PPG Industries, Inc.

National Labor Relations Board - Board Decisions

Aug 13, 2002

337 N.L.R.B. 1247 (N.L.R.B. 2002)

PPG INDUSTRIES 1247
PPG Industries, Inc. and International Union, United
Automobile, Aerospace and Agricultural Im­
plement Workers of America, UAW. Case 25–
CA–25475
August 13, 2002
DECISION AND ORDER
BY MEMBERS LIEBMAN, COWEN, AND BARTLETT
On September 30, 1998, Administrative Law Judge
Richard H. Beddow Jr. issued the attached initial deci­
sion. The General Counsel filed exceptions and a sup-
porting brief and the Respondent filed an answering
brief. On August 24, 1999, following a remand by the
Board, the judge issued the attached supplemental deci­
sion. The General Counsel filed exceptions and a sup-
porting brief and the Respondent filed an answering
brief.
The National Labor Relations Board has considered
the decisions and the record in light of the exceptions and
briefs and has decided to affirm the judge’s rulings, find­
ings,1 and conclusions, as modified,2 and to adopt the
recommended Order.
ORDER
The recommended Order of the administrative law
judge is adopted and the complaint is dismissed.
MEMBER LIEBMAN, dissenting.
This case involves the discipline of a male union sup-
porter who shouted to an allegedly underpaid female co-
worker:
They’re f—ing you. They’re screwing you. You need
to sign one of my [union authorization] cards.
The remark can fairly be described as vulgar. But no rea­
sonable person—no person of ordinary sensitivity, familiar
with colloquial speech—would hear in the remark a sexual
connotation, much less a connotation so strong as to consti-
1 The General Counsel has excepted to some of the judge’s credibil­
ity findings. The Board’s established policy is not to overrule an admin­
istrative law judge’s credibility resolutions unless the clear preponder­
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
2 We agree with the judge’s conclusion that the Respondent lawfully
disciplined alleged discriminatee John Sharber after employee Julie
Meeks complained that Sharber had made vulgar, sexually explicit
remarks to her on June 27, 1997. We find that both the analysis in
Felix Industries, 331 NLRB 144 (2000), remanded 251 F.3d 1051
(D.C. Cir. 2001), and the analysis in Wright Line, 251 NLRB 1083,
1089 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S.
989 (1982), approved in NLRB v. Transportation Management Corp.,
462 U.S. 393 (1983), support this conclusion.
tute incipient sexual harassment. Unlike my colleagues,
then, I cannot conclude either that the male employee here
lost the protection of the Act (under the test of Felix Indus­
tries, 331 NLRB 144 (2000)) or that the Employer has es­
tablished that its antiharassment policy supports the disci­
pline imposed (under Wright Line, 251 NLRB 1083, 1089
(1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455
U.S. 989 (1982), approved in NLRB v. Transportation
Management Corp., 462 U.S. 393 (1983)). I therefore dis­
sent from the dismissal of the complaint.
Raifael Williams, Esq., for the General Counsel.

Lynne Schmidt Bianconi, Esq., of Pittsburgh, Pennsylvania, for

the Respondent.
DECISION
STATEMENT OF THE CASE
RICHARD H. BEDDOW JR., Administrative Law Judge. This
matter was heard in Evansville, Indiana, on September 10,
1998. The proceeding is based upon a charge filed July 9,
1997, by International Union, United Automobile, Aerospace
and Agricultural Implement Workers of America, AFL–CIO.
The Regional Director’s complaint dated December 23, 1997,
alleges that Respondent PPG Industries of Evansville, Indiana,
violated Section 8(a)(1) and (3) of the National Labor Relations
Act by issuing written discipline to and suspending employee
John Sharber because of his union or other protected concerted
activities and to discourage employees from engaging in these
activities.
Ruling on Motion for Summary Judgment
The General Counsel rested after calling the Respondent’s
personnel supervisor, the alleged discriminatee, and one em­
ployee witness. The Respondent then requested an opportunity
to move for summary judgment. The request was granted and
after a brief recess the Respondent made an oral Motion for
Summary Judgment and presented an argument in support. The
General Counsel gave an answering argument and in accor­
dance with the provisions of Section 102.35(8) of the Board’s
Rules and Regulations, I gave an oral summation of the record
and ruled on the record that the Respondent’s Motion for
Summary Judgment would be granted and the complaint would
be dismissed. No other procedural requests were made and it
was announced that my oral ruling would be supplemented by
written documentation.
Upon a review of the entire record in this case and from my
observation of the witnesses and their demeanor, I make the
following
FINDINGS OF FACT
I. JURISDICTION
Respondent is engaged in the manufacture, distribution, and
sale of automobile windshields at its Evansville plant and it
admits that at all times material is and has been an employer
engaged in operations affecting commerce within the meaning
of Section 2(2), (6), and (7) of the Act. It also admits that the
337 NLRB No. 176
1248 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Union is a labor organization within the meaning of Section
2(5) of the Act.
II. THE ALLEGED UNFAIR L ABOR PRACTICES
John Sharber has been employed as a forklift operator for
over 10 years. The Union conducted an organizational drive in
1995, which Sharber actively supported by handing out au­
thorization cards, handbilling, and holding meetings at his
home. An election was held, however the Union failed to gain
majority support and after objections were dismissed the results
were certified. At that time Sharber signed another authoriza­
tion card in front of management officials to show his contin­
ued sympathies towards the Union. He thereafter engaged in
no overt activity until February 1997, when he began to circu­
late and seek signatures for a petition (the petition was not pre­
sented as an exhibit or otherwise described in detail).
The Respondent is shown to have posted three separate no­
tices after the election which related to the union drive, the
second of which spoke about putting past differences behind
and the last which asked that employees not sign any new au­
thorization cards.
On July 7, 1997, the Respondent questioned employee Shar­
ber about a complaint made against him by another employee
which alleged the use of profane and offensive words and
phrases which could imply her involvement in sexual activities.
At the hearing Sharber maintained that he used the word
“screwing” rather than “fucking” but he otherwise admitted to
making a statement that he asserted was just “shop talk.” I find
however that his comments clearly could be considered by the
Respondent to be in the category of sexual harassment. The
Respondent’s investigation found support for the victim’s com­
plaint in one eyewitness who corroborated her story and, in
accordance with its handbook and its disciplinary rules, it
thereafter disciplined employee Sharber by issuing him a writ-
ten final warning. It further provided that Sharber be given a
paid “decision day” in which to decide if he would commit to
abide by the Respondent’s plant rules. When Sharber produced
an unacceptable letter of commitment on July 8 (which did not
address harassment), he was given an additional unpaid “deci­
sion day” to produce an acceptable letter of commitment which
he did on July 9.
III. DISCUSSION
For the reasons stated on the record and as supplemented
herein, I find that the evidence is insufficient to sustain the
General Counsel’s burden of proof, that the presentation of
witnesses or further evidence by the Respondent is unnecessary
and that summary judgment in the Respondent’s favor is war-
ranted. Accordingly, I find that dismissal of the complaint in
response to that motion will be consistent with the purpose of
the Act, with applicable law and with the appropriate utilization
of the resources of the Board and of the parties.
Under the criteria set forth in Wright Line, 251 NLRB 1083
(1980), see NLRB v. Transportation Management Corp., 462
U.S. 393 (1983), the General Counsel must make a showing
sufficient to support an inference that the employees’ union or
protected concerted activities were a motivating factor in
Respondent’s subsequent decision to take disciplinary action.
Here, the mere fact that Sharber actively supported the union
drive in 1995 appears to be the prime evidence of any basis for
finding antiunion motivation. The fact that the employer op­
posed the union drive does not itself show animus and here
there is no showing that it engaged in any activities at that time
that otherwise were in violation of the Act. The timing of the
discipline is not shown to be related to anything done by Shar­
ber that was connected to union activity and there is no evi­
dence showing the nature of the “petition” he circulated or that
management was aware of the “petition” or of Sharber’s in­
volvement with it. Moreover, the discipline was confidential
and was not disclosed to other employees, therefore it could not
have been for the alleged purpose “to discourage other employ­
ees from union activity.” There is evidence that the employer
posted three notices after the election but one of them, in Octo­
ber 1996, speaks to putting past differences “behind” and the
last one, in March 1997, asks only that the employees not sign
any new authorization cards. This is insufficient to show ani­
mus or antiunion motivation. Clearly, the employer otherwise
was obligated to seriously consider an employees’ complaint
regarding a matter related to sexual harassment and it acted in a
nondiscriminatory manner with a reasonable investigation,
evidence of a supporting witness, and in accordance with its
handbook and regular disciplinary policies. The initial “deci­
sion day” of suspension was with pay and it was only after
Sharber failed to comply with the opportunity to commit to
future compliance with plant rules that he was suspended for
one unpaid day.
Accordingly, there is no persuasive reason to infer animus or
improper motivation and for these reasons and those stated at
the hearing, I find that the General Counsel has failed to meet
his initial burden.
Under these circumstances, I find that the exhibits and the
testimony, especially that of personnel supervisor, Alice Wil­
liams, also are sufficient to shown that the Respondent had
valid reasons for giving a written warning to John Sharber and
for giving him a 1-day unpaid suspension; that it acted in re­
sponse to a serious employee complaint involving an issue in
the nature of sexual harassment, that its actions were not dispa­
rate or pretextual in nature and that it responded to persuasive,
legitimate concerns that would have resulted in the same course
of action regardless of any union or other protected activity on
the part of the alleged discriminatee. See Jordan Marsh Stores
Corp., 317 NLRB 460, 476 (1995). Accordingly, I find that no
violation of the Act occurred and I conclude that the General
Counsel has failed to prove that the Respondent violated Sec­
tion 8(a)(1) and (3) of the Act, as alleged.
CONCLUSIONS OF LAW
1. Respondent PPG Industries, Inc. is an employer engaged
in commerce within the meaning of Section 2(6) and (7) of the
Act.
2. The Respondent is not shown to have engaged in conduct
violative of the Act as alleged in the complaint.
PPG INDUSTRIES 1249
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended1
ORDER
The complaint is dismissed in its entirety.
Raifael Williams, Esq., for the General Counsel.

Lynne Schmidt Bianconi, Esq., of Pittsburgh, Pennsylvania, for

the Respondent.
SUPPLEMENTAL DECISION
STATEMENT OF THE CASE
RICHARD H. BEDDOW JR., Administrative Law Judge. This
matter was heard in Evansville, Indiana, on September 10,
1998, and April 22, 1999. The proceeding is based on a charge
filed July 9, 1997, by International Union, United Automobile,
Aerospace and Agricultural Implement Workers of America,
AFL–CIO. The Regional Director’s complaint dated December
23, 1997, alleges that Respondent PPG Industries of Evansville,
Indiana, violated Section 8(a)(1) and (3) of the National Labor
Relations Act by issuing written discipline to and suspending
employee John Sharber because of his union or other protected
activities and to discourage employees from engaging in these
activities.
After the General Counsel presented his case in chief and
rested, the Respondent requested an opportunity to move for
summary judgment. The request was granted and after a brief
recess the Respondent made an oral Motion for Summary
Judgment and presented an argument in support. The General
Counsel gave an answering argument. No other procedural
requests were made and it was announced that my oral ruling
granting the motion would be supplemented by a written docu­
mentation, which was issued as a Decision dated September 30,
1998.
On January 21, 1999, the Board vacated the decision on the
Motion for Summary Judgment and issued an Order, which
remanded this proceeding to me for further proceedings. At the
further hearing on April 22, the Respondent called Personnel
Supervisor Alice Williams who previously was called as an
adverse witness by the General Counsel as well as employee
Julie Meeks (who, as found below was the victim of sexual
harassment by the alleged discriminatee), her Acting Supervi­
sor Charles (Brad) Lamar who witnessed the incident, Lewis
Palka, the former (until November 1998) production supervisor
at the Evansville plant, and Chris Faria, a former (until mid-
1997) human resources manager at Evansville. When the Re­
spondent rested, the alleged discriminatee, John Sharber, was
recalled by the General Counsel and testified very briefly.
Subsequently, briefs were filed by the General Counsel1 and the
Respondent.
1 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.
1 The General Counsel’s unopposed motion to correct transcript
dated May 26, 1999, is granted and received into evidence as GC Exh.
16.
On a review of the entire record in this case and from my ob­
servation of the witnesses and their demeanor, I make the fol­
lowing
FINDINGS OF FACT
I. JURISDICTION
Respondent is engaged in the manufacture, distribution, and
sale of automobile windshields at its Evansville plant and it
admits that at all times material is and has been an employer
engaged in operations affecting commerce within the meaning
of Section 2(5) of the Act.
II. THE ALLEGED UNFAIR L ABOR PRACTICES
My initial evaluation of the record resulted in the following
recitation of fact in my ruling on the Motion for Summary
Judgment set forth in my decision dated September 30, 1998:
John Sharber has been employed as a forklift operator for
over 10 years. The Union conducted an organizational drive
in 1995, which Sharber actively supported by handing out au­
thorization cards, handbilling, and holding meetings at his
home. An election was held, however the Union failed to
gain majority support and after objections were dismissed the
results were certified. At that time Sharber signed another au­
thorization card in front of management officials to show his
continued sympathies towards the Union. He thereafteren­
gaged in no overt activity until February 1997, when he began
to circulate and seek signatures for a petition (the petition was
not presented as an exhibit or otherwise described in detail).
The Respondent is shown to have posted three separate no­
tices after the election which related to the union drive, the
second of which spoke about putting past differences behind
and the last which asked that employees not sign any new au­
thorization cards.
On July 7, 1997, the Respondent questioned employee Shar­
ber about a complaint made against him by another employee,
which alleged the use of profane and offensive words, and
phrases, which could imply her involvement in sexual activi­
ties. At the hearing Sharber maintained that he used the word
“screwing” rather than “fucking” but he otherwise admitted to
making a statement that he asserted was just “shop talk.” I find
however that his comments clearly could be considered by the
Respondent to be in the category of sexual harassment. The
Respondent’s investigation found support for the victim’s com­
plaint in one eyewitness who corroborated her story and, in
accordance with its handbook and its disciplinary rules, it
thereafter disciplined employee Sharber by issuing him a writ-
ten final warning. It further provided that Sharber be given a
paid “decision day” in which to decide if he would commit to
abide by the Respondent’s plant rules. When Sharber produced
an unacceptable letter of commitment on July 8 (which did not
address harassment), he was given an additional unpaid “deci­
sion day” to produce an acceptable letter of commitment which
he did on July 9.
In its remand Order the Board refers to “the Respondent’s
record of the investigatory interview it conducted with em­
ployee Julie Meeks and the testimony of Sharber about the
conversation with Meeks that led to the investigation and Shar-
1250 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ber’s discipline support the General Counsel’s position as evi­
dence that possibly could support the General Counsel’s bur-
den” under Wright Line, infra. In its exception the General
Counsel referred to Sharber’s testimony that his comment to
Meeks was:
Julie, they are screwing you again. If us people at PPG would
stick together and get a contract with our company we could
solve some of our problems.
The General Counsel also refers to Sharber’s testimony in
which he states that when the matter was investigated by Wil­
liams she assertedly told him:
I’m not too concerned about the profanity language that you
supposedly used but I am about the Union authorization cards
you have been harassing Julie about signing.
In its answer to the exceptions the Respondent pointed out that
contrary to exception 7, Sharber in fact was interviewed prior to
being disciplined and that when he had the opportunity to tell
his version of events he accused others of lying but never told
the Respondent’s supervisors what he allegedly had said, as he
later testified to at the hearing.
Here, I specifically find that Sharber’s testimony regarding
what he allegedly said to Meeks is untruthful and that his asser­
tion that Williams said she was concerned about authorization
cards, not profane language, is patently false. Williams de-
scribed the Respondent’s investigation with a straightforward
demeanor and in a highly believable manner and I find that her
testimony of what was said or not said, including the existence
of corroboration of Meeks’ complaint by Acting Supervisor
Lamar, should be credited over Sharber’s self-serving testi­
mony. Otherwise, my observation of Sharber’s demeanor on
both the September and April hearing dates led me to make a
note that his responses to Respondent’s questions were evasive
and his manner left me with the conviction that he would
singlemindedly insist on placing events in the light most favor-
able to what he wanted, regardless of what actually might have
occurred. Accordingly, I find he was not a credible witness and
where statement of facts are set forth herein I rely on the more
trustworthy testimony of other witnesses where conflicts occur.
Facts Presented on Further Hearing
In its direct case Respondent’s personal supervisor, Wil­
liams, reiterated the information she presented as an adverse
witness and persuasively described her observations and par­
ticipation in the events surrounding Sharber’s discipline.
After Supervisor Jackie Debes contacted her about Meeks’
harassment complaint on June 27, just prior to the weeklong
July 4th plant shutdown, Williams recalled two prior incidents
involving Sharber and she reviewed his file on her return to
work on July 7. She also met with Area Supervisor Debes and
Production Superintendent Palka and reviewed Meeks formal
complaint. Sharber’s discipline record showed that he had been
counseled twice before on February 22 and October 13, 1995,
for threatening or harassing behavior (and once on November 7
for violating the Respondent’s no-solicitation policy), and had
no currently active discipline as of June 1997. In the meeting
Debes also described an earlier incident where something hap­
pened on her line where he had made some inappropriate com­
ments to another female employee and Debes had informally
talked to him about it. She also recalled that at the time Shar­
ber had the nickname “Wo, Baby,” because of his comments to
women.
As established at the initial hearing, Sharber thereafter was
interviewed by Williams, Palka, and Debes on July 7, shortly
after he reported for work on the evening shift. Williams
handed Sharber Meeks’ written complaint and said that the
language was so offensive she did not want to repeat it. Wil­
liams told Sharber that she was concerned if he thought that
was an acceptable way to treat women in the workplace (a
statement that is completely inconsistent with Sharber’s unbe­
lievable claim that she said she was not concerned about pro­
fanity but about authorization cards). Williams testimony was
fully corroborated by former Production Superintendent Palka
(who now holds the position of advance production manager at
the Respondent’s general office in Pittsburgh), who opened the
meeting, and Respondent’s contemporaneous notes of the
event. I find that Sharber then denied using the more profane
phrasing and claimed the others were lying but he did not at
that time assert he has used any other words or phrases about
everyone sticking together to get a contract, or anything similar.
When Williams brought up his history of prior harassment in
1995, he said one complainant had lied and that he had stopped
making harassing phone calls to other employees after Human
Resources Manager Faria had talked to him. Faria, who cur­
rently is manager of human resources at the Respondent plant
in Delaware, Ohio, returned to Evansville for the continued
hearing and confirmed his participation in, and the existences
of Sharber’s prior discipline for harassment. It was noted that
the discipline in October 1995, occurred shortly after the Union
lost a representation election when Sharber made repetitive
harassing phone calls to the home of another employee who
thereafter complained to management. An unfair labor practice
charge over this warning was dismissed by the Regional Direc­
tor.
Williams told Sharber she was sorry but that she didn’t be­
lieve him and that because of his past history, she was giving
him a written final warning (which she read and explained), and
a paid “decision day” to prepare a letter of commitment. As
established at the initial hearing, his effort to write such a letter
was not accepted and he was given a second, but unpaid day in
which to comply, upon which he produced a minimally accept-
able effort and was returned to work.
In his first effort to write the required letter of commitment,
Sharber suddenly attempted to wrap himself in a protective
“union” flag by writing as follows:
—I HAVE NEVER HAVE ANY PROBLEM COPERATING
WITH M ANAGEMENT IN DOING M Y JOB AND WHAT IM
TOLD TO DO. I WILL CONTINUE TO BE PRODUCTIVE AND
ADHERE TO ALL PLANT RULES. HOWEVER, I AM BEING
ACCUSED OF THINGS THAT I AM ABSOLUTELY NOT GUILTY
OF. THIS IS AMERICA AND I HAVE THE RIGHT TO FACE
M Y ACCUSERS.
DOES NOT THE CONSTITUTION OF THE UNITED STATES
OF AMERICA APPLY IN THIS CASE?
PPG INDUSTRIES 1251
M RS. WILLIAMS WANTED M E TO PUT IN THIS LETTER
THAT I WILL NOT USE FOUL LANGUAGE IN THE FUTURE. I
HAVE NEVER USED FOUL LANGUAGE TO ANYONE
ANYWHERE INSIDE THIS PLANT OR OUTSIDE EXCEPT FOR
SHOPTALK WHICH EVERYONE IN HERE USES. DOES THIS
M EAN THERE IS GOING TO BE A TOTAL BAND OF TALKING
IN THIS WORKPLACE? IF SO, I WILL ADHERE TO COMPANY
POLICY. I HAVE ALWAYS DONE M Y JOB, AND NEVER HAD
ANY PROBLEMS UNTIL I BECAME AN OPEN ACTIVATE AND
SUPPORTER OF THE U.A.W. ALL OF THESE ALLEGATIONS
THAT HAVE BEEN LEVELED AGAINST M E ARE A PRETEXT
FOR M Y UNION ACTIVITIES.—
Despite his obvious awareness at this time of the possible sig­
nificance of union activity, he continued to fail to give any
explanation of what he might have said and it was not until his
testimony at the hearing that the Respondent was made aware
of his alleged additional comments. Otherwise, I find that the
tenor of Sharber’s letter is consistent with my independent ob­
servation of his demeanor and his argumentative propensity to
be evasive, to engage in misdirection and to avoid being fully
truthful.
Shortly before the closing of the hearing, the Respondent’s
next to last witness gave a shred of support to the General
Counsel’s case when Acting Supervisor Lomar testified that he
was 15 to 20 feet from Meeks and Sharber and that he recalls
that Sharber pulled by on his forklift and said, “They’re f—ing
you, they’re screwing you. You need to sign one of my cards.”
Lamar further testified that Meeks and Sharber “talked just a
brief little bit” and then Meeks came to him and appeared to be
visibly upset. He then attempted to calm her down and asked
her if Sharber talked to her like that a lot and when she an­
swered that he had harassed her quite a bit he suggested she
take the matter up with Supervisor Debes. Lamar specifically
answered that Sharber did not make any comment about people
sticking together to get a contract and solve problems, as as­
serted by Sharber and that Sharber said both “they’re fucking
you” and “they’re screwing you.”
Later, Lamar spoke with Debes about what had occurred.
Superintendent Palka then spoke with Meeks and Debes and his
notes indicate that he was told the following:
Julie was in potting on Mon-Tues-Wed-Thur and part of Fri­
day. Julie was reassigned as a potting material handler to a
fork truck driver at Final. John was on a fork truck and loudly
shouted “you got fucked again.” The intent of the comment
was that Julie was being reassigned to a driving job and
should be paid a JC4 rate. Julie felt this was harassment since
many times John has been insistent on her signing a union
card.
Several times this week at the potting line, John asked Julie
for her “signature” on his union card. She clearly stated no in­
terest in the union.
John does not normally talk to Julie unless it is union related.
Julie has gone to Jackie Debes on another occasion to relate a
similar event. Today, the harassment upset Julie very much,
especially the vulgar language. Brad Lamar, #8 area supervi­
sor, overheard the vulgar comment.
Otherwise, there is no indication that Lamar ever told supervi­
sors Debes and Palka about Sharber’s additional words about
signing “one of my cards.”
Williams also testified regarding the Respondent’s rules,
how they applied to Sharber’s conduct and how the Respondent
does not condone harassment of any kind and takes very seri­
ously any complaints of harassment of any kind and takes very
seriously any complaints of harassment. The applicable em­
ployee handbook policy to its employees includes:
Equal Employment Opportunity
Item 7A-2: “PPG Industries has pledged to create and main­
tain a workplace that is free of harassment due to sex, race,
color, creed, religion, national origin, citizenship status, age,
disability, or veteran status. An employee who feels that he or
she is a victim of harassment can obtain prompt, appropriate
Company action by notifying any member of management.”
J. The Company is committed to maintaining a working envi­
ronment free of all forms of harassment including verbal or
physical abuse or intimidation against any person on the basis
of race, color, creed, sex, religion, national origin, age,
disability or veteran status.
Workplace Violence
Item 13A-2: To take prompt remedial action up to and in­
cluding immediate termination, against any employee or who
uses any obscene, abusive, or threatening language or ges­
tures”;
Rules for Employee Conduct
Item 10-1: Although most of you will not need to be re-
minded of them, it is necessary to spell out these rules and
regulations which, if violated, may result in disciplinary ac­
tion.
It is not intended that this list is all inclusive, but merely
suggestive of certain areas which would be subject to
disciplinary action up to and including immediate termination.
Item ID-2: F. General conduct: Includes obscene, abusive,
discriminatory, or threatening language, fighting, interference
with other employees, engaging in malicious gossip, posting
material without prior approval, immoral behavior or engag­
ing in such conduct that adversely affects the morale of other
employees.
Discipline Procedure
Item 6-D-1: Normally, discipline will be progressive in na­
ture. However, there are certain violations of a deliberate na­
ture or actions, which constitute such serious violations that
immediate review and termination may be necessary.
Williams also testified to four incidents in which Evansville
employees harassed female employees and were disciplined.
Each of the four incidents was an isolated event, not part of a
pattern, and the offenders were counseled or given a verbal
warning.
1252 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Discussion
Here, the General Counsel has shown that union activity
took place at the Respondent’s facility in 1995, that Sharber
was a known union supporter and that in 1996 after the Union
loss of the election was certified, the Respondent posted several
notices which asked that past differences be put behind and that
employees not sign new authorization cards. At the initial hear­
ing the records established by the General Counsel also indi­
cated that in February 1997 Sharber circulated and sought sig­
natures for a petition, however, at the further hearing it became
apparent that Sharber also was circulating new authorization
cards (despite instructions from the Union to stop seeking cards
and to concentrate on the petition), and that he had repeatedly
asked a new female employee, Meeks, to sign a card, despite
her rejections of his efforts. The record also shows that Re­
spondent has a valid no-solicitation rule and applicable hand-
book disciplinary rules, that Sharber twice previously had been
disciplined for harassment of other employees, that Sharber was
given a final warning under these rules because he had used
vulgar profanity of a sexual nature to a female employee, and
that the Respondent relied upon credible evidence showing that
despite his denial, Sharber had used the most vulgar terminol­
ogy attributed to him rather than (or in addition to) the less
vulgar but equally sexually suggestive term he admitted to us­
ing.
Here, the General Counsel takes the apparent position that
sexual harassment and the use of vulgar profanity is a protected
concerted activity which grants the perpetrator immunity from
discipline as long as the perpetrator at some time has been a
known union supporter and might also have said something
about people striking together to solve problems at the time he
engaged in his sexually vulgar conduct.
The General Counsel’s concept of the case and his attempted
reliance upon Burnup & Sims, 379 U.S. 21 (1964), is misplaced
and clearly the more contemporaneous and accepted standard
for review of a case of this nature is Wright Line, 251 NLRB
1083 (1980), see NLRB v. Transportation Management Corp.,
462 U.S. 393 (1983), which requires that the General Counsel
must make a showing sufficient to support an inference that the
employees’ union or protected concerted activities were a mo­
tivating factor in Respondent’s subsequent decision to take
disciplinary action. Here, the alleged discriminatee even ad­
mits that he engaged in some level of misconduct (saying that
“they are screwing you again”), and the preponderance of the
evidence shows that he actually used more vulgar phrasing in a
manner that constituted sexual harassment and violated the
Respondent’s valid plant handbook rules. Moreover, the record
initially (as well as after further hearing), lacks believable proof
that the Respondent was aware that he said something about
signing one of my cards at the time it gave him a final warn-
ing.2
2 In Burnup & Sims, the court held that Sec. 8(a)(1) is violated if: (1)
the discharged employee is engaged in protected activity; (2) the em­
ployer knew the activity was protected; (3) the basis of the discharge
was alleged to be an act of misconduct in the course of the activity; and
(4) the employee was not, in fact, guilty of that misconduct. All four
are required for Burnup & Sims to apply and that is not the case here.
The Board has accepted a Wright Line analysis in numerous
cases, several of which will be noted here. In Food & Com­
mercial Workers Local 1776, 325 NLRB 908 (1998), Judge
Miller, in a Bench Decision, noted a showing of remote union
activity but found no animus and no unlawful action. In Meri­
tor Automotive, 328 NLRB 813 (1999), Judge Carson found
marginal knowledge of union activity but no direct evidence of
animus and no basis to infer animus (no disparate treatment),
and therefore a failure to meet the General Counsel’s burden of
proof. Also, in Birmingham Chrysler Plymouth Jeep Eagle,
326 NLRB 1175 (1998), Judge Wallace (without even citing
Wright Line), in a brief, two-page decision, found no protected
activity, no evidence of animus, and, arguendo, a valid nondis­
criminatory basis for the employee’s discharge. It is noted that
in the latter case, while the charging party filed exceptions, the
General Counsel apparently recognized the absence of even
marginal proof or any basis for successful review and accepted
the judge’s dismissal of the complaint.
First, the subject of protected concerted activity. Clearly,
Sharber had the Section 7 right to ask other employees to sign
authorization cards. As pointed out above, he failed to inform
the Respondent that that was what he allegedly was doing when
he accosted employee Meeks and this court was initially told
that he had been circulating a petition at a prior time. If in fact
he was seeking her signature on an authorization card when he
made his vulgar opening remark, when both were on work
time, he would have been violating the Respondent’s valid no-
solicitation rule and could properly have been disciplined for
violating that rule. He also would have been violating the Un­
ion’s instructions that he forego card signing. Here, I otherwise
find that the Respondent’s choice to disregard this solicitation
factor is indicative of its lack of knowledge and indicative of an
absence of union animus. The General Counsel cites Circle K
Corp., 305 NLRB 932 (1991), in which the Board reversed my
conclusion that an employee’s actions were only in her own
interest and found that her letter to other employees about
working conditions was the sole motivating factor for her dis­
charge. The Board also found that the activity was concerted
and demonstrated a violation of Section 8(a)(1) but it did not
pass on my conclusions regarding any 8(a)(3) violation.
Clearly, the record involving Sharber shows that the Respon­
dent’s reaction to alleged sexual harassment in the workplace
was at least another motivating factor and therefore it is not the
same as Circle K, supra. Accordingly, a Wright Line analysis is
appropriate.
The General Counsel goes on to site Consumers Power Co.,
282 NLRB 130 (1986), and Neff-Perkins Co., 315 NLRB 1229
(1994), cases in which the Board upheld two of my decisions in
which I found that the employee’s insubordinate conduct was
part of the res gestae of a protected activity and not so egre­
gious as to take it outside the protection of the Act. In the latter
case employees used the terms “shitty” and “sucks” in front of
a customer who was present at a workplace meeting.
Here, the Respondent’s investigation developed some infor­
mation showing that in addition to the sexually vulgar occur­
rence on June 27, Sharber previously had repeated and insis­
tently harassed Meeks about signing a union card. It does not
appear, however, that any past lawful conduct was part of the
PPG INDUSTRIES 1253
res gestae of Sharber’s sexually vulgar statement to Meeks,
made in Lamar’s presence. Until Lamar’s testimony at the
further hearing, there was no credible evidence that any concur-
rent protected activity had occurred. Now, taking into consid­
eration Lamar’s testimony that Sharber followed his obscene
comment with the phrase “you need to sign one of my cards,” it
appears that Sharber, in effect, made a conscious or uncon­
scious attempt to make a protected activity part of the res gestae
of his thoughtless, obnoxious, unprotected verbal assault on
Meeks. Sharber’s vulgarities are words that were a clear viola­
tion of the Employer’s handbook rules against use of “obscene,
abusive, or threatening language”; “conduct that adversely
affects the morale of other employees”; or “exhibited attitude
that adversely affects team effort, morale, and attainment of
organizational goals.” Sharber’s use of vulgar language, di­
rected at a young female employee, qualifies as an actionable
offense under the Employer’s handbook rules. His language
and vulgar presentation also is beyond the concept of accept-
able “shop talk” and it constitutes sexual harassment in the
workplace, conduct that an employer is required to address in
order to protect the victims’ rights to a hostile free work envi­
ronment. Accordingly, I find that it is egregious conduct that is
unprotected.
Sharber’s vulgar comment initiated the confrontation, it was
not a defensive reaction as in Consumers Power , supra, and it is
not res gestae or a spontaneous declaration made immediately
after an event. I heard the testimony and evaluated the wit­
nesses’ demeanor in the Consumers Power case (and Neff-
Perkins), supra, and saw a situation where concerted conduct
was responded to by an employer, which generated a defensive
reaction by the employee who was then disciplined. My obser­
vations of the circumstances and Sharber’s testimony in this
case lead me to conclude that the situations are not at all com­
parable with the cited cases and I find that Sharber was not
attempting to have Meeks sign an authorization card or was he
engaging in any other protected activity when the event oc­
curred.
Viewing the occurrence in the light most favorable to Shar­
ber, he crudely started a conversation intending to allude to
Meeks’ job assignment. Meeks initially did not understand it
that way and reasonably believed that he was making an unwar­
ranted public and profane commentary about her sexual activi­
ties. Previously, Meeks clearly had informed Sharber that she
was not interested in signing an authorization card and Shar­
ber’s conduct in this final instance could arguably be seen as an
example of abusive retaliatory harassment on Sharber’s part
because of her repeated spurring of his advances. This interpre­
tation, however, would not provide a valid defense for the con-
duct.
Meeks’ rights to be free of harassment and the Respondent’s
responsibility to provide a proper workplace and to respond to
her complaint in accordance with its rules and policies must be
balanced against Sharber’s Section 7 rights but the latter must
yield when those rights are used as a pretext for sexually vulgar
behavior or where the rights are exercised in such a way that
the action violates common standards of decency. As other-
wise concluded above, the overwhelming preponderance of
evidence shows that the conduct, which precipitated his disci­
pline, was not concerted activity that should be protected under
the Act.
This case also is strikingly clear in relation to the element of
animus, a deciding factor in the several cases cited above.
Here, the General Counsel contends that Sharber was active in
passing out cards and wearing union paraphernalia prior to the
election held in 1995 and that the Respondent displayed “hostil­
ity” toward the Union by telling employees it didn’t need a
third party to help it operate and also points to the notices, de-
scribed above, the Respondent’s posted after the election was
lost by the Union. As stated in the Birmingham Chrysler case,
supra, opposition to unionization is insufficient in itself to es­
tablish animus. Moreover, there were no successful objections
or charges relative to any violation of the Act by the Respon­
dent in that election. In fact, a charge arising out of prior disci­
plinary action for harassment by Sharber was dismissed and no
other improper conduct was found to have occurred involving
Sharber or any other union advocate.
The General Counsel seeks to infer animus in the fact that
the Respondent responded to Meeks’ complaint and interpreted
the situation as being one of sexual harassment. Contrary to the
General Counsel, there is nothing in the record that would
somehow twist the employer’s response to a facially valid dis­
play of vulgar, sexually explicit language into something that
was pretextual. In fact, the employer responded in a markedly
restrained manner. There was no rush to judgment. There was
no attempt to discipline Sharber for his possible rule violation
of soliciting on worktime. There was no overly harsh penalty
imposed (no suspension or discharge) and he was given a day
off with pay, to prepare his initial letter of commitment and was
given a reasonable chance to bring his behavior into compli­
ance with its rules and expectations. This is not conduct from
which animus can be inferred. If anything should be inferred, it
would be that the Respondent’s managers acted in a responsible
manner and displayed no antiunion animosity.
Finally, the General Counsel contends that the Respondent’s
choice of a final warning displays a failure to follow its disci­
plinary guidelines and therefore requires an inference of ani­
mus. The General Counsel also suggests disparate treatment
because Manager Palka, in accepting Sharber’s second letter of
commitment, expressed several conditions.
The Respondent’s rules, however, unambiguously state that
actions that constitute serious violations may be handled out-
side of the normal progressive system. Its rules also provide
for prompt action, including termination for obscene, abusive
language and its expressed policy (which would track its obli­
gation under Federal regulations other than the National Labor
Relations Act), calls for a workplace free of verbal abuse and
all forms of harassment. Certainly, in view of the nature of the
offense and especially in view of Sharber’s history of past har­
assing conduct, discipline did not have to follow the normal
progression and the Respondent appropriately imposed disci­
pline outside of the normal steps. Accordingly, there is no
basis to infer animus.
Supervisor Palka did remind Sharber on July 9 to abide by
existing plant rules but these instructions concerned standard
plant rules. Handbook item 1-D-1 alludes to the proposition
that most employees will not need “to be reminded” of the rules
1254 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
and thus it was appropriate under the circumstances, including
Sharber’s minimally acceptable letter of commitment, and it
does not demonstrate animus. Moreover, Palka’s reminder
would appear to be a measured action designed to alert Sharber
and to keep him free of other rule violations that could jeopard­
ize his continued employment. In short, the Respondent’s con-
duct under the circumstance was clearly helpful and balanced
and cannot be conjectured into an inference of animus.
In summation, I find that the record completely fails to indi­
cate any probative basis for finding that the Respondent’s ac­
tion in giving Sharber a final warning because of his conduct
was motivated by any reason other than an investigation of
another employee’s complaint and a reasonable conclusion that
he had committed a serious violation of plant rules and policy.
I find that there is no direct showing of possible animus and
there is nothing beyond speculation that possibly could suggest
a valid basis for inferring animus. I also find that there is no
showing that at the time of the discipline was imposed the Re­
spondent even was aware that Sharber claimed to have been or
was engaged in protected conduct when he engaged in his im­
proper and indecent confrontation with a female employee who
thereafter complained about his obscene and offensive behav­
ior. I find that Sharber’s conduct was egregious and it was not
part of the res gestae of possible connected protected activity.
Finally, I find that on balance the Respondent’s duty to act on
behalf of the victims’ rights to a harassment free workplace
outweighs any tenuous indication that Sharber was engaged in a
protected activity. Accordingly, I find that the only reason for
Sharber’s discipline was his misconduct. As the record fails to
show that he was disciplined for any other reason, the General
Counsel has failed to meet his initial burden under Wright Line,
supra.
In my decision and ruling on Motion for Summary Judgment
I reached the same ultimate conclusion noted immediately
above and also made the following finding:
Under these circumstances, I find that the exhibits and
the testimony, especially that of personnel supervisor, Alice
Williams, are sufficient to shown [sic] that the Respondent
had valid reasons for giving a written warning to John Sharber
and for giving him a one day unpaid suspension; that it acted
in response to a serious employee complaint involving an is-
sue in the nature of sexual harassment, that its actions were
not disparate or pretextual in nature and that it responded to
persuasive, legitimate concerns that would have resulted in
the same course of action regardless of any union or other
protected activity on the part of the alleged discriminatee, see
Jordan Marsh Stores Corp., 317 NLRB 460, 476 (1995).
Accordingly, I find that no violation of the Act occurred and I
conclude that the General Counsel has failed to prove that the
Respondent violated Section 8(a)(1) and (3) of the Act, as al­
leged.
Although, I did not use the phrase “even assuming ar­
guendo” that Sharber engaged in protected activity, as was the
case in the Birmingham Chrysler case, supra, it was intended
that the paragraph constitute an alternative finding and I here
reaffirm my conclusion in this respect.
On further hearing the record is even clearer that the disci­
pline of which Sharber complains is typical of that issued for
similar violations of Respondent’s policy involving other em­
ployees. Williams testified to four incidents in which Respon­
dent’s Evansville employees harassed female employees and
were disciplined. Each of the four incidents was an isolated
event, not part of a pattern, and the offenders were counseled or
given a verbal warning (as was Sharber himself on previous
occasions). Accordingly, I again conclude that the overwhelm­
ing weight of the evidence precludes the possibility of reaching
the speculative inferences suggested by the General Counsel
and I find that the overall record and the evidences of the
Respondent’s practices show that the Respondent would have
issued a final warning to Sharber even in the absence of any
arguable protected concerted and union activity.
Additional Matters
The Union properly fulfilled any duty it had by acting on
Sharber’s complaints and filing a charge on his behalf. It is
equally clear that the Union recognized that any record subse­
quently developed was inconsistent with a viable showing of an
actual violation of the Act and it responsibility did not pursue
the matter further.
Because I initially chose to avoid specifically stating that
Sharber’s testimony about what he said was false, the General
Counsel has apparently seen an opportunity to make an ex­
tremely strained attempt to salvage a record that was over­
whelmingly insufficient to counterbalance the facts presented
which clearly favored the Respondent’s position, both as to
motivation and discipline that would have issued despite any of
Sharber’s prior union activities.
Here, there may have been a valid reason to investigate and
to proceed to litigation, however, at the close of the General
Counsel’s case it should have been clear that the objective pos­
sibility of finding substantial evidence or drawing reasonable
inferences that would support a finding of illegal conduct was
inconsistent with the preponderance of the record and was so
remote as to be highly unlikely.
Here, the facts hint at only a remote connection of Sharber’s
discipline with animus or union activity and it should be clear
that the mere existence of past union activity by the alleged
discriminatee does not serve to insulate a wrongdoer from an
employer’s routine disciplinary process. This is especially true
when there is a countervailing general public policy and where
an employer has a responsibility to exercise reasonable care to
prevent and correct sexually harassing behavior. In view of
Sharber’s past harassing conduct, there is a substantial likeli­
hood that he would continue that type of conduct unless he was
given a final warning as discipline. The Respondent had the
right to regulate repugnant conduct and the use of sexual vul­
garisms in the workplace that creates a hostile work environ­
ment and the discipline imposed allowed Sharber a reasonable
chance to bring his behavior into compliance with Respon­
dent’s rules and expectations.
It is noted that the Board has expressed concern over delays
and the backing in pending case and has promoted a policy to
prioritize cases, allocate resources, and efficiently process
cases. Here, the further prosecution of this litigation has gener-
PPG INDUSTRIES 1255
ated public testimony and further public humiliation of the
harassed victim as well as a costly waste of the time and re-
sources of the witnesses, the Employer, the Region, the Divi­
sion of Judges, and the Board. This is wasteful, inefficient and
inconsistent with Board policy and the fair administration of the
Act and is unwarranted.
CONCLUSIONS OF LAW
1. Respondent PPG Industries, Inc., is an employer engaged
in commerce within the meaning of Section 2(6) and (7) of the
Act.
2. The Respondent is not shown to have engaged in conduct
violative of the Act as alleged in the complaint.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended1
ORDER
The complaint is dismissed in its entirety.
1 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.