whether
Shank relied on Garcia-Pons's version Regardless of whether Garcia-
Pons recommended that Colarusso contact OSHA, the fact that she did
contact OSHA and that Respondent knew about it nevertheless consti-
tutes part of the pruna facie case
1208 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
believed him, such a Colarusso "lie" would be unlawful
reason to form a basis for termination. For Colarusso did
have a right to go to OSHA. And discharging her for
lying that her conduct was authorized by Garcia-Pons-
has the same effect as discharging an employee for any
other extraneous "lie" concerning engaging in protected
activities: discharging an employee for lying about at-
tendance at a union meeting. In any event because this
lie was not mentioned in the 8 April 1986 discharge
letter (G.C. Exh. 6), and notwithstanding that it was
mentioned in Shank's unemployment compensation testi-
mony 2 months later, I do not regard it as a matter on
which Respondent seriously relied in the discharge.
3. The lies allegedly made to Terry Richardson
At the hearing, as I understood him, Shanks testified
that the third problem was two lies that Richardson dis-
closed. The first was that Richardson told him on 18
March that Colarusso had admitted that she, herself, had
cleaned the vents. Richardson also told him Colarusso
knew of other employees, besides Savoia, who showed
arsenic toxicity symptoms. Shanks testified that he be-
lieved Richardson when Richardson told him of these
statements ; and that McHale's contradiction, and Colar-
usso's failure to actually name other employees showing
arsenic symptoms, fortified Shank's belief that Colarusso
was an inveterate liar and untrustworthy of employment.
(Tr. 517.)
Regarding these latter "lies" as support for the dis-
charge , it is clear that (1) on the basis of Michaelene
Lyons' credited contradiction of Richardson concerning
Colarusso and the "facetious" admission (that Colarusso
and/or Lyons had cleaned the vents), I conclude that
Richardson was untruthful in that regard. I also regard
Richardson as untruthful in his testimony that Colarusso
told him that he should not trust either Guffrovich or
Shank because they did not have the welfare of the em-
ployees in mind . As noted, Shank would have taken im-
mediate action on such a report. He failed to do so. I
credit Colarusso that such a statement would border on
the irrational, especially when made to a stranger to the
chain of command on which Respondent was so insistent
and which Colarusso observed for 19 years (except
where her own health was at issue and where she al-
ready knew that Debbie Savoia was sick with apparent
arsenic poisoning). Nevertheless, it might be argued that
regardless of Richardson's motives and credibility in
making these reports to his superior, Shanks might in
good faith, rely on Richardson's reports. Yet, given the
alleged gravity attached to these "lies" by Respondent in
the discharge of Colarusso , it is of obvious importance
that Shanks, in his testimony before the Pennsylvania
Unemployment Compensation Commission hearing, no-
where mentioned either of these Richardson-based lies
(Tr. 517). 24 Shanks ' testimony as to why he omitted
14 At one ,juncture, Shank testified the "lie" was fading to divulge the
names of employees with arsenic symptoms (Tr 495), while later he testi-
fied that the "lie" was Colarusso whispering that she cleaned the vents
(Tr. 515)
these Richardson-based lies from his testimony before the
Unemployment Compensation Board, within 2 months of
the discharge (29 May 1986) was merely that he could
not explain it: "I don't know" (Tr. 517). Such an expla-
nation is entirely unacceptable when, if Shank's testimo-
ny at the hearing is to be taken seriously, it formed such
an important basis of the discharge.
Moreover, the lie concerning Colarusso and Lyons
cleaning the vent does not appear in the discharge letter
of 8 April (G.C. Exh. 6), not, perhaps even more impor-
tant, does Richardson's report of other alleged defamato-
ry statements by Colarusso ("don't trust Guffrovich and
Shank") appear in any of the various bases of discharge.
I therefore conclude that not only was Richardson false-
ly testfying with regard to his conversations with Colar-
usso but falsely relayed this information to Shank who,
in any event, despite his testimony at the hearing failed
to give it much, if any, weight in assigning them as rea-
sons for discharge. Colarusso 's alleged lies to Richardson
allegedly formed one of three sets of Colarusso lies caus-
ing the discharge (Tr. 505). I do not believe Richardson's
testimony and I do not believe Shank on the point. I
conclude that, in any event, Respondent relied on a false
basis for these lies and that if the "lies" were ever trans-
mitted to Shank, they formed a false basis for the dis-
charge. The fact that Shank never used the alleged "lies"
in the discharge letter and two of them first appear in his
Unemployment Compensation Board testimony, 2
months after the discharge, underlines the lack of force,
at the time of the 20 March suspension and 8 April enu-
meration, which Respondent itself deemed the three
"lies" to present. (Tr. 508-510.)
4. Colarusso's failure to deliver a copy of the Kirby
Health Center report
The fourth and final support for Respondent's suspen-
sion and termination of Colarusso was her failure to de-
liver a copy of the report to Shanks on his demand.
Shank testified that in Respondent's 8 April discharge
letter (G.C. Exh. 6) he wrote that Colarusso "lied" about
the results being "negligible" because she admitted that
there were 220 micograms of arsenic per gram in the
dust. Shank testified (Tr. 530) that even though the Com-
pany knew of the 220 micograms per gram in the dust
sample , and even though he knew it was not an air
sample (which would be the critical factor), Respondent
did not know of the several other numbers and values
that appeared in the report (G.C. Exh. 7) that Garcia-
Pons had seen and told Shank about.25 Thus Shank testi-
fied that, although he knew of the 220 microgram figure,
he did not know of the three other figures. Shank was
also concerned because the 220 microgram finding es-
caped Respondent's Del Cragle analysis. This was a fur-
ther reason why Shank wanted the report.
Colarusso refused to turn over a copy of the report to
Guffrovich on 13-14 March and again refused to turn it
over on 18-20 March to Shank because of an irrelevant
reason (because she feared that Shank would use it to
96 Garcia-Pons failed to testify regarding his 19 March interview with
Shank Shank 's testimony on the event is not detailed
OWENS ILLINOIS 1209
further coerce her into taking early retirement) Howev-
er, she later testified that she did not turn it over because
she had already told Garcia-Pons what the figure was
and she felt that Shank should have "trusted" her (Tr
624) Whether "trusted her" refers to the figures or her
conclusion (based on OSHA's estimate) that the arsenic
concentration was "negligible" is not clear In addition,
she ultimately admitted that she herself thought that the
report was a matter of importance to the Company (Tr
624) and that she was sure that Shank should have been
given a copy of the report (Tr 626) 26 To refuse Shank's
request, as I have observed , is insubordinate
On the other hand, as the General Counsel points out
in his argument that the demand for the Kirby Health
Center results was a mere pretext to cover Respondent's
prior decision to discharge Colarusso for having gone
outside the chain of command and contacting OSHA as
part of a concerted protected activity, Respondent was
clearly able to perform a similar test on dust which Co-
larusso had performed at the very same place and to sat-
isfy itself concerning the possible danger emanating from
the dust or any air borne dust As a matter of fact, it did
this very thing in the Richardson tests of 18 and 19
March 1986 and found the dust to be of insufficient tox-
icity to trigger further activities Indeed , Respondent's
use of Richardson 's expertise and Colarusso's coopera-
tion in his testing seems to me to make the Kirby report
academic in large part and tends to support a finding that
Shank's insistence on receiving the report was pretextual
Notwithstanding the Respondent itself could and did
conduct tests which tend to render substantially academ-
ic Colarusso's failure to deliver a copy of the results to
Respondents, I do not believe that these factors demon-
strate that Colarusso 's refusal to deliver the copy was a
mere pretext, as the General Counsel argues Nor am I
persuaded that Shank's testimony in May 1986 before the
Pennsylvania Unemployment Compensation Board, that
the Colarusso 's failure to give a report was not the only
element causing the discharge, demonstrates the pretex-
tual nature of the failure to give the report (Tr 519)
Any argument that the failure to surrender the report
created a pretext to mask an unlawful discharge far over-
shoots the mark
There was no question that Respondent was seriously
concerned , commencing with its knowledge from Guf-
frovich's 13 March interview of Colarusso, about the ap-
parent presence of arsenic dust in the administrative of-
fices It was so concerned that Division Industrial Rela-
tions Director Herron forthwith caused Richardson to be
sent to the Pittson plant to check on the quality of the
air in the medical office There is also no question, as the
General Counsel pointed out, that Respondent would
have to be fearful of its possible liability to the 1000
plant employees were it to disregard a report of arsenic
in the dust in the ventilation system in that administrative
offices Thus, the failure of its own nurse, part of the
health team, to promptly supply it with a copy of the
as I regard as inexplicable and bordering on the unintelligible Colarus-
so's testimony that she believed that Shanks did not want to hear about
the arsenic in the dust at the same time that he was demanding a copy of
the Kirby Health Center report (Tr 623-625)
report which she knew showed arsenic and which, even
in her own estimation , wasimportant to turn over to Re-
spondent (especially in view of the illness of Debbie
Savoia), shows that, whatever its weight, it cannot be
regrded as a mere pretext excuse on which to pm an un-
lawful discharge
V SUMMARY AND CONCLUSIONS
The rules concerning the burden of proof of alleged
unlawful conduct, including the status (as found above)
of the prima facie case, is found in Wright Line, 251
NLRB 1083 (1980), enfd 662 F 2d 899 (1st Cir 1981),
cert denied 455 U S 959 (1982), as favorably adopted by
the Supreme Court in NLRB v Transportation Manage-
ment Corp, 462 U S 393, 401-403 ( 1983) As the court of
appeals recently restated the rules in NLRB v Dorothy
Shamrock Coal Co, 833 F 2d 1263, 1266 (7th Cir 1987),
enfd 279 NLRB No 175 ( 1986) (not reported in Board
volumes)
The General Counsel carries the burden of proving
the elements of a section 8 unfair labor practice
Thus, the General Counsel must establish that
the discharge or other adverse labor practice was
"based in whole or in part on antiumon animus-or
that the employee's protected conduct formed
a substantial or motivating factor in the [employer's]
adverse action The employer, however, may
avoid liability by showing that his actions would
have been the same "regardless" of his forbidden
motive
It seems to me that in deciding the ultimate motive for
Respondent's actions (both depravation of the 1 April 6-
percent wage increase and the 20 March-8 April suspen-
sion-discharge), the pivotal evidence in determining the
strength of the General Counsel's overall proof, as op-
posed to the existence of a mere prima facie case, is cer-
tam Shank and Colarusso testimony I have credited Co-
larusso who testified that at the 18 March disciplinary
meeting, Shank told her, inter alia, that she could expect
further discipline I have discredited Shank's testimony
that he did not mention the possibility of further disci-
pline because, as of March 18, he wanted the matter of
discipline "put to bed" by the imposition of only loss of
the 6-percent increase , that it was occurrences at the 18
March meeting that led to the further discipline of sus-
pension and discharge
He testified that , as a result of the 18 March meeting
he decided to investigate (1) why Colarusso contacted
OSHA, (2) why she submitted the dust samples to Kirby
Health Center, and (3) the question of cleaning of ducts
(Tr 304-305)
Yet Shank already knew (from the Guffrovich-Nar-
done 13 March report) that Colarusso, in fact , had sub-
mitted samples to Kirby Health Center and contacted
OSHA If his 18 March desire was truly to put the
matter to rest-and if he did not already know why she
had contacted OSHA-why did he testify that he wished
to determine the further question of why she contacted
OSHA and submitted samples to Kirby Health Center
To further examine her motives is to exacerbate the
1210 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
problem To raise with her the question why, mentioning
Respondent's in-house expertise, is to open the way for
further confrontation and not to put the matter to rest
Hence, the significance of credibility resolution that,
on 18 March Shank told her that "further action" might
be taken against her (Tr 114) I discredit his denial (that
he did not say that Colarusso could expect further disci-
pline) and I discredit his testimony concerning his desire,
as of 18 March , to put the matter of discipline "to bed "
I conclude that, whether the impetus came from
Shank's 13-17 March phone calls to divisional superiors
or otherwise , Respondent (Shank included) had decided
by 18 March to discharge Colarusso and was looking for
further grounds
If Shank 's testimony-that Colarusso's pre- 18 March
conduct was found to be insufficient for discharge, is
credited then the matters Shank later unearthed, the basis
of the discharge according to Shank's testimony at the
hearing, are insufficient to support the subsequent dis-
charge the Garcia-Pons he , the McHale confrontation,
and the spurious Richardson reports They are insuffi-
cient because , in discharging Colarusso, none of these
elements appear in Shank 's own all-inclusive, carefully
crafted 8 April discharge letter (G C Exh 6) Respond-
ent had 18 days (20 March-8 April) to construct the
written reasons for discharge in its 8 April letter and
failed to mention any of these "lies " And 2 months later,
in Shank's unemployment compensation testimony, the
defamatory Richardson-reported lies were still not men-
tioned
The Colarusso refusal to hand over the Kirby report,
on the surface, is patently insubordinate It cannot be ra-
tionalized as in any way a device protective of concerted
activities The refusal was based only on the personal
(and irrelevant) ground of Colarusso 's fear that Shank
would use it to further coerce her into early retirement-
a position that Shank , at all times, was privileged to
pursue On the other hand, in determining the position of
that element in the lawfulness of the discharge , it is not
Colarusso 's insubordinate attitude but Respondent's per-
ception of that attitude that is controlling
Shank long (since 14 March) knew of, and did not act
on, Colarusso 's insubordinate refusal to surrender a copy
to Guffrovich Ensuing phone calls to divisional and
plant superiors resulted only in the 18 March decision to
withhold the 6-percent wage increase Thus the insubor-
dinate refusal to surrender a copy of the report , accord-
mg to Respondent's decision, would result only in loss of
the pay raise It was only thereafter (19 March et seq),
in conjunction with alleged further evidence of Colar-
usso "lies," that Shank demanded-and was himself re-
fused-a copy of the report But he knew of the 220 mi-
crogram section of the report and, with Respondent's in-
house expertise, could duplicate the Kirby Hospital anal-
ysis Indeed, because Richardson 's actual subsequent test-
ing showed no dangerous level of arsenic or other nox-
ious elements, it tends to make Shank 's insistence or re-
ceiving a copy of the Kirby report-to the point of dis-
charging Colarusso on refusal-to be a suspicious effort
I have concluded that, as evidenced by Herron's hur-
ried dispatch of Richardson (on or about 14 March) to
do further air sampling in the Pittson administrative of-
fices (on 18 March), Shank's divisional superiors were se-
nously concerned by the news which Guffrovich and
Nardone reported to Shank on 13 March Such a conclu-
sion, however, is entirely consistent with the parallel
conclusion that Respondent unlawfully terminated Colar-
usso For (and this is central to the conclusions in this
case), Respondent 's hierarchy's immediate, genume con-
cern, with the health implications of Shank 's report to
them around 13 or 14 March , of arsenic-laden dust in the
administrative office's ventillation system, is in no way
incompatible with my finding that, as Shank testified,
Respondent would not look favorably on an employee (a
fortiori , a person associated with management-a
member of Respondent 's "safety team," (Tr 534) "blow-
ing the whistle" by informing OSHA (Tr 515) Colarus-
so's recourse to Kirby Health Center and OSHA was
like "calling the cops" a little bit of treason (Tr 534)
Thus, while the record does not show , for instance
what, if any, instructions Herron gave Richardson (after
Herron's being briefed of Colarusso 's OSHA contact and
her submitting samples to Kirby Health Center) other
than to do further air sampling , yet Richardson 's false
testimony," designed to be, or knowing the effect of
being, so destructive of Colarusso's credibility, provides
support for the conclusion that by the time of Richard-
son's 18 March conversations with Colarusso (before, not
after, Shank had Guffrovich call her into Shank's office,
later on 18 March), Colarusso 's goose was cooked
How else to explain Richardson's testimony that Co-
larusso told him, a total stranger, not to trust Shank or
Guffrovich concerning arsenic exposure because neither
was concerned with the health and welfare of the plant
employees (Tr 345) Because , as above noted, Richard-
son reported the allegedly whispered (morning of 18
March) Colarusso admission28 (of Michalene Lyons and
Colarusso secretly cleaning the vents) to Guffrovich and
Shank (Tr 341-349, 405-406), it is incredible that he ap-
parently failed to report Colarusso's other, simultaneous
hostile and defamatory (morning of 18 March) statement
to Shank and Guffrovich that neither was to be trusted
because of lack of concern for the health of plant em-
ployees None of Shank's nor Guffrovich's testimony al-
ludes to such corrosive statements and, as might be ex-
pected, the discharge letter is silent as to such statements
In short, I conclude that there is no mention of these
malignant Colarusso statements (made to Richardson) in
Respondent's defense-in the discharge letter or in
Shank's testimony before the Unemployment Compensa-
tion Commission because Colarusso never made them
Richardson's false testimony describing them demon-
strates, it seems to me, such separate , overwheemng
animus as to independently support the conclusion that,
at a divisional level, Respondent was out to "get" Colar-
usso Contacting OSHA was "treasonous "
If, however, there is a doubt that Shank was going to
discharge her before the 18 March meeting, there could
" His overall credibility indeed his veracity, was undermined by the
credited and, on this record, wholly ingenuous testimony of Michalene
Lyons, Respondent's own witness-still in Respondent's employ
29 Michalene Lyons specs ically denied cleaning the vents, with or
without Colarusso's help
OWENS ILLINOIS
be no doubt of his resolve following the 19 March meet-
ing There , facing Shank and Guffrovich , Colarusso took
the appallingly self-righteous , if legal , position that she
had the "right" not only to contact OSHA , but to ac-
company the OSHA investigator to the place of contanu-
nation (Tr 120) Little is left to the imagination how
such statement sat with Shank and Guffrovich who
viewed her original OSHA contact as "treason" to Re-
spondent When, on 19 March , she then reaffirmed her
"right" to use the OSHA weapon , to a supervisor with
Shank's predisposition , Colarusso was "out" even if a
prior decision to fire her had not been made 89
Even if Colarusso 's failure to hand over a copy of the
report was not a pretext , yet, considering the strength of
the prima facie case, including the degree of animus, and
the falseness or late invention of many of Respondent's
("lies") reasons for the discharge, I am not convinced,
under the Wright Line test, that such insubordination
would have caused the suspension and discharge apart
from Colarusso 's conduct protected by the statute I con-
clude that the denial of the 18 March wage increase, the
20 March suspension , and the 8 April discharge violated
Section 8(a)(1) of the Act, as alleged See Delta Gas, 282
NLRB 1315 (1987) (Chairman Dotson dissenting)
CONCLUSIONS OF LAW
1 Respondent is an employer engaged in commerce
within the meaning of Section 2 (6) and (7) of the Act
2 Glass, Pottery, Plastics and Allied Workers Interna-
tional Union, Local 243 is, and has been at all material
times, a labor organization within the meaning of Section
2(5) of the Act
3 Respondent, by refusing to grant its employee,
Louise Colarusso, a pay raise on or about 1 April 1986,
by suspending her on 20 March and by discharging her
on 8 April, all because she engaged in protected concert-
ed activities, violated Section 8(a)(1) of the Act, thereby
unlawfully interfering with, restraining, and coercing em-
ployees in activities protected by Section 7 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
THE REMEDY
Having found that Respondent is engaged in unfair
labor practices in violation of Section 8(a)(1) of the Act,
I shall recommend that it be ordered to cease and desist
therefrom and that it take certain affirmative action to ef-
fectuate the policies of the Act
Respondent has taken the position that it discharged
Colarusso, inter alia, for three sets of lies In rejecting
that defense, I have nevertheless agreed with Respondent
that Colarusso lied in falsely accusing Guffrovich and
McHale of cleanin g the vents I have determined, how-
ever, only that that lie was not sufficient to discharge
her Put another way, while I have concluded that Re-
as Thus, where Shank repeatedly testified that it was Colarusso 's inter-
views of 18-20 March caused him to seek further discipline , it was not
the newly revealed "lies," but her insistence on OSHA rights that caused
Shank's reevaluation Guffrovich already had been "stunned" by the
OSHA contact
1211
spondent discharged Colarusso unlawfully , I have not
suggested that Colarusso did not lie
The transcript record , however, shows other instances
of Colarusso 's untruthfulness I regard her testimony
concerning whether Shank asked her for a copy of the
Kirby Health Center report to be evasive to the point of
untruthfulness (compare Tr 123 to Tr 623-625) I have
also concluded that, in the face of Slavoski 's repeated de-
nials, Colarusso lied in testifying that Slavoski told her
that machine shop employees were complaining of tired-
ness, burning eyes, or headaches due to air quality (com-
pare Tr 40-41 to Tr 50) The transcript shows that, for
a statutorily irrelevant reason , Colarusso facilely lied to
Guffrovich regarding the destruction and unavailability
of the Kirby Health Center report
This record of Colarusso's untruthfulness, however,
pales in comparison to her obdurate insistence, at the
hearing, on her having kept the back portion of her diary
on a daily basis Neither continued examination , admoni-
tions, exhortations, nor warnings could sway her from
her untruthfulness
Colarusso, the head nurse , was part of Respondent's
Pittson health team-a position of considerable responsi-
bility and consequence considering the extraordinary
toxins with which the manufacturing process regularly
deals As a professional employee dealing with the health
of 1000 employees , and given Colarusso's propensity for
untruthfulness (granting her great personal , and reasona-
ble, concern based on Savoia's toxic level , particularly
for her own health) I cannot and do not recommend to
the Board that she be reinstated To this extent, Re-
spondent is rid of Colarusso It is, however , neither prof-
iting from its unfair labor practices nor put in the happily
anomalous position of having tried and failed to termi-
nate her, inter alia, for untruthfulness and yet being not
compelled to reinstate her for the same reason
The "lies" which I have found insufficient to support
Respondent 's defense were either not lies or not actually
the motivating factor in the discharge The examples of
untruthfulness on which I recommend a remedy, other
than Colarusso's reinstatement, are not those on which
Respondent relied for its unlawful actions There are dif-
ferent statutory ends to be served , on one hand, in my
recommending an order against a repetition of Respond-
ent's unlawful conduct concerning its other employees
and, on the other hand, in this peculiar case, remedying
that conduct , inter alia, by not returning to employment,
in a professionally delicate and fiduciary position, an em-
ployee who has demonstrated certain conduct not con-
sistent with Respondent 's and Respondent's employees'
unlawful interests 30
30 The precedents relating to cases involving false testimony where the
recommendation was against reinstatement with backpay (following un-
lawful discharge), of course, are fact-specific There is no question, as I
read the cases, that the Board rule appears to be that forfeiture of the
reinstatement-backpay remedy will be entertained , not merely where the
false testimony is deliberate and willful, but only where it amounts to "a
malicious abuse of the Board's processes " Service Garage, 256 NLRB 931
(1981), Iowa Beef Packers, 144 NLRB 615, 622 (1963) The courts of ap-
peals do not accept that standard and appear to find that repeated lying
"severely unpede[s] the fact -finding process" and does "not effectuate the
Continued
1212 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Regarding affirmative relief to Colarusso, I recom-
mend to the Board that the 1 April pay raise be reinsti-
tuted and that Colarusso be made whole for any loss of
earnings that she may have suffered by reason of this
deprivation and her being unlawfully suspended and dis-
charged on 8 April 1986, by paying to her a sum of
money equal to that which she should have received
from her suspension on 20 March to the date of her ter-
mination on 8 April 1986. Interest is to be computed in
accordance with New Horizons for the Retarded, 283
NLRB 1173 (1987) 31
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed32
ORDER
The Respondent, Owens Illinois, Inc., Pittston, Penn-
sylvania, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Discharging or suspending any employee, or de-
priving any employee of a pay raise, or otherwise disci-
plining any employee because the employee or other em-
policies of the Act," NLRB v Magnusen , 523 F.2d 623 (9th Cir 1975),
denying enf. North Star Refrigerator Co, 207 NLRB 500, 504 (1973), Iowa
Beef Packers v. NLRB, 331 F 2d 176, 184-185 (8th Cir 1964), enfg 144
NLRB 615 (1963) As I have tried to point out, however, here the distin-
guishing factors are that the employee is a professional and occupies a
delicate position in the health field where employer and employee confi-
dence are concerned , cf NLRB v Western Clinical Laboratory, 571 F 2d
457 (9th Cir 1978), and that the primary inquiry should be whether,
under the circumstances "reinstatement would create an undesirable em-
ployment situation" and thereby " frustrate the purposes of the NLRA "
NLRB Y. Jacob E Decker & Sons, 636 F.2d 129 (5th Cir 1981)
31 In accordance with our decision in New Horizons for the Retarded,
283 NLRB 1173 (1987), interest on and after January 1, 1987, shall be
computed at the "short-term Federal rate" for the underpayment of taxes
as set out in the 1986 amendment to 26 US C § 6621 Interest on
amounts accrued prior to January 1, 1987 (the effective date of the 1986
amendment to 26 U S C § 6621), shall be computed in accordance with
Florida Steel Corp, 231 NLRB 651 (1977)
32 If 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.
ployees engage in concerted activities protected by Sec-
tion 7 of the Act.
(b) In any like or related manner interfering with, re-
straining, 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
effectuate the policies of the Act.
(a) Make whole Louise M. Colarusso by immediately
paying to her, with interest, the amounts of wages or
earnings of which Respondent deprived her commencing
with her suspension on or about 20 March 1986, until her
discharge of 8 April 1986 as set forth in the remedy sec-
tion of this decision.
(b) Preserve and, on request, make available to the
Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records nec-
essary to analyze the amount of backpay due under the
terms of this Order.
(c) Post at its Pittston, Pennsylvania place of business,
copies of the attached notice marked "Appendix."33
Copies of the notice, on forms provided by the Regional
Director for Region 4, 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 Respond-
ent to ensure that the notices are not altered, defaced, or
covered by any other material.
(d) 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 RECOMMENDED that the complaint, in
all other respects, shall be dismissed.
ss 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 Nation-
al Labor Relations Board " shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board "